DO ALL LAWYERS STILL PUT THEIR CLIENTS` INTERESTS FIRST?

 11. Apr. 2010. – 12:56:09 

On November 21st 2009 I discussed either way offences. This category of offences is triable in either a Magistrates` Court or by a jury in Crown Court. England and Wales is unique in having this choice for defendants. Other English speaking jurisdictions including Scotland, Ireland, USA, and the Commonwealth do not offer this to defendants. 

During Magistrates` Courts procedures prior to the trial of a defendant on an either way charge who has pleaded not guilty the Bench will be asked whether or not it accepts jurisdiction or whether it considers the matter and the likely disposal if there is a guilty verdict to be such that it should be tried before a judge and jury. That decision is made without the Bench having knowledge if the defendant has any previous convictions or is of previous good character. If the Bench declines jurisdiction arrangements are made to send the matter to the Crown Court. If, however, the bench accepts jurisdiction the defendant then has the right to accept a summary trial or to opt for a trial at Crown Court. Many defendants with or without their lawyer`s opinion consider their chances of acquittal are better at Crown Court although statistically this is not a well founded opinion. The consequences of course of a guilty verdict at the Crown Court are sentences not limited to the six months in prison which is the maximum available at Magistrates` Courts. So electing Crown Court can be a high risk strategy. For lawyers state funded fees are higher for Crown Court appearances.

In all walks of society some people do their jobs better than others; that`s a fact of life. A couple of months ago a young woman appeared on a charge of theft; an either way offence. She pleaded not guilty and after hearing the facts of the case from the CPS lawyer we decided to accept jurisdiction. Her lawyer who was appearing to receive procedural advice from the prosecutor after consultation with his client indicated a wish to appear at Crown Court for a jury trial. All quite simple. Then came the question of bail and whether or not the defendant would be remanded on bail with or without conditions or be remanded in custody until her next court appearance. At this stage the Bench has access to a defendant`s previous record if there is one and boy oh boy did this defendant have a record of previous robberies and thefts and other similar matters some committed on bail. She was remanded in custody.

The point of all this is to wonder why this woman`s counsel advised her to go to Crown Court and have her case tried by a jury. It is not for me to pre-suppose the result but, and it`s a big but, if she is found guilty she is going to go away for at least eighteen months if not longer whereas if she had remained with the Magistrates` Court the maximum would be six months. 

In these stringent times when the public purse strings are being drawn ever tighter for lawyers and legal aid fees did a higher fee rate at Crown Court have any influence over the lawyer`s advice? Ten years ago I wouldn`t have thought of asking the question. 

NO CASH FOR COURTS BUT MONEY FOR NEW CARPETS

 

11. Apr. 2010. – 12:03:37

Magistrates` Courts both physically and conceptually have been and are struggling on limited budgets. Apparently some courts have ceased the supply of biscuits for JPs causing whispers of rebellion quickly dispersed by more cups of tea and coffee which are still on offer from the public purse. When, however, ushers are unavailable to function at trial proceedings owing to vacancies not being filled and court officials including legal advisers and defence or prosecuting counsel, being required to leave court to find witnesses it becomes a matter of great concern.....it is similar to the difference between sensible dieting and anorexia.

So it was to my astonishment a couple of weeks ago to see in the car park about six very thick rolls of carpet lying in a skip along with hundreds of carpet tiles. Unofficial mutterings from various sources seemed to agree that many areas in our very large building were being re-furbished. It seems that budgets have to be "spent" by the end of March or the following year`s funds would be reduced.

Now I haven`t tramped through every office or corridor but in general there did not seem to my untrained eye areas of threadbare floor covering or damp on the walls. The "estate" budget would appear to be separated from the cash required to run the courts system; hence not enough ushers amongst other human shortages. When politicians shout louder and louder about efficiency savings every five years I begin to wonder where they are going with that subject and indeed whether for their eyes the trees are truly obscuring the wood.

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TV LICENSE AND THE CRIMINAL LAW

 

09. Apr. 2010. – 11:46:37

Most prosecutions in UK are carried out by authorised government controlled authorities such as the Crown Prosecution Service in England and Wales and the Procurator Fiscal`s Office in Scotland. Individuals can bring private prosecutions under certain circumstances. And there are, however, organisations such as the R.S.P.C.A., London Buses or virtually any local authority which also prosecute often in Magistrates` Courts where they pay a fee to the court to "hire" a bench to sit in judgement similar to what happens in the criminal cases usually adjudicated.

The C.P.S. is a public service, part of the Ministry of Justice, open to inspection with policies, performance etc available for public scrutiny and monitored by various parliamentary overlords. The C.P.S. does not send mail outs to magistrates on a regular basis.

One prosecuting body which sends mail outs two or three times a year to every member of the Justices of the Peace professional representative organisation, the Magistrates` Association, is TV Licensing. This four page publication "In Brief" more or less extols this quango`s right to operate and the manner in which it "tries its hardest" not to prosecute non license payers. Tosh!!!!!

Anybody moving to a new address or who does not use a TV set at their current address knows well enough of the bombardment of requests, which soon become demands, to pay the license fee. Their so called inspectors have no right whatsoever to enter premises without the permission of the occupier but of course many occupiers do not know this. 

Watching a live TV programme on a TV set or on the internet requires a TV license. Failure to have one is a criminal matter and it is criminal prosecutions which take place as mentioned above. Sometimes the results are iniquitous to say the least. A case which has stayed clearly in my mind was that of a Harvard law graduate attending an English university for a term as a post graduate student. He was staying with friends for a few days watching a football match on TV when there was a knock on the door. He was the person least interested in "soccer" and answered the door. To the question from the official with an ID badge whether the TV was on he innocently answered in the affirmative. That young American was in front of us for having no TV license because that is the current situation; s/he who answers the door to the TV license Gestapo is the one responsible in law. There was no doubt that he was guilty but he was given the second lowest disposal available....a conditional discharge. Although his name would not appear on the Police National Computer he now has a criminal record in England.

It is a question for the next government whether or not the BBC should continue to be funded by a license fee. It is a question of justice that non payment of such a fee should be constituted as a civil matter and judged as such and the anachronism of criminal proceedings be consigned to history.

SAD TALE OF MAGISTRATE WHO THREW HER WEIGHT AROUND

 

08. Apr. 2010. – 11:40:54

One of the major issues at this election is the integrity of our MPs. However they constitute just one group in whom trust is placed by the public. Teachers, doctors and those generally we empower on our behalf to perform complex and/or supervisory activities must be laid bare before their fellows when their probity is in doubt; hence the public scrutiny over Baroness Scotland`s employment of an illegal immigrant.

Not every selection committee for every professional, academic, examining or appointing body gets it right 100% of the time and the conduct of Justices of the Peace whilst of a transparently high standard is prone to the odd black sheep as much as others in the legal world.

Such is the case of Stephanie Lippiatt J.P. who was found guilty at Croydon Crown Court of criminal damage and illegal eviction of a tenant. She was fined £2,000 for the illegal eviction and £250 for the criminal damage. She was also ordered to pay £1,900 prosecution costs and defence costs up to £5,000 - making a total of £9,150.

The lesson is simple; if somebody offers him/herself for public office it behoves him/her to behave with the highest standards in all aspects of life or face the consequences.

FOOTBALL BANNING ORDER; AN OWN GOAL?

 08. Apr. 2010. – 11:03:36 

Magistrates and courts are often the subject of criticism from those who consider that "the courts aren`t tough enough" and from the literary or liberal end of the critical spectrum of sending too many defendants into Her Majesty`s care for short summer holidays at £600 per week to live alongside two others to eat and defecate in a concreted room about eleven feet by eight. For those at the receiving end of a sentence pronouncement their reactions are occasionally almost as much a comedy as a tragedy.

Such was the case with Darren D a few weeks ago. He was a nineteen year old who had been cautioned once as a youth. He was before us for being drunk and disorderly in the street close to the local League 2 football club where his team Darlington, currently bottom of the league, were playing away. His behaviour had been provoking home fans into returning his swearing and obscene gestures ten fold when despite warnings to desist he had left local police with little option but to arrest and subsequently charge him. 

After his guilty plea he was informed of the amount of his fine and costs which were calculated according to his very low income but the moment that raised a hard to suppress smile on the faces of all those in court was when he was told that he would be subject to a twelve month Football Banning Order; "Thank you your honour, who`d want to see another year of that f*** ing team`s s*** football anyway". 

In that case perhaps we were the ones who`d scored an own goal.....the defendant liked the sentence or at least part of it. 

SECT V PUBLIC ORDER ACT & CATCH 22

 06. Apr. 2010. – 17:24:19

On March 6th I commented on ramifications under Sect V of the Public Order Act causing harassment, alarm or distress which was commented upon with his usual wisdom by ObiterJ http://www.obiterj.blogspot.com/

I had cause recently to remind myself of another such case a few years ago. For those unacquainted with court matters this charge is very very common and could be used to charge for using abusive language to standing on a zebra crossing and refusing to move. Essentially a young couple was arguing, he drunk, she very drunk. She falls, police approach and walk her away telling parties to quieten down. She falls again and he rushes to help and protect her. Police tell him to move and say he hit out at officer. He says put arms up to protect himself. Upshot he is arrested and charged. He pleads not guilty and on trial. Now the interesting bit……..these ostensibly “minor” cases often depend on quite deep legal thinking. As he was unrepresented our learned clerk advised him of the defence of “reasonableness” when his actions to protect girlfriend could be “reasonable” but that defence could be put only if he admitted behaviour as described by prosecution. As I said to my colleagues that is a classic Catch 22……He is denying behaviour but that defence which could stand in law required him to admit said behaviour……We discussed for some time and as it was getting late called for the Deputy Justices` Clerk. His advice was that the defendant had had to be aware that his behaviour would have caused alarm or distress to be guilty and if we considered he was unaware then he was not guilty. 

A few minutes later he was relieved to walk away from court retaining his good character. An additional point which did not enter the mix of the above case is that generally being drunk is an aggravating factor in such a matter as it is in other charges but if he were so drunk to be unaware…………

THE LETTER OF THE LAW OR ITS SPIRIT?

 

05. Apr. 2010. – 11:10:44

Since the G20 riots a year ago and the subsequent acquittal of Sergeant Smellie [usually pronounced "smiley" in Scotland] much media coverage has been given to the fact that he had no visible number on his uniform by which he could and should have been identifiable.  Controversy of this type has been going on for a long time and it was following a riotous situation many years ago that police vehicles were required to have similar indentifying characters on their roofs and/or sides.

It therefore makes for interesting reading of a Freedom of Information request on the website of Surrey Police.  This observer would opine that as with other public organisations perhaps the letter of the act is being observed but the spirit appears distinctly lacking.  And often in legal arguments of one sort or another the question arises as to which route to take to resolve an issue; the letter of the law or its spirit.  I`m a spirits man myself when it comes to alcohol and similarly with the law that it is the intent of the draftsman whether it is the Constitution of the United States or the Freedom of Information Act under discussion. If the draftsman has erred in not making the intent clear enough he should be given the doubt and doubtless many "letter" lawyers might disagree.

THIS IS WHAT WE`VE COME TO: DO A "BASIL FAWLTY" GOOSE STEP AND YOU COULD BE IN COURT

 04. Apr. 2010. – 12:57:57 

Like millions of others I can enjoy watching John Cleese in Basil Fawlty persona almost as much as his silly walking etc at Messers M. Python.  Indeed one phrase from the sixth episode has stood the test of time and is well remembered today thirty years later, "Don`t mention the war". His goose stepping scene with a finger across his upper lip will be shown in TV clips a hundred years from now as an example of the last throw of the intellectual freedom of the late 20th century because it is extremely doubtful that the inhibited grey suits with their political correctness, who control many visual media diluting writers` and performers` talents, would today sanction such a sketch. If it is thought I am, to coin a phrase, going over the top on this..........going back to that episode of Fawlty Towers I was watching recently, it reminded me of a case two or three years ago.

The defendant of previous good character  was a veteran of World War 2.  He had been charged with using threatening abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to Section V[1] and [6] of the Public Order Act 1986........a "catch all offence". Those whom he had been charged with receiving his "words or behaviour" were two Police Community Support Officers.   He had been arguing with a car driver who, he asserted, had almost hit him on a zebra crossing.  The PCSOs had told the pair of them to desist; the driver drove away and our 80+  year old defendant had then performed a Basil Fawlty Hitler goosestep around the PCSOs to demonstrate in his words their bloody interference.  One member of the bench dissented with the verdict of guilty but guilty he was found.  He was sentenced to a Conditional Discharge for six months and to pay £50 of the £350 costs asked for by the prosecution. 

The only conclusion I can draw from this tale and from others of a similar nature is that whilst police officers have discretion, and long might it continue, these ill educated poorly paid apologies for Chinese neighbourhood  wardens [spies], now defunct traffic wardens  or park rangers of my childhood are little better at replacing police officers than repairing a damaged Rolls Royce with filler and expecting it to be as good as new.  It might be cheaper at the time but in the long run the value of the Rolls can never be recovered. And thus the ship of state sails on its being only a matter of time before all the holes below the waterline coalesce and the deluge begins.

NO JURY BUT THREE TRIAL JUDGES

 

03. Apr. 2010. – 12:43:21

Recent legislation allowed for a single judge to sit without jury on certain trials under certain circumstances.  Recently the verdicts were handed down in the first major criminal trial in 400 years to be conducted in this fashion by a  judge sitting without a jury. The important word is major. Sections of the press best described as appealing to those who are impressed by the images rather  than the news or editorials failed to make much mention if any that judge only trials have been conducted in this country for centuries and that defendants have no right to choose any other form.

Those charged with summary only offences can be judged and sentenced by a District Judge sitting alone in a Magistrates` Court. Defendants pleading  not guilty to these same summary offences can also face a bench of usually three magistrates who will rule on facts and when appropriate determine the sentence. Appeals at Crown Court from sentence or verdict at Magistrates` Courts are heard at Crown Court in front of a judge sitting with two magistrates.  The Supreme Court must have at least three judges sitting on an appeal.  Tribunals of three or five judges are common in Europe. 

The argument that an Englishman has had, since Magna Carta, a right to be tried by his peers   is more fancy than fact. It has, however, opened up a deep divide within the legal profession and amongst those closely associated.  Former Met Assistant Commissioner Andy Hayman, a regular contributor to The Times, wrote yesterday that, "It is time to wake up to reality and accept that sometimes one good judge and true is the answer". It does not seem to have been considered that in the certain circumstances to which I referred earlier three judges would constitute a highly learned bench and would I am sure be acceptable to the "jury is all" brigade who are currently so vociferous in their opposition.

THE BIZARRE GUIDELINES OF THE INDEPENDENT POLICE COMPLAINTS COMMISSION

 

02. Apr. 2010. – 18:19:45

The Police are always open to criticism not necessarily because their speech or actions or any contact with the public is against any sort of regulation or law but because they are police officers per se; they have such powers over the citizen that many people involved in some aspect of the legal system would have some difficulty some of the time over some possible infraction of that law. That said they also have to tread carefully in the dispensing of said powers.

The Independent Police Complaints Commission is a Quango of the premier division of quangos. Its investigations have led to many police officers having to face the music of one sort or another. Therefore in my opinion it behoves that organisation to do its utmost to retain the respect of all parties; police and citizen. Recent news leads me to think that in bending over backwards to be seen as so totally non partisan and politically so correct its contortions have led to its head being somewhat up its rear. In new guidance to police it states that, "even if the complaint seems to be bizarre, implausible or intrinsically without foundation it should still be investigated and recorded"  and continues "The mere fact that a person has been diagnosed as having a mental illness or learning disability does not mean that he or she will lack capacity to make a complaint against police."

Not surprisingly this has not been greeted with joyous rapture by those blue uniformed guys `n gals who have frequent encounters with those, who, quite frankly, until the 1980s were kept under close care in large locked buildings for their own good as well as ours those buildings now often re-developed as luxury flats.

Not surprisingly this has not been greeted with joyous rapture by those blue uniformed guys `n gals who have frequent encounters with those, who, quite frankly, until the 1980s were kept under close care in large locked buildings for their own good as well as ours those buildings now often re-developed as luxury flats.

The guidance includes the following, "The Police Reform Act does not permit an appropriate authority to decline to record a complaint simply because it appears bizarre, implausible or intrinsically without foundation."

I leave it the imagination of readers to muse on what form a bizarre and/or implausible complaint could take......flying saucer disturbed the daffodils perhaps or Boris Johnson ate my hamster...............

MAGISTRATES` TRAINING AND DOMESTIC VIOLENCE

 02. Apr. 2010. – 16:43:45 

I`ve written here on a few occasions about "Domestic Violence" and the fact that there is no such offence in law....... yet. Another "specialist" court has recently been set up in East London; The Thames Specialist Domestic Violence Court at Thames Magistrates` Court in Bow Road subsequently to having met twelve government required criteria ranging from separate entrances for complainants to "magistrates who are trained to deal with domestic violence cases". Although I do not sit in that area I too am a "specially trained magistrate trained to deal with domestic violence cases". I and my colleagues do not have to be "specially trained" to deal with non domestic violence cases, nor any driving offences which fall within our jurisdiction, nor the hundreds of other offences with which we deal every time we sit. 

The nub of the specialist DV training is an attempt to provide us with historical, social and most disconcertingly spurious statistical evidence to take with us into a DV court. My opinion, although I believe it is not shared by the majority of my colleagues, is that violence in a domestic context be judged on the evidence presented in court as is every case in a British court of law.

As a matter of record it has been reported that since the court opened in October 2009 there have been 115 domestic violence trials, resulting in 21 prison sentences and 14 restraining orders for perpetrators. If we assume that each of those 35 disposals represents the result of 35 trials we are left in the dark about the verdicts and corresponding disposals if any of the remaining 80 trials. 

THE GREEN POLICE OF HERTFORDSHIRE

 

01. Apr. 2010. – 23:04:08

Are we as our particular group whatever that might be in favour of a pledge to be gentle with babies? Yes of course we are. Are we pledged to be nice to our elderly mums? Nothing but nice. Do we pledge to walk with our left foot after our right or perhaps our right after our left? Do we pledge to hope that the world does not become too warm even if it`s not our fault? Are we crazy? We would be if we continued in this manner.

Hertfordshire Police is the first police force nationally to sign up to the Nottingham Declaration. This apparently is a voluntary agreement to tackle the causes of climate change. And I had thought they were having a hard time doing the jobs they`re paid to do eg preventing disorder and catching offenders. By subscribing to it they are pledging to address climate change. Not only are they going to be tackling this in the leafy lanes of Hertfordshire they`re going to spread these good works and words to reduce emissions across the country. They have already started to update green policies across Hertfordshire Constabulary including introducing an automatic overnight shutdown of three-quarters of the force's computers. That seems a good idea but what about all the information that I presume comes from all these people and computers who operate 24 hour shifts? I am sure they will pledge that they can cope. Perhaps they should order a few hundred new bikes to spread the good news to the council tax payers. No that`s not quite in the spirit of this post. Let them pledge to consider ordering an especially nice tandem for the Chief Constable and Stuart Nagler, Chair of the Hertfordshire Police Authority.

MAGISTRATES CAN BE TRUSTED SAYS MINISTRY OF JUSTICE

 

01. Apr. 2010. – 15:38:35

      It seems that the government has concluded that Justices of the Peace are not a danger to society. Today a notice has been issued to that effect; namely that we will not have to be certified by the Independent Safeguarding Authority. {see below} That really does make me feel trusted to do justice to all without fear or favour as I and my colleagues swore to do when appointed.  I just needed to be reminded....

Magistrates: Independent Safeguarding Authority

MoJ Statement

Magistrates: Independent Safeguarding Authority

I am pleased to confirm that it has been established that the position of 'Magistrate' is not a regulated activity for the purposes of the Independent Safeguarding Authority (ISA). This means that it will not be a requirement for existing Magistrates, including those who serve on the youth and family panels, to register with the ISA when registration commences from 26 July 2010. ISA-registration will not be required either for candidates for appointment to the Magistracy.

Candidates will need to continue to apply for enhanced level disclosure checks with the Criminal Records Bureau (CRB), and the successful outcome of this check will continue to be a key part of the pre-appointment process.

A new CRB application form is being introduced from late June 2010 and the Magistrates Policy & Appointments Branch at the Ministry of Justice will be sending out a Circular to Advisory Committees in April about this change.

IS HIGH LEVEL CORRUPTION BECOMING ENDEMIC IN U.K?

 

01. Apr. 2010. – 15:24:35

       Although it`s nearly a year since the scandal of MPs` fiddles broke in the Daily Telegraph it seems like yesterday.  Criminal proceedings are underway against four MPs, The Lords is also investigating its own suspected wrong doers. The BBC is attempting to evade answering the question of the identities of its £100K employees.  Banks which are now virtually nationalised beyond the wildest dreams of the late Michael Foot and Aneurin Bevin and are therefore under government control are being castigated for continuing to pay certain staff enormous sums of money which arguably should be being lent to small business.   

        Scandals within public quoted companies, politicians etc and even the judiciary [few and far between] have been with us for hundreds of years. It could be argued that now in the age of the world wide web tracks covering is a trifle more difficult for upper class white collar villains. But now just a day  after the Met Police`s former top non white officer has been thrown out and might lose his pension it has been published that the Chief Constable and Deputy Chief Constable of North Yorkshire Police are the subject of an investigation managed by the Independent Police Complaints Commission (IPCC) following allegations that they gave help to relatives applying for work.
       
When corruption appears to be commonplace within the widest definition of public bodies it is truly time to take note.  Combine that with this authoritarian government`s ever increasing control of every day activities, continual attempts to alter public opinion by deceitful use of inaccurate statistics and I would venture to observe that we are at the equivalent of the Goths being on the banks of the Tiber 536A.D.  Our homes won`t be sacked, our cattle will not be slaughtered nor our daughters raped but what we nostalgically refer to as the British way of life will be but a memory  about which social dinosaurs  will reminisce on feast days.

THE PROBATION SERVICE AND ALL FOOLS` DAY;A PERFECT FIT?

 01. Apr. 2010. – 13:12:24 

Today used to be called All Fools Day. In parts of Europe it still is. Its origins are diverse and unclear but are thought to have been referred to in France in the mid 16th century when the country was moving from the Julian to the Gregorian calendar and those who stubbornly continued to follow the former were referred to as Poisson d`Avril, or April Fish which, to this day, remains the French term for April Fools and so the tradition was born. 

There is perhaps a fishy smell about the latest news to come from the London Probation Service or perhaps it is what it appears on the surface to be........a ship of fools manned by fools. On the one hand of government the public must not think that Judges and Magistrates are too lenient in their sentencing and on the other these self same members of the judiciary are exhorted to use non custodial means to punish/rehabilitate those offenders for whom there might be some light at the end of their offending tunnel. No need to mention that the prisons are 95% - 100% full at any one time and cannot accommodate any more £600 per week guests. 

Malcolm Jenkin, director of interventions for London Probation, said London Probation "has temporarily ceased using casual status project supervisors in community payback. He suggested other restrictive measures be considered for convicted offenders. This reduction in availability began on 8th February and ended yesterday 31st March. Harry Fletcher, the assistant general secretary of the National Association of Probation Officers, was quoted as saying, "not surprised". He added that some officers now only had time to spend only fifteen minutes a week with offenders they were meant to be monitoring. 

A spokesperson from the Probation Service said, "The effect was small and manageable, and had no effect whatsoever on the overall length of unpaid work to which offenders were sentenced. " 

That spokesperson really does take us all for fools referring to the arrangement as if it were pre planned and a normal occurrence and had little relationship to the admission that cash had run out before the year end. For one thing it demonstrates all too clearly that similarly to HMCS`s pre-occupation with targets for how long to do "this" and how many days until "that" happens no mention of quality or lack of it is considered worthy of comment......after all how can quality be demonstrated or measured to show everything`s just fine. 

Peter`s Principle; the theory that an employee within an organisation will advance to his or her level of incompetence and remain there, governs so many of those on the public payroll from Parliament Square to the local sorting office that St Peter should replace George as the patron saint of England......after all so many emulate him and his theory it`s a perfect fit. 

MINISTRY OF THE WHOLE COUNTRY AND GORDON WANTS IT ALL

 24. Mar. 2010. – 17:32:24 

The Lord Chancellor and the Secretary of State for Justice have chosen Budget Day a few weeks before an election is announced to tell us that Her Majesty`s Court Service which not surprisingly runs the criminal and county courts system etc is to take over the running of the Tribunals Service which deals mainly with employer/employee civil disputes. Once again following the motto bigger is better those who govern us give more control to fewer often incapable worthies.  Education now includes overseeing nursery schools, inland revenue and customs fight for control and many others with a history of amalgamated breakdown have been fodder for the Sunday papers.  Let the big fish remain in what is left of their little ponds......p l e a s e. 

WARRANTS OF ENTRY AND APPLICATIONS TO DISCONNECT UTILITY SUPPLY

 23. Mar. 2010. – 17:51:54

    

        Amongst the "extra" matters dealt with in Magistrates` Courts I have recently commented on statutory declarations.  Another common function for all JPs is deciding whether or not to grant Warrants of Entry for utility companies either to disconnect supply gas or electricity [usually at vacant or business premises] or to replace a regular meter with a pre-payment meter.  It has been and might still be the norm for these applications to be "rubber stamped" without too much investigation. 
       

        However with many colleagues in various courts all over the country I have been consulting a "good practice guide" which encourages courts to take a more inquisitorial approach to these applications in spite of the time taken when there is a crowded list. 
       

        A magistrate from a neighbouring court told me recently that when he was sitting outside his own court he was surprised at the novel questioning of the applicants by the chairman.  It had never happened when he was sitting at his own court.  In the session one application was to disconnect the landlord`s supply in a block of flats the tenants having no say in the matter.  In practice it would probably have meant no lighting to the common parts eg entrance hall and stairways. In view of the possible danger to infirm or elderly occupants falling down stairs that bench refused the application and suggested no further application be made until there was a firm refusal from the absentee landlord to pay the outstanding bill of c£300.  He also described an application to fit a pre-payment meter [always a higher tariff] to an occupier he discovered was two weeks late in an arrears payment previously agreed.  This history was discovered he reported  by the chairman`s questioning the bailiff in quite some detail.
       

        He told me that he had never previously sat on a bench which had refused an application to disconnect and fit a pre-payment meter.  Information from that episode he said would be conveyed to his "home" court.

        Addendum 13th June 2022

       The above was written when I was active in 2010.  Now I am long retired I can add that I was the presiding  magistrate in all matters above a situation which at the time I had to disguise as I had considered publishing well before I retired. Altering my bench`s approach to this subject was my proudest achievement as a J.P.  The iniquitous practice previously employed to literally rubber stamp applications was discontinued in favour of a rigorous inquisitorial approach. I am unaware of how my old bench now treats such applications.  

WHO WOULD HAVE BELIEVED IT? DO WE ACTUALLY PAY THEM?

 23. Mar. 2010. – 17:15:46 

       With the news of the world, literally, not the Sunday Rag, available around the clock one occasionally finds snippets that are just there to be shared.

       Last Friday Avon and Somerset Police opened a dedicated line for applicants for 64 police officer trainees. More than 1,000 applied between 7.00am and 3.00pm and lines were closed. At a time of recession and a surplus of bright school leavers who won`t get to university it was surprising that the force`s spokesperson said they were overwhelmed with the response. Let`s hope the successful applicants make better and more far sighted police officers than those individuals in the HR department of the force. So in two years if a young constable in that area behaves in anything but an extemporary fashion when in contact with a member of the public or can`t tell his Avon from his Somerset don`t blame him blame those who selected him. 
       

       We on the other hand select our MPs when we truly have a choice from candidates who, we hope, show a modicum of common sense. In a report released today, the Home Affairs Committee says "early intervention is key to reducing criminality and the ability to identify those most at risk is an important tool in crime prevention." Now who would have thought it? I was always of the opinion that one is better served by avoiding early intervention in criminal activity and waiting until a truly heinous crime is committed but then again MPs know best don`t they? 

      And to conclude that it`s best to know who are liable to be victims of crime to assist in crime prevention is not just great insight; it`s a revelation for us mere mortals. We can only stand and stare in wonderment at these luminaries of our age.

         

STATUTARY DECLARATION & SERVICE OF SUMMONS

 

21. Mar. 2010. – 13:03:11

Most holders of a UK driving license have heard of "totting"; the addition of penalty points which are endorsed on a license for various offences eg speeding, no insurance, careless driving etc etc. In most cases upon reaching twelve points there is an automatic six month disqualification from driving in this country. It is the accepted practice that in order to ensure a driver is not unaware of the sanction when penalty  points reach or breach the magic twelve s/he is summonsed to appear before magistrates.  The summons is considered "served" when proof of first class posting is presented to the court.  This, as is all too obvious, allows defendants to declare truthfully or otherwise that they have never received such a summons.  There are arguments for and against instituting "signed for" service but that is for another time.

A very common appearance before a bench is the individual making a statutory declaration in which s/he declares and signs to the effect that eg an event has or has not occurred and the applicant wants to put matters straight.  One common such "has not occurred" event is the non receipt of a court summons and therefore the consequent inability to have complied with the subsequent court directive deriving from that summons.

A couple of weeks ago a woman made and signed such a "stat dec" to the effect that she had not received a summons for a motoring offence for which she was in her absence fined and disqualified from driving as a "totter" the court having had a print out from the DVLA in front of it and therefore full knowledge of her previous penalty points.  She had been away from home for three months and as she lived alone nobody had forwarded or opened her mail.  She came to court two days after coming home and reading the summons.  She was advised that after her form had been countersigned by a Justice of the Peace on the bench the matter was "dropped" and the papers would be returned to the CPS and court involved which would at its discretion decide whether or not to re-issue the summons. She was told that she was still able to drive as the points which had tipped her over the edge were erased at least for now.

          

       The whole system of the service of court summons is a cause for concern.  For example there are millions of immigrants new to the country in the last fifteen years; many live in rented accommodation and frequently change address; most are law abiding members of the community but unfortunately anecdotal evidence suggests that they are  liable to appear in court at least as often and possibly at a higher rate than UK citizens. For them and for all citizens the obvious answer is personal service but the cost, the cost, the cost!

IS THE CROWN PROSECUTION SERVICE PROSTITUTING ITS OWN SERVICE?

 
 
18 Mar. 2010. – 22:13:50 

The Crown Prosecution Service has announced that it plans to deploy Associate Prosecutors formally known as Designated Case Workers to prosecute at summary trials at Magistrates` Courts.  These individuals were not and are not qualified lawyers.  When they began work some few years ago in remand courts, dealing amongst other things with bail applications and sentencing we were told they would not be involved in trials where in addition to legal and procedural knowledge the art of advocacy is of major importance.

Think back a few years when nurses` leaders began the push for their new applicants to be graduates and that the messy business of  dealing with patients` actual physical and bodily requirements could be undertaken by lower or virtually unqualified  auxiliaries.  Who heard of teaching assistants actually taking classes fifteen or so years ago?  Police Community Support Officers are on the streets where many would argue trained police officers should be.  The educational requirements for PCSOs are very low but so are their wages.  And there you have it.  Powers that be sniff out jobs which they believe do not need high paid well trained personnel.  And so to the courts.  With the sorry story of the Crown Prosecution Service in London and a surplus of unemployed lawyers it seems ridiculous to infuse this mess with staff not legally qualified however eager they might be. They will be regulated by IPS, a regulatory company established by ILEX to take responsibility for the regulation of Legal Executives. ILEX is the professional body representing 22,000 qualified and trainee Legal Executives and is an Approved Regulator under the terms of the Legal Services Act 2007.

As many doctors have commented on nurse prescribers taking many primary care functions; if they want to do these tasks let them study medicine. Not surprisingly IPS chief executive Ian Watson said the standard was sufficient to ensure competence.  Legal Aid is available to provide legal representation for defendants under certain conditions.  This does not extend to legal executives being paid by the state to defend miscreants.  The only justification for this lowering of standards is not to provide a high class service but to save money.  But don`t wait for any member of the government to admit this.  And the bosses at CPS are like service men and women; they will do their jobs as well as they can and keep their criticism until they are no longer in harness.  Haven`t we heard similar previously from senior policemen, ex chairmen of this or that quango, former generals and of course former cabinet members.  Plus ca change..............

UNPUBLISHED CROWN PROSECUTION SERVICE STATISTICS RE "NOT GUILTY" LONDON TRIAL VERDICTS

 

16. Mar. 2010. – 12:43:29

Arresting suspected criminals is the job of the Police. Bringing suspected criminals to court and offering evidence against them if they plead not guilty is the job of the Crown Prosecution Service. The CPS operates within a strictly defined code.

Very many defendants plead guilty at various stages from arrest or even when their trial is about to begin. I am not about to consider this category. This post is about those who have pleaded not guilty and proceed to trial at Magistrates` Courts in London.

Discussing trial outcomes with colleagues and senior officers in other areas of the criminal justice system it was suggested that I endeavour to ascertain the proportion of those found not guilty after trial at Magistrates` Courts. Subsequent conversations showed that the publication of such statistics ceased in 1999. However this blogger has been given figures for the last three years which are cause for concern.
Today's report from the BBC also expresses that concern and here are the figures which prove that concern is well founded:-

The overall figure for London`s Magistrates` Courts where the defendants are found not guilty after trial is 36.96% Disregarding those London magistrates courts where the numbers are too low to be meaningful the latest statistics for those found Not Guilty after trial vary from 13.88% at Wimbledon MC to 81.82 at Acton MC.

NAME OF MAGISTRATES` COURT                                                   % FOUND NOT GUILTY

Wimbledon                                                                        13.88
Richmond                                                                           14.92
Harrow                                                                               16.41
Bromley                                                                              17.41
Havering                                                                             17.61
Bexley                                                                                 20.81
Barking                                                                               21.38
Acton                                                                                  81.82
Greenwich                                                                          78.03
Thames                                                                               76.86
Woolwich                                                                           75.60
Highgate                                                                             75.56
Kingston                                                                             75.52
Enfield                                                                                75.25
Ealing                                                                                  73.56
Camberwell Green                                                                                    73.33
South West                                                                          72.46
Highbury                                                                             71.27
Sutton                                                                                  71.09

West London                                                                      70.20                      

I make no attempt to explain those figures but they do require to be explained by one more versed in the subject than I. And certainly CPS London should be focusing their minds if they are not already doing so on why such variations exist.

• NO HALF MEASURES; IF YOU DRINK A TEASPOONFUL AND DRIVE YOU`RE GUILTY 

15. Mar. 2010. – 16:05:41

Like every magistrate and judge I am bound to follow legal practice and make appropriate decisions whether or not I am personally in agreement with the necessary application.  If I am faced with applying legislation of which I heartily disapprove I can resign; that is my choice.  When the matter under consideration is driving with excess alcohol [drink driving] I am applying a series of laws of which I heartily approve. The fact that a drunk driver caused the death of somebody close to me was a personal reminder just how necessary is such legislation.

Therefore it was disturbing to me that  a report in The Sunday Times [14 th March]   indicated that the government plans to cut the legal limit to 50mg alcohol in 100ml blood from the current level of 80mg and perhaps reduce the driving disqualification for those guilty,  from the minimum twelve months if their alcohol level fell within the new reduced limit.  It might be thought odd that I describe this news as "disturbing".  There is not a driver who does not know that part of the punishment for drink driving is a ban of at least one year.  Those who drink and drive deserve no pity.  To achieve the current level usually more than one pint or two glasses of wine or spirits is needed.  The drink driver is highly culpable.  If a reduced blood alcohol level were to be  introduced it is possible in my opinion for that culpability  to be considered at a lower level,..... "I only had half a pint your worship......."  Worse still would be if the introduction of penalty points instead of disqualification became an option. This would be an encouragement to have just a "small one".

If this government is considering another pre-election announcement it should be zero tolerance for drink driving ...ie anything other than a zero level of alcohol in blood would be considered enough to convict [medical cases excepted as is the case occasionally at present].  Culpability would then continue be at its highest with very very few occasions allowing anything but an automatic disqualification as now of twelve months.

 

NEED TO PEE IN CITY OF WESTMINSTER?

 

12. Mar. 2010. – 14:09:05

The capital's biggest ever crackdown on people urinating in the street saw 12 shamed-faced revellers face magistrates after being caught red-handed in Westminster.

They were all sentenced and fined a total of £1900 by the court, with fines ranging from £50 - £250, after either being found guilty or admitting to the offence of urinating in a public place following a crackdown by Westminster City Council and the Metropolitan Police in the run up to Christmas.

The above is an extract from a report on the City of Westminster website.  It does not seem unreasonable one might think.  However next time you eat and drink in a cafe or sandwich bar in the same City of Westminster and feel required to relieve yourself bear in mind that such establishments do not require to have lavatory facilities for their customers.  Such is the state of joined up government in the London Borough which hosts the Houses of Parliament.

VIRTUAL COURT MELTDOWN

 12. Mar. 2010. – 12:48:22

I have written previously of virtual courts  based on the principle that taking justice away from the courtroom where it belongs so that apart  from exceptional circumstances all can participate "in the flesh" and imposing in its place remote access is a technological and social step too far.

The Law Society Gazette reports today that the whole system being piloted in Camberwell Green Magistrates` Court went into "meltdown" last month.  This is just another nail in the history of this government`s rushing into IT projects which benefit nobody except the pockets of IT specialists, IT  companies and their shareholders.  I have today instructed my GP to withhold my details from being inputted into the NHS Summary Care Records program.  I would suggest that anyone who believes rightly or wrongly that the state is becoming dictatorially oppressive goes to BIG BROTHER WATCH

NO SECURITY AT MAGISTRATES` COURTS

 

12. Mar. 2010. – 12:04:37

Hendon Magistrates Court is situated in North West London amidst private and council houses, offices, light industrial units and many car showrooms..........a typical court  in a typical building.  And as is the case in most......perhaps all, but that would be only a reasoned presumption............courtrooms, bar the main remand court,  there are no permanently placed security personnel or police officers.  Contrast that with the courts  I have visited in America and the Caribbean where there is always at least one armed police officer on duty.

Earlier this week an irate member of the public left the public gallery at Hendon Court and entered the courtroom mouthing abuse at the three JPs on the Bench. He was restrained by a defending solicitor and rapidly ran from court.  The magistrates had left the court for their own safety.  This is not an uncommon occurrence.  My own colleagues have faced similar actions and threats to kill from in the courtroom and without.  The security of a courtroom and those within is paramount for the effective process of our open justice system.  Until a judge or magistrate is killed in court there is no chance whatsoever of requisite security being available.