MAGISTRATES AND BAIL ON MURDER CHARGE

 22. Apr. 2010. – 11:42:58 

Although some might comment that there is much that needs to be done about the performance of some criminal lawyers there is absolutely no doubt in my mind that especially since 1997 they have had to regularly absorb and apply increasingly vast amounts of new information produced by umpteen changes to the criminal law. Failure to follow correct or appropriate procedures can have dire consequences. 

Pre trial Bail is an area of the criminal justice system where judgement of the possible future actions of, at this stage, an innocent person has to be made. This is a matter where every day thousands of such decisions are made at Magistrates` Courts. I was going to add, "including bail in murder charges" but since 10th March [para 168 below] this would now be reserved for judges at Crown Court. CPS guidance below.

165. Section 114 amends Schedule 1 to the Bail Act 1976.

166. Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. Furthermore section 114(3)(a) states that the court in deciding whether there is no such significant risk, must have regard to any relevant considerations as stated in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976. Section 114(3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. This section provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing that the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.

167. Section 115 of the Coroners and Justice Act 2009, provides that where a person is charged with murder, bail can only be granted by a judge of the Crown Court. The power of the magistrate's court to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed.

168. Where a person charged with murder appears or is brought before a magistrate's court, a bail decision must be made by a judge of the Crown Court as soon as is reasonably practicable, and in any event within 48 hours (excluding public holidays) beginning with the day after the person's appearance in the magistrates' court. If necessary the person must be committed in custody to the Crown Court to enable a bail decision to be made (see s115(4)). It is immaterial (see s 115(5)) whether that person is at the same time sent for trial or being remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998, which requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrate's court to the Crown Court forthwith.

It would appear therefore that JPs will no longer have to decide on bail for those charged with murder. In any case it was a rare occasion. I have sat on only three such occasions and so such events remain fixed in my memory.

Prior to my sitting where I do now I was on the bench when in 2001 Patrick Nolan was brought to court and charged with the murder of his wife. The facts as they were presented at the time were that he had killed his wife twenty years previously and buried her under the foundations of a new hospital building where he worked on its construction. I believe, although I am not sure, that at the time he had no history of serious criminal activity. He pleaded not guilty and we retired to consider his application for bail. As I recall it was not an instant decision. We spent quite some time discussing it because even on the most serious of all offences bail had to be a possibility. We concluded that for various reasons bail would be refused and he was remanded in custody and eventually found guilty and given a life sentence.

I cannot say I am unhappy that this power is no longer available to me as a magistrate. Just as our sentencing powers are limited to six months` custody and could reasonably be extended to double that on the other hand the removal of our jurisdiction to sit on bail decisions on the charge of murder is not unreasonable

AN ODD WAY TO GET ON THE SEX OFFENDERS` REGISTER

 21. Apr. 2010. – 11:56:06

There are some occasions in a Magistrates` Court after a prosecutor has opened a case with a description of the facts  when, however serious  the matter  is, one has an underlying mental scene of such a farcical situation that it is difficult to suppress a smile.  I suppose this is the basis of much comedy; Monty Python and Not The 9 o`Clock News come to mind.

It is reported in the Rochdale Observer that a man attempted to tease a dog in the yard next to where he was standing by putting his genitals through the fence separating man and beast. Perhaps the financial penalties he suffered and being placed on the Sex Offenders` Register for five years will teach him to keep his best friend where it should be and not to use it to tease man`s best four legged friend.

DRINKING BANNING ORDERS

 

16. Apr. 2010. – 14:32:28

In the last thirteen years we have had introduced over three thousand new laws, Police Community Support Officers, revamped traffic wardens with powers to issue penalty notices in addition to parking tickets, ASBOs which are civil orders the breach of which can lead to lengthy custodial sentences. I referred recently to controlled drinking zones and their associated corollary; the drunks just move next door where there is no control.

Since 21/08/2009 Magistrates` and County Courts have had the power to make Drinking Banning Orders. DBOs on conviction came into force on 1st April 2010 in 25 Local Justice Areas. Recently Kidderminster Magistrates` Court issued a two year DBO against Laura Hall, 20, of Bromsgrove banning her from consuming alcohol or purchasing alcohol in pubs, nightclubs, membership clubs or hotels, and from purchasing alcohol in shops and off licences. It also bans her from having alcohol in any unsealed container or consuming alcohol in any public place. The conditions apply throughout England and Wales.

So this offender who was also required to undertake an approved course to tackle her alcohol-misuse issues will be breaking the order if she buys a bottle of cider to take home for her friends. This is what is termed being set up to fail. And if she fancies a pint in the highest pub in England after an exhausting walk up hill and down dale the local bobby can arrest her on the spot and she would then face a criminal charge and possible custody. Unfortunately there are many young people with severe drink problems which ruin their health and often lead to unlawful behaviour the result of which can be personal disintegration and enormous cost to the public purse. But surely legislation of this format cannot be the best way to deal with problem?

DON`T DRINK IN MY HIGH STREET; TRY THE ONE NEXT DOOR

 15. Apr. 2010. – 15:45:50

If a driving instructor told you that for safety`s sake you should drive with the handbrake on you would correctly question his/her ability to do the job of instruction but if you were told that is the law you would probably seek the nearest bucket of water and into it place your head.

A few years ago the government removed the licensing of pubs from Magistrates` Courts to local councils. At the same time the limit on drinking hours was abolished which has led perhaps to eighteen hours a day opening if not the twenty four license predicted. Despite many warnings from magistrates, police, doctors and others of almost certain disastrous consequences the matter went ahead. We know now to all our costs that a twenty four hour cafe culture so beloved of sweet talking politicians was a chimera. Perhaps in twenty years Britons and especially those under twenty five years old might learn to drink in moderation on weekends but that does nothing for those whose local high streets are virtually no go areas after 9.00 p.m. on Friday and Saturday nights.

And lo! it was 2001 when "controlled drinking zones" were established. Once a control zone is in place, police or PCSOs can seize alcohol from anyone who is not on licensed premises, even if the bottles or cans are unopened. Although drinking is not banned in the zones, police can ask anyone to stop drinking and it is an offence to refuse, punishable by a maximum £500 fine. No explanation or suspicion that the person could be a public nuisance is required. The highest fine is £2,500. The law made clear that the zones should cover only streets or city centre areas with a record of alcohol-related disorder or nuisance. 

In a small town with a single high street a CDZ might offer a significant improvement to residents but in a large city the likely displacement of the drinking to a nearby area should have shown the impracticality of such measures.

Camden Council in north London has on its website, "The CDZ is aimed at those involved in anti-social behaviour, and does not mean that anybody with an alcohol container will have it confiscated."

This week the Council of the London Borough of Barnet which borders the London boroughs of Camden and Brent announced its latest CDZ. Councillors approved a proposal to introduce a controlled drinking zone around Cricklewood Broadway, Cricklewood Lane and Hendon Way after hearing evidence from the police that nuisance drinkers assembling in the area came from Brent and Camden. 

Is this not truly akin to driving with the handbrake on? Let the plebs drink all of the day and all of the night [with apologies to the Kinks] then sweep them off the streets from one borough to the boroughs next door. And they are asking for our vote for more of this. Soon they`ll be telling us they can make the trains run on time. Does that sound better in Italian? 

RELIGION AND THE LAW

 

15. Apr. 2010. – 11:09:45

On April 11th I wrote on the topic "THROWING SHOES IN PUBLIC IS NOT JUST A "SYMBOLIC" POLITICAL GESTURE;IT IS AN ACT OF VIOLENCE". The essence was that the words of the judge seemed to fly in the face of the concept of the old adage equality before the law. The British Humanist Association is a charity supporting and representing non religious people within our society where religious fundamentalism of one sort or another appears to be increasingly vocal and not just confined to the extremist elements within Islam.

Last week an Employment Tribunal found against a nurse who had claimed that she was discriminated against when she was asked to remove a crucifix from around her neck. BHA Chief Executive Andrew Copson said, "Many observers share our concern about the false and misleading narrative that increasing numbers of churches and aggressive Christian lobby groups are attempting to create when they react to or actively promote cases like this. The story they are telling has it that Christians are being marginalised from public life and persecuted at work, when in fact churches retain enormous privileges and there is no evidence at all that employment discrimination against Christians is a real phenomenon. Freedom of religion or belief is a precious freedom, but its interests are not best served by attempting to talk up claims of persecution and discrimination."

Extremist members of the three monotheistic religions are increasingly crying "foul" when in conflict with the legal process. I`ve mentioned Islamist shoe throwers but Chassidic Jews in East London have whispered of anti Semitism when planning decisions have gone against them. Religious discrimination in general and anti Semitism in particular is a scourge within any society as any reading of history will demonstrate. When that discrimination tends to positively favour in law those of any denomination the effects are equally pernicious but perhaps take longer to percolate and filter through to public awareness. At a time when six hundred and thirty six parliamentary seats are up for grabs appeals to religious factions for votes based on discriminatory wish lists should be avoided for all our sakes, for those with religion and equally for those without.

OLDHAM GETS MORE NON POLICE POLICE TO ADD TO THOSE ALREADY ON THE STREETS

 

13. Apr. 2010. – 18:03:18

Greater Manchester Police have been the subject of a few posts on this blog 26th February included. I`ve also commented unfavourably on the various non police officiates who are regular sights on our streets and who have varying powers the limits of which are not generally known to most people. That aspect of this whole "cheap" policing is not just a factor to be accepted eg bouncers now euphemistically known I believe as door operatives have been given limited powers to hand out instant fines for offences from drinking in an illegal area to disorder, harassment, fly posting and dog fouling.

It is an affront to society to allow groups of people to have so much power and so many varied reasons to question, detain or fine citizens. It often leads to their authority being questioned and that leads some individuals into full face contact with proper police officialdom.

GMP are now abrogating their policing of Oldham`s Metro system. They are creating eighty "Travel Safe Officers" to issue fixed penalty notices, confiscate alcohol and cigarettes, direct traffic, and share police intelligence. And of course they will be issued with that essential requirement of authority on the streets or in this case on the trams; a uniform. Metrolink director Philip Purdy is quoted as saying that during a station block TSOs will be stationed at all entrances and exits to and from the tram stop. A separate team will then board each tram passing through the stop and check tickets. He continued, “The operation is highly visible, acting as a deterrent to other passengers who may consider travelling without a ticket.”

If those responsible admitted that all this delegation of powers is primarily because of the cost saved by employing at low wages those who are not capable of being police officers and therefore benefits the public purse we could have an honest discussion but when we are treated to bland statements that it is all for the public`s benefit it just adds another layer to general disillusion about the type of society that we are becoming; a society where there is uniformed authority with little or no discretion which is empowered to issue various penalty notices acting as police, judge and jury. 

THROWING SHOES IN PUBLIC IS NOT JUST A "SYMBOLIC" POLITICAL GESTURE;IT IS AN ACT OF VIOLENCE

 

11. Apr. 2010. – 17:01:38

Did we think that there was one law for the rich and one for the poor? Wasn`t it a great day when the law was equal for Protestants and Catholics?.....apart from the need for the Act of Succession where Papists can`t accede to the throne. Or how about when newly elected Jewish MPs could swear allegiance on the Old Testament and not the New Testament as previously had been required? Not yet convinced about all this equality business? Gone are the days when you could preface your disparaging comments or harassing behaviour about a member of an ethnic minority whether racial or sexual and get away with it. Now there are offences of racially aggravated this and sexually harassing that. Sounds all very equitable so far.

If you`re a follower of the Prophet you have Scotland Yard`s permission to throw shoes as a sign of your protesting at public events apparently as a result of Judge Denniss`s decision at Isleworth Crown Court when he agreed that the act of shoe throwing should not be considered in a charge of violent disorder because it was "a symbolic" political gesture. The good judge is worthy of respect from a mere magistrate and must have cogent reasons for what on the surface appears a bizarre decision but what he has ruled goes against all my ideas of equality of the individual before the law.

The obvious questions to be answered are what happens to this finding if in another situation a Moslem injures a third party with his thrown shoe? And what about a shoe throwing atheist or Hindu throwing his shoe alongside the shoe throwing Moslem? Would s/he therefore be given the privilege of her/his act also being a "symbolic" gesture or would s/he be prosecuted for a violent act? What other "symbolic" gestures could be employed and what various sects would be considered as being religiously robust and/or established to justify such acts? I could continue in this manner but I think the point has been made.

We, the law abiding private citizens of this country, require an immediate statement from the Director of Public Prosecutions after this trial is over. 

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.