MINIMUM DRINK DRIVING BAN & THE MAGISTRATES` ASSOCIATION

 05. Jul. 2010. – 16:39:31 

There was published recently Sir Peter North`s Review of Drink and Drug Driving Law. An important point in his conclusions was that even with a lowered limit of 50mg/100ml he does not recommend that the mandatory disqualification period of 12 months should be lowered. Although I have argued for 10mg/100ml limit I agree with his conclusion that the existing 12 month ban be maintained as much for the message it sends out as anything else which is it`s still a danger to all to drive and drink. If there were a suggestion of reducing the mandatory period it would be a retrograde step and certainly not one to encourage abstinence when driving.

The Magistrates` Association thinks differently. According to a news item in its current house magazine its March Council meeting expressed its preference for a reduced period of disqualification if the current level were lowered. The Association is meant to represent through its branch and representative structure the views of its members……..so did the Transport and General Workers Union and the Amalgamated Engineering Union . I seem to recall that amongst other things these unions contributed to the destruction of 90% of British car manufacturing. The Magistrates` Association must in these difficult times retain its members` confidence. However the Association is treading on very dangerous ground if it purports to represent its members` views with any further statements of a similar nature on this subject. 

I would urge any colleagues reading this to make their views known ASAP, whichever side of the argument they take, by contacting their branch rep., contacting the MA directly or through the MA Forum or even commenting here.

THE BUTTERFLY EFFECT AND THE CRIMINAL JUSTICE SYSTEM

 

03. Jul. 2010. – 14:57:40

When a friend of mine was complaining not so long ago about the cock up various train companies had caused him from misleading information about fares/timetables/changes to the dirty carriages and poor service on a journey from Exeter to Edinburgh I began to think of what does it take to make clean trains run on time providing the customer with a journey that he could describe as better than expected...a term used by retail market analysts to analyse the "customer experience". Do we really need an Italian megalomaniac to achieve this outcome?

The above tale can be understood by millions of us who rely on mass transport systems to convey us for 100 miles or 10,000. What then of a criminal justice system with its n-1 combinations and permutations of individual activities by hundreds of organisations and millions of participants which attempts to investigate an isolated incident where law might have been broken to dealing with the offender. Whatever other statistics might or might not reveal it has been recognised for a long time that about 3% of criminal acts end up with a conviction.

The current political hot potato of sentencing/prison population is an attempt by the purse holder to save money; a laudable target but one fraught with potential chaos as a result. I am sure Kenneth Clarke is familiar with the term “The Butterfly Effect”. Does the flap of a Butterfly’s Wings in Brazil set off a Tornado in Texas? It does not take such an esoteric scenario to predict that further tampering in the manner contemplated by the Rt. Honourable member will lead to considerably more waves than a tornado in the Gulf of Mexico.

By expressing his desire for those currently sentenced to six months or fewer in custody to be rehabilitated in the “community” by which he means under the auspices of the Probation Service or yet to be created profit orientated businesses we would consider that thought has been given to the budgets of local probation services and similar organisations that the desired results might be achievable. Unless there are plans still held in the basements of Whitehall it seems that future offenders in the Tees Valley probation area will notice no additional attempts by case workers to get them to stay on the paths of righteousness because 10% of the staff won`t be working there next year. Their jobs will have disappeared in the "cuts". Someone somewhere within the Coalition`s backroom must have the ability and wherewithal to produce a coherent analysis so that the butterfly in Birmingham does not interfere with a trial in Taunton.

Never has the termed “joined up thinking” been more required than for the next five years of budget restraint.

ASBOs, DISPERAL ORDERS, DRINK BANNING ORDERS; WHAT NEXT? WHAT USE?

 02. Jul. 2010. – 13:19:01 

I do not sit on the youth bench. It was a conscious decision. I have nothing but admiration for my colleagues who, week in week out, adjudicate on matters involving juveniles who for the most part have been brought up in family circumstances in which only a very positive “nature” would overcome very negative “nurture”. 

Thus my experience of ASBOs is fairly limited as they are used mainly in youth courts. However I find it depressing, especially in the current climate over sentencing, that they are used as a legal “cosh” in a similar manner in which medicaments like Prozac are reputedly used as liquid “coshes” in old age homes to keep senile residents controlled. ASBOs have begat various other “control” orders; Dispersal Orders and Drink Banning Orders being two. Breaches of such orders are criminal offences. 

I would venture to suggest that this progression in excluding, banning, preventing offenders in order to allow the rest of society to live their lives without external disturbance is bound to fail. Young people need to live in properly controlled environments where their immediate family and society around them instil boundaries to their behaviour. That means that teachers must have authority to act as they did fifty years ago and be respected for so doing. They must be allowed to tell their pupils that they are expected to conform to rules and head teachers, governors and the paraphernalia of governance must be so ordered. Rowdiness on public transport must be stopped by giving drivers instructions to deal with the miscreants verbally or by calling police immediately. Confidence in authority must begin at the bottom of the pyramid. 

Some of the reports on ASBOs and Dispersal Orders etc are so obviously vain attempts to rectify two generations of muddled child centred thinking. Rehabilitation must not begin after the offence; it must begin before. 

JPs and PUBLIC COMMENT on COURT CLOSURES

 01. Jul. 2010. – 11:56:31 

Not surprisingly media in all its forms have been occupied with two coincident policy announcements from the Ministry of Justice; the abolition of short prison sentences and the closure of perhaps a third of the Magistrates` Courts in England & Wales. Even in these times of budgetary parsimony government press offices are working overtime. Their spinning of the associated data to justify these policies is akin to describing the sinking of the Titanic as ,"Ship sunk...over 1000 saved by Britain`s merchant ship Corinthian".

Court closures could be said to occupy a no man`s land between political policy and the administration of justice. I would opine that the policy is political and as such those organisations with an interest in the topics including the Magistrates` Association have promptly made their opinions in all forms available to those who will promulgate them to as wide an audience as possible. This writer too has taken welcome advantage of what technology allows. But in Penrith the Chairman of the local Bench has taken it upon himself to offer his individual opinion on the proposed government policy whereby his local court might be closed. 

A senior magistrate has vowed to fight plans to close Penrith court saying he won`t take it lying down. 

This opinion is probably in line with those JPs in a similar situation whether more concerned about their own ability or willingness to travel to another court building or on behalf of the offenders and staff involved in any court. It is completely to be applauded that individuals take up Kenneth Clarke`s offer of consultation as the bench chairman at Eden says he intends to do but it is in my opinion quite another to sign off a long piece of his views in a local newspaper.  This appears to be a deliberate political intervention by a member of the judiciary and not at all in keeping with A Media Guide for Magistrates from the Judicial Communications Office 2006 in which are quoted the wise words of Lord Irvine, a previous Lord Chancellor,

There is a distinction between judicial participation in public controversy of a political nature and the judges participation in public controversy concerning the effective administration of justice ..... I think that judges would be wise to confine themselves to controversy about the administration of justice. If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality.

I would humbly suggest that other colleagues who might have similar thoughts or intentions to allow them to remain purely cerebral until they are conveyed privately or through appropriate organisations to the relevant office at the Ministry. 

KENNETH CLARKE TAKES NO PRISONERS

 30. Jun. 2010. – 16:40:37 

In order to achieve maximum publicity for his tirade against short prison sentences Rt Hon Kenneth Clarke MP QC voiced his policy aspirations on The Today programme this morning. Before I continue I must remind those interested that this is the cabinet member of previous Tory governments who if he had his way would have had this country in the Euro and the £ a historic memory. It was also he in 1988 when Secretary of State for Health under Margaret Thatcher who abolished the universal "right" to "free" NHS eye tests.

Amongst other things he said in the live interview that yesterday he had been to Leeds prison where he had talked to a prisoner serving an undisclosed sentence for driving whilst disqualified. This man had said to him, "I`m angry; I should have been fined". As a very general guide this offence does not attract a custodial sentence unless it is eg the third such offence or other aggravating factors such as being alcohol related or causing injury. To use such an illustration was fatuous. 

How many minor thefts [shoplifting] must a drug addict commit before being sentenced to custody?.....five, ten, twenty.....................By the stage s/he is incarcerated every disposal in the book has been tried to no avail. Or the first time wife beater my bench and I sentenced a few months ago........a first time offender who was convicted after trial, had kicked his pregnant wife in the stomach, punched her breast and pulled her hair and dragged her through the hall. He was on the brink of being sent to Crown Court for sentencing but he got our maximum of six months. And of course there are the thousands whose sentences are suspended but offend within their supervisory period and render themselves liable to serve the original sentence in jail. Please don`t forget those who steadfastly refuse to pay fines or co-operate with probation to serve their community sentences. Short sentences imposed by magistrates are a very last resort. I am of the opinion that the Secretary of State for Justice has got this very badly wrong on a judicial level although there are pressure groups like the anti hunting brigade who were single issue fanatics who have this loud bee buzzing in their bonnets and reason is a word alien to them. 

Let Mr Clarke trade on his bluff man of the people reputation and come right out and say we need to save money; we can`t afford prisoners. At least he might salvage his reputation for straight talking because as native Americans were scripted by Hollywood to say, "He speaks with forked tongue".

ADDENDUM 2nd July 2010

The official answer to how much it costs to keep an offender in prison is often compared to the cost of sending a child to Eton. The exchange in a parliamentary answer in 2008 is copied below. However it would in my opinion make more sense to publish the cost per day per prisoner. On my last prison visit earlier this year the governor told me he allocated 80p/per prisoner/per day for food.

Prisons: Per Capita Costs

David Howarth: To ask the Secretary of State for Justice what his latest assessment is of the cost of keeping an adult male in prison for 10 years. [237754]

Mr. Hanson: The overall average resource cost per prisoner in England and Wales in 2007-08 was £39,000 (rounded to nearest £500); for 10 years this would equate to £390,000. A separate figure for adults is not available.

Civitas in 2004 published their own figures on prisoners` costs using a broader brush to paint what many might consider a more realistic picture. 

ARE MET POLICE GOING BACK TO THE FUTURE?

 28. Jun. 2010. – 08:45:30 

Scotland Yard in an apparent return to old fashioned practices is causing consternation inside and outside the ranks by flagging up its intention to use the apprentice system for future recruitment and dispensing with or downgrading its use of Hendon training establishment for recruits. Part time special constables who work limited hours monthly will be encouraged to join the Met after a year or eighteen months on the beat. Learning on the job was an accepted way into many jobs until the 1960s or 1970s. Lawyers, chartered accountants, architects, nurses, joiners, plumbers, electricians and many others could enter their trade or profession by a combination of on the job training and intensive classroom teaching. Some even paid for the privilege. Perhaps in going back to the future the Met for once is leading changes in employment practice? 

ALCOHOL SALES TO UNDER AGE DRINKERS

 24. Jun. 2010. – 12:24:05 

Depending on which statistics are perused drugs and alcohol are the root cause of "much", "many", "most" or even "overwhelming" instances of criminality. Leaving aside terminology and applying some old fashioned common sense young people under the influence of alcohol are a common sight on the streets in every village, town and city of this country. Since we`re not living in 19th century Ireland or the mountains of West Virginia we can be sure that the home brewed stuff is not under discussion and with the price of supermarket loss leaders uncle Patrick`s home brewed poteen or cousin Ethan`s moonshine couldn`t compete on price anyway. 

One would assume that local councils` enforcement teams would do their utmost to stem the purchase by under 18s of alcohol. After all the same councils have to cope with the results of the drunken behaviour of their tax payers` children. When charges are laid against those who sell drink to juveniles the accused appear at Magistrates` Courts. If they are convicted by pleading guilty or being found guilty after trial they are usually fined. One would expect thousands of such cases to have been prosecuted and millions of pounds of fines to have been levied. After all excessive and early drinking is a major medical problem as well as a problem for the criminal justice system. But one could be mistaken.

A parliamentary answer by James Brokenshire (Parliamentary Under Secretary of State, Home Office; Old Bexley and Sidcup, Conservative) on June 17th revealed amongst other facts that in 2008 in the criminal justice areas of Bedfordshire, Devon & Cornwall, Humberside and Warwickshire there was not one instance of a fine being imposed for this offence. In the whole of England & Wales in only 326 cases were fines imposed. These fines ranged in average from £152 to £1,050. These figures are shocking beyond belief but my own experience bears them out. It is well over a year.....perhaps two since I sat on such a case and my sitting rate is higher than the average JP`s. 

Every case prosecuted by councils is paid for by Council Tax and topped up by grants from central government as is all local expenditure. Even the mathematically illiterate can appreciate the term "cost effectiveness" even if its underlying premises are numerical gobblygook. Spend eg £1 to stop a drunken youth causing eg £20 of damage to him/hersef, others and the environment must make sense economically, medically and socially. Oh were it so simple! 

FOREIGN PRISONS & FOREIGN PRISONERS

 

23. Jun. 2010. – 14:54:09

Five accused men lost their appeal today against extradition to Greece to stand trial. Amongst other reasons they submitted were the primitive conditions of jails in Greece.

By contrast since the signing of an agreement with Viet Nam in 2008 allowing the repatriation of Vietnamese prisoners to their homeland not one such national has volunteered to serve out his/her sentence in Viet Nam. Apparently they would be treated too harshly in very poor conditions for that option to have been taken.

There seems to me a similarity in treatment for matters within or without the European Union. Doctors from within do not have to show proficiency in English to practise here. That loophole has cost the life of at least one man overdosed by a medic from Germany. The European arrest warrant is another seemingly iniquitous result of E.U. "harmonisation".

MAGISTRATES` ASSOCIATION NEEDS TO BE PRO-ACTIVE

 22. Jun. 2010. – 16:18:05 

In previous comments I have sympathised with the difficulties the Magistrates` Association experiences when the magistracy is presented with critical comment from virtually all quarters police, prison governors, probation service etc etc. With a very limited budget senior staff and current officers do their best but it is just not good enough. There has, as far as I am aware, been no contradictory press release on the assertion that short sentences should be abolished; not to be replaced by longer sentences but by community sentences. Today the news is that 150 of 350 magistrates` courts are liable to be closed in the current economic tsunami of reduced funding. It appears that in Birmingham lawyers are not unhappy that a new magistrates` court building has been cancelled. 

Presumably the Magistrates` Association had or should have had prior knowledge of such news/events. Immediate rebuttal if appropriate or reasoned comment should be forthcoming ASAP. If magistrates do not make their own case accurately and promptly in scenarios such as described who will make their case? Currently each member pays £33.50 subs. I would urge the Association to convene an extraordinary general meeting with one topic on the agenda..........subscription increase immediately to £40 the additional income to employ a professional journalist or PR consultant whose job would be to tell government and people why magistrates are important to the criminal justice system.........in other words to justify our existence preferably in our current form. There are too many who would not be sorry to say goodbye to us. 

ADDENDUM
The following has just been published on the Association`s website:

There are unsubstantiated rumours at the moment about magistrates' courts closures - see today's Daily Telegraph. John Thornhill, the Association's chairman has a meeting with the Minister for Justice, Jonathan Djanogly tomorrow morning (23 June). In the meantime the following quote has been issued to the Press Association and BBC:

Responding to various rumours about court closures John Thornhill, chairman of the Magistrates’ Association said, “With the current financial crisis it is not surprising that the Ministry of Justice is looking to reduce costs by closing courts. In some cases this can be justified because buildings are no longer fit for purpose or are not being used sufficiently. However the principles of community justice delivered by ordinary citizens for local people must, and can be, preserved. “ 

MAGISTRATES NEED LAWYERS` SUPPORT TO RETAIN FUNCTION

 

21. Jun. 2010. – 12:27:00

When major participants within the criminal justice system issue press releases on contentious issues one can be sure that in the Darwinian tradition they are seeking to survive elements which they fear could threaten their existences. Of course it is highly unlikely that eg police forces or the probation service are going to cease being but it is not unlikely that dark forces buried deep within the sewers of Whitehall are plotting the extinction of an organisation which this year marks its 650th year of allowing the sovereign`s law to apply to the people of England and Wales.

The magistrate at age 650 is a far cry from his ancestor. He or she is as near an example of a people`s judge in a people`s court providing people`s justice without there being a Robspierre or a Lenin within executing distance. He is part of a truly unique system of judgement by one`s peers which is unlike any other system in this world.

In November The Met Police Commissioner criticised magistrates for the continual offending of burglars whilst on bail. This was repeated by the commander of police in Hounslow on 6th February this year. Press statements of this nature can only be part of a co-ordinated political position to undermine magistrates` courts where the default position of offenders pleading not guilty is for them to be remanded on bail until trial.

Today the Prison Governors' Association and the National Association of Probation Officers have released statements in The Independent that short term jail sentences ie up to six months, should be abolished. The arguments put forward are self serving citing cost in particular. Each group is concerned with enhancement of its own position and their joint statement is nothing short of yet another attempt to devalue the three person magistrates` bench to speed the departure from our courts of its Justices of the Peace replacing them with salaried District Judges who already, to the disquiet of many, sit alone as judge and jury on trials.

By the very fact of their being unpaid volunteers albeit highly and expensively trained, JPs and their representative body The Magistrates` Association have traditionally been reticent about blowing their own vuvuzelas especially when the Association operates with a shoestring income of about only £1 million and a staff of eight employees. It will be a sad day if English Justices are reduced to takers of oaths and town hall decorations and hung out to dry. Be certain the death of the magistracy as we know it will be a bad day for all who value local justice for local people. Members of the legal profession personally and organisationally and others who are sympathetic to this view should make public their support for the English Magistracy in its present form.

CROWN COURT SITTINGS

. Jun. 2010. – 13:19:47 

 It had been a while since I had sat on an appeal at Crown Court. Outside the legal profession very few people are aware that appeals against verdict and/or sentence at a Magistrates` Court are heard in front of a judge assisted by two justices.

I had been telephoned by a court official the day previously, apologies were given for the short notice but owing to a colleague having had an accident I was asked if I could fill in at 12.00 noon the following day. And so arriving at the impressive red brick building I pressed the button at the gated judges` car park entrance and a uniformed security officer directed me to a space. 

My J.P. colleague from another bench was already in the retiring room familiarising herself with the details of the forthcoming case. Shortly after we had made our introductions a court usher advised us that the judge in the appeal would join us in a few minutes. And so I followed my colleague and his Honour into court.

The courts in my home bench are not cramped but court number eight was twice the size and without a jury on its two benches and with nobody in the public gallery the feeling of spaciousness was magnified. Wigged counsels` deference to our judge was certainly more than is usually accorded a bench of JPs by those appearing in front of us. During lunch which itself was a treat compared with my usual fare, a homemade sandwich, I mentioned some of the more crass remarks which have been directed to benches on which I have been chairman. The more outrageous in his Honour`s opinion warranted a complaint to the bar council. The six other judges present were extremely welcoming and a very relaxing exchange of legal banter and opinion was an added bonus. 

The case itself concerned an assault by a young man on two members of a neighbouring family with which his family had been at loggerheads for some years. He had previously, we discovered later, been tried in his absence. The three parties were the only witnesses and bad character applications and admissions revealed all had been previously convicted of offences ranging from theft to G.B.H. On retiring to consider our verdict we were all of the opinion that we could not possibly be sure of what happened on the day and the appeal against conviction was upheld. Unlike our procedure at court when we leave a written record of our conclusions and reasons on the court file his Honour did not input his reasons to his laptop as he had done taking his notes of evidence but the Crown Court being a court of record had his words recorded on tape. So justice was done although nobody was there to see it done. 

Having been reminded just how stimulating sitting on an appeal can be I have made a note to offer myself for some more sittings in the coming half year. 

DRINK/DRIVING LIMIT LOWERED TO 10mg ALCOHOL/100ml BLOOD:A BRIEF ARGUMENT IN FAVOUR

 17. Jun. 2010. – 11:54:24 

According to a report in the Daily Telegraph, Sir Peter North has recommended cutting the drink-drive limit from 80mg to 50mg of alcohol per 100ml of blood. Drink driving and all that surrounds the subject has been a hot topic since 1967 when the breathalyser was introduced to Britain`s drivers. 

The effects of alcohol on the human body are widely known. I remember as a student being asked by a lecturer to drink with others two pints of strong beer in the name of science. Our reactions to various stimuli were measured before and at various times after that morning`s unexpected imbibing. The results were very clear even if our brains were not......our confidence was increased owing to inhibitions being lowered and our reaction times to aural and visual stimuli were similarly markedly reduced. These events stay with you.

In 1966 there were 9,590 convictions in England and Wales for drink/driving offences and 5,035 in Scotland. The peak year for convictions England and Wales was 1988 at 105,027 with the peak number of 11,871 in Scotland being seen in 1980. 2006 saw 83,975 convictions in England and Wales and in Scotland 6,998 in 2007. There is an interesting paper by Richard Allsop Centre for Transport Studies University College London. Drink driving causes around 6% of road casualties in the U.K. and 17% of deaths and over a lifetime almost everybody will have a friend or relative killed or injured by this scourge. I personally have had two people close to me in these statistics. 

Drink driving and related offences where no injury has been caused are matters for Magistrates` Courts. There is rarely a valid defence and it is well known that disqualification from driving for at least one year plus fine and costs is the likely punishment for a first offence and increases to imprisonment for repeat offenders. So the potential consequences of drinking and driving are also well known. My personal experience is that many who come before us when providing their mitigation say that they did not consider what they drank would have taken them over the limit. And this in my opinion is the nub of the argument regarding the new proposed level of 50mg alcohol/100 ml blood.

The current level tempts drinkers to judge their “allowed” alcohol intake which of course has variable effects on individuals depending on eg health, weight, sex, metabolic rate etc etc. Reduction to 50mg/100ml will not remove that temptation to have literally “one and only one for the road”. And that one could take him/her over the limit.

If the permitted limit were only 10mg/100ml the message and science would be as clear as crystal; one glass of wine or half a pint is too much and the result is arrest and disqualification. But, and it is a BIG but, having a level which is not zero would allow for any residual alcohol from the night before to have been eliminated except in the most serious cases, usually alcoholics, and those who had a genuine belief they were legal to drive would usually escape penalty unlike the circumstances of a zero level. 

Whether the level will be reduced and by how much is a matter for the Coalition. North believes a zero level would be unacceptable to public opinion. The banning of smoking in planes, trains, pubs and restaurants was also thought unacceptable notwithstanding some of the extreme opinions regarding company vehicles and individuals` own homes. There will always be road casualties. Those where alcohol plays a part are inexcusable. Change when and if it comes should be sooner rather than later. 

BREACH COURTS LEAD TO JAIL FOR SOME

 16. Jun. 2010. – 15:31:04 

About a month ago a friend who lives a couple of hundred miles away and whose twenty something daughter was known to the courts in her town asked for any advice he could pass on to her regarding her impending appearance at their local Magistrates` Court on breaching conditions imposed by the court for her to undertake unpaid work in the community. I told him only that she should be honest before the bench.

"Breach Courts" are a regular function undertaken by JPs. With increased pressure from both those with knowledge and those without to reduce the numbers being jailed for short periods and for greater use of out of court settlements it is essential that offenders who fail in the requirements of the probation service are brought back to court to answer the charges and to realise that they could face more severe penalties including imprisonment if admitted or found proved.

Last winter an addict aged around thirty was before us for a regular monthly review of his case. He had been attending a drug rehabilitation centre where he was drug tested twice weekly for two months. Each visit had indicated that he was positive for heroin but the officer present indicated that the mere fact that he had not missed a testing session was a step forward even although he was still using. All we could sensibly do was to make our suggestion to him that the next step if he really wanted to get clean was to have at least one negative next month when we told him to return. So success albeit at a low level is for an addict just to turn up regularly to the testing centre. This is the real state of the drug problem. His history was not unusual........many convictions mainly for theft and varying sentences including custody. Later that day another drug user appeared because he had failed to keep an appointment with probation officers. He was so spaced out the duty solicitor asked for the case to be adjourned because his client was incapable of answering to his name. We did not therefore enquire how he remembered to come or travel to court. The final case that afternoon was of a twenty three year old woman under a curfew with a tag who was not at her designated address when she should have been when Serco telephoned her. They had arrived later, so we were told, to find her in a drunken sleep in her garden some yards from her front door having apparently lost her key. As a result her curfew was increased in length by a considerable amount. 

Many such cases result in immediate imprisonment especially for those with history of repeatedly disregarding court orders. It is only after considerable discussion and often with great reluctance that magistrates impose a custodial sentence. Those who would abolish short [usually under six months] sentences should visit a court a few times and realise that for some offenders locking them up to protect society is the only sensible outcome. 

SHORT SENTENCES ARE NOT TO BE DISPOSED OF

 

14. Jun. 2010. – 16:05:31

I am somewhat disturbed to read today that Secretary of State for Justice Kenneth Clarke has indicated that he has doubts on the "effectiveness" of short term prison sentences. In the interview he does not define "short" which in my opinion indicates he is flying a kite to see which way the wind is blowing. There are many charitable organisations whose prime long term goal is the the eradication of sentences of fewer than six or twelve months and the supplanting of them with various forms of community sentences. Those who are against such arguments are diverse and comparisons with so called "reformers" are ludicrous....I would not see a charity eg KEEP OFFENDERS IN JAIL being able to achieve good public relations. Prison reformers when real reforms were needed from the time of Elisabeth Fry are now part of a zealous single item issue. 

Comparisons are regularly made of the cost of incarceration vis a vis out of prison disposals. It is no surprise to even a non economist that building and maintaining huge establishments each to house 500 to 3,000 people to be kept under strict controls leading to a total population of perhaps 100,000 is going to cost per person more than any other disposal. This is a fatuous argument philosophically but excellent for politicians. Since most short sentences are made at Magistrates` Courts this is where Mr Clarke`s observations are aimed. 96% of all criminal cases begin and end at such courts. No major changes in their sentencing can sustain a detailed argument to eliminate them. In addition sentencing is governed by the Sentencing Council which requires benches to state publicly if the guidelines are being subject to deviation in any case. So a committee of publicly appointed members of the great and good fraternity appointed through the Ministry of Justice to produce sentencing guidelines is having sand kicked in its face by those who appointed them. Depending on which statistics are preferred it is estimated that about 90% of offences are committed by those who have a drug problem. It might be as politically an incorrect statement as can be made but there are many cogent arguments for decriminalising the possession of Class A,B and C drugs. Then and only then will there be money available and incentives to control and eradicate this evil at source......the dealer who would still be subject to prosecution would be deprived of his customer and his customer would have the link with criminal activity severed. The details of such a radical proposal are not for this writer to speculate upon at this time. But for all involved drugs and current policies are the elephant in the room. 

JUSTICE SEEN TO BE DONE BY "TIME SERVED"

 

11. Jun. 2010. – 11:13:10

Jacob, whose immigration status was unclear, had arrived here two or three years ago from a central African country. He was about 5ft 7" flanked by two security guards and quite dishevelled...not surprising since we later found out he`d been on remand in custody for four weeks having twice breached his bail for sect. IV public order offence for which he was before us for sentencing after pleading guilty as his trial was about to 
begin.

The facts were that in the middle of the afternoon two months previously he had approached a parked car as two women had just got in and mouthing misogynist abuse had attempted to prevent the passenger from closing her door. The two women were truly terrified but further possibly more serious criminality was prevented by a passing stranger`s forceful intervention and the prompt arrival of police who coincidentally were on the street [of Jacob`s family home] to speak to the defendant about breaching his bail on another matter.

His "previous" showed that he had within the last six months been cautioned once and imprisoned once for assaulting his partner. His sect. IV offence was committed in the street where his bail conditions for the second assault had prohibited his being. He had been remanded two days before pleading guilty and being imprisoned for that assault. His lawyer in mitigation asked us to remember he was drunk at the time and distraught about not being able to return to his partner. We reminded him that being drunk is an aggravating feature not mitigation....many lawyers pull this one as if we don`t know how to treat that factor common in many offenders. He also suggested we deal with the matter on the spot by considering how long Jacob had been on remand ie "time served". Our job of sentencing was made more difficult by not knowing how many days he had actually served for the assault before being released early from prison. Part of his period inside would have included sentence for assault and remand time on the sect. IV. Fortunately enquiries to the prison cleared that gap in our knowledge. We retired to consider his sentence.

"Time served" allows a defendant who has been held in custody on remand who would otherwise have been fined or given a custodial sentence to have the time spent in prison considered as sufficient to have paid his dues to society and to be released immediately or to be reduced accordingly. This matter was far too serious for a fine to be considered. Sentencing Guidelines indicated a minimum of 200 hours community payback [unpaid work] or a few weeks jail if the offence were so serious. He was borderline. On the basis of a structured decision we were considering the exact number of hours when we re-visited the reality of the sentence; he had already spent more time on remand than would have been the case if he had been jailed for the offence. It would be unjust therefore in effect to punish him twice. We could not allow "time served" on a community penalty so we sentenced him to ten days custody meaning that he would be released as soon as the prison had done its paperwork.

This was a pragmatic approach brought about by the seemingly illogical gap in "time served" regulations. There are those who would prefer magistrates to follow very strict sentencing guidelines and deviate at their peril. We announced in open court our reasons for a custodial sentence and the consequences. We considered that on that morning as on other mornings justice was done and seen to be done.

STUDENT LAW BREAKERS AND VERY SEVERE CONSEQUENCES

 

10. Jun. 2010. – 13:29:27

The notorious Harold Shipman whose name will live alongside Crippen in the annals of rogue medical murderers ......I won`t use his title the honour of which he fouled so heinously.......changed the manner in which most professions in this country are regulated.

Information from contacts within the optical profession has informed me of sweeping changes in the regulation of that profession; changes which are not necessarily unique to that group. But for a minute I would suggest that readers whose "previous" included a period as a student before 2,000 think back to their conduct and whether or not it included perhaps minor misdemeanours which resulted in meeting face to face the criminal justice system. I would suggest that not many of us could say that our behaviour in those days was as upright as age and experience developed. A bit too much to drink at the wrong time and place, smoking substances other than tobacco, a tendency to speak rather bluntly with a few more decibels and expletives than would have been necessary, a mistaken inclination perhaps for males to consider every female possible fair game and for females time at last to discover that beauty and brains is a deadly combination when applied appropriately. All that and myriad similar personal recollections have been and still are put down to youthful exuberance.....not any more for students of optometry and the allied profession of dispensing optics.

The aspiring optometrist must be registered with the General Optical Council. Not registered? Can`t study. This compulsory student registration means that eighteen year olds away at university are subject to similar controls as are qualified practitioners. But in the case of students the G.O.C. when and if it removes a student from the register is effectively preventing that individual continuing to study for his degree in optometry. Removal is of course the most serious sanction at its disposal and is used only in the most serious cases.

An undeclared fixed penalty notice received in 2007 and a police caution the following year for assault and possession of cannabis has led to student optometrist Amandeep Sandhu being issued with a G.O.C. warning which will remain on his record for three years.

This cannot by any stretch of the imagination be described as double jeopardy but it is a warning to students within the caring and legal professions that whilst some of their non vocational friends have only the law with which to concern themselves when spirits or nervous systems are perhaps higher than is sensible they face major problems for their entire future if thoughtless activity becomes lawless activity.

STAFFORDSHIRE CRIME STATISTICS GOING UP AND DOWN

 08. Jun. 2010. – 16:00:45 

This blog is for the happy cops bringing down the crime rate in Staffordshire and the unhappy cops in Staffordshire Constabulary who can`t control the criminal activity in Burton on Trent a fair town in the above mentioned county of Staffordshire. 

If there`s one topic on which my fuse burns rather quickly and brightly it is crime statistics and especially those reported locally through local press. These are not F.O.I. figures. They are generally prepared and supplied by the local constabulary. 
It was therefore salutary to read in "This is Staffordshire" of the falling crime rate. After all amongst other things that`s what the council tax payers of the county are paying for and surely Staffordshire Constabulary`s P.R. department will tell it how it is....or will it? Burton on Trent lies in the aforesaid county of Staffordshire. According to its local newspaper "The Burton News and Staffordshire" crime is rising in that fair town. I am not here to contradict these reports. But if anybody reading this blog lives in the town and reads both these newspapers are you happy or dissatisfied with the performance of your local police force? 

Surely the report re Burton on Trent should have included overall county figures in addition to the local criminal activity? Surely the P.R. department should have managed the publication of crime figures more comprehensively? Surely for the public benefit this type of nonsense should be controlled more effectively?

JEKYLL AND HYDE PROSECUTIONS

 

07. Jun. 2010. – 10:41:51

When Robert Louis Stevenson published "The Strange Case of Dr Jekyll and Mr Hyde" in 1886 little did he realise that the name[s] of the central character would become synonymous with behaviour that can only be described as schizophrenic either literally or metaphorically.

And a Jekyll and Hyde performance was the only way to describe the local council`s prosecuting performance a couple of months ago when various cases were before us. The afternoon began with two matters of estate agents having erected boards and in the first instance also an advertising hording apparently without the correct authority. The prosecutor told us the facts and the first agent pleaded guilty but after listening carefully to his mitigation which involved many years` history and pages of documents [he was unrepresented] and revolved around "grandfather rights" we concluded it was an equivocal plea and ordered a trial. This provoked concerned looks all round and in order to ensure justice was seen to be done we stayed our decision and put the matter back so that the parties could have further discussions. Eventually on the parties` return and the defendant`s final plea of guilty we fined his firm £500 plus a similar sum for costs. The prosecutor had had a clearly documented file and the defendant had only himself to blame for being in contravention of the planning laws.

The very next case of a broadly similar nature with another guilty plea from an unrepresented defendant whose mitigation prompted so many questions from the bench to the prosecutor that he admitted that the quality of preparation was such that the matter should and could have been settled weeks previously. There was a history of many unanswered e-mails from the defendant, telephone calls to the council not returned and letters sent to wrong addresses. This estate agent was however guilty. He was given a conditional discharge for six months and no costs were ordered.

The third and final case that afternoon had the prosecutor presenting a clearly documented file of over ten pages with umpteen e-mails, phone calls and letters to and from the defendant over seven years laid out in meticulous fashion. A garage owner had purchased a freehold comprising a garage, two retail outlets and flat. He had let the flat and shops and carried out a car repair business from that area of the premises making, he told us later, about £10,000 p/a profit from the garage. The only problem for him was that he had not received planning permissions for the car repair business and alterations to the building. The brief history was that after hoping that his ignoring the council`s letters would make the problem go away and belatedly not taking professional advice when he eventually responded this defendant had virtually no mitigation to offer after he had pleaded guilty except to apologise for his inaction as above and a litany of feeble excuses.

When it came to his completing a "means form" prior to sentencing it took a lengthy question and answer session to prise from him the profit figures over the years of illegal trading. His defiance of council planning requirements was expensive. He was ordered to pay around £11,000 in fine and costs.

When councils set their minds to it their prosecutions can be a model of efficiency but when they go wrong they go badly wrong and that costs us all.

SENTENCING IS AS FASHIONABLE AS WOMENS` HEMLINES

 

06. Jun. 2010. – 13:57:25

"Pleading guilty to the police should be rewarded with a lighter sentence", said Lord Leveson Court of Appeal Judge and chairman of the new Sentencing Council.

John Thornhill, Chairman of the Magistrates` Association, is quoted saying, “If a defendant holds up his hand at the earliest opportunity then I have no problem with credit being given. Whether a guilty plea could be taken at the police station was another matter, but if the court is presented with a defendant who has already admitted guilt, then why not have a more structured scale of discounts to reflect that?”

Lord Justice Leveson wants to review the discounts for guilty pleas to award bigger credit to defendants who admit their crimes even before the first hearing – the idea has potential for saving money in police and court time and helps victims and witnesses. However lawyers share John Thornhill’s caution by warning that unless carefully managed it could put suspects under pressure to plead guilty at crimes that they had not committee and would lead to miscarriages of justice.

Defendants who plead guilty "at the earliest opportunity" are usually allowed one third reduction in their sentence be it financial, unpaid work or custody. If an additional reduction is given for a guilty plea at the police station it could lead to dissimilar sentences for guilty pleas to similar offences by similar defendants where one offender wishes to hedge his options under legal advice. All this is based on the old story of persuading the donkey to get a move on by waving a carrot under its nose. But discussing carrots as incentives for donkeys is akin to rocket engineers discussing propulsion as action; the rocket cannot exist without also including reaction. So with regard to incentivising a donkey`s forward locomotion we need to discuss the corollary and that is a stick to the donkey`s rump if it refuses to move. I would opine that many? most? defendants cannot comprehend reductions in future sentences as they could understand "more". I would suggest we cease reducing sentences for early pleas, good behaviour etc. etc. and make it very clear that sentences will increase if found guilty after a trial vis a vis a guilty plea made early. The sentences themselves could theoretically be tailored to fit as now but the psychological addition of time or money has more significance than the corresponding reduction.

There are traditional “hangers and floggers” and there are so called prison reformers who find difficulty in accepting incarceration for all but the most heinous crimes and offenders. The central majority is following the penal pendulum as it makes its arc swinging from left to right to left to right……………..jumping on and off as opinions change. Who is to say eg that the use of Class A,B and C drugs will not be decriminalised within the next twenty years or that jury trials will be abolished for all indictable only crimes. Sentencing is as much a fashion product as womens` hemlines.

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OFF THE GUIDELINES JUDICIAL SENTENCING

 

05. Jun. 2010. – 14:04:49

The judiciaries` sentencing powers have long been a political dog for the government`s bones. The bones are limitless in number and varied in content. When the dog starts showing restlessness it is usually given something to chew on. A motto for Magistrates` Courts could be or rather used to be "local courts, local JPs, local justice." All that ended in 1939. The rural population decreased. Deference to a local hierachy based on perceived class differences was shattered fifty years ago to be replaced by the worship of wealth and those who achieved it. Mass immigration lessened the bonds of a common historical memory which many would say was beyond its sell by date in any case. In the last twenty years owing to economic arguments not needed here high streets achieved such homogenity that one could be forgiven that without any sound a high street in Luton could just as easily be in Dudley. Magistrates are appointed locally to national standards of competence and approval and that is as it should be. But sentencing could be argued to be a different matter.

For many years there have been committees of "the great and the good" formulating the appropriate sentences for appropriate offences and offenders these "guidelines" to be applied nationally with the argument commonly levelled against NHS treatments and outcomes that "we don`t want a post code lottery in sentencing". I would ask why not? If as is revealed in the press almost weekly an NHS treatment in eg Manchester will extend a patient`s life by two years yet in Birmingham that treatment is not available would one prefer a Manchester post code or a Birmingham post code? It could be said that all treatments should be as Manchester post codes. 

The newly formed Sentencing Council differs from its predecessor the Sentencing Guidelines Council insofar as sentencers "must follow" the guidelines unless it would not be "in the interests of justice." That phrase is open to interpretation and I am quite sure it will be widely quoted in the future perhaps in The Sun or Daily Mail both in praise and criticism of an "off the guidelines" judicial sentence.

DANGEROUS DOGS ;TIME FOR THE LAW TO BITE BACK

 

04. Jun. 2010. – 12:58:07

Thankfully most people do not come into contact with the legal process with the possible exception of when they are encased in a metal and glass box containing combustible liquid and are travelling in an inappropriate manner but that`s for another time.

There are eight million dogs in the U.K. and of course each has at least a single owner. They are all descended from wolves; that is the dogs are.....although some might say they are higher up the tree of civilisation than some of the owners. The ancient Persians were the first to domesticate dogs and they and later civilisations in Egypt used them as hunting animals, guard dogs and pets. At times domestic dogs were buried as sacred animals in the Anubieion catacombs at Saqqara. Anubis (Inpew, Yinepu, Anpu) was an ancient Egyptian god of the underworld who guided and protected the spirits of the dead.
For many hundreds of years kings and queens of England have employed dogs for hunting and canine association with royalty is very much with us today. Dogs have been bred also for virtues other than the strength of their jaws which is solely related to their head size. Dogs in fiction are known to most of us; Bull`s Eye in Oliver Twist, Rin Tin Tin, Lassie. Alpine dogs and swimming dogs have saved many people in peril; police dogs and dogs for the blind are essential helpers to their human owners. And there perhaps is the nub of the point of this post.....dogs of whatever breed will, generally, behave according to the manner in which they have or have not been trained.

Until 1871 there was no legislation regarding dogs behaving badly. If you were a man of substance you took your gun and shot the offending creature and perhaps also its owner if he resisted. If you were poor it ate the same scraps as its owner and perhaps provided some protection as well as companionship. The Dogs Act of 1871 allowed a complaint to be made to a magistrate under civil law. Such a complaint occurs if a dog is not kept under proper control and is dangerous. Generally a dog is regarded as not being under proper control if it is neither on a lead nor muzzled. Without a complaint the Act cannot be enforced.

After a series of serious dog bite attacks in the 1980s parliamentary knee jerk reaction was to enact the Dangerous Dogs Act 1991 which allowed for the destruction or neutering of certain breeds. Most dog behaviourists and dog trainers agree that it is the dog owners that are the problem with dangerous dogs not the breed. This Act is, to coin a phrase, a dogsbody of law. There is a lack of protection against attacks on private property. This means that postmen and women, or any worker visiting the dog's home, can be attacked without criminal charges being brought against the owner.. I blogged on this and an actual case which demonstrated some anomalies earlier this year on 21st February. But dogs still bite people and people are still seriously injured by dogs. In 2008 4,699 people were admitted to hospital and kept in at least one night with injuries from dog bites. Children under nine were by far the most likely victims.

I have written previously that Scotland in many areas of legislation from car clamping to age of criminal responsibility has shown a lead where common sense and clearly drafted regulation has benefited its people. The Control of Dogs (Scotland) Bill passed its third stage in the Scottish Parliament at the end of April and now looks set to become law north of the border. This new Act importantly places the onus on the owners, not the dogs, to ensure they are properly controlled.

Dog bite incidents which happen dozens of times every day rarely make news unless a child is killed or the people involved can sometimes dubiously be described as “personalities”. Such was the case reported today when Ozzy Osbourne's old boss was fined £2,500 after his dog attacked a cyclist near 

Edenbridge. Patrick Meehan the former manager of Black Sabbath and former chairman of Handmade Films, the financially troubled film company founded by Beetle George Harrison, is an extremely wealthy individual. And paying less than £3,000 including costs for the actions of his dog is not only a puny amount it does not reflect the seriousness of the crime. The punishment under the Dangerous Dogs Act is currently a maximum fine of £5,000 or up to six months` imprisonment. A person convicted of carrying a knife in a public place faces a minimum punishment of imprisonment even for a first offence according to “Povey”. Irresponsible dog owners even if they are multi millionaire media personalities are equally culpable if their “pets” are running free and/or not muzzled and attack innocent bystanders. 

HOW MANY POLICE DOES IT TAKE TO ???

 

02. Jun. 2010. – 16:03:59

Are the following statistics for 2009 concerning the numbers of police officers in England and Wales worthy of comment from somebody who knows more than I about staffing structures?

There is 1 sergeant for every 4.8 constables
There is 1 inspector for every 3.04 sergeants
There is 1 chief inspector for every 3.85 inspectors
There is 1 superintendent for every 1.89 chief inspectors
There is 1 chief superintendent for every 2.1 superintendents

NO MORE ROGUE CAR CLAMPERS IN 2011

 02. Jun. 2010. – 15:36:39 

Every car owner knows about it, tries to avoid it and feels like spitting blood when unfortunately comes face to face with a wheel clamped car and the often large, tattooed men who have locked the monstrosity in place on his/her car. The resulting aggravation many times reaches the courts when aggrieved motorists` outpouring of venom reaches the ears of a patrolling Police Community Support Officer or very very occasionally a real live "You`ll be arrested if you don`t stop swearing" police officer. I sat on such a case a couple of weeks ago and however much provocation has been endured it is usually considered only in mitigation for a guilty plea to low level public order offences.

The outrageous actions of some? many? car clampers and the lack of effective control on their activities at local or national level has been a scandal. The recent conviction of one such gang and the jailing of its leader at Birmingham Crown Court will bring a smile to all who have had the misfortune to have been similarly fleeced of large amounts of hard earned cash.

It is heartening to know that in the Crime and Security Bill which received Royal Assent on 8 April there is provision to deal much more efficiently with rogue car clampers. There will be maximum limits set to fines possibly in line with those imposed by local authorities, signage will have to have parking conditions clearly set out, independent appeal processes will be established and effective licensing for clamping companies will be introduced. The Scots, so often more sensible than their English cousins in matters legal, outlawed clamping on private land in 1992. 

NO USHER; NO COURT; NO JUSTICE

 29. May. 2010. – 13:45:14 

Imagine an athletics meeting where the athletes did not have a schedule of events; chaos would not adequately describe the scene. Competitors would mill around and try to make some sense of the disorder around them. Given time and some common sense they might actually sort themselves out and appear on the starting line. When complaints are subsequently made to the organisers of the event they reply that there wasn`t sufficient money to provide enough back up staff and then sign a contract to have the seats repainted red white and blue in time for the next meeing.

Earlier this month I was assigned to the non CPS court where prosecutions by bodies such as the local council, Dept. of Health and Social Security, Child Support Agency etc etc take place. As such there are more lawyers for both prosecution and defence than is usually the case waiting for their cases to be called on, defendants and witnesses of all kinds many of whom are not familiar with court procedures unlike those appearing in CPS prosecuted criminal matters when familiarity breeds more than contempt. 

Morning courts run from 10.00am - 1.00pm. It is essential that as little time as possible is lost owing to inefficiencies especially those which are predictable. Although not directly related to this topic one small example will give an indication of top down instructions which are as sensible as a three legged camel race. Courts` daily lists which can run into dozens of names are presented to the bench in alphabetical order and numbered as such. Until recently the sometimes bulky corresponding court files would be presented to the legal adviser in the same order so when a case was called on by name and number everyone is literally reading off the same page. But recently owing to some court manager taking the view that for c£18K p/a office staff to sort the files before 10.00am was too time consuming that process was stopped. The result is that the c£40K p/a adviser has a bundle of files on his/her desk and spends court time sorting out the appropriate one when the case is called. Yes; it does appear that the monkeys are running the zoo.

Now back to the non CPS court....we enter at 10.00am on the dot with the legal adviser and unexpectedly find the courtroom empty. Our L/A tries the main entrance to the courtroom and finds it is locked! It appears we have not been assigned a court usher. The L/A phones security to unlock the door, a job usually done in conjunction with the usher or by the usher alone. Our bench quickly decides that we cannot efficiently conduct our court without an usher to regulate properly the comings and goings of the dozens of people we expect to appear. It is a task which occasionally a L/A would undertake if pressed; perhaps in a short trial with only one or two civilian witnesses but not on the scale envisaged for that morning. We retired from the court telling the L/A matters would proceed only when the court was properly staffed with an usher. At 10.30am we were informed that the court manager had re-arranged the ushers available and we were well served but half an hour of precious time had been needlessly lost. 

I have no reason to think that other Magistrates` Courts are not undergoing similar results from reduced recruitment. Because financial cuts at our courts are like the iceberg which sunk the Titanic having only 10% visible above the waterline it will take a Daily Mail headline of an unforeseen major criminal event resulting from such inefficiencies to bring Her Majesty`s Court Services` attention to this attrition within the criminal justice system. 

REGULATION OF INVESTIGATORY POWERS ACT 2000

 28. May. 2010. – 16:58:43 

The Regulation of Investigatory Powers Act [2000] is a perfidious and odious part of the all enveloping snooping legislation enacted by the, in my opinion, unlamented authoritarian war mongering swiftly back peddling right honourable and some dishonourable members of the BBM gang and its three leaders. It was under this legislation that there was a wheelie bin watch and charges against parents who were thought to be cheating about how close they lived to a desirable school. I`m quite sure that in most parts of this country there were enough cases to keep the local newspapers in business.

Two cheers for our new coalition of CamerClegg. In its Agreement a ban is proposed on the use of powers in this Regulation of Investigatory Powers Act 2000 by local authorities unless a magistrate authorises their use and it is required for stopping serious crime. I am unclear whether this indicates that a magistrates` bench in court will have to approve the action or a JP on his/her own. I am sure we will know soon enough. From a libertarian viewpoint this is a good start.