LORD JUDGE IS MISTAKEN

 15. Jul. 2010. – 11:59:17 

The history, practice and efficiency of the jury system has been examined in ever closer detail by myriad academics and legal eagles and can easily be accessed by those interested. My comment today is a result of a statement yesterday 14/07/2010 by the Lord Chief Justice of England and Wales Lord Judge that juries should be directed by a trial judge not to research a case or anything pertaining to it on the internet. I wonder in all humility if His Lordship knows what a curate`s egg he has opened.

Jury composition from its earliest medieval beginnings until the 21st century has moved from exclusivity to inclusivity; virtually any sane person who is neither lord nor convict is eligible to sit. There is no requirement to have a basic knowledge of English language, mathematics, carpentry or indeed any intellectual or practical ability. The juryman reflects society warts and all. And this is what I find disturbing in Lord Judge`s approach. If we accept that the internet is merely a vast library where those with or without knowledge of a subject can research it to the n th degree it follows that on any case before a jury some jurors might have relevant knowledge that another does not and wishes to find for him/herself. This is what Lord Judge appears to want forbidden. Therefore the ignorant jury member must remain in ignorance and be subject to the inevitable explanations that the knowledgeable fellow member will expound. 

This is nonsense. To have juries of the lowest common knowledge can only be a forerunner to one of two futures; to return to a stricter method of jury selection where individuals` capacity to comprehend proceedings can be tested or to create a new form of “either way” trial where one or both parties can elect for judge or tribunal [three judges] trial or jury trial. However in the tradition of muddled English legal development it is unlikely to be spelt out so blatantly. 

This coalition government born not of goodwill but of necessity has shown some promising trends in its stated wish to eliminate some of the authoritarian actions of its predecessor. If there is, as I now believe, an underlying intention to change radically our trials system there should be more than merely “consultation”, the weasel word of political cowards; there should be encouraged open debate where effective discussion can take place with no pre-determined objective already pencilled in on what was supposedly a blank piece of paper.

LICENSING ACT 2003,s.146 ALCOHOL SALES TO CHILDREN

 14. Jul. 2010. – 12:27:13 

Alcohol has been part of man`s cultural tradition before he realised what “culture” meant. The discovery of late Stone Age beer jugs has established the fact that intentionally fermented beverages existed at least as early as the Neolithic period (cir. 10,000 B.C.) Beer was the major beverage among the Babylonians, and as early as 2,700 B.C. they worshiped a wine goddess and other wine deities . Wine making along with the distillation of olive oil was amongst ancient civilisations` earliest industries. The classical pioneers of surgery used various forms of alcohol as anaesthetics and medicaments. A Chinese imperial edict of about 1,116 B.C. makes it clear that the use of alcohol in moderation was believed to be prescribed by heaven. Beer was brewed by monks in the 17th century. The name of the celebrated cartoonist Hogarth became synonymous with his cartoons of Gin Lane and Beer Street in 1750/1. 

The benefits and problems associated with drinking alcohol are imbedded in us. However sales of alcohol have been subject to various forms of control for two hundred years and laterally sales from on and off license premises to children have come under increasing scrutiny. The health traumas and social disturbance associated with alcohol and developing brains has long been a cause for concern. 

With increasing affluence reaching down to the back pockets and purses of even the pre teen group, legislation against sales to under 18s enshrined in the Licensing Act of 2003 s.146[forbidding sale of alcohol to children] was intended to deter potential offenders. In my opinion if it is perhaps too soon to say it has failed, it is not too soon to say that it is not being used to its potential and there are few things worse in socio/legal terms than the appropriate office having powers to use legislation and not using those powers. Apart from anything else it brings the law [and the lawmaker] into disrespect. 

Three weeks ago [24/06/10] I blogged inter alia that it had been a year or more since I had sat on a case of breach of s.146. Of course the man upstairs was spinning the wheel and a few days later before me [and my colleagues] was a case brought, as these cases usually are, by the local trading standards officer of the borough. A 60+ part time employee had been working in the off license for over ten years. She was of good character. In addition some six months previously [as we were later informed] she had successfully refused an alcohol sale to a minor working under cover for the council`s trading standards office in a mystery shopper test. This time however she had pleaded guilty to selling beer, in another trading standards office under age shopping test, to a 12 year old whose picture in evidence left us in no doubt of the child`s appearance being very much under age. The means form and her lawyer explained to us she had been sacked, had little income and was living with and supported by her son. In questioning the prosecutor regarding his asked for costs account of over £1,200 some disturbing facts emerged. When it was pointed out that those council employees whose time was priced in his account were paid to do the job he quoted case law to support his claim………so far so good. When we enquired about the history of sales at the premises we were told of the successful test mentioned earlier but also that other employees….at least on two occasions in the previous two years….had been convicted under s.146. On further questioning he told us that the licensee had never ever been summonsed. He was asked why not. His reply was that policy was to summons licensees of large outlets eg supermarkets but not small retailers. Since this offence also carries the possibility of a Penalty Notice of £80 we asked why this had not been applied to the defendant in these particular circumstances. He told us that he would have required a police officer to administer such a disposal and that was not policy or practicable. 

We considered a Conditional Discharge in view of mitigation presented but decided against. Our sentence was Fine £55, Victim Surcharge £15 and costs £55; a total of £125. 

The country is bedevilled by juvenile drunkenness and the disorder which follows in its wake. Only when public policy insists why licensees should not lose their license and consequently their income for the actions of their employees will headway be made to control the sales of alcohol to children.

THE WISDOM OF AGE AND BODY OF YOUTH

 13. Jul. 2010. – 08:52:44 

I`ve been a JP for a while. Unlike many of my colleagues who post their opinions on the Magistrates` Forum I`m not looking for a long [or short] service medal or letters indicating association with a defunct empire when I step down or to be more precise when I am here today and gone tomorrow the day after I hit the biblical time span….if I last that long. I don`t seek self aggrandisement by pondering whether I do or don`t use the J.P. suffix in correspondence . I don`t. Anyway I`m much happier in the anonymous position where most of my friends are not even aware of my judicial status. Judging….to coin a phrase……… from comments I hear in the retiring room I certainly don`t want to appear to others a font of all knowledge criminal and a source of advice on matters not my business. 

But with an unprecedented increase in my bench`s intake over the last couple of years more and more of my newer colleagues are expecting words of wisdom when they ask for advice or information. And truth be told I`m finding that increasingly most of that advice or information is actually accurate. That certainly is a continuing function of the process of intellectual osmosis which we all hope will see us through before we need somebody to change our nappy. 

Last week a colleague posited a question I should put on her [and our] behalf to a trial witness. After a couple of seconds I decided it was not appropriate and told her so with reasons. She accepted my decision. At the post court review I brought this question up with our very senior legal adviser for his opinion as to whether I had acted correctly or perhaps had been over cautious. Without any hesitation he replied and gave succinct reasons why the question might have upset the level playing field over which we had presided. My colleague chipped in with, “A Brownie point for you Mr Chairman”, and I haven`t even been a boy scout. 

Oh that we had the wisdom of age and body of youth……..now who said that? 

CRIMINAL JUSTICE AND LICENSING BILL SCOTLAND

 12. Jul. 2010. – 11:39:12 

I have previously blogged here that legal processes in Scotland are often more soundly based and applicable to this century than some of those in England & Wales. However since the formation of the current Scottish government disturbing trends have been noted under the auspices of the Cabinet Secretary Kenny MacAskill whose responsibilities include criminal law and procedure, youth justice, criminal justice social work, police, prisons and sentencing policy, legal aid, legal profession, courts and law reform, anti-social behaviour, sectarianism, human rights, fire and rescue services, community safety, civil contingencies, drugs policy and related matters, liquor licensing, vulnerable witnesses, victim support and civil law, charity law, religious and faith organisations.

The Al Megrahi affair showed the world that arguably Scotland`s justice system was not above having its ear bent for political and/or financial/business purposes. It even caused unfavourable comment from US Secretary of State Hilary Clinton; an uncommon utterance. 

Last week this same Scottish politician steered through Holyrood a Criminal Justice and Licensing Bill which amongst other things will virtually abolish custodial sentences of less than three months and rejected attempts to impose mandatory six month sentences for carrying a knife. Proposals to criminalise all aspects of prostitution and tougher licensing laws for lap-dancing clubs were also defeated, as were plans to give victims of crime the opportunity to speak at parole hearings. However in a halt to the apparently onward march of retaining DNA samples forensic data will be collected from children in relation to serious offences only. 

Whilst there is no doubt that independent of one`s viewpoint the Bill could be described as a mixed bag it does demonstrate an attempt to include in the basket many disparate measures that go towards a joined up legislative basis underlying law and order north of the border. It certainly should be compulsive reading at the Home Office and Ministry of Justice.

SHOULD UK POLICE BE ROUTINELY ARMED?

 11. Jul. 2010. – 13:41:13 

There was a semi interesting accompaniment to my coffee and toast this morning on BBC 1 TV where during a discussion on whether police should be routinely armed the presenter informed her guests [and us] that 40% of members of the Police Federation approved of such a change. This is virtually double the minority from 2006. The reason for the debate was of course the two recent week long manhunts in two of the most rural constabularies in England where police in both cases were chasing their tails for most of the time.

Various avenues of discussion opened up some deserving of serious thought and some not worth their proponent’s intake of breath. One such nonsense was the assertion that it would ruin the citizens` inclination to approach a police officer and ask for directions. Another was the oft heard description that we have a "citizens` police". I`m not quite sure what that means except perhaps police as citizens have been empowered to enforce the law. Possibly I live on another planet but in all reality what other type of police could we have unless there is a state of martial law. 

In the last century pre World War2 police were routinely armed; in some cases it was voluntary. The growth in British travel abroad has familiarised us with armed police virtually everywhere except New Zealand and Bermuda although I`m sure there are other small countries where the police officer still goes about his business without a sidearm. An attitude pointer could be defined as the answer to the question, "At a UK airport do you feel more safe or less safe with officers on patrol with machine pistols?"

Those occasions where police shoot innocent people are, thankfully, so rare that they are instantly remembered. But we are also very aware of regular reports of police using lower levels of force quite out of proportion to any perceived threat. And that leads to the fear that if such officers had access to lethal force they would be just as indiscriminate with a Glock 17 as with their baton.

As in many other ways this country is governed, the back door approach is often the favourite way to implement policy. Country wide there are patrolling police vehicles with an armoury in the boot. There is no doubt that for a minority of criminals from the teen gangs of London, Birmingham. Manchester and other cities to the hundred crime bosses said to be at the summit of most of the [drug, prostitution, people smuggling, counterfeiting] crime in this country force must be met with overwhelming force. Properly informed debate both within and without parliament is long overdue on this topic. 

MAGISTRATES` ASSOCIATION IS UNREPRESENTATIVE OF JPs

 10. Jul. 2010. – 13:27:12 

The Magistrates` Association is an unusual organisation insofar as its membership does not join by virtue of exams passed, degrees achieved, professional qualifications awarded or employment requirements. It does not truly represent its members` interests in the manner eg of the BMA . The only criterion for membership is that one must have been appointed Justice of the Peace. It was founded in 1921 and “is funded by its members to represent their interests”. And that`s the rub; representation. A magazine is published about ten times a year. It is certainly informative but does little as far as representing members` views apart from a few letters. Representation is by the outdated, inefficient and open to gerrymandering delegate to branch to council method. Branches include Middlesex; a county not now in existence. One must keep in mind that Branches can cover a geographical area containing several benches; considering that most JPs on a bench meet on duty only occasionally owing to sitting about once a fortnight on a rota system and rarely meet other members from other benches within the branch except at often poorly attended branch meetings the scope for self serving individuals to propel themselves from representative to council member to committee member, in addition to those who genuinely wish to represent their colleagues, is enormous.

An enterprising techie colleague about five years ago produced his independently constructed and funded forum where a few individuals discovered the benefits of almost instant discussion on a variety of matters of common interest. This has now morphed into a Forum organised and run by the Association. It would be thought that with about 1,000 registered and about 30 regular contributors the four aged sixty something candidates for the impending election of two vice chairmen would be eager to ascertain their colleagues` views and offer themselves to online discussion of what they could offer to their voters, their opinions on the many varied problems facing magistrates and in effect allow a knowledge based democratic process to be seen to take place. Even the leaders of the main political parties realised that direct appeal to the electorate was an event overdue in its arrival. Despite several on line entreaties none of these men has bothered to communicate. Indeed of all the candidates only Richard Monkhouse has been a contributor to the Forum 

Candidate Clift in his hustings column in the current magazine is up front about parading his MBE, takes 70% of his column inches to tell of his good works and supplies no idea of any concrete action he would seek to initiate.

Candidate Fassenfelt standing for re-election has the gall to write, “I envisage an Association that communicates better with its members….”

Candidate Richardson whilst less of a politicised clone than Clift or Fassenfelt nevertheless has only platitudes to offer. 

To have these four men of 60+ years standing as candidates is a reflection on the soviet style system of branch representatives. This allows the Council eg to state that if the North Report recommendation of a reduced drink driving limit of 50mg/100ml becomes law the Magistrates` Association would recommend against North`s opinion that the current and well established minimum twelve month period of disqualification be retained;

It would be a retrograde step to diminish the force of that weapon, with the conclusion that, in addition to the current band C fine, 12 months mandatory disqualification should continue to be imposed if the limit is reduced to 50 mg/100 ml.

This decision taken by an almost self selected group might be representative of the Association`s Council members but it almost certainly without debate cannot be said to be an accurate reflection of the opinions of the country`s JPs. A decision like that and others of such import ought to be based on firm foundations. The representation system of this organisation needs to be from ground up like the proverbial pyramid. And that means having branches based upon each bench where formal and informal contact can readily take place with direct contact then to the top. Multi bench branches with perfunctory contact from rep. upwards insulates a hierarchy which is virtually self perpetuating. It has to change or be changed.

BORN 1360 AND NOT GOING SO STRONG

 08. Jul. 2010. – 21:11:21 

Justices of the Peace have their 650th birthday this year. We must have been a good idea to have lasted so long. We`ve seen out Henry V and the long bow, survived bloody Mary and regicide Cromwell, served under William of Orange, become upper middle class with Victoria, continued under a National Government and are still alive and ethnically diverse under the first peace time coalition for decades but we`re hardly kicking.

With the forthcoming closure of many if not all the courts signalled recently and the amalgamation of benches it is inevitable that many JPs will call it a day. When a job is voluntary one of the perks is no loss of income when one chooses to go.

If we were all put out to grass it`s unlikely we would be missed after a couple of years. No government spokesman has ever even hinted at such a possibility but a sentence with words and actions speaks louder. Virtually all our courts have at least one full or part time District Judge. They are certainly necessary insofar as they sit on any category of case and are available for extended hearings. Whether trial and sentence by a single judge is wholly in line with the "jury" concept is a moot point but it is unlikely to change. But what is likely to change is the increasing numbers of cases coming before DJs by virtue of their increase in numbers. The Judicial Appointments Commission is currently advertising for thirty new DJs which I estimate will cost the exchequer a sum in excess of £40 million p/a. The fiscal argument is that DJs can do three times the volume of work done by a JPs bench which must be served by a legal adviser who is a barrister or solicitor at half the cost of a DJ. Once DJs are persuaded that they can dispense with the legal adviser cost comparisons are not simple. If and when that happens JPs` current role will be history. We`ll be kept for appeals or to sit as wingers at trials with a DJ in the middle chair as a sop to the judges and those of us who are left.

If we make our 675th birthday I`ll be surprised; I`ll also be well retired and I hope still going strong. 

LEGAL AID DENIED AT MAGISTRATES` COURT INCREASES LEGAL AID COSTS AT CROWN COURT APPEAL

 @ 08. Jul. 2010. – 16:12:11 

Applications for legal aid for appeals at Crown Court have to be made at the Magistrates` Court where the original hearing was held. This procedure is fairly recent according to His Honour when I was sitting on an appeal not so long ago.

I had been reminded of the history of legal aid when sitting in the justices` room with a colleague from another bench prior to the case being called. 

The appeal was against conviction and sentence for driving with excess alcohol. She was of previously good character. The appellant who was unrepresented before us and, she said, at the Magistrates` Court where it seems legal aid had been refused. She told us she was a recent immigrant from Bosnia. By her appearance she was a strict Moslem although her face wasn`t covered; an escape for His Honour who would have had to decide whether a fully veiled person in her position was appropriate in the circumstances. Her religious observance was pertinent to the case as we discovered.

She had accompanied as a passenger two [non Moslem] friends to what she thought was a cafe but in reality was a bar. The driver had parked nearby. Never having drunk alcohol she offered to sit outside in the vehicle whilst her friends had a drink. Shortly afterwards one of them brought her out a can and a packet of crisps. The friend was doubtful if she was legally parked and asked the appellant who had a valid license to move the car a short distance to an unregulated parking spot. So after emptying the can, she was thirsty, she drove off to be stopped by police after a short time owing to a broken rear light. The officer`s notebook reported a smell of alcohol, she was breathalysed and taken to the station where the reading was 79 in breath. So far so good.....but what was the basis of her appeal? Eventually the judge teased out of her that she hadn`t known she had been drinking alcohol; she had never in her life had an alcoholic drink....not exactly unknowingly drinking a spiked drink.....the coke and vodka defence as His Honour termed it. Crown counsel offered to speak to her "off the record" in an attempt to expedite matters. The upshot was that she asserted now that in addition she had driven only about 20M. She had not mentioned this on arrest, at the station. There was no way of knowing if these factors had been stated at the original hearing where she had pleaded guilty. So there were two grounds....short distance travelled and a variation of a spiked drink defence. Without representation for the lady or the presence of the arresting police officer for the Crown it was impossible to continue. A young barrister awaiting the following case offered her assistance to the court and at this stage the clerk advised his honour that legal aid to the dock from the Crown Court was no longer possible; an appellant had to apply at Magistrates` Court. The young counsel nevertheless offered her services. However the conclusion was that the matter would have to be adjourned for the police officer to give evidence re distance followed which was not in his notebook and that legal aid would be necessary on both means and interests of justice. 

So a saving of the cost of legal aid at the lower court will have led to greater costs at Crown Court. Whether the outcome would have been much different if a duty solicitor had interviewed her at the outset and discussed the possibilities is open to question but the fact remains that we as magistrates are going to have to get used to increasing numbers of un-represented defendants. 

THE £BILLION SCANDAL OF UNPAID FINES

 

07. Jul. 2010. – 16:13:09

I had hoped to avoid any post that had even the most distant relationship to the short sentences debate but like Homer Simpson when he sees a doughnut I can`t keep my mouth shut.

The protagonists of that debate consistently propose increasing the use of financial penalties in order to reduce custodial sentences......as if magistrates are not doing that when the circumstances are appropriate. I have previously commented that at any time there is currently half a billion pounds outstanding in unpaid fines. Seems the National Audit Office has now issued updated and comprehensive figures for outstanding confiscation orders, fines, compensation and legal costs. A summary from the Magistrates` Association website is copied below.

The Magistrates' Association reads with astonishment the National Audit Office report that there is a staggering £1.3billion in unpaid confiscation orders, fines, compensation and legal costs. At a time of financial constraint with 103 courts threatened with closure to save money the failure to secure such a large amount of potential income will be considered by magistrates to border on negligence. The large sums uncollected send an unacceptable message to offenders, undermine the sentences of the courts and are a significant blow to public confidence.

Criminals will rejoice that they can retain the proceeds of their offending behaviour despite court orders. Magistrates were criticised recently for not imposing more fines to provide funding to service the justice system. They will now be rightly angry that the sentences they impose appear not to be adequately managed. Victims awarded compensation for the hurt and distress they have been caused continue to suffer. Magistrates are reporting a reduction in the number of courts with resultant delay in hearings and trials. The significant amount of unpaid costs would be more than sufficient to employ enough prosecutors to service all our current courts without further court closures. The MA appreciates these figures are a legacy of a previous administration and is therefore willing to engage with the review it believes is necessary to restore the confidence of both the magistracy and the public.

Notes for Editors:
The £1.3 billion is made up as follows:£706 million in unpaid confiscation orders;£350 million in unpaid fines; £150 million in unpaid compensation orders; £110 million in unpaid legal costs.

Clear and unambiguous information such as this which is lacking in many areas of public accountability is certain to fuel backbenchers` demands that "their" local court is exempt from closure. I predict the Rt Hon K.Clarke will be eating hubris over his precipitate announcement and that reasoned argument might at long last inform the debate.

THE SPURIOUS ARITHMETIC BEHIND COURT CLOSURES

 07. Jul. 2010. – 14:33:23 

It is only a few years since Magistrates` Courts [and others] have been run under the banner of Her Majesty`s Court Service. In less than a generation these courts have gone from each being managed by a single person to a management structure which must be a joy to all those committees who designed the horse and ended up with a camel. When there is a noticeable trend in retail organisations and similar to return management to those at the coal face the government is still on the up escalator whilst those who have to answer to shareholders and pay dividends have decided that they must de centralise and assign local powers to local managers.

In order for each court to function dozens of individual activities must be co-ordinated; some directly within the court`s remit...court lists, staff availability, etc etc but many other bodies must also do similar eg JP`s to cover the day`s listings, CPS personnel and case files, witness support to ensure appearances of witnesses, SERCO to produce prisoners, probation officers to have available and to prepare reports, police officers, defence lawyers, defendants and more, much more. 

With the furore over proposed court closures it is naturally consuming much parliamentary time. Yesterday Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative) had the following exchange:
Philip Davies (Shipley, Conservative)
To ask the Secretary of State for Justice what assessment he has made of the likely effect of his proposals to (a) merge and (b) close courts on the workload of each remaining magistrate's court.
* Hansard source (Citation: HC Deb, 6 July 2010, c162W)
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

An initial impact assessment has been produced for the consultations. The impacts, costs and benefits of the proposed court closures and bench mergers will be considered more fully during the consultation phase and a full impact assessment will be produced alongside the consultation responses.

Utilisation rates currently average 64% across the magistrates courts. Courtroom utilisation is the time a courtroom is used, against the hours that a courtroom is available for use. The Government's aim is to increase utilisation of courtroom time to at least 80%. If the proposed closures went ahead and workload was transferred to surrounding courts it is estimated that it would result in a national utilisation rate in the magistrates courts of around 80%.

My and my colleagues available court time is 10.00am - 1.00pm, 2.00pm - 5.00pm; six hours but often more. Courts are never held up by non availability of JPs but all the other factors and more listed above singly or in combination lead to most colleagues on my bench having "down time" of at least one hour daily ie their court not operating owing to people, paper or both being unavailable. The Minister seems to think that by cramming more work into fewer courts these inefficiencies will disappear and 64 will become 80. I can tell the Minister he is talking rubbish. The co-ordination and efficiency of these groups will not be changed from Whitehall. If this is an example of how Kenneth Clarke`s position on court closures is being rationalised I despair....and I`m a half full person by temperament. 

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.