ALL OPTIONS CRY WOLF

 @ 31. Jul. 2010. – 12:08:23 

When a defendant is sentenced at a Magistrates` Court to custody or to a community sentence it is generally subsequent to a pre sentence report having been ordered by a bench or District Judge when a defendant has been convicted after trial or pleaded guilty. It is prepared by the probation service and read by the sentencing bench or District Judge. In the cases involving J.P.s [majority] the composition of benches especially in large conurbations is rarely the same twice unless a member[s] of the original trial bench elects to sit on the sentencing bench. For that reason the report request must indicate the seriousness of the offence, the degree of the offender`s culpability, the possible range of sentence and the bench`s opinion of what range of sentencing it thinks appropriate for the sentencing bench to consider.

It is long standing practice that one bench cannot tie the hands of another. It is also expected practice to give a defendant an indication of the type of sentence within wide parameters s/he is likely to expect. Thus recently when ordering a P.S.R. for a man of previous good character who had collided with a cyclist and failed to stop we indicated that the P.S.R. would exclude the possibility of a jail sentence. However after court, as we anticipated our legal adviser asked why we had not indicated an all options report. This annotation allows the sentencing bench to impose custody or send to the Crown Court for sentence. We had knowingly excluded that option for the sentencing bench and had effectively tied its hands. 

Until recently that action would have passed with little comment but in an example of how even the great and the good do not anticipate all the possible consequences of their pronouncements our L/A began to explain the opinion of one of the great and good of our legal superiors about the consequences of such actions. We stopped him in mid sentence...how the English language produces puns at short notice..and told him we were well acquainted with that advice and also its unintended consequences. If every report indicates that all sentences including sending to Crown Court are in the mind of the writers how can an overworked probation officer tailor a report to the two or three avenues s/he considers appropriate. In effect the court is crying wolf at every offender when perhaps only one in fifty is deserving of custody.

This controversy came to a head in June 2009 in the appeal 
B e f o r e :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE
Between:
NICHOLAS Claimant
v
CHESTER MAGISTRATES' COURT Defendant

The position that my colleagues and I took was based on experience and full knowledge. As my colleague Bystander in his blog has recently remarked with words to the effect that all benches are equal but some are more equal than others there are some colleagues who perhaps are just not up to the job of a modern J.P. One can only despair that a report of a Crown Court Judge earlier this week having had his hands tied by a magistrates` bench is another small nail in the coffin that some would like prepared for the magistracy in its current format.

WHEN LEGAL ADVISERS BARE THEIR TEETH

 28. Jul. 2010. – 11:19:43 

J.P.s are appointed on the basis of their possessing many of the qualities thought to be necessary to do the job. Whether the job template needs altering is another matter for another time. Although there are lawyers on the bench there are also many other highly qualified people and some not so qualified in academic terms. The legal adviser is there to ensure that decisions made by justices are lawful although that does not preclude a very small minority of decisions going to appeal. I myself have been on a bench whose decision on a property matter some years ago went to appeal at the Queens Bench Division; it failed. Over the fog of time I recollect that our legal adviser when told of our original decision was surprised but when she heard of our structured approach to reach that decision admitted it could not be faulted. And that is as it should be. In my opinion she performed her duty to the letter…..that her conclusion might have differed from ours had she been on the bench instead of in front of it is not relevant. 

These thoughts passed briefly through the space between my ears a couple of months ago when we were considering a case of possession of a bladed article. Unless a person has a specific good reason for having the item in his possession he is guilty. In addition that reason must also apply to the moment of possession. So a carpenter eg who uses a particular knife for his job but is found in possession on a Saturday night out is guilty but if he were in possession one morning driving his van between jobs the defence could apply. 

Our defendant, an illiterate Kurdish man in his sixties, had been found with a small fruit knife at the bottom of a shopping bag when stopped at a department store on suspicion of committing theft. His defence was that since he had severe untreated dental problems the knife was needed to cut fruit the mainstay of his diet. We were told that he made some money doing odd jobs here and there and he confirmed that he ate a lot of fruit at home and when he was out working because it was relatively cheap and nutritious but that he needed the knife as his teeth were so bad biting was almost impossible. At this point he demonstrated to all that his few remaining canine and incisors were very loose. The prosecutor herself was on shaky ground and this wizened old man held fast to his version of events. The total sum of the CPS evidence was the finding of the knife which was of course admitted. 

Some legal advisers take a more pro active approach to their role than others. It is my practice to tell the adviser that either we will ring for him/her when required or to allow a certain time before joining our discussions. I will certainly, unless the situation is very unusual, not invite the adviser to join us at the beginning of our deliberations; any legal advice being given in open court. 

In the above case we decided that there was a valid reason for possession and asked our L/A to join us as we began to write our reasons. He asked us to confirm that we had followed a structured approach to our decision and that we truly were aware of the legal interpretation of possession at that moment. We explained that we considered the “moment” was an ongoing event owing to the defendant`s continuing inability to eat fruit in the normal way and cutting small pieces was reasonable activity with the small kitchen knife. However instead of accepting our decision he continued in an attempt to change our minds. He did not succeed. Our decision making was based on a correct application of the judicial structure in which we all receive very high quality training and reviews. 

The L/A referred to above in the case that went to the Divisional Court accepted our decision when assured it had been correctly derived although she admitted her conclusion might have differed. She is now a Crown Court judge. There is a moral there somewhere. 

THE CPS & COCK UPS;HOW MUCH MORE?

 

23. Jul. 2010. – 15:34:43

Yesterday I sat in the video remands court. This is a fairly successful innovation using video technology to allow prisoners or defendants on remand to make common applications without having to be transported to court. Its undoubted success in saving cash and improving security….no chance of escape en route……..has led others high up the Ministry ladder to make the failed intellectual jump that video courts per se are the way of the future; they are not!

However even without the prisoner or defendant in front of us, yesterday`s sitting demonstrated the appalling state of the Crown Prosecution Service and its partner in crime; the Police Service. A prisoner was due to be committed to Crown Court. The due date was actually last week but CPS had applied successfully for an adjournment. Their problem was that there was a gap in continuity in the evidence trail. The charges were associated with possession of Class A with intent to supply and cash proceeds of crime. The difficulty as the Crown said last week was a gap between the drugs and cash and the defendant. The forensic evidence to tie them to the defendant had not been produced. On that basis defence counsel not surprisingly asked that the case be withdrawn. The prosecutor in fact reluctantly discharged the defendant meaning charges could be laid at some future time. However this character did not walk free; he was being held by immigration authorities pending deportation. This in my experience is not an isolated example of the proverbial cock up. The system is truly drowning in its own inefficiencies aggravated by low morale and reducing resources. In addition the atrocious decision yesterday not to proceed with the prosecution of the police officer seen striking Ian Tomlinson at the G20 demo last April is just the public tip of an iceberg of chaos. It is badly led, mal administered and dying a death of a thousand cuts. In every court in its jurisdiction every J.P. and judge has his/her own story to tell. Only when the next unfortunate case of its crass failures hits the headlines will note be taken......until then.........?

POLICE MISCONDUCT

 22. Jul. 2010. – 11:43:31 

Psychologists, psychiatrists, neurologists, biologists, physiologists singly, in any combination or permutation will confirm that we have at least two types of memory; short term and long term which explains why centenarians can remember their school days but forget to put in their hearing aid although I have to admit that the fellow beak who didn`t remember who was the defendant and who was his lawyer has sat with me on more than one occasion. 

Be that as it may it was whilst reading on BBC online that later today a decision * will be made on whether or not to prosecute a police officer with regard to the death of a newspaper seller at the G20 demo last year that possible unlawful actions by police in the execution of their duty and their outcomes reminded me of what I thought was a long forgotten trial I sat on three years ago; one case amongst many and one I had apparently completely assigned to my long term memory where it had lain dormant like the dinosaurs in Jurassic Park waiting to be resurrected with the correct stimulus. 

Two young Asian men had been stopped by a police patrol car in the wee small hours whilst cycling in a residential road in a high crime area. The outcome was that one of them was charged with assault of one of the officers in the execution of his duty. In their evidence the police officers gave conflicting reasons why they stopped the pair. The officer against whom the assault was alleged stated that the defendant was looking at the houses in a suspicious manner as they were cycling and he [and his companion] were stopped for that reason. The other officer actually denied that and stated that the reason was the high rate of crime in that area. So they were stopped and searched. The companion had in his possession a mobile phone which the officers told him was listed as having been stolen two years previously in a robbery. He was arrested, handcuffed and placed in the police car awaiting a van to take him to the station. The defendant was clean. He was told to leave the scene. He replied he wanted to stay around until his friend was placed in the van because he thought he had been treated with more force than seemed necessary…neither had offered any resistance. He was warned to go away. A second mobile phone in his friend`s pocket began ringing and the friend knowing it was his mother worried why he was not home asked him to take it from his pocket and answer it. As he approached the same officer to ask that he might do that the officer alleged that the defendant confronted him toe to toe and punched him. He was overpowered, handcuffed and taken to the police station with his friend in the newly arrived van. He was charged with assault on a police officer in the execution of his duty. 

At trial a third officer who was driving the car and who made the stop decision did not give evidence or have a statement agreed given in evidence. For the defence both young men gave evidence. Both were of good character and did not appear on the Police National Computer. In order for the charge to be made there had first of all to be a lawful stop and search under PACE. We were not convinced by the conflicting evidence of the officers in this regard. That rendered the arrest of the friend unlawful. We were told by the Crown that they accepted that he had indeed bought the mobile phone in good faith from a recognised dealer and he was released without charge later that day. Again owing to conflicting evidence from the police officers we found that the defendant had acted in self defence from an aggressive police officer who had stopped him the previous week for apparently no valid reason and been told he`d get him next time. This officer in his statement and in examination told us that he was punched in the chest; under cross examination he withdrew that allegation and said there was a failed attempt to punch him which was later denied by the defendant. In addition no evidence was produced that either party had been cautioned before arrest except an assertion by the second officer that the missing police driver had done that.

Not surprisingly this defendant was acquitted. Such cases leave a nasty taste in the mouth. When they occur, knowledge must filter back to a senior officer. I am unaware of what procedures there are if any to consider these results. Perhaps any police officers reading this might enlighten me. Cases of possible police perjury in minor cases or inappropriate conduct allowed to pass without comment could conceivably lead to more serious matters. Public confidence in policing can be achieved only when there is no doubt that at all levels possible misconduct is investigated. 

ADDENDUM 18.00 JULY 22nd
* The CPS have announced that no charges will be brought against the police officer who struck the blow filmed for the whole world to see against an innocent bystander at the G20 demo last April. Even at this distance chronologically and as the crow flies the Rodney King case in Los Angeles reverberates. I have a thought at the back of my mind that if the previous incumbent at the head of the CPS were still in office today`s decision would have been different. Over the next few days many lawyers are going to offer their opinions. I am dismayed that this decision has all the appearance of a conspiracy not to see justice done the important word being appearance. There is an old phrase, justice should not only be done; it should be seen to be done.

Today in the eyes of the public justice will be seen as not having been done. That is the failure of this cop out. 

FROM HAROLD SHIPMAN TO FRANZ KAFKA WITH MUCH IN BETWEEN.

 21. Jul. 2010. – 08:48:20 

Harold Shipman was a mass murdering monster. The system that was meant to oversee him was not fit for purpose. It did not have methods nor a philosophy to deal with such depravity. And as a result after innumerable investigations and edicts from high above Whitehall the practice of many professionals in many professions has been changed beyond recognition.

The resultant “tick box” culture is not a sharp journalist’s catchy phrase; it is alive and very well, kicking and screaming like a newborn baby. The Magistrates` Courts system is besotted with it for those employed by Her Majesty`s Court Service. Thankfully my colleagues and I are independent members of the judiciary and owe no such duties to the faceless number crunchers who believe justice can be analysed by a pie chart. However every so often a response sheet comes along for filling in. One such was an analysis of the post court review in the manner of a tick box series of questions. The actual review per se is an important feature to enable brief but frank discussion between and among bench members and their legal adviser to note any points arising in court which could usefully be dissected. For new colleagues especially this is an important learning event. But a year or so ago I was amongst the first chairmen on my bench in a pilot run at our court to be asked to fill in such a form after a sitting. I questioned the need for this with the chairman of the committee responsible for its introduction. I was told that, “We don`t approve of such formality and time wasting but unless we produce a negative impact result it will be foisted upon us”. This time wasting exercise quietly disappeared. Would that those who spend their expensive tax payers money producing such treats for those who are actually contributing to the efforts to make this country function efficiently disappear inside a big black hole.

There are more jokes about lawyers and the legal profession than most others. My favourite is the one about the client who asks his solicitor for advice on a very tricky subject. He gives his opinion but then says that to be 100% sure he must check the statute. He goes to the overloaded and crowded bookshelf, pulls down the appropriate volume and then reads chapter and verse to himself before assuring his client that his advice was rock solid. After accepting the offered thanks and handshake the lawyer asks him to pick up a pre prepared account from his secretary on the way out. Two minutes later the client returns exclaiming, “You`ve charged me £500 + VAT and all you did was take two minutes to look at a book.” “Agreed”, replied the lawyer, “but I knew in which line in which chapter in which book to look up.” Time spent on a job does not in itself guarantee the job done correctly….it`s the quality of utilisation that`s important. 

But back to Shipman whose legacy is a blessing for all those whose demise into the big black hole I would heartily endorse. 

Contacts within the optical profession have told me that in Scotland this form filling mentality has reached them where the rain rains and the wind whistles. Optometry Scotland the organisation responsible for running the optical department of the NHS there has reminded practitioners that they could claim payment only for a maximum of twenty eye examinations per seven and a half hour working day. This ordinance pays no regard to any variables including practitioner experience or equipment or any patient variables which number to n-1. Inspectors will check on individual practices to enforce compliance

I read yesterday that lawyers in Switzerland oversaw the opening of four safe deposit boxes thought to hold the most precious items in a collection of documents belonging to the great Czech writer Franz Kafka. Six other similar boxes were also opened in Tel Aviv by order of a court there. 

This most wonderful of writers of the last century was a Nostradamus for our times. In less than a century since it was written the characters in “The Trial” are alive and well in the U.K. 

FINE DEFAULTERS & DEBTORS` PRISON

 19. Jul. 2010. – 14:33:33 

There are some days with some people discussing some subjects when for days after one has an unusual mental itch that doesn`t seem to respond to any scratching. The only cure I have found for such a situation is to source as much material as one can on the subject that`s causing that much irritation.

And so it`s been for the last few weeks until I finally got round to trying to alleviate that intellectual itch. The catalyst was the announcement earlier this month that there was £1.3 billion give or take the odd few million outstanding in unpaid fines, costs, compensation etc. I was discussing with a colleague and old friend how we treat fare dodgers on our local suburban railway lines and she who sits in London was comparing fines imposed on London bus users who are caught fare dodging. Some of what she said was truly staggering. Two or three times a week a half day court was taken up with lists numbering up to eighty alleged offenders. The vast majority didn`t bother to send in a means form or indeed anything at all in response to the summons. Very few ever actually turned up; perhaps three or four at most. A first offence attracted fines and costs of £200+ for an offender who hadn`t enclosed any response. But what actually caused the metaphorical stagger was the admittedly small number of offenders who appeared never to pay a bus fare and treated the matter of subsequent fines as some slight annoyance. She recounted that at her last sitting in such a court out of about seventy offenders listed four had a history of previous similar offences in the last four years of a number in excess of twenty seven failures to pay. Now that was truly staggering. What was atrocious however was that most of the fines were unpaid. Some were indicated as having been passed to bailiffs but no further details were available to her or her colleagues. I asked her how much such offenders were fined in her court to which she replied a figure of £500+. She showed her frustration by ordering another double espresso. 

The body charged with collecting fines from London courts is the London Enforcement Directorate. Funny how these organisations have gone from “agencies” to “directorate” in a decade……….one could be forgiven for thinking KGB but at least the KGB got results. A recent page from its newsletter is copied at the end of this post.

The glaring omission in the information published is of course the totals of unpaid fines and their history. After all in a newsletter one doesn’t tell the troops of the failures; only the successes. 

There are two obvious results of this unbelievable inefficiency on the part of government agencies and their overlords. £1.3 Billion should be in the Chancellor`s treasure chest but of equal import is that these hundreds or thousands of non payers plus all the rest spread the word to others that there`s no need to pay a fine for fare dodging or other similar offences; it will disappear. And so help me….they`re correct. It`s difficult enough to put such defaulters in prison at the best of times but in the current climate this is the worst of times. Many US states jail fine defaulters at the rate of a $/day or similar without too much ceremony. It might sound harsh to those who consider that non violent offenders should be “sentenced in the community”. There used to be establishments known as debtors` prisons. For those described here they should be resuscitated!

Ministry of Justice Draft Structural Reform Plan

 18. Jul. 2010. – 12:45:28 

The Ministry of Justice recently published its Draft Structural Reform Plan. It would seem that lots of little elves in Whitehall have been working their little arses off since the election in May to produce this document. Depending on one`s point of view political or otherwise there is much to consider. The usual "camel is a horse designed by a committee" signs are still apparent:- e.g. sect. 5.2 says "Develop a mechanism to prevent unnecessary criminal offences".

However it will be in relation to this document that future changes will be judged. 

COURTS CLOSURES, LEGAL ADVISERS, OPINIONS & DUTY

 17. Jul. 2010. – 13:34:17 

For the country`s 28,000 magistrates the last few weeks have been little less than traumatic insofar as the proposed, probable or possible changes which have been mooted, hinted at or flagged up depending upon which adjectives and verbs suit your opinion on the utterings emanating from such sources as The Ministry of Justice, both houses of Parliament, Civitas, Inspector of Prisons, Chief of Probation, ACPO, The Law Society and Uncle Tom Cobley and all.

The Ministry is of course the major player and magistrates mere pawns. On one hand the Minister Jonathan Djanogly states his intention of improving efficiency of Magistrates` Courts by increasing their utilisation from 64% to 80%.... He apparently thinks that ”just like that” efficiency will be improved. Sounds more like the late great Tommy Cooper than a serious statement. The Minister either ignores or is ignorant of the myriad reasons why courts do not function at his targeted rate. Kenneth Clarke tells us “his opinion” is that short prison sentences do not reduce crime rates. My opinion is that such matters should not be decided by opinions but by analyses of statistics and reasoned debate with social scientists who can provide reasoned conclusions. Probation chiefs and prison governors and their respective unions are each struggling to rubbish the other as to “what works”. Duty solicitors and criminal lawyers are striving to offer competent and quality services to their clients whilst receiving ever reducing fees. 

Last week having a brief discussion with our legal adviser whilst our court was in the midst of its 36% down time as complained of by Minister Djanogly owing to CPS files having gone missing it was clear that this disruption caused by impending court closures is having a ruinous effect on him and his colleagues.. There are certain to be redundancies but in what form and under what conditions is unclear. It is also likely that increasingly District Judges will be used in place of J.P.s and that they will inevitably be served in future not with qualified legal advisers [barristers or solicitors as at present] but with legal executives or other lower qualified personnel. A career switch for legal advisers to criminal law practice will be virtually impossible for the foreseeable future. For these highly capable professionals dealing daily with a varying cast of magistrates to whom in court they must refer to as “sir” or “madam” the future must be truly depressing and terrifying.

The first duty of any government is the protection of its citizens from those abroad or within who would wreak terror in all its manifest forms from bombing to burglary. That duty requires priority over any “guarantees” to health services, education services, social services or any other “services”. That duty is manifestly being abrogated.

YORKSHIRE RIPPER WILL STAY INSIDE FOR LIFE

 16. Jul. 2010. – 17:01:11 

The Judgement by THE HONOURABLE MR JUSTICE MITTING has just been issued that the Yorkshire Ripper will serve whole of life behind bars. Unless this is changed on a future appeal I for one will not be sorry. A friend of mine who used to provide para medical professional services at said institution where he is incarcerated; Broadmoor, and to the killer himself told me that although there were always two "nurses" who were more weight lifters than angels of mercy with him when he attended Sutcliffe and Sutcliffe himself was always apparently docile he was advised but never ever to turn his back on him......

THE COURTS` FUNNY SIDE

 16. Jul. 2010. – 16:45:58 

Some court stories are so amusing they are almost unbelievable. This is believable because I was told of it by a reliable source who has previously supplied accurate information. Last December at a Magistrates` Court in the West of England an addict called Jason who had managed to survive until the age of 36 on the usual druggie`s fare of hot pot of heroin and cocaine casserole decided on a change of diet and stole a frozen turkey from a supermarket attempting to evade payment by putting said late chilled bird down his trousers. Needless to say it`s a chill wind which blows nobody any good. Fined £50 + surcharge + costs he was deemed time served from his time on remand……one could say he went cold turkey….

And then there was the case of the Albanian who claimed that English food had changed the shape of his ears. Perhaps he will live long and prosper and then again perhaps he won`t. This might sound ridiculous but it`s true.

Now another case you just couldn`t make up……One of our fellow citizens whose lawyer mitigated by telling a southern Bench that although his client was an opiate dependant mechanic he usually managed to keep his habit under control especially when he was doing his work as a car mechanic…..seems he was the only one who`d come off the rails by failing in a sticky attempt to steal £40 worth of sweets from a local supermarket. Perhaps whilst he is on unconditional bail awaiting sentence he should endeavour to check if he should be insulin dependant……..

And then yesterday in the video remand court the last case listed was a gentleman charged with TWOC……taking a vehicle without consent in 1989!!!!!!! This was a late addition to our list and apparently after extensive enquiries the relevant authorities discovered that the suspect was serving life for murder somewhere in England. At the close of play the prison had confirmed his residency but it was too late to see justice done. Next week the CPS will inform him that “with his consent” the case will be dismissed…….I doubt he`ll offer any objections……..better late than never. 

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.