MAGISTRATES CAN BE INQUISITORIAL IN THE INTERESTS OF JUSTICE

 27. Sep. 2010. @ 11:39:30 by TheJusticeofthePeace

In France and other jurisdictions where the justice system is inquisitorial as opposed to the adversarial system in the U.K. there is an office of investigating magistrate. And as it says on the tin that person takes an active role in the investigation and court proceedings. Judges and J.P.s take an impartial role in the presentation of a criminal case and its defence. There are, however, occasions in a magistrates` court where intervention is not just allowed but necessary in the interests of justice. Frequent examples which come to mind are where a witness is being badgered by a lawyer prosecuting or defending or where the lawyer is insensitive to a witness`s ability to comprehend a convoluted question whether that lawyer`s insensitivity is by accident or design. The cause for intervention in such cases is relatively simple to make. But matters are never always so straight forward.

Many non Crown Prosecution Service offenders are brought to a magistrates` court. Examples are RSPCA, TV licensing, transport companies [fare dodgers], trading standards [fly tipping, health and safety etc ] , local authorities [council tax defaulters] etc etc

One afternoon about a year ago to the day I was sitting on one such prosecution. The prosecutor in her opening told us that her only witness, the investigating official, would read his five page statement and she would be relying on a bundle of over 200 pages as her evidence. We duly heard the official and a brief glance at the bundle showed that in addition to the official`s statement it was divided into three complainants` statements, the defendant’s interview, documents directly connecting the offender with the alleged offences and his various bank accounts over the specified period. Defence council had little upon which he could defend his client during cross examination of the official. His client who was not the sharpest knife in the drawer duly did his best under cross examination which was not approaching a Perry Mason standard. We retired to read the bundle telling those involved that we might have some questions for the defendant.

Much of the material in the bundle was totally unhelpful and unnecessary. We had to hunt for the pearls that the prosecutor had told us would be the basis for her case. We duly did find documents which appeared to link the defendant with the offence. Our concern was that they although they had been exhibited neither lawyer had pin pointed them. We decided that in the interests of justice we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail overruling objections from his counsel.

He was found guilty. At the post court review our legal adviser anticipating the tone of the discussion assured us that our inquisitorial approach was, in this particular case, perfectly lawful. He agreed that the prosecutor was failing in her duty when she attempted to rely on a huge bundle without further probing. He added that he would have intervened if we had been overstepping the mark.

Chairmanship of a magistrates` bench is an art not a science although the drafters of the so called competences required and the resultant appraisals techniques would seem to argue otherwise. J.P.s` awareness of when sensitive questioning of a witness is useful is not in the instruction manual but it is in the interests of justice.

IT`S TIME TO END DEFENDANTS` RIGHT TO CHOOSE

 26. Sep. 2010. @ 14:01:12 by TheJusticeofthePeace

On Nov 21st last year I commented that it was time to say goodbye to either way offences. It is not a view commonly held by lawyers. In no way of course am I suggesting that consideration of financial incentives by possibly extending the life of a hopeless case is in the minds of criminal practitioners. They are concerned with the inalienable right of trial by jury. Aside from practical objections the logic behind this assertion has always been misplaced. If the “right” is inalienable the offence should be indictable so that there is no doubt the defendant will be able to have his “right”. This is clearly nonsense and requires no further discussion. The unquestioning “right” logically should mean that summary trials are also against this “right”. And the most obvious reason to consign this so called “right” to the scrap heap is the fact that District Judges [MC] and their predecessors Stipendiary Magistrates have presided for decades as sole arbiters of fact finding and also as sentencers. Rarely is there a criminal lawyer who favours the abolition of either way offences. 

In not so many words that opinion is voiced by judges at crown courts more often than is reported. One such report in Carlisle last week sums up neatly the anomaly of either way offences. The defendant was charged with theft to the value of £30 and elected trial by jury instead of summary trial at magistrates` court. Doubtless his legally aided lawyer had given him his best advice throughout such that he changed his plea to guilty on the day of his trial. 

This time of deficit cutting must be the opportunity to pull the teeth of the Law Society and the Bar and end this anachronism of either way offences although with so many lawyers in parliament who regularly fail to oversee the passage of contentious or badly drafted legislation I have my doubts. At a minimum the mode of trial should be available solely to the bench or District Judge who can accept or reject jurisdiction. 

Cost cutting is often an excuse to fly in the face of good practice. In the case of either way offences being abolished or at least the defendants` choice being abolished the opposite would hold true……..good practice would force out bad.

ASBOs - THE END

 25. Sep. 2010. @ 15:35:44 by TheJusticeofthePeace

Anti social behaviour is getting out of hand. In plain English that is the opinion of somebody who ought to know; HM Chief Inspector of Constabulary, Sir Denis O’Connor. And “hand” is the operative word. The hand is used for control whether by finger wagging or application to the side of the head by a policeman in the 1950s. 

Since the liberating 1960s revolution control and its bedside companion authority have been eroded. Teachers, park wardens, bus conductors and the next door neighbour etc have steadily had their ability to exercise mild restraint over anti social behaviour eroded in the rush to remove all barriers between the government and the governed. The discretion of police officers in their application of the law has been all but removed. At all levels police backsides are being covered by an ever increasing paper trail. It cannot continue.

Robert Peel set up the first professional police force in the world in London in 1829 with its prime principle or directive “to prevent crime and disorder”. Although Theresa May is scrapping The Police Pledge” looking through the Met`s eleven pledges on its website not one can be loosely translated as being equated to Peel`s Principle. The police have forgotten why they are needed. There`s much more chance of an individual being mugged, harassed, assaulted, robbed or burgled than being a victim of a dozen 9/11 atrocities. David Cameron is advocating local this and local that for local people. He should take a further step and investigate splitting our police into the French style of local and national. 

ASBOs were sired by Tony Blair out of Labour whilst in opposition and became law in 1998. They are entirely negative insofar as correctly written they prohibit activities as opposed to encouraging any beneficial behaviour. An ASBO is a civil disposal breach of which is a criminal offence punishable by a rarely given maximum of five years` custody. 17,000 have been issued since 1999. 2008, the last year for which figures are available, had 2027 issued; the lowest yearly total since their introduction. The conclusion is that police are not pursuing miscreants or the yobs are improving their behaviour. I know which possibility I hold responsible for the decline. 

About half of ASBOs are breached and about a third are breached five or more times. Research has indicated that in general those who breach court orders eg driving whilst disqualified are much more likely to go on to commit very serious offences cf the general population. With ASBO breachers about one quarter proceed to serious offending. The Justice Secretary Kenneth Clarke wants to dispense with short sentences and punish/rehabilitate in the community. Theresa May, Home Secretary, has declared ASBOs are past their sell by date. Magistrates know only too well unless there are resources available to turn {mainly} young lives around from disordered to ordered the outlook is bleak indeed. 

A recognition by Sir Denis that the target culture so beloved by Labour when in office and shown to be responsible for much that is wrong with the NHS must be replaced by pro active policing where it matters most is welcome on the basis of better late than never……..on the streets on Friday nights, outside schools at 4.00pm and regularly patrolling singly instead of in pairs which is beginning to be the norm. Let the Mayor of London buy another 6,000 bikes for bobbies; that would be better for Londoners than any number of 3 litre BMWs.

A problem cannot be resolved until it is recognised as such. This is a beginning.

3 MAGISTRATES SEEM FAIRER FOR A DEFENDANT THAN A SINGLE D.J.

 

24. Sep. 2010. @ 08:22:23 by TheJusticeofthePeace

There are various arguments for the increasing deployment of District Judges [magistrates` courts] throughout the country. Indeed a few months ago there was indignation amongst J.P.s when advertisements were published seeking applicants for thirty new appointments; since modified to thirty applicants to be available if the need arises. I will not rehearse now these arguments but a case from the retiring room will, I hope, illustrate why a bench of three is a safeguard for every defendant.

A few weeks ago a middle aged Kosovan man was in the dock. He had pleaded guilty many months and appearances previously to driving with excess alcohol but had put forward a “special reason” defence of having had his drink spiked by a fellow countryman. He had admitted to drinking two glasses of wine but claimed that a further non alcoholic cocktail had had alcohol introduced to it without his knowledge. A previous bench had set a date when his case would be tried. He had indicated that he would call two witnesses. As is usually required in such matters an expert would prepare a paper and give evidence on the ramifications of the spiked drink. The other witness, the court notes indicated, would be the person who did the spiking! Represented by the duty solicitor on his last but two appearance he agreed to the directions re the witnesses and a date was set. On his next appearance alone he had told the court he could not afford to pay a lawyer and also to pay for the expert. A final date was set when he appeared before me and my colleagues. He duly turned up with a barrister who explained why he was asking for a further adjournment.

Firstly he was at pains to tell us that he was mindful of costs to the public purse if we refused his application and he had to appeal at Crown Court. He was told that the court appreciated his concern for the Coalition`s problems in reducing the deficit and then allowed him to continue with the irony not lost on him. Apparently the “spiker”, we were told, had just lost his mother and he had left two weeks previously for Kosovo for the funeral. “When had he been made aware of his witness`s inability to attend”? was the question put. After some hurried consultation we were told that the previous day the witness’s wife had phoned the defendant telling him her husband had left England. Confirming that the witness was Moslem an observation was made that such funerals are conducted usually within twenty four hours. It also appeared unusual that the wife had not returned to Kosovo. The excuse for the non appearance of the expert again was that the defendant could still not afford to employ both a lawyer and the expert but he assured us he would have the money in a few weeks.

Our bench was split. It was our final decision that the application be granted; the expert submitting his report within six weeks and a recommendation that apart from acts of God the matter would go ahead on the next occasion. So this drink driver will retain his license for another couple of months until his defence is tried. If he succeeds he carries on; if not he will be disqualified for at least twelve months.

Colleagues reading this and others also might consider whether or not the bench was naïve in making the decision it made. My point is not the decision itself but that it was made by three people. A District Judge might have taken one position or the other but for defendants a jury of three is more of a safeguard against a rogue decision than a single individual acting as both judge and jury.

JUDGEMENT AT CHESTER CROWN COURT

 22. Sep. 2010. @ 08:41:30 by TheJusticeofthePeace

All judges and magistrates must pay heed to the guidelines published by the Sentencing Council. Ancillary considerations eg suspending a jail sentence or activating all or part of a suspended sentence are a matter for the sentencers` judgement……..that`s why we have judges and magistrates. Magistrates` sentencing powers are with few exceptions limited to six months` custody. When a bench considers that an offender might warrant a term greater than this s/he is sent to the Crown Court to be sentenced by a judge.

Such was the recent case of Billy Perks who was sent to Chester Crown Court for sentencing after offending whilst under a suspended sentence order. From the details given it would seem a judge would have been likely to have activated all or part of the S.S.O. His honour thought differently and allowed the offender to remain in the community.

Two conclusions come to mind. The judge erred in being so lenient and should have activated all or part of the S.S.O. There is no reported reason for the judge`s decision. He also tied himself if not his fellow honours by telling Perks he will certainly be imprisoned if he appears again. Such a decision at this distance appears to require an explanation or an appeal by the Crown Prosecution Service.

Before the election Jack Straw, Labour`s Justice Secretary, observed that over 20,000 cases sent for sentencing to the Crown Court by magistrates resulted in sentences within the magistrates` powers of six months` custody and so could have been retained. Perhaps he should have looked at their honours` disposals to seek answers. Is it too much to hope that his successor Kenneth Clarke will undertake that task?

IT`S ALL RELATIVE

 21. Sep. 2010. @ 13:56:44 by TheJusticeofthePeace

Everything in this world is relative. Whether large or small, fast or slow, widespread or rare, black or white, rich or poor, ugly or beautiful, deadly or benign and nowhere are these contrasts more fiercely debated than in the punishments allowed under the criminal law. And when these punishments are in the form of a fine the comparisons are often surprising.

Driving without insurance is a very common offence to come before a bench. Disqualification is available for serial offenders or where the circumstances demand that the public should be protected from that offender being on the road but it is more usual to punish by points on a license and a fine which although theoretically it could be as much as £5,000 rarely exceeds a tenth of that because it is based on income declared. For an offender pleading guilty [and there`s rarely an alternative if the police have done their homework] the fine is equal to about a week`s wages after tax and in the case of somebody on benefits it is unusual for the fine to exceed £200. 

However as I wrote earlier; everything is relative.

Consider a dog owner who allows his dog to crap in a Manchester park. For those who have had the pleasure of seeing their children playing in a park, jumping, skipping, kicking a ball these activities are often balanced against the thought of what muck is hidden in the green grass. Toxoplasmosis, a very nasty disease, is often transmitted to children from dog faeces in parkland. Dog Control Orders were brought in under statutory instrument in 2006. They allow councils to impose fixed penalties or fines on dog owners whose dogs amongst other things are allowed to crap in the park. 

Two such cases were reported recently having been dealt with at Manchester Magistrates` Court. Fine and costs totalling almost £1,000 in one case and a little less in another were handed out. There is no knowledge of the offenders` incomes as they were tried in absence but it can be assumed about £300 - £350 per week was used in calculating the fines which cannot exceed £1,000. 

Dog fouling is nasty! Rogue dog owners deserve every sanction the law provides but so do those who drive knowingly with no insurance. To paraphrase Albert Einstein; “It`s all relative.”

ROBBERS & J.P.s GO TO COSTCO

 19. Sep. 2010. @ 11:24:19 by TheJusticeofthePeace

Last week a friend asked me whether membership of Costco is worth it. I`ve been a member for quite some time so of course I said it was. As I`m partial of an evening to a spoonful of the amber medicine to help the sugar go down I usually make my visits when my stock is down to my last two bottles. And today`s the day. But without having to have a blood alcohol level that would make the doctor faint when he tried taking some am I the only person associated with criminal law who has thought how to commit the perfect murder? So far I have a few victims in mind and I`m working on the rest of the plot especially of course how to get away with it. So just a few brief stories about how some really stupid people have no idea how to break the law and get away with it. 

Two brothers with three others were involved in a shooting whilst robbing a Costco in South London. So what do ruthless armed robbers do after the event? Of course they take pictures of themselves holding some of the cash; just like Bonny and Clyde. Nobody`s going to make a film of these brainless barbarians or eulogise them in song a la Georgie Fame. No! It`s just years behind bars. 

If the key to a criminal`s planning is to forge signatures for personal gain one would think the last signatures he would attempt to copy would be those of not just one judge but two of their honours and not content with those, also a police sergeant’s to boot. Numvi Divine, aged 37, was jailed for five-and-a-half years at Sheffield Crown Court.

Well, I`m off now to Costco. 

A TOTTER IS A TOTTER IS A TOTTER

 18. Sep. 2010. @ 14:04:21 by TheJusticeofthePeace

I have frequently commented that deterrence is a major plank in any criminal justice system. Not only is the deterrent effective at the top end of criminality where thresholds breached can mean the difference between some or many years in prison; it applies at all levels of unlawful behaviour. Of course the greatest deterrent was the death penalty. Apart from the humanitarian arguments, as a very young person I remember the proponents of abolition arguing that a life sentence would be every bit as effective a deterrent against murder as death by hanging. Although there is absolutely no likelihood of capital punishment being re-instated unless we ever elect a fascist government statistical evidence suggests that it was indeed a more effective deterrent than any supposed life sentence. 

However if the argument of the effectiveness of deterrence is brought within the compass of everyday life nowhere is it more in the minds of ordinary citizens than when penalty points are accumulated on a driving license. 

Twelve points within three years and bang goes that permission to drive for the next six months. If only legal life were so simple. It isn`t, and lawyers make a tidy living from trying to persuade magistrates and judges that the get out of jail free card should be applied to their client. On May 15th and September 6th I discussed at length “exceptional hardship” by which a 12 pointer can escape disqualification. Nowhere in the legislation and case law can I find that that get out scenario can be applied to an individual because he is a very religious and/or good man as a certain Ms C. Blair pronounced on a defendant to whom she gave a sentence outwith normal guidelines and spared him from prison. She was later cleared of misconduct by the Appeal Court. 

Recently Bournemouth Magistrates` Court decided that a defendant who had accumulated twelve points would not be disqualified. Exceptional hardship did not apply. The defendant, chest surgeon Khalid Amer, escaped a ban because the bench decided that patients could die if he were disqualified. In my opinion this was a wrong decision in law and an atrocious decision morally. In simply practical terms the defendant presumably was able to afford to hire taxis or drivers when required and even put the costs down against his income for tax purposes. The bench has set a level where their version of the law takes a social stand on the worth of the individual to society. Equality before the law is a necessary adjunct to a just society. Who else will these magistrates consider in the future to be so necessary to the community that they will apply the same misguided judgement?……a priest caught speeding to administer the last rites to a dying parishioner?.........or any number of totters who are unable to claim exceptional hardship but are worthy members of the community whose loss of their license will be detrimental to society? 

Justices of the Peace are selected from “the community”. Therefore we are in general prone to occasionally deviate from accepted procedures. I can only conclude that in this instance with the approval of the legal adviser emotion overwhelmed reason and logic. Mr Amer`s case was rightly considered as not being within the definition of exceptional hardship. Mr Amer was exceptionally lucky!

MAGISTRATES` ASSOCIATION RESPONSE TO COURT CLOSURES

 

16. Sep. 2010. @ 11:42:27 by TheJusticeofthePeace

Consultation on the great court closures document ended yesterday just as I returned to a damp cool sodden English airport where exiting the car park was enabled by a friendly wave from a local taxi driver who having deposited his passengers seemed to be in no hurry to return to his cab office. When the majority of us use the roads in the full knowledge that with all the obstacles in the way of a speedy journey letting another vehicle into the traffic stream isn`t going to slow us by more than a micro second there is still much to be proud of being British whatever sub divisions the bureaucrats would divide us into. 

I commented not so long ago that individual J.P.s should resist the urge to give interviews to the media on their opinions of the proposed court closures. Of course such advice was ignored. From the so called elected officers of the Magistrates` Association to various busybodies around the country we shall fight on the beaches, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, rhetoric was being heard from north to south and east to west. One result of all this is the self serving sight of so many M.P.s using this controversy to further their own column inches of self serving toadiness to ingratiate themselves with their constituents. After all how many local people would take umbrage against such outspokenness? 

However in Wales there is a glimmer of honesty in this debate. Labour politicians against closures, and most of them are, are eagerly pointing fingers at Coalition M.P.s who are of the same opinion. It seems to me that there are very few M.P.s if any who have come out openly in favour of closing courts in their own constituency. 

The M.A.`s response has been to use a shotgun when a sniper rifle was the weapon required. My own local M.A. representative who is well aware of the democratic shortcomings of the Association sent the M.A. response by e-mail to all members. This commendable action was not universal. There is a link on the M.A. forum for members to judge for themselves. At a suitable time I will publish it here.

NOT A GREEN AND PLEASANT LAND

 14. Sep. 2010. @ 19:39:28 by TheJusticeofthePeace

I had not intended blogging from this parched land where green is a very interesting colour but a story I was told by my guide Omar, an educated middle aged man of liberal ideals in a state where the minimum requirement for acceptance is only an almost basic literal lip service to Islam changed my mind. Omar had spent a year of his post university training in Norwich and was not averse to a cold beer in the appropriate circumstances.

During one of our walking tours in a large regional town where the poverty of the majority contrasted with the Mercedes S class of the few I enquired whether there was any likelilhood of group reaction to seek a better life or did the poverty stricken still accept their fate as being in the hands of Allah?

He told me that just before Ramadan there was an incident that for him summed up the situation and would be easily understood by a westerner making his first visit to a Moslem country.

Apparently local taxi drivers had found amongst themselves a local bigmouth who was trying without much success to induce the municipality to limit the number of owners of old bangers going into the rip off the tourist taxi business. He and three others had discovered that a wealthy well respected American journalist had employed a non taxi driver to drive him around in his new Audi 8. As a warning to others the taxi drivers had cornered him one night, verbally abused him and behaved uncharitably but according to Omar had not inflicted criminal damage on him or his Audi.

The next day bigmouth was arrested and since this was at the beginning of Ramadan he was held without charge and released just a couple of days ago. His associates did not visit him or make any enquiries as to his welfare. Omar explained that since each one of his fellows in this country believes that with the will of Allah he too can achieve an Audi 8 each fellow will climb over the back of all others to get there.

I noticed that my own driver, [not Omar] decent fellow though he was, treated every other driver, cyclist, man, woman, child as though each barred his way to paradise. A drunken Roman cabbie was a veritable paragon of automotive virtue in comparison.

I`m far from being politically expert or knowledgeable but when and if Islamic marxism becomes an entity if it does not already exist in some corner of some mind we will have a problem currently inconceivable.

Assuming that kindly old Irishman Mr Ryan has not sold my seat for a fistful of dollars or charges more than a few dollars more for all the crap I`ve bought at special prices just for me I look forward to a rain soaked airport very very soon. 

WILL ENGLAND FOLLOW SCOTLAND AND ABOLISH SHORT SENTENCES?

 08. Sep. 2010. @ 08:46:40 

It is often discussed whether events or people change the course of history. I make no effort to answer that question but certainly governments by their actions or inaction affect the flow of history and nowhere apart perhaps from the war in Iraq have events been changed between 1997 and now with more repercussions for Joe Public`s Scottish cousin Angus Public than in Scotland after devolution.

Recently the Criminal Justice and Licensing Bill [Scotland] received Royal Assent. Amongst other measures in future children under twelve will not be tried in the Adult Court. The previous age was eight. In England and Wales the age is ten. Recent high profile cases involving children tried under English law in the Adult Court have attracted much criticism. And that leads to the other major change soon to be effected north of the border; short term sentences under three months will be abolished in favour of “community payback”. This for me is truly disturbing. I am firmly in the “prison works” camp. The arguments for and against are well known and don`t need repeating here. 

When a momentous radical step such as this takes place it is almost impossible to reverse the decision even when rational argument for a change back is virtually unanswerable……..the altered situation has become the norm. Examples which come to mind are the NHS mantra of no charge at point of care or some such similar phrase or the British police is not an armed force. In both cases policy changes are activated through the back door. 

Often where Scotland leads England follows. I sincerely hope that with short sentences the exception will prove the rule. 

AN INSIDER SPEAKING OUT

 11:18:06 by TheJusticeofthePeace

As part of the fall out resulting from the proposed cash squeeze being imposed by the Coalition, the Ministry of Justice and the Home Office are deserving of the opprobrium being heaped upon them both from those controlled within their addresses at SW1 and those without. In the former category it seems that police and magistrates are falling apart at the seams in efforts to put the divergent viewpoints of both organisations.

Police chief has followed police chief in announcing impending Armageddon in our towns and cities. Using florid descriptions of what reductions in police officers would mean on the mean streets of Britain we should be prepared to lock up not just our daughters but everything moveable. If ever there were a case of trying to frighten the populace this is it. Forget the almost weekly reports that somewhere a police officer has been suspended or is being investigated for theft, assault, fraud, dangerous driving, rape, excessive overtime or whathaveyou the fact that they might have to increase their efficiency with fewer personnel is going to be ruinous for public safety. That is police chiefs with the exception so far of Tom Wood, ex police chief and former deputy chief constable of the Lothian and Borders force. 

In the Sunday Scotsman Sep 5th he argues that
"Inconvenient though it may be to the police federation argument, there is good evidence to suggest that crime rates rise and fall due to a number of socio-economic factors, with police numbers and efficiency having only a marginal effect." 

Whether serving senior officers would speak as freely as Mr Wood is doubtful. The pattern is to keep one`s mouth tightly shut until the first pension payment hits the bank account. But nevertheless I commend Mr Wood for his outspokenness.

Outspokenness is not a description deserving of praise that I would apply to the elected officers of the Magistrates Association. Both the Chairman and a Deputy have been justly criticised by many of their colleagues for their apparent approval of Courts in derelict shop premises in shopping centres from London to Manchester. They have tried vainly to backtrack. In addition it appears that another Deputy Chairman, one John Fassenfelt, has used an interview in the Kent News to propagate what appear to be his personal opinions on ASBOs when discussing government proposals to close magistrates’ courts in Ashford and Swale. He is certainly competent to discuss the Association`s policy on the proposals but his apparently personal opinions on the law published as they have been are given additional and undeserved weight by his office. In addition it appears that he is in direct contradiction of advice set out for Magistrates by the office of the Lord Chief Justice of England and Wales under the title “Useful Information for Magistrates”. I quote an apposite couple of paragraphs below:-

What should I do if I don’t agree with a law that has been passed? 

All magistrates are required to obey the law and to enforce any law that is enacted. If you were to break any relevant law enacted by Parliament, or to refuse to enforce it, this would be likely to constitute conduct incompatible with the requirements of your office. If you believe you cannot enforce any relevant law, then you must immediately inform your Justices’ Clerk.

It is also important that magistrates maintain the dignity, standing and good reputation of the magistracy at all times. Those found to have brought the magistracy into disrepute are liable to disciplinary action. Before deciding to express in public your personal views on any sensitive or controversial issue, you must consider carefully how your position might be perceived by those who come before you in court, and the implications it might have for wider public confidence in the administration of justice. 

It is a pound to a penny that unlike some of his fellow J.P.s Mr Deputy Chairman Fassenfelt will not be disciplined more`s the pity. The rules do not exempt officers of the Magistrates` Association when they comment in an undisguised personal capacity. He should learn when to hold his tongue. 

Since these proposals on court closures have seen the light of day J.P. upon J.P. has been quoted in local press about the iniquity of his/her local court being closed with local M.P.s jumping on the bandwagon. I have opined that J.P.s should shut up and allow nationally elected officers to put forward realistic counter proposals. For M.P.s it`s a win win situation for even the most reticent of our representatives to ally themselves with anti closure big mouths. As I blogged August 25th even Maria Eagle M.P. a former Justice Minister has misrepresented the facts to gain a few political brownie points. 

I can comment on police matters as an interested outsider. I comment on matters concerning the Magistracy as an insider. And as an insider I despair of the organisation which purports to serve my interests. 

EXCEPTIONAL HARDSHIP IN RELATION TO DRIVING DISQUALIFICATION

 11:02:22 by TheJusticeofthePeace

Magistrates know all about exceptional hardship as it applies to driving disqualification……….or at least they should know and if they are deficient in that department their legal advisers ought to know. However the Sunday Times in its article on this subject yesterday threw some doubt on those assumptions. As that newspaper is now behind a paywall no link can be given but I can list below the two salient facts the newspaper quotes.

I devoted my blog of May 15th to this topic. What follows is a more detailed analysis.

Legislation regarding disqualification for totters allows magistrates not to disqualify or to reduce that period only if they are satisfied having regard to all the circumstances that there are grounds for mitigating the normal consequences of the conviction the most common of which put forward is the potential effect of the disqualification on the offender namely that hardship would result. Section 35{4}(b) of the RTOA 1988 precludes the court from taking into account “hardship, other than exceptional hardship”. There is no strict definition of this term.
The Sunday Times amongst other things quoted the following facts:-
31,110 drivers disqualified for reaching 12 points in 2009
11,228 is the number of drivers reaching 12 points not disqualified in 2009

Practice suggests that the loss of employment by itself is unlikely to satisfy the “exceptional” test. Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospects [per Lord Hope in Brennan-v-McKay].

It is important to note that offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within three years of conviction {sec. 35(4)(c) RTOA 1988} It follows that detailed court records must be made of the exact circumstances which justified any finding of exceptional hardship.

From the above figures more than 26% of drivers accumulating 12 points were allowed to continue driving under the exceptional hardship guidance. From my own experience I find that ratio astonishing. The conclusion on the surface appears to be that misplaced application of the guidance is possibly being applied. Perhaps more formal guidance is required from our lords and masters.

DISQUALIFICATION IN ABSENCE

 12:49:05 by TheJusticeofthePeace

When I were a lad and you couldn`t go down the mines until you were twelve years old …..when you could take a knife into the street and give it to a grimy man treadling a machine that resembled your grandma`s sowing machine and he would sharpen it for sixpence…..when every few months the totter would stop in the street, give his horse a bag of hay and ring a bell for any old clothes or what have you for which he paid a few pence or a shilling or two if you were a haggler. These days epitomised in the series Steptoe and Son arguably the best comedy characters ever on T.V. came to an end about twenty years ago even in Shepherds Bush. 

Talk of a totter nowadays and it means one thing and one thing only…….somebody disqualified from driving for collecting 12 penalty points within a specified period. A moot point is the act by a court of sentencing in absence, i.e. when for whatever reason the defendant is not in court to hear the pronouncement. Where I sit and in line with my personal preferences we do not do this on a matter of issuing a driving ban. If the summons to appear is disregarded a warrant is issued. However that is not mandatory practice. 

A couple of weeks ago we had before us Kevin, mid twenties, who would probably describe the term “good night” as downing ten pints and finding his own way home. He was unrepresented and appeared before us on a charge of driving whilst disqualified and consequently also charged with driving with no insurance. All insurers have clauses in their policies which render the policy null and void if the driver is not qualified to drive. When asked to plead his reply was “Not Guilty”. When he was asked on what grounds he was so pleading he told us he didn`t know he was disqualified and after gathering what wits he possessed he produced a letter from the court involved enquiring about the non payment of £200+ in fines and costs for the original offences for which he was disqualified some four months previously. It was explained to him that ignorance of the law is no excuse for breaking it. Unsurprisingly he changed his plea to Guilty when he was told the benefits of avoiding a trial at which he was unlikely to be acquitted.

Because Kevin declared he was on Benefits we were obliged to consider his income as £100 per week and with his plea he was fined a week`s “wages” i.e. £100 plus costs and a lesser amount for the no insurance. He had a further disqualification period of six months imposed. 

For various reasons there was no sympathy on the bench for Kevin and his assertion that he was unaware because he had not received intimation of the hearing at which he was disqualified. But it is not difficult to imagine a scenario where such sympathy might exist. Courts which do not follow our practice should consider doing so. Justice must not only be done it must be seen to be done and that in my opinion includes ceasing the procedure of disqualifying in absence unless under the most extreme of situations where the alternative is not practicable or puts the public at risk. 

COMPLAINTS AGAINST THE POLICE

 15:23:05 by TheJusticeofthePeace

Anyone whose career or job involves direct contact with members of the public, [ and I include myself in this group] as opposed to being hidden away in the corner of an office with a keyboard his/her only contact with the outside world, is well aware of the pressures that can arise when confronted with irrational, bad tempered, depressed, ignorant or violent people and that`s on a good day. 

When that job is as a police officer the temptations to use the authority of the uniform when, as is a major part of policing, in a confrontational situation, must be considerable. More than once I have encountered rude police officers who have adopted a threatening attitude because I have politely questioned an instruction whether sitting in a car whilst somebody is emptying the boot or some other equally innocent and seen to be innocent activity. It is when in contact with law abiding citizens that a police officer is most likely to be perceived as unnecessarily aggressive. The trouble is that when the job requires dealing with villains who could be peaceful one moment and uncontrollably violent the next a distinction between them and the rest of us must be difficult.

And so it seems for 2000 of the men in blue. According to reports in today`s Belfast Telegraph and the BBC that is the number of police officers who have had three or more complaints made against them in the last year. There are about 160,000 police officers in the U.K. so it is a fairly small proportion of the whole. 

This information was made under a Freedom of Information request. Why on earth do authorities such as the police force in general not make public this type of information without its having to be dragged out of them? That truly would increase people`s respect for those organisations complying. 

I note that a certain Mr T.Blair has been quoted from his newly published memoir that of his time as Prime Minister the F.O.I. Act is one of his regrets. He says it is not practical for good government. Given that most libertarians would assert that the F.O.I. Act was one of the most significant innovations of recent times for the ability of the individual to challenge an authority gone awry this revelation is quite amazing for a Prime Minister who presided over the most authoritarian government since 1945 that Act being a notable exception which did not prove the rule.

FOOTBALLERS PLAYING AWAY

 31. Aug. 2010. – 16:38:40 

It seems it`s as natural for a famous wealthy Premier Division footballer to play away from home as it is to have at least a Ferrari and a Range Rover in his garage. But sometimes he leaves his garage door open when it should be firmly closed. 

So the third England footballer in recent months [not Mr D.Beckham] has successfully sought an injunction to keep his identity secret with regard to alleged shenanigans, doing his bit for England, something on the side or whatever slang is favoured for the description of somebody`s bedroom frolics becoming as widely known as the frolicker himself is known. And that`s the rub………how well known must the individual be before he is availed of this cloak of invisibility? With footballers is it a case of measuring the column inches written about them and anything less than two feet in the last twelve months has no chance of convincing his honour. For those playing in the Championship, have they lost any possibility in such a circumstance unless they play for a newly relegated team? The legal arguments are for others to comment upon but in my humble opinion those who leave their garage open and who live by the sword of public exposure should die by that self same sword. 

CRIMINAL LIFE IN 2010

 30. Aug. 2010. – 23:07:46 

There is a dearth of interesting news and other pressing matters over a Bank Holiday but viewed collectively a few snippets noticed over the last week or so arguably provide a greater insight into the criminal activity that takes place day in day out in every village, town and city in this country than the headline events.

I discussed drugs in prison on January 31st. A recent report concerning Craig Inches prison in Aberdeen commented upon by Shadow Scottish Justice Minister and North East MSP Richard Baker revealed that drugs finds at Craig Inches have doubled over the last 3 years. Of course the conclusions are perverse. With a fixed amount being brought in to the prison it could be said that detection and seizure have improved considerably but as the usual opinions are that drug seizures are a relatively fixed proportion of the total smuggled amount, in such a situation one might reliably conclude that the problem is getting out of control in this prison especially when the increase nationally of such seizures is just 12%. It is difficult to dismiss the thought that the prison drug problem in general is not a problem for those running prisons. In simple terms if there is not the will there is not a way. 

As somebody who has been for some years in favour of the de criminalisation of drugs nothing seems more to articulate the case that hard drug users require a medical intervention and not a legal one than the case reported at Blackburn Magistrates` Court where Kenneth Young was imprisoned for his 183rd offence. Cases such as this should be on the desks of cabinet ministers responsible for our health and law and order.

It seems that the difficulties of the European Extradition Treaty about which I commented on August 23rd are not just one way. Our European Union associates` justice systems are being utilised in all their majesty to extradite low level criminals to their homelands where justice is waiting for them. It seems this reciprocity is at the British tax payers` expense. There is an interesting report in The Telegraph.

Since increased resources from all directions have been focussed on domestic violence the impediment often preventing justice being done is the same as it always has been……the reluctance of the injured party, usually but not exclusively female, to give evidence against the male perpetrator. Bringing such cases to court involves the judgement of the CPS; their task is certainly difficult. How many cases fall at this hurdle I obviously don`t know. A clear example of such a case both resulting in a conviction and the complainant re-uniting with her guilty partner was heard at Croydon Crown Court. The defendant had pleaded guilty and the assumption is that magistrates had sent him to the Crown Court for sentence. The disposal suggests they could have saved the state money by retaining sentencing but that`s another matter for another time. 

Interestingly enough the Manchester Evening News reports that there were 28,493 reports of domestic abuse in the Greater Manchester area in the first six months of the year. How many ended in court proceedings is unknown. Perhaps the recent speculation that there is some evidence that Neanderthals bred with early Homo Sapiens in or around Old Trafford when the home team lost has some truth to it. 

And this is criminal life as we have come to accept it in 2010.

3000 NEW LAWS AND STILL IGNORANCE IS NO EXCUSE

 

29. Aug. 2010. – 11:04:13

The old adage, ignorance of the law is no excuse, might have been applicable when it was first coined 2000 years ago but at a time when according to the Law Commission 3,000 criminal offences were created between 1997-2010 it might have increased substance as a defence in theory if not in practice.

From my experiences in court I am of the opinion that some of the non police uniformed figures telling us where we mustn`t wait, where we can`t walk, what we can`t wear, what we can`t drop, where we can`t cycle etc etc rely on their scanty knowledge of a tiny bit of law to persuade, frighten, threaten ordinary citizens to do or not do what they are told to do or not do. But for that to be more or less written into the system is unacceptable. The case of CPS-v-Jolly AER 20 [May] in allowing a police officer to explain to a driver who has provided a breath sample of < 50mg that it can be substituted for a blood or urine test by simply reading the words on the form without explanation is in my opinion restrictive but who am I to argue?

CAN THE FRONT LINE STAND A 40% HIT?

 28. Aug. 2010. – 15:19:22 

A few years ago a new class of CPS prosecutor was introduced to the magistrates` court system; the DCW dedicated case worker. That`s “dedicated” as restricted to a specific function as opposed to “dedicated” meaning wholly committed . Upon their introduction CPS assured all who cared to listen that they would be used as the definition specifies for functionary activities within strict limits as laid out by their reviewing lawyer eg bail applications. Now it has been decided that soon they will prosecute trials. 

But to return to bail applications…….a couple of months ago a South African man appeared having been charged that between……2006 and……2010 at…….dishonestly obtaining a pecuniary advantage , namely that you were given the opportunity to earn remuneration in an employment by deception insofar as you falsely represented that you had leave to remain and right to work in the U.K. contrary to sect.16[1] of the Theft Act 1968. This gentleman pleaded Not Guilty and the pertinent facts as we heard them were that he used a false passport and accompanying documents in the alleged offence which involved £100,000 in earnings received during the period in question. When it came to bail the DCW told us that since the defendant had recently married a U.K. citizen and had had a child by her he was not a flight risk and therefore unconditional bail was not opposed. This was of course endorsed by his counsel who covered himself by adding that if we were so minded his client could sign at suitable time[s] at the local police station. In view of the facts we were surprised. We imposed a condition that in addition to signing once a week he surrender his passport which he had with him and that in itself was almost farcical in its application. Our L.A. told us he would have to formally be seen by the jailers in the cells and the passport taken from him there. That procedure was required, according to the L.A., because, in spite of his waving it about, if the passport were not with him he would have had to be taken to prison until it were made available. Five minutes later the defendant re-appeared and the Serco person told us that it wasn`t their job and they wouldn`t do it. The L.A. repeated that she couldn`t take the passport. The Bench then suggested she summon one of the duty police officers. He duly appeared and told us he was not sure it was his job. “It`s the court`s job”, he replied. “Well”, said the chairman,” you`re an officer of the court; take him downstairs, take the passport and give him a clearly written and dated receipt.” The previous case that afternoon had involved an East European complaining inter alia that his passport previously handed into us a year ago on another matter was apparently unavailable and nobody knew anything about it. 

And all this in a typical day when lawyers still conduct trials and 40% cash reductions have yet to hit the front line. When the brown effluent hits the fan heaven help the front line. 

AT THE BEGINNING

This diary was begun in 2010. My reasons for so doing were published here on October 22nd 2021. For those reading this I feel it`s time to publish for only the second time the reasons behind my undertaking this active memory written when I was in a position to be able to act on my own judgements but keeping within the law and the honesty expected of a Justice of the Peace. 

OCTOBER 8TH 2010

INTRODUCTION  
My latent interest in the law  was perhaps instigated by both a wife and brother who were solicitors  and a father who felt overlooked in his application as a J.P. many years ago.   Having been a professional all my working life by my mid-fifties I felt intellectually and financially able to devote myself to a second career albeit unpaid and part-time. I was appointed a Justice of the Peace in 1998. During my long career as a self employed eye-care professional I learned quickly to communicate with people of all ages and backgrounds. On reflection I`m convinced that facility proved essential to be able to follow to the letter the Judicial Oath: “I do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  With much current criticism of the magistracy over so called diversity that oath alone should be enough to ensure that all those who come before the bench are treated not as black or white, rich or poor but as a subtle shade of grey.  Unfortunately the perception at least does not bear out that ideal.  

The first few years of this millennium were a time of great change for the magistracy insofar as its flimsy hold on independence was firmly trampled upon by a recently elected government seeking to incorporate under its umbrella the various strands loosely affiliated as our justice system.  This culminated in the formation of a dedicated new department known as the Ministry of Justice.  Further developments led to the magistrates courts and those working within them to be part of yet another amalgamation of departments; Her Majesty`s Courts and Tribunals Service. 

Recent statistics showed that in 2020 there were 13,177 magistrates - though the Ministry of Justice announced that in September 2020  this number had been overestimated by around 1,000 which was an appalling error. Other statistics of note are that currently 56% of JPs are women, 13% are BAME and 82% are aged 50 or over. There are clearly various factors which contribute to these figures though they are too complex to discuss in this short introduction. 
 
During my first decade as a JP when I became what is now termed a ‘presiding magistrate’ colleagues seemed to appreciate my independence of mind both on the bench and in the retiring room. Although I never aspired to the loftier heights of ‘Chairman of the Bench’ a couple of small achievements seem worth mentioning here. I reinvented my bench`s approach to the approving of warrants issued by utility companies and I amended the treatment of fare evaders by the local transport systems.  Both areas had been in dire need of a more level playing field for defendants but for one reason or another no one had grappled with them until then. 

In November 2009 I put a colleague`s suggestions that I could offer my opinions on the workings of the magistrates` courts and a JP`s perspective of the justice system to a much wider audience through writing a blog and so was born The Justice of the Peace (Magistrate`s) Blog. Some of these musings, on everything from sentencing procedures to the police and to other matters of legal interest are now reproduced for this diary exactly as they were published in my original website in 2009/10  the host of which went offline in 2013.  Names and or positions of any persons have been changed when appropriate. 
 

WHEN IS A LAMPOON ILLEGAL?

 27. Aug. 2010. – 11:47:56 

Robert Peel; he who conceived the idea of a police force as we now know it, had as his objective the prevention of breaches of the peace and its natural consequence, the maintenance of public order. I doubt that in the early 19th cent. peeing in public was a criminal offence when the term public decency had yet to be uttered except when the legs of the piano according to legend were left uncovered. 

So it was no surprise to read recently that Wendy Lewis, who desecrated a war memorial by urinating on the Blackpool Cenotaph , was given a 15-week prison sentence, suspended for a year. But what followed was a surprise although in retrospect perhaps not considering my blog of April 4th this year. But of that later.

A supporter of said “lady” is alleged outside the court building to have given a Hitler salute and made with his finger the universally accepted joke Hitler moustache a la John Cleese and Monty Python. For this alleged offence of using threatening words or behaviour to cause harassment, alarm or disorder he will shortly appear before the local bench. I would find this disturbing if when the facts emerge the only behaviour alleged to be threatening were the salute.

Re-enactment aficionados have been widely criticised for the use of nazi and SS death head regalia including swastikas. The opposition to the use of Wehrmacht uniforms has been muted and that is because there is a historical difference between “the ordinary German WW2 soldier” and “nazis” or so we are informed. There is no Holocaust denial legislation here as there is in Germany. The subject can be discussed and the David Irvings of this world can be shown up for what they are; nazi apologists. Be that as it may, in this country there is no law against the lampoon. There is however a legal back passage through which such restrictions are being enforced…the Mohammed cartoon of infamous memory was perhaps the most memorable. On 4th April I blogged that Section V[1] and [6] of the Public Order Act 1986 is being used as a “catch all”. A WW2 veteran was convicted for goose-stepping to indicate his opinion of the actions of Police Community Support Officers. 

That greatest of all clowns a certain Mr C.Chaplin in his film The Great Dictator 1940 lampooned Hitler to perfection and was instrumental in bringing home to a pacifist America just what the evil of Nazism was all about. He did it with humour. 

If the symbolic nature of a Nazi salute as a mark of contempt by a person for [in his opinion] the unreasonable authoritarian actions of a public body or a uniformed officer, is in the process of becoming a public order offence per se let it be shouted loud and long from every police headquarters in England…..seig heil!

J.P.s RULE OK

 26. Aug. 2010. – 17:00:24 

They used to be called [learned]“justices` clerk” but are now known as [learned] legal advisers. They were once known as Magistrates` Courts and still are. “J.P.s rule O.K.”

Advisers advise and magistrates decide or so is the theory. In my time on the bench as winger and chairman I have noted bench chairmen thankfully abrogating everything possible to their legal adviser. As much of the work in open court that could be done by either the chairman or the L.A. was seconded to the L.A. It even extended to the retiring room where many colleagues retiring to consider a verdict would invite the L.A. to join them almost immediately. Most would keep at some physical distance but there were occasions when advice would be offered, in my opinion, inappropriately whether in timing or content. Legal advice of course should always be proffered in court before the bench retires.

I would not echo their honours who usually refer to it as my court but I have always considered that with few exceptions a bench chairman should in a judicial fashion be in command of the court. It follows that a chairman and a L.A. who are confident in each`s ability and authority usually can be seen by a fly on the wall to conduct an efficient flowing courtroom be it remands where there is never enough time to complete a list, a trial or one of the many variations of justice being seen to be done over which we preside. So it is unusual for a bench to overrule its L.A.

Re-reading my post earlier this week on Judge Shorrock`s verbal bollocking from their Lordships for speaking out of turn reminded me of an incident which required this writer also to speak out of turn with the total agreement of his colleagues.

The defendant had been charged with criminal damage the week previously, been remanded in custody and was before us for another bail application. He was unrepresented. His English was poor but adequate. He was Moslem. He was asked by the L.A. to identify himself ……….silence; the request was repeated with the same result. Our L.A. turned to the bench and whispered that according to the file the previous appearance had had the same result. In the circumstances I asked for identity using a closed question…..are you?…..let`s call him Mr. Ali…… He nodded and repeated the gesture with regard to the other identifying questions. Since he was on remand to be tried about three months later I asked if he had spoken to the duty solicitor; no reply….. at which point our L.A. stated that he had refused to see the duty on the previous occasion and also had refused the opportunity to talk to the consultant psychiatrist whose duty day this was. He again did not answer when he was offered the duty solicitor. He was told that if he continued in the same manner he would be in prison until his trial, a longer period than he was likely to be sentenced to if he were found guilty. No response……our L.A. gave us the date and the pronouncement was made of his being remanded in custody until…..but that he would be before us again in twenty eight days. Down he goes to the cells and a moment later our L.A. tells us the trial date must be changed because CPS had just noticed the complainant in the case was on holiday. Notice of trial dates must be made with the defendant present so the call was made to bring him up again. Two minutes later the jailer emerges alone to tell us that it is time for his prayers, he will not come up and that Allah will provide. And this is where we parted company with our L.A. for she told us that we had no option but to go to the cells to pronounce the amended date. After three pairs of eyes, one pair Moslem, one pair Roman Catholic and one pair indeterminate blinked in astonishment we dismissed the suggestion. We told the L.A. to write a notice duly signed by herself to be handed to the defendant. She did not for a minute demur. At the conclusion of the sitting we informed the Deputy Justices` Clerk of our actions and she agreed that our pragmatic approach was perfectly acceptable in the unusual circumstances.

Justices of the Peace are appraised for their competencies every three years or so but an appraisal in my opinion is akin to deconstructing the act of running into its various sections and expecting the resultant description to resemble an active Lynford Christie. It doesn`t. There are some situations for which preparation is useless and where life is the only teacher. Thankfully in the public arena that is a Magistrates` Court they are few and far between. 

ALL`S WELL IN LOVE, WAR & POLITICS

 25. Aug. 2010. – 11:40:42 

Three months on and the new government has a couple of months to gather its thoughts as do the M.P.s whose election arithmetic forms the basis of the coalition. But as well as being cannon fodder for government as were many 1997-2010 this new cohort shows every possibility of thinking for itself and as individual representatives of putting constituents above party interests. And nowhere so early in the game is this being shown than on the contentious subject of court closures led by old time survivor Kenneth Clarke.

There are those on the government payroll who have voiced opposition to the closure of their local court. Ministers Iain Duncan Smith, Andrew Mitchell, Edward Garnier and Ed Davey have all voiced their opposition. This will certainly prove interesting when the final list of courts to be closed is published. M.P.s in general and opposition M.P.s in particular are certainly making hay whilst the sun still shines on this subject. After all they are kicking at an open door. 

It would take big cahones as they say in Spanish for a prospective candidate to support closure of their local court. It`s not surprising that much rubbish is being infiltrated into the “keep them open” argument. 

An example is reported in the Liverpool Daily Post from Maria Eagle, the Garston and Halewood MP. She asserted that victims of domestic violence will suffer by such closures. It is uncontroversial that increasing travelling time to a court hearing will deter a certain number of witnesses from appearing but she has claimed in effect that closing twenty courts where such cases are heard will increase domestic violence. The good lady should do her homework. A “Domestic Violence” court is not a court building where only such matters are dealt with. It is the designation on a given day or days when such cases are heard by court officials who are delegated to that subject in a particular courtroom specially equipped with eg screens, video equipment and protected dock. To put the frighteners on her constituents as she appears to be doing does a disservice to them and herself by jumping on a bandwagon which is rolling along well enough without her input. Miss Eagle as a former Minister in the Ministry of Justice should know better. Although having said that, on 17 May 2009 the Daily Telegraph revealed that she had claimed £3,500 for the refurbishment of the bathroom of her Liverpool home property, then switched her second home designation to a different property just four months later. Miss Eagle showed her feelings for open honest government when according to Wikipedia she voted in favour of legislation which would have kept MPs expense information secret.

All`s well in love, war and politics.

CUSTODY THRESHOLD AT MAGISTRATES` COURTS

 24. Aug. 2010. – 16:12:51 

It is not all that often that the Magistrates` Association`s house magazine “Magistrate” has an article that offers information on an important topic about which I am totally ignorant and as memory serves me has never ever been alluded to in a training session or at any time by a legal adviser when I have been involved in a sentencing bench. 

Such was a colleague`s article entitled “Looking closely at custody” in the current issue. Before continuing it is helpful to know that the sentencing structures at courts were formulated under the Sentencing Guidelines Council in 2004 in order to achieve a certain logical approach to sentencing and to avoid the appearance of “post code sentencing”. That effort has not, in my opinion, been unsuccessful. This organisation in the spirit of the tendency for governments to think up new names for similar structures is now The Sentencing Council. 

Returning to the subject, all sentencers must justify their sentences in open court and explain why custodial sentences especially are the only possible disposal in such cases. It is by such hurdle jumping that relatively few custodial sentences are made at Magistrates` Courts. However the article in question referred to a document published 16/12/2004 by the Sentencing Guidelines Council…..”Overarching Principles: Seriousness”. I had never known of this until opening the magazine. Its content had never ever been mentioned by name in my presence by anybody at any time although the principles are familiar. The important conclusion is that even when all the hurdles have been taken and custody appears to be the only option there should be a final discussion as to whether even a suspended custodial sentence can be avoided even although by a structured approach there is no other sentence but immediate custody which can be justified.  Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable and custody can still be avoided in the light of personal mitigation or where there is a suitable intervention in the community which provides sufficient restriction (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime. For example, a prolific offender who currently could expect a short custodial sentence (which, in advance of custody plus, would have no provision for supervision on release) might more appropriately receive a suitable community sentence.

The SGC as mentioned above has been superseded by the Sentencing Council. In the light of current political pressures I am surprised that this document has not been brought to the attention of magistrates; at least not this one nor his bench

SHOULD CELEBRITIES BE FINED ACCORDING TO THEIR MILLIONAIRE MEANS?

 24. Aug. 2010. – 13:57:45 

It`s unusual to comment on offences in far away jurisdictions of which we know little but the case of Lewis Hamilton`s four wheeled escapade on the public roads of Melbourne Australia is interesting not for the reasons for behaving like a Jack-the-Lad instead of one of the best racing drivers this or any other country has produced. No; it`s because even as a defendant with presumably no record of “previous” down under he was fined the maximum possible under Aussie Rules at Melbourne Magistrates` Court for what they term “hoon” or reckless driving when he was fined the maximum amount of $10,000AUID; about £5,725. 

Although I have no experience of having a multi millionaire sports star before me [they are usually reserved for the DJ…bah humbug] it is rare to read of individuals of such worth being fined the maximum possible for driving offences which do not cause injury. Careless driving attracts a maximum of £5,000 + possible disqualification. In January, a Swiss driver was fined $290,000 - the current world record. When an offender is caught speeding Swiss law takes into account the wealth of the driver and the speed recorded. 

When individuals` wealth is measured in tens of millions even disqualification does not bring the same inconvenience as it would to most of us. Drivers can be hired for as long as needed. Perhaps we have something to learn in this regard from the clock makers.