EMPLOYERS -V - EMPLOYEES

 15. May. 2010. – 13:41:50 

Once upon a time in a far off land there was a boss and there were his workers. And for reasons unknown and not required the boss sacked a worker and the worker and his family were starving such that his children were taken into the workhouse, his wife died from the gin and the worker was hanged for stealing a leg of lamb. And lo! Unto this land came a man with a thick beard speaking a strange tongue and he preached against money lenders in the City temple and those who believed took his name and spread the word. Those words spread east and in time revolution took place in one country. But in the west where the preacher had expected the workers to rise in his name the majority rejected his teaching.

And today the ability of an employer to sack staff has reached such labyrinthine difficulties that the Court of Appeal has been involved in the case of Roldan -v- Salford Royal NHS Foundation Trust. 

I make no comment on the case itself. However as employment lawyers are only too well aware there are pots of gold in this area but the true cost is against a natural entrepreneurial spirit in this country epitomised by Napoleon`s reference to "A nation of shopkeepers". Increasingly restrictive employment laws make life extremely difficult for the small independent employer. Perhaps there might in the new government be somebody who can rekindle the spark of ambition for those wishing to "go it alone" but with the saintly Doctor Cable in charge of the medicine I have my doubts. 

WARNINGS FROM THE BENCH ON FUTURE SENTENCING

 14. May. 2010. – 11:05:20 

Within the Magistrates` Courts system, at least as far as Justices of the Peace are advised by their legal advisers, one bench cannot "tie" another; ie any sentencing decision made must allow a subsequent bench freedom to act as it so wishes. For that reason when a matter is adjourned prior to sentencing, for probation reports to be presented on a convicted defendant, such reports being laid before a sentencing bench at the adjournment date, a requirement of the report will often have the addendum, "all options open including sending to the Crown Court". This makes lawful the possibility that the defendant might be sentenced by a Crown Court judge whose sentencing powers exceed the maximum of six months at a Magistrates` Court

It was therefore surprising that yesterday at Bootle Magistrates` Court where a milkman who was a recidivist user of cannabis was told by a District Judge who sentenced him to pay a total of £185 in fine, costs and surcharge,

I can disqualify you from driving and disqualifying you from driving would stop you from doing your job, and you would then lose your job, wouldn’t you? Next time I see you in this court I will ban you from driving.

It is entirely possible that a further appearance by that individual could be before the same District Judge but not necessarily. Another D.J. or a bench might take a different view so the original "threat" would have been an empty one. Whilst I and others I`m sure have suggested to offenders that if they are here next time they are likely to....or......it is not unlikely that next time...etc...etc

Magistrates and District Judges operate under the same guidelines and apply the same laws. If I and my colleagues were to make such a statement it is highly likely we would be reprimanded. 

A NEW BEGINNING WITH A NEW SECRETARY FOR JUSTICE?

 13. May. 2010. – 17:53:00 

It seems a trojan had invaded my cyber fortress when I was last posting on Pagan Police despite the efforts of SpyBot and McAfee. My faith in internet security has now been entrusted to Mr Kaspersky. 

With regard to faith it seems our Crown Prosecution Service wishes to push the wedge in the door of jury trials a little bit wider..........surprise surprise. The old story of offering the devil a finger and he`ll take your whole arm could not be more appropriate. I commented on the first such trial on 19th February and now it seems that last week a Crown Prosecution Service spokeswoman said: “I can confirm that there are two cases going through the process.” Gagging orders prevent the disclosure of further information. Many actions in our jurisdiction are based on precedent. I would hazard a comment that despite vehement opposition from many involved in our justice system we are going to have many more such applications and that the bar will be lowered.....to what level one can only speculate but within the tenure of our new Secretary of State for Justice Ken Clarke I predict it will be almost commonplace; so much for Magna Carta. 

And mentioning Rt Hon K.Clarke MP QC it was when he was Secretary for Health in 1988 that he "privatised" eye examinations causing a major blip in that market, infuriated opticians and encouraged heated criticism that the nation would go blind as a result. He is the perfect personality to pursue unpopular policies the professionals involved abhor but can be sold to the public as a wonderful benefit. 

My colleagues in the Magistrates` Association have just got round to mentioning Drink Banning Orders". They should keep up with this blogger who posted on 16th April the details of this example of knee jerk legislation. I hope that our new government will adhere to D.Cameron`s pledge to repeal some of the unnecessary legislation of the last thirteen years. This could be a good place to begin. 

A MAGISTRATE`S ILL JUDGED RANTS?

 10. May. 2010. – 18:19:19 

Having the luxury of a couple of hours for doing the garden or watching Sky News I chose the latter. Perhaps some digging would have been a better for my psyche. G Brown has just told the world that he will resign as leader of the Labour Party so that a new one can be unveiled at the party conference in September....the new improved variety no doubt. 

All this is in the public interest for stable government. Various acolytes came to the microphone to consider and comment on this magnanimous statement including John Mann MP who graced the TV screens a couple of days ago telling der fuehrer to get lost.

As magistrates my colleagues and I are used to hearing testimony under oath on many occasions. In my opinion to hear the weasel words of those in whom we trust to serve us through internal and international machinations, serves only the purpose of individual or party aspiration, is not just profoundly depressing; it continues the process of a public distrust in the integrity of our representatives and although thankfully the BNP lost its trousers in the election I am acutely aware that a more refined and appealing demagogue than is currently around can only be over the political horizon with carefully crafted sound bites and popular appeal. Truly the ground is being laid. 

LITTER LOUTS

 10. May. 2010. – 12:57:50 

People of a not so certain age when discussing current social mores will sometimes use the phrase, "in my day" to describe changes which in their opinion are for the worse for each of us as individuals and for us all as "society"; the entity for which Maggie T doubted the existence. 

Aged relatives who lived through the horrors of World War 2 on active service and the Blitz at home have described to me [and I presume others can claim similar discussions] that if not "law" but certainly "order" was encouraged if not enforced by individuals be they family, neighbours, bus conductors, train guards or park rangers to name a few. Unless there was direct violence or a risk of such, admonishment from such individuals was enough to oil the wheels of public civility and avoid confrontation with most people including rowdy teenagers most of the time. 

Street tidiness was a job for local authorities and street cleaners were a common sight keeping the environment clean and tidy and also providing low level employment for those who would otherwise be unemployed or unemployable. A clean and tidy neighbourhood has been shown to reduce disorder especially low level disorder which can blight many lives. The "zero tolerance" concept pioneered in New York City is a direct result of this thinking. 

The Keep Britain Tidy Campaign began in 1954 as an initiative of the National Federation of Womens` Institutes. Some might remember the iconic posed picture of Margaret Thatcher tidying up in Trafalgar Square. The Litter Act of 1983 consolidated all previous legislation. Prosecutions for littering are brought under section 87 - Offence of Leaving Litter - of the Environmental Protection Act 1990. The offence is: "A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.”

However, a person convicted of this offence could be liable to a maximum fine of £2,500 (a level 4 offence on the standard scale). Current criminal prosecutions are conducted by local councils under the Clean Neighbourhoods and Environment Act 2006. 

And that was why two women who dropped cigarette ends in the street ended up at Magistrates` Courts. Lyndsay Moore, 32, of Firleigh Road, Kingsteignton, who pleaded guilty, was ordered to pay a total of £115 in a case brought by Teignbridge Council, while Charlotte Sleep, 35, of Silver Street, Ipplepen, was ordered to pay a total of £265 in fines and costs in a case which was brought by Torbay Council and heard in her absence. It is indeed a sad reflection on our conduct when the criminal law must be applied to such basic anti social behaviour. Singapore has the reputation of being the world`s cleanest city. In 1992 Corrective Work Orders were introduced as an alternative to fines up to S$1,000 [£500] for littering and offenders were required to wear distinctive clothing whilst cleaning streets for a specified number of hours. It is open to discussion whether or not the forthcoming change of government will lead us closer or not to the highly regimented regime of Singapore and whether or not that would or would not be desirable. 

Without entering into any religious context whatsoever the original precept for the individual and society to rub along with minimal friction is to do to others what one would ask them to do to oneself. And that includes taking one`s rubbish home to dispose of carefully [including cigarette ends]. 

THE ASBO: A MONSTER OUT OF CONTROL ?

 08. May. 2010. – 12:56:20 

Anti Social Behaviour Orders [ASBOs] have been around for eight years. They were and are designed in general to curb the type of behaviour which has a demonstrably disturbing effect on the quality of life for those citizens who are trying to lead normal law abiding lives eg graffiti, excessive loud noise especially at unsocial hours, swearing, drunken behaviour, drug dealing etc. The minimum period for which they can be applied is two years. The orders are not criminal penalties and are not intended to punish the offender. However breach of an ASBO is a criminal offence with a maximum sentence of five years in custody.

Until December 2007 almost 15,000 ASBOs were made. An ASBO to prevent offender[s] from meeting in a certain street, area or town is in my opinion an obvious simple prohibition which the offender[s] can reasonably be hoped to observe and which will give respite to those affected by offensive behaviour in their neighbourhood. However like the proposed inter stellar sail space ship which from a velocity of virtually zero to an attainable velocity estimated at half a million MPH or the proverbial acorn to oak the ASBO has become a monster out of control and an example is the case of Robert Sansford 56 of East Sussex who in February attacked two women in the Setting Sun pub in Brighton leaving one unable to return to work. Sansford is currently in prison awaiting sentence for the Setting Sun attack.

A council application for an ASBO against Sansford was succesful yesterday at Brighton Magistrates` Court preventing him from entering all clubs, pubs, bars and off-licences in England and Wales for six years.

When he is released can any sane person believe that this order will be effective? Does it seem likely that a pub landlord in eg Penrith will call the local bobby to report this offender is having a drink in my snug. Of course he won`t but here`s the rub; if and when he is arrested after committing an offence in a prohibited environment his record will appear on the Police National Computer and he will be brought to court for breach of his ASBO. 

Is this form of retribution really beneficial for the social soul of this nation?

ELECTION DAY BUT NOT FOR MAGISTRATES

 06. May. 2010. – 12:23:58 

I have just cast my votes for the general and local election. Nothing unusual in that of course. At this late stage I must admit to voting at the age of eighteen when the voting age was set at twenty one. What was a politically aware teenager to do? I had received a voting card and when I presented it at the local polling station there it was written less on tablets of stone; more New Roman typescript, on the electoral role of a solid Tory seat populated 80% by solid working class people who valued their MP and his efforts for his constituency more than the political label around his neck. Anyway back to today`s crosses that we are marking and for the first time I can recollect and I`ve lived in the same house for over twenty years there was a queue at the polling station. It will be interesting to discover whether the turn out nationally is higher than expected.

The whole process of voting set me thinking about the procedures under which judges and magistrates arrive in their positions. It is well known that many judicial positions in the United States are elective. My colleagues and I are appointed until the age of seventy when we are put out to grass. Being an enthusiastic carnivore I can`t say I`m looking forward to that day.

REFUSAL TO SUPPLY DNA SAMPLE, PROBABILITY AND THE LAW

 05. May. 2010. – 16:32:17 

The Fingerprint Branch at New Scotland Yard was created in July 1901 using the Henry System of Classification. 

For many years previously various scientists and others had noted the basic structure of the human fingerprint; some had even mooted the possibility of its being used as an identifier. And as is well known a full fingerprint with all reference points matching is now considered to be literally foolproof evidence in a court of law. 

Police National DNA Database..........With the advent of DNA sequencing there is an increased acceptance of DNA matching as evidence in important legal cases. Mathematics has been used as a tool for all manner of human understanding and use in the courtroom is frequent.  The Sally Clark case is an illustration of how maths can go wrong in the wrong hands. The mathematics of matching various DNA samples in a legal context is based on explaining to a jury the chances of two samples of DNA; one from a crime scene and another from a suspect/defendant not belonging to the same individual. The art of making such explanations without compromising the statistical validity is akin to economists explaining to laymen the variations and resulting different  conclusions between eg Keynsian and Monetrist Theories. And as we all know statistics and economics can mean what the speaker, whether lawyer or politician, wants it to mean. Reading various analyses of probability/DNA/Courts can be interesting for those with a clear head. This is an interesting case which came before the Court of Appeal in 2006.

The retention for six years in England & Wales [three years in Scotland]  of DNA obtained from those arrested but never charged for an offence is a major issue for those concerned with civil liberties.  It is a criminal offence to refuse to provide a DNA sample when requested by a police officer.

According to the Home Office, the powers which give police the authorisation to take DNA samples can only be used on the ground that they have reasonable basis for suspecting that the individual committed the crime.  It was reported today that a man of previous good character who refused to give such a sample and admitted the offence was sentenced to a six month conditional discharge and £85.00 costs at North Lincolnshire Magistrates` Court. Now he has a criminal record and the consequences of such a record can be dire indeed. It is a moot point whether another disposal would have been more likely before another bench.  In any event how many of us with "a libertarian bent" would refuse if placed in a similar situation?

LAW LESS WITH TORIES

03. May. 2010. – 14:47:04 

As election day approaches those who decide to vote and those conscientiously deciding to abstain will base their decisions on many factors some founded upon the effects personally of their choice and/or what would be considered best in the interests of the country as a whole. The range of opinions of magistrates is as wide as the range of opinions of other intelligent life forms. 

Like others involved in the "law" we are more aware than most of the cascade of legislation that has poured from 10 Downing Street since 1997. By the latest estimates 4,300 new offences have been created in that period; 50 criminal justice bills have been enacted. By contrast between 1988 - 1996 494 new offences were created. D.Cameron has been quoted yesterday as saying that were the Tories to form the next government his first Queen`s Speech would include a "great repeal Bill" of Labour red tape and rarely enforced criminal offences. It is unlikely that those intentions were they to become reality would find objections from right minded folk. 

DRESS FOR DISCIPLINE

 01. May. 2010. – 11:08:22 

All organisations publish some sort of magazine or newsletter even if it consists only of a couple of stapled sheets of A4 or twenty lines on a home constructed web page. The Magistrates` Association with its 25,000 members is no exception and like many such publications its magazine’s “members` letters” pages are often the most interesting and thought provoking.

Over the past few months interesting correspondence has been published re the increased informality of some courts` design and the suggestion that the courts` authority might be increased by JPs` wearing of gowns. These are two subjects with a common link; the trend commonly known as “dumbing down”. Secondary school teachers were wearing black gowns a generation and a half ago; some still do; court ushers wear gowns, Crown Court barristers wear gowns and of course the legally qualified judiciary have gowns carefully graded to seniority. Lawyers in Magistrates` Courts appear in ”civvies”. Personally I don`t need a gown to exert authority but I accept that for some defendants appearing before gown wearing magistrates might help them to recognise the seriousness of the occasion and the court`s authority. On the subject of attire I would say that the declining formality of the female JP`s dress code is of more concern. Virtually all males wear suits usually dark in colour. Rarely does a female lawyer in court wear anything but the standard form of attire; dark suit and white blouse as do our female clerks. Not so some of my female colleagues. Coloured jumpers and tweed skirts and occasionally clothes more suitable on the golf course than on the bench are seen especially in the summer months. Quite clearly the large hat combined with twin set and pearls are as suitable today as is gas lighting but sometimes informality is taken a little too far…..in my humble opinion of course.

Designs of courtrooms vary considerably. The standard dais two or three feet off floor level allows members of the bench clear views and injects a certain psychological authority to the pronouncements. I have sat in courts where the bench is a simple table at floor level the JPs using typists` chairs. There are those who would approve and commend such informalities; I am not one of them. 

I recollect last year being shouted at by an offender,” Who do you think you are? What right have you to doubt what I`ve told you?” I replied pointing above me to the Royal Crest, ”The right that that coat of arms bestows on this court and this bench”. When physical trappings are not superfluous but have meaning they are a useful adjunct. 

So Speaker of the House of Commons John Bercow`s dispensing of his predecessors` predilection for fancy dress met with my approval. Similarly when the next parliament is opened let Black Rod keep her rod but throw away the velvet and get the black two piece out the wardrobe.

GANGMASTERS, COURTS AND THE LIB DEMS

 @ 30. Apr. 2010. – 10:46:15 

Like a few million others I watched the third leaders election broadcast last night. For those with a passing interest in politics I must admit there was little said or insinuated that was news to me except.....when clever clogs { I could`ve been a contender} Clegg stated for the third or was it the fourth time that his immigration policy of "send them to the colonies or was that regions" combined with tackling the gangmasters who place workers, legal and illegal, often in the agricultural industry made me sit up and take notice. The very term GANGMASTER evokes scenes of 19th century sugar plantations in the Americas. Having lived in an urban area all my life I know absolutely nothing about the employment of foreign workers except the ubiquitous Polish plumber who replaced my shower door, fitted some windows and did some simple electrical work a couple of years ago.

The Gangmasters Licensing Authority a late arrival to the list of Labour`s quangos was set up by the Gangmasters (Licensing) Act 2004. It became active on 1 October 2006 when it became an offence for labour providers in the agri-business industry to operate without a licence. In November 2006 it also became an offence for labour users to employ workers supplied by unlicensed labour providers. Furthermore, from 6 April 2007, the act was extended to cover the shellfish gathering industry – a sector reputed to be notoriously difficult to regulate, explaining why it was given slightly longer to implement licensing. In this industry, it is now also an offence to provide labour without holding a licence or for labour users to employ workers supplied by unlicensed gang masters. Its purpose is to regulate those who supply labour or use workers to provide services in agriculture, forestry, horticulture, shellfish gathering and food processing and packaging. It would appear to this amateur accountant that this quango is running a current deficit of £750,000 p/a.

Since its inception the GLA has revoked 39 licenses. In this organisation`s latest published minutes [meeting 13/01/10] no mention is made of prosecutions past, in progress or being considered. A flavour of the meeting can be obtained from this section quoted below:-

There has been an 80% increase in operational resource, with particular emphasis on working in hotspot local areas to generate intelligence and work with local agencies, businesses and worker representatives. Increases in back office staff have been kept to a minimum. LPs bemused that operational outputs continue to be compliance inspections, despite repeated announcements of a move from compliance to enforcement. More enforcement resource than envisaged is still required for compliance inspections due to the unexpectedly high volume of new applications. In addition, application inspections now often involve more complex investigations and therefore take significantly longer than in the past. While additional enforcement officers have been recruited in recent weeks, the process of fully training and incorporating these is ongoing, and their contribution is expected to show results over the coming months. Despite placing greater emphasis on enforcement, the GLA must continue to monitor compliance among licensed businesses and ensure that standards do not slip. Additional enforcement officers have been recruited on 12 months contracts purely because funding could not be guaranteed beyond 2011.

Earlier this year on January 29th the first prosecution took place when a Scottish fruit farmer became the first person to be convicted for using an unlicensed gangmaster based in Bulgaria to supply 250 workers to pick fruit. The gangmaster of course could not be prosecuted. But an important purpose of this legislation is that the end user must be deterred. He was fined £500. No information is available regarding prosecution costs. The maximum penalty for operating without a licence is 10 years in prison and a fine. The maximum penalty for using an unlicensed Gangmaster is 6 months in prison and a fine. So our Scottish farmer received in my opinion a rap over the knuckles from the Sheriff at Perth Sheriff Court but at this distance with limited knowledge intelligent further comment on the adequacy of the fine is impossible.

On 15 April at Peterborough Magistrates Court a Cambridgeshire based gangmaster was sentenced for operating as a gangmaster without a licence. He was fined £300.

Unless I am deaf, dumb and blind and play pinball all day long this is the organisation that the Lib Dems are relying upon to protect us from the "criminal gangs" profiting from the misery and political cancer of illegal immigration.

INNOCENT UNTIL PROVED GUILTY??????

 25. Apr. 2010. – 15:45:53 

Innocent until proven guilty! Most people would acknowledge this is the "British way" of doing things. Punish the guilty when they`re proved guilty........in your dreams......DNA taken from innocent suspects during an investigation is currently held for six years; on the sexual offences register there is a very small number of people who have not been convicted whom the police and other agencies believe are potentially dangerous. This list will cover some people with mental health problems and suspects believed to be a public risk but about whom there is not enough evidence to secure a conviction. A domestic violence protection notice can be obtained against a partner who has not been convicted of any crime. 

Earlier this year an unnamed police force informed the General Optical Council, the long established quango charged with overseeing the optical profession, that an optometrist charged with possessing indecent images of children should be subject to an unspecified interim order but assumed to be suspension from the Opticians` Register. The unnamed optometrist had pleaded not guilty at a Magistrates` Court and will face jury trial at the Crown Court. The Fitness to Practise Committee of the G.O.C. turned down the application on the basis that there was very limited information on the alleged offence[s] and therefore no justification in making the order. Thus a professional man whose status is "innocent" is allowed to continue to earn his living a facility that would have been denied him had he been suspended. A point of concern is that the chairman of the committee said a further application for an interim suspension could be made if more evidence became available. 

Freedom of the individual in its widest form and safety and protection of those in society has been a balancing act for centuries. I would venture that the "health & safety" mentality we have experienced in the last two decades is moving the fulcrum of the "innocent until guilty" debate considerably in a direction which indicates that the culture of this country is considerably more authoritarian than is healthy in a democracy. I fear that nothing said before or after May 6th will alter that.

MAGISTRATES AND BAIL ON MURDER CHARGE

 22. Apr. 2010. – 11:42:58 

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

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

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

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

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

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

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

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

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

AN ODD WAY TO GET ON THE SEX OFFENDERS` REGISTER

 21. Apr. 2010. – 11:56:06

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

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

DRINKING BANNING ORDERS

 

16. Apr. 2010. – 14:32:28

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

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

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

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

 15. Apr. 2010. – 15:45:50

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

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

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

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

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

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

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

RELIGION AND THE LAW

 

15. Apr. 2010. – 11:09:45

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

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

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

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

 

13. Apr. 2010. – 18:03:18

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

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

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

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

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

 

11. Apr. 2010. – 17:01:38

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

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

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

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

DO ALL LAWYERS STILL PUT THEIR CLIENTS` INTERESTS FIRST?

 11. Apr. 2010. – 12:56:09 

On November 21st 2009 I discussed either way offences. This category of offences is triable in either a Magistrates` Court or by a jury in Crown Court. England and Wales is unique in having this choice for defendants. Other English speaking jurisdictions including Scotland, Ireland, USA, and the Commonwealth do not offer this to defendants. 

During Magistrates` Courts procedures prior to the trial of a defendant on an either way charge who has pleaded not guilty the Bench will be asked whether or not it accepts jurisdiction or whether it considers the matter and the likely disposal if there is a guilty verdict to be such that it should be tried before a judge and jury. That decision is made without the Bench having knowledge if the defendant has any previous convictions or is of previous good character. If the Bench declines jurisdiction arrangements are made to send the matter to the Crown Court. If, however, the bench accepts jurisdiction the defendant then has the right to accept a summary trial or to opt for a trial at Crown Court. Many defendants with or without their lawyer`s opinion consider their chances of acquittal are better at Crown Court although statistically this is not a well founded opinion. The consequences of course of a guilty verdict at the Crown Court are sentences not limited to the six months in prison which is the maximum available at Magistrates` Courts. So electing Crown Court can be a high risk strategy. For lawyers state funded fees are higher for Crown Court appearances.

In all walks of society some people do their jobs better than others; that`s a fact of life. A couple of months ago a young woman appeared on a charge of theft; an either way offence. She pleaded not guilty and after hearing the facts of the case from the CPS lawyer we decided to accept jurisdiction. Her lawyer who was appearing to receive procedural advice from the prosecutor after consultation with his client indicated a wish to appear at Crown Court for a jury trial. All quite simple. Then came the question of bail and whether or not the defendant would be remanded on bail with or without conditions or be remanded in custody until her next court appearance. At this stage the Bench has access to a defendant`s previous record if there is one and boy oh boy did this defendant have a record of previous robberies and thefts and other similar matters some committed on bail. She was remanded in custody.

The point of all this is to wonder why this woman`s counsel advised her to go to Crown Court and have her case tried by a jury. It is not for me to pre-suppose the result but, and it`s a big but, if she is found guilty she is going to go away for at least eighteen months if not longer whereas if she had remained with the Magistrates` Court the maximum would be six months. 

In these stringent times when the public purse strings are being drawn ever tighter for lawyers and legal aid fees did a higher fee rate at Crown Court have any influence over the lawyer`s advice? Ten years ago I wouldn`t have thought of asking the question. 

NO CASH FOR COURTS BUT MONEY FOR NEW CARPETS

 

11. Apr. 2010. – 12:03:37

Magistrates` Courts both physically and conceptually have been and are struggling on limited budgets. Apparently some courts have ceased the supply of biscuits for JPs causing whispers of rebellion quickly dispersed by more cups of tea and coffee which are still on offer from the public purse. When, however, ushers are unavailable to function at trial proceedings owing to vacancies not being filled and court officials including legal advisers and defence or prosecuting counsel, being required to leave court to find witnesses it becomes a matter of great concern.....it is similar to the difference between sensible dieting and anorexia.

So it was to my astonishment a couple of weeks ago to see in the car park about six very thick rolls of carpet lying in a skip along with hundreds of carpet tiles. Unofficial mutterings from various sources seemed to agree that many areas in our very large building were being re-furbished. It seems that budgets have to be "spent" by the end of March or the following year`s funds would be reduced.

Now I haven`t tramped through every office or corridor but in general there did not seem to my untrained eye areas of threadbare floor covering or damp on the walls. The "estate" budget would appear to be separated from the cash required to run the courts system; hence not enough ushers amongst other human shortages. When politicians shout louder and louder about efficiency savings every five years I begin to wonder where they are going with that subject and indeed whether for their eyes the trees are truly obscuring the wood.

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TV LICENSE AND THE CRIMINAL LAW

 

09. Apr. 2010. – 11:46:37

Most prosecutions in UK are carried out by authorised government controlled authorities such as the Crown Prosecution Service in England and Wales and the Procurator Fiscal`s Office in Scotland. Individuals can bring private prosecutions under certain circumstances. And there are, however, organisations such as the R.S.P.C.A., London Buses or virtually any local authority which also prosecute often in Magistrates` Courts where they pay a fee to the court to "hire" a bench to sit in judgement similar to what happens in the criminal cases usually adjudicated.

The C.P.S. is a public service, part of the Ministry of Justice, open to inspection with policies, performance etc available for public scrutiny and monitored by various parliamentary overlords. The C.P.S. does not send mail outs to magistrates on a regular basis.

One prosecuting body which sends mail outs two or three times a year to every member of the Justices of the Peace professional representative organisation, the Magistrates` Association, is TV Licensing. This four page publication "In Brief" more or less extols this quango`s right to operate and the manner in which it "tries its hardest" not to prosecute non license payers. Tosh!!!!!

Anybody moving to a new address or who does not use a TV set at their current address knows well enough of the bombardment of requests, which soon become demands, to pay the license fee. Their so called inspectors have no right whatsoever to enter premises without the permission of the occupier but of course many occupiers do not know this. 

Watching a live TV programme on a TV set or on the internet requires a TV license. Failure to have one is a criminal matter and it is criminal prosecutions which take place as mentioned above. Sometimes the results are iniquitous to say the least. A case which has stayed clearly in my mind was that of a Harvard law graduate attending an English university for a term as a post graduate student. He was staying with friends for a few days watching a football match on TV when there was a knock on the door. He was the person least interested in "soccer" and answered the door. To the question from the official with an ID badge whether the TV was on he innocently answered in the affirmative. That young American was in front of us for having no TV license because that is the current situation; s/he who answers the door to the TV license Gestapo is the one responsible in law. There was no doubt that he was guilty but he was given the second lowest disposal available....a conditional discharge. Although his name would not appear on the Police National Computer he now has a criminal record in England.

It is a question for the next government whether or not the BBC should continue to be funded by a license fee. It is a question of justice that non payment of such a fee should be constituted as a civil matter and judged as such and the anachronism of criminal proceedings be consigned to history.

SAD TALE OF MAGISTRATE WHO THREW HER WEIGHT AROUND

 

08. Apr. 2010. – 11:40:54

One of the major issues at this election is the integrity of our MPs. However they constitute just one group in whom trust is placed by the public. Teachers, doctors and those generally we empower on our behalf to perform complex and/or supervisory activities must be laid bare before their fellows when their probity is in doubt; hence the public scrutiny over Baroness Scotland`s employment of an illegal immigrant.

Not every selection committee for every professional, academic, examining or appointing body gets it right 100% of the time and the conduct of Justices of the Peace whilst of a transparently high standard is prone to the odd black sheep as much as others in the legal world.

Such is the case of Stephanie Lippiatt J.P. who was found guilty at Croydon Crown Court of criminal damage and illegal eviction of a tenant. She was fined £2,000 for the illegal eviction and £250 for the criminal damage. She was also ordered to pay £1,900 prosecution costs and defence costs up to £5,000 - making a total of £9,150.

The lesson is simple; if somebody offers him/herself for public office it behoves him/her to behave with the highest standards in all aspects of life or face the consequences.

FOOTBALL BANNING ORDER; AN OWN GOAL?

 08. Apr. 2010. – 11:03:36 

Magistrates and courts are often the subject of criticism from those who consider that "the courts aren`t tough enough" and from the literary or liberal end of the critical spectrum of sending too many defendants into Her Majesty`s care for short summer holidays at £600 per week to live alongside two others to eat and defecate in a concreted room about eleven feet by eight. For those at the receiving end of a sentence pronouncement their reactions are occasionally almost as much a comedy as a tragedy.

Such was the case with Darren D a few weeks ago. He was a nineteen year old who had been cautioned once as a youth. He was before us for being drunk and disorderly in the street close to the local League 2 football club where his team Darlington, currently bottom of the league, were playing away. His behaviour had been provoking home fans into returning his swearing and obscene gestures ten fold when despite warnings to desist he had left local police with little option but to arrest and subsequently charge him. 

After his guilty plea he was informed of the amount of his fine and costs which were calculated according to his very low income but the moment that raised a hard to suppress smile on the faces of all those in court was when he was told that he would be subject to a twelve month Football Banning Order; "Thank you your honour, who`d want to see another year of that f*** ing team`s s*** football anyway". 

In that case perhaps we were the ones who`d scored an own goal.....the defendant liked the sentence or at least part of it. 

SECT V PUBLIC ORDER ACT & CATCH 22

 06. Apr. 2010. – 17:24:19

On March 6th I commented on ramifications under Sect V of the Public Order Act causing harassment, alarm or distress which was commented upon with his usual wisdom by ObiterJ http://www.obiterj.blogspot.com/

I had cause recently to remind myself of another such case a few years ago. For those unacquainted with court matters this charge is very very common and could be used to charge for using abusive language to standing on a zebra crossing and refusing to move. Essentially a young couple was arguing, he drunk, she very drunk. She falls, police approach and walk her away telling parties to quieten down. She falls again and he rushes to help and protect her. Police tell him to move and say he hit out at officer. He says put arms up to protect himself. Upshot he is arrested and charged. He pleads not guilty and on trial. Now the interesting bit……..these ostensibly “minor” cases often depend on quite deep legal thinking. As he was unrepresented our learned clerk advised him of the defence of “reasonableness” when his actions to protect girlfriend could be “reasonable” but that defence could be put only if he admitted behaviour as described by prosecution. As I said to my colleagues that is a classic Catch 22……He is denying behaviour but that defence which could stand in law required him to admit said behaviour……We discussed for some time and as it was getting late called for the Deputy Justices` Clerk. His advice was that the defendant had had to be aware that his behaviour would have caused alarm or distress to be guilty and if we considered he was unaware then he was not guilty. 

A few minutes later he was relieved to walk away from court retaining his good character. An additional point which did not enter the mix of the above case is that generally being drunk is an aggravating factor in such a matter as it is in other charges but if he were so drunk to be unaware…………