BREACH COURTS LEAD TO JAIL FOR SOME

 16. Jun. 2010. – 15:31:04 

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

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

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

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

SHORT SENTENCES ARE NOT TO BE DISPOSED OF

 

14. Jun. 2010. – 16:05:31

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

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

JUSTICE SEEN TO BE DONE BY "TIME SERVED"

 

11. Jun. 2010. – 11:13:10

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

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

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

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

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

STUDENT LAW BREAKERS AND VERY SEVERE CONSEQUENCES

 

10. Jun. 2010. – 13:29:27

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

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

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

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

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

STAFFORDSHIRE CRIME STATISTICS GOING UP AND DOWN

 08. Jun. 2010. – 16:00:45 

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

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

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

JEKYLL AND HYDE PROSECUTIONS

 

07. Jun. 2010. – 10:41:51

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

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

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

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

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

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

SENTENCING IS AS FASHIONABLE AS WOMENS` HEMLINES

 

06. Jun. 2010. – 13:57:25

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

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

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

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

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

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OFF THE GUIDELINES JUDICIAL SENTENCING

 

05. Jun. 2010. – 14:04:49

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

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

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

DANGEROUS DOGS ;TIME FOR THE LAW TO BITE BACK

 

04. Jun. 2010. – 12:58:07

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

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

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

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

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

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

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

HOW MANY POLICE DOES IT TAKE TO ???

 

02. Jun. 2010. – 16:03:59

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

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

NO MORE ROGUE CAR CLAMPERS IN 2011

 02. Jun. 2010. – 15:36:39 

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

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

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

NO USHER; NO COURT; NO JUSTICE

 29. May. 2010. – 13:45:14 

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

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

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

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

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

REGULATION OF INVESTIGATORY POWERS ACT 2000

 28. May. 2010. – 16:58:43 

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

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

IDENTITY CARDS BURIED WITH LABOUR!

 27. May. 2010. – 14:06:37 

Libertarians and perhaps many others not so single minded about retaining their privacy in an increasingly big brother state will be extremely pleased at today`s announcement that Identity Cards for all, a policy so fervently espoused by successive Labour Home Secretaries, are now history. If this government offers nothing else to those who are resistant to being obliged to identify themselves to petty bureaucrats and worse it will be enough. But it didn`t begin in this century.

In late December 2008 I was sitting on a case where a driver had refused to give his details when required by a police officer. For a reason now forgotten during this hearing we had some "downtime" and were in the retiring room where on impulse I looked at the bound annual copies of "The Justice of the Peace" on the bookshelf. I chose to look at the edition of 1908 and found the page for the same December date of that year. And there it was in black and white Edwardian prose; the case law where a driver on the request of a police constable was required to give his name and address. Licenses to drive were for the future. A gentleman had been motoring through Hyde Park and for whatever reason refused to give his details to the constable when asked. The case duly reached a higher level where it was decided that a constable had the right to demand a driver`s name and address.

Was that a coincidence? Do we have free will? Will the world end in 2012? Will England win the World Cup? 

NOT ALL THE FUN OF THE FAIR

27. May. 2010. – 12:13:52 

Those of us who are literate enough to read and/or write assimilate so much information on a daily basis that our mind is programmed to act as a very efficient filter retaining in either our long term or short term memory areas only the information which sub consciously or consciously we would wish to retrieve at some future time. Events, in the widest possible use of that word, will tend to be retained if they are so outwith our normal experiences they provide a form of template against which others could be judged. Such was the experience I had when I noticed the following headline in the on line Register; "Statistics prof nails Blackpool hoopla scam".

Who hasn`t played hoopla? Throw a ring around a peg and bag a prize. Along with "roll the penny" hoopla was the most widely played stall at local carnivals and fun fairs when I was allowed out with friends and no parents to bother us......I was about 11 at the time. Anybody eg who accepts the challenge to "find the lady" from an East European on the pavement in London`s Oxford Street deserves no sympathy for his/her loss but a hoopla stall in Blackpool??????

On a few occasions I have queried the veracity and purpose of the statistics produced by those who are interested in propagating their opinions on whether crime and everything associated with it is going up, down or sideways. It would appear that Lancaster University statistics lecturer Dr David Lucy showed it would take a player over 2,622 attempts to “stand a 99 per cent probability of success” to throw a hoop over the peg at a stall run by Darren Casey. Without having the academic expertise to comment on the maths of the statement of likelihood of success but believing that there is rarely 100% probability of anything apart from death and taxes he seems to be saying that the punters were being ripped off. Blackpool magistrates agreed. Casey was sentenced to 14 weeks custody, suspended for one year, ordered to complete 270 hours of community service and pay £2,000 in court costs. He also pleaded guilty to "allowing a child to gamble", and was handed 135 hours of community service and ordered to cough £575 in costs. 

Perhaps Dr Lucy should be invited to study crime statistics produced by Uncle Tom Cobley and all and find out if any cheating has been going on? 

POLICE, HUMANISM AND DIVERSITY

 

26. May. 2010. – 12:05:52

It never ceases to amaze me that police forces have moved in a couple of generations from what could loosely be termed amongst the most reactionary of organisations to arguably the most politically correct in this country. In fact we no longer have police forces; we have the police service. Whether the pendulum has swung too far is for individuals to judge for themselves. But there is no denying that it has swung. And nothing typifies that more than the pre occupation with "diversity". We have associations for police officers of all shades [literally], creeds and opinions.....black, Christian, Muslim, Jewish, Hindu and even pagans are throwing their rights of association into the fractured systems of representation within policing. And with groupings where membership is based on rank it is a wonder there is any cohesion at all. Perhaps the glue that holds all police officers together is one of the oldest such compounds discovered.....the "them against us" adhesive which has been shown in times past to be a force as much against the administration of honest policing as for it.

It seems that notwithstanding the above Hertfordshire police have recruited two humanist advisers. In the full report there is this paragraph;
“Humanism is a religion based on reason not faith, which does not depend on a god or gods, and believes science provides the only reliable source of knowledge in the universe.”

The British Humanist Association defines humanists as follows;
“are atheists and agnostics who make sense of the world using reason, experience and shared human values. We take responsibility for our actions and base our ethics on the goals of human welfare, happiness and fulfilment. We seek to make the best of the one life we have by creating meaning and purpose for ourselves, individually and together.”

There is no mention that Hertfordshire Constabulary is paying for the services of the aforementioned advisers. However this example of supposedly trying to please all the people all the time must cost the organisation in time and materials. Whilst some might find all this uplifting this sorry tale in my humble opinion demonstrates clearly that our society is now based more on drifting sand than solid bedrock.

DRUGS IN PRISONS

 

24. May. 2010. – 11:20:38

To argue in the negative is always a difficult task. To remember negative thoughts or activities or perhaps the repression of such provides food and drink for those in the business of "therapy". For those even with elephantine memories the lack of memories of continual media exposure of prisons seems somewhat surreal. Perhaps as a society we are more pre-occupied with crime and criminals than we were in the past. Certainly prisons and all aspects of their place in the criminal justice system fill more media columns and TV hours than was the case twenty years ago.

There are annual reports, overcrowding, suicides, and of course drugs. I remember about the late 1980s listening to a report by a New York health officer on the Today programme on Radio 4 telling the audience that his city`s overwhelming crack problem would also be Britain`s in ten years such is the commonality of this modern plague. And so it has come to pass.

On 12th April I posted "CAN DRUGS BE EXCLUDED FROM PRISONS?". There have always been unsubstantiated reports that prison officers prefer their charges to be semi docile having had their regular fix than to be faced with 1000 offenders on cold turkey. Whatever the truth my impression is that if there were a will to control drugs entering prisons and money were available then the way would be found."

A couple of weeks ago a two part reality TV documentary of life in Wormwood Scrubs was screened. I`ve visited two large jails but not the Scrubs. They are not surprisingly depressing places for the visitor....three to a cell about the size of a garden shed where the inmates eat and defecate with only a curtain to separate the two bodily functions. In both establishments the senior prison officer who was our escort.....we were a group of JPs, lawyers and a judge.........was at pains to explain the strenuous efforts to curb drugs entering the buildings and their consequent circulation through the prison. The TV programme relayed the same sentiments from prison officers at the Scrubs....sniffer dogs, strip searching and sanctions available to offenders caught. But then we were shown the visiting hall[s] where despite CCTV and roaming warders with dogs physical transfer of drugs was not the most difficult task because there was no physical barrier between convict and visitor. I can understand the argument that to allow such contact can keep prisoners mentally stable and looking forward to re-joining their families when their stretch is completed. But in my opinion it is a bit like having the car`s air conditioning on full blast in the desert with the window open.

In the Sunday Times yesterday David Leppard in a thoughtful article provided some interesting information from an as yet unpublished report from the Policy Exchange think tank. It says jail prices of heroin, cocaine and cannabis are ten times street value and consequently a great temptation to prison staff to smuggle in and sell on. Of the 90,000 inmates of Britain`s prisons at any one time 14,000 were using drugs at least once a week. The Met police in 2006 found at least 1000 of the ten thousand prison officers were receiving income from corrupt practices including smuggling drugs.

Certainly if one third of prisoners is high or looking forward to their next fix it must make life easier for the staff who are without doubt very poorly paid for the job they do.

There are those and I am one who advocate the decriminalisation of currently class A- class C drugs and concerted efforts to treat drug addiction as a medical problem as opposed to a criminal problem. The consequences of such addiction are often ruinous to those close to in addition to the addict him/herself and in prisons drug addiction and suicide are not wholly dissociated bedfellows.

Dame Anne Owers the Chief Inspector of Prisons told an audience last week that British prisons have too many inmates suffering with mental health problems. She told her audience that when mental hospitals were closed down in the 1980s and 90s Care in the Community was promised. “In practice that has translated into Care in Custody. A large percentage of prisoners are mentally ill and prison officers are not trained to deal with them.” I think there is not one magistrate or judge who would disagree with those remarks.

I posted yesterday that short sentences are necessary. They are. But so are places of refuge and treatment for those who cannot cope with their lives. They are called asylums and every town or county used to have one. Now these buildings are often blocks of flats. Another example of misguided thinking and planning by those playing Monopoly with real money and real populations and who walk away from the very mess they created. Will it be any different this time?

SHORT PRISON SENTENCES ARE A NECESSITY

 23. May. 2010. – 13:35:08 

Being a long serving member of an urban bench, meeting and sitting with newly appointed colleagues is usually a refreshing experience. Owing to the age profile where I sit we have had around two dozen new faces in the retiring room in the last eighteen months. They range in age and profile from thirty something hedge fund managers and high flying civil servants, forty something housewives, fifty something ex police officers, one rabbi, one well known in her field female entrepreneur, and two sixty something retired lawyers. Some are black, some are Asian, most are white. At least one is severely physically disabled. I am pleased that none is younger than in his/her thirties and that contrary to some colleagues` opinions I am not unhappy that we have no deaf or blind appointees. 

When sitting with recently appointed Justices who by this stage have had extensive and expensive training there is one factor which no amount of preparation can equip them with and that is a backlog of experience in sentencing. Six months` custody is the courts` maximum. Faced eg with a defendant with no criminal record convicted after trial of punching, kicking and pushing to the floor his pregnant wife where on the ladder of punishment do you place this man? With experience one thinks back to previous similar assaults and compares the situation with aggravating and mitigating features of other assaults. In other words a template in the mind is added to the official guidelines. When that process is explained to a new colleague his or her reluctance to consider the maximum sentence as a possibility is overcome in a logical structured fashion.

On one aspect of sentencing all colleagues are in agreement. We do not take any pleasure in imposing jail sentences. Contrary to the outbursts of some ignorant politicians there are sometimes occasions when there is no other option. 

Such was the case earlier this year when Graham was in the dock. He was thirty nine going on sixty. His face was custard coloured, his hair....what he had....hadn`t been combed or washed for months, his sweat shirt was more sweat than shirt and his jeans were about two sizes too big for somebody approaching six foot and only about nine stone. He appeared for sentencing for breaching the punishment for theft of a few items from a supermarket imposed two months previously; a 7.00pm - 7.00am three month curfew. It wasn`t that he`d got home a little late on one occasion or left a little early one morning; he had been away from his address for at least five of the curfew hours on seven times in a month.

He had four pages of "previous". He had had every sentence in the book for drug possession, three courses of drug rehabilitation, umpteen thefts and robberies and had been inside many times. Indeed he had been released from prison for a previous low value theft only two weeks prior to having committed the offence for which he was given a curfew with that bench`s remarks noted on the court file," We are imposing a curfew and not custody. We are giving you a final opportunity to try to sort yourself out." His solicitor mitigated for him with obvious great difficulty. One of the factors that sentencers have to consider is the protection of the public. After conversations with my new colleague based on comments and sentiments above and agreement with our third member we sentenced him to fifteen weeks custody. 

Those who would alter the system to eliminate short sentences altogether should visit their local Magistrates` Court from time to time and acquaint themselves with what real people do and real people suffer and that those of us privileged to sit on the bench whilst not living with the Book of Leviticus under our pillows do our jobs as justly as we can on behalf of a society which doesn`t always know whether it wants hanging or harmony for miscreants. 

MAGISTRATES AND COMMON SENSE

 18. May. 2010. – 13:17:45 

In order to be appointed as Justices of the Peace applicants have to jump through a fair number of hoops and that is as it should be. In order to sit in judgement of fellow citizens which is a great privilege and responsibility it would be a strange system which did not wish to appoint the best people for the job regardless of ethnic origins, position in society, marital status, social status, political affiliation. All that is required is good health, good character, the required referees and if there is a disability this will be considered on the individual merits of the applicant. The personal qualities necessary are in addition understanding and communication, social awareness, maturity & sound temperament, sound judgement, commitment & reliability.

As happens regularly in towns all over the country new magistrates were recently sworn in at York. At the ceremony Judge Ashurst said: “Every single case is different. Our communities require people with knowledge of the world and bags of common sense to do the justice which has traditionally been done in these courts.” [my italics]

When I was sworn in during the 1990s the appointee had to possess as a requirement "common sense". As the good Judge said above and as many would agree "common sense" as a necessary requirement seems to be....you guessed right.........common sense. But it`s not. Sometime in the last ten years that requirement was withdrawn. As I understand the reasons that were issued at the time it was asserted that what would be common sense to one person might not be common to another especially somebody whose origin was not of the UK where the word common [belonging to all] would not necessarily be applicable. 

Perhaps the Judge was unaware of this. Perhaps he was well aware and chose his words deliberately. In any event in my opinion he did us all a favour and especially the new JPs in emphasising that whether or not it`s official or unofficial common sense is more than a worthy attribute of a magistrate; it is a necessity. 

WHEN A WIFE GIVES EVIDENCE IN HER HUSBAND`S DEFENCE

 @ 17. May. 2010. – 11:18:41 

Most people are aware that, generally speaking, a wife cannot be forced to testify against her husband. Consistent with that understanding, magistrates when listening to a wife who gives evidence on her husband`s behalf, will decide how much weight to give to her evidence.

And so to the tale of Fred and the lovely Maureen. He was a 45 year old self employed builder and she was a hairdresser. It was earlier this year and he had been charged with racially aggravated assault insofar as he had punched the complainant, a youth called Jerry, outside the pub calling him a "lazy gypsy bastard". We had heard evidence from Jerry and the officers who arrived at the scene after the incident and had arrested Fred. In due course Fred gave his account of the incident in which he asserted that he had acted in self defence when Jerry tried to hit him. Under cross examination he was forced to admit that he had used the words ascribed to him but vehemently denied the assault. His only defence witness was Maureen. She obviously had taken time to prepare for her appearance in the witness stand. Not surprisingly her hair was immaculately back combed in a style that my female colleague to my left whispered would have done justice to the late great Dusty Springfield. As she was the only other witness to the incident defence counsel took her slowly through the events of the evening. For those perhaps unfamiliar with the process, witnesses in this country and certainly not in Magistrates` Courts when being questioned by a defence lawyer who is being funded by Legal Aid, are not rehearsed prior to giving evidence unlike the process in eg "Law and Order" or for an older generation "Perry Mason". All was going well for Fred who was listening intently to Maureen describing her husband`s acting to protect himself until when asked whether she had heard her husband use the fateful words stated categorically that he had not uttered them. A brief glance at the dock and it was obvious that Fred had realised the game was up. In her eagerness to please she had let him down and the truth prevailed. We found beyond reasonable doubt that Fred had acted in the manner told to us by Jerry.

Sentencing was adjourned for reports. One can only speculate on the subsequent conversation between defendant and his wife........ 

KENNETH CLARKE and TRULY a C.J.S.S.S.

 16. May. 2010. – 13:33:17 

It`s not often that a government, especially one in the midst of a financial crisis it has been elected to alleviate, can cut costs by imposing a measure which is long overdue and which is unlikely to receive any major opposition other than from die hard professionals struggling to preserve their own interests. That opportunity is available to the most canny member of this new cabinet Rt. Hon. Kenneth Clarke M.P. Q.C.

On 21/11/2009 I argued that "Either Way " offences are an anachronism. Another example of the abuse of such choice is illustrated by a case last week at Preston Crown Court.

The state should be the sole arbiter of mode of trial; offences being heard at either Magistrates` or Crown Courts. In the recent past former Justice Secretary Jack Straw argued that too many cases are being sent to the latter from the former for sentencing. Mr Clarke has the opportunity and the ability to power through Parliament a bill to abolish either way offences and to increase the sentencing powers of Magistrates` Courts to twelve months` custody. In one well aimed fell swoop £millions would be saved and the efficiency of Her Majesty`s Court Service increased. And then one of its favoured initialisms CJSSS would be more likely to be meaningful. [Criminal Justice: Simple, Speedy, Summary] 

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.