AT LEAST JUDGES KNOW OUR VALUE

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 16:11:32

In a period when major changes in the system and practice of magistrates` courts are likely it is heartening to read some praiseworthy words instead of platitudes from government spokesmen.

At the swearing in of new Justices of the Peace in Bristol His Honour Judge Simon Darwall- Smith said the following, “You've joined a group of people without whom the freedom of every one of us would not exist at all. The only thing that stands between us and tyranny is the rule of law, and you are the guardians of that.” He continued, “You should no more pass a custodial sentence because the Daily Mail thinks you should, or a non-custodial sentence because the Ministry of Justice tells you the prisons are full.”

Would that these words were uttered by the Secretary of Justice but then he`s a politician.

NO REPRESENTATION WITHOUT CONSULTATION

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 15:53:03

There are some countries where referendums are commonly used to effect major legislative changes and some where they used increasingly sparingly often to get a government out of a tight situation. These two different approaches are epitomised by Switzerland and the U.K. The problem with the latter approach is what is good eg for the goose for Scottish or Welsh devolution is less palatable for the gander of the European Union. Once the referendum cat is out of the bag it`s very difficult if not downright impossible to get it back in.


And so it might be with the Magistrates` Association latest effort to persuade its members that it really does listen to them. A few days ago the chairman sent an e-mail asking our opinions on what best constitutes a suitable size for a bench. This was obviously in light of the impending forced amalgamation of many courts brought about by the current economic meltdown. Apart from the fact that the e-mail link to the voting options was unreliable the decision in itself has now set a precedent.


In June this year Sir Peter North`s Review of Drink and Drug Driving was published. I commented on July 5th when I discovered that the M.A.`s position as published in Magistrate magazine of that month was that the mandatory disqualification period for drink driving, if the alcohol level were lowered, be reduced from the current twelve months; a position with which I and others profoundly disagree. Where is the logic that that extremely significant decision should not be put to an e-mail referendum? Such is democracy.

UNTOUCHABLES AT THE METROPOLITAN POLICE

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 11:53:09

We don`t all read the Guardian. We might have pre-conceived impressions of its editorial drivers. But in common with all similar media when it prints news as opposed to commenting on such news we generally accept its accuracy . And when that news concerns comments by the Commisssioner of the Metropolitan Police it is not a waste of five minutes to read what he has said. And his comments reported yesterday 10th October certainly make interesting reading.

He is reported as saying inter alia, that he has privately lobbied the Home Secretary to make it harder for people to take legal action against his force. Not surprisingly this interview has provoked blogging comment in abundance so out of curiosity I had a brief look at the Met Police website at “latest news” and surprise surprise there was not a whisper of the Commissioner`s remarks. I then looked at Police Oracle, a widely read site for all matters to do with the men in blue. Once again there was no reference to the interview except by following a link in its newspapers links. Even Inspector Gadget amongst the most widely read blogs in the known world has not commented.

I find this deafening silence of some concern. Does it indicate that the lesser mortals in the police service are somewhat embarrassed that big chief Stephenson has raised an Aunt Sally of a target to be shot down when there are other pressing matters of concern eg preventing Islamic terrorists blowing up some more of us? Or is it a touch of collective conscience about fifty odd marksmen lined up to take out a drunken addict armed with a 50 yards range shotgun? Or perhaps that unlicensed untested tasers were unlawfully involved in the shooting of another admittedly dangerous man in Morpeth.

As the old joke goes; “Just because I`m paranoid doesn`t mean they`re not out to get me”. And if they do, and Mr Stephenson got his way he wouldn’t allow my family`s lawyers to have their day in court. Tell that to the family of Jean Charles de Menezes

SHADOW OF DOUBT

 by TheJusticeofthePeace @ 10. Oct. 2010. – 15:52:22

Before during and after appointment J.P.s have to jump through more hoops than a circus poodle. The list of “competences” required reads like a treatise on the correct behaviour with and use and disposal of a knife, fork and spoon at an Edwardian banquet with napkin use as an extra facility for those aspiring to head the table.

A chairman of a bench in my humble opinion has from experience and/or DNA the ability to do the job or s/he hasn`t. One of the most difficult tasks s/he has to cope with is that of a colleague who despite all the training seems unable to follow a structured pattern in decision making in deciding questions of fact ie is the case against this defendant proved or not?

Soon after becoming a chairman I was sitting on a matter of alleged assault by an ex Ghurkha on his wife. Having heard the evidence we retired to deliberate. In approved fashion we assembled the facts which had been agreed by both prosecution and defence and isolated the areas of disagreement before exploring the weight attached to these areas. My two colleagues each concluded that the facts proved beyond reasonable doubt that the defendant was guilty. I took an opposing view and proceeded to show how in my opinion if the facts were logically appraised there was sufficient room for doubt. I was unable to persuade my colleagues to my point of view. Accordingly I then wrote a preamble to our reasons which would be presented in court to justify the case having been proved. As I was about to ask my colleagues to dictate their reasons I passed the A4 pad across the table and said, “OK; you`ve found him guilty; please start writing your reasons.” James started to put pen to paper, hesitated and looking at Graham hesitated before they shook their heads in unison. They had not concluded his guilt on a logical structured basis. They had felt his guilt in their stomachs....a real gut feeling. There was a shadow of doubt. I agreed with them that he was probably guilty but that we could not be sure that guilt could be supported on the evidence we had heard.

I think that afternoon a lesson was learnt by all three of us.

EITHER WAYS ON THE WAY OUT?

 

by TheJusticeofthePeace @ 09. Oct. 2010. – 13:51:25

Either way offences can be tried at crown or magistrates` court. Magistrates [or D.J.] can accept or decline jurisdiction depending upon the seriousness of the charge and the possible disposal. Jack Straw commented at the last A.G.M. of the Magistrates` Association and others more recently that owing to long established quirks of the English courts defendants on either way offences can themselves choose trial by jury or summary trial in magistrates` court. He added that about 20,000 outcomes of such cases at crown courts resulted in sentences within the powers of the magistrates courts. The corollary is that this is a colossal and unnecessary cost to the exchequer.

There appear to be two reasons for this figure; either magistrates with the consent of their legal advisers are inhibited and too conservative in their interpretation of guidelines or judges are too lenient in their disposals. Of course there are many caveats. The CPS might be lax in their process of reviewing the case. The prosecution case at its highest might later be undermined by evidence for defence and/or mitigation for the defendant. A weak bench might be cowed by the prosecution. On the other side a judge might be mindful of pressures regarding the prison population. A case which seems to merit declining of jurisdiction by magistrates is by its very nature a relatively minor matter for a case hardened judge.

An example was heard recently at Teesside Crown Court where a violent domestic assault resulted in the perpetrator receiving six months suspended for two years and 150 hours unpaid work [community payback]. We do not know if a bench declined jurisdiction or jury trial was chosen by the defendant, whether he pleaded guilty at magistrates` court who sent him to crown court for sentence or whether he changed his plea on the day of trial. The fact is the disposal was within the powers at the lower court.

In no other jurisdiction as far as I am aware does a defendant have an opportunity to choose where to be tried . What is not in doubt is that within this parliament the nature and/or guidelines in dealing with either way offences will have been brought into the 21st century. If the change is not undertaken on the basis of legal argument it will be undertaken on the basis of saving unnecessary costs.

JUDGE BATHURST-NORMAN DISCIPLINED BUT NOT SACKED

 

by TheJusticeofthePeace @ 08. Oct. 2010. – 12:35:53

So Judge Bathurst-Norman has been disciplined earlier this week over comments made at a trial. I commented in detail on this unsavoury matter on July 20th. The reprimand is merely a slap on the wrist for this apology of an English judge whom one hopes will never be in a position ever again to preside over an English court. If a similarly phrased statement[s] as Bathurst-Norman`s had taken place in a magistrates` retiring room in deliberation over a case of [minor] criminal damage in all probability the J.P., who would certainly have been reported without any qualms by any right thinking colleague, would have been sacked.

There is no place for any hint of anti Semitism in public service and within the legal profession especially. This disciplinary action in itself will allow the maggots who deliberately conflate an antithesis with the policies of the State of Israel with the mere existence of Jewish people to insinuate yet again that Jews control this or that……..”that” in this matter being the “law”. I am indeed disturbed that Bathurst-Norman was not removed from his position on the bench.

PCSOs COST A FORTUNE & FOR WHAT?

 

by TheJusticeofthePeace @ 05. Oct. 2010. – 15:46:17

Over the last few months I have tendered some facts and offered my opinions on cardboard policemen and plastic policemen otherwise known as Police Community Support Officers. Neither the facts nor the opinions were complimentary. My experiences of PCSOs in court do not impress.

The Tax Payers` Alliance, loosely described as a right wing pressure group, has certainly set the cat amongst the pigeons with its latest press release. Once again it`s dispiriting to read that this latest information was obtained by a Freedom of Information request. This legislation is probably the best thing that Tony Blair did and an action which in his memoir he now regrets. But it is dispiriting insofar as the amount of material that government clings to until forced to spill the beans.
And the can of beans opened revealing the unholy cost to the council tax payer of these poorly educated, poorly paid police wannabees. Examples are that Nottingham`s 265 PCSO s cost £7 million in 2009/10.  In that year it cost Hampshire Constabulary £7.8 million to pay 330 PCSO s who detected just 50 crimes and handed out only 122 fines. The list goes on.

I have noted conflicting opinions on various police and PCSO forums as to whether PCSOs are going to be reduced in number to allocate what funds are available to real police officers or whether the option will be to keep the monkey and sack the organ grinder. All should be revealed by the year end.

In the meantime feast eyes below on the current powers given to PCSOs and reflect that they are the tip of an iceberg concealing many other powers given to other poorly educated, poorly trained and poorly paid men and women of quasi uniformed status.

1.Power to require name and address for anti-social behaviour
2. Power to require persons drinking in designated places to surrender alcohol
3. Power to require persons aged under 18 to surrender alcohol
4. Power to seize tobacco from a person aged under 16
5. Power to seize drugs and require name and address for possession of drugs
6. Power to require name and address for relevant offences or relevant licensing offences
7. Power to photograph persons away from a police station
8. Power to issue fixed penalty notices for littering
9. Power to issue fixed penalty notices in respect of offences under dog control orders
10. Power to remove abandoned vehicles
11. Power to issue fixed penalty notices for cycling on a footpath
12. Power to stop cycles
13. Power to control traffic for purposes other than escorting a load of exceptional dimensions
14. Power to carry out road checks
15. Power to require name and address for relevant road traffic offences
16. Power to place signs
17. Power to seize vehicles used to cause alarm
18. Power to enter and search any premises for the purposes of saving life and limb or preventing serious damage to property
19. Power to stop and search in authorised areas (terrorism)
20. Power to enforce cordoned areas (terrorism)
21. General Power of Seizure Section 19-22 PACE
22. PACE Section 18 – Power to enter and search a premises occupied or controlled by a person who is under arrest for an indictable offence and to seize items found on such a search.
23. Power to convey a detained person to custody
24. Power to carry out non intimate searches in respect of persons in police detention
25. Duty to prevent escape in respect of persons in police detention

LOCAL JUSTICE GOOD? LOCAL PRACTICES BAD? THE PIPER CALLS THE TUNE

 

by TheJusticeofthePeace @ 05. Oct. 2010. – 11:29:41

I am a member of a fairly large bench. With proposed court amalgamations on the horizon and its being certain my courthouse will not be closed many new faces and opinions are going to be seen and heard in the retiring room. That is to be welcomed. But what will be very unwelcome will be any attempt to import bench practices of another era which have, like the Komodo dragon, survived in a particular location.

Putting three people ideally of mixed sex…ie the bench is two of one and one of the other and not, to use current terminology, of mixed or trans gender [or is that fats?]………and mixed race is the ideal that Her Majesty`s Court Service would have presiding over a magistrates` court. I have absolutely no argument with that objective. It is however easier in theory than in practice. As far as I am aware appointments committees have race, gender and age in a small corner of their minds when J.P.s are selected. Modern technology and efficient staff within the courts` budgets has allowed my court to use quite sophisticated software to have a good mix of colleagues to sit on up to seventy courts per week. Those of us whose lifestyles allow a variation in available days and/or can provide the necessary sittings over and above recommended levels will rarely sit with the same colleague more than perhaps three or four times annually and the chances of an identical bench sitting {except for a part heard} more than once in two or three years is remote. And that is how it should be. All my colleagues, bar none with whom I have discussed this system, agree.

However pre historic processes are still retained and jealously preserved like a spider in amber by some other courts. Within a gallon’s worth of four star at a steady 30MPH from my courthouse the practice of a daily chairman appointing benches prevails. This inbreeding approach is an affront to the cohesion of a bench by promoting cliques, stifling the integration of new colleagues and distorting the public face of the magistracy.

This and other practices can be explained by the concept of “local justice”. The quasi independence of historic police courts and local petty sessions still has some meaning today. This term has been recently widely used by magistrates officially and unofficially in the campaign to retain as many existing courts as possible. But it rides uneasily with government emphasis on consistency across the magistrates` courts system so far as eg appointments, training and sentencing are concerned.

If and when the process of absorbing mainly smaller benches into their larger neighbours begins many of my colleagues countrywide especially those most experienced and perhaps within five years of retirement will decide they`ve had enough and put themselves out to grass.

In 2011 the magistracy will be celebrating its 650th year. There will be pomp and ceremony and lords, ladies, judges and Secretaries of State will be toasting the fine achievements of a uniquely English system of summary justice while plotting its demise in any form resembling that which pertains currently. Enjoy the champers when it`s offered and remember he who pays the Piper-Heidsieck calls the tune.

STATUTORY DECLARATION

 

by TheJusticeofthePeace @ 04. Oct. 2010. – 12:27:19

As previously alluded to over the last few months Justices of the Peace perform many functions outwith sitting as a tribunal in matters of criminal law. One such is the signing of a statutory declaration. This procedure is available at court at no charge for anybody who wishes to make a declaration that has the force of law. It is commonly used when an individual belatedly discovers that s/he has been fined or worse for a driving offence. Non receipt of fixed penalty notices is a common reason for stat. decs. to be declared in front of a bench. Sometimes matters of that nature can be complicated by the issue of whether the recipient of the F.P.N. was indeed the driver at the time the offence was alleged to have been committed.

But it becomes more serious when the offence is one for which penalty points have been endorsed on a driving license eg for driving with no insurance. The alleged offender when the matter comes to his notice should realise that if s/he has been continually driving as previously, being stopped by police could lead to more serious problems. Having come to court to make a stat. dec. which is accepted by the bench the court can either void the proceedings altogether or can void the conviction and allow the opportunity to plead not guilty and contest the matter. If, as is often the case, the court originating the prosecution is not the court at which the stat. dec. is made the voiding process will not appear on the police national computer which leads to the risk as above.

To alleviate this risk my advice to an applicant after having signed the stat. dec. has always been to take the form to the court office, have it stamped and to request a copy F.O.C. to carry with driving license to preclude further unnecessary police involvement. I had, in my ignorance, not realised until recently that a charge was being made for this service for some time past.

Sect. 92 of the Courts Act 2003, Statutory Instrument 2008 no. 1052 authorised a £5 charge for this photocopy. Now £5 to many readers here might not seem a lot to pay to rid one of a legal albatross around one`s neck but for the low paid and those on benefit it is more than two pints in the pub. There is process for remission of the fee but it must be made at the time the fee becomes payable and involves the production of evidence eg of being on benefits.

Those who might be eligible for such remission often lead disordered lives to the extent that the procedure simple for some is a nightmare with which they are unable to cope.

It is understandable to a degree that in the civil court litigants should be prepared for such expenses but in the criminal court such a charge is iniquitous. Justice must not be obtained at the price of attempts by Her Majesty`s Court Service to profit from inefficiencies of innocent parties or errors by prosecuting authorities.

SPECIAL CONSTABLES AND THE MET.

 

by TheJusticeofthePeace @ 01. Oct. 2010. – 13:07:40

Later this month the Coalition will announce how U.K. plc is going to save itself from going into administration. In the usual manner of preparing the ground for the cutting process we have been hearing proposed scenarios which truly appear to be “worst case”. Within the criminal justice system some “cuts” will be more deep than others. 

Those familiar with the workings within magistrates` courts are well aware, and have been for some time, of the ever reducing efficiency of what can no longer be reasonably be called a system. 

In my court eg the shortage of ushers can cause serious problems. These unsung heroes and heroines are important to the smooth running of courts, especially trial and remand courts. They are to the courts as WD40 is to a squeaking door hinge……the item will function without the lubrication but will work slower, noisier and be a distraction to users. A few months ago my bench on being aware that we had no usher for our morning non CPS court refused to sit until one was provided. Court began at 10.30am! These people are, I believe, paid little over minimum wage. Vacancies are not being filled. 

Our CPS area is not top of the heap as far as the CPS Inspectorate is concerned. Vacancies there are not being filled so much work is delegated to lower level staff and those at the top have more work than they can reasonably cope with to the higher standards which operated perhaps ten years ago. 

Whilst in the past Legal Aid might have been a milk cow for a minority of lawyers who exploited the system to their pecuniary advantage it has now become a road to bankruptcy for a number of the ever decreasing legal fraternity which still undertakes such work. The quality of second applications for legal aid initially refused by legal advisers has in my opinion fallen considerably judging by those I have considered in the last few months; another pointer to the probable lower level within the organisation of the writer cf a few years ago. 

And so to the police; our first defence against criminal behaviour. Today October 1st not one of the police forces in England and Wales is accepting applications for new full time entrants. However twenty, just under half of forces, are recruiting special constables. Successful appointees will not be paid but of course their training costs are considerable. For the specials themselves it has always been a large shiny gold star on their C.V…….much the same as J.P. I suppose. It has also been a helpful stepping stone to a career as a professional police officer. The Metropolitan Police has now taken this career progression a stage further and announced that henceforth the only way into the force is via becoming and working successfully as a special. I must applaud this innovation. Although it has been precipitated by the dire financial position in which all public services find themselves it is putting into practice what has been common for the networking middle classes and business and professions since the year dot;- the unpaid intern or for the working class; the apprenticeship. Prior to and even for a few years after World War 2 the host lawyer, accountant or even barber would not only not pay a wage to his teenage aspirant but would expect a stipend for his troubles.

With the police service steadfastly refusing to return to officer entrance at inspector or above and requiring all ranks to begin at the bottom sifting applications to full time professionals from a cadre who have had twelve or more months on the streets part time must surely provide the force with an opportunity to weed out those who would be deemed unsuitable before they can do real trouble to themselves and us; the public they must serve although of late the service part is often lost in translation. Well done the Met! 

CARDBOARD POLICE - ESSEX NO! HUMBERSIDE - YES!

 30. Sep. 2010. @ 12:00:13 by TheJusticeofthePeace

There are some occasions when the phrase, “words fail me” sums up a reaction to what has been read, seen or heard. Bloggers by their very nature can`t afford to sit motionless at the keyboard paralysed into silence by the sheer lunacy of what information passes before them.

Exactly three weeks ago I mentioned in passing that Essex Police had abandoned the placing of cardboard cut outs of police officers outside shops and petrol stations around the county in an attempt to dissuade offending. Common sense, a faculty increasingly in short supply owing in part to the multicultural implications expressed at the top levels of what is common to eg a British born Caucasian might not be common to a foreign born person of a different ethnic origin, should have indicated the futility and contempt in which such actions would be held. The bosses in the county of the Capri and white stilettos have at least seen sense….eventually…….. and have removed such pantomime figures. 

One would have thought that that attempt at reducing criminal behaviour would not be repeated except perhaps at a Punch and Judy show on the beach at Weymouth if the “protect our children from violence” brigade have not banished it as “corrupting and liable to incite domestic violence”. But the example or lesson has not been learned by police in Hull. A BBC report of that force`s assertion that cardboard police have reduced crime makes interesting reading. I am not a statistician but to state that because two events happen simultaneously one is the cause of the other is sheer nonsense. But this is more than mathematically induced rubbish. It will bring the force into contempt when this play school experience is abandoned in the face of public ridicule. Police have through their own actions lost the position of respect they once held. Instead of looking for short term publicity when financial constraints are squeezing budgets dry Hull police should treat fellow citizens with respect and abandon such an idiotic practice.

LET SLEEPING JUDGES SLEEP WHILST J.P.s ARE FIRED

 28. Sep. 2010. @ 11:22:44 by TheJusticeofthePeace

Professional people must jump hurdles of varying heights in order to be entrusted with the tasks and duties they have voluntarily offered to perform for those who directly or indirectly pay for or receive their advice and/or services. Only in the most heinous circumstances do those individuals receive the ultimate sanction for departing morally or professionally from their chosen path. Mass murderer Harold Shipman was a known drug addict and was supposedly rehabilitated and allowed to continue to practise as a physician. When it comes to members of the judiciary misbehaving, a casual onlooker might opine that the higher up the ladder of seniority the alleged “justice” is standing the greater the saturation of redness must appear on his hand before action is taken. 

Magistrates [and others] in my opinion operate within what is arguably the most politically correct organisation in the country……Her Majesty`s Court Service and under the auspices of the Ministry of Justice. The well known and accurate description; “justice must not only be done it must be seen to be done” is not merely a snappy phrase; it gives meaning to a necessary pillar of a free society.

Within the Office of Judicial Complaints it seems there is no such consideration as “three strikes and you`re out”. It is more a matter of slip up once however minor and out you go. That philosophy certainly does not operate amongst other professional supervisory bodies. 
Then pity or castigate John Harrison ex J.P. on the Lancaster Bench who last week was thrown out for nodding off whilst chairing an assault trial. It seems that judges can fall asleep during a trial, admit such and continue on the bench. Such was the situation with His Honour Judge Michael Coombe [now deceased] who fell asleep during a robbery trial in 2002. Although convictions against the defendants were held at appeal in 2004 three of them had their sentences reduced. And his is not the only example. In 2001, Judge Gabriel Hutton was disciplined for falling asleep during a rape trial. In 1999, Judge Victor Hall was 'severely reprimanded' after he was convicted of drink-driving. 

It seems that the propensity to conceal judicial incompetence at the higher levels like all such attempts at cover up from Watergate onwards will lead to more revelations. 

Sleeping judges are a not uncommon consequence of advancing age, stuffy courtrooms and listening to sometimes boring people talking boring nonsense. But they are not sanctioned in the manner of magistrates. 

So for any colleagues especially those sitting in afternoon sessions……….an inability to have time for more than a cup of tea and a sandwich as opposed to a three courser and wine as our senior colleagues at Crown Court can avail themselves is no cause for despair. The motto is no second chances; keep awake or be fired! 

MAGISTRATES CAN BE INQUISITORIAL IN THE INTERESTS OF JUSTICE

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

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

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

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

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

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

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

IT`S TIME TO END DEFENDANTS` RIGHT TO CHOOSE

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

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

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

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

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

ASBOs - THE END

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

JUDGEMENT AT CHESTER CROWN COURT

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

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

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

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

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

IT`S ALL RELATIVE

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

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

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

However as I wrote earlier; everything is relative.

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

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

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

ROBBERS & J.P.s GO TO COSTCO

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

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

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

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

Well, I`m off now to Costco. 

A TOTTER IS A TOTTER IS A TOTTER

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

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

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

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

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

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

MAGISTRATES` ASSOCIATION RESPONSE TO COURT CLOSURES

 

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

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

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

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

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

NOT A GREEN AND PLEASANT LAND

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

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

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

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

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

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

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

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

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

WILL ENGLAND FOLLOW SCOTLAND AND ABOLISH SHORT SENTENCES?

 08. Sep. 2010. @ 08:46:40 

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

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

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

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

AN INSIDER SPEAKING OUT

 11:18:06 by TheJusticeofthePeace

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

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

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

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

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

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

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

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

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

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

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

EXCEPTIONAL HARDSHIP IN RELATION TO DRIVING DISQUALIFICATION

 11:02:22 by TheJusticeofthePeace

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

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

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

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

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

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