And Another Thing

Speaking of fines, I'm reminded of an occasion when we were doing yet another means enquiry on an unprepossessing young man who owed the court £900 from 12 months back, had not paid a single penny, and was running us ragged. He knew the system and was playing it for all it was worth. My colleagues had already imposed a suspended committal on him, and despite this his wallet had remained tightly closed, at least as far as the court was concerned.

We had had enough, so we called the clerk out to tell her that we were going to send our man inside. She checked the right number of days, and rang down to the cells for an escort to take him down.

We went back in. I fixed him with a hard stare and said: "Mr. Smith, you have been given every opportunity to pay all or part of this fine and for a year you have completely failed to do so. We commit you to prison for 28 days." He stood unmoved, waiting for me to announce that the sentence was suspended. I didn't. He was galvanised when the dock officers came through the door and advanced on him. "This is a fucking kangaroo court. You bastard. I'll have that money here today." The rest of his remarks were muffled as the door to the cells shut behind him.

As I was leaving for the day much later one of the cell officers approached me and said: "You know that man you sent down for a fine sir; well his brother turned up just after three o'clock to get him out, but he had brought a cheque. We don't take cheques, as you know, so we told him it had to be cash or bank draft. He came back about ten mimutes ago, but the van has already gone. I don't think he'll get to the Scrubs in 35 minutes, do you?".

So our man was released the following morning when his family trekked to the Scrubs to buy him out. He was given a bit of credit on the fine for his night in prison, but every time I think about him it brings a smile to my face. He breached Rule 3b - don't take the piss.

Fine and Dandy

The fine is one of the most commonly-used penalties in the courts, and it has a lot to recommend it. It is simple, and can be adjusted to suit the gravity of the offence and the means of the offender. It is a punishment, but the proceeds benefit society, rather than being a heavy financial drain, as with prisons. It is unlikely to cost anyone his job or break up his family. For most offences the maximum fine before magistrates varies up to £5,000, but for a few involving health and safety and pollution-type offences it can go as high as £20,000.

The problem is that the majority of people who appear before magistrates are poor. In London's booming economy the real money is earned in finance and IT, and the dirtier jobs, some of them very well paid, are usually done by foreigners. There are few jobs for the underclass, whose employability is often fatally damaged by functional illiteracy, social alienation, and the ubiquitous use of drugs to blot out the world's trials. Thus, when I sat in a fines enforcement court the other day, dealing with those who had fallen into arrears, of the twenty or so people who appeared, only one had a job. Courts are limited by law to fining people amounts that they can realistically pay, but for multiple petty offenders fines can soon ratchet up to an impossibly large sum. We have the power to remit fines that, perhaps through change of circumstances, have risen to an unpayable level, and it is usual to 'lodge' or cancel, fines owed by someone who serves a prison sentence, on the commendable principle that on leaving prison the offender should have a fresh start. Another frequent problem is the petty offender who does not turn up to court and is dealt with in his absence - a common feature of fare evasion and TV licensing cases. If the defendant is absent all that the court can do is to impose the standard fine, and this leads to anomalies.

Most cases were dealt with by making an order to deduct £5 per week from benefit which is simple and relatively effective. In a few cases with hopelessly poor and disorganised women who had been fined for TV licence offences we remitted the bulk of the fines. A woman living on benefits in a council house, with five children, no man, and a teenage son who is constantly in trouble, has so much on her plate that we think it right to reduce her fine to a token level.

The enforcement court requires different skills from the criminal court, since the aim is to collect the money, so those of us who have a bit of barrow-boy in our character can do quite well.

For determined evaders (who refuse to pay or are 'culpably negligent') at the end of a long road lies committal to prison. That's an admission of defeat because committal wipes out the fine, and prison is expensive, but if we have to do it, we do.

Bad Character

The more observant among you will have noticed that a current high-profile murder trial at the Old Bailey has seen a defendant's previous convictions brought before the jury. This is one of the first appearances in a newsworthy trial of the new law allowing bad character to be adduced. The Judge will have had to give his permission, and he is hedged around by directions that he will have to give the jury before they retire, but the cat is out of the bag.

From what I read about the case in the paper this morning the bad character seems highly relevant, and the jury will find that it steers them in a certain direction. Two points though: firstly, in a case as strong as this one appears to be the bad character may not be necessary to obtain a conviction, and secondly, at magistrates' court level it is the magistrates who hear the bad character application and decide whether to allow it in. If they say no, the trial goes ahead anyway, so they have heard the bad character, but will 'put it out of their minds'.

It hasn't happened to me yet, but I am sure that my colleagues who do get to decide one will do their best.

Common Sense, or Overreaction?

I have every sympathy with the difficult job that the police do, but I have to say that their middle management does not always impress me.
The murder of a PC in Bradford is being investigated, and I hope that the law will take its course. Many of us have been aware for a long time just how sophisticated and far-reaching police surveillance technology has become, and its latest developments appear to have assisted in the arrest of a number of suspects.
But did you see the TV news footage of those suspects being taken up the M1? Something like a dozen vehicles, including many armed officers, proceeding at a stately speed up the motorway, with junctions closed as they passed, and other vehicles being kept away. At the scene of the murder, armed officers stood about in their baseball caps, looking at the cameras that were looking at them.
What exactly were the police so worried about? This wasn’t Al-Quaeda or the IRA, was it? The police are looking for a bunch of small-time losers, albeit armed ones, who tried to knock over a travel agency in a run-down part of a run-down town, not a paramilitary group. Was it really so necessary to deploy scores of officers (who could presumably be more use elsewhere) on escort duty, or on standing around in the cold cradling a Heckler and Koch automatic carbine? Did anyone seriously fear an attempt to release the suspects, or to burst into the crime scene and mess up the evidence?
I suspect that every time a middle-ranking officer sees this kind of grandstanding he becomes determined that when it’s his turn to be in charge, he too will throw everything he has at the problem for the benefit of the cameras. Where is the managerial assessment of the problem, and the proportionate use of resources?

A Good Result

A neighbour approached me for some advice about a motoring offence. To cut a long story short, he had been stopped in a radar trap early one morning, along with a few other drivers. The PC who stopped him asked: "Can you produce your licence within seven days?" "No I can't" he said. "I am on my way to Dover for two weeks' holiday in France." The car was full of family and luggage, so he was obviously telling the truth. "In that case, sir, I can't give you a fixed penalty, so I shall have to report you for summons."

So off he went on holiday. The summons arrived, and he pleaded guilty by post. When he got a letter from the court he was upset to find that he had been fined £110 plus four points on his licence, and on top of that he had to pay £35 costs.

With a bit of coaching he wrote to the court. He related the tale above, and he said, respectfully, that he had heard that where a fixed penalty could not be offered for reasons beyond the defendant's control the Bench Book guidelines (as on the sidebar) suggested fining the amount of the fixed penalty. Would the court therefore put the case before a bench, and invite them to re-open the matter and have another look at it?

So they did look at it, they reopened it, and substituted a fine of £60, three points, and no costs.

I think that this was entirely fair, as it ought to be, and I post the story just to make the point that few of us have anything to lose by telling a bench of magistrates what our case is, and letting them decide.

I got a decent bottle of wine out of it too.

Girly Stuff

Today's Sun front page is headlined:-

POLICE GIRL SHOT DEAD

The 'girl' in question was a mother of three, and almost exactly the same age as the red-haired 'girl' who edits the super soaraway Sun. Anyone got a bucket handy?









Dead girl (and newspaper girl for comparison).

Law Piled High Upon Law

While looking up the chapter and verse for the fake-fruit rules I stumbled across a wonderful list of Statutory Instruments, those lesser laws that regulate our lives in minute detail, often with the threat of criminal sanctions. Here is just a handful, from just one year, but there are thousands of them, and I do feel for the legions of civil servants who slave over their keyboards dreaming them all up.

That’s why I could never be a lawyer, I fear. Rather than getting on with the job I would dreamily thumb through lists such as this one, my imagination taking flight at the sheer number of things that we must and must not do:-

The Sludge (Use in Agriculture) Regulations 1989
The Undersized Bass Order 1989
The Cereals Marketing Act (Application to Oilseeds) Order 1989
Act of Sederunt (Fees of Messengers-at-Arms) 1989
The Outer Space Act 1986 (Commencement) Order 1989


Beyond satire, my friends, quite beyond satire.

Shameless Plug

"2005 Blogged: Dispatches from the Blogosphere" edited by Tim Worstall is now available from amazon.co.uk.

I believe that this blog has a small part in the book, which is nice. Buy one, won't you?



(If it makes you feel better, there is no money in it for me).

Apocrypha 14

Did you know that it is an offence to sell anything that looks smells or feels like a piece of fruit but isn't? No, neither did I. Novelty items that look like strawberries or apples are a legal no-no, and shops that sell them can be heavily fined (up to £20,000) because of the danger of children eating them.

For the doubters out there, here's the law:-

No person shall supply, offer to supply, agree to supply, expose for supply or possess for supply any manufactured goods which are ordinarily intended for private use and are not food but which-

(a) have a form, odour, colour, appearance, packaging, labelling, volume or size which is likely to cause persons, in particular, children to confuse them with food and in consequence to place them in their mouths or suck them or swallow them; and

(b) where such action as is mentioned in (a) above is taken in relation to them, may cause death or personal injury

(The Food Imitations (Safety) Regulations 1989, since you ask)



Some real fruit for comparison purposes

------------------------------------------------------------
Today's Daily Express front page is so perfect that I nearly bought a copy to frame and hang on my study wall:



It's all there, isn't it?

Prison

The highest penalty available to a criminal court is that of imprisonment. For magistrates the maximum sentence is six months, or twelve months where there are two separate either-way offences being dealt with. The first time that I ever signed a warrant committing someone to prison my signature was shaky as I contemplated the awesome responsibility. Now if I have to tell someone that they are going inside I make sure that I look them straight in the eye and tell them as crisply as possible what is happening and why. If the defendant comes to court on bail and is in the open dock we call the clerk outside to check the legality of our decision and then a phone call is made to the cells. Officers wait outside the courtroom, and only come in after the sentence has been announced. Most defendants take it calmly, but the odd one might make a fuss: if his record suggests that he might cause trouble a couple of extra officers will come up, and he might even be handcuffed before being taken down.

Every newly appointed magistrate has to visit a prison and a young offenders' institution, and we make regular refresher visits to keep up to date with what is going on. For adult prisoners there are four categories, from A to D, reflecting the likelihood of their trying to escape and the danger to the public. Category A means the highest level of security, while category D is likely to be in an open prison.

We usually start off by visiting the local prison to which we send most of our remand prisoners and those beginning their sentences. Short sentences are normally served locally, as there isn't time to assess the prisoner and allocate him to an appropriate prison before his sentence comes to an end. The biggest prison in West London is Wormwood Scrubs, built in the 19th Century (by prison labour - even the bricks were baked on site from clay taken from what is now the cellars!)holding just over 1100 men. The main gate of the Scrubs is well known from television, and when you pass through security the first thing that you see is the enormous chapel (as big as a large parish church) also built by prisoners. Behind the altar are a number of paintings done by inmates about 100 years ago, painted on mailbag canvas. The prisoner in charge of the chapel is very proud of it, and is always anxious that visitors should see it at its best. When I last went he was a tall, bespectacled, softly spoken man. We later found out that he was doing life for murder.

Officers told me that the lifers' wing has a more relaxed regime than the rest of the prison and that a few more comforts are allowed in cells than for short term prisoners.

A standard cell holding two men is about thirteen feet by seven and, nowadays, has a toilet and washbasin, although until a few years ago sanitation consisted of a plastic pot, used in full view of your cellmate. At the risk of offending my more sensitive readers, in the old days it was normal for cons to defecate on newspaper, wrap it up and throw it out of the window. Most cells have a small TV set, which the officers find useful, because a threat to take away the telly is a powerful disciplinary weapon.

Open prisons have a much more relaxed regime - in fact the doors are locked at night to keep intruders out, not the inmates in! Prisoners nearing the end of long sentences are gradually moved into open conditions and as many as possible are put into 'proper' jobs in the community, earning real wages, to help their re-absorption into society.

I have said before that most people think that anything other than prison is a let-off, and that prisons are too soft. A very experienced officer once said to me:- "Some of them swagger in, of course, and give us a bit of lip. But 95% of them have a good cry once we lock the door on the first night."

Been There, Done That

Apart from blog comments I get quite a few emails, which are always welcome. I had one today, which deserves a wider audience:

Dear Bystander,

Another tedious parking query I'm afraid! I will keep it quick,

1) Do Magistrates Courts hear council parking offences?
2) If so do you think I should consider going for a hearing based on the following:
--- I parked in a residents only bay opposite a pay and display bay in Barnet. Signing was not clear but I accept I was at fault. I obtained a pay and display ticket at 1705 and a parking attendant gave me a fixed penalty ticket at 1707 (both times can be proven). I feel I should be able to appeal becase the warden should have warned me rather than give me a ticket seing as I must have still been in sight. In fact I can state that I walked past two wardens when going from my car to the machine to get the ticket and then walked past them again to go about my business having displayed my ticket.

I would much appreciate your input

Best regards

M H


Dear M H

1) No.
2) No.

For what it's worth, parking has been decriminalised. There is all the detail you will ever need here

If it makes you feel better, I got a ticket in Westminster last month when I was driving a passenger who legitimately holds a Blue Badge. We parked in a marked bay, set the timer wheel and went about our business. We came back to a £100 ticket (cut by half if paid in 14 days). Apparently Westminster has its own rules, and blue badge holders must pay, but get an extra hour free. Nowhere in the area was there any notice to this effect - I am careful about these things and I checked the plates and the ticket machine. I appealed, and having had no reply before 14 days I paid up to avoid the £100 horror. When I finally got a reply, it more or less said 'bugger off'. The phrase 'hard cheese' was implicit.

If magistrates still had power in these cases I should have appeared before the bench and told my tale. I am sure that they would have given me a fair hearing. As it is I have no legal leg to stand on and it isn't worth starting a scrap for £50.

The Government plans to transfer more power to these kangaroo courts - this may be 'efficient' but there is no justice in it.

Regards,

Bystander

Due Care and What?

Middle-aged bloke, looks like a bank clerk. He has pleaded guilty by post to Due Care, but has turned up anyway.

"Well, Mr.Oliver, since you are here, why not tell us if you agree with the prosecutor's version of what happened?"

"Well, sir, (nervously). "I park in the road outside my house since we haven't got a garage, and I went out to go to work and found that my car was frozen over. I scraped the windows, and got in. I had to back up for a couple of feet to get out, and I heard a noise. I stopped and got out and I found, just as the lady (prosecutor) said, Carol, my neighbour's daughter, who had pulled up behind me on her bike just as I was trying to get out. As the lady said, Carol had fallen off her bike and banged her knee. I am very sorry."

"What happened then?" asked the chairman." "I picked her up and took her to her Mum's. She had ripped the knee of her jeans so I offered to buy a new pair. We settled it there and then. We are good neigbours, you see, we get on well."

"What about the police?"

"Well, I went to work, but I was worried, so when I got home I rang the police station and asked whether I should have reported the accident. The man said that it was always best to do that, so I went down there and made a statement. They said everything was okay, but then five months later I got this summons. So I pleaded guilty."

"Did anyone complain? Your neighbour, or the girl, or anyone?"

"Oh no, we get on well. There was no trouble."

We went outside. We ran it past the clerk. We took a certain decision. We went back in.

"Mr. Oliver. We order that your plea of guilty should be struck out and replaced with one of not guilty. We have heard enough and the case is dismissed."

"Oh dear" said Mr. Oliver. "I am so sorry, have I messed everything up?"

"No, Mr. Oliver, we think that you made a mistake pleading guilty, so we have put things to rights. Good afternoon."

He left mumbling apologies.

Charlie Again

I have just been given my own copy of the DCA White Paper on 'Supporting Magistrates' Courts to Provide Justice'. Boy, do these government lawyers know how to write a snappy title!

The document was given to me, and is ten pounds a copy to the general populace, but absolutely nothing to anyone who has the nous to download it from the DCA website (link is on the sidebar). Thus does the British Government tax the unwary and the unwired.

It is among the less inane of the hundreds of expensively printed and easily forgotten tomes that have thudded onto my doormat in recent years. I shall read it with care, but just to tickle your collective fancy, here are a few nuggets, mined during a random flick through its glossy pages :-

The Right Honourable Lord Falconer of Thoroton QC, Lord High Chancellor, and Secretary of State for Constitutional Affairs, successor to Saint Thomas More, albeit slightly less likely to be beheaded, signs himself Charlie.

The magistracy dates back to 1195. There are currently about 28,000 JPs. They deal with over 95% of criminal cases in England and Wales. For the purpose of this post please disregard Scotland and Northern Ireland.

In 2004 2,037,000 defendants were proceeded against in court. 1,534,000 or thereabouts were tried by magistrates. 61,000 people were sent to prison by magistrates. 2,293 ASBOs were made.

Court documents must now be written in Plain English. An ineffective trial costs £270. (I don't believe that for a moment, by the way).

There are 32,000,000 licensed vehicles and 38,000,000 licensed drivers in Great Britain. Summary motoring offences make up 50% of total court proceedings, and 573,000 of those are for no insurance.

The free telephone number for asking for an application pack to become a magistrate is 0800 003007. Information packs will in future be given to jurors when they finish their period of service. The average magistrate is aged 57. 93.3% are white, as against 90.9% of the population.

Well that's enough numbers for one day.

Charlie Wants To Be My Darling

The Lord Chancellor has launched his White Paper on improving the performance of magistrates'courts. Among the amusing trivia is that fact that civil servants will no longer refer to 'lay' magistrates, no doubt out of 'respect'. A cursory read has revealed fewer obnoxious features that we have come to expect from Charlie Falconer and his boss's ventures down into the grubby end of the law. He would 'encourage courts to have flexible hours and consider reducing the minimum number of sessions a JP has to sit from 26 to 24 half days a year'.

I know what he wants of course, because it is now accepted wisdom that courts will only be 'relevant' and 'accepted by the community' if they are 'inclusive' which means appointing teenage JPs. I am an old fogey, and I am wedded to the idea that respect for the court is more likely to come from its members being experienced, honest and impartial than from packing it with well-meaning but naive young people.

Just think though - if the new JP sits 12 days a year, what chance does he or she have of gaining any worthwhile experience? After five years and sixty days' sittings, by which time the boy magistrates might well have started shaving, they will be eligible to take the chair in court. They will face grizzled old counsel and case-hardened solicitors, and stroppy defendants. With the best will in the world, and with all the training we can give, what hope does the poor sod have of not making a fool of himself?

LATER! (cut and pasted from my own comment to this thread)

Then the young magistrates. I used to be young myself, and I was quick-witted, certain of my opinions and usually wrong. No problem there, benches sit in threes. But is it so unreasonable to think that JPs might be at least 30? I haven't seen any arguments for 20 year old airline captains or brain surgeons - surely judges (which is what we are) need to be experienced too?

If the argument is about public confidence, ask yourself whether you would rather be tried, or have the custody of your children decided by a 40 year old or a 20 year old, assuming that both had received the same training?

Fat Lip in Battersea

Ms. Rebekah Wade, editrix of theThe Sun, has reportedly been arrested in connection with an alleged assault on her husband. She has been released without charge.

The CPS website says:-

As a general rule we will prosecute all cases involving domestic violence where there is sufficient evidence and there are no factors preventing us from doing so. Each case is unique and must be considered on its own merits.

Hmmm.

Self-defence

Some of the many replies to the Fear thread below allude to public concern that victims who defend themselves against attacks or burglaries face a strong possibility of being prosecuted. I am grateful to the LexisNexis site for the following (edited by me) :-

The Bill (to change the law on resisting intruders) received early rebuffs Government, signalling it will face a struggle to become law. Under the plan, only those who use "grossly disproportionate force" against an intruder would leave themselves liable to prosecution. At present, the law allows homeowners to use only "reasonable force" in defence of themselves and their homes.

A Home Office minister said: "This law is, I'm afraid, just showing off. It is not necessary. A homeowner who is attacked by a criminal has the right to use reasonable force to protect themselves." The Bill's proposer said her Bill would restore the balance between the victim and the intruder. "Innocent people will know that defence of their property will not put them at risk of charges."

In an informal trawl of CPS records, only 11 cases of this type were found in the past 15 years. CPS also released examples of cases in which it decided not to prosecute because the force was considered to be "reasonable" self-defence.

These were cases in which prosecutions were brought:
A man who laid in wait for a burglar in Cheshire, caught him, tied him up, beat him, threw him into a pit and set fire to him.
A number of people trespassed on private land to go night-time fishing. They were approached by a man with a shotgun who threatened to shoot them. They ran away but one of the men was shot in the back with 40 shotgun pellets. A householder lay in wait for a burglar who tried to break into his shed and shot him in the back. A householder who disturbed men trying to steal his car peppered them with gunshot. A householder shot a burglar who tried to steal from his shed. The householder had lain in wait and shot him in the back. A householder hit a burglar with a shovel several times, leaving him with brain damage. Two men stabbed an intruder who broke into a house. The widely-reported case of Norfolk farmer Tony Martin, who killed a teenage boy by shooting him in the back as he fled after an attempted burglary at his remote farmhouse. Occupiers of commercial premises chased and stabbed a burglar after he fled. A householder attacked a man trying to steal his car. A householder stabbed an intruder.

As for cases in which no prosecution was brought, these included:

Robbery at a newsagent's in Greater Manchester. One of the two robbers died after being stabbed by the newsagent. The CPS did not prosecute the newsagent, but prosecuted the surviving robber who was jailed for six years. A householder returned home to find a burglar in his Derbyshire home. There was a struggle during which the burglar hit his head on the driveway and later died. No prosecution of the householder, who was clearly acting in self-defence. Armed robbers threatened a Hertfordshire pub landlord and barmaid with extreme violence. The barmaid escaped, fetched her employer's shotgun and shot at least one of the intruders. The barmaid was not prosecuted. Two burglars entered a house in Lincolnshire armed with a knife and threatened a woman. Her husband overcame one of the burglars and stabbed him. The burglar died. There was no prosecution of the householder but the remaining burglar was convicted. A middle-aged Lancashire woman took a baseball bat off a burglar and hit him over the head, fracturing his skull. The burglar made a complaint, but the CPS refused to prosecute.

Death On The Roads Again

The proposal to create an offence of causing death by careless driving has resurfaced. I said what I have to say on the subject back on the 3rd and 4th of February, where anyone interested can find it in the archives.

It's at times like this that the Daily Mail surprises me. If enacted this measure is more likely than any other to see the Mail's beloved Middle Englanders sent to prison. A mother who makes an error of judgement - that's right, a mistake - on the school run will face up to five years in prison if a death results. If the fates are kind and the victim survives then the worst she faces is a £2500 fine and points on her licence. So why isn't the Mail denouncing this plan? Are they afraid of being outbid by the Sun on populist measures?

Or is it because the plan is not likely to affect house prices?