Well Down to Standard

A courtroom. Three magistrates. A legal adviser. An usher. A volunteer from Witness Support. A prosecutor. A barrister for the defence.

Guess what's missing? That's right:- the defendant and the witnesses.

Where are they? Well, the CPS assured the court three weeks ago that they had all been warned to attend, and so the court assumed that would be the case. But the witnesses (police officers and the victim) had not been warned, and they were not in court. The victim then gave the unsavoury mess another stir by claiming to have forgotten all about the incident, and deciding not to turn up.

Cost? A thousand or two. That's just in money though. Cost to justice?

Priceless.

Go On Then, Call Me A Softy

The impending execution of Saddam Hussein, a vicious and inexcusible thug who inflicted untold misery on thousands, whose sadism would turn the stomach of any civilised person, leaves me feeling defiled. To hang him, in cold blood, as he lies at our mercy, diminishes us all. Prison without prospect of release, certainly. But we are about to allow him the dignity and respect in death that he never deserved in life. It's a mistake, and it's immoral.

That's my five penn'orth.

A Scoop

The Sunday Times has obtained a copy of an in-depth analysis of crime and punishment prepared for Downing Street.

The pdfs are in two parts:

here and

here

I was so fascinated that I sat up till 1.30 last night reading them on the web. I particularly recommend them to the punishment freaks who think that only more and longer prison sentences offer any answer to crime. Give them a go, when you have the time. Those with open minds can learn a lot

Christmas

I am off to a family Christmas tomorrow, to enjoy being a father and a grandfather, and to over-indulge just a little.
I shall though, and I hope that you will join me in this, spare a minute's thought while surrounded by my family for those of life's victims who pass through my world from time to time: the unwanted or unlucky child that is handed like a parcel between well-meaning but ineffectual official 'carers' until, expecting nothing from life and failed by the rest of us he or she drops into the dreamworld of drugs or the easy-life fantasy of violent crime. One day the party is over and prison beckons. Crimes sometimes have two victims - the one robbed or terrified or injured, the other whose life is henceforth going nowhere.
Nearly 80,000 people will spend Christmas in prison. Some of them will have to be kept away from the rest of us until old age and infirmity render them harmless - some even longer than that, so awful were their crimes. Others are mentally ill, addicted, confused or inadequate. Still more are simply incapable of making their way in the modern world. Yet another group are foreign drug smugglers who expected to be sent straight home if caught, and who are serving prison sentences of five years and more - all for a fee of few hundred pounds. A few are there because of a decision for which I and my colleagues are responsible.
We must remain in awe of what it is that we have to impose on our fellow citizens, but remain prepared to do what we have to. If, like me, you are one of the lucky ones, think of those tens of thousands of harsh grey cells and count your blessings.

Merry Christmas.

A Speeding Case in the High Court

Crime Line points us to this case in which a speeding driver, heavily reliant on material downloaded from the Internet, appealed against a conviction for doing 117 mph. The High Court supported the magistrates' decisions, and rejected the appeal. The concluding remarks as to costs do, as Andrew Keogh points out, show that a sense of humour can sometimes be found on the High Court bench.

One Year Later

Just over a year ago I had this to say about the way the police handled the aftermath of the murder of a woman officer in Bradford, and the shooting of another. Two men have now received heavy sentences for the murder and another has been sentenced for manslaughter. None of them was in that convoy.

They Do Things Differently in America (2)

Harry Hutton writes about an almost unbelievably savage sentence for something that would be very unlikely even to be charged in the UK: in Georgia, a seventeen year old boy has been sentenced to ten years imprisonment for the heinous crime of consensual oral sex with a 15 year old girl. There is to be no possibility of parole.

Well, What Would You Do?

From Sky News:-

A woman is facing jail after admitting killing her boyfriend's cat by putting it in a washing machine.
Diane Hannon, 42, put the deaf pussy, called Paws, on a full cycle after arguing with her partner.
The six-year-old cat suffered a massive heart attack, severe burns and loss of fur during the ordeal.
Hannon, from Old Colwyn, in north Wales, pleaded guilty to causing unnecessary suffering to an animal and cruelly ill-treating an animal at Llandudno Magistrates Court.
The court heard Hannon was cat-sitting at her boyfriend Duncan Carthy's flat while he visited his son on July 8 this year.
The pair had argued about Mr Carthy's ex-wife and children from his first marriage.
Glen Murphy, prosecuting for the RSPCA, said: "Duncan Carthy called Miss Hannon and asked if the cat was all right, and she replied, 'I hate you. No, I've killed it.'"
Peter Brown, defending, said his client suffered from depression and had described her relationship with Mr Carthy as abusive.
He said: "This is an upsetting case, and whatever happens, Miss Hannon has to live with what she did that day."
Magistrates warned Miss Hannon that she may face prison.
They adjourned the case for reports until January 10

If you were due to sit on that day, how would you sentence this? There are a number of issues and principles here. As ever, there is no right or wrong answer.

(Later) I imagine that she was convicted under this law:-

The first Protection of Animals Act was passed in 1911. The Act makes it an offence to cause any unnecessary suffering to any domestic or captive animal. It is an offence to:
cruelly beat, kick, ill-treat, over-drive, over-load, torture, infuriate, or terrify any animal;
cause unnecessary suffering through transportation;
take part in the fighting or baiting of an animal;
administer poisonous or injurious substances without good reason;
permit operations to be carried out without due care and humanity;
cause unnecessary suffering to an animal that is being destroyed to provide food for mankind; and
the coursing and hunting of a captive animal that is liberated in an injured, mutilated or exhausted condition, or the coursing and hunting of a captive animal in an enclosed space from which it has no reasonable chance of escape.
Unnecessary suffering can be caused by acts of commission and acts of omission.
If the owner of the animals is convicted, the court may, should it think fit, deprive the owner of the ownership of the animal. Where the court is satisfied that it would be cruel to keep the animal alive, it may direct that the animal be destroyed.
Those convicted of the most serious offences under the 1911 Act can be sentenced to a term of imprisonment not exceeding 6 months or a fine of £5,000, or both.

Young Charmer

Jimmy Thompson comes from a large family with origins among travelling folk. He lives on a big estate that has a tough reputation, where gardens are seldom tended, graffiti abounds, and the few sad local shops all sport roll-down steel shutters. The police are a familiar sight, as there is usually someone they are interested in, or a search warrant to execute. He is 20, and the delights of reading and writing have quite passed him by.
He was hanging out with his mates when a police car drew up, so Jimmy, to whom any uniform is a provocation, strode over, put his face close to the window and invited the officers to fuck off, informing them that they were cunts. He was wearily requested to go away, but continued his tirade when the officer got out of the car. After the customary warnings, he was arrested, struggling wildly and turning the air blue. He yelled for his friends to help him, and he and they were only dissuaded when he received a faceful of CS spray from close range. At that moment two more carloads of police arrived, and the score or so of locals who were enjoying the fun started to drift away.
He was charged with a Section 4 Threatening Behaviour, went Not Guilty, and was convicted by my colleagues. They put the case off for reports, and that is what we had to consider. A medium community penalty was indicated. He had a couple of pages of previous - the usual stuff, a bit of small scale theft, an assault here and a public order offence there (including two unpaid £80 PND tickets). We were thinking of a medium-ish unpaid work order but that was not on because on previous similar orders things had mysteriously disappeared from the work sites and the supervisors did not want him back. So we gave a different community order, and ordered him to pay costs of the trial and a bit of compensation to the officer. This was added to the existing debt, and I mused to myself that it will probably sit there being deducted bit by bit from his benefit until he finally goes inside and it is written off.
Not a very satisfactory outcome then. The whole incident was completely unnecessary, and resulted from the fact that a total loser thinks of himself as dead hard and dead streetwise and wants to show off to his mates. It's hard to feel optimistic about where he goes from here.

Everything Has Its Price

This is a decision that I fully understand, but which nevertheless leaves me feeling grubby. I am off to wash my hands - but that's been done before hasn't it?

I am reminded of the old story of the man who asked his girlfriend if she would sleep with him for a million pounds. After a few moments, she replied that she would. "How about twenty pounds?" he enquired. "What do you take me for?" she expostulated. "We have established that" he replied. "We are now haggling over the fee".

"No weight has been given to commercial interests or to the national economic interest," he (Lord Goldsmith) added.

Yeah- right. Never forget the golden rule. The man with the gold makes the rules.

Babble About Babel

As Britain becomes increasingly polyglot the translation and interpreting business is growing fast. Some boroughs in London have to deal with more than 50 languages and public bodies are obliged to make arrangements to translate notices and documents as well as offering live interpretation (sometimes done by telephone). The Human Rights Act obliges courts to provide interpreters when needed, and there is a large pool of available people who speak the new languages of London. People who can get by in English from day to day may still need an interpreter to cope with the specialised language of a court of law. Business is good for specialists in Eastern European languages, as many Polish or Latvian workers discover that UK drink-drive and traffic laws are more stringently applied than they are at home. A few months ago one of my colleagues conducted a remand hearing in Russian, in which he is fluent, because no interpreter was available. Strictly speaking he should not have done so, but the Ways and Means Act came to the rescue.
Some of the interpreters we see are regulars, such as the Tamil, Mandarin, Portugese, French, Spanish, Punjabi, Farsi, Arabic and suchlike. Less usual are Twi, Tigrinya, Amharic and Jamaican Patois, the latter sounding like an odd version of English with occasional bits of other languages tossed in, rather like Pidgin (yes, we have a man for that too). I believe that interpreters get something like £75 per half-day, and for that they may have to work for ten minutes, or in the case of a trial, three hours without a break. Even the good ones slow things right down though, and a complex trial with interpretation often runs on to day two or three.

Depressing

There is an angry and heartfelt piece in today's 'Times' by Alice Miles. She makes the points, neither of which is widely (if at all) disputed, that many prostitutes take up their trade because of an overriding need to feed their drug addiction, and that the patchily-applied legal constraints on prostitution make its practitioners even more vulnerable than the nature of the business dictates.
What will happen? Nothing, of course. Why? because this morning's tabloids will be strewn with words such as vice, and wicked, and monster, and beast, and terror. It's a good story, with death sex and morality intertwined. So no serious politician will dare to raise his voice (because radicalism only goes as far as the Press will tolerate) and once today's lip-smacking headlines have faded into memory more addicted young women will stand on street corners to await the next punter - any one of whom might be their last.

More Cocaine - This Time On The BBC

I posted this two or three months ago, about a clip on YouTube showing production of cocaine at jungle level. The clip has now had more than half a million views, and is now shortlisted in the BBC's Newsnight end-of-year poll. I am going to vote for it, and I hope that you will too

Apocrypha 19

Every police officer knows, or ought to know, the mantra for establishing that someone was drunk.

"His breath smelt of alcoholic liquor, his speech was slurred, his eyes were glazed, and he was unsteady on his feet. He was drunk, your worships".

Kids Today Eh?

A few weeks ago I spent the morning going round a Young Offender Institution to bring myself up to date with current practice in managing what are now called trainees. Like most middle-aged people I occasionally allow myself a gentle shake of the head at the fads and attitudes of teenageus horribilis but I learned a new one at the YOI. As in most penal establishments discipline is based on a stick-and-carrot system of earning and losing privileges. If a boy is demoted to the lowest (bronze) level, he will lose his television and his right to association, so he will be left in his cell while his mates are playing table football or whatever. But that isn't the worst of it. Gold and silver boys may wear their own trainers. Bronze boys have to wear official issue. That is often the point at which they break down and cry, because your whole social status is heavily influenced by your footwear. Amazing.

A Straw in the Wind

At the recent Magistrates' Association conference the Lord Chief Justice made a speech that gave some interesting pointers to the way in which government, and the Treasury in particular, are trying to influence the approach taken by sentencers. This passage seems particularly significant:-

While I am on the topic of sentencing there are one or two other matters that I would like to raise. The first relates to the use of the Suspended Sentence Order. The power to make these was conferred by the 2003 Act in respect of offences committed after 4 April 2005. Their attraction is that they can be combined with a variety of community requirements aimed at rehabilitation over a supervision period of up to 2 years.
They are now being made at the rate of about 3000 a month.

Three quarters of these sentences have been imposed by Magistrates and half of these in respect of summary offences. Now it is only proper to impose a suspended sentence if the offence justifies a sentence of immediate imprisonment. So, if the suspended sentence is being properly used, one would expect to see a commensurate drop in the sentences of immediate imprisonment. There has not been such a drop. This leads me to the suspicion that some sentencers are imposing a suspended sentence where the appropriate sentence would be a simple community sentence, in order to give the offender a powerful incentive to comply with the community requirements. This is improper sentencing and can bring the consequence of activation of the suspended sentence resulting in a period of imprisonment that is disproportionate to the original offence. Over 800 breaches have been received into custody this year, increasing the pressure on the prison population. So please resist the temptation to slap on a suspended sentence where there is a viable alternative to a custodial sentence.

The way I read that is that the powers that be have become alarmed by the enthusiasm with which sentencers have taken up the new Suspended Sentence Orders brought in as part of the monster 2003 Act. Most of us find it really useful to be able to impose a suspended sentence that incorporates requirements such as unpaid work or drug treatment, with the threat that any breach will result in the sentence being implemented - and there's the rub. Years ago we were more or less precluded from imposing suspended sentences because so many were being breached and the prison population was, at the time, heading up towards 50,000. Breach occurred when the subject of the order reoffended. Nowadays there are two ways to breach the order:- reoffend, or fail to carry out the requirements, giving double the opportunity to get yourself locked up. Worse, from the Treasury's point of view, the requirements use Probation resources, and that costs money.
Finally, with the ongoing panic about supervision of paroled prisoners front-line probation staff are going to be diverted into parole work, leaving the courts short of resources to use community sentences. So what's the answer? It's elsewhere in His Lordship's speech: Fines. Fines yield rather than cost money - the Treasury is very much in favour, as you might expect.
I can see the attraction to the Treasury, and I can see that with Probation in some areas near to collapse fines look attractive. Unfortunately most offenders do not work, and many do not receive benefit because they are too chaotic and useless even to claim the dole properly - so what are we supposed to do?
This magistrate, and many with whom I have discussed the situation will carry on sentencing within the guidelines and according to our assessment of seriousness. If the Government has managed to screw up the Prison and Probation Services, then they will have to sort them out, or to change the law to restrict sentencing - watch out for the tabloids then.
My personal prediction is that we will lose access to Suspended Sentence Orders before the end of 2007. You read it here first.

Kevin

Reader, we imprisoned him.
We carried out a structured sentencing exercise and the three of us agreed that while the entry point for drive disqualified (there was no charge in respect of drugs because there was no evidence) is a community penalty, the fact that this was his fourth offence and that there had been a serious accident pushed it up the tariff and over the custody threshold. He had also breached a previous community penalty, suggesting an unwillingness or inability to comply with non-custodial disposals.
So we were entitled to give him a supervision order with a Drug Rehab Requirement (in fact that would have needed a further report, but let's not be diverted) or a prison sentence. This could be immediate or suspended, and if suspended we could impose requirements, as with a supervision order. None of these was necessarily the right or the wrong answer - it was an exercise in judgement. As a bench we were balanced for experience, one colleague being on his fifth sitting, but having the benefit of recent and up to date training.
What clinched our decision was when we asked ourselves to summarise what had happened, and to ask what would amount to justice. A man who was on his fourth driving ban, off his face on unknown drugs, driving away and having a crash that mercifully injured or killed no one. Each time that he had been banned he had been warned that defying the court's order could result in custody, he had failed to be deterred and had commited an offence that would outrage the public.
Six months then, reduced by a bit to reflect a late plea of guilty. Punishment pure and simple, but at the end of a careful process we decided that we had to do it. A different bench might have taken a different course, but they would not necessarily be right nor would we necessarily be wrong. Each of the available sentences had something to recommend it. It's the sort of judgement that we are put there to make.

Cautionary Note I am grateful for all of the thoughtful and informed comments, but please don't attach too much importance to the details as this case, like all of the cases on this blog, is a composite, chosen to illustrate an aspect of the JP's job.

Off-Topic or What?

Here's a cracker from Dr. Germaine Greer, intellectual, Aussie, and National Treasure:-

Most reasonably educated Guardian readers would, I faintly hope, have recognised the phrase "unsynthesised manifold" as an English version of a basic concept in Immanuel Kant's Critique of Judgment, first published in English in 1790 and familiarised in Britain by the work of Coleridge and just about anybody else who writes about aesthetic theory. The expression endures because in more than 200 years no one has found a better way of rendering the idea, although its content continues to evolve with changes in our understanding of brain function and the mechanics of perception

After that lot, how could anyone be intimidated by a law report?

Knife-Edge Decision

We were faced with a pre-sentence report on Kevin P, who had pleaded guilty a few days earlier. He had driven a car while disqualified, an offence that had come to the notice of the police when he drove the car off the road and into a brick wall. Bits of the brick wall were scattered across the road, blocking it. There was a traffic jam, and when Kevin looked like wandering off he was detained by other drivers. He seemed a little distracted, which transpired to be the result of his having taken drugs. When his record was printed off from the police computer it turned out that this was his fourth offence of driving while disqualified. There were other offences, but this was the most serious.
The report told us that Kevin had run out of money to top up his methadone prescription with street heroin, as had the friend in whose grubby flat he was spending the afternoon. Friend, showing the touching loyalty that one sometimes finds among druggies and alcoholics, gave Kevin a handful of tablets of who-knows-what to see if they would cheer him up. In fact they blanked him out, and it was in that state that he drove off in a car that happened to be outside. The crash happened within a mile or so.
In ordering the report our colleagues indicated that the offence was serious enough for a community penalty but might also be so serious that prison would be appropriate.
The report writer recommended a community order including a Drug Rehabilitation Requirement (drug use being, as so often, at the root of the problem)together with supervision for 18 months.
Our choice was clear. Without sorting out the drug problem, Kevin would just keep on offending. On the other hand if you don't lock someone up for a fourth drive-disqualified there is no chance of enforcing court orders.
What would you have done?

Old Head on Young Shoulders

A colleague recently dealt with a young-looking 14 year-old who has a history of convictions that lengthens by the week. Like so many of his contemporaries he steals mobile phones, which find a ready market locally. He now knows enough law to make sure that he only snatches phones from users' hands, helped by the way in which youngsters brandish them to establish street cred. Because he is not using or threatening violence, he cannot be charged with robbery, but only with theft. He is nevertheless expected to eat his turkey on Christmas Day in a secure unit.
His combination of wit speed and decisiveness would be a great asset in many jobs, but we sadly lack any machinery to steer him into a useful life.

Forthcoming Attractions

The Road Safety Act has now received the Royal Assent, and will come into force a bit at a time over the next year or so. My thanks to the nice people at the Magistrates’ Association who have researched it. Unfortunately it is on a members-only passworded bit of the site, so here are the main changes:-

A new offence of Causing Death by Careless or Inconsiderate Driving. Maximum penalty 5 years’ prison. I have blogged about this, and the Magistrates’ Association and many lawyers are seriously concerned that it will lead to injustice and set nasty precedents. Will doctors be next, for example?
Roadside Evidential Breath Tests: Will obviate the need to take the driver to the police station. The new machines are very expensive so introduction will be slow.
Compulsory re-testing for repeat offenders: applies to second-time drink drivers.
Trial of Alcohol-ignition interlocks: will allow the court to order that for the second part of a ban (after at least a year) the offender may drive but only in a car fitted with a built-in breath tester that will lock out the engine if he is over a quarter of the present limit (i.e 9ug/100ml).
High-Risk Offenders: medical rules are being tightened and doctors’ evidence will be required before a licence is issued.
Speeding Points: will now be graduated from 2 to 6. Very high speeds will still result in a court appearance and likely ban.
Camera Detectors and Jammers: will be banned, other than GPS-based systems.
Section 172 offences of failing to nominate the driver will now carry 6 points, so there is no benefit to a driver whose speed was up in the 6 point range refusing to name the driver and thus get away with only 3 points.
Careless Driving: Maximum fine doubled to £5000.
Use of Mobile Phone: Now endorsable with 3 points
Dangerous Condition: A second offence within 3 years will carry a minimum 6-month ban.
Children’s Seat Belts: Now applies to rear seats as well as front.
Graduated Fixed Penalties for Goods Vehicles: What it says. Can be given by VOSA staff as well as police.
Retraining Courses: Will become available for careless driving and speeding, with a discount on points or ban for those who take them.
Foreign Drivers: Will have to pay a deposit of £300 against a fine or costs before being allowed to proceed.
Driving Licences: Paper licences will be withdrawn.

That’s just a quick outline of the main changes – there’s a lot more stuff that I have skipped over. It will mean training for magistrates, but we can cope with that

Would You Run That By Me Again Please, Charlie?

The Lord Chancellor, in his recent announcement of the establishment of ten new 'community courts' said (inter alia):-

Because these communities - these 10 areas, and beyond, building on the success of Liverpool and Salford - will, I believe, experience a radical change in the coming years.

The perception of the court will change from an, old fashioned, impenetrable institution, to an accessible and accepted part of the community. A court that will make a visible difference to the day to day lives of the many, many decent people who live there.

So these community courts, and the principles I have set out which lie behind them, offer a new way forward for justice.

We need to do justice differently. Communities hit hard by crime want to see justice done in ways which connect more closely to the community.

To echo Lincoln's prescription for good government, we need courts which are of the community, by the community, and for the community.

These 10 new community courts will deliver the justice communities want to see.

Justice which is connected. Justice in which communities have confidence. Justice which is tackling crime and anti-social behaviour. Justice which is making a difference to people's lives. Justice which is improving communities.

Community justice.

Courts and communities. Working together. Working in partnership.

Working for safety. Working for security.

Working for society. Working for us all.

The whole speech is here. I have read it carefully and I am not at all sure what it means. Any offers?

Afterthought:-
Can anyone tell me what it is that community courts will do that magistrates' courts will not do, and vice versa?

All-Time Great Legal Jokes no. 26

There was a young lawyer named Rex
Had very small organs of sex.
When charged with exposure
He said with composure
"De minimis non curat lex"

(traditional)

More for the Nerds

I have updated the link on the sidebar to the Home Office crime statistics that have just been published to 2005. Make of them what you will, but there is a lot of data there.

A Welcome Breath of Sanity

I have said before that I probably read too much of the Press. I am routinely infuriated by wilful misrepresentation of criminal justice issues in the less scrupulous papers. This misrepresentation has helped to feed public prejudice to such an extent that a great majority of the population holds beliefs about the operation of the courts that are simply untrue.
Sir Igor Judge is a very senior member of the judiciary and he is in the habit of making thoughtful speeches which, being carefully reasoned and calmly argued, are of no appeal to the popular prints. This speech delivered last week is well worth the time taken to read it. This lecture delivered about a year ago goes into considerable detail about crime figures and public perception.
Give them a try if you have the time. Both are serious and densely argued speeches by someone who knows what he is talking about. It is a shame that there is no way that the wisdom in them can be distilled to allow their message to be heard by the man in the street or in the saloon bar.
Some of the regulars on this blog's comments, including a handful of serving police officers, have acquired a distorted view both of the judiciary's function, and of how it is carried out. I hope that a few of you have the time and the inclination to read the Judge's thoughts.

Cheap at Twice the Price!

My Bench Chairman tells me that he was recently shown some figures about magistrates' expenses. We can claim travel and subsistence costs, and of course these vary between individuals. A rough calculation shows that over the more than 700 JPs in our area the average claim was £6.85 a week.

Cautionary Tale (2)

This letter to The Times tells the story of a respectable citizen being subjected to what appears to have been a gross overreaction by police officers. The writer says:-

After nearly four hours of processing and questioning I cheerfully admitted the “offence” in order to terminate this tedious ordeal, get back to Waterloo and resume my journey to Paris. Having signed the necessary forms, I was released on caution.

This points up the inherent danger of so-called pre-court diversion, a policy which the Government is enthusiastically expanding. In order to get on with his journey the man concerned has accepted his guilt, and now has a record on the Police computer to that effect. His DNA fingerprints and photographs are now on file. Since the offence was connected with taking so-called offensive weapons on to a train he may face some tough questioning next time that he wants to enter the USA.
If a respectable and articulate retired Brigadier can be bounced into an admission of non-existent guilt by a desire to get out of the police station, how much more likely is it that a not-too-bright 18 year-old will do the same? Any bench that I can imagine would have given this case short shrift - indeed I rather doubt whether the CPS would have let it get near the court.
Courts are not just there to punish - they are also there to protect the citizen from oppression. In this case they were not given the opportunity to do so.

Poll!

I have put a poll on the sidebar (it's quite a long way down, I am afraid, but html is not really my sort of thing). It's about sex, since the subject seems to have aroused so much interest.

Later As the poll has passed 500, I shall now knock it on the head. About half of respondents went for my frivolous options, abut there was a significant minority for 14 as the right age. As I said before, it's the age gap that matters.

Dishonest and Hysterical

The Sun is working itself into a lather this morning; the opinion column says it all:-

PAEDOPHILES are the lowest of the low.
Any police chief who disagrees should be stripped of their badge and sent packing.
We are astonished at the naivety of Chief Constable Terry Grange.
He says that sex with children between the ages of 13 and 16 is a grey area.
There is nothing grey about this area. Sex with anyone under the age of 16 is illegal.
Grange says his remarks were aimed at 16-year-old boys having sex with their 15-year-old girlfriends.
But anyone in such a position of authority should know better.
His comments are not only ridiculous; they are downright dangerous.
Paedophiles are sick people.
They crave justification for the evil they do.
Many teenagers are at their most vulnerable precisely from perverts who exploit that grey area described by the Chief Constable.
The law should be there to protect the young from those who would prey on them.
There is no excusing Grange's outrageous and irresponsible remarks.
They play right into the hands of the manipulative scum who abuse our children for their sick pleasure.
He doesn't just carry out the law of the land - he IS the law of the land.
He should be sacked this morning.

Any judge or magistrate knows that the age gap is crucial in cases of under-age sex. The police and CPS have protocols for these cases, mostly reasoning that the law does well to keep its big flat feet out of this area. A 17 year-old boy with a 14 year-old girlfriend is not a paedophile. Most teenage girls would not be seen dead with a boy who was not a couple of years older than themselves, and there is street kudos to be gained from a 'cool' 18 year-old, especially if he has a car. 14 year-old boys are awkward, insecure, shambling, sniggering creatures (trust me, I used to be one) and it is hardly surprising that girls, who grow up faster, look to older boys.
Of course there comes a point at which the age gap is too wide to be proper. That point is not rigidly defined, but anyone looking at a particular case will know it when he sees it. The Chief Constable's point is a sensible one, and is no more than a restatement of current practice. He is right to say that the word Paedophile should be reserved for those mature adults with an interest in pre-pubescent children. Over-use has now so devalued the word that it is used as an all-purpose playground insult, following in the ignoble footsteps of 'spastic' 'retard' and the rest.

A Sun graduate traineeship is among the most coveted in journalism. The paper recruits the brightest and the best. The journalists know as well as I that the opinion piece above is, bluntly, bollocks. How very cynical, to employ educated people to construct deliberately misleading articles calculated to pander to the mob. Yuk.

PS - is a Chief constable really the law of the land? Are you quite sure about that, over there in Wapping?

Drinking Chocolate

Darren, a heroin addict and serial thief, appeared in custody having been arrested as he was leaving a convenience store. Through his solicitor he denied any intention to steal, pointing out that he had dumped all of the goods concerned just by the door of the store. He had, we were told, put the goods down because his intention was to pay for them, but he realised that he had forgotten his wallet. Two facts rang a discordant note:- the prosecutor had a witness, backed up by CCTV, who said that the goods were dumped after Darren had been challenged by security staff, and we were sceptical about the motives of an unemployed man, dependent on benefit, whose shopping consisted of eleven jars of drinking chocolate, and nothing else.

No bail then.

Memory Lane

I was reminded by a thread over on Usenet (that home of the unruly and the obsessive) of a bit of ground-breaking that we once did. We were allocated a trial under a then brand-new Companies Act (1986 I think) that brought in the concept of a Shadow Director, that is to say someone who exercises control over a company even though there are different directors named at Companies' House. Before we started the clerk told us that this was the very first prosecution under the new Act, so there was no case law or precedent to help us. In a nutshell, the defendants were accused of being Shadow Directors of Bystander Timber Merchants Ltd, whose official directors were in the Punjab, from whence they had not budged these nine years. The day to day managers were, oddly enough, the children of the absentees. The company ran into financial trouble, and was liquidated. The business was seamlessly transferred to Bystander Timber Supplies Ltd., operated by the very same people. This fell foul, or so the Crown alleged, of the so-called Phoenix provisions in the Act. In evidence we heard that the business seemed to have operated under both names for a period and that the owners had been imprudent enough to invoice goods in either name from one day to the next.
We convicted them, and imposed substantial fines as well as disqualifying both defendants from acting as company directors for (I think) five years. The conviction had, we were advised, the effect of removing the limited liability of the shadow directors, leaving the duped trade suppliers of the first company free to sue them personally for their losses. It was a very interesting case, and I don't suppose that I shall ever see another like it. I was quietly proud of having sat on the first-ever case of its type though.

Court Reforms - Latest

I have managed to obtain a copy of John Reid's still-secret plans to modernise courts and 'engage with the community' (whatever that means). Here are a couple of photographs of the pilot project in Wigan.

An Encouraging Judgment

The excellent Andrew Keogh has a link to this case.

Many private clampers are little more than extortionists, and it is high time that the law was amended to regulate their activities. I have dealt with a clamper who was a disqualified and thus uninsured driver, and another who pounced on an 82 year old man demanding £380 to release his car, and then assaulted a police officer who intervened. It is a shame that our otherwise energetic law makers have been too busy to deal with these abuses.

Apocrypha 18

When I had just been sworn in somebody told me that a Justice of the Peace was empowered to visit any prison within the Commission area for which he sat, at any hour of the day or night, and inspect the condition of the prisoners.

"I shouldn't bother though" said my informant. "They'll only tell you to get lost, probably speaking through the letterbox".

That was my first realisation that I had greater power in theory than in practice.

Nine Years is a Long Time

The late, highly respected Lord Chief Justice, Lord Bingham, made a speech in 1997 that to many of us was a model of informed and civilised opinion about crime and punishment. It is here.

When he made the speech the Labour government had been in office for a few months. Then, the speech seemed magisterial. Today, it would be denounced as soft and woolly. In particular, he makes a point that is in flat contradiction to the Government's intention to bring in prison for drivers who kill by pure accident. Times do, indeed, change, do they not?

Mind Your Language

The Department for Constitutional Affairs has produced a guide for its staff with the catchy title:- "Eliminating Inappropriate Language in the Workplace". It gives a fascinating insight into the bureaucratic mind. Now I am not obsessed with using or not using "appropriate" language, and I am quite happy to avoid giving offence, but some of the lists in the booklet are eye-opening. Expressions deemed "not acceptable" include:

Old, middle-aged, young, girl, young lady, boy, lad, young man, part-timer, the disabled, the blind, the deaf, black mark, black sheep, black list, black look, Black Monday, coloured, half-caste, West Indian, Afro-Caribbean, Chinese (used as a catch-all (sic) phrase), British (referring to whites), immigrants, refugees, asylum seekers, gypsies (used negatively) Gyppos, Ethnics, Jesus Christ (used as a curse) Jesus freak, bible basher, Jewish (acceptable to some) gay (as a noun) manning the phones, manpower, policeman, chairman, spokesman, fireman, foreman, workmen, lady doctor, woman judge, male nurse, male secretary, love, pet, dear (used in a derogatory way)

This is produced for DCA staff, and is not directed at the judiciary (just as well, in my view). It's going to be difficult to hold a conversation with the girls in the office - whoops!

Oh Dear, Gordon.

Two unpleasant BNP (a far-right party that majors on race) members were today acquitted of stirring up race hatred. That is the jury's verdict, and it's good enough for me.
Gordon Brown is quoted in the BBC article thus:-

Chancellor Gordon Brown said race laws may have to be tightened. He said: "I think any preaching of religious or racial hatred will offend mainstream opinion in this country and I think we've got to do whatever we can to root it out from whatever quarter it comes".

Two points, Mr.Prime-Minister-Designate:- Firstly, there is something deeply improper about a senior Minister reacting to a verdict that he (and I, for that matter) find obnoxious by musing on how to change the law so as to have better luck next time; and secondly, why should it require the power of Parliament to forbid something that will

"offend mainstream opinion"?

In a democracy someone is always going to be offended. They, and Mr. Brown, need to learn to live with it. Argue, dispute, debate if you will, but as for using the Parliamentary sledgehammer - forget it, Gordon. You want to be a statesman. You can do better than this.

Panorama

I have just watched the BBC Panorama programme that raised some frightening issues about serious criminals who are sent to bail hostels at the end of their sentences. On the face of it the programme seems to show dangerous offenders who were reverting to their bad old ways while nominally being supervised in the community. The bottom line is simple in my view, and turns on a few self-evident truths.

1) A minority of offenders are beyond any hope of reform (especially with the limited resources of our prisons) and should probably be kept under some form of physical restriction until age and infirmity have rendered them harmless. There is no reason why that restraint should not be humane and civilised.
2) Identifying those people is not an exact science.
3) Most people would err on the side of caution while that remains the case. That raises issues of justice and human rights.
4) Prison is an expensive and limited resource. Its punitive effect is obvious, but only lasts for a while. Its deterrent effect is debatable, certainly for second and subsequent offenders. Its one undisputed strength is that it incapacitates inmates from further offences against the public.

From this I draw a couple of conclusions. The first is that prison is too precious a resource to waste on drunks drug addicts and petty offenders, many of whom are mentally ill. The second is that if we can clear the mad and the sad out of prison we can ask the professionals to sharpen up their handling of the truly bad, and to work towards a less flawed system of assessing who might be suitable for release, and who should be kept under control, if necessary for ever.

At the moment the prison service has been reduced to warehousing inmates, its Victorian ideals overwhelmed by sheer weight of numbers. There may be a better way, but I fear that there is no prospect of a politician with the courage to put it forward.

Oh, by the way: I have seen many thousands of offenders in my time on the bench, and I have seen fewer than a couple of dozen whom I thought were truly dangerous in the longer term.

Wise Words (That Will Be Ignored Again)

I have blogged more than once about the 'Sun' inspired legislation providing for prison sentences for causing death by careless driving, an offence that requires no intent, merely a human error. Here is a letter to The Times from a former Attorney-General.
This legislation encapsulates everything that is wrong with the Government's tabloid-led populism. It is being rushed in, it will be unfair and unjust, it will establish a dangerous principle, and it won't save a single life.

This, thanks to a commenter, is the text:-

Full Text: COPYRIGHT 2006 The Times

Sir, Rushed legislation leads to injustice. This week will see a bad example.

The Road Safety Bill provides for sentences of up to five years' imprisonment for careless driving if a death is caused. Never before have we legislated to send people to prison for ordinary negligence. Its ramifications if carried to other areas -education, medicine, commerce and industry -would be very serious.

The House of Lords has twice rejected the principle after full debate, firstly in January 10, 2006, at third reading, and again last week. But because of a technical slip in January, noticed by no one at the time, this potentially deeply unjust measure will become law.

Normally the mistake would have been corrected, or other options considered, but this part of the Bill was only introduced on report. It had no second reading in the House of Lords and no committee stage.

Dangerous driving is more than 20 times more likely to lead to death than is careless driving. At present the distinction between dangerous and careless driving is clear. The prosecution must focus on what it has to prove in each case, and the defendant knows the case against him, one of the fundamentals of natural justice. In future all this will be blurred.

When the Government consulted, all too briefly, last year it was warned strongly of the risks to justice by the Lord Chief Justice, by the Council of Circuit Judges and by the Justices Clerks Association. The courts have emphasised repeatedly that, while the consequences must be considered, the level of culpability must be the key factor in sentence.

There are 34 million licensed drivers in Britain.

If a driver is proved to have driven dangerously, prison should certainly be available, perhaps with a long sentence in bad cases. But if ordinary negligence which sadly happens to lead to a death is to send yet more people to prison, the tragedy of the death will not be undone. It will simply be compounded by injustice. And injustice resulting from bad law starts to undermine the whole system.

LORD LYELL OF MARKYATE, Attorney-General, 1992-97

Copyright (C) The Times, 2006

The Sun Says (Again)

A WELCOME new era in sentencing will be launched this week.
Paedophiles, rapists and thugs will lose the automatic right to parole after half their sentence. And crooks will no longer get a guaranteed third off their jail time just for pleading guilty.
Home Secretary John Reid’s announcement was sparked by our campaign against liberal judges.

I am sorry to say that the last sentence is entirely true.

Parole - An Insight

Tonight on BBC2 from 9 to 10 p.m. is the first of three programmes about the work of the Parole Board, There is a piece about it here. I for one won't miss it.

Racial Aggravation

If you have a look at the Bench Book you will see that offences such as harassment and common assault move a step up-tariff if they are racially aggravated. I have no problem with that, but occasionally those responsible for charging take things just a little far. The latest was a contretemps involving a railway ticket collector whose ancestors came from the far side of Offa's Dyke, and who was called a 'Taff wanker'. The defendant was quite rightly charged with a Section 5 Public Order offence, but with the Racially Aggravated version. Strictly speaking that was correct, but compared with some of the nasty racist stuff that we have heard the words were pretty mild.
Sensitive souls would be well advised to stay clear of the forthcoming Rugby internationals, where the Taffs and the Micks and the Jocks will do battle with England, and the crowd may occasionally lapse into the sort of comments that would give some prosecutors a fit of the vapours.

Osama Bin Fawkes

As I sit here, a glass of Australian Cabernet Sauvignon to hand, (oops - now it's gone, I see it was Merlot - very good though) my neighbours are putting on what sounds like a re-enactment of the Battle of the Somme.

It would make first-class cover for any of the nasties among us to try out weaponry and explosives without drawing attention to themselves.

How long before some fool tries to ban the whole Guy Fawkes thing?

Money

More than once we have seen comments on here and elsewhere implying that there is something dishonourable about defence solicitors being paid for their work - why they should be different from anyone else is is a mystery. In fact Legal Aid solicitors' pay is among the lowest in the profession, and many young barristers too are living from hand to mouth. The newly qualified lawyer in a police station at 2 a.m. is probably earning a lot less than the Custody Sergeant.
By contrast the City firms pay very fancy money - I am grateful to RollOnFriday.com for this table of what the Magic Circle of top law firms are paying for someone with three years' Post Qualification Experience

Allen & Overy £88,600
Slaughter and May £81,500
Linklaters £76,800
Clifford Chance £77,000
Freshfields £77,000
Herbert Smith £74,000

Mind you they really work their people hard, and long hours are the norm. Nevertheless, it's good money, isn't it?

This Could Be Any of Us

There is a man called Nick whom I know quite well, not as a bosom friend, but as a trusted acquaintance. He has got himself into a serious fix. I met him few weeks ago and I could see from his expression that all was not well.
After his divorce about fifteen years ago he applied himself to work hard. He was promoted, and got to a very decent salary level that was accompanied by some nice benefits, such as a 3-series BMW, and a pension scheme.
Some of his friends, including me, were a bit surprised when he turned up with a new girlfriend who seemed – how shall we say – not quite his type. Nevertheless, three years later he was living with her in the house that he had first shared with his ex, and then, having bought out her share, improved extensively. Two children arrived within three years, and all looked well. It was not.
The lady had problems that resulted in heavy drinking. They coped as a couple until the time that he came home from a twelve hour day to find her the worse for drink, and planning to go out for more as soon as he came home. There was a row. There was a physical incident that I won’t comment on, because I have only heard one side of the story. Desperate to calm the situation, he telephoned a friend and asked if she could speak to the lady to calm things down. Fuelled by drink and emotion, Nick’s partner screamed down the phone:- ”He’s hitting me!” Friend called the police.
Nick was arrested and taken to the police station. The arresting officer was sympathetic, and suggested that time would be saved if Nick left his personal property at home to save the trouble of booking it all in at the station. It was now around midnight. At the police station the officers were friendly, and eased Nick through the booking-in procedures, apologising for having to put him in a cell. The PCs left the door ajar to reduce the stress. They said that as soon as the 'paperwork' was sorted out they would run him home. The officers seemed so reasonable, and he was so anxious to get out of the police station that he said he was happy to do without a solicitor.
He was interviewed, and agreed to accept a caution for Common Assault. The arresting officer then said he was sorry, but the Sergeant had forbidden him to run Nick home, but that he was free to leave. Without his wallet Nick could not get a taxi, so he walked four miles home.
So far, so simple, if unpleasant. Unfortunately, while Nick was telling me about the situation I realised that he had dropped himself into a whole heap of trouble. The lady’s problems are unresolved, rows continue to occur, and Nick now evades any possible new allegations by leaving the house, going to neighbours, or, in extreme cases, dialling 999 if the lady kicks off. Nick is street-wise enough to prevent future rows getting to the police stage, or so I trust. But if he doesn’t, with his record, he will be in the frame as a suspect with a previous record of domestic violence.
Leave that aside, and move forward to the separation that I fear is inevitable. She will of course get the house and the children. He will have problems getting access because he has admitted being violent. You can work out the rest for yourself. He stands to lose everything he has worked for, the children he loves, and his good name. The killer fact underlying the way the law views him is that caution, and he agreed to it without professional advice.

Nick exists. I have taken his word for what happened, albeit filtered through my magisterial scepticism. I ask you to draw just two lessons from this sorry tale:-

However solid your social position, consider how you would cope with being accused of a crime.

Never refuse legal representation, however tired drunk or fed-up you are. It can do no harm, and may prevent you throwing away much that is dear to you.

More Stuff With Which I Agree

Notsossaure has this excellent piece on involving grieving relatives in trials, and this 'Observer' piece is a good 'un too.

The Numbers Game

The London Criminal Justice Board (they of the free mousemats and pens) have a page on their website headed 'Achievements'. They include a graph along with some statistics about Offences Brought to Justice. The graph shows an encouraging upward curve, and we are told that OBtJs have increased by 15% over the last twelve months and that London 'easily' met its target.
These figures are, of course, entirely bogus. On the face of it they seem to show that London's sturdy police force is working more effectively then ever and is beavering away to detect and charge criminals. What they really show is that the target-driven policy of dishing out fixed penalty notices to all and sundry, each of them counted as a Sanction Detection, is driving the figures up. It really is a bit thick to claim that a £40 ticket slapped on a drunken teenager is a detection - it's hardly Hercule Poirot, is it? According to Hansard:-

The Home Office reviews the performance of police forces on the basis of their sanction detection rate. The sanction detection rate is the percentage of crimes for which someone is charged, summonsed, receives a caution or other formal sanction.

Thus, a policeman who has a quiet word with someone, and advises them to calm down and go home wins no brownie points at all, whereas a ticket, or an arrest followed by a caution will push that graph just a little higher. And the crime figures against which the percentage of SDs is calculated are notoriously unreliable anyway, almost to the point of being meaningless.
You can't blame coppers for following the policies of their political masters; that's what they are paid for, after all. Just don't kid yourself that these masses of statistics prove anything about what is really going on on the street.

Just In Case You Didn't Realise

Driving without Insurance is a Bad Thing. If you are caught doing it you will be fined and you may well be banned from driving. At the very least you will get six points on your licence. So far, so bad.

You can make it worse though. Just arrange for a forged insurance certificate, and present that to the court. Then, apart from all the trouble of a conviction for no insurance, you can be charged with Using a False Instrument. That carries a maximum of six months in prison at the magistrates' court and/or a fine of £5000, but is also Either Way, which means that it can be sent up to the Crown Court. Judges understandably take a dim view of this sort of thing, and you might be absent from your usual haunts for some time.

Here We Go Again (2)

The recent report from a House of Commons Select Committee that was rather hard on the CPS included this interesting recommendation:-

(the CPS should) work with Her Majesty’s Courts Service to establish 24 hour courts as “one stop shops” in city areas, where those arrested for minor offences could be dealt with immediately.

Oh dear. A few years ago, in response to one of those Downing Street sofa moments, an experimental night court was set up in London in the expectation that offenders would be dragged off the streets, hauled up before the beak straight away, and be dealt with before midnight. Unfortunately the idea (borrowed, like so many crap ideas, from New York where things are, believe it or not, different) was not properly thought through, and the experiment was quietly dropped, having wasted several million pounds.
The trouble is, you see, that some people inconveniently plead not guilty. People are entitled to legal advice before deciding how to plead. If they are to be fined, there will need to be staff available to take the cash. If a community penalty or prison is in prospect then a probation report is required. All of this takes time, and will inevitably require an adjournment.
I have no doubt that the idea will be given another try and that it will again collapse after wasting another few million quid.

On The Spot

"On-The-Spot" fines are in the news again, twice in one day. Firstly, and most absurdly, the dreaded hordes of Roumanian and Bulgarian workers who are expected to flood our shores next year will face an on the spot fine of £1000 if they work illegally - and most of them will not be allowed to work legally, unlike the Poles and others who are already here. Of course the fines won't really be on the spot, that is just a catchy phrase to please the tabloids. In reality the fines will be all but impossible to enforce - imposing them on a group who are by definition unregulated and amorphous will be like trying to catch water in a sieve.

Secondly, local councils will be given greater powers to make byelaws and to enforce them with - you guessed it - fixed penalties. Justice will require that there be a right of appeal, and we shall see what that throws up. I wonder what the trade unions will have to say about council employees being asked to dish out penalty notices, unsupported by any right to detain or by any training in the sort of work that should really be done by a constable?

Any Techies Out There?

I am getting a flood of spam from pump-and-dump share pluggers. The swine are evading filters by putting their rubbish in .gif form. I am quite happy to block all emails containing .gifs - how can I do this? I use IncrediMail.

Still More Sensible Advice

Do not spit in the street. It is bad manners and unhygienic. If you choose to ignore my advice, do not spit in the street when you are three yards away from a police officer. If you are still determined to ignore my advice and do in fact spit in the street while you are three yards away from a police officer do not immediately get into your uninsured and untaxed car that you do not have a licence to drive. Someone did just that the other day and it cost him, all in, over £400 and a driving ban.

Legal Aid - Update

Irwin Mitchell, a leading criminal defence firm, has pulled out of doing legal aid work Article here

Softies

We imposed a community penalty a little while ago, and included a curfew order, enforced by a tag. "Excuse me" said the defendant after I had announced the sentence. "When does the curfew start?" "8 o'clock tonight" I said. "Oh. Is there any chance you could make it start tomorrow night, sir?" "Why?" I enquired. "Well, sir it's my birthday today....." I looked at the listing sheet in front of me and there was his date of birth. I glanced at my colleagues, both of whom were smiling at the sheer cheek of it. I gave him a long look. "All right, tomorrow it is then".

Of course we should have stood firm for the punishment to begin straight away, but we all felt the same human response to his request. I don't think any harm was done.

More Sensible Advice

Drinking and Driving is a Bad Thing. This blog's advice is not to do it. Ever. It's dangerous and the penalties are heavy.
An even worse idea is to swig from a bottle of beer as you drive along, in view of the crew of a passing police car. A gentleman of Baltic origin did just that the other week, and when stopped proved to have a breath alcohol level of 73ug, as against the legal limit of 35.

More About the Kiddy Court

I do not sit in the Youth Court, so I am by no means an expert on young offenders, but what I do know is that courts are seeing more and more young defendants. The number of sitting days allocated to youth cases has had to be doubled in some courthouses to cope with the work. There are a number of reasons for this increase - one obvious one is the fact that many young people routinely carry several hundred pounds' worth of electronics in the shape of mobile phones and IPods, which largely explains the surge in street robberies. I am also told that there is an increasing trend for youths to plead not guilty. The discount for an early guilty plea doesn't amount to much if the court is going to impose a referral order, so quite a few decide to give it a run. A contested robbery charge involving several defendants, all of them claiming to have taken no part, with separate lawyers for each can easily run to several days.

The New Statesman has a thoughtful piece on youth crime here. The writer suggests that the criteria for charge versus warning or caution are tighter for youths than for adults, which could be another factor in the increased workload.

Later:
I am grateful to H27 for this link to a story about David Simpson, a District Judge who specialises in youth work, and whom I know.

Cost of Cockups

A House of Commons committee has had a look at money wasted in courts (see Telegraph article) and has said things about the performance of the police and the CPS that most magistrates would echo. I have been saying for years that what the CPS needed was not so much more lawyers as a few decent clerical staff who could check that files were complete and in the right place, and do such simple things as telephoning or emailing witnesses a few days before the trial to remind them that they are required. Time and again we have suffered missing police and civilian witnesses, because nobody had warned them properly. The court's only power is to refuse to adjourn, forcing the Crown to offer no evidence. That isn't justice either, but it's an adversarial system that we are operating, and the rule is put up or shut up.

Don't Quote Me On This

I was chatting to one of our office staff the other day when the subject of fixed penalty tickets came up. As I expected he told me that the payment rate was poor, which is not surprising in a city like London where something like a quarter of the population move house each year. What did amuse me was the news that more than fifty tickets issued in one sector of London were given to people who gave their address as Walford.

(Note for non-UK readers: Walford is a fictional borough created for a popular TV soap).

More Sentencing

When someone is convicted after trial it is often necessary to order pre-sentence reports, usually because the court is considering a community penalty or prison. That will commonly take three weeks to prepare. It has always been the practice for at least one of the trial bench to sit on the eventual sentencing hearing, because they will have heard all the nuances of the evidence and will have a full understanding of the offence. In recent times some Justices' Clerks have expressed the opinion that this is not necessary, but few magistrates agree, and there has been some debate on the Mags' Association web forum (sorry, it's private and passworded) which suggests that most JPs support the status quo. Under the 2003 Act we have to fill in a pro-forma for probation to give them an idea of how we feel about the offence and of the sentence we have in mind. The form is a simple tick-box exercise and asks us to indicate low/medium/high for community penalties, or "so serious" for prison. The trouble with this is that if we indicate a community penalty the subsequent bench has its hands tied as a legitimate expectation has been created that the defendant will not be sent inside. As a result, unless the offence has a community sentence written all over it, we tick the custody box as you can always come down-tariff but you can't go up. These forms are fairly new (interestingly our District Judges won't use them) and we are often boxed in by a convicting bench having excluded custody when the offence may well merit it.

A few months ago I sat on a trial in which we convicted a man of threatening behaviour against two public servants who were on duty at the time. It was a nasty incident, and caused real fear to the two victims, and we indicated a high community penalty (the man was middle aged and had no previous convictions, so custody would not be appropriate). I made sure that the case was adjourned to a day when I was sitting. I outlined the case to my two colleagues before we read the reports. The probation officer's analysis of the offence bore next to no relation to what had really happened and she seemed to have accepted the defendant's story uncritically. Part of the aggravation was that he had walked away from his victims and then returned a few minutes later to have another go. This fact he omitted to mention in the interview. The upshot was that the report recommended a fine - way too low for the offence, especially in view of the fact that there was no credit for a guilty plea. Had I not been there a bench coming fresh to it would probably have fined him as per the report.

So we gave him 250 hours unpaid work, and ordered compensation to the victims and costs to the prosecution totalling about £600. I shall carry on coming back to deal with sentences whenever I can, because we are more likely to see justice done that way.

How Original

Today's 'Sun' has an editorial comment on the sentence imposed on a teenager, 14 at the time, who murdered a boy in horrible circumstances:-

Today, murderers are seen as victims who need help, not condemnation. Hamer will spend his sentence being counselled and comforted and then set free.
The real life sentence will be served by Joe’s mum and dad.

So presumably twelve years is not enough, and Hamer should not receive any rehabilitative treatment while he is inside. What do you suggest then, Rebekah? 20 years? 40? And what shall we do with him? Breaking rocks? Do let us know your thoughts on penal policy - after all if you punch your husband again you might be back in a cell for a bit longer than last time.

Here's an Odd One

October is the AGM season for benches. We elect our bench officers and committee members, hear from the Clerk and the Bench Chairman, and sort out procedural matters for the year ahead.
This took me by surprise, in today's 'Times':-

JPs’ vote inquiry
Police have been called in to investigate allegations of cheating in a vote involving 241 JPs after 15 extra votes were cast in the annual election for two deputy chairmen of the East Dorset magistrates’ bench. An official said the possibility of error would be investigated, but irregularity was “more likely”.

I find it hard to believe that anyone should be so anxious to become a deputy bench chairman that they would resort to skulduggery. It's not as if the position is paid, and it doesn't carry the sort of prestige that will get you a good table in a restaurant. We shall see what happens - I usually prefer the theory of the cock-up to that of the conspiracy.

Told You So

From The Sunday Times

Reading Gaol

A good few years ago I paid a routine visit to Reading Prison. It's been converted to a remand centre now, and has lost the anti-climbing cylinder that used to top its walls, but in those days it was a local prison. We were taken round by a very experienced officer who was close to retirement, and who came out with a phrase that sometimes gives me pause for thought:- "If I may say so, sir, you ladies and gentlemen send people here too late and for too long. They all have a good cry on their first night and for two or three weeks they are scared and confused. After that they get used to it and get on with doing their time".

We thanked him as we were leaving, and I said as a parting shot:- "There can't be many other prisons that have had a famous poem written about them".

"Eh?" he replied.

I know not whether Laws be right,
Or whether Laws be wrong;
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.

The full text is here.

News in Brief

Tucked away on Page 28 of today's "Times" is this:-

Blind driver case
A man who guided a blind man as he drove a car around Oldbury, West Midlands, was jailed for nine months. Dlear Ahmed, a 21-year-old Iraqi, admitted aiding and abetting dangerous driving. The driver, Omed Aziz, 31, of Darlaston, West Midlands, was given a 12-week suspended prison sentence and three-year ban.

The sentence on the driver was widely derided and received massive news coverage. The man who caused the whole business to happen has been given nine months. Not much of a splash down-page on Page 28 is it?

And As For This..........

This scheme shows every sign of having been devised by someone who has absolutely no idea of how courts work.

Who is, or are "the community"? Who decides who they are? Who elects them? Who selects them?

When being helped by the "community" to "devise appropriate sentences" will the existing structure of the law be used, or can we make it up as we go along?

What a lot of tosh.

What will kill it is that it is bound to cost more than the present system, and there is no money.

And another thing.....This particular magistrate is insulted by the insinuation that some self-selected "community" representative knows the turf better than I do. I was born in my court's area. I grew up in it, went to school there. The local council paid for me to go to university, and I have worked in the area as a businessman and latterly as a magistrate for the whole of my life. Is that "community" enough for you, Ms Harman?

Press Gang

This article in The Times is an example of much that is wrong with the way in which the Press treats crime and punishment issues.
Journalists feed on each other, and attitudes fashions and usages are shared between different papers. For example, in the Times article David Brown speaks of the young men convicted of the manslaughter of Damilola Taylor serving 'just' half their sentence. That is of course the norm, but the impact of that 'just' is to imply that they have been let off in some way. Damilola's parents have suffered the loss of their son, and they have had to come to terms with an investigation that was badly handled in many ways. Mr. Taylor

had urged the judge to impose life sentences, saying: “Anything under ten years would be unacceptable. That is not even a year for every one Damilola lived.”

With all due sympathy and respect to the Taylors that is exactly why impartial judges pass sentence rather than grieving victims. The idea of linking the sentence to the age of the deceased is a new one, but of course Mr. Taylor wasn't really suggesting pro-rata sentences. The article is headlined that the killers "could walk free in three years". As I have said, the 50% remission is what everyone gets, and it is hardly a novelty. Time on remand is automatically taken off any sentence, but the "Times", which ought to know better, leaves the impression that the killers have been done some sort of favour.
The tabloids are the worst offenders, but the infection of sloppy journalism spreads fast, and even serious newspapers are spreading untruths under the guise of news. Still, at least the Taylors did not claim that they were the ones serving a life sentence, the standard response of victims' relatives these days.

And The Winner Is...............

This was a lot harder than I expected, as there was so much good stuff. Any decision will inevitably be unfair, but Decisions 'R' Us, as we say down at the Palais de Justice.

Honourable mentions go to:-

2 Robins (nice undertone of menace there)
JL Jones (Great judge reference)
traineelawyer (nice bit of chemistry - a bit too accurate for my liking)
Squigs (Loved the idea of a tick-the-box proforma)

but: Mailhater got in first with the idea, and Feltham was just the place to sell them, so let's hear it for MAILHATER!

Send me an email with your address, and I'll put the prizes in the post.

Thanks everyone.

Competition Countdown

The jury has now assembled to decide the winner of our competition. We are esconced in the library at Bystander Towers. My manservant, Wojtech Gadulski, late of Warsaw, has laid out the trays of canapés and has decanted the fine wines and ports. Fine Champagne VSOP cognacs and rare malt whiskies sit upon the sideboard, and crystal sparkles in the candlelight.

We anticipate that this may take some time, and the results will be posted on the blog some time after noon tomorrow, which will give us time to finish our champagne breakfast and have the breakfast things cleared away. Cold kedgeree is so unattractive at noon, is it not?

At first sight, the entries look to be of a high standard. We shall buckle to our task with enthusiasm and impartiality. Good luck to you all.

No Comment

I have just finished reading an update on the progress of a serial offender who has been committing mostly low-level offences for more than a decade. As usual it contains good news and bad news, glimmers of hope and clouds of disappointment. Those supervising him are doing all they can to guide him into giving up his offending habits.

One thing did strike me though. He was sentenced to one year in prison last May and was released on Home Detention Curfew two months and one day later.

Vicious Circle

Breach of ASBO. Defendant in custody. He went up to a policeman claiming he had been assaulted, and was promptly arrested for being drunk (which he is, all of the time). His previous record shows five prison sentences, from 14 days to six months, for breach of this selfsame Order. I asked to have a look at the Order, and it forbids him from being drunk anywhere in the Borough including in his own home.

So an alcoholic (who has an allocated Council carer because of his low intelligence and borderline mental stability) keeps on drinking and the courts keep locking him up. What a cruel way to treat anyone, and what a waste of £600 per week to keep him in prison.

Legal Aid

Today was the first day of the new Legal Aid régime that reintroduces means-testing for defendants. As expected we were forced to adjourn five cases for a week to allow lawyers and court staff to sort out eligibility. Across the country there must have been hundreds. The new means form is fiendishly complex and runs to more than two dozen pages.

Court staff and judiciary have worked hard for eighteen months and more to reduce delay in hearing cases. We have hammered defence and prosecution, cut requests for adjournments down from weeks to days and from days to hours. It has worked. Now, with yet another ill-thought-out reform, we are reintroducing systemic delay.

Brilliant. Bloody brilliant.

What's in a Name?

The press has had a lot of fun with the sexual triangle involving two immigration judges and their rather fit-looking cleaner. One of the judges has been outed, and both of them may find that the Lord Chancellor will take a dim view of the whole brouhaha.

Until fairly recently, these two judges would have been called Immigration Adjudicators. Many have been appointed to take on the backlog of asylum cases; I know several who are former court clerks. The pay is fairly good and the hours are flexible. Immigration Adjudicator is hardly the stuff of a tabloid headline though, is it? Calling them judges must do wonders for their social cachet, but it does put them in the firing line if anything goes wrong.

I was at a lawyers' dinner just after it had been announced that the Stipendiary Magistrates, a feature of the courts since Fielding's day, were to be renamed as District Judge (Magistrates' Courts) which hardly rolls off the tongue, but does bring in the J-word with all the risks and rewards that entails. The then Chief Magistrate (he's still called that, by the way) said in his speech that the change had come about because Stipes were fed up with being asked "What do you do?" and on giving the reply "I'm a Stipendiary Magistrate" being told:- "Oh lovely. My Auntie Doris is a magistrate in Chipping Sodbury. Do you know her?"

Well lads, you've got a posher name, but as Judge I and Judge J have just discovered, it does have a downside to it.

By the way, the renaming of the stipes means that there is no longer any such thing as a Lay Magistrate, the first word now being superfluous.
We are all JOHs now - Judicial Office Holders. I don't feel any different.

Competition Time

My Bench Chairman has been given a lot of information about Conditional Cautions that are going to be 'rolled out' in a police station near you some time soon. I shall do a piece on the cautions themselves, but in the meantime I am going to set this blog's first-ever competition!

When miscreants are given a Conditional Caution in future, the conditions will be set by the police in consultation with a CPS prosecutor, leaving those stuffy old fashioned courts right out of the loop. Fascinatingly, one of the conditions that will be imposed (and I'm not making this up) will be for the offender to write a letter of apology to the victim. I don't know how the system is going to overcome the fact that a good half of our defendants are functionally illiterate, and half of those struggle to write their own name. Many communicate only in grunts. Our ushers are well used to filling in means forms, and more often than not ask the defendants to repeat the oath rather than risk them reading it off a card.

So let's have your letters, apologising for imaginary crimes, of assault on PC or civilian, theft, vandalism, drunkenness, public order offences, that kind of thing. I shall award extra marks for any letters that manage to conceal lack of remorse in a cloak of apparent apology. But feel free to write whatever you like.

The unique prize will be the mouse mat and pen pictured below. Not available in shops, this will be a valuable keepsake for your grandchildren. Or you could put them on ebay and buy a potato with the proceeds.

Of Mice and Pen

This is a London Criminal Justice Board mouse mat and pen. It's nice to know that there is plenty of money in the system to pay for things like this. I suppose the LCJB has to keep its image before the public - after all we don't want people to take their business elsewhere, do we?

Take Care

Thinking about the procession of judges that is to take place on Monday, I am reminded of a tale of the old days of Assizes, when the Sessions were opened by a procession of civic dignitaries and judges, mace bearers and all. As the gorgeously robed and bewigged judges approached the court building a man in the crowd made a traditional two-fingered gesture at the leading judge. The judge promptly ordered a police officer to arrest the man, and to bring him into court when required.
A young barrister was sent down to the cells to take instructions, and later in the morning, after his client had been placed in the dock, he delivered his mitigation.
"My Lord, my client wants me to say on his behalf how upset and shocked he is at having caused you offence. Of course he does not deny making a coarse gesture, but he does deny making it at your Lordship. He mistakenly assumed that you were the Mayor".
His Lordship graciously agreed to accept the apology and ordered the man's release. What the Mayor thought about it all is not recorded,.

From The Official Judiciary Website

Opening of the Legal Year – 2 October 2006
The legal year traditionally begins in October and courts sit for four terms during the year. The 2006/2007 term dates are:

Michaelmas 2 October 2006 – 21 December 2006
Hilary 11 January 2007 – 4 April 2007
Easter 17 April 2007 – 25 May 2007
Trinity 5 June 2007 – 31 July 2007

The start of the legal year is marked by a procession of judges arriving at Westminster Abbey from the Royal Courts of Justice in The Strand for a religious service, followed by the Lord Chancellor’s ‘breakfast’ at Westminster Hall in the Houses of Parliament.

Timetable

10.45am People start arriving at Westminster Abbey
11.30am Service begins
12.35pm Leave Westminster Abbey for Westminster Hall

History

The service in Westminster Abbey dates back to the Middle Ages when judges prayed for guidance at the start of the legal term. Judges, whose courts were held in Westminster Hall, left the City and walked to the Abbey to take part in the service.
Before the Reformation it was customary to fast for several hours before taking communion during the service. After the ceremony the Lord Chancellor would offer the judge some food to break their fast before they took their seats in courts, hence the term ‘breakfast’.

Present Day

The ceremonies now are more or less as they have always been but, instead of the two mile walk from the Royal Courts of Justice to Westminster Abbey, which has been the case since the late nineteenth century, the judges now travel by car.
The 45-minute service, which starts at 11:30am, is conducted by the Dean of Westminster. It includes prayers, hymns, psalms and anthems; the Lord Chancellor reads a lesson.
Around 1,000 people are invited to attend the service and breakfast. These include judges, senior judicial officers, the Law Officers, Queen's Counsel (QC), Government ministers, lawyers, members of the European Court and other overseas judges and lawyers. Judges and QCs wear ceremonial dress; the Lord Chancellor will wear a morning suit.
After the service the guests will walk from Westminster Abbey to Westminster Hall in the Palace of Westminster for the Lord Chancellor’s breakfast, which will consist of a light buffet.

Disruption of Ceremonies

Although well-established traditions, both ceremonies were cancelled on occasion during the last century. The breakfast was cancelled during the First World War and was only held four times during the 22 years 1931-1953. In 1940 the service had to be cancelled due to bomb damage in the Abbey and it was not held again until 1946. In 1953 the ceremony took place in St Margaret’s Church because structures and decorations for the Coronation in the Abbey had not been removed.

For the record:- No, I have not been invited, despite the fact that this blog has had 150,000 more visitors than the Magistrates' Association site.

I wouldn't want to go anyway. No I wouldn't.
(Sniff).

I Agree

This neatly sums up the flaws in the government's populist drive to involve victims and their families in criminal justice without any real idea of what they will be there for. As I have said before, all that will result will be a freakshow for the delectation of the media.

Terminological Imprecision

Sentencing an unbelievably callous and devious young man who gravely injured his girlfriend while driving unlicensed, uninsured, and drunk or drugged or both and then drove her battered body home, forbidding anyone to call the police until he realised that she had died, the judge, Alan Goldsack, QC, the Recorder of Sheffield, said:-

“When you found Kirsty seriously injured, you had no thought for anyone but yourself.

“This a not a sentence of 4½ years. It is effectively a life sentence where the minimum you serve is 4½ years. It might be very much longer.

The judge was careful to explain the sentence, and for once it was properly reported, at least in one paper. It reinforces my strong view that the life sentence needs a new name so that the public can understand just what is being done on their behalf.

Run Out of Town

This is a report of a man given an ASBO banning him from his home town. If the reports are correct he certainly sounds like a nasty piece of work, and his neighbours must be sick of him. How long though before a Human Rights case based on his right to family life under Article 8? It's a qualified right, but his solicitor may think that it's worth a run.

Simply Incredible

Following the appalling death of a tiny baby, savaged by two Rottweiler dogs, we have been allowed some insights into the way many of our fellow citizens feel about animals and about people.

Sky News' website has this:-

I am particularly saddened by the fact that these two beautiful animals have been destroyed prior to any investigation taking place. Maybe instead of just killing these dogs questions should have been asked as to what the baby was doing to these animals to make them attack and also where were the babies parents when the attack was taking place? It is easy to destroy the dogs...but maybe the parents should be dealt with as well and not just blame (what are after all wild animals) these poor animals.

Investigation? Like finding the dogs guilty or not guilty? Perhaps the five-month old baby provoked them?

Simple, Speedy, Summary (And Unfair)

Petrikov is a regular contributor to the comments, and brings a welcome transatlantic view of things. He has found this from the New York Times, about local justice as practised in the more rural parts of the Empire State.
I do hope that nobody leaves this article lying around in Downing Street. CJSSS is the mantra that is chanted at the morning before-work ceremony in Charlie's Department of Constitutional Affairs (aka Decaff). "Criminal Justice Simple, Speedy, and Summary" is what that stands for, and it's the 'Summary' that worries the hell out of me. I associate the word with summary execution, summary dismissal, and so on. It does not have connotations of consideration of evidence or of due process, but more of a quick ticket handed out by a harassed PC or an ASBO dished out by the park keeper or the dog warden. Well, those sturdy (elected) burghers in NY certainly seem to have the summary bit well in hand.
Don't tell Tony, will you?

Fine Course

Sarah Pine, in a comment on the previous post, asks about fine enforcement. A few years ago, the courts' performance was abysmal, and in some places, especially those with a high turnover of population, less than half of the outstanding cash was ever collected. That was not really surprising. To the typical offender, the arrival of a franked brown envelope notifying a fine (even if it got to him, and even if he could read it) had little effect on his consciousness. I remember saying to my Justices' Clerk some years ago that any private-sector finance director who turned in a performance like that would have his P45 by Friday, a remark that was received coolly.
These days a lot more effort is put into collection, and every court has its fines officer who has considerable power to collect outstanding cash, including bailiffs, clamping and seizure of cars, addition to the commercial bad debt registers, attachment of earnings and deduction from benefit. Instead of waiting for the offender to get round to paying up the staff may telephone to press for payment (during soaps and big football matches is a good time to find them at home).
If that fails, there is a process that starts with a summons to explain to an enforcement court why the debt is unpaid. If that results in a no-show then an arrest warrant is usually issued. At the end of a long road, and after a court has made a finding of either wilful refusal or culpable neglect to pay then an immediate or suspended prison sentence can be imposed. Decisions of higher courts have placed a number of hurdles that a bench must leap before this final step. I have said before that prison is really an admission of defeat, because it costs money, and wipes out the fine too.

Nowadays collection rates are usually well over 80% and climbing. Still not good enough, but getting there.

Bits and Pieces

We had a bitty day today, as our scheduled trial was 'cracked'. A cracked trial is where one side or another throws in the towel, with the defendant pleading guilty or the prosecutor offering no evidence. The issues at stake were factual, as the various witnesses' stories were a mile apart, and the sum allegedly stolen was only about £100.
We went in at ten o'clock, and stayed for two minutes while the prosecutor asked for time to make efforts to contact the three witnesses (out of five) who were missing. We went back outside to the coffee machine. Ten minutes later, we went back in, to be told that the loser of the £100 may not be available today, and that the two key prosecution witnesses were absent and that their phones were turned off. The prosecutor applied for an adjournment, and the defence counsel got to his feet to spend five minutes resisting the application. He managed to have his cake and eat it by telling us how disappointed he would be if he were unable to demolish the two missing witnesses, while urging us to refuse to adjourn. Refuse we did, and the prosecutor then offered no evidence and I told the defendant that the case was dismissed. With our day's business gone we took work from other courtrooms, varying from search warrants, to a bit of case management, to sending a couple of unpleasant young men who had committed a distraction burglary on an old couple to the Crown Court for sentence, our powers being totally inadequate for such a nasty crime.
We were truly surprised to see a scion of one of our perennially-offending local families turn up clutching a Certificate of Motor Insurance, something that has never before featured among their family's posessions. Unfortunately for young Dermot (one of the few not named after a Pope or a saint) the certificate had been taken out two days after his being stopped by the police, so after a word with the clerk he bowed to the inevitable and changed his plea to guilty. We fined and banned him, and had to do without the usual means form because he is a stranger to the mysteries of reading and writing. He is a dab hand with a shovel though, and he earns £550 per week (in cash, of course). We moved on to dealing with a man with a Bart Simpson haircut who had been fined a few hundred pounds last year, had paid about half, then stopped. He was rather indignant at having been arrested and claimed not to have noticed that the payments had ceased being deducted from his benefits.
Matters livened up when the two missing witnesses from earlier turned up an hour and a half late, and were indignant that the case had gone ahead. They said they had tried to phone (believe me, the number of letters and phone calls to and from the courthouse that are alleged to have gone astray is phenomenal - I must have heard the phrase "I never got no letter" hundreds of times). I pointed out firmly that if they had been on time things might have been different, and when I heard that they had been rude to court staff in the lobby, I gave them a few choice words of advice before sending them away.
We dealt with a third-time drink driver, who was still serving a ban for one of the previous offences, so we put it off for pre-sentence reports, and I warned him firmly that he was facing a prison sentence. Finally there was a man in his twenties with fourteen previous convictions for drunk and disorderly. He had spent a night in the cells, so we fined him £100 to be taken out of his benefit and added £43 costs.
So that was it, a richly varied diet of day-to-day magistrates' business. I was back in my home town and walking into the pub before 5 o'clock.

Cover Notes

Elsewhere on the Interweb the perennial argument about penalties for driving without insurance has popped up again. One often hears the complaint, in the pub or the letters page of the local rag, that it is cheaper to drive without insurance because the fine is often less than the premium that has been dodged. But it's not as simple as that. As my Clerk points out, there is no offence of not having an insurance policy, only of driving without insurance at a particular time and place, so you could with equal logic argue that the premium avoided is one 365th of the annual cost. Further, there is an overriding principle that fines must be reasonably payable within no more than 12 months, so fining a young man who is receiving weekly benefit of £48 the premium of £1500 or so that would be required to insure him is simply impractical. What happens in practice (and assuming that a fixed penalty of £200 and six points has not been offered) is a fine of about a week's net income, less a third for a guilty plea, and six to eight penalty points. Where the lack of insurance is aggravated by the lack of a driving licence and a test never have having been taken, we normally disqualify for about three months for a first offence, and six to twelve months for a repeat offence.
If we do not disqualify, the minimum number of points is six, which has two effects:- if the driver is within two years of passing his test his licence will be revoked, and if he offends a second time within three years he must be disqualified for at least six months. Of course the cynics will say that some will just carry on driving anyway, and that is true, but driving while disqualified is much further up the scale, carrying up to six months imprisonment. Police enforcement has become much easier with Number Plate Recognition technology coupled with the insurance database. We will never get 100% compliance until insurance is unavoidable, such as by a tax on petrol, and I can't see that happening because people like me, who are in comfortable middle age, will have to pay a lot more to subsidise young tearaways - and we don't want to do that, do we?