More From The Currant Bun

The Sun runs a leader today that manages, as usual, to be wilfully misleading and deliberately unfair:-

WHEN a judge passes a life sentence, the public has every right to think that it means life.

They certainly don’t expect it to last just four years.

Judge Christopher Metcalf handed down a life sentence to a paedophile yesterday then promptly told him he could be out in 2010.

What sort of justice is that?

Jason Hope was on the run from prison when he committed an appalling act of depravity on a 13-year-old schoolboy.

If Judge Metcalf thinks four years is life he’s obviously living in a different world from the rest of us.

One of these days, a judge is going to pass a life sentence which actually means life.

But until more prisons are built and judges get a grip on reality, that’s not going to happen.

And judges like Christopher Metcalf will continue to be living proof the law is an ass.

The judge is obliged, when passing a custodial sentence, to read out a statement explaining how it will work. In the Crown Court where I sometimes sit on appeals the sentencing reasons statement is present in laminated form on each bench. When passing an indeterminate sentence such as life the judge must state the earliest date at which the prisoner can be released, but that does not of course mean that this will be the actual release date. In one recent case that greatly exercised the papers the judge went on to say that the prisoner would not be released until he was felt to present no further danger, and that he might, in fact, never be released. The headline writers ignored that, leaving, as they intended, the impression that a man who had committed an appalling crime would be out in a few years.

The casual insult to the judge in the quoted piece above is just another chip away at respect for the courts, and it isn't just casual, it is unfair and inaccurate.

In its crude and thuggish way the Sun does make one valid point. It is time to end the fiction of calling some sentences 'life' when they are not intended to be anything of the sort. Life is now a technical legal term, so why don't we replace it with something like 'indefinite' or 'indeterminate' or even 'unspecified'? Then we can save the L-word for those sentences that are imposed for the very worst crimes and will very likely leave the criminal inside until he either dies or is rendered so frail by the passage of time that he is no longer a threat to anyone.

Hard Cases Make Bad Law (no.277)

Like this

This well-intentioned but stupid legislation will profitably occupy many lawyers and police officers, and is unlikely to convict many, if any. It is a classic knee-jerk reaction to an appalling case. The borders of this kind of sexual conduct are notoriously fuzzy, and it isn't fair to ask a jury to decide on such a nebulous issue.

I Agree

As we near the end of the lull in frenetic 'initiatives' from the Government caused by the summer holiday season, we sit nervously awaiting the latest basket of wheezes cooked up on a Caribbean beach. There will be much talk of victims and of rebalancing, and this letter in today's Times gives a welcome perspective:-

Sir, You report (“Change may tip balance in favour of those who abide by law”, Aug 28) that the Prime Minister and Home Secretary want to rebalance the criminal justice system to give victims a greater voice.
One of the fundamental tenets of modern jurisprudence is that a crime is an offence against society. This justifies the State, and not the victims or their families, in taking the role of prosecutor and jailer. Another principle is that culpability is measured by the degree of the accused’s intention to bring about harmful consequences, not on the suffering of those affected.

In the sentencing process, account is always taken of aggravating or mitigating factors, including the level of violence used and the relative vulnerability of the victim. The penal options available to the judge are designed to do three things: punish, rehabilitate and deter. If the penalty is to be decided according to how sympathetic the judge is to a victim’s testimonial, what is its purpose? Public catharsis? Do Blair and Reid really think that turning the courts into platforms for victims’ grievances will hasten the healing process?

There was a time when vengeance was a victim’s right and public catharsis very popular. Wronged individuals and even whole communities participated in the trial and sentencing process. They then got the opportunity to carry out or watch the punishment. It was called the Dark Ages.

KATHARINE EVANS

Domestic Violence - The Sequel

Just after posting about Domestic Violence the other day I was at court while the adjacent courtroom spent all day trying a DV case. I can't pass on most of what my colleagues told me over lunch, but the case seemed to have many of the features that we so often see - a turbulent relationship, a problem family, a reluctant victim (who had in fact turned up to give evidence) and a history of more than three dozen calls to the police made either by the woman or by neighbours concerned at the sounds of conflict coming from the flat next door. Only now had lover boy been charged. The only people who knew what had happened were the two protagonists, there being no independent witnesses. The neighbours didn't want to get involved, this being the kind of estate where the police are only ever called in to arbitrate violent and often drunken disputes.

I don't know how it turned out, but when the bench has to reach a verdict beyond reasonable doubt, and the two people involved flatly contradict one another on every single detail, it can be difficult.

Speed Again

I commented here and here on the case of the police driver who drove at speeds of up to 159 mph on the road.

After the High Court overturned the PC's original acquittal the case was sent back to the magistrates' court, and re-tried before a different District Judge, DJ Peter Wallis, who is a leading expert on road traffic law, being an editor of Wilkinson's, which is the definitive handbook on traffic cases.

I defer to the learned DJ's knowledge of the law, and he was clearly acting within his discretion to impose an Absolute Discharge on the grounds that the officer has 'suffered enough' although comments in today's press suggest that is a controversial decision. What I do find hard to understand is that no penalty points or disqualification were imposed. If you look at the Bench Book that is used by all magistrates and District Judges at about page 162 of the pdf you will see that the entry point is custody; no matter, the DJ was entitled to see things differently, but also that a disqualification should be imposed, or, failing that, penalty points.

Although I have seen nothing about it in the press, the DJ must presumably have found Special Reasons not to endorse or disqualify. I have always understood that Special Reasons must apply to the offence and not to the offender, and must not be capable of amounting to a defence. That does seem odd in this case, and I look forward to finding out exactly what the DJ said.

Afterthought......
The Police Federation have said that they intend to appeal the conviction. That will be interesting as it will be by way of a re-hearing in front of a Circuit Judge or Recorder, and two magistrates. There is a risk to the PC in this, because the penalties may be increased if the court so decides.

A Bit More About Domestic Violence

The Criminal Solicitor has a sobering account of a man who was cautioned by the police for an offence of domestic violence and released. He went home and murdered his wife.
This awful case points up the risk that everyone in the criminal justice system runs every day - that of taking a decision that is completely within the rules, but goes horribly wrong. As I have often said, all bail decisions are a calculated risk, and so are many sentencing decisions. Away from the courts the decision to caution rather than to charge (as in this case) or the parole decision, or that to reclassify a prisoner to open conditions are all fraught with risk.

Along with well over half of my colleagues I have now completed my Domestic Violence training, and it has helped us to understand more about the issues and the risks. The risks remain however, because they are a consequence of the unpredictability of human nature, especially in the labyrinthine complexity of the relationship between a man and a woman. Who could have predicted the appalling leap from a holiday hotel that killed a child last week? Just suppose that the man responsible had been on bail: what would the tabloids have made of that? How would the magistrate who granted bail feel? And it could have been me.

Oh Well, It Had To Come.....

Speeding kills. Speeding is fun. Cameras are there to collect revenue. You have heard it all before.

Go on then, let's have your comments. Be as rude as you like about magistrates but please don't attack each other.

I'm off.

JP - ID

Magistrates in England and Wales either have or are to be issued with photo-IDs. The cards will be in a standard format and will include a photograph. The JP has the choice as to how his name appears on the card, such as John Smith, Mr. John Smith, J. Smith JP, or whatever.

These IDs will not be worn in court, but are to help in gaining access to secure areas of courthouses, and to courts and other Courts' Service premises where the user may be a visitor.

This is a major break with previous practice. When I was appointed we were sternly informed that there were no badges, ties or cufflinks, nor ladies' equivalents for magistrates. The use of JP after your name was strictly limited to official documents. Under no circumstances might it appear on election literature, or in any context where the user might appear to be using it for his own advantage. The reason was obvious: if even a tiny minority of idiots tried to use their office to throw their weight about the whole magistracy's reputation could suffer.

One fool on my bench made a huge fuss in the Post Office one day in the 1980s because he was unable, for technical reasons, to re-licence his car. He jumped up and down, demanded to see the manager, and said that no magistrate should have to drive around untaxed, and all the rest of it( it was the last day of the month).

He quietly disappeared from the bench a while later. I was far too junior to find out what had happened, but my guess is that he fell on his sword after a few hints from the Bench Chairman and the Clerk.

Since then the Lord Chancellor has relaxed the rules on the use of JP (if you are really interested it's somewhere on the Magistrates' Association website) because he feels that the community ought to know who these people are. I agree. Openness is not always comfortable, but any secrecy in the administration of justice is bound to arouse understandable suspicions.

Come to think of it, that's one of the reasons for my starting this blog.

Reality Check

When we order pre-sentence reports, required before we impose community sentences or custody, we often have to adjourn the case to allow probation to produce the report. Where drug or psychiatric assessments are required we must adjourn for three weeks to allow the report to be prepared. Up to a third of offenders fail to turn up for the interview, and we saw a couple of them this week.

In the interests of justice we often have (reluctantly) to adjourn for another try, but in each case I accompany the pronouncement with a bit of patter along the lines of:-

"We will have this report, one way or another. We have the power to remand you in custody if that is the only way to get you to an interview. We will send you to prison and the probation officer can visit you there. This next appointment will be the last one on bail. Do you understand?"

This has a dramatic effect in penetrating the often-befuddled brain of the defendant, and to be honest, I have never yet had to carry out my threat.

Nasty Little Scams

This post is not based on my experience as a magistrate, but on my experience running businesses.

There are many people who prey on decent businesses and decent people year after year, and my main regret is that I hardly ever see any of them in the dock.

There is the First Aid scam. We are all in favour of first aid, rather like motherhood and apple pie. So sales people call into businesses (it happened to me) where they will deal with a low-level employee who will of course agree to have the first aid box topped up. When the invoice arrives a few weeks later the owner finds that paracetemol tablets ( 2p each in Tesco) have been invoiced at 25p, and so on.

There are many advertising scams. The phone rings and the caller claims to be from the police, or the fire brigade, or the ambulance service, or whomever. They are producing a diary or a yearbook, or such like. The sales talk suggests that you will be supporting the public service, so the unwary will buy an advertisement for several hundred pounds. The publication, when it appears, will be cheaply printed and given to the police station or the fire station, where it will be binned.

After I had been caught a couple of times I took to asking for the address of the so-called sponsoring organisation so that I could send them a cheque. Not one ever responded.

I find dodgy charities especially disgusting, because they prey on the goodwill of nice people. Some swine came into my local pub with a teddy bear, and a book of raffle tickets. The naive landlord (okay, hold the oxymoron jokes) fell for it and decent people paid, in all, £100 for tickets to win a teddy bear worth at most £4 wholesale. The perpetrators are sellers of stuffed toys and no more. Charity law is lax, and so long as five or ten pounds gets to some sort of charity the scammers are bomb-proof. Look into the charity, and you may find that the secretary is the scammer's daughter-in-law on a salary of fifty grand a year.

I see all sorts of criminals, but I rarely feel disgust for them as people, however strongly I feel about their actions. I do especially despise those who abuse the trust of decent people to line their pockets.

Barefaced Cheek

I was deeply shocked to read this story. Does this solicitor, an officer of the Supreme Court, not realise that the gluteus maximus is for sitting on, and certainly not to be used to express opinions?

I have heard a few lawyers talking through their arse in my time, but none has so far felt it necessary to drop their trousers while doing so.

Aspidistra

The great William Connor, who wrote a column for the Daily Mirror under the name of 'Cassandra' once referred to an issue that led him to yearn for "A handkerchief, an aspidistra, and the old heave-ho".

That's pretty much how I felt when I looked at The Sun's piece about Prince Harry today.

The paper hounded the Princes' mother, and continues to hound them. The other day a picture appeared showing Prince Harry - shock horror - with his hand cupping the breast of a nubile young woman. It turned out that the photo was three years old, which blew holes in the paper's sniggering about the reaction of Harry's current girlfriend.

If you have time, and if you have a bucket handy, read the Sun's piece, combining grovelling yet prurient speculation with an apology that was written for, and probably by, lawyers.

Yuk.

Isn't This A Bit OTT?

Firemen involved in a schoolboy prank have now been visited with the full weight of a disciplinary hearing pending which they have been suspended.

For heaven's sake, what's all the fuss about?

There's nothing here that could not have been sorted out with a grade-A bollocking from the boss. Why has everybody become so pompous all of a sudden?

Encouraging News From Heathrow

A colleague has emailed me to say that there are reports of 10,000 passengers' suitcases going missing this week. Heathrow police are reportedly delighted at this halving of the normal crime rate.

Here We Go Again (1)

It comes to something when the initial opposition to the latest bright idea to take boring old courts out of the loop and apply 'justice' on the street through the good offices of uniformed PCs has to come from the Police Federation.

We spend a fortune at Bramshill and elsewhere educating senior coppers. Is there not a smidgeon of history in the course?

Hello! Officer! Got a second?

Right.

Police = catch criminals.

Courts = decide what to do with them.

Is that all okay?

It's Nice To Know That Court Deters Crime

I am grateful to Peter Smith for forwarding this from The Guardian.

It's not unlike what happened here.

So much for deterrence.

Getting Their Hands Dirty

Silvafox wrote this interesting comment on the robbery guideline thread. I think that it deserves greater prominence that it will get in the comments. Trying to do something with a desperately damaged child is unglamorous and often frustrating, and I have a great deal of respect for the professionals who work in this field. It is easy to write young offenders off as incurable thugs (as some may well be). It is easy to sneer at the efforts of 'do-gooders' (by the way, what an indictment of our society, for that to be an insult!). Actually doing something about it rather than criticising from the sidelines is special, and practitioners have my respect

I just wish those people above who are so quick to dismiss young offenders would spend a week in the life of an ISSP advocate (ie the adult mentor who has 3 months to get into the kids head and start to turn him around. It is immensely (difficult) yet rewarding work.

ISSP is a last chance : it falls on those 15-16-17 year olds in the worst circumstances, maybe with drug addictions, maybe brutalised by the environment of supposed care homes.

I represent kids a lot. If the offence is so grave that there is no option then they go to prison. Public policy (correctly) demands it and magistrates impose it.

But if you read the reports and materials that I (and the magistrates) get about these kids and you still felt that they were unworthy of an opportunity to turn themselves around then it would reflect extremely badly on you.

Yes, they do sport on the program. The children that this program deals with are marginalised. Most will have drug or drink problems, virtually all will be out of mainstream school and struggling along in the farcical 'alternative' education system that we have for the bad kids (ie twice a week at the day centre). A majority are not only unqualified but illiterate.

They gravitate towards their own kind, and get to the point where they cannot socialise outside of that circle. They have time on their hands but no resources, hence crime.

In short they become part of a sub-intellectual ghetto of 15 year olds, failed by both their family and society.

And you don't think they are worth a bit of professionals' time and effort to encourage them to interact into society? If you read the reports you would think we owed it to them.

Or perhaps its better (as happened to those I represented a year before ISSPs were introduced) that 3 of them kill themselves with heroin overdoses following release from prison.

3 less on benefit : I think some of you would be chuffed.

To be fair to its writer, that last comment, sounding rather bitter, is a response to some of the earlier comments on the thread.

And Now For Something Completely Different

I am grateful to the Policeman's Blog for this wonderful link to a police blog that is a total contrast to the UK-based police blogs that we are used to.

Little Victories

The immortal Norman Stanley Fletcher in 'Porridge' advised Godber, his cellmate, to cope with being inside by aiming for little victories. In this way he could retain self-respect without causing the kind of trouble that might invite retribution, either from the authorities of from fellow cons.

On the Bench we face a constant struggle to get cases moving and to resist delay unless it is completely unavoidable. The old culture of relaxed three week adjournments (in which we always suspected that nothing was done until the day before the hearing) still lingers in the minds of many defence and prosecution lawyers, but we must now, in the word of the moment, be 'robust' in our enquiries, and to insist that matters progress.

I am still preening myself over a case in the Spring when the defence asked for two weeks to view a CCTV tape, and I sent him and his client across to the police station to view it. What they saw prompted a guilty plea, and we were able to sentence that afternoon.

Last week a lawyer asked for two weeks to make representations to the CPS in what looked like a tentative offer of a plea bargain. The CPS lawyer in court pointed out that the two charges faced by the client were quite different, albeit arising from one incident, and had already been reviewed by a senior prosecutor, so no deal. At this point the clerk read the parties the Riot Act about blatant plea bargaining in open court (of course it happens, but we aren't supposed to admit it). We refused the adjournment and insisted that pleas were entered. A whispered conversation between lawyer and client resulted in two guilty pleas. Neither offence was particularly serious, but one of them carried enough penalty points to push the offender over the magic twelve points on his already 9-point licence, so we disqualified him from driving for six months on top of his fines.

A small victory, but justice was done quickly and public money was saved. I'll settle for that.

All Change For Legal Aid

The Criminal Solicitor has a piece about the forthcoming changes to Legal Aid. The first of a series of reforms will see the means test reintroduced this Autumn. This test was abolished a few years ago because it cost more to collect than it yielded, and slowed up the progress of cases. I don't know what is supposed to be different this time round, but I have a nasty feeling that we shall once again get bogged down in the practical difficulties of getting reliable information about their means from the high proportion of our customers who have disorganised lifestyles and who live hand to mouth from one Giro to the next. How we are supposed to reconcile this with the need to get cases moving as soon as possible remains to be seen.

The Carter reforms to Legal Aid will have the effect of forcing smaller law firms to merge or to give up crimnal work altogether, as the Government intends to drive down costs by awarding blocks of work to large firms that can offer economies of scale. Our town, like most, has a couple of dominant firms on the High Street. The word is that the kind of rates that are likely to be paid in future may cause the partners in highly profitable corporate departments to consider withdrawing their firm from criminal work altogether.

Sensible Advice

If you are driving along while using your mobile phone, and if a policeman (who is passing by in his car) calls to you to stop using the phone, do not, repeat not, shout back to the officer telling him to fuck off. When he advises you to moderate your language, avoid repeating the original response, and telling him that he is a useless wanker.

The above advice becomes even more important when you consider that there is a stash of cannabis in your pocket.

Ignore the above, and you may expect a fine for the phone, a fine for the bad language, and a fine for the cannabis.

There is no specific offence of being stupid, but if there were, we would see it committed every day.

Liquid Larceny

There is a lucrative conspiracy against the public that goes about its work every day, and yet results in almost no prosecutions.

The more observant among you will be aware that I like to take the occasional pint or two of beer in the pub with my friends. I can confidently assert that almost every pint of draught beer sold is short measure, by between five and ten percent, and that this is deliberate policy to increase profits. (Before anyone from the Midlands and North jumps in, I am talking about London and the South here - the rest of the country has the nous to insist on paying for a pint and getting a pint).

In my time on the Bench I have only ever seen one prosecution of a landlord and that was for watering his beer. He added 12% water to premium lager, which at today's prices represents a theft of nearly 40p every time that he sells a pint.

The Government, by comparing the tax take from beer delivered to pubs with the tax take from beer sold by pubs estimates that the total fraud amounts to more than £150 million per year. I have seen a new barmaid being trained by her manager. "Always put a nice head on the beer" he said, "That way we don't get any bad stocks".

Worse, if you ask for the beer to be topped up, as almost nobody does, you face the near-certainty of a snide remark and a grudging top-up. Other little fiddles involve charging 25p to add lime or lemonade to lager while allowing nothing for the lager that is displaced, and charging the same for a pint of shandy as for a pint of beer, when lemonade from a dispensing unit only costs a few pence per pint.

Go into Tescos and buy a pound (all right, 454 grams then) of sausages, and you will get a pound. If they are short weight Tesco stand to be prosecuted, and indeed will be. Time after time MPs have tried to pass a law insisting that beer is honestly dispensed, and time after time the Government has weaselled out of doing anything.

I wonder why?

Notes From The Bench

I did a day of odds-and-ends this week, since the trial on which I was scheduled to sit turned into a guilty plea at the last minute, leaving us free to help other courts. We saw a small builder who had been a bit over-enthusiastic in loading his van; its plated weight is 3.5 tons, and he had overloaded it by a further ton-and-a-half. He finished up with fines and costs plus points on his licence. He had also been banned from proceeding at the roadside until the excess was offloaded and had all the bother of getting someone to make a 200-mile round trip to pick it up. Another fellow turned up so drunk that his lawyer could get no sense out of him, so we were obliged to put the case off. I gave the lawyer a stern warning, to be passed on to his client when he is next sober, that if the only way we could get him into court in a fit state to be dealt with was by way of a remand in custody, that's what we would do. We saw a man who had been disturbed in the act of trying to steal something, and who took off like a hare. Unluckily for him the police had a dog with them, and it tracked him to the garden in which he was hiding. Unwisely, he kicked the dog, at which it sank its teeth into his leg and held on until the handler arrived. We granted a number of warrants to Immigration to search for Zimbabwean nationals whose protection from deportation was removed by a higher court this week, and for some more of the convicted criminals who should have been deported but were not, a fact that cost Charles Clarke his job. We authorised police to hold on to various sums of money seized from suspects under the Proceeds of Crime Act, which we usually do for three months in the first instance. Someone referred to a case involving counterfeit Viagra, and, the court being empty of members of the public, I asked the clerk if the defendant faced a stiff sentence, at which the lady prosecutor suffered a momentary loss of composure.
We finished the day with a couple of Pre-Sentence Reports cases, both of which were messy to deal with. One had a drug problem, one was an alcoholic with mental health issues, and in neither case could we sentence in the way we would have liked. Off to the pub at 5.30.

By The Way

We didn't get a gong at the New Statesman New Media Awards the other day, but we did have a nice evening out at the Serpentine Gallery, with champagne and excellent canapes provided by the magazine. David Miliband gave out the prizes and Peter Tatchell made a bit of a speech along with Geoffrey Robinson, the very rich owner of the mag. I was tempted to tell Peter Tatchell that he looked different without handcuffs on, but I decided that he might take it the wrong way.

Custody Minus

The Telegraph
confirms what I have been saying for some time, that the sentencing reforms that were a key feature of the 2003 Criminal Justice Act are dead in the water. It is typical of the Government's approach to introduce radical reforms without thinking through the resource implications. The Probation Service is struggling to cope with its present workload, and insiders say that it will be some years before NOMS (the combined prison and probation services) has any chance to settle down. The thousands of offenders requiring programmes under Custody Plus would have been the last straw. In addition, although nobody is admitting it, there is a strong suspicion that the community element of the sentences would have been widely breached in between a quarter and a half of cases, resulting in an insupportable surge in the prison population.

There is no certainly that Custody Plus will be resurrected soon, or indeed ever. That leaves the question of magistrates' sentencing powers. There is real benefit to be had from allowing us to do more of the low-to-medium level work that is dealt with by the Crown Court. A surprisingly large proportion of cases that we send up receive sentences of less than the 12 months that magistrates were to have been allowed to impose. I have a feeling that this one will be quietly allowed to simmer on the back burner until a time when the politicians and civil servants involved in this fiasco have moved on.

Reality Catches Up With Fiction - Again

I recently posted this.

It didn't take long for Ken Livingstone to come up with the idea of putting number plates on bicycles did it? People next?

Hooky Screws

I am not in the least bit surprised to read of suspicions that many prison staff, including officers and non-uniformed staff, corruptly take drugs and other contraband into their establishments. Quite apart from the chance of a profit, many officers see drugs as a way of keeping inmates in a compliant drug-soaked haze.

It is a truism that drugs are prison currency, to the extent that newly incarcerated prisoners have the option of asking to go on a drug-free wing in many establishments. Anyone who has visited a prison, as all magistrates must, can see that the opportunity to smuggle in any real quantity of contraband is small. I have taken part in a drug dog demonstration at one establishment where Fido picked out the magistrate who was carrying in about half a minute. (The stuff had been planted by agreement, of course).

The real problem, that we have all been aware of for years, is that the authorities have been terrified of upsetting the Prison Officers'Association, one of the last of the old-style unreconstructed militant unions. I don't know how things are at the moment, but a few years ago at Wormwood Scrubs a number of officers were investigated following allegations of violence against inmates, and it was a close call whether the others all walked off the job in protest.

If the will existed all closed prisons could be virtually drug-free. That they are not is a failure of political and managerial nerve.

The popularity of cocaine and heroin is partly due to the fact that they clear the body relatively quickly, while cannabis traces remain for many days or weeks. With urine tests held at the same time each week, it is safer to use the hard stuff and just lay off for a day or two before test day. There are also suspicions that the tests are not all that random, as some 'clean' prisoners are tested time and again to make the prison's figures look good.