No Surprise Here

The Times reports on the continuing decline in criminal court business and the enormous rise in so-called offences brought to justice by the simple expedient of slapping fixed penalty tickets (with a 50-50 chance of their going unpaid) on petty offenders, and calling that 'detection' of crime.

Now That's What I Call Strict

This Judge seems pretty determined not to take no for an answer.
Only in America.....

Attitudes

A surly-looking young man of about 20 is in front of us. Over six months ago a bench ordered reports on him with a view to imposing a community penalty. It took Probation two attempts to get him into their office for interview, and that only lasted half of the scheduled time as he became abusive and walked out, objecting to being asked questions about himself. He did not appear at court on the day the report was due, so an arrest warrant was issued. It took a while to pick him up, but picked up he was, and that's why he was in front of us. Unusually, the report suggested that there was little alternative to immediate custody, as no community penalty was likely to be effective. So that's what we did - four months. As I started my pronouncement the custody officers came into the courtroom, and that's when his mother and girlfriend gasped and burst into tears. As he was being led away he shouted across to me: "So I serve two months then, that right?" His solicitor waved for him to be quiet and said that she would see him downstairs, but that wasn't good enough and he yelled: "Well, what is it?". I watched in silence as he was hustled through the doorway to the cells.
This is probably the first time in his life that he has come up against a problem that he could not solve by shouting and bullying. So he will do his two months in a Young Offender Institution, will miss Christmas, and then be released. But I couldn't help wondering what the future holds for him. He is functionally illiterate and completely unqualified of course, but that's not what makes him unemployable. There is always work for a fit young man, often at decent money, but since he is constitutionally unable to accept orders he is no use to anyone. Heaven knows where he will end up, but I am not optimistic.

Fines Again

Sitting in a Fines Enforcement Court the other day we had 19 people appear before us, of whom two were working, the rest being in receipt of benefit. The politicians who are urging greater use of fines on us, and asking us to go easy on community orders and prison, ought to come and spend a morning with us one day.
As usual, there were a fair few TV Licence cases, every one a single mother, and most of them fined in their absence. When this happens the bench sets a fine based on average income, so once we had means information we reduced them to a manageable level, to be deducted from benefit at £5 per week. We cancelled outstanding fines where the defendant had served a prison sentence but had failed for one reason or another to get the fines 'lodged'. That's just the fines though - compensation remains payable after release.
One chap stunned us though. The fine was nine months overdue with nothing paid, and he had been brought in on a warrant. We went through the details, and I gave him my best glare over my specs and said: "This fine is due now. It has gone on long enough. Can you pay it today?" "Yes, Sir. I've got a card, I'll pay it now". Three judicial jaws dropped as the usher took him off to the office. Next year we will be getting card swipe machines in the courtroom. Most people, when asked if they have a card claim that it's maxed out, but we always give it a try anyway, and in nine cases out of ten it goes through all right.

Christmas Plug

David Williams, the artistically-inclined JP, has produced some Christmassy cards. More details from his website.

There May be Trouble Ahead......(reprise)

This report and this one along the same lines looks horribly plausible. Tony Blair lived in fear of lurid tabloid headlines about Law 'n Order, but Brown seems more concerned with the money. Cuts of the magnitude suggested by the leaked document (and that's all it is, of course) would require enormous changes to the justice system. The magic bullet is likely to be a complete recasting of the sentencing regime.

Red Hot POCA

Magistrates, at least on my patch, are seeing more and more applications under the Proceeds of Crime Act. Before this Act was passed, there were occasional applications to detain money that was alleged to be the proceeds of drug dealing, but nowadays anyone in posession of a large chunk of cash (and today that is as little as £1000) without a solid explanation of its provenenance, may have it seized by the police, who can then ask magistrates to detain it (usually for three months)as the proceeds of crime or as being intended for use in crime. After a period, that may be around a year or so, we will hear an application to forfeit the cash to the Crown. Many of these applications are not opposed (since they are civil in nature, Legal Aid is not available) but a few, usually involving hefty sums, may be defended. Over the years I have seen applications to detain sums from a thousand or two up to several million pounds, and a remarkable number of people have walked away from their money.
We work to the civil standard of proof (the balance of probabilities) rather than the stricter criminal standard, so we take account of all the circumstances of the seizure. If someone is busted for drug dealing and has £25000 in cash in his loft then certain conclusions seem to be in order.
It's all interesting stuff, and I remember pointing out a long time ago that the Feds never got Al Capone for racketeering, but for tax evasion. Nowadays the money laundering rules make it harder than ever for criminals to benefit from their scams - not impossible, just harder.

I have just seen this. Interesting.

Change Fatigue

For almost a decade now the courts' system has been through change after change. London, for example, went through studies and consultations in the late Nineties prior to setting up the Greater London Magistrates' Courts' Authority, then a shadow Authority ran for a year before the GLMCA proper opened for business in 2001. It was abolished in 2005, most of its plans unfulfilled, but with management disrupted and confused. The Department for Constitutional Affairs ran things until 2007, when it was renamed the Ministry of Justice and reorganised. Over this time we lost our Justices' Clerks, and our local independence. By next year London will have just two Justices Clerks, but their functions will bear no relation to the traditional ones. Shortly after Her Majesty's Courts' Service took over (under the DCA) the budget was slashed, and financial stringency came to dominate the way courts were run. Now we are being - yes, reorganised.
The latest wheeze is to 'cluster' courts in groups of about four, with sub-groups of two. All of the admin will be done in one centre and files will be ferried about by road. HMCS managers, most of whom are career civil servants rather than lawyers, refer to the 'business'. Most magistrates are reserving their judgment, to see how things work out this time round.

More Good Sense From the Lord Chief

Lord Phillips, the Lord Chief Justice, has made a speech pointing out the inevitability of the renewed prison crisis, caused by the Blair Government's constant tabloid-pleasing tweaking of the criminal law that has greatly increased the length of sentences without proper plans being made as to where these prisoners are to go.

He told politicians: "Such a debate will be of no avail, indeed it will probably not be a possibility, unless those taking part are prepared to put to one side the opportunities that this subject always provides for scoring political points and to consider, objectively, what is in the best interests of our society."

Sorry, My lord - there's no chance of that.

Whoops!

This High Court Judge appears to have let his sense of humour run away with him. Judicial humour is a minefield, and the only safe policy is 'don't' (although I have thus far got away with my feeble efforts). His Lordship's remarks would, if he were a mere magistrate, certainly qualify him for an interview with the Bench Chairman and the Clerk, who would probably, if he were a first offender, offer him certain advice.

Worth a Try?

Drink-driving offences have resulted over time in a large body of case law. The consequences of a conviction for driving over the limit can be severe, including loss of employment and vastly increased insurance premiums in the future, so it is not surprising that many motorists and their lawyers have wriggled this way and that to find a legal get-out, and it is also not surprising that the higher courts have methodically plugged loopholes as they became evident. So most drivers who fail the breath test plead guilty straight away, and are sentenced pretty much in accordance with the Bench Book guidelines.
Every now and then someone with the resources to hire specialist Counsel and expert witnesses will have a go at one or another technical defence. The last one that I saw relied on a case called Cracknell -v- Willis (1988) which said, in essence, that the reading of the evidential breath machine could be challenged by evidence that the driver had in fact drunk less than needed to justify the machine's reading. To do this there would have to be evidence from the driver and also, preferably from witnesses who could say exactly how much he had drunk. In addition expert evidence is needed to say what his likely reading would have been if he had consumed the amount that he claimed.
In this particular case several witnesses claimed that the man in the dock had sipped abstemiously at no more than a couple of pints, and the expert said that given his weight and the time lapse he would have blown about 15 on the machine, rather than the 66 that appeared on the printout. However, there was no evident fault with the machine, all of the self-checks had been satisfactory, and the printout carried the words 'no errors'.
So he had his day in court, and was duly convicted. That's when we found that he had done something similar a few years ago, so on top of a fine and his enormous lawyers' and experts' bills we disqualified him for three years.
In the post-court debrief, over a cup of tea, we discussed what we had learned. We were a bit surprised that the House of Lords had allowed this challenge to the presumption that the machine is accurate, and the Clerk showed us the full judgment in which one of Their Lordships has dissented, saying that this would create a dangerous precedent, but that he would rely on the common sense of the magistrates. I am sure that very occasionally there will be reasonable doubt that results in an acquittal, but in this case, as one of my colleagues said:- "That alcohol came from somewhere".

Excellent Example

I happened to be in Westminster the other day, and I walked past the MPs' car park entrance, guarded as usual by a mixture of armed and unarmed police. The machine-gun-toting officers stood a little way back from the gate, and there were a couple of yellow-jacketed PCs standing at the front. One of them was a London bobby out of Central Casting. About fifty-ish, burly, and of an avuncular mien, he had his arm round the shoulders of an American tourist while her companion took some photos. He used what I guessed to be a well-tried line:- "Well, Birmingham eh? We've got one of those in England. What happens in the one in Alabama?"
That's English policing at its best. We need more like it.

Tough - Like, Really Tough

If you do a Google UK search for "Tough Community Sentences" you get over 650 links returned. The phrase returns time after time in Government announcements, and it has turned up again in the detail of the Queen's Speech, in the second bullet point. Of course it is nonsense. Every time that the Government runs up against the reality of crammed prisons and its inability to build its way out of trouble in the short and medium term it says: "Ah, but this time we are going to make community sentences tough, really really tough. Honestly. So tough that they will protect the public really well. Honestly. Yes I know we have announced tougher community sentences many times in the last decade, but this time we mean it." How many people think that withdrawing the option of a suspended prison sentence for summary-only offences was driven by the needs of justice, rather than panic at over-full prisons?
How are we supposed to sentence the sixth-time Drive Disqualified, or the third-time drink driver? A Suspended Sentence Order with appropriate requirements such as unpaid work served to punish and deter. Take away the deterrence, and what do we have?
Common Assault is the usual charge in Domestic Violence cases, and that too is summary-only. One of the available community requirements is the Integrated Domestic Abuse Programme (IDAP) to address the underlying issues. First Class. But the programmes are nearly all full, and there can be a wait of many months to get an offender on to one (this applies to a number of programmes). Once the punishment is decoupled from arrest and convictions by months or years it increasingly ceases to mean anything to the offender.
So next time you hear that phrase, "tough community sentences" spare a thought for an old JP hurling abuse at the radio. Bah!

Vindictive

The unlovely 'Sun' headlines a story about Pete Doherty taking (surprise, surprise) heroin, and demands that magistrates do their duty and lock him up straight away. I did a piece about Mr. Doherty on a Five Live phone-in the other day and I had to rebut the suggestion that he is getting specially favourable treatment from the courts. He is simply a junkie, with no suggestion of dealing or importing. What makes him different is that he can afford the stuff without turning to crime, since he is a millionaire. The courts approach drug users from the direction of community orders involving drug treatment. Locking up all junkies would be simply sadistic and totally pointless, and only rehab therapy has any chance of getting them clean - and even that is of variable and sometimes disappointing efficacy.
Mr. Doherty is currently on a suspended prison sentence coupled with a drug rehab requirement and probation supervision. If he breaches those requirements or reoffends he will probably go inside, which will please the 'Sun' no end, since they will get a headline out of it. But anyone with a trace of realism or of compassion (and in this case either will lead to the same conclusion) will see that getting a high-level junkie like him off such an entrenched habit is not going to be easy and is bound to involve lapses disappointments and setbacks. In times of disaster, Winston Churchill would resolve to 'Keep Buggering On'. That's the way it has to be with this particular junkie, too.

Vanity Management

Her Majesty's Courts' Service (at least in the London region - I don't know about anywhere else) has decided to direct its energies and much of its management's time and effort to obtaining the Charter Mark. The Charter Mark is a relic of the John Major years and was born of the same desperate mindset as the Cones Hotline (remember that?). It struck me then as a tired gimmick and I have not changed my view since. Its principal function is to enhance the career progression of the managers involved and to add gloss to their CVs.
This nonsense will soak up management resources as well as many thousands of pounds of hard cash that is desperately needed elsewhere in the service. Staff are already being encouraged to hang on to any 'evidence' that some court user, somewhere, has been pleased with the service he has received. New noticeboards are appearing on which morale-boosting Charter Mark stuff will be posted, stuff that will be greeted with the weary cynicism that usually greets whizzy new ideas from HMCS.
Meanwhile, at the sharp end, many courts now have to manage without an usher. The usher is the first point of contact when defendants lawyers and witnesses arrive at court. Most of them do a superb job, dealing sensitively with people who can be stressed or just plain difficult. Dealing day by day as they do with court users they know more about real customer (customers? what are they buying?) service than all the managers put together. They are not paid very much, unlike the cohorts of consultants and clipboard-holders who will 'work' on Charter Mark applications.
I hope that I will still feel this cross when I go to the glossy reception at which taxpayers' wine and canapés are served to accompany the smug and self-congratulatory speeches and presentations when the awards are made. Unfortunately decent wine and Prue Leith's catering can have a corrupting influence. Cross your fingers for me.