Bail Again - Sorry!

Head Of Legal has posted one of the most cogent comments I have yet seen on the still-live issue of bail, bringing a welcome shaft of light to a debate that has hitherto generated mostly heat. It is here.

Worrying

This report in The Times will come as no surprise to many magistrates. It is an open secret that the administration of community sentences is, at best, patchy. I have a lot of sympathy for Probation staff; they have been buggered about for a decade or more, with their philosophy going through a 180-degree turn from 'advise, assist, befriend' to becoming a part of the punitive system. Kept perennially short of resources, reorganised time after time, it is a miracle that the organisation functions at all. The chaos is exemplified by the fact that I have a National Offender Management Service giveaway pen that has lasted longer than NOMS itself did.
One of the things that arouses my suspicions about the operation of community punishments is the fact that despite many requests I have been unable to arrange a visit to a project for fifteen years. Other magistrates tell the same tale.
A workable system of punishment in the community is essential to the adminstration of justice (I can visualise certain police officers wincing when they read this). The Probation Service needs our support. They also need the Government's support, and the best way to give that will be to fund them properly and then leave them alone to get on with the job.

Waste of Time

Went in at short notice today to chair a trial. Defendant didn't appear, so we proceeded in absence and found against him. We couldn't help any other court, as the proceedings were not CPS ones and we had no Crown prosecutor. Went to Tesco's on the way home and in the pub for a swift half by one o'clock.
Any JP will recognise the scenario.

How Not To Do It

It's easy for those of us who have many years of experience on the bench to look back nostalgically to the golden age when we were the new boys and girls. The courts were run by their magistrates court's committee, the police presented their own cases, and at breaktime our ushers would bring us our coffee and - yes - biscuits on a tray. Our Clerk to the Justices was master in his own kingdom and everyone knew who was in charge. We were trained by our own clerk in our own courthouse, and we operated local guidelines for local offences. Training was fairly perfunctory, and we did most of our learning on the job. In some shire towns and cities the Mayor was ex-officio Chairman of the Bench - heaven knows how that used to work.
There was no formal appraisal, and no system of training and approving court chairmen. Simple seniority determined who was to take the chair on the day, and once someone reached the heights of chairing Court One - the remand court - they were unlikely to chair any other; in fact some refused to do so, deeming it beneath them.

By far my worst ever case was heard when I had been sitting for about nine months. I can write about it now, partly because twenty years have passed and partly because my two colleagues have moved on to the great appeal court in the sky.
A man of 24 had pleaded not guity to drink driving. The facts were appalling. A young man of the same age as the defendant,and known to him, had been working on his car in the street. A car allegedly driven by the defendant collided with him, throwing him into the air and causing massive injuries from which he died some weeks later. The driver failed to stop and drove off, despite a blown tyre. He was traced to a friend's house a couple of hours later, where he claimed to have drunk a quantity of vodka. The case was going to be complicated, because an expert would be called on each side to deal with the post-accident consumption and the back-count of the alcohol reading.
We were astonished to learn that the CPS prosecutor had been booked for just half a day, and was due at Crown Court after lunch. So we went part-heard and reassembled ten days later. The CPS sent a different prosecutor, who had never even seen the file, so we re-adjourned. We didn't finish the case on Day 3, so we went part-heard yet again. On Day 4 we finally retired to consider our verdict, although it was late afternoon - we were determined to finish it. We were out for three hours, during which I became so frustrated that I decided to remain silent while pacing up and down the carpet, to give my colleagues a chance to get their thoughts together. They did not. The chairman made no attempt to lead or focus the discussion and my other colleague was pathetically indecisive. To be fair to the chairman, it turned out that she was suffering from a terminal illness, and she died a few weeks later. Our verdict was illogical (guilty on one charge, not on the other) and our sentence was a dog's breakfast of a partly-suspended prison sentence. It was later (rightly) overturned on appeal.
Everything went wrong. Weak chairmanship. Poor decision-making outside. Dreadful CPS case management. An insufficiently assertive clerk. Oh yes, and police evidence that had clearly been given a bit of a nudge in the 'right' direction, nearly blowing the whole thing out of the water (our man did not deny being the driver).

Could it happen again today? No, I don't believe it could. Chairmen are properly trained, and appraised every three years. Wingers too are trained and appraised regularly. Clerks are much better trained. The defendant was under-charged; today he would be before the Crown Court for causing death by careless while over the alcohol limit. On conviction he would face some years in prison. We woefully under-sentenced.
The result was unjust, made worse by the fact that the deceased man's family were in the gallery for much of the time. God knows what they made of it, poor sods.

Further and Better Particulars

Thanks to regular contributor Peter Hargreaves for pointing us to this article by the estimable Joshua Rozenberg, that neatly summarises the position underlying the currrent brouhaha over bail.

Shock Revelations

The Office for National Statistics has reported that well-off people drink more alcohol than poor ones, and that men drink more than women.

A future project will investigate whether the comfortable middle classes are more likely to drive Mercedes-Benz cars and to live in large houses than the poorer members of society.

A spokesman for His Holiness the Pope has confirmed that the Pontiff remains committed to the Roman Catholic Church.

The US National Parks Service reports that its Rangers continue to find faeces deposited by Ursus arctos horribilis in its forests.

From The Times

Tragedies ‘warping government policy’

Government policy is often badly formed because it is drawn up in response to tragedies and problems, the Government’s new head of risk management has said.

Rick Haythornthwaite, head of the Risk and Regulation Advisory Council, said that policy was often affected by pressure from an aggressive media and a confrontational Parliament. “We have got to deal with some of the systemic flaws in policy-making within Whitehall,” he said.

He told The Politics Show on BBC One that calls to protect the public sapped self-reliance, resilience and the spirit of adventure. Some risk could be a very good thing, he said

Quite.

I Wonder How This Will Go Down In The Canteen

This Times Columnist has an interesting take on current problems with public order. See Article

Hard Cases Make Bad Law (no. 86)

The Sun issues another of its clarion calls for 'Justice' today.
Blessed as they are by the luxury of not having to make any decisions, but having freedom to criticise those taken by others, they seem to be calling for the abolition, or perhaps limiting, of the right to bail laid down in the Bail Act.
Perhaps some future leader column will address the consequences of doing that - don't hold your breath though.

Later:a few facts from the JCO.

Later Still:
The Bail Guidelines are on Section 1 Page 21 of the Bench Book

There But For The Grace of God......

This horrible story is a reminder of the awesome responsibility involved in granting or refusing bail. The Bail Act prescribes the right to bail, unless there are fears of the defendant absconding, committing further offences, or interfering with witnesses. In this case the Judge (and it could have been a magistrate or magistrates) dealt with the fear of failure to surrender by imposing a whopping surety of £200,000. Now two more people are dead, the judge and prosecutors having had no way of looking into the mind of the man involved.
There is no reason to criticise the judge or magistrate involved in a case like this. Locking up an unconvicted person should only be done for very good reason. As it turned out, this one went wrong in a way that may not have been forseeable.
Many magistrates will be faced with difficult bail decisions tomorrow. They will follow the law, but they will also need just a bit of luck to get it right.

Later:- here is a blinding flash of the obvious. The early panic reaction of MoJ people who saw the headlines proves that many of them do not have a clue what an independent judiciary is there for, and think that the correct response to a story such as this one is to drop heavy hints about leaning on the judge.

Now Let's Be Really Frank

First the disclaimer:- I have never used illegal drugs (nor have I smoked a single cigarette)and I enforce laws made by Parliament, even when they make me feel personally uncomfortable.
And yet......
I was told recently that one of the questions asked of aspiring magistrates in a particular area revolved around how they would deal with finding that one of their children was using soft (class C) drugs. I was genuinely shocked to hear that in that place and at that time those who did not say that they would involve the police were crossed off the list.
If that had been the case twenty-odd years ago you would not be reading this now. I don't want to get all pompous about this, but my children (both of whom are now mature and successful adults) would never have been shopped to the great flat feet of the legal system by their father, because drugs would have been a problem that I, as a father should have dealt with. The law had no part to play and nothing to add. Mercifully, in my case, the problem did not arise.
Would you, as a citizen, or as a JP (and I know that a lot of colleagues read this blog) report your own child to the police for a Class C drug offence?
There's a poll on the sidebar. (Later - I have taken down the poll. It attracted over 550 replies and the overwhelming majority of people opted to deral with the matter within the family - as would I),

Another One Bites The Dust

It is reported that Gordon Brown has dumped the absurd "Respect" agenda, just another of the initiatives that emanated from the No. 10 sofa in the Blair years.
Let's not mince words - the idea was bollocks when Blair thought it up and it was bollocks when talented and hard-working civil servants tried to make some sense of it. Good riddance.
This is the Respect website. How much good do you think it has done? I hope someone makes a Freedom of Information request to find out what this nonsense has cost.

Now There's a Surprise

It emerged yesterday that a £244million project to monitor dangerous criminals has collapsed in yet another Whitehall IT disaster.

The "C-Nomis" computer system was supposed to share information between prison and probation staff to allow newly-freed convicts to be properly supervised.

Work on the project was frozen last summer after costs more than doubled to £155million.

It will now be introduced in a watered-down format in prisons only, the Government said yesterday.

When I go to court later this week and contemplate the peeling paint, the often-unserviceable heating system, the cutback in the number of ushers, the merging of our operations with other courts miles away, and the clampdown on legal aid, I may just wonder how useful £155 million quid might have been. Those responsible for this fiasco will suffer no penalty. The penalties will be paid by low-level court staff and the everyday court user.

What's Going on at the Telegraph?

The Telegraph is a serious newspaper, but I spotted this stuff that looks as if the management allowed a work-experience schoolkid to play on the computers, and printed the article by mistake. I have edited it a bit, and my comments are in brackets:-

Drivers who kill could escape being sent to jail under new sentencing guidelines for the courts.
The new proposals are set to put judges on a collision course with prosecutors (Judges sentence, prosecutors prosecute, so where's the collision?) because they appear to end a crackdown on dangerous driving, announced last month. (there was no crackdown). Under the plans, people whose driving is considered "careless" rather than "dangerous" should be spared prison and given a "community" penalty instead. (Why put "Community" in quotes? - it's a long-established type of sentence).
The new rules - to be published by the Sentencing Guidelines Council - appear to undermine the determination of the Crown Prosecution Service to punish rogue drivers. (the CPS doesn't punish anyone -it's not their job). Last month the CPS published guidelines recommending that motorists caught using a hand-held mobile phone while driving could be jailed for two years. (Wrong. They reiterated the existing law in (nb) advice to their own staff. They have no business advisingthe courts).
However under the new changes, to be set out in a consultation document, drivers who cause fatal accidents while using a mobile phone could escape prison if they were "avoidably distracted". (These are not changes. They are new guidance on new legislation)
Only those found by the courts to have been "dangerously distracted" by a mobile phone, an iPod or another electronic device, will be routinely jailed,(really?) it was reported last night. The Sentencing Guidelines Council is headed by Lord Phillips, the Lord Chief Justice, and lays down rules (not rules - guidelines. The Council's title is a giveaway) on sentencing for judges and magistrates.
Others who will (might) not be imprisoned for killing by careless driving will be those found to have been "undertaking" on the inside, tailgating, running red lights by mistake, or pulling out of side turnings into other vehicles. (It all depends on the circumstances - that's what the courts are there for).
Factors that count as careless will also include driving while distracted by tuning the radio or lighting a cigarette. (so no change there).
The council's guidelines are being set down to help the courts deal with new road traffic laws brought in during 2006 in response to repeated complaints (mostly from The Sun) that those who kill while driving were being dealt with too leniently.
The laws will replace the old crime of causing death by careless driving with a new offence of causing death by careless or inconsiderate driving. (There was no 'old law' - this is new).
Last night the Ministry of Justice declined to comment. A spokesman for the CPS said that any proposals were only "draft". The CPS would be invited to take part in the consultation.
Last night a spokesman for the road safety group Brake said: "Someone who kills through careless driving should go to jail unless there are extremely persuasive mitigating circumstances." (such as a genuine human misjudgement?)

Bah!

Back to Work

Tomorrow the Christmas and New Year break finally comes to an end. Magistrates' Courts worked on every day that was not a public holiday, but in most cases lists will have been light, and offices thinly staffed. Now it's back to business.
About one bench in three will have a new Chairman (the office is nowadays limited to three years' tenure) and many Deputies and committee chairmen will have changed too. The Bench Chairman's job has become much more onerous in recent years, partly because of extra responsibilities that have been added by statute, and partly because of the need to stay abreast of the bewildering mass of reforms, changes and consultations flooding out of Whitehall. Any Bench Chairman who is in full-time employment will need to rely heavily on his deputies to get everything covered.
Those taking up their posts for the first time have the benefit of a three-day residential course at Madingley, run by the Judicial Studies Board. What they will not have, is the one-to-one contact with their Justices' Clerk that used to be seen as fundamental to the running of their bench. Under the new arrangement of London's courts, each Clerk to the Justices will have something like 1000 magistrates under his or her wing, as well as ten or so Bench Chairmen to look after - it just can't be done.
Despite the move towards administrative 'justice' tomorrow will see the usual stream of miscreants appearing before magistrates, and every one will be a bit different from every other one. That's the fascination of it - there are few things more variable than human character and behaviour - or in this case misbehaviour.

Crawl and Unusual Punishment

The Lady of a Certain Age who was found drifting along a motorway at ten miles per hour has been dealt with by magistrates. In my view their sentence was sensible and compassionate, as well as being in the interests of the public's safety.
She was given a three months' Conditional Discharge (pretty close to as low as you can go) and a very short disqualification, as well as a requirement to take a new test before driving again. If the reports are correct, that is probably the end of her driving career.
That's how it should be done, with the bench considering all of the facts and tailoring the sentence to the individual and to the public interest. We shall see less and less of this in future, as the onward march of the fixed penalty and the Police/CPS axis sees more and more rubber-stamp justice-lite carried out behind closed doors.

Depressingly Predictable

Richard Brunstrom, the Chief Constable of North Wales (aka the Mad Mullah of the Traffic Taleban) has come in for the usual intemperate attack from the Mail (and other papers) over a remark he made about drugs. I make no comment as to his views, but what is most depressing about this is the entire lack of any reasoned debate. Whenever the drugs issue comes up, the tabloids and some of the rent-a-quote politicians who pander to them go into a knee-jerk rant mode.

I don't know the answer to the drugs problem, but I do know some of the questions. We have now reached the position where there is no chance of any rational approach to our fellow citizens' increasing appetite for chemical stimulation or relaxation. Our politicians long ago gave up leadership, in favour of a marketing-led approach dependent on focus groups and polls. That is what gives yobbish tabloid journalists their power over elected politicians who are terrified of upsetting anyone.

The 'War on Drugs' has become like the later stages of the Vietnam war: it's unwinnable, but nobody has the guts to admit it; there is disaffection in the ranks and dissent among the population.

It may be late-era Vietnam now, but if we carry on like this it will evolve into the early part of a new Hundred Years' War.