Another Not-So-Bright Idea

In its desperation to do something about the prison overcrowding crisis without admitting its own policies to be the root cause of it, the Government has just carried out a consultation on the creation of a Sentencing Commission, which borrows the idea of a 'sentencing grid' from a couple of American states, this grid being a device to allow the authorities to balance the length and number of prison sentences against available capacity. The Judges' Council and the Magistrates' Association, both sober and responsible bodies, have given this their consideration and have separately come out with overwhelming, devastating and reasoned dismissals of the idea. If you read between the lines of the responses you can almost feel the exasperation of learned thoughtful and reasonable practitioners at being presented with such an ill-thought-out mess.
Here are the responses (Borrowed from the excellent Criminal Solicitor dot net)

A summary of the response submitted by Her Majesty's Circuit Judges is set out below:

1. The Sentencing Process is but one of a number of factors that contribute to the prison population.
2. The proper exercise of a judicial discretion is not a cause of prison overcrowding.
3. The preservation of judicial independence is fundamental to an independent judicial system.
4. We are opposed to the creation of a Sentencing Commission. We do not believe it to be feasible and any perceived advantages are outweighed by major disadvantages.
5. There is a process for the promulgation of sentencing Guidelines which works and results in a consistency of approach. Consistency of approach not uniformity in outcome is the proper aim.
6. There are numerous statistics already available that can be used to achieve an acceptable level of predictability in relation to the sentencing process in the Crown Courts
7. Devising a framework to impose on a system that is not codified and where there are many anomalies and interests to take into account is almost impossible.
8. Even if a framework of some sort could be devised and imposed it would be a blunt instrument resulting in unfairness and injustice.
9. If the Government were to adopt a proposal for the creation of a Sentencing Commission this would be seen by this Council as a thinly disguised attempt by the State, which is responsible for the institution of criminal proceedings, to ensure that the State achieves the result it desires avoiding the inconvenient intervention of justice.
10. The American dream would result in a nightmare in England and Wales.

The response from the Magistrates Association sets out the following points:

o The ideas contained within this consultation paper, in so far as they affect the rights of the judiciary to determine a suitable sentence, taking account of both the offence committed and the offender, are unacceptable to the Magistratesâ?T Association
o The opportunity for a wide debate on Lord Carter's recommendation to consider the options for improving the balance between the supply of and demand for prison places is welcomed
o A system that collects data on which decisions can be made in an objective manner must be of benefit
o We recognise there needs to be an understanding by the administration of supply and demand for prison places and that advance planning and budgeting is good, but as we are dealing with human behaviour this cannot be predicted with accuracy whilst maintaining the flexible approach to sentencing
o Magistrates consider that they currently operate an appropriate structured sentencing framework and that this framework will be even more effective once the new guidelines are issued. There is scant recognition of this in the paper.
o Sentencing is a discrete art that requires the careful application of judicial discretion and common sense in every case to address the seriousness of the particular offence and the circumstances of the individual offender. Restriction of sentencing discretion would be a retrograde step.
o People are individuals. We would regret any changes which moved us towards a formulaic or mechanistic approach to sentencing
o Offences cannot have a standardised seriousness rating. The context of the offence changes the seriousness.
o Consistency of approach to sentencing is needed, not uniformity of sentence.
o The current guidelines already promote consistency in approach to sentencing because the judiciary must have regard to them or give reasons otherwise.
o The judicial system in England and Wales incorporates the principles of rehabilitation and prevention of re-offending. How are these elements to be addressed in any new sentencing framework?
o There is concern that the relationship between a Sentencing Commission and Government could lead to political and financial interference into the independence of sentencers and that appropriate sentencing could be jeopardised.
o Much could be achieved without the introduction of prescriptive sentencing processes similar to those in operation in some US states. If the system is so effective why has it not been introduced more widely?
o The Working Group itself does not consider the wholesale adoption of the system appropriate for England and Wales
o It is not necessary to dismantle the existing structures to achieve more accurate information required for strategic planning. This could be achieved by managing existing data more effectively to generate the appropriate information required for decision making
o Parliament has been extremely poor in not predicting the impact of its own legislation or acting on any predictions of prison population it has made, and improvement is highly desirable.

Here is The Times' report.

High Priority

Police have hastened to interview a suspected criminal, as reported
here.
Not many lessons learned from this then.

DNA

There has been plenty of controversy over the Police practice of taking DNA samples from everyone who is arrested, whether or not that arrest results in a charge. I too feel a bit uncomfortable about it, and certainly few other countries go anywhere near as far as we do in the UK.
However, it is a fact that many crimes have been solved by DNA technology, and I saw one last year, when a man was charged with violent rape of a stranger. After the incident, several years ago, he got clean away. Until, that is, he was picked up for a trivial theft, the computers cross-matched the samples, and that was that.
Does that justify the backdoor building of a population-wide DNA database? It's not an easy one to answer.

Back to Bedlam

The Super Soaraway 'Sun' is in the second day of a hate-fuelled rant about Broadmoor Hospital. That's right, hospital.
By no means all of the patients are sent there following a criminal conviction, in fact quite a high proportion of them are admitted after referral from the mainstream NHS.
That is a fact that the newspaper conveniently fails to mention, and it certainly doesn't prevent them from referring to 'beasts', 'monsters' and the usual rubbish. There's a sample here.

Costly Challenge

A physicist who tried to show a Gatso camera was inaccurate, to get his wife off a £60 speeding fine, must pay £15,000 in costs after being proved wrong. Iain Fielden, 41, of Sheffield Hallam University, had already spent £5,000 on his evidence, rejected by Huddersfield magistrates and then Bradford Crown Court.

The Times

But That Was In Another Country.......*

My comment on the Naomi Campbell thread to the effect that she has no previous convictions in the UK has stirred up a bit of comment, here and elsewhere. We all know that she has had frequent brushes with the law, including a community-service sentence in the US. Nevertheless, for the purpose of last week's case, she was treated as being of good character. Some people think that the foreign conviction should have counted against her, but there are quite a few reasons why it should not. The main objections are practical; legal systems and record keeping vary greatly from country to country, and there is no reliable way of ensuring records were complete and accurate. More importantly, there are thousands of acts that are illegal in some countries, but not in the UK. A Swedish man who visits a prostitute commits an offence. A woman who drives a car in Saudi Arabia, ditto. Until half a century ago, there were many things a black could not do in the southern US, just as there were in South Africa until the fall of apartheid. Traffic laws differ greatly, even across the EU.
I remenber seeing PNC printouts in the past that carried details of convictions in, if I recall aright, Germany and Jamaica. I haven't seen one of those for a long time.
One day, long after I have retired from the bench, we shall probably see an EU-wide system of criminal records, but it will take many years to bring in, and probably won't be worth the trouble.

* "Thou hast committed--"
"Fornication-- but that was in another country;
And besides, the wench is dead."
Christopher Marlowe - The Jew of Malta

Campbell In The Soup

The press is full of reports of Naomi Campbell's spoilt-brat tantrum on a BA Boeing at Heathrow, and her appearance before Uxbridge magistrates. The bench had an unenviable task, knowing before Ms.C set foot in the court that their decision was bound to be criticised as 'special treatment'. Uxbridge handles Heathrow cases so celebrities are nothing new there. She appears to have been treated exactly like anyone else, if you discount the heaving scrum outside the courthouse, but that will never satisfy the critics. If you check the guidelines, factor in her previous good character (in the UK at least!) and her guilty pleas, you end up pretty much with what she got. There is no reason to treat celebrities any more or less harshly than anyone else, and it would be quite wrong to listen to the 'make an example of her' lobby, just as it was with Pete Doherty a few months ago.
My only reservation is that Probation will have their work cut out to prevent the imposed unpaid work from becoming a media circus as it did in New York.
200 hours at the supermodel's usual rates would probably cover the Court's annual budget - pity they couldn't arrange that.

Flashing the Cash

Many of our more regular customers know better than to carry any cash when they turn up at court, enabling them to stretch out payment of fines and costs as long as possible. Those brought in custody don't have a chance to put their money away. That's why we have now arranged for the jailers to bring up a note of how much cash the prisoner has in his property.
We were dealing with a serial shoplifter the other day, a foreign national, who had been picked up the day before she was due to fly home. The duty solicitor urged us to impose a Conditional Discharge, since she had no money, and no community sentences would be feasible. Unfortunately for his client, I had a note in front of me to say that she had over £800 in her bag, so we were able to fine her a large chunk of it. We did leave her enough for a taxi to the airport though. We like to be reasonable.

Just When We Thought The Beast Was Dead.......

When Tony Blair stood down and Gordon Brown took his place most people in the Criminal Justice system crossed their fingers and hoped that Blair's obsession with gimmicky and useless quick-fix ideas on crime would depart with him. Brown has yet to make a major speech on law and order. So far, so could-be-worse.
Now, like some long-lost creature arising from the swamps, the dreadful Louise Casey, the one-time 'Respect Agenda' supremo, has emerged, brandishing the fruits of her year's deep thinking on Crime, The Universe, and Everything. It is pure Blairite stuff (or perhaps the word is guff) and is largely presentational. Most of the few useful ideas are already happening, such as improvements in witness care.
Here's a sample of the report's profound insights, focusing on the bleeding obvious. (How did capital punishment sneak in there?)

Motherhood and apple pie may take a little longer.

Here's the summary. Real masochists can find the whole document on the Cabinet Office site.
I have a horrible feeling that Ms.Casey actually believes all this rubbish. Surely there is a vacancy for her at the Min. of Ag. and Fish, or some such. After all, cod need all the help they can get. Or perhaps she could become the Pollack Czarina.

That's Odd

This report in The Sun is in flat contradiction to this one in The Times. The two newspapers are produced in the same building, but their journalists obviously don't speak to each other much.
I do hope that the Times report is the correct one.

Later - this is the BBC's report, giving a fair bit of background.

You Selfish Bastard

I am rarely moved to true anger by a newspaper report, but this, on the Times site, stirred me as few media reports do.
A man who is prepared to kill his own children in order to inflict the maximum possible hurt on his wife or partner is beneath contempt. I do not have the comfort of believing that he will suffer hellfire or any of the fates promised by supernatural beliefs. I do know that he makes me feel a sense of shame that I am a man.

Good Call - But Sad

One of my colleagues recently bade farewell to a well-known defence lawyer, who was making his last appearance in our court. He was respected by the Bench and the staff, and was unfailingly courteous and professional.
He's off to join the CPS, and although I shall miss him, I can't blame him.
He leaves a defence-lawyer community that is under unprecedented pressure from Government policies that have created a pincer movement, one jaw of which is political and the other financial. The two and three-partner High Street firms have no future, and their partners are considering their options. Some will retire, some will merge their firms, and some will join the CPS, which offers family-friendly work conditions and, above all, a gold-plated Civil Service pension.
Tony Blair spoke frequently of 'rebalancing' the justice system. What he really meant was that he wanted to skew the rules in favour of the prosecution and away from the defence. Here's one more piece in that nasty jigsaw.

Expensive Fibs and Other Stuff

Having blogged about the Court of Appeal's stern new guidelines on knife crime, I was recently faced with a simple case of possession of a lock knife by a man of 22. Probation recommended a community penalty, and six weeks ago he might well have got one, but inside he went for six weeks; long enough to make the point but not long enough to allow him to acclimatise in prison. We then dealt with a Proceeds of Crime Act case that raised some interesting points of law and taught me a bit about drug dealing. Unfortunately the really interesting bits are too hot to blog about, at least for some time.
Not for the first time we saw a criminal prosecution (under the Fraud Act 2006) for making a false statement to obtain car insurance - in this case non-disclosure of a conviction. Because the policy was ipso facto void, the driver was also charged with having no insurance. That little lie has cost him a fine, a driving ban, a blacklisting by the insurance industry, and a conviction for fraud to add to his CV.
We had to decide on bail in a Domestic Violence case. If we grant bail it is good practice to impose conditions of non-contact, and to order geographical separation to prevent further offences, but sometimes, as here, the victim has made a withdrawal statement and wants her husband home. CPS policy will be to witness summons the victim and go ahead, but the chance of a conviction will be pretty low, so what do we do? It can't be a good idea to allow victim and offender to sleep in the same bed, but they say they have made up, and they need to make a start on rebuilding their relationship. There is no right answer to this one, and it is a matter for the judgment and experience of the bench. Hundreds of these decisions come before magistrates every week, and of course a proportion of them go wrong, but as I have often said, every bail decision is a calculated risk, within the framework of the Bail Act. That doesn't stop the press pillorying the magistrates if something nasty does happen.

It Isn't Just Me, You Know

I welcome the thousands of comments that have come in to the blog since I started, and I happily accept the occasional bit of abuse, but some people have strayed from joshing into the realm of cruelty over the Great Biscuit Problem. My few, restrained, mild comments on the fact that I and my colleagues do not get biscuits while the court up the road (where our admin is centred - aha!) gets ad lib chocolate ones, have attracted unkind and sometimes hurtful replies.
Now here is an edited piece from rollonfriday.com, the unofficial but respected site for City lawyers:-

Why law firms are like biscuits
On the face of things it looks like there is wide variety but under all the different, tasty, coatings they're all the same...
They cost a packet.
Often both are accompanied by mugs.
They are appreciated by most consumers, though occasionally someone reacts badly on finding they contain nuts.
Although it costs far less to instruct a packet of biscuits to do a legal task, the end product is usually the same.
They both pile on the pounds.
They consists of a few crumbs held together by a lot of dough.
Everyone uses them, but the interesting, enticing exterior never really hides the dry, boring interior.
It's more like a bargain box of broken biscuits: there's a few tasty gems in amongst the old crumblies.

Thanks chaps.

Truism

There's an old saying that goes:- "If drug dealing pays so well, why do most dealers live with their Mum?"

In the last week I have seen a heroin dealer with heavy gold jewellery, a Porsche, a Rolex, and twenty grand hidden away in cash. He lives with his mum in a semi.

Crime Victim

I have had one of my credit cards cloned. It was used to spend £400 on shoes (that's more than I would spend in a decade!) but was then detected by an online seller whose security was good enough to stop an order for a plasma telly. It was no more than a minor inconvenience to me, and we had new cards within a few days. Interestingly there was a single ITunes purchase, used to check the validity of the number I guess. I wonder where they got the details from though? I never let the card out of my sight. A while ago at the local Sainsburys there was a young lad who finished up in court for using a card skimmer. He was only small fry, but cards using information he had gathered were used in £600,000 worth of fraud.

Jump-Jet Heroes Destroy Horror Drugs

This piece in the Daily Mail sets new standards for ignorant and muddled reporting. Here we go:-

***This almost certainly isn't the world's biggest drugs haul. Colombia probably holds that record, cocaine being vastly more valuable per kilo than cannabis. If the Mail is right about 80 tons of coke being found, using the accepted UK street value of around £40,000 per kilo that would come to £40 million per tonne, or 3.2 billion quid. Even allowing for the dealers' more than generous markups, I reckon that lot came to more than £225 million wholesale.
***5000kg of opium worth £2,000,000? £400 per kilo doesn't sound a lot, with street heroin worth more like forty grand a kilo..
***Oh yes, and 'officials' believed that the horrid Taleban were turning dried cannabis leaves into heroin - damned clever that. The alchemists' art still lives.
***I'm also a bit doubtful about that 236 tons of hash. It's very light stuff, similar to the dried herbs in your larder. That weight would be a huge pile - did they really weigh all of it?
Do you think the smoke from all that burning dope might have drifted across to the Mail's man?

From The High Court

A judge said this yesterday, in the case of Prince Jefri of Brunei:-

The judge said: “If he is arrested he will have to come before me. It will take an advocate of great skill to persuade me that he should have bail.”

I wish I could say things like that and get away with it.

Run That By Me Again Officer.......

I recently found myself reading a transcript of a conversation between a Sergeant and a man who was under arrest, as given in evidence. It was alleged that the Sergeant was being oppressive by telling the DP (detained person or some such) that he would shortly be off to prison, a gloomy and frightening place, populated with hard and vicious inmates who would inflict unspecified horrors on said DP as soon as the gates slammed shut.
But hang on a minute: most police who blog or comment on blogs tell us that prison is a softies' dream, furnished with gleaming facilities, where prisoners are mollycoddled to such an extent that they can't bear to contemplate release.
Someone here appears to be less than candid.
Any suggestions?

Oh Dear

Don't panic says the Government. That's it, I'm off to fill up.

Do these idiots never learn? Did Corporal Jones panic in vain?

Does nobody in Whitehall realise how discredited these official warnings are?
They would do better simply to shut up.

Liberal What?

I am sorry to see that Inspector Gadget has bought into the neocon calumny of the 'liberal elite'. This imported phrase is lazy and dishonest, with overtones of a chippy Other Ranks mentality. Its use fits neatly with conspiracy theories , revealing more about the user than anything else.
Of course this country has an elite - every country does. And every country gets to see that elites are on the whole more often illiberal than the converse. Just have a look at the Blair regime from 1997 to 2007. Elite? certainly. Liberal? Don't make me laugh.
Later:-
This comment appears on the Policeman's blog, and is typical of the genre:-

My impression of most magistrates is that they are attracted to the post for the prestige of the title and position, rather than any real desire to involve themselves in the important checks and balances of justice.

No evidence: in fact, plain wrong, as well as insulting. That's sad. We need to encourage police and JPs to talk, in a general context; not to discuss legal or political issues, but to reveal to both groups that under the carapace of a uniform or behind the elevated bench there are real people trying to do their best in a system that is not always well thought-out.

New Guidelines

I have changed the Bench Book entry on the sidebar to link to the new 2008 Guidelines. Training is well under way now, and when I do mine shortly, I have been asked to take along my personal copy for reference. Which would be fine if only I had been sent one.

I fear that we are soon going to find out the hard way that all of the people who have recently been redeployed, retired, or just given the push from the Courts' Service did in fact have important jobs to do in the past, jobs that will now be done badly or not at all.

We ran out of paper towels in the loos the other day - the man who used to order them has gone, and some pen pusher miles away has to do the job. So I wiped my hands on my hanky. We are expecting towels next week, a fortnight after they ran out. An interpreter called in to cancel, and nobody booked another one - result, half a day wasted for three magistrates, three lawyers, one usher, two Witness Support volunteers, five witnesses (three civilians two police) and one defendant and his anxious family. Oh yes, and the air con has stopped working and the only man who knows how to make it work is counting the pennies in his early severance package.

It even makes the biscuit famine look trivial.

More on PCSOs

PCSOs have had a bit of a bad press recently. On the whole they are a hard working lot of people, but they suffer from the fact that their role is still far from clear, and even some sworn officers don't really know what powers PCSOs have. As we all know, they have the power to 'detain' someone for 30 minutes until a Constable, who enjoys the power of arrest, arrives. Unsurprisingly, quite a few of our local low-lifes don't like to be detained, and put up a struggle. Assaulting a PCSO in the execution of his duty is an offence, but therein lies the problem, since the PCSO's powers are so limited. They can detain if they come across an offence in progress, or if they cannot establish someone's name and address, but in other cases all that they can do is stand by, a bit like Sergeant Wilson in Dad's Army, and ask the person ever so nicely if they wouldn't mind standing there for five or ten minutes until a policeman turns up. If they would mind, that's tough. Stranger still, if someone is wanted on a warrant from court and a PCSO spots him, there is nothing the officer can do about it, so long as the offender offers his name and address before, inevitably, making off. And if the officer decides to collar Johnny Absconder because he was flagged as wanted at the morning briefing, and Johnny's mate turns up to help him, assaulting the officer in the process, then an Assault PCSO charge won't stick, because the officer was not in the execution of his duty at the time.
PCSOs' roles are already suffering mission creep, but we owe it to them to give them the training and powers they need - or we could always just pay a bit extra and hire some more PCs.
The PCSO's Blog is worth a look to get an inside view.

Sorry

For the dearth of posts. Computer is in the menders, and this spare one is S-L-O-W.

I am also in the middle of a ridiculous anount of court stuff, viz. Part-heard cases that have come back to haunt me, filling-in for colleagues with work or family problems, meetings, training, and helping train others.

Back soon.