Hornets' Nest Alert

Jack Straw has upset a few people. I have no idea whether or not he is right, but I would love to find out.

So Farewell Then To 2009

I am pleased to agree with HM The Queen's view that 2009 was a year with precious little good in it, when our insecure economy and the determination of those who wish us harm combined to cast a pall of gloom over Britain.
2010 will bring us at least one General Election, and may bring about a change of Government, but in these febrile times anything could happen. In my own little world of summary justice crime is bound to continue, but nobody has any real idea of the real level. If you have been burgled, your personal crime rate is 100%, whatever has happened to other people. The swingeing cuts that will be needed in public spending are bound to affect the justice system in the medium term and there is not the slightest chance of any new spending commitments, as politicians focus on the NHS and other ring-fenced priorities. Looking back to the bright hopes of 1997 many of us in the justice system feel a keen disappointment at the way in which the Blair government pandered to populist sentiment not because they thought that it might reduce crime, but rather to gain a favourable headline. The criminal justice goalposts have been nudged along, year by year, to favour the prosecution and hamper the defence. The soft underbelly of the criminal defence profession is its need to be paid by the government, so that is of course where the latest attack is focused. Gibes about fat-cats apart, many publicly-funded lawyers are struggling to make ends meet. For every glossy Temple silk who delivers a Rolls-Royce service for Rolls-Royce money there are a score of dedicated defence briefs who have seen their fees cut time after time.
But we will all carry on doing the best that we can in 2010, as we did in 2009 and in the years before it. I have had a quiet December from a court point of view, due partly to the weather and partly to family reasons. From next week, it's all up and running again. I can't wait.
Happy New Year, and thank you to everyone who takes the trouble to add comments. All are welcome, whether they come to praise or to carp.

What Would Be Enough Then?

Many years ago, I had the pleasure of seeing Colman Treacy QC in action prosecuting an attempt murder in Birmingham. All I can say is you wouldn't have wanted to come up against him.
Today - now a judge - he has weighed off the killers of Craig Hodson-Walker for 34 years apiece.
It's not enough, but it's a damn sight better than most murderers get.

The above quote, from a police blog of course, expresses the usual view that no sentence is ever long enough. It does raise the question of how long would be long enough - although in my extensive saloon-bar research most people of that mindset go on to express a preference for capital punishment anyway.
Many magistrates go out to speak to schools and community groups on a regular basis, and some of the available handouts feature sentencing exercises in which the audience are taken through the facts of a real but anonymised case and it is always a pleasant surprise when ordinary people who have heard all of the facts and considered all of the options pitch their sentence, as most do, squarely within the range that the original bench chose.
Some sections of the media have a clear agenda to mislead the public about sentencing in the hope of stirring up indignation and selling more papers, the recent Hussain case being an example. The resulting cynicism doesn't help society, in my view.

Old Bystander's Almanac 2010

Some of us have just about sorted out the Millennium nonsense, and here we are, ten years on.

So here are my insights as to what may happen next year (that's 2010, for those of you yet unborn who stumble across my apercus as part of your research for your: "WTF were the old-fart bloggers on about?" PhD's at the University of Watford Gap sometime around 2050).

2010 - early bit: A vile rumour spreads across the land to the effect that a General Election will happen before the summer solstice. Nobody gives a toss, except politicians, public servants, and journos desperate to sell papers and/or keep Rupert or Dacre happy and signing pay cheques.

Spring. Election. Popular indifference ensures response way below that expressed for Jedward. Just as well, as the buggers would otherwise be forming a government.

Desperate candidates promise to bring in any policy approved by Rupert Murdoch. No change there then.

Rt. Hon. Jack Straw MP redeployed to work of great national importance.

Rejoicing in the Inns of Court, Law Society, and judiciary.

Magistrates' Association considers response, to be announced in five months' time.

Successor to Straw co-opts tabloid editors to Sentencing Guidelines bodies, thus formalising de facto understanding going back to 1997.

Final demise of legal aid for oiks, the poor, and other types of criminal. Massive shift of legal expertise to private-payers. College of Law PLC brings in new course specialising in "what bothers the rich". It is massively oversubscribed.

Justices of the Peace are praised to the skies in a speech by the new Justice Minister (no oxymoron jokes, please) By the way, they all do that, without exception. Gloom speads across the lay Bench. Most common response (from about ten JPs) - "That's it. We're fucked". Magistrates' Association promises robust response before 2010 is out.

Incoming Government enacts law allowing anyone who is burgled to beat the crap out of anyone they think might have done it.

Speed cameras abolished. Jeremy Clarkson elected MEP.

40-odd police authorities amalgamated into 37-odd. "We had to draw the line somewhere" says MoJ spokesman. "Any more and we would have been stuck with the Welsh".

Merry Christmas.

Totally Personal

This is me, it's personal and it's nothing to do with my being a magistrate, so no comments on those lines please.

Personal. Right?

Gerry Adams has a few family problems. As a human being I sympathise, and would not wish this on anyone.

But just a minute Gerry:- What about the many hundreds of fathers brothers sisters children and friends who were blown up, shot, maimed, and mangled by the organisation that you supported and, by some accounts, headed? Your family is suffering from an alleged horrible misuse of power. What did the innocents of the IRA campaign suffer?

What about the civilians who were blown to rags by IRA bombs, or the fathers shot in front of their families, or the poor sods caught in the crossfire of your war?

Tears are for crocodiles as far as you are concerned, Gerry. Some of us have long memories.

Housekeeping Note

Haloscan comments, that I have used happily since 2005, have been taken over, and we are now using Echo. Comments will look different in future, but I hope that they will work all right.

What's In A Name?

Lawyers are in the habit of using the name of a case to identify a particular bit of law, and even at our local summary level we are all familiar with the names of Turnbull, Galbraith, and other long-forgotten people that have become embedded in our day to day business.
I have just cleared out a few old files, and one of them included the papers for an Environment Agency prosecution against a well-known large company, among them the case summary and the so-called "Friskies' schedule of aggravation and mitigation".
I remember that this made me sit up at the time, as I do not usually come across leading brands of pet food in my court sittings. The whole case was conducted in a genteel manner, as the pleas were guilty, Counsel for the parties had pretty much agreed everything beforehand, the papers and submissions were impeccably prepared, and all that we had to do was set a fine - even the costs had been agreed in advance.
When it came to the fine we were handed the report of HHJ McDowall's sentencing remarks in the case of Environment Agency v Pizza Express in the Crown Court, which pretty much did the job for us, being admirably clear and well-reasoned. So between the catfood and the pizzas we were guided to an appropriate sentence, and after elaborate courtesy from Counsel we allowed 28 days to pay, and popped out for a cup of tea.
I never expected the job to include catfood when I started twenty years ago.

More Code!

From the invaluable CrimeLine:-

The Ministry of Justice has abandoned plans to proceed with BVT.

The Law Society has issued this statement:
The Law Society welcomes the Ministry of Justice (MoJ) decision inviting the Legal Services Commission (LSC) not to proceed with its planned pilots for Best Value Tendering (BVT).
Jack Straw, the Justice Secretary and Lord Bach, the Legal Aid Minister have listened carefully to representations made by the Law Society and by legal aid firms.
The MoJ concluded the scheme currently proposed by the LSC - the government agency charged with administering legal aid - is “unlikely to lead to the efficient, restructured legal services market envisaged by Lord Carter in his 2006 Review of Legal Aid Procurement”.
The LSC proposed to start piloting BVT in Greater Manchester, Avon and Somerset from January 2010. The plans were met with much opposition by firms, many of whom refused to participate without a TUPE indemnity and said it would result in firms going out of business.

Law Society President Robert Heslett says:
“The Society praises the wisdom and statesman-like approach of the Ministry of Justice in reaching its decision. For the issues faced by law firms in Avon, Somerset and Manchester, this is a great Christmas present. The Society has campaigned against this tendering scheme from its infancy, and so we especially welcome this news. We now look forward to working afresh with the Legal Services Commission and the Ministry of Justice for a new way forward in 2010.”

That last quote from the Law Society translates as a mighty big -

YESSSSS!

First we have Jack Straw taking note of the Mags' Association, and now of the Law Society.... Anyone would think there was an election on the way.

Good Sense In A Strident Debate

There has been a predictably intemperate reaction from some populist commentators on the case of a crime victim who was sent to prison for wreaking violent retribution on one of the men who had robbed and assaulted him. Of course it makes a good cynical why-oh-why headline to say that the victim went to jail while a criminal 'walked free' - or as free as you can be with brain damage.
Ever-willing as I am to dip a toe into troubled waters I was about to do a piece about the case, but having read the Anonymous Prosecutor and this from PC Bloggs, the point is made for me:-

I don't even fully object to the sentence handed out to businessman Munir Hussain, who bludgeoned a burglar with a metal pole, fracturing his skull. Mr Hussain had been subjected to an ordeal, but where he went wrong was gathering a posse, chasing the offender outside, and then continuing to beat him until he was almost dead. Worse still, he made up an array of lies but was found out by independent witnesses. He was tried by jury, who if they had felt enough sympathy with his plight could have acquitted him. Following a guilty verdict the judge had little choice but to jail him. As we keep saying on these blogs, GBH with Intent is a serious crime that should attract jail. And what isn't revealed in the attached article is whether Mr Hussain had previous convictions for violence. I sympathise with his situation, but surely a few kicks would have done the job and they could have then detained the burglar for the police.

The law gives considerable rights of self defence to householders, but as with most other aspects of the law those rights need to be exercised reasonably and proportionately. Nobody expects someone who hears a burglar downstairs to sit down and do a risk analysis, but it is blindingly obvious that getting help and then battering the burglar into irreversible brain damage is way over the top. As Bloggs points out, this case went before a jury of ordinary people who heard all of the facts, as well as the law, and went on to convict. That will do me.

Gloom

This is the most depressing thing that I have read for years, for more reasons than I care to go into.

That's Nice

The blog appears to have just passed two million page views. I am very pleased and a little awed by that.

I started the whole thing (at my son's suggestion) in 2005 because I wanted to shed some light on a magistrates' courts' system that is still poorly understood. Some people in the system were unhappy and a few wanted to have me identified and slung off the bench. Gradually, most people realised that there is much to gain and little to fear from telling the public what we do in its name.

I am proud of being a magistrate and proud of what we do. Of course the system isn't without faults and many of the 34,000 comments we have had have pointed that out. But JPs have served the country for something like 700 years, and despite the gloomier prognostications I expect them to carry on doing so for a while yet.

Priorities, Anyone?

This Walter Mitty type allegedly acted out his fantasy by wearing medals to which he is not entitled. Sad; pathetic even. But does it really merit the attention of the police, the CPS, the courts, and the rest of it?

Unless he used his bogus life story to rob someone, shouldn't he just be left to live out the rest of his life as the laughing-stock that he has deservedly become?

The police should file this one under P for Prat and get on with something more important.

This Could Be Interesting

This report suggests that lawyers acting for A.Golfer Esq have obtained an Injunction clamping down on the reporting of certain alleged facts about which this blog has not the slightest opinion, suspicion, knowledge or any other inkling of a sniff.

Subject to contract, without prejudice, terms and conditions apply, as do disclaimers and caveats, instructions and retainers, all inclusive of VAT and Wig Surcharge. Oh yes, plus disbursements too. Your house is probably not at risk. Comments may be recorded for training purposes.

Who wants to bet though, that the whole thing is out there somewhere on the Web as I type this, and will be well and truly in the public domain by, shall we say, Monday?

(Five Minutes Later....)

Found it. Just Google Tiger Woods Injunction, and off you go. Still, with the credit crunch on, m'learned friends need all the money they can get. Christmas is coming, and New Year at Sandy Lane doesn't get any cheaper as years go by.

Luke

Any magistrate will recognise the blank eyes, the slumped shoulders and the dead expression of Luke, the young man I saw this week. When he walked into the dock I had just finished reading a pre-sentence report that was bleak even by the usual standards. Old-school Probation officers could usually identify some chink of light, some possible way forward, some intervention that might, just, with a following wind, give their client a straw to grasp, if the necessary will could be summoned up (as it usually could not). Not so here; Luke's history could serve as a stereotype for any criminology lecturer to draw on:- never seen his father, mother on benefits all her adult life, two elder siblings each with a history of offending. Luke had been in and out of Council 'care' (as it is called without the slightest intended irony) and had first offended when just 12. He has now turned 18, so he falls into the adult offender category. At first his offences were acquisitive for the most part, but in recent years violence has started to appear on his record, as well as one sexual matter that has worrying implications for the future. Probation use sophisticated assessment techniques in these reports, and Luke had the worst set of indicators I have ever seen on the so-called OASYS chart. Drink, drugs, illiteracy, a total lack of any social context for himself, a loathing of the police, and admiration for the more successsful criminals in his age group all featured in the report.
What we sentenced him to is, I'm afraid, neither here nor there. It won't work, because so much damage has been done over the years that sporadic interventions by the courts and weekly meetings with his key worker will make not the slightest dent in the anti-social cloak that he has drawn about himself. The Probation assessment is that he has a 95% chance of becoming a repeat offender and of spending the best years of his life in prison. If anything 95% is on the low side, and I haven't the faintest idea what we can do about it.

Cross Your Fingers, Matey!

The nation will be breathing a sigh of relief that a man who approached Tony Blair's London home with a loaded automatic pistol has been arrested.
Earlier reports said that a passer-by picked up the pistol from the gutter and handed it to one of the Blairs' armed protection officers. In doing so he may well have committed a strict liability offence carrying a minimum sentence of five years' imprisonment. Let us hope that he gets on better than this chap.

Rather Him Than Me

The Anonymous Prosecutor is sticking his neck out and inviting questions.

Go on, have a go.

Later:

There's some good stuff on there. Have a look.

Little Temptations

I am as sure as I can be that my 29,000 colleagues are incorruptible in their day-to-day duties. Even a cynic would have to admit that the practice of sitting three people on a bench makes it all but impossible to suborn the court.

We still need to be careful about the little things, though. A few weeks ago an old friend approached me in the pub to certify a copy document - a simple and routine procedure for any JP. He handed me colour photocopies of two passports - I know both of the holders and I had not the slightest doubt that the copies were fine. "Can I just see the originals?" I enquired. "Oh, they aren't here. But you can sign anyway, can't you?" "Er- no" I said. "But why?" he asked. "You know me and you know these two". "Yes" I said, "but I have to sign that I have compared the originals with the copies, and I haven't". "Come on", he said, "does it matter?" "Well yes it does" I replied. "I kind of promised the Queen that I wouldn't tell fibs, even small ones. So no".
We left it there, and I was reminded of the time that another old pal, who had previously asked me, brought along his renewal form for a shotgun certificate. "But it's blank, Reg" I said. "Don't worry", he replied. "Just sign it and I'll fill it in later".
"No bloody fear" I thought. "Sorry, mate" was what I said, while asking the barmaid for a pen that Reg could use to fill in the form. It took him 15 minutes.

It's Not Just Here Then

I am sometimes accused of being a bit harsh on some of the day to day managerial and operational decisions taken by the police and prosecution authorities. I continue to hold the view that a lot of low-to-medium level policing could be improved by a bit of old-fashioned commonsense management. But look what the Aussies are up to.

Isn't there someone out there with a bit of rank and access to a telephone who can deliver, as forcefully as possible, the message that the police have more important things to worry about?
It reminds me of this nonsense a while ago.

It's the telly, isn't it? How long before somebody gets arrested for something to do with 'Strictly Come X-Factor' or 'I've Got Talent Get Me Out Of Here' or any of the other depressingly popular drivel in the same vein?

Oo-Er Missus!

I have ruffled the occasional feather on the Mags'Association forum (passworded, members only, not too much traffic).

There are a couple of crackers on tonight, viz:-

the clumsy posturing of the Magistrate's blog.

and

Just because the person's a fellow JP doesn't place them above any criticism. Smug, self-satisfied and sanctimonious are but three of the adjectives that spring to mind.

Well, you can't please everyone can you?

Plus Ca Change - One Of A Series

I have just watched BBC4's broadcast of the Nureyev/Fonteyn Romeo and Juliet, to the stunning Prokofiev score.

Okay, it's set in Renaissance Italy, to a tale by an Elizabethan Englishman from what was to become the Black Country (well nearly, anyway) but what struck me in the quiet bits, when I was sent to put the kettle on, was how many of the human follies on display are to be seen in our courts four centuries later. Stupid, pointless blood feuds among young men, their testosterone overload overcoming any common sense they ever had. We worry about knife crime: this lot carried swords and daggers. Perverted ideas of family 'honour' have come back to haunt us in the 21st century.

Every mistake that a human being can make has already been made by someone else - yet we still have to find out the hard way for ourselves. Shakespeare could warn us about most of the pitfalls - if only we were not too proud to listen.

Not As Simple As It Looks

The Policeman's Blog has started to highlight 'mad judges' as it calls them. The latest rant refers to this report. The Judge's sentence is described as 'ludicrous' - but is it?
The woman's offence was utterly despicable. She systematically stole from her aged relative, in as gross a breach of trust as you are likely to find. Reading the report carefully, it seems that she pleaded guilty, and was given a Community Order with 200 hours unpaid work (effectively the maximum on a plea of guilty) as part of a Suspended Sentence Order of 52 weeks' imprisonment. The hearing at which she was ordered to pay £5 was a separate POCA hearing in which the prosecutor told the judge that Price had no assets, and therefore invited him to make a nominal order - which is what he did because he had no alternative, all of the stolen money having been spent.
So let's have a look at the substantive sentence. The culpability and seriousness passed the custody threshold, as most people would agree. There is no guideline for forgery at the moment, but if you look at theft in breach of trust you find at (g) on page 100 that if a custodial sentence is justified consideration should be given to whether it can be suspended.
So it was a tricky one to deal with and the judge dealt with it within the guidelines and within the constraints forced on him by the fact that the defendant was broke. You can argue about whether the sentence should have been suspended, but 'mad'? I don't think so.

"Police Said it Wasn't a Police Matter"

Wasn't it?

This dreadful story is just the latest in the blood-soaked history of the obsession, among too many of our fellow citizens, with breeding and owning vicious dogs as a mixture of style statement and fashion accessory, and, on occasion, as weapons.
I have blogged on the subject here, here,here, here and elsewhere.
Let's not be mealy mouthed about this. There is no reason for any civilised person to want one of these savage animals. They should all, even the 'aaah-he's-so-cuddly' so called pets, be destroyed. If the original Dangerous Dogs Act had been enforced (tricky because it was so badly drafted) the breeds would already have died out. I have seen cases in recent years of breeding and selling these lethal animals. The police have a softer policy these days, at least in London, allowing attack dogs to survive if chipped and neutered. Sod that. Destroy them all. One innocent child is worth more than all the dogs in the country put together.

Enough!

One For Practitioners

I am sorry to bring in some technical stuff, but a significant document has been issued this week - it is unsigned but I think it has the fingerprints of Leveson LJ, the Senior Presiding Judge, on it; it is certainly in his no-nonsense style.

What it all means is a significant beefing up of the requirements that trials should be carefully structured and timetabled to minimise delay and to dispose of them in the shortest practicable time. Even in the last year we have been faced with a defence lawyer standing on his dignity and refusing to give details of his line of defence as required by the CPR. The rules that I reproduce below simply forbid him to do that in future.

ESSENTIAL CASE MANAGEMENT: APPLYING THE CRIMINAL PROCEDURE RULES
1 It is important to note that all participants in criminal cases, including magistrates, District Judges, and Justices’ Clerks must follow and apply the Criminal Procedure Rules. The Rules are not mere guidance. Compliance is compulsory. The word “must” in the Rules means must. (My italics)
2 The expression ‘court’ includes magistrates, District Judges, and Justices’ Clerks exercising judicial powers [CrimPR 2.2(1)].
3 Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.
4 For a full version of the guidance, see: http://www.justice.gov.uk/criminal/procrules_fin/rulesmenu.htm

A) Generally
l The court2 must further the Overriding Objective of the Rules by actively managing each case [Crim PR3.2(1)].
l The parties must actively assist the court in this without being asked [Crim PR 3.3(a)]. But at every hearing, including a trial, it is the personal responsibility of the magistrates or district judge to manage the case actively [Crim PR 3.2].
l Unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time [Crim PR 3.2(2)(f)].
B) The first hearing taking the plea
At every hearing, (however early): l Unless it has been done already, the court must take the defendant’s plea [Crim PR 3.8(2)(b)]. This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid.
l If the plea really cannot be taken3, or if the alleged offence is indictable only, the court must find out what the plea is likely to be [Crim PR 3.8(2)(b)].
C) If the plea is ‘guilty’
l The court should pass sentence on the same day, if at all possible (unless committing for sentence).
l If information about the defendant is needed from the Probation Service, it may be that a report prepared for earlier proceedings will be sufficient or (depending on local arrangements) a ‘fast delivery’ report (oral or written) may be made that day.
l If a ‘Newton’ hearing is needed, the court, with the active assistance of the parties, must identify the disputed issue [Crim PR 3.2(2)(a); 3.3(a)] and either, if possible, determine it there and then or, if it really cannot be, give directions specifically relating to that disputed issue so that the next hearing is the last.
D) If the plea is ‘not guilty’
The key to effective case management is the early identification by the court of the relevant disputed issues [Crim PR 3.2(2)(a)]. From the start, the parties must identify those issues and tell the court what they are
[Crim PR 3.3(a)]. If the parties do not tell the court, the court must require them to do so.
l The relevant disputed issues must be explicitly identified and the case must be managed by the court so that the ‘live’ evidence at trial is confined to those issues.
l The parties must complete the prescribed case progression form [Crim PR 3.11; Consolidated Practice Direction V.56.2] and the court must rigorously consider each entry on the form in order to comply with its duty actively to manage the case by making properly informed directions specific to each case.
l Only those witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend. The court must take responsibility for this (not simply leave it to the parties) in order to comply with the Overriding Objective of the Rules [Crim PR 1.1(2)(d), (e)].
l The court’s directions must include a timetable for the progress of the case (which can include a timetable for the trial itself) [Crim PR 3.8(2)(c)].
l The time estimate for the trial should be made by considering, individually, how long each ‘live’ witness will take having regard to the relevant disputed issue(s).
E) The parties’ obligations to prepare for trial include:
l Getting witnesses to court [Crim PR 3.9(2)(b)].
l Making arrangements for the efficient presentation of written evidence/other material [Crim PR 3.9(2)(c)].
l Promptly warning the court and other parties of any problems [Crim PR 3.9(2)(d)].
F) At trial
Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore [Crim PR 3.10(a)].
The court may require the parties to provide:
l A timed, ‘batting order’ of live witnesses [Crim PR 3.10(b)(i), (ii), (ix)].
l Details of any admissions/written evidence/other material to be adduced [Crim PR 3.10(b)(vi), (vii)].
l Warning of any point of law [Crim PR 3.10(b)(viii)].
l A timetable for the whole case [Crim PR 3.10(b)(ix)].
During the trial the court must ensure that the ‘live’ evidence, questions, and submissions are strictly directed to the relevant disputed issues.

Devaluing The Currency

Streets lined for hero floods cop

The Sun - 27 November 2009

Grant can be Av a go hero

The Sun - 27 November 2009

Like I said the other day - sense of proportion anyone?

I'm Not Sure How To Admit This

This isn't going to be easy, I know. I have led a pretty blameless life, and I have rarely had to admit to thoughts or deeds that run counter to all that I have previously held dear. But here goes:
Ready?
Sure?
It's this, then:-

I find myself in agreement with Jack Straw.

There, I have said it.

Speaking to the Magistrates' Association earlier this month, the Justice Secretary said:

the number of cases going to the Crown Court has increased. But we also know that magistrates are declining jurisdiction to hear trials in more either way cases than three or four years ago; Crown Prosecution Service figures indicate around 6,000 a year. In 2007 around 59,000 defendants were sentenced in either way cases in the Crown Court, of which 20,000 could, on the face of it, have been dealt with by magistrates. I have heard that magistrates are bound to take the upper end of the prosecution’s view of where a case might be heard as a result of the defendant’s election.

But let me give you an example. The Sentencing Advisory Panel has found that in 2006 found that 80% of fines for theft offences in the Crown Court were for less than £200 and 59% of these were for less than £50. Some of those cases may have merited the attention of a Crown Court judge because of prevalence or reputation. But at the same time, the levels of fines suggest that some could have been dealt with just as effectively as magistrates.

This is, of course, a matter of judicial discretion. You will want to take into account a whole range of factors in determining where a case will be best heard. But I think it is, at the very least, worth asking yourselves the question: are the matters at issue so serious that a Crown Court trial is necessary? Or would it be better – for victim, witness, defendant and public confidence – to dispose of the case more quickly in the magistrates’ court? If you find your powers to sentence a defendant are not sufficient, you are able to refer a case to the Crown Court for sentencing.

I believe there is a strong case for magistrates being more confident in retaining jurisdiction. Just as you have grasped the nettle of court efficiencies under CJSSS, I now want to encourage you to use the full extent of your powers in either way cases, where appropriate, rather than referring them to the Crown Court.

This is something that I have felt for some time. Many magistrates and their legal advisers play for safety in sending cases upstairs, but the facts show that a large proportion of those cases end up being sentenced well within the powers of the lower court. That is a waste of money and of resources, and by delaying justice it deprives victims and witnesses of seeing their case dealt with swiftly and fairly.

A few months ago I saw a case that seemed to me to be eminently suitable for summary disposal. It was a guilty plea, but I can't otherwise say too much about it. My clerk was, while respecting the bench's prerogative of making the decision, clearly nervous about our keeping the case, and my colleagues' views persuaded me that the case should be sent upstairs. I made discreet enquiries of the Crown Court the other day, and I discovered what the learned judge had decided - six weeks' imprisonment.

Crown Courts are busy; very much so in London. They cost vastly more per sitting day than the lower courts. They consume more resources of advocates and judiciary, and delay disposal by weeks and months.

I hope to see my fellow JPs bracing themselves to accept more of the borderline cases that currently go upstairs. We have the powers, we have the competence. All that we lack, sometimes, is the courage.

It's Our Turn!

The expenses scandal juggernaut has moved on to the judiciary.
Of course, I am in it up to my ears, submitting, as I do, an expenses claim every month. However, the fact that judges, who pull down something like £130,000 a year, also run up twenty quid a week in expenses doesn't seem too scandalous to me, and as for JPs, well I get 55p a mile for driving to and from court, and either £7.45 or £10.38 a day in flat-rate subsistence, depending whether I have been away from home for four to eight hours or more than eight. It isn't a life changing amount.

Raving Mad

We may be desperate for helicopters in Helmand, and some police forces are declining to pursue almost half of the matters reported to them, but a couple of hundred young people daring to enjoy themselves was seen as being worth two choppers and dozens of coppers to effect a handful of arrests.
Sense of proportion anyone?

Hammered

Marcel Berlins has had yet another bash at the infuriating appearance of gavels in media depictions of English courts. I can't add anything except "Grrrrr".

Truly Disturbing

I have hitherto refrained from commenting on the troubling case of Paul Clarke, who appears to have got himself into some very hot water in handing in a sawn-off shotgun to the police. I agree with Charon QC that the affair has been comprehensively dealt with on Jack of Kent's blog, and you can do no better than to read JoK's post.
My initial restraint was based on a hunch that there had to be more to this than meets the eye, and indeed Mr. Clarke appears to have had previous less-than-harmonious dealings with the police.
Strangely enough, I have experience of a case that is pretty close to Mr. Clarke's. Someone came before us charged with having a loaded firearm in a public place. The person was wealthy and respectable, and the gun was duly licensed and being carried as part of his luggage on a journey - but due to an oversight there were three bullets in the magazine. The CPS asked us to take the unusual step of adjourning matters for one week to allow them to have another look at the charge, because as matters stood the 5-year minimum would apply, which would be ludicrously overdoing things. So we put the case off and the man came back before my colleagues a week later, when he faced a different charge and was fined heavily.
So is it the case that Mr. Posh was given an easy ride, but Mr. Stroppy will feel the full weight of the law?
I don't know, but I hope that the decisions taken will be transparent and clearly set out as matters progress.
The other truth that is emerging is the inescapable fact that laws imposing minimum sentences will always, sooner or later, produce injustice that cannot be averted by the sentencer. Every case is different, and legislators cannot possibly envisage every twist and turn and nuance of the offences they are trying to proscribe. That is why judicial discretion is essential if we are to do justice.

Just As If............

A young man was alleged to have committed a robbery on a trader, causing great terror, but mercifully no injury, to the victim. With the bovine stupidity that characterises so many of our customers he had performed the robbery in clear shot of good quality CCTV, from which police immediately recognised him. Once armed officers had been sent for, since he was suspected to be carrying a weapon of sorts, a couple of vanloads of police went to his home, bashed in the front door, and stormed inside. According to the prosecutor the officers shouted "Where's the money?". The defendant prudently took them to the cash, and he was arrested.
The defence solicitor did not apply for bail, but had one representation to make:-
"Just one thing sir, I am instructed that what the police in fact shouted was 'Where's the fucking money, scumbag'".
That doesn't sound like a police officer now, does it?

A Few Proposals From Some Bill Or Other

I quote, from some newspaper:-

"Gives police the power to bar suspected domestic violence offenders from their homes for a period, even when not charged".
So if the police - suspect - that a man (it will usually be a man) is beating his wife, then they will, without charging him, and without taking him before a court, be able to ban him from his own home and family.

Just for the record, I have strong views on domestic violence - I am against it. But this is simple tyranny, driven by good intentions but giving the police without any judicial intervention the power to turn a legally innocent person out of his (or exceptionally her) home. That is too much power to give to police or to any extra judicial body.

Another Top Tip

I like to pass on bits of wisdom gleaned from my days in court, so here's a useful pearl from today:-

If you are short of somewhere to lay your head;
And if your mate offers you a bed in his council flat;
And if you get back a bit late after a heavy session;
And if the doorbell is broken;
And if you can't get your mate to wake up and let you in;
And if you think of tossing a handful of gravel up to the first-floor window to alert him;

(Here's the Top Tip, okay?)

Make sure that it is a handful of gravel - not a half-brick. That way lies trouble, including a charge of criminal damage and a summary eviction.

Mind how you go, now.

Not Quite........

Susan Levy, the mother of Brooke Magnanti, the research scientist unmasked as the former call girl Belle de Jour, said she was proud of her "brilliant" daughter for "standing up for herself".

Isn't 'standing up' the opposite of what she did?

Only In England?

I had lunch in London today with someone for whom I care a good deal. After lunch we strolled somewhat aimlessly in the autumn sunshine until we found ourselves approaching Westminster Bridge, along the Embankment. Thus we came to Parliament Square. In our random way we crossed Whitehall, and we decided to have a look at the Supreme Court building, formerly the Middlesex Guildhall, in which incarnation I used to know it well.
It was about 3.45 pm, and as we approached the doors a polite uniformed man asked if we wished to enter. We did, and after a professional security check (in which my HMCS photo ID cut no ice whatsoever) we were told that Court 3 was sitting - so in we went. We were two of about eight members of the public in the court, and there, a few paces away, we saw the backs of various barristers (some bewigged, some not) and, facing us, Lord Phillips, the senior judge in this jurisdiction, flanked by four of his colleagues.
The court rose at 4 p.m., and I have no idea what the matter before their Lordships had been, other than the fact that it was a Privy Council matter, thus an appeal from a Commonwealth jurisdiction.
I am proud of the fact that my guest and I were able, with little fuss, to enter and watch the proceedings of our highest court. Next time you are in London, give it a try.

A Blinding Flash of the Obvious

Jack Straw today gave the Mags' Association AGM some advice about collecting fines.

A Grim Reminder

This is a tragic reminder of the responsibility that magistrates carry when they decide to grant or withhold bail. Every bail decision is a calculated risk because there are few certainties. Whether there are 'substantial grounds' to fear further offences, failure to surrender, or interference with witnesses is a judgment call, pure and simple.
The newspaper is unfair in its report, as you would expect: it suggests that the decision was taken by one named JP rather than a bench, "despite" CPS objections. If we always followed the CPS line, nobody would ever get bail and we would need another 50,000 prison places. As I have said before, all that we can do is consider the evidence with great care, stick to the Bail Act rules, and hope that we get it right.

Short Shrift

So-called 'Mr. Loophole' doesn't always get his clients off, as in this case.

As the Crown Court judge (who was sitting with two JPs) pointed out, the fees of Mr. Freeman probably far exceeded the fines and costs imposed, but for a Premiership footballer it's all small change anyway.

I was interested to see that the DJ in the lower court was 'Custody' Cooper, who seems to crop up in the news quite frequently.

Later - Here's another one who came unstuck.

This Needed Saying

The constant harping on from Government about 'putting victims at the centre of justice' is in danger, as this article points out, of raising false expectations in victims of crime, and of blurring the reality that it is the state that prosecutes and the state that punishes crime, as it must. Anything else is a cruel deception, made to grab a headline.

More of The Same Claptrap

The Sun reports today that the government intends to increase the minimum term of imprisonment for those who murder using a knife. The paper claims this as a 'victory' for its campaign. Here is the Times report.

This is an absolutely typical piece of Straw's Law, and it will be bad law for a number of reasons:-

It will be introduced by Statutory Instrument, bypassing proper Parliamentary scrutiny.

It will be introduced to satisfy a media campaign driven by a prominent case in which the victim was the brother of a TV celebrity.

It takes no account of the fact that every case is different and turns on its own facts.

If it allows, as it should, judges to make exceptions where they think it to be just to do so, it will be meaningless. If not there will be injustice.

It will specify a 25-year starting point for a murder using a knife, but not for an axe, or a chainsaw, or a piece of wood with nails in, or any of the myriad weapons that humans use to maim and kill each other.

It will have not the slightest effect at street level. Someone prepared to risk a 15-year stretch isn't going to pack it in and take up embroidery because the ante has been upped to 25 years.

Hard cases make bad law. They are about to make another one.

The Logjam Starts To Move

Along with many others from all levels of the judiciary I am unhappy about the trend to out-of-court disposals that has led to more than half of all so-called offences brought to justice being dealt with outside a court, by way of a simple or conditional caution, or a fixed penalty of some sort. It has enabled the government to brag, quite fraudulently, that it is bringing more and more offences to 'justice' - but what kind of justice? The Magistrates' Association, which has recently brought a long-overdue vigour and robustness to its campaigning on this topic has managed to push the issue into the public's gaze. Tonight 'Panorama' will deal with the issue (it will be available to watch again online for a week) and there is a selection of informed views
here,
here
here
here
and here.

With the MA, the DPP, the Commissioner of the Met and others joining in, it looks as if the Justice Secretary will have to bow to pressure to bring the extra-judicial juggernaut under control. It must be about five years ago that I sat in a London conference centre listening incredulously to the plans for Conditional Cautions, stitched up behind closed doors by the CPS and the police. I was sitting next to a respected District Judge, and his feelings echoed mine. This was another of the snap judgments that emanated from the Blair sofa at no. 10, and not the first to have been shown to fail. It won't be the last, either.

Guest Post

I am genuinely honoured to be able to post a guest contribution from the widely respected Glenna Robson, who has contributed to many legal and academic publications.
Her article speaks for itself.

“Must follow” takes pole position

Recently on this blog Peter Hargreaves rightly drew attention to the latest mammoth criminal justice bill to be wending its way through Parliament – the Coroners and Justice Bill. This is an amalgamation of two separate bills signalled in one of those spurious Queen’s Speeches now made in mid-summer by the Prime Minister and which purports to lay out government policy. The Coroners Bill has been around for some time and was heavily criticised in its original form by the Constitutional Affairs Select Committee (now the Justice and formerly the Lord Chancellor’s Select Committee) in its Annual Report for 2005-5. All went quiet during 2007-8 but the Bill resurfaced in 2008 and was again the subject of sharp criticism by the Committee in its intention to limit coroners’ powers. At the same time (June 2008) it was announced that that there would be a separate bill on Law Reform, Victims and Witnesses. Instead, these two bills got rolled into the present hotchpotch which has just received its Third Reading in the Lords (November 5). There are plenty of points for discussion, but for magistrates it is Part 4 which is of particular interest. Therein lie the provisions for abolishing the Sentencing Advisory Panel and the Sentencing Guidelines Council and establishing a Sentencing Council whose guidelines sentencers “must follow”. Currently under the provisions of the CJA 2003 S.172 sentencers are ordered to “have regard to” the guidelines. The Magistrates’ Association as well as the Conservative Party have fought to preserve this latter statutory obligation. Slight amendments in the general wording were won but the MA stated that “they are not strong enough to allay fears that undue influence through a too rigid sentencing structure will be imposed on sentencers”. High hopes were pinned on a possible successful amendment in the Lords. However the former Lord Chief Justice, Lord Woolf, signalled in both the Committee and the Report stages that he felt that there was a clear two-stage process that the sentencer “must follow” the guideline “unless the court is satisfied that it would be contrary to the interests of justice to do so”. The nub of his argument can be found on: http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/91028-0010.htm
It obviously swayed some who might have voted in favour of the amendment. As it is, the Bill goes back to the Commons and the expectation is that it will be law within days. It is interesting to note that although the Council of Circuit Judges also joined in protests about “must follow”, the senior judiciary have been silent unlike their reaction to the government’s original proposal of a sentencing grid. So will this Bill make guidelines more like tramlines?

Out Of The Mouths Of Babes....

We saw a case of carrying a bladed article a few weeks ago. Most facts were agreed and our job was to decide, on the balance of probabilities, whether the defendant had a reasonable excuse that would amount to a defence. We went out to consider, thinking that the case was pretty finely balanced.
We went through the evidence, and as we were re-reading an interview, one of my colleagues, on her third-ever sitting, spotted a massive inconsistency between the interview and the evidence that our man had just given on oath.
I am not saying that the three of us wouldn't have got there in the end, but one of the strengths of the magistracy is the constant influx of newly trained colleagues who treat every case as a new experience, and with their training fresh in their minds.
Guilty, then.

Sadly, No Audrey Hepburn

The confused and confusing state of the sentencing regime is something that every sentencer is aware of. Our training and guidelines insist that the sentence pronounced is indeed the sentence imposed, but there isn't a single member of the judiciary who doesn't know that the whole business can be a charade sometimes.
A few months ago we were faced with a local drunk who had again breached his ASBO. He had spent two nights in police custody, and was represented by a decent, seasoned solicitor of many years' experience. The solicitor accepted that his client was an alcoholic who was unwilling to seek treatment. He pointed out the utter futility of the man's arrest and charge with an offence carrying up to 5 years on indictment. Until half a dozen years ago the man had a house and a job and a family. Now he was derelict and homeless. We were urged to allow his release forthwith, by imposing a fine and deeming it served, but for technical reasons to do with the man's record that wasn't really on. Only custody would be appropriate, but how long? This is where the the guidelines are unhelpful, because of the shambolic early-release system. 21 days means that he would have to serve seven of them before early release could kick in. On the other hand, 28 days, bearing in mind the 3 days that our man would have served already, would result in his early release, certainly in the next few days, possibly sooner. So I went through the pronouncement of a 28 day prison sentence, knowing, as did my colleagues, the clerk, the prosecutor and the defence brief that he would serve nothing like 28 days. I was of course quite unable to announce openly what would really happen and why we were making the order that we did. That's a charade for you.

Here is an explanation of the rules for early release.
This system has already lost the confidence of the press and public and is fast losing the confidence of many sentencers. The new government that we will get next year will have a lot on its plate, but this mess should be high on the agenda for the new Justice Secretary.

Trouble On The Way

The indispensible CrimeLine reports:-

In Gidden v Chief Constable of Humberside, DC, 29 October 2009 (no transcript available), the court quashed a conviction for speeding. The applicant had been sent, via first class post, a notice of intended prosecution. However, due to postal strikes the NIP did not arrive until 16 days after the offence.

The question posed for the determination of the High Court was whether, upon a proper construction of s.1(1)(c), s.1(1A)(c) and s.1(3) of the Road Traffic Act 1988, a notice of intended prosecution should be regarded as having been properly served where the notice was sent by first class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was actually delivered after the 14-day time limit.

Held: Save for NIP's sent by registered post or recorded delivery, the presumption of delivery was rebuttable. It was not possible to read down the Act, nor the CrPR 2005, to provide for a convenient way to close what may well become a well used loophole.

This seems to have resurrected, thanks to the postal workers' strikes, the long-running Section 172 controversy, in which hundreds of motorists who have been snapped by speed cameras have disputed the validity (especially in respect of what is good service) of the notice of intended prosecution and the requirement to name the driver of the speeding vehicle.
Solicitors who make a living from defending motorists (one of the groups that is most likely to stump up the cost of representation) will be rubbing their hands.

Small Earthquake In Chile - Not Many Dead

Here is a report of a (gasp) illegal rave. Nobody died, but some kids had a good time.
Bloody outrageous, I call it.

Depressingly Familiar

A friend emails me, mighty angry, as follows:-

The Telegraph reports that the Government's drugs adviser has been fired.

Why?

Not for being wrong.
Not for betraying scientific principles and methodology.
Not for fiddling his expenses and flipping his residence.
Not for being cynical shifty and self-serving in an attempt to stave off a tabloid assault.

Why then?

For telling the Government what it does not want to hear; arguments to which successive governments have stopped their ears while crying out "La-La-La" ever since James Callaghan binned the Wootton report without, apparently, troubling to read it.

The War on Drugs as as currently waged has about as much hope of a successful outcome as the one in Afghanistan. It has almost certainly cost more and killed more people too.

Here is The Guardian's View.

Another MSM Mention

We get a mention in today's 'Times' in the Times 2 section.

One or two posters on the MA's private forum became a little cross (and in some cases rather pompous) at my picking up the early-release story there, but the Governor concerned was speaking openly and I feel no shame whatever at having brought an important issue into the public arena.

Courts are open to the public, and the workings of the justice system should to be too.

When Pusher Comes To Shove

I have heard of criminals straining to avoid detection, but this bloke seems to have gone to the other extreme, by refusing to strain when requested.
In police argot, a confession is often known as a 'cough'. Our man wouldn't have dared.

Where Do We Go From Here?

We seem to be in the Phoney War phase of the economic crisis at the moment. With an election due next Spring at the latest most politicians are reluctant to draw our attention to the truly enormous hole in our public finances, and to the sacrifices that will be required to put matters right. I am no economist, but if you read around a bit you will find that even serious academics are running out of superlatives to describe the problems ahead. The truth is that nobody knows the real figures, but we do know that there will be a cut in the standard of living of most people, and that those people do not yet realise this.
I may be no economist, but I know a bit about the finances of the criminal justice system, and I also know a bit about politics; it is inescapable that the system will have to make savings on a massive and yet undreamt-of scale. We all have our little grumbles at the current niggling cuts in staff here and legal aid there, buildings left without maintenance, back-office functions moved to remote places, and the rest of it. But all of this will come nowhere near the required savings in a world in which justice will have to compete for funds with health, defence, pensions (above all, pensions) and all of the other services that the public now see as an entitlement without necessarily being willing to shell out for them. As someone recently said, if you offer people a choice between a new courthouse and keeping the Post Office open I don't think that many would vote for the court. We will have, in the old cliché, to think the unthinkable.
The justice budget is huge, encompassing as it does police, courts, prisons, probation, legal aid, the panoply of family courts and services for children, and much more. So where do we start? There won't be a lot of enthusiasm for big cutbacks in the police at a time when the terrorist threat has not gone away and a real depression could lead to public disorder. There are no votes in prisons, but there will be an outcry if some are closed and the inmates sent home. Probation is expensive, but cheaper than prison. We are always hearing about 'tough' community penalties, although many of us remain sceptical. Making them tough will cost money. Legal Aid is being squeezed all the time. As it is most people are not eligible, and leaving people to face the resources of the state and the skills of a barrister all on their own will cause serious injustice. But is that injustice more or less serious than cutting back on services for the elderly?
What about the courts? Small ones will be closed and sold off. Big court complexes offer economies of scale with services such as security, and it is easier to shift work between courtrooms to ensure maximum utilisation of expensive resources. But new complexes have to be built - they will cost money and will take at least five years to get going. Efforts will be made to push Crown Court work down the scale to magistrates' courts because the lower courts are far, far cheaper to run. More out of court disposals? Looks like a done deal, despite misgivings from magistrates lawyers and police. Are JPs cost effective? We don't get paid, as opposed to District Judges on about £100k a year, but we do need training travel and subsistence to be paid for. I suspect that the answer is that we are value for money, but perhaps not as cheap as we think.
Well what would you do? There are a lot of experienced people who comment on this blog and a lot of people in authority who read it. We know that maybe 20-25% needs to come off our budget. There are no right or wrong answers; this is about politics in the real world after 2010, whoever wins the election.

Nodding Acquaintances

Lord Judge, the Lord Chief Justice, has a deserved reputation for a powerful intellect that is combined with earthy common sense. Nobody who has heard him speak, as I have, could possibly believe in the myth of dozy and out of touch senior judges. He has now spoken of the real and increasing danger of juries being unable to absorb information in the form in which it is currently put before them. I think that he is right, and that a similar danger faces magistrates who deal with 95% of all criminal cases.
In a trial it is not unusual for one witness to be in the box for an hour or two. As chairman I always keep a close eye on the witness and try to allow a five minute break for a cup of tea after perhaps an hour or so. If the witness is old, or young, or otherwise liable to become tired I may break more often than that. There is also the question of the magistrates. Listening to dense evidence from 10am to 1pm then from 2pm until 4.30pm can be surprisingly tiring and it is essential in the interests of justice that those charged with making a decision are alert. Hence, I will often call a break in the middle of a morning or afternoon, and take a lot of persuading to sit on after 4.30. The so-called graveyard shift from 2pm till 3pm is particularly tricky and magistrates (no, never me) have been known to nod off, or, as has been said, 'concentrate with their eyes closed'. The average magistrate is something like 56, so it is as well to keep an eye on your colleagues - just in case - and for them to keep an eye on you.
Lots of things conspire to deaden the wits and droop the eyelids; some advocates who may be fine lawyers have a dull and flat delivery that conjures up the delights of Morpheus. This summer the air conditioning in court was often left switched off to save money, and the resulting stuffiness led advocates bench and staff to droop. Of course a real advocate will hold everyone's attention, cajole, persuade, and soothe as only a proper brief can, but he is a sadly rare creature these days.
So following Lord Judge's timely lead we all need to think how evidence may better be presented, both for young members of the Internet generation (some of whom may be magistrates as we recruit more young people) and for those of mature years whose attention spans are shrinking.
Even I can think of many ways to improve presentation of evidence, but I can't think of any that do not cost money. So don't hold your breath. We may have to rely on black coffee and timely digs in the ribs for a few years yet.

Poppy Month?

I posted this a while ago, and in the many comments a consensus emerged that it was entirely appropriate that those presiding or working in Her Majesty's courts should wear a poppy in the period before Remembrance Day. I choose to do so.
However....Ministers are today (October 21st)wearing poppies on TV. This is ridiculous, since there are still 21 days to go before the 11th of November. My late father served in the Army from 1940 to 1945 and I knew him well enough to be sure that he would have been disgusted at this nonsensical grandstanding that has obviously been arranged by the unlovely spin doctors who have come to dominate politics.
Have some respect, chaps. Wear your poppy (and don't put the £2 you paid for it on exes) for a week before the day. Any longer says you are an insincere poser.

Sentencing Muddle

Today's 'Times' refers to this post from a few weeks ago, and in particular to one of the comments. The piece is here, and there is a leading article here.

It's True - Honestly

I read that two former solicitors have appeared before a disciplinary tribunal over allegedly misusing clients' money - the number one no-no in the solicitors' book.

One of them is called Stephen Swindle.

Are Rights Wrong?

I am occasionally subjected to a pub rant from one or more of my pals about the iniquities of the government, or whatever subject has just exercised the Daily Mail, and one of the most common complaints is the dreaded Human Rights Act. There has been a sustained campaign against the Act, in which it is blamed for giving aid and comfort to terrorists and criminals, many of them foreign, and is held by some to be responsible for the rise of political correctness (usually suffixed with the expression 'gone mad'). In court, on a day to day basis, the Act has next to no effect, although every JP has had to do a full day's training on it. In an idle moment I looked up the Act and it led me to wonder just which of its rights the gloomsters would abolish:-

* the right to life
* freedom from torture and degrading treatment
* freedom from slavery and forced labour
* the right to liberty
* the right to a fair trial
* the right not to be punished for something that wasn't a crime when you did it
* the right to respect for private and family life
* freedom of thought, conscience and religion, and freedom to express your beliefs
* freedom of expression
* freedom of assembly and association
* the right to marry and to start a family
* the right not to be discriminated against in respect of these rights and freedoms
* the right to peaceful enjoyment of your property
* the right to an education
* the right to participate in free elections
* the right not to be subjected to the death penalty

There's nothing there that I can object to. Any suggestions?

A Bit Odd

The Daily Mail reports the acquittal of a driver who seems to have advanced the defence that he was only using his mobile phone as a dictating machine rather than to make a call. I sat on a Crown Court appeal of a similar case last year and we were persuaded that 'using' a mobile is not just confined to making calls or sending texts; looking up numbers in the memory was also 'using' as would be recording a message. Any of the lawyers out there have a view?

(Usual caveat about the story - it was the Daily Mail so all may not be as it seems)

Spot On

I had previously missed this quote from a Parliamentary committee:-

“Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals and there are good reasons for this. The CPS’s role as an independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital”.

H&R Solicitors, who quote it on their website, say that they welcome this insight. They go on to say:

"A great deal of unnecessary human misery is caused by over-zealous prosecutors. We need a prosecution service which is dedicated to truth and justice, not to scoring political points or winning votes for politicians".

I agree. The CPS culture is gradually changing, and its independence is not always apparent these days. Prosecutors are now based in police stations, so inevitably they come to see themselves as a part of the police team, which they were never meant to be. The other day, when fixing a trial date the Prosecutor made vigorous efforts to persuade us not to warn a couple of PCs that they would be required on the grounds that it might mess up their rotas. I had to say that the court's sole concern was with justice rather than police operational matters and that if the defence wanted the officers to give evidence that is the way it would be. Article 6 of the HRA enshrines the right to a fair trial, not one that is convenient to the authorities.

Day Out

There's going to be an Open Day at Harrow Crown Court (Hailsham Drive, Harrow HA1 4TU) on Saturday 24th October from 10 am to 4 pm. All the fun of the judicial fair is on offer, including mock court hearings, visits to the cells and prison vans, children's drawing competition, fingerprinting, electronic tagging, video link demo, police cars, police dogs, try on a judge's wig (!) experience being on a jury, as well as displays from CAB, Prisoners' friends and family group, probation, CPS, magistrates, trading standards, Mental Health Commission, Legal Services Commission, and more. You might even get to speak to a real judge, without the inconvenience of getting arrested first.

It sounds good - I might even get along there myself.

Priorities

The following proposition is due to be debated at this year's AGM of the Magistrates' Association:-

This Annual General Meeting believes that the work Magistrates undertake should be recognised more widely as a valuable contribution to the justice system in England and Wales and calls upon the Association to establish an Honours and Recognition Group to highlight this.

So as summary justice is given to the police and the dog catcher to administer, courts are to be closed, Legal Aid squeezed almost out of existence, and local justice abandoned, the best the MA can manage is a bit of mutual backslapping and a request for a few gongs to be dished out. We'll probably get them too, rather as explorers handed out trinkets to keep the natives quiet while the visitors worked out what was worth plundering.

Fraud Guidelines

The Sentencing Guidelines Council has just issued definitive guidelines for fraud, an offence that covers a wide range of culpability, from a small-time benefits cheat up to Bernie Madoff and his ilk. It's a big document, and all that a magistrate needs to know is how to handle the lesser offences, and the point at which to send it upstairs to Hizonner and a jury.

Legal Costs - Another Click of the Ratchet

Thanks to CrimeLine for pointing me to this statutory instrument giving the Lord Chancellor power to cap central funds costs. CrimeLine expects that costs awarded out of central funds will be capped at Legal Aid rates, which are way below solicitors' private client fees.
If I read this aright, someone who is tried and acquitted, having instructed solicitors and possibly Counsel privately, is likely to be left with a large bill for their fees, that he has no hope of recovering, despite his being innocent of the offence. The CPS, on the other hand cannot lose, and may see this as an opportunity to bully guilty pleas out of people who might have a defence but who cannot afford to run it.

Here We Go......

Following the summer lull in Government and political activity the Whitehall machine is starting to lumber back into action. Peter Hargreaves points to this announcement which is the beginning of a process of closing and consolidating courthouses. There is a powerful resonance with Dr.Beeching's hatchet job on the railways a generation and more ago. London's courts are managed in a unique way, being hitherto based on the Borough structure, but I think that is a certain goner; there will be fewer and larger courts in the future. That will of course have a big effect on the structure of benches, because there are bound to be mergers. Bigger means more impersonal with management being remote. As it is, my Justices' Clerk has something like a thousand JPs under his wing, so he is a relative stranger to most. I also expect to see a lot of effort being put into videolink cases, which will be a cheap and not very cheerful way of getting more cases through. From my experience of prison videolink hearings I am convinced that a court simply cannot make a proper judgment of evidence and of people without having them before you in the flesh. We shall return to the subject as matters progress. It's going to be messy, I'm afraid.

Key Advice

I have just remanded a young man in his mid teens who had 47 previous convictions.
He and his mates broke into a house and stole the keys to a VR32, which is, I am told, a desirable top-of-the-range Golf. They then drove off, pausing only to fill up with petrol, which they didn't bother to pay for. They didn't bother about the high quality CCTV cameras either, so it was easy for the police to nip round to his house and pick him up. He pleaded not guilty, of course, because for a youth there is not a lot of downside to taking things to a trial. A friend of mine was burgled last year for the keys to his son's Subaru, another favourite with young car thieves. He told the police that they would take the keys to bed in future and they told him on no account to do so, since some burglars would think nothing of threatening or even assaulting someone to force them to hand over the keys.
It's the Law of Unintended Consequences again; modern cars are pretty much impossible to steal unless you have the keys or a recovery truck, so that's the way the ever resourceful criminal will go.

Quick Question

I wonder what proportion of the many parents who name their daughter Jade have studied English? One of the definitions in the Oxford dictionary reads:-

• noun archaic
1 a bad-tempered or disreputable woman.
2 an inferior or worn-out horse.

If You Can't Take A Joke Stay Out Of The Kitchen

I was nearly on the radio this evening. I was phoned up this afternoon while I was sweeping the leaves from my lawn and asked to take part in a current affairs show tonight. I have done quite a few of these, so I said yes. Producers prefer studio quality sound to the vagaries of the phone network so I agreed to go to a studio that is about 20 minutes' drive from my house. On arriving I discovered that momentous breaking news meant that the piece had been dropped, so home I came. In the past I have found myself leaving the house at 6 a.m., keys in hand, ready to drive to a studio, to get a call on my mobile saying that a big story has just broken, so sorry..... The main thing that broadcasting has in common with being a JP is that you get buggered about quite often, but there's no point in complaining because it's part of the deal in both cases.
I shall never forget the frisson that I felt one day as I sat in a small regional studio at 7.15 a.m., headphones clamped on, mike in front of me, ready to talk about the victim surcharge, when the producer came on: "two minutes, then you are next. By the way, it's John Humphrys". Since you ask, he was a pussycat.

Fingers Crossed

The road that runs past the the road that leads to my local pub has a bad accident record; there have been several fatalities there in recent years, one of which I witnessed, when I watched a young motorcyclist die on the grass verge despite the attentions of paramedics and a doctor. Until recently the limit on the road was 60 mph, but a few months ago a 600 yard length had a 40 mph limit imposed. Not everyone took notice, but in recent weeks a pair of high-tech signs have been installed, measuring the speed of approaching vehicles and flashing up a speed warning when appropriate.
If this works, it has to be a better solution to the speeding problem than cameras. If it does not, then the Mr.Toads will have no excuse to whinge about nasty gadgets that interfere with their 'right' to drive as fast as they like, where and when they like.
Let us see.

Risky

Following the encouraging response to my poetry thread, here's another question:-

How come there are next to no seriously good works of art in the fields of, for example:-

Painting,
Sculpture,
Music,
Poetry,
Architecture,
Drama,

that have been created by women?

I accept that some women seem to have got the hang of the novel, and much pleasure have they given me. But otherwise, they are all second-raters, aren't they?

For Heaven's Sake! (Way Way Off-Topic)

Some poll or other has produced this list of our favourite poets:-

T.S. Eliot, John Donne, Benjamin Zephaniah, Wilfred Owen, Philip Larkin, William Blake, William Butler Yeats, John Betjeman, John Keats and Dylan Thomas.

T.S.Bleedin' Eliot? Impenetrable,exotic, esoteric, academic, he may be the choice of an intellectual minority, but national favourite? Never in a million years. John Donne, now there's a truly great poet whose works are on a bookshelf in this room. Benjamin Zephaniah is by all accounts a decent enough chap but he doesn't come within a country mile of Donne. Owen is accessible and moving, Betjeman a lightweight, more vaudeville than serious poet. Keats, along with the other romantics, eased my teenage years (but he knew bugger-all about wine; 'beaded bubbles winking at the brim' and a 'purple-stained mouth' suggest that he needed to try a new off-licence.



As I go about my business tomorrow I shall ask a few random people if they can name a single Eliot poem, and if they can, to quote me a line of it. And if anyone comes up with 'Cats', a self-indulgent piece of tosh patronisingly tossed off by a bored old academic, I may not be responsible for my actions.



Mind you, many of the greats could falter. Even Wordsworth perpetrated this:-

SPADE! with which Wilkinson hath tilled his lands,

Harrumph!

The Arthur Daley Principle

I have blogged on numerous occasions about the rapid growth in asset confiscation, mostly under the Proceeds of Crime Act, known as POCA in the trade. It's a complex issue, and one about which I have mixed feelings. Of course we all remember that the Feds could never touch Al Capone for racketeering, but finally nailed him for tax evasion. No one could seriously dispute the justice of confiscating the cash in a drug dealer's attic, or the Essex hacienda with £150,000 worth of wheels behind the electric gates, whose owner has never declared more than £35,000 a year income. Rough justice, but justice it is, I think.
My misgivings arise, as so often, with the mission creep that has characterised this Government's approach to the justice system. The amount of cash that has to be justified to avoid its seizure has steadily dropped until it now stands at just £1000. As I wrote a few weeks ago, small-fry immigrant workers who have slogged their guts out have had their wages seized at the airport because of a visa irregularity, the final insult being that they have already paid tax and insurance on the cash. The court proceedings are civil ones, which lowers the standard of proof and also means that legal aid is not available. My real bottom line on the Bench is of course the law, but not far behind that is the question "Is this fair?" A man from one of the Whatever-Stans who speaks basic English and doesn't really know what's going on is no match for a barrister instructed by Police or Customs. That's not fair.
But there's more. This piece in The Times refers to the now-usual practice of divvying up the seized cash between the investigating agency, the courts' service and the Treasury. That's wrong (and yes I know it happens with speed cameras too). While there is not the slightest financially driven pressure on the bench, it is still improper to treat the cash this way. Seized funds should be paid to the Consolidated Fund (HM's Big Piggy Bank) and the agencies be allocated enough cash to do their job and no more. To do otherwise will skew priorities, harm justice, and eventually lead to corruption. I expect her Majesty's Government to operate under a higher set of principles than those of Arthur Daley.

Back to School Lads

The Daily Mail, in a piece attacking Tony and Cherie Blair, who just might become President and First Lady of Europe says, under two Photoshopped pictures of the Blairs in appropriate costume,

With Tony Blair's bid for presidency he has been likened to Napoleon, with Cherie as his Antoinette

Er - doesn't the Mail have a single staffer with so much as a Grade C GCSE in History? Napoleon was a revolutionary who made himself Emperor. Marie Antoinette was not his wife, but an aristocrat who married Louis Seize and was guillotined for it in 1793.

Knee-Jerk

Some months ago I said:

Anyone who saw tonight's documentary about Holloway will understand the awesome power of the tabloids - a single rant about a Halloween 'party' in the prison prompted Straw to intervene and forbid any more events like it. The prison's staff had to spend the best part of a day away from their real jobs in a damage-limitation exercise.

Libby Purves returns to the subject in The Times. The whole issue just confirms how malign the influence of the sensationalist press can be.

Decision Time

You are on the bench on a wet Tuesday in November. Traffic was bad, and somebody has nicked the last chocolate biscuit from the tin.
It's a trial. A woman in her fifties has been charged with failing to stop and report an accident. Apparently she hit a parked car, and then left the scene after calling her name out, saying 'you know where to find me'. She obviously did stop as she left the scene on foot, so the issue is whether or not she gave her particulars to anyone who reasonably required them.
Her barrister tells you that her picture has appeared in the press and on TV on most days in the last year, so calling out her name was sufficient. Her business address is a well-known one in SW1.
So can she be guilty under S170(4) of the Road Traffic Act 1988?

(any resemblance to a current case is purely coincidental, of course)

Interesting

I see that David Cameron has given his new pals at The Sun a list of his Top Ten Pledges, one of which is to double magistrates' sentencing powers from six months imprisonment to twelve. That should please the MA, but it won't have much effect on crime, although it might take pressure off the Crown Courts, that are currently struggling with their workload in many places. A substantial proportion of the cases that JPs commit to the Crown Court end up being sentenced within the lower court's existing powers anyway.
A more urgent task, as I said the other day, is to sort out the tangle of sentencing, to stop misnaming sentences as 'life' when they are not, and to reform parole remission and early release so that a sentence means what the judge or magistrate says it does.

Welcome To The New Kid On The Judicial Block

Welcome to the newly sworn-in Justices of the Supreme Court, pinnacle of the courts' system, from a humble practitioner in the down-and dirty end of the judiciary. There are to be 12 Supreme Court Justices, each paid something north of £200,000 a year, in contrast to the 29.000-odd Justices of the Peace who don't get paid at all.
The new Justices have today taken the very same oath that my colleagues and I have taken. Good luck to them all, and I hope they have as much fun as I do. I bet they get nice biscuits.

This
just rubs it in.

Clamping And The Law: Guest Post

Our regular contributor Peter Hargreaves has taken the trouble to have a good look at the law relating to clamping, a subject that often makes me cross because of its frequent unfairness and the fact that most politicians are indifferent to the abuses that take place. Peter's piece is a long and thorough one, and well worth a read.
---------------------------------------------------------------------------------

Vehicle Immobilisation

This is a general article about the law relating to clamping of vehicles and the views expressed are mine alone. Persons affected by clamping activities are advised to seek appropriate legal advice since much will depend on the exact facts of the case.

Introduction

CLAMPING (or some other form of vehicle immobilisation) happens to the vehicles of hundreds of people each day in England and Wales. It can happen on private land as well as in public places and it is big business. Whilst parking in public places operates under a statutory regime (Traffic Management Act 2004), parking on private land is largely unregulated. Politicians would be unwise to ignore the public anger which continues to build over this issue. Although changes to the law were made by the Private Security Industry Act 2001

The law is still perceived to be unfair to the general public and to be too favourable to the clampers. The main change under the 2001 Act was the introduction of licensing of those who carry out clamping. The Automobile Association (AA) has referred to private parking enforcement being “out of control”. The government has made proposals to bring all “clampers” within a Code of Practice but the AA argues that it will not work.

It is difficult to see why government cannot bring private clamping activities under the detailed control of the law rather than relying on codes of practice. There appears to be a lack of political will to do so.

Private land “owners” often permit drivers to park when, for example, using the owner’s business premises. Provided the driver parks within the permitted terms then he will not be a trespasser and the vehicle should not be clamped. Indeed, to clamp a vehicle which is parked within the permitted terms would be a trespass (to goods).

The civil law relating to clamping was considered by the Court of Appeal (Civil Division) in Vine v London Borough of Waltham Forest.[2000] EWCA Civ 106.


In the Vine case, the earlier case of Arthur v Anker and another [1997] QB 564 is discussed.
The Vine case

The appellant in this case was Helen Vine. The respondent was a local authority (Waltham Forest). The local authority had engaged a contractor who carried out clamping activities on certain private land near to a railway station. Vine had been to a medical appointment at which she received bad news. Whilst driving home she was distressed and felt unwell. Accordingly she pulled on to the land and parked, got out of her car and went to a nearby hoarding where she vomited. She was out of the car for about 4 minutes during which time her car was clamped. There was a sign warning drivers that clamping was in operation. The sign was yellow in colour and was placed about 10 feet high on a wall. At trial the judge found as a fact that Vine had not seen the sign. It was on the basis of that finding that the Court of Appeal held that Vine had neither consented to nor voluntarily assumed the risk that her car might be clamped. The local authority was therefore liable in trespass.

The judgments suggest – but do not finally decide – that where an “ordinary and sensible person” (per May LJ) would have realised that clamping was possible then drivers would generally be taken to have the required knowledge so that clamping would not be a trespass. There would have to be adequate signage – “prominent and clearly positioned and displayed” (per May LJ). It might also be inferred from the facts of the case that those operating clamping would be well advised to have more than a single prominent sign.

Since the Vine case, clamping has become a very commonplace activity and it may well be that some very particular circumstances would be required before a court is likely to find that a driver parked without the necessary knowledge.

The Arthur case

In this case it was found that Mr Arthur parked with full knowledge of the clamping. There was adequate signage warning of the clamping. Sir Thomas Bingham MR said:

“The act of clamping the wheel of another person's car, even when that car is trespassing, is an act of trespass to that other person’s property unless it can be shown that the owner of the car has consented to, or willingly assumed, the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.”

Earlier in the Arthur judgment, Sir Thomas Bingham Mr had said:

“I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here.”

Those remarks were clearly obiter dicta but, it is submitted, would be followed by subsequent courts in view of the good sense which they clear contain.

Other legal avenues?

It is hardly surprising that aggrieved persons are seeking other legal possibilities in their attempts to curb the activities of clampers but few such avenues are at all clear in their applicability.

Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

There has been some suggestion that the Consumer Protection from Unfair Trading Regulations 2008 might offer some protection to parkers. The regulations are here

and guidance has been made available.

Any possible use of these Regulations in relation to clamping remains to be tested in the courts. The Regulations implement Directive 2005/29/EC (The Unfair Commercial Practices Directive).

The Regulations are difficult but are clearly aimed at what might be colloquially referred to as “sharp practices” between traders and consumers. Regulation 2 is a lengthy interpretation section and is mandatory reading for anyone trying to understand the regulations. A key definition is that of “commercial practice” and it will be seen from the definition that a direct connection is required between what the trader does and the “promotion, sale of supply of a product to or from consumers ….” [Note: words such as “trader”, “product”, “consumer” are also defined in Reg. 2].

Unless some act (etc) comes within the definition of “commercial practice” then you do not even get to first base with any of the possible offences created by Regulations 8. In my view, clamping activities do not related directly to products and so the clamping activity would not be a “commercial practice” within the meaning of the regulations. Even if I am wrong about this, the clamping would not be “unfair” (Reg 3) or “misleading action” (Reg 5 or “misleading omission” (Reg 6) or even “aggressive commercial practice” (Reg 7) since aggressive practice has to be directly connected with the promotion, sale or supply of a product.

Other offences?

Certainly those “companies” who engage in clamping would do well to adhere to the Companies (Trading Disclosures) Regulations 2008 , but these regulations do nothing to address the issue of individual (sole trader) clampers and many clamping activities are conducted by such individuals.

Yet another suggested angle is the Unfair Terms in Consumer Contracts Regulations 1999
, but these are clearly concerned with contractual situations – (essentially contractual terms in “standard” take it or leave it type contracts) - and, in any event, there is no contractual relationship between a clamper and the driver.

Would the Protection from Harassment Act 1997 offer any protection? There may be some situations in which it might but it is hardly likely to assist at the actual place where the car has been parked or at the time when the driver is trying to get his car released.

It has also been alleged that some clampers engage in fraud contrary to the Fraud Act 2006 – particularly section 2, and some forms of conduct might be caught by this – e.g. making a false representation that a “tow vehicle” has actually been called out and, as a result, an additional fee is required.

Of course, anyone clamping vehicles without a licence is committing an offence under the Private Security Industry Act 2001.

It has also been mentioned that clampers might be issued by the magistrates’ courts with anti-social behaviour orders. Given that only certain types of applicant are permitted (e.g. local authorities or the police) this possibility seems unlikely though it seems that Windsor is considering the idea.

The Private Security Industry Act and The Security Industry Authority
The Private Security Industry Act 2001 sets out rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and prescribes penalties for breaches.
The act set up the Security Industry Authority .

Alleged illegal activity may be reported to the SIA via their website and it is possible to check whether any individual is licensed. Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.

What needs to be done?
The balance of the law seems to be tipped against the driver and it is difficult to disagree with the Automobile Association that the latest Code of Practice planned by government is unlikely to work satisfactorily. Tighter legal regulation is required akin to that applicable to parking in public places. This would build on the existing requirement for clampers to be licensed. Fees need to be regulated and kept within reason and there should be a truly independent adjudication mechanism through which redress could be obtained in appropriate cases. Of course, many would prefer the system for England and Wales to be the same as that in Scotland where clamping of vehicles parked off-road is basically illegal.

Peter Hargreaves
September 2009.