Sorted!

At last the Government has come up with the answer to drink-fuelled misbehaviour on our streets. It's reported in The Independent today.
The Mags' Association thinks, as do I, that the measures will prove to be unnecessary and useless as there is a vast body of law already in existence that will deal with these offences. As for the potential fine of £2500 for breaching the order; don't make me laugh. In practice, and in line with the Guidelines, the highest likely fine for someone who is not working (i.e. most of the courts' customers) is around £200.

Hard to Credit.

Thanks to Jerym Eedy for this press report.
If this is true, and if there are no facts that we have not heard, the decision to caution is a dreadful one. This kind of offence (if properly charged by the CPS) would normally be sent to the Crown Court.

Later... This report speaks of Conspiracy to Commit Burglary - an indictable-only offence that magistrates cannot deal with and has to be sent up to the Crown Court. But this one wasn't. Usual caveats about press accuracy apply.

Snippet

Man takes oath. Usher hands card to him, but he hands it back with an apologetic smile - "sorry sir, I can't read." Before the usher had time to read the words to him the man looked at me and said brightly: "I can speak Latin though." Noting my stunned look he said: "it was a Catholic school I went to."

From Our Media Correspondent

Our Man With The Grubby Raincoat And A 10p Bic Writes:-

James Murdoch, the heir to his father Rupert’s global News Corporation empire, tonight accused the BBC of undertaking a “chilling” land-grab of the media that posed a “serious and imminent” threat to the future provision of news in Britain.

Murdoch junior, who is News Corp’s chairman and chief executive for Europe and Asia, warned that the dominance of the BBC risked creating the type of news media which George Orwell described in the novel 1984. “As Orwell foretold, to let the state enjoy a near-monopoly of information is to guarantee manipulation and distortion,” he said.

He's right, you know. What the BBC needs is urgent reform so that it can be as free from 'manipulation and distortion' as, say, 'The Sun'.

A Bit Harsh

The Proceeds of Crime Act (POCA) allows the detention (usually for 90 days at a time) and eventual forfeiture of cash and property found to be the proceeds of crime. At one time this only happened with drug money, but nowadays it can be the proceeds of any unlawful conduct. When the police search the home of a drug dealer, or a prolific burglar, or whatever, and find a pile of cash in the loft then the chap is going to lose it. Another type of seizure can occur when, say, the owner of a cash business is found to be in possession of cash that has been skimmed off the takings and not gone through the books. Tax evasion is unlawful, hence the cash is liable to be seized. The proceedings are civil in nature, so Legal Aid is not available, and we are frequently faced with confused people whose first language is not English, who struggle to understand the proceedings. As a result these cases can often take some time to deal with, and multi-day hearings are common.
We dealt with a case the other day involving a man from a non-EU country to the East. He had a substantial sum of cash on him, and he claimed credibly that he had earned the money working on construction sites. He had a National Insurance number, and had paid tax and NI on his earnings. But here's the catch: his visa wasn't in order, therefore he had no right to work in the UK. Therefore the cash was unlawfully obtained, and we were obliged to seize it. It seems a bit unfair to take a man's hard-earned wages, especially when he has paid tax on them, but that's the law. Over coffee, we were comparing his plight with some of our regular customers who spend most of the day on their sofas, watching daytime TV or playing video games, while smoking dope. It's a bit ironic that our Easterner's tax went to pay for the sofaholics, isn't it?

Nice Try...

We reviewed a lad's Suspended Sentence Order a couple of weeks ago. Our DJ had imposed the sentence and ordered periodic reviews; this is a good idea, but tricky with a lay bench. DJ wasn't in, so we did it. Young man had made good progress, keeping his appointments and showing positive behaviour on site. "So far, so good" I said, before announcing a further review that will be in front of the DJ. Laddo raised his hand (as they do) and said "can I ask something?". "Yes" I replied, in my ever-helpful way. "Do I get any time off my unpaid work for this? I've wasted a lot of time today".
I caught the eyes of a row of case-hardened local briefs, all of them grinning from ear to ear. "You can ask the District Judge when you come back", I said. "But I wouldn't hold out too much hope". Knowing nods from assembled briefs.
If he has any sense he won't try that one on next time, but I wouldn't put it past him.

From The Home Office Website

From 30 September courts will have greater freedom to grant restraining orders when abusers appear before them, giving victims immediate protection and sparing them the ordeal of a separate civil action.
Currently courts can only issue restraining orders following conviction for two types of offences: harassment or putting someone in fear of violence. Under the new rules an order can be made following conviction for any offence and even where someone is acquitted in order to better protect victims. Breaking the terms of a restraining order is a criminal offence punishable by up to five years in prison.

I am fully aware of the nasty reality of domestic violence. I have read the relevant research, I have done all the training that has been offered to me and I have chaired a good few DV trials, hearing detailed evidence of violent domestic attacks, that are often the culmination of a systematic course of ill-treatment. But for all the training and the awareness I refuse to swerve from the path marked by the 'Golden Thread' of the presumption of innocence. Criminal allegations must be proved beyond reasonable doubt or the defendant is entitled to be acquitted - even if it is a DV case.
It now seems that acquitted defendants might nevertheless be made subject to a restraining order with criminal penalties for breaching it. So we say "You are not guilty of the offence, but we are going to impose this order because we think you might do something soon".
The slippery slope gets steeper and more slippery by the day.

I Really Don't Know How To Start With This One

(from the Daily Mail)

Magistrate Iris Josiah is suing the Ministry of Justice for £75,000 after she was suspended over racism claims

A black magistrate who was victimised after highlighting alleged racist treatment of black defendants is set for a payout of up to £75,000.
Iris Josiah, 50, said that there was a 'culture of unfair practices against black defendants'.
She alleged her fellow lay justices were routinely 'hostile' towards black people and convicted them on slim or no evidence.
The magistrate added that they were also jailed for longer terms and were more likely to be sent to prison and refused bail than white defendants.
Ms Josiah, a former councillor in Haringey, was unlawfully suspended by court bosses after voicing her concerns about her colleagues' racism.
Even after it was decided that she should be re-instated, it was another four months before she was allowed to resume sitting on cases in Enfield, north London - and she was out of action for almost a year in all.
Stratford Employment Tribunal in east London made no ruling as to alleged race bias by magistrates.
But it today upheld Ms Josiah's claim against the Ministry of Justice that she was victimised after complaining of race discrimination.
She is now demanding punitive damages, aggravated damages and compensation for hurt feelings and is set to be awarded up to £75,000.
But Ms Josiah failed in her claims that she suffered a seven-year campaign of racist bullying and harassment by colleagues.
The tribunal also rejected her claim that she was overlooked for promotion to the post of court chairman on grounds of race.
In its judgment, the tribunal panel noted that Ms Josiah's allegations were "serious".
It stated: 'It is, clearly, very important that a magistrate treats black defendants fairly and without bias.'
It went on: 'An important purpose of the provisions under the Race Relations Act on victimisation is to provide protection in the workplace for individuals that make complaints of race discrimination.
'In her letter she made a complaint of race discrimination and harassment during the last seven years whilst serving as a magistrate.
'Various of the claimant's allegations concern being prevented from sitting as a magistrate.
'These include the allegations as to being requested not to sit as a magistrate; being suspended from sitting as a magistrate; being removed from a part-heard case; and as to the delay that occurred between being informed that she could resume sitting as a magistrate and being given sittings.
'The claimant was less favourably treated than someone that had not carried out a protected act.
'We do not conclude that the less favourable treatment was caused on the grounds of racial, national and ethnic origin.'
Ms Josiah's case was backed by the Equality and Human Rights Commission.
Her solicitor Lawrence Davies, of law firm Equal Justice, said today: 'Only a very tiny fraction of the victims of alleged race discrimination complain to tribunals about it because of the fear that they will be victimised if they do.
'This case illustrates that the justice system itself harbours those who victimise alleged victims of racism.'
College lecturer Ms Josiah, of Palmers Green, north London, became a JP at Enfield in 1995 and was, for many years, the only black magistrate sitting on the days she worked.
The mother-of-one, who is of Antiguan-origin, said: 'In the immediate years following my appointment as a magistrate, I witnessed the hostile treatment of black defendants by some fellow magistrates.
'It included harsh remarks, severe sentencing, disregard for personal mitigation and easy findings of guilt, irrespective of evidence.
'They were most likely to be refused bail and most likely to be sentenced to prison.
'I felt this needed to be discussed and resolved.'
Ms Josiah said she confronted some of her colleagues over their unfair treatment of black defendants.
'The cumulative effect of the systematically unfair manner in which I have been treated has been extremely painful and humiliating,' she said.
'On many occasions I have been minded to resign from the magistracy but with the support of my family have continued.
'I have no doubt that I have been victimised over the years for raising concerns of racial discrimination against black defendants.'
In January 2007, Ms Josiah was accused of saying 'I'm sorry' to a defence barrister in court after their client was convicted.
Despite her two co-magistrates and the defence barrister reporting that they had heard nothing, Ms Josiah was formally investigated.
She raised her formal complaint of race discrimination in February 2007.
Ms Josiah was then told she was being suspended until her disciplinary matter was resolved.
She was cleared that summer but was not able to resume sitting on the bench until January 2008.
A Ministry of Justice spokesman said: 'The Lord Chancellor is carefully considering the decision and reasons given by the employment tribunal and will, if necessary, investigate and take appropriate action.
'Any part of the justice system should be a place where people want to work, feel valued and are treated with dignity, fairness and respect.
'The Ministry of Justice has clear set standards of expected behaviour for its own staff and takes a tough stance on bullying and victimisation.'

One Man's View

From a letter to the Daily Telegraph:-

Disgusting magistrates

SIR – I was shocked and disgusted to see an ignorant and offensive attack on police officers by the Magistrates’ Association (“Don’t trust the police with £60 fines, warn JPs”, report, August 18).

The association’s chairman, Chris Hunt Cooke said that “faced with the choice of the heavy burden of taking the matter to court and the simplicity of issuing a fixed penalty, it is certain many police officers will opt for a fixed penalty, however bad the driving may be”. This suggests that police officers will not deal appropriately with serious offences on the road. Nothing could be further from the truth.

We are not against fixed-penalty notices, but we do not see them as the sole solution to tackling all crime. Police must be allowed to use their discretion to determine whether the offence warrants an instant fine or sending to court.

Regrettably, over the past decade we have seen a government obsessed with creating more and more out-of-court disposals. This increases pressure on front-line officers to opt for a solution that fails the public and results in a dumbing down of the criminal justice system.

It is the criminal justice system that needs urgent review and the Magistrates’ Association would do well to recognise that rather than to pass on blame for its failings.

Alan Jones
Police Federation of England and Wales
Leatherhead, Surrey

Memory Lane

The news that Peter Mandelson, the Lord-High-Everything-Else, has had medical attention to his prostate puts me irresistibly in mind of the late (and poisonous) Evelyn Waugh, who said, on hearing that Randolph Churchill had had a non-malignant growth removed: "It is a typical triumph of modern science to find the only bit of Randolph that is not malignant, and take it out".

Some years ago Tony Benn suffered a rare neurological complaint, now happily cured, that put him on crutches for a while. A House of Commons wag said: "This is the first time in medical history that they have called in a brain surgeon to treat a pain in the arse".

Ave Atque Vale

Later:
The blog is back up and I have restored the sidebar link. AP has now had the pleasure of reading his own obituary, a privilege granted to few of us.
------------------------------------------------------------------------------------
I am sorry to see that the Anonymous Prosecutor's Blog has been taken down today. One can only surmise that he wasn't as anonymous as he thought he was. Shame; it was a good read and the prosecutors' point of view is a valuable contribution to our understanding of the criminal justice system. Perhaps someone will fish AP's posts out of the great cache in the sky - I'll be happy to put in a link if so. (Now done - ed)
When I first started this blog there was a deal of alarm among management, senior judiciary, and even the MA. I hope that I have dispelled any fears and that I have done some good and no harm, but I have never kidded myself that my anonymity was strong. Any second-term computer studies undergrad could track me down in no time, and with the Government's eavesdropping resources the authorities could probably find out what I had for breakfast if they wanted to. To save expense, I can say that I had porridge, kippers, and a cup of builders' tea.
When politicians blather about openness and transparency, and, yes, community involvement I immediately think of their Stalinist reaction to people in the system who try to shine a little light into their own dark corners.

A Bit More About Careless Driving

Just a few thoughts about the MA's reaction to the proposal to make Driving Without Due Care and Attention a £60 plus three-point fixed penalty:-

1) With speeding or jumping a red light the offence is clear and easy to assess. The police themselves have a cut-off speed above which they send a case to court, because the court has powers to impose penalties that the police cannot.
2) Careless Driving covers a very wide spectrum of behaviour, from a low-speed parking bump right up to taking a corner much too fast, spinning off the road and demolishing another car before hitting a tree. That is why the law allows us to impose between three and nine points or to disqualify in bad cases. Assessing seriousness is a job for a court.
3) The ACPO spokesman refers, inevitably, to the fact that fixed penalties are cheap. So they are, but I am talking about justice.
4) We are told that the huge increase in out of court disposals to over half of cases has freed up police officers to deal with serious crime. That explains the recent phenomenon of police patrols appearing everywhere in our towns and cities then?

Pussycat Comes Out Of Cage

The Daily Telegraph leader today reflects recent vociferous lobbying by the Magistrates; Association :- It's here.

It's gratifying to see the MA getting its claws out more often these days. They are certainly spot on as far as this report goes.

Loophole? Er- No.

I mentioned the other day that I spent a bit of time on the other side of the bench recently and I have just remembered an interesting exchange that I overheard. While the bench was considering 'our' case the CPS counsel was approached by the prosecutor from upstairs, who handed him a case file. "It's my morning excess alcohol trial" he said. "It's going to be a plea. It's one of those Northern loophole outfits who were going for the 116 (police station breathalyser) procedure but they have viewed the DVD and their client's instructions were wrong and it's all in order".
So the client will have faced the hefty fees of a so-called loophole specialist, including travel costs, and will have received only the reduced discount that is available for a late guilty plea on the morning of trial. An expensive lesson, I fear.

Breach Loaded

Every week or two we lay on a Breach Court to deal with people who have failed to carry out their community orders as instructed. These days breaches are mostly brought back to court in just a few weeks, so we see quite a few of them. Probation prosecute, and usually make a recommendation to the court, although the decision is entirely up to the bench. Two unacceptable failures, such as failing to turn up to an appointment, will bring on breach proceedings.
For a first or minor breach we will make the order more onerous, such as by adding on hours of unpaid work. For more serious breaches we may be invited to revoke the order and then re-sentence for the original offence. In the case of a high level order the new sentence might well be a custodial one. If the order has been part-completed it is reasonable to take account of what has been done, but for the real no-hopers prison may be inevitable.
Occasionally we are asked to revoke an order for good progress, and it can be gratifying to give the offender a pat on the back and send him on his way. Very occasionally we come across a case where we do not think it appropriate to bump up the sentence; unfortunately the law says that we must, so the invaluable Ways and Means Act is invoked, and we impose some milk-and-water requirement such as a one month's residence condition. Boxes ticked, job done.

A Very Personal Issue

The likely release of the convicted Lockerbie bomber has resonances with that of Ronald Biggs, although their crimes were not in any way comparable.
Just after I graduated the Northern Ireland situation escalated from protest to insurrection, so along with other people of my generation I am well used to atrocities. I lived through three decades of terrorism, reading, in all, of the deaths of more than three thousand people, and the maiming of many more. I had a friend, now dead, who was an intelligent Oxford graduate who worked for IBM. He was Irish, and had been educated by the Christian Brothers. I met him in the pub after work one evening when I was still filled with disgust at the latest BBC report of an IRA bomb that had killed a number of innocent and harmless office workers as they ate their lunch, and blown off both legs and one arm of a typist. I was shocked and angry, but my friend, displaying that weaselly ambivalence that Gerry Adams made his own, would not say that the bomber was wrong. I didn't understand the situation, he said. Were he alive today I would love to ask him how he felt about the London Tube bombings, whose perpetrators were just as callously sincere as the IRA hard men.
I supported the Good Friday agreement with a metaphorical peg on my nose. Some loathsome sadists who had inflicted untold misery on innocent men women and children were freed. That would stick in anyone's throat - but we have to accept that because of that agreement there are hundreds of people alive today who might otherwise have been murdered in the pursuit of insane sectarianism.
The dead cannot speak. Some - a minority - of the relatives of victims of Lockerbie and Enniskillen and elsewhere have expressed not so much forgiveness of the perpetrators, as a belief that things should now move on. Many of them are Christians, following the teaching of that well-known Nazarene troublemaker. What you or I think about it is personal. During the IRA insurgency many voices were raised calling for the abandonment of British standards of justice and freedom. I was proud then, and I am proud now, that my country carried on (mostly) playing by the rules while those who despised our freedom took advantage.
And that is why, in the last analysis, I am prepared to feel compassion for someone upon whom age and disease are wreaking their havoc, whatever he may have done in earlier days.
Like I said, it's personal.

Another Odd 'Un

I spoke the other day to a colleague from another court who had just dealt with a case of careless driving and failing to stop and report an accident. The two vehicles involved were a diesel baggage tug and a Boeing 747-400.

Don't see those every day.

If You Thought Fawlty Towers Was Fiction........

This is way off topic, but I have to post it.

We have two young guests staying with us at the moment. One is a nephew of 13 from the Midlands and the other is his Spanish friend of about the same age. We took them to Brighton today, where we did the usual seasidey things before setting off for home. We turned into a branch of a well-known pub-restaurant chain. They were busy, but we placed our order and sat down with a drink to await our food. 55 minutes later, and more than an hour after our arrival, the food arrived. One young guest pointed out that his chips were cold, as they indeed were. So were the other lad's, and so were mine. My 8 oz medium-rare rump steak was in two pieces, well-done, and cold to match the chips. I called for the manager, and I told him, in a reasonable manner, what was wrong. He was totally professional, immediately apologised, and told us that the whole meal would be free, as would our choice of desserts. I said that I was happy to pay for the drinks. While this was going on my wife was eating her chicken-with-some-kind-of-pineappley-rice dish. This was reasonably hot, but unfortunately contained not a shred of chicken. Since the meal was now free, we were going to leave it at that, until my wife held up her fork on which laid a piece of soggy paper, that I flattened out onto my napkin. It was the defrosting and microwaving instructions for the factory-prepared rice that had found its way into the dish, which is more than the chicken had done. I walked over to the manager who looked alarmed, and I said: "I'm fine, don't worry, you have handled things all right, but you ought to see this". The poor sod looked stunned, and called over his deputy, who took the evidence and marched off to the kitchen.
She decided to serve the free puds herself (I had coffee, having somehow lost my appetite) and called over a waitress to clear our table. The first thing this girl did was to knock my wife's wine glass. The deputy's hand shot out like a striking snake, and just stopped the lot from dropping into Mrs.B's lap. She sat in an adjacent chair and said: "You won't believe this, but we are not usually this bad. I am just going out to type a letter for you to come back and have four free meals on us. I will also cancel your payment".
The managers were professional, and followed the golden rule of apologising straight away. My free meal, plus my upcoming free meals will cost the restaurant well over £100, so if you see in the papers that the cooking and waiting staff of a Berkshire pub-restaurant branch have all been found murdered, I think I will know who did it.

A Different Point of View

I recently attended a court some way from my own to sit with a friend who had a little bit of low-level bother with his neighbours. It was a civil matter, and all was settled to everyone's satisfaction. Although I have spent thousands of hours in court, I rarely see what goes on when the bench retires, and it was interesting to see things from the customers' point of view.
Even though the matter was a minor civil one, with no possibility of any criminal sanctions my friend was seriously apprehensive, and even I felt a little bit of tension myself. The court waiting area was stark and uncomfortable, and would not have been out of place in the 1960s DDR. The court clerk, the usher, and the prosecutor were all approachable when I briefed them on the approach we were going to take, and we were called on quite quickly, by about 10.20. Inevitably, the CPS counsel was at sea, because the case had been sloppily prepared, and he had never seen the file before. The summons was under a particular enactment, but the sticker on the front of the file referred to an either-way offence, which this was not. He couldn't find the Act in Blackstone's either, but the clerk looked it up for him in Stone's Justices' Manual. The matter had taken 14 months to get to court and in that time nobody had reviewed the file properly, probably because it was not terribly serious. The Bench filed in and we all stood up. The prosecutor presented the case as I had hoped, and my friend handed in the written mitigation that we had prepared, three copies for the bench of course, and one each for clerk and CPS. The chairman asked my friend some well chosen questions, the clerk read out the relevant bit from Stones, and the bench went out. My friend started to look worried, so I had a bit of a chat with CPS counsel to lighten things a bit. Then the bench came back with exactly what we were hoping for, and best of all the CPS only applied for £60 in costs. I think that an outsider would have got the impression that justice was done. Shame about that waiting room though.

Better Late Than Never

The old,sick, prisoner Ronnie Biggs is apparently to be released.
He was too dangerous to be released a few weeks ago, but now Jack Straw, in his infinite mercy and wisdom, is prepared to let Biggs die in (relative) freedom - well, as free as any man can be on his deathbed, that is.
Die easy, old man. You are beyond the reach of British Justice, and now face, if you believe in that stuff, a higher tribunal.
Sleep well Mr.Straw.

Outsider's View

I dropped by the courthouse the other day with an old acquaintance who has reached his ninth decade, but who has never, until this week, seen the inside of a court. He was genuinely shocked - at the people in the waiting room, at the proceedings in the courtroom, and at the very thought of a cell.
Those of us in the trade take the whole thing for granted, but my friend's visit was a useful reminder that the vast majority of the public have, as is proper, no idea of what goes on in their name, and can live to a great age without any experience of being a defendant.

MPs on CPS - Not Impressed

The House of Commons has had a look at the working of the CPS. The report's conclusions won't surprise anyone working in the system.

Unbalanced

I suffered a sudden surge of irritation when I read this 'Rebalancing' is a very Blairish word, although I suspect that Lord Mandy has had a hand in popularising it. Scales either balance or they don't. If you fiddle with them by shifting the fulcrum, they aren't rebalanced, they are tilted permanently to one side or the other. A better word would be to 'bias' the system.

From Rumour Central

I have spent a little pub time this week with a defence brief or two, a couple of clerks, and an HMCS management type.
The smart money is on:-
No changes to courthouses until after the election, and no money to spend afterwards. Consolidation of the 30-odd courts in London won't happen in fewer than 10-15 years, if ever.
Best Value Tendering will stay on the back burner for several years. A new Government, however skint, may not have the stomach to destroy the Legal Aid system.
Community Courts will wither on the vine; we all suspected that they didn't work, now research appears to prove it.
The trend to Justice-lite. with cautions and suchlike, will slow, as those in power realise the limitations of the approach, and the public realise that 'offences brought to justice' statistics are utterly bogus.
The political class will continue to refuse to acknowledge defeat in the 'War on Drugs' and drug use will continue to increase across all classes.

It's A Lonely Place

There are few places more lonely than the witness box, as you stand there under the stern gaze of the Bench, facing cross-examination by a barrister who knows his job.
This week we saw an experienced police officer being expertly dismantled by the defence brief. The officer was completely at sea - and it wasn't his fault.
The case is too fresh to go into any detail, but the basic problem was that the defendant was facing the wrong (not specially serious) charge, and the PC had no way of knowing that. Seemingly-irrelevant questions that the officer answered frankly gave the defence all the ammunition that they needed for a successful submission of no case to answer. At the end of cross-examination the prosecutor re-examined, as was his right, and we could sense him desperately trying to get the 'right' answer out of the officer without, of course, leading him. In the end he looked at the bench and said "I'm not going to get the answer I want, sir. I shall leave it there". Game over.
There are now so many overlapping laws that the police and the CPS simply became confused by this case. The defendant was guilty beyond a doubt - but not of the offence he had been charged with. I feel a bit sorry for the officer, because he left the court straight after giving his evidence and probably has no idea what the questioning was about, and why the prosecutor threw his hand in.

The Good Old Days?

Parliament's reputation is at something of a low ebb these days, partly because of the MPs' expenses scandal, and more seriously because of the steady attrition of Members' power as Government increasingly sidelines Parliamentary debate in favour of hastily cobbled-together secondary legislation. Much of the damaging and useless legislation that has been foisted on us in recent years would have been a good deal better if it had received proper Parliamentary scrutiny.
But before we get too misty-eyed about the old days, it's worth having a look at some of the stuff discussed by an earlier generation. This Hansard extract from the 1950s includes a contribution from the late Barbara Castle, mentor to Jack Straw. She was a left wing firebrand, and I doubt that the young Barbara would have approved of her protégé's authoritarian streak.