"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.