A Verdict That Justifies Juries

This is a report of a Jury's decision. I have no comment on the case, other than to observe that it is a textbook example of why the jury system exists and should exist for the future.

Keeping Schtum

"Thou shalt not grass" is the First Commandment among the criminal classes, as it is, albeit more elegantly expressed, among boys at expensive schools. In Sicily they call it Omerta.
There are countless situations in society where sealed lips are mandatory. The priest in the confessional, the solicitor with his client, the doctor with his patient are everyday examples. Much official business is protected by secrecy, as are the doings of gentlemen's clubs, Freemasons and, for all I know, the Flat Earth Society. Judicial discussions between members of a bench must never be revealed to anyone.
I have attended many meetings where we have accepted Chatham House Rules, which allow free discussion, but oblige participants not to repeat others' words outside. Top of the tree are Privy Councillors who are bound to keep confidence about all of the many secrets that are revealed to them; this allows for uninhibited debate among people who might be opponents in a different context.
So all of this helps to oil the wheels, and makes for sensible governance - so long as it is not abused to deceive the public.
That's why it is such a shame that the death of Blair Peach led to a closing of police ranks that resulted in a successful conspiracy to defeat justice. Don Corleone would be proud of them if they were his soldiers.

Legal Aid - A Guest Blog by Learner

Legal aid is clearly a target for further cuts. The proposed executive agency under the MoJ makes it even more subject to ministerial control and inevitably an easier candidate for cost cutting.

The current spend is about £2bn p.a but what is not well known is that almost half gets spent on a mere five percent of court cases. The magistrates courts, well known to readers of the Magistrate's Blog, account for 95% of criminal prosecutions yet incur about 55% of the £2bn. The rest is spent on long, high profile trials in the higher courts. 5% of the cases gets 45% of the spend.
So what happens in the magistrates' court is that we have to spend more time to assist the unrepresented defendant, slowing down the courts and adding expense. If ever there was a case for a proper cost benefit analysis, this is it. And just in case the bureaucrat who did it last time reads this, please allocate some element of a cost to the time attributed to the magistrates themselves as well as the court. Even though the mags cost little, we do deserve to be considered!


(Learner is a long-standing friend who has been a JP for over thirty years)

The Dog That Didn't Bark In The Night

As the General Election campaign enters its last week there has been little or no mention of one of the most significant legacies of the New Labour years; the erosion of liberty and the increasingly authoritarian way in which we are governed.
Thousands of new offences have been created, and many of these are enforced not by courts but by various levels of public servants. More and more organs of the State have been empowered to levy penalties on the citizen. Only about half of the so-called 'Offences Brought to Justice' ever get to court, as a succession of hardline Home Secretaries have preferred to allow the police the CPS and other bodies to impose sanctions out of the public gaze, behind closed doors. Now, incredibly, even night club doormen are being allowed to hand out fixed penalties. Civil Enforcement of parking regulations means that your only appeal against a decision is to an adjudicator, and if he is not on your side, that's it - no further avenues are open. Proportionality has gone out of the window. Jumping a red traffic light, an offence that can in some circumstances kill people, carries a fixed penalty of £60. Overfilling your dustbin will attract a fine of £100 or more from some councils; where's the logic in that? Sentencing Guidelines have become increasingly prescriptive. Average prison terms have increased significantly, but the programme of new prisons is only just starting to have effect, resulting in the recent farce of early release that was, surprise surprise, dropped just before the election was announced.
The Criminal Records culture has grown inexorably. Not too long ago, most offences became spent after a reasonable period of good behaviour, on the commendable principle that rehabilitation should be encouraged and recognised. Spurred on by the dreadful Soham murders more and more jobs require a CRB check. Employers can order the checks on the pretext that a driver, say, may deliver to an old people's home. If the enhanced check comes up with a 15 year-old shoplifting conviction, the employer won't take the man on. As a result there is now a substantial cadre of people whose unemployability is made absolute by the ease of access to the CRB. Twenty years ago the only way to get access to someone's record was to slip a few quid to a police officer (oh yes, it happened). Now it is routine.
The anti-terrorism laws have, as feared become widely abused to hamper legitimate activities. Jury trial, having been dispensed with once, will surely be dispensed with again. Every email and phone call will henceforth be stored for the authorities to look at when it suits them. Innocent people have their DNA retained if they are arrested and then released. Someone who is acquitted (as in Not Guilty) can nevertheless be slapped with a restraining order to prevent him repeating the offence that he has just been acquitted of - a new verdict of 'Not Guilty but Don't Do It Again'.
If any of you hears a single candidate addressing these issues, let me know. I bet you don't.

Don't Ask Me

A joint charge - one man, one boy. One 25, one 15 but looks younger. About eighty convictions between them, thirty down to the boy. The man looks at the bench with a lowering scowl. Domestic burglary of course. The man is a run of the mill local low-life criminal, and is off to the Crown Court to see what a jury makes of him.
Because we are sitting as an adult court and the boy is young we have limited powers to deal with the case and the lawyers need some time to sort out the procedure. We sit outside with some tea while they do so and my colleagues and I wonder just what anyone can do to make any difference with this out of control child who, child or not, is a menace to the local people we are there to protect. He has been born into and grown up among a large extended family among which the violent criminal young men are the role models, and to whom the police and any other kind of authority are sworn enemies.
So what can be done?
Have another look at this post's headline.

What's Going On Here Then?

This has turned up in my email from the MA:-

HMCS has issued the notice below regarding magistrates' allowances.
Magistrates Allowance Rates Revision 10/11

Due to unfortunate and unforeseen circumstance the review of this year’s rates has had to be temporarily delayed for a short period. HMCS expects to meet with the Magistrates' Association and National Bench Chairmen’s Forum in the week commencing 10th May 2010, to discuss rates.

"Unfortunate and unforseen"?
What can that be?
They only have to look at the rates once a year, and April 5th comes around in a predictable manner.

I shall put one of my informants on the case.

Running Scared

The Daily Mail appears to be beside itself with terror at the current surge in support for the Liberal Democrats. I have been an avid reader of the press since my teens, and I was in my element at university when I could settle down in the JCR after breakfast (in the unlikely event that I had got up early enough for breakfast) and fillet the whole of the national press. Now I can do it online before I go to bed.
Here's a cracker:

Nick Clegg in Nazi slur on Britain as he claims 'our delusions of grandeur' at winning war are more a cross to bear than German guilt

In other articles it appears that the Lib Dems are going to release 60,000 criminals onto the streets (aided by some really dodgy statistics) and there are many similar attacks that serve only to prove how desperate Dacre's men and women are becoming. As I said the other day, it's going to be an interesting couple of weeks.

That's A New One

I have agreed to do an extra sitting to cover for a colleague who is marooned in the Caribbean, due to the disruption of air travel.

I have been called into court for many different reasons over the years, but never before because of a volcano.

Well Hung

As I said the other day, this is not a political blog, but the criminal justice system has been overloaded with new laws for well over a decade now, and it is politicians who thought them up, if thought is not too strong a word.
Recent events seem to have increased the possibility of a hung parliament, and many members of the political class are claiming that this will prevent 'strong' government, whatever that means.
When you look at the unworkable and often useless laws foisted on us over the last generation, it is hard not to ask yourself just what is so bad about a system that makes it harder to ram laws through without proper debate and scrutiny. The attempted abolition of the centuries-old office of Lord Chancellor was hastily decided upon, and announced before those who actually understood the Constitution pointed out that things were not as simple as they looked. We still have a Lord Chancellor, albeit as a tacked-on title to the Stalinist sounding Minister of Justice. A senior policeman went to New York and came back enthusing about night courts. "Let's do that" came the reply from the Downing Street sofa. It never worked and was dropped. Community Courts were another dud idea from the States. Custody Plus was passed by Parliament but never implemented despite much money being spent on training. Would Margaret Thatcher have brought in the Poll Tax if she had been forced to argue it through, rather than swinging her handbag?
Whatever happens on May 6th I fervently hope that we will see the back of knee-jerk legislation, especially that which is driven by pressure from David Cameron's new pals in News International, who sometimes seem less like a media group than a wannabe political party.
It's going to be an interesting few weeks.

The All-Important Attitude Test

Bernard W has kindly sent me this link from the Daily Mail. These things sometimes happen, and I blogged about something similar here.
I think that the toy-car man failed what police officers refer to as the attitude test, having been invited to stop driving, but being in such a drunken state that he attempted to drive off after being warned. Every magistrate will have seen cases where the difference between a ticket and a finger-wagging is the suspect's behaviour towards police.
Humble pie is a most nourishing dish. I recommend it.

A Little Bit Of This, A Little Bit Of That

I spent two days in court last week; one was my regular rota sitting, and the other was a favour to a colleague who needed to be elsewhere on that day. He will return the favour when I need to drop a sitting.
We saw a nice variety of cases, and unlike in the remand court, which is a rapid-fire sausage machine where few cases are concluded, everything we did had a beginning, a middle and an end.
One trial was a domestic violence matter, and we were held rapt as the woman in the witness box spoke softly of the desperately banal and ordinary ways in which she and her man managed to irritate each other. The three of us felt almost uncomfortable at this intrusion into the couple's privacy. One of my colleagues passed a note across to say "this is really sad". We heard a lot of background to the incident, and the woman repeated that "he's a really good dad" and said that she had tried to withdraw her statement but had attended in answer to a witness summons. While the man was on bail their three small children had only been able to see their father under supervision, and they wanted him back. What our verdict was doesn't really matter. Our abiding feeling was one of wondering whether there wasn't a better way of dealing with this than using the flat-footed majesty of the criminal law.
Then after lunch we heard another case in which the core issue, in this case an alleged theft, was buried among the recriminations and jealousies of a disintegrating relationship between two male partners. Emotions ran high, and the two protagonists pointedly avoided eye contact. Sad, for the second time in a day.

Gazza Hazza Problem

It is reported today that Paul Gascoigne, once one of the world's best footballers, has pleaded Not Guilty to drink-driving, and that the case has been put off for trial before magistrates (unless a DJ snaffles the case, as so often happens with celebs).
I have no knowledge of this particular case but it does illustrate the fact that with the consequences of a drink-drive conviction being so serious (and at the reading quoted in the report prison, as well as a very long driving ban has to be a possibility) many people who can afford it are prepared to pay many thousands of pounds to specialist lawyers to fight the case. In the normal run of things there are only two questions to consider: were you over the limit? - that will be settled by the reading from forensics or the intoximeter - and were you driving? - that will depend on evidence from police and other witnesses. The law on driving with excess alcohol is complex, and fertile ground for the Nick Freemans of this world to try to sow doubt in. There is the Cracknell v Willis defence of challenging the breath machine (not much help in a urine sample case though) and myriad technical issues.
I have seen offers of courses in motoring law for solicitors that make the point that this is one of the decreasing number of areas where the private individual is prepared to shell out hefty fees to try to stay on the road. Let's see how it goes.

Legal Aid And The MPs

Oldman has emailed and a few chaps in the pub have asked why the three Members of Parliament who are accused of fraud over their expense claims are to receive Legal Aid from public funds.
I am far from being an expert on Legal Aid. Over the years its grant has decreasingly been the business of justices, and nowadays it is firmly in the maw of the Ministry of Justice (Is it only me who finds that name sinister in a 1984 kind of way?). What I do know is that the two main tests for a grant of Legal Aid are the Interests of Justice test and the means test. A simple (speeding, shoplifting, Class B possession) charge with no legal issues, leaving the court with a simple decision on the facts, is never going to pass the IoJ test. Sometimes, however, simple cases can involve complex points of law that a layman has no chance of putting across, and Legal Aid is granted. Even when the IoJ test is satisfied, if someone passes the rather modest means thresholds, they will still find themselves having to pay up.
Looking (as a complete outsider) at the trial of the MPs, the question of their intent (essential to a conviction) is likely to be much fought over, since the unforgivably lax attitude of the Commons' staff seems to have amounted to a nod and a wink in some cases. Toss in the probable argument over MPs' Bill of Rights immunity, and the amount of legal input required will in all fairness justify public funding.
If the MPs are convicted (and I make no comment on that) the Judge would be at liberty to order reparation, contributions to costs, and much more, so they would not escape financial sanctions.
Let's see. Justice is never cheap, and a case this complex may prove very expensive indeed, but the principles involved are important and, in my view, worth paying for.

Did He Say It For A Bet?

I am grateful to Ben C for the following, gleaned from the Yorkshire Evening Post:-

A 66 year-old man has pleaded guilty at Leicester Crown Court to: (those of a delicate disposition should look away now) buggery of a horse and of a donkey on separate occasions. He was also charged with criminal damage to the animals (that the law regards as property).

Defending Counsel Amar Mehta told that court that his client had no previous convictions and was of good character.

Applying for bail pending reports Mr. Mehta said that the defendant does not have a stable address, but says that he can stay with his daughter.

Judge Pert QC was unimpressed and remanded the man into custody.

Incentive

This is not a political blog, and I comment on political issues only when they affect my judicial function.
I am still a taxpayer though, and I was both interested and alarmed when dealing with a case last week; the defendant handed up his means form, and it turned out that his income from the state, including housing benefit,came to about £1000 per month. Grossed up for tax that equates to more than £15000 per year, so it came as no surprise that he has not worked for the last five years. It's stress, you see.

Seminar

The Judicial Office has just completed a hastily-arranged series of seminars across the country to brief magistrates, in particular court chairmen, on the 2010 Criminal Procedure Rules. There was some suspicion that an unspent pot of money had been found and that it had to be used before the end of the budget year. I went to a smart hotel in London with a couple of hundred colleagues and we were addressed by a senior circuit judge and the Senior Presiding Judge, and the panel for questions included the Chairman of the MA, while Keir Starmer, the DPP, was in the front row. The theme of the meeting was to encourage benches to be robust in moving cases forward, and there was considerable emphasis on pushing defence lawyers into getting their client to enter a plea at the first hearing. This cribsheet was handed out (and will be sent to all magistrates shortly).
When it came to questions one of the first points to emerge was that a high proportion of cracked and ineffective trials are down to the CPS - this comment attracted a chorus of agreement from the assembled JPs. Then a magistrate expressed unhappiness with the Virtual Courts experiment - more applause followed. There was further discontent about the delays caused by legal aid issues - there again there was applause.
Make of it what you will. I have been reminded of case management issues, and I shall strive to keep cases moving, as I have done for some years. But I shall not allow justice and fairness to be compromised, however much of a nuisance that might be.

The Old Ones Are The Best

I have commented before on the fact that the blizzard of new and often useless laws that we have recently endured has not stopped prosecutors using serviceable old laws such as the Vagrancy Act 1824 - we had one such on our list yesterday. That Act was passed nine years after Waterloo, and six years before the Great Reform Bill, yet it was used yesterday, in 2010, in London.
The language of the Act is wonderful; so much better then the prosaic tosh dished up today. Oh to be able to denounce some local malefactor as an incorrigible rogue and vagabond!
It would even make up for the fact that biscuits are about to be abolished by HMCS.

Again.

Ave Atque Vale (one more time)

My weekly email from the MoJ included the following announcement:-

His Honour Judge Samih Katkhuda retires as a Circuit Judge on 31 March 2010.

Sam (as everyone knew him) Kathkuda sat for many years at Isleworth, and I had the privilege of being one of the JPs who occasionally sat with him on appeals. He welcomed magistrates as equal members of the court, and always treated our views with respect. In his Chambers, waiting to go into court, one could not fail to notice the yards of bookshelf taken up by his red Judges' Notebooks, the fruit of many years' work. He had a bit of a reputation for dishing out lengthy sentences to some of those who appeared before him, and some of his decisions made the law books when they were overturned by the Court of Appeal - (Bei Bei Wang springs to mind).
Hizonner is a large chap, of a genial disposition, and was liked and respected by the professionals who came before him. I hope that he has a happy retirement - and so do quite a few West London criminals.