Friday, August 03, 2012

A Reasoned View

One of the most important changes to the way we run our justice system is the way in which transparency is given greater importance these days. When I joined the bench we were warned never to give our reasons, for, as a judge said at the time, our sentence was likely to be right but our reasons were almost bound to be wrong.
That was long ago, and now the giving of reasons is a statutory requirement, and much attention is paid to their drafting.
Here is the Judgment given in the sad Rausing case by HHJ McGregor-Johnson at Isleworth this week. As we might expect from such a senior and respected judge, he gives the legal and the wider background to the case, and the process of reasoning that led him to formulate his sentence.
Were it not for the Olympics the popular press might have tried to run the 'rich bloke gets easy ride' theme, but anyone who reads the Judge's words will understand how untrue that would be.

24 comments:

  1. Technically these are remarks on sentencing rather than a judgment, since Rausing pleaded guilty.

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    1. Sentencing is part of a judgement and when a plea has been entered, then they are the only output of the judge?

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    2. Sentencing remarks are something I advocated over a long period. They let the public (and convicted person) know something about the process and reasoning. Techically, they are not a judgment but why engage in such nitpicking?

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    3. Sentencing remarks are something I advocated over a long period. They let the public (and convicted person) know something about the process and reasoning. Techically, they are not a judgment but why engage in such nitpicking?

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  2. The PM's brother, Alexander Cameron QC, represented Mr Rausing. On this evidence he did a very good job in mitigation. The judge's remarks make compelling and depressing reading. The giving of reasons has been a big step forward, and another "victory" for the ECHR. Magistrates often remark how much they learn in this respect from sitting with judges on appeal in the Crown Court. Thank you for drawing this to our attention, BS.

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    1. What stands out is the clarity and structure of HHJ McGregor-Johnson's thinking, and this should be mandatory reading for all magistrates. Of particular interest was that His Honour emphasised that any breach of either offence would be brought back to the Crown Court, and not dealt with by magistrates.

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    2. Question: north bucks jp said "...emphasised that any breach of either offence...". I read the sentencing remarks and it said "any offence" - does that mean that a suspended sentence is conditional on "any" as in any possible offence or only either of the two he was found guilty of?

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    3. You're quite right, I should have that said any breach would be brought back to the Crown Court. I don't know why 'of either offence' slipped in.

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  3. I thought that applied to all breaches of CC orders. Doesn't it?

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    1. My understanding as well...

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    2. CC fines and costs orders are enforced in the magistrates' court.

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    1. I was going to post a comment with the same point, till you beat me to it. Dammit!

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    2. No need whatsoever for magistrates to produce detailed sentencing remarks. In most cases a few paragraphs will cover all that needs to be said and it can be based on a proforma which some courts have. Just cover the main points and that suffices. There is still a lot to be said for "least said soonest mended."

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  5. Benches, at whatever level of the judicial system, are required to give reasons for their decisions. Where they depart from what would be the expected sentence, then they have to spell out what led them to that sentence. It may take bit longer than the average, but then it's worth it if it avoids a futile appeal.

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  6. The requirement to give reasons was a very positive development for magistrates. If properly drafted, what better way to demonstrate that you have taken into account relevant factors and excluded non-relevant, or prejudicial ones? The mistake often made is to think that the reasons should be all embracing ("it was a sunny morning in Suffolk...."). They should ideally be succinct, and focus purely on the facts in issue. That didn't ought to take long in most cases.

    Whilst on though, why does Bystander say so little about the calamitous changes that HMCTS is spiriting in? Watering down the legal support (the current Justices' Clerk reductions are a staging post to further diminutions)and removing the essential bench support provided by the secretarial staff is slowly but surely pulling the rug from under the lay magistracy.

    If there is any point to a blog like this, surely it is to highlight this sort of surreptitious attack on one of the cornerstones of our justice system?

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  7. Giving reasons seems a good thing, but judges are the cream of the crop with (usually) clear minds. The idea of three magistrates getting together to set down reasons seems fraught.

    But my real question is what is so great about magistrates anyway? Ostenstibly they are cheap and allegedly bring a 'local' influence to bear. But in these days of guidelines and sentencing rules and the lack of real options for rehabilitation they surely have little or no real 'local' influence.

    Then I wonder when it was that magistates were 'a good thing', it seems that up until the 1970s they were definitely creatures of the class system and the Watch Committee. Justice for a poacher was two years in clink. Then there seems to have been a slight flowering of 'local justice' from the '70s to the '90s but that is being rolled back - probably because of the expense. From there it seems a short step to DJs running the show - if enough can be found..... Over the 800 or so years of history when were magistrates the jolly old souls of literary fiction.

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    1. They will not be short of applicants for DJ posts - if the system is willing to pay them >£100K pa each.

      Magistrates actually requiring local knowledge disappeared by the time of the single Commission of the Peace for England and Wales - if not before.

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  8. Justice being local was the original hallmark of the system. The King's Judges then made the system more predictable with common sentences. Death by hanging for felony, life as maximum for everything else but Treason and Piracy.

    Life was good then, for property owners. Nowadays, due to the horsewhip and electric cattle prod, the peasants produce so much that we have to have offences for unwanted goods!

    We have far too many offences and far too much legislation. WE have lost local knowledge in return we get not disinterest, but lack of interest all too often. Much of the offences are caused by poor quality of thinking caused in turn by poor nutrition. Banking means being able to lawfully extract billions .... Throwing millions out of work, just to put in a context.

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  9. There is always a reason for the decisions magistrates make. It isn't that difficult to articulate them usually. I don't see that in most cases it requires a great deal of writing or erudition to explain. The system of using magistrates has it's pros and cons just as any alternative system.

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