Thursday, November 28, 2013

No Surprise There, Then

This article in the Law Society Gazette will come as no surprise to anyone outside of Whitehall. Ministers have long cast covetous eyes on the many hours when expensive courtrooms sit empty, and this is by no means the first attempt to put the assets to use. My own court ran pilot Saturday courts in the Eighties and Nineties, but they withered on the vine, as the only people who were interested seemed to be JPs who were keen to keep up their sittings without affecting their jobs.

Some people became terribly excited about the swift, sometimes rough-and-ready, justice dished out after the 2011 riots when courts sat all night on occasion. Of course these were exceptional times, and not nearly as efficient as people seemed to think. A District Judge of my acquaintance told me that she spent hours at a time waiting for cases to come on, because of the inevitable delays while those detained instructed their lawyers.

In recent years bright ideas have been the bane of the lower courts. Let's hope for a breather while we digest what we have learned.

Small World

My wife and I took tea at the Savoy yesterday, as one does.

(The afternoon tea was a birthday present from my son and his fiancée, and very nice it was too).

During the couple of minutes that the doorman took to (literally) whistle up a taxi, I did a double take as a white haired gent strode towards the entrance. Could it be? Yes, it was none other than The Lord Chief Justice of England and Wales, The Lord Thomas of Cwmgiedd.

Tuesday, November 26, 2013

A Close Call

Following the last couple of years' upheaval and reorganisation, my colleagues and I don't see a lot of traffic cases these days, as they are concentrated into 'gateway' courts, an arrangement that saves money and trouble for the police and the CPS.

For one reason or another a case came before us last week in which we had to deal with a driver who had accumulated the dreaded twelve points that made him liable to a six-month ban as a 'totter'. Legal Aid is not available for these cases, so he came before us on his own to ask us to find that he would suffer Exceptional Hardship from a driving ban. Along with many colleagues I tend to be a beady-eyed sceptic when these cases come in, but we listened carefully and we felt that our man was genuine when he said that he was supporting his small family in a rented house with a modestly-paid job as a mechanic, a job that required a driving licence. The case law and the guidance that we heard from the clerk was familiar, in that 'exceptional hardship' needs to be pretty strong before it can be right to decide not to endorse or disqualify. A theme that runs through successful EH submissions is that hardship to third parties can be persuasive. In this case we felt that this man's efforts to look after his wife and two small children in a foreign land (he was from Eastern Europe)  justified us in deciding not to endorse or disqualify, although we still fined him and ordered costs and surcharge, as well as endorsing his licence.

He looked mightily relieved, as well he might, and thanked us effusively, at which point the usher did her job and ushered him out of the door.

Not every bench would have seen things the way we did, and neither a strict approach or a softer one is definitively right or wrong. In these days of prescriptive guidelines  this is one of the diminishing chances to use our judgement.

A couple of footnotes: I warned our man that he still had 12 points on his licence, and that he could not use the Exceptional Hardship argument again for another 3 years. As he left the courtroom one of the lawyers sitting in court muttered "I should have asked for his lottery numbers".

Sunday, November 24, 2013

Falling Through The Cracks

This country has a comprehensive and consequently expensive welfare state, designed to eliminate destitution at the bottom end of society. Nevertheless a lot of people slip between the cracks, and a proportion of them end up in front of magistrates. Usually there are underlying mental health issues, or an addiction to drugs or alcohol; sometimes both. It is common for such people to be a nuisance to the public, which may attract the attention of the police.
We have recently seen a man of 67, who came into the glass dock on crutches. He was represented by the Duty Solicitor, and faced a charge of breaching an ASBO. He is forbidden to go to a local facility that attracts drifters and homeless people because it is open for 24 hours a day, but, inevitably, he goes there anyway.
Breach of an ASBO is an either-way offence that can carry up to five years' imprisonment at the Crown Court, or six months at the Mags'. Our man had been to the Council's homeless unit and they had sent him to one of the cheap B & Bs that abound in our area.  He complained about the lack of heating in his room, and was promptly told to leave. He then saw breaching the ASBO as a route to a a bed for the night, so breach it is what he did. He has previously been imprisoned for doing this, but it looked uncomfortably like locking him up for being homeless so we imposed a fine, deemed it served, and left it to the solicitor who promised that he would take his client to the council and try to sort things out (for which he will not be paid).
One of the first things that I was told when I joined the Bench was "You are not a social worker" because we have virtually no tools at our disposal to deal with the sad and the mad among our clientele. Only a week ago a man was brought in for hurling a brick through the front window of the police station - for the thirteenth time. There was an application to give him an ASBO, but we refused on the basis that an ASBO ought not to prohibit something that is a crime in its own right. Getting arrested and put into a warm cell was exactly what he wanted, so an ASBO would be more than usually useless.
There but for the grace of god.............

Saturday, November 23, 2013

Top Tip (part of an occasional series)

We try on this blog to point out some Bad Ideas that will not improve your life. Here is another:-

If you are disqualified from driving on a Tuesday, DO NOT drive again on Wednesday. But if you do, DO NOT drive past two police officers sitting in a marked car. But if you do, DO NOT have your phone in your hand as you yak away to someone. But if you do, and you are stopped, DO NOT be surprised when the computer fingers you as a disqualified driver, and therefore uninsured. When you are in custody at the police station, DO NOT express surprise when the officer points out that you have two previous convictions for Drive Disqualified. Most people remember that kind of thing, you see.
DO NOT be surprised when the nasty magistrates decide that you are a piss-taker and send you to prison to think about things for a bit.

Monday, November 18, 2013

Sort Out The Basics, Girls and Boys

The CPS, an organisation that teters on the edge of meltdown, is appallingly poor at carrying out its basic functions of getting cases to court on the right day and with the right evidence. Only last week I saw a prosecutor serve an 80-page file on the defence advocate in court at 10.10 am on the morning of trial. The court had directed it to be served some weeks previously. The poor devil had to beg for time to read it, so the court cooled its heels for an hour or more.

Now the organisation is trying, as it often does, to take over the much more interesting job that belongs to the judiciary - here is an example.

Parliament makes laws, and courts enforce them. Stick with that madam Top Prosecutor, and sort out the nuts and bolts of your job.

A Disgrace

It is common knowledge that the balance of power at the lower end of the employment market has shifted firmly in favour of employers. The minimum wage has become the usual wage in a wide range of occupations. I fear that for some employers this situation has bred arrogance in their management.

An incident recently happened at the close of business in a local pub operated by a large and profitable chain. Attempts were made to steal from the business. The deputy manager on duty rightly called the police, who were pleased to find that there was CCTV available. The manager  helped the police to investigate the crime and stood by as the recordings were viewed and SOCOs took lifts of fingerprints. She finally left to go home at around 5 am. Unbelievably, she was not paid for the more-or-less five hours that she spent protecting her employer's interests, while the multi-millionaire owner of the business was no doubt safely tucked up in his mansion, or on his boat.
He should be ashamed of himself and of his company.

By the way, the CCTV was lost somewhere between the police and the CPS, but the lady concerned gave clear evidence of what it had shown.

The CPS should also be ashamed of itself for a pathetic failure to put together a proper case. But then they don't do shame any more than the smug millionaire who owns the pub.

Friday, November 15, 2013

The Vice Tightens

Ever-anxious as I am to keep you up to date with happenings in the courts, the current squabble between the Magistrates' Association and the National Bench Chairmen's Forum has excited my curiosity about the casus belli that has sparked it. I find it hard to view a bubbling pot without feeling the need to give it a stir, so I have had a look at the document involved. It seems from Gross LJ's report on Judicial Governance in the Magistrates' Courts (you can look it up) that magistrates' fingers are to be further prised from the levers of power in our courts. Hitherto the JIG (Justices' Issues Group) for each cluster of courts has included their Bench Chairs. Now the groups are to be much larger with only three or so Chairmen at the meetings, giving them no say in the management of the courts.
The MoJ has gradually become more centralised, with the de facto abolition of the Justices' Clerks (if not their titles). The old JCs were independent and answerable to their court's committee - now they are civil servants answerable to the Minister, only their legal advice being protected and independent.
Too many in the MoJ see JPs as a kind of lower-level staff to be buggered around at will, and not many of us can see the process coming to an end.

De Minimis (2)

One or two commenters have been scathing about my suggestion that some cases are too small to bother a court with. I am afraid that if they realised the vast number of cases that are NFA (no further action) at the police station, or not proceeded with by the CPS, or dropped at various stages through the court process they might be very surprised and shocked. Of course any crime is bad for society and bad for the victim but we have to keep a sense of proportion. The proportion of offences that are charged or summonsed is tiny.
There is also cost to consider. One lesson from the post-crash years is that desirable things are often not done because the cost cannot be justified in the greater scheme of things. The case I mentioned probably cost a good £1000 all in, and that is before the ongoing cost of keeping an eye on our two heroes in the future. It's an imperfect world down here, and we shall have to see how things pan out in the next.

Thursday, November 14, 2013

De Minimis?

We heard a trial yesterday that took a good four hours to deal with, including three-quarters of an hour sitting out the back drinking coffee, while the CPS finally served the last of the required disclosure, and the defence read it. Each of the two defendants faced four charges, but by 10.30 the Crown had dropped all but one against each man.
The allegation was theft of goods worth ten to fifteen pounds from a garden shed, and the two men affirmed their pleas of not guilty. There was some identification evidence that contained enough inconsistencies to render it unreliable, and  we were just left with the principle of Recent Possession to consider. Briefly, they had the stuff with them when arrested within half an hour of the theft, which creates a presumption that they were either the thieves or the handlers. So guilty it was. Neither had significant previous so the guidelines pointed to sentences at the bottom of the range. We laboriously wrote out our reasons, and went back in. The CPS asked for about £800 costs, plus a surcharge, so we were left with an impossible task to extract that kind of money from two men on benefits. On the whole, although we did it by the book, the case felt unsatisfactory. Realistically, the CPS should have dropped it, given the very low value involved but the stripped-down staff numbers that they now have do not allow for thorough reviews. Not a good omen for the future.

Monday, November 11, 2013

Who The Heck is This?

This photograph appears in the Law Society Gazette, and the paper claims it shows Richard Monkhouse, MA chairman. I have known Richard for some years, and this looks nothing like him. Is there some foul plot to discredit Richard and the MA by trying to make him look like a nuttter?Richard MonkhouseT

He actually looks like this:-

Sunday, November 10, 2013

Diversity Galore

I am due to sit tomorrow, and as usual I have no idea what will be waiting for me, other than the fact that I shall chair the court. If my last sitting is anything to go by the daily list will bear hardly any local-sounding names, a reflection of the great and increasing diversity of our patch. Let's see how it goes.

Wednesday, November 06, 2013

Penny Wise Pound Foolish

I sat on a couple of trials yesterday, prosecuted by a dreadful Crown Prosecutor who is slow-thinking and long winded. We found both defendants not guilty, because the cases both came down to 'he said, she said' conflicts of evidence. An allegation of breach of a restraining order was based on the making of one call between a bitterly estranged couple, but presumably for reasons of cost no arrangements had been made to download the defendant's phone. Hence we could not be sure, as we are required to be, so not guilty it was. I don't know what a download costs, but this case wasted half a day of court time, and that isn't cheap either.  The other case was a workplace spat between two people; the only independent witness didn't turn up so once again we could not be sure to the very high standard of Beyond Reasonable Doubt.
It must be a horrible experience to sit in court while the magistrates are outside deliberating, and the tension rises before our verdict.

Monday, November 04, 2013

Innocence Abhorred

I am not an easy man to shock, but a case last week gave me a lot to think about. I cannot say too much, but the core of the case was that a young girl was being threatened by girls from her school, and consequences ensued from that.
Three young girls gave evidence via video, and they came across as ordinary kids, typical of our area. As the saying goes, butter would not melt..
As evidence emerged it turned out that one girl was a victim of nasty bullying, and that an incident had arisen when one of her bullies assembled a gang and went to the vicinity of the victim's house, the whole business being co-ordinated by BBM (Blackberry messenger) ( A kind of mobile telephone, m'lud).
My colleagues and I each concluded that this was a 'Lord of The Flies'  situation. The targeted girl said in evidence that she and he ringleader had fallen out last year, but that she could not remember why. The reasons have faded, but the hatred remains fresh.
I can't say much more about this, but as a human being and a grandfather of two little girls I find it depressing that children in a a comfortable area of a rich country in the 21st century can behave with such basic savagery. What on earth will they be like when they are adults?

Friday, November 01, 2013

Cruel Deception

I agree with this piece on the Spiked site. The tabloid-driven sentimental slush about victims was right up the street of the Blair government. Cruelly, victims get to express their pain (providing, by the way, some nice sexy headlines) while the judge is specifically forbidden to adjust his sentence as a result.

Goodbye Old Friend

My long standing friend, defence solicitor John Cochrane, met me for a pint last week, and told me that he has appeared in court for the last time. He is a victim, along with many others, of the emasculation of Legal Aid, and plans to move away from London. The cost of his practising certificate and  professional indemnity insurance would be such that it would hardly be worth his while to carry on working, especially as he is less than a year off pension age. I shall miss him. He is a very good advocate, thorough and professional, but has never taken himself too seriously. I have often shared a lunchtime glass with him, and gone back into court to deal impartially and professionally with his case, exactly as we should do. He won an excellent Abuse of Process argument before us one day, and I still remember that his case was based on R v Croydon Justices, although that name is all that I do remember. When a good friend of mine was involved in a tragic road accident I had no hesitation in pointing him towards John, who did a first class job at a court some way away. I hope to see him in Court Seven* when he comes back to visit his old haunts. 

*Court Seven is the preferred name for the pub round the corner from the court.