Tuesday, September 02, 2014

Penny Finally Drops

I have just had an email about the rules for claiming expenses, and, praise be, we can now file them electronically. In fact, we were filing them on email a good few years ago, until some nitpicking penpusher decreed that we had to submit a wet-ink signed copy by post or by leaving it at court. In the five years or so that this has been the practice I must have bought about 60 first class stamps - for two pins I will claim for them on my first electronic form.

There is also a rumour that magistrates' sentencing powers will be doubled, to keep cases out of the Crown Court. That is an obvious win, because the cost of sending stuff to Hizonner is vastly more than leaving it to humble JPs. The figures show that a good proportion of the cases that are sent up are dealt with within the power of the lower court. My hunch is that too many magistrates are wary of dishing out sentences to the top of our range, sometimes abetted by a nervous clerk.

I will believe this one when I see it.

32 comments:

  1. Here's two pins. Please submit a claim for those stamps (and hopefully take it out of the pocket of that nitpicker).

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  2. Not before time that theexpenses are going electronic.

    The proposed increas in Mags powers is long, long over due. This will not stop peeople electing- if they want to- that is there right but for the majority of those at the lower end( the sort of offence that was within the old Quater Sessions jurisdiction- for those who can go that far back) makes sense. The saving and cost wil lbe enormous never mind the stress for everyone.

    It can't come too soon.

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    1. I've noticed a trend for a drop in the number of people electing now solicitors are penalised for allowing clients to elect and then having the client plead guilty.

      Whether what I've noticed is correct or not I don't know.

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  3. The template claim forms contain a simple and fatal error. If I can see this, why can't well-paid civil servants?

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    1. Probably the same reason why they keep making such a hash of the courts system generally.

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  4. humble JPs?

    Not so. Those "nitpicking penpushers" deserve a sincere apology


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  5. The Crown Court's greater powers are offset by greater checks and balances, mainly in the form of guaranteed legal aid and a jury. Beefing up the mags may be a government win but it is also a justice loss.

    Bystander, do you ever consider yourself forced to perform an injustice? If yes, then in the future you will be forced to perform greater injustices.

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    1. Guaranteed leagal aid- I don't think so!!
      Jury - only for a trial and most cases- about 80 are dealt with by a judge alone. So I think you have got your wires crossed.

      Judges- Magistrates- are there to enforce the law as it is , not how they like it to be. If you cannot do that you should not be doing the job

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    2. Firstly, I doubt District Judges relish injustice any more than Magistrates do - i.e. they don’t. Nobody I know in Court takes pleasure in imposing custody of any length though sadly some offenders make is unavoidable.

      This fear of some sort of ‘sentencing orgy’ if magistrates’ powers are increased looks ridiculous to me. Magistrates have had the power to sentence to up to twelve months in prison for as long as I can remember - in the case of two or more either-way offences sentenced at the same time.

      In almost sixteen years on the bench I have seen these extended powers on one occasion - and then only eight months was imposed on a recalcitrant violent offender. I have seen probably hundreds or cases where there were multiple either-way offences sentenced at the same time.

      The powers in Youth Court have been up to two years custody for a very long time.

      I suspect concerns about increasing powers come from those with no real idea about how sentencing works.

      In short, the maximum would be twelve months, that’s 8 month after a guilty plea in most cases, that four months in custody.

      As for injustice, errors can occur at all levels in the justice system. There is an appeal process for this. In my experience the level of appeals both successful and unsuccessful is very low.

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    3. "In short, the maximum would be twelve months, that’s 8 month after a guilty plea in most cases, that four months in custody."

      In practice, if the increase in sentencing powers is implemented, it would be 18 months less 1/3 for a guily plea. That's 6 months in custody.

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    4. Ah so the proposal was to increase sentencing powers to 18 months was it? I didn't see that, I had assumed it was an increase to 12 months not an increase of 12 months.

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    5. If an 18 month sentence attracts a 1/3 discount, you get...?

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  6. If I ever felt 'forced' to commit an injustice I would resign in as public a manner as possible.
    I feel unhappy at the unfair and unjust surcharge that we must apply, but I do not think that to be a resigning issue.

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  7. Seen many an expenses form in various industries, generally all in MS word or god forbid MS powerpoint.. yet to see on in Excel, you know to add it all up.

    Current employer has a SAP monster, where you have to enter everything _then add it up yourself and enter that_ - it obviously does the calc as if you get it wrong it helpfully throws an error - and then crashes

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  8. At a fairly recent training session with our Crown Court liaison judge we were encouraged to give sentences over and above the six months (but not excessively so) on the basis that had we sent the matter up to the CC for sentence it would have merited a higher penalty.

    Therefore nine months or so would be acceptable if the reasons were properly explained and recorded and the CC would have fewer sentencing exercises where they have to hear much of the case again.

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    1. Sorry GrannyBiker, run that past me again! Are you referring to a single charge, or more than one either-way offence; also, is it on a guilty plea or not.

      I am not saying you are wrong but it doesn't match what I have been told!

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    2. "had we sent the matter up to the CC for sentence it would have merited a higher penalty."

      Surely we send matters to the crown court only becuase they require a higher penalty?

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  9. I started to read the new guidance on Expenses and lost the will to live when it required us to get permission to have the temerity to try to file electronically. I will still fill it in with quill pen and ink and shove it in the pigeon hole at the court thanks very much!!

    I share BS's cynicism at our mooted increased sentencing powers. Either it will in fact never be implemented or if it is, it will be on a trial basis (no pun intended!!) with a review after 6 months at which time we will be pilloried for having sent too many offenders to prison...even if we haven't. Naturally our 'trade union' will take it's usual supine position on the subject.

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  10. Well, my dears, the increased sentencing powers were enacted by a statute of 2003 vintage, but have yet to be implemented.

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  11. It is quite in order to give 6 month on the basis it would have got 9 at the CC on the basis that you are giving credit and therefore to send it up would be a waste of resourse time and energy and fairer o nthe D- particularly when they can get clobbered for legal aidf pay back these days

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    1. “It is quite in order to give 6 month on the basis it would have got 9 at the CC on the basis that you are giving credit”. I think you will find it isn’t.

      First of all it is nothing but a guess to think that the CC would give nine months. If it was a guilty plea and you gave six months how would you explain to the defendant, or their lawyer, or come to that your legal adviser, the amount of credit you were giving for the guilty plea?

      The maximum sentence we can currently give is six months on any one offence and two lots of six months to run consecutively if the defendant has two or more imprisonable offences. It is not nine months reduced to six for a guilty plea because you think they may have got nine months in the CC.

      If I am wrong please reply with the page in the sentencing guidelines that says we can give six based on a guilty plea and hence a reduction from the nine that the CC may (or may not) have given.

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    2. What it means is the sentencing exercise produced the result of 9 months for that offence. Since the defendant pleaded guilty and are entitled to a 1/3 discount (if they pleaded guilty early enough)...

      There does not need to be a specific spelling-out, because those who adjudicate the law are supposed to be able to put those 3 parts (sentencing exercise, guilty plea, discount) together for themselves.

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    3. Any sentencing guidline that indicates 9 months for a not guilty plea (i.e before discount) would be 6 months after 1/3 discount for a guilty plea and therefore within magistrates' sentencing powers. Magistrate can explain that when sentencing:

      Section 5.8
      "Despite a guilty plea being entered which would normally attract a reduction in sentence, a magistrates’ court may impose a sentence of imprisonment of 6 months for a single either-way offence where, but for the plea, that offence would have been committed to the Crown Court for sentence."

      http://sentencingcouncil.judiciary.gov.uk/docs/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf

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    4. I think you'll find it is. The '9 months' is a red herring, but it's perfectly good sentencing to impose 6 months' custody for a guilty plea if the case would otherwise have been sent upstairs. Where is it in the guidelines? Try 5.8 of the Definitive Guideline on Reduction in Sentence for a Guilty Plea.

      "Despite a guilty plea being entered which would normally attract a reduction in sentence, a magistrates' court may impose a sentence of imprisonment of 6 months for a single either-way offence where, but for the plea, that offence would have been committed to the Crown Court for sentence."

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  12. Don’t get too excited about the new expenses form.

    It includes a drop down list from which an engine capacity can be selected but capacities have different petrol rates. What does someone with access to two cars of different capacities, both of which they use for their journeys, select? The way it should work of course is that the drop down list of engine capacity should be on the mileage rate column so that the form enters the correct rate for the relevant selection. In fact making a selection at all isn’t mandatory so I wonder why it’s in there?

    The petrol allowance column shows (mileage rate in pence) at the top. I tested it by entering my journey of 14 (miles) at (58) pence and found it is actually calculating it as pounds. Total claim for petrol £812! I wish.

    The tab key, obviously to go from cell to cell in a line of claim, doesn’t work.

    There is a print button, which should be a useful addition, but instead of just printing the pages to be signed and given in, all the preceding pages of notes are printed too.

    I emailed my bench support team and was told my comments have been sent on to someone in Manchester for review. My breath is being held.

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    1. I can see that "tutto il mondo รจ paese" (=some things are just the same the world over).
      Governments should dump whatever method they use to hire software consultants and simply bribe Amazon's or e-bay's to jump ship.

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  13. Just a thought, but it occurs to me that if a good proportion of those cases sent upstairs are ultimately dealt with using sentencing powers available to the magistrates court then the solution is not the doubling of mags court sentencing powers but encouraging magistrates to give more thought to whether their sentencing powers are sufficient before sending cases upstairs.

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    1. I once asked our liaison circuit judge about this. He said often when we commit cases, by the time it reaches him there is more information than the magistrates's court had and also that any mitigation is more fully prepared.

      In addition, I suspect that a failed mitigation in the magistrates court will be 'touched up' for the second attempt. I know for a fact this happens on appeals as I have seen evidence of it.

      If this is the case, rather than simply blame the court perhaps the issue is also with defence advocates and their preparation?

      Finally, Crown Court judges are often less familiar with the guidelines for offences usually dealt with by magistrates. I do sometimes wonder if a diet of murder and rape cases makes some of the committed matters look more trivial to a circuit judge than to a magistrate or DJ following the guidelines.

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    2. "encouraging magistrates to give more thought to whether their sentencing powers are sufficient before sending cases upstairs"

      Perhaps encouragng judges to reflect that three magistrates thought their sentencing powers were inadequate. WHo is to say the CC judge is always right?

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    3. The first time I sat at a crown court was the first time I had lunch with the judges. One opposite me commented on the number of times he had to sentence as a result of something coming to him from our courts. I expressed surprise as I had only seen it done quite rarely. “Oh yes” he said, “I often find myself giving someone nine months or a year”. I pointed out our sentencing powers and he replied “Oh really”? I don’t know which of us was the more astonished.

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  14. It doesn't happen all that often but when I've been on a bench that sent someone to the crown court for sentence it was because we were of the opinion that the level of punishment should be greater than that which we could give, and each time after considerable thought. We are not to know that a crown court judge will then give a lower sentence?

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  15. I sometimes thought that matters were too serious to leave it to the CC to sentence. If we wanted to be certain of a custodial sentence, we'd deal with it ourselves based upon what we had seen in the past.

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