Thursday, May 29, 2008

I Can't Wait

I read that new laws are about to criminalise clairvoyants who fail to note on their advertisements that their services 'are not subject to scientific proof' or some such.

I can't wait to see my first case.

"Madame Arcati, you have been convicted of preying upon stupid and gullible people by purporting to see into the future, and to communicate with the dead, without warning them in writing that your art is tosh".
"But Sir, that's what we of the spiritual trade have been doing for centuries. Surely the stupid and gullible should be allowed their illusions?"
"And another thing, Sir: If I am to be punished for this, what about the Vicar? He can't prove his claims any more then poor little I can. What about wrinkle cream makers? What about 72 virgins? Or those gadgets that make your car do 77 mpg, and all for twenty quid? It's not fair, sir, it ain't".

"That's quite enough. Clerk of the court, pass me the crystal ball. Thank you."
"Madame Arcati, the ball is clearing....clearing, I see something blue, something blue....yes, in a pointed hat. Clear enough then, six months it is. Take her down officers. Stop snivelling, you wicked old woman. You of all people should have seen this coming".

"We'll take a break now, Madam Clerk. I suppose a biscuit is out of the question?"

News Release!

Her Majesty's Courts' Service has issued an exultant press release, claiming that courts have welcomed the introduction of wi-fi for the benefit of court users. Not on my patch they haven't, since the announcement doesn't cover magistrates' courts, despite the fact that this is where 95% of all criminal cases are dealt with.
We are sucking on the hind tit as ever, down at the sharp end.

Tuesday, May 27, 2008

Knife Crime

We seem to be hearing more and more about the appalling waste of young lives from the burgeoning fashion for carrying what is euphemistically called 'protection'. In fact the protection offered by a knife is as illusory as the protection afforded to Americans by their obsession with guns, since carrying a weapon introduces it into the potential crime scene. Many gun-carrying people fall victim to their own weapons, just as carrying a knife makes it more rather than less likely that you will be stabbed. Unfortunately the protection myth is deeply entrenched and there is no simple solution to the problem.
The Sentencing Guidelines have an entry point of custody for carrying a bladed article, and the revised ones that will come into force shortly have the same emphasis, but it has to be said that relatively few offenders end up inside. In some cases the police choose to caution; in others (especially with offenders under 18, where the rules are very different) there may be fines or some sort of community sentence. The circumstances surrounding this offence cover a broad spectrum, from the weedy kid who wants to look as hard as the rest of the gang, to the seriously homicidal psychopath, and sentencing reflects that.
In the current atmosphere of justified public concern the Appeal Court has just handed down an important judgment, and I am grateful to Criminal Solicitor Dot Net for picking it up so quickly. The Judgment speaks for itself.
Case Name: R v Bleazard; R v Povey and other applications
Court: Court of Appeal Date: 21st May 2008
Judgment Summary
An appeal, two applications for permission to appeal, and one renewed application for permission to appeal were listed together as each raised an issue in respect of possession of a bladed article or point or possession of an offensive weapon without reasonable excuse. In one of those cases, namely, the second application, the defendant and others had met in the street, at night, to resolve a personal dispute relating to one of the men. Three of the men, of whom one was the defendant, had knives. The defendant’s knife was in his sock. The police attended the scene before an incident occurred. The defendant pleaded guilty to being in possession of an offensive weapon without reasonable excuse. He had two old previous convictions. The pre-sentence report suggested that a conditional discharge was appropriate. In the event, the defendant and his co-accused were sentenced to four months’ imprisonment.

The court ruled:

Carrying a knife or offensive weapon without reasonable excuse was a crime committed far too often by far too many people. Every weapon carried on the streets, even if concealed or out of sight, or not likely or intended to be used, or unused, represented a threat to public safety and public order. That was because, even if the item was carried only for bravado or some misguided sense that it would be used for possible self-defence, there might arise a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial like a look, where the weapon was then produced, and mayhem would follow, including offences of the greatest seriousness, such as murder, manslaughter, causing grievous bodily harm and wounding.
Offences involving knife crime had recently escalated into epidemic proportions. Every knife carried on the street represented a public danger and had therefore to be stopped. Courts would do what they could to reduce or, if possible, eradicate it. It was important that the public had confidence in the criminal justice system. Accordingly, where a person had a knife or offensive weapon without a reasonable excuse, they should be brought before the courts and prosecuted.
For the time being, whatever other considerations arose in the individual case, the sentencing court should have at the forefront of its mind the fact that the sentence imposed in knife-crime cases should focus on the reduction of crime, including reduction by deterrence and the protection of the public. Even if the defendant had done no more than carry a weapon, and even if not used to cause fear, the courts had to bear in mind the harm which might foreseeably have been caused. The stark message was that carrying a knife or offensive weapon was a serious offence which would be treated with the seriousness which it deserved.
Conditions which prevailed now were much more grave than five-and-a-half years ago when the guideline authority had been decided. Accordingly, the guidance in that case should be applied with the current grave situation and relevant sentencing considerations, above, clearly in mind. Moreover, the Magistrates’ Court Sentencing Guidelines as to bladed articles and offensive weapons, should normally be applied at the most severe end of the appropriate range of sentences. (My emphasis)
In the second application, the case had to be analysed in a different way than it had been before the Crown Court. The offence was a much more serious offence of its kind than the mere possession of a weapon. For a start, the scene was three men, in the middle of the night, who were armed. There was not going to be peaceful exchange of private views in a civilised way. The potential for serious violence was obvious. It was fortunate that the police had been able to intervene before anyone was hurt, and before a public disturbance. That was not to the credit of the defendant or his co-accused. The arming of oneself and joining in with others who armed themselves for the purposes of a confrontation such as that in the second application could not be mitigated by the assertion that the weapon in issue had been taken for self-protection or self-defence. Such an offence did not fall within the category of ’weapon not used to threaten or to cause fear’, as the weapon had not been used because of the intervention of the police. The defendant was fortunate that a longer sentence had not been imposed, as it would have been fully justified and appropriate.

I am not a lawyer, but it seems to me that sentencers are being guided towards the top end of our powers. We shall see what our clerks have to say about it of course, but I expect to see a considerable toughening-up of sentencing. It's not the whole answer of course, but it's right for the courts to add their piece to the jigsaw.

The new Guidelines are
here and the bladed article offence is dealt with on pages 39 and 40 of the pdf.

Metropolitan Flics?

The Metropolitan Police appear, as I write, to be facilitating the pathetic Luddite fuel protesters in their attempt to bring West London to a standstill in order to blackmail the Government into giving them a subsidy. Those who deliberately choose to drive in a manner intended to inconvenience other road users are at the very least committing the offence of Driving Without Due Consideration.
What's up with the Met? Have they been taking lessons from the craven French authorities?

Friday, May 23, 2008

Éolas Revisited

Nerd For Justice has kindly taken the time to have a go at translating the article I referred to here:-
By Eolas, Wednesday 12th September 2007 13:20
The punishment block of a prison is known in prison slang as “Solitary”.
In administrative and legal jargon, it is known as “confinement in a disciplinary cell”, defined as:
Placement of the inmate in a cell prepared for this purpose and which he should occupy alone. The sanction involves losing for the duration the ability to buy from the canteen as per article D. 251 (3), as well as loss of visits and of all activities (except as governed by article D. 251-1-2 concerning minors under 16 years). Nonetheless, inmates in disciplinary cells have one hour per day exercise alone in a yard. The sanction does not entail any restriction of their right to written correspondence.
This sanction, the heaviest that the prison authorities can impose, lasts for a maximum of 45 days for first-degree misdemeanours (there are three degrees, the first being the most serious, the second intermediate and the third the least serious).

The action is taken by a disciplinary body: the disciplinary commission, or, in prisoners’ slang, the "Star Chamber”. This is chaired by the prison governor or his representative, with two assessors who are warders. A file of several pages, headed “Incident report”, is written by a warder, often the victim of the action in question. The prisoner is asked to give his explanations, his lawyer, if he has one, is heard, and the decision is given after a short deliberation. The hearing takes place inside the prison; this being– in the case of newer prisons such as Fleury, Mérogis, or Nanterre, where lawyers’ consulting rooms are outside- the only time we are allowed inside the secure area. (Older prisons such as La Santé or Fresnes have no provision to consult away from prying eyes.)

The least that can be said is that it is quick and efficient.

And, would you believe…?

Until 1995, these decisions were authorised by an administrative official responsible for “measures for internal order”, and not subject to legal review by a judge. Who should get the credit, Edouard Balladur or Alain Juppé? Neither, it was actually the Conseil d'Etat , by two arrêts (Note: nearest equivalent is probably Statutory Instruments) , Hardouin and Marie (17th Feb 1995) ( ) which ended this scandalous state of affairs. True, the review falls in the administrative (civil) jurisdiction, which will take two years to reach a judgement, well after the 45 days are up; but referral to this process allows a rapid stay of the process when a measure is of doubtful legality.

There’s more.

Until 2000, the inmate had a right to the help of a lawyer. The “Star Chambers” before then were stressful occasions. The inmates, often intellectually limited, were left to their own devices, and felt they had no say in the process. This feeling may have been well-founded, according to a colleague of mine who did a placement at Fleury during her legal training. Should we credit Lionel Jospin for this step forward in the defence’s rights? That would not be justified; it was a legislative oversight. Jospin’s Government passed Law number 2000-321 of 12th April 2000, concerning the rights of citizens in their dealings with the state ( ). Article 24 of this law, which is still in effect, specified that any person who is subject to an individual decision, not at their instigation, and which constitutes a sanction, is entitled to the help of a lawyer. The parliamentary debates show that the legislature did not have in mind disciplinary commissions consisting of civil servants. But the law did not make any such distinction, and lawyers insisted it should apply to “Star Chambers” in prisons. At first the government said no, this text did not apply to “Star Chambers”, because this was not what the legislature had intended. This was true, but it was not what had been written. It took an opinion of the Conseil d’Etat on 3rd October 2000 to make the government accept the evidence and realise its terrible mistake- without having meant to, it had extended freedom.

France, land of human rights- we get that slogan drummed into us so much that we forget to ask if reality lives up to it.

And this punishment cell… what, in concrete terms, is it?

Thanks to Rue 89 ( ), making use of a judicial investigation ordered by the Versailles tribunal, we can learn the sickening details. Each cell is on average 8.21 square meters (87 square feet) for men and 7.59 square metres (80 square feet) for women (well, they’re smaller than men, aren’t they?) including the bed and toilet. The floor area, where the prisoner can stand and walk, is on average 4.15 square meters (44 square feet), which is less than the regulation for kennels (5 square metres (53 square feet)). The light level is 7 to 30 lux. The standard for reading is 300 lux. Note that the penal code specifies that prisoners in solitary retain the right to receive and to write letters- but obviously not to read them. Prisoners are kept in these cells 23 hours per day. They are allowed one hour outside, in special yards, of 20 to 30 square meters (211 to 317 square feet) where they are alone. These yards are in reality open rooms covered by grilles, which are flooded on rainy days, making it impossible to take a walk (remember this August’s weather?). Since the prisoners are not entitled to “canteen” privileges, that is, they cannot buy goods from the prison authorities, they do not even have cigarettes.

And for those who hope that at least these are clean and comfortable places, see these photos taken by the investigator ( ). To clear up any doubts, the trickle of water in the 6th photo, coming out of the wall towards the toilets, yes, that is the shower.

An individual who accommodated someone in such conditions would face up to five years imprisonment (the initial two-year terms were increased to five by the law on internal security passed by the previous minister of the interior). But the State is not subject to the criminal law, so it can do this.
(Note: the links Eloas gives in this paragraph are broken.)

This is in France, in the 21st century .

And for those with a hopeless and hard heart, who spare no tears for the fate of delinquents and criminals who do not behave themselves in prison, a little suggestion. Let us take one of these bad, violent boys. Lock him up for 45 days in such a hole. Imagine 23 continuous hours with 4.15 square meters (44 square feet), in conditions which would make you an offender if you kept a dog there; and this lasts 45 days.

Now consider that one day he will leave the jail, his sentence served. Do you think he will be calmer, better-behaved, a model citizen, having matured from this experience? When you meet him, I hope that will be the case.

But if you’re not sure, then since you have no compassion for others, have compassion for yourself.

Thursday, May 22, 2008

Toad In The Hole

This case, that we mentioned a while back, has been appealed by the prosecution, with this result. Seems fair enough to me; the rider went out of his way to mock the traffic laws, and the Appeal Court's response is a robust one.


A few weeks ago I wrote here about the spate of car thefts that involve taking the keys, a consequence of improvements in car security. I heard from an old friend today who told me that his son's Subaru was taken the other night by burglars who came in looking for the keys. It's only a car, and there was insurance, and nobody saw the thieves, so things could have been worse. My friend told me that one of his son's friends, also a Subaru owner, had always taken his keys upstairs, and when a man broke in a few months ago he badly beat the car owner to get the keys from him.

Talking of car thefts, another thing we see a bit of these days is old unroadworthy cars being stolen from people's front gardens, and crushed within the hour. That's because the world price of scrap has gone through the roof, and an old banger can be worth up to £100 - a few years ago it would cost you that to get it taken away.
That's globalisation for you. Booming economies in the Far East lead to a boom in thefts in West London.

But Look, Amazement On Thy Mother Sits

Not on me it didn't when I read this. Everyone who works in the courts is wearily familiar with CPS cock-ups. Only this week a defence lawyer complained that he had not received the required disclosure despite three separate letters, and had been handed a bundle of papers an inch-and-a-half thick that morning at 9.45.
CPS inefficiency is a major cause of injustice, usually meaning that the guilty get away with it. They have said sorry, though.

(Off-topic, I picked up the thread title when I watched Hamlet on telly the other night. The line always reminds me of a piece by the great Bernard Levin who waggishly advanced the theory that there is a dog in Hamlet, called 'Amazement' - hence the line above).

Wednesday, May 21, 2008


This is a piece of nonsensical bullying by Police who should know better. Being a charitable type of fellow, I am tempted to give the PCs the benefit of the doubt, by assuming that the officer concerned is a tad short-sighted, and misread the third letter of 'cult' as an 'n'.

Tuesday, May 20, 2008

A Mixed Day

I was down to chair a trial, a matter of domestic violence, listed for 11 am. Before 11 we dealt with a couple of POCA applications, where the police applied to detain cash that they had seized in suspicious circumstances. What we heard was suspicious in the extreme, with suspects first denying having any cash, then changing their mind, then giving an explanation, then changing that. We granted the orders to detain the money rather than to seize it, as seizure applications will be dealt with in some months' time. These proceedings were civil rather than criminal, which meant that we were working on the Balance of Probability, rather than our usual Beyond Reasonable Doubt criteria. A side effect of this is that Legal Aid will not be available, and we often see people who are struggling to understand what is going on.
We then dealt with a few committals to the Crown Court, that were put before us because we had a proper Crown Prosecutor, rather than the Designated Case Worker who was in the Remand Court. DCWs can't do committals, at least not yet, but as the system continues to dumb down and take the cheap option I expect that these 'Lawyer-Lite' types (soon to be renamed 'Associate Prosecutors') will end up doing everything that qualified lawyers now do, at least in the lower courts.
A quick coffee, to allow the lawyers to sort out some details, and it was time to start the trial. Or not, as it happened. The victim and a witness had each made withdrawal statements some time ago, and the CPS had responded, as per policy, by obtaining Witness Summonses for them to attend. Attend they did, but once in the Witness Service suite they made it clear that there was no way they would come in and give evidence. That was stalemate, because they had successfully called the CPS' bluff, since no court, at this level of offence, would punish a victim for refusing to give evidence. The Prosecutor made the best of a bad job by giving a full explanation of the reasoning behind what had happened, before offering no evidence. Case dismissed. The defence solicitor applied for his client's (modest) costs, but we refused, on the basis that the defendant had brought the case upon himself.
That, after a couple of bail applications, was our list so we had some more coffee while the staff looked around to see if we could help other courts.
"The next case is Mr. Levy, sir" called the usher. Straight away I thought: 'Daniel Isaac Levy' a regular customer who committed his first offence the year I was sworn in as a JP, and whom I have seen on a regular basis ever since. He is a 69 year old alcoholic, with a basketful of mental health issues. Inevitably, he is on an ASBO, and equally inevitably he has breached it eleven times, resulting in nine prison sentences. He has committed over a hundred offences since 1990. He is on remand, and is applying for bail. The application is quite hopeless because he has a long history of failing to surrender, breaching bail conditions and offending on bail, so he doesn't look too surprised when we refuse. Lunch beckons, and the clerk doesn't think that we will finish too late.

Thursday, May 15, 2008

And He Marched Them Up To The Top Of The Hill...

And he marched them down again. Hard on the heels of the publication of the new Sentencing Guidelines, the fruit of a number of years' work by a distinguished committee, the Government proposes to bring in a Sentencing Commission to make sure that the judiciary do not get too excited and pass a lot of nasty expensive prison sentences, rather than really really strict community penalties or really strict fines. Ah yes, fines! They bring in money, they don't need the panoply of Probation and prisons - that's the way to go, chaps!

A French View on Prison Discipline

The estimable Éolas has a piece here about prison discipline. I'm afraid it's in French though.
The last couple of paragraphs would not go down at all well with the editors of Britain's tabloid papers:-
Et pour ceux qui ont un coeur désespérément sec, et qui estiment qu'il n'y a pas à pleurer sur le sort de délinquants et criminels qui ne savent pas bien se tenir en prison, une petite suggestion. Prenons un de ces mauvais garçons, au comportement violent. Enfermez le 45 jours dans un tel cul de basse fosse. Imaginez vous 23 heures d'affilée avec 4,15m² pour marcher, dans des conditions où si vous mettiez un chien, vous seriez vous même un délinquant ; ce pendant 45 jours.

Et pensez au jour où ce type va sortir de prison, peine purgée. Vous croyez qu'il sera calmé, assagi, devenu citoyen modèle, ayant mûri par cette expérience ? Le jour où vous le croiserez, j'espère que tel sera le cas.

Dans le doute, puisque vous n'avez pas pitié des autres, ayez pitié de vous.

Here's a (very) rough stab at a translation:- (any better efforts welcome)
And for those whose hearts are desperately hard, and who won't shed any tears over the sort of offenders who won't obey the rules in prison, here's a suggestion. Take one of these bad boys who has a violent temperament. Lock him up for 45 days in a cell. Imagine 23 hours a day of being locked up with 4.15 square metres to walk around, in conditions that would be illegal to keep a dog in, for 45 days.
Then think of the day when this fellow comes out of prison, sentence served. Do you think that he will be calm, wise, turned into a model citizen, having been matured by his experience? When you cross his path, I hope that turns out to be the case.
Since you don't feel any pity for others, at least have pity on yourself

Tuesday, May 13, 2008

J'ai Survécu, Monsieur

I have had a phone call from a colleague who has just heard of a domestic violence victim who was described in court as a 'survivor'.
My colleague was very cross, rightly so in my opinion. After all, nearly all of the people involved in violence survive, be they perpetrator or victim.
It will not help victims of domestic cruelty to Orwellise what has happened to them, not least because Eric Blair chose his words with care that is not usual nowadays.

Monday, May 12, 2008

Stress on the Executive

The Duty Solicitor was on his feet mitigating for his small and scruffy client, who sat in the dock darting shifty glances around the courtroom. "I am pleased to say, sir, that Mr. Paton is getting on well with his community sentence, and that he has obtained employment. He is to start work next Monday as a Recycling Executive".
When I heard this I was forced to busy myself with my papers and to take a sip of water, firstly to cover up my amusement at the job description (I think it means working in a scrapyard), and secondly to hide my surprise that any solicitor could still have the front to say that his client has a job to start on Monday - one of the most tired old clichés in the book.
One day a lawyer will stand in front of me and tell me that his client started a job last Monday; then I will be surprised.

Saturday, May 10, 2008

The Suspense Is Not Over

I am grateful to Glenna Robson, whom I know to be one of our readers, for the news that magistrates' power to impose a suspended sentence for summary offences has been reprieved.

The Criminal Justice and Immigration Bill is now law WITHOUT clause 10 which abolished the SSO for summary offences. The Lords held firm and the government chickened out because they had to get the Royal Assent by the night of 8 May so that the prison officers were banned from strike action. All the sections about prostitution had already been taken out in the interests of getting the bill passed. The debates were fascinating and, in fairness, the Magistrates' Association has obviously lobbied the Lords to some effect. There are some powerful legal minds there too as well as formidable campaigners like Lady Stern and Lord Ramsbotham.
The decision not to press on with the change owes more to force majeure than to principle, by the look of it, but it is welcome nonetheless.

I had my say on SSOs here and elsewhere.

Here is some good-quality debate from Hansard.

Glad It's Not On My Patch

If this unpleasant business comes before a court, I do not envy the Bench that will hear it, since any likely sentence (and I stress that nobody has been charged at this stage) is bound to upset someone.

Thursday, May 08, 2008

Web of Deceit

I walked through the town today, on non-court business. As I approached the Town Hall, with fifteen minutes in hand before my meeting, I noticed the rather shabby car park opposite that is attached to a Fitness Centre, or some such. This rang a bell, since I last saw this patch of ground on a CCTV recording being shown in a trial. I strolled past, and there, in the corner of the car park, was a white Escort-type van bearing the name of the clamping (sorry, 'parking control') company that I remembered from the trial. In the van were two crop-headed tattooed men, feet up, reading their newspapers.
Knowing as I do the modus operandi of these charmless fellows, I was irresistibly reminded of a big spider, sitting in the corner of his web, waiting for prey.
Park in their bit of space, and they will emerge from their van as soon as you turn the corner. The clamp will go on, and they will straight away call for a tow truck to take away your car. The clamp fee is £80, the towing fee £200, plus a per-day charge for storage if you cannot get to their yard before 6 pm. The clampers are paid on commission, so it's clamp or starve for them.
We all know that some drivers will park anywhere, and they need to be deterred, but unwary, often elderly, drivers may simply fail to see the notices. This is sheer extortion, sanctioned by the law. Speeding costs £60, as does jumping the lights. The raft of Blair-inspired fixed penalties goes all the way up to £100 or more, but these cowboys get away with charging hundreds.
If ministers did not have chauffeurs, this injustice would have been fixed years ago.

Wednesday, May 07, 2008

Loophole - Schmoophole

A cricketer has escaped from an allegation of driving much faster than the speed limit. His solicitor glories in the soubriquet of 'Mr. Loophole' but in truth there are few loopholes, just sloppy and incompetent work by the police and the CPS, who know perfectly well what the rules are, and still screw up time after time. Mr.F is well aware of the fallibility of the authorities, and makes a decent living out of it.

Good luck this season Freddie, and enjoy the fruits of your celebrity-funded success, Mr. Freeman. No sanctions will trouble those responsible for this latest cock-up. They may not be as wealthy as Freddie and Loopie, but their pensions remain safe.

This is a Times columnist's view.

Monday, May 05, 2008

Slipping From The Dock To The Bay

I have just come back from a weekend away to find, amid the usual torrent of spam, that The Guardian has borrowed the Archer/Hollesley Bay story. They have the kindness to refer to the blog as 'acclaimed', but I have little or no confidence that a cheque might be in the post.
This story points out the consequences of NOMS' use of open prisons as overflows for the crammed closed estate. I went to Hollesley Bay some time ago, and I felt then, as I feel now, that it has to be right to try to ease prisoners who have served substantial sentences back into the world of work and family. Unfortunately the open prisons will now end up warehousing prisoners like so much of the closed estate.