We have reached a stage in our national politics where the government has set in place an overriding strategy, and has little choice but to watch nervously with fingers crossed to see if it works. Those of us trying to keep our system afloat on three quarters of the money that we used to have, hope that it will.
History shows that when Parliament doesn't have much on its legislative plate that is likely to make any real difference, Hon. Members occupy themselves with passing useless new laws that give the illusion of activity to mollify the press, while the rest of us hope that not too much damage will be done before the law falls into disuse or is quietly repealed.
The vast majority of laws in this country are relatively new; the body of common law that served us well for so long has been supplemented by a mass of new statutes, often duplicating what has gone before and frequently muddying the water so that learned judges and lawyers have to devote their finely honed minds to make sense of things.
So it was with the Asbo, one of Tony Blair's bright ideas, aimed at the Sun/Mail Law'n'order axis. The Order has gradually fallen from favour as its limitations became apparent, and almost all of the breach cases that I see these days are pathetic and hopeless addicts or those with a personality disorder that isn't quite bad enough to result in a hospital order. New plans are being cooked up as I write; I haven't read them in detail, but it will be very surprising if they have any real effect on the behaviour of the unruly part of the populace.
I am often reminded of the irrelevance of so many new laws when I look at my printed court list that refers to the law that is said to have been transgressed. The other week a man came in charged with stealing a lot of stuff from a railway. Now theft and the associated handling charges are an everyday matter but this fellow was charged under the Malicious Damage Act of 1861 because his action 'caused to be obstructed an engine or carriage'. This law was passed in the height of the Victorian Railway Age, at a time when the criminal law ran to a fraction of its present complexity, but here we are in 2012 still using it. I have seen two drunks who strolled through a road tunnel at 2 am charged under the Licensing Act of (I think) 1872 and a few years ago some Jihadist wannabees were charged under an Explosives Act that was passed when Queen Victoria was around to give the Royal Assent, despite the plethora of anti-terrorism law passed in recent years.
So I hope that our Parliamentarians have a nice quiet summer, enjoy the Olympics, if that is their kind of thing, and put their feet up. Leave the law alone for a bit lads, because you can do precious little good, but quite a lot of harm if you carry on making daft laws.
For the record here is the Malicious Damages Act 1861 in its original and its present amended form.
Musings and Snippets from a recently retired JP. I served for 31 years, mostly in west London. I was Chairman of my Bench for some years, and a member of the National Bench Chairmen's Forum All cases are based on real ones, but anonymised and composited. All opinions are those of one or more individuals. JPs swear to enforce the law of the land, whether or not they approve of it. Nothing on here constitutes legal advice.
Tuesday, May 22, 2012
Give It a Break
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I'm not a Sun or Mail reader BS, but the reason ASBO's failed, and the new Behaviour Orders will fail, is that there is no effective deterrent sentencing to support them. But then why should these Orders be any different to the rest of the ineffective sentencing policy/guidelines?ReplyDelete
An Asbo breach carries up to 5 years at the Crown Court. I have seen some who breach repeatedly given sentences of up to two years, only to reoffend. Deterrence is meaningless to a 65 year old alcoholic. Lock him up and he will take his discharge grant to the off licence on release and off we go. That is why the last one I saw is on his ninth breach.ReplyDelete
We have now had 50 years of ineffective sentencing. It won't be changed overnight or by one deterrent sentence. There is no motive for persistent offenders, be they alcoholics, drug addicts or just criminals, to change. Generally they walk in and out of the justice system with impunity. The system fails to protect the public who are simply told to protect themselves and who continue to suffer as victims of crime.Delete
The idea behind ASBO's was that those subject of them were antisocial nuisances and would be dealt with harshly if they breached those Orders. Very few offenders received any sort of effective sentencing. They quickly learnt that breaching your ASBO was no different to any other crime. So no incentive to change poor behaviour at all. If every one of these breaches resulted in a two year sentence you would have seen some changes.
Your notion that it is a waste of time says it all about our justice system and the effectiveness of rehabilitation in the whole failing mess.
"The system fails to protect the public who are simply told to protect themselves"Delete
And are then arrested and harshly punished should they have the temerity to do so.
On the subject of irrelevant new laws: Working in IT, I cringe every time someone talks about new "Cyber-laws" being needed. It seems so easy to sensationalise a story by making it seem like the problems are caused by Facebook, Twitter or Blackberries, instead of admitting that people commit crimes; technology does not. Next time you see a pressure group clamouring for a new law to "stop-X-on-the-Internet", try imaging the same law to "stop-X-on-the-pavement" or "stop-X-on-the-bus" and see how stupid it all sounds. The act should be the crime, not the medium in which it is performed.ReplyDelete
As a copper in the '60s I always had a soft spot for "Town Police Clauses Act 1847" (where applicable. The provisions of s28 were (are?) so wide that one could usually make 'Anti-Social' acts fit.ReplyDelete
I used to amuse myself by imagining a grizzled old Sergeant thumbing through his battered copy of Moriarty's during the quiet hours of the night to find the most interesting charge to stick on the occupants of his cells.ReplyDelete
In my local paper there's a weekly round-up of the mags court cases and sentencing. It's common that when an ASBO has been breached the only course of action is 'ASBO to continue'.ReplyDelete
Thank you for the link, BS. I had fun reading the MDA 1861, and was especially struck by the wording of s54 regarding the making or possession of gunpowder or any other such substance. Superbly taut wording, but since repealed.ReplyDelete
My main objection to ASBOs was that they could impair the liberty of a person who had not been convicted of an offense under the beyond-reasonable-doubt burden of proof. They violated a fundamental principal of justice.ReplyDelete
I meant "princple" BTW!Delete
BS's post has been overtaken by events - The Times reports this morning that Theresa May's plans to replace ASBOs with Criminal Behaviour Orders have been delayed, and will not now become law until at least 2014. ASBOs were introduced in 2005, the year I became a JP, but I have yet to give one. Bindings over and restraining orders yes, but never an ASBODelete
"My Government has examined in great detail all aspects of its areas of responsibility and has carefully considered its findings. It has concluded that there is nothing which requires its attention, and accordingly presents no measures to be enatce in the current......" Whoops. I must have dropped off.ReplyDelete
It seems to me that the Treachery Act of 1940 (passed in the first week of Churchill's government) is such a wonderfully concise description of the malefaction that all the wordy anti-terrorism legislation (on both shores of the Atlantic) tries to address.ReplyDelete
All fine, but in 1940 it was obvious who "the enemy" were. Today, not so much.Delete
this is a wonderful post. i felt it very interesting and useful. all i have to say is that today's law makers are not lawyers but politicians, who hardly know any thing about this. if this situation prevails our the laws framed will continue to be pathetic.ReplyDelete