Tuesday, December 04, 2012

Tout Passe, Tout Casse

Most magistrates have now attended training on the Legal Aid Sentencing and Punishment of Offenders Act, which is just as well, since much of the Act came into force yesterday. Rather curiously, the circular that I received said that the training was 'essential, but not compulsory'. Make what you like of that.

You can find full guidance on the Act via a non-taxing (or is that untaxed) Google search. 

As so often happens, the Act is being brought into effect in a piecemeal fashion and my Clerk was forced to send out advice on the new bail provisions as late as last Friday so that when making pronouncements about the grant or withholding of bail we do not paint the next bench into a legally awkward corner.

The training was spread over several weeks, so the first few cohorts of JPs had to rapidly unlearn a few things that will not now apply, at least for the time being.For example, the Act returns us to a position where we have the power to take no action on a breach of a community sentence other than to impose a fine - or at least it will do so when the new bit is brought into effect.

I was unsurprised to note that the Act abolishes Custody Plus and Intermittent Custody, hangovers from the 2003 Act. I  remember sitting for a day in a smart London hotel being told about Custody Plus (the lunch was really nice) but for all the good it did I might as well have gone fishing.

Intermittent Custody was a fiasco and was quietly sidelined. I had an email from a solicitor who had experience of the pilots, in which offenders had to report to an open prison on Friday evening and were released on Sunday afternoon. Apparently the local lads all met up on Friday lunchtime at a pub near the prison, and spent a jolly afternoon on the lager before turning up at the gates, and getting their heads down at the first opportunity to sleep it off. Some were even sent away by the prison for being too drunk to be let in. The only penalty for misbehaviour was for the (short) sentence to be made continuous, but a good few offenders decided to go for that option and get the whole thing over with.


  1. It's worth noting that LASaPoA also brings in the condition where additional requirements cannot be added to an existing Suspended Sentence Order (SSO) that is breached. Existing requirements can be modified but the effective period of Suspension cannot be extended. Naturally, in what seems to be a recurring theme of the bill, a fine can always be added to mark the breach.

    In practice, this means a Bench or DJ cannot add a curfew (to an existing SSO with Unpaid Work and Supervision) if a Curfew Order did not form part of the original sentence.

    The (unintended?) practical outcome may well be far more SSO breaches ending in activation…

  2. The only training which is compulsory for JPs is in the following rules:


    It's headed "required training courses"

    TDCs (rightly) like to "encourage" attendance on training for new legislation but, strictly-speaking, it is not compulsory.

    The "legalistic" (stuffy) answer to the point about changes is that the legal adviser is expected to be up to date and to advise the bench accordingly. However, i have always maintained that it's a good thing if the bench is trained with materials which do not subsequently alter.

    Do you really think that ideas like "Custody Plus" / Intermittent Custody received a fair trial in those areas where trials were held? I don't. Badly implemented trials - bound to fail. Did not mean that the idea was basically a bad one however.

  3. Ah, those heady days of Custody Plus training! Like Bystander, I spent a half-day on it (at what cost to the public purse?) but there was no lunch, just undrinkable coffee and stale chocolate bourbons. I have been waiting ever since with bated breath for it come into effect, only to have the killer line - "you can all forget Custody Plus, it has been dropped" - delivered at the start of last week's LAPSO training.

  4. More I see the law in action the more I get depressed. The morass of conflicting and ill thought out provisions make it almost imposssible to do justice and rathwer than helping to improve things just makes the system worse. Lok for instance at Bail, it once was a pretty simple concept with one Act that covered the lot, noew there are at least half a dozen with mind bogglingly complex section numbers. That is just one example and their are loads more.

    Given that most of our customers come from the less well off end of society unrralistic fines and a fairly hopeless enforcement system means they cost more to collect than they should. Much has been said about the 'surcharge' which is manifestly unfair in most cases, and particularly when their is no victim at all.

    Put this with the near collapse of police investigation and CPS preparation and we have a recipe for the system crashing and it won't be pleasant when it does.

    On a brighter note one of the more heartening utterances of the Mags Assoc was that the sentencing limits in the Mags should be raised which would save millions- seems to me that given the mess Gorgeous George Osbourne has to deal with fudging this issue any longer is a gross deriliction of duty by the Government. Apart from taking the strain off the police and CPS - dealing with a lot more guilty plaes quicker and cheaper, it will also save a shed load of leagal aid and the CC can be left to get on with the really serious criminal trials and heavy duty offences.

    1. There is a significant difference in the legal aid between the MC and the CC. If the def does not qualify in the MC he gets nothing and is tried at his own cost or unrepresented. In the CC he gets legal aid automatically but may have to repay some part of the aid if found guilty.

      The effect of increasing MC powers would be to expose unrepresented defs to a higher potential sentence - unless the CC system is also introduced in the Mags Court.

      How many years inside can one reasonably sentence an unrepresented def to when he is clearly out of his depth?

    2. On the subject of fines, I have always been perplexed as to why the onus should be on the courts to impose a fine which is "affordable" to the defendant, thereby encouraging (or at the very least, failing to discourage) him/her to continue in their criminal career. By analogy, if I step into a taxi at the airport and ask the driver to take me to my home 25 miles away, he will not reduce the fair just because I neglected to take account of the fact that I only had enough money for the bus.

    3. That's no reason not to do it, but definitely a reason for adopting a more cost effective system

  5. Custody Plus never really stood a chance. Even when it was first mooted under another name (before the CJA2003) Lord Falconer warned that it would be "very expensive to implement" - this was before he became Lord Chancellor. The last government, in fact, effectively discarded it some time ago.

  6. LASPO introduces a new offence of threatening with a bladed article or offensive weapon in public places or on school premises.

    For adults, this carries a minimum sentence of 6 months custody. So, at first glance anyone dealt with summarily will receive a pre-determined sentence. Or will they? Consider two defendants jointly charged. One pleads not guilty and is convicted after trial so gets 6 months. His co-accused pleads guilty, so what does he get? He must be given credit for his guilty plea so the minimum sentence provision cannot apply.

  7. With the new Victim Surcharge structure, it also removes the Bench / DJ's authority to effectively consider a Conditional Discharge or a low level community order where the defendant has no (realistic) means to pay a financial penalty. This could be through the defendant’s lack of funds (homeless people often don’t claim or are too disorganised to claim consistently) or in light of a fine account that is already unmanageable and unenviable.

    For an adult defendant the surcharges are:
    Conditional Discharge = £10
    Fine = £20 min / £120 max (based on 10% of the fine)
    Community Order = £60
    Suspended Sentence Order = £80

    With the weekly deduction from benefits set at around £5, a defendant incurring more than £260 a year in Victim Surcharges and fines is effectively running a credit card, the terms of which the FSA would criticise as never ending…

    There is a bit of discretion in that the surcharge can be dropped if the defendant only has means to pay compensation. I’m not aware of too many drunk and disorderly cases where compensation is requested and I suspect the Legal Adviser would suggest politely that a Bench was seeking to subvert the intention of Parliament were it to start issuing compensation of £0.01 in such cases (it may even have to award a minimum of the surcharge for no surcharge to apply).

    An immediate Custodial Sentence would be £80 but for a gap in the legislation (much to the MoJ’s annoyance?) which would allow the surcharge applied in the Magistrates’ Court to be discharged as additional days in custody. The powers that be are actively working on how to close this loophole “at the earliest opportunity”.

    Full details can be found in the MoJ circular at:

  8. I cannot see any point at all in lumbering a penniless offender withan unpayable fine. Given that they are allowed to pay things off at £5 or 6 for ever there is no penalty at all as it just becomes another living expence. In reality a benefit cut. There are loads of low level matters where a fine is the only penalty which again they can't pay.

    I understand the basis of a crime being a criime and the penalty the penalty regardless but there is a limit to this.

    The latest changes just make the system even more unfair than usual


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