Throw away the Key

The always-readable Ambulanceman's blog
has asked me directly about 'automatic maximum sentences' for assaults on emergency service personnel.

Now nobody could take these kind of attacks more seriously than I do. Our guidelines tell us that assaults on public servants are especially serious, and we always sentence near the top of the range. Where I must disagree with Reynolds is with the idea of any kind of automatic sentence. Just as he knows that no two patients or emergencies are ever alike, no two cases are alike either. Judges and magistrates use their training, their experience, and their judgement to place each offence at the right point on the scale. Deterrence is of limited value - after all the drunk or drugged oaf who kicks off in A & E has no thought for the consequences, he is just out of control.

We are all practitioners in a system that deals with the ultimate variable - the human being. That requires humans to deal with it, not automated justice, because that has nothing just about it.

Interpreters

Offenders are a diverse lot. We deal with people from hundreds of different backgrounds. Those whose English is not up to the technical demands of a court appearance are entitled to an interpreter, and that right is enshrined in the Human Rights Act. There is a list of officially approved interpreters, and for the usual languages there is no problem in finding someone. Just occasionally we run into trouble when the required language is a rare or obscure one, for example Twi, which is a Nigerian dialect. There is, for obvious reasons, a limited supply of qualified Twi interpreters, and if they are all booked we may have to do the best we can while adjourning for the minimum period possible to get the interpreter to court. There are interpreters for Jamaican patois, for Pidgin, and for anything else you can imagine.

Even more exotic are the defendants who need a sign-language interpreter. Such cases always take a lot of time, because the interpreter has to help the lawyer and client to discuss the case before it starts, and then everything in court takes twice as long. On one occasion we were in the middle of a long trial when the signer interpreter, who was a lively young man with an animated manner, was interpreting a complex point of law and his hands and arms started to whirl around in a blur. The defendant appeared to be understanding, but I nearly lost it when one of my colleagues passed me his notepad on which he had written "Tell him there's no need to shout".

There was one such case when two deaf friends went out for a beer one night. The driver was suddenly taken drunk, so his pal, who had also taken a glass or two, offered to drive home. En route he managed to stall the car. The two of them attempted to push-start the vehicle, but in the process the vehicle rolled over the foot of its owner.

A member of the public called the police, and when they arrived they noted that there was a stalled car, a man writhing in pain on the road, and another man kneeling by him crying. The officer asked the usual questions, and received incomprehensible replies. He assumed correctly that both men were drunk, but he assumed incorrectly that this was the cause of their inability to speak. Once they arrived at the police station it dawned on the custody sergeant that there was a communication problem, and a signer was sent for.

The inevitable twelve month ban followed.

So Help Me God

Evidence is given on oath in court. Witnesses have the choice to affirm or to swear on the holy book of their choice. Court staff are trained to be sensitive in handling holy books, and unless the witness looks to be reasonably educated it is standard practice for the usher to ask him to repeat the oath, which is a sad but realistic reflection on the English education system that manages to give children a minimum of twelve years' compulsory schooling that leaves a fifth of them unable to read competently, or even at all. Inevitably, some people finish off with the "So Help Me God" that they have seen on American TV programmes.

Many judges and magistrates would like to see a single secular oath for everyone, and there is anecdotal evidence that some jurors treat affirmations as being less binding than an oath.

Bringing in religion has its risks, too. A man took the oath on the Koran. He had pleaded guilty to drink driving, but was asking us to find Special Reasons not to disqualify him because he claimed that he was only moving his car to a safer part of the pub car park before walking home. The prosecutor challenged him in cross-examination, saying that the police evidence was that he had driven out of the car park but reversed smartly back when he spotted the police car.

"I would not lie to this court sir. I have taken the oath on the Holy Koran".

The prosecutor put down his file and paused. "Doesn't the Koran also say that you must not drink? And have you not pleaded guilty?".

The defence brief shot to his feet and asked me to put a stop to this inappropriate line of questioning, as he put it. "Your client has introduced the matter of the Koran, and he must now be prepared answer questions on it" was my reply.

Disqualified twelve months.

No Comment

We had a scruffy man in the other day, facing the usual vehicle offences of no insurance or MoT on his battered old van, while he had never held a licence of any sort. He pleaded guilty, but what caught my eye was the means form that he had been obliged to give us (although out of deference to his less than perfect literary talents the usher had done the writing for him). Age 40. Unmarried, lives with long-term partner. Eight children, from three years old to fifteen. Unemployed. Since when? "my whole life". Moved from Eire to England aged about 18.

Here goes: Income (benefit) £350 per week. Rent paid on top.

We fined him as per the rules, and banned him from driving for six months. The bench were pretty philosophical about it when we went out the back, but the usher was livid. I can understand why, because I know what the ushers are paid.

More about ASBOs

Anti-Social Behaviour Orders got off to a slow start and not many were made in the first couple of years'operation. Now they are being sought at an increasing rate and there is already concern among some judges and magistrates that orders are often sloppily drafted, and that in some cases they become an excuse for sloppy policing too.

At best an ASBO can be a useful tool to restrain bad behaviour and to protect the public, but it is essential that the Order's prohibitions are clear, simple, and enforceable. Press reports show a tendency towards over-complex and sometimes ludicrous prohibitions, such as the woman who was, in effect, ordered not to keep on trying to kill herself, the woman who was forbidden to pass anything out of her letter box (but not the cat flap?) and one I saw the other day forbidding the defendant to travel on certain train lines and to certain stations on those lines. Unfortunately the drafting was so bad that when he was arrested at one of the named stations it was discovered that the line from which he is barred does not run through that station and that he had therefore been illegally arrested.

The ASBO enthusiasts' latest wheeze concerns a local squabble in the Wiltshire village of Lyneham which has two rival websites. The more robust of the two ran some Private-Eye/Viz style gibes following the death of the Pope, and its webmaster is now being threatened with an ASBO! If the local authority is foolish enough to apply for one, I do hope that the local Bench send them away with a flea in their ear.

Odd Jobs

Every now and again a job turns up that is unexpected, urgent, and for which we have no training and no guidebook. I was at home one Sunday morning when a neighbour called to tell me that his elderly mother, who had come from South Africa to live with them, had applied for British nationality. The process was almost complete but she had to take the Oath of Alliegance to the Queen as the final step.

Of course I said I would do it, so I went and changed into a jacket and tie before going to see Grandma. She wanted to take the religious oath rather than the affirmation, so I sent her son to find an Old Testament, the family being Jewish. We stood each side of the dining table along with the rest of the family and she duly swore true alliegance to Queen Elizabeth the Second, and her heirs and successors according to law. I couldn't just leave it at that, so I shook her hand and said in my best Bench Pronouncement voice "Welcome to British Citizenship. May you enjoy it for many years." Not exactly the Gettysburg Address, I grant you, but I did have to make it up on the spot.

A while later I was chairing a routine court when our business came to a temporary halt, as happens all the time. The usher came back in with a group of six uniformed police officers (who looked to be about 16 to my middle-aged eye). "These are newly appointed constables to the xxxxxxxx constabulary sir, here to be sworn in."
My immediate thought was that they were entitled to some sort of formality on what should be a solemn occasion, so I took the bench out for a few minutes while I cobbled together a piece of patter about the office of constable being an ancient one, its being mentioned in Shakespeare, and that the money is rather better nowadays, that kind of stuff.

So we went back in, and they stood to attention and swore to serve the Queen In The Office of Constable, and I then gave my little address and called them each forward to shake hands and to give them a signed certificate. Something similar has happened since, and I dealt with it in the same way, but it would have been nice to be forewarned.

All in the Name of Art

I went to the excellent Turner Whistler and Monet exhibition at the Tate today. My mind is still boggling after my visit to the Gents. There is a notice screwed to the wall to the effect that an anonymous well-wisher has sponsored all of the paper used in that facility.

"er - I'd like to sponsor you a bit" "certainly sir, what do you fancy? Buy us a nice painting, build us a new extension, or perhaps you could sponsor the restaurant" No, I want to sponsor the toilet rolls"

Never look a gift horse in the mouth, those chaps at the Tate. Bog rolls it is.

No wonder the bloke was anonymous.

Faith!

We had a local alcoholic in for pre-sentence reports the other day. Sober (which is not often) he comes across as an ordinary, well-spoken chap. The incident we were dealing with occurred after he had taken ten cans of strong lager and a bottle of wine, which turned him into a menace. Probation asked us to adjourn further for a psychiatric assessment, which we agreed to. As we bailed him he looked straight at me and said "I have a very strong faith in God, Sir"

I was tempted to advise him to transfer his faith to someone better known in Ealing Broadway.

Solicitors and Policemen

In the always interesting The Policeman's Blog
Copperfield has some very cynical and jaded things to say about defence solicitors. The comments that he has received are split between some who sound like police officers who have no time at all for the defence brief, and those who think them a vital safeguard. The original post accuses some lawyers of a variety of unprofessional conduct that drifts perilously close to conspiracy to pervert the course of justice, and may even cross that line. He makes the usual gibe about solicitors being paid for their work, unlike the rest of us who work for the love of it.

I did not recognise any of these characters, although to be fair, I am not in the police station when suspects are being interviewed. Most of the regular defence solicitors at my court are hard working, professional, and dedicated to the interests of their clients. Many of them are badly paid too, and a young lawyer with one year's experience after six years' training probably earns a good deal less than the custody sergeant he is dealing with. Of course there are some poor advocates, just as there are lazy and incompetent policemen.

Some police officers as well as some members of the public for that matter, see something disreputable in defending people accused of crimes that are sometimes very nasty indeed. But even nasty people are entitled to have their case put as well as it can be. Don't forget that a criminal charge pits the mighty resources of the state against one individual. Even the most obnoxious thug should be properly represented. Another thing that many people forget is that a good solicitor will always advise his client to plead guilty if the evidence looks strong, and thereby receive the maximum sentence discount. Much difficulty can arise in the police station if the solicitor thinks that his client has been over-charged; in those circumstances the only option is to plead not guilty and try to sort it out from there. That is why the charging decision has now been removed from the police and given to the CPS who will have a presence in police stations or on a 24/7 helpline.

The old sweats in the police often wax nostalgic for the good old days pre-PACE, but let's not forget that PACE was introduced by the Thatcher government (no friend of the criminal classes) in response to a series of miscarriages of justice caused by, shall we say, over-enthusiastic policing that included blatant rigging of evidence.
There was an era of 'noble cause corruption' when a minority of police officers were so incensed at a particular crime that they would give the evidence a helping hand here and there. Injustice was sometimes the result.

Fat cat lawyers exist, but not in the field of criminal legal aid. My daughter and son-in-law are solicitors, but they work in company and commercial law where the rewards are potentially very high indeed. Plenty of smaller High Street practices that deal with a mixture of work are really struggling, and such firms will be a rarity in a decade or so.

Just one point, I am assuming that the April 1st posting date does not indicate that Copperfield is on a wind-up. Even if he is, my comments above are still valid.

Pistol Packing Schoolmarm

There has been a lot of comment in the press about the recent jailing of a teacher who rounded on the young hooligans who had been tormenting her family and fired an airgun near, but not at them. I did not hear all of the evidence but this kind of behaviour certainly crosses the custody threshold, and I think that most magistrates would have sent the case to the Crown Court, although in the event the sentence was within magistrates' powers.

(Later) The Court of Appeal released the lady by substituting a Conditional Discharge, while reaffirmiing the principle that such offences are well within the custodial bracket. She served the equivalent of about a three month sentence.

As it happens, one of the sentencing reforms that has just been introduced is to bring back our power to impose a suspended sentence. These went out of use some years ago, as they were being used sometimes as a 'lazy' sentencer's alternative to a community penalty. Now we may use them again, but the offence must pass the custody threshold, may be suspended for 6 months to 2 years, and requirements may be attached, such as drug or alcohol treatment. The presumption will be that if the offender fails to comply with any of the requirements or commits any further offences then the prison sentence will be activated.

I can think of plenty of cases where this might be useful - perhaps this lady's might even have been one of them. We have to take a very firm line with any misuse of dangerous weapons, but this particular lady's incarceration is otherwise quite pointless.