For His Own Good?

Sending someone to prison for his own good seems to be a contradiction in terms, but last month I did it twice in one day.

The first man came into the dock looking terrible - dirty, bleary, shambling, snot coming from his nose. He was 26. He had been picked up on a warrant following his failure to appear in court a month ago. His girlfriend sat in the gallery looking nearly as awful as him, albeit rather more sober. The offences were borderline custody ones, but we couldn't sentence him because he hadn't turned up to Probation to be interviewed for the reports.

His solicitor told us that he is an alcoholic and that he is usually so out of it by mid-morning that he is not likely to know where he is supposed to be. We decided to ensure that the reports were done by remanding him in custody for three weeks, and in our minds was the unspoken presumption that three weeks off the sauce could only be good for him.

The second one looked tidy, hair brushed, clean clothes. He said "Good Morning Sir" when he walked into the bail dock (that's the open one, without the armoured glass)carrying a holdall. His solicitor, a regular in our court, explained that her client has been a heroin addict since the age of 19 and that he is now 32. She said that he had tried all kinds of rehab without success and wanted to try cold turkey. That would only be possible in prison. So please would we send him down today.

We retired, aware that this was a tricky one. Prison is not a health facility nor a social service. The law only permits us to imprison someone if the offence is so serious that only custody can be justified. This offence wasn't. On the other hand, he had a load of previous convictions, and we are permitted to take those into account. So in a slightly shabby compromise we went back in and said that we certainly would not lock him up to address his drug problem, but that his offence, aggravated by his previous, justified custody. He happily picked up his holdall, packed in anticipation of going inside, and stepped off down the stairs, to make a start on tackling his demon in his own way.

I wish him luck.

Gardeners' World

The neighbours started it by complaining about the odd smell. The Police had a look and a sniff and knew right away that it was cannabis. Armed with a search warrant and a seven-pound doorkey in case they needed it, they paid a call on the nondescript suburban semi. Inside on each floor and in the loft were scores of cannabis plants being grown hydroponically under heat lamps. The electricity meter had been bypassed to disguise the very heavy power consumption of the lamps. One room had dried leaves packed in plastic bags, scales, and other paraphenalia. The only part of the house that was not full of drug-related stuff was a six-foot square bit of the kitchen, which was the living space occupied by a 28 year-old Somali.

He appeared in custody, aided by an interpreter, and we heard that he had never met the tenants of the house, having been introduced by a Somali friend. He received £40 per week pocket money and free, if cramped, accommodation in return for feeding and watering the plants.

What a waste!

A few weeks ago I was chatting to colleagues over the lunch break and one bench was clearly far from gruntled. They had spent a totally frustrating half-day and achieved nothing, and the problems that they suffered were so typical that I made a note of them.

10 a.m. Case 1: (Common Assault x 2, Criminal Damage).

Victim withdrew evidence. Police and CPS spent 1 hour in discussion - offered no evidence. Case dismissed.

11 a.m. Case 2: CPS couldn't find their file. Finally located it at 12 noon, defendant hasn't turned up, case proved in absence.

12 noon. Case 3: Defence lawyer (counsel) had not turned up. Case adjourned to join up with co-defendant, trial set for September.

12 noon. Case 4: No police witnesses, because they had been warned to attend on a different date. Defendant failed to turn up - phoned to say he is unwell, told to get medical certificate. Case put off for 7 days to set new trial date.

1 p.m. Bench drink coffee, eat sandwiches, grumble, and go home.

It's a great waste of time and money when this happens, but every magistrate will recognise the situation.

Serious Business

Occasionally a case jumps off the page at you as you look down the list. In among the common assaults, drug cases, and shoplifters there is occasionally a real heavyweight bit of business - as there was a few weeks ago.

Making (or possessing) indecent photographs or pseudo-photographs of a child under sixteen.

That's the sort of case that comes with a lot of emotional baggage, so we settled down to look calmly at the facts. Clive is an ordinary-looking 40 year-old man who kept his head bowed below the dock rail once he had given his name and date of birth. Pure chance led a third party to discover that Clive had used their computer to access internet child porn, and a dozen photos of naked young boys were left on the computer's disk. A warrant was obtained and Clive's house was raided one cold dawn. He knew, once the sleepy daze wore off, what the police were after and he cooperated with the officers. He was arrested and his PC seized, and after interview he was bailed for some weeks while the overworked computer forensic people checked out his machine. He was bailed to his mother's address because his wife had thrown him out after his arrest, and his voluntary work at the local school was summarily cancelled.

The Court of Appeal has laid down a scale of seriousness for child pornography, running from one, the relatively innocuous, up to five, that requires a very strong stomach to contemplate. Clive was charged with possession of four scale one photos and two scale twos, all of boys aged between eight and thirteen. At level one we are talking about children who may be naked but who are not in any erotic pose, but level two might involve some visible sexual arousal.

We put the case off for a week for legal reasons, and a week later my colleagues had to decide whether magistrates' powers were adequate or whether to send Clive to the Crown Court. They will have been thoroughly advised as to the law by prosecution and defence lawyers and by their legal adviser. This particular case was on the borderline, so I shall be interested to find out which way they went.

Parking Rage

Criminal Damage was the allegation, Not Guilty the plea.

We heard that Mrs. Pearson, a 43 year old married lady, was on her way to work at a local bank and had been parking her car in the public car park. Coming to a crossing point of the car park’s roadways she had paused, and waved on a car coming from the other direction. Misinterpreting her well-meant gesture, the defendant Mr. Lee had leapt from his car, and rushed over to remonstrate with the by now thoroughly alarmed Mrs. Pearson. He then kicked the door of her car, causing the criminal damage that was the subject of the charge. Mrs. Pearson went into work, but her manager, seeing how upset she was, called the police.

We heard first from the lady, and she described her alarm as Lee had rushed over and waved a clenched fist at her through the open window of her car. He had sworn at her. “What did he say?” enquired the prosecutor. “I can’t say that word” she replied “I have never ever used it”. The chairman leant forward “Mrs. Pearson, this is not a court of morals, it is a court of law, and what you say the defendant said is important evidence. My colleagues and I have heard it all before, I assure you”. The witness burst noisily into tears. The usher scurried over with the tissues and a cup of water, and the chairman offered to withdraw if she needed a moment, but she said that she would be all right.

She braced herself and said “He called me a fucking bitch, and said that if I couldn’t drive I should stay off the fucking road and that if I waved at him again he would smash me, and did I think that he was some sort of cunt. He then kicked the car door”.

Well, she had broken her taboo, the floodgates were open, and by the end of her evidence and cross-examination she was effing and blinding wherever required.

We convicted the oaf, and fined him £250 plus £120 costs and £225 compensation to repair the car door. We then added £50 personal compensation to Mrs. P. for the distress she had suffered. Although no physical contact occurred she was very frightened indeed, so we thought that the cost of a modest dinner in a restaurant might make her feel a little better. We couldn’t add anything on for making her use the f-word though.

Existential Conundrum

I was approached by an old friend with a request to sign a document for him. I was taken aback to find that the document was headed 'Certificate of Existence'.

It turned out that he is in receipt of certain benefits from a trust and that audit requirements sensibly require annual corroboration of his continued presence in the land of the living.

So I signed it, but for some time I was plagued with memories of late-night undergraduate debates about whether we truly existed and suchlike philosphical detritus.

My friend has one advantage over me now: although I am pretty sure that I exist, he has a certificate signed by a JP to prove that he does.

Bother!

I did a remand court the other day, and I had a thoroughly satisfying morning. The business flowed nicely, and by taking a robust approach to requests to adjourn we got several cases moving, rather than leaving them bogged down for another week or two. In the old days, when faced with a request for an adjournment we almost invariably agreed, but nowadays we are determined to reduce delay, and any advocate who wants an adjournment had better come up with a convincing reason for it. A little probing can often reveal that simply putting the case back for a couple of hours in the list will allow time to sort things out so that we can go on to the next stage.

Mid-morning was enlivened when three odoriferous men came into the gallery and plonked themselves down. A few minutes later I noticed that they were talking among themselves, and from their red faces and general demeanour I guessed that they had made an early start on the Tennents or the cider. I gave them a firm warning to be quiet, but they were at it again a few minutes later, so I took the bench out while security and a passing policeman removed them. The usher duly sprayed the gallery with the can of air freshener that is kept handy on the same shelf as the Kleenex.

We then had to sentence a case in which there were pre-sentence reports to read. We retired, and in view of the potential gravity of the matter we carried out a full structured sentencing exercise, considering seriousness, aggravation, and mitigation. We decided that the offence passed the custody threshhold, but then went on to consider whether to suspend it. We were all treading on new ground here, and we had to rely on the training that we received last February. Along with the power to suspend we now have the power to impose other requirements that can cover drug treatment, prohibitions on certain activities, and many other things including - aha! - unpaid work. So we decided to add a further 100 hours work on top of a YOI sentence, reduced to reflect the guilty plea, and suspended for twelve months. That way we felt that we had a suitable mixture of punishment and deterrence. We called the clerk out to run our decision past her and she confessed that she had never done one of these either, but she said that it all looked legal.

We agreed that I would lay it on very heavily that the young man was now only a hiccup away from going inside. Any failure to complete the work assignments properly or any further offence could only have one outcome.

All agreed, we trooped back in to tell him. I picked up my notes and was just into my preliminary remarks when I saw the defence solicitor getting to his feet. Damn! I hadn't asked him if he had any mitigation to add to the report, and the clerk and my colleagues had missed it too. The fact that he had already suggested a suspended sentence had ticked that box in our minds. I apologised, he mitigated, and we sentenced his man. His mother burst into tears when she heard that we had suspended the sentence.

No harm done by the slip-up of course, but I was cross with myself for spoiling what was otherwise a smoothly-conducted morning.

Later one of my colleagues noticed that there were seven unrelated defendants on our list with the name Mohammed. One of them pleaded guilty to drink driving, and we mused, as we fined and banned him, that his punishment would have been rather heavier before a court in Tehran or Jeddah.

Apocrypha (11)

Magistrates are often called upon to witness a Statutory Declaration. Most of the time we hear them in court, but we can do them at home, and I have done them in the pub before now.

The formal declaration goes:-

'I (name) do solemnly and sincerely declare that the contents of this my declaration are true. And I make this declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.'

The person making the declaration then signs it, and the magistrate does the same. It is usual before putting pen to paper to warn that a wilfully false declaration may lead to a charge of perjury. I like to say 'I am not signing this to say that it's true, but to say that you say it is true'

I have done countless numbers of these over the years, but they have one thing in common: at least ninety per cent of declarants stumble over the word 'conscientiously'.

Announcement

In a statement issued last night the London magistrate who calls himself Bystander on his widely-acclaimed blog announced an indefinite moratorium on use of any simile involving radar. Suicide bombers 'were not on our radar' or something 'disappeared from the radar' - tired old clichés, all of them. Every newspaper uses the R word several times a day, and it must stop. Now.

The only permissible use of the R word in future will be in connection with aviation, speed traps and weather forecasts.

Blog readers are asked to note any further occurrences and to post them on the comments section, in order to shame the perpetrators.

Emotions

The news is of five (alleged) failed bombers captured, and numbers of other arrests for questioning.

Feelings:- Admiration for the police work involved, and anxiety about what and who else is out there to threaten us.

Tabloid and saloon-bar emotions run high, as fear, relief, and anger coalesce into a confused search for blame - of a group, a race, a religion, a state, or a cave-dwelling millionaire fanatic. Conspiracy theories are abroad, and some people have already floated the idea that what happened is Britain's own fault. Simplistic solutions will be the tabloids' meat and drink for a week or two, or until some further sexual shenanigans draw the papers' attention back to Big Brother.

For those of us who care for the rule of law this is the time to counsel calm and patience, neither of which offer good headline material.

Thus far the police seem to have made an excellent start, but they are faced with mountains of evidence, thousands of witnesses, and unknown numbers of threats to come. They must have time to carry out their biggest-ever investigation free from political and media pressure for quick results. We have seen before, in an Irish context, where that presure can lead. Those found guilty must be convicted by verdicts based on untainted evidence put before a level-headed jury. If those now in custody are charged with offences relating to the recent real and failed bombings no trial is likely to begin much before the end of 2006 or early 2007, if for no other reason than the sheer weight of material to be considered.

For myself, I feel relieved that the investigation is under way with some very promising arrests and potentially excellent forensic and other evidence. I just hope that for the July outrages legislators and citizens will resist any rush to judgement and stand back patiently while the police do their job.