Er- Not Quite According to Plan Then?

The ever-readable policeman seems to think that CPS Direct (the 24/7 hotline that advises police on the correct charge) isn't working all that smoothly. It sometimes seems that every time one part of the criminal justice system is reformed the Law of Unintended Consequences will ensure that something else will go awry.

Time For You to Have a Go Again

It’s time for you to be in the hot seat again. This case is a composite of some typical ones, and I am going to ask you how you will deal with this man who has just reoffended. Most magistrates will have seen a case like this one.
Brian is in his forties. The years have not been kind to him, and homelessness and alcoholism, combined with the fact that he has always had learning difficulties, have left him looking old beyond his years. He is accompanied in court by an ‘appropriate adult’ which is standard procedure for children and for adults who may have difficulty in understanding what is going on and in expressing themselves. He has a criminal record going back about 25 years, almost entirely for minor public order offences, predominantly being drunk and disorderly. He lives in hostels some of the time, in abandoned houses some more of the time, and in Wormwood Scrubs during periodic incarcerations. When drunk, which is most of the time, Brian can be a really unpleasant nuisance, staggering about the streets swearing and abusing total strangers. The public react to him with alarm, getting away from him as soon as they can, and I am sure that most local citizens want to see the back of him.
He is in custody, having just been arrested again for drunk and disorderly, but for the third time in nine months he has also been charged with breaching an Anti Social Behaviour Order. About 18 months ago a court granted an ASBO that banned him from being drunk in public. For each of the two previous breaches he has been sentenced to six months in prison, of which he will have served half.
He pleads guilty, and his solicitor asks you to sentence him today rather than waiting for a pre-sentence report, as the court will have all the information that it needs without one. The solicitor reminds you that Brian is entitled to a reduction of sentence of one-third for his plea of guilty. The clerk addresses you and reminds you that you should consider whether to commit to the Crown Court for sentence in view of the repeated breaches of the ASBO. Your maximum power today is six months. At the Crown Court a judge can impose up to five years.
You retire. One of your ‘wingers’ is very new to the bench, and asks what is the usual penalty for a drunk and disorderly. You explain that it is usually a conditional discharge or a fine, and that any fine is often cancelled out by a night spent in the cells. You explain that it is the breach of ASBO that you need to consider.
Your decision. Do you:- Send him up to the Crown Court for a sentence longer than six months? Give him six months straight off, and tell him that the credit for his plea lies in the fact that you did not send him upstairs? Fine him? Give him a Conditional Discharge? (Community Penalties are not available because on a previous occasion Probation reported that he has been given, and breached, the whole range of such penalties).
Tell me what you would do, and we shall return to the subject in a day or two.

Another Odd Job

As I have said before, we are sometimes asked to decide on something that is well out of the ordinary.

On one occasion, it was to decide someone's age. The someone in question was an illegal immigrant from a third-world country who had committed a criminal offence. He claimed to be 17, which makes him a youth in legal terms. The Youth Court only sits on two days a week in my courthouse, and this was not one of them. If we had been sure that he was 17, we would have remanded him over to the next youth court. The prosecution, however, challenged his age, and I could see their point. I am no expert, but he looked well over 20 to me - more like 24 if I had to guess.

So our bail decision was to send him to the youth court and ask them to determine his age for legal purposes. We had no firm evidence of his age - in fact there may even be none, as some rural areas in poor countries have no system of records. Quite a few such people give their date of birth as 1st January, 19XX, which is a convention for their being fairly sure about the year, but having no idea about the date. This chap was a mystery.

Stuffy Nose

I was at a meeting the other day and over coffee I got chatting to a JP who sits at a court that hears cases from a busy airport. He told me that he had recently seen a woman who had been stopped carrying one-and-a-half kilos of cocaine, estimated street value £75,000, through the green Customs channel. The drug was concealed partly in her knickers with - wait for it - the balance concealed in her rectum and her vagina. These smugglers are known to Customs as 'stuffers' as opposed to 'swallowers' who swallow packages of drugs and retrieve them as nature takes its course.

If any of you move in the kind of social circles where a post-prandial toot of Colombian marching powder is de rigeur, next time you see someone snorting coke up his nose why not tell him that it has quite possibly spent 24 hours up a Caribbean lady's bum? Afterwards, of course.

I Wonder What My Chances Are?

The Prime Minister made a speech about crime about ten days ago:-

Mr Blair claimed that under the criminal justice system, in theory, the police charged the accused, the prosecutor prosecuted and the court decided the outcome, but that was not what happened in reality. "In practice, the person who spits at an old lady on her way to the shops is not prosecuted because to do so takes many police hours, much resource and if all that is overcome, the outcome is a fine. The result is the police do not think it is worth it; and so it doesn't happen."

That seemed a bit odd to me, so I have just looked up the sentencing guidelines in my Bench Book. Spitting is Common Assault. The guideline is a community penalty. Among the potentially aggravating features listed are “spitting”, and “victim particularly vulnerable”. The outcome is therefore unlikely to be a fine, but rather a community sentence and a bit of compensation for the old lady. Perhaps if the PM spent a bit less time hobnobbing with coppers prosecutors and Home Office advisers and talked to one or two magistrates he might be able to form a more balanced view.
I don’t live too far from Chequers, and I am usually free for Sunday lunch. The email’s in my profile. No need to fuss, no special dietary needs or anything.

Police Tackle Priority Crimes

News Report:-

Police confirmed tonight that Pete Burns, the 1980s pop star locked up in the Big Brother house, was only monkeying around when he told his housemates that his fur coat was made out of gorilla pelt.

Hertfordshire Police officers, following up on complaints from the public, confiscated the fluffy black and white coat in an unlikely raid last night on Elstree studios.

Burns had been warned that he could face up to five years in jail or an unlimited fine for breaching international rules on the trade in endangered species.

But Sergeant Jamie Bartlett, the force's wildlife officer, told Times Online tonight that Natural History Museum experts had confirmed that the coat was not made of gorilla - although it might be made of the threatened colobus monkey, which it more closely resembles.

"It's not gorilla," Mr Bartlett said. "It's got nothing to do with Appendix A of Cites (the Convention on International Trade in Endangered Species).

"Until I know what it is I can't say if there's been a more minor offence, but it's not gorilla, which is the main thing everyone's been worried about."

What can I or anyone say to cap the absurdity of that report?

We are told, often correctly, that some of our fellow citizens are afraid to leave their homes, that drug crime is rampant, and anarchy rules our sink estates. So the 'Wildlife Officer' (what's wrong with having a few 'lowlife officers'?) sits down with museum experts to investigate the provenance of a coat. Yes, that's right, a coat. Meanwhile, in court today, I have been forced to adjourn a number of cases because the 'overstretched' police haven't provided information to the CPS in time to allow a trial to proceed.

Great Legal Jokes (no. 94)

He, in a few minutes ravished this fair creature, or at least would have ravished her, if she had not, by a timely compliance, prevented him.

Henry Fielding (1707 - 1754) "Jonathan Wild"

(Mr. Fielding was a Justice of the Peace, but not such a famous one as his brother).

Shoppers Lifted

The latest Government scheme to take the nasty expensive courts, with their habit of asking awkward questions, out of the 'lower' end of the criminal justice system and to allow police and prosecutors (dear God, if you had seen the CPS staffers that I have seen, you wouldn't let them impose a penalty on your dog) to impose penalties on those who either admit guilt or are intimidated into an admission without any need to trouble a lawyer to come and advise them or who are just plain stupid, treats shoplifting as a simple little bottom-end crime.

Well, up to a point, yes. The vast majority of shoplifters who appear in court are drug addicts desperate to fund their next trip to la-la land. Drug treatment, and only drug treatment, has some chance of sorting them out. Deterrence has no meaning to someone who is an hour overdue for an armful of diamorphine or a noseful of cocaine hydrochloride.

There are, however, a few persistent professional shoplifters (that is not to say that the proceeds don't end up in Afghanistan or Colombia eventually, just that the thieves are relatively organised). London is a magnet for these people, with its plethora of shops selling the highly-resaleable designer goods that offer a lot of value per item nicked.

One such crew commuted down from Glasgow on a cheap day return, and hit Oxford Street. They were good at their work, and in a few hours they had cleared over £10,000 worth of stuff from the rails, undetected. They packed the loot carefully and repaired to the terminus to await their transport home. At this point human frailty took over to spoil their day out. One of their number stole £9 - odd of stuff from W.H.Smith in the concourse, and was captured. The police approached the group, who had been noticed on CCTV, and searched them. After a night in the cells the group appeared before magistrates who popped them off to the Crown Court to be dealt with.

That's almost a little morality tale, isn't it?

(Later)
Magnus Linklater in The Times gives a good account of the dangerous direction in which we are heading.

Just What Are Our Rights?

In a comment on the Gay Horse thread, Anonemouse links to the Bill of Rights. Now I know that some of the anti-speed camera lobby are giving this clause a go:-

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

and I shall be interested to see how they get on.

I haven't, however, seen anyone lobbying to get this one enforced:-

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Drunk Young Man Gets Away With It

The BBC reports on the authorities' shameful failure to prosecute and to punish the posh drunken yob who accused a policeman of having a gay horse.........It's no good, I can't keep this up.

This case is as devoid of commonsense as a case can be. The serious point is that the drunken graduand was given what the police call a 'whizzer' - an £80 fixed penalty disorder ticket. He had the backbone to insist upon fighting the issue in court before magistrates. The CPS have, by that insistence, been forced to confront the ludicrous triviality of the case, and have at last had the sense to drop it. The traditional phrase, used by magistrates and lawyers alike, is "It's a load of crap".

The lesson behind this nonsense is that when police officers, who have a necessarily monochrome mindset and approach (and oh no, that is not a criticism, I assure you) are empowered to dish out fixed penalties, the pressure of the moment may lead them into a hasty decision. They have my genuine sympathy. A court can look at all of the circumstances in its own time, and reach a balanced decision. A copper who is cold tired wet and fed up may not enjoy the luxury of doing so.

Government thinking is solidly in favour of more summary powers for everyone from the PC on the beat to Council functionaries, to the dog catcher. If you want a fair hearing, go to a court. That doesn't mean that you will always like the decision, but the people making it are impartial, and are doing their best to be fair.

report Here