A Shot Across The Bows

Criminal defence solicitors are under pressure. Changes to Legal Aid over recent years have severely cut the income of many firms, and one response has been for more solicitors to qualify for Higher Rights of Audience, permitting them to appear in the Crown Court. This obviates the need to brief Counsel and keeps the available fees in-house (and has the side effect of making life very difficult for the junior Bar).
It's not all plain sailing though, as this judge makes clear.
(Thanks to the excellent Crime Line for the link)

The Spring Is Sprung...........

Looking back over the last few weeks, I am sorry to see that I have been a bit of an old grump. In my defence, I might suggest that even Pollyanna, had she been a JP, might have found 2009 Britain a bit challenging, but let that pass.
It's nice and warm today, to the west of London. The trees are budding, the birds are nesting (especially the wood pigeons, who seem even more randy than ever this year - I can't imagine how they find time to build a nest). The recession is, as expected, nasty for quite a few people, including a few of my friends, but an encouraging number of those who have lost their jobs have found something else, even if the new post is less exalted than they were used to. At least they can pay the mortgage.
Many locals have the builders in, which is good news for the shovel-and-bucket merchants. Quite a few shops in the town are empty, but to be fair, most of those were pretty hopeless anyway, selling stuff of dubious attractiveness at improbable prices. Easter in the local park was wonderful, with hundreds of children on the newly-re-equipped playground and all of our High Street coffee shops packed. My local pub seemed quiet when I got there on Monday until I looked in the garden and saw dozens of families out in the sunshine.
So begone dull care! I'm going to cheer up, whether you like it or not. I have one sitting to come this week, so I shall attempt to adjudicate in my most avuncular manner. Let's just hope that the CPS, or HMCS, or any of my other Betes Noires don't spoil it.

Bad Week? Make That A Bad Fortnight

It isn't getting better is it?
Now we have the anti-terrorist operation in the North West apparently drawing a blank, and the arrest and release on bail of 114 potential environmental protesters in the East Midlands (on suspicion of conspiracy, which is a far more serious matter than the substantive offence). Whatever happens, the investigation of over a hundred alleged conspirators is not going to be simple, and is going to soak up a huge amount of police resources, not to mention legal aid and court costs - if any of it ever gets to court that is. Now this evening we discover that, oops, yes, there is a bit more CCTV of the G20 protest available, and a clip has turned up that appears to show an officer, his numbers concealed in breach of regulations, assaulting a woman.
Somebody needs to get a grip. Where's the Home Secretary? Isn't that her job?

They Really Don't Get It

With the papers full of reaction to the G20 policing issue and various other embarrassing foul-ups, some cretin in the Home Office has decided to throw away many thousands of our pounds on putting a half-page ad for this in my Sunday paper.
The 'pledge' is meaningless PR nonsense, the cost unjustifiable, and the timing rotten.
Good job lads.

A Bad Week

The Police Service has had a truly terrible week.
The policing of the G20 protests last week, and the death, from whatever cause, of an innocent man on his way home from work has led the entire Press, in an unprecedented display of unity, to question the management of the police operation and the behaviour of some officers. To make things worse, misleading and disingenuous statements were made to the press; statements that had to be reconsidered as video evidence started to emerge. Then the IPCC's initial response, asking City of London police to, in effect, investigate themselves, was flawed, and has now been put right. The public and political mood means that the investigation will not, and should not, stop at the events of April 1st, but must look at the wider issue of police management and training.
This morning the Yard's senior anti-terrorist police officer has fallen on his sword after making an error that an 18 year-old work experience kid might have committed by walking into no. 10 with a secret document facing the cameras and able to be photographed. That wasn't wicked, but it was careless and incompetent, and however unfairly it will affect the public's respect for senior coppers - respect that took a severe hammering from the farcical shenenigans at the top of the Met last year.
Then yesterday, we had a police driver remanded in custody having killed a young pedestrian while driving at up to 94 mph in an urban area without any lights or sirens. The officer will pay the penalty for his errors, but the case also raises issues of management and training. The risks he took were not justified by the offence he was trying to deal with, and there should have been a structure in place to make him aware of that in the heat of the moment.
There is no pleasure or satisfaction to be gained from all this, even to the hardened anti-police commentators. The police are everyone's police, there to protect and to serve the public - that's all of us. They need our support and our understanding. But they also need and deserve some better management. Soon.

Send It Up?

Mode of Trial is a decision that every magistrate will be familiar with. Many offences (drink-drive, drunk in the street, common assault and suchlike) can only be dealt with by magistrates and there is no option of a jury trial. Heavyweight crimes such as murder, rape and so on can only be dealt with in the higher court, and nowadays these are swiftly passed upstairs under the so-called 'section 51' procedure that leaves the Crown Court to sort out all the case management issues.
Mode of Trial arises in the large group of offences in the middle, known as 'either-way' which means that they may be tried in either the Mags' or the Crown Court. These include theft, ABH, drug dealing, and many others. The Bench will hear the prosecution version of the facts, and the prosecutor will add his view as to the correct venue, as will the defence (at which point his client might decide to elect jury trial anyway, of which more later). Many decisions almost make themselves. Theft can involve a chocolate bar or a Ferrari and the guideline cut-off for 'high value' of £10,000 gives a steer to the court. All factors have to be considered though, so something like a vulnerable victim, planned action over time, or professional hallmarks may push a case over the line and on its way to the chap in a wig and a purple dressing gown even if the value is relatively modest.
Assuming that the defendant doesn't elect, the bench has to ask itself whether the offence is likely to be worth, on conviction, more than the JPs' maximum sentence. For two either-way offences that maximum is 12 months after trial, or 8 months after credit for a plea. For a single offence it it half that, although it's possible to give the full six months for a plea, the credit being reflected by the fact that the case is not being sent to the Crown Court.
This Times piece points out that a substantial number of cases sent up by magistrates are sentenced within the lower court's powers. Sending the case upstairs causes delay, sometimes stretching to months, and greatly increases costs. Sometimes the CPS ask for a case to go up when there is little or no chance of a sentence in excess of JPs' powers (eg a 2-handed theft from employer valued at £400) and sometimes they invite us to accept a case that we think is far too serious for us, so up it goes. My personal inclination is to accept a case if we can, even if it's borderline. The resident Judge at our local Crown Court is in favour of that, which I find pretty persuasive.

What Should We Make Of This? - Part 2

Here and elsewhere this video and various eyewitness accounts have sparked a debate that encompasses a wide range of opinions. Since this is, after all, a blog about judicial matters, may I suggest that we approach this as if we were considering evidence.
What are the agreed facts? Put those aside as they need not detain us.
What are the disputed facts? Was the police action necessary and proportionate? Were the members of the public involved breaking the law? If so how? Were they threatening or violent to police or anyone else?
What is the evidence? What we have are eyewitness accounts (let's take them all at face value) and some video. Look at the facts that we have before us, as we would in court (albeit without cross-examination). Discount absolutely all preconceptions and concentrate on the evidence alone. What did the video or the witness accounts show?
What do you make of it?

What Should We Make Of This?

The by no means extreme Charon QC asks us to have a look at this bit of video.
What does it look like to you?

Nice to Know

I have just renewed my car insurance; after the usual internet search I finished up with the people who have that annoying dog in their ads. Nevertheless the cover was what I wanted, and the premium way less than I paid ten years ago for a bigger car. Being a cautious type I wrote a 'for the avoidance of doubt' letter to confirm that use for court business and for the bit of voluntary work I do is covered by the Social Domestic and Pleasure category. I got a letter back to confirm that voluntary work is covered so long as it is unpaid, and that claiming mileage is okay. In addition they cover the voluntary organisations for any liability they might incur by my driving on their business. I think that's pretty okay, as I know of colleagues who have been told that even occasional sittings at a different courthouse require commuting cover to be added. Nice one, doggy.

This Is My Friend McKenzie

The 'McKenzie Friend' is a character whom we sometimes see in court, being a lay person who sits with an unrepresented defendant, and helps them with procedure, possibly suggesting questions but without the right to address the court - that is reserved for the professionally qualified. In practice, in the lower courts, we often welcome all the help we can get, and where a lay person, perhaps a friend, or a social worker or even an employer can give us useful information we will listen to what they say. I have personally sat in a fines enforcement court where the open and honest help of a young man's employer, a small builder, played a large part in keeping the employee out of prison. In the small claims court the judge will often allow a McKenzie Friend to address him directly, as this is within the spirit of the quick and simple small claims procedure.
As Legal Aid becomes harder and harder to get we may see more and more of these unofficial representatives. A contributor to this month's 'Magistrate' magazine suggests that this might be a useful thing for senior JPs who are approaching retirement to take on, since they are familiar with court procedures and can save court time as well as reducing stress on people who may never have been inside a court before.