Martin has kindly drawn my attention to yet another celebrity-gets-off story.
It is always offensive when someone buys himself out of a criminal case because he is rich - Dickens would have wearily recognised many such a case. These days being famous is almost as good as being rich, since fame is the new aristocracy.
But however much that may rankle, we have to remember that the likes of 'Mr. Loophole' (yuk!) don't make new laws, but rather point out the incompetence and inefficiency with which the police and CPS sometimes assemble cases and present them in court. There are very few real loopholes; there are plenty of sloppy late-night, tired-and- just-going-off-shift police cock-ups and many CPS files that are handled casually and carelessly.
A properly considered and reviewed case that fits the CPS' criteria is unlikely to fail in court. Sadly, that is becoming an endangered species.
Tuesday, February 22, 2011
Saturday, February 19, 2011
How Many Magistrates Would Have Done This?
The driver in this case did a great deal better than he would have done before most magistrates I can imagine. I shall make a note of his defence brief in case I ever need one; he must be very good indeed.
Friday, February 18, 2011
Survey
How would you sentence these hypothetical cases?
1) A private-hire driver has photocopied and laminated a Disabled badge, and uses it while dropping customers off at the airport. None of them is disabled.
2) A private-hire driver has his mother-in law's Disabled badge in the vehicle and uses it while dropping customers off at the station.
3) A fit young man uses a Disabled badge that he bought for £100 in the pub, to avoid the inconvenience of finding a parking space.
This offence is only fineable, they each plead guilty, and for today's purpose they each claim to be earning £350 per week.
CPS ask for £70 costs and the Surcharge has to be £15, unless there is good reason otherwise.
1) A private-hire driver has photocopied and laminated a Disabled badge, and uses it while dropping customers off at the airport. None of them is disabled.
2) A private-hire driver has his mother-in law's Disabled badge in the vehicle and uses it while dropping customers off at the station.
3) A fit young man uses a Disabled badge that he bought for £100 in the pub, to avoid the inconvenience of finding a parking space.
This offence is only fineable, they each plead guilty, and for today's purpose they each claim to be earning £350 per week.
CPS ask for £70 costs and the Surcharge has to be £15, unless there is good reason otherwise.
Tuesday, February 15, 2011
Don't Overdo It
This case is one that I make no apology for lifting from the Daily Mail because it is the Mail's analysis that will remain embedded in the public consciousness, following journalism's Gresham's Law that bad reporting drives out good. On the face of it, it must be wrong for a victim to have to compensate the man who stole from him, but this was one of those cases, like the one a year or so ago where a householder pursued a burglar down the street and battered him into brain damage in which the reaction to being a victim was disproportionate and excessive. English law is perfectly capable of dealing with legitimate self defence, and even makes allowances for the heat of the moment, but the reaction has to be in proportion to the crime.
I feel sorry for the man who was robbed, (I am reminded that he wasn't robbed in the legal sense, rather cheated) but he has to understand that he just went too far, and that has cost him a lot of money. It sticks in one's craw to see a low-life thief rewarded, but it doesn't take much to turn a criminal into a victim.
Mind how you go, now.
I feel sorry for the man who was robbed, (I am reminded that he wasn't robbed in the legal sense, rather cheated) but he has to understand that he just went too far, and that has cost him a lot of money. It sticks in one's craw to see a low-life thief rewarded, but it doesn't take much to turn a criminal into a victim.
Mind how you go, now.
Busted Flush
I have it on good authority that a court in Kent today suffered a failure of the water supply to its toilets, forcing the judiciary, staff, lawyers, witnesses and defendants to pop out to the public conveniences when the need arose.
This is a high-minded and serious blog, so I don't want to see any unseemly comments.
Or do I?
(By the way, I have just realised that 95% of the comments that praise the seriousness of the blog go on to give me a bollocking about something I have either written or allowed into the comments).
This is a high-minded and serious blog, so I don't want to see any unseemly comments.
Or do I?
(By the way, I have just realised that 95% of the comments that praise the seriousness of the blog go on to give me a bollocking about something I have either written or allowed into the comments).
Monday, February 14, 2011
Dramatis Personae (4)
The opportunity to study my fellow man is one of the perks of being on the bench. A court is a high-stress environment for most people, and my aim is to deal humanely but efficiently with the business before us; an orderly court allows us the space to consider our decisions carefully and within the bounds of the law and our guidelines, while exercising our discretion whenever appropriate.
For most of my time on the bench the wheels have been oiled by the omnipresent local defence solicitors. Contrary to saloon-bar and tabloid prejudice one of the most important functions of the criminal solicitor is to confront his client with the unpalatable truth, and to persuade him to plead guilty when the evidence against him looks solid. The defendant gets a third off his sentence and the court can move on to the next case. The idea that lawyers encourage not-guilty pleas to increase their fees is almost complete nonsense.
Legal aid at the lower level is on the way out, and courts are seeing more and more unrepresented defendants. As a consequence we are seeing an increase in the number of hopeless not-guilty pleas. In addition, where cases do come to trial, they take an age to get through because the man in the dock has to have everything explained to him s-l-o-w-l-y. There is no shame in that: law is a specialised subject.
Legal aid restrictions have now come to the Crown Court too. Judges are accustomed to speaking to other lawyers in the elaborate argot of their calling, thus finding it hard to get across to Tony, a truck driver, that his case was as healthy as the Monty Python parrot.
I felt sorry for Tony and for the judge, at a recent appeal hearing. Tony was guilty of a technical offence regarding his HGV driving hours, and had in fact pleaded guilty down in the mags' court. But he was honestly confused, and he couldn't see why the law hadn't been explained to him before he broke it. The judge's kindly explanation of the principle that ignorance of the law is no excuse went straight over Tony's head. Similarly, telling the bewildered trucker that his offence was one of strict liability might as well have been expressed in Swahili for all the good it did. Hizonner explained that there appeared to be no germ of a defence, but that Tony's unhappy expostulations might amount to mitigation - all fell on deaf, or rather uncomprehending, ears. He simply did not understand that the kind of case that you make to your friends at work or in the pub is utterly foreign to a court. He was given various options, in deference to his lay status, and unerringly plumped for the wrong one. His body language started to express his frustration, and at the inconclusive end of the hearing he gathered his papers, muttering "I think I'll top myself" in his heavy West Midlands accent.
A local brief could have taken him on one side, explained the facts of life, and pointed him in the direction that was in his best interest. There will now be at least two more court hearings, with Tony travelling south each time. Tony is not a wicked man, nor a stupid one; he was simply out of any environment he could understand. A brief would have been hundreds of pounds cheaper than what is going to happen now.
For most of my time on the bench the wheels have been oiled by the omnipresent local defence solicitors. Contrary to saloon-bar and tabloid prejudice one of the most important functions of the criminal solicitor is to confront his client with the unpalatable truth, and to persuade him to plead guilty when the evidence against him looks solid. The defendant gets a third off his sentence and the court can move on to the next case. The idea that lawyers encourage not-guilty pleas to increase their fees is almost complete nonsense.
Legal aid at the lower level is on the way out, and courts are seeing more and more unrepresented defendants. As a consequence we are seeing an increase in the number of hopeless not-guilty pleas. In addition, where cases do come to trial, they take an age to get through because the man in the dock has to have everything explained to him s-l-o-w-l-y. There is no shame in that: law is a specialised subject.
Legal aid restrictions have now come to the Crown Court too. Judges are accustomed to speaking to other lawyers in the elaborate argot of their calling, thus finding it hard to get across to Tony, a truck driver, that his case was as healthy as the Monty Python parrot.
I felt sorry for Tony and for the judge, at a recent appeal hearing. Tony was guilty of a technical offence regarding his HGV driving hours, and had in fact pleaded guilty down in the mags' court. But he was honestly confused, and he couldn't see why the law hadn't been explained to him before he broke it. The judge's kindly explanation of the principle that ignorance of the law is no excuse went straight over Tony's head. Similarly, telling the bewildered trucker that his offence was one of strict liability might as well have been expressed in Swahili for all the good it did. Hizonner explained that there appeared to be no germ of a defence, but that Tony's unhappy expostulations might amount to mitigation - all fell on deaf, or rather uncomprehending, ears. He simply did not understand that the kind of case that you make to your friends at work or in the pub is utterly foreign to a court. He was given various options, in deference to his lay status, and unerringly plumped for the wrong one. His body language started to express his frustration, and at the inconclusive end of the hearing he gathered his papers, muttering "I think I'll top myself" in his heavy West Midlands accent.
A local brief could have taken him on one side, explained the facts of life, and pointed him in the direction that was in his best interest. There will now be at least two more court hearings, with Tony travelling south each time. Tony is not a wicked man, nor a stupid one; he was simply out of any environment he could understand. A brief would have been hundreds of pounds cheaper than what is going to happen now.
Well, Well.
One of the areas in which magistrates still have wide discretion is in the matter of costs and compensation. I recently sat on a Crown Court appeal against sentence, and we decided to vary the fine and costs imposed in the lower court. The CPS counsel stood up and pointed Hizonner in the direction of a passage in Archbold that says that the Crown Court has no power to alter a costs order made below, so we were obliged to leave the figure at the level ordered by the sentencing magistrates.
I never knew that, and nor, for that matter, did the judge.
I never knew that, and nor, for that matter, did the judge.
Sunday, February 13, 2011
Saturday, February 12, 2011
Quote
For no particular reason I stumbled across this quotation today:
Good isn't it?
"Cops are just people," she said irrelevantly.
"They start out that way, I've heard." he replied.
Raymond Chandler - "Farewell, My Lovely"
Good isn't it?
Malice or Stupidity - It's One Or The Other
The unlovely 'Sun' piles into Ken Clarke today, in the following terms:-
The Right are of course after Clarke as a way of expressing their rage and frustration at not having a 'proper' full-on Tory government, but nevertheless the paper has no excuse for wilfully ignoring the fact that courts are independent, and the Justice Secretary has no more business than any other minister to criticise a particular judgment or call for it to be amended, and also omitting to mention that 17 year-olds are children for the purposes of the criminal law and there are completely different rules for dealing with them as opposed to adults.
TWO terrifying court cases sum up why Ken Clarke is not fit to sit in the Cabinet.
Case One: A thug, 17, who stabbed three teenagers and put one on life support, waltzes free from court.
Case Two: Another thug of 17, who laughed as he kicked an unconscious man so hard he cracked his bones, is given just 10 months' jail.
Both sentences are pathetic. But both are in line with the Justice Secretary's craven policy of going easy on yobs.
A real Justice Secretary would have been bellowing with rage yesterday, demanding explanations from both courts and calling for the sentences to be stiffened.
From Ken Clarke, silence.
The silence of the damned useless.
The Right are of course after Clarke as a way of expressing their rage and frustration at not having a 'proper' full-on Tory government, but nevertheless the paper has no excuse for wilfully ignoring the fact that courts are independent, and the Justice Secretary has no more business than any other minister to criticise a particular judgment or call for it to be amended, and also omitting to mention that 17 year-olds are children for the purposes of the criminal law and there are completely different rules for dealing with them as opposed to adults.
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