As several people have pointed out (and thank you for all the comments) this is a case where there is no 'right' answer. The child is not before the court because the law presumes that the parent has control of him. As Dickens' Mr. Bumble replied when told that he was deemed to be in control of Mrs. Bumble:- "If the law thinks that, then the law is a ass".
Nevertheless it must be public policy that school attendance is enforced, by criminal sanctions if need be, if the best efforts of the Local Authority fail. Magistrates are not social workers and we decided that our duty was to impose a sentence that would express society's disapproval, and as far as possible deter others. So the object of the sentence is to punish the offender.
A Conditional Discharge is unlikely to be appropriate because it is highly likely to be breached, which will bring us right back to square one. A fine is impractical, as any realistic level for a woman on Donna's income will look derisory. Community Rehabilitation (the old probation) is not available because Donna is a first offender. That leaves us the options of unpaid work, or prison (there are a number of newly introduced community penalty options but for clarity I shall disregard them).
If you are looking to punish and deter there is something to be said for a short prison sentence, as there was evidence that school attendance improved dramatically for a time when a court took that option. But I am not the man to lock up a woman whose behaviour, however reprehensible, was more pathetic than wicked. So we sentenced her to 40 hours (the minimum) of unpaid work in the community, with no order for costs.
Lee's education is unlikely to advance very far in the next nine months until he can lawfully leave school. Driving home that afternoon, with a faint sense of unease at having failed to make any real difference to Lee's future, I thought that for boys like him we need to revisit the idea of apprenticeships at an age well before 16, to try to engage him in something that he can relate to. Shame he can't read and write though.
Sunday, February 27, 2005
Saturday, February 26, 2005
Cunning Stunts
There is a busy public place on my patch where thousands of people pass to and fro every day. A while ago we were presented with a defendant who was charged with Going Equipped to Steal. Now that's an everyday charge, but what was not everyday was the detail of the charge. Rather than the usual screwdriver, dodgy credit card, or whatever he had a shampoo bottle filled with mustard. Yes, mustard.
The trick was obvious once we heard the details. Victim is in a public place, maybe on the mobile, or waiting for a bus, or a train. A helpful stranger points out that the person's coat has a nasty smear on it, and offers a tissue. Victim takes tissue and thanks his helper. While this is going on, helpful stranger's pal snatches the victim's laptop or briefcase and is off like a greyhound.
There are variations on this, such as dropping a low denomination banknote (often a $1 bill) and then asking the victim if it is his, or the scattering of a handful of change, or even pebbles, on to a hard floor to distract the victim for just long enough to steal his case.
We take an exceptionally dim view of this and will always send the offender to the Crown Court. The going rate there is about three or four years in prison, plus deportation for the many bag thieves who are foreigners.
So hang onto your bags, won't you? And if you do carry a laptop, don't keep it in the flash bag labelled Apple or IBM. Keep it in a cheap old shopping bag and put your sandwiches in the laptop case.
The trick was obvious once we heard the details. Victim is in a public place, maybe on the mobile, or waiting for a bus, or a train. A helpful stranger points out that the person's coat has a nasty smear on it, and offers a tissue. Victim takes tissue and thanks his helper. While this is going on, helpful stranger's pal snatches the victim's laptop or briefcase and is off like a greyhound.
There are variations on this, such as dropping a low denomination banknote (often a $1 bill) and then asking the victim if it is his, or the scattering of a handful of change, or even pebbles, on to a hard floor to distract the victim for just long enough to steal his case.
We take an exceptionally dim view of this and will always send the offender to the Crown Court. The going rate there is about three or four years in prison, plus deportation for the many bag thieves who are foreigners.
So hang onto your bags, won't you? And if you do carry a laptop, don't keep it in the flash bag labelled Apple or IBM. Keep it in a cheap old shopping bag and put your sandwiches in the laptop case.
Friday, February 25, 2005
Bunking Off
The law requires that every child under the age of 16 shall attend school. Truancy is a common and increasing problem, and education authorities have specialist staff to tackle it. Rarely, things get to such a pass that the Authority will prosecute the parents (or, much more usually, parent).
Lee, who is 15, has attended school on 10 occasions out of a possible 120. There is a long history of unauthorised absence.
Lee's mum, Donna, is 35, and the cares of life near the bottom of the heap have taken a toll of her appearance. She has had scores of meetings and interviews with various officials. She pleads guilty, and her solicitor mitigates on her behalf.
He tells us that Lee's father left when the baby was eight weeks old and there has been no contact since. Mother and son live on benefits in Local Authority accommodation. Donna started to lose control of Lee when he was about 11 years old. Since then Lee has spent a lot of time with older boys, and has gradually given up going to school. He has no qualifications and is unlikely to gain any. He is functionally illiterate. The solicitor calls Donna to give evidence.
She is nervous in the witness box, and the usher discreetly slips her a handful of Kleenex. She tells us that Lee used to go out in the mornings and come back in the afternoon and that she had no idea he was not going to school. After the school approached her she started to take him to school, and deliver him right into the classroom. On several occasions he had arrived home before her, having run straight out of the school and taken a short cut across the park. She does not know what else she can do.
Cross-examined by the Council's lawyer she admits that she has known for a long time about Lee's truancy, but she has a lot of worries and her nerves are bad. She is in debt to moneylenders. Lee will be able to leave school legally in nine months' time.
Summing up, her solicitor accepts that Donna had to plead guilty as she had no defence, but she is a single mother struggling to cope. She has very little money to pay a fine, or the £100 costs that the Council has asked for.
The Guidelines tell us that the offence carries a fine up to £2,000 and/or 3 months in prison. The 'entry point' is to consider a community penalty. We decide seriousness by looking at aggravation and mitigation - not too much of the latter, because she appears to have closed her eyes to her responsibilities and there is no suggestion that Lee has been bullied.
The options are:
A Conditional Discharge
A Fine
A Community Penalty such as unpaid work.
A prison sentence (maximum 2 months after credit for guilty plea).
Each of these has merits and demerits.
What will you do?
Lee, who is 15, has attended school on 10 occasions out of a possible 120. There is a long history of unauthorised absence.
Lee's mum, Donna, is 35, and the cares of life near the bottom of the heap have taken a toll of her appearance. She has had scores of meetings and interviews with various officials. She pleads guilty, and her solicitor mitigates on her behalf.
He tells us that Lee's father left when the baby was eight weeks old and there has been no contact since. Mother and son live on benefits in Local Authority accommodation. Donna started to lose control of Lee when he was about 11 years old. Since then Lee has spent a lot of time with older boys, and has gradually given up going to school. He has no qualifications and is unlikely to gain any. He is functionally illiterate. The solicitor calls Donna to give evidence.
She is nervous in the witness box, and the usher discreetly slips her a handful of Kleenex. She tells us that Lee used to go out in the mornings and come back in the afternoon and that she had no idea he was not going to school. After the school approached her she started to take him to school, and deliver him right into the classroom. On several occasions he had arrived home before her, having run straight out of the school and taken a short cut across the park. She does not know what else she can do.
Cross-examined by the Council's lawyer she admits that she has known for a long time about Lee's truancy, but she has a lot of worries and her nerves are bad. She is in debt to moneylenders. Lee will be able to leave school legally in nine months' time.
Summing up, her solicitor accepts that Donna had to plead guilty as she had no defence, but she is a single mother struggling to cope. She has very little money to pay a fine, or the £100 costs that the Council has asked for.
The Guidelines tell us that the offence carries a fine up to £2,000 and/or 3 months in prison. The 'entry point' is to consider a community penalty. We decide seriousness by looking at aggravation and mitigation - not too much of the latter, because she appears to have closed her eyes to her responsibilities and there is no suggestion that Lee has been bullied.
The options are:
A Conditional Discharge
A Fine
A Community Penalty such as unpaid work.
A prison sentence (maximum 2 months after credit for guilty plea).
Each of these has merits and demerits.
What will you do?
Thursday, February 24, 2005
Special Offer - Hurry!
The Sentencing Guidelines Council, one of the exciting new bodies set up by the latest flurry of criminal law reforms, has pronounced on sentencing discounts.
It has long been the practice to knock a bit off the sentence in return for a plea of guilty. Guilty pleas save money, they save time, and they save putting witnesses through the unpleasantness of coming to court. So they are a good thing then.
The latest guidance is that plea discounts should be on a sliding scale ranging from one third for a plea at the 'first reasonable opportunity' via a maximum of one quarter after a trial date has been set, to a maximum of a tenth for a plea at the door of the court or after the trial has begun.
The new guidelines are designed to bring in consistency and to help the habitual criminal to gauge the odds more accurately when deciding on his plea. If he sticks out for a not guilty, and a key witness does not appear, or the CPS loses a crucial document, or any one of a thousand screw-ups happens, then he has had a good result. On the other hand, if he waits until he sees the whites of the victim's eyes before changing his plea he will get almost all of the tariff for the offence.
This applies all the way down to the humble offences heard in the Magistrates' court, but it only affects fines, prison terms and community penalties. There is no discount on penalty points or on disqualification periods.
It has long been the practice to knock a bit off the sentence in return for a plea of guilty. Guilty pleas save money, they save time, and they save putting witnesses through the unpleasantness of coming to court. So they are a good thing then.
The latest guidance is that plea discounts should be on a sliding scale ranging from one third for a plea at the 'first reasonable opportunity' via a maximum of one quarter after a trial date has been set, to a maximum of a tenth for a plea at the door of the court or after the trial has begun.
The new guidelines are designed to bring in consistency and to help the habitual criminal to gauge the odds more accurately when deciding on his plea. If he sticks out for a not guilty, and a key witness does not appear, or the CPS loses a crucial document, or any one of a thousand screw-ups happens, then he has had a good result. On the other hand, if he waits until he sees the whites of the victim's eyes before changing his plea he will get almost all of the tariff for the offence.
This applies all the way down to the humble offences heard in the Magistrates' court, but it only affects fines, prison terms and community penalties. There is no discount on penalty points or on disqualification periods.
Wednesday, February 23, 2005
All-time Brilliant Legal Jokes (no. 224)
Anthony Aloysius Hancock, addressing his fellow jurors in Galton and Simpson's "Twelve Angry Men" :-
"What about Magna Carta?"
"Did she die in vain?"
Tuesday, February 22, 2005
Play judge again (2)
We approached the sentence in two parts. We first looked at the offence, and decided that lights are easy to check, and as it was a company car the driver only had to take it into any garage shop to get the bulb changed. Faulty lights can cause accidents. Nevertheless, a routine offence, not the most serious, so a fine of £200 seemed about right. Because of his guilty plea we reduced it to £125. Licence endorsed, 3 points. £35 costs. He had three previous speeding convictions each earning him 3 points.
We then looked at the Exceptional Hardship argument. As others have pointed out he has the resources to pay for taxis, and there was, in fact, acceptable public transport between home and work. The clerk read us the guideline on hardship, and reminded us that the test of what is exceptional is a high one. All the same, it was up to us to decide how long this particular piece of string was. I hinted in my post at a trade-off between the fine and the length of the ban so that I could say that we never do that. It is common for drivers to say, more or less, "fine me as much as you like, but let me keep my licence". That is a no-no because it amounts to buying your way out of the consequences of your offences.
We hardened our hearts and disqualified him for six months. He appealed to the Crown Court, and we were upheld.
Three final points: when he gets his licence back after six months it will be clean, but a second totting within three years would be for a minimum 12 months. Had his exceptional hardship argument been effective he would not have been allowed to use it again for three years.
We then looked at the Exceptional Hardship argument. As others have pointed out he has the resources to pay for taxis, and there was, in fact, acceptable public transport between home and work. The clerk read us the guideline on hardship, and reminded us that the test of what is exceptional is a high one. All the same, it was up to us to decide how long this particular piece of string was. I hinted in my post at a trade-off between the fine and the length of the ban so that I could say that we never do that. It is common for drivers to say, more or less, "fine me as much as you like, but let me keep my licence". That is a no-no because it amounts to buying your way out of the consequences of your offences.
We hardened our hearts and disqualified him for six months. He appealed to the Crown Court, and we were upheld.
Three final points: when he gets his licence back after six months it will be clean, but a second totting within three years would be for a minimum 12 months. Had his exceptional hardship argument been effective he would not have been allowed to use it again for three years.
Monday, February 21, 2005
Play judge again
Mr. Smith is a well-paid executive. He drives an expensive Jaguar company car and covers many miles on business. He earns well over £100,000 per year.
In his travels he has collected nine points.
He is involved in a minor traffic accident that is not his fault. Unfortunately a pedestrian has suffered injuries (that have turned out to be minor) so the police accident investigators turn up. Mr. S. is breathalysed as a routine matter but he hasn't had a drink for two days. On looking at his car the trained police vehicle examiner finds a technical fault with the lights. Mr. S. is summonsed for the offence, because with nine points already he is ineligible for a fixed penalty.
He pleads guilty. The offence carries three points, taking Mr. S. to twelve, so he stands to be disqualified for six months.
His solicitor puts forward an 'exceptional hardship' argument and tells the court at some length of the importance of Mr. S's job, his international travel, and the need to support his young family and to pay their school fees.
So you, members of the bench, have to decide whether to exercise your discretion to make a finding of exceptional hardship, and to choose not to ban him at all or for a shorter period than six months.
Go on, then, sentence him. A fine, of course, plus costs.
The choice is:- three points, therefore a 'totter' so six months ban.
Or - as above plus a reduced ban (defence brief suggests that a really big fine need not be a problem).
Or - as above, but no ban on the grounds of exceptional hardship, leaving S. with 12 points but no ban.
As before, let me have some thoughts and I will tell you what we did in a case that differed from this one but shared the same basic features.
In his travels he has collected nine points.
He is involved in a minor traffic accident that is not his fault. Unfortunately a pedestrian has suffered injuries (that have turned out to be minor) so the police accident investigators turn up. Mr. S. is breathalysed as a routine matter but he hasn't had a drink for two days. On looking at his car the trained police vehicle examiner finds a technical fault with the lights. Mr. S. is summonsed for the offence, because with nine points already he is ineligible for a fixed penalty.
He pleads guilty. The offence carries three points, taking Mr. S. to twelve, so he stands to be disqualified for six months.
His solicitor puts forward an 'exceptional hardship' argument and tells the court at some length of the importance of Mr. S's job, his international travel, and the need to support his young family and to pay their school fees.
So you, members of the bench, have to decide whether to exercise your discretion to make a finding of exceptional hardship, and to choose not to ban him at all or for a shorter period than six months.
Go on, then, sentence him. A fine, of course, plus costs.
The choice is:- three points, therefore a 'totter' so six months ban.
Or - as above plus a reduced ban (defence brief suggests that a really big fine need not be a problem).
Or - as above, but no ban on the grounds of exceptional hardship, leaving S. with 12 points but no ban.
As before, let me have some thoughts and I will tell you what we did in a case that differed from this one but shared the same basic features.
Bail
Bail is one of the least understood aspects of the criminal law. People find it hard to understand how the police can go to all the trouble of catching someone, only for the court to release them on bail. The answer lies in the Bail Act. I am not a lawyer, and there is no point in going into the myriad tweaks and angles of bail, but the bottom line is simple. A person has a right to bail unless there are substantial grounds to fear that he will fail to surrender to the court, commit further offences, or interfere with witnesses. There are other exceptions but those three cover the vast majority of cases. The court (and for bail purposes it can be just one magistrate) has to give reasons if unconditional bail is refused. These might include previous bail record (has reoffended or failed to turn up in the past) the fact that he faces a lengthy prison sentence and therefore has a motive to abscond, the fact that he has no fixed abode or the fact that the victim is scared stiff of him and lives two doors away. So we look at possible conditions. Can we order him to live with someone else, at a safe distance from the victim? How about an order not to go to the victim's home town? If he is NFA can Probation find him a place in a Bail Hostel? Should he surrender his passport? If he is a night-time burglar will a curfew be appropriate?
A surety (promise from a third party to pay) or a security (cash down) might be offered.
In coming to a decision the court has to take the Crown's case at its highest, and listen to defence submissions.
If none of these fit the bill, then a remand in custody is probably inevitable. Lawyers are allowed two full bail applications, then an appeal to a judge at the Crown Court, any of which might get their man out. For the most serious offences up at the murder and rape level the court must give reasons if it does grant bail. It happens though. A notorious property developer was recently on bail throughout his trial for murder.
If there is a breach of bail the court will probably issue a no-bail warrant for the arrest of the defendant. Bad news there, because in future a custody Sergeant looking at the screen and seeing a conviction for Failing to Surrender will probably not bail the def, but hold him in the cells until the next court.
If someone is held on remand and then acquitted, he has been imprisoned, in effect, for nothing. Plenty of people serve longer on remand than their eventual sentence. On the other hand, if someone who is bailed goes out and reoffends, his victim will wonder what the hell the court was doing letting him out at all.
Bail can be a difficult decision, trying to balance all of these factors. A sensible policeman, who feels strongly about a case and who knows all of its details will try to be in court when bail is considered and to back up the prosecutor if necessary.
With bail, above all, you can't please everybody.
A surety (promise from a third party to pay) or a security (cash down) might be offered.
In coming to a decision the court has to take the Crown's case at its highest, and listen to defence submissions.
If none of these fit the bill, then a remand in custody is probably inevitable. Lawyers are allowed two full bail applications, then an appeal to a judge at the Crown Court, any of which might get their man out. For the most serious offences up at the murder and rape level the court must give reasons if it does grant bail. It happens though. A notorious property developer was recently on bail throughout his trial for murder.
If there is a breach of bail the court will probably issue a no-bail warrant for the arrest of the defendant. Bad news there, because in future a custody Sergeant looking at the screen and seeing a conviction for Failing to Surrender will probably not bail the def, but hold him in the cells until the next court.
If someone is held on remand and then acquitted, he has been imprisoned, in effect, for nothing. Plenty of people serve longer on remand than their eventual sentence. On the other hand, if someone who is bailed goes out and reoffends, his victim will wonder what the hell the court was doing letting him out at all.
Bail can be a difficult decision, trying to balance all of these factors. A sensible policeman, who feels strongly about a case and who knows all of its details will try to be in court when bail is considered and to back up the prosecutor if necessary.
With bail, above all, you can't please everybody.
Afterthought
Whether you are a magistrate or a police officer, you will have to visit prisons and other penal establishments. One rule applies above all:
If you don't see the tea being made, don't drink it!
If you don't see the tea being made, don't drink it!
Just a Thought
I recently visited a Young Offenders' Institution (prison for those under 21) and after our tour of the facilities we had a meeting with the Governor to exchange views and to debrief the visit.
During the meeting he mentioned that something like 80% of his charges had been excluded from school at some time, and that about 30% had been in what Councils call , without a hint of irony, 'care'.
It costs up to £1000 a week to keep a young man in a YOI. Not many come out better than they went in. Some are seriously corroded by the experience. With the risk factors being so predictable, should not a serious approach to offending behaviour mean getting involved with these boys much, much, earlier when the warning signs appear? It wouldn't be cheap, but nor is the present system. It would also be a good deal more humane, and could spare vulnerable kids a deal of misery.
During the meeting he mentioned that something like 80% of his charges had been excluded from school at some time, and that about 30% had been in what Councils call , without a hint of irony, 'care'.
It costs up to £1000 a week to keep a young man in a YOI. Not many come out better than they went in. Some are seriously corroded by the experience. With the risk factors being so predictable, should not a serious approach to offending behaviour mean getting involved with these boys much, much, earlier when the warning signs appear? It wouldn't be cheap, but nor is the present system. It would also be a good deal more humane, and could spare vulnerable kids a deal of misery.
Subscribe to:
Posts (Atom)