April 1st 2005 sees the emergence from its chrysalis of Her Majesty's Courts' Service. The Service will manage all of the courts in England and Wales, from Truro County Court to the Old Bailey. Headed by Sir Ron De Witt, a former male nurse with no legal qualifications or experience, HMCS will replace all former local management structures, and will seek to improve the efficiency of the courts system - whatever that means.
On the same day many of the provisions of the Criminal Justice Act 2003 will come into force for the first time, including a major revision of the sentencing framework, and changes to the rules of evidence relating to hearsay, following on the recent introduction of new rules regarding Bad Character (telling the court about the defendant or witness's previous convictions).
Judges magistrates and lawyers have all been trained in the new procedures, and some of them understand it fully. Most of us will have to wing it until our legal advisers and the advocates in court have got a grip. Even then there are many grey areas that will urgently need to be clarified by the Court of Appeal. Some of the highest judges in the land have criticised the 2003 Act for sloppy drafting and a confused approach. Most practitioners are convinced that too much has been changed too quickly, and that this will inevitably lead to problems. In the meantime, to my colleagues who will be sitting tomorrow morning - good luck!
Thursday, March 31, 2005
Obituary
In Memoriam
The Greater London Magistrates’ Courts’ Authority slipped away quietly on the 31st of March 2005. A sickly infant, it was nevertheless born with high expectations. During a lengthy gestation period great plans were made for its future, although, sadly, few of them were to reach fruition. On its birth it received a handsome inheritance of a diverse but thriving system of local justice. Sadly much of this was squandered before its fifth and final birthday was to come about. Its ambitious plans to modernise the inherited estate came to naught, as the pre-existing tenantry exercised a resistance that proved to be insurmountable. Many new servants were appointed in the vain hope of improving the inherited system. The servants remain in post, but the improvements remain a chimaera.
The late Authority’s legacy has passed to the new-born Her Majesty’s Courts’ Service. The legatee has been the beneficiary of many such inheritances across the nation, and it is to be hoped that it will prove to be more careful of its heritage than was the newly-deceased Authority.
No flowers by request, but the desperate may send CVs to Sir Ron, c/o Courts ‘R’ Us, London.
The Greater London Magistrates’ Courts’ Authority slipped away quietly on the 31st of March 2005. A sickly infant, it was nevertheless born with high expectations. During a lengthy gestation period great plans were made for its future, although, sadly, few of them were to reach fruition. On its birth it received a handsome inheritance of a diverse but thriving system of local justice. Sadly much of this was squandered before its fifth and final birthday was to come about. Its ambitious plans to modernise the inherited estate came to naught, as the pre-existing tenantry exercised a resistance that proved to be insurmountable. Many new servants were appointed in the vain hope of improving the inherited system. The servants remain in post, but the improvements remain a chimaera.
The late Authority’s legacy has passed to the new-born Her Majesty’s Courts’ Service. The legatee has been the beneficiary of many such inheritances across the nation, and it is to be hoped that it will prove to be more careful of its heritage than was the newly-deceased Authority.
No flowers by request, but the desperate may send CVs to Sir Ron, c/o Courts ‘R’ Us, London.
Sunday, March 27, 2005
A Bit Close to Home
Shakespeare's take on the Bench:-
Next, the Justice,
In fair round belly, with good capon lined.
With eyes severe, and beard of formal cut,
Full of wise saws and modern instances,
And so he plays his part.
Hmmm- he must have seen me coming.
While we are mentioning the Bard, I liked this from today's Telegraph:
If you provided an infinite number of monkeys with an infinite number of typewriters I doubt they would produce the works of Shakespeare. But they might well come up with the word "Kyrgyzstan".
Next, the Justice,
In fair round belly, with good capon lined.
With eyes severe, and beard of formal cut,
Full of wise saws and modern instances,
And so he plays his part.
Hmmm- he must have seen me coming.
While we are mentioning the Bard, I liked this from today's Telegraph:
If you provided an infinite number of monkeys with an infinite number of typewriters I doubt they would produce the works of Shakespeare. But they might well come up with the word "Kyrgyzstan".
Friday, March 25, 2005
Another Busy Week
This week,a committee meeting, a sitting at the Crown Court hearing appeals with a judge and another magistrate, and a busy remand day back at my own court.
Unusually the appeals took the whole day. Judges and Counsel don't much like sitting after 4 p.m., but we had to crack on and finish a case because there was no further court time available before July, and that is too long a break for a part-heard case. Lunch in the Judges' Dining Room is always enjoyable and the atmosphere is nothing like the public image of a lot of pompous old stuffed shirts. We even got a glass of wine, as one of the judges was moving on to sit in a different court. We dismissed all of the appeals that we heard. For many judges it is twenty years or more since they last dealt with magistrates-court type of offences so the presence of magistrates adds the necessary level of experience. Decisions are by majority vote, but the judge's ruling as to law is final, which seems fair enough.
We dealt with 52 cases the next day, including bail and custody remands, simple sentencing, and three more serious cases with pre-sentence reports to read. We committed several serious cases to the Crown Court, and we issued arrest warrants for those who had failed to turn up or who had breached community orders. As usual we had to deal robustly with lawyers who wanted adjournments; we refused nearly all of them and sent them outside to sort their clients out and come back in so that the case can move forward. Lawyers tend to focus their minds more sharply when they know that they have to satisfy the court's directions before they can get away to their office. We finished at a quarter past four, and I wished everyone a happy Easter and went to the pub. Hard work, but satisfying.
Unusually the appeals took the whole day. Judges and Counsel don't much like sitting after 4 p.m., but we had to crack on and finish a case because there was no further court time available before July, and that is too long a break for a part-heard case. Lunch in the Judges' Dining Room is always enjoyable and the atmosphere is nothing like the public image of a lot of pompous old stuffed shirts. We even got a glass of wine, as one of the judges was moving on to sit in a different court. We dismissed all of the appeals that we heard. For many judges it is twenty years or more since they last dealt with magistrates-court type of offences so the presence of magistrates adds the necessary level of experience. Decisions are by majority vote, but the judge's ruling as to law is final, which seems fair enough.
We dealt with 52 cases the next day, including bail and custody remands, simple sentencing, and three more serious cases with pre-sentence reports to read. We committed several serious cases to the Crown Court, and we issued arrest warrants for those who had failed to turn up or who had breached community orders. As usual we had to deal robustly with lawyers who wanted adjournments; we refused nearly all of them and sent them outside to sort their clients out and come back in so that the case can move forward. Lawyers tend to focus their minds more sharply when they know that they have to satisfy the court's directions before they can get away to their office. We finished at a quarter past four, and I wished everyone a happy Easter and went to the pub. Hard work, but satisfying.
Old Spanish Customs (2)
Importation of cannabis resin, street value £300
This might not get to court as Customs might impose a Compounded Penalty of a few hundred pounds and confiscate the drug. Before magistrates either a large fine or a shortish Community Punishment Order (80 hours?)
Importation of herbal cannabis, 1.3 kilos
This is just over the magistrates court limit of 1kg - a really good brief might be able to persuade the lower court to accept it, in which case six months. At Crown Court, nine months.
Importation of Cocaine, swallowed, 500 grams, street value £25,000 Definitely off to the Crown Court, five to eight years.
Importation of Cocaine in baggage, 5kg, street value £250,000 Crown Court of course, ten to twelve years.
Importation of Cocaine by Captain of freight aircraft - 290kg, street value at least £14 million. This one actually happened in 2002, and the pilot was one of the gang. Twenty years, two-thirds to be served before parole considered.
These sentences are all pretty severe, but the fact that street prices are dropping suggests that plenty of drugs are getting through.
Thanks for the comments - as you might expect those with inside knowledge were pretty much spot on!
This might not get to court as Customs might impose a Compounded Penalty of a few hundred pounds and confiscate the drug. Before magistrates either a large fine or a shortish Community Punishment Order (80 hours?)
Importation of herbal cannabis, 1.3 kilos
This is just over the magistrates court limit of 1kg - a really good brief might be able to persuade the lower court to accept it, in which case six months. At Crown Court, nine months.
Importation of Cocaine, swallowed, 500 grams, street value £25,000 Definitely off to the Crown Court, five to eight years.
Importation of Cocaine in baggage, 5kg, street value £250,000 Crown Court of course, ten to twelve years.
Importation of Cocaine by Captain of freight aircraft - 290kg, street value at least £14 million. This one actually happened in 2002, and the pilot was one of the gang. Twenty years, two-thirds to be served before parole considered.
These sentences are all pretty severe, but the fact that street prices are dropping suggests that plenty of drugs are getting through.
Thanks for the comments - as you might expect those with inside knowledge were pretty much spot on!
Wednesday, March 23, 2005
Old Spanish Customs
I have just watched a BBC 'Panorama' programme about Customs and Excise prosecutions. A good friend of mine sits on a bench outside London that deals with an airport. Airports mean drug importations: so what do you think these are worth?
(All defendants plead not guilty - all have no previous convictions).
Importation of cannabis resin, street value £300
Importation of herbal cannabis, 1.3 kilos
Importation of Cocaine, swallowed, 500 grams, street value £25,000
Importation of Cocaine in baggage, 5kg, street value £250,000
Importation of Cocaine by Captain of freight aircraft - 290kg, street value at least £14 million.
(All defendants plead not guilty - all have no previous convictions).
Importation of cannabis resin, street value £300
Importation of herbal cannabis, 1.3 kilos
Importation of Cocaine, swallowed, 500 grams, street value £25,000
Importation of Cocaine in baggage, 5kg, street value £250,000
Importation of Cocaine by Captain of freight aircraft - 290kg, street value at least £14 million.
Tuesday, March 22, 2005
Car Insurance (2)
Jason (Case A) This case is aggravated by his never having taken a test and the fact that he drove deliberately without insurance.
Fine £100 plus £35 costs, deducted from benefit at £5 per week. Disqualified from driving for two months, licence endorsed. No separate penalty (NSP) for the licence offence, but licence endorsed, NSP for the MOT offence.
Mohammed (B) He had a duty to find out about the insurance laws, but holds a licence (albeit technically invalid). Fine £100, plus £35 costs. Deduction from Benefit may not be available, so £5 per week ordered, £5 to pay today. Licence endorsed 6 penalty points. NSP for licence offence and MOT, this licence offence not endorseable. Told by clerk about obtaining a UK licence and advised not to drive until he does.
Charlene (C) Expired insurance is less serious than never-held. Fine £75 plus £25 costs, £5 per week deduction from benefit. (low level of fine reflects culpability plus cost of children) . Licence endorsed 6 penalty points, so she now has 9 and needs to be very careful.
Patrick (D) already has 6 points so the minimum 6 for today makes him a 'totter' with 12. Disqualified 6 months. Offence aggravated by previous convictions, but fine reduced slightly as being banned will affect his earning power. Fine £200 plus £35 costs. Pay at £20 per week.
John (E)
There is a statutory defence available to those who drive an employer's vehicle that is uninsured. We reject his plea of guilty, instruct the clerk to enter one of not guilty, and acquit him.
Just a few notes: Most of my examples are poor people, because that's how it is in real life. Although the fines are way below the cost of insurance, and also below the new fixed penalty level, there is an overriding legal requirement to ensure that fines are reasonable and proportionate to the def's income. For someone on benefit it will be cheaper to decline a £200 fixed penalty and go to court, pleading guilty as soon as possible. Someone on the local average take-home pay of about £350 per week would be fined around that much. The sting is in the points of course - get to 12 and you will be banned for six months at least. The fact that Mohammed hasn't got a UK licence will not prevent DVLA from creating a record that will show on the police computer, and when he does get a proper licence the points will be on it.
Sunday, March 20, 2005
Cross-Channel Justice
My French opposite number Maitre Eolas in his Journal d'un avocat
has put up a hypothetical drugs case for his readers to sentence. Have a look, if your French is up to it. Once I have sorted out the legal French I shall have a go at sentencing it under English law.
Later: Eolas has added an English version of the case. We operate in two very different jurisdictions, so this might produce differences of approach - or then again it might not.
has put up a hypothetical drugs case for his readers to sentence. Have a look, if your French is up to it. Once I have sorted out the legal French I shall have a go at sentencing it under English law.
Later: Eolas has added an English version of the case. We operate in two very different jurisdictions, so this might produce differences of approach - or then again it might not.
Car Insurance
Every court has to deal with uninsured drivers. It is probably the commonest single offence that we see, and it is not always simple to deal with. Young people are often fascinated by cars and will do almost anything to get their hands on one. Unfortunately premiums for even the most basic cover can easily amount to £2000 per year for a new young driver, and for those who cannot persuade their parents to help it may not be possible to raise the money. So they take a chance and drive, and end up in front of a bench of magistrates. There are degrees of seriousness - here are a few everyday scenarios:-
A: Jason is 21. He has a provisional licence and has never taken a test. He is stopped while driving his mate's G-registered Nova. He appears on summons for no insurance, no licence, and no MOT certificate. A separate summons will be issued over the car's lack of a tax disc. The police have seized the car. He lives with his mother and gets £43 per week benefits. He pleads guilty.
B: Mohammed is 22 and holds an Afghan driving licence, which he has been using for the eighteen months that he has been in the UK. His asylum claim is in the system. He is stopped while driving what seems to be a communal car owned with friends. They use it to get to the casual farm and labouring jobs that they are doing to supplement their £38 per week benefits. He did not know that insurance was required, and he also did not know that his entitlement to use the Afghan licence has run out and he needs to take a test for a UK licence. He is summonsed for no insurance, not driving in accordance with the terms of a licence, and no MOT. He pleads guilty.
C: Charlene is a 31 year old single mother. She works a couple of shifts in a pub, and receives various benefits to support her children. Her income from all sources is about £170 per week. Her 13 year old Cavalier used to be insured by her boyfriend but he has moved on and the insurance ran out six weeks ago. She can't afford to renew it. She has a full licence with three points for a speed camera offence, and the MOT fortunately has three weeks left to run. She needs the car to run the kids about, to get to work, and for shopping at the cheap Aldi shop that is three miles away. She pleads guilty to driving without insurance.
D: Patrick has a six year old van that he uses to carry his tools around for his work as a builder's odd-job man. He has no insurance, has a similar conviction from eighteen months ago, and another from four years ago. His licence is a full one. He earns about £250 per week and lives with his girlfriend in a rented flat.
E: John was doing a part time driving job for a local off-licence when he was stopped in a routine check. When he went to get the insurance certificate from his employer he discovered that it had expired three months before. He is summonsed for no insurance, and writes in to plead guilty, but comes to court to tell us what has happened. He can't afford a solicitor.
The Guidelines:
Entry point is a discharge or fine. Guideline fine is one week's take-home pay. Must endorse licence with 6-8 points or may disqualify. Disqualification should be considered where there are aggravating factors such as deliberate failure to obtain insurance, a defective vehicle, no test ever passed, no reference to ever having had a policy. Mitigation might include accidental oversight, genuine mistake.
Anyone fancy sentencing that lot? Cases just like them will be before every court in the land next week.
Just to muddy the water for you, a new Fixed Penalty has been introduced for no insurance. It is for £200 plus six penalty points, but for today, none of our offenders have been offered the FPN. Oh yes, and you have just paid your car insurance, that cost you £550.
A: Jason is 21. He has a provisional licence and has never taken a test. He is stopped while driving his mate's G-registered Nova. He appears on summons for no insurance, no licence, and no MOT certificate. A separate summons will be issued over the car's lack of a tax disc. The police have seized the car. He lives with his mother and gets £43 per week benefits. He pleads guilty.
B: Mohammed is 22 and holds an Afghan driving licence, which he has been using for the eighteen months that he has been in the UK. His asylum claim is in the system. He is stopped while driving what seems to be a communal car owned with friends. They use it to get to the casual farm and labouring jobs that they are doing to supplement their £38 per week benefits. He did not know that insurance was required, and he also did not know that his entitlement to use the Afghan licence has run out and he needs to take a test for a UK licence. He is summonsed for no insurance, not driving in accordance with the terms of a licence, and no MOT. He pleads guilty.
C: Charlene is a 31 year old single mother. She works a couple of shifts in a pub, and receives various benefits to support her children. Her income from all sources is about £170 per week. Her 13 year old Cavalier used to be insured by her boyfriend but he has moved on and the insurance ran out six weeks ago. She can't afford to renew it. She has a full licence with three points for a speed camera offence, and the MOT fortunately has three weeks left to run. She needs the car to run the kids about, to get to work, and for shopping at the cheap Aldi shop that is three miles away. She pleads guilty to driving without insurance.
D: Patrick has a six year old van that he uses to carry his tools around for his work as a builder's odd-job man. He has no insurance, has a similar conviction from eighteen months ago, and another from four years ago. His licence is a full one. He earns about £250 per week and lives with his girlfriend in a rented flat.
E: John was doing a part time driving job for a local off-licence when he was stopped in a routine check. When he went to get the insurance certificate from his employer he discovered that it had expired three months before. He is summonsed for no insurance, and writes in to plead guilty, but comes to court to tell us what has happened. He can't afford a solicitor.
The Guidelines:
Entry point is a discharge or fine. Guideline fine is one week's take-home pay. Must endorse licence with 6-8 points or may disqualify. Disqualification should be considered where there are aggravating factors such as deliberate failure to obtain insurance, a defective vehicle, no test ever passed, no reference to ever having had a policy. Mitigation might include accidental oversight, genuine mistake.
Anyone fancy sentencing that lot? Cases just like them will be before every court in the land next week.
Just to muddy the water for you, a new Fixed Penalty has been introduced for no insurance. It is for £200 plus six penalty points, but for today, none of our offenders have been offered the FPN. Oh yes, and you have just paid your car insurance, that cost you £550.
Justices of the Peace Act 1361
Here is the Act. It is still in use in our courts every day.
1. FIRST, that in every county of England shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power to restrain the offenders, rioters, and all other barrators, and to pursue, arrest, take, and chastise them according their trespass or offence; and to cause them to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement; and also to inform them, and to inquire of all those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering, and will not labor as they were wont in times past: and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behavior towards the king and his people, and the other duly to punish; to the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished, nor merchants nor other passing by the highways of the realm disturbed, nor put in fear by peril which might happen of such offenders; and also to hear and determine at the king’s suit all manner of felonies and trespasses done in the same county according to the laws and customs aforesaid; and that writs of oyer and determiner be granted according to the statutes thereof made, and that the justices which shall be thereto assigned be named by the court, and not by the party. And the king will, that all general inquiries before this time granted within any seignories, for the mischiefs and oppressions which have been done to the people by such inquiries, shall cease utterly and be repealed and that fines, which are to be made before justices for a trespass done by any person, be reasonable and just, having regard to the quantity of the trespass, and the causes for which they may be made.
And here is the Judicial Oath:-
I, (name), do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.
The oath for judges is similar, and those of other religions or of none may take a slightly different oath.
1. FIRST, that in every county of England shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power to restrain the offenders, rioters, and all other barrators, and to pursue, arrest, take, and chastise them according their trespass or offence; and to cause them to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement; and also to inform them, and to inquire of all those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering, and will not labor as they were wont in times past: and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behavior towards the king and his people, and the other duly to punish; to the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished, nor merchants nor other passing by the highways of the realm disturbed, nor put in fear by peril which might happen of such offenders; and also to hear and determine at the king’s suit all manner of felonies and trespasses done in the same county according to the laws and customs aforesaid; and that writs of oyer and determiner be granted according to the statutes thereof made, and that the justices which shall be thereto assigned be named by the court, and not by the party. And the king will, that all general inquiries before this time granted within any seignories, for the mischiefs and oppressions which have been done to the people by such inquiries, shall cease utterly and be repealed and that fines, which are to be made before justices for a trespass done by any person, be reasonable and just, having regard to the quantity of the trespass, and the causes for which they may be made.
And here is the Judicial Oath:-
I, (name), do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.
The oath for judges is similar, and those of other religions or of none may take a slightly different oath.
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