I was listening to a less-than-riveting piece of evidence the other day when I was struck by the fact that nobody lives in a house any more. Everyone refers to their "property". I suppose that this is the result of the scores of turgid improve-your-home-and-make-a-bundle TV shows that are inflicted on viewers these days, but it manages to be both pompous and inaccurate. Property is a lawyer's word with a particular meaning, but we all know what a house is.
I may have to start clarifying matters when people refer to their property in the future. Just to ensure accuracy of course.
Sunday, July 31, 2005
Thursday, July 28, 2005
Sits. Vac
We need more magistrates. The workload is steadily increasing, and we need to see a net increase in our numbers in the next year or two. We have a steady trickle of retirements, and people move away, or change job, or suffer health problems.
What's the job spec. then? First of all, a commitment to serve the community, and secondly common sense. Thirdly enough time to do it, and employers' attitudes will of course vary. You must be able to sit a minimum of 26 half-days a year (although most courts sit full days) but that level means that you will take a long time to gain worthwhile experience of sitting on different sorts of cases. Most people sit for about 50 half-days, but some, such as yours truly, sit a great deal more. The Lord Chancellor grumbles about high sittings, but if the court rings me up and says that if I do not sit tomorrow they will have to close a courtroom, then I shall go in.
There is no pay, but travel and subsistence are reimbursed, and those who lose earnings can claim up to a certain amount per day. There are special arrangements for the self employed.
I shall not go into too much detail, but if anyone is curious, have a look at the Magistrates' Association site (link in the sidebar) which goes into things in depth. If you think that it might be for you, go and sit in your local court a couple of times (speak to the usher and tell them why you are there, and in some courts you might get a better seat and even a running list - you certainly do in mine).
If, having done that, you have any particular questions, either put them on the comments or email me, and I will see what I can do to help.
(Later) - I must just add one thing. Most people who apply are not appointed, but there is no shame in being rejected just as there is no honour in being chosen. Of course the assessment process is there to filter out those who are truly unsuitable (and one of the most damning is if the applicant is looking for a bit of prestige) but the committee have a duty to balance the bench in various ways to try to reflect the local community. Take the case that there are ten suitable applicants for five vacancies, but that the six most suitable are all men. Some of the less-suitable women will be appointed to maintain balance.
Someone wrote that Justice of the Peace is an honourable office, but that appointment is not an honour. It's a voluntary job of work.
What's the job spec. then? First of all, a commitment to serve the community, and secondly common sense. Thirdly enough time to do it, and employers' attitudes will of course vary. You must be able to sit a minimum of 26 half-days a year (although most courts sit full days) but that level means that you will take a long time to gain worthwhile experience of sitting on different sorts of cases. Most people sit for about 50 half-days, but some, such as yours truly, sit a great deal more. The Lord Chancellor grumbles about high sittings, but if the court rings me up and says that if I do not sit tomorrow they will have to close a courtroom, then I shall go in.
There is no pay, but travel and subsistence are reimbursed, and those who lose earnings can claim up to a certain amount per day. There are special arrangements for the self employed.
I shall not go into too much detail, but if anyone is curious, have a look at the Magistrates' Association site (link in the sidebar) which goes into things in depth. If you think that it might be for you, go and sit in your local court a couple of times (speak to the usher and tell them why you are there, and in some courts you might get a better seat and even a running list - you certainly do in mine).
If, having done that, you have any particular questions, either put them on the comments or email me, and I will see what I can do to help.
(Later) - I must just add one thing. Most people who apply are not appointed, but there is no shame in being rejected just as there is no honour in being chosen. Of course the assessment process is there to filter out those who are truly unsuitable (and one of the most damning is if the applicant is looking for a bit of prestige) but the committee have a duty to balance the bench in various ways to try to reflect the local community. Take the case that there are ten suitable applicants for five vacancies, but that the six most suitable are all men. Some of the less-suitable women will be appointed to maintain balance.
Someone wrote that Justice of the Peace is an honourable office, but that appointment is not an honour. It's a voluntary job of work.
Wednesday, July 27, 2005
Private or Public?
I dealt with a drink-drive case recently that hinged on whether a particular piece of ground was private or public, and, if the former, whether it was ground to which the public has access. This issue often arises in drink-drive offences that take place in pub car parks, and the case law is such that courts nearly always find that such car parks are in fact public places.
In the most recent case counsel had prepared photocopies of various judgements to help us, and one particular case rang a bell in my mind. I read it and I realised that it was a trial that I had sat on. The defendant appealed, and I was quite chuffed to read that the higher court had agreed with the magistrates.
Chatting about the case later, we were reminded of the sad tale of the eldest son of an aristocratic landowning family who had organised a gymkhana and fair on his family's estate. Some way into the day he was driving his Range Rover across a meadow when he stopped to speak to one of the local policemen who were supervising traffic in and out of the site. Eldest Son had taken some champagne with his pals earlier, and he was shocked and indeed furious when one of the officers required him to take a breath test (which he duly failed). Protesting loudly he was taken off to the nearest police station where the evidential machine produced a reading around double the limit.
Solicitors were instructed and the case came before the local bench, by which time learned Counsel had been engaged. The defence hinged on the fact that ES had been driving on his family's land where the Road Traffic Act does not apply. Unfortunately for him, the court found that the fact that the field was being used as a car park by members of the public made it fall within the category of a public place, albeit only for the two days of the event.
So he was convicted, and that conviction was upheld on the subsequent appeal. Summer event time is upon us again, so do be careful even if you think that you are on private land - there could be a nasty surprise in store.
In the most recent case counsel had prepared photocopies of various judgements to help us, and one particular case rang a bell in my mind. I read it and I realised that it was a trial that I had sat on. The defendant appealed, and I was quite chuffed to read that the higher court had agreed with the magistrates.
Chatting about the case later, we were reminded of the sad tale of the eldest son of an aristocratic landowning family who had organised a gymkhana and fair on his family's estate. Some way into the day he was driving his Range Rover across a meadow when he stopped to speak to one of the local policemen who were supervising traffic in and out of the site. Eldest Son had taken some champagne with his pals earlier, and he was shocked and indeed furious when one of the officers required him to take a breath test (which he duly failed). Protesting loudly he was taken off to the nearest police station where the evidential machine produced a reading around double the limit.
Solicitors were instructed and the case came before the local bench, by which time learned Counsel had been engaged. The defence hinged on the fact that ES had been driving on his family's land where the Road Traffic Act does not apply. Unfortunately for him, the court found that the fact that the field was being used as a car park by members of the public made it fall within the category of a public place, albeit only for the two days of the event.
So he was convicted, and that conviction was upheld on the subsequent appeal. Summer event time is upon us again, so do be careful even if you think that you are on private land - there could be a nasty surprise in store.
Monday, July 25, 2005
Yet More Bail
I dealt with nine overnight cases the other day, and in each one the only issue was whether or not they were to be granted bail or remanded in custody. The Bail Act provides for a presumption in favour of bail unless there are 'substantial' grounds to fear that the defendant will abscond, commit further offences, or interfere with witnesses. What is 'substantial' is up to the bench and that is why bail decisions are among the real red meat of the magistrate's job.
Some cases were simple. The man who had a huge amount of cocaine (street value north of a quarter-million) and who therefore faces something like ten years, didn't apply for bail as his counsel had presumably told him that he had no chance because of the clear incentive to do a runner. Remanded in custody for a week. At the other end of the scale was a woman of 35 who appeared to be on the edge of being mentally unstable and who had smashed some glasses in her boyfriend's house and then had an unavailing poke at the police when they turned up. She couldn't be sent back to the address, of course, but her worried-looking mum was in court and offered to take her in, so I told her that she would be bailed on condition that she lives and sleeps at mum's place. The 18 year old street robber who had failed to answer bail on two separate mobile phone muggings was refused bail because he is looking at a considerable stretch despite his youth.
The trickiest was another woman of about 40 whose heroin addiction has led her to have a 14 page criminal record, almost all of it for small scale theft and deception. She had been arrested while she was already on bail for two similar offences, and by the book she should have been remanded in custody, for the obvious fear of further offences. She has four children, and is five months pregnant, and that's what clinched it for me. I re-bailed her, avoiding the eye of our resident police officer who was bound to be thinking that I was a soft touch. Perhaps I am, but she is non-violent, does most harm to herself, and I just wasn't prepared to send a pregnant woman to Holloway with the weekend looming.
Her tattooed boyfriend did call out "thank you Sir" as he left, so it's nice to have one satisfied customer at least.
Final score: five bail, four custody.
Some cases were simple. The man who had a huge amount of cocaine (street value north of a quarter-million) and who therefore faces something like ten years, didn't apply for bail as his counsel had presumably told him that he had no chance because of the clear incentive to do a runner. Remanded in custody for a week. At the other end of the scale was a woman of 35 who appeared to be on the edge of being mentally unstable and who had smashed some glasses in her boyfriend's house and then had an unavailing poke at the police when they turned up. She couldn't be sent back to the address, of course, but her worried-looking mum was in court and offered to take her in, so I told her that she would be bailed on condition that she lives and sleeps at mum's place. The 18 year old street robber who had failed to answer bail on two separate mobile phone muggings was refused bail because he is looking at a considerable stretch despite his youth.
The trickiest was another woman of about 40 whose heroin addiction has led her to have a 14 page criminal record, almost all of it for small scale theft and deception. She had been arrested while she was already on bail for two similar offences, and by the book she should have been remanded in custody, for the obvious fear of further offences. She has four children, and is five months pregnant, and that's what clinched it for me. I re-bailed her, avoiding the eye of our resident police officer who was bound to be thinking that I was a soft touch. Perhaps I am, but she is non-violent, does most harm to herself, and I just wasn't prepared to send a pregnant woman to Holloway with the weekend looming.
Her tattooed boyfriend did call out "thank you Sir" as he left, so it's nice to have one satisfied customer at least.
Final score: five bail, four custody.
Saturday, July 23, 2005
Tragic Shooting
I have just read the Met Police statement on the man who was shot by officers yesterday, and it appears that a dreadful mistake has been made. I have nothing to say about the incident - there will be a full enquiry of course, and whatever its findings I am sure that we will all recognise that in the present situation, just as in the earlier Irish conflict, mistakes will happen and innocent people will die.
What does strike me is that the gloating that took place after the event in the press ("One Down Three to Go") and on the Internet, where it was as intemperate as we must expect from this most uninhibited medium, now looks particularly foolish and disgusting.
Yet again, the best lack all conviction, while the worst are full of passionate intensity. This is going to be a very long road, I am afraid.
What does strike me is that the gloating that took place after the event in the press ("One Down Three to Go") and on the Internet, where it was as intemperate as we must expect from this most uninhibited medium, now looks particularly foolish and disgusting.
Yet again, the best lack all conviction, while the worst are full of passionate intensity. This is going to be a very long road, I am afraid.
Friday, July 22, 2005
I'm Flattered - Well, Up To A Point, Anyway
I have just noticed that in a post a few weeks ago, we got a mention in uklawyers legal newswires (by Steve Butler and Joe Reevy) number 55.
They quote the blog header, and say we are 'sometimes entertaining'.
Thanks guys, that's about on a par with the Hitchhikers' Guide to the Galaxy describing earth as 'mostly harmless'.
They quote the blog header, and say we are 'sometimes entertaining'.
Thanks guys, that's about on a par with the Hitchhikers' Guide to the Galaxy describing earth as 'mostly harmless'.
Wednesday, July 20, 2005
Encouraging News
A 15-year-old boy has won a landmark High Court challenge to the legality of child curfew zones used to tackle anti-social behaviour.
The teenager said the use of dispersal zones in Richmond, south-west London, breached his rights under the European Convention on Human Rights.
Unaccompanied under-16s found in zones after 9pm can be held and escorted home, whether badly behaved or not.
The police and Richmond Council argued that it reduced anti-social behaviour.
The High Court ruled that the law did not give the police a power of arrest, and officers could not force someone to come with them.
Lord Justice Brooke said: "... All of us have the right to walk the streets without interference from police constables or CSOs unless they possess common law or statutory powers to stop us.
"If Parliament considered that such a power was needed, it should have said so, and identified the circumstances in which it intended the power to be exercised."
(from BBC News)
This is a poke in the eye for the authoritarians in the Home Office, and it is truly heartening to see one of our most senior judges standing up for the citizen's ancient rights.
The teenager said the use of dispersal zones in Richmond, south-west London, breached his rights under the European Convention on Human Rights.
Unaccompanied under-16s found in zones after 9pm can be held and escorted home, whether badly behaved or not.
The police and Richmond Council argued that it reduced anti-social behaviour.
The High Court ruled that the law did not give the police a power of arrest, and officers could not force someone to come with them.
Lord Justice Brooke said: "... All of us have the right to walk the streets without interference from police constables or CSOs unless they possess common law or statutory powers to stop us.
"If Parliament considered that such a power was needed, it should have said so, and identified the circumstances in which it intended the power to be exercised."
(from BBC News)
This is a poke in the eye for the authoritarians in the Home Office, and it is truly heartening to see one of our most senior judges standing up for the citizen's ancient rights.
Tuesday, July 19, 2005
Now That's What I Call Plucky
We heard a fairly simple trial today about some motoring offences involving drink and a bent motor car with a few other odds and ends that I can't mention without getting too close to giving the game away.
The defendant was represented by a barrister and was what lawyers call (often with discreet smacking of the lips) a 'private payer' so the bill for solicitor and counsel was coming out of his own pocket.
Not to put too fine a point on it, his defence case was a crock of..... no, let decorum reign and let me say that it was not too strong. He had admitted enough to the arresting officers to guarantee his conviction before any bench that I can imagine, and just to make certain he had dotted all of the whatsits and crossed all of the doodahs in a taped interview. Nevertheless, Not Guilty was the plea, as is his right, and an attractive young barrister (yes, the attractive is irrelevant, but I am allowed to notice) made the best of a bad job. To make matters worse for the defence the relatively inexperienced Crown prosecutor had to be elsewhere at short notice so a barrister was drafted in from Chambers. As luck would have it the Chambers clerk had already despatched all of his young tyros so we got, thanks to the cab-rank rule, a fifty-ish brief who had obviously got a lot of legal mileage on his clock.
Following her client's instructions the defending counsel put forward his story, that was both implausible and legally hopeless. She had a polite go at the police officers' evidence, but I really started to admire her when her client went into the box and dug himself even deeper into the mire. She kept her composure, and her closing address to the court was properly researched, impeccable as to case law, and delivered with bright-eyed conviction.
Conviction is what her client got too.
I admire her because faced with one of the worst defence scenarios since the Little Big Horn she did a professional job and carried on fighting for her client until the inevitably bitter end. She knew when she first got to her feet that she was on a loser but she gave it her best shot for her client. She had almost certainly advised him to plead guilty and get a bit off his sentence but he wanted to carry on, so carry on she did.
That's what makes the Bar (and criminal defence solicitors) so special in my view.
The defendant was represented by a barrister and was what lawyers call (often with discreet smacking of the lips) a 'private payer' so the bill for solicitor and counsel was coming out of his own pocket.
Not to put too fine a point on it, his defence case was a crock of..... no, let decorum reign and let me say that it was not too strong. He had admitted enough to the arresting officers to guarantee his conviction before any bench that I can imagine, and just to make certain he had dotted all of the whatsits and crossed all of the doodahs in a taped interview. Nevertheless, Not Guilty was the plea, as is his right, and an attractive young barrister (yes, the attractive is irrelevant, but I am allowed to notice) made the best of a bad job. To make matters worse for the defence the relatively inexperienced Crown prosecutor had to be elsewhere at short notice so a barrister was drafted in from Chambers. As luck would have it the Chambers clerk had already despatched all of his young tyros so we got, thanks to the cab-rank rule, a fifty-ish brief who had obviously got a lot of legal mileage on his clock.
Following her client's instructions the defending counsel put forward his story, that was both implausible and legally hopeless. She had a polite go at the police officers' evidence, but I really started to admire her when her client went into the box and dug himself even deeper into the mire. She kept her composure, and her closing address to the court was properly researched, impeccable as to case law, and delivered with bright-eyed conviction.
Conviction is what her client got too.
I admire her because faced with one of the worst defence scenarios since the Little Big Horn she did a professional job and carried on fighting for her client until the inevitably bitter end. She knew when she first got to her feet that she was on a loser but she gave it her best shot for her client. She had almost certainly advised him to plead guilty and get a bit off his sentence but he wanted to carry on, so carry on she did.
That's what makes the Bar (and criminal defence solicitors) so special in my view.
Sunday, July 17, 2005
Disappointingly Prosaic
The rolling nineteenth-century prose of the Vagrancy Act 1824 made it an offence:-
to "willfully, openly, lewdly and obscenely expose the person with intent to insult any female". In a training handout that I was given years ago there was an asterisk against the word 'person' and a footnote that for the purpose of the Act 'person' meant 'penis'
This is the main offence committed by "flashers" - but note the necessity for there to be an intention to insult a female. This offence did not have to be committed in a public place. It was triable only by magistrates and carried three months imprisonment.
The Sexual Offences Act 2003 replaces these provisions with:-
66 Exposure
(1) A person commits an offence if-
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.
(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
Not only has the lovely old statute that we all knew by heart been replaced by a drab piece of Parliamentary draftsmanship, but the offence may now be sent to the Crown Court. In the lower court the penalty has doubled, and the maximum penalty has increased eightfold.
It won't make a ha'porth of difference though, since your stereotypical flasher is not one to make a fine calculation of the penalties before hauling out his person - oh, sorry, I meant penis.
to "willfully, openly, lewdly and obscenely expose the person with intent to insult any female". In a training handout that I was given years ago there was an asterisk against the word 'person' and a footnote that for the purpose of the Act 'person' meant 'penis'
This is the main offence committed by "flashers" - but note the necessity for there to be an intention to insult a female. This offence did not have to be committed in a public place. It was triable only by magistrates and carried three months imprisonment.
The Sexual Offences Act 2003 replaces these provisions with:-
66 Exposure
(1) A person commits an offence if-
(a) he intentionally exposes his genitals, and
(b) he intends that someone will see them and be caused alarm or distress.
(2) A person guilty of an offence under this section is liable-
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
Not only has the lovely old statute that we all knew by heart been replaced by a drab piece of Parliamentary draftsmanship, but the offence may now be sent to the Crown Court. In the lower court the penalty has doubled, and the maximum penalty has increased eightfold.
It won't make a ha'porth of difference though, since your stereotypical flasher is not one to make a fine calculation of the penalties before hauling out his person - oh, sorry, I meant penis.
Friday, July 15, 2005
Golden Minutes
I have just been reading the comments on my Trial and Error post and the issue of the Police caution has come up. When we are hearing a trial, I give especial weight to what was or was not said in the first five minutes after arrest. It is a deep human instinct to react indignantly when wrongly accused - just try telling a child off for something that he did not do, and see how you get on. To take a simple example, if a driver is breath tested in a pub car park but waits until his trial three months later to claim that he was just moving the car to park it safely before walking home, we are entitled to wonder why he did not say anything to the officers at the time.
On another topic, one of the questions that friends ask me most frequently is "What do you think of Judge John Deed?" Well it is complete tosh of course, and a real-life Deed would be out on his ear in no time, but it is enjoyable tosh. I lunched with a roomful of judges last year, and they were all eagerly discussing what Deed would be getting up to in that evening's episode. I think that the idea of a judge being sexy rather appeals to them, and they empathise with the idea of sinister and manipulative civil servants trying to keep the judge in order.
On another topic, one of the questions that friends ask me most frequently is "What do you think of Judge John Deed?" Well it is complete tosh of course, and a real-life Deed would be out on his ear in no time, but it is enjoyable tosh. I lunched with a roomful of judges last year, and they were all eagerly discussing what Deed would be getting up to in that evening's episode. I think that the idea of a judge being sexy rather appeals to them, and they empathise with the idea of sinister and manipulative civil servants trying to keep the judge in order.
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