Tuesday, January 31, 2006
Tell Me About It!
This not only has the ring of truth, but adds to the argument that much of the last two decades' decline in public decency is down to the tabloid press.
Monday, January 30, 2006
Floreat Etona
Posh lawyers don't spend a lot of time in the magistrates'court. A few young barristers who fancy a life of crime flit through the grubby end of the trade on their way to the Crown Court and the Old Bailey, but on the whole we get a different type of defence brief.
We were graced one day by the presence of an exquisitely pin-striped and beautifully spoken stiff-collared young man whose haircut was strongly suggestive of Eton College (or Slough Grammar as it was known at my provincial university).
He shimmered to his immaculately-shod feet. "May it please your worships" (running fingers through his mane, removing blonde mop from line of vision) "Due to a happy concatenation of circumstances we find ourselves in a position to progress my client's case this morning".
"Swipe me!" was my first thought. My second was to suppress a grin prompted by my having caught the eye of John Cochrane, a down-to-earth local solicitor who is a fixture in our court, and whose rolling eyes were a dead giveaway of his thoughts.
By chance I bumped into John a few days later in the local pub known as Court Seven. We could not resist talking about Mr. Pinstripe, and I finished up betting John a pound that he couldn't fit in the word 'concatenation' in front of me one day. I lost.
I have subsequently learned that advocates often challenge each other to introduce unlikely words in their address to the court without prompting a rebuke or a query from the chair. The daftest that I have heard of is 'hypostasis'. How the perpetrator got away with that I cannot imagine, but he did, or so he claims.
We were graced one day by the presence of an exquisitely pin-striped and beautifully spoken stiff-collared young man whose haircut was strongly suggestive of Eton College (or Slough Grammar as it was known at my provincial university).
He shimmered to his immaculately-shod feet. "May it please your worships" (running fingers through his mane, removing blonde mop from line of vision) "Due to a happy concatenation of circumstances we find ourselves in a position to progress my client's case this morning".
"Swipe me!" was my first thought. My second was to suppress a grin prompted by my having caught the eye of John Cochrane, a down-to-earth local solicitor who is a fixture in our court, and whose rolling eyes were a dead giveaway of his thoughts.
By chance I bumped into John a few days later in the local pub known as Court Seven. We could not resist talking about Mr. Pinstripe, and I finished up betting John a pound that he couldn't fit in the word 'concatenation' in front of me one day. I lost.
I have subsequently learned that advocates often challenge each other to introduce unlikely words in their address to the court without prompting a rebuke or a query from the chair. The daftest that I have heard of is 'hypostasis'. How the perpetrator got away with that I cannot imagine, but he did, or so he claims.
Compensation Culture
The power to award compensation is one of the magistrates' most important powers. After all, there is a deal of natural justice in making people pay for damage they have caused, even though where the damage is enormous and the perpetrator on £45 a week benefit we sometimes have to take a realistic view. There is a list of suggested injury compensation awards in the Bench Book at page 183 of the pdf file. We may sometimes make a compensation order as a sentence in its own right where criminality is not too high but a victim has suffered a loss.
A court is obliged to consider compensation, but it remains one of the decreasing number of areas where we pretty much have a free hand. If property has been damaged the police may put in a compensation claim, but they often don't and we are thrown back onto Mark 1 Common Sense, which suits me fine. As ordinary citizens members of a bench of magistrates are well placed to make a fair guess at the cost of putting something right, and also, on occasion, to scale back an inflated claim.
Many years ago there was an incident in a pub in which a young man hurled various things across the bar, breaking bottles and glasses, and then scuffled with the manager, ripping the latter's shirt. The victim put in a claim for nearly £2,000. We went through it line-by-line, and found that every bottle on the optics had allegedly been broken, and that every one was full at the time. Funny, that. The manager claimed £140 for his shirt, and various bits and pieces behind the bar came to a hundred here and a hundred there. Unfortunately for him we knew that ten days after the incident the pub had undergone scheduled refurbishments, being gutted and refitted, so the claims to replace various shelves and wooden mouldings referred to stuff that would have been in the skip within a fortnight. Nevertheless the pub was still entitled to reasonable compensation, so we set our own figure of about a fifth of the claim. Nobody seemed surprised.
A court is obliged to consider compensation, but it remains one of the decreasing number of areas where we pretty much have a free hand. If property has been damaged the police may put in a compensation claim, but they often don't and we are thrown back onto Mark 1 Common Sense, which suits me fine. As ordinary citizens members of a bench of magistrates are well placed to make a fair guess at the cost of putting something right, and also, on occasion, to scale back an inflated claim.
Many years ago there was an incident in a pub in which a young man hurled various things across the bar, breaking bottles and glasses, and then scuffled with the manager, ripping the latter's shirt. The victim put in a claim for nearly £2,000. We went through it line-by-line, and found that every bottle on the optics had allegedly been broken, and that every one was full at the time. Funny, that. The manager claimed £140 for his shirt, and various bits and pieces behind the bar came to a hundred here and a hundred there. Unfortunately for him we knew that ten days after the incident the pub had undergone scheduled refurbishments, being gutted and refitted, so the claims to replace various shelves and wooden mouldings referred to stuff that would have been in the skip within a fortnight. Nevertheless the pub was still entitled to reasonable compensation, so we set our own figure of about a fifth of the claim. Nobody seemed surprised.
Friday, January 27, 2006
The Price of Fame
A District Judge at an East London court has remanded Pete Doherty, a pop singer, in custody on drugs charges today. I have nothing to say about Mr. Doherty or about today’s bail decision but I do sympathise with any court that finds itself dealing with someone famous. We have seen a few such cases, and the first indication that something is up is usually a posse of journalists and cameramen outside the court. We can rely on our court staff to sort out access to the press seats (which will never hold a quarter of those wanting to get in) and organise some sort of pooling arrangement. A couple of local policemen will keep an eye on the crowd, and it is usual to get the case on as early as possible so that the court can then quickly get back to normal and crack on with its daily business.
Magistrates are ordinary people, who read the same papers and watch the same TV as everyone else. The bench will have to brace themselves to treat the case in exactly the same way as any other. The pressure of a full press gallery, and the certainty that the court’s decision will be on the day’s news is a stern test of the magistrates’ training and experience, but they can cope with that.
What happens when the case gets before a jury can be another matter altogether.
Wednesday, January 25, 2006
Well I Never
Someone asked me the other day why I decided to call the blog 'The Law West of Ealing Broadway', when I have only the most tenuous connection with the place, mostly to do with changing trains on the way into London. I am told that the 'Ealing Gazette' picked up the 'Times' piece and ran a story based on the fact that it was of local interest!
Well of course it was a dim memory of Paul Newman playing Judge Roy Bean in the film of the same name, and the Judge's motto 'The Law West of the Pecos' that made it spring to mind. That was all I knew about the fellow, until the other day I looked him up here.
It turns out that he really existed, and that his courthouse, that also served as a saloon and a jail, has been preserved as a tourist attraction. Apparently he was well known for serving drinks to passengers waiting while their train was fuelled and watered and holding on to their change until the last minute. When the train whistle blew, and the customers swore at him in their hurry to get their change and go he would fine them the exact amount of the change for using bad language.
They don't make them like that any more.
Well of course it was a dim memory of Paul Newman playing Judge Roy Bean in the film of the same name, and the Judge's motto 'The Law West of the Pecos' that made it spring to mind. That was all I knew about the fellow, until the other day I looked him up here.
It turns out that he really existed, and that his courthouse, that also served as a saloon and a jail, has been preserved as a tourist attraction. Apparently he was well known for serving drinks to passengers waiting while their train was fuelled and watered and holding on to their change until the last minute. When the train whistle blew, and the customers swore at him in their hurry to get their change and go he would fine them the exact amount of the change for using bad language.
They don't make them like that any more.
Brian and the ASBO
Thank you for the many comments on the case of Brian. As I expected, the range of sentences ran the full gamut, from releasing him straight away to five years in prison. I shall draw a veil over the more gung-ho posters who preferred capital punishment.
Some people wanted to see him put into compulsory rehab, either in or out of prison. Such facilities are almost entirely non-existent and for short prison sentences offenders are simply warehoused until their release date, because there is no time to organise anything but the most perfunctory programme. This may change in the medium term with the introduction of ‘custody plus’ adding supervision in the community on to the end of a prison sentence.
It’s the ASBO that’s the problem. He was given his when they were still relatively new orders. Since then the higher courts have issued guidelines that discourage their over-use and the imposition of unrealistic conditions. He was ordered not to be drunk in public, and he probably breached that when he walked out of the courthouse door, since he is drunk pretty much all of the time. He probably would not be given a similar order today, but the order is in place, and that’s it.
So we run through the structured sentencing process:-
How serious is the offence of its type? Being drunk – not very. Breaching the ASBO, serious because of repetition and failure to respond to previous sentences.
Is a fine or discharge appropriate? No, he has already been imprisoned twice. Breach of an ASBO is a serious either-way offence.
Is it serious enough for a community penalty? Certainly, but he has been declared unsuitable, so we may not impose one.
Is it so serious that only custody is appropriate? That’s the tricky bit. It probably isn’t, but what else can we do?
Are our powers sufficient or shall we commit to the Crown Court? Following the higher courts’ current thinking the judge is unlikely to give much, if any, more time that we can, certainly nothing like five years. We decide that we will reflect his guilty plea by not sending him upstairs, so the sentence will be six months (of which he will serve half).
If you cast your eyes to the top of the blog, you can see the bit that says where my views differ from the letter of the law I will impose the letter of the law. That’s what’s happening here. A pathetic drunk, of low intellect, will have received a total of eighteen months' imprisonment for offences that normally attract sentences right at the bottom of the tariff, usually a fine. There will be no treatment, and he will not be ‘cured’. He will leave prison clutching his discharge grant and he will head for the nearest off-licence. This cat-and-mouse will go on until his ASBO finally expires or he saves all of us a lot of trouble and succumbs to the drink. Prison is an expensive resource (estimates vary, but £750 per week may not be too far off the mark) and Brian may be lucky and avoid the bullying that is often the fate of the vulnerable and the gormless, or he may not.
Of course, while he is inside decent citizens will be spared the sight and sound of him reeling in the street hurling foul mouthed abuse at all and sundry, and that is a plus point. But is prison really the best that we can come up with?
So those of you who said that there is no answer were, I am afraid, spot on.
Some people wanted to see him put into compulsory rehab, either in or out of prison. Such facilities are almost entirely non-existent and for short prison sentences offenders are simply warehoused until their release date, because there is no time to organise anything but the most perfunctory programme. This may change in the medium term with the introduction of ‘custody plus’ adding supervision in the community on to the end of a prison sentence.
It’s the ASBO that’s the problem. He was given his when they were still relatively new orders. Since then the higher courts have issued guidelines that discourage their over-use and the imposition of unrealistic conditions. He was ordered not to be drunk in public, and he probably breached that when he walked out of the courthouse door, since he is drunk pretty much all of the time. He probably would not be given a similar order today, but the order is in place, and that’s it.
So we run through the structured sentencing process:-
How serious is the offence of its type? Being drunk – not very. Breaching the ASBO, serious because of repetition and failure to respond to previous sentences.
Is a fine or discharge appropriate? No, he has already been imprisoned twice. Breach of an ASBO is a serious either-way offence.
Is it serious enough for a community penalty? Certainly, but he has been declared unsuitable, so we may not impose one.
Is it so serious that only custody is appropriate? That’s the tricky bit. It probably isn’t, but what else can we do?
Are our powers sufficient or shall we commit to the Crown Court? Following the higher courts’ current thinking the judge is unlikely to give much, if any, more time that we can, certainly nothing like five years. We decide that we will reflect his guilty plea by not sending him upstairs, so the sentence will be six months (of which he will serve half).
If you cast your eyes to the top of the blog, you can see the bit that says where my views differ from the letter of the law I will impose the letter of the law. That’s what’s happening here. A pathetic drunk, of low intellect, will have received a total of eighteen months' imprisonment for offences that normally attract sentences right at the bottom of the tariff, usually a fine. There will be no treatment, and he will not be ‘cured’. He will leave prison clutching his discharge grant and he will head for the nearest off-licence. This cat-and-mouse will go on until his ASBO finally expires or he saves all of us a lot of trouble and succumbs to the drink. Prison is an expensive resource (estimates vary, but £750 per week may not be too far off the mark) and Brian may be lucky and avoid the bullying that is often the fate of the vulnerable and the gormless, or he may not.
Of course, while he is inside decent citizens will be spared the sight and sound of him reeling in the street hurling foul mouthed abuse at all and sundry, and that is a plus point. But is prison really the best that we can come up with?
So those of you who said that there is no answer were, I am afraid, spot on.
On the Wireless
Jeremy Vine (BBC Radio 2) has just trailed the fact that his programme will be doing a piece about magistrates on Friday 27th January. He usually has a rather tabloid take on the news, so I may just end up muttering undeleted expletives at the radio, but I am glad to see anything that improves public awareness of what the courts do and why they do it. There is still a vast chasm of ignorance between the public and the criminal justice system, so I hope that the programme's millions of listeners get a fair picture of how we operate.
Tuesday, January 24, 2006
Er- Not Quite According to Plan Then?
The ever-readable policeman seems to think that CPS Direct (the 24/7 hotline that advises police on the correct charge) isn't working all that smoothly. It sometimes seems that every time one part of the criminal justice system is reformed the Law of Unintended Consequences will ensure that something else will go awry.
Sunday, January 22, 2006
Time For You to Have a Go Again
It’s time for you to be in the hot seat again. This case is a composite of some typical ones, and I am going to ask you how you will deal with this man who has just reoffended. Most magistrates will have seen a case like this one.
Brian is in his forties. The years have not been kind to him, and homelessness and alcoholism, combined with the fact that he has always had learning difficulties, have left him looking old beyond his years. He is accompanied in court by an ‘appropriate adult’ which is standard procedure for children and for adults who may have difficulty in understanding what is going on and in expressing themselves. He has a criminal record going back about 25 years, almost entirely for minor public order offences, predominantly being drunk and disorderly. He lives in hostels some of the time, in abandoned houses some more of the time, and in Wormwood Scrubs during periodic incarcerations. When drunk, which is most of the time, Brian can be a really unpleasant nuisance, staggering about the streets swearing and abusing total strangers. The public react to him with alarm, getting away from him as soon as they can, and I am sure that most local citizens want to see the back of him.
He is in custody, having just been arrested again for drunk and disorderly, but for the third time in nine months he has also been charged with breaching an Anti Social Behaviour Order. About 18 months ago a court granted an ASBO that banned him from being drunk in public. For each of the two previous breaches he has been sentenced to six months in prison, of which he will have served half.
He pleads guilty, and his solicitor asks you to sentence him today rather than waiting for a pre-sentence report, as the court will have all the information that it needs without one. The solicitor reminds you that Brian is entitled to a reduction of sentence of one-third for his plea of guilty. The clerk addresses you and reminds you that you should consider whether to commit to the Crown Court for sentence in view of the repeated breaches of the ASBO. Your maximum power today is six months. At the Crown Court a judge can impose up to five years.
You retire. One of your ‘wingers’ is very new to the bench, and asks what is the usual penalty for a drunk and disorderly. You explain that it is usually a conditional discharge or a fine, and that any fine is often cancelled out by a night spent in the cells. You explain that it is the breach of ASBO that you need to consider.
Your decision. Do you:- Send him up to the Crown Court for a sentence longer than six months? Give him six months straight off, and tell him that the credit for his plea lies in the fact that you did not send him upstairs? Fine him? Give him a Conditional Discharge? (Community Penalties are not available because on a previous occasion Probation reported that he has been given, and breached, the whole range of such penalties).
Tell me what you would do, and we shall return to the subject in a day or two.
Another Odd Job
As I have said before, we are sometimes asked to decide on something that is well out of the ordinary.
On one occasion, it was to decide someone's age. The someone in question was an illegal immigrant from a third-world country who had committed a criminal offence. He claimed to be 17, which makes him a youth in legal terms. The Youth Court only sits on two days a week in my courthouse, and this was not one of them. If we had been sure that he was 17, we would have remanded him over to the next youth court. The prosecution, however, challenged his age, and I could see their point. I am no expert, but he looked well over 20 to me - more like 24 if I had to guess.
So our bail decision was to send him to the youth court and ask them to determine his age for legal purposes. We had no firm evidence of his age - in fact there may even be none, as some rural areas in poor countries have no system of records. Quite a few such people give their date of birth as 1st January, 19XX, which is a convention for their being fairly sure about the year, but having no idea about the date. This chap was a mystery.
On one occasion, it was to decide someone's age. The someone in question was an illegal immigrant from a third-world country who had committed a criminal offence. He claimed to be 17, which makes him a youth in legal terms. The Youth Court only sits on two days a week in my courthouse, and this was not one of them. If we had been sure that he was 17, we would have remanded him over to the next youth court. The prosecution, however, challenged his age, and I could see their point. I am no expert, but he looked well over 20 to me - more like 24 if I had to guess.
So our bail decision was to send him to the youth court and ask them to determine his age for legal purposes. We had no firm evidence of his age - in fact there may even be none, as some rural areas in poor countries have no system of records. Quite a few such people give their date of birth as 1st January, 19XX, which is a convention for their being fairly sure about the year, but having no idea about the date. This chap was a mystery.
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