More From The Currant Bun

The Sun runs a leader today that manages, as usual, to be wilfully misleading and deliberately unfair:-

WHEN a judge passes a life sentence, the public has every right to think that it means life.

They certainly don’t expect it to last just four years.

Judge Christopher Metcalf handed down a life sentence to a paedophile yesterday then promptly told him he could be out in 2010.

What sort of justice is that?

Jason Hope was on the run from prison when he committed an appalling act of depravity on a 13-year-old schoolboy.

If Judge Metcalf thinks four years is life he’s obviously living in a different world from the rest of us.

One of these days, a judge is going to pass a life sentence which actually means life.

But until more prisons are built and judges get a grip on reality, that’s not going to happen.

And judges like Christopher Metcalf will continue to be living proof the law is an ass.

The judge is obliged, when passing a custodial sentence, to read out a statement explaining how it will work. In the Crown Court where I sometimes sit on appeals the sentencing reasons statement is present in laminated form on each bench. When passing an indeterminate sentence such as life the judge must state the earliest date at which the prisoner can be released, but that does not of course mean that this will be the actual release date. In one recent case that greatly exercised the papers the judge went on to say that the prisoner would not be released until he was felt to present no further danger, and that he might, in fact, never be released. The headline writers ignored that, leaving, as they intended, the impression that a man who had committed an appalling crime would be out in a few years.

The casual insult to the judge in the quoted piece above is just another chip away at respect for the courts, and it isn't just casual, it is unfair and inaccurate.

In its crude and thuggish way the Sun does make one valid point. It is time to end the fiction of calling some sentences 'life' when they are not intended to be anything of the sort. Life is now a technical legal term, so why don't we replace it with something like 'indefinite' or 'indeterminate' or even 'unspecified'? Then we can save the L-word for those sentences that are imposed for the very worst crimes and will very likely leave the criminal inside until he either dies or is rendered so frail by the passage of time that he is no longer a threat to anyone.

Hard Cases Make Bad Law (no.277)

Like this

This well-intentioned but stupid legislation will profitably occupy many lawyers and police officers, and is unlikely to convict many, if any. It is a classic knee-jerk reaction to an appalling case. The borders of this kind of sexual conduct are notoriously fuzzy, and it isn't fair to ask a jury to decide on such a nebulous issue.

I Agree

As we near the end of the lull in frenetic 'initiatives' from the Government caused by the summer holiday season, we sit nervously awaiting the latest basket of wheezes cooked up on a Caribbean beach. There will be much talk of victims and of rebalancing, and this letter in today's Times gives a welcome perspective:-

Sir, You report (“Change may tip balance in favour of those who abide by law”, Aug 28) that the Prime Minister and Home Secretary want to rebalance the criminal justice system to give victims a greater voice.
One of the fundamental tenets of modern jurisprudence is that a crime is an offence against society. This justifies the State, and not the victims or their families, in taking the role of prosecutor and jailer. Another principle is that culpability is measured by the degree of the accused’s intention to bring about harmful consequences, not on the suffering of those affected.

In the sentencing process, account is always taken of aggravating or mitigating factors, including the level of violence used and the relative vulnerability of the victim. The penal options available to the judge are designed to do three things: punish, rehabilitate and deter. If the penalty is to be decided according to how sympathetic the judge is to a victim’s testimonial, what is its purpose? Public catharsis? Do Blair and Reid really think that turning the courts into platforms for victims’ grievances will hasten the healing process?

There was a time when vengeance was a victim’s right and public catharsis very popular. Wronged individuals and even whole communities participated in the trial and sentencing process. They then got the opportunity to carry out or watch the punishment. It was called the Dark Ages.

KATHARINE EVANS

Domestic Violence - The Sequel

Just after posting about Domestic Violence the other day I was at court while the adjacent courtroom spent all day trying a DV case. I can't pass on most of what my colleagues told me over lunch, but the case seemed to have many of the features that we so often see - a turbulent relationship, a problem family, a reluctant victim (who had in fact turned up to give evidence) and a history of more than three dozen calls to the police made either by the woman or by neighbours concerned at the sounds of conflict coming from the flat next door. Only now had lover boy been charged. The only people who knew what had happened were the two protagonists, there being no independent witnesses. The neighbours didn't want to get involved, this being the kind of estate where the police are only ever called in to arbitrate violent and often drunken disputes.

I don't know how it turned out, but when the bench has to reach a verdict beyond reasonable doubt, and the two people involved flatly contradict one another on every single detail, it can be difficult.

Speed Again

I commented here and here on the case of the police driver who drove at speeds of up to 159 mph on the road.

After the High Court overturned the PC's original acquittal the case was sent back to the magistrates' court, and re-tried before a different District Judge, DJ Peter Wallis, who is a leading expert on road traffic law, being an editor of Wilkinson's, which is the definitive handbook on traffic cases.

I defer to the learned DJ's knowledge of the law, and he was clearly acting within his discretion to impose an Absolute Discharge on the grounds that the officer has 'suffered enough' although comments in today's press suggest that is a controversial decision. What I do find hard to understand is that no penalty points or disqualification were imposed. If you look at the Bench Book that is used by all magistrates and District Judges at about page 162 of the pdf you will see that the entry point is custody; no matter, the DJ was entitled to see things differently, but also that a disqualification should be imposed, or, failing that, penalty points.

Although I have seen nothing about it in the press, the DJ must presumably have found Special Reasons not to endorse or disqualify. I have always understood that Special Reasons must apply to the offence and not to the offender, and must not be capable of amounting to a defence. That does seem odd in this case, and I look forward to finding out exactly what the DJ said.

Afterthought......
The Police Federation have said that they intend to appeal the conviction. That will be interesting as it will be by way of a re-hearing in front of a Circuit Judge or Recorder, and two magistrates. There is a risk to the PC in this, because the penalties may be increased if the court so decides.

A Bit More About Domestic Violence

The Criminal Solicitor has a sobering account of a man who was cautioned by the police for an offence of domestic violence and released. He went home and murdered his wife.
This awful case points up the risk that everyone in the criminal justice system runs every day - that of taking a decision that is completely within the rules, but goes horribly wrong. As I have often said, all bail decisions are a calculated risk, and so are many sentencing decisions. Away from the courts the decision to caution rather than to charge (as in this case) or the parole decision, or that to reclassify a prisoner to open conditions are all fraught with risk.

Along with well over half of my colleagues I have now completed my Domestic Violence training, and it has helped us to understand more about the issues and the risks. The risks remain however, because they are a consequence of the unpredictability of human nature, especially in the labyrinthine complexity of the relationship between a man and a woman. Who could have predicted the appalling leap from a holiday hotel that killed a child last week? Just suppose that the man responsible had been on bail: what would the tabloids have made of that? How would the magistrate who granted bail feel? And it could have been me.

Oh Well, It Had To Come.....

Speeding kills. Speeding is fun. Cameras are there to collect revenue. You have heard it all before.

Go on then, let's have your comments. Be as rude as you like about magistrates but please don't attack each other.

I'm off.

JP - ID

Magistrates in England and Wales either have or are to be issued with photo-IDs. The cards will be in a standard format and will include a photograph. The JP has the choice as to how his name appears on the card, such as John Smith, Mr. John Smith, J. Smith JP, or whatever.

These IDs will not be worn in court, but are to help in gaining access to secure areas of courthouses, and to courts and other Courts' Service premises where the user may be a visitor.

This is a major break with previous practice. When I was appointed we were sternly informed that there were no badges, ties or cufflinks, nor ladies' equivalents for magistrates. The use of JP after your name was strictly limited to official documents. Under no circumstances might it appear on election literature, or in any context where the user might appear to be using it for his own advantage. The reason was obvious: if even a tiny minority of idiots tried to use their office to throw their weight about the whole magistracy's reputation could suffer.

One fool on my bench made a huge fuss in the Post Office one day in the 1980s because he was unable, for technical reasons, to re-licence his car. He jumped up and down, demanded to see the manager, and said that no magistrate should have to drive around untaxed, and all the rest of it( it was the last day of the month).

He quietly disappeared from the bench a while later. I was far too junior to find out what had happened, but my guess is that he fell on his sword after a few hints from the Bench Chairman and the Clerk.

Since then the Lord Chancellor has relaxed the rules on the use of JP (if you are really interested it's somewhere on the Magistrates' Association website) because he feels that the community ought to know who these people are. I agree. Openness is not always comfortable, but any secrecy in the administration of justice is bound to arouse understandable suspicions.

Come to think of it, that's one of the reasons for my starting this blog.

Reality Check

When we order pre-sentence reports, required before we impose community sentences or custody, we often have to adjourn the case to allow probation to produce the report. Where drug or psychiatric assessments are required we must adjourn for three weeks to allow the report to be prepared. Up to a third of offenders fail to turn up for the interview, and we saw a couple of them this week.

In the interests of justice we often have (reluctantly) to adjourn for another try, but in each case I accompany the pronouncement with a bit of patter along the lines of:-

"We will have this report, one way or another. We have the power to remand you in custody if that is the only way to get you to an interview. We will send you to prison and the probation officer can visit you there. This next appointment will be the last one on bail. Do you understand?"

This has a dramatic effect in penetrating the often-befuddled brain of the defendant, and to be honest, I have never yet had to carry out my threat.

Nasty Little Scams

This post is not based on my experience as a magistrate, but on my experience running businesses.

There are many people who prey on decent businesses and decent people year after year, and my main regret is that I hardly ever see any of them in the dock.

There is the First Aid scam. We are all in favour of first aid, rather like motherhood and apple pie. So sales people call into businesses (it happened to me) where they will deal with a low-level employee who will of course agree to have the first aid box topped up. When the invoice arrives a few weeks later the owner finds that paracetemol tablets ( 2p each in Tesco) have been invoiced at 25p, and so on.

There are many advertising scams. The phone rings and the caller claims to be from the police, or the fire brigade, or the ambulance service, or whomever. They are producing a diary or a yearbook, or such like. The sales talk suggests that you will be supporting the public service, so the unwary will buy an advertisement for several hundred pounds. The publication, when it appears, will be cheaply printed and given to the police station or the fire station, where it will be binned.

After I had been caught a couple of times I took to asking for the address of the so-called sponsoring organisation so that I could send them a cheque. Not one ever responded.

I find dodgy charities especially disgusting, because they prey on the goodwill of nice people. Some swine came into my local pub with a teddy bear, and a book of raffle tickets. The naive landlord (okay, hold the oxymoron jokes) fell for it and decent people paid, in all, £100 for tickets to win a teddy bear worth at most £4 wholesale. The perpetrators are sellers of stuffed toys and no more. Charity law is lax, and so long as five or ten pounds gets to some sort of charity the scammers are bomb-proof. Look into the charity, and you may find that the secretary is the scammer's daughter-in-law on a salary of fifty grand a year.

I see all sorts of criminals, but I rarely feel disgust for them as people, however strongly I feel about their actions. I do especially despise those who abuse the trust of decent people to line their pockets.