HASTA LAVISTA

It is widely known that Windows XP is now in effect ex Windows XP. I have been using mainly an eight year old desktop and also a ten year old notebook as my main and back up computors both running XP Pro service pack 3 and supposedly virus protected. Indeed the desktop came originally with Vista installed but I had XP substituted instead.  Last week a trojan caused my desktop to go gradually down from having to start in safe mode to now not booting up at all. Today my notebook is operating only in safe mode but for how much longer I don`t know. I am off on a fairly long holiday next week and no more posts will be appearing until the second week in May when I hope by then to have mastered the workings of Windows 8.1 operating in a new all in one machine.

Hasta lavista baby; I`ll be back.

POUNDS, PENCE, BLACK BALLS AND FAIRNESS ON FARE DODGERS

It has been an interesting few days for observers of legal news as it impinges albeit indirectly on the daily activities of magistrates. Nigel Evens, a high ranking Tory politician who has admitted to behaviour which should shame anyone  who has a seat in the elected legislature of this country but who has been cleared of activities for which he was sent to trial, has railed against the imposition of legal costs of his defence which, he claims, will empty his piggy bank of his life savings.  There have been arguments in the media that the CPS was acting unfairly in hiring a top class Q.C. to argue its case.  This is untenable.  If  CPS had lost the case and it had been led by a less experienced barrister the cry might have been that inexperience had allowed a guilty man to go free.  The CPS must stand by its own decision making process including the decision whether or not to charge on the evidence at hand and the prosecution code of conduct. But, and it`s a big but, the other two ramifications of this trial and verdict are more open to reasoned debate.  There has been a suggestion often repeated  subsequent to such acquittals that there should be anonymity for those accused of sex crimes as there often is for the complainants in such cases.  When open justice in this country is subject to ever increasing salami slicing by the twin bacon cutting  blades of  sacrifices to “victim centred justice”  and anti terrorist orientated secrecy another avenue to apply somewhat oppressive witness protection measures for an accused would be a step too far.  Indeed I would posit that anonymity for an accuser has already been taken beyond what is reasonable.   On the subject of the costs to be borne by an acquitted defendant there is IMHO a strong case for  reimbursement of legal expenses incurred in that acquittal.  If CPS employ a silk the diminishing principle of the level playfield should apply and if a fellow silk secures a not guilty for his/her client tax payers` funds should be available in recompense for the defendant. 

Fare dodgers are commonplace in the docks of magistrates` courts the length and breadth of the country.  Depending on the actual charge they are usually  punished by a maximum fine of £500.  The case of the City financier who agreed to an out of court  repayment of  £42,550 plus costs instead of a prosecution in court  has raised eyebrows.  It could be argued that his wealth (he paid the total sum within a few days) allowed him preferential treatment and the avoidance of a criminal record.  On the other hand his payment into public coffers was of direct benefit to tax payers.  After all the hundreds of thousands of fines handed out to those on welfare benefits are calculated according to their means even allowing for their being convicted which this chap has evaded and sometimes are out of kilter with the offence  eg a fine of £110 for having no vehicle insurance when the costs of insurance can be three or more times more expensive.  It seems odd that the case was not pursued to its logical conclusion.  Assuming the evidence was overwhelming a guilty outcome would have allowed the railway company to ask a court for compensation for lost revenue.  Perhaps that not being the case the prosecution considered settlement was the best outcome in the circumstances.  We`ll probably never know.    

And finally a bit closer to home and the following  of political correctness by the Magistrates` Association takes it a further step along the yellow brick road.  The Association has long had a policy of offering honorary membership for senior judges.  There are self contained arguments against this policy on grounds that are pertinent to the realities of the situation. At the last AGM in October six senior members of the judiciary were co-opted as honorary  members:- the Rt Hon The Lord Mackay of Clashfern KT FRSE, The Rt Hon The Lord Irvine of Lairg, The Rt Hon The Lord Woolf, The Rt Hon The Lord Falconer of Thoroton, The Rt Hon The Lord Phillips of Worth Matravers, and The Rt Hon The Lord Judge of Draycote.  It has now been decided  that honorary membership should be abolished.  That decision has come about because Lords Irvine, Phillips and Woolf are members of the men only Garrick`s Club and rather than blackball those three for their  apparent  misogynistic tendencies in daring to belong to a gentleman`s club  the rules are being changed.  Strange or not so strange to report there is no mention of this decision on the Association`s members` section of its website or else I`ve missed it within its nebulous labyrinthine structure.

A NOT SO LEVEL LEGAL PLAYING FIELD?

"Innocent until proven guilty" is axiomatic for a justice system to be held in confidence by any society.   It could be argued that long term trends within our criminal justice whilst remaining loyal to the letter of the law are nudging ever so silently to impinge upon the spirit of the law. “Essential Case Management: Applying theCriminal Procedure  Rules” December 2009 combined with CJSSS;  Criminal Justice: Simple, Speedy, Summary a worthy  initiative of the previous government can sometimes illustrate the difficult situations for unrepresented defendants. 

 

I don`t suppose there are any J.P.s who are unfamiliar with an unrepresented  defendant appearing for trial  and for him/her to change plea owing to the last minute disclosure by the CPS of incriminating CCTV evidence.  Earlier this week my court during a bail hearing had before it a represented prolific offender on remand for other matters against whom the only evidence, according to the CPS, was from  CCTV  seen by police but not by CPS.  The defendant`s representative after taking instructions told us that as her client had not seen the supposed evidence against him his not guilty plea was repeated.  The rhetorical question put to her was that surely her client knew whether or not he was guilty.  When pressed to disclose the grounds of her client`s plea she informed us that drug addiction had affected his memory and he could not be sure where he was on the date in question.  He was remanded in custody on the current matter and a date set for trial.

“Putting the prosecution to proof”, is no longer tenable for defence lawyers.  Are my antennae too sensitive or is the level playing field just a touch out of kilter?

BEWITCH AND BETWEEN

Yesterday I described what is IMHO an anomaly in the manner in which reminders to comply with the requirements of a s.172 notice are handled.  On an extremely unusual day owing to the usual mix of incompetents, incompetence  and omissions we  sat also on a breach matter.  The offender had had an extremely traumatic upbringing in a war torn African country and had arrived here as a teenage asylum seeker. He was  now in his mid twenties with an offending history of public order and drug convictions.  He was before us for having breached his mental health treatment requirement.  The probation officer sought to persuade us that we should fine him rather than make his sentence more onerous or revoke and re-sentence.  His representative explained that although his English was of a high standard he could not engage with him with any depth. The purpose of breach proceedings is to punish those who do not take advantage of the disposals which have been offered in attempts to both punish and rehabilitate.  In this respect we encountered another anomaly in a system which is full of them although it takes a “perfect storm” for their existence to become apparent in the fog of legal jargon.     We decided to “punish” him by increasing his MHTR  from the current three months to six. 

Discussing the case afterwards in an empty courtroom all of us present were firmly of the opinion that a generation ago Mr X would probably have been offered a bed in a place of safety staffed by full time medical personnel qualified in the care of those with severe mental disturbance.  “Care in the Community” which so often oversees  the patient falling into the pit between the cracks in a failed system is long past its sell by date but with the increasing financial problems besetting the NHS it is unlikely that finance will ever again be made available for the long term in patient psychiatric care urgently required by so many.   In a similar fashion it is virtually a no brainer that the current cash starved justice system will ever return to the position it held in the minds of a previous generation of politicians; unlike politicians of the ilk of Maria Miller, recently resigned Minister of Culture,  who is quoted in today`s Times2 as stating when she made a case for arts subsidy that it was suitable for “venture capital” based solely on the “economic benefits” it would produce.To quote that Irish genious, “What is a cynic? A man who knows the price of everything and the value of nothing".


This is the kind of mind rot engulfing so many of our political masters (and mistresses) which allows the populist rhetoric of a certain N. Farage to so bewitch a nation.

SOMETHING IS MISSING

Sitting in court is never boring but sometimes it is routine; nothing of interest then,  like looking for a taxi on a rainy day, suddenly two come along one after the other. 

A morning traffic court consisted mainly of  those being prosecuted under s.172. I described such a sitting on March 27^th.  It wasn`t until a  more recent sitting last week that a previously unnoticed anomaly in the process hit me.  If police have had no reply within the 28 day deadline  to an initial notice sent to the vehicle`s  registered keeper a reminder notice is sent requesting that the completed form is returned within seven days.  Within that reminder is a little read paragraph stating that even if the return of the original notice appears to have crossed with the receipt of the reminder  the latter should still be returned fully completed to ensure compliance has been made.  The misinformation within what should be a simple  process is as follows:-  The statutory time allowed for compliance i.e. the return of the form s.172 duly and accurately completed is 28 days.  The additional time apparently offered by the reminder is a courtesy.  So the obvious problem as happened at that last traffic court was that the defendant had returned the original form on day 29 and one day later received a reminder which he ignored having assumed that the first and only form he returned would be sufficient.  He sent it without asking for proof of postage from the post office.  The police, according to the CPS prosecuting, never received that form.  As a bench we had two options as would any other bench in a similar case.  We could rule that the 28 day limit for receipt by police of a returned form   was not complied with, find guilt proven and perhaps in the extenuating circumstances  dispose of the matter with no costs and an absolute or conditional  discharge or we could find that within the apparent terms as offered by the reminder and having had sufficient but not conclusive evidence of the reminder having been sent within the extended period find the defendant not guilty.  As a bench we were split and there that story ends.   

But surely in such matters which are repeated thousands of times weekly  if the police sent a reminder well within the statutory period eg after 14 days fewer offenders would be caught out by their dilatoriness or is that too simplistic for the  boys in blue?  Can they not see that something is missing in their approach?  Common sense perhaps.

Part two of this tale will be for my next post.

CYNICISM

Over the last decade or so the Daily Mail reader  has become a euphemism for the eponymous  right winger.  For those old enough to remember,  it mirrors the image once conjured up of the flat cap wearing readers of the Daily Worker (1930-1966) now The Morning Star.  Whilst the latter tries with some vigour to manipulate chosen facts to its political point of view the once fascist leaning Mail seems now to be all too often getting its facts wrong in order to appeal to a hang `em and flog `em remnant of a Tory Party the increasingly ineffective leadership  of which is torn between its attempts of appeasement and its embarrassment.   An item in today`s Mail Online is demonstrative of this editorial attitude to fact.

I would never be described by associates, both personal and professional, by the pejorative term  “do gooder”.  On the bench like the vast majority of my colleagues I attempt to honour my oath of office; “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , 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."  And that means,  when it is appropriate,  sending shoplifters to immediate custody for the maximum term allowed in the magistrates` courts; namely six months.  For the Mail to stir up public mutterings against a supposedly “soft” judicial system  by falsely claiming that currently the maximum sentence is stifled by the fact that “current rules say shoplifters should not be jailed for more than six weeks "  is nothing short of disgraceful.  Indeed the whole article smells of having been prepared with some outside input. 

Having some intimate knowledge of the legal  system from the inside, as others within the system also do, I can make reasoned conclusions about matters such as mentioned above.  What is of greater personal concern is not having inside knowledge of what is behind the headlines of myriad other stories in the media whether on the subject of health, defence, environment etc etc.  As a paid up member of the Association of Eurosceptics since I was nine years old I can understand perhaps why the undimmed populist Nigel Farage was deemed to have easily won his contests with Clegg on  points decisions.  For a public facing a general election  a year from now this evident distrust of  the current political class  can be the beginning of a slide into a form of politics  more suited to Athens or Paris or Rome. 

APRIL 1st

Today is the second day in which the criminal courts` activities have been and will be severely disrupted by the non appearance of solicitors and probation personnel.  I am not a natural sympathiser of strike action and indeed could probably be described as a “Thatcherite” but I am vehemently opposed to the budget cuts affecting legal services and all that is encompassed by the term “law `n order”.   I am 100% certain that if this government manages to further curtail the rights of individuals when confronted by the power of the state in all its forms these rights will never be recovered.  For that simple reason I sincerely hope that those taking action today have the wherewithal to continue until some sort of acceptable compromise is achieved.