Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





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Thursday, 22 May 2014

PRAGMATISM

Jacob, whose immigration status was unclear, had arrived here two or three years ago from a central African country. He was about 5ft 7" flanked by two security guards and quite dishevelled...not surprising since we later found out he`d been on remand in custody for four weeks having twice breached his bail for sect. IV public order offence for which he was before us for sentencing after pleading guilty as his trial was about to begin.

The facts were that in the middle of the afternoon two months previously he had approached a parked car as two women had just got in and mouthing misogynist abuse had attempted to prevent the passenger from closing her door. The two women were truly terrified but further possibly more serious criminality was prevented by a passing stranger`s forceful intervention and the prompt arrival of police who coincidentally were on the street [of Jacob`s family home] to speak to the defendant about breaching his bail on another matter.

His "previous" showed that he had within the last six months been cautioned once and imprisoned once for assaulting his partner. His sect. IV offence was committed in the street where his bail conditions for the second assault had prohibited his being. He had been remanded two days before pleading guilty and being imprisoned for that assault. His lawyer in mitigation asked us to remember he was drunk at the time and distraught about not being able to return to his partner. We reminded him that being drunk is an aggravating feature not mitigation....many lawyers pull this one as if we don`t know how to treat that factor common in many offenders. He also suggested we deal with the matter on the spot by considering how long Jacob had been on remand ie "time served". Our job of sentencing was made more difficult by not knowing how many days he had actually served for the assault before being released early from prison. Part of his period inside would have included sentence for assault and remand time on the sect. IV. Fortunately enquiries to the prison cleared that gap in our knowledge. We retired to consider his sentence.

"Time served" allows a defendant who has been held in custody on remand who would otherwise have been fined or given a custodial sentence to have the time spent in prison considered as sufficient to have paid his dues to society and to be released immediately or to be reduced accordingly. This matter was far too serious for a fine to be considered. Sentencing Guidelines indicated a minimum of 200 hours community payback [unpaid work] or a few weeks jail if the offence were so serious. He was borderline. On the basis of a structured decision we were considering the exact number of hours when we re-visited the reality of the sentence; he had already spent more time on remand than would have been the case if he had been jailed for the offence. It would be unjust therefore in effect to punish him twice. We could not allow "time served" on a community penalty so we sentenced him to ten days custody meaning that he would be released as soon as the prison had done its paperwork.

This was a pragmatic approach brought about by the seemingly illogical gap in "time served" regulations. There are those who would prefer magistrates to follow very strict sentencing guidelines and deviate at their peril. We announced in open court our reasons for a custodial sentence and the consequences. We considered that on that occasion as on others justice was done and seen to be done.

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