HOW EXCEPTIONAL MUST EXCEPTIONAL BE?

Exceptional Hardship is an example of where Justices of the Peace can still exercise some free thinking as opposed to the myriad situations where the Sentencing Guidelines have brought tick box thinking to our courts in the name of “uniformity”. As with health outcomes there should be only one outcome in any post code; the best and most suitable in the individual circumstances.

This reported case has virtually all the ingredients of such applications. Bear in mind that loss of employment is not a valid reason for allowing such an appeal are there any colleagues out there who would have come to a different conclusion considering also that a finding of exceptional hardship does not necessarily require the whole six months ban to be lifted; a partial ban can be imposed eg four weeks?

POLITICS, POLICE AND THE PRESS

The three Ps; Politics, Police and the Press have in all combinations made the headlines this week. There can be few individuals IMHO who exemplify this entanglement more than former Metropolitan Police Commissioner Ian (now Lord) Blair and his colleague John Yates   the latter now working in Australia who was an advisor to the ruler of Bahrain on reform of its security forces when he resigned from the Met. Judging by a report from Amnesty International he left his Arab employer with work still to do. The good Lord Blair`s recent public comments are of interest when read against his entry in Wikipedia.

ADDENDUM 4th July 2014

There is a very interesting piece in the Guardian 2nd July which takes this story to the next level

LOOPHOLES

Cards on the table; I`m what`s commonly known as a Eurosceptic and have been since I could spell the word “politics”. We read all too often that up to 70% of are own laws are based upon legislative directions coming from Brussels in one form or another. I suppose the directives on driving licenses are a case in point. At one time not so long ago EU driving licenses were valid for a year for settled immigrants or until application was made for a provisional UK license. Things are much different now for incomers from the EU; such individuals can drive in Great Britain on a full, valid EU driving licence until age 70 or for 3 years after becoming resident in Great Britain, whichever is longer. I am unsure how the authorities define “resident”. It would appear that at some time or another incomers from the EU had to pass a British driving test which is probably the most difficult of all within the EU. It seems logical that many would try to manipulate the system to avoid having to surmount this hurdle. When it comes to EU drivers of any nationality being banned in the UK  I have discovered there is an apparent anomaly or loophole in the system.

Last month a second generation unrepresented Maltese man was before us for driving whilst disqualified. He pleaded not guilty at the first listing on the basis that he had, since his UK license was taken from him, passed a driving test in Malta and was therefore entitled to drive on that. Consulting the books the L/A and CPS prosecutor were unable to determine whether there was indeed an EU directive worded in his favour and the case was listed for trial in September.

When government spokesmen deride the figure of 70% of our legislation being EU based it is matters like the above that they conveniently overlook. I would argue strongly “roll on referendum 2017” were it not the case that no government will allow a fair vote if it fears defeat eg Syrian intervention revolt shocked the Tories to the core. The Scots got theirs only because Cameron thought it impossible for the Nats to succeed.

Perhaps Mr Loophole has the answer?

ANOTHER SITTING; ANOTHER DAY OF FRUSTRATION

This blog seems to be becoming repetitive. However when the same story is repeated virtually every time one steps into the courtroom what else can one do but relate the story. I have no reason whatever to think that the experiences at my court are in any way different from courts all over England and Wales serving a suburban ethnically mixed population. We are being encouraged to take charge of the case management form at the first listing.......oops..... it`s now termed the pre trial form......Don`t those w****** in Petty France have anything else to do with their time than rename forms or procedures? But to get back to basics; I have no objection at all to magistrates taking greater responsibility for what goes on in the courts that still bear their name; indeed I am a proponent of just such actions but I am wary when or if we are being set up to take the fall if things go wrong. When it comes to the time estimates which now must be listed for every witness it seems that the reasoning is to have a foundation which justifies over listing. Generally, however, the L/A suggests the required time to allocate. If a defendant is unable to confirm that s/he will be represented there is IMHO not enough additional time allocated. If s/he requires an interpreter the additional time is often underestimated.

My last sitting was completely in disarray owing to statutory declarations keeping us occupied from 9.45a.m. until 10.40a.m. followed by an unrepresented defendant applying for an adjournment in a case with a history of previous gaps in chronology. The result was that the first of our two trials listed was not completed until 1.30 p.m. and the other was necessarily re listed for September two police officers, a complainant and a defendant having to suffer a wasted morning.

It is well known that NHS hospital beds are running at around 98% occupancy cf the 80%+ in many European countries. Some call this efficiency. But this “efficiency” is akin to running your petrol tank to the flashing light before filling up. If things go wrong one can be stranded out of gas in a country road at midnight. In due course the statistics of wasted, cracked and ineffective trials will be published and a gloss painted over them. Ask those actually involved and the responses will not be fit to to be published except by a series of expletives.

NOTHING ON THE HORIZON

However dismayed my colleagues and I might be over the crumbling of the magistrates court system for those whose livelihood requires them to fulfil their court appointed functions I have nothing but admiration. Those in the justices` liaison office who are forever juggling names attempting, often in vain, to have three person benches still have a smile in their voices when cancelling sittings for some reason or another. It is a not an inexplicable paradox that now with our bench at a strength of about 360 cf 165 pre Clarke we seem to have more and more benches constituted with only two J.P.s. They and our legal advisors daily come to work with clear knowledge that every day is a struggle to keep running a system of summary justice which is failing them and the public. Whilst the NHS receives almost daily headlines for one reason or another, our justice system without which there is no free democratic society of any colour, is steadily and quietly being eroded. Unfortunately nothing on the horizon suggests any improvement.

Having moaned and groaned enough this morning a recent sitting in our remand court was as varied as is usually expected. A 71 year old of previous good character was before us having pleaded guilty to assault by beating. Although her case was considered as “road rage” and the “book” sentence was at least to have reports from the probation service we made use of the provision available to fine her at the D rate. After we had challenged the low level of income and assets she had declared on the means form she left court having paid almost £2,000 on the spot for her temporary loss of self control. Two cases where the custody threshold had clearly been breached were dealt with. The prolific shoplifter whose previous ran to four pages was sentenced to an immediate custodial sentence. Similarly the offender who was before us for a third driving with excess alcohol and for a third time driving disqualified was given the maximum allowed by law. In both cases our duty of public protection left us in no doubt as to sentence although there are still critics who would object to prison for shoplifters.

A KITE FLYING OVER PETTY FRANCE

The Ministry of Justice is really becoming repetitious in devising out of court tasks for magistrates. Our numbers are falling like the winter rain in the Western Isles. Various reasons are behind this drastic drop in numbers; the age profile of J.P.s, reduction in new appointees owing to fewer offenders coming to court, reduced number of courts and increasing numbers of District Judges. The MOJ and Magistrates Association talk up the wondrous world of out of court opportunities for my colleagues and me....magistrates in the community, mediation, local rehabilitation councils or similar, oversight of police fixed notices etc etc. The latest such wheeze is the flying of a proposal to put magistrates on the parole board not as individuals as now is the case, but in an institutional fashion to oversee the early release of various classes of prisoners. There is no official notice anywhere within the MOJ or Parole Board websites of this proposal. Almost certainly it`s another kite flying over Petty France. My fear is that it will be be treated with some seriousness by my colleagues when instead it should be ridiculed for the nonsense it really is.

WATER OFF A DUCK`S BACK

I hadn`t intended to post today but reading of the probation service`s trials and tribulations on other sites I feel that somewhere real criticisms of that service have been lost in a certain amount of self pity. Some of the first training courses I attended as a J.P. were centred around “structured decision making”. Indeed that general mantra has devolved into an almost tick box formulaic exercise under the Sentencing Guidelines. A key test of whether an offender should be subjected to a custodial sentence is whether the offence is so serious that only custody is appropriate. Assuming that the answer is in the affirmative the next question the sentencer must ask itself whether bench or judge is whether or not there are circumstances that can allow the sentence to be suspended. All too often pre sentence reports when concluding on a recommended disposal will canvass a community order or “if the bench does not agree then a suspended sentence order with unpaid work etc etc”. In my opinion this demonstrates the woolly thinking of so many of these writers. If they are aware that a custodial disposal decision must be made before any consideration can be given to its suspension a PSR writer should say so: i.e. custody but here are the reasons to suspend the sentence. If such personnel are unaware of the structure by which we sentence then they ought to be made aware and quick.

I have said as much in open court many times but it seems like water off the proverbial back of a duck.

SCHOOL (non) ATTENDANCE

The last couple of weeks have seen headlines in the media of “education this or education that”. Notwithstanding hot beds of alleged encouragement of pre pubescent extremism in Birmingham and compulsory nutritional requirements for school meals the old chestnut of pupils` non attendance is also back in the news. Earlier this week I had such a matter before me and my colleagues.

There are special allowances for the children in traveller, tinker, gypsy or romany families. There are, however, distinctions made between “settled” and “unsettled” families. The child in our case (aet.15) who was not in court was from a settled family but had missed two years schooling until he was enrolled in 2012. His father had done everything in his power to encourage attendance; he had attended all required meetings with education officials, had driven him to school every morning but no amount of persuasion could ensure the child was in a classroom for the requisite lessons. As he told us, “ Short of dragging him by his hair and chaining him to the classroom wall could I have done anything else.” The child was not in any way in need of mental assistance, his physical health was excellent although he was subject to some bullying owing to his being behind his peers in reading ability but that had been kept in check by watchful teachers. He had wanted to leave school at aet.16 to attend college. The school could not justify the costs involved in such a decision taking all factors into account. We felt some sympathy for the father but the law was quite clear and a case presented by the prosecutor and endorsed by our legal advisor was explicit. That case involved a child who had been subject to persistent bullying, was being treated for mental health problems and who had attempted suicide. Her parents had nevertheless been found guilty of not ensuring required attendance at school contrary to section 444(1A and (8A) of the Education Act 1996.

We fined the father who was of good character a small percentage of the £600 costs requested and a similar fine. We understood of course the law`s function  ensuring that irrespective of many factors its primary purpose is that every single child shall have the opportunity of an education and that that responsibility falls upon the parent(s) or guardian. Just perhaps the hurdle in such matters is a little high.

I`M A DUTCHMAN!

There seems to me so much more to criticise in the performance of the CPS and the inefficiency of our court`s procedures in the last year or so that the name of Jeremiah comes to mind. Last week amongst other matters we had a charge of assault in a domestic context causing actual bodily harm. The complainant was struck on her head with a rolling pin deliberately selected by her lover from a kitchen drawer causing her head to bleed. He had previous conviction of assault within the family.  Children were present. If convenience, cost or pragmatism were not underlying reasons for the matter not being charged at the correct level then I will be cheering on the Holland football team tonight.

KNIFE POSSESSION STATISTICS

Along with many others I often take a somewhat sceptical approach to statistics especially those related to crime. Sentencing statistics, however, are more likely to be what they appear; a true reflection of a historic situation. Readers may judge for themselves.

SUCCESS IS 50%

Even some judges are now voicing their concerns publicly that the Crown Prosecution Service is rapidly approaching a time when that memorable description “not fit for purpose” might be appropriate. For magistrates it has been obvious for over two years that this agency which has sacked at least 10% of its lawyers is failing in its attempts to stand still by running. Despite its much vaunted introduction of paperless working the decline continues. This was only too obvious to my colleagues and me not long ago when we had two matters of assault where CPS case consisted of statements only. We convicted one (on majority) and acquitted the other. From what we heard there seemed no reason why complainants could not attend; there were no withdrawal statements. Our impression was that CPS considered they could achieve convictions without live evidence. On that basis I suppose that 50% was for them success.

EXTREME?

I practise no religion but am a regular reader of the Politico/Christian blog "Cranmer" in which yesterday he  posted on the Church of England`s attitudes to parties of the right and the consequences for those ordained who are members of such parties. By extension and sheer logic he conjoins those attitudes to clergy of a UKIP persuasion. And what about Justices of the Peace? If a colleague of unimpeachable reputation professionally and personally were to reveal that s/he were a member of the BNP would that or should that be grounds for bringing him/her to the attention of the Lord Chancellor? And should the aforesaid politician take action against such an individual? And following the logic of His Grace how far should such such enquiry reach? Should it be extended to those on the extreme Left whose views might also be said to be outside the mainstream?

There is news today that the Court of Appeal is considering for the first time ever in modern times prosecution service`s application to take to a closed trial people whose identities are to be kept secret as also are the charges and evidence against them. For close to ten years magistrates and judges have been and are increasingly constrained by politically imposed sentencing practices known as “Guidelines” I fear that the ancient English concept of justice is being dissolved before are very eyes to such an extent that it will be unrecognisable by 2050.

OBSERVATIONS ON A COIN`S TWO SIDES

Knowing I sometimes am available at short notice, once or twice a month I receive a call from our justices` liaison office requesting additional sittings and as a high sitter perhaps I experience more of the variations in court experience which others might not.

The morning had two trials scheduled one of which required the services of an interpreter. After the usual expected delays we began about 10.20a.m. and it soon became obvious that there would be no time for the second matter. One glance at the case management form showed that no additional time had been allowed for the interpreter`s services. As far as we were informed all other courts were similarly overloaded and the other matter was adjourned to another date. So all those involved in a personal as opposed to professional capacity i.e. witnesses and defendants leave the building with less than a high opinion of our day to day judicial system. The professionals, police and lawyers, have no time for dismay; they are inured to the situation and in addition are committed to other duties in the afternoon.  Our afternoon displayed the other side of the coin. The case management form was being completed by the legal advisor during the first appearance of an East European defendant. He seemed fairly comfortable in English but did enquire of the odd word or two. The L/A immediately voiced her concern and noted that an interpreter would be required. When this was queried by the bench she responded by saying that she did not want a cracked trial owing to a defendant being unable to conduct himself satisfactorily on the day. We asked brief questions of the defendant re time in England, education level, occupation etc and repeated our opinion that we considered his language skills were perfectly adequate for him to conduct his defence. Our L/A was having none of it and an interpreter was ordered. “I`m not having cracked trials on my record,” or words to that effect was her reply.

Another day, another sitting.

WE SHOULD BE THANKFUL

When I was appointed one of the requirements on the application form was to declare which political party had had the benefit of my vote at the previous general election. I left the question blank and unanswered. Not long afterwards I received a letter from the Lord Chancellor`s Office informing me that unless I answered the question my application would be discontinued. I complied with his lordship`s “advice”. On the explanatory material at that time was also a statement that common sense was a requirement. I understand that that requirement is no longer a necessity owing to the belief amongst those who devise and supervise the appoinments system that “common” is an adjective which might have different connotations among different ethnic groups and what might be ”common” to one might not be “common” to others. Be that as it might we are where we are. The Ministry of Justice with many other government departments is now set upon the release of as many “initiatives” as can be tolerated prior to next May. Never mind the quality, feel the width is a candid description of much of what emanates from the press office at Petty France SW1. The latest such offering is published today. What strikes me is the fact that there is an apparent need to alter the law to encompass the mooted changes. Why on earth has our legislature allowed such gross nonsense to have become the current legal status quo so that Grayling must define his credentials by amending what should never have been promulgated?

Seen in the light of this and much else besides including the reluctant apologies of party leaders for ignoring the undercurrents which have flowed across many of the population for some years is it any wonder that UKIP is proclaiming itself the best thing since sliced bread. Perhaps we should be thankful that it is N.Farage and his cronies who have benefitted from the vote of the disaffected and not those akin to the fascists in Hungary and Greece.