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, 17 July 2014

MUSINGS ON A THURSDAY

Since 2012 the Her Majesty`s Courts and Tribunal Service has become an estate agency. Well; not exactly but it has been the seller of highly prized real estate mainly in prime town centre locations. The buildings for sale have, of course, been the magistrates` courts deemed unviable in one way or another. These sales have provoked considerable objections up and down the country. M.P.s of all hues have found objections to their closure to be a sure way of having constituents agreeing with them in their “campaigns” to retain these monuments to a justice system of another age. Presumably somewhere in Whitehall will be a reckoning of the money raised. I would hazard an opinion that time will show that these assets were sold at seriously under valuations. One of these sales, the Harrow Magistrates` Court building, was to a charity known as the Jaspar Foundation (Registered Charity No1127243). This organisation provides facilities for the Asian population in North London. Apparently it was so eager to get to grips with its new acquisition that it blew asunder planning regulations. If any unlawful action is discovered and the matter comes to court the London Borough of Harrow will have to take the case to a court in another borough.

Further evidence of inefficiencies or selective disclosure in the sale of court buildings is evidenced by the goings on in Spalding. But of course we have the best civil servants in the world including those who work for HMCTS.

There is increasing pressure on the Secretary of State for Justice aka the Lord Chancellor to reconcile his desire to be seen to be tough on crime and criminals and yet at the same time being unable to provide adequate prison accommodation for those whom the courts deem to deserve such accommodation. It is also known that in excess of a billion pounds is outstanding in unpaid court fines, costs, compensation and surcharges. My point today is whether the pressures on prison places or the inability of courts to collect fines etc is justification for modifying sentences which otherwise would have been imposed. My own opinion for what it`s worth is that these considerations should have no input into our structured decision making processes and if fines or custody etc have been deemed appropriate they should be imposed. My colleagues at Newton Aycliffe thought otherwise.

The only serious deterrent to serious law breaking or a series of such offences when driving is the imposition of a driving disqualification. A defence against such a ban is the successful argument of “exceptional hardship”. It has been established that the loss of employment by itself is unlikely to satisfy the “exceptional” test. However the usual argument put forward to surpass the “exceptional hardship” hurdle is to “demonstrate that there were other circumstances associated with the loss of employment which might involve reflected hardship of a serious kind on the defendant’s business, his family or his long term prospects.”  Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospect.

A House of Commons answer of 5/6/07 is useful.

Mr. Sutcliffe: When a driver faces disqualification under the totting-up procedure, the court has very little discretion other than to disqualify, unless they are satisfied that to do so would cause ‘exceptional hardship’.
Whether exceptional hardship would be caused is a matter for the court to decide in each individual case.
The Sentencing Guidelines Council is responsible for magistrates' sentencing guidelines on this issue, and the decisions of the Court of Appeal in any relevant cases will impact on any decisions made.
Mr. Paterson: To ask the Minister of State, Ministry of Justice who is responsible for specifying the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure. [139642]
Mr. Sutcliffe: The Sentencing Guidelines Council are responsible for magistrates' sentencing guidelines, along with guidance provided by Court of Appeal judgements. The Sentencing Advisory Panel recently carried out a consultation paper on magistrates sentencing guidelines and responses will be considered in determining the final guidelines.
Mr. Paterson: To ask the Minister of State, Ministry of Justice whether (a) changes have been made in the last five years to the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure and (b) any such changes are proposed in the next six months. [139643]



So with the above in mind one can only conclude from a newspaper report  that my colleagues at Kidderminster Magistrates Court took a benevolent view of this driver`s circumstances although one could argue that those whose livelihoods depend upon having a driving license should exercise due care and attention at all times when behind the wheel.




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