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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Tuesday, 28 October 2014

JUDGE`S REMARKS SHOULD BE UNSPOKEN



One of the attributes of our court system of which the senior bigwigs are most  jealously protective is its reputation.  Indeed an accusation of bringing the law into disrepute is often a striking off offence and in the past has been  levelled against a certain category of blogger.  It is not unusual of course for a higher court to criticise a lower court for its findings; that is its raison d`etre.  The criticism is almost invariably described in terms when a patient father might temper his feelings when demonstrating his displeasure at  the behaviour of a wayward offspring. 

An assertive bench of magistrates has considerable power.  After all we still term the courts over  which they preside as “magistrates`”  courts although the day might not be all that far off when they are renamed as District Criminal Court or some such term.  Be that as it may a lay bench would fail in its duty if it did not listen carefully to any advice from its legal advisor.  That advice might indicate that a bench`s proposed action would be unlawful in which case such a bench would desist from that proposed action.  But a more likely scenario would be that a L/A would “advise” or suggest that a particular course of action would have certain consequences and perhaps should be re considered.  A bench worth its salt would take everything on board but might persist on its original course.  In such a case the L/A would note  on the court file advice given and subsequently rejected.  It appears from a brief report in the Hull Daily Mail that a crown court judge has, arguably,  spoken rather injudicially.  It is not absolutely clear what the charge was nor what were the agreed facts to which the offender pleaded guilty.  What is fact is that for its own reasons the bench (it was unlikely to have been a District Judge)   thought its maximum  powers of six months custody were insufficient.  What is another fact  is that the Sentencing  Guidelines regarding all drug related offending  are so convoluted that they appear to be  the result of a bureaucratic tick box legislative   exercise gone mad.   I would venture that much advice from legal advisors where there might be some  doubt in sentencing powers being sufficient is conservative to the point of being an arse covering exercise for themselves as much as  any other consideration.  However I am not convinced that HH Judge Jeremy Richardson QC chose his remarks with the precision  that should be expected by a person in his position.  Perhaps to use some current jargon beloved by politicians of late; they should be unspoken. 

3 comments:

  1. The article is not well written but is the Judge's concern not that the accused was pleading guilty to a lesser charge (possession not intent to supply) and that until that issue was resolved sentencing at either court could not commence.

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    1. From the judge's comments he seems to absolve the cps from all blame so it is doubtful if your comment stands up

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  2. All a bit strange. Since the lower court has already heard the evidence they clearly felt their sentencing powers were inadequate. Of course we have no way of knowing the previous convictions of the offender and there is much else absent from the report that would have been considered by the bench.

    Anyway, we know the case has been referred back to the lower court. Fine. What then happens if the next bench (or DJ) happens to agree with the original view that the lower court's sentencing powers are insufficient? It gets sent back upstairs again. Like some kind of judicial yo yo and that would surely bring the system into disrepute, would it not?

    This kind of thing is the inevitable consequence of the very limited custodial sentencing powers of the lower court. With a maximum of 6 months for a single offence there are going to be occasions when the higher court will wonder why a case has been kicked upstairs for sentencing. When (or if) the maximum custodial period is increased to 12 months in the Magistrates' Court - the PM just needs to make good on his promise - then these cases will be disposed of in the lower court and the higher courts can get on with the serious stuff.

    Meantime the good judge should reflect on the wisdom of his outburst.

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