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.




Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Thursday, 5 November 2015

WHEN IS "PLANNED" TRAVEL A GOOD ENOUGH REASON TO VARY A PERIOD OF CURFEW?

Applications to vary the conditions of a curfew are very common.  Although there are no figures or statistics available they seem to peak in the summer months and in the couple of months before Christmas.  I wonder why..........

The brief report in this case mentions that the offender "had planned the trip to visit his parents, who live in Spain, in March, before he made his first court appearance".  Planned.....in the context of the application this is an interesting word.  He could have planned the trip in his mind years earlier but done nothing to bring the plan to fruition.  In other words I would conclude that he had not purchased a ticket to Spain at the time of the sentencing.  His lawyer using his linguistic ability when making the application said the celebration in Spain had been arranged for a long time. Arranged could be parsed similarly as planned above. Such cases often came before me and are frequent in every magistrates` court.  I would have dismissed this application unless the ticket had been purchased prior to sentencing and if that had been the case it surely would have been mentioned to the sentencing bench which at that time might have allowed a gap in the curfew period to accommodate travel.  

A logical conclusion is that the bench has been soft, perhaps misled by the advocate`s eloquence and brought the law into disrepute by making an allowance where there was no satisfactory reason so to do.  

Some might argue this shows the advantages of local benches for local people dealing out local decisions. The same argument could be used in direct contradiction if another group of three J.P.s in the same courtroom follows my logic and rejects a similar application next month. You pays your money and takes your choice. 

2 comments:

  1. I think you need to treat anything in that publication with a pinch of salt - they hardly have a reputation for presenting the facts if they get in the way of a good headline. In terms of why the issue wasn't raised at the original sentencing date - you are overlooking the fact that the accused is not seemingly a hardened drug dealer and probably hasn't worked out how to milk the system. Therefore if he didn't mention it to his lawyer (possibly relieved not to be getting jail time) then it wouldn't come up till later; moreover many a "man" has been so unaware of dates and times in his life until he gets "home" and tells his wife... Or perhaps it was mentioned at sentencing and the beak said come back with proof it was prebooked and we'll look at your application.

    To my mind the issue is not really whether it was preplanned, before conviction - the issue is if the curfew is an alternative to custody then it should be continuous, unless it was the sort of event that home leave from custody might be granted.

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  2. Surely a case for the chair to adopt an inquisitorial approach and question what exactly had been planned/arranged and when, and did same include the purchase of tickets. Were the tickets purchased before or after sentencing? In short, if the tickets were purchased post sentence then I would need to hear a really exceptional argument as to why the curfew should be altered. I'd consider it in much the same way as when hearing arguments of exceptional hardship in respect of driver disqualification. Better make it good!

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