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 If any comment seems submitted just to advertise a website it will not be published.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, 14 January 2016

SENTENCING IN THE PUBLIC INTEREST? YOU MUST BE KIDDING!

Chairman of the bench, Margaret Atkinson, told him: “The reading of breath is one of the highest we’ve seen, putting not just yourself but other members of the public in danger. “However to impose a custodial sentence would have a detrimental impact on your recovery.”

The above were the comments of a bench chairman at Kirklees Magistrates` Court when sentencing a drink driver with a breath reading of 164 microgrammes of alcohol in 100 millilitres of breath. This was more than four-and-a-half times over the legal limit of 35 microgrammes. The offender was sentenced to 250 hours of unpaid work as a direct alternative to custody. He was also banned from driving for three years and must pay £85 costs and £60 victim surcharge. The full report in the Huddersfield Daily Examiner can be read here.

What does this simple episode tell us about the lay magistracy?  Firstly the guidelines for such an offender, even a first time offender, indicate a starting point of 12 weeks custody with a range of a high level community sentence to 26 weeks custody.  The report gives a brief account of the mitigation offered.  It seems completely ridiculous that a custodial sentence was bypassed and even more so that it was not imposed as a sentence of custody suspended.  The bench has forgotten or overlooked its public protection responsibility.  It seems the  offender is a possible victim. He must not have action against him which would have a "detrimental impact on your recovery."” as quoted by the chairman.

It is exactly this sort of we are responsible for the social effects of sentencing thinking that lowers respect for the lay magistracy with the wider public. It is a scandal!

5 comments:

  1. We had a guy who scored 152/35 the previous day, the police kept him in overnight and brought him up to see us. He did get room and board for a number of weeks.

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  2. Breath to blood alcohol levels generally work to the ratio of 1:2100. So, at 1640 microgrammes per litre of breath, the blood alcohol level is 3.4 grammes per litre, or 0.34% by volume (if I got my sums correct). According to Wikipedia, that sort of dose ought to cause stupor, and a possibility of death.

    This is not what you'd expect even from a binge-drinking idiot; to remain even vaguely conscious at this blood alcohol content the man has to be an alcoholic and habitual drinker, on a fairly fast path to death from liver failure. Incarceration may well save this idiot's life; letting him go will condemn him to a miserable death.

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  3. You will of course be aware that the sentence is from a bench of three and the Chair, whom you have, by implication, criticised, may have been a minority of one in favour of custody.

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    1. You're right up to a point however....

      Sometimes we have to agonise over our decisions. Sometimes matters are very finely balanced and one can readily see the points made by others even if one is not in agreement. We might start with one position but having listened to the views of the other members of the bench in the retiring room, we may change that position. The view of the Chair should carry no more or less weight. The Chair has an equal say in the sentencing process; never more than that.

      On the other hand there can be circumstances such that there would be an expectation that a unanimous decision would be arrived at. Personally I cannot see how there could be any justification in not imposing a custodial sentence with such a high reading. Perhaps I could be persuaded to suspend the sentence but you'd have to put a very powerful argument forward!

      It's not unreasonable to consider the impact of a sentence on the offender but there are times when the greater concern must be for public safety.

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  4. Is the public good, and protection of the public from recidivism best served by:
    a) Imprisoning the person for what will be a relatively short period (actual time inside would be a month or two taking into account a guilty plea and early release), realistically with little prospect of having a long term effect on an offenders drink problem in that term in minimal. The prison service tell me they don't even try unless they expect to have you in their care for at least 90 days - otherwise they simply treat the medical symptoms of withdrawl. His current alcohol treatment programme would be interrupted by custody. He sounds like he is "in work" which will almost certainly be lost by a prison sentence. On release he's unlikely to get much support from the state (such is the system) and I'd suggest as an ex prisoner, with no work, and a failed marriage falls very much into the likely to return to drinking category.

    OR

    b) Let him do some community work. Let him continue his drink treatment. Let him keep his job, adding stability to his life. Leave it to the disqualification to prevent reoffending and protect the public whilst in the long term his effective treatment will be an effective remedy. I suspect the chances of a first offender reoffending in this circumstance is lower than someone who had been to prison and then come out to "no life".

    Did the defence argue that having pulled over and stopped the offender had realised the danger of his actions and stopped accordingly. Its difficult to see the same culpability there for someone who continues to drive, or even tries to evade the police who might well only get 6 months.

    I'm not saying I would necessarily end up at the same position that those justices did, but I never criticise those who were there and heard all that was said and read the recommendations of the relevant reports.

    The other thing to bare in mind is that in many people's eyes a suspended sentence (especially for someone who is not actually expected to reoffend) is seen as "letting them off". Given that analogous reoffending would almost certainly result in a prison sentence (for both driving whilst disqual and drink driving) its not clear what extra deterrent a suspended sentence really would have.



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