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 If any comment seems submitted just to advertise a website it will not be published.

Monday, 15 February 2016

M.O.J. EVADES F.O.I. ANSWERS

On 29th December last year I posted on the fact that new categories of assault in the context of domestic violence came into being without there being any statistics to validate their being enacted. Of course there is still no dedicated offence of "domestic violence".  Defendants are prosecuted under the various degrees of assault on the statute book.  With the prime minister in his recent speech on the subject describing how the incarceration of ever more offenders must stop it would have been thought that the efficiency and terms of the probation service and the study of increasing use of custody suspended would be a matter of priority.  As all interested parties now know (and many predicted)  the current state of what was once a tolerably efficient national organisation has been emasculated by the arrogance, unthinking and discredited actions of Chris Grayling the most ill fitted and catastrophic Lord Chancellor in living memory.  Having offenders allowed to remain in society with a threat that breach of their custody suspended sentences will point them towards their local prison puts a heavy responsibility on that emasculated profession and its reduced workforce.  It would therefore be thought that a coherent policy on actions to be taken against those who do indeed breach the conditions of their get out of jail not quite free card would be of prime consideration both to sentencers and probation.  That thought would be mistaken. In circumstances such as custodial sentencing,  historical statistics are a major part of the socio political arguments being argued by Cameron and other interested parties.  Punishment, deterrence, rehabilitation and public protection are all part of the sentencing mix. Suspending a period of imprisonment falls mainly into the deterrence basket with some  rehabilitative input and to validate the involved and impending processes, efficiency in such sentencing, one would have thought, would be essential. Those processes should involve knowledge of the numbers of offenders breaching suspended sentence orders and their sentences as a consequence being activated whole or in part.  By the grace of the Freedom of Information Act which some in government wish to restrict, may they rot in hell, such questions were recently asked to which in brief the answer was....we don`t collect such statistics in any simple straightforward cost effective format.  Considering all the information the M.O.J. does collect about courts, outcomes, times taken, sentencing etc etc it is rather odd that numbers which this observer at least (and no doubt many others) considers of some importance are not collected in a similar format thus enabling forensic analysis. Perhaps this failure is  not by ommission but by commission.

The  response of the MOJ is copied below.



Freedom of Information Request


Dear ***********,

Thank you for your email of ***********  20**, in which you ask for the following information from the Ministry of Justice (MoJ):

For the last five years how many suspended sentence orders have been made by magistrates` courts in actual numbers and as a percentage of all custodial orders?

For the last five years how many of these SSOs as above have been breached and resulted in the activation in whole or part of these orders in actual numbers and as a percentage of all SSOs

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

I can confirm that the Ministry of Justice holds the information that you have asked for. However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I'm afraid I will not be taking your request further. In this letter I explain why that is the case and I also provide you with some advice as to how you could refine your request so that we may be able to answer it.

The law allows us to decline to answer FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.

It may help if I explain that the Ministry of Justice Court Proceedings Database holds information on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales. This database holds information on offences provided by the statutes under which proceedings are brought but not all the specific circumstances of each case. This centrally held information does not allow us to separately identify breaches of suspended sentence orders. This detailed information is not reported to Justice Statistics Analytical Services due to its size and complexity.

In this instance, to provide you with the information, we would be required to contact all Magistrates’ courts in England and Wales and ask them to search individual case files where a suspended sentence order was given to ascertain how many orders were breached.  To collect and collate the information you require on the scale you have requested would exceed the ‘appropriate limit’ set out in Section 12(1) of the FOIA.

You can find out more about Section 12(1) by reading the extract from the Act and some guidance points we consider when applying this exemption, attached at the end of this letter.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/12.

Whilst you could narrow the scope of your request in order to try and bring it within the cost limit, for example by requesting information for a particular court, I would like to take this opportunity to advise you that it is very likely that any information that may be held within scope of your request may be exempt from disclosure under the FOIA under the terms of Section 32 (Court Records). Therefore it is likely that any subsequent narrowed request could be refused under Section 32.

However, outside the scope of the Act and on a discretionary basis  I am pleased to inform you that you can view data on suspended sentences given at Magistrates ‘ courts via the following link:


Select and open “Magistrates’ court data tool” folder

You will be able to view the number of suspended sentences given at Magistrates’ court in England and Wales, from 2004 to 2014. The percentage of suspended sentence orders can be calculated by dividing the number of suspended sentence orders by the number of custodial sentences and then multiplying by 100.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/21 and further guidance http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance


I am sorry that on this occasion I have not been able to answer your request. You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

Disclosure Log
You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:
The published information is categorised by subject area and in alphabetical order


Yours sincerely



Giovanni Barbuti
Justice Statistics Analytical Services




How to Appeal

Internal Review
If you are not satisfied with this response, you have the right to an internal review. The handling of your request will be looked at by someone who was not responsible for the original case, and they will make a decision as to whether we answered your request correctly.

If you would like to request a review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the
following address:

Data Access and Compliance Unit (10.34),
Information & Communications Directorate,
Ministry of Justice,
102 Petty France,
London
SW1H 9AJ


Information Commissioner’s Office
If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner’s Office. The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if he considers that we have handled it incorrectly.

You can contact the Information Commissioner’s Office at the following address:

Information Commissioner’s Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire
SK9 5AF









ADDITIONAL INFORMATION ABOUT SECTION 12(1)

We have provided below additional information about Section 12 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled—
(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b)        if that is the case, to have that information communicated to him.

Section 12: Cost of compliance exceeds appropriate limit
(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.
(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.
(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.
(4) The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a public authority—
(a)        by one person, or
(b)        by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign,
the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.
(5) The Secretary of State may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated.

Guidance

The appropriate limit

The 'appropriate limit', for the purposes of section 12 of the Freedom of Information Act has been set at:

  • £600 for central government and Parliament.
  • The hourly rate is set at £25 per person per hour.
The following activities may be taken into account when public authorities are estimating whether the appropriate limit has been exceeded.
  • determining whether it holds the information requested
  • locating the information or documents containing the information
  • retrieving such information or documents
  • extracting the information from the document containing it.

 





EXPLANATION OF FOIA - SECTION 32 – COURT RECORDS

We have provided below additional information about Section 32 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled—
(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b)        if that is the case, to have that information communicated to him.

Section 32: Information held by virtue of being contained within court records
(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a)        any document filed with, or otherwise placed in the custody of, a court for the purposes of   proceedings in a particular cause or matter,
(b)        any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or
(c)        any document created by—
(i)         a court, or
(ii)        a member of the administrative staff of a court,
for the purposes of proceedings in a particular cause or matter.
(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—
(a)        any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or
(b)        any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

Guidance

Section 32 exempts information contained in those litigation documents and court, tribunal and inquiry records to which it applies. It exempts information held by a public authority if it is held solely by virtue of its being contained in those categories of document.

The information must be included in a particular type of document and must be held by the public authority only by virtue of this. However, if the information is so held, it will be exempt regardless of its content and for the reasons set out below public authorities should refuse the request. This applies both to the document itself and to any copies of that document or copies of the information which it contains.
There are separate and specific regimes for access to information held by courts and tribunals, designed to give those bodies themselves a measure of control over that information. For example, Rule 5.4 of the Civil Procedure Rules deals with access to court documents in civil proceedings in the county courts, the High Court and the Court of Appeal. It allows any person, on payment of the prescribed fee, to inspect and take a copy of (a) a claim form which has been served, (b) a judgment or order given or made in public, and (c) any other document if the court gives permission. Where a person has the right to inspect a document without permission, a request can be made to the court staff. Where permission is required, an application must be made to a judge. The Civil Procedure Rules do not include any guidance on the court's exercise of its discretion but the court will take account of all the circumstances of the case and the competing principles of open justice and the right to privacy of persons who may be mentioned in court documents.








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