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 If any comment seems submitted just to advertise a website it will not be published.

Friday, 1 April 2016

A LEGAL SYSTEM WITH ITS HEAD IN THE CLOUDS

As a long serving magistrate never once did I ever have to listen to a victim impact statement or anything similar before the formalised regulations of such came into being.  Of course this is not surprising; if the result of any offending were of such effect that original offence would have been serious enough to have been heard in the crown court.  The case of lorry driver Luke Bates who was sentenced yesterday to custody suspended for causing death by dangerous driving appears to be of interest owing to the reported remarks of the victim`s sister and others of his family.  News reports seem to indicate that the recorder who presided was persuaded by those remarks  that he could suspend the prison sentence.  Victim Personal Statements per se are subject to quite critical guidelines by the Crown Prosecution Service. Whether or not what was said in the case of Luke Bates was a formal V.P.S. it does raise concerns if indeed it influenced the sentencing decision. To quote from the guidelines......."The opinions of the victim or the victim's close relatives as to what the sentence should be are not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them".  It seems to this non lawyer that, to coin a phrase, the V.P.S. allows the victim to let off steam and not much else.  However returning to the Luke Bates case; what would have been the effect if the victim`s family had made their opinion loud and clear that they wanted the killer of their family member imprisoned immediately for as long as the law allowed notwithstanding reduction for guilty plea.  

I have long been against the whole concept of what has been termed victim orientated justice.    Whether a duke or a dustman the victim`s status or opinion should have no bearing on the matter if IMHO the state imposes justice without fear or favour on the facts of the offence and/or harm done and the offender`s culpability.  The case of Luke Bates illustrates very clearly where our legal system has its head in the clouds when it should have its feet firmly on the ground.

3 comments:

  1. Yes but the Definitive Sentencing Guideline for this offence makes it clear that the fact a death occurs is not sufficicient on its own to justify a custodial sentence. In fact the penalty can be as far down the scale as a low level community order, for example 40 hours of unpaid work.

    Finally many factors, as you know from your own sentencing experience, go into deciding which custodial sentence can properly be suspended - a question which all sentencers must address as part of the process.

    I entirely agree with your judgement of the mish-mash of victim personal statements and how the law states they should (not) affect sentencing.

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    Replies
    1. Thank you for your observations although perhaps you have missed my main point namely the influence or otherwise of the victim personal statement.

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    2. This does, of course, raise the point of why have public victim impact statements at all, if they cannot have some influence on the final sentence. Like JotP, I too have never heard one made in my lower court, but in assaults, thefts, frauds and the like we take into account the impact on the victim or family when assessing the outcome. I have no doubt that HHJ would have done the same in arriving at his/her sentence in the R v Bates, and would have been well aware of the relevant guidelines. As you suggest, it is more an exercise in closure for those affected.

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