ROAD RAGE:- WHAT`S THAT?

As an active J.P. the most interesting of sittings in my opinion usually involved legal argument of one sort or another. As such at the time I made notes of  a sitting one morning five years ago.  Although often quoted there is no offence of domestic violence.  Similarly there is no offence of road rage per se. 

The case in question before us was a S4 public order matter allegedly committed on a public road involving a car door being opened by a stranger against the wishes of the driver. Apparently the reason we were told for the alleged action was not, at least originally, malicious. The argument or perhaps dispute was that after the CPS had agreed a statement of facts to which the defendant had agreed to plead guilty our legal advisor said to the court that the facts indicated that this was a case which should be considered “road rage”. Defence argued against this interpretation on the basis that driving per se was not the cause of the incident. CPS insisted that the agreed facts were acceptable. I questioned the lawyers as to what was the definition of and/or what constituted “road rage” and whether we could, from the facts, consider that such a scenario could be drawn.

After an hour none of the three lawyers could find where in English law “road rage” was defined. We sentenced on the basis of agreed facts.  As far as I am aware the term "road rage" still  has no basis in law and the CPS in its guidance does not indicate otherwise. 

Like the description SUV; sports utility vehicle, road rage is a shorthand undefined phrase imported from U.S.A*. Perhaps when the aforementioned domestic violence becomes a stand alone charge with various degrees of harm road rage too will figure in CPS terminology.

*wikipedia
 
The term originated in the United States in 1987–1988 (specifically, from Newscasters at KTLA, a television station in Los Angeles, California), when a rash of freeway shootings occurred on the Interstate 405, 110, and 10 freeways in Los Angeles. These shooting sprees even spawned a response from the AAA Motor Club to its members on how to respond to drivers with road rage or aggressive maneuvers and gesture

THROWING OUT THE MINORITY BABY IN THE POLITICALLY CORRECT BATH WATER

I had in my arrogance thought that my knowledge and command of the English language was at the very least up to date with at least some of the new words and phrases which enter common usage every year.  However I have been grossly over confident.   Our language is superbly equipped to be able to render new ideas and products using  Ancient Greek, Latin, Anglo Saxon, Norse, French and Germanic constructions evolved over millenia into modern English. Today in the Mirror I have read of "transphobia" and of being "misgendered". These terms seem to be part of an increasing trend of developing what was once offensive into criminal activity.  However what is more disturbing is that this gradual hate crime amoeba is like the Blob in the 1958 film of that title in which an alien lifeform consumes everything in its path as it grows and grows.  

The more the term hate crime is used indiscriminately ...........that`s a paradoxical use of the language..........the greater the risk of diminishing its effectivity.  On July 19th I commented on  the intentions of Nottingham police in this regard.   If it becomes common practice for those correctly branded as being racist, antisemitic and the like to be bundled under the same umbrella terminology as being misgendered I believe we are in danger of throwing out the minority baby in the bath water of politically correctness because we refuse to drain and strain it.

PERSISTENT FINE DEFAULTERS EVENTUALLY DESERVE CUSTODIAL SENTENCES

Amongst the arguments often raised against “short” custodial sentences are that fines defaulters should not be imprisoned. This is often coupled with a story of an old age pensioner imprisoned for refusing to pay her council tax because she doesn`t believe her taxes should be used for this or for that purpose. Indeed refusal to pay council tax is a not uncommon form of rebellion against the state employed by those whose arrogance is equalled only by their ignorance.

Courts impose custody only when the matter is so serious that there is no alternative. Without such a deterrent anarchy would be the result. There are two grounds on which a court can impose immediate custody for fine defaulters; wilful refusal to pay or culpable neglect to pay but before either of these stages is reached there are many hoops to be jumped through and which offer an offender a way forward. Assuming the court had originally made a collection order a distress warrant can be issued. The offender can appeal against the terms set. Attachment of earnings or deductions from benefits order has failed and the reserve terms have also failed. A defaulter also has the opportunity to appear before a means court where detailed enquiries can be made and s/he has an opportunity to explain the position. If all options have been explored then and only then can a custodial sentenced be imposed according to the outstanding amount which varies from 7 days for sums up to £200 to 12 months for amounts over £10,000. However if an argument is accepted that a suspended term would secure payment then the court must suspend. Immediate custody for fine defaulters is therefore a relatively rare event.

This case reported a couple of years ago at York Magistrates Court is typical. Heaven knows what the previous hearings and officials` times and efforts have cost the country. Perhaps we should be proud in this country that it is so difficult to imprison anybody or perhaps that is the very reason for a general long standing disregard of authority widely accepted as a basis for law breaking.

WHO RUNS THE PRISONS?

There are four constituent parts of any criminal justice system, the process of catching suspected offenders, charging and convicting them in the courts, incarcerating them in prisons where it is hoped that many can be rehabilitated. The first two components consist of many people with corresponding checks and balances to ensure justice is done with fairness to all and is seen to be thus done. However when it comes to the running of prisons in general the governor is "king" and almost but not quite an absolute monarch. Controversy erupts from time to time when it is revealed that governors have power and were using that power to release prisoners far sooner than anybody had authorised. 

If prison governors are "kings" then prison warders are the "nobles" and as we learn in history kings and nobles were often in conflict as to where the power would lie. In prison it is forbidden for inmates to possess or use mobile phones, drugs, or to use networking sites. So there is no drug problem in jails.....? no criminal activity involving mobile phone contact between convicts and the outside world.....? It is a fact that inmates are using Facebook to further their criminal activities whilst inside and to promote their violent actions inside.

It has been said by many with knowledge that the Prison Officers Union is the last bastion of left wing union extremism where union power and not the management is in control of the work place . Similarly it has been said that whilst drugs are illegal if they were totally excluded from jails there would be serious riots with the result that to a certain extent a blind eye is turned to the illegal supply in prisons. If using Facebook is contrary to prison rules how does a dangerous inmate access it without the knowledge of those paid to keep him secure and out of contact with the public at large?

Continuing shortfalls in the rehabilitation of offenders and efforts to overcome this deficit are endemic.  Whether this government led by a former Home Secretary can do any better is a moot point. 

LEGALLY IT REALLY IS G.B. & NORTHERN IRELAND

Over the years seeking interesting matters for this blog I`ve become aware that not for nothing is the term for our nation The United Kingdom of Great Britain and Northern Ireland.  The province has its own legislation for many offences which can differ from that in England & Wales never mind Scotland; the other part of Great Britain.  Abortion, or the forbidding of,  is perhaps where the legal treatment differs to the greatest extent.  But I have noticed from time to time quite significant variations in the treatment of motoring offenders although the local guideline for no insurance is as G.B.

District Judges rule the lower courts system.  Their decisions on sentencing have appeared to me as a distant observer with only news reports to go on to be occasionally arbitrary.Giving a driver a four week ban when he already had six points on his license as in this case, if heard in England, would have had the legal advisor to a bench gently reminding magistrates of the accepted protocol that he be given 6 - 8 points  and treated as a totter with an immediate mandatory disqualification of six months.  Just goes to show that the Irish north or south of the border are a law unto themselvers.

MP`s PLEA TO IMPRISON ALL WHO ASSAULT POLICE

On July 29th I posted on the Police Federation of Northern Ireland`s demand for mandatory custodial sentences for those convicted of assault on their members.  The problem is  the definition of what action(s) constitute(s) an assault.  Some definitions are:-

This is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. Such an act must be with the intent being calculated in that persons mind to cause apprehension or fear in the mind of the victim. Therefore, where there is no intent, there will be not be an assault, UNLESS, that the person who assaulted another, ( and it was conclusive by way of evidence), that the person was indeed reckless as to the other person would in all probability have indeed apprehended that immediate unlawful violence would be used.

 An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

A further  refined legal analysis of assault can be found here.  

The fact is that every J.P. and criminal  lawyer knows that police officers in the main will seek every opportunity to bring a common assault charge against an individual with whom they are in hot verbal and non violent exchanges when they are frustrated that they cannot impose their will.  Obstruction of a police officer in the course of his duty is another all embracing favourite when commands legitimate or as is often the case illegitimate are not obeyed. 

Protection of police officers in the course of their duty is a very easy bandwagon for an MP of only one year`s seniority  to pursue.  And Holly Lynch appears to be one of that ilk.  This type of populist appeal by Labour is in line with its Corbynistic policy of rule by the people......read mob. It should be resisted in general and the proposed madatory jail for police assault  in particular notwithstanding an overriding policy of reducing the prison population.

HARM INDEX IS HARMFUL

This blog along with many more authoritative sources has long been sceptical of so called crime statistics.  The use of tick box mentality of recording has long been questioned.  To the despair of many that methodology is so widespread it is endemic among both government and non governmental organisations; the Sentencing Guidelines produced for magistrates and judges  are a perfect example. This "bible" of sentencing attempts to categorise sentences by a combination of harm to the supposed victim and culpability of offender.  And now a "crime harm index" is to be deployed by police to classify the significance of different offences taking into account the number of offenders jailed for the crime including violence, knife and gun crime and the average sentences imposed.  Considering that about 95% of all crime that comes to a court begins and ends in magistrates` courts  with six months custody maximum it is likely that effects of inevitable prioritisation by police will be based on crown court statistics of the remaining 5%. An additional (overlooked?) factor seems to be the designation and weight to be given to suspended sentences where the decision to suspend custody is based primarily on an assessment of the offender as opposed to the effects of the crime itself.  An additional flaw IMHO is that people, I dislike the term so commonly used and abused, victims,   invariably do not have similar or common reactions to the crime inflicted upon them. There are those who can put the experience, however traumatic, behind them and those who wallow in their own misfortune over the most minor transgression to their property, person or psyche. 

It is almost certain that police will use this new indexation to target their diminishing resources and will inevitably issue so called statistical evidence to justify their so called efficiency.  Such activity distorts that which is itself being measured whether it`s GCSE and A Level results or an indication of a hospital`s ability to deal with its workload.  This blogger will need some convincing that this harm index is less than harmful to public accountability of police. 

RISK OF SEXUAL HARM NOTICE//MIRTH IN THE MAKING part 3

The saga of the sadomasochist who is under a police notice to tell them 24 hours in advance of his proposed sexual activity  continues  from the first mention here on January 25th.  A follow up was posted on June 9th.  Whatever the legal niceties where the angels on the pinhead have been well and truly counted the current state of affairs in this matter appears to be a blight on any meaning of the term "justice".

The District Judge ruled that the terms of the ban imposing a 24 hour notice period were disproportionate but that nevertheless the order will not be reviewed until a further hearing on September 22nd.  This individual might not be the man that the father of the bride might wish for a son in law but he was found not guilty at a trial for rape.  Even so police branded him as "a very dangerous individual".  In my naivety I did not think that such actions could take place in this country.  After all this is not Turkey of "Midnight Express" or Russia under a repressive regime or  Czechoslovakia during the time of Franz Kafka. This is England in 2016.  What have we become?  Where are we going?