TIMES ARE CHANGING FOR DRIVERS

I blog only occasionally on motoring matters cf criminal behaviour by drivers.  As is often said of law breakers, ignorance of the law is no excuse. It is a long time since I paid more than a cursory glance at what the Daily Express had to say but for many drivers and car owners the times are a changing.  

HOME OFFICE IS DEMONSTRATING ONCE AGAIN THAT IT`S UNFIT FOR PURPOSE

A chief Constable will be appearing on 24 May 2018 at Westminster Magistrates court on a  Health and Safety prosecution.  Although unrelated it is interesting to note that the Home Office has refused to release figures on the numbers of senior and chief police officers found guilty of misconduct. In the light of current matters at said Office this blogger is of the opinion as a previous incumbent made clear  that it needs a thorough overhaul of policy, personnel and oversight i.e. it is not fit for purpose.

SUSPENDED SENTENCING ORDERS SHOULD FOLLOW THE ORIGINAL STRUCTURED APPROACH

When sitting with colleagues  recently appointed I occasionally reminded them that we had a duty of public protection ensconced within the formulaic information overload that they were doing their best to absorb.  It was a function that was rarely if ever mentioned in any training course and one with which  most new colleagues could immediately feel comfortable as they were faced for the first or second occasion when the custody threshold had been breached.  For many the realisation that their decision meant that a fellow citizen`s  liberty was being taken from them was a sobering  moment.  Such decisions and the structured approach employed to achieve them were perhaps most significant when it came to deciding if a custodial sentence could or should  be suspended.  The pressures on so doing were and are enormous.  At all levels from Secretaries of State to L/As via PSRs and trainers,  the lower courts in particular  are being “asked” to  employ some form of rehabilitative requirement and to eschew immediate custody. 

There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.

Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.


The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of a suspended custodial sentence is a very hot potato. Sentencers only chip away to its underlying principles as best as they can in order to use it justly for all involved.  

The latest twist in the saga of suspending custodial orders has been revealed by the Sentencing Council.  Incidentally I sometimes wonder whether this organisation is the wagging tail of the public opinion dog. Whatever its anatomical relationship to the concept of sentencing once more it is changing direction as this report of a circular released by its chairman Lord Justice Treacy reveals. 

 “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

“In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”

Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In short all this hoo ha stems from the failure of some sentencers and probation officers to follow a recommended sentencing structure in which a suspension of a custodial disposal can take place when and only when  the custody threshold has been breached.  It would make more sense if all those involved followed the practice intended.  Even those with some influence seem to be mesmerised by this topic.  Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences.

She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective”

The only conclusion I can arrive at is that the simple sequence in a structured sentencing policy that would satisfy the original and not unreasonable reasons for the option of suspension of custody has been ignored and needs to be re-visited. 

ANT McPARTLIN//COMMUNITY SENTENCE MORE SUITABLE?

I have blogged on the topic of fines a few times over the years  Indeed insert fines into the search box and they can be read by anyone interested. All this came back to me on reading of the £86K fine to multi millionaire entertainer Ant McPartlin for drink driving.  It would appear that he was fined at Band B [100% of weekly income admitted at £130K] with one third reduction for early guilty plea.  Considering the damage done to a third party it was surprising he wasn`t also charged with careless or dangerous driving in addition. Be that as it may, the financial imposition will make absolutely no difference to his current or future life style. Surely the public humiliation of community service would have been more appropriate in his case and for others whose vast fortunes and/or incomes render financial penalties a sanction without meaning.  

JPs, JUSTICE, AND POLITICS

By now I would imagine that anyone remotely connected with the workings of our courts will be aware that dozens of barristers` chambers are refusing to undertake legally aided work to represent defendants in crown court.  That it has come to this is a sad situation.  Despite repeated warnings to the MOJ by the criminal bar that the financial returns especially for those recently called are such that practitioners could not continue subsidising their state underfunded work government refused to act. Now the Law Society has issued its guidance to solicitor advocates to consider carefully their position. 

In the magistrates` courts where 95% of criminal cases begin and end magistrates have been aware for years of the iniquities within a system that attempted for example  to exhort unrealistic payments from defendants found guilty; 2015 Criminal Courts Charge; legislation so burdensome and ill conceived that it was repealed. Along with many other inefficiencies there was widespread concern that defendants were pleading guilty only because they feared the financial costs of going to trial and being found guilty. It is thought that as many as 20% of trials are conducted with a bench of two; a further sign of problems over the horizon. Yet J.P.s` representatives have been silent about the difficulties and problems of which they are all well aware.  Their parrot like response is that justice would be imperilled if they entered the political arena.  I would opine that magistrates have themselves allowed justice to be denied to many by their very avoidance of stating clearly and loudly that the courts system with all that that entails is not fit for purpose. They paid lip service to the closure of hundreds of courts thus increasing costs for witnesses despite the fake news published by the MOJ on increased travel times. They whimpered when that Criminal Courts Charge came into being exactly three years ago for its short lived existence.  Magistrates considering their having no financial interest in their occupation of the bench  could demonstrate that their concern for justice overrides the passive position they have traditionally taken. They don`t. They assert that justice would be sacrificed if they involve themselves in the politics of justice.  To use once often quoted phrases that once distinguished our summary justice system but no longer are guaranteed to exist...........level playing field, equality of arms etc  when the rules change changes to the game are inevitable.  The change which I hope and believe will eventually happen is that the bench in the face of unreliable CPS operatives and unrepresented defendants must come off the fence and become inquisitorial in the manner of many continental benches. Failing that there cannot possibly be justice for all as we have proudly proclaimed for many decades. 

FAILING JUSTICE? IT WAS EVIDENT IN BRADFORD 8 YEARS AGO

Those who inhabit our courts system have been getting more air time and media attention over the last few months than normally has been the case.  Most of the shortcomings now affecting justice have not materialised out of the ether or from rubbing a magic lamp; they began almost exactly eight years ago.  In 2009 I began this blog on a site now long since departed the cyber world but I did save all the posts. I have copied below such a post which should demonstrate that what we are now experiencing was evident in embryonic form when all the legal world was supposedly hunky dory. 

BRADFORD CROWN COURT OVERWHELMED WITH TRIALS BACKLOG

by TheJusticeofthePeace @ 17. Apr. 2010. – 12:10:24

The Ministry of Justice is closing Magistrates` Courts at quite an alarming rate. The driving force is the need to reduce costs. Various reasons are added to the mix to lesson the raw impact of that political word; "cuts". It is being said that crime is falling but that depends on what figures one believes. It is widely recognised that by allowing police officers and laterally uncle Tom Cobley and all to issue various forms of fixed penalties offender numbers at court are greatly reduced.

Over twenty thousand cases annually are tried as either way offences at Crown Court. It has been suggested that if Magistrates` Courts were allowed to increase their sentencing powers to twelve months custody many more matters would of course be brought within their jurisdiction. These sensible options had they been effective would have eliminated a difficulty which receives virtually no publicity; the backlog of Crown Court trials.

Officials at Bradford Crown Court are wrestling with just this problem. Instead of the usual 450 trials within the system there are 750 pending. Court manager Adrian Marshall said the situation was due to an increased number of cases being committed to them by magistrates, but the reasons for that were unclear. It seems to me, a distant observer with no inside knowledge, that there is only a limited number of perfectly obvious reasons some primary and some secondary. Of the former;
not enough courts, not enough judges, increased criminal activity. Secondary reasons are; increased numbers of defendants in either way matters opting for Crown Court trial by judge and jury instead of summary trial before magistrates under utilised Magistrates Courts which could be remedied by increasing powers as above

The court manager at Bradford Magistrates` Court is quoted as saying,“I can’t establish a reason why there has been this increase, but the feeling I get is there is more serious crime coming through, and I think there are more sexual offences occurring.” That answer doesn`t fill this observer with confidence. Once again it appears that whilst justice per se is still generally of a very high standard and the practitioners involved working very hard sometimes for minimal financial reward the administration of said justice is often shambolic. However all this maladministration is usually below the waterline of public awareness. How many more Bradford Crown Courts are there?

READ ALL ABOUT IT! STRAIGHT TO THE POINT

When I was active  as a chairman I rarely if ever used the pronouncements as listed in the Bench Book. I was not an actor with a script; I spoke to witnesses and defendants as I would have liked to have been addressed were I in their position. Most of all it meant that simple English was used that would be understood readily without need for further explanation unless of course a witness had English as a second or third language.  The chairman of the bench at    Flintshire Magistrates’ Court at Mold, was to the point when he told an offender, "you were conned".  He was referring to so called advice given by this firm of solicitors. A clap on the back from me to the chairman. Read all about it.

WHEN GOVERNMENT LIES WE`RE DOOMED, WE`RE ALL DOOMED

For the last week many barristers have refused to undertake legally aided briefs at crown court.  They have been driven to this desperate action by the miserly rates of pay offered by the Ministry of Justice. I am not proposing to discuss the rights and wrongs of this action but to point out the lack of coverage in many? most? national media including TV. Indeed although most days I catch bits of Sky, BBC and Channel 4 news programmes the lack of reports appears suspiciously like news management from Petty France where the MOJ has since 2010 been conducting the emasculation of our once heralded justice system. It seems that no news is the watchword.  However in the week when the Home Secretary tries to assert that drastic falls in the numbers of police officers have no significance with regard to the increase in knife crime, a view which has been demonstrated doubtful to say the least, especially in London it is instructive to discover that this major department of state described by a former Home Secretary John Reid a decade ago as being "unfit for purpose"   lied to parliament and the public when Theresa May was in charge. In 2016 against many opposing views the government legislated that schools had to collect data on their pupils` nationality and country of birth.  Many groups and organisations and parents refused to co-operate. During this time the Home Office then under our current prime minister`s regime  made it clear that the information to be collected by the Dept of Education would not be passed to its (Home Office) control for immigration purposes but that it was needed to help pupils whose first language was not English. This was an out and out lie that was recently discovered under freedom of information legislation by Schools Week.

Such actions are a disgrace to what we still consider to be our democratic way of life. It gives credence to conspiracy theorists who would see the country under the control of Jews, Masons and all manner of beings bent on reinforcing those misguided individuals` irrationality and prejudices.  This is apparent now within the Labour Party where discussion once taboo is being repeated as fact; where it is acceptable to demonise groups; where scum like Nick Griffin a nazi apologist is intending to vote Labour. See tweet below.

When government is and is seen to be lying through its teeth the bells should be ringing out loud and clear that, as the late John Laurie of Dad`s Army fame was wont to put it; "We`re doomed, we`re all doomed". 

JURORS` KNOWLEDGE BOUNDARIES

I have posted from time to time on jurors and juries. Use the search box if required to find a few previous contributions. According to an interesting piece in the "Conversation" juror problems are on the increase.  Apart from a fact that really annoys me insofar as jurors do not have to be British citizens nor demonstrate their ability to comprehend possibly intricate constructions in the English language a juror`s individual knowledge which is in conflict with evidence is not addressed. My own professional experience and knowledge when I was active was in direct contradiction of a witness`s evidence. This was not knowledge gained by using the Internet or a reference book which is expressly forbidden for magistrates just as it is for jurors; it was in my memory and for justice to be done I informed my two colleagues with 100% certainty  that the witness had lied. If I had been a juror would demonstrating that knowledge have led to my being reported to the judge and held for contempt?

With the secrecy of the jury room more closely guarded than a papal conclave I do not know the answer. With judicial hints that judge only trials are likely for one reason or another to become more common such a minor point as above might assume increased significance.  As eligible citizens we have a right to know where the boundaries are? 

CPS BOSS IS A SYMBOL OF A NATION IN DECLINE

The recent case of a doctor being struck off after being  convicted of manslaughter by gross negligence has been the subject of much interest from Twitter lawyers and medics. I offered my own view at the time that in order to retain public confidence the conviction and subsequent decision to remove her registration was correct.  Now she has been granted an appeal against the ruling by the General Medical Council. It seems much substance will be made of the institutional failings within the NHS which contributed to a great extent in her failure to perform her duties adequately and led to the tragic death of a child in her care.  It appears to be another case to be excused by an ism. It began when Stephen Lawrence, a black British man from Plumstead south east London was murdered in a racially motivated attack while waiting for a bus in Well Hall Eltham on the evening of 22 April 1993. The subsequent report, The Macpherson Report published on 24 February 1999, found that the police investigation into Stephen's murder was “marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers. Since then the problems within an organisation have often proved to be an alibi for personal incompetence. Social services departments` failures  have been used to some extent as excuses for those working within them in cases of grooming of girls by mainly Pakistani men. 

Comment on the news earlier this week that Alison Saunders Director of Public Prosecutions aka chief of the CPS has focused on the failures of the institution rather than the serial incompetence and rotten decision making of the lady herself. This derogation of responsibility is a further sign of the moral authority we vest in senior public servants and politicians being diminished. What begins at the top as sure as night follows day percolates through society like a hot knife through butter so that individual responsibility becomes a rare commodity and those abusing it are all the more likely to evade their just deserts. This is what we are becoming; a country in decline where nobody is blamed for the problems and institutions continue to fail.  

SECULARISM AND SENTENCING REMARKS

The National Secular Society has raised an interesting point about the appropriateness of a judge`s comments.  At a recent sentencing hearing Mr Justice Haddon-Cave sentenced the Parsons Green bomber Ahmed Hassan to life in prison and ordered him to serve a minimum of 34 years. As he closed his sentencing remarks at the Old Bailey he told Hassan he "should understand that the Qur'an is a book of peace; Islam is a religion of peace".  

Personally I am atheistic in my approach to the wonders of life and how we live it but IMHO castigating the judge for what I consider as pertinent comments was misplaced zeal and an over reaction.  NSS chief executive Stephen Evans wrote that the judge's remarks had "undermined the principle of judicial impartiality and the universal applicability of secular law" and added "judicial office holders must be expected to treat everyone equally before the law, regardless of religion or belief". I wonder therefore if Mr Evans considers hate crimes to be unlawful pieces of  legislation or to be correct "religiously or racially aggravated offences"?  In such cases whether one agrees or not the motivation of the offender is an important consideration and is likely to increase the sentence imposed.  

I will not repeat many other remarks in the report as there is a whole page on this topic on site.   Suffice to say the NSS has shot itself in the foot in this matter and will not encourage wavering  believers to its cause by this ill thought out diatribe against a judge doing his job on behalf of all of us secularists included.