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 If any comment seems submitted just to advertise a website it will not be published.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, 30 April 2018
Thursday, 26 April 2018
Monday, 23 April 2018
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.
Wednesday, 18 April 2018
Monday, 16 April 2018
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.
Friday, 13 April 2018
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
Wednesday, 11 April 2018
Tuesday, 10 April 2018
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".
Friday, 6 April 2018
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?
Thursday, 5 April 2018
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.
Tuesday, 3 April 2018
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.