RAPE AND DIGITAL HISTORY

Not surprisingly this page is usually used to air problems, grievances, histories etc of matters  normally associated with magistrates courts and/or their users. Generally matters of law are beyond the competence of the blogger and best left to those who are more qualified to comment.  However there are from time to time matters where the principle underlying that law or decision can be open to comment to any thinking member of the public.  Such a situation arose last week with the lurid headlines in most of the press of the victims` lobby denouncing new police procedures when there is an accusation of rape.  During my time on the bench I have seen the rise and rise of this lobby to such an extent that the impartiality of our legal system can rightly be called into question. On the issue of rape this has had a profound effect on the manner in which complainants (pre a guilty verdict the "victim" is a complainant), have been and are treated.  Whilst there is little doubt that in the past such people have been less than justly considered by police and prosecution there is a real danger that the legal pendulum has swung too far. It seems that the words of that great thinker Benjamin Franklin (1706-1790) "That it is better 100 guilty persons should escape than that one innocent person should suffer", is a maxim that has been long and generally approved in law books but in current times has been placed in the waste paper basket of our legislators. Shrieks from vocally enhanced left thinking activists have left the facts of the situation far behind. There are strict conditions to be applied when application is made to examine complainants` phone records.  If there had been no infamous cases of late of false allegations of rape it is unlikely that the changes would have been considered. By denouncing the procedures outlined there is no doubt that a green light would be given to more such false allegations. The mere fact is that the spectrum from lawful consensual sexual intercourse to rape is a difficult legal road to travel when in most cases it is a case of he says she says. There are in our midst those who have in their minds the "she was asking for it" scenario when a woman`s clothing, sobriety and behaviour have had a bearing on their attitudes to sexual intimacy whether in the privacy of a home or in the steam pressure cauldron of the jury room. Franklin`s adage was correct in the male orientated society in which he lived and is equally correct in our supposed times of enlightenment. 

REAL COST COMPARISON OF DISTRICT JUDGES AND MAGISTRATES

I have long opined that an unsaid policy of the Ministry of Justice is that the role of Justices of the Peace should be in managed long term decline in order that government would have  total control of the court process. In the last decade JPs` numbers have halved to around 15,000. District Judges(MC) numbers have been fairly constant over the last five years at around 115 with a slightly greater number of part time Deputy DJs. The argument that such an opinion is misguided is usually based upon the vastly greater costs of employing professional judges, ie DJs. The official statistics of the comparable costs are tabled below. 

These numbers, however, have a hidden story. Taking the 2017-18 figure for DJs alone £22,012,824 simple arithmetic results in a cost per DJ of £194,803. Now consider that the current salary of a DJ is £110,335 with an additional payment of £8,000 p/a for London appointments and that the MOJ contributes around £8,000 towards the DJ`s pension. DJs must devote a minimum of 215 days each year to judicial business. It is reasonable to assume that about seven weeks holiday is paid for.  So in reality the individual costs about £120,000+ per annum in addition to the cost of holiday cover of the lost seven weeks by a DDJ of at least £500 per day which works out at about £17,500. The costs imposed to reach the figure of £194,803 amount to £57,500.  These admittedly crude calculations lead me to believe that this last figure is the cost of a qualified legal advisor sitting with the District Judge. Without knowing exactly how many sittings are performed by DJs, DDJs and lay magistrates it is impossible to calculate the actual cost of a DJ + L/A  to compare with the expenses incurred by magistrates` costs of  £9,143,381.  What can be implied is that if the qualified L/A attending with a DJ were removed from the calculation or replaced with a low level unqualified clerk the cost advantage currently favouring using magistrates would be considerably reduced perhaps to the level where my previously stated opinion would be likely to be implemented. 

TO PUNISH OR NOT PUNISH;THAT IS THE QUESTION

Every day thousands of cases hit the magistrates courts. This observer can generally comment only on what reaches the public domain although from time to time information is available from other sources. In the former category I noticed this week two examples of what I believe are real but subtle changes in how we ie the law, treats miscreants at the lower level of harm.

Freedom of expression is perhaps the most basic of all our "freedoms".  And most importantly freedom to express that which others might find objectionable is arguably one of the most difficult areas in law as to where the line of freedom  is drawn that one person`s freedom is another`s hurt feelings or worse.  The laws of slander and libel have developed over the decades to cope with social media but many cases are much less clear cut than those which involve wealthy corporations and whistle blowers. 

Earlier this week Southark News reported that "A man from South Norwood has been charged after a video of a burning cardboard model of Grenfell Tower was shared online. Paul Bussetti, aged 46 (30.05.72) was charged on Friday, April 12, with two counts of sending, or causing to be sent, grossly offensive material via a public communications network. This is contrary to section 127 (1) (a) and (3) of the Communications Act 2003.He will appear at Westminster Magistrates’ Court on Tuesday, April 30."

Type in the search box exceptional hardship and my reader will read many of my examples where IMHO those on the bench applying the non guidance on this matter to the advantage of the offender are just plain soft and afraid to use the law as it is meant to be applied. They might be impressed by a junior counsel`s heartfelt apologetic  words or the seniority of the accused.  They might feel that they themselves if in that position would beg steal or borrow to avoid the mandatory disqualification on reaching 12 penalty points.  One reason I had offered by colleagues more than any other to accept the hardship argument  is the old story; leave the Sword of Damocles hanging over his head until the next time. What a fatuous argument in a matter where the current offence is at the very least the second in the three year period.  Indeed in most cases the disqualifying offence is the third or fourth example of the law being broken. Where is that useless sword to be sheathed?  

Here is another example where a bench, at least according to the report, did not have the cajones to do its job to punish habitual law breakers on our roads. 

DRIVING AND MOBILE PHONE "USE"

Every magistrate will have had his/her own experiences of excuses offered by those defending a charge of using a mobile phone when driving.  Such a  driver convicted of using a mobile phone whilst driving has been given leave to appeal his conviction at Willesden Magistrates Court and a subsequent upholding of that conviction at the crown court.  The High Court will consider the matter: should be interesting. 

CHICKENS HOMING IN TO THE MINISTRY OF JUSTICE

I have long advocated here and elsewhere that offending drug users should be removed from the court pathway and transferred willingly or otherwise to a medical pathway where they can be treated for their addiction under lock and key until it is considered that they are no longer dependant. These institutions I have described as workhouses for a modern age. To view such posts type "workhouse" in the search box.

It seems that the Sentencing Council in its wisdom has made wide sweeping changes in its Guidelines for sentencers of addicts (and others).  This is a promising start for such cases.  Around 70% of violent and/or acquisitive crime is committed by addicts. Police have more or less washed their hands in pursuing cannabis possession for own use.  It is only a matter of time until contrary to the opinions of some outspoken right wing so called thinkers a format will be achieved to remove cannabis possession from the criminal law.  Until such time those responsible for our judicial system like its political counterpart will have to undertake radical  revision of processes which are so obviously not fit for purpose. The country is in a mood for change.  It is a dangerous time. My fear is that if clear thinking people in positions of power and influence do not appreciate the problems only a short time ahead of us decisions will be taken out of their hands. The complete and utter incompetence of Theresa May and her Cabinet have changed our political landscape for ever.  There is a high risk that dark forces will prevail to fill the vacuum of the current lot of MPs who have lost the confidence of those they should be representing. 

I have not been a supporter of much of what the Sentencing Council has produced in the decade or so of its existence. But this much is clear; the public will not for much longer tolerate sentencing which allows so many custodial outcomes to be suspended nor automatic release from custody when only half or less of a sentence has been served.  The Ministry of Justice since 2010 under that arch EU appeaser Kenneth Clarke has been deprived of such amounts of capital that it is a miracle that it still functions. It cannot continue.  The chickens at the Home Office have come to roost. The door is open at the coop at Petty France.   

MEANS FORM MEANS NOTHING

Talking to an old friend from my court some weeks ago she remarked that compared to her early days on the bench in the 1980s rarely had she had sex workers before her in recent years. Changes in many attitudes in the last thirty years have certainly been enlightening and generally for the public good.

Magistrates, however, still hear from many fellow citizens about those slices of the bread of life that are obscured in wrappers .

I well remember that such was the case of Geoff M. He was twenty two years old, evenly tanned, well built and had, according to both my female middle aged colleagues, the looks of a man who could do certain things to the female body.The lady to my left referred to him as a Richard Gere lookalike in the film American Gigolo. We noted that he lived at the most expensive block in the most expensive road in the most expensive suburb of town. Magistrates must have local knowledge to function efficiently. That being said he was before us on a charge of affray to which he had pleaded guilty. We decided to fine him and accordingly looked at the means form he had filled in. His occupation was described as "escort agency services" and his income £450 per week. When our sitting was over we remarked that it was the first time any of us had had a gigolo.....to coin a phrase.....and that at £450 per week he was either just a part timer, wasn`t very good at his job or he`d lied on his means form as I suspect is the norm for very many defendants.

SENTENCING WHICH BRINGS COURT INTO DISREPUTE

I make no apology that the last two posts here have been about short custodial and suspended sentences and that this is another.  My underlying theme and main concern is that our masters, in their attempts to convince us that most offenders will respond to the myriad rehabilitative programmes that are offered by a demoralised and failing probation service the efficiency of which has been decimated by the Ministry of Justice, have failed us. The result of the public`s increasing lack of confidence in sentences which are simply inadequate for the crimes committed will be a lack of confidence in the justice system per se.  In light of the disquiet on so many aspects of the Brexit shambles this would be another nail, small but effective, in our overall democratic system of government.  Such sentencing decisions are taking place every day in every court in the country. I can only offer a few examples as they appear in front of me. This is another example of what I consider a complete disregard for public protection and is a further instance of the courts being brought into disrepute. 

SENTENCING RESPONSIBILITIES

Last Tuesday March 26th I argued that short sentences should not be abolished.  What I did not address was the de facto situation that has been before sentencers for over a decade; the suspended sentence or to be more accurate custody suspended.  Statistics on suspended sentences at magistrates courts are a mess but it seems that at magistrates courts 155,000 such sentences were handed out in 2017 cf 13,434 a decade previously: It is my humble opinion that abolition would be rejected if put to a public vote. Governments of late have to their cost misread this factor and whilst governments sometimes must lead it takes wiser people than the current lot to make these decisions for the benefit of us all.

Note two recent examples from Crown Court where the offenders on the basis of the Sentencing Guidelines and the media reports should have been jailed.  Abrogation of the duty of public protection will provoke a public backlash.  Judges and magistrates should be aware of their responsibilities.