LEGAL INITIATIVES? I HAE MA DOOTS

It seems the boys and girls in the MOJ press department in conjunction with their comrades at the Home Office have been hard at work recently on their keyboards.  Like the proverbial monkeys one of whom will re write Hamlet one or two of them seem to have gotten their masters` messages across to a public becoming weary of this government`s final attempts at demonstrating that it is actually doing as well as talking before an expected 2024 general election.  Of all the crass announcements none is more open to question (ridicule?) than the promise that offenders will be forced to wear high visibility jackets whilst undertaking "community payback" within 48 hours of being caught. This is supposedly a new initiative to ensure communities can have more harmonious lives without teenage yobs ruining their tranquillity.  Younger readers might not be aware that the term "community payback"  made its first legal appearance in 2010 when there was a National Probation Service worthy of its name.  It failed in practice owing to the less than rigorous standards applied and a general lack of co-ordination amongst all the required parties involved.  And also BTW that`s when the high vis waistcoats were issued and the ASBO was hailed as the finest new legal initiative to curb anti social behaviour.   There was however one major difference in the application of said community service:- the offenders had been arrested, tried and been sentenced by a magistrates court.  These safeguards were a balance of fair retribution and suitable judicial non custodial remedies.  These new proposals apparently will have an offender paying back to the community within 48 hours of being apprehended such payback to have input from the public.  There is no mention of the legal process as to how this ambition will be achieved.  Inviting said public, i.e. you and I, to have an input on suitable retribution for those offenders will require a representative group of people to sit in judgement and listen to arguments from a prosecutor, probation officer and of course the offender. Indeed that sounds familiar; lets call it a court. I doubt whether similar requests for public opinion on punishment will be made for crimes of multiple or child murder or the murder of a police officer.  I wonder why. 

At a time when there are overwhelming arguments to decriminalise the use of weakest forms at least of cannabis it seems the hangers and floggers in government have persuaded the others to place the use of nitrous oxide as a category C drug offence.  Considering that the toxic results of its use are very rare, especially compared with cannabis, this prohibition is just a high flying kite to that same group as lied to us on Brexit and seeks to ban immigration.  

Littering and graffiti have also come under the heel of impending legal changes.  Until recently my own council required an appointment for anyone seeking to dump rubbish at the major borough refuse collection site.  If that were not an encouragement to fly tip heaven knows what more inducement could be offered.  As with so many proposed rules without sufficient police patrols or underpaid little hitlers employed by councils fly tipping will continue to be a blight on all our landscapes whatever the consequences for those charged. 

Finally a proposal from a case, I believe, originating in my former court, became headline news for magistrates in 2007.  CJSSS Criminal Justice Simple Speedy and Summary was an initiative so important that every magistrate in the country was ordered to sit through a two hour training session so that its guidelines might be implemented as thoroughly as possible.  Like all past and present and future "initiatives" it took off at rocket speed only later to be bogged down due to insufficient prosecutors and fully trained probation officers with some defence lawyers exploiting the possibility of delaying tactics when addressing magistrates too weak to object. "Putting the prosecution to proof" was one of the most common comments I recollect at the time emanating from such sources.

For as long as I can remember the justice system from police, probation, prison to courts has been underfunded to the point of near collapse for the simple reason that a law abiding public just doesn`t care and parsimonious government is skilled at salami slicing budgets of what it considers secondary ministries distant from tomorrow`s headline news.  Those announcements commented upon above and the rest are just continuing the age old practice of  wielding a big judicial stick for a short time then putting it back in the drawer hoping nobody remembers when the election is called. Perhaps this time will be different but "I hae ma doots", said the Highlander when asked a controversial question.  

MAGISTRATES` MARCHED TO THE TOP OF THE CUSTODY HILL AND BACK DOWN AGAIN

A very brief post.........  Last year magistrates courts` sentencing powers were increased to 12 months custody.  This month custodial limit will be reduced to previous 6 months.  This is very strange and without explanation.  The Commons Justice Committee has questioned the motivation behind this action which is reminiscent of that grand old Duke of York

KEEPING SECRETS ON THE BENCH

From my years as a magistrate I think I can safely say that many if not most criminal defence lawyers would like to see the end of the lay bench i.e. they consider that with a single government employee District Judge (Magistrates Court) their client would have a greater chance of acquittal than before a panel of three Justices of the Peace.  As far as I know acquittal rates at magistrates courts are not divided into those before the DJ or lay bench. The relevant numbers are available below.  

As noted above convictions at trial are few in number owing to the vast number of guilty pleas. What is rarely ever commented upon is that there is no requirement for a three person bench to agree a verdict; a majority 2:1 is acceptable but no such statement is allowed to be made public when the verdict is pronounced in open court.  Of course for those acquitted knowledge of majority or unanimous decision is irrelevant; they are free to go but for the convicted offender it is a different matter especially if, as increasingly is the case,  they are without legal representation. It was my personal practice in such cases to tell such an individual of his/her right of appeal to crown court and that the appropriate form was available in the court public office.  Very very rarely if at all when sitting as a winger did I witness any colleague doing likewise.  I can add that this procedure was never addressed at any training session.  This is an anomaly I feel strongly should be addressed.  Whether it is just a historical tradition lost in time or is a continuation of a long standing directive from a distant Lord Chancellor I know not.  I do know, however, that surely it is justifiable for a defendant to know under what conditions guilt or innocence would be established.    

BAD, CARELESS AND DANGEROUS DRIVING

My motorway journeys are generally along the northern or western areas of the M25, M1 to M6 route and the western end of the M4.  These few hundred miles comprise some of the busiest motorways in England and also many miles of smart motorways.  In past years I have experienced a complete electrical failure whilst driving in the "fast" lane necessitating navigating to the hard shoulder with no power steering or brakes.  It was awkward.  I have had my windscreen splintered by an air rifle shot from a bridge.  I have flagged down a police car to report a drunk or ill driver having overtaken me in a frighteningly erratic manner and known the sorrow when my wife`s best friend`s daughter was killed by a drunk, disqualified driver on the M6.  I have experienced the frustrations when apparently every couple of miles or so on a perfectly clear day when traffic is moving normally at or around 70MPH and no roadside construction going on, overhead warning signs indicate a limit of 60 or 50 MPH for no apparent reason.  I have also been very aware of the few if any motorway patrol cars in view on or at the side of the motorway.  Perhaps that is why I have been unable to find statistics on the numbers of traffic police officers or patrols currently operating.  

Government data shows 1,750 people died on UK roads in 2019 – a figure that’s more or less unchanged since 2010.  Of course  the pandemic reduced road volumes in 2020.  But with safer vehicles, enhanced driving tests and arguably safer roads it is disturbing that deaths haven`t reduced.  It is a simple effort to find out everything to do with road and/or motorway policing except the numbers of cars and officers on the road.  What we do know is that c150 offenders were guilty of causing death by dangerous driving. 

 

It is difficult to explain the differences in these two statistics over the last few years. Many unresearched explanations come to mind: vagaries in definitions, jurors` sympathies eg "it could have been me driving", CPS unusually pressing for the more serious charge. An interesting additional fact is that between 2016 and 2020 only c41 offenders in total were sentenced for causing death by driving unlicensed or uninsured. In that same span 21 were sentenced for causing serious injury whilst disqualified.   In 2019-2020 just under 600 lives were lost or damaged through deaths or serious injuries caused by dangerous driving. The offence of causing serious injury by careless driving implemented in the Police, Crime, Sentencing and Courts Act 2022 will add to the CPS`s choice of charge and give lawyers more clients to represent but suspected offenders must firstly be arrested and for that to happen they must be observed or be the subject of substantial suspicion.  

It seems to me that a reliance on cameras recording so many aspects of our daily lives has been used by government to attempt remote policing in our cities and on the roads in compensation for the drastic reduction in police officers since 2010.  Mass recruitment as we are experiencing now will take years for these new officers to gain the experience needed to function to their and our satisfaction.  Perhaps in future individuals will rely on dash cams to reduce their insurance premiums and in dire circumstances to prove their innocence in a traffic incident.  That`s a position arguably similar to Americans keeping their guns under jackets and in their cars. We follow them with some delay in so many aspects of our society and behaviour; why not on the roads to protect ourselves  from suffering unwarranted legal accusations of dangerous or careless driving unless of course we prefer less rather than more evidence of bad driving............

 

For many years arguments have been made to remove custodial powers from magistrates and on t`other hand to increase those custodial sentencing powers from six to twelve months. Last year the hangers and floggers got their way and twelve months custody for either way offences became the maximum.  Seems that is to end and those hangers and floggers will have to rein in their galloping punishment horses and reapply a six month canter.  The complete Amendment can be accessed here.  Section 25 is copied below. No doubt this topic will re appear. 

Amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

25.—(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012(24) is amended as follows.

(2) In section 143(6) for the words from ““12 months” to “6 months” substitute ““the general limit in a magistrates’ court” is to be read as “6 months”. 

BAD LAW GOOD RESULT OR GOOD LAW BAD RESULT?

Auriol Grey shouted and waved at Celia Ward.  That sentence could be the first line in a novel.  If it were it could be a description of two friends one of whom is trying to  attract the attention of the other.  But it wasn`t the first line in a novel but probably the last words that the latter heard before she was knocked off her bike and killed by a car on 20 October 2020. Auriol Grey was not the driver; she was just a pedestrian using the pavement for its natural purpose, walking, and was fearful of a cyclist approaching her on a collision course.  She was before a jury charged with causing the death of that cyclist.  After a retrial Grey was found guilty of manslaughter.  The judge`s sentencing remarks, the official record apparently still to be published, have been widely reported albeit probably in truncated form.  What we do know is that the offender is 49 and suffers with cerebral palsy.  It seems that in this very sad case the propensity for judges to do all they can to avoid sentences of immediate custody has been ignored or actively avoided.  She has been jailed for three years.  In 2021 50% of prison sentences given to women were for 6 months or less. Women were sent to prison on 4,932 occasions in the year to March 2022 – either on remand or to serve a sentence. In the year to March 2022 there were 1,513 recalls of women to custody. Women serving sentences of less than 12 months account for just under half (44%) of all recalls.  CPS guidance on manslaughter is available here.  I have been unable to source the numbers of women convicted of manslaughter  involving a stranger but excluding those in a domestic context  I would be surprised if  the number reached double figures annually. Whilst acknowledging the offender`s disabilities Judge Sean Enright was quoted as saying, "It does not reduce your understanding of right or wrong." The trial was told that police could not "categorically" state whether the pavement was a shared cycleway. Cambridgeshire County Council subsequently reiterated that and said it would review the location, but in his sentencing remarks Judge Sean Enright said it was a shared cycleway.  It is not difficult to appreciate that the first jury could not agree a verdict. With all that has been written since it is arguable that this jury might have been misdirected by remarks quoted (and others?) above.  What I find incredible is that immediate custody was imposed.  What effect on the offender or wider public has this achieved?  It wreaks of "setting an example".  But an example of what?  Who has not been disturbed or worse by a cyclist riding towards one on the pavement?  I most certainly have on multiple occasions and I too have sworn and waved my arm at that anti social behaviour.  This woman should not be in jail for a moment longer than it takes an appeal for her immediate release to be approved by the Appeal Court on four counts.  

1. Was her conviction safe?
2. Was the custodial outcome appropriate?
3. If 2.  is ratified is the length of custody appropriate?  
4. If 2. is ratified is a suspended sentence appropriate? 

The police as usual are unhelpful and take whatever position fits what their PR advisors advise. After this trial Detective Sergeant Mark Dollard called the case, "difficult and tragic, I am pleased with the verdict and hope it is a stark reminder to all road users to take care and be considerate of each other." Readers will form their own opinion of those remarks.  Personally I need some fresh air. 

ADDENDUM 7th March 2.30pm

This is what the judge told the defendant:

You have been convicted of manslaughter after a re-trial. You gave no evidence at trial one or two. In broad terms, the issue at trial was whether what took place might have been an accident, self-defence or unlawful violence. You were convicted unanimously by the jury.

Most of what took place was captured on camera footage. You were walking on the pavement. You resented the presence of an oncoming cyclist. The footage shows you shouting aggressively and waving your left arm. You do not stop, slow down or move to one side. You are territorial about the pavement and not worried for your own safety. After careful thought, I concluded these actions are not explained by your disabilities.

The court heard evidence from a number of witnesses, and I found William Walker to be reliable and thoughtful. He is a cyclist and driver. He said that you and Mrs Ward appeared to have come to a halt in front of each other and you made a lateral sweeping movement with your left arm which was directed at Mrs Ward. He said “it either made contact or she recoiled and fell”.  She  fell into the busy ring road where she was killed by a passing car driven by Carla Money.

This was, I think, a shared path for cyclists and pedestrians that allowed them to go around the busy ring road. The vital point is this: I am sure you knew cyclists used that path and you were not taken by surprise or in fear for your safety. The path at the point of collision 2.4 metres wide.

I have considered the evidence about eyesight and the CCTV footage and visual impairment was not a factor in this incident.

You and Mrs Ward both welcomed the safety of the pavement. She because she was an elderly cyclist and you because of your disabilities. Consideration for other road users is the lesson of this tragic case. We are all road users, whether as motorists, cyclists or on foot.

I have been referred to the guidelines on unlawful act manslaughter issued by the Sentencing Council and have heard submissions from both parties.

In terms of the guidance, looking at these matters in the round, culpability C is made out, but towards the lower end of the scale.

A starting point of four years seems just, based on my finding that the sweep of your arm was an intentional act but being reckless as to whether harm would be caused.

I reject the submission that this is best framed in terms of category D for reasons I have indicated.

Aggravating factors

The vulnerability of Mrs Ward who was on a bike.

The effect on Mrs Carla Money (in so far as her first statement extends). Her enduring distress is entirely foreseeable.

Matters reducing seriousness and personal mitigation

You offered assistance at the scene, but you were turned away by others.  But, on the other hand,  you then left before police arrived and  went off to do shopping. You were evasive when police traced you and told lies in interview.

You have no convictions or cautions or reprimands. You are 49 years old. This stands to your credit.

Your medical history and significant disabilities would have crushed many but you have endured all that in a commendable way. Until now have demonstrated a  positive lifestyle and I have no doubt that over the years you have endured all kinds of difficulties when going around the town centre which may have made you angry on this occasion. In any event, your prior good character stands to your credit.

Is there a mental disorder bearing on these issues? I do not think so.

As to learning difficulties, there are none. Much was made  in cross examination of what witnesses referred to as a  “childlike face”. In fact you went to a mainstream school and denied in interview having any impairment of intellect. That is not decisive, in my view and I put it to one side. Both experts suggested that the childhood surgery resulted in “a degree of cognitive impairment”.  (In my view, these difficulties do not bear on your understanding of what is right and wrong and what is appropriate or not). I should say that I saw the video your police interviews, I read the character statements detailing your lifestyle. I have also read the  pre-sentence report and medical evidence and have learned as much about you as I can.

Remorse. There has not been a word about remorse from you until the pre-sentence report was prepared, and here there is a reference to remorse which has never been passed on to the Ward family. In this regard I accept your counsel’s explanation that this may be a function of your disabilities and do not hold it against you.

There has been a delay in getting this case to trial. This is a mitigating factor I must take into account in your favour.

I also take into account the particular difficulties, occasioned by your disabilities, that you will face in prison and when you emerge.

Balancing all these considerations, the proper sentence is three years imprisonment.

FURTHER ADDENDUM 8th March 

The Law  as told to the jury by the judge

Burden of proof

The prosecution must prove that the defendant is guilty. She does not have to prove her innocence.

Standard of proof

The prosecution proves the defendant's guilt by making you sure of it. Nothing less than that will do.

Manslaughter

A person commits manslaughter is he/she does an unlawful act that a sane and reasonable person would realise would inevitably expose another person to the risk of some harm ( and that other person dies as a result).

If you concluded that what took place was or may have been an accident, then you will find the defendant not guilty.

If you were sure that what took place was not an accident but found that defendant was or may have been acting in self-defence, then you will find her not guilty.

2

WHAT IS SELF DEFENCE?

In summary

1. A person who thinks she is under threat may use force to defend herself and, as long as she uses reasonable force she will be acting in lawful self-defence.

2. It is for the Crown to prove, that the defendant was not acting in self-defence.

3 It is a two stage test.

Stage 1 – did she feel under threat (subjective)

4. You must first ask did she honestly believe that it was necessary to use force to defend herself? She is not deprived of this defence simply because she was mistaken about the need to use force.

If you are sure that she did not believe it was necessary to use force, then self-defence fails, and the force used would be unlawful.

If she may have believed it was necessary to use force, go on to the second stage.

Stage 2 – reasonable force (objective).

5. You must then decide whether the type and amount of force she used was reasonable. A person who is under threat may react on the spur of the moment and cannot be expected to work out exactly how much force she needs to use and everyone has a degree of latitude in that situation. If the reality is that she used no more force than she instinctively thought necessary, that would be good evidence that the force used was reasonable and therefore lawful.

3

6. If you conclude the defendant was or may have been acting in lawful self-defence you must find her not guilty and that is the end of the case, and you will go no further.

7. However, if she used force out of all proportion to the situation she faced, then the force used would not be reasonable and her actions would be unlawful.

8. If you reject self-defence, it means you have found that she used unlawful force.

You will then ask: would a sane and reasonable person realise that in doing what she did, would inevitably expose another person to the risk of some harm?

If yes, verdict guilty.

If no, verdict not guilty.

4

ROUTE TO VERDICT

(After you have had a full discussion about the issues you will need to make decisions, and if you follow this route to verdict it will help you return a verdict which in accordance with the law)

Q 1 Was what took place or may it have been an accident?

If so, your verdict is not guilty. Go no further.

If not, go to Q2.

Q 2 Did she believe, or may she have believed it was necessary to use force to defend herself?

If not, self-defence fails and you will go straight to Q4.

If yes, go to Q3.

Q3 Was the force that she used reasonable or may it have been reasonable?

If yes, verdict not guilty. Go no further.

If no, self-defence fails. Go to Q4.

Q4 Would a sane and reasonable person realise that doing what she did, would inevitably expose Mrs Ward to some harm?

If yes, verdict guilty. Go no further.

If no, verdict not guilty.

5

THE DEFENDANT’S SILENCE AT TRIAL

The defendant has chosen not to give evidence in support of her defence.

A warning

You must remember that the defendant has a perfect right not to give evidence and to require the prosecution to prove its case. You cannot jump to the conclusion that her silence proves the case against her. It does not. The burden remains on the prosecution to prove its case so that you are sure.

How may the defendant’s silence be relevant to the case?

There is no evidence before you to contradict or undermine the evidence for the prosecution save for what the defendant said in interview. You will appreciate those answers carry less weight than sworn evidence because they were not given on oath and were not tested in cross examination.

What point do the prosecution make?

The prosecution argue that the reason why the defendant has remained silent is that she has no answer to the prosecution case or none that would stand up to examination.

What do you need to be satisfied of before accepting that argument?

You should only act on that argument if you regard the Prosecution case as sufficiently strong to require an answer from her, and you are sure that the only sensible explanation for her silence is her awareness that she has no answer, or none that would bear examination.

6

GOOD CHARACTER

The defendant has no criminal convictions, cautions or reprimands and you have heard evidence about her character from three witnesses.

1 This is a factor which you should take into account when deciding whether you believe what she said in interview.

2. The fact that she is of good character means that she has no known propensity to commit offences and is therefore less likely to have committed this offence.

These are matters to which you should have regard in the defendant's favour.

EXPERT EVIDENCE

Experts are entitled to give their opinion evidence on matters outside the knowledge of lay people.

None of the expert evidence is in dispute and there is no rational basis to depart from it.

But remember, the experts see their part of the case only. You try the case on all the evidence.

UNANIMOUS VERDICT

You must return a unanimous verdict. If you have heard about majority verdicts, put them out of your mind. If there comes a time when I can accept a majority verdict, I will bring you back into court and give you a further direction

 

FURTHER & PROBABLY FINAL ADDENDUM 23rd May 2023

 

Contrary to my expectations the Court of Appeal refused leave to appeal against sentence.  This case is becoming a travesty of much that is wrong with our justice system such as it is still designated.  For comment in greater detail please read my post of the above date which can be speedily accessed here.