THE SPIRIT OF THE LAW WHEN COMPUTER SAYS NO

How often have we heard or even used the phrase the world has become (is becoming) a much smaller place?  Financially, socially and politically remove any language differences and those variations between many west European countries are vastly diminished from  what held true in the 1970s & 80s.  Of course the trend to supra national structures particularly the EU has played a major role in that coming together.  For this country the apparent political alignment with the United States in so many ways is contradicted by an equally disparate  approach to social structures and their applications. 

Roe v Wade for many Americans was considered as sacrosanct as the constitution.  It was overturned last June giving the power to decide on abortion rights to 50 states to determine individually. It triggered a wave of change. Abortion bans were brought in, court cases mounted, clinics closed.  As many rejoiced with their fundamental Christian beliefs  apparently ensconced  many are in despair especially those in the lowest economic quartile who will bear the brunt of unwanted babies or death or serious harm from illegal abortions.  Until recently such divisive opinion with equally divisive consequences was alien to this country but not any more.  The case of Carla Foster has reminded many that abortion availability in Britain is also constrained by law.  The sentencing remarks of the trial judge are available here.  What has been of concern to some is that this offender, rightly convicted, was sentenced to immediate custody.  His Honour`s  reasoning is quoted below.

24.For the offence of administering poison with intent to procure a miscarriage, I sentence you to 28 months’ imprisonment. Among the many tragedies in this case is that you did not indicate your guilty plea at the earliest opportunity in the magistrates’ court. Had that been done, the sentence of imprisonment that I am now obliged to pass would in law have been capable of being suspended.

An interesting commentary is available here. The law on abortion and its application is very well explained in this article by Tony Dowson. However as with many facets of the legal system there is the letter of the law and the spirit of the law. The letter of the law is what the law states; the spirit of the law is a social and moral consensus of the interpretation of the letter.  I fear that in some (many?) cases the judiciary,  bound by their contracts of employment and afraid of irritating the hand that feeds them, are loath to consider the spirit.  Punishment, deterrence, public safety and rehabilitation are the constituent parts developed over centuries which underline "the rule of law".  Imprisonment is the last throw of the dice that sentencers are instructed to consider.  Magistrates courts sentence around 4% of offenders to immediate custody.  They are exhorted to reduce such sentences to the bare minimum and to use every expedient to that end.  Some judges in the crown court have openly made that point in their pronouncement that they have been directed not to push the prison population beyond its current limit.  In the Foster case any judicial compassion was thrown overboard in the name of the "Guidelines".  An appeal against sentence is lodged.

Earlier this year on March 7th I commented on another widely reported case where a handicapped woman was sentenced to immediate custody. Aside from the factual inconsistency of the path`s designation this sentence too can be aligned with Foster`s as being of the type where "the computer says no" to custody suspended.  This is a worrying trend.  Is it a misogynistic throwback to earlier times, a fear of  upsetting lords and masters or more worryingly a justice system becoming ever more controlled by the executive with a supine judiciary losing sight of what happens in and to a society when  the spirit of the law is undermined or extinguished? 

DRUGS IN THE WAKE OF CRIME

 A Band C fine at court is150% of relevant weekly income.  The Sentencing Guideline for possession of Class A drugs is copied below.

In February 2020 Dame Carol Black published phase one of her independent review of drugs commissioned by the Government in 2019. Examining the UK's drug market she labelled it as “big business” and estimated its worth at £9.4bn a year.  Governments have refused to consider the decriminalisation of cannabis  never mind Class A drugs. They have refused to acknowledge that a system of licensing specified outlets supplying scientifically formulated narcotic substances is a viable and necessary alternative to the current chaotic situation which enriches criminals, encourages violent offending and kills addicts whose ingestion of such substances cut with various toxins was responsible for the deaths of  1,330 people in Scotland in 2021. 4,859 deaths related to drug poisoning were registered in the same year  in England and Wales. 

The current court situation in England is madness when it comes to punishing drug possession. In this case the arithmetic tells us that the offender had an income of £80: in other words he is a 51 year old living on social security who is likely to have been before the courts previously as few of his age use cocaine as a starter drug. I, along with eminent scientific and medical experts who are far more knowledgeable than I, have long advocated a medical path to rehabilitation.  My preference would be a 21st century workhouse.  [Insert that word in the search box for previous posts on the topic.]

Governments have buried their collective heads in the sand for myriad reasons:- religious, political, medical, social.  Certainly there is a downside insofar as some fatalities will occur as a result but there is a predicted risk of death undertaking almost any human activity from climbing a ladder to crossing the road. Yet individuals accept such risk.  Sooner or later a government will need to govern in the name of the vast majority of those who do not use drugs as well of addicts and experimenters.  The current uncontrolled situation must end even if only to reduce the inevitable violent criminal activity that drug supply leaves in its wake. 

  

BIND OVERS// A REMINDER OF TIMES PAST

A bind over is a power that is available to magistrates but I doubt if more than a handful of JPs have made use of it.  The courts and of course the legislators have been smitten with the myriad of banning orders or similar which have multiplied this century like fruit flies in a jam jar. Binding over orders are a civil disposal available in the Criminal Courts and can, in the right circumstances, provide an effective means of dealing with low-level disorder. In summary, they act as a means of postponing a sentence on conditions.  Although a bind over isn't a criminal conviction  it will show on enhanced DBS checking so for many professionals it would have to be explained to an appropriate authority.  The Justices of the Peace Act 1361 permitted a justice of the peace to bind over people who disturbed the peace to provide recognisance to ensure their future good conduct.  The CPS guidance on bind over is available here. 

My first experience of a bind over was when I did an observation prior to being appointed.  A young man had brought a private prosecution against his flatmate for assault.  The flatmate countered in court with his own accusation of assault. The justice presiding, in what I considered then a very condescending manner,  proceeded to drawl to the plaintiff that unless both parties withdrew their actions they would both be bound over for a year on the  recognisance of a charge of £100 to be paid.  The plaintiff  withdrew the accusation and the matter ended. To this day I am of the opinion that that bench failed to apply the process in accordance with the law.  Others might differ. In my personal experience there was but a single occasion when a bind over was the outcome. Despite researches I can find no statistics  on how often a bind over was the outcome at magistrates courts for 2022 or any other year. 

Today, however, I can report that a bind over was the disposal by magistrates in the Channel Islands.  They might be outside the UK but even then in this case I would opine that this was a very loose application of the suitability of such a sentence. 

Will such legislation last until its 700th year of application to the laws of England?  If pushed I will state that with a government pushing out banning orders like a chicken pushing out eggs it is likely to wither on the vine like so many ancient traditions some admittedly more decoration than functional. Perhaps like the House of Lords its usefulness will be soon a distant reminder of times past.  

AN ERA OF FEAR

Assuming the Presidency at the depth of the Great Depression, Franklin D. Roosevelt helped the American people regain faith in themselves. He brought hope as he promised prompt, vigorous action and asserted in his Inaugural Address, “the only thing we have to fear is fear itself.”  

Fear is a powerful motivator but it can also be crippling. Nowhere is this more apparent than in the fear of being a victim of crime. The reasons for this are so complex that analyses over the years have enabled many academics to write PhD after their names. Undoubtedly the confusion or government obfuscation over crime statistics has a part to play.  The general consensus is that crime has fallen this century but the interpretation of available information is more variable than the weather. However the myriad forms of criminals or criminality recorded or unrecorded by various agencies and institutions vary enormously in their frequency, tendency, locality, ethnicity etc. There are, however, some indisputable facts: this government has elevated the "victim" to the centre of the justice system, an action to which I have voiced my disagreement for many years here and elsewhere.  In addition by deliberate policy (denied by successive office holders at the MOJ) courts have been "advised" to find all alternatives to immediate custody in magistrates courts where once upon a time independent magistrates used their judgement honed over many years to sentence offenders without fear or favour. In 2005 a suspended sentence order was a new outcome available for sentencers.  Its importance [perhaps now overlooked by some] was that before it could be considered the custody threshold had had to be breached. An academic study is available here for more information. The introduction of Sentencing Guidelines around this time and the reducing independence of magistrates served to further the release into the community of those who would in previous years have served a jail sentence. One result is that fear of crime is now more common than ever before. Every day examples of poor judgement by magistrates admittedly under constrictions are reported in what is left of our printed local media. When those convicted of assault by beating in particular, an offence which often is downgraded from actual bodily harm, are escaping an immediate custodial sentence public faith in the justice system and increased fear amongst certain population groups is a not unexpected consequence.  Surprisingly I could not source an authoritative paper on fear of crime after 2017 when this highly academic study was published. However a cursory glance at local media anywhere in this country is highly revealing.  The examples to follow do not exist on their own.  Those responsible for sentencing (or others in court) are the only people who have heard all the evidence but that does not exclude commenters from offering opinions although as I have long predicted one day those proceedings in magistrates courts will be televised live. 

A conditional discharge was the result of this man`s offending. 

At Haverford West Magistrates Court the bench appeared to be in high spirits with their generous dispensations.   So much for the "Sword of Damocles" attitude by some magistrates who believe the threat of custody is enough of a deterrent for many. It isn`t. 

A final example is here of why so many people have little faith in a justice system where it is fact that so many deserving of immediate custody remain at large in the community. Note the final paragraphs re sentencing. 

 "Coe was sentenced to a 12-month community order, during which he must carry out 20 rehabilitation requirement days. He was ordered to pay £150 compensation to the victim and was fined £120 with £85 court costs."

"The offences were committed whilst Coe was serving a conditional discharge for a previous conviction of possessing a Class B drug."

"For breaching the sentence, he was fined an additional £80 and ordered to pay a £114 court surcharge."

"He was also handed a two-year restraining order which prevents him from contacting the victim."

It is at the base of a pyramid that over time  cracks lead to a failure in the whole structure.  Keeping murderers and terrorists in jail for scores of years might hit the headlines.  However being severely assaulted or damaged in other ways leads many innocent people to lose faith in justice and those who purport to protect them. This is highlighted especially when the offenders, supported by spurious sociologists and similar, mock and deride opponents to such thinking as "hangers and floggers". Having a so called victims at the centre of justice  policy helps nobody.  It devalues the principles of a system which should be neutral in balancing the traditional scales of justice.  

When a society is gripped by fear, real or imagined, it paves the way for authoritarian  disguised as protectionist government policies to become acceptable to a population desperate for comfort whether from criminals, immigrants or purported climate change.  This is the era through which we are living right now.