ONLY IN AMERICA

Some might have heard of this case but if you haven`t I have to tell you I have seen and heard of it from two sources so it must be true……..mustn`t it??????? For those who have served on jury...this one is something to think about...Just when you think you have heard everything!! Do you like to read a good murder mystery? Not even Law and Order would attempt to capture this mess. This is an unbelievable twist of fate!!! Are you sitting comfortably boys and girls and then I`ll begin.

At the 1994 annual awards dinner given for Forensic Science, (AAFS) President Dr. Don Harper Mills astounded his audience with the legal complications of a bizarre death. Here is the story:

On March 23, 1994 the medical examiner viewed the body of Ronald Opus and concluded that he died from a shotgun wound to the head. Mr. Opus had jumped from the top of a 10-story building intending to commit suicide. He left a note to the effect indicating his despondency. As he fell past the ninth floor, his life was interrupted by a shotgun blast passing through a window, which killed him instantly. Neither the shooter nor the deceased was aware that a safety net had been installed just below the eighth floor level to protect some building workers and that Ronald Opus would not have been able to complete his suicide the way he had planned.

The room on the ninth floor, where the shotgun blast emanated, was occupied by an elderly man and his wife. They were arguing vigorously and he was threatening her with a shotgun! The man was so upset that when he pulled the trigger, he completely missed his wife and the pellets went through the window, striking Mr. Opus. When one intends to kill subject 'A' but kills subject 'B' in the attempt, one is guilty of the murder of subject 'B.'

When confronted with the murder charge, the old man and his wife were both adamant, and both said that they thought the shotgun was not loaded. The old man said it was a long- standing habit to threaten his wife with the unloaded shotgun. He had no intention to murder her. Therefore, the killing of Mr. Opus appeared to be an accident; that is, assuming the gun had been accidentally loaded.

The continuing investigation turned up a witness who saw the old couple's son loading the shotgun about 6 weeks prior to the fatal accident. It transpired that the old lady had cut off her son's financial support and the son, knowing the propensity of his father to use the shotgun threateningly, loaded the gun with the expectation that his father would shoot his mother. Since the loader of the gun was aware of this, he was guilty of the murder even though he didn't actually pull the trigger. The case now becomes one of murder on the part of the son for the death of Ronald Opus.

Now for the exquisite twist... Further investigation revealed that the son was, in fact, Ronald Opus. He had become increasingly despondent over the failure of his attempt to engineer his mother's murder. This led him to jump off the 10 story building on March 23rd, only to be killed by a shotgun blast passing through the ninth story window. The son, Ronald Opus, had actually murdered himself. So the medical examiner closed the case as a suicide.

BENCH CHAIRMAN OUT OF ORDER

Earlier this week I posted on the advantage of having in England as is the choice in Scotland of a third verdict after trial; namely not proven. Before discussing this further let me make plain the main disadvantage antagonists offer on this subject; the possibility of an innocent defendant being smeared by the underlying assumption that he was really guilty but proof was lacking. I suppose that is a form of an oxymoronic argument.  The advantages on the other hand are seemingly quite apparent. Benjamin Franklin inventor of bifocals and a signatory to the American Constitution in 1776 is quoted as saying, "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".  Its basic concept has been repeated many times.  My opinion is that that reasoning would be better served by the availability of a verdict of not proven.  Indeed the tale of woe in the last twenty years where the verdicts in high profile trials have been overturned on appeal often after many years in jail for alleged offenders is a stain on the so called high standards of British justice.

Notwithstanding the above I am indebted to a commenter for bringing to my attention this case.  After a verdict of not guilty had been announced the bench chairman Dr Ian Haffenden is quoted in the penultimate paragraph as saying, “although we think that the defendant may have taken the items, the prosecution has not proved it so”. If this were in a Scottish courtroom the verdict would have been not proven and would have been respected as such.  In England, however, it is an absolute disgrace.  The chairman has cast aspersions on a woman his bench found to be not guilty because they applied the test; beyond reasonable doubt.  To confirm their doubt is beyond belief. There is a tradition, I know no better, that even if a decision is split 2:1 a bench must not make that public. This bench chairman should be held to account before the appropriate authority. He was out of order.  However it is unlikely that the defendant will have the wherewithal intellectually or financially to pursue that option.   Indeed it is possible that her relief in being found not guilty will in itself be enough satisfaction for her.

Before I was appointed a chairman I sat often enough to observe not a few occupants of the middle chair who liked the sound of their own voice too much for their own good. I took note to put a five second mental delay before a major input to proceedings and to make that input as pithy as possible whilst ensuring my meaning and intention were clear to all.  That, in my opinion,  is common sense; a requirement for appointment 20 years ago but sadly no longer so.

FREE PRESS AND DIFFERENCES OF OPINION

From time to time threats, some overt and others surreptitiously, are made to the freedom of the press. I stumbled across two current reports on the state of the forensic service in Scotland.  On reading them it was sometimes difficult to recognise that they were describing the same events. See for yourself....."Police Professional" and "Holyrood" magazine.

ETHNIC DIVERSITY//THE FAKE NEWS ON THE MAGISTRACY

Quite frankly I am sick and tired of, in effect, being part or having been a part of an aged ethnic majority imposing sentences on ethnic minority offenders in excess of similarly guilty white offenders: sick and tired not to say disappointed with the continual implication that the magistracy is unfit to represent the society within which its members have been appointed to serve. Let me make one thing quite clear:- the idea propagated by these critics that local benches should represent local societies no longer holds water. Government by its actions in amalgamating courts and greatly  increasing numbers of District Judges(MC) with no local affiliation and specifically authorising JPs to sit nationwide if theoretically required  should put that argument to rest. Unfortunately it does not.  The same old untruth, or to use current terminology, FAKE NEWS, continues to be used to undermine what used to be an unequalled expression of a voluntary giving back to society of experience, time and knowledge by members of the public with a communal spirit increasingly rare in current life. The quote below is from yesterday`s Guardian.

Penelope Gibbs, a former magistrate and director of the organisation Transform Justice, says: “However good they are, we need magistrates to be truly representative of the communities they serve if trust in the criminal justice system is to be maintained. We don’t have enough BAME magistrates, and those we have are overwhelmingly middle-class and middle-aged. Where are the magistrates from the Somali, Roma and Romanian communities? Nowhere to be seen.”

The pusillanimous final two sentences sum up quite elegantly the type of reasoning put forward to pursue this so called argument.  In order to serve judgement upon one`s fellow man [for the politically correct baggage followers the term embraces woman] for a start a high quality of use and understanding of the English language is required.  Arabic speaking Somalis who are here have generally been refugees from a brutal dictatorship over the last two decades. Perhaps the second generation might emerge in the next decade who would be able to satisfy the requirements of appointment.  They would be treated by appointment committees on their merits just as every would be magistrate has been, is and will be  without regard to ethnicity.  Roma by their very culture are not citizens living in a fixed locality although there are exceptions of course. The writer quoted above has nothing but invective to shout about in line with her political cause.  Romanians in this country are by study generally manual workers with ultimate intentions to return to their country of origin. I am, incidentally, of the opinion that the current rules on appointment to the magistracy which do not require British citizenship, require re-assessment.

Be careful what you wish for.  That hackneyed phrase could come back to haunt Penelope Gibbs, her acolytes and those funding her.  There is no doubt in my mind that government generally would be happy to see the function of lay magistrates reduced to only presiding over simple offending eg TV licensing sitting in a back office a hundred miles removed from any courtroom.  The day is not so far away when non locally affiliated single district judges will rule supreme in every courtroom.  Perhaps after so called ethnicity comparisons of their middle aged white composition leads to some disquiet she will rue the time bemoaning a dearth of a bench which reflected, warts and all, the population of towns and boroughs in England.  I personally think warts should be removed from the face of justice  not excluding judges, lawyers, police when warts include those unfit irrespective of race, creed, religion, colour perceptions or so called ethnic diversity. If positive discrimination is at the heart of the argument let it be made openly. That would be an honest subject of debate.

The table below might be of some interest

EXCEPTIONAL HARDSHIP IS NO LONGER EXCEPTIONAL

With regard to the possibility of being banned from driving as a "totter" there is no legal definition of "exceptional hardship"; a plea for a substitute sentence being imposed without a disqualification.  Many solicitors publish their own opinions on line as a marketing tool. This is just one example from many.  My general thinking processes when listening to such a plea were that if the offender was of such means that s/he could afford to employ a driver for the six month disqualification sentence then the exceptional hardship plea would not have been made out.  I clearly recollect two cases where very wealthy businessmen tried to make the argument: they failed. I do not know the circumstances of the offender in this case but if the bench did not consider whether or not he could afford a driver then they failed in their duty.  My impression over the years is that too many totters escape their deserts by weak benches being too easily persuaded by silver tongued lawyers.

WHY NOT A "NOT PROVEN" VERDICT?

I have long argued that English courts could take a lesson from the Scots in at least giving consideration to having a third verdict; that of not proven.  The anecdote published recently in the Law Society Gazette would seem to justify such an innovation.

PROBATION//RECIDIVISM//STATISTICS

Chris Grayling barely had time to arrange his desk when taking office at the MOJ when he began planning the selling off of the National Probation Service.  Whether one considers or not that this action has led to more or less so called efficiency ie reduced recidivism at a cheaper price, today figures are published for those interested enough to decide for themselves.

PILLAR OF JUSTICE HAS NO SUPPORT

Commentators of late have been suggesting that the great British public has turned a political corner and would welcome tax increases in order to improve funding for public services. With regard to NHS or social care they would appear to be inviting hell and damnation if there were the slightest hint that just perhaps individual contributions from those with the means available might be a better way out of this financial mess. That a right wing DUP orders Tories to retain benefits to pensioners whose financial position is such that they could happily forgo such largesse, a political position that the Left would have occupied a couple of decades ago,  indicates the paradoxical political world we inhabit.  And so it is with the emasculation of everything associated however remotely with out legal and justice system.

It is estimated that addiction is responsible for about 70% of acquisitive and/or violent crime.  Therefore one would have thought that the intelligent answer to that would be to be "tough on crime and tough on the causes of crime" (Tony Blair 1993)  But nay.  Since then we have endured tinkering........no other word seems more appropriate......with the justice system with platitudes and inefficiencies disguised as policy from the MOJ and Home Office. As examples just a few cases this week from magistrates courts illustrate what is really happening below the headlines of murder and terrorism; criminal activity which I would argue affect us all more than those aforesaid headline grabbers.  Please spend a moment or two perusing these four cases of criminal activity driven by addiction. These cases are replicated in every magistrates` court every day of the year. 

And what are we offered?  Court closures by the hundred and severe restrictions on the availability of legal aid even for the poorest in society. And yet, as I wrote Wednesday June 28th the CPS Inspector`s report when noting that absentee defendants are "the biggest single reason why first hearings were ineffective" did not even mention court closures as a possible reason. 

This is the Alice in Wonderland political world that appears to be the norm.  No wonder younger voters with no memories of the Cuba crisis where MAD policy prevented war, the three day weeks  and work by candlelight in the 1970s voted for a would be demagogue who offered a financial holy grail. MOJ and Home Office policies are a microcosm of all that`s wrong in this country financially, practically, morally and socially. There is nothing other than self serving preservation and limited horizons driving many parliamentarians despite that they protest too much.  They voted in their arrogance to hold a referendum without any caveats on requiring a minimum turn out or majority and I write as a Brexiteer.  By those very actions they have produced the biggest crisis since 1956 another date that means nothing to young voters. In its present form the Tory Party has outlived its usefulness where an incompetent Home Secretary with as much appeal as a rotten tomato was chosen as kingpin in order to prevent those more competent to succeed. She failed dismally with appointments to chair the inquiry into child abuse and her appointee into Grenfell has admitted within 24 hours that he will be unable to satisfy the reasonable requirements of residents. The buck has stopped right in her kitchen where she seems to be cladded to withstand the heat.

A country must be supported by a pillar of justice that is respected by all and funded to that end.  That requirement has been forgotten and/or ignored for years.

LEGAL AID NUMBERS TO BE CRUNCHED

What do changes in legal aid availabillity mean for justice?  Here are the latest numbers to be crunched.

COURTS` STATISTICS

Today the MOJ has published what is a statistician`s delight that can be topped up with some whipping and rasberries from interested observers.  Be a judge for yourself.