BENCH CHAIRMEN SHOULD NOT "FEEL"

Over 2 million disabled blue badge holders have special parking privileges. Fewer than 1000 prosecutions are brought against those who abuse the system by using counterfeit badges or otherwise fraudulently try to play the system. Since prosecutions are the responsibility of local councils and those councils often appear to be more interested in using their reducing resources for other matters that are more profitable many magistrates will not have been involved in such matters. I first posted on this topic earlier this year on 23rd February. A recent case, I suppose because of the rarity and because of the affluence of the offender, caught my attention. 

What strikes me about the case is not reported in the national press; one of my eyes and ears on the ground has informed me of the purported statement of the bench chairman: "We feel that you used the blue badge deliberately. We feel that the offence requires a fine but we have taken into account your early guilty plea".........(my bold)

As a bench chairman for many years I generally did not make pronouncements parrot fashion from the "book" but always made very clear the bench`s reasoning, intentions and any other considerations appropriate to the individual.  Neither I nor any other chairman with whom I sat ever used the phrase we feel or anything similar.  One might say that using those words was just a matter of that chairman`s style.  I would opine that it typifies lack of cogent thought, reasoning, common sense and use of language; factors which should be a requirement for the position.  But then this is the result of trying to train people to be chairmen and allowing them to sit for a minimum of only twenty six half days annually. It has often be said by those wiser than I that leaders are not made, they just are. Chairmen of a bench are leaders; some are capable to lead and others...................

Most professionals whatever their speciality whether it be wood carving, train driving, architectural designing or plastic surgery know well that frequency of performance is essential to retain or upgrade skills. Over twenty years ago when abdominal laparoscopic surgery was in its infancy and I required a double hernia operation I asked my chosen surgeon how many such procedures he had performed and how many had he required to redo: four hundred & three and two were his respective answers. My op went perfectly.  There is no doubt in my mind that trying to teach or train people to be bench chairmen is a difficult task. There is also no doubt that sitting on twenty six half days each year is inadequate for most to attain the required abilities to do the job satisfactorily.  It is not unlikely that poor performances as exemplified by today`s example above and others more blatant will be used as examples by those who desire to reduce JPs` role within the court environment in the not too distant future.Indeed on some social media that point is frequently made.

NO JAIL = NO PUBLIC CONFIDENCE

The current on line edition of the Bath Chronicle has the following on its front page:-

"Michael Stephen Phillips, 50, of Haycombe Drive in Twerton, was given a suspended prison sentence after he admitted assaulting a woman in Stothert Avenue, Bath Riverside. Magistrates noted the following aggravating factors: “domestic violence, nature of injury, sustained assault on a vulnerable victim plus previous conviction against same person”. Phillips was committed to prison for 16 weeks, suspended for 18 months. He must take part in a building better relationships programme for 42 days and a restraining order was made. He was ordered to pay £250 in compensation, a £115 victim surcharge and £85 Crown Prosecution Service costs".

The fact of not imposing immediate custody whatever the personal circumstances of this offender, circumstances which the reporter deemed unnecessary to write up, is nothing short of disgraceful if the public is to have confidence that our judicial system is one in which they can have confidence.   When that confidence is eroded so is a pillar of our democracy.

DAVID LAMMY`S SELF SERVING REVIEW

I must declare that I have never had any respect for David Lammy M.P. IMHO he is a self seeking publicist and will do or say anything regarding supposed bias against individuals who are self describing ethnic minorities. No sooner had the referendum result been announced late June 23rd last year than the morning headlines were David Lammy M.P. arguing for a second one to get the "right" answer. Somehow or another using influence unknown to me he persuaded David Cameron that he should carry out a review of the treatment of aforesaid ethnic minority people within the criminal justice system.  I have written  this blog as a labour of love for over nine years and I don`t intend to burden myself with reading the 108 pages of the review; just the introduction where in addition to a link to the final Report you will notice said gentleman`s picture on the page. That speaks for itself on his underlying personality.   I draw your attention to the following paragraph copied below:- 

Apart from there being no statistical evidence for the above; "more confidence" is purely subjective, in all my years on the bench I detected no bias from white colleagues at any time towards those of ethnic minority status.  Some will say; ah.......but you would have had unconscious bias against black people.  To that I would answer........bollocks.  Now my experiences were not unique.  I will admit that amongst the coterie of 29,000 magistrates as was  there probably was a small minority who might have exposed their inherent discrimination but they would have been swiftly brought to order by their colleagues. 

It is people like Lammy who spread the discord. They forever preach of discrimination where it exists only in the mind of the accuser. It is just another sign of objectivity in the CJS being driven by so called "victims" such a term often in my experience being used by CPS and others prior to conviction when the correct term is "complainant". Similar processes are at work when university chancellors agree with the concept of "safe spaces" for those who fear being offended by opposing ideas.  Truly my fears of approaching 1984 in some previous posts are being realised quicker than I can comment upon them.

SHORT JAIL SENTENCES AND POLITICAL & RELIGIOUS TOLERANCE

Those who forever and a day lobby for short prison sentences to be abolished have recently been able to lift up their eyes and gaze longingly at proposals north of the border to do just that. It is not a foregone conclusion. The protagonists of this policy change seem to be unable to consider that the situation with recidivism is as much to do with the dumbing down of the probation service since 2010 and the collapse of structures within the prison service over decades. How can prison governors fulfil their remit if they have barely enough to feed their charges never mind rehabilitate them? How can probation services do their jobs with political shenanigans in their recent privatisation and reduced funding combined with general uncertainty for those at the sharp end?

Sooner or later one government or another must explain to the great British public that prison services, justice systems, defence requirements must have much more money spent on them; not the euphemism "invested" as Labour politicians continually preach. That money has to come from increased taxation or reductions in the budget of the holy cow NHS.  Governments especially prime ministers are entrusted and enabled to lead we citizens but currently they are sheep being led by the nose. Perhaps that is why Jacob Rees-Mogg has emerged from rank and file Tories as a future PM.  He has shown his backbone by declaring his Catholic faith and consequences of that faith. If they are kept as his private  belief system just as MPs of Muslim, Hindu, Jewish, Jedi or no faith do there is no problem. Similar arguments against him were put to Jack Kennedy in 1960. He declared that the US Constitution would be his guide; not the Pope. The antagonistic sheer nastiness being directed at  Rees-Mogg from the left especially on social media is a disgrace to our values. It is illogical and all right thinking people should reject it.  Oppose him on political grounds but opposition because of his religion is a dangerous intolerant route to take with catastrophic destinations.   

HMCTS INVITES QUESTIONS BUT DOESN`T ANSWER THEM

On 21st July HMCTS initiated an on line question and answer page on proposed pilot schemes to extend the working hours of magistrates` and crown courts. It seems, surprise, surprise that many points made by various contributors remain unanswered.  What an indictment of the senior management of that organisation that offers a sounding board to interested parties and then ignores the responses. 

SALAMI SLICING TO 1984

The army is, according to reports, thousands of men short of its anticipated even lowered capacity.  Two hundred or so years ago at the height of the Napoleonic Wars there was no problem in recruitment for the army or the navy;  admirals sent well armed hard men around the country and press ganged reluctant sailors.  The army was equally robust.  We are constantly informed now that in the 21st century a career for intelligent people is awaiting them in the army, navy or air force and one would have thought that even when recruitment is below expectations feeding from the bottom of our social strata would be conducted with some care. Combine that thought with a bench of magistrates that seems to have abandoned its duty of public protection, a probation service that considers custody an anathema and we have a ridiculous situation of a thief with 25 previous convictions who has broken his early release license being given a conditional discharge. 

This is the reality of those individuals and organisations that are daily propagating the notion that non violent offenders should not be jailed, that custodial sentences of up to six months should be withdrawn in favour of so called "community sentences".  We have all noted what has happened since the closure of dozens of mental health institutions and their inhabitants entrusted to "care in the community".  Every time planning for a new prison is approved the cry goes out that prison doesn`t work in the same way that when motorways are extended or newly built the cry goes out that their very construction will encourage more traffic. 

We are living in very dangerous times.  Every day another incident happens which is undermining our freedom of expression or confidence in those who govern or guide us whether in the universities, the armed forces or parliament where an incompetent prime minister can threaten colleagues` jobs in order to prolong her existence and to hell with what`s best for the country.  We are salami slicing to 1984.

DEATH BY DANGEROUS AND/OR CARELESS DRIVING

DANGEROUS DRIVING:A person drives dangerously when the way they drive falls far below the minimum acceptable standard expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

CARELESS/INCONSIDERATE DRIVING. Road Traffic (NI) Order 1995. 12.- If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

The charge of Causing Death by Dangerous Driving is a much more serious charge than Causing Death by Careless Driving with a maximum penalty of 14 years in prison but its definition differs in only one word: it can be brought when driving 'fell far below the standard expected of a careful and competent driver'.

The above definitions or words very similar are the bases on which the CPS initiates charges.  When death occurs as a result of the lesser charge the maximum punishment is five years imprisonment; a considerable reduction cf the more serious offence.  Although the lesser offence is either way it is highly unlikely that any JP has ever sat on such a charge: as far as I am aware neither I nor any former colleague of mine ever did.  I would opine that my comments to follow are those of a layman with perhaps a smattering of legal knowledge and awareness and those with professional experience might have a field day with their literary rotten tomatoes.

The basis of dangerous driving would appear, from the definition above, to be founded upon a comparison of an offender`s driving ability  with that of a "competent and careful driver".  But how would the definition be interpreted if the offender had inherently demonstrated that he was not at the time a competent and careful driver but of such a standard only that he possessed a valid driving license? That would IMHO lead to a very searching definition of the words "competent and careful" and if it could be shown that the offender did not fulfil that secondary requirement he could not then be subject to an accusation of dangerous driving.  With that in mind I would refer you to this recent case. Going by the report the actions of the offender were far from careless; they were culpably dangerous. Road traffic lawyers might disagree.  In any event I would opine that in this case where the offender pleaded guilty it is not unlikely that when originally presented with the more serious charge he was offered a plea bargain insofar as a guilty plea to careless driving would reduce considerably his expected jail time.  

I would conclude by offering the thought that the definition used for death by dangerous driving is in need of re thinking so that there is less opportunity for aggressive and truly evil drivers to be offered similar plea bargains in future. Manslaughter and murder might be examples where the demarcation line is more clearly drawn and could serve as a basis for putting away deserving offenders for the longer custodial periods they deserve. 

COURT CLOSURES

The closure of hundreds of magistrates courts by the end of this parliament has enraged lawyers and magistrates not unnaturally but little is heard from disinterested 3rd parties. Of course it`s a perfect bandwagon for MPs to latch on to whatever their party but a fat lot of good they do in this regard when the decision is made before the ubiquitous "consultation" is promulgated. However the reporter of Devon Live gives his opinion as a layman on this subject.  It`s worth a look.

IS A ROSE RED AT NIGHT?

Intending philosophy students and others have their favourite examples of simple conundrums.  Two of these are is a rose red at night and does a falling tree make a noise in the forest when nobody is there to hear it.  A similar thinking process seems to be behind the defence of a blind man charged with viewing child porn. As a retired eyecare professional the case has a significance for me but let`s assume his defence is unchallenged and no expert witnesses testify.  How would my reader react if s/he were on the bench?

"MINORITY REPORT" NO LONGER JUST SCI FI

In 2002 Steven Spielberg directed and Tom Cruise starred in the Oscar and BAFTA nominated movie Minority Report.  This is not a film review site but it`s well worth £2.49 from Amazon. I choose to begin this post insofar as the work itself is described as science fiction. Star Trek in 1966 was also described as sci fi and looking at some of its fixtures and fittings it was just sci truth fifty years ahead of its time. The era of actually predicting criminal behaviour is not quite with us........just yet but the era of sanctioning criminal behaviour which has not happened is with us in the here and now. 

Under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences and unconvicted people thought to be at risk of offending can be registered. The Register can be accessed by the Police, National Probation Service and HM Prison Service personnel. It is managed by the National Policing Improvement Agency of the Home Office.  As with so many factors, policies and actions which constitute the outpourings of the MOJ, Home Office and other government departments interfaced with Law `n Order a majority of the population couldn`t care less except for harbouring a complaint when asked, that sentences are not "tough enough".  That is why we have such an expansion of the prison population.  Incidents of dogs killing or injuring young children led to the iniquitous Dangerous Dogs Act 1991. More recently death by careless driving was created in response to public opinion and led the government to use an unpredictable outcome to justify the imposition of custody where none previously existed.  Dangerous cycling might conceivably be on the statute books before the next general election prompted by the recent tragedy in London. Whether or not in such circumstances government ought to follow or lead is a matter of political philosophy. But my problem today is being reconciled to severe limitations on individual liberty where no crime has been committed and where an offender has apparently paid the debt society demands; where the slate has been wiped legally clean. 

Sex is no longer a dirty word as it was pre the Great War.  Sexual offences, however, are very much in the public eye.  They still shock.  Perpetrators of such are still reviled.  But it seems that just as gay people were badly treated before the swinging sixties changed public attitudes and then the law, paedophilia whether caused by physiological and/or anatomical dysfunction in the brain  or is a learnt behaviour, a matter in dispute, sanctions will never be too severe for Mr & Mrs Joe Public.  Should such people be in effect punished before they commit a crime? The 2003 Act specifically allows this and I don`t recollect too much opposition at the time.  In the case of Paul Colin Carter his punishment (or some would say restriction) is extended.  He is not alone in being subjected to control for the possibility of future offending when his tariff has expired. He is not alone insofar as sex is often the basis of such restrictions.  There was the notorious case last year when a man was ordered to tell police 24 hours in advance of his intention to have sexual relations with a woman.  These two cases are not the same; they might not even be considered similar but they are happening because of a legal system which is taking us closer and closer to Steven Spielberg`s and writer Philip K. Dick`s vision of a dystopian future.  Do we really want or need to taken there?