T.V. LICENCE EVASION TO BECOME CIVIL OFFENSE

When my son went to university amongst the advice I gave him was that on no condition should he open the door to a person who could possibly have been from T.V. Licensing (aka Capita plc).  This was purely precautionary because I insisted that he and his flatmates bought a T.V. license or they would forego my generosity in the provision of a free T.V. for their communal use. Such advice was based on the sometimes aired iniquitous practices of said plc when license “evaders” were giving evidence in court only to be contradicted by dubious so called “inspectors” whose evidence to say the least was often unconvincing.   So the likelihood of the end of such procedures at magistrates` courts is warmly welcomed.  To have a criminal record for non payment of a license fee to watch television was always a disgraceful use of the state`s power.

About 180,000 such people are currently  prosecuted annually.  Many of these are the poorest individuals in the country living hand to mouth and day to day.   About 70 of those found guilty are jailed for non payment of the resultant fine imposed. These T.V. license courts comprise about 10% of all cases coming before Justices of the Peace.  Their re-location to the civil courts system will lead to a further reduction in the number of courtrooms in daily operation and a consequent reduction in demand for new lay magistrates and a further diminishing in sittings for most. 

Having been a proponent for many years of this proposed change…..try typing http://thejusticeofthepeace.blog.co.uk/TVlicense   …… it is for once a most welcome change coming as it does from the Justice Ministry.    

HANG UP MY GAVEL

When the Lord Chief Justice delivers a speech entitled “RESHAPING JUSTICE” it would be foolish as well as churlish not to note its content with some seriousness. Much of what he said to “Justice” on March 3^rd  might have been of interest philosophically to Justices of the Peace as it would have been to many other groups and individuals but that part of his oration concerning the organisation and functioning of the magistrates` courts system deserves the minute attention of any magistrates who still believe that their future as arbiters of fact within our legal system  for 93% of criminal cases which begin and end under our jurisdiction will still resemble current processes in a decade are living in the land of clouds and cuckoos. 

In his opening he stated that, “The first (purpose)  is to make clear that our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State. It is  retrenching. The budget for justice is being       reduced substantially.  We must ensure that our system remains able to maintain the rule of  law by administering justice effectively, speedily and impartially in this new age.”  As a senior civil servant  he refers to “retrenchment” and “reform”  more than once.  Perhaps his position precludes direct references to the fundamental importance to our democracy of a legal process which is available to all our citizens regardless of their positions in the hierarchy of a benign capitalist society.  He avoids any comment on the withdrawal of legal aid from many participants in both civil and criminal courts but alludes to its consequences of self representing litigants and defendants as a justification for courts becoming more inquisitorial.  I suppose that dovetails nicely with the simple prediction that it is inevitable  that fewer and fewer  lawyers  will be available for poorly remunerated court work.  He offers the expedient of trials without jury but avoids any comment on the constitution or quality standards eg language ability, of jurors.  He specifically gives a nod to J.P.s sitting as wingers to District Judges in certain proceedings; an absolute certainty IMHO as I have blogged for years.  Efforts by government and magistrates` representatives to paint magistrates` increased  out of court  activities current or proposed as beneficial to all and sundry are nothing but a sop to our rapidly approaching future diminished role. 

I am fortunate enough to have been appointed to this position when it had a truly worthwhile and unique place in our judicial system. I will not be sorry when I hang up my non existent never been used gavel.

A BREATH OF FRESH AIR

As in many institutions the so called air conditioning in our major court building is as efficient as a chocolate kettle so the recent slightly milder weather has played havoc with our comfort zones.  Most of our ladies are still complaining it`s too cold but at least no longer insist on supplementary heaters being switched on in court.  My male colleagues and I open a window in the retiring room despite mutterings of, “You know we`re not supposed to do that; it upsets the air conditioning.”  That`s a bit like saying one shouldn`t shout at a rabid dog; it will make it bark louder. 

But to the point: earlier this week the sun was streaming through the windows of said retiring room and when 2.00p.m. arrived the windowless courtroom was stuffy to say the least.  Our motoring court began on time with three “no insurance” put over from the uber busy morning.  Each of the defendants after having been apologized to for their wasted morning had been warned that their case would be called ASAP in the afternoon and were left in no doubt that if they failed to show their case would be prosecuted in their absence.  And so it was that Mr V did not appear.  All morning he had been sitting in the public gallery apparently intrigued by the histories presented of those like himself who had been facing similar motoring charges.  His case was proved in absence as the other two defendants who had decided to attend looked on from the gallery. Without any information as to his means he would have learned soon enough via Royal Mail that he was £800+ in debt to the court.  When the pronouncement was made I could swear the faces of the other two visibly dropped and turned a brighter shade of pale.  Both being on benefits they seemed to realise that “each according to his means” still has some relevance in our legal system.

Geoff was a well spoken man of 23 and was before us on a very minor motoring offence; indeed so minor it carried no penalty points.  As he was quick to tell us it was his first time in a courtroom and that he had a clean license.  From the evidence of the police officer witness we were disturbed that it was so very minor an offence and the circumstances were so legally precarious that we wondered why a friendly warning had not been given.  His refusal to accept an offered penalty notice was apparently a matter of principle.  After hearing his defence we decided that a sure way to settle the matter was to inspect his vehicle which he had parked in an adjoining car park. So off we trooped….. a legal advisor, a CPS prosecutor, the defendant and  a bench of three.  We all hovered around the vehicle.  If it looks like a duck, paddles like a duck and quacks like a duck then it is a duck. A brief examination of his car showed immediately that the prosecution should never have been brought.  We dismissed the case and Geoff left the courtroom with a rather deserved smug look on his face.  The witness had long since gone back to his duties.  The officiousness he had demonstrated might have satisfied his inspector but especially in the current climate was not a credit to the force. 

After more years than I care to remember that was the first time I had sought evidence from outside the courtroom but it was indeed a satisfactory breath of fresh air legally and bronchially.

FACE OFF

It seems unlikely that the withdrawal of barristers` services from court proceedings will not go ahead on Friday March 7th.  As is the case in such disputes one side  will raise the ante until a blink is observed in the tremulous eye of the other.  One does not need to go to the Crimea to see such action and reaction in practice.  London has its own face off between the local chief prosecutor at the CPS and the  heads of chambers in the capital.  It is to be hoped that in this face off  the shots of defiance will be purely rhetorical.  However if anything demonstrates why an independent bar is so necessary for the defence of the rule of law it is the attempted polite blackmail implicit in  CPS London Chief Baljit Ubhey`s letter.  Already the government`s recently inaugurated Public Defender System about which I commented on 21/01/2014 is coming under fire.  Can it really be the case that the government`s long term ambition  is  to emasculate the independent criminal bar at least at its lower levels?   Is it really the case that the government`s long term ambition is to emasculate the independent lay magistracy?   Ten years ago such questions would have been thought of as the ravings of a paranoid commenter.  That old adage, “Just because you`re paranoid doesn`t mean they`re not out to get you,” comes to mind.

On a lighter note as a fan of Monty Python the Fish Slapping Dance was incomparable and the epitome of their humour.  For an employee on the fish counter in an Asda supermarket in Acrington  it wasn`t much fun being slapped with a wet haddock or similar.  Soon the assailants should face the scales of justice.

POINTS OF INTEREST

I feel that sometimes as magistrates we feel that life revolves around our own little empires (courts).  Quite simply, reporting of magistrates` courts proceedings in local media is rapidly becoming a relic of a bygone era.  There are many interesting cases from Scottish and higher courts that probably slip below the radar of the average J.P. but which nevertheless have points of interest  for us all.

Restrictions on legal aid are already having noticeable effects in our courtrooms.  Presumably at some time in the not too distant future a Freedom of Information Request will confirm the increase in unrepresented defendants.  A revealing interview in last week`s Guardian by a hard up criminal lawyer more or less sums up the situation for many in her position.

Chris Grayling who has been the subject of repeated criticism here and elsewhere huffed and puffed last May about reducing the scope of   Judicial Review.   Not surprisingly the judges took exception to his proposals.  It appears that like all bullies when they realise they might be resisted  this one has backed down.  Those within the legal profession might comment on the current matter going through Judicial Review in a case of when is a U turn a U turn.  Does a three point turn constitute a U turn?  The report is available here.  Is this typical of the cases that Grayling is trying to prohibit?

On 02/12/2013 I commented on my personal experience of  sitting on a case of  fraud involving pubs showing Sky Sports without the appropriate license.  BSkyB is pursuing this aggressive action also in Scotland. Punishment of offenders in such cases  is for the bench to undertake from first principles.  Those colleagues who have difficulty in considering matters without guidelines to assist might want to consider whether they are capable of doing the job as it has been done for decades or whether without guidelines they are in a dark tunnel without light at the end.

Threatening behaviour was admitted by a football fan who pretended to set alight torn pages from the Koran.  With such sparse details as are reported intelligent comment is futile but it crosses my mind that if this man of previously good character had been represented……..it seems unlikely that he was……….by a barrister well versed in such matters there might have been a different conclusion.  I wonder if pages of King James Bible had been involved whether or not such a charge would have been brought.  And what if the holy words or relics of Jedi Knights or the Druid priesthood were the objects of supposed fiery destruction;  would that also have been the basis for a similar charge?  After all they are recognised as religions and one would suppose subject to equal protection under the law. 

And finally an uplifting report of an alcoholic who has kicked her demons and has been justly rewarded by colleagues by having her driving ban reduced.  Would that similar situations were more frequently before us.

MUSINGS ON FRIDAY

I have previously opined that the very restrictive nature of the Sentencing Guidelines can and does occasionally deprive magistrates from considering from first principles  sentencing on any particular case.  As has been said many times guidelines are just what it says on the tin; 
g u i d e l i n e s and not tramlines and as such can allow for deviations if properly justified.  One area where such original thinking was still possible was sentencing for fly tipping.  For those interested, that freedom of action will end for all such sentencing from July 1^st 2014 when new guidelines come into force.  If I remember correctly I have some time ago been involved when colleagues and I fined a company the maximum of £20,000 for an atrocious case of fly tipping.  That maximum will be increased to £50,000.  It seems that for such matters being tried at the crown court size will matter; the more prosperous the company the higher the maximum fine.

It might be my paranoia but it appears that within our justice/law `n order system corruption, or at least those cases in the public domain, has increased considerably from Chief Constables, Police & Crime Commissioners, police officers and legal professionals etc etc   That such alleged white collar  criminals actually working inside court buildings   consider they can go undetected  causes me some surprise.  Of course in this particular matter they, as are all unconvicted defendants, are innocent until proved guilty.

I was no great fan of ASBOs and I`m not that enthusiastic about its offspring CRASBO..…criminal anti social behaviour order.  I am also of the opinion that those women providing sexual services for  men who require such diversions should not be criminalised for so doing.  Indeed they should be offered a protected environment where they can go about their business without disturbing the daily lives of those who  might reasonably be disturbed by their and their customers` presence.  So when I read that colleagues in Walsall have issued a prostitute with a CRASBO and threatened her with the pronouncement, “We are granting this Crasbo but you cannot carry on the way you have been because you could go to prison. You really do have to keep to this.” I do really find some despair creeping into my usually upbeat mood. 

The sad story of the one punch killer was widely reported this week.  The casualness of the assailant subsequent to his actions was quite disgusting.  The attitude of his mother to this sordid crime is most revealing.

Magistrates are well used to overworked and unprepared CPS prosecutors getting their knickers in the proverbial twist but Vanessa Schofield prosecuting earlier this week at Kirklees Magistrates` Court had other things on her  mind, namely her imminent wedding, when she confused two drug cases.  I suppose a woman has to consider carefully how to dress for such an event to the exclusion for a few minutes of her day job. 

Anyone visiting the Camden area of north London at weekends will  no doubt be aware of the street entertainers who are a regular part of that busy scene.  Buskers, for that is how we call them outside the offices of politically correct officialdom, in that borough are taking their objection to compulsory licensing to the High Court.  I wish them well.

FOLLY AND MYOPIA

Earlier this year on January 2^nd  I posted on the publication by the Ministry of Justice  of figures purporting to show the vast amounts of lolly paid to barristers via legal aid.  The figures were a vain attempt by the spin doctors of Petty France to undermine the effect of the then forthcoming walk out of criminal law barristers from the courts of England & Wales on the following Monday.  I do believe the government was truly shocked by this unprecedented action but apparently not shocked enough.

Next Friday March 7^th there will be a repeat action by this bewigged group of professionals and true to form Grayling and his minions have published further sets of figures in a further effort to show a largely uninterested public that these fat cat lawyers need taking down a peg or three.  Truly it is a fact that a cornered animal will fight more fiercely to defend its territory or young than at any other time. With Grayling`s plans for transforming the probation service being shown to be an unachievable political mirage and some of those involved doing their best to extricate themselves from involvement notwithstanding the legal profession`s  abhorrence at his attempts to ration judicial review it is worth  noting that one can get odds of 16/1 on his being the next minister to leave the cabinet. 

This Justice Secretary and Lord Chancellor with no background in the law or the legal profession is proving to be the very worst holder in living memory of his honoured office.  What a nation we are becoming.  A pillar of our society is being destroyed by a government that considers that no £ spent or saved is better or worse than any other £:   What folly! What myopia!

THE ALL CONQUERING CSA TANK

The Child Support Agency: I can do no better than quote from Wikipedia; “The CSA's function is twofold, encompassing calculation of how much child maintenance is due (based on current legislation  and rules) and collection, enforcement and transferral of the payment from the non-resident parent to the person with care.  For the CSA to become involved in a case, their services must be requested by one of the parents. Legislation also allows children in Scotland  to initiate a case against one or both non-resident parents”.


It was established in 1993 within the Department of Work and Pensions.  Almost from the start it was apparent that those bright sparks deep in the warrens of Whitehall who had drafted the legislation and those whose duties were to implement its management structure had failed to appreciate  the monster they had created.   Quoting again from Wikipedia, “From 25 November 2013 all new applications for child maintenance will be made through the 'Child Maintenance Service' using the new statutory scheme and associated legislation. No new applications will be accepted by the Child Support Agency, although they will continue to administer existing cases”.

 
Until my sitting earlier this week it had been about four or five years since I had last sat in a CSA court.  By contrast for my colleague who has been on the bench for under two years it was his third such sitting; such are the vagaries of our rota system.  We had three appearances who argued against a liability order being granted against them.  Sympathetic as we might have been to their situations and inquisitorial as we could be within the strict limitations of our function we granted these liability orders and the others which were unopposed. 

 
Informal discussion with the CSA representative was not unproductive.  She said that unlike us she was undertaking court work for CSA two or three times a week and to some extent she did expect courts to rubberstamp all her applications.  She did appreciate that she did not have all the documentation to answer all our questions for the simple reason that they would in her opinion have had no relevance to the outcome.  We were told that in the event of a historical case where the child involved was no longer within the eligible age group for support any monies collected would go to the supporting parent only if s/he were on benefits at the time in question.  If that were not so then collected arrears go directly to the Treasury.  As an aside she was unable to deny that having a magistrates` court involved at this stage appeared to be a fig leaf.  Our L/A agreed that in general  at the court stage most of those appearing were in disagreement about their assessment and accepted, if with some reluctance, their liability.  What they disputed were the methodology and calculations employed by CSA to arrive at a final amount owing.  Common sense would seem to  indicate that some form of tribunal with greater powers than a magistrates` court available to investigate individuals` complaints at the final stage would be more transparent than the current format which is in the form of a CSA Conqueror Tank disguised as a CSA bulldozer.

ALCOHOL, SMOKING & ABORTION WEAVING STRANGE DESIGNS

Drinking and smoking are rarely out of the news the former activity being involved in perhaps half of all cases heard at magistrates` courts.  I have yet to be involved in a matter of smoking in a restricted environment.  Abortion is a word never previously written in this blog.  However it appears that the British way of muddling through some forms of legislation eg The Dangerous Dogs Act 1991 is with us once again. 

In 2012 there were 729,674 live births in the U.K.  The Court of Appeal is soon to hear a case of a six year old child allegedly damaged by her  mother’s  drinking during her pregnancy.  Foetal Alcohol Syndrome apparently is now involved in 1%  of all births.  This is an enormous number of babies at risk to a greater or lesser extent.  To put that in context: in the early 1960s about 12,000 children worldwide were born with various handicaps including malformed limbs their mothers having used the drug thalidomide during their pregnancy.  Of these births about 2,000 were in this country.  The law is, by all accounts, shortly to be involved with those who smoke in their cars whilst a child is also present.  There are those who consider this a step too far even for the nanny state that we have become.  However, whilst offering no opinion on that, I would draw attention to the fact that the  same legal system allows the abortion of healthy foetuses up to 24 weeks gestation.  I make no comment on the rights or wrongs or whys or wherefores of this legislation.  I would. however, sit this legislation alongside the two previous mentioned situations.  To the alien sitting on a Martian omnibus is it not unusual logic which can allow governments to weave such strange designs?

THAT REPORT AGAIN

The Policy Exchange report on the utilisation of magistrates in police stations has not gone unreported in the media.  This organisation has published many supposedly innovative ideas for the improvement of many systems currently under the umbrella of the Justice Ministry and the Home Office.  Whether one agrees or disagrees with any or many of them with regard to theory or outcomes Policy Exchange does make its voice heard at high levels. 

Police Federation vice chairman is quoted in Police Oracle as follows:- In an interview with PoliceOracle.com, Federation Vice-Chairman Steve White said the move would bring wider aspects of the criminal justice system up-to-date with the Police Service. He added: “The whole tenure of public service is changing. It is time that people catch up with the Police Service. “The criminal justice system and the magistrates' systems are highly inefficient. “We can run a 24/7 service in policing but it is difficult to do that when you are working against a very non 24/7 service. “In terms of swift justice, we would support the idea of being able to deal with cases much more quickly. “We have already had 24/7 courts during the riots and the Olympics and they worked very well. “We have no interest in prolonging justice.”

In the same issue 24^th February, national policing lead for out of court disposals Chief Constable Lynne Owens, said that the recruitment of thousands of magistrates to take responsibility for out of court disposals would not be wise.  She added: “The Ministry of Justice’s simple cautions review found that overall these disposals were administered effectively by the police. Therefore, a conclusion that necessitated the recruitment of many thousands of magistrates to take over responsibility for the out of court disposal system would seem unnecessarily bureaucratic.”

To be fair to Richard Monkhouse Chairman of the Magistrates` Association he has been quoted as saying, “It would seem a backward and totally inappropriate step for magistrates to deliver justice in police stations”.  However until this organisation faces the reality  that the government`s destination for Justices of the Peace is totally outside the courtroom his efforts on behalf of his members will be as effective as the flood barriers in Somerset.  

LIKE TURKEYS FOR THE SLAUGHTER

“O would some power the giftie gie us to see ourselves as others see us.”  Robbie Burns had the insight of the common man.  The pilots directing the Magistrates` Association are not common men.  They are flying by their instruments and have lost sight of the real horizon.  No better indication is there of this inability to realise they are travelling upside down than their response to a report published a few weeks ago by a right wing pressure group, Policy Exchange. Chairman of Magistrates’ Association Richard Monkhouse said:  ‘This report from Policy Exchange mirrors many of our suggestions and we are pleased to see that there is a wider view that much greater use can and should be made of magistrates.”  And that greater use  is removing much if not all court work from Justices of the Peace who would be replaced by corresponding increases in the numbers of  professional judges sitting alone or perhaps with J.P.s as wingers during trials.  With the financial costs balance of  the latter  cf  voluntary magistrates  in favour of  D.J.s if their legal advisors were  exchanged for low level low paid admin people it`s a no brainer.  British governments are becoming more authoritarian by the decade if legislative changes in all their manifestations challenging individual freedoms  are any guide to the future. Having more (political) control over decisions of the lower courts would be in line with current experience an example of which was when those involved in the 2011 riots were virtually excluded from being tried and sentenced by lay benches and were overwhelmingly presented to courts presided over by District Judges directed to impose exemplorary sentences.  I write from experience having myself presided over such matters after  my colleagues and I expressly ignored our L/A`s advice to refuse jurisdiction and send the case “up”. 

The Policy Exchange paper is available here.  Dealing with some of the points made by its authors my comments are:-

1.10,000 new magistrates placed in out of court situations.
In order to assess the comparative seriousness of  offences presented at police stations considerable experience would be needed.  Considering the current  minimum number of sittings required of a J.P. is 26 half days annually new colleagues take at least two years to get up to speed.  Newly appointed with some training they would be pawns in the hands of police. 

2.Court sittings in the evening and weekends.  
This change would, according to these very clever people at Policy Exchange, encourage younger volunteers to spend evenings and/or weekends away from their families and sit in court.  Of course all the other agencies where people are actually paid money to participate in court proceedings CPS, Police, Victim Support, Admin Staff, Security Personnel,  Defence Advocates etc etc would immediately agree to such innovation and money would be found to allow this.

3. J.P.s retire after 10 years on the job
 It goes almost without saying that those with experience in a highly complex second occupation should be fired at the peak of their powers.

4.”Magistrates’ Association should devise a new training package for 500 or so ‘problem solving’ magistrates and judges, specialising in dealing with people with drug and alcohol addiction”.
 I understand that there are already thousands of such people. They are known as social workers and/or probation officers although this government is rapidly reducing the ranks of the latter profession.

5. The creation of Justice Hubs 
I think “pie in the sky” describes this.

The executive of the M.A. in giving the impression that it has some support for  this nonsense shows that it is not fit for purpose.  Even turkeys don`t applaud the farmer on December 24^th. 

BRING BACK THE WORKHOUSE

I have opined here from time to time of the inadequacy of the criminal justice system when involved with many of the offenders whose lives are ruined by addiction and who are responsible for an estimated 70% of criminal activity.  Great numbers of them, if they have accommodation at all,  are usually housed in conditions where there is no permanence or support to assist their condition.  Mental health services can assist only a small minority of these people.  They spend their welfare money to obtain their drugs of choice and commit petty crime to live the rest of their poverty stricken lifestyles until their next court appearance.  This case reported in the Nottingham Post is repeated in substance many times daily in almost every large town in England.  Therefore is there not an economic and social argument to bring back the workhouse where, under appropriately qualified supervision, such miscreants could be offered basic housing where they could sleep with security and be induced to forgo their daily fix?   The costs would surely be worthwhile considering the unseen and off the balance sheet costs of their being in and out of the criminal justice system until the end of their foreshortened miserable existences.

NO RESPECT FROM HMCTS

From time to time my reader might have got the impression that my enthusiasm for this job is on the wane.  Being an astute individual he would be correct.  One of my moans has been the attitude of HMCTS towards us.  This badly managed organisation  considers us  as unpaid employees rather than appointees who are often out of pocket in offering ourselves to what used to be a very worthwhile voluntary position.  An example of this attitude is demonstrated by the fact that if we cancel a sitting it is logged into the system of statistics employed by HMCTS and presumably collated with other information held on us as  individuals.  But if said organisation cancels one (or more)  of our sittings that incident is  not logged.  That information came to me directly from those responsible i.e. the bench support team.  At a recent sitting a relatively new colleague, quite absorbed by a trial on which she had recently sat, told me that when she asked the self same personnel at the bench support office  to be rota`d to sit on the sentencing bench for that offender’s  next appearance she was told quite bluntly that it would be that team which would decide whether or not she could sit and not the J.P.  This decision is extremely disturbing.  In fact it is a bloody disgrace.  I told my colleague that J.P.s have the same authority and powers as a District Judge and at least two of them in the past and our current bench chairman have confirmed to me that within normal parameters of bench composition every effort should be made by a bench support team to accommodate such a request and that the response of the individual concerned was quite inappropriate.  Another example of the instructions which apparently have infected the manner in which admin staff have been told to regard us happened about three  months ago. 

As a chairman, like all my colleagues, I expect about 25%-30% of my rota`d sittings to be as a winger but when I offer “extras” I offer to sit only as a chairman.  One day, however,  having noted in my diary an extra sitting, I received an e mail the day prior informing me that that particular extra sitting would be as a winger.  I told the bench support team person that in that case I declined to sit whereupon she said to me, “I must remind of the rule  that you cannot choose not to sit as a winger if that`s where you are allocated.”  I told her I didn`t need reminding of any rule and that if I offer an extra sitting as a chairman only and that allocation is changed by her team then I am under no obligation to fulfill that sitting; it was a voluntarily offered additional sitting to assist the court.  That was the end of the matter but it seems that conversations like those  could only have happened because instructions have been sent by HMCTS on how relationships with J.P.s must be handled. 

Legal advisors are already in acceptance of an employer which treats them as numbers to be deployed at the whim of that employer and whose status as lawyers has now no significance whatsoever.  They are a workforce whose moral has shrunk to zero.  Increasingly my colleagues are coming to the realisation that they too are held in similar disrespect by HMCTS.

SOME THOUGHTS ON SUSPENDED SENTENCE ORDERS

There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.

Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.

As far as magistrates` courts are concerned some relevant figures for the Y/E September 2012 are that 1,113,388 offenders were sentenced.  Of those 68,942 received custodial sentences of which 23,331 (34%) were suspended.   What I cannot find from the above  figures is the number of those who have breached their suspended sentence orders. 

The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of  a suspended custodial sentence is a very hot potato. We can only chip away to its underlying principles as best as we can in order to use it justly for all involved.  

VALENTINE`S DAY MUSINGS

Of all the recent press releases from the Ministry of Justice perhaps the most heartening was that issued earlier this week reducing the period during which offenders will be required to inform potential employers of their criminal record. Having been an employer for much of my working life I am well aware of the arguments opposing such a change but there is no doubt in my mind that such a proposal can do more for the rehabilitation of offenders than any amount of classroom therapy. With money in their pockets from gainful employment the likelihood of acquisitive criminality by offenders is going to be much reduced.

Crime recording mistakes in Hertfordshire Constabulary are caused by “inexperience, naivety or misunderstanding” of the complex rules rather than “unethical decision-making”,  says the deputy chief constable of that constabulary. My inexperience, naivety or misunderstanding of how police forces conduct their business leads me to believe otherwise.

During lunch time in the summer months in our retiring room I have noticed that some colleagues strip right down to skirt and blouse and occasionally even open a top button or two to allow themselves to cool down......and that`s the men.......but seriously it seems that in Bosnia and Herzegovina more drastic action was taken by a judge suffering from the heat last summer.

County Durham magistrates` courts are in line for a shake up such has affected the administration of summary justice over all of England & Wales since 2011. Courts are being amalgamated and offences centralised by type irrespective of the transport difficulties and costs involved for defendants. For anybody involved in the administration of justice in this country when it`s time to put a cross on the ballot paper next year consideration should be given to the savagery with which access to justice has been curtailed for millions of people by the actions of this government.

It`s a strange world sometimes. Officers from the Police Service of Northern Ireland (PSNI) are to begin the process of re-interviewing witnesses as the force’s criminal investigation into the events of Bloody Sunday gathers pace. During my professional life I was consulted by an ex member of the Parachute Regiment many years after the events of that dark day. In the course of conversation he told me in a quite matter of fact manner of how he and his comrades did indeed shoot un armed marchers when they were so ordered to do. I recollect trying to proceed with the consultation as if he had been remarking on the weather.

The Ministry of Justice has published “Proven Re-offending Statistics  Quarterly Bulletin April 2011 to March 2012, England and Wales”. Those with the patience and fortitude might wish to study the document  bearing in mind that it is with such tables that the ministry will in due course be attempting to show that its incoming payment by results for the rehabilitation of offenders will have been a success.

Greater Manchester Police for many years has had a record of unsavoury administration and unacceptable actions by its officers from top to bottom of its ranks. It seems that problems there, far from being brought under control, are continuing. Quite simply it seems sexist, racist and homophobic attitudes are endemic in that organisation.

Since this is Valentine`s Day my memory goes back to my early teenage years when on my return from school I would look with eager anticipation to see if the postman had delivered any unusually large envelopes with my name hand written on them. I don`t know if I would be pleased or disturbed if similar were delivered later today.