SUSPENDED SENTENCES AND PUBLIC PROTECTION

When sitting with colleagues recently appointed I occasionally remind them that we have a duty of public protection ensconced within the formulaic information overload that they are doing their best to absorb.  It is a function that is rarely if ever mentioned in any training course and one with which  most new colleagues can immediately feel comfortable as they are faced for the first or second occasion when the custody threshold has been breached.  For many the realisation that their decision means that a fellow citizen`s  liberty is being taken from them can be a sobering  moment.  Such decisions and the structured approach employed to achieve them are perhaps most significant when it comes to deciding if a custodial sentence can or should  be suspended.  The pressures on so doing are enormous.  At all levels from Secretaries of State to L/As via PSRs and trainers,  the lower courts in particular  are being “asked” to  employ some form of rehabilitative requirement and to eschew immediate custody.  The increased use of suspended sentences can be gauged from the table below.

For the year ended March 2013 figures for Adults(21 and over)  sentenced at Magistrates` Courts are alongside similar figures for year ended March 2003 in ( ) and 2006 which was the first year in which new legislation enlarged the availability of suspending custodial sentences:-

                                                                                                         

	Number sentenced	166,088	(178,450)	158,644
	Number given immediate custody	27,719	(29,691)	25,596
	Number given fines	44,279	(58,597)	43,583
	Number given community sentences	39,916	(47,284)	45,602
	Number given suspended sentences	10,843	(473)	4,621

    

                                    

                                                                  

                                                                      

In day to day practice the decision on whether or not to suspend is down to individual judgement of the members of the sentencing bench. An interesting example which perhaps encapsulates the process would have taken place this week at Hereford Magistrates` Court where an offender convicted of assault [in an apparent domestic violence context]  last month and sentenced to five months custody suspended was convicted this week of drink driving; the  fourth time  he had been convicted of a drink drive  related offence since 1996.  His suspended sentence was not activated because, according to his lawyer, “the drink driving offence coming so soon after the community order had been issued, work with the probation service “had not had time to bite”. 

Colleagues and others and  this blogger might have their own opinions but of course without actually being in court the full circumstances remain unknown.  My question is quite simple; was public protection considered as part of the structured approach to the decision?

DISCLOSURE AND BANNING SERVICE IN A FINE MESS

From time to time I have been asked by a newly convicted offender of previous good character whether or not his/her (minor) offence eg travelling on public transport without a valid ticket,  would have to be declared to interested parties, i.e. on job applications, professional or educational bodies etc etc.  It used to be simple enough to reply with some prompting if necessary from the L/A : not any more.  TheDisclosure and Barring Service operates under different  rules from its parent; the Criminal Records Bureau.  It appears that as with many arms length quangos its operating efficiency leaves something to be desired.  The Information Commissioner’s Office has today published  news that further adds to my increasing cynicism of the quality of the management of such organisations as the DBS. 

I ask myself whether the inefficiencies at the DBS and the many other problems at similar myriad agencies in the news over the last few years are on the increase or is it the case that increased investigation of these agencies, often by journalists, is bringing them to our attention.  Given the still to be determined results of the Leveson Inquiry I would rather have the tabloids and others with their sometimes lurid content  on my breakfast table if I so chose than “Hacked Off”`s  proposed edited versions.

A STEP TOO FAR

There is an old story that the ultra conservative Presbyterian ladies of Edinburgh’s Morningside district used to describe sex as that in which the coalman delivered coal.  Those were the days when the British middle classes kept sex in the closet.  High divorce and teenage pregnancy rates are a clear indication that there is nothing about sex that cannot be discussed in almost any level of communication.  However when discussion at the trial of Max Clifford in the Old Bailey centred on   the miniscule dimensions of his male member many members of the jury could  not control their laughter and so they were all sent out to recover their composure.     I haven`t yet seen any cartoons on this topic which seems made to measure for some sort of satirical observation.  Perhaps that would  still be a step too far........

FRUSTRATION

In the retiring room at 9.30a.m. to prepare for an all day trial.  At 9.45a.m. informed that the matter had been dismissed earlier that morning.  Secondary matter listed procedural only and after supping off a few dregs from an other court`s measly table signed out at 11.15a.m.  This is not all that unusual.  Frustration with a capital F does not go half way to describing how my colleagues and I feel.

FRANZ KAFKA IN SPIRIT AT THE HIGH COURT

It seems the spirit of Franz Kafka has been sighted at the High Court.  A recent decision meant that vulnerable people in the prison system, including inmates with mental health problems and women with babies, would suffer injustice following the removal of the right to criminal legal aid in many prison law cases. That  argument was rejected by their Lordships on the basis that the decision was political and the Lord Chancellor`s actions were therefore  not unlawful.  Phillippa Kauffman Q.C. acting for the charities which had brought the case asserted that, “People are not going to be able to adequately represent themselves.  "The cuts will also interfere with the right of access of prisoners to the courts”.  James Eadie Q.C. in a  response worthy of Kafka said, “If there was unfairness at internal hearings or reviews in the prison justice system, or before parole boards, civil legal aid was available for complainants seeking judicial review”.  In reply, Ms Kaufmann said judicial review was no answer because the changes in the system meant that, with prisoners now denied legal assistance, no one would know if they were entitled to bring claims against the prison authorities. These victims of unfair decisions will not know where to go. They don't have any lawyers any more to help them."

A fuller report is available in the Guardian.

ADDENDUM

Latest news from report in  Law Society Gazette is that the charities will take their case to the Court of Appeal.

INCOME OR ENVIRONMENTAL IMPROVEMENT?

Like tens of millions of others I was a teenage smoker with no thought as to the environmental effects of discarding used cigarette ends whether on the street, in a park or from a car.  And like many converts who take up a new philosophy on daily life I am now and have been for many years a rabid anti smoker spreading the gospel when appropriate and enduring the occasional hostility when so doing.  So when I read of smoker fined £200 plus costs of £124 and £20 surcharge by colleagues in Carmarthen I did not have undue sympathy for him as he could have saved himself £269 or more if he had promptly paid the fixed penalty notice issued for his misdemeanour. However I wonder whether or not the local council had observed all the guidance issued by DEFRA with the purpose of improving our local environment to our common betterment or in this age of local councils` requirement, so they argue, to maximise income where they can, is the employment of environmental enforcement officers (litter wardens) fining litter bugs another method of making up for shortfalls in council tax receipts?

POPULAR OR POPULIST?

It seems that today is the day of mea culpa from those on whose wisdom we thought we could rely.   Perhaps that should be rephrased;  politicians can admit their fallibility only when they leave office.  First of all Ed Balls hopes that by admitting his failings we will overlook Labour`s catastrophic spending in its latter years in power and hope they do better next time and then David  (I might be blind but I`m as hard as they come) Blunkett  regrets the problems brought about by indeterminate sentences.  The Attorney General, still in office and not to be left out, is forced to face the problems caused by the withdrawal of legal aid from many defendants. 

Perhaps every cabinet should by law have an appointed  minister without portfolio drawn by lot from the common citizenry with the only qualifications being an agreed standard of education, I.Q. and command of the English language.  The increased distance of the common man/woman from the verbosity and evasiveness of politicians as seen and heard on the Today programme or Question Time or Newsnight  is  disturbing and reinforces the superficial appeal of those with a popular (populist?) agenda.

KNIFE POSSESSION STATISTICS

For umpteen years governments of all shades have made it a priority to come down hard on knife crime.  As sure as night follows day the current occupants of Petty France have published thousands of statistics on knife crime,  the perpetrators and the consequent disposals.  Crime involving the actual use of a knife or bladed instrument is not covered by  figures published today: they refer only to possession.  I offer no opinions but for number crunchers the tables are available here.

RED IN TOOTH AND CLAW

It might be boring but it`s worth repeating; alcohol and/or drug dependence is responsible for around 70% of all crime in this country.  It`s also worth repeating that removing such people from the criminal justice system into a health care programme even without compulsion is sometimes frustratingly difficult.  Having regards to all that every day in every court in England a bench of magistrates has to decide on the appropriate disposal for one or more of those dregs of society.  Earlier this week it was my turn.  Martin  was 45 going on 60.  He had four pages of previous and many short jail terms for prolific minor offending.  His current address was a hostel in another town nearby.  He was before us for sentencing on assault, s.5 public order and criminal damage committed around a single incident.  His pre sentence report ran to eight pages and noted inter alia that for whatever reason his alcohol habit had never been specifically addressed by the courts.  We were told that he was awaiting his first payment from the benefits office, previous having stopped when he was homeless and or inside.  We decided that in addition to supervision and another order he should undergo an alcohol treatment requirement. It took us half a second to decide that it was a nonsense to impose costs.  So far so good but then we checked the law on so called victim surcharge and noted that we were legally required to impose such of £60.  Now £60 to many readers will buy a tankful of petrol or two theatre tickets or a ticket to Championship football match or………..  So this poor wretch has an amount which will wreck him to pay in 28 days.  The current Lord Chancellor and his short trousered advisors imposed this levy a couple of years ago so that “criminals” can contribute to society for their activities in a simply understood manner.  Previously it had been reserved as an addition to fines imposed.  Those sentenced to custody have more to pay.

If anything the M.O.J. has done since 2010 to persuade me that it is inhabited by aliens it is this iniquitous addition in the name of a just policy.  It is nothing but a feeble disguising of a truth;  that there are those in the Tory Party who are still red in tooth and claw.

DOMESTIC VIOLENCE PROTECTION ORDERS

I make no apologies today for turning the clock back but before going into more detail on what I have posted in the past I would draw my reader`s attention to what has resulted from precisely these matters. 

From 8th March 2014  legislation came into force allowing the implementation of  DomesticViolence Protection Orders (DVPOs) across England and Wales.  It is unlikely that many readers would have been aware that such game changing legislation was now in place.  I would refer now to my post of  09/04/2010 and the more detailed offering of the following week.  

This legislation was initiated by the previous government but it will be highly unlikely that the current occupant of the M.O.J. will publicise that detail.  It will be trumpeted as further proof that this government is tough on criminals and has the protection of vulnerable victims as its prime concern.  Whilst the latter consideration is of course most laudable the imposition of such legal hardware on those not found guilty in court of an offence the basis of which  is the foundation of the DVPO is IMHO a further step to the position where rather than guilt being proved a hitherto innocent party must demonstrate that  innocence.

When I was appointed part of my training was to emphasise that Justices of the Peace were as umpires to ensure a level playing field where the adversarial system of justice could be played out.  Increasingly it appears that that concept is being diminished in its importance to be replaced some might argue by placing the “victim” of crime as the centre piece of procedures.  Having the benefit of not being a lawyer my simple mind wonders where this is all leading.  Is there in the future to be some sort of 21^st century amalgam of the middle ages concept of justice and Sharia  where the offer of “blood money” has a long history?  Is the sophisticated, elegant and eloquent victim to have greater input into sentencing than one less able?  With the guidance on  and definition of domestic abuse being open to wider interpretation than previously those subject to its reach should be ensured that that level playing field remains level. 

As I have reminded new colleagues from time to time, we as lay  magistrates have in addition to other duties a duty of public protection.  We are representatives of the people; of our society; of our neighbours.  We might no longer be operating in a system of local justice so beloved of some and for which there is no longer any logical argument but unlike the professional state civil servants as are District Judges we are the nearest to a people’s  justice that is possible in a secular world of ever increasing central control. At a time where the integrity of police is quite correctly coming under increasing scrutiny the imposition of  Domestic Violence Protection Orders on the say so of an alleged complainant and a senior police officer is just the removal of another impediment to  the imposition of ever greater centralised control over the rights of free citizens.    

FROM P.C. TO SUPERINTENDENT IN 18 MONTHS

It used to be thought that in order to do the top job, experience in the industry concerned would be a useful asset.  In government eg occasionally there is a qualified doctor with ministerial rank at the Health Dept.  Today that person is Dr Daniel Poulter M.P.  Generally previous experience is not a pre requisite for a top government post especially with increasing numbers of M.P.s  having no job history outside the limited boundaries of politics and/or journalism the main exception being lawyers and even then the top lawyer`s job of Lord Chancellor is held by a man whose main work experience has been in television production.  It would seem absurd if an individual could be spring-boarded into the job of colonel in the army after less than two years of rigorous programming;  or perhaps a headmaster being appointed to a 1,000 pupil school with the same amount of preparation.  If I were a squaddie   or parent of a school age child I would view such proposals with a certain amount of caution, apprehension and trepidation to say the least.  But such is some of the nonsense emanating from the so called thinkers deep within the Justice Ministry and Home Office that very shortly the first trainee police superintendents will be amongst us. Assurances have been given that only the highest fliers will be accepted for the eighteen  month preparatory course and that failures will be easily got rid of  according to  Commander Tom Gavin  Vice-Chair of the Police Superintendents’ Association and part of the team designing the course  who is quoted as saying, “It (the training programme) will be very challenging and it will be very difficult to come onto the programme and easy to come off it.”  There is, to say the least, some opposition to this proposal from those within the inner circles of policing. Another voicing his concerns is   West Yorkshire Police Federation’s Chairman Nick Smart who said that the “hasty move” would threaten not only the safety of officers, but also the public. He warned that the move would have greater ramifications for internal promotion through the ranks and would adversely impact the credibility of the force. In an interview with PoliceOracle.com Mr Smart said: “You cannot teach experience and you cannot buy credibility and that is what they are trying to do here. It is a danger for our officers. If they do not believe in the commander or trust their decision-making the chances of harm and risk increase. “Operational commanders need to be warranted officers".

 I am certainly in favour of improving the quality of new recruits who wish to be in our police forces and thus improving the standard of those who aspire to the  highest  ranks but parachuting in outsiders at superintendent rank seems to me to be a futile short term stopgap to improve the quality of “management”. Similar “management” initiatives have been seen  eg within N.H.S. and closer to home in Her Majesty`s Courts and Tribunal Service.  I will leave my reader to consider whether this is a sensible action on the part of our current rulers. For my part I doubt such a scheme will operate for more than two or three years before some excuse is made for its abandonment but extolling the wealth of benefits that nevertheless accrued whilst it was operational…….metaphorical rags to riches to rags.

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.