A NOT SO LEVEL LEGAL PLAYING FIELD?

"Innocent until proven guilty" is axiomatic for a justice system to be held in confidence by any society.   It could be argued that long term trends within our criminal justice whilst remaining loyal to the letter of the law are nudging ever so silently to impinge upon the spirit of the law. “Essential Case Management: Applying theCriminal Procedure  Rules” December 2009 combined with CJSSS;  Criminal Justice: Simple, Speedy, Summary a worthy  initiative of the previous government can sometimes illustrate the difficult situations for unrepresented defendants. 

 

I don`t suppose there are any J.P.s who are unfamiliar with an unrepresented  defendant appearing for trial  and for him/her to change plea owing to the last minute disclosure by the CPS of incriminating CCTV evidence.  Earlier this week my court during a bail hearing had before it a represented prolific offender on remand for other matters against whom the only evidence, according to the CPS, was from  CCTV  seen by police but not by CPS.  The defendant`s representative after taking instructions told us that as her client had not seen the supposed evidence against him his not guilty plea was repeated.  The rhetorical question put to her was that surely her client knew whether or not he was guilty.  When pressed to disclose the grounds of her client`s plea she informed us that drug addiction had affected his memory and he could not be sure where he was on the date in question.  He was remanded in custody on the current matter and a date set for trial.

“Putting the prosecution to proof”, is no longer tenable for defence lawyers.  Are my antennae too sensitive or is the level playing field just a touch out of kilter?

BEWITCH AND BETWEEN

Yesterday I described what is IMHO an anomaly in the manner in which reminders to comply with the requirements of a s.172 notice are handled.  On an extremely unusual day owing to the usual mix of incompetents, incompetence  and omissions we  sat also on a breach matter.  The offender had had an extremely traumatic upbringing in a war torn African country and had arrived here as a teenage asylum seeker. He was  now in his mid twenties with an offending history of public order and drug convictions.  He was before us for having breached his mental health treatment requirement.  The probation officer sought to persuade us that we should fine him rather than make his sentence more onerous or revoke and re-sentence.  His representative explained that although his English was of a high standard he could not engage with him with any depth. The purpose of breach proceedings is to punish those who do not take advantage of the disposals which have been offered in attempts to both punish and rehabilitate.  In this respect we encountered another anomaly in a system which is full of them although it takes a “perfect storm” for their existence to become apparent in the fog of legal jargon.     We decided to “punish” him by increasing his MHTR  from the current three months to six. 

Discussing the case afterwards in an empty courtroom all of us present were firmly of the opinion that a generation ago Mr X would probably have been offered a bed in a place of safety staffed by full time medical personnel qualified in the care of those with severe mental disturbance.  “Care in the Community” which so often oversees  the patient falling into the pit between the cracks in a failed system is long past its sell by date but with the increasing financial problems besetting the NHS it is unlikely that finance will ever again be made available for the long term in patient psychiatric care urgently required by so many.   In a similar fashion it is virtually a no brainer that the current cash starved justice system will ever return to the position it held in the minds of a previous generation of politicians; unlike politicians of the ilk of Maria Miller, recently resigned Minister of Culture,  who is quoted in today`s Times2 as stating when she made a case for arts subsidy that it was suitable for “venture capital” based solely on the “economic benefits” it would produce.To quote that Irish genious, “What is a cynic? A man who knows the price of everything and the value of nothing".


This is the kind of mind rot engulfing so many of our political masters (and mistresses) which allows the populist rhetoric of a certain N. Farage to so bewitch a nation.

SOMETHING IS MISSING

Sitting in court is never boring but sometimes it is routine; nothing of interest then,  like looking for a taxi on a rainy day, suddenly two come along one after the other. 

A morning traffic court consisted mainly of  those being prosecuted under s.172. I described such a sitting on March 27^th.  It wasn`t until a  more recent sitting last week that a previously unnoticed anomaly in the process hit me.  If police have had no reply within the 28 day deadline  to an initial notice sent to the vehicle`s  registered keeper a reminder notice is sent requesting that the completed form is returned within seven days.  Within that reminder is a little read paragraph stating that even if the return of the original notice appears to have crossed with the receipt of the reminder  the latter should still be returned fully completed to ensure compliance has been made.  The misinformation within what should be a simple  process is as follows:-  The statutory time allowed for compliance i.e. the return of the form s.172 duly and accurately completed is 28 days.  The additional time apparently offered by the reminder is a courtesy.  So the obvious problem as happened at that last traffic court was that the defendant had returned the original form on day 29 and one day later received a reminder which he ignored having assumed that the first and only form he returned would be sufficient.  He sent it without asking for proof of postage from the post office.  The police, according to the CPS prosecuting, never received that form.  As a bench we had two options as would any other bench in a similar case.  We could rule that the 28 day limit for receipt by police of a returned form   was not complied with, find guilt proven and perhaps in the extenuating circumstances  dispose of the matter with no costs and an absolute or conditional  discharge or we could find that within the apparent terms as offered by the reminder and having had sufficient but not conclusive evidence of the reminder having been sent within the extended period find the defendant not guilty.  As a bench we were split and there that story ends.   

But surely in such matters which are repeated thousands of times weekly  if the police sent a reminder well within the statutory period eg after 14 days fewer offenders would be caught out by their dilatoriness or is that too simplistic for the  boys in blue?  Can they not see that something is missing in their approach?  Common sense perhaps.

Part two of this tale will be for my next post.

CYNICISM

Over the last decade or so the Daily Mail reader  has become a euphemism for the eponymous  right winger.  For those old enough to remember,  it mirrors the image once conjured up of the flat cap wearing readers of the Daily Worker (1930-1966) now The Morning Star.  Whilst the latter tries with some vigour to manipulate chosen facts to its political point of view the once fascist leaning Mail seems now to be all too often getting its facts wrong in order to appeal to a hang `em and flog `em remnant of a Tory Party the increasingly ineffective leadership  of which is torn between its attempts of appeasement and its embarrassment.   An item in today`s Mail Online is demonstrative of this editorial attitude to fact.

I would never be described by associates, both personal and professional, by the pejorative term  “do gooder”.  On the bench like the vast majority of my colleagues I attempt to honour my oath of office; “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will."  And that means,  when it is appropriate,  sending shoplifters to immediate custody for the maximum term allowed in the magistrates` courts; namely six months.  For the Mail to stir up public mutterings against a supposedly “soft” judicial system  by falsely claiming that currently the maximum sentence is stifled by the fact that “current rules say shoplifters should not be jailed for more than six weeks "  is nothing short of disgraceful.  Indeed the whole article smells of having been prepared with some outside input. 

Having some intimate knowledge of the legal  system from the inside, as others within the system also do, I can make reasoned conclusions about matters such as mentioned above.  What is of greater personal concern is not having inside knowledge of what is behind the headlines of myriad other stories in the media whether on the subject of health, defence, environment etc etc.  As a paid up member of the Association of Eurosceptics since I was nine years old I can understand perhaps why the undimmed populist Nigel Farage was deemed to have easily won his contests with Clegg on  points decisions.  For a public facing a general election  a year from now this evident distrust of  the current political class  can be the beginning of a slide into a form of politics  more suited to Athens or Paris or Rome. 

APRIL 1st

Today is the second day in which the criminal courts` activities have been and will be severely disrupted by the non appearance of solicitors and probation personnel.  I am not a natural sympathiser of strike action and indeed could probably be described as a “Thatcherite” but I am vehemently opposed to the budget cuts affecting legal services and all that is encompassed by the term “law `n order”.   I am 100% certain that if this government manages to further curtail the rights of individuals when confronted by the power of the state in all its forms these rights will never be recovered.  For that simple reason I sincerely hope that those taking action today have the wherewithal to continue until some sort of acceptable compromise is achieved.

AN INTERESTING CASE RECOLLECTED

Recent retiring room discussions reminded me of an interesting case on which I sat as a fairly new magistrate.  A young  woman faced a charge of "using threatening, abusive or insulting words or behaviour ". She was not represented.

In the street she had been very drunk and the medic on the ambulance which had been called by a bystander could not persuade her to go to hospital so he called police and with their knowledge left to attend another emergency call. On their arrival her situation seemed precarious....she was in and out of consciousness and they recalled the ambulance. Before its arrival for a second time she appeared to be more lucid and began swearing and verbally abusing the officers who arrested her, took her to the station where she was charged. In her own defence she agreed she was so drunk she remembered nothing at all of the incident. She continued her denial under cross examination.

Discussing whether or not the CPS had proved the charge we decided that her intoxication went beyond an aggravating factor and that if we accepted her version she was without awareness, control or intent. However our legal adviser on hearing our intended conclusion and referring to the appropriate sections told us that if intoxication is self administered awareness of which the defendant had none must be considered as if not intoxicated and therefore she was guilty.

I cannot recollect having sat on a similar case since.

MUSINGS ON FRIDAY (2)

As another week draws to an end one can always find snippets of interest that demonstrate in simple terms the confusion that reigns throughout our justice system.  An embattled Justice Secretary is continually reliant upon his press office for the regular publication of information which he hopes will allow him to escape the shallow political grave which he appears to be digging for himself with his cabinet colleagues` silence for accompaniment.  Earlier this month the MOJ published   “Updated analysis of the impact of the Intensive Alternatives to Custody pilots on re-offendingrates.”  This document is, I suppose, an effort to counter the ramshackle road to ruin that was intended to transform the probation service into an efficient PBR  (payment by results) scheme to reduce recidivism.  For those so minded it is not recommended bedtime reading.  As so often happens coincidence is beyond control.    Members of the National Association of Probation Officers  will be taking strike action from 12 noon on Monday 31 March to 11.59pm on Tuesday 1 April and colleagues in London have just been informed that the 31^st March is also the start date of a pilot scheme scheduled to run for two months in preparation for the Big Bang probation changeover conjured up by Chris Grayling.  Apparently the effect of this scheme on London courts will be that the authors of Pre Sentence Reports will need extra time to complete the paperwork. There will be two lengthy extra forms to complete for each defendant. The purpose of these forms will be  to assess which provider the defendant will be under during their supervision i.e. either the National Probation Service or Community and Rehabilitation Company.  As a direct result  Oral Reports will take longer to do as both  the same forms have to be completed. Happy days indeed!

Like all bullies whether in school, on the street or in the workplace; when they are confronted by resolute opposition they are shown up as the weak specimens they actually are and government ministers are no exception.  The striking members of the Criminal Bar have shown just what results even white collar professionals can achieve from a system beholden to them for its effective functioning.  The aforementioned Secretary of State has postponed the planned 6% cut to fees paid to advocates in Crown court cases under the Advocates Graduated Fee Scheme, which was due to be implemented this year.  A full report in the Law Society Gazette is available here.

A couple of weeks ago an example of sentencing situations which magistrates face daily took place before a court presided over by  South Tyneside Magistrates and not by a professional government employed District Judge(MC).  The prolific offender was not given immediate custody as perhaps might have been the decision of another bench but  he was sentenced by three of his peers.  I doubt that a decade from now such an occasion will arise.  As far as I know no poll has ever been commissioned on whether the English and Welsh people would prefer to retain the current system of summary justice or would rather be tried and sentenced by that single professional judge.  This complete disinterest by everyone concerned;  the senior judiciary,  the Magistrates` Association, the Law Society, the Bar Council and the general public is the reason that on both sides of the House the salami slicing of our summary justice system will lead to its eventual direct control by government. 

The offence under section 20 of    Offences against the Person Act 1861 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm" and is punishable by up to five years custody.  At Gloucester Crown Court HH Judge William Hart was earlier this week  quoted as taking into account  a defendant`s means allowing him to pay £4,000 compensation  in deciding not to imprison him for biting off an innocent bystander’s  ear; a good Samaritan who had come to the aid of a woman apparently  being assaulted by the defendant who was her boyfriend.  A report is available here.  On a first reading I was amazed that HH should have taken such a line but he admitted at a previous case in 2012 to having made literally an error of judgement which resulted in further grief to an innocent member of the public.  It is to be hoped that the concept of “public protection “ might figure more highly in future sentencing exercises by the judge.  But on a second reading of these reports I recollected a case before me last year  of drink driving for a second occasion within three years.  Clearly the offender`s sentence fell into the range of a medium to high community sentence but after some discussion we decided to impose a Band E fine (five times weekly income) in the particular circumstances.   So perhaps I should not be over critical of Judge Hart.

s.172

s.172:- Duty to give information as to identity of driver etc in certain circumstances.  There surely must be changes in the format of this requirement? Heaven knows how many such notices are disputed in magistrates` courts owing to alleged non receipt and subsequent convictions appealed at Crown Court. We are familiar with the arguments against having the notices sent out as “to be signed for” post. The likelihood of massive changes in our postal system initiated by the sale of Royal Mail do not augur well for any reduction in the numbers who claim they did not receive the notice or the statutory reminder. If e-mail and/or mobile phone number were required information for V5 registration document and DVLA were prohibited from supplying such information to third parties perhaps we would have fewer cases before us. Of course there are many caveats to proposals which further invade our privacy but I don`t believe the current system can continue for much longer. 

All the above was brought to mind at a recent sitting.  We had listed six trials on failing to comply with s.172 and all the defendants bar one based their not guilty pleas on the non receipt of both the notice to inform of driver and the reminder.  We found only one  not guilty.  Two of those, in addition to six penalty points which made one of them a “totter”,  ended up with fine and costs totalling around £1,000.   Needless to say their faces dropped in astonishment.  It was revealing also that two of the guilty when asked to provide some evidence that they had left the address to which the notices had been sent (from the DVLA data on the address of the keeper of a vehicle) said that they had such evidence eg council tax or utility bill but had not thought to bring it with them.  Another of the guilty  had written on his own headed paper in response to the notice that the driver was one of two of his immediate family both now domiciled abroad and that both denied being culpable.  We did not consider that he had supplied sufficient diligence in his efforts to identify the driver.

One would have thought that with the disgrace of lying former cabinet minister Chris Huhne who was brought down by a s.172 offence the message might be getting through that the risks of being caught out are real and very costly. No doubt there are many apologists who reject the imprisonment of such offenders. There must be an unequivocal last resort of custody as the punishment for those who through their own contempt for the law whether by subverting s.172 or wilful refusal to pay council tax or court imposed fines undermine the very foundations of society.

THE ZEALOT OF PETTY FRANCE

Let me begin today`s offering with two statements: one is fact and the other is opinion; my opinion.  The fact is that the M.O.J. press office is rarely underemployed.  The scribes in that edifice in Petty France London SW1 roll out their releases with unfailing regularity and today`s is  no exception.  It is my very humble opinion that contrary to an initial impression anybody with knowledge of the underlying situation and recent history of such ministerial statements will see that behind the bland brownie points being offered to  magistrates the way is being prepared for their activities to be ushered out of the courtroom and into an office of one kind or another.   

A probation service which is being transformed on the basis of payment by results and is akin to a driverless train heading for the buffers is being ordered to offer its services to those on short (12 months maximum) sentences and my colleagues and I are being tasked in some so far indeterminate  manner to assist in their “rehabilitation”.  J.P.s are not social workers.  Our position is to do justice to all and that function takes place in the public forum known as a courtroom. . When, as is certain, the Magistrates` Association and other so called representative bodies of J.P.s endorse these recommendations they are effectively consigning to history the role of Justice of the Peace.   

 As per my post of 21^st March  27,719 offenders received immediate custodial sentences (6 months maximum) at magistrates` courts in 2013.  The numbers of qualified probation officers are certain to be reduced under the proposed new  contracts.  So we will have fewer such people dealing with all these new “clients”.  Such is the path of a Secretary of State whose actions are akin to those of a zealot and we know where such actions  lead:- destruction. Perhaps he should have been appointed Secretary of State for Transport and at least the trains might have been made to run on time.

FOOT IN MOUTH DISEASE

As a presiding magistrate I am only too aware that I have to think carefully in making any off the cuff remarks in court and there are many opportunities and occasions when such remarks are necessary.  Each occasion offers the possibility of going off piste to such a degree that it is not unlikely that somebody or other will find cause to complain.  Indeed within the confines of the court building a three second speech delay as in the Radio 1 presenters` handbook for beginners is a required tool for a J.P. in this most politically correct   arena.  All this leads me to the remarks made by HH  Judge David Hale at Mold Crown Court.  The usual brief court report is no basis for undue criticism but if His Honour`s remarks had been about eg a Pakistani immigrant and not a Polish one or another ethnic or national group member I venture to suggest that there would have been a possibility of these remarks reaching a wider audience. 

I am not unconcerned that we as Justices of the Peace seem to be  held to higher standards of behaviour than our senior professional colleagues  by those who oversee our conduct.  Perhaps my antennae are over sensitive or perhaps as lay magistrates we are more inclined to retain some facets of that ordinary fellow on the Clapham omnibus from which personality pool we are appointed.

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.