GRAYLING ALWAYS KNOWS BEST

Amongst the many criticisms here and elsewhere over the actions of Justice Secretary Chris Grayling is his stated intention to limit the availability of public funding for judicial review thus reducing the occasions on which individuals or organisations can challenge the legality of government policy. As with his changes that have rendered legal aid unavailable for many criminal and civil matters we are rapidly approaching a situation where there is one law for the rich and another for the plebs. The mindset of the Secretary of State can be seen all too clearly in his remarks today in response to the failure of the Plantaganet Alliance when judges rejected their plea that Mr Grayling is under a legal duty to set up a wide-ranging public consultation exercise to decide where Richard III`s  final resting place should be. I am not qualified to question that decision but Mr Grayling`s subsequent remarks should be noted; “I have been very clear from the start that the decision to grant an exhumation licence for Richard III was taken correctly and in line with the law (my italics)......I am, however, frustrated and angry that the Plantagenet Alliance - a group with tenuous claims to being relatives of Richard III - have taken up so much time and public money. This case, brought by a shell company set up by the Alliance to avoid paying legal costs, is an example of exactly why the Government is bringing forward a package of reforms to the judicial review process.“

So there you have it......if a government minister says that a decision is in line with the law then that is final. Don`t waste tax payers` money on futile attempts to prove that errors have been made. Why wasn`t Grayling made Trtansport Minister and he could have made the trains run on time.

PRAGMATISM

Jacob, whose immigration status was unclear, had arrived here two or three years ago from a central African country. He was about 5ft 7" flanked by two security guards and quite dishevelled...not surprising since we later found out he`d been on remand in custody for four weeks having twice breached his bail for sect. IV public order offence for which he was before us for sentencing after pleading guilty as his trial was about to begin.

The facts were that in the middle of the afternoon two months previously he had approached a parked car as two women had just got in and mouthing misogynist abuse had attempted to prevent the passenger from closing her door. The two women were truly terrified but further possibly more serious criminality was prevented by a passing stranger`s forceful intervention and the prompt arrival of police who coincidentally were on the street [of Jacob`s family home] to speak to the defendant about breaching his bail on another matter.

His "previous" showed that he had within the last six months been cautioned once and imprisoned once for assaulting his partner. His sect. IV offence was committed in the street where his bail conditions for the second assault had prohibited his being. He had been remanded two days before pleading guilty and being imprisoned for that assault. His lawyer in mitigation asked us to remember he was drunk at the time and distraught about not being able to return to his partner. We reminded him that being drunk is an aggravating feature not mitigation....many lawyers pull this one as if we don`t know how to treat that factor common in many offenders. He also suggested we deal with the matter on the spot by considering how long Jacob had been on remand ie "time served". Our job of sentencing was made more difficult by not knowing how many days he had actually served for the assault before being released early from prison. Part of his period inside would have included sentence for assault and remand time on the sect. IV. Fortunately enquiries to the prison cleared that gap in our knowledge. We retired to consider his sentence.

"Time served" allows a defendant who has been held in custody on remand who would otherwise have been fined or given a custodial sentence to have the time spent in prison considered as sufficient to have paid his dues to society and to be released immediately or to be reduced accordingly. This matter was far too serious for a fine to be considered. Sentencing Guidelines indicated a minimum of 200 hours community payback [unpaid work] or a few weeks jail if the offence were so serious. He was borderline. On the basis of a structured decision we were considering the exact number of hours when we re-visited the reality of the sentence; he had already spent more time on remand than would have been the case if he had been jailed for the offence. It would be unjust therefore in effect to punish him twice. We could not allow "time served" on a community penalty so we sentenced him to ten days custody meaning that he would be released as soon as the prison had done its paperwork.

This was a pragmatic approach brought about by the seemingly illogical gap in "time served" regulations. There are those who would prefer magistrates to follow very strict sentencing guidelines and deviate at their peril. We announced in open court our reasons for a custodial sentence and the consequences. We considered that on that occasion as on others justice was done and seen to be done.

YOU COULDN`T MAKE IT UP

Although a day`s work could become routine for those of us who`ve been sitting for longer than some in government would want, surprises are never far from the public entrance. That was brought home to me when we began a trial for a relatively minor motoring offence. Although listed for a morning only the case ran until 4.00p.m. The defendant’s wife was an acquaintance of the complainant who turned out to be an ex lover of the defendant and whose current live in partner was an ex employee of the defendant who was almost certainly the current lover of his independent witness. And we had evidence from all of them.  We certainly heard more than we bargained for. Perhaps we should send a resume to the script writers of Eastenders but then you couldn`t make it up.

SIR PAUL COLERIDGE

I don`t sit in “family”. I admire those who do. My knowledge and imagination tell me as much as I want to know about the dysfunctional lives so many people are enduring and the consequences for the children of those broken relationships. I try to live my own life by principles which do not have a religion as their base. So even although Sir Paul Coleridge, recently a High Court Judge, has made headlines based on Christian values with his views and actions of broken families, only to be castigated by the Lord Chief Justice he has my sympathies for what they are worth.

There is IMHO a forthcoming backlash to be expected from Christians of all denominations on the apparent inconsistencies applied to matters where there is an input from representatives of Muslims in this country. Three million Muslim citizens are regarded by many opinion formers as a “community”. Such a term implying a group of people living in the same place or having a particular characteristic in common is surely misplaced in this context. For many years I was in business with a Moslem from East Africa. By his own words and actions he had as much in common with co-religionist immigrants from other parts of Africa or Pakistan as he had with native Americans. I doubt his opinions are uncommon.

As a descendant of immigrants to this country who arrived in the early years of the 19^th century I am as aware as any that successful nations require occasional regeneration without the widespread use of a sonic screwdriver. But it will be a miscalculation of wide proportion if the ideals of those who worship under the auspices of the religious heritage which is the basis of this country`s legal institutions feel that their belief system is being ignored or replaced.

TRIALS ARE NOT FAIRY TALES

From childhood we are conditioned to fairy tales and “happy endings”; when the hero gets justice and the villain gets his comeuppance. When we begin to understand the world`s realities we appreciate a sense of satisfaction in these outcomes. However as we mature most of us realise that life is not a fairy tale and that some heroes don`t get justice and some villains get away with their villainy. So it is sometimes in court.

Recently we had a case where the outcome depended upon the evidence of two unsavoury characters who happened to be man and wife and a defendant whose tale of woe was such as to arouse sympathy in even the most hardened of magistrates. We were forced to accept the evidence of the complainants partly because the defendant however hard he tried just could not provide a telling response. Indeed subsequent to his sentencing we discovered that as had been alluded to in the evidence of the complainants our defendant had some weeks previously been found guilty in his absence of a strict liability driving offence occasioned by the actions of the complainants.

We suggested to him unofficially that an out of time application to appeal against that other sentence might be an action to consider.

For us the matter was a salutary reminder that the facts presented at trial were the basis of our decision making however disagreeable we might have considered the outcome.

WITNESS SCREENS

I was back in court yesterday for the first time in three weeks but hardly enthused by the experience.  Following on from my previous post I am increasingly disturbed by the dismantling of what used  to be called the level playing field of justice.  This government in a not unexpected attempt to appeal to its UKIP leaning right wing supporters and using the financial melt down as excuse has made and is making determined efforts to show that it is hard on crime and hard on those who commit crime. The latest announcements on two knife crimes and you`re out of circulation seeks to overturn the sensible directions under Povey. See my blog 02/09/2011.  

There are other insidious changes now so routine that younger colleagues find it strange that I question them when they arise in court.  Yesterday we had inter alia   a first listing of assault in a cafe.  The complainant and defendant were strangers.  Indeed the former was a visitor to the town and she lived over a hundred miles distant.  When we were completing the case management form CPS told us she was considering safety measures  (screens) for her and we allowed 28 days for her to make an application.  My colleagues in later discussion questioned why I had indicated reluctance to the concept.  Screens are available if the quality of the evidence of the witness is likely to be enhanced by the protection offered. Historically an accuser was expected to face the accused.  Increased concern with domestic violence cases a decade ago ensured that virtually any application in such cases was nodded through.  Now it seems that it is becoming increasingly the norm for screens to be applied for in the most common of assault cases such as above.  IMHO this is a cause for disquiet. How many more of a defendant`s rights are to be surreptitiously withdrawn, withheld or to be rendered meaningless?    

TORNADOES, COMPUTERS AND PENDULUMS

So, holiday over and my friend`s house damaged by a tornado after we had left for Florida`s Gulf Coast experiencing the biggest,  baddest, wettest storms in living memory with over 12 inches of rain in three days.  So, I no longer go on holiday for a sun tan but……..

This piece is being written on a new Windows 8.1 computer with the latest edition of Word but the computer is faulty and after absolutely no assistance from Lenovo, it is being replaced next week by John Lewis. Being distinctly unimpressed with this Windows format whether or not I will switch to an Apple is a moot point.

Since this blog is based around the law as seen and experienced by a Justice of the Peace I couldn`t help but notice a piece in yesterday`s Times which said that that the  country`s chief prosecutor had warned that juries must be made aware that an alleged rape victim`s past sexual history, previous consensual sex with alleged offender, style of clothing or state of inebriation must not be considered as a defence to the charge.   In other words the propensity to behave in a certain manner by an alleged victim is not to be considered as is the bad character of a defendant where propensity to offend can be placed before a jury by the prosecution.

In some respects I consider that the concept of “victims` justice”  has reached the social pendulum`s maximum swing.  It will take only a very few miscarriages of justice for the rights of defendants to be re-considered.  Perhaps the trials since the Savile revelations are an early signal.

HASTA LAVISTA

It is widely known that Windows XP is now in effect ex Windows XP. I have been using mainly an eight year old desktop and also a ten year old notebook as my main and back up computors both running XP Pro service pack 3 and supposedly virus protected. Indeed the desktop came originally with Vista installed but I had XP substituted instead.  Last week a trojan caused my desktop to go gradually down from having to start in safe mode to now not booting up at all. Today my notebook is operating only in safe mode but for how much longer I don`t know. I am off on a fairly long holiday next week and no more posts will be appearing until the second week in May when I hope by then to have mastered the workings of Windows 8.1 operating in a new all in one machine.

Hasta lavista baby; I`ll be back.

POUNDS, PENCE, BLACK BALLS AND FAIRNESS ON FARE DODGERS

It has been an interesting few days for observers of legal news as it impinges albeit indirectly on the daily activities of magistrates. Nigel Evens, a high ranking Tory politician who has admitted to behaviour which should shame anyone  who has a seat in the elected legislature of this country but who has been cleared of activities for which he was sent to trial, has railed against the imposition of legal costs of his defence which, he claims, will empty his piggy bank of his life savings.  There have been arguments in the media that the CPS was acting unfairly in hiring a top class Q.C. to argue its case.  This is untenable.  If  CPS had lost the case and it had been led by a less experienced barrister the cry might have been that inexperience had allowed a guilty man to go free.  The CPS must stand by its own decision making process including the decision whether or not to charge on the evidence at hand and the prosecution code of conduct. But, and it`s a big but, the other two ramifications of this trial and verdict are more open to reasoned debate.  There has been a suggestion often repeated  subsequent to such acquittals that there should be anonymity for those accused of sex crimes as there often is for the complainants in such cases.  When open justice in this country is subject to ever increasing salami slicing by the twin bacon cutting  blades of  sacrifices to “victim centred justice”  and anti terrorist orientated secrecy another avenue to apply somewhat oppressive witness protection measures for an accused would be a step too far.  Indeed I would posit that anonymity for an accuser has already been taken beyond what is reasonable.   On the subject of the costs to be borne by an acquitted defendant there is IMHO a strong case for  reimbursement of legal expenses incurred in that acquittal.  If CPS employ a silk the diminishing principle of the level playfield should apply and if a fellow silk secures a not guilty for his/her client tax payers` funds should be available in recompense for the defendant. 

Fare dodgers are commonplace in the docks of magistrates` courts the length and breadth of the country.  Depending on the actual charge they are usually  punished by a maximum fine of £500.  The case of the City financier who agreed to an out of court  repayment of  £42,550 plus costs instead of a prosecution in court  has raised eyebrows.  It could be argued that his wealth (he paid the total sum within a few days) allowed him preferential treatment and the avoidance of a criminal record.  On the other hand his payment into public coffers was of direct benefit to tax payers.  After all the hundreds of thousands of fines handed out to those on welfare benefits are calculated according to their means even allowing for their being convicted which this chap has evaded and sometimes are out of kilter with the offence  eg a fine of £110 for having no vehicle insurance when the costs of insurance can be three or more times more expensive.  It seems odd that the case was not pursued to its logical conclusion.  Assuming the evidence was overwhelming a guilty outcome would have allowed the railway company to ask a court for compensation for lost revenue.  Perhaps that not being the case the prosecution considered settlement was the best outcome in the circumstances.  We`ll probably never know.    

And finally a bit closer to home and the following  of political correctness by the Magistrates` Association takes it a further step along the yellow brick road.  The Association has long had a policy of offering honorary membership for senior judges.  There are self contained arguments against this policy on grounds that are pertinent to the realities of the situation. At the last AGM in October six senior members of the judiciary were co-opted as honorary  members:- the Rt Hon The Lord Mackay of Clashfern KT FRSE, The Rt Hon The Lord Irvine of Lairg, The Rt Hon The Lord Woolf, The Rt Hon The Lord Falconer of Thoroton, The Rt Hon The Lord Phillips of Worth Matravers, and The Rt Hon The Lord Judge of Draycote.  It has now been decided  that honorary membership should be abolished.  That decision has come about because Lords Irvine, Phillips and Woolf are members of the men only Garrick`s Club and rather than blackball those three for their  apparent  misogynistic tendencies in daring to belong to a gentleman`s club  the rules are being changed.  Strange or not so strange to report there is no mention of this decision on the Association`s members` section of its website or else I`ve missed it within its nebulous labyrinthine structure.

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.