WATER OFF A DUCK`S BACK

I hadn`t intended to post today but reading of the probation service`s trials and tribulations on other sites I feel that somewhere real criticisms of that service have been lost in a certain amount of self pity. Some of the first training courses I attended as a J.P. were centred around “structured decision making”. Indeed that general mantra has devolved into an almost tick box formulaic exercise under the Sentencing Guidelines. A key test of whether an offender should be subjected to a custodial sentence is whether the offence is so serious that only custody is appropriate. Assuming that the answer is in the affirmative the next question the sentencer must ask itself whether bench or judge is whether or not there are circumstances that can allow the sentence to be suspended. All too often pre sentence reports when concluding on a recommended disposal will canvass a community order or “if the bench does not agree then a suspended sentence order with unpaid work etc etc”. In my opinion this demonstrates the woolly thinking of so many of these writers. If they are aware that a custodial disposal decision must be made before any consideration can be given to its suspension a PSR writer should say so: i.e. custody but here are the reasons to suspend the sentence. If such personnel are unaware of the structure by which we sentence then they ought to be made aware and quick.

I have said as much in open court many times but it seems like water off the proverbial back of a duck.

SCHOOL (non) ATTENDANCE

The last couple of weeks have seen headlines in the media of “education this or education that”. Notwithstanding hot beds of alleged encouragement of pre pubescent extremism in Birmingham and compulsory nutritional requirements for school meals the old chestnut of pupils` non attendance is also back in the news. Earlier this week I had such a matter before me and my colleagues.

There are special allowances for the children in traveller, tinker, gypsy or romany families. There are, however, distinctions made between “settled” and “unsettled” families. The child in our case (aet.15) who was not in court was from a settled family but had missed two years schooling until he was enrolled in 2012. His father had done everything in his power to encourage attendance; he had attended all required meetings with education officials, had driven him to school every morning but no amount of persuasion could ensure the child was in a classroom for the requisite lessons. As he told us, “ Short of dragging him by his hair and chaining him to the classroom wall could I have done anything else.” The child was not in any way in need of mental assistance, his physical health was excellent although he was subject to some bullying owing to his being behind his peers in reading ability but that had been kept in check by watchful teachers. He had wanted to leave school at aet.16 to attend college. The school could not justify the costs involved in such a decision taking all factors into account. We felt some sympathy for the father but the law was quite clear and a case presented by the prosecutor and endorsed by our legal advisor was explicit. That case involved a child who had been subject to persistent bullying, was being treated for mental health problems and who had attempted suicide. Her parents had nevertheless been found guilty of not ensuring required attendance at school contrary to section 444(1A and (8A) of the Education Act 1996.

We fined the father who was of good character a small percentage of the £600 costs requested and a similar fine. We understood of course the law`s function  ensuring that irrespective of many factors its primary purpose is that every single child shall have the opportunity of an education and that that responsibility falls upon the parent(s) or guardian. Just perhaps the hurdle in such matters is a little high.

I`M A DUTCHMAN!

There seems to me so much more to criticise in the performance of the CPS and the inefficiency of our court`s procedures in the last year or so that the name of Jeremiah comes to mind. Last week amongst other matters we had a charge of assault in a domestic context causing actual bodily harm. The complainant was struck on her head with a rolling pin deliberately selected by her lover from a kitchen drawer causing her head to bleed. He had previous conviction of assault within the family.  Children were present. If convenience, cost or pragmatism were not underlying reasons for the matter not being charged at the correct level then I will be cheering on the Holland football team tonight.

KNIFE POSSESSION STATISTICS

Along with many others I often take a somewhat sceptical approach to statistics especially those related to crime. Sentencing statistics, however, are more likely to be what they appear; a true reflection of a historic situation. Readers may judge for themselves.

SUCCESS IS 50%

Even some judges are now voicing their concerns publicly that the Crown Prosecution Service is rapidly approaching a time when that memorable description “not fit for purpose” might be appropriate. For magistrates it has been obvious for over two years that this agency which has sacked at least 10% of its lawyers is failing in its attempts to stand still by running. Despite its much vaunted introduction of paperless working the decline continues. This was only too obvious to my colleagues and me not long ago when we had two matters of assault where CPS case consisted of statements only. We convicted one (on majority) and acquitted the other. From what we heard there seemed no reason why complainants could not attend; there were no withdrawal statements. Our impression was that CPS considered they could achieve convictions without live evidence. On that basis I suppose that 50% was for them success.

EXTREME?

I practise no religion but am a regular reader of the Politico/Christian blog "Cranmer" in which yesterday he  posted on the Church of England`s attitudes to parties of the right and the consequences for those ordained who are members of such parties. By extension and sheer logic he conjoins those attitudes to clergy of a UKIP persuasion. And what about Justices of the Peace? If a colleague of unimpeachable reputation professionally and personally were to reveal that s/he were a member of the BNP would that or should that be grounds for bringing him/her to the attention of the Lord Chancellor? And should the aforesaid politician take action against such an individual? And following the logic of His Grace how far should such such enquiry reach? Should it be extended to those on the extreme Left whose views might also be said to be outside the mainstream?

There is news today that the Court of Appeal is considering for the first time ever in modern times prosecution service`s application to take to a closed trial people whose identities are to be kept secret as also are the charges and evidence against them. For close to ten years magistrates and judges have been and are increasingly constrained by politically imposed sentencing practices known as “Guidelines” I fear that the ancient English concept of justice is being dissolved before are very eyes to such an extent that it will be unrecognisable by 2050.

OBSERVATIONS ON A COIN`S TWO SIDES

Knowing I sometimes am available at short notice, once or twice a month I receive a call from our justices` liaison office requesting additional sittings and as a high sitter perhaps I experience more of the variations in court experience which others might not.

The morning had two trials scheduled one of which required the services of an interpreter. After the usual expected delays we began about 10.20a.m. and it soon became obvious that there would be no time for the second matter. One glance at the case management form showed that no additional time had been allowed for the interpreter`s services. As far as we were informed all other courts were similarly overloaded and the other matter was adjourned to another date. So all those involved in a personal as opposed to professional capacity i.e. witnesses and defendants leave the building with less than a high opinion of our day to day judicial system. The professionals, police and lawyers, have no time for dismay; they are inured to the situation and in addition are committed to other duties in the afternoon.  Our afternoon displayed the other side of the coin. The case management form was being completed by the legal advisor during the first appearance of an East European defendant. He seemed fairly comfortable in English but did enquire of the odd word or two. The L/A immediately voiced her concern and noted that an interpreter would be required. When this was queried by the bench she responded by saying that she did not want a cracked trial owing to a defendant being unable to conduct himself satisfactorily on the day. We asked brief questions of the defendant re time in England, education level, occupation etc and repeated our opinion that we considered his language skills were perfectly adequate for him to conduct his defence. Our L/A was having none of it and an interpreter was ordered. “I`m not having cracked trials on my record,” or words to that effect was her reply.

Another day, another sitting.

WE SHOULD BE THANKFUL

When I was appointed one of the requirements on the application form was to declare which political party had had the benefit of my vote at the previous general election. I left the question blank and unanswered. Not long afterwards I received a letter from the Lord Chancellor`s Office informing me that unless I answered the question my application would be discontinued. I complied with his lordship`s “advice”. On the explanatory material at that time was also a statement that common sense was a requirement. I understand that that requirement is no longer a necessity owing to the belief amongst those who devise and supervise the appoinments system that “common” is an adjective which might have different connotations among different ethnic groups and what might be ”common” to one might not be “common” to others. Be that as it might we are where we are. The Ministry of Justice with many other government departments is now set upon the release of as many “initiatives” as can be tolerated prior to next May. Never mind the quality, feel the width is a candid description of much of what emanates from the press office at Petty France SW1. The latest such offering is published today. What strikes me is the fact that there is an apparent need to alter the law to encompass the mooted changes. Why on earth has our legislature allowed such gross nonsense to have become the current legal status quo so that Grayling must define his credentials by amending what should never have been promulgated?

Seen in the light of this and much else besides including the reluctant apologies of party leaders for ignoring the undercurrents which have flowed across many of the population for some years is it any wonder that UKIP is proclaiming itself the best thing since sliced bread. Perhaps we should be thankful that it is N.Farage and his cronies who have benefitted from the vote of the disaffected and not those akin to the fascists in Hungary and Greece.

A SIMPLE STORY

Of late there have been too many occasions on which owing to the ineptitude of the CPS and others the quality of justice has appeared strained. Defendants have walked owing to inefficiencies of both the court and the prosecution services. It is therefore rather refreshing when a sitting produces evidence that the concept of innocent until proved guilty is as much a reality now as it was in the minds of those who pioneered that revolutionary ideal.

Jenny was in her mid forties and charged with shoplifting at a high class store`s ladies` department. With a single somewhat unreliable and confused  witness to call CPS relied upon statements from a store employee and the arresting officer who apprehended her with the alleged stolen goods pictures of which were exhibited. At half time there was a submission of no case to answer.  Despite a member of the bench remarking in the retiring room that the defendant was wearing at least £1,000 worth of designer clothing, in a very short time we returned to court and declared the defendant not guilty whereupon our legal advisor presented another list dated a couple of months earlier where the same defendant was charged with another offence of theft and to which she had pleaded guilty. We were asked to sentence her on the spot for that offence but when we looked over her record we could see that she had over twenty similar convictions and some others not related. We asked for reports with custody an option.

 

She secured acquittal in the trial because the unconvincing evidence was not enough to convict beyond reasonable doubt. Perhaps in Scotland she would have been found not proven. A simple story perhaps but one that we should all consider to be an example of the bedrock of our justice system notwithstanding those who would seek to undermine it.

LIGHTER MOMENTS

Talking to a newly appointed colleague recently after his sitting on his first applications court reminded me of a couple of previous sittings in such a court some months ago. Amongst other matters there was an application for a search warrant on a property where there was thought to be evidence of illegal importation of rare birds. And then I thought of pigeons.

These rats of the air, carriers of various diseases we are told and scourge of street and window cleaners, are the polices` latest allies in the war against drugs. Not that they are replacing out of order radios with pigeons of the messenger variety, but like most of us they prefer warm feet to chilly toes. At the next applications court P.C. Plod had a warrant for us to approve a search of an upper maisonette where it was thought crystal meth was being manufactured in the roof space. Amongst the information given was that the sulphur fumes given off in the process were disturbing and causing nausea to neighbours. But, he added, the increased heat also a by product of production, had heated the roof tiles attracting enormous numbers of pigeons who had made their presence very obvious by their by products, not quite of production, but of their digestive tracts. That was certainly a first for me although a colleague that day remarked on a similar application during the winter when the information on a suspected cannabis factory apart from the dealer occupier was of the only roof in a row of snow covered terraced houses without any snow.

Such are some lighter moments of being a Justice of the Peace.

COURT INTERPRETERS AND CAPITA plc

The topic of interpreters in court and the destructive changes in the last few years have not featured here for a while but were a frequent feature at my previous site. However an article in today`s Law Society Gazette brought to mind a conversation I had with an acquaintance two years ago. It turned out she was a highly qualified Slovak/English, English/Slovak interpreter. Indeed she had officiated at the highest levels in the U.N. and the E.U. Until the take over of court interpreter services by Capita plc (I consider it unlikely that a few years down the line we will not read interesting revelations of their acquisition of that contract) she had been available at short notice for what is a rarely required language in police stations as well as in the courts. She confided to me that she and all her Slovak/English colleagues, fewer than ten, had turned their backs on the offer of work from Capita; the terms were such that they were almost insulting. She and the others had enough work from sources which valued their expertise.

Now, getting back to the article which has initiated this post, the language in question was Slovakian. Perhaps the higher judiciary really are out of touch with what`s happening around them which goes back to my previous post.

A QUESTION

The arrogance of the three main stream parties has been shattered by the sight of the British public disagreeing with them and showing that UKIP`s blokes like us could actually be taken seriously. To listen to the mangled responses of Cameron, Clegg and Milleband was almost as satisfying as the result itself. Is it any wonder that the beer drinking, cigarette smoking bloke next door image that outsider N. Farage cultivated has been so successful. Upsetting the complacency of the established political apple cart is unfortunately going to make no difference at all to the malicious and despicable changes to the legal system wrought by the party which prided itself on being the party of law and order; the party on which the little man could depend when in conflict with the state, the party which traditionally championed the level playing field in court for those accused of being in contravention of the law. The withdrawal of legal aid for many defendants in the family, civil and criminal courts, the ever increasing efforts to make the courts self financing as opposed to their continuing to be a historic pillar of our civilisation provided by the state, the emasculation of the probation service and the salami slicing of a court`s discretion at all levels from the magistrates` courts to the Supreme Court have been initiated by Cameron and his cronies. And we hear nothing from the senior judiciary until they are retired living off their state stipend. I understand the structure of our constitution and the traditional limitations between the branches of government but I would ask the question; is there not a time when active intervention by the judiciary is the lesser evil when compared to its silence?

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.