BREATH OF FRESH AIR

Part of the stimulus doing this job when time wasting and inefficiencies can rob the soul of any meaning is hearing from colleagues or reading of a procedure which has not previously been encountered.  It is of course of greater note when interesting legal argument is presented on an issue.  One example was during a recent sitting when counsel for the defendant applied for permission to refer to a newly arrived document in true Perry Mason style which he told us would go a long way to exonerate his client. After hearing more details and comments from our legal advisor we indicated that he could begin to cross examine the complainant basing such upon some information in the document.  It soon was apparent that the details being explored from the document which had been presented in the civil court on an entirely different matter were a step too far.  We cleared the public gallery and extensive argument was held on how the case should proceed. With the agreement of all parties we decided to go part heard until the judge sitting on the civil matter could make a decision on whether the document could be used as a basis for cross examination  in the magistrates` court thus revealing hitherto private information to a public gallery entitled to view proceedings.

When sentencing guidelines often suffocate original thought processes an opportunity to participate in and listen to detailed argument is like a breath of fresh legal air.

6 MONTHS CUSTODY AND £80 PAYABLE NOW!

The Ministry of Justice is at it again; more interested in headlines than the pursuit of a rational ethos in the application of all that pertains to an indispensible branch of government.  Not content with hammering errant motorists (the majority of payers) with a so called victims surcharge it has now levied such charges on those receiving immediate custodial sentences at the magistrates` court.  Such offenders are more than likely to have had an alcohol and/or drug problem as the basis of their offending and to be economically living from day to day at society`s lowest levels and as such be least able to pay a financial forfeit in addition to a loss of liberty.  The new rule will come in from 1 September, and will see those sentenced to 6 months or less ordered to pay £80 and £100 for those given between 6 and 12 months imprisonment by magistrates. It is expected it will apply to 43,000 cases per year. The government proclaims that “This change is the final reform pledged by the coalition in its bid to make offenders pay more to help their victims”.  I don`t sit in the youth court where existing financial penalties are often paid by parents who have lost control of their offspring.  Those who have been assaulted by their little darlings have been in the paradoxical position of having had to pay their little darlings` fines and surcharges.  Now those who have been victims of their children`s serious assaults warranting up to two years custody will have to pay the additional surcharge.  Kafkaesque is perhaps too simplistic a description of this “innovation”.

There is I believe some obfuscation where all this additional money goes.  It is somewhat similar to when the National Lottery was founded.  At the time we were assured that the cash raised would not be used for projects that required government funding but would be used for additional projects in the community.  Such was our collective gullibility at the time that we actually believed that.  There is no such charity as Victim Support registered with the Charity Commission but various organisations have been set up as per this site.  Perhaps the surcharge has been subject to audit by a non governmental organisation and perhaps not.  However with anything between half a billion and a billion pounds or more in fines, costs, compensation and this surcharge already uncollected  getting this money in would surely be a better use of any resources available at Petty France?

DOMESTIC ABUSE AND THE GIRL WHO CRIED WOLF

Professor Richard Dawkins, archbishop of atheism, set the cat well and truly among the pigeons last week with his opinion that there are varying levels of rape and that considering some such offending as lower levels of sexual assault might paradoxically lead to an increased conviction rate. A similar mode of thinking has been applied to the subject of “domestic abuse/violence” by Greater Manchester Police's Assistant Chief Constable Garry Shewan. An interesting article on just this subject has been published in “Police Oracle”. I have copied it below in full. Personally I have some sympathy with the logic of the good professor and the Assistant Chief Constable. I recall Aesop and his fable, “The boy who cried wolf” and recognise some similarities. But reader, judge for yourself and make your own decision.

A police and crime commissioner (PCC) has launched an attack on a chief officer for his distinction between cases of domestic violence and low-level domestic abuse.

Vera Baird accused Greater Manchester Police's Assistant Chief Constable Garry Shewan of "trivialising" domestic abuse and suggested there was no difference between aggressive shouting and extreme acts of violence.
ACC Shewan, the national policing lead on restorative justice, had said that in some rare cases it might be appropriate to deal with domestic abuse out of court via community resolutions.
He used the hypothetical example of a jilted boyfriend who had never been violent before but who, upset and angry, snaps off his ex-girlfriend's car wing mirror after being dumped.
Speaking on BBC Radio 4's Today programme, he said: "That is domestic abuse."
But he added that in a case like this the victim might merely want her ex-partner to pay for the damage, not for the case to end up in court.
ACC Shewan stressed that only a small number of cases were being dealt with in this way. In a statement, Ms Baird, the PCC for Northumbria, condemned his remarks.
She said: "Those who suffer from domestic abuse are not always victims of violence every time. 
"Sometimes they are coerced and oppressed by relatively minor conduct. Officers in Northumbria understand that they can be in the context of continuing abuse and do not trivialise it as this officer (ACC Shewan) seems to do.
"Victims need to have confidence in the system and know that they have the full weight of the law behind them." 
Ms Baird was not available to comment further as this article went live.

'Indistinguishable'

Asked to clarify whether Ms Baird differentiated between domestic violence and domestic abuse, her press spokeswoman Ruth Durham said: "Abuse is violence. They are both unsuitable for community resolutions and restorative justice."
Asked whether Ms Baird believed that shouting at someone was as bad as punching a person in the face, she added: "Her position is that domestic abuse is the same as domestic violence."
Shadow Home Secretary Yvette Cooper has said that police are too often dealing with cases of domestic violence by way of community resolutions, which could amount to little more than a "slap on the wrist".
However, by refusing to acknowledge any difference in degree between cases, Ms Baird, a former Labour MP, has gone further than others in her party.
PoliceOracle.com recently highlighted the case of a 16-year-old boy given a caution for criminal damage and domestic violence after dropping a jar of pickles in his home.
Chris Bath from the National Appropriate Adult Network said this demonstrated how trivial incidents could sometimes be termed as violence by police when in fact this was not an accurate description of the incident.
Frances Crook, Chief Executive of the Howard League for Penal Reform, has defended ACC Shewan's stance, saying the police had "got it about right by using their discretion".
She told PoliceOracle.com: "If it is a minor altercation, using some kind of community resolution is best for everybody." 
Ms Crook said there was a need to distinguish between domestic violence and domestic abuse.
The latter could be relatively minor, she said, for example Facebook harassment.

Victims' voices

Ms Baird's fellow PCCs have also stopped short of conflating domestic violence and domestic abuse. 
Tony Lloyd, a Labour politician and the PCC for Greater Manchester, has called for domestic violence to be made a specific offence to acknowledge its seriousness and make it distinct from other offences.  
Several PCCs are researching how police treat victims of domestic violence and domestic abuse in an effort to provide better support for them.
Suffolk's PCC Tim Passmore is working with academics from University Campus Suffolk to understand victims' experiences through the criminal justice process.
The Labour Party has pledged to introduce a Violence Against Women and Girls Bill "to place

ALCOHOL TAGS

It has been variously estimated that alcohol and/or drugs are the basis of around 70% criminal activity. It would not be unreasonable to assume that half that total of offending occurs when excess alcohol has been consumed. Some offences eg drunk and disorderly and drink driving are specifically related to the demon drink. Various measures have been and are being tried to reduce this scourge which has plagued society for millennia eg drinking banning orders or ASBOs which just shift the geography of offending. Last week saw the inauguration of a localised effort to deter some of those offenders where alcohol was considered to be a prime component of their criminal activity. It is being trialled in four South London magistrates` courts; Croydon, Lambeth Southwark and Sutton. This seems to be a very pro active and interesting initiative from the Justice Ministry which is not a description I have used very often. My one concern is that presumably the wearers of the alcohol tags and the tags themselves will require interrogation by the Probation Service or what remains of it in South London after what appears to be a disasterous re-organisation. Perhaps a member associated with that service might be able to offer further information.

A VICTIM CENTRED JUSTICE SYSTEM MAKES EVERYTHING OK....DOESN`T IT?

Enough has been written on the scandal involving Capita plc`s contract with HMCTS to supply interpreter services for the courts to provide future legal historians and others with evidence of how the world`s first and possibly finest and fairest legal system was brought to its knees by this and many other so called austerity requirements which have reduced the Justice budget by 25%. It would not be a big surprise if financial impropriety in Capita`s acquisition of Applied Language Solutions surfaces in a few years. Be that as it may another snippet of interpreter problems has made it to the pages of the Law Society Gazette. Notwithstanding Capita`s inefficiencies the anticipated economies have just not materialised. Add to that the enormous additional costs every time CPS is represented in court by an agent to overcome the deficiencies caused by 10% of its employees being cast out into the employment wilderness and one has a funding crisis just around the corner. The problem is that unlike similar situations in the NHS privatising all or parts of the courts service is not an answer. So this government insists that the courts have to pay their way and in addition to minor details eg having no ushers, over promoted and inefficient court administration staff, double or treble trial listings to keep everybody occupied and to hell with defendants` costs and inconvenience, that means that unless one is on the lowest income levels or facing the most serious criminal charges no funding is available for professional representation. In the civil courts it`s survival of the fittest and only relatively well to do litigants have the wherewithal to use a system which although it never offered a level playing field did to some extent allow for an equality of arms. But..........not to worry........with a victim centred justice system everything will be OK........won`t it?

IMPORTING FOREIGN CRIMINALS

On reading today`s government publication of prison statistics a colleague in London has pointed out to me that there is little mention of foreign prisoners in the system notwithstanding those awaiting deportation. It is hardly a state secret that the powers to deport  E.U.  citizens guilty of even serious crime are rarely implemented. My London colleague says it is unusual not to have at least one Eastern European on some charge or another when she sits in the remand court. Indeed she added the proportion is often at least 20% of those in the dock. Whilst her observations are of interest they are no substitute for hard facts. Perhaps in the mass of statistics there might be some comment. After all, a country which has seen an influx of (East European and South Asian) immigrants in two decades such a rate never having before been experienced in its entire history is not unlikely to have a fair share of criminals or those of criminal intent amongst their number.

The recent elections for the European Parliament have shown the rise of constitutional right wing parties although some of those espouse rhetoric bordering on that of the late unlamented BNP. They have achieved this position, UKIP included, because the major parties have steadfastly refused to address the question of immigration and multiculturalism. Those so doing have faced accusations of xenophobia and worse. Political animals and the tabloids will rush to fill any void in the political spectrum just as air will rush into a damaged vacuum tank in a laboratory. It is a dead certainty that the numbers of foreigners in British prisons will be a political debating point long before next May.

DOMESTIC VIOLENCE PROSECUTIONS

It would be interesting to know the statistics on the numbers of trials designated under the umbrella title of “domestic violence” which are categorised as cracked or ineffective. The reason for my curiosity is that IMHO some? many? DV charges are brought to our courts on thinner evidence than would be the case with other matters; eg assault, criminal damage, handling, etc etc. From statements by those in authority from Home Secretaries, Chief Constables to senior prosecutors and highly publicised pressure groups there is no doubt political motives are behind this prosecution policy and it is not difficult to understand why. Domestic violence is an ugly activity. Currently this descriptive term covers offences from common assault to murder although David Cameron has hinted that it might become a stand alone aggravating feature defined within legislation. Be that as it may as magistrates in the lower courts system we are sitting on the vast majority of such trials. My last such sitting had two cases; the non appearance or availability of the complainant and our refusal to adjourn caused one matter to be dismissed and the other concluded with a conviction although that could have been described as fortunate for the CPS because of certain technical defects. Looking back over my experience of the last year or so I would find it hard to conclude that more than 50%-60% of such trials actually went ahead. Is this a price worth paying or do others; lawyers or J.P.s have different opinions and experiences?

HIGH LEVEL FINES INSTEAD OF COMMUNITY ORDER: ONE LAW FOR THE RICH?

Following the Criminal Justice Act 2003 magistrates` courts were given the power to impose fines in two higher bands; Band D (where a fine is imposed as a direct alternative to a community order) can be up to 300% of relevant weekly income and Band E (as an alternative to a custodial sentence) which can be up to 500% of relevant weekly income. These fines differ from the normal fines imposed by the courts as they can be collected over a two year period; however, they remain uncommon despite the fact that courts must consider fining as an alternative to community and custodial penalties. It is surprising therefore that in my experience knowledge of their availability is not widespread on my bench.

A case before me and my colleagues a few weeks ago was a prime example of the usefulness of these higher banded fines. The offender, a female in her mid sixties, pleaded guilty to drink driving. This was her second similar offence in six years. In the retiring room we decided that she be disqualified for an appropriate period and then we discussed the form of community sentence which her offence merited. The suggestion that she be punished by a level D fine at its highest ratio; ie 300% of her relevant income was met with some surprise from my colleagues. Her means form showed a monthly income of £6,000. A new colleague offered his opinion that that form of disposal could be interpreted as one law for the rich..........My other colleague who was also previously unaware of these higher level fines put down that argument with some eloquence and the offender was fined £3,000 plus costs.

NO ALTERNATIVE

The woman, late twenties with an East European accent, was before us for sentencing. She was smartly dressed as if going out to dinner. She had been found guilty in her absence some weeks previously of two charges within a domestic context. She had denied receiving a summons although she had been present in court when being bailed to attend. We had a non report in front of us. Indeed it was the second non report since her trial. The probation officer explained that she had been written to twice at her address which was accepted as being her correct current place of residence to attend for interview prior to sentencing. For each appointment made a follow up text message had been sent to a mobile number which the offender had admitted as being that which she uses. No response having been received to the second appointment she had been arrested on a warrant. She asserted that she had not received any letters or texts from probation. Her “previous” included several breaches of community orders and seven convictions for assault the last two of which resulted in one suspended and one immediate custody of several months. Of a four figure compensation order made three years ago not a penny had been paid. Despite the mitigation scraped together by her lawyer we had no doubt that an immediate term of custody utilising our powers to the maximum was justified. On hearing her sentence she immediately went into a violent rage. Perhaps she thought that dressing smartly and smiling at the bench would secure her from her just desserts. However unpleasant I might sometimes find it when pronouncing immediate custodial sentences and however unjustifiable such people as the Howard League might argue are such “short” custodial sentences there are times when there is no alternative. Such was the case described above.

THE MYSTERIOUS WORLD OF POLICING

The last few days have produced a few interesting stories about the boys in blue. It seems that the recently amalgamated Scottish police forces now known as Police Scotland are more likely to be armed than some consider is necessary. There is also the practice of “stop and search” which has had the Met Commissioner recently on the defensive. In Scotland the cops do it an awful lot more often than they do in New York. It has been recognised that the Met`s policy was directed out of all reasonable proportion to black and brown skinned people. Considering that ethnic minority north of the border can signify ginger hair one wonders just what justifies those numbers. And while West Yorkshire Police have rejected all direct entry high rank applicants the Met has decided that if you want to join its club and patrol the streets of the metropolis you will have had to have lived in the great city for at least three years preceding your application.

What an interesting world we inhabit.

WHAT JUDGEMENT?

After the Coulson affair one would have thought that D.Cameron with L.Crosby at his shoulder would have been particularly circumspect in his choice of those he decided to appoint in his recent shuffling of the cards he intends to play at the next election. Perhaps he knew that his new Solicitor General had been found guilty by the Bar Standards Board of misconduct; perhaps he didn`t. Either way his judgement is once again called into question.

BBC SHOULD BE MORE COMMERCIAL

It`s well known that some bars and pubs use live sports events on TV to encourage custom. Sky TV is the most widely used format for this aid to business and consequently its commercial contracts reflect this in their pricing and the punishments handed out for breach of contract. BBC television licenses are fixed in price; £145 for up to 15 entertainment units. A publican in the East Midlands was fined only £135 for operating a TV on his premises without a license; a similar figure for householders using a TV without a license. With all the hoo ha about BBC TV licensing renewal structure surely it would make sense if that organisation is to continue to be publicly financed for it to follow Sky TV and make commercial locations pay an individually priced contract fee depending upon circumstances, turnover etc and thus reduce the burden on low income families.

PART 2

Arrived back yesterday for a two o`clock start and yet again a complainant is giving the CPS agent cause to request an adjournment. The upshot was that he refused to identify himself. All the while the defendant was looking quite smug behind the dock`s reinforced glass. The officer in the case, under oath, identified the reluctant witness as the person who had answered to his name at the address at which he was living when inquiries had been made by the officer. The agent seemed perplexed. She virtually asked the L/A in an audible aside as to what could be done. The chairman queried whether we should call the Spanish Inquisition. The case was dismissed and the defendant and witness  left the court together.

The remainder of our sitting was taken up by feeding off the crumbs of the four other courts sitting.  Not sure whether our non trials go into the "ineffective" or "cracked" column of the statistics.  Never mind......the three minor motoring offences for which one very stupid and two very arrogant defendants had appeared were in the "guilty after trial" column.  

WHAT MORE CAN BE SAID?

I shouldn`t be writing this; I should be in a courtroom listening to a trial. It is, however, the same old story. A CPS agent has received no file but has managed to obtain some papers from the officer in the case; a complainant has turned up and decides that she is not willing to give evidence and after a short confrontation with said agent leaves the building. Result..........case dismissed! We all leave at 11.00a.m.