On August 25th I commented on Freddy
Flintoff`s collision with the courts with regard to a speeding allegation. Contrary to my prediction he appeared before
a bench in Carlisle and not a District Judge. My title "One Law for Them..?" was apt but not as I had foreseen.
I commented on “exceptional
hardship” on January 31st and June 30th. This is
the argument that Mr Flintoff`s representative yesterday argued successfully. Bearing in mind there is only the news report
upon which to make comment I must say I am appalled by my colleagues` decision
to accept the argument. In very very
simple terms it is IMHO an argument that wealthy people can rarely substantiate. The term hardship refers to hardship caused
to others than the offender and it encompasses situations where that offender`s inability to drive for the
proscribed period is relevant. For a person of means, any and I mean any such inconvenience can be overcome by the
employment of a driver. There is quite
rightly a difference in the application
of the hardship “get out of jail free” card between those of average
income and the wealthy. The former might be unable to afford taxis to
ensure eg a sick person who is reliant
upon the offender can attend hospital appointments or other similar
arguments. An individual who can drive around in a
Bentley and who is recognised as very wealthy can easily afford to employ a
driver or contract a taxi service to substitute for the temporary status of
being disqualified. I have to admit to
being appalled by this decision. It
brings the law into disrepute and the bench chairman`s reported remarks are
completely misplaced; David Johnson, chair of the bench, said:
"Because of your position, the fact that you are well known, clearly the impact has to be on others,
more than you yourself." No doubt
in another court at another time an offender whose plea of exceptional hardship
is refused would have a right to comment, “So I`m not as famous as Freddy
Flintoff....”. To say I am dismayed would be an
understatement.
Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.
Friday, 29 August 2014
Tuesday, 26 August 2014
A LAW WITH UNINTENDED CONSEQUENCES
Domestic violence is a descriptive term; it is not
a crime. Domestic abuse is a descriptive
term; it is not a crime. Common Assault
is a crime. There are clearly cogent arguments that actions which constitute the
former description could be clarified in
legislation. It would not be unreasonable
for parliament to take such an approach.
The current position of defining assault in a domestic context leaves
loose ends. One person`s domestic context is not necessarily another`s. I remember
many years ago sitting on a bench
which was advised that assault involving two “distant” brothers-in-law sharing with their families a
very large house was to be considered a “domestic”. I disagreed in principle and my opinion was reflected in our sentencing of
the guilty defendant.
My colleagues, and I suspect, most lawyers are well
aware of the problems when such cases are often “s/he did”: “no I didn`t.” Often photographs taken by the officers
called to the scene are instrumental in a bench`s conclusion of guilt. With proposals from Theresa May that emotional
abuse could be construed as domestic violence the law IMHO is going where it
has no right of way. Couples within an intimate relationship which was the originally defined situation and which excludes
many existing “domestic” relationships eg parent/child, sibling/sibling etc etc are always subject to emotional variations; it
is the human condition. To legislate
name calling as an offence means that a tribunal of J.P.s or a District Judge(MC)
must be sure beyond reasonable doubt that harm has been caused by a defendant
to a complainant. In the normal context
of harm this will be almost impossible.
Of course proponents of such proposals will retort that controlling or
insulting behaviour can cause mental health problems of one kind or
another. That indeed might be true in some cases but
can such trauma be shown in a court of law to have reached the threshold
whereby a finding of guilt can be made?
I would posit that such legislation would inevitably be subject to the
law of unintended consequences and would cause more problems than it would
solve.
Monday, 25 August 2014
ONE LAW FOR THEM.........?
There were about 524,000 summonses for motoring
offences last year. Those who plead not
guilty by post are summonsed to attend for trial. For those who notify the court that the
proposed date is unsuitable and indicate any future unsuitable date eg for pre
booked holiday, an adjournment will usually be granted. Well; that`s the usual procedure. The purpose is to pursue speedy, simple,
summary justice. But if you`re a famous cricketer
it seems more favourable terms can be declared.
In this case, from the limited report, it appears that the defendant is doing the court a favour. One law for them............? And what are the odds that a District Judge
will be allocated this case when it does eventually come to trial?
Friday, 22 August 2014
WE FORTUNATE FEW
It`s often said that we who sit in the lower courts see before us the stupid ones; those who need lessons in how to shoplift efficiently, fail to wear gloves when trying car door handles, swear once too often at police officers and think speed cameras are all empty boxes. However some are simply people who fail or cannot connect to society; who for myriad reasons are outcasts. One would be lacking in simple humanity if a certain degree of sympathy did not intrude into the sentencing process irrespective of Guidelines which newer colleagues can sometimes tend to consider as sacrosanct.
Recently we had before us a youth of nineteen of previous good character who had pleaded guilty to possession of cannabis with intent to supply. His demeanour in the dock spoke loudly. He was about 5ft 6inches and pitifully thin. Wearing a slightly grey white shirt he stood with his shoulders hunched looking at his feet. His replies to the L/A were so inaudible that we had to ask him twice to speak up. In his mitigation his advocate told us that although he was arrested with fourteen wraps he had not sold drugs: he had given quantities to “friends” in order to buy their companionship. His life history to date, he added, was such that it was remarkable that he was not now in a very much worse state of being. We retired. He received the pronouncement of twenty seven hours at an attendance centre with barely a flicker. We who are generally fortunate to have grown up and flourished in the rich soil of our friends, colleagues and families are from time to time reminded from our privileged positions that there are so many not so fortunate. For some it`s a dog`s life.
Thursday, 21 August 2014
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