MUSINGS ON FRIDAY

Yesterday`s blog by Jack of Kent is as well presented a narrative of the current situation re legal aid, or rather the lack of it, as I have read.  The practical results of legal professionals making clear their disdain for what is happening in our courts were  yesterday`s actions in Liverpool and Newcastle.  I wonder when a magistrates bench will at least discuss the possibility of withholding  their court presence for just a single sitting.  Or perhaps a member of the Justices Clerks Society will stand at a bench meeting and order said bench not to discuss such matters.  Indeed some years ago such an individual attempted to stop discussion at a bench meeting where I had proposed a vote on a particular topic by trying to overrule the Chairman of the Bench.  He failed.   Justices of the Peace are in a unique position to echo a "community" view.  After all isn`t the mantra "local justice for local people".

Disciplinary hearings for most professional bodies take place in public and that is as it should be.  But there is a glaring exception and that is for police officers although recently the rules have been changed.  These are two of the first cases that can be reported.  But if you`re a Chief Constable and found guilty of misconduct at a closed hearing you can get your job back because the misconduct wasn`t "gross". 

For many years on my former bench Friday mornings in Court 6 were video courts where bail applications would be heard.  In the often chaotic situations at the two or three prisons which served the area it would be no surprise to be told by a prison officer that prisoner Q was not on their list of appearances and indeed was not listed as being in the prison at all.  Often the session would close where nobody.....the prison in question and the other similar establishments and also the solicitor representing knew the current whereabouts of Q.  It seems the opposite happened at Pentonville Prison in London who had a prisoner they did not realise was in their care.  Well...........nobody`s perfect..........

The final observation for today comprises a case that included that most common of sex offences, the iniquitous newly functioning court charge and the rather peculiar question put to the offender by a bench chairman.  The offender might be thought to have gotten off lightly for being convicted of exposure but his financial burden for escaping a more onerous and serious disposal will be a reminder for some time unless as is so often the case he fails to keep up the payment schedule.  But what really sets this case apart from most are the quoted remarks of the bench chairman who must have had a senior moment....."  Before the magistrates retired Mr Cinammon asked Gawronski if he had a large penis. He replied: “I have a little bit more but I do not know. Do you need to know the size?”  The report is here. 

WHAT THE JUDGE MEANT!

Blogging by magistrates came in for some severe criticism from the Senior Presiding Judge about three years ago. Content per se was not  the subject of such criticism but the very act itself. Others will have  judged the implications of such criticism. Those who lived by the sword were not to be surprised if they died by the self same instrument. Needless to say his threats of fire and brimstone were just an example of judicial hufffing and puffing.  Remarks by more senior judiciary, and for J.P.s all judiciary is more senior, from time to time go unreported except in the provincial press. To focus attention to what is already in the public domain, albeit unremarked, has long been a feature of this blog. Readers will have made up and I hope continue to make up their own independent minds on such topics. 

Most sentencing in our criminal courts is now contained in a little black book known as Sentencing Guidelines. Judges and magistrates are well used to making clear their route which led to their eventually pronounced sentence. Decisions on bail are also ensconced with guidelines based on the precept that all defendants, innocent until proved guilty, are entitled to bail. It is a matter of judgement that they should be remanded in custody when the bench has fears eg of interference with witnesses, committing further offences or failing to appear which cannot be allayed by any conditions offered by the defendant or on his/her behalf eg residence, tag, security etc. There are also situations where the judgement of the bench is to decide whether or not to accept jurisdiction on a matter which can be heard at either their own court or is more suited to being tried at the Crown Court. Even where such a case has been heard at the lower court a bench has the option to send the offender to the Crown Court for sentencing.  In the light of all the above it is remarkable to read the reported comments last October of HH  Judge  Jeremy Richardson QC at Hull Crown Court.  From his lofty perch he  publicly criticised local Justices of the Peace for putting the case in the hands of his court.  "Cases such as these should be resolved by the magistrates' court," said Judge Richardson. "Then, when issues are resolved, you apply your mind to the committal provision. "Crown court is purely a sentencing exercise. Stage one needs to be sorted entirely before stage two commences." He was not referring to a single decision. He made a generalised comment which in effect has denigrated his junior colleagues and IMHO has brought the judiciary into disrespect. The guidance on blogging to which I referred above contains the following, “They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.” It would seem, by that statement, that my criticism of H. H. Judge Richardson is more likely to damage public confidence in the judiciary than the remarks uttered by the judge himself. Two extracts from the Media Guide for the Judiciary might offer some illumination:-

“Making planned statements in open court.
Courts and most tribunals operate in public, and any comment made by a judicial office-holder in public session is regarded as open to reporting. This extends to comments made when there’s no reporter in the room, as long as someone has repeated it to them. Judges may occasionally read out statements in open court, for example commenting on misreporting of a case."

"Lord Mackay a previous Lord Chancellor has stated that” judges must avoid public statements either on general issues or particular cases which might cast any doubt on their complete impartiality, and above all, they should avoid any involvement, either direct or indirect, in issues which are or might become politically controversial”",

This begs the question whether or not public criticism of magistrates by a crown court judge is politically controversial. 

HEADS SHOULD ROLL AT BROXBOURNE COUNCIL

On June 29th I posted on the increasing number of quasi uniformed people patrolling our streets enforcing something or other on behalf of some council or other.  The wages for such employees are around minimum wage or not much higher and the educational requirements are commensurate with those rates of pay.  Discretion, judgement and good old common sense  are not necessarily part of the job description. Is it any wonder therefore when their jobsworth attitude leads them to situations where they are little more than robots doing what they are programmed to do; no more and no less.  However it is almost beyond belief that paid officials at Broxbourne Borough Council failed to take a realistic position on transgressor Luke Gutteridge and pusued him as a greyhound pursues the hare only for their case to be thrown out of court by magistrates at Stevenage.

It was precisely this type of authority gone mad which has led to the widespread disdain for traffic wardens even although we are all aware that some parking control is required in our towns and cities.  Only last year I was ticketed for parking precisely one minute into a time prohibited zone with ambiguous signage.  Like over 50% of others my ticket was overturned on appeal. Now recent pressure at Cabinet level has required traffic wardens to allow discretion to be applied in such circumstances.  Similarly there can be no reasonable  citizen who does not consider litter dropping a disgusting feature of our environment and that sanctions must be in place for those who disregard the advice to "take it home".  It is, however, giving powers of ticketing with financial inducements for those poorly paid council employees to issue as many as possible, without an emphasis on discretion which brings once again all those quasi uniformed little hitlers into the headlines.  Considering the reduction in cash receipts upon which councils have to balance their books those council tax payers in Hoddesdon should be demanding the heads of those officials which allowed this debacle to hit the buffers to the tune of £8,000  

ANSWERS TO A FEW QUESTIONS

Sometimes there are some seemingly simple questions of the state of our legal system and practices within it that seem to be without answers.  But...........sometimes the answers are available from poorly attended parliamentary debates or written answers from ministers.  There are four such question and answer replies here, here, here and here on topics of interest to magistrates and others perhaps.......enjoy! 

JUST WHAT IS THE MAGISTRATES ASSOCIATION?

I`ve been keeping a close watch of late on the activities of the Magistrates Association.  And there`s good reason to be interested; a sentiment which has been posted here more than once in the last couple of months primarily in that organisation`s quest to increase its income from new sources.  It might be a million miles from a FIFA situation but when a controller of services required  receives income from research supplied to organisations which provide such services at that controller`s  request albeit indirectly it is hardly surprising that eyebrows are raised. But today my observations are a little more factually based upon a combination of two comments in the media from officers of the M.A.

On July 4th The Times published a letter from the M.A.`s Chairman Richard Monkhouse.  I have copied it below:-

I posted at length on 02/07/2015 my opinion of the LCJ`s thoughts on the removal of the dock insofar as Magistrates` Courts are concerned.  It seems that my thoughts are way out of line from those of the esteemed letter writer above.  But more to my point today is his assertion concerning defendants being enclosed in a dock that "Magistrates.........have long voiced concern about its use and its influence......." From my own experience and from knowledge of others` opinions I would assert that this statement is pure fiction and is made from ignorance or to serve the writer`s own situation to ingratiate himself with the senior judiciary. In the remainder of the letter  he neatly puts an opposing view from the opening  in the style of a true politician. It is just another example of a few people speaking for themselves without the interest or care of the silent majority which for its own reasons let them be put in place.  

My second comment is based upon a podcast made on  by the M.A.`s CEO Chris Brace and Deputy Chairman M.A. Malcolm Richardson detailing the M.A.`s Board of Trustees recent meeting of May 19th.  During the podcast where mention was made of a drastic drop in income owing to an equally  drastic drop in membership fees from "retiring and resigning  members" no mention was made at all of possible reasons why members were resigning.  Retirements are self explanatory but one would have thought that an organisation would do all it could to discover why resignations were occurring and discuss it at a Trustee`s meeting assuming the podcast was  a full and frank  report. Presumably a full minute will also be available of said meeting or perhaps not.......I don`t know.  In any event any marketing expert would tell them that it costs perhaps thirty times as much to recruit new customers as it does to retain existing ones.  Whilst that is not an exact analogy it points a finger.  

Perhaps I can offer an explanation.  An organisation which appears to many of its members as a vehicle primarily for the agrandisement of a few, which seems to have little control over the destination to which government is taking its members  and which for decades has paid lip service to its members` needs for the services of a truly functioning protective organisation offering benefits of representation against possible accusations laid against said members is not worthy of annual dues.  Never mind..........M.A. has assets in cash of approaching £2 million and owns the freehold of its Fitzrovia headquarters which will be worth much more than that.  Where all that came from is beyond the resources of this blogger.  So don`t shed a tear when questions start being asked about its developing relationships with those newly set up probation companies to whom it is supplying research information at £10,000 a throw.  Perhaps Lord Gnome will have an answer in the fullness of time. 

JUST A VERY NAUGHTY BOY

Whilst an active J.P.  and also subsequently I have been surprised or perhaps amazed is a more appropriate description of my demeanour at how many magistrates, enveloped in the mushroom cloud that has been created to place victims  at the centre of the justice system, have forgotten that they must always be aware of the public interest and its protection.  Therefore I find it incredible that in this case of multiple speeding an offender has not been disqualified as a totter from driving.  It would appear that a plea of exceptional hardship must have been accepted by the bench and having reached that decision against all the odds a period of disqualification less than the usual six months was not even imposed.  To allow such an offender to continue driving even without a full report of the case before us is just the sort of sentencing that brings the bench into contempt. By treating him as a very naughty boy those involved do the office of lay magistrate  no good service.

KNIFE CRIME AGAIN

So..........here we go again just like clockwork..........a government promising to go down hard on those carrying  knives.  We`ve been here so often before that it appears to be a right of passage for newly installed ministers at Justice to proudly announce their latest attempt to make our streets safer although no one name is associated with this latest pronouncement.  

This was just one of previous attempts to deter and/or punish those caught on the streets.  For the numbers watchers reading this a comparison between last year`s and current figures might be of interest. The arguments, however, will not go away.  The Met Commissioner recently expressed his opinion that reduction in stop and search has hampered his force`s ability to take weapons off the streets.  Before the last Holyrood election in Scotland where the SNP won a majority Scottish Labour had promised prison for all knife carriers.  That proposed policy did not go down well with police in Scotland.  I would be surprised if south of the Wall opinions differ.

THE UNREALITY OF THE LORD CHIEF JUSTICE

Yesterday I posted on the silence of the senior judiciary regarding the unequal status of unrepresented defendants owing in the main to the withdrawal of legal aid for many in the magistrates` courts. Today the Lord Chief Justice is once more making his pitch for the abolition of the dock and the adoption of the American preceedure of having the defendant sitting in the well of the court with his advocate.  I wonder why he is pursuing this line of thought? He is repeating remarks he made in January.  Is it owing to the savings he thinks could be made?  He admits to the fact of unruly defendants posing a problem.  Oh really..........how perceptive of him.  He considers how  a court would  distinguish between those who would be the benefits of this new process and those who would not.  He doesn`t actually say that a dock should be kept in reserve for such circumstances.  Over my time on the Bench there were many occasions where only the secure dock both at first hearing and trial  prevented a defendant from running amok.  Perhaps from the rarified heights of his position he doesn`t realise that there is no security at most hearings in magistrates` courts. He speculates that such changes would lower court costs:- 

"One reason was expense — retaining docks for magistrates’ hearings was costly because it required old court buildings with a traditional layout to be maintained, instead of switching to cheaper alternative venues. The need for security staff to guard docks also added to the cost".


In that remark is he being an apolitical mouthpeace for his political masters? Every American court I have attended has had at least two armed police officers or state troopers in attendance.  I doubt His Lordship has that innovation in mind.

Until I was appointed as a J.P. I had a healthy respect for senior judiciary.  The more interest I have taken over the years in this subject the more I conclude that just as the Senior Presiding Judge in 2012 preached fire and brimstone to J.P. bloggers this archbishop of our legal system is as much out of touch with judicial reality as is his religious counterpart with society as it is and not as he would wish it.  For all his high falutin` talk his attitude to Justices of the Peace can be described at its best as one of tolerance.  I`d bet a pound to his Lordship`s penny that he has not discussed this "initiative" with magistrates under any of the formats available to him.  Respect is a two edged sword but I suppose if there is only one sword he who wields it has all the power............

NO LONGER EQUALITY BEFORE THE LAW

Is it at last time for the senior judiciary to make public with some force its concerns regarding the removal of legal aid for many defendants in the magistrates` courts  and participants in the family courts?  There will of course be a constitutional element to that question which I am not qualified to answer but there is also  an enormous public interest factor and misreading that ephemeral concept can cause misgivings and recriminations at the highest level as has been recently demonstrated.   Michael Gove is already over his honeymoon period as Justice Secretary.  Any goodwill  he had with natural Tory supporters from his long period at the Dept. of Education is   rapidly evaporating.  The legal profession is virtually united in its opposition to the latest situation regarding fees.  What smooth faced intern in his department who suggested he incorporate into his recent speech that wealthy criminal lawyers should offer to work for nothing thought might be the result?  In the past I have had a pro bono barrister offer assistance to me when I was appearing before their Lordships at an Appeal Tribunal.  He appeared prior to the hearing having, unknown to or uninstructed by me, been assigned my case by his clerk as a matter of his chamber`s policy.  His total contribution was that reading the papers he considered I had no chance of success and therefore left me at the door of the courtroom.  I won my case. But he had not been offering his services as a result of prompting by a justice secretary.  Imagine if, to increase the through flow of NHS patients, his counterpart at Health told medical consultants to reduce their private practices by half and spend the time saved at their NHS posts.  

Any successful business manager knows how to separate the wholesome and productive wheat from the unneeded chaff when making financial cuts to his/her organisation.  Michael Gove must convince his colleagues sooner rather than later that his department cannot be treated as the others are being treated.  Red ink on the Justice budget has not and is not going to bring blood to the streets but it is and increasingly will damage beyond repair what this country once held beyond price........that everybody is equal before the law and there is a level playing field upon which our adversarial system could be the place where the verdict of guilty beyond a reasonable doubt meant just that for the yeoman as well as his master, for the poor as well as the rich and for the uneducated as well as the educated.

POOR PERFORMANCE//NO PROBLEM WE WON`T COLLECT THE STATISTICS

Below is a recent exchange from Hansard.  Note the reply from the Solicitor-General.  It appears that it is easier and expedient not to collect statistics when these statistics prove embarrassing.  Recently parliament was told there are hopes to institute additional legislation for offences of "domestic violence". According to a recent Freedom of Information Request such statistics from the magistrates` courts are not collected...[this blog 19/03/2015] so it is rather awkward for those in power to start fiddling the law when they admit to having no figures to support their case.........or so they say.

Philip Davies Conservative, Shipley

To ask the Attorney General, what estimate he has made of the number of cases which were not able to proceed to their conclusion in (a) Magistrates' and (b) Crown courts as a result of identifiable errors by the Crown Prosecution Service in each of the last three years.

• Hansard source (Citation: HC Deb, 29 June 2015, cW)

Robert Buckland The Solicitor-General

The Crown Prosecution Service (CPS) does not maintain a central record of the number of cases which were not able to proceed as a result of identifiable errors by the CPS. Obtaining this information would require a manual review of individual case files which would incur a disproportionate cost.

And so the pattern of obfuscation is being repeated.   The above parliamentary answer is I suppose strictly accurate but as ever it comprises the truth and nothing but the truth.  The whole truth is that such numbers used to be collected...[this blog 29/11/2013]  but since current performance of CPS was recognised some time ago as being abysmal the answer from Whitehall Weasels appears to be to cease collecting these incriminating numbers.  

COMPULSORY J.P. RETIREMENT AT 70//DISILLUSIONED J.P.s SHOULD RESIGN NOW

Three and half years ago before my "old" bench amalgamated with two others we had approximately 260 members.  Early this year the number of J.P.s in the enlarged amalgamated bench was.........260!   During my last few years on the bench I was a high sitter; a situation that suited both the bench liaison officer and me.  On speaking to former colleagues since my retirement it appears that the number of two person benches is as bad as ever with recently appointed magistrates in many cases unable to offer more than the minimum sittings required.  In addition the baby boom retirees were and are  in the main experienced chairmen who from that experience were generally more capable of fulfilling the role than many newcomers to a system which now treats J.P.s as unpaid employees rather than government appointees; an insignificant matter of semantics some might comment but one which reaches into the heart of many who are disillusioned by the whole process of presiding over what is a "magistrates`"  court in name only.

I know of many former colleagues who were extremely upset at having been forced to step down on reaching the biblical three scores years and ten.  For some know alls to be pressing for J.P.s to retire after ten years service is a display of crass ignorance.  What specialised office rids itself of its most experienced practitioners after ten years?  It would only be a viable option for those who contemplate the time when J.P.s are no longer sitting in court but are farmed out to lesser positions "in the community". 

Thus it has come into my possession the authoritative answer from the Equality and Human Rights Commission to an inquiry that that compulsory retirement age might be unlawful.  The response is copied below.

25 June 2015                                                                                      

Dear Mr  #

Re:  complaint of age discrimination

Your request for assistance on behalf of #  in relation to his complaint of age discrimination was considered by a Commission Panel on 17 June 2015. I am sorry to inform you that the Commission will be unable to provide him with assistance in this matter.

Issues Raised

You complain that  #  has been automatically discharged as a magistrate as he has reached the age of 70 despite being of sound mind and not wanting to retire. You state that  #  wishes to work past the age of 70 and believes that he is being discriminated against because of his age in not being able to do so.

The Commission's criteria

As you may be aware, the Commission was established under the Equality Act 2006.  Its objective is to work to eliminate discrimination on the grounds of age, disability, race, religion and belief, gender, gender reassignment and sexual orientation.  It also has a mandate to promote the understanding of the Human Rights Act 1998.

You will appreciate that the Commission receives many applications for assistance in cases but we cannot take action on every matter that is brought to our attention. Therefore, it is appropriate that the Commission has a clear set of criteria and objectives on which its decisions are based.  These are in line with the Commission’s internal strategic priorities which are set out in our Business Plan for 2015/2016, Strategic Plan 2012-2015, Compliance and Enforcement Policy and Strategic Litigation Policy which can be found on the Commission’s website at www.equalityhumanrights.com 

The Commission provides assistance in very few cases and only in respect of those which meet our criteria. Having carefully considered this matter, the Panel took the view that a magistrate is required to retire on reaching the age of 70 since this is required by Section 13 of the Courts Act 2003. Section 50 of the Equality Act 2010 prohibits discrimination in appointing a person to a public office as well as the terms and termination of an existing office. Section 191 and paragraph 1 of Schedule 22 of the Equality Act, however provide that it is not a contravention of section 50 to discriminate against a person because of age if this is required by enactment, (this enactment being Section 13 of the Courts Act 2003).

Therefore, whilst we appreciate you bringing this matter to our attention, we are sorry but the Commission cannot be of any assistance in this case.

We appreciate that this is not the response that you may have been hoping for but we hope you understand the constraints within which the Commission operates.

We will keep our file of papers (except for any of your papers which you ask to be returned to you) for six years and on the understanding that we have your authority to destroy the file after that period.

Yours sincerely,

D. LAYNE (MS)

Chief Legal Officer's Team

Denise.Layne@equalityhumanrights.com

Telephone: 020 7832 7827

So there it is.  If you`re enjoying the job so be it.  If,  like many newbies I encountered in the last five years or so, you are hardly enthralled about the time you have to take off, much of it unpaid, from your employment and find the process in court not to your expectations pack it in now instead of trying to get by on minimum sittings which overburdens your colleagues. 

BALANCING THE BOOKS BUT AT WHAT COST

I recollect many years ago when I first visited New York in the 1970s  that one of the many things that surprised me was to find that many of the larger stores had guards armed with very large clubs standing at the entrance and patrolling inside.  It seemed that their presence was less to be a reassurance to shoppers in what was then a city of high criminality  but much more to offer an intimidating  warning to intending felons.  In England on the contrary the only uniformed presence on the streets etc apart from police officers was the traffic warden who was becoming an increasingly common sight on our high streets.  Their patrols whilst unwelcome by many were tolerated in the main owing to public consent and awareness of the  increasing necessity to allow rapid turnover of parking spaces.  

Over the last decade or so the sight of people in a quasi military uniform of black or blue cap and associated jacket and trousers has become a feature of our society.  However with the introduction of Police Community Support Officers with powers as below a turning point was reached in the principle of allowing authority  to cascade down from police to such an extent that joe public and many others had little awareness of where or when that authority could be applied. 

• Power to direct traffic and pedestrians
• Power to confiscate alcohol
• Power to confiscate tobacco from persons under 16
• Power to enter premises to save life and prevent damage to property
• Power to remove abandoned vehicles
• Power to issue fixed penalty notices (for example, cycling on the pavement, dog fouling, littering, graffiti etc.)
• Power to demand a name and address of a person acting in an anti-social manner
• Power to seize vehicles used to cause alarm
• Power to search property in matters relating to terrorism (with a constable)
• Power to search property in matters relating to terrorism (with a constable)
• Power to seize drugs

Traffic PCSOs have extended powers to help keep traffic moving. PCSOs only have powers when they are in uniform. PCSOs must carry a ‘designation card’ that describes their powers. PCSOs do not have a power of arrest but they can require a suspect to remain with them until a police officers arrives.The 'power to remain' can be exercised only in limited circumstances.

With police numbers reduced by 10% over the last five years and budgets cut to the very bone some of those charged with ensuring at least a modicum of security on our streets have scraped the bottom of the barrel by  empowering, currently to a limited extent, employees of G4S.

Outsourcing by government agencies as a policy  in itself has advantages in limited circumstances.  However iniquitous eg  the BBC license fee is,   it would be ridiculous now for that organisation to undertake its collection.  There is also an argument in favour of eg Capita plc to be responsible also for collection of Council Tax.  But the outsourcing of agencies under the control of the Ministry of Justice was a very bad mistake.  The situation in privately (outsourced) prisons and the probation service are glaring examples of what can go wrong with such a policy.  

Of all government responsibilities defence and justice are in a class of their own  They are what others are not: they are the two  indispensable pillars for our society;  the protection of its security and  ensuring the democratic basis on which we can be governed by the rule of laws as enacted by a freely elected parliament. 

This noxious spread of petty hitlers in uniform is to be deplored.  The cost in loss of confidence by a population will never be balanced by notional attempts to balance a Chancellor`s books.

BEGINNING OF THE END

This article in today`s Telegraph is just the beginning of another attack but now there is no doubt IMHO that there is a secret paper in some Whitehall desk with outline of new form of justice at your local District Criminal Court.   Mark my words; the magistracy in its current form, as I have posted here many times, will be history within ten years.

LEGAL AID

Latest legal aid information and statistics  from the Ministry are available here.

PRETTY POLLY EQUALS EXCEPTIONAL HARDSHIP!!!!!!!!!! NOT FOR ME

When Sentencing Guidelines were presented over a decade ago my opinion then was that that was the beginning of the end for the independent magistracy.  Their introduction made a mockery of the very concept of local justice insofar as their implementation was to avoid the very notion of a so called post code lottery.  From Newcastle to Newquay sentencing was reduced to doing a crossword; two across and then three down. In its latest form there is not much  room for J.P.s to exercise original thought, logic and understanding to sentencing.  That is why "exceptional hardship" is one of the very few areas remaining where magisterial discretion and structured processing is still required..........even north of the border.  Having praised Scots law not a few times on this site I am amazed that these northern colleagues have fallen for a story of pretty polly.

Legislation regarding disqualification for totters allows magistrates not to disqualify or to reduce that period only if they are satisfied having regard to all the circumstances that there are grounds for mitigating the normal consequences of the conviction the most common of which put forward is the potential effect of the disqualification on the offender namely that hardship would result. Section 35{4}(b) of the RTOA 1988 precludes the court from taking into account “hardship, other than exceptional hardship”. There is no strict definition of this term. Practice suggests that the loss of employment by itself is unlikely to satisfy the “exceptional” test. Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospects [per Lord Hope in Brennan-v-McKay]. It is important to note that offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within three years of conviction {sec. 35(4)(c) RTOA 1988} It follows that detailed court records must be made of the exact circumstances which justified any finding of exceptional hardship.

 A House of Commons answer of 5/6/07 is useful.

Mr. Sutcliffe: When a driver faces disqualification under the totting-up procedure, the court has very little discretion other than to disqualify, unless they are satisfied that to do so would cause ‘exceptional hardship’.
Whether exceptional hardship would be caused is a matter for the court to decide in each individual case.
The Sentencing Guidelines Council is responsible for magistrates' sentencing guidelines on this issue, and the decisions of the Court of Appeal in any relevant cases will impact on any decisions made.
Mr. Paterson: To ask the Minister of State, Ministry of Justice who is responsible for specifying the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure. [139642]
Mr. Sutcliffe: The Sentencing Guidelines Council are responsible for magistrates' sentencing guidelines, along with guidance provided by Court of Appeal judgements. The Sentencing Advisory Panel recently carried out a consultation paper on magistrates sentencing guidelines and responses will be considered in determining the final guidelines.
Mr. Paterson: To ask the Minister of State, Ministry of Justice whether (a) changes have been made in the last five years to the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure and (b) any such changes are proposed in the next six months. [139643]


The case of pretty polly is IMHO a total nonsense. Even having accepted the plea a reduced discretionary period of disqualification should have been imposed.  Those responsible for  allowing him to continue driving should say a prayer that this offender does not cause a major problem whilst doiong so with his license holding 12 points. 

THE RAPIER IS MIGHTIER THAN THE MACHETE

During his time in the post of Lord Chancellor and Secretary of State for Justice Chris Grayling appeared to me [and others?] as simply following orders.  He was a functionary with little original thought behind his actions.   On May 11th I commented on my hope that his successor would be a more suitable occupant of those high offices.  The content of a speech he will deliver later today gives us an insight into how he is going to undertake the tasks and duties which are now in his brief. He appears at least to bring with him a certain philosophy as a Tory intellectual who came from an ordinary Scottish upbringing to high office.  I believe in the light of the circumstances surrounding the delivery of justice which is available to the ordinary citizen Michael Gove will use a rapier  to fascilitate change as opposed to the machete used by his predecessor.

THE KING IS IN THE ALTOGETHER

Of all public services the police perhaps are the most adept at using reality television to put their best size 13 feet forward hoping that by so doing the warts on the rest of their body corporate will be overlooked.  Currently the Metropolitan Police and its Commissioner are telling us on BBC TV what fine fellows they are in often difficult situations.  From street to cell Ch4 had its own production recently and most days we can view some police car or other racing up or down a motorway in its pursuit of menaces to the rest of the country`s drivers going about their lawful business.  That is of course if we forget about the use of a mobile whilst driving.  Now that is truly a danger.  Instead of increasing the number of penalty points on conviction to 5 or 6 the lawmakers are apparently considering  increasing the fine to a level 3 {£1,000}  when it is widely accepted that threat of disqualification is the more effective deterrent to drivers who continue to offend.  So what can we make of the  only conviction so far of a middle lane hogger?  The answer is simple: ensure it gets maximum publicity for what was a completely unnecessary newly created offence.  Driving without due care and attention has been the law for decades.  It can eg constitute eating an apple when driving.  All it takes is a comparison with what would be expected of a reasonably competent driver.  Tailgating was also created as a stand alone offence.   

It`s the king with no clothes all over again.  Where is the little boy to shout that the police are in the altogether?