LET SLEEPING DOGS LIE

I had first sat with Jane three years previously when she had only been in the job a few weeks.  It was obvious to me then that she would be a first class magistrate.  And so it was a pleasure not long ago to note on the sign in sheet that she and I constituted a two person bench that morning. 

By the time I had poured myself a cup of tea she was already in the retiring room with two copies of our court list.  “I haven`t ever sat in a council tax court,” she said as I sat down.  I expressed my surprise and wondered what the odds against such an omission could be.  Council tax courts (and related business rates courts) are generally greeted by colleagues and me with little anticipation.  99% of the time they are truly a case of rubberstamping applications brought by local councils of liability to pay the tax.   Sitting in such courts can sometimes be frustrating but the legislation allows us virtually no powers to intervene except if there appears to be an abuse of the process or the council fails to show that there is actually  an outstanding amount for which the defendant is indeed liable.  I explained the process in general to Jane and she resigned herself to an uneventful hour ahead.  Our legal advisor appeared and told us that before we could get to the bulk list there was a defendant appearing to contest the liability order for her owing business rates.     Accordingly at 10.00a.m. we entered court.

The defendant was an elderly lady who, we learned, had recently sold her optician`s business;  lock, stock and barrel including the freehold premises which had been vacated some time prior to the sale being completed.  It was around the vacant period that the dispute revolved.  After some forensic analysis by the bench it became apparent that not only did the defendant not owe a penny in business rates; she had actually overpaid by a four figure sum.  In spite of all this the non lawyer representatives of Capita plc, the outsourcing monolith which collects these taxes for councils, gave us looks of astonishment when the pronouncement was made.  It seemed they were unused to losing an application.  At our brief post court review our L/A inquired whether we wanted to report them for contempt.  He had overheard them exchanging derogatory remarks as to our sanity…..”Are they barking mad”?  We decided to let those sleeping dogs lie.   

TREATMENT; NOT PUNISHMENT

We all know that tradition tells us that there are seven deadly sins……no more; no less.   Judeo Christian morality is based upon ten commandments……not nine or eleven and it is a much quoted maxim that there are only seven stories in fiction and that all others are based upon them.  In similar fashion of there being very few basic tenets underlying criminal activity alcohol and/or drug dependence account for around 70% of all crimes committed.  Considering the cost in tax payer pounds and individual misery for those and their families  involved it is  a blight on our society that the most that can be said for government policies is that at least they don`t exacerbate the problem. Every day in every magistrates` court benches are  faced with impoverished and often homeless alcoholics who commit petty theft with or without violence to   achieve their requisite daily level of inebriation.  The probation services offer various alcohol treatment programmes but as is well known abstinence, the only long term  treatment,  requires a willingness on behalf of the  drinker to embrace lifelong sobriety.  Only too often that willingness is lacking and repetitive criminal behaviour does what it says on the lid; it repeats.  A perfect example of society`s impotence in this regard is reported in the Grantham Journal but  every local newspaper features similar stories with unfailing regularity.  And like the proverbial iceberg most crimes with an alcohol input go unreported and undiscovered somewhere in the myriad of government statistics.   

The Mental Health Act allows forced confinement to specialised units for those whose behaviour is a danger to themselves and/or others.  There are many provisions within the legislation to ensure that use of this onerous power is justified.  On appropriate occasions this allows certain offenders to be deviated from the criminal justice system to the NHS.  I am firmly of the opinion that similar provision should be available for those suffering from alcoholism when that affliction brings them, as it so often does, into conflict with law and order.  The initial costs would be but a drop in the ocean compared with the long term savings of pounds and people. 

BARRISTERS AUX BARRICADES

I have no idea if my own court has been disrupted this morning by the non participation of members of the Criminal Bar Association.  I would estimate that solicitors comprise about 70-80% of defendants` representatives at Magistrates` Courts   so the disruption  if any is likely to be minimal.  I have not received any notification from the Deputy Justices` Clerk so the morning sitting will likely have been as normal. No doubt I will hear the full story when I next sit.   The tale at Crown Courts all over England & Wales is of a different level.  Hearings have been disrupted by the absence of defence barristers.  This is an unprecedented show of unity by people who  by their very calling are independent practitioners.  There is brief but comprehensive opinion by Jon Mack in the Spectator.

DUMB AND DUMBER IN PETTY FRANCE

Sometimes it is almost impossible to overestimate the incompetence of the civil servants lurking in the corridors of Petty France London SW1 where the Ministry of Justice is housed.  The current Secretary of State is fond of grandiose press releases.  Just over a year ago there was the second reading of  The Prisons(Interference with Wireless Telegraphy) Bill.  In view of the obvious problems brought about by prisoners being in contact with associates in and out of jail banning mobile phones seemed a no brainer but just as banning drugs in prison is a laudable objective those involved in running prisons are well aware that initiating methods to stop all drugs getting to convicts would wreak havoc beyond their control. The ministry has now decided in its wisdom that the technology required to jam mobile signals is too expensive to justify its introduction the implication being that a year ago the costs involved were not too expensive or that they cannot do simple arithmetic.  Whether or not this is just a smokescreen for objections by the Prison Officers Association I know not.  There is a fairly full  report in today`s Independent. After HS2 undercosting, West Coast Mainline debacle, rumoured mothballing of as yet unlaunched aircraft carriers this is just another example of highly paid people who should be on the dole instead of leading pension proof existences wrapped around in tax payers largesse

I scratch my head in bewilderment at the efforts of those  queuing up to offer their advice to   the Rt Hon The Secretary of State for Justice  aka The Lord Chancellor.  There was a children`s  film called "Dumb and Dumber"  a few years ago. Perhaps those employed at our expense are striving to show that real life in the civil service can be dumber than the movies.

BROKEN EGGS//BROKEN JUSTICE

Not having been in court for a couple of weeks and with other matters on my mind I had not intended to post today but………………

On Monday morning January 6^th  there will be no barristers undertaking criminal  court work.  This unprecedented action is a direct result of the Justice Ministry not taking seriously the determination of the Criminal Bar Association to show that enough is enough in government underfunding of legal aid by the salami slicing of barristers` incomes over the last fifteen years.   By the manipulation of statistics, national and international, the government has attempted to demonstrate that criminal barristers are taking an undeserved level of income from the limited pot which funds legal aid.  For years those defendants entitled to legal aid have been steadily reduced by heightening the legal hurdles before which aid is triggered ie offence outcomes must be serious enough to warrant representation irrespective of the defendants` abilities to represent themselves.  In addition the eligible income level of defendants above which representation is refused has been steadily reduced so someone on an average income is likely to be excluded from the system.   

Thus faced with embarrassing headlines in next Monday`s newspapers and T.V. news  programmes what does an embattled Justice Secretary do?   In order to protect his own hindquarters today he publishes figures on barristers` incomes so full of caveats that they are almost meaningless.  This government has been shamelessly inefficient and myopic insofar as its control of justice in all its forms is considered.  It has presided over  scandals within the privatised prison service, unnecessary election of Police and Crime Commissioners, fraudulent suppliers of prison services including tagging and offender transportation to courts, the abolition of a respected probation service, a total incompetent restructuring of interpreter services for courts, an emasculation of the Crown Prosecution Service  and those are just generalisations.  Moral within all parts of its justice empire is at an all time low.

I doff my hat to the Criminal Bar Association for its proposed actions.  Would that the Magistrates` Association considered similar action.  The destruction being imposed upon our system of justice; a system which has evolved over 800 years and was  an example to the world is being destroyed before our very eyes.  Like the proverbial omelette, the eggs of justice once broken cannot be re-assembled.  Shame on those whose actions have brought about this tragedy.

AND FOR 2014?

Year end time for many including this blogger is a time of reflection and that reflection can often be self serving. Fortunately or otherwise I have looked back at posts {at my previous site} I wrote exactly one year and two years  ago and reproduce them below.  I am  no fortune teller and I certainly do not have crystal balls but it does seem that I was not too far out in my simple predictions.  I have absolutely no enthusiasm for the magisterial year ahead of us.  Of all my sittings for next year fewer than 15% will be as a chairman in our remand, sentencing or breach courts arguably the very courts where our skills are most tested.  I am of course not alone with a year of reduced sittings ahead.  They are an indirect or perhaps even a direct  result of government policy  to reduce “unviable” courts and buildings.  The manipulation of crime statistics and the 200,000 cautions (excluding motoring offences) handed out in the year to March 2013  are a contribution to our reducing workload.  Having flagged up (for the last time) once again the possibility of increasing our sentencing powers to 12 months custody the government duly laid that possibility to rest.  Defendants` right to choose mode of trial has not been removed.  District Judges(M.C.) [149]  and Deputy D.J.s do not grow on trees; they are appointed and number 310 in total i.e. more than one per magistrates` court and they undertake an increasing majority of the courts previously presided over by Justices of the Peace.  Such is government determination to ensure that in the lower courts a professional judiciary will be beholden to its directive as it was after the riots of August 2011 when the vast majority of cases was allocated to District Judges.

On the basis that half a glass is better than no glass at all and enthusiastic or not I wish readers a Happy New Year.

DECEMBER 31^st 2012
“At the end of another year and the beginning of a new one thank you to all who give some of their leisure minutes to read and/or comment on my criticisms, observations and occasional praise of the goings on within our system of justice. 2013 is unlikely to differ greatly from its predecessor except that there is a very small chance that magistrates` sentencing powers will be extended to twelve months custody. Aside from that there will be publication of yet more dubious statistics on everything associated with criminal activities and their remedies attempting to justify whatever policy the author is driving forward; scandals involving one or more of the newly elected police commissioners and the enforced resignation of yet another chief constable. Unrepresented defendants and in particular those requiring the services of an interpreter will continue to cause holdups in court lists. Either way offences will continue unchanged and yet more District Judges(M.C.) will be appointed. The Magistrates` Association will become increasingly irrelevant to the activities of the ordinary J.P.s who will still be lauded by the Justice Secretary whilst others behind him plot their eventual demotion to involvement in “neighbourhood justice”.

So it`s good news from him and good news from me.”

DECEMBER 31^st 2011
"Exactly 365 days ago I wrote, “This coming decade heralds the greatest changes in the magistracy in a century. We are at a crossroads. Either our powers will be enhanced by increased sentencing powers and the abolition of a defendant’s right to choose mode of trial or we will be reduced to winging courts of presiding District Judges thus reducing our numbers at a stroke and sitting on minor motoring matters. This government and probably any other does not see us in terms of local justice any more than a hospital is local. A hospital or a court is part of a network of such institutions and its purpose is to provide a designated service of the highest quality at the lowest cost. If magistrates and their representatives have not realised this by now they should wake up before the tsunami washes them away. In 366 days my bench will absorb two nearby benches. Those who don`t want or cannot adapt to the changes have only one future and that is as ex magistrates.”

There was indeed in the last year passing mention of our powers being increased but that will not happen. A government which is so obviously increasing its reliance on paid District Judges to do what had previously been our job is not going to enhance our sentencing powers. The scandal of DJs sitting in judgement alone on trials is one that the legal profession generally ignores. It is a silence that should shame the Bar Council and Law Society every time one of their n umber talks about trial by jury and its inalienable part of English justice. The Magistrates` Association is still plugging away at the concept of “local justice”. Nobody in Whitehall gives a fig about local justice. They might use the words as a chess master uses pawns to be sacrificed for the greater good. My bench like many others from tomorrow will consist of almost 400 members. In practical terms we will be sitting with strangers at least half the time. With sittings reduced for many of us by 20% or more I have yet to decide whether the new arrangements will be a plus or minus for our function of doing justice and being seen to do so. At least one colleague I know of from my original bench has retired years ahead of time citing the impending changes as a contributory factor. Apparently the Ministry of Justice has factored in a 10% premature retirement rate of J.P.s for this year solely due to the changes. Judging by the tone of letters from our new Bench Chairman I wonder whether HMCTS is leaning heavily on us. My impression is that with an apparently weak willed bench leadership we will be considered ever increasingly as “employees”. My impression is that recent J.P. appointees generally have little of the spirit of independence that is so obvious in more long toothed colleagues. The more`s the pity. I`ve been told that in many respects including magisterial opinions I am a dinosaur. Those species survived 200 million years and would by now have been the dominant species but for a wayward asteroid.

So thank you for giving this dinosaur a few minutes of your valuable homo sapiens sapiens time. Enjoy the amber liquid and try to keep the flag of magisterial independence flying high".

LAW AND RELIGION

This country could a long time ago have been described as a “Christian” country.  The sovereign was anointed with holy water and s/he was appointed by God to rule.  The national church is by definition “English”.  It is fair to say that before the enlightenment the Hebrew Bible and its subsequent New Testaments were considered the natural (and only) way in which man`s moral behaviour could be judged.  There are still some who hold this belief that religious authority is the only basis for a system of civil and criminal law.  Indeed the last twenty years have seen direct collisions between them and a  humanist application of the law.  A population now containing 3 million Moslems the proportion of whom professes a desire for Sharia based governance is largely speculative owing to there being as yet no progressive or unorthodox religious derivatives as there are in Christianity and Judaism,  is  gradually changing the way in which religious belief in general is compatible with   a secular legal system operating for the most part on a secular basis.  Half a million Polish immigrants many of whom are practising Roman Catholics have encouraged some Christians to assert rights which have lain dormant for decades.    Orthodox Jews have recently been given the right to refuse work which would require Saturday working without sacrificing their rights to certain welfare benefits. Which leads to the definition of what is religion and what is a cult or an association of those with a common belief.  Scientology has recently in effect been granted religion status.  Self describing Jedi Knights number 176,632 under a category “other religions” in the last census.  The question for our courts is where to draw the religious line when it conflicts theoretically or practically with procedures.  The most obvious collision course was and is the wearing of full face covering by witnesses and/or defendants who profess that their interpretation of Islam requires such garb.  Currently members of recognised religions quite correctly seek adjournments if court appearances coincide with days or times of religious observance.  Which begs the question of the definition of religion.  Charles Lawson, 60, from Hadley in Telford, successfully applied to  magistrates in Flintshire to postpone his hearing day because  his church`s Sabbath  holy day fell on the date listed for his appearance; notwithstanding that his “church” on its website describes itself as a church without religion.   Perhaps my colleagues in Wales would have found differently if they had had access to the internet on the bench. One thing is for sure:- applications of this nature are certain to increase considerably.

CHRISTMAS IN COURT

Many of us at this time of year will imbibe perhaps slightly more of the amber nectar than we would normally do but it usually will be when in good company in a warm room and with well prepared food as an accompaniment. Indeed when describing the atmosphere of human activity in England around this time of year the word commonly employed is “merry”. One would be hard put to find such a suitable use at any other time. Derived from old German its origins go back a thousand years and “Merry Christmas” is immediately evocative of a Dickensian character slightly inebriated but bearing nothing but goodwill to his fellows. Considering that ale and its derivatives have been brewed in England and been part of English life for over a millennium society has yet to find a humane way of dealing with those who drink to excess causing misery for themselves and those who cross their path.  
Since 2009 Drink Banning Orders or “nimbyism” for alcoholics have been employed. They are a total waste of time and energy and merely displace the problem drinker to a neighbouring location. Indeed I have heard of DBOs being effected for the whole country. Truly those who dream up such legislation are almost as unrealistic as those who empower it.  
Every day in every magistrates` court there will be an alcoholic presented for sentencing on a variety of offences carried out when he, or occasionally she, was oblivious to reality. Perhaps when our governments are governments of the people, by the people, for the people such misfits will be channelled away from the criminal justice system and entered voluntarily or otherwise into a health care system. Until that time all I can do is thank you for spending some of your valuable minutes reading at this site. Whatever your religious beliefs or none I wish you a Merry Christmas.

DAMIEN//A MASTER OF SMOKE AND MIRRORS

Mr Damien Green. Minister of State for Policing and Criminal Justice, has written a four page letter to my colleagues and me having taken soundings from recent meetings held with about 400 J.P.s in attendance. I won`t bore readers with a complete transcript but I will comment on some paragraphs with my take on the underlying unsaid meaning.The first three paragraphs and my comments on each refer to Mr Green`s carrots to magistrates insofar as he will take note of their opinions.

D.G.
Magistrates should be doing the right work in court. You told us that your time in court should be focused on those offences which have the biggest impact on your communities. You want your courts to be busy dealing with many cases which go to the Crown Court and you would like to have a role in relation to these cases which currently receive out-of-court disposals. You should have the powers you need and the confidence to use them so that you can tackle the key problems in your local area and so that fewer sittings cancelled at short notice.
J.P.
His implication is that some of what we do is not "the right work in court".  In other words that "work" should be taken out of the court setting.  A court setting allows a defendant presumed innocent  to plead his/her case.  One can only speculate at the "work" he considers fit to be undertaken elsewhere but there is no doubt it will be based on sanctions against those who fail in their obligation to the corporate state.  No motor insurance, no T.V. license, failure to pay council tax etc etc would be likely candidates.  Whilst those types of cases that come before us are generally a fait accomplis  I am sure that we have all been in situations where the state has steamrollered  a citizen.  We are in effect a court of last resort. 

This government could very easily have removed the right of defendants to elect trial at Crown Court by abolishing or amending either way offences and thus we could have been  busy "dealing with many cases which go to the Crown Court".  It has chosen not to  do so being unwilling to push lawyers from rovolt to actual revolution.    

"Sittings cancelled at short notice" are  owing to inefficiencies in the system.  More than half of these are down to HMCTS plain and simple as my post of last Friday December 20th showed. 

 "Key problems in your local area" are generally problems which are common to all areas.  They have no relationship to court cancellations except insofar as CPS local structure is constrained by lack of cash and/or manpower. 

D.G.
Magistrates should be recognised as justice professionals. You told us that there should be a clear and well balanced relationship with District Judges (Magistrates` Courts). You would like your skills to be better recognised and fully used both inside and outside the courtroom; and the value of employing a magistrate should be better understood and communicated to employers. You would like to see your outreach work and other roles you undertake outside the courtroom better supported and recognised as part of the core role.
J.P.
After the platitude of our professionalism the government has increased the numbers of District Judges(M.C.) and makes no apologies for so doing.  We will demote some of your court sittings to lower level out of court environments and then you`ll realise that is where we intend you to remain.....out of court. The value of employing a magistrate should be better understood and communicated to employers  who will recognise your worth as they do with the new Army Reserve, I suppose,  which has recruited about a quarter of the numbers anticipated owing to employers not wishing to lose personnel for six weeks annually.  
 
D.G.
As justice professionals magistrates should have a clear development structure which attracts and retains excellent people. You told us of the importance of continuing to improve the diversity of the magistracy so that it truly represents local communities. You have told us that your development should be linked to the types of business magistrates can hear and the roles you take both in and out of the courtroom. You want this to be supported by a robust and transparent training, competence and appraisal system. You also told us you would like the opportunity to use your expertise in new ways; perhaps including non court roles like mediation or in different jurisdictions, in tribunals or prison/parole cases.
J.P.
Magistrates will be limited on the types of matters on which they can sit.  There will be a hierarchy just as if you were employed.  We will be requiring fewer J.P.s.  We must consider ethnic quotas and will ensure that BME candidates are appointed until their representation on the bench is equal to that of the local population even giving actual preference requirements to appointments committees.

D.G.
We`ll make better use of video links and we`re exploring different ways for defendants and witnesses to give evidence to reduce the movement of prisoners, and witnesses being forced to hang around for hours waiting to give evidence.
 J.P.
It`s no fault of the courts that witnesses have to wait many hours beyond their appearance request time.  Perhaps they will give video evidence and be allowed to leave, that evidence being unable to be challenged. 

D.G.
The more efficient progression of cases will be supported by judicial initiatives around case management, ensuring that you have the procedures and the confidence to deal with cases quickly and effectively.
 J.P.
We`ll pressurise more unrepresented defendants to plead guilty to get the matter over and dealt with quickly. 

D.G.
We are also working with defence practitioners and the CPS to ensure that more cases are ready for trial at first hearing and that prosecutors are empowered to take decisions and pick up cases when they are transferred between courtrooms.
 J.P.
Our depleted cadre of employed CPS prosecutors and reviewing lawyers will suddenly be gifted with magical powers and be able to read a file with each eye individually and simultaneously thus at a stroke doubling their work capacity.  In addition they will be able to muti task to such an extent that they will run two cases at once.  


 Such are the underlying truths of Mr Green who is first and  foremost a truly ambitious politician.  Supporters of Mr Green might term him a "loyal Conservative". His voting record would do justice to a member of the National People`s Congress of the Republic of China. However like most senior politicians Mr Green is a master of smoke and mirrors.

MOJ SUCCESS IS 45% EFFECTIVENESS

Until two or three years ago our court statistics were pinned up in the retiring room.  One day they were removed.  Our legal advisors appear to prioritise getting through a list as quickly as possible.  More than on just an odd occasion, in fact just last week, my bench insisted on a course of action that put the interests of justice as we understood the phrase ahead of  pleas by our L/A to change our minds so the list could be completed.  It was  no surprise to note the appropriate figures just released by the MOJ re the efficiency of the lower courts.

The first three quarters of this year showed there were 117,582 trials of which 52,783 were effective; ie 45%. What is equally interesting is that of the 20,467 ineffective trials (disregarding cracked and vacated trials) tardiness by the CPS or the inability of it to get its witnesses to court was responsible for 5,782 [28%] of those. In 281 instances the CPS prosecutor was engaged in another court and could not proceed with the listed trial.  Ineffective trials as a result of maladministration within the courts system, ie responsibility of HMCTS, numbered  5,733 [28%]   Annotated problems with defence lawyers and/or their clients were responsible for 5,374 ineffective trials.  Of course it must be borne in mind that the “defence” figures are an amalgam of hundreds of disparate organisations none being a monolith like the CPS with a central administration.  Similar percentage figures for the whole of 2011 when the coalition had its feet firmly under the justice table were:-

Effective trials                                                            44%

Tardiness of CPS as above                                          28%

Maladministration by HMCTS                                    29%

I suppose the best gloss that can be put upon those numbers is that having decimated staff within the courts system and the CPS and thus reduced costs so we are led to believe, courts are not functioning any less efficiently than in 2011.  Of course this is based on the premise that a figure of 45% effectivity is success.  Apply that rationale to business or industry and we would all be in the poor house.  Perhaps somewhere in the bowels of Whitehall is a set of figures detailing the additional costs of rescheduling 56% of trials. 

When a central pillar of our civilised society is being run like a clapped out old banger with odd tyres, barely functioning brakes and a driver with tunnel vision drunk on a power trip and what can we expect?

MAGISTRATES` COURTS? YOU`RE HAVING A LAUGH

Compared to the situation twenty years ago magistrates retain little autonomy on the running of the courts named for them. There are of course minor variations across the country but the essence of the current situation is that we are treated by HMCTS as unpaid employees and that we are in a position where we must obey the dictates of Justices` Clerks some of whom, as senior civil servants, look upon their posts more as greasy poles at the top of which are some of the most powerful positions in the country.  

The extent of this control was apparent to me recently.  A call came through to the retiring room about 1.45p.m. from a colleague due to sit in the afternoon.  She had been unable to speak to anyone in the justices` liaison office; the line had gone to voicemail since 1.00p.m. when she first rang. Her simple message was that a family emergency had required her attention and she would not be available as a chairman.  Discussing this with colleagues we quickly concluded a minor shift in the three afternoon benches` compositions ensuring that the usual preferences…..gender and ethnicity were incorporated and informed the first of the legal advisors who appeared a few minutes later.  But, we were told, the situation had to go to the bench legal manager who would make the decision.  In due course he rubber stamped the situation. 

And this is a simple example of how we are considered as unpaid employees.  We are empowered to deprive a person of his/her liberty for six months but considered unable, knowing the requirements which are desirable, to constitute a few courts in an emergency. 

Magistrates` Courts?   You`re having a laugh.

FREEDOM OF INFORMATION IS PRICELESS

The Labour governments of 1997-2010 can be held responsible for much of the malaise we are currently experiencing but if there were one single piece of legislation for which we should be truly grateful it is the Freedom of Informarion Act 2000.  Tony Blair famously has made public his regrets at the passing of this act.  His regrets are proof if we ever needed it that it has been of huge benefit for those concerned at the increasing control  and secrecy being exercised by government and countless devolved organisations.  From international relations to a council`s snooping F.O.I. opens up government as never before.  Its success makes it a certainty that any similar legislation will never again be contemplated.

As colleagues who sit on appeals at crown court will be well aware one of the most common categories  of offenders who appear is those who are appealing against findings of guilt or level of sentence for motoring offences. F.O.I. figures show that in 2012 there were 81,674 convictions of having no vehicle third party risk insurance where this was the primary offence.  Also resulting from F.O.I. disclosures the offence for which most appeals against verdict was made at crown court in 2012 was also having no third party insurance……694 from a grand total of 3,975 the next highest being failing to give driver`s identity; 624.  In the former category 289 were allowed (41.6%)  Appeals against sentence for no third party insurance numbered 537. Of these 169 (31.5%) were allowed.  For the latter offence 251 (40.2%) were allowed thus overturning the original guilty verdicts.  On sentence 62 were allowed out of 152 (41.3%).  Considering the almost formulaic basis on which drink driving is prosecuted the figures are somewhat surprising at least to this blogger. 34 from196 (17.3%)  appeals against verdict were allowed and 94 from 229 (41%)  sentences were successfully appealed.  At the other end of seriousness the person who appealed against a finding of having faulty steering gear lost his/her appeal as did the person found guilty of tampering with a motor vehicle.

What these figures indicate about the efficiency of the magistrates` courts and their appeals system I cannot now comment upon.  What they say about the Freedom of Information Act is that it is beyond price. 

THEFT BY DOG - NAPPING

It is hardly surprising that stories orientated around the legal profession and individuals` encounters with the forces of law `n order have been recounted for centuries.  The infinite variety of  the human condition leaves no possibility beyond imagination.  And so  Tariq Al Habtoor encountered Judge Nigel Van Der Bijl, Hon. Recorder of the City of Canterbury.

The apparently spoiled son of a billionaire riled against a 120 hours unpaid work requirement imposed by local magistrates for theft by dog-napping.  Having had a change of heart after having given his dog away he attempted to steal it back after its new owner refused a payment of   £1,500 to return it.  As a result of his appeal at the crown court where HH Judge Van Der Bijl was sitting he was sentenced to six months custodial suspended for two years.  From the report there was no requirement to undertake any community service. With the usual caveat that local newspaper don`t always tell the whole story three observations on the sentence come to mind………………..

1.      did six months seem appropriate in the light of the bench`s original sentence?

2.      was the suspension of the sentence logical?

3.      to this offender did the sentence not appear to be less onerous than the original?

Judge Van Der Brijl has some form on idiosyncratic sentencing. Whatever opinions are on this matter long might that continue.  Too often sentencing is a procedure conducted by  numbers and/or box ticking.

CONSULTATION IS OFFERED ONLY AS A MEANS TO AN END

I had not intended to post today other matters requiring my urgent attention but reading of the updated Sentencing Guidelines to be operative next April set me thinking.  It would appear that going the round of all the normal focus groups operating under the titles of “magistrates”, “victims` groups”, “medical practitioners” etc etc this august body is creating nothing less than a tick box mentality for sentencing.  It is apparent that judges are not to be trusted to exercise their judgement which presumably was considered to be of the high standard required upon their appointment. The Sentencing Council  has concluded that the opinions of those aforementioned groups and countless others must weigh heavily in the outcomes for offenders convicted of various crimes of a sexual nature.  This obsequious performance is IMHO taking us back hundreds of years in our attitude to punishment which for many was in the hands of the victims or their families……the Italians and others followed the tradition of vendetta.  Many cultures had and still follow a tradition of “blood money” to seek recompense for wrong doing.  And of course the biblical limit on such attitudes is exemplified in the concept of an eye for an eye, a tooth for a tooth.  I would argue that in these concepts there is an element of equivalence which will be lacking in the updated Guidelines.  The margin of weight being placed upon victims in determining sentence is straining the concept of equality before the law.  In addition if the opinions of  the people of this country were consulted on bringing back capital punishment for certain forms of murder and with increased safeguards against miscarriages of justice it is not certain that abolitionists would still be in the  majority.  But of course consultation stops when a government is fearful of the resulting  conclusions. 

SO MUCH HOT AIR

We are all aware that when in company the person who never stops talking or allowing anyone else to get a word in edgeways is generally not the  most popular of people.  IMHO similar consideration can be given to those who purport to be our governors.  With the greater the number of papers or documents issued for “consultation” or instruction the law of diminishing returns comes into play.  Such might be considered as apposite to some of the terms of the The Crime and Courts Act provisions of which came into force yesterday.

Those deemed most likely to affect magistrates (and D.J.s)  are:-

·        1.Community Orders- duty of courts to impose a punitive element in all community orders unless there are exceptional circumstances which would make doing so unjust (my italics)

·        2.Deferred Sentences-  A power to add a restorative justice requirement to a deferred sentence is being introduced

·        3.Compensation Order-  The £5,000 limit per offence is removed

·        4.Power to order a defendant to provide a statement of his/her assets when fining or enforcing a fine

My comments are as follows:-

1.      To all practical purposes those terms  and considerations are already applied by the courts and explanations given.  In addition punishment and rehabilitation can be applicable to a single sentence requirement eg unpaid work

2.       In general magistrates` courts` use of deferred sentence will be limited with or without additional terms

3.      Offences where compensation reaches four figures are very rare in magistrates` courts; such offenders are likely to be sentenced at the crown court

4.      This practice can already be undertaken in certain cases to ascertain income arising from such assets and is not uncommon

Guidance suggests that courts must have regard to an offender`s means  but they remain at the court`s discretion.  Unless I am badly mistaken it would be an unusual court which did not consider an offender`s ability to pay.   So for guidance to state that a sentence should not be disproportionate to the offending one might add that equally it should not tell granny how to suck eggs.

One realises that the Weasels of Whitehall have to conjure up ever more verbose nonsense to justify their and their master`s existence but more than occasionally such activity is revealed for what it really is……..very very overheated air!