WHO AM I TO CRITICISE?

Exceptions proving the rule generally are bad examples of the law and the legal process at work.  Government figures seem to show that in 2013 there were 134,420 convictions of “violence against the person” in crown and magistrates` courts proceedings and an immediate custody rate of 42.8%.  There appear to be variations in the figures in various analyses. Other tables show 195,139 convictions.  Crown court figures for 2012 where the most serious violence against the person matters are tried have 37,435 convictions; a conviction rate of 73.2%  and a sentence of immediate custody in  37% of such cases.  So it is somewhat surprising that earlier this week the judge at Bournemouth Crown Court refrained from sentencing to immediate imprisonment an offender with seventeen similar previous convictions.  Amongst other requirements she was ordered to undertake during her period of two years suspension of a twelve month sentence was an anger management course.  Of course only those in court were aware of all the facts of this case but as a lowly J.P. I am as astonished as the person on the omnibus to Clapham that such a recidivist should escape a lengthy immediate prison term.  But then who am I to criticise? 

OUT OF TOUCH

On the bench when I`ve been in a situation where the term “contempt of court” has entered my mind it has been associated with the words and/or actions of an individual usually in the dock at that moment.  Like all my colleagues have experienced at some time defendants have presented wearing all manner of apparel.  Females have appeared dressed as if for a night on the town or as a female colleague remarked earlier this year on another sitting, “she`s wearing £2,000 worth of gear,” on the appearance of a middle aged woman on shoplifting charges. The male defendant can be dressed for the street or in his best(only) dark suit, white shirt and tie or during the recent hot spell in shirt and shorts.  But I have never had cause or desire to consider manner of dress a consideration for contempt.  Colleagues in Tamworth, however, took a different view when they were confronted in the dock by a man with a casual attitude to T shirts and their suitability for court. I have to say that I disagree with them.  It is very dangerous ground when appearance leads to such considerations as contempt of court.  This apparent  imposition of standards is more likely than not IMHO to have the opposite effect intended; ie contempt for the middle class mores of an out of touch bench and that in turn does not improve the concept of judgement by one`s peers who are representative of the community as a whole such being the concept of local justice expounded by the huffing and puffing great and good.  If 18 year olds can be recruited to the magistracy, and I consider that a ridiculous attempt to enlarge the "diversity"  idea,  then surely we must be open to dress standards more attuned to those acceptable to 18 year olds?

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