LAW, EMOTION AND RESIGNATION

When sitting  at the building where all matters except trials are conducted my colleagues and I generally enjoy the experience where we can be fully occupied with overnights, remands,  first appearances, breaches and sentencing.   With invariably a high number of cases at each such sitting I personally leave feeling a combination of being depressed when the detritus of humanity has to go through the criminal justice system instead of being diverted to institutions where their addictions can be treated, satisfied when judgement and/or insight has succeeded in isolating a previously unacknowledged significant  fact, smug when correcting an all too bloated arrogant lawyer and disturbed when the application of the law seems unjust in a particular case.   

The last case at just such a sitting left me disturbed.  Cheating the Benefits Agency is taking tax payers money by fraud.  Sometimes the offenders are beneath contempt in their efforts to receive what they don`t deserve but for a small minority pity is the emotion which can stem the hand of the sentencer.  This country has seen an influx of immigrants over the last decade and some of the females in this group, especially those from Asia or Africa with little spoken English, are easy prey for unscrupulous men.  The actual case in which we sentenced outside the Guidelines involved such a woman with two very young children and a so called husband who used her for his own ends.  With their consent we used certain provisions;  provisions  that Probation would normally consider unavailable in the circumstances,  to assist the offender.  Some cases involving   school non attendance   also involve the application of laws which are perhaps insensitive to individual circumstances but if a J.P. cannot apply the law as it is and not as s/he would want it the answer is resignation.

SEARCH WARRANTS AND ROOSTING CHICKENS

There has been outcry from many varied sources  over the publicity given to the search at a home of Cliff Richard.  One such critic, Geoffrey Robinson Q.C. has been critical of the lay justice he supposes authorised the warrant.  To quote from the full report in theIndependant,
 
"This behaviour is unacceptable. The lay justice system has long been the Achilles heel of our civil liberties: many of these amateurs simply rubber stamp police requests. It is not known who issued this warrant (although the High Court has held that the identities of JPs should be made public). What qualifications did he or she have and what steps were taken to protect the occupier’s privacy? What justification did the police give for this general search, with world-wide publicity? Was there any questioning of the police, so as to ensure that they could identify what they were looking for, and that it had “substantial value” for a prosecution? How was the Justice of the Peace satisfied that this whole exercise was not an improper means to publicise an uncorroborated allegation against the singer, in the hope of “shaking the tree” to attract further allegations which might give it some credibility? It is time that police were required, other than in emergencies, to obtain search warrants from circuit judges, who are alert to civil liberties”.

Whilst I have no sympathy for his belittlement of Justices of the Peace I am increasingly conscious that the establishment, meaning in this case HMCTS in the form of the Deputy Justices` Clerk,  is taking more and more control over our activities and decisions. Only a fortnight ago I had to remind a very experienced L/A to leave us to our deliberations subsequent to a trial after inviting her to enlarge on a legal point and her initial reluctance to allow us to discuss in private the areas of dispute.  On another occasion not long ago when another L/A was invited to the retiring room to listen to the reasons for our decision comment was made as to how we reached a decision with which he had some doubt.  We assured him that it was made in a structured fashion and was not open to change.  Now after some time in this job I am able to disagree with a L/A or reinforce my point of view without hesitation but I am afraid that some of my newer colleagues having been schooled in the attitude that L/A knows best are open to pressure which they should but find difficult to  resist.  Warrants are a case in point.  I have refused at least two search warrants in the last year or so.  When I have asked colleagues of the last time they have had a similar experience all too often the answer is “never”.   It was worse  with entry warrants for utility companies but I do now sense that with some education colleagues are increasingly questioning such applications.

Magistrates in their present form are, as Geoffrey Robinson Q.C. “the Achilles heel of our civil liberties: many of these amateurs simply rubber stamp police requests”.  All I can add is that the legal profession has itself assisted the erosion of the function and status of J.P.s by its continual indifference to our treatment by government.  These chickens are coming home to roost.  Perhaps when District Judges(MC) alone preside over trials the realisation will come but by then it will be a generation too late.

REMANDS, ACQUITTALS AND £230 MILLION

It seems we are again making headlines.  This time magistrates` courts are accused by the Howard League of remanding too many defendants in custody prior to trial.  This story made the news in today`s Times behind its paywall.  The full report was much concerned with the cost estimated at £230 million when that related to those people later acquitted at trial or sentenced to non custodial sentences notwithstanding that the recently introduced  Legal Aid, Sentencing and Punishment of Offenders Act contains provisions to address the unnecessary use of custodial remand.

Few of my colleagues would disagree with me in my opinion that remand on bail or in custody  is the most onerous decision that we have to make on the bench.  There are only three circumstances when an untried defendant can be remanded in custody there being no conditions which could satisfy the risk(s) of being remanded on bail:  a risk that further offences would be committed, in the interests of justice which is mainly concerned that there should be no interference with witnesses and lastly that the defendant would fail to appear for trial. The increased prosecution of those suspected of domestic abuse has possibly led to an increasing tendency to remand such people in custody.  Indeed the provisions of LASPO  have allowed for just such situations.

The figures quoted in the report cannot be understood unless the context of their inclusion is understood.  But of course the Howard League which is a single issue political lobby has no interest in serious debate if it gets in the way of pushing forward its agenda.

There is no denying that conditions in British prisons are and have for some years not been fit for purpose. Governments of all hues have used prison numbers as much as a political tool as they have for their prime purpose. The Howard League in emphasising the £230 million cost of what it considers unnecessary remands in custody is playing the only game this Justice Secretary wants to join; how to reduce costs.  In that it has probably succeeded in its aim.

THE SPIRIT AND THE LETTER

From time to time in this job I have been involved in cases where the letter of the law and the spirit of said law do not coincide.  Starting from first principles it appears to me that the spirit arrived before the letter the latter being an expression in written form created by minds who were harbouring the spirit in their thought processes and who subsequently encapsulated those processes in what we now term “legislation”.   These points came to me as I read of two matters from the sports pages.  The first concerned  Celtic Football Club`s reinstatement in the Champions League subsequent to the opponents who thrashed them on the pitch being thrown out for a technical error in fielding an ineligible player.  It seems that in this case it is no contest: the letter must reign supreme over the spirit  however unfair it might at first glance appear.    The other case is closer to home in a blog written by a magistrate.  A star player of Sheffield United was convicted of rape a couple of years ago and is shortly  due to be released on license with his apparently having been offered his old job back at an annual wage of about one million pounds.   This seems to be a case of rehabilitating  somebody, who having committed and paid for a despicable crime, needs to find a way back to being a worthy citizen.  If he were a tradesman being accepted back into his old job there would be murmurs of praise for his employers giving him another chance.  Does the same not apply to somebody in the public eye despite being overpaid in a market where his talents reap their rewards?  60,000 people, some of  whom  are club supporters, have indicated their opposition to his return to the club.  If rehabilitation means anything at all they are misguided.  However as with most matters associated with top class English football the final decision on his employment will be based on the club`s balance sheet.  Will sponsors and supporters withdraw their support if he rejoins?  I think not such is the basis on which our national game is played and where this time the letter and the spirit are in harmony.

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?