THEM ARE THE RULES///DON`T TOUCH

A recent sitting was unusual in that two cases had unusual features  to say the least.  Kylie had just turned eighteen when she appeared on a charge of breach of a community order; namely a tagged curfew which began daily at 9.00p.m.  She admitted the breach which had occurred when she was still a youth.  Her representative, however, took us through her recent history as far as it was relevant.  Her current residence was at the home of the  third foster mother she had had in as many years.   He told us that she had been waiting outside the address since 8.55p.m. for the arrival of the foster mother.  She arrived eventually at 11.00p.m.  He told us that Kylie was not allowed to have her own key.  When we expressed some surprise our L/A was quick to tell us that we could not comment as these (the matter of keys) were the rules of the house and that they were to be obeyed.  We allowed the order to continue.

The other case was the sentencing of a persistent thief whose favourite target was rather old cars whose security systems were virtually  non existent but contained tempting items in the interior.  The unusual feature was that we were also presented with an ASBO which would have prohibited  him from touching a car for the following three years.  It must be at least five years or more since I had last been involved in a similar matter of considering an ASBO.  The prosecutor`s manner was such that granting such an ASBO would be almost a forgone conclusion.    We duly sentenced the offender to custody suspended but declined to grant the ASBO owing to its  one and only term; “touching” which we felt was unduly onerous especially with regard to the substantive disposal.  Our L/A was also surprised but wisely made no further comment.   I doubt I will listen to another ASBO application before they decide I`m too senile to do this job any more.

EXCEPTIONAL HARDSHIP!!!!!!!!!! YOU MUST BE JOKING

On August 25^th I commented on Freddy Flintoff`s collision with the courts with regard to a speeding allegation.  Contrary to my prediction he appeared before a bench in Carlisle and not a District Judge. My title "One Law for Them..?"  was apt but not as I had foreseen.  I  commented on “exceptional hardship” on January 31<sup>st</sup> and June 30<sup>th.</sup>     This is the argument that Mr Flintoff`s representative yesterday  argued successfully.  Bearing in mind there is only the news report upon which to make comment I must say I am appalled by my colleagues` decision to accept the argument.  In very very simple terms it is IMHO an argument that wealthy people  can rarely substantiate.  The term hardship refers to hardship caused to others than the offender and it encompasses situations  where that  offender`s inability to drive for the proscribed period  is relevant.  For a person of means,  any and I mean any  such inconvenience can be overcome by the employment of a driver.  There is quite rightly a difference in the application  of the hardship “get out of jail free” card between those of average income  and the wealthy.  The former might be unable to afford taxis to ensure eg  a sick person who is reliant upon the offender can attend hospital appointments or other similar arguments.   An individual who can drive around in a Bentley and who is recognised as very wealthy can easily afford to employ a driver or contract a taxi service to substitute for the temporary status of being disqualified.  I have to admit to being appalled by this decision.  It brings the law into disrepute and the bench chairman`s reported remarks are completely misplaced;   David Johnson, chair of the bench, said: "Because of your position, the fact that you are well known, clearly the impact has to be on others, more than you yourself."  No doubt in another court at another time an offender whose plea of exceptional hardship is refused would have a right to comment, “So I`m not as famous as Freddy Flintoff....”.    To say I am dismayed would be an understatement.

A LAW WITH UNINTENDED CONSEQUENCES

Domestic violence is a descriptive term; it is not a crime.  Domestic abuse is a descriptive term; it is not a crime.  Common Assault is a crime. There are clearly cogent arguments that actions which constitute the former  description could be clarified in legislation.  It would not be unreasonable for parliament to take such an approach.  The current position of defining assault in a domestic context leaves loose ends.  One person`s  domestic context is not necessarily another`s.  I remember  many years ago  sitting on a bench which was advised that assault involving two “distant”  brothers-in-law sharing with their families a very large house was to be considered a “domestic”.  I disagreed in principle and  my opinion was reflected in our sentencing of the guilty defendant.  

My colleagues,  and I suspect,  most lawyers are well aware of the problems when such cases are often “s/he did”: “no I didn`t.”  Often photographs taken by the officers called to the scene are instrumental in a bench`s conclusion of guilt.  With  proposals from Theresa May that emotional abuse could be construed as domestic violence the law IMHO is going where it has no right of way.  Couples  within an intimate relationship which was  the originally defined situation and which excludes many existing “domestic” relationships   eg parent/child, sibling/sibling etc etc  are always subject to emotional variations; it is the human condition.  To legislate name calling as an offence means that a tribunal of J.P.s or a District Judge(MC) must be sure beyond reasonable doubt that harm has been caused by a defendant to a complainant.  In the normal context of harm this will be almost impossible.  Of course proponents of such proposals will retort that controlling or insulting behaviour can cause mental health problems of one kind or another.   That indeed might be true in some cases but can such trauma be shown in a court of law to have reached the threshold whereby a finding of guilt can be made?  I would posit that such legislation would inevitably be subject to the law of unintended consequences and would cause more problems than it would solve. 

ONE LAW FOR THEM.........?

There were about 524,000 summonses for motoring offences last year.  Those who plead not guilty by post are summonsed to attend for trial.  For those who notify the court that the proposed date is unsuitable and indicate any future unsuitable date eg for pre booked holiday, an adjournment will  usually be granted.  Well; that`s the usual procedure.  The purpose is to pursue speedy, simple, summary justice.  But if you`re a famous cricketer it seems more favourable terms can be declared.  In this case, from the limited report,  it appears that the defendant   is doing the court a favour.  One law for them............?  And what are the odds that a District Judge will be allocated this case when it does eventually come to trial?

WE FORTUNATE FEW

It`s often said that we who sit in the lower courts  see before us the stupid ones; those who need lessons in how to shoplift efficiently, fail to wear gloves when trying car door handles, swear  once too often at police officers and think speed cameras are all empty boxes.  However some are simply people who fail or cannot connect to society; who for myriad reasons are outcasts.  One would be lacking in simple humanity if a certain degree of sympathy did not intrude into the sentencing process irrespective of Guidelines which newer colleagues can sometimes  tend to consider as sacrosanct. 

Recently we had before us a youth of nineteen of previous good character who had pleaded guilty to possession of cannabis with intent to supply.  His demeanour in the dock spoke loudly.  He was about 5ft 6inches and pitifully thin.  Wearing a slightly grey white shirt he stood with his shoulders hunched   looking at his feet.  His replies to the L/A were so inaudible that we had to ask him twice to speak up.  In his mitigation his advocate told us that although he was arrested with fourteen wraps he had not sold drugs:  he had given quantities to “friends” in order to buy their companionship.  His life history to date, he added, was such that it was remarkable that he was not now in a very much worse state of being.  We retired.  He received the pronouncement of twenty seven hours at an attendance centre with barely a flicker.  We who are generally fortunate to have grown up and flourished in the rich soil of our friends, colleagues and families are from time to time reminded from our privileged positions that there are so many not so fortunate.  For some it`s a dog`s life.