NO SUBSTITUTE FOR EXPERIENCE

One of the most testing times  for a chairman of a bench of magistrates IMHO is in the control of the court during a personal appearance  of an angry citizen during a “Council Tax” court.  Recent changes brought about by Ian Duncan Smith and his cohorts have led to tens of thousands of low income individuals having to pay a proportion of Council Tax for the very first time.  Although the amounts might appear to be small in the grand scheme of things their very imposition for some is a bitter blow to their already fragile financial existence.  Readers here will be well aware that our powers are severely limited when dealing with the granting of liability orders where there  is little or no payment in prospect from householders.  Locally I find that the borough prosecutors make every effort to resolve matters even outside the courtroom where a handful of aggrieved people present at every hearing to put their case.  Only in very few cases have I found any reason to justify the rejection of an application but there have been a few over the years.  The problem for the chairman is being able to reason with people struggling to get by on a pittance when they are sometimes unable or unwilling to understand that as a bench our powers are severely circumscribed in these matters.  Some are extremely articulate and bring with them masses of paperwork in a vain attempt to halt the  council`s bureaucratic   tsunami  onslaught.  On occasion it can take a mixture of understanding, tact, confidence and resolution   from the bench to prevent matters deteriorating to a shouting match where the defendant is going to be the loser.  Currently whether winger or chairman, old hand or relative newbie a half day sitting every fortnight is the minimum sitting requirement to fulfil the MOJ guidelines.  However competent a J.P. might be I would opine that in specialised courts where sittings are more irregular these minimum guidelines are inadequate.  Whether  pilot, joiner, plumber, lawyer, surgeon I would not like to knowingly fly with a pilot whose flying hours were   minimal; I would employ a joiner only after being sure his previous work was of a high standard, a lawyer who had to look up the books at every opportunity would not get my business, any plumbing problems I`ve had were solved by someone with experience and when in the past I have required surgery I have questioned  the surgeon`s  previous expertise.  Perhaps I write from a position of privilege but that does not invalidate my opinion that there is no substitute for experience.

CHOOSE FROM LICENSING ACT s.146/THEFT ACT s.2 OR DEAD COMPANY BUT LIVE DIRECTORS

As in most occupations there are some days when events are much more interesting than others.  My last sitting was such a day. 

It disturbs me greatly when governments of all hues moan and groan until the night is long and fail to enact obvious corrective measures to  a particular  problem.  The consumption of alcohol by under age teenagers is a major scourge.  Whilst some drinking might be done in secret  at home most alcohol    is purchased from off  license premises ranging from Tesco and similar to the corner shop in any suburban shopping parade.   The simple deterrent to the illegal sale of alcohol in these circumstances would be  for a second offence to allow the offender to be  prohibited from holding a liquor license  for  a longer period than the current maximum of  six months.  The maximum fine is £5,000 for a  s.146 offence.  The fact that in 2013 only 128 offenders were convicted of s.146 alcohol offences under  the Licensing Act 2003 speaks volumes.  Local authorities which  are normally responsible for the policing of the act in these instances  devote their reduced budgets to the bare bones of what is necessary to fulfil their basic functions of roads, refuse collection, education etc.  The cost of children`s broken lives does not appear in any balance sheet.  The first such defendant  to appear in front of us that day  was a first timer  s.146 offender  who had since the offence sold his business.  Indeed he was the first s.146 case I have been involved in for at least three years or longer such is the dearth of prosecutions as borne out by the statistics link above.  With full costs we allowed him 7 days to pay his punishment of close to £2,500. 

Three company directors and their jointly owned company were charged with a series of offences relating to their car sales business.  They were unrepresented.  Their spokesman defendant  told us the company had been dissolved since the date of the offences.  The prosecutor verified this  after a brief adjournment and told the court that in law the charge against the company could not now be sustained but those against the now former directors would still go ahead.  To mere layman there is just a hint of illogicality insofar as a dead company cannot be charged but the former directors can be.

The third unusual matter was having to acquit an admittedly dishonest person because she had been charged with  theft from a shop on a particular day but had demonstrated that at the time of the incident she had not  knowingly been aware  the article in question could not be removed and she had had no intent to take something to which she had no right.  Subsequent evidence demonstrated that a day after the alleged offence she had knowledge that the item was not hers to rightfully have walked  away with.  In other words,  her initial honest mistake in walking out with an item,  under s.2 of the Theft Act could not be proved  as charged even when she realised later it was not hers to take.  If the charge had been written as having alleged the offence to have taken place between eg the original date and a later one when she was arrested a week later with the article we would have found her guilty.  Alternatively a charge involving dishonesty or fraud might have been better suited to the facts. But when the CPS scarcely glances at such details on such a common matter  when considering whether or what to charge what else can be expected?  We applied the law as it is; not as we might wish it to be. That is our duty.

MAGISTRATES` SENTENCING POWERS TO BE INCREASED

I hadn`t intended to put finger to keyboard this morning.  A close relative can`t make up his mind whether I am a geek, an anorak or a nerd but the news that the government intends us to have sentencing powers increased from 6 months to 12 months custody is interesting having been mooted for a decade or more.  The Times headline says it all; this proposal is geared to “saving money”  and creating yet another headline for Chris Grayling as opposed to any sense that the administration of justice will be more efficient or equitable for all concerned parties.  However the nerd enclosing  my geekish mind cloaked within its anorak finds the anticipated change somewhat perplexing.  On the assumption that the Sentencing Council is not going to suddenly increase the maximum custody limit for hundreds of offences from 6 to 12 months just where are  all those offenders going to be coming from.  I presume some current offences designated as either way will be those the custody limit of which will bear the increase when tried summarily.   In a nutshell some driving offences and theft seem to be the candidates where the saving will be made.  The other main offences tried by magistrates are common assault, alcohol related offences  and lower level drug offences.  It is highly unlikely IMHO that there would be any changes for them.

Perhaps somebody qualified to comment can offer some suggestions?  That does not include the advice that I should get out more.

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.