THE THIRD VERDICT

Trials involving motoring offences often follow a pattern where the defendant especially if unrepresented is blind to the folly of his/her errors which have necessitated legal intervention.  There is no doubt in my mind that if many such defendants were interrogated more efficiently by the court on their first appearance many such trials would and should be avoidable such is the confusion in the layman`s mind between innocence and  mitigation.  However such is the variety of human behaviour that from time to time a matter will come to court which will be head and shoulders more interesting than the rest. 

Sean was Irish in his mid thirties whose hair was not exactly ginger but could not quite be described as brown.  Nevertheless although it was thinning it was an obvious feature.  He faced two motoring charges allegedly committed on separate  occasions  the later one being more serious.  When his case was called on we were told  that in both matters identity was the issue and that for reasons that would later become obvious  they would be tried separately.

The prosecution case consisted of the evidence of  the police officer who had conducted the stop in the first matter.  She duly gave her evidence whereupon defence counsel showed her  a picture of an individual and asked her  if the man in the dock or the face in the picture was the person stopped.  Without hesitation she said that the image in the picture had more resemblance to the stopped driver than the defendant.  Sean was acquitted.  There was then some discussion in the absence of the defendant.  Identity was also to be the defence in the second matter.  We were told that the image was of a known offender who was also known to the defendant.  A month or two previously Sean had been charged with a matter involving the same vehicle in another motoring case at another court but it was withdrawn  when it had been shown that his alibi was watertight and that the known offender whose image had been taken at the time of that stop was the likely culprit.  CPS was granted a short adjournment to call a reviewing lawyer.  Five minutes later we were told that they would proceed with the case.  The defence was essentially the same.  The single prosecution witness, the PC who had made the stop almost a year previously and interviewed the driver at the scene, was adamant that the defendant and the driver were as one although only a very vague description had been recorded in her notebook.  That description made no mention of Sean`s hair colour.  She seemed to recollect the unusual car involved more than anything else.  (It was not the vehicle involved in the other cases).  There is much written on the issues involved in a dock I.D. For his part Sean was not quite as credible  a witness as one would have  expected  an innocent party to be.  He was sometimes hesitant and some of his actions were not as consistent as they might have been.  However the evidence presented; prosecution and defence,  and taking into account the earlier acquittal described above and the matter  previously withdrawn  as our L/A advised was within our remit, was such that we could not be sure he had committed the offence .

No doubt if he had committed the offence in Scotland referendum or no referendum he would perhaps have been acquitted on a verdict of not proven.  I understand of course the wider implications of the third verdict which has no place in any other jurisdiction.  Are we better off with simple guilty or not guilty?  Sometimes  I hae ma doots. 

C`EST LA VIE

Six courts were running yesterday morning of which two were constituted by just two J.P.s.  Two of these courts had their afternoon sittings cancelled.  C`est la vie!

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.