M.O.J. EVADES F.O.I. ANSWERS

On 29th December last year I posted on the fact that new categories of assault in the context of domestic violence came into being without there being any statistics to validate their being enacted. Of course there is still no dedicated offence of "domestic violence".  Defendants are prosecuted under the various degrees of assault on the statute book.  With the prime minister in his recent speech on the subject describing how the incarceration of ever more offenders must stop it would have been thought that the efficiency and terms of the probation service and the study of increasing use of custody suspended would be a matter of priority.  As all interested parties now know (and many predicted)  the current state of what was once a tolerably efficient national organisation has been emasculated by the arrogance, unthinking and discredited actions of Chris Grayling the most ill fitted and catastrophic Lord Chancellor in living memory.  Having offenders allowed to remain in society with a threat that breach of their custody suspended sentences will point them towards their local prison puts a heavy responsibility on that emasculated profession and its reduced workforce.  It would therefore be thought that a coherent policy on actions to be taken against those who do indeed breach the conditions of their get out of jail not quite free card would be of prime consideration both to sentencers and probation.  That thought would be mistaken. In circumstances such as custodial sentencing,  historical statistics are a major part of the socio political arguments being argued by Cameron and other interested parties.  Punishment, deterrence, rehabilitation and public protection are all part of the sentencing mix. Suspending a period of imprisonment falls mainly into the deterrence basket with some  rehabilitative input and to validate the involved and impending processes, efficiency in such sentencing, one would have thought, would be essential. Those processes should involve knowledge of the numbers of offenders breaching suspended sentence orders and their sentences as a consequence being activated whole or in part.  By the grace of the Freedom of Information Act which some in government wish to restrict, may they rot in hell, such questions were recently asked to which in brief the answer was....we don`t collect such statistics in any simple straightforward cost effective format.  Considering all the information the M.O.J. does collect about courts, outcomes, times taken, sentencing etc etc it is rather odd that numbers which this observer at least (and no doubt many others) considers of some importance are not collected in a similar format thus enabling forensic analysis. Perhaps this failure is  not by ommission but by commission.

The  response of the MOJ is copied below.

Freedom of Information Request

Dear ***********,

Thank you for your email of ***********  20**, in which you ask for the following information from the Ministry of Justice (MoJ):

For the last five years how many suspended sentence orders have been made by magistrates` courts in actual numbers and as a percentage of all custodial orders?

For the last five years how many of these SSOs as above have been breached and resulted in the activation in whole or part of these orders in actual numbers and as a percentage of all SSOs

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

I can confirm that the Ministry of Justice holds the information that you have asked for. However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I'm afraid I will not be taking your request further. In this letter I explain why that is the case and I also provide you with some advice as to how you could refine your request so that we may be able to answer it.

The law allows us to decline to answer FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.

It may help if I explain that the Ministry of Justice Court Proceedings Database holds information on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales. This database holds information on offences provided by the statutes under which proceedings are brought but not all the specific circumstances of each case. This centrally held information does not allow us to separately identify breaches of suspended sentence orders. This detailed information is not reported to Justice Statistics Analytical Services due to its size and complexity.

In this instance, to provide you with the information, we would be required to contact all Magistrates’ courts in England and Wales and ask them to search individual case files where a suspended sentence order was given to ascertain how many orders were breached.  To collect and collate the information you require on the scale you have requested would exceed the ‘appropriate limit’ set out in Section 12(1) of the FOIA.

You can find out more about Section 12(1) by reading the extract from the Act and some guidance points we consider when applying this exemption, attached at the end of this letter.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/12.

Whilst you could narrow the scope of your request in order to try and bring it within the cost limit, for example by requesting information for a particular court, I would like to take this opportunity to advise you that it is very likely that any information that may be held within scope of your request may be exempt from disclosure under the FOIA under the terms of Section 32 (Court Records). Therefore it is likely that any subsequent narrowed request could be refused under Section 32.

However, outside the scope of the Act and on a discretionary basis  I am pleased to inform you that you can view data on suspended sentences given at Magistrates ‘ courts via the following link:

https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2014

Select and open “Magistrates’ court data tool” folder

You will be able to view the number of suspended sentences given at Magistrates’ court in England and Wales, from 2004 to 2014. The percentage of suspended sentence orders can be calculated by dividing the number of suspended sentence orders by the number of custodial sentences and then multiplying by 100.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/21 and further guidance http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance

I am sorry that on this occasion I have not been able to answer your request. You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

Disclosure Log

​

You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:

http://www.justice.gov.uk/information-access-rights/foi-requests/latest-moj-disclosure-log

​

The published information is categorised by subject area and in alphabetical order

Yours sincerely

Giovanni Barbuti

Justice Statistics Analytical Services

How to Appeal

Internal Review

If you are not satisfied with this response, you have the right to an internal review. The handling of your request will be looked at by someone who was not responsible for the original case, and they will make a decision as to whether we answered your request correctly.

If you would like to request a review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the

following address:

Data Access and Compliance Unit (10.34),

Information & Communications Directorate,

Ministry of Justice,

102 Petty France,

London

SW1H 9AJ

E-mail: xxxx.xxxxxx@xxxxxxx.xxx.xxx.xx

Information Commissioner’s Office

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner’s Office. The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if he considers that we have handled it incorrectly.

You can contact the Information Commissioner’s Office at the following address:

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire

SK9 5AF

Internet address: https://www.ico.gov.uk/Global/contact_us.aspx

ADDITIONAL INFORMATION ABOUT SECTION 12(1)

We have provided below additional information about Section 12 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities

(1) Any person making a request for information to a public authority is entitled—

(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)        if that is the case, to have that information communicated to him.

Section 12: Cost of compliance exceeds appropriate limit

(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

(4) The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a public authority—

(a)        by one person, or

(b)        by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign,

the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.

(5) The Secretary of State may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated.

Guidance

The appropriate limit

The 'appropriate limit', for the purposes of section 12 of the Freedom of Information Act has been set at:

• £600 for central government and Parliament.
• The hourly rate is set at £25 per person per hour.

The following activities may be taken into account when public authorities are estimating whether the appropriate limit has been exceeded.

• determining whether it holds the information requested
• locating the information or documents containing the information
• retrieving such information or documents
• extracting the information from the document containing it.

 

EXPLANATION OF FOIA - SECTION 32 – COURT RECORDS

We have provided below additional information about Section 32 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities

(1) Any person making a request for information to a public authority is entitled—

(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)        if that is the case, to have that information communicated to him.

Section 32: Information held by virtue of being contained within court records

(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)        any document filed with, or otherwise placed in the custody of, a court for the purposes of   proceedings in a particular cause or matter,

(b)        any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or

(c)        any document created by—

(i)         a court, or

(ii)        a member of the administrative staff of a court,

for the purposes of proceedings in a particular cause or matter.

(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)        any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b)        any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

Guidance

Section 32 exempts information contained in those litigation documents and court, tribunal and inquiry records to which it applies. It exempts information held by a public authority if it is held solely by virtue of its being contained in those categories of document.

The information must be included in a particular type of document and must be held by the public authority only by virtue of this. However, if the information is so held, it will be exempt regardless of its content and for the reasons set out below public authorities should refuse the request. This applies both to the document itself and to any copies of that document or copies of the information which it contains.

There are separate and specific regimes for access to information held by courts and tribunals, designed to give those bodies themselves a measure of control over that information. For example, Rule 5.4 of the Civil Procedure Rules deals with access to court documents in civil proceedings in the county courts, the High Court and the Court of Appeal. It allows any person, on payment of the prescribed fee, to inspect and take a copy of (a) a claim form which has been served, (b) a judgment or order given or made in public, and (c) any other document if the court gives permission. Where a person has the right to inspect a document without permission, a request can be made to the court staff. Where permission is required, an application must be made to a judge. The Civil Procedure Rules do not include any guidance on the court's exercise of its discretion but the court will take account of all the circumstances of the case and the competing principles of open justice and the right to privacy of persons who may be mentioned in court documents.

MORE COURT CLOSURES

By now most readers will probably be aware of the government`s decision for another wholesale closure of magistrates` courts.  This was perfectly predictable.  This Chancellor who controls ministry budgets has shown for some time that he picks off these targets easiest to hit an example being the infamous "pasty tax" in 2013 which was hurriedly withdrawn.  The principle underlying the bedroom tax might have some cogent arguments in its favour but its implementation took no prisoners and has led to much ill will from some natural Tory supporters. The scandals of those whose disability allowance has been arbitrarily reduced or withdrawn have played eagerly into the hands of the Opposition.  But the closure of courts is a different matter.  Most people have not had any contact with the legal system.  The arguments against closure especially for those courts in rural districts are unchanged.  The facile statement that 97% of court attenders will be able to reach their nearest court within one hour`s travel by car is just another sign of the arrogance of those who rule us.   My experience tells me that a large but apparently unquantifiable number of court attendees travel by public transport.  In a city they  might be within one hour of the court but a brief look at the map of inter alia North West England, Devon and Cornwall or central and North Wales tells a different story for public transport. It cannot now be denied that the mantra of local J.P.s for local justice is now consigned to history despite the protestations of those whose view of the situation is coloured by their rose tinted spectacles. Already one magistrate has told his local media of his resignation from the bench owing to his court being one designated for closure.  Others will surely follow.  This will be a source of satisfaction for those in Petty France. 10,000 J.P.s have gone in ten years; only another 19,000 to go.........literally.

NOTE TAKING IN COURT

An essential part of the remit of a winger on the bench is to be on the lookout for any untoward activity in the court, particularly in the public gallery.  Such activities would include hostile actions or apparent threats or advice to a witness, talking, use of camera or mobile phone etc etc.  One action that should not cause a bench member any concern is that of an individual, wherever s/he might be sitting in the courtroom, taking notes.  Apparently a crown court judge in 2014 thought differently. HHJ Crowther QC at Cardiff Crown Court threatened a note taker with being in contempt of court. Recently the decision of the Divisional Court decided that in general terms open justice  must be the default position.  

This should be ingrained in the grey matter of all J.P.s particularly those who take the middle chair.  Legal advisors who often take the most conservative position available on controversial matters should also take note.
 

MEET THE BENCH

Although I am approaching the first anniversary of my retirement from the bench I still occasionally receive correspondence appropriate to that position.  Amongst such correspondence late last month was the bundle sent to active bench members prior to the impending six monthly bench meeting. Some observations on that bundle I think are worth commenting upon.

The minutes of the previous meeting formed part of the bundle.  As per my own experience only about 20% of the membership attended that meeting last year and about one third sent apologies.  A maths wizard calculates that around half the bench showed no interest whatsoever in the proceedings. When I left the bench last year its complement was 250 or thereabouts. Since then, so remarks by the Justices` Clerk as recorded in the minutes  stated, 28 new J.P.s had been appointed. He further said that another 17 would be required by next summer.  Wishful thinking perhaps when the minutes further recorded the local advisory committee`s struggle to effect the recruitment of the required extra numbers.  It was also recorded in the minutes of that previous bench meeting that the Justices` Clerk had said that there was currently a single Family Court and that there could  be a move to a single Criminal Court.  From such an elevated source such a remark is not to be lightly dismissed.  It also could be a further signal of the removal of the lay magistrate if not from the proposed court configuration then certainly from the middle chair.  

Documents for presentation at the forthcoming bench meeting   contained a report on the situation with the probation service. Here are a couple of quotes;

"The National Probation Service have put a strategy in place to speed up the process of obtaining reports; the majority should now be "short format reports" with 55% on the day oral reports and 20% fast delivery reports adjourned for one week.  Three week adjournments for reports should become the exception rather than the rule.  Currently ******* is falling well short of these targets, largely due to staffing problems within probation. Whilst ********** (senior probation officer) and her team are working hard to address this, the fact is that their difficulties are likely to be exacerbated in coming months as a result of the new post sentence supervision requirements, whereby all defendants who have received a custodial sentence, are, following their release on licence, subject to supervision for 12 months". 

 

"Magistrates are therefore reminded that when ordering reports they should consider whether one is really necessary.  Clearly sometimes more information is required (particularly in DV cases), but where the situation is straight forward there are alternative disposals to a community order that do not require a report. Curfews, Attendance Centre Orders and Band D fines (250% relevant weekly income) are sentencing options that do not require reports. Band D fines can be useful when dealing with more serious motoring offences".

Readers will be able to interpret these statements in line with their own experiences.  Another report to be presented at the meeting showed that about 60% of trials were effective and around 10% were being vacated. These numbers are not out of the ordinary but indicate just how much court time is being wasted.  

My final observation is that throughout the minutes of the previous meeting not one single question is reported to 

having been asked  of any of the reports presented to those attending or of any of the speakers including report writers,  Justices` Clerk, Deputy Justices` Clerk and Bench chairman. 

Of those who attended the previous meeting, what a supine lot of individuals they appear to be!  Perhaps they all considered that they did not disagree or required any extra information about what they had read or heard  or perhaps they were afraid of upsetting the great leader. It therefore follows that it is unlikely the forthcoming meeting will be a platform for any dissent.

MORE MUSINGS ON TUESDAY

I doubt that any magistrate who made a similar remark as this judge would be exempt from criticism from his/her politically correct colleagues or legal advisor. 

David Cameron`s attempt to further his socially awareness agenda by considering the establishment of a modern version of what used to be called approved schools must have brought tears to the backwoodsmen in his party including former leader Michael (prison works) Howard. 

It seems that the Bench in Cambridgeshire [this blog Friday February 5th] is not alone in using the media to seek new J.P.s.  The Chairman of the North Staffordshire Bench has a gone a step further by exploiting digital technology. His six minute question and answer session available here is to be lauded.  However I find his statement that there is effectively a target to appoint one third of applicants with a maximum number of the latter limited to 75 somewhat optimistic. I would ask readers to consider their own friends, family and work colleagues who have a spectator`s interest in the topic and consider what percentage would be suitable proposals for the bench. Or perhaps the above categories around myself are as unsuitable as I was once told by one who provided a reference. For the record he apologised not long afterwards for being flippant.  

It seems that "England & Wales" is a combination proper noun that upsets some west of Offa`s Dyke.  I can understand that history is a perfectly logical reason for the legal system north of the Tweed to have developed along its own course but the determination of some presumably Welsh speakers not satisfied with everything bilingual to emphasise their differences from their English neighbours defeats me.  Nationalism in prescribed doses is essential for the cohesion of a population...........to a certain extent.  Attempts to subdue it have produced past disasters........USSR, Yugoslavia and to a lesser extent Czechoslovakia to name three just as rampant unbridled nationalism has produced Nazi Germany, Fascist Italy and murderous Rwanda.  That quest for the appropriate dose still eludes us as we will possibly discover on 23rd June and Americans in November. 

FOREIGN CITIZENS ON THE BENCH

Last Friday [the post beneath this one] I posted on the content of the Cambridge Times where it was reported that the local Appointments Committee was seeking to double the number of magistrates in its area by seeking 200 new appointees.  Today the local print media rival the Cambridge News has a report based on the same story except this time the number sought was not mentioned. Whether this was by accident or design of course I do not know. Perhaps my post had been read by a member of that Committee who didn`t enjoy the content.  In any event  there is quoted a member of the Cambridge Bench and presumably also a member of the Appointments Committee describing the type of applicant they were looking for. "We are particularly keen to broaden the diversity of the Bench to reflect our community by encouraging applications from young people, those from Eastern Europe, those from Black and Asian Minority ethnic groups and those with disabilities."  Now diversity and disability by themselves should not be criteria for appointment as per positive discrimination but encouragement for such individuals is to be lauded.  What I find unpalatable is the direct appeal to the East Europeans who have arrived in East Anglia in large numbers.  Whilst many recent immigrants there and elsewhere  aim to make this country their permanent home and become citizens, citizenship is not a requirement to sit on the bench.  Recently a pre requisite of a US President to be born in that country has been the subject of some scrutiny.  If an individual, however capable, is, for any reason   unwilling or unable to become a citizen of this country where s/he will sit in judgement on its inhabitants it is my humble opinion that such a person should not be offered that privilege.

NEW FOR OLD MAGISTRATES

It is a well known fact that Justices of the Peace are hardly spring chickens.  In fact taking the analogy a bit further a large number is but one slippery foot from the slaughter house.  The members of the bench in Cambridgeshire are no exception.  At the last count in April 2015 there were 206 worthy members of whom 126 were aged over 60.  It is not unlikely that in the ten months since then many more will have retired. It seems therefore that approval has been given for the recruitment of 200 additional  civic minded citizens to join the bench.  This seems to be ludicrous.  What business or organisation would wish to double its number of specialists in one fell swoop of recruitment?  No doubt those clever people in the Ministry of Justice who have been so pre occupied in closing courts and decimating the CPS over the last five years were too busy to consider the effects of a rapidly ageing work force.  My opinion and that of most J.P.s is that it takes about five years to consider a magistrate "experienced".  Those 200 initiates will have to be mentored officially and unofficially by a reducing core of "experienced" colleagues in addition to official training from HMCTS.  To quote from Transform Justice`s 2014 Report on magistrates` training; " In 2008/9 HMCTS spent £3.2 million on magistrates’training. In 2013/14 they spent £559,000. When combined with spend by the Judicial College this equates to a reduction in spend from £110 per magistrate in 2008/9, to £26 per magistrate in 2013/14."

The age profile country wide is not a lot different from that in Cambridgeshire.  The lowest aged areas have an average age of 58 and the highest age of J.P.s is in Westminster at 65. 

The inability to recruit  new J.P.s in sufficient numbers to replace those retiring and/or the difficulty in providing the necessary  cash for training will be heralded as yet further justification for the need to appoint perhaps another 400 District Judges to further the professionalisation of the lower courts system and for the the initials J.P. to be little more than a decorative title for those who choose to offer their services for out of court activities.

ALCOHOL SALES TO CHILDREN//WHEN WILL BENCHES TAKE ACTION?

There are occasions when I just despair at the sentencing of lay benches when  the overriding priority of public protection is either not considered, considered and ignored or not part of the judicial sentencing process. Illegal actions against children are rightly given headlines when sentencing in the crown courts seem to bend over backwards in favour of an offender`s rehabilitation over punishment for the offences.  Only rarely do we read of punishments as a deterrent to others.  Perhaps those who have a tendency to abuse children are beyond deterrence.  

Magistrates are unlikely to deal with physical assaults concerning children but when cash strapped local councils and their Trading Standards departments make the very occasional case against sales of alcohol to under age children s.146 Licensing Act 2003 one would expect a bench to take the matter very seriously indeed. And that degree of seriousness; harm and culpability, should be reflected in the sanctions imposed upon offenders. The starting point is a Band B fine which equals one week`s income with a range from Band A {half a week`s income} to Band C which is 150% of weekly income.  Those notional levels are without considering higher culpability and increased harm to victims.  I commented on the topic in general  here in 2013.  The following year I posted on my personal experience of how these matters are treated in Scotland and last June provided some compelling statistics about the inadequacy of enforcement in England & Wales. 

The sentence dished out to this offender in Oldham for a second similar offence is beyond reason.  A Conditional Discharge and no fine even with the provisos as stated  is an indication of just how fearful J.P.s are of taking their powers to the limit within the law.  Alcohol drinking by children is detrimental on a grand scale to their health and social and mental well being without even considering actions undertaken while under the influence.  The members of that bench and probably others need to wake up.  Repeat after me:- PUBLIC PROTECTION TAKES PRECEDENCE OVER EVERY OTHER CONSIDERATION WHEN CHILDREN ARE INVOLVED.

COURT REPORTING AS IT SHOULD BE

From time to time I have been known to be critical of cases reported in various local print media.  I have also commented upon the quality of such reports and the likelihood that there is little prospect of returning to an era where court reports made up a significant proportion of the content of such media along with births, marriages , deaths, and cars for sale.  Just as buses on a rainy day are nowhere to be seen until two or three arrive in tandem two reports today offer a glimpse of court reporting as it was and should be and are a credit to the newspapers concerned.  Whilst there might be room to criticise the outcomes of the cases reported the publications` quoting of pronouncements have allowed their readership a glimpse of how magistrates` courts actually work. So well done to the Ulster Herald and the Swindon Advertiser.

THE DISTRICT JUDGE OVER WORKED AND UNDER VALUED

There was an interesting piece in yesterday`s Law Society Gazette.  A supposedly overworked and under valued District Judge(MC) is taking action against HMCTS to bring a claim citing disability discrimination and whistleblowing under the Employment Rights Act 1996.  The many comments after the article are as interesting as the piece itself.  For my part I have little sympathy with her.  Perhaps she thought the job involved a very hefty salary with none of the downside of being in practice and a juicy pension to boot. Readers can judge for themselves here.

SUPREME COURT PRESIDENT WAS MISUNDERSTOOD!?!?

There was a time long ago when my respect for judges was almost unbounded.  Successive incidents, announcements, actions and inactions  and pronouncements have eroded that respect. The result and conclusions of Lord Levison`s effort to control the freedom of the press were the antithesis of the basis of a free society and gave this blogger at least the impression that the senior judiciary is marching to a popular tune far removed from its original melody. In April last year Lord Neuberger, the President of the Supreme Court no less made headlines which stated unequivocally that a foreign non religious culture should be able to supervent the requirements for impartial secular, non denominational court proceedings in this country.  It seems his lordship`s thinking processes are not to be relied upon. Last week he had a change of mind.  Now some changes of mind are welcome when a situation or a basis for consideration is altered to such a degree that not to alter an opinion is simply foolish. But nothing of fundamental value has changed in the question of whether witnesses in court should be allowed to wear a veil. Nevertheless he has issued a new statement in The Times 30th January (behind its paywall so scanned below)  telling the world that his previous utterings had been "misunderstood".  Misunderstood!  Are we to believe that the President of the Supreme Court could not make his thinking processes clear to mere mortals?  Are we to believe that this man at the top of his profession; a profession which daily decides upon the machinations of those angels dancing on pinheads, could allow himself to be misinterpreted?  There are only two outcomes.  If we believe then confidence in his position is eroded; if we disbelieve confidence in his position is eroded.

REWARD FAILURE

Along with most other legal commentators or observers this blog was highly critical of the previous government`s Justice Secretary, one Chris Grayling AKA currently as the Leader of the House.  I think it is fair to say that few legal big wigs made any great criticism of his activities whist he was in occupation of the woolsack.....at least in public.  He brought nothing less than havoc to the criminal courts, the magistrates` courts in particular, by the imposition of the criminal courts charge last April.  He tore down the national probation service in an effort to substitute  payment by results from outsourcing companies who have predictably and contrary to their original assurances proceeded to reduce the workforce but at a cost in all probability  of reduced effectiveness in what is now a two tier probation system.  He presided over a walk out of barristers who demonstrated outside the very courts in which they were scheduled to appear and who thus prevented proposed cuts to their fees. Against all advice and common sense he introduced curbs on the books which prisoners could have in their cells.  He contracted to a joint venture on their prison system with Saudi Arabia.  All these proposals bar the changes to probation have been rescinded by Michael Gove.   Earlier this week he scrapped proposed changes to the legal aid contracting scheme for lawyers. 

Rarely if ever has there been such a disassociation and repudiation of one cabinet minister`s actions by his successor of the same party. It is beyond belief that he occupies a front bench position in the House of Commons.  It is little wonder that politics and politicians are held in contempt by the general public when such  failure is rewarded.

WEED: NO EVIDENCE SO NO CONVICTION

I support the decriminalisation of drugs for personal use.  Addiction is primarily a medical problem; criminality is a consequence.  Although there are cogent arguments against,  I believe that beginning with reforming the law for cannabis in all its forms would be a desirable thin edge of a very wide wedge.  During my time on the bench that philosophy was enhanced by the many occasions of a lackadaisical police approach to producing evidence in court of the use of the weed for personal use.  Depending on circumstances cannabis for personal use was an easy collar or an unnecessary irritation.  Events recently at Cambridge Magistrates' Court were,  I`m sure, not unfamiliar to any Justice of the Peace.  It is, however,   unlikely that this government has the cojones to bring forward such legislation.  A very substantial parliamentary majority would have to be in place and the political rewards would need to be apparent.  Weed smokers had best still keep their habit behind locked doors and those don`t include car doors on or off the public highway.  

RISK OF SEXUAL HARM NOTICE//MIRTH IN THE MAKING

There`s an ancient proverb that says more or less that if one offers the devil a finger he`ll take the whole hand.  Apply the metaphor to the police and there is a neat congruity.  Domestic violence protection orders are such an example.  On the basis that the "victim" must always be protected from somebody these iniquitous actions can be applied by a police officer of superintendent rank or above. In practice no superintendent is going to attend such an alleged incident in person; s/he will rely upon a report from a constable or even a PCSO.  The consequences for those arrested and subjected to such an order can be life changing.  For further information government guidance is available here and as an example in practice Sussex Police have published this.  The College of Policing has its own text on the topic. 

In the Sexual Offences Act 2003 can be found the following:-(as amended by the

Anti- social Behaviour, Crime and Policing Act 2014)

126Interim RSHOs

(1)This section applies where an application for a risk of sexual harm order (“the main application”) has not been determined.

(2)An application for an order under this section (“an interim risk of sexual harm order”)—

(a)may be made by the complaint by which the main application is made, or

(b)if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3)The court may, if it considers it just to do so, make an interim risk of sexual harm order, prohibiting the defendant from doing anything described in the order.

(4)Such an order—

(a)has effect only for a fixed period, specified in the order;

(b)ceases to have effect, if it has not already done so, on the determination of the main application.

(5)The applicant or the defendant may by complaint apply to the court that made the interim risk of sexual harm order for the order to be varied, renewed or discharged.

The law of unintended consequences might apply to the application of this legislation so I wonder if the bright young minds in Petty France foresaw the possibilities that the sublime would  soon turn into the ridiculous if this poorly considered amendment were followed, as it was to be, by police to the extreme.  North Yorkshire Police in their wisdom would appear to have brought a smile and mirth to every sub editor worth his/her salt  with the decision to specify the conditions under which a man inter alia must inform them 24 hours before having sex with a woman. 

Once again this is an example of so called victim orientated law going beyond the bounds of reason. It will take resolve, good sense and strength for a bench to refuse such applications.  I fear that few will be able to withstand the pressures put upon them when the time comes.

 

CRIME AND LACK OF PUNISHMENT

Despite the introduction of sentencing guidelines a decade and a half ago it can probably be said that no two cases are the same and certainly not the outcomes.  Indeed within the same courtroom I have in the past had to remind colleagues that each and every case had to be assessed on its individual circumstances and that there is no such thing as a judicial size fitting all.  It is, however, interesting to note the dissimilarities between two matters where assault was committed using footwear as the weapon.  Firstly the charges were of different magnitude; grievous bodily harm or unlawful wounding and common assault.  The former unprovoked attack  resulted in serious injury and after a guilty plea the offender was sentenced in the crown court to 18 months custody suspended. The latter case before High Peak Magistrates resulted in 10 weeks custody suspended for the assault by a man on his pregnant girlfriend who was approaching her due date when the assault took place.  

The second matter reminded me of a case over which I presided when the male in a relationship dragged his heavily pregnant partner by her hair to the top of the stairs in the house they shared and pushed her down those stairs.  We were astonished at the undercharging by the CPS and had no doubt that he deserved and received our maximum sentence of six months immediate custody.  With the cases reported above only those in court know the full extent of mitigation offered but on the surface it does appear that the crown court judge might have been feeling particularly benevolent that day.  The case in the lower court does IMHO raise more awkward questions.  Did the CPS under charge?  Did the bench feel apprehensive about immediate custody owing to "advice" from the legal advisor?  If a man can strike two or three times the back of a woman`s head with presumably a reinforced work shoe and that woman  is near to giving birth  and still not receive immediate custody just where are we going with crime and punishment?