CAN BLIND BE JUSTICE?

There is much to be commended in this country where ever fewer positions or occupations are barred to people highly qualilfied but with various disabilities. Indeed such is anti discrimination woven into our employment legislation that sometimes it appears that disability is a pre requisite for a particular job.  Often grants from charitable institutions are enhanced for those who are disabled cf candidates without such impediments. 

Having thankfully no family members or close friends with disabilities, during my time on the bench it was a privilege to sit with colleagues who were physically disabled in some form or another  and who were determined to set aside their discomfort or pain and get on with the job at hand. However there was not one sight impaired member on my bench.  Having a professional background in the care of those visually handicapped I well understood the limits of such impairment for a magistrate. It was therefore with some surprise that I read last week that a barrister, presumably registered blind, had been appointed District Judge [M.C.]

I wonder if this is just a step too far in equal opportunities however capable the individual.  As a D.J. he will not only be presiding over the court which I can concede is likely to be within his undoubted ability but he will be making decisions on defendants` guilt or innocence where an inability to read facial expression or body language is going to be a handicap.   Will blind justice be seen to be done in his court? I suppose only time will tell.

 

LOBBYIST "BRAKE", SINGLE ISSUES & A WOLF

I suppose single issue lobbyists or groups have a purpose like anti noise campaigners or ban the bomb activists. Their use of hyperbole and doom mongering occasionally leads to a modicum of sensible reaction and the dismissal of much of the bloated misleading baggage surrounding the core argument.  "Brake" is such an organisation.  The Portsmouth News report of a local lawyer`s comments on the exceptional circumstances whereby a court can allow a driver who has accumulated 12 penalty points on his/her license within three years can argue that a ban would be inappropriate in the particular personal circumstances has brought forward a comment from the aforesaid Brake that "the news was shocking".  Whilst I am of the opinion that too many of my former colleagues lowered the bar too far too often in allowing the argument of exceptional circumstances to succeed  Brake devalues its protests when eg it argues that inter alia

"Causing death by dangerous driving – the maximum penalty is 14 years imprisonment (section 1) Vehicular manslaughter in the UK is very rarely the basis of prosecution, yet the impact of death by dangerous driving and vehicular manslaughter is the same for the family or friends of the deceased. Although a life-long driving ban would be welcomed, a more severe custodial sentence would in many cases be more appropriate than 14 years."

Perhaps this lobbyist like others in various sectors is aiming high in order to achieve that modicum of success.  If so that approach  risks the application of the law of diminishing returns. Perhaps  the single issue  boy who cried wolf once too often was also named Brake. Aesop doesn`t tell us.  

Road safety charity Brake said the news was shocking

Read more at: http://www.portsmouth.co.uk/news/crime/drivers-still-on-the-roads-with-12-points-1-7836371

Road safety charity Brake said the news was shocking

Read more at: http://www.portsmouth.co.uk/news/crime/drivers-still-on-the-roads-with-12-points-1-7836371

Road safety charity Brake said the news was shocking

Read more at: http://www.portsmouth.co.uk/news/crime/drivers-still-on-the-roads-with-12-points-1-7836371

BLUE BADGE CRIME

I recollect many years ago on returning to a rural car park and being berated by an elderly couple for parking in a disabled bay; an action that was completely accidental on my part.  I felt humiliated and told myself to be more careful in future.  Using a Blue Badge fraudulently is a different matter.  Whispers say that the price of a stolen badge is well into four figures. In addition they are not all that difficult to counterfeit.  When I was active we did not have many cases of fraudulent use as they usually were settled between the offender and the borough.  On the odd occasion when one came before us we often imposed the maximum fine of £1000 when there was little or no mitigation.  It is therefore somewhat surprising that according to a short report in the Warrington Guardian an offender was out of pocket to a derisory £69 fine for the use of an out of date badge not belonging to himself.  A lay bench is supposed to be more attune to local needs than a District Judge. Obviously this bench needs some re-education.  The item below might be helpful.

Blue Badge (Disabled Parking) Scheme enforcement policy

1.       The Blue Badge (Disabled Parking) Scheme provides a national arrangement of parking concessions for those people who have a permanent or substantial disability. NELC and its partners are responsible for the administration and enforcement of the scheme within the borough on behalf of the Department for Transport.

2.       The misuse of the Blue Badge scheme undermines the benefits of the scheme, impacts upon local traffic management and creates hostility amongst other badge holders and members of the public. It can result in a genuinely disabled person being unable to access designated parking spaces.

Types of misuse

3.       The vast majority of Blue Badge holders use their badges responsibly. However,  there are individuals who misuse the scheme. This misuse can take a number of forms including:

·         False application for a blue badge

·         Use by someone other than the badge holder, either to park in an otherwise restricted area (eg double yellow lines/disabled bays) or to evade parking charges

·         Alteration of a genuine Blue Badge

·         Creation of a Counterfeit Blue Badge

·         Use of expired badges

·         Use of a badge the holder is no longer entitled to use

·         Use of a badge reported as lost or stolen

This list is not exhaustive.

4.       It is a criminal offence to misuse a Blue Badge. In the event of someone being found to be in contravention of the Blue Badge scheme, this policy seeks to ensure that the Council:

·         Message is clear that misuse of the scheme will not be tolerated

·         Provides support to Blue Badge holders to help them to understand their responsibilities as badge holders and reduce misuse

·         Enforces the Blue Badge scheme in a fair and consistent manner

·         Takes appropriate and proportionate action to stop any misuse

·         Undertakes criminal proceedings in line with its Prosecution Policy when necessary

Prevention

5.       The Council operates a robust application process to minimise the number of false applications being successful.

6.       Every successful applicant for a Blue Badge will be issued with the Department for Transport’s  ‘The Blue Badge scheme: rights and responsibilities in England’ leaflet. This will provide the badge holder with the information they need to ensure the badge is used appropriately.

7.       Each successful applicant will also be required to sign a declaration confirming that they will not allow someone else to use a badge that has been issued to them.

Detection

8.       The Council will inspect vehicles parked on the public highway and in Council car parks using a blue badge, as part of the duties of its Civil Enforcement Officers (CEO). Where there is evidence of misuse and the misuse constitutes a contravention of road traffic regulations, the CEO will take the appropriate action as per [need to insert reference to powers/policy]. The CEO may also consider seizing the badge and returning it to the issuing authority if they establish reasonable grounds to do so and is practical.

9.       If the misuse is by someone other than the badge holder, the Council will contact the badge holder to remind them of their responsibility to ensure the badge is not misused and that allowing another person to misuse the badge is a criminal offence. If the misuse continues, the Council will notify the badge holder that further misuse may lead to a refusal to renew the blue badge and that the Council may consider criminal proceedings if the misuse continues.

10.   The Council may receive information on potential blue badge misuse from the public, Council employees and other 3^rd parties. We will consider all allegations made and determine the appropriate action to be taken. Actions may range from reminding the badge holder of their responsibilities to criminal investigation dependant on the individual circumstances of the allegation.

11.   Where intelligence suggests particular areas of Blue badge misuse,  the Council will consider undertaking operations to target these areas.

Investigation

12.   If the misuse could also constitute other criminal offences (other than road traffic offences), the Council will take the appropriate action to stop the misuse and investigate the offence. The issue of a Penalty Charge Notice for contraventions of road traffic regulations does not prevent the Council from also pursuing criminal offences. Such investigations are not limited to the badge holder, but also include third parties misusing the badge.

13.   Criminal investigations will be conducted by professionally trained officers from the Counter Fraud Team in accordance with the Criminal Procedures and Investigations Act 1996, Police and Criminal Evidence Act 1984 and any other legislation that may be appropriate to a particular investigation.

14.   The Council will use the personal data it holds for the prevention and/or detection of crime where it is appropriate and lawful to do so.

Redress

15.   Where evidence of wrongdoing is identified the Council may take one or more of the following courses of action in accordance with the relevant legislation:

·         Remind the badge holder of their responsibilities

·         Inform the person misusing the badge that they are committing offences and may be prosecuted for future offences

·         Retain the badge

·         Refuse to renew a blue badge

·         Cancel a blue badge

·         Refuse an application for a blue badge

·         Offer an individual a formal caution as an alternative to prosecution

·         Prosecution

16.   Where the Council has grounds to believe that the badge holder will permit another person to continue to misuse a badge, the Council will consider refusing to renew the badge once it has expired.

17.   Where a blue badge holder has been convicted of an offence in relation to the misuse of that badge, the Council will consider withdrawing the badge.

Legislation

The Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000 (SI 2000/682);

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2000 (SI 2000/1507);

The Local Authorities’ Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 (SI 2000/693);

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2007 (SI 2007/2531);

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment No. 2) Regulations 2007 (SI 2007/2600);

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment Regulations 2011 (SI 2011/1307).

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) (No.2) Regulations 2011 (SI 2011/2675)

The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2013

The Disabled Persons’ Parking Badges Act 2013

The Chronically Sick and Disabled Persons Act 1970

Road Traffic Regulation Act 1984

The Fraud Act 2006

Police & Criminal Evidence Act 1984

Criminal Procedures & Investigation Act 1996

HMCTS PUBLISHES ITS OWN COURT REPORTS

It seems that HMCTS is soon going to roll out its own news service re results from magistrates` courts.  West Sussex Magistrates` Court would appear to be the first area in  unannounced pilot scheme. See previous posts. This is an iniquitous step when local media for one reason or another abrogate the task of local reporting.  HMCTS will in theory  be solely responsible for public news. That in theory and practice is bad for democratic freedom of information. 

HOUSE OF LORDS QUESTION:LAY MAGISTRACY

Yesterday`s question in the House of Lords on the subject of the magistracy provided the usual rehash of the noble lords rehearsed opinions. Read for yourself.........it`ll take only three or four minutes at most.

POLICE CONFERRING IN NOTETAKING

As a newly appointed J.P. it took me a while to absorb the fact that not only was police collaboration in writing up their notebooks of an incident normal; it was enshrined in page upon page of regulation. There is a link on this in the last post I made on this topic a year ago.  My initial thoughts were that within such a system were the foundations of corruption.  Phrases such as "rolling gait", "eyes glazed", and others similar were repeated in police officers` evidence read from their notebooks over and over again. One of the first questions of police witnesses when I first took the middle chair was to ask of them after they were sworn in if and with whom they had collaborated in their note taking.  Some colleagues  found this unusual but appreciated the significance.  It seems that now the Independent Police Complaints Commission has given this situation some thought although by its very mandate serious cases only are under consideration.  Its advice is that conferring should be eliminated.  That it has taken this long to initiate such a common sense procedure should not belittle its significance.  Indeed it should be a stepping stone to similar restrictions in everyday matters where more than a single officer or PCSO is involved.  Public trust in policing cannot be said to be encouraging.  Any factor that improves this without being detrimental to performance is to be welcomed.

ADDICTED OFFENDERS

For longer than I care to remember I have been saddened by the cultural failure to divert addicts from courts to a medical pathway.  All the fiddling by successive Justice Secretaries and their minions from Sentencing Council to lies about the numbers of prison officers and all else in between makes me want to throw up. In today`s and this weekend`s  local newspapers  three cases shine the light on why we require custody for some non violent offenders, opposed by Howard League, and also why we should grasp the nettle to divert addicts committing low level crime from courts to a compulsory  medical pathway to eradicate their addiction. 

Although optimistic by nature I fear that no government with a democratic mandate to rule will ever have the balls to implement such a change in our attitudes to criminality.  We`ll have the same old cycle of events, claims and counter claims and Justice Secretaries who don`t even attempt to bang their heads against the status quo brick wall.

CUSTODY:THE FINAL SANCTION

With a prison population at almost record levels and no prospect of its being reduced without drastic reform of sentencing guidelines shrill voices are frequently proclaiming that incarceration for non violent offenders must no longer be tolerated. They must be dealt with in the community; whatever that actually means.  This offender sentenced earlier this week for driving whilst disqualified owing to a ban imposed for drink driving a month previously has been jailed for twelve weeks and had in addition a suspended sentence for the drink driving offence  activated.  She was not violent. Without the final sanction of custody just what would happen to such offenders?

COURT ESCAPE; A FACSIMILE FOR REALITY

The Ministry of Justice cannot be faulted for failing to publish statistics from every possible source for which it has responsibility; related to prisons, courts, offenders, convictions etc. etc. etc. For many journalists and lobbyists it makes for an easy life; comment on some aspect of these millions of numbers and use them as a peg for a story, a blog post, a tweet or for further ammunition in some cause or other. But to many people outside the professions involved the numbers behave somewhat like a balancing arm where their preformed opinions can be reinforced.  Take, however, a real live incident and its harmful or harmless significance can become a facsimile  of the reality within.  Such an incident happened earlier this week at Teesside Magistrates` Court where a District Judge was presiding. A known offender with 46 previous simply walked out of the courtroom whilst said DJ was in the middle of his summing up.  The mere fact that this happened does not reflect well on the performance of the DJ  who seems likely to have been looking elsewhere rather than at the offender in front of him. There are those who question the use of a secure dock at magistrates` courts.  It is a fair point on the assumption of innocence until proven guilty. There is therefore a cogent argument but the flip side is the lack of security when an open dock is being used and doubly so when the defendant has a prolific record. In plain English security in these courts is virtually non existent in practice.  Where operatives from one of the outsourcing companies Group4, Serco, Capita or whoever honour the court with their attendance they are just a decoration satisfying the political correctness overwhelming public governance.  Perhaps this social decay has reached its peak in the "safe spaces" and refusal to allow reasoned debate on contentious matters  demanded by many at university.  When I was appointed so long ago there usually would be a police officer floating about somewhere in the building. Latterly even that modicum of security was not guaranteed.  American police cause and receive much criticism but on my few visits to arraignment (remand) American courts there has always been at least one (armed of course) police officer in the courtroom.   

Politicians in this country since 2008 have sacrificed our security and freedoms by emasculating almost everything connected to what is termed law `n order; from policing to deter crime to hounding low income defendants deprived of legal assistance to throwing out of employment thousands of prison officers who were just about keeping a lid on the febrile atmosphere brewing in  prisons.

It is becoming clearer each week that passes that contrary to metropolitan opinion many in this country are looking across the pond with a certain degree of envy.   They see a non politician acting decisively if inexpertly at perceived problems.  If UKIP win either or both of the forthcoming bye elections it will be a warning to any concerned with democratic processes that change is coming. The form of that change will be a challenge to all who purport to be politicians.  

LEGAL DECISIONS FROM ON HIGH

This blog in its seven plus years of existence has attempted to bring to those interested in the goings on in a magistrates` court, matters directly related and sometimes offering a wider viewpoint including political and police involvement.   Since my retirement my comments obviously have relied upon items generally available in the public media with occasional tit bits from former colleagues and my own recollections of interesting cases. Observations on cases from the Appeal or Supreme  Court have generally been of little connection to my original motivation for inclusion here and consequently there have been few such related posts.  Today is an exception.

Many thousands of us, myself included, have appealed against a parking fine of one sort or another.  Fortunately I had the wherewithal and time a couple of years ago to make a successful appeal but the enforced procedures employed by the council might have forced many to abandon the fight.  It was therefore gratifying to read of a motor cyclist whose appeal reached the Court of Appeal and culminated in his winning his case against Camden Council which governs an area with a similar population to Reading.  Whilst this inner London borough with others has a major traffic and parking control responsibility  it does seem that some brake on its typical requirement to obliterate all opposition to its authority.........a feature common to many such organisations not necessarily governmental.........might have saved its tax payers many thousands of pounds in legal costs.  

Internal inquiries into police misconduct often find officers guilty of misconduct but not gross misconduct and since it is a finding of the latter which probably justifies dismissal the offender lives to offend another day. The recent "bare breast" case of Greater Manchester Police Assistant Chief Constable  is one to savour on this point. Of course the moot point is when does misconduct become gross. Now to some degree there is an answer from the Court of Appeal. 

And finally............from a Supreme Court judgement of  the need to protect the individual from arbitrary detention.  In 2015 peaceful  demonstrators against the state visit of the Chinese President were arrested for waving flags. Today it has been announced from Downing Street that President Trump will indeed be granted a state visit to this country later this year.  One doesn`t need to be a Nostradamus to predict that there will be widespread demonstrations against him not excluding during his drive down The Mall.  We should all be concerned by the judgement from the Supreme Court published today.

JURY VETTING IS UNFIT FOR PURPOSE

I suppose commenting on the general topic of juries and the internet is the sort of activity that fills lawyers and judges with trepidation. The mere mention of jury competence in some circles invites the arrival of the Spanish Inquisition.  Two of my posts in 2015 more or less sum up the situation. It seems now that the current watchword by virtue of Il Duce Trump is fake news.  HH Judge Graham Robinson at Grimsby Crown Court warned whoever was listening that they must be aware of fake news and to that end avoid using the internet in jury deliberations.  All this leads back to the situation where owing to the outmoded concept of "peers" every person of age  excluding a few who are insane or members of parliament or both, must serve.  Even some of those  who have had a criminal conviction must serve if ordered.  However periods of imprisonment, a suspended sentence of imprisonment or probation can warrant exclusion. I have never been called to jury service under the current regulations and excluded myself when rules were more elastic decades ago. The fact remains that some jurors with specialist knowledge or higher intellect on the one hand and those with extreme prejudices of one sort or another, low intelligence or poor command of English language on the other are sitting in judgement in life changing situations for many defendants. Their contrary abilities do not in the current jargon offer a zero sum of decision making. The time must surely be coming  when the vetting of jurors is brought up to date to cope with the modern day demands of adjudicating at the very least on the most serious indictable offences.  Currently such vetting as it is, is unfit for purpose. What was suitable in the past is no longer acceptable.

HOGAN-HOWE TRUMPS TRUMP FOR INDISCRETION

I doubt there will be many tears at the forthcoming exit from Scotland Yard of its Commissioner Hogan-Howe.  His  revelation accidental or calculated of a proposed date for the visit of  President Trump will have angered both the Prime Minister and her successor at the Home Office no end. His presence will not be missed. There was scandal at the Met before Hogan-Howe, during his tenure and at his leaving. Its whole structure needs investigation.

PUBLIC PROTECTION AND PUBLIC PERCEPTION

During my time on the bench I lost count of the number of occasions on which I had to remind colleagues, especially those recently appointed, that in addition to the tick box sentencing process and listening to mitigation of offenders we also had a duty of public protection.  Many of these newer colleagues expressed surprise as this aspect of sentencing had never been mentioned during their training sessions. Important as it was and is,  it is not to be confused with public perception.  A bench in  Llandudno has been castigated owing to public perception in its failing to consider public protection.  In this case I fear the perception truly illustrates the bench`s misconceived attitude to punishment for punishment is exactly what a curfew is; a deprivation of liberty albeit without being held within the confines of an institution built for that purpose. 

As the clamour increases for rehabilitation to take precedence over punishment for lower level criminality I fear that J.P.s might be enveloped within that  approaching cloud of optimistic benevolent wet eyed mistiness which looks for the good and overlooks the evil.

DID MY BENCH STEP TOO FAR?

For many reasons as varied as increased numbers of immigrants and determination of public bodies to prosecute, magistrates` courts are often the scene where somebody with English very much a second or even third language comes into contact with legal officialdom. Those defendants facing charges eg of freeloading on buses or trains, having no TV license, being drunk & disorderly or driving without a valid license often have difficulty real or for effect in telling the court what it needs to know and answering even simplified questions. All courts must provide an interpreter to ensure there is a "level playing field" so that poor or no English does not prejudice the defendant. That process takes time and requires the case being adjourned. It also costs a lot of money. From time to time the problems with failures in the courts` interpreters` contract make the news.  The possible scandals in the awarding of the initial national contract to Applied Language Solutions which very quickly sold out to Capita plc preceded a catastrophic breakdown in efficiency. An article in the Guardian last year was and is one of many highlighting this seemingly intractable problem. Obviously I have no current experience with the state of interpreters within magistrates` courts but I do remember an experience chairing a bench which has not lost its relevance today.

A Sudanese man appeared who was charged with having no ticket on a train journey. Despite being questioned in very simple English by the legal adviser and the bench chairman it was difficult to conclude whether he was pleading guilty but trying to offer mitigation........a common occurrence........or was pleading not guilty the latter plea necessitating an adjournment for trial and the appointment of an interpreter. A member of the bench had Arabic as a fairly fluent second language and I authorised him to inquire of the Hausa speaking defendant if he was comfortable in the second tongue of many Sudanese....Arabic although of a different dialect. He nodded and a simple exchange began whereupon our legal adviser advised..... because that`s what she`s there for......that our impartiality as a bench might be in question if we continued. Accordingly and somewhat reluctantly we ceased and the trial arrangements were made.

Subsequent discussion with colleagues indicated that they considered we were walking a very slippery slope and they themselves in a similar situation would not have ventured as we had done. Perhaps we did indeed go a step too far; perhaps not but I am far from sure I wouldn`t have done the same again. We were a multi ethnic multi language bench of around three hundred JPs each of whom had sworn an oath to do right by all men. So a little bit of unofficial interpreting was just a use of skills. In addition it would probably have avoided continual stress for the defendant and loadsamoney in a courts system where there was no certainty that a trial court on any day would even have had the services of an usher to call witnesses. We were, and J.P.s still are,  appointed to bring, inter alia, their skills to the Bench.  Indeed on occasion I used my own professional knowledge questioning witnesses for clarification who have offered statements or answers that I knew were impossible and untrue.  

But that particular day`s tale as per the account above was of just another day on the bench.