ENOUGH SAID

A few years ago I attended for the first time a committee meeting of the borough planning committee. My presence was not as a councillor but as an objector to a proposal which was likely to have an effect on amenities near my home. The visit proved interesting. Although objectors to the three other planning applications before the committee were allowed to exceed an allotted three minutes my neighbour and I who, in our opinion, had more to complain about than the others, were cut off in full flow at the allocated three minute deadline. When the applicant of the proposal to which we objected took the stand he made three statements in his five minute rebuttal which were simply lies. My neighbour upon getting to his feet to object was ordered by the committee chairman to sit down and be quiet upon pain of exclusion. Is this local democracy in action? My long held disquiet at the machinations of planning officials, committees and their approvals was not dispelled by my experience that evening. To cap it all an earlier application to which we were witness and which was heavily criticised by many on the nine person panel was granted approval after a committee member pleaded that if it were refused it would on appeal almost certainly be approved and therefore the cost of said appeal to the council would be a waste of council tax payers` money. My thoughts at the time were unprintable. With that background a return to the happenings within the magistracy might be seen in context.

I was in court two days after the above meeting. One of my colleagues had been a person I had had the privilege of sitting with on her first two sittings ever some three or four years previously. After the above sitting she mentioned casually during the usual informal chit chat I enjoyed having with colleagues irrespective of whether a formal post court discussion with the L/A was or was not worth the time, that some few months prior the bench chairman had stated during a discussion on whether special reasons had been established not to disqualify an errant driver that if the bench declined it would be overturned on appeal. That argument apparently persuaded her colleague but not her to vote with the chairman to allow for the establishment of special reasons. My other colleague and I were dismayed. We left the building feeling that enough had been said.

PUFFING MY OWN TRUMPET RE KEIR STARMER

Last night I watched the BBC Brexit Question Time and was none too impressed by the performance of former Director of Public Prosecutions now reborn as a Labour front bench spokesman Keir Starmer. Permitting myself a little puff of prediction on my own trumpet  I commented on 17th March 2012 at this blog`s now defunct previous site [see below]  that Starmer was more suited to a political position than his current one.  It seems to me that selling snake oil door to door to the undeserving poor of Islington with J. Corbyn might be more suitable for his smooth talking but unconvincing talents. 

The Crown Prosecution Service has had a fair amount of what I deem justifiable criticism on this site. I am not alone. Earlier this week Her Majesty’s Crown Prosecution Service Inspectorate published its latest report. It does not make comfortable reading and Keir Starmer`s response is more that of a politician than the equivalent of a C.E.O. of a vast organisation. Readers can access the press release here.

STAINING OF A POLICE COPY BOOK

It appears that within a few years all those aspiring to be police officers will require to be university graduates or  equivalent.  On the face of it that might seem to be a sensible level of education considering the knowledge needed to do a job with so many sub speciality requirements in addition to the old fashioned idea of "thief taking".  So far so good but in what could loosely be called a "people" job as opposed to a "desk" job it would seem that the recruiters are losing sight of a simple basic necessity when somebody dons a blue uniform; common sense.  When I was appointed J.P. it was a facility that had to be demonstrated at interview.  That aspect of personality was dropped many years ago on the spurious grounds that in order not to cause offence to ethnic minorities or those of recent immigrant status the term common "shared by, coming from, or done by two or more people, groups, or things"  was no longer considered appropriate.  Perhaps police appointment panels share the same philosophy because how otherwise can it be explained that this police officer behaved in such an imperious and crass fashion.  On a practical level for every worthwhile action of her colleagues she stains their collective copy book. 

THE TRUE NATURE OF POLITICS

In matters of sentencing magistrates can be said to be between a rock and a hard place; they are chastised if they do and criticised if they don`t.  With increased sentencing powers to 12 months custody unactivated for some years and some like the Howard League forever insisting that magistrates be relieved of authority to dispense custodial sentences per se, a Ministry of Justice that devises all sorts of excuses to remind sentencers that there are supposedly viable alternatives to custody and legal advisors afraid of saying boo to a goose in case they put their jobs in danger it`s no wonder that magistrates are somewhat confused.  When it comes to prolific shoplifting there are guidelines designed like a great maze for sentencers to construct appropriate punishments.  When the principle of public protection is overlooked or dismissed media stories like this one are a journalist`s delight when newscopy is thin on the ground.  

The truth is that the MOJ and its cousin HMCTS don`t know where to turn or in what direction they should set their compasses.  Money has been squeezed from their and the Home Office`s budgets until there`s not much juice left for them to squeeze.  When awful events  occur as happened yesterday politicians are vying to make clear their support for our wonderful police and emergency services whilst simultaneously conspiring in their being forced to run on empty.  Such is the true nature of politics. 

ALL WIND AND PISS

For those who might still be unaware of the judiciary`s lack of confidence in the Lord Chancellor the speech made recently  by the Lord Chief Justice is a disturbing event as far as its content is concerned. From her pronouncements since her appointment this blogger would comment that  she is as  Joyce had it in Ulysses - "All wind and piss like a tanyard cat".

IT`S A FINE MESS WE`RE IN

If you buy a car and fail to keep up with your payments there won`t be a gentleman from the finance company opening an office in your area to enquire why you`ve missed the payments. You`ve broken the contract and the car will be repossessed. As many have and are discovering the same applies to those who default on their mortgages. Their properties are repossessed. It is obvious of course that generally but not exclusively those defaulters are nearer the middle or lower levels of income distribution than the higher. And it can be said that their loans were based on income and/or credit rating. The loans were freely entered into and both parties to the deal considered, in theory at least, that disposable income was sufficient to service the amount. They might even have been offered various insurances to indemnify themselves against unemployment.

Fines imposed at court are for breaking the law. The law is rarely hidden waiting to jump out and catch innocents going about their daily business. When it did became widely known that the law was behaving in just that fashion the speed cameras were painted yellow to ensure justice was seen to be done. Fines in this country are calculated according to ability to pay. Depending on how the figures are analysed there is general agreement that at least half a billion pounds or more is owed in unpaid fines. Of course that amount is akin to water flowing into a bath with the plug out. It will never be completely empty of water so long as the taps are open; for taps read fines imposed daily. In some southern states of America if, after all attempts at getting unpaid fines in have failed, imprisonment on the basis eg of $1 unpaid = one day inside is actioned . I have witnessed such sentencing. It is quick and effective. There is none of the shilly shalishing that is the approved procedure here to get in what`s owed. But for a multitude of reasons the American example will never be considered here. It would be considered illiberal for a start and the current thinking within the Justice Ministry would be more likely to lobby to bring back hanging than undertake any new policy likely to increase the jail population. So once again we have the tail wagging the dog until perhaps the “Daily Believe It” publishes the scandal of fines remitted annually owing to offenders being considered unable ever to meet their obligations this side of 3000 A.D.

Attempts have been made to reduce this deficit. In Widnes in 2011  the local council and Her Majesty`s Court and Tribunal Service opened a fines surgery for defaulting offenders to be encouraged to come up with at least some of the readies owed for their own law breaking. That scheme has closed. The tail is not just wagging the dog; the inmates are running the asylum. Ah!..........I overlooked that we don`t have asylums anymore; it`s care in the community.

SPEEDING//A BETTER WAY TO DETER & PUNISH

Recently penalties for use of a mobile phone whilst driving have increased. Next month those caught speeding will be subject to increased penalties for their transgressions.  These penalties for this kind of offending are a combination of financial, penalty points or disqualification.  The points system as is universally known allows in most circumstances an accumulation of twelve to activate an automatic ban of six months. The problem with this arithmetic is that many varied offences and their range of penalty points feed into a very compressed system.  Other jurisdictions operate a much more sensible system which allows for a greater degree of flexibility of punishment. An interesting study on a Demerit Points System can be downloaded from here.  In Spain there exists positive encouragement to safer driving.  Points are awarded in various amounts and unlike in the UK deductions are made from that total. It seems logical that a points system, top or bottom loaded, could operate much more efficiently if an accumulation larger than UK`s current twelve were operated. With eg 50 points total, punishments could be more refined and directed to where it hurts most for offenders; the possibility of disqualification.

The Sentencing Council persists with its current tick box approach and seems to overlook simpler and more effective methods of punishing driving offences. 

LATE NIGHT PISS UP//YORK

There are times when we are away from home that we have all experienced the when you gotta go, you gotta go urge.  Most town centres can satisfy this need provided it`s within normal shopping hours.  But and it`s a big but, evenings are when many people have an overwhelming desire to rid themselves of the excessive fluids they have imbibed during a night out.  If the pub or restaurant is still open....problem solved.  After hours apart from wearing incontence pants a la Billy Connelly relief must be sought wherever the opportunity presents.  In York as in most town centres all public loos are closed after 6.00pm. Two gentlemen found out to their cost at the local magistrates` court that public bladder relief is legally if not alaways socially unacceptable.  Last year I commented on the similar situation in Chester.

It is totally unacceptable to me that town councils do not provide automated secure pay as you pee public lavatories. With technology allowing homes to be monitored remotely surely a similar  provision  could be profitably established in city centres so that late night revellers are not faced with embarassing decisions that could cost them dearly.

RETIREMENT//2 YEARS ON

"It`s not in the public interest to send you to jail."  The public interest aspect of sentencing often gets overlooked although it`s a prime consideration for the CPS in bringing charges per se and for all sentencers.  Whether or not such an argument would have been valid in this case  if the offender were male is another matter. 

Rotherham town council or whichever civic authority is involved has paid £1 to Her Majesty`s Courts and Tribunal Service for a local court building.  Is this a case of Peter paying Paul with tax payers` cash?  No doubt in a few years we will be told of some unusual conditions that enable somebody or other to make a few quid perhaps more easily than should have been the case. 

When our families were young my closest neighbours would gather in my garden every 5th November for our home grown fireworks display. Seems that innocent pastime sensibly conducted could have ended my being a magistrate if it were under today`s heavy handed application of legislation.  

The closure of magistrates` courts in Suffolk has led to predictable repercussions; a shortage of Justices of the Peace.  A very apt report in the local press tells a story that could be repeated in rural areas nationwide. 

Criminal Behaviour Orders remind me in a very minor way of the actions of organisations such as the Stasi in what was East Germany. Proof is not especially needed; anonymous accounts from witnesses will suffice. Admittedly there might be some occasions when fear and distrust of police leads to individuals being bullied, harassed or victimised but in a society where policing in general had the necessary funds to operate efficiently at street level traditional methods brought traditional results where guilt was proved beyond reasonable doubt. 

It is almost exactly two years since my final court sitting.  In the light of the changes in procedures in that period and contrary to what I thought at that time I really do think I`m pleased now not to have to preside over a magistrates` court where the rights of defendants especially the poor, tired huddled masses are being eroded.

KNOWN UNKNOWNS

I think it can still be statistically accurate to comment that a majority of citizens has never appeared at a magistrates` court either as defendant or witness although it is likely that the trend is on the increase.  It is reckoned by some authorities that about one third of all men aged over 30 do have a conviction at the lower court although motoring offences are liable to be responsible for many. The statistics are just not kept officially.  On the other hand it is statistically accurate to note that availability of legal aid for defendants has been reduced drastically in the last decade. Also well known is the sentence reduction available to those appearing both in the lower and crown courts who plead guilty before trial thus ensuring that all things being equal there will be a reduction of one third in level of sentence.  Perhaps the major change in sentencing over the last twenty years has been the use of Sentencing Guidelines; a format imposed on all sentencers in what was seen by some as an overdue attempt to impose some sort of conformity in sentencing and thus avoiding what has been termed in diverse circumstances as a post code lottery.  Anyone taking time to peruse this document might assume that its almost mathematical layout and structure in coming to conclusions on almost every type of case imaginable was based on hard evidence. After all the justice system via the Home Office and Justice Ministry employ thousands of individuals whose main occupation is statistical analysis or job description requires detailed recording of virtually every interaction they undertake. 

In an increasing effort to secure ever more early guilty pleas defendants have been encouraged inter alia to plead guilty to a lower level of offence than would normally have been laid against them.  This is especially true in cases of assault. Magistrates and lawyers are well acquainted with defendants being prosecuted for both s.4 and s.5 public order offences with the more serious being dropped if a guilty plea is made to the lesser charge. The benefit to an offender of a sentence reduction for an "early" guilty plea especially for those matters to be tried at the crown court is not unreasonable insofar as the tax payer and witnesses are saved costs and no little trauma. Generally the offender would have had  the assistance of a lawyer and would have pleaded guilty with knowledge. But at the magistrates` court it is an altogether different scenario.  A great many defendants have no legal representation especially at first hearing.  A duty solicitor should be available at all times but the help given can be of variable quality and therefore a guilty plea in that instance can, for some defendants, be a short cut to ridding themselves of the problem with a sentence discount of a third and an acceptance of what they think are their just deserts especially if they have a record. Without much fanfare the Sentencing Council announced recently that that maximum discount will in future be available in the magistrates` court only for a guilty plea at the first hearing.  One would have thought that behind such a change of direction there would be if not a mass but at least some statistical evidence to indicate the basis of a benefit to society in this effort to persuade defendants not to continue putting the crown to proof in establishing guilt.  One would have been wrong.  There are no statistics on guilty pleas at magistrates` courts. There is of course a wealth of convictions analyses but that`s a different thing. In its consultation document (copied in part below) on this change in discount situation there is an admission of the lack of evidence......my underline.

Is this really the way we go about trying to secure higher conviction rates which the Sentencing Council is apparently embarked upon?  In China the conviction rate for all offences is >99%.  The noisy advocates who scream that convictions for rape are too low; no doubt increasing their decibel levels over recent cases, would argue that 99% conviction is perhaps just a tad too high. For those of us who believe that our once proud to be British justice system is losing its lustre this imminent change does nothing to alter our opinion.  Basing sentencing policy on known unknowns is, quite simply, not justified. 



Statistical research and analysis.

Virtually all criminal cases start in magistrates’ courts. The most recent annual statistics14 show that approximately 1.47 million defendants were proceeded against at magistrates’ courts in 2014. Of those, 1.22 million resulted in convictions in either magistrates’ courts or the Crown Court, which means that the offender either pleaded guilty or was convicted after a trial. Information on the percentage of offenders who plead guilty is only available for the Crown Court. Of the 86,297 offenders sentenced in the Crown Court in 2014, 77,289 (90 per cent) pleaded guilty and 9,008 were found guilty after a trial. Of the 90 per cent who pleaded guilty in the Crown Court, 72 per cent pleaded guilty at what was adjudged to be the ‘first reasonable opportunity.’ It would seem likely that there are many factors which influence the decision whether and when to plead guilty. One suggestion is that offenders are likely to be encouraged to plead guilty at an early stage if they believe that by doing so they will avoid a custodial sentence. The published statistics show some evidence of this in the Crown Court; a lower proportion of offenders that pleaded guilty were sentenced to immediate custody (53 per cent) compared to those that pleaded not guilty (71 per cent). There are also differences across offence types, with the rate of guilty pleas among those convicted of indictable sexual offences at the Crown Court at 61 per cent, which is considerably lower than the overall rate for indictable offences (89 per cent).

OFFENDERS` MENTAL HEALTH?:LORD KNOWS

The House of Lords has again been in the news.  Indeed its very existence in its current form is no longer off the wall thinking.  It has been variously represented as being able to offer unbiased by party political protocols opinions reflecting those of the "people".  Its members have also been accused of belonging to a £300 per attendance sinecure where there is no conception of the forces operating within the common people. Yesterday was so called International Women`s Day and there was a corresponding debate in the upper house on that topical subject where "The noble Baroness, Lady Corston, recommended that, “Sentencers must be able to access timely psychiatric reports and fail to remand in custody/sentence if not available”. However, there is an issue in getting these reports as well as a lack of mental health referral places available, so judges or magistrates are likely to remand someone who is in the community and at risk of further offending due to their mental health issues rather than refer them for more appropriate treatment. It is therefore vital that community mental health and other such services are sufficiently secure, in terms of commissioning and funding, to ensure they remain a real sentencing alternative."

Those who actual work within the justice system from judiciary to prison officers via probation service know that there is no adequately financed and operative path to mental health services that is fit for purpose. The noble lords and ladies may sound their trumpets but nobody is listening. Pass GO and collect £300.

DECRIMINALISE DRUGS:DON`T BET ON IT

This retired magistrate  has argued for years with former colleagues and others in addition to posts on this site that there should be decriminalisation of personal drug use. I do not intend to repeat those arguments now. You, the reader, will probably have your own fixed opinion.  A basic truth is that it is difficult to predict how and when a government of whatever complexion would have the majority and the cajones to tackle such a situation.  It has been left, as in so many other examples, to individual constabularies as to how they face the problem of personal drug use within budgetary requirements that force sometimes unpalatable choices to be made.  A start has been made in Glasgow although unsurprisingly there has been much controversy. This week Durham Police have announced their own plans to curb the ravages in society that drug addiction fuels.  Piecemeal attempts such as those will not effect a cure in their own areas of jurisdiction. But they should provide a base for the argument to be carried successfully into the public arena. Personal use of hard drugs must no longer be a criminal offence. Such substances must be made available on prescription from a limited number of pharmaceutical outlets. Addicts will know they are paying for a limited supply of officially graded cannabis, heroin or cocaine and of course supplies would be taxed. I wonder what odds BET365 or William Hill would give on such legislation within the next decade?

A RECORDER IN NEED OF ADVICE?

At the risk of correction by those who might claim to know better or indeed do know better than I an unusual court hearing caught my eye this morning.  Although the case took place in the crown court at its core there is a consideration for all sentencers.

“Flying a plane is not easy. I know because I have taken flying lessons myself. Flying an aeroplane is not an easy thing to do.”These were some of a recorder`s words in sentencing Wesley Tierney at Cambridge Crown Court last week after flying aeroplanes without holding a licence or having the correct training. I can identify with those few words of the sentencer having had a similar experience.  However later in the report he is quoted as remarking, "you have pleaded guilty means I am going to give you a suspended sentence.” 

An early plea of guilty indicates a sentence reduction of one third; at least that was a basic part of my training. It does not in my experience allow an immediate custodial sentence to be altered to a suspended sentence order. Perhaps the recorder had other unreported reasons.  It is almost certain that this offence is one where the sentencer must use his discretion and is not trapped within Sentencing Guidelines. Is this yet another case of a Recorder not being sufficiently aware of the processes available under the law and advice from senior judiciary?

NON POSSESSION OF A TV LICENSE SHOULD NOT BE A CRIMINAL OFFENCE

Some recent undercover reporting from the Daily Mail is interesting on how Capita plc, everyone`s favourite outsourcing company,...not....instructs would be employees in its devious ways. Just how devious Capita can be can be seen here;  one of many such videos. This is a topic of some interest to magistrates most of whom by my reckoning would gladly see this offence  removed from the criminal courts system and be subjected to civil law. Parliament too it seems is not unhappy for the change.  The problem is the BBC and its status and funding.

THEFT BY FINDING//VAGARIES OF OUR LEGAL SYSTEM

Theft by finding occurs when someone who chances upon an object which seems abandoned takes possession of the object but fails to take steps to establish whether the object is abandoned and not merely lost or unattended. During my active days the number of such cases that came my way could be counted on the fingers of one hand.   For the magistrates at North Stafford Justice Centre earlier this week their experience of such a matter made the news in many outlets.  The woman in the dock who might have been advised to plead not guilty but didn`t, told the court she had found the £20 note on the floor whilst shopping in a store in Blurton.  She was convicted of theft, a notifiable offence, given a conditional discharge of six months and ordered to pay £175 in court costs and other charges. According to a report, " Ch Insp Karen Stevenson, from Staffordshire Police, urged anyone who finds lost money to "do the right thing". "Morally, the right thing to do is hand in any found property so that the person who has lost out has every opportunity to be reunited with it." "This was someone's hard-earned money and we are committed to supporting all victims in our community." What crass supercilious nonsense is that!  To widespread disbelief senior police officers across the country have told the public not to waste their time handing in found money at police stations but to use social media to contact owner: more rubbish to excuse their "allocation of scarce resources". 

For the store to call in police was as dismal display of bad management in a simple situation as can be imagined. They identified the woman in question but appear not to have asked her to explain herself or to have requested she hand the money to them for safe keeping and return to the owner if and when ascertained. How much wasted time and expense for police did this cost?  For the CPS to have considered this prosecution to be in the public interest is a fatuous over display of being seen to do something for an easy win. For the bench to impose a six month conditional discharge was being over zealous in my opinion. A token CD of one month would have demonstrated the bench`s thoughts on the circumstances. But then of course the bench might have been pushed along by the legal advisor or its own attitude to impose a punishment of deterrence. If so they exercised their duty but in a situation where another bench might have considered leniency.  Such are the vagaries of our legal system. 

SO YOU WANT TO BE A MAGISTRATE?

Disappointed that your application to be a Justice of the Peace has been rejected?  You might therefore be interested in the following:-


"Unsuccessful applicants to the Magistracy
Rejection letters
It has come to our attention that some Advisory Committee’s rejection letters appear to be worded in such a way as to invite appeals from unsuccessful candidates. Given we have been receiving a lot of appeals (which are time consuming to deal with) and the overwhelming majority of them are not successful, we would prefer not to encourage them. Therefore, I would be grateful if you would consider adding the following paragraph to all future rejection letters:

The Committee appreciate that this decision will be a disappointment to you. You may ask for this decision to be reviewed by the Senior Presiding Judge for England and Wales if you believe your interview was not carried out fairly. However, when requesting a review you should state clearly and succinctly on what grounds you believe the Advisory Committee has not properly considered your application. It is not enough to say that you disagree with the Committee’s decision. A request for a review must be made in writing within one month to the Senior Presiding Judge for England Wales, c/o Magistrates’ HR, Judicial Office, 10^th floor, Thomas Moore Building, Royal Courts of Justice, Strand, London WC2A 2LL

     Kind regards
     R Gunstone"

PAEDOPHILIA AND BREXIT

The arguments have started.  They were inevitable. When a senior cop gives an opinion to the media to explain why we can`t expect his force and others to enforce the law on paedophilia all manner of abuse comes his way. People in his position and in others, notably the....oops.......sorry......I should have used the now all encompassing term OUR NHS, really mean that they have had their budgets cut so near to the bone that coping with all their legal responsibilities has become nigh on impossible.  

Decades ago in appropriate circumstances I voiced the opinion that at some future date the poorest populations of the world would want a share of the wealth that we have taken for granted and that since that wealth is not infinite it would require greater input from us to weather the storms to come.  In simple terms if the state cannot increase growth fast enough individuals or state run businesses would become poorer.  That storm enveloped us years ago and we still have not found a way to a safe harbour.  Nit picking about funding the NHS and social care and education  privately by individual contribution  or using the state to collect the required monies and dish it out to those (most) in need is as big a problem as negotiating a suitable Brexit.