EXCEPTIONAL HARDSHIP:APPLYING GOOD JUDGEMENT AND DISCRIMINATION

Exceptional hardship is a subject that can arouse deep differences within a bench during retiring room deliberations.Indeed it has been the subject of a few posts here over the last few years. Four years ago there was this one and in June the following year I posted this. 

Generally my opinion has been that those offenders who moan the most, namely professional drivers, are deserving of the least sympathy followed by obviously wealthy individuals who could easily afford to hire a driver for six months.  However the finding of exceptional hardship is one of those remaining considerations which are entirely within the bench`s discretion.  Where some difficulty might arise in the decision making is when the offender has proven worth to the community and/or perhaps a history of good deeds or valour in the case of active or former servicemen.  There is certainly a fine line to be drawn when eg a hospital doctor applies for exceptional hardship purely on the basis of his/her occupation and a carpet fitter.  

A case earlier this week at Flintshire Magistrates` Court is a perfect example of a bench coming to what I agree was the correct decision in allowing the application to succeed.  This offender`s recent history certainly was a sound basis for allowing him to continue driving.  The problem is that I read too many reports and have experience of situations where sympathy by a bench overrides good judgement and discrimination. 

WHEN A JUDGE SWEARS

On 12th August 2016 I commented on the judge who threw verbal caution to the wind and swore back at an offender who had used his basic knowledge of olde English to vent his feelings at her.  Not surprisingly the matter reached the Judicial Conduct Investigations Office which yesterday cleared her of misconduct.  Truth be told I`m a little surprised but not disappointed. Like the rest of us judges are human and have fallibilities. What did enter my mind was the recollection of apparently heavy treatment dished out to Justices of the Peace for a lot less. I suppose some are still more equal than others.

NO NONSENSE AT LIVERPOOL CROWN COURT IN 2017

All too often blogger and public reaction to crown court sentencing is less than enthusiastic.  In an interesting and sometimes amusing report in the Liverpool Echo sentencing comments from the city`s crown court judges in 2017 are worth a few minutes reading time IMHO of course. Access the page here.

DRIVING JUSTICE WITH HANDBRAKE ON

An apparently simple case last week at Teesside Magistrates Court has left me thinking. It involved the defendant being found guilty for the second time of carrying a weapon and receiving a suspended custodial sentence.  What set what`s left of my little grey cells firing off in all directions was the conclusion reached by the bench that the knife in question was accepted as being for trade purposes; namely for decorating but also an "offensive weapon". Whilst I was active such a defence (for trade) was an acceptable defence against the charge. Has that changed?  The magistrates seem to be in two minds on this matter and have effectively driven the judicial vehicle with the hand brake applied. There is no mention in the report if his advocate was considering an appeal. Make up your mind after you read all about it here.

AND THEN THERE WERE CUTS

A new year and amid an overdue recognition by senior legal eagles on both sides of the bench that the quality of British justice is in freefall from which it might never recover it is curious to read the last 2017 edition of the Scunthorpe Telegraph copied below  highlighting what I too recollect at my own court was happening around two decades ago.  It all seems so petty now with not an inkling of the savage financial cuts which began in 2010. Kenneth Clarke who is merrily trying to usurp the decision of the British public and have the Leave decision overturned didn`t just turn a blind eye to imposed cuts as Justice Secretary in 2010; he thoroughly encouraged them with a 23% reduction in funding that year and was proud to proclaim he was the first Cabinet Minister to satisfy the Treasury of having done its wishes.  

"One piece of news hitting the headlines in Scunthorpe 20 years ago was the decision to stop the supply of free biscuits to magistrates. John Towndrow, vice-chairman of the Humberside Magistrates’ Courts Committee, revealed it cost £400 a year to provide the local justices with biscuits to dunk in their coffee and tea. He said the committee had been faced with making savings of £145,000 that year and needed to cut the annual budget by three per cent over the next three years. The cuts had led to the closure of courts in Barton, Brigg and Epworth, job losses and under-funding for ushers, with clerks on occasions having to take over their duties.

“I am bitterly disappointed that my fellow magistrates have lost the only perk they had, namely the free biscuits with their tea or coffee,” Mr Towndrow said.
“However, the search for savings in every department has led to swingeing cuts. I am sure the local justices will appreciate the reasons for the withdrawal of their biscuits.”

The cutbacks also saw filter coffee-making machines in Scunthorpe removed and replaced by jars of instant coffee, tea bags and flasks of hot water. Mr Towndrow said previously the coffee had cost 20p a cup, but now the expense had been reduced to only 4p.However, one justice of the peace, who asked to remain anonymous, told the Telegraph: “This really takes the biscuit! It will only save pennies over the year.”"

AT THIS MERRY TIME THE CANARY IS WARNING

Council Tax more than any other tax can be seen to be used where we live and work.  Many untruths about the results for non payers are propagated by political vested interests.  The actual numbers receiving the ultimate sanction and why can be accessed here.

There was great publicity from the  diarrheac output of the MOJ press office not so long ago on a new offence  of controlling or coercive behaviour under section 76 of the Serious Crime Act 2015. The result? not very much........just another example of how government thinks that throwing more legislation at a problem will cure it. 

So begins another period of hedonism where the word "merry" is the common adjective.  Thinking about it that word is rarely used in any other context. My opinion for what its worth is long might that continue.  There are too many political correct apologists and activists of propagating all that`s wrong with our world.  As a non religious person I`m all for the free expression by those god fearing of one faith or another but those who are intent on taking us back to the middle ages where tolerance of difference did not exist  must not be able to have the tolerance and equal voice in this progressive world.  At some point the liberalism of the democratic state must decide when purveyors of hate must be silenced. With anti semitism once confined to private conversation now becoming an almost regular public occurrence the time must be approaching when that warning canary of religious and right and left wing extremism, call it Islamism, fascism and Marxism, must be confronted head on.     

So Merry Christmas and a Happy New Year and thank you, my reader, for allowing me to occupy your time for just a few minutes today and previous days.

STATISTICS ON GENDER RELATED LEGAL MATTERS

It`s coming to that time of year when this blog and many others will go into hibernation for a couple of weeks.........but not just yet.  Recent parliamentary questions on two different subjects within the remit of the MOJ produced statistics for women and women-V-men that some readers might find interesting? disturbing? gratifying? or you name it.  Judge for yourselves below.

PRAISE FOR LOCAL COURT REPORTING

I`ve complained often enough about the lack of local court reporting. Today`s an exception. Very full reports in two local media on proceedings at Ealing and Staines Magistrates` Courts where the latter had a District Judge(MC) presiding although the reporter failed to mention that. Both reports well worth a few minutes.

SUCH MAGISTRATES SHOULD QUIT

BuzzFeed, a provocative on line agency, in association with the Magistrates Association this week published a lengthy account of the situation from both sides of the bench of unrepresented defendants in the magistrates courts.  Its detailed account could be summarised simply by two facts; defendants without lawyers are prone to be convicted in circumstances where legal representation might have got them off or their punishment mitigated and magistrates are only too aware of such failings and are too mealy mouthed to do anything about it.  I posted comprehensively on this subject 28th September 2015 where I proposed simple inexpensive measures to counteract the situation.  However with regard to the BuzzFeed quotations from magistrates, assuming their veracity, I have nothing but contempt for former colleagues who blithely admit to miscarriages of justice or unfair conclusions whilst they were in a position to mediate. Of course there will be the usual cry of magistrates are merely overseeing the process and must not enter the legal fray.   This cop out must be ended.  Magistrates and of course District Judges(MC) in an era where the power of the state is vastly superior to those of most defendants must now assume an inquisitorial role in the interests of justice being done and being seen to be done. My contacts with former colleagues convince me that the independence of the magistracy where it really matters, in the courtroom, is now compromised. JPs are trained to kowtow to the legal advisors who are assuming more influence than just offering legal advice.  This will require some magistrates with memory of times past to impart to their newer colleagues that almost forgotten spirit of radical thought and confidence to assist unrepresented defendants when such defendants exhibit blatant inability to assist themselves. 

Some of the magistrates quoted by BuzzFeed and some results eg 

"defendants without lawyers are being found guilty of crimes they did not commit and being sentenced too harshly."

"They’re not being fairly treated, through no fault of the court." 

"many magistrates said they were concerned that those without lawyers faced being found guilty of crimes they did not commit."

"I cannot recall any cases this year where non-represented persons defended themselves effectively.

"On at least two occasions recently I have sat in a trial that should never have come to court"

It amazes me that magistrates can sit through proceedings over which the chairman should have control and wash their hands over such abominations in the name of justice.  They should hang their heads in shame and offer their resignations if they fear HMCTS more than their own consciences.  Access BuzzFeed here. 

THE REALITY OF A DAY IN COURT

From time to time I have commented here on the day to day comings and goings at magistrates` courts; on delays, sentencing etc and all the scenarios that are part of the normal day`s sitting. I have also posted on the sometimes misleading headlines of local print media when reports are published. Indeed the rising influemces of social media are an ever increasing restraint on publishers` financial resources to enable old fashioned court reporting as it used to be.  With all that in mind it was interesting to read last week of Kent News` intention to do an in depth review of a day in a local courtroom.That report was published last week and makes sorry reading but conveys with more reality what is actually happening than the rosy perception projected by all the myriad statistics published by MOJ............read and digest.

BENCH GOT IT WRONG

I suppose upon some reflection that I have commented here when it has seemed apposite on sentences being too weak rather than the reverse.  Today I find myself in the opposite corner. Curfew is a useful sentence because it is a deprivation of liberty and can be applied immediately upon a finding of guilt without the need to have a pre sentence report.  For those reasons it is essential that the bench takes on an inquisitorial role to ensure that the punishment fits the crime and the offender fits the punishment.  At least that is the way in which I personally approached such a disposal. For a bench to impose a curfew on a grandmother of previous good character who deprived the DHSS of £12,500, a relatively small amount for an offence  in such circumstances, is a disgrace. The report does not state under which section of the law she was charged.  If defence lawyer did not immediately appeal against sentence she ought to be ashamed as should the bench for the imposition of a sentence which was totally unsuitable in the circumstances.

POLICE MISCONDUCT//LATEST NEWS

Earlier this year on 18th October I posted on the change in regulation which had previously allowed police officers under misconduct investigation to resign and avoid such investigation.  Not surprisingly I was pleased. Well; today I`m not. In short this  new legislation in some circumstances allows officers to retire while under investigation.  The College of Policing appears not to have this new information on its website.

It would be interesting to know statistics of police chiefs charged with misconduct. 

FREE SPEECH MUST FOLLOW VOLTAIRE

FREEDOM OF SPEECH:- While lovers of liberty in all lands have urged the necessity of freedom of speech none put the case more pointedly than Voltaire when he wrote, “I wholly disapprove of what you say and will defend to the death your right to say it.”  Perhaps that sentence exemplifies the difference between those of a libertarian bent from all others whether of the Left or the Right.  In 2009 The far-right Dutch politician Geert Wilders was allowed entry to the UK after appealing successfully a ban imposed some months previously by the Home Office. His visit passed without incident.  Currently there is growing opposition to a proposed visit by Franklin Graham an American evangelist preacher on the grounds that he is likely to provoke a possible reaction from Muslims, gay people and others whom Graham has castigated in speeches in the USA.  The rise of a British Muslim population of 3 million has simultaneously led to increasing criticism of conservative Christianity and its adherents` proselytising. Cases of people wearing a cross around their necks have hit the headlines when their companies have ordered them to remove such items. For generations the Plymouth Brethren in England and the "Wee Frees" in Scotland have quietly lived their lives within their own strict rules and communities.  They too hold views not dissimilar from the aforesaid American and Dutchman. In short outside Northern Ireland religion was a private topic in this country until the immigration of hundreds of thousands of people from lands where religion was not only public but carried with it political inferences long dismissed here.  

The latest manifestation of perhaps anti Christian bias within the justice system was demonstrated by Lincoln Magistrates on 14 September when a Christian preacher was convicted of using threatening and discriminatory language whilst preaching in that city. That verdict was overturned on appeal at the crown court.  

I have posted three times in the last year or so on the topic of hate crime: 9th August 2016, 3rd April 2017 and most recently 22nd August this year.  It truly requires senior judiciary to halt this apparent upping of the ante as to what constitutes "hate".  Provided no incentive to violent action can be construed from actual words used, those opposed to the views and opinions of people like Geert Wilders, Franklin Graham and others whether of the Right or the Left, Christian or Muslim, gay or trans or whatever should make their arguments orally, in writing or through social media. Banning those who voice what some consider unsayable is a short slope to the unthinkable.

SCHOOL CENSUS

For very many years the governments; Labour, Coalition and Tory have been less than expansive about the number of illegal immigrants in this country including those who arrived legally and overstayed. Indeed that evasiveness was no doubt a factor in the arguments on immigration prior to the Referendum.  The Right criticised the Left for its attempts to play down the problem and the Left accused the Right of little short of racism and bigotry.  There is one certainty and that is government still does not know the numbers of foreigners living  here.  From time to time we read in the media of those illegals having children in the UK and using that as an argument under Human Rights that their stay in this country be legitimised.  Since June 23rd last year various measures have been put in place to determine the nationalities of people who fall into certain groups which have contact with state authority.  All defendants in court must now state their nationality. Surprising no one the legal profession has been blowing its top into a so called breach of rights.  Now a similar uproar has occurred over the requirement of childrens` parents or guardians to name their child`s nationality as part of a schools` census.  IMHO with education defects being seen as a major problem from low industrial productivity to the limiting of lower social class children being able to climb out of poverty it seems perfectly reasonable to have facts on the nationality of such where eg lack of English as a native language in the home might be proving a detriment to inherent ability.    Of course the Left immediately cries racist or fascist in any situation where it thinks it will enhance its support amongst new arrivals.  To that extent a High Court Appeal against the census is underway by a group calling itself Campaign group Against Borders for Children.  I sincerely hope that appeal fails.

JUSTICE OF WHICH TO BE PROUD

There is much to be said for the opinion that justice for all but the rich is no longer the certainty that it was a couple of generations ago. But then a little reported event happens along and all that can be said is that there is still a flickering flame within the system of which we should be proud.  "A Muslim suspected of involvement in "terrorism-related activity", who complained that Home Office movement constraints prevented him from visiting McDonald's and treating one of his children to a Happy Meal, has failed to persuade a High Court judge to relax restrictions." The report makes no mention of how his appeal was funded but I would hazard a guess that he was legally represented under legal aid.  I wonder where else he could have pursued his appeal on such grounds at state expense.  The brief report is available here.

TOO MANY CHIEFS AND NOT ENOUGH INDIANS? (2)

On 25th July 2013, shortly before my previous host site was taken down, I commented on the numbers of serving police officers in England and Wales and the ratios of how the various ranks were proportioned.


4.86 constables/sergeant
3.26 sergeants/inspector
3.49 inspectors/chief inspector
2.2 chief inspectors/superintendent
2.24 superintendents/chief superintendent
1.82 chief superintendents/ACPO rank




On 8th August 2015 I posted as follows:-

Although I am cautious when reading of a latest form of crime statistics which appears to indicate that the trend is up, down or sideways there is more than a little fascination in the structure of those in blue employed (in reducing numbers) to keep the peace. According to current figures there are:-

1.68 chief superintendents for every ACPO ranked officer

9 inspectors and chief inspectors for every superintendent

3.3 sergeants for every inspector

5.2 constables for every sergeant

Figures for 2013 were:- 

4.86 constables for every sergeant
 
3.26 sergeants for every inspector
 
3.49 inspectors for every chief inspector
 
2.2 chief inspectors for every superintendent
 
2.24 superintendents for every chief superintendent
 
1.82 chief superintendents for every ACPO rank


I have no knowledge of the internal workings or management of large organisations but it does seem that the police are top heavy at the higher ranks of chief inspector and above. The army also seems to be similarly afflicted with around 200 brigadiers and  generals  for a force of around 100,000 reducing. 

Perhaps this is a historical anomaly and recruitment and promotion are trapped in a time warp? 

I followed those figures up on  22nd July 2016:-


Current figures are for 2015:-

Thus the ratio of ranks is now:-


5.17 constables/sergeant
3.36 sergeants/inspector
3.44 inspectors/chief inspector
2.02 chief inspectors/superintendent
2.43 superintendents/chief superintendent
1.68 chief superintendents/ACPO rank

Are there too many chiefs and too few indians? The numbers above indicate a constable:ACPO rank of 493.78. Perhaps somebody more knowledgeable than I can comment on the significance of these numbers?
                                                    ______________________________________________

Latest figures and ratios are:-


5.11 constables/sergeant
3.40 sergeants/inspector
3.43 inspectors/chief inspector
1.80 chief inspectors/superintendent
2.76 superintendents/chief superintendent
1.55 chief superintendents/chief officer

The current ration of constables to police chiefs is now 458.56/1.   I have no idea of the optimum staffing ratios for an organisation like the police.  But I do know that with various constabularies rationing their investigative procedures public interest in these numbers is bound to become more critical.
 

SUSPENDING CUSTODIAL SENTENCES

Today December 1st the prison population is 86,859. Prison capacity is 87,411. That equates to the fact that prisons are at 99.37% of their capacity. It probably is not unconnected to the fact that suspending custody seems to be a preferred option when at all justified and at times without that justification. My last sitting was in March 2015. According to the Sentencing Council "the percentage of cases sentenced to a wholly or partially suspended sentence decreased sharply, from 6.0% in 2013–14 to 0.5% in 2015–16. This decrease coincided with the abolition of suspended sentences in the Magistrates’ Court for offences committed on or after 1 September 2014".  I therefore have no first hand knowledge of the current situation. But I do read court reports.  Caught driving whilst disqualified this person was given custody suspended. Why he was not banned for an increased period but subject only to six penalty points only those present in court would know.  A registered sex offender who re-offended in what one assumes in a similar fashion was given a suspended sentence at a magistrates` court. Perhaps a legal eagle can explain this apparent contradiction vis a vis Sentencing Council as above. However my main thrust today is the apparent proliferation of suspended custodial sentences notwithstanding again the figures above. In 2016, 56,317 offenders had a suspended sentence order imposed, representing five per cent of offenders sentenced. In the twelve months to June this year 1,216,915 were sentenced at all courts of whom 88,091 were sentenced to immediate custody and 55,450 to custody suspended. Figures for 2010 were 1,334,083, 103,770 and 48,976 respectively.  There are those who shout loudly that far too many offenders are imprisoned.  This dovetails nicely with the severe restriction on prison capacity; a situation wholly owing to government policy.  The single irrefutable fact is that when offenders are incarcerated the public is protected from their further offending. That fact is debated by criminologists as being no antidote to further re-offending after release to the detriment of that very same public. 

I doubt there will not be similar controversy for decades to come.

JURY REFORM IS ONLY A MATTER OF TIME

I have never served on a jury so my knowledge and opinions could be termed hearsay to some extent.  Lord Justice Singh certainly is an expert although from his exalted position he too has no practical experience of what it`s like behind closed doors sitting with eleven people he`s never met and trying to decide what would probably be a life changing decision for an individual.  

I`ve posted here more than a few times on problems with juries. Two such posts were 14th April 2015 and 13th February 2017.  L.J. Singh is following very very slowly in well made footsteps as is the snail paced progression on the legal topic so common when a government and senior judiciary are walking on eggshells.  He suggests eg that jurors should be presented with written information on presenting themselves for the forthcoming trial; my my, what a superb suggestion........no, more than that; what a brilliant suggestion that could only come from one so steeped in the law as a Court of Appeal Judge.  Judges are just too afraid to grasp the nettle.  There never will be confirmation but I suspect that there`s more than just a minority of judges who would gladly dispense with the jury system.  Perhaps their silence is one of intent.  Allow more cases to be seen to be called into question by irregular actions in or out of the jury room and the case will eventually be clear to all, so they might think, that judges are in a better position to ascertain innocence or guilt than the common man formally seated on the Clapham omnibus. 

In practical realistic terms should a potential juror firstly be restricted to being a British citizen?  Would it not be a simple matter to send to those selected printed or digital information of what is expected and what is prohibited? Should juries in England & Wales not be reduced to the odd number of 11 and requiring eg a 7:4 majority if unanimity cannot be achieved? And what about a juror with specialist knowledge  of some technical matters which might be heard in evidence. S/he would not need to consult Mr Google or Ms Wikipedia to know the truth or otherwise of these matters.  Is making his/her knowledge available to fellow jurors worthy of report to the judge, contempt of court and a re-trial?  I recall a case where my own expert professional knowledge was in direct contradiction of a witness`s evidence.  I did not withhold that information from my two colleagues and I do not consider that my action was against my oath.

There are of course many aspects of jury selection that can be criticised. If my previous posts as above have been perused any more comment now is superfluous.  But one thing I`m sure of: the jury system as currently prevailing is on borrowed time.  How and when it will be reformed or abolished is a matter for a TimeLord not a retired magistrate but it will come; of that I`m sure. 

I`M A VERY SILLY MP

Written parliamentary answers cost over £150.00. It is almost impossible to credit but recently a London Tory MP asked the purpose of supplying drinking water to witnesses at magistrates` courts.  No! I couldn`t believe it at first. The proof of the pudding is copied below.

LAW BY LOBBY GROUP

"So far there haven't been any prosecutions for FGM, so would you argue that the law about FGM should be done away with, too?"  That question was put to me in comments made by a commenter to yesterday`s blogpost.  It set me thinking.  Should the law or should legislation be enacted by parliament to, using the easily understood colloquialism, make a statement?  Take the example of early day motions which are motions submitted for debate in the House of Commons for which no day has been fixed. As there is no specific time allocated to EDMs very few are debated. However many attract a great deal of public interest and media coverage. EDMs are used to put on record the views of individual MPs or to draw attention to specific events or campaigns. Topics covered by EDMs vary widely.By attracting the signatures of other MPs they can be used to demonstrate the level of parliamentary support for a particular cause or point of view. MPs, especially those new to parliament, besides putting their cause in the public domain can put themselves into the public eye and add some lines to their website about how much effort they`re making to justify the votes of their constituents. But the law should not be about making statements.  The rule of law is the legal principle that it is law which should govern a nation as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society particularly as a constraint upon behaviour including behaviour of government officials.The law serves many purposes and functions in society. Four principal purposes and functions are establishing standards, maintaining order, resolving disputes, and protecting liberties and rights. The law is a guidepost for minimally acceptable behaviour in society. It serves nobody if it merely advocates the opinion of the current legislature. 

The abhorrent practice of female genital mutilation has been against the law in this country for over thirty years but the history of its prosecution or rather non prosecution is abysmal: a single case prosecuted and the defendant was acquitted. It has brought the law into disrepute.  It has been treated with disdain. It is illegal to smoke in a car when there are child passengers. Being drunk in a pub is surprisingly illegal.  These two activities are and were driven by public opinion.  In the former to emphasise the dangers of so called passive smoking where there is some debate as to cause and effect and in the latter to satisfy Victorian morality activists of the evils of working class drunkenness. For different reasons prosecutions are virtually non existent. The Hunting Act 2004 was enacted by Labour under Tony Blair to appease his left wing. It was therefore a demonstration of power and intent rather than legislation to improve the well being of society.  It was for the very mirror in reasoning that persuaded Theresa May to put in its election manifesto earlier this year that if the Tories won a majority she would allow a free vote to overturn that act.  61.8% of all organised hunters charged with Hunting Act offences have escaped conviction.86 of the 165 Hunting Act charges made were dropped either before or at trial [52%]. 40 of these related to the big Heythrop trial. Complete statistics can be accessed here. 

There are other such laws that might be regarded similarly.  So to answer the question at the beginning of this post my response is that if legislation is enacted the will and the means to prosecute it must be available for all the law enforcement bodies associated. Failing to do so is a luxury we cannot afford. It is tantamount to rule of the mob where the mob is the lobby group or groups with most to gain for their own sometimes nefarious purposes.