AN INTERESTING CASE RECOLLECTED

Recent retiring room discussions reminded me of an interesting case on which I sat as a fairly new magistrate.  A young  woman faced a charge of "using threatening, abusive or insulting words or behaviour ". She was not represented.

In the street she had been very drunk and the medic on the ambulance which had been called by a bystander could not persuade her to go to hospital so he called police and with their knowledge left to attend another emergency call. On their arrival her situation seemed precarious....she was in and out of consciousness and they recalled the ambulance. Before its arrival for a second time she appeared to be more lucid and began swearing and verbally abusing the officers who arrested her, took her to the station where she was charged. In her own defence she agreed she was so drunk she remembered nothing at all of the incident. She continued her denial under cross examination.

Discussing whether or not the CPS had proved the charge we decided that her intoxication went beyond an aggravating factor and that if we accepted her version she was without awareness, control or intent. However our legal adviser on hearing our intended conclusion and referring to the appropriate sections told us that if intoxication is self administered awareness of which the defendant had none must be considered as if not intoxicated and therefore she was guilty.

I cannot recollect having sat on a similar case since.

MUSINGS ON FRIDAY (2)

As another week draws to an end one can always find snippets of interest that demonstrate in simple terms the confusion that reigns throughout our justice system.  An embattled Justice Secretary is continually reliant upon his press office for the regular publication of information which he hopes will allow him to escape the shallow political grave which he appears to be digging for himself with his cabinet colleagues` silence for accompaniment.  Earlier this month the MOJ published   “Updated analysis of the impact of the Intensive Alternatives to Custody pilots on re-offendingrates.”  This document is, I suppose, an effort to counter the ramshackle road to ruin that was intended to transform the probation service into an efficient PBR  (payment by results) scheme to reduce recidivism.  For those so minded it is not recommended bedtime reading.  As so often happens coincidence is beyond control.    Members of the National Association of Probation Officers  will be taking strike action from 12 noon on Monday 31 March to 11.59pm on Tuesday 1 April and colleagues in London have just been informed that the 31^st March is also the start date of a pilot scheme scheduled to run for two months in preparation for the Big Bang probation changeover conjured up by Chris Grayling.  Apparently the effect of this scheme on London courts will be that the authors of Pre Sentence Reports will need extra time to complete the paperwork. There will be two lengthy extra forms to complete for each defendant. The purpose of these forms will be  to assess which provider the defendant will be under during their supervision i.e. either the National Probation Service or Community and Rehabilitation Company.  As a direct result  Oral Reports will take longer to do as both  the same forms have to be completed. Happy days indeed!

Like all bullies whether in school, on the street or in the workplace; when they are confronted by resolute opposition they are shown up as the weak specimens they actually are and government ministers are no exception.  The striking members of the Criminal Bar have shown just what results even white collar professionals can achieve from a system beholden to them for its effective functioning.  The aforementioned Secretary of State has postponed the planned 6% cut to fees paid to advocates in Crown court cases under the Advocates Graduated Fee Scheme, which was due to be implemented this year.  A full report in the Law Society Gazette is available here.

A couple of weeks ago an example of sentencing situations which magistrates face daily took place before a court presided over by  South Tyneside Magistrates and not by a professional government employed District Judge(MC).  The prolific offender was not given immediate custody as perhaps might have been the decision of another bench but  he was sentenced by three of his peers.  I doubt that a decade from now such an occasion will arise.  As far as I know no poll has ever been commissioned on whether the English and Welsh people would prefer to retain the current system of summary justice or would rather be tried and sentenced by that single professional judge.  This complete disinterest by everyone concerned;  the senior judiciary,  the Magistrates` Association, the Law Society, the Bar Council and the general public is the reason that on both sides of the House the salami slicing of our summary justice system will lead to its eventual direct control by government. 

The offence under section 20 of    Offences against the Person Act 1861 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm" and is punishable by up to five years custody.  At Gloucester Crown Court HH Judge William Hart was earlier this week  quoted as taking into account  a defendant`s means allowing him to pay £4,000 compensation  in deciding not to imprison him for biting off an innocent bystander’s  ear; a good Samaritan who had come to the aid of a woman apparently  being assaulted by the defendant who was her boyfriend.  A report is available here.  On a first reading I was amazed that HH should have taken such a line but he admitted at a previous case in 2012 to having made literally an error of judgement which resulted in further grief to an innocent member of the public.  It is to be hoped that the concept of “public protection “ might figure more highly in future sentencing exercises by the judge.  But on a second reading of these reports I recollected a case before me last year  of drink driving for a second occasion within three years.  Clearly the offender`s sentence fell into the range of a medium to high community sentence but after some discussion we decided to impose a Band E fine (five times weekly income) in the particular circumstances.   So perhaps I should not be over critical of Judge Hart.

s.172

s.172:- Duty to give information as to identity of driver etc in certain circumstances.  There surely must be changes in the format of this requirement? Heaven knows how many such notices are disputed in magistrates` courts owing to alleged non receipt and subsequent convictions appealed at Crown Court. We are familiar with the arguments against having the notices sent out as “to be signed for” post. The likelihood of massive changes in our postal system initiated by the sale of Royal Mail do not augur well for any reduction in the numbers who claim they did not receive the notice or the statutory reminder. If e-mail and/or mobile phone number were required information for V5 registration document and DVLA were prohibited from supplying such information to third parties perhaps we would have fewer cases before us. Of course there are many caveats to proposals which further invade our privacy but I don`t believe the current system can continue for much longer. 

All the above was brought to mind at a recent sitting.  We had listed six trials on failing to comply with s.172 and all the defendants bar one based their not guilty pleas on the non receipt of both the notice to inform of driver and the reminder.  We found only one  not guilty.  Two of those, in addition to six penalty points which made one of them a “totter”,  ended up with fine and costs totalling around £1,000.   Needless to say their faces dropped in astonishment.  It was revealing also that two of the guilty when asked to provide some evidence that they had left the address to which the notices had been sent (from the DVLA data on the address of the keeper of a vehicle) said that they had such evidence eg council tax or utility bill but had not thought to bring it with them.  Another of the guilty  had written on his own headed paper in response to the notice that the driver was one of two of his immediate family both now domiciled abroad and that both denied being culpable.  We did not consider that he had supplied sufficient diligence in his efforts to identify the driver.

One would have thought that with the disgrace of lying former cabinet minister Chris Huhne who was brought down by a s.172 offence the message might be getting through that the risks of being caught out are real and very costly. No doubt there are many apologists who reject the imprisonment of such offenders. There must be an unequivocal last resort of custody as the punishment for those who through their own contempt for the law whether by subverting s.172 or wilful refusal to pay council tax or court imposed fines undermine the very foundations of society.

THE ZEALOT OF PETTY FRANCE

Let me begin today`s offering with two statements: one is fact and the other is opinion; my opinion.  The fact is that the M.O.J. press office is rarely underemployed.  The scribes in that edifice in Petty France London SW1 roll out their releases with unfailing regularity and today`s is  no exception.  It is my very humble opinion that contrary to an initial impression anybody with knowledge of the underlying situation and recent history of such ministerial statements will see that behind the bland brownie points being offered to  magistrates the way is being prepared for their activities to be ushered out of the courtroom and into an office of one kind or another.   

A probation service which is being transformed on the basis of payment by results and is akin to a driverless train heading for the buffers is being ordered to offer its services to those on short (12 months maximum) sentences and my colleagues and I are being tasked in some so far indeterminate  manner to assist in their “rehabilitation”.  J.P.s are not social workers.  Our position is to do justice to all and that function takes place in the public forum known as a courtroom. . When, as is certain, the Magistrates` Association and other so called representative bodies of J.P.s endorse these recommendations they are effectively consigning to history the role of Justice of the Peace.   

 As per my post of 21^st March  27,719 offenders received immediate custodial sentences (6 months maximum) at magistrates` courts in 2013.  The numbers of qualified probation officers are certain to be reduced under the proposed new  contracts.  So we will have fewer such people dealing with all these new “clients”.  Such is the path of a Secretary of State whose actions are akin to those of a zealot and we know where such actions  lead:- destruction. Perhaps he should have been appointed Secretary of State for Transport and at least the trains might have been made to run on time.

FOOT IN MOUTH DISEASE

As a presiding magistrate I am only too aware that I have to think carefully in making any off the cuff remarks in court and there are many opportunities and occasions when such remarks are necessary.  Each occasion offers the possibility of going off piste to such a degree that it is not unlikely that somebody or other will find cause to complain.  Indeed within the confines of the court building a three second speech delay as in the Radio 1 presenters` handbook for beginners is a required tool for a J.P. in this most politically correct   arena.  All this leads me to the remarks made by HH  Judge David Hale at Mold Crown Court.  The usual brief court report is no basis for undue criticism but if His Honour`s remarks had been about eg a Pakistani immigrant and not a Polish one or another ethnic or national group member I venture to suggest that there would have been a possibility of these remarks reaching a wider audience. 

I am not unconcerned that we as Justices of the Peace seem to be  held to higher standards of behaviour than our senior professional colleagues  by those who oversee our conduct.  Perhaps my antennae are over sensitive or perhaps as lay magistrates we are more inclined to retain some facets of that ordinary fellow on the Clapham omnibus from which personality pool we are appointed.

SUSPENDED SENTENCES AND PUBLIC PROTECTION

When sitting with colleagues recently appointed I occasionally remind them that we have a duty of public protection ensconced within the formulaic information overload that they are doing their best to absorb.  It is a function that is rarely if ever mentioned in any training course and one with which  most new colleagues can immediately feel comfortable as they are faced for the first or second occasion when the custody threshold has been breached.  For many the realisation that their decision means that a fellow citizen`s  liberty is being taken from them can be a sobering  moment.  Such decisions and the structured approach employed to achieve them are perhaps most significant when it comes to deciding if a custodial sentence can or should  be suspended.  The pressures on so doing are enormous.  At all levels from Secretaries of State to L/As via PSRs and trainers,  the lower courts in particular  are being “asked” to  employ some form of rehabilitative requirement and to eschew immediate custody.  The increased use of suspended sentences can be gauged from the table below.

For the year ended March 2013 figures for Adults(21 and over)  sentenced at Magistrates` Courts are alongside similar figures for year ended March 2003 in ( ) and 2006 which was the first year in which new legislation enlarged the availability of suspending custodial sentences:-

                                                                                                         

	Number sentenced	166,088	(178,450)	158,644
	Number given immediate custody	27,719	(29,691)	25,596
	Number given fines	44,279	(58,597)	43,583
	Number given community sentences	39,916	(47,284)	45,602
	Number given suspended sentences	10,843	(473)	4,621

    

                                    

                                                                  

                                                                      

In day to day practice the decision on whether or not to suspend is down to individual judgement of the members of the sentencing bench. An interesting example which perhaps encapsulates the process would have taken place this week at Hereford Magistrates` Court where an offender convicted of assault [in an apparent domestic violence context]  last month and sentenced to five months custody suspended was convicted this week of drink driving; the  fourth time  he had been convicted of a drink drive  related offence since 1996.  His suspended sentence was not activated because, according to his lawyer, “the drink driving offence coming so soon after the community order had been issued, work with the probation service “had not had time to bite”. 

Colleagues and others and  this blogger might have their own opinions but of course without actually being in court the full circumstances remain unknown.  My question is quite simple; was public protection considered as part of the structured approach to the decision?

DISCLOSURE AND BANNING SERVICE IN A FINE MESS

From time to time I have been asked by a newly convicted offender of previous good character whether or not his/her (minor) offence eg travelling on public transport without a valid ticket,  would have to be declared to interested parties, i.e. on job applications, professional or educational bodies etc etc.  It used to be simple enough to reply with some prompting if necessary from the L/A : not any more.  TheDisclosure and Barring Service operates under different  rules from its parent; the Criminal Records Bureau.  It appears that as with many arms length quangos its operating efficiency leaves something to be desired.  The Information Commissioner’s Office has today published  news that further adds to my increasing cynicism of the quality of the management of such organisations as the DBS. 

I ask myself whether the inefficiencies at the DBS and the many other problems at similar myriad agencies in the news over the last few years are on the increase or is it the case that increased investigation of these agencies, often by journalists, is bringing them to our attention.  Given the still to be determined results of the Leveson Inquiry I would rather have the tabloids and others with their sometimes lurid content  on my breakfast table if I so chose than “Hacked Off”`s  proposed edited versions.

A STEP TOO FAR

There is an old story that the ultra conservative Presbyterian ladies of Edinburgh’s Morningside district used to describe sex as that in which the coalman delivered coal.  Those were the days when the British middle classes kept sex in the closet.  High divorce and teenage pregnancy rates are a clear indication that there is nothing about sex that cannot be discussed in almost any level of communication.  However when discussion at the trial of Max Clifford in the Old Bailey centred on   the miniscule dimensions of his male member many members of the jury could  not control their laughter and so they were all sent out to recover their composure.     I haven`t yet seen any cartoons on this topic which seems made to measure for some sort of satirical observation.  Perhaps that would  still be a step too far........

FRUSTRATION

In the retiring room at 9.30a.m. to prepare for an all day trial.  At 9.45a.m. informed that the matter had been dismissed earlier that morning.  Secondary matter listed procedural only and after supping off a few dregs from an other court`s measly table signed out at 11.15a.m.  This is not all that unusual.  Frustration with a capital F does not go half way to describing how my colleagues and I feel.

FRANZ KAFKA IN SPIRIT AT THE HIGH COURT

It seems the spirit of Franz Kafka has been sighted at the High Court.  A recent decision meant that vulnerable people in the prison system, including inmates with mental health problems and women with babies, would suffer injustice following the removal of the right to criminal legal aid in many prison law cases. That  argument was rejected by their Lordships on the basis that the decision was political and the Lord Chancellor`s actions were therefore  not unlawful.  Phillippa Kauffman Q.C. acting for the charities which had brought the case asserted that, “People are not going to be able to adequately represent themselves.  "The cuts will also interfere with the right of access of prisoners to the courts”.  James Eadie Q.C. in a  response worthy of Kafka said, “If there was unfairness at internal hearings or reviews in the prison justice system, or before parole boards, civil legal aid was available for complainants seeking judicial review”.  In reply, Ms Kaufmann said judicial review was no answer because the changes in the system meant that, with prisoners now denied legal assistance, no one would know if they were entitled to bring claims against the prison authorities. These victims of unfair decisions will not know where to go. They don't have any lawyers any more to help them."

A fuller report is available in the Guardian.

ADDENDUM

Latest news from report in  Law Society Gazette is that the charities will take their case to the Court of Appeal.

INCOME OR ENVIRONMENTAL IMPROVEMENT?

Like tens of millions of others I was a teenage smoker with no thought as to the environmental effects of discarding used cigarette ends whether on the street, in a park or from a car.  And like many converts who take up a new philosophy on daily life I am now and have been for many years a rabid anti smoker spreading the gospel when appropriate and enduring the occasional hostility when so doing.  So when I read of smoker fined £200 plus costs of £124 and £20 surcharge by colleagues in Carmarthen I did not have undue sympathy for him as he could have saved himself £269 or more if he had promptly paid the fixed penalty notice issued for his misdemeanour. However I wonder whether or not the local council had observed all the guidance issued by DEFRA with the purpose of improving our local environment to our common betterment or in this age of local councils` requirement, so they argue, to maximise income where they can, is the employment of environmental enforcement officers (litter wardens) fining litter bugs another method of making up for shortfalls in council tax receipts?

POPULAR OR POPULIST?

It seems that today is the day of mea culpa from those on whose wisdom we thought we could rely.   Perhaps that should be rephrased;  politicians can admit their fallibility only when they leave office.  First of all Ed Balls hopes that by admitting his failings we will overlook Labour`s catastrophic spending in its latter years in power and hope they do better next time and then David  (I might be blind but I`m as hard as they come) Blunkett  regrets the problems brought about by indeterminate sentences.  The Attorney General, still in office and not to be left out, is forced to face the problems caused by the withdrawal of legal aid from many defendants. 

Perhaps every cabinet should by law have an appointed  minister without portfolio drawn by lot from the common citizenry with the only qualifications being an agreed standard of education, I.Q. and command of the English language.  The increased distance of the common man/woman from the verbosity and evasiveness of politicians as seen and heard on the Today programme or Question Time or Newsnight  is  disturbing and reinforces the superficial appeal of those with a popular (populist?) agenda.

KNIFE POSSESSION STATISTICS

For umpteen years governments of all shades have made it a priority to come down hard on knife crime.  As sure as night follows day the current occupants of Petty France have published thousands of statistics on knife crime,  the perpetrators and the consequent disposals.  Crime involving the actual use of a knife or bladed instrument is not covered by  figures published today: they refer only to possession.  I offer no opinions but for number crunchers the tables are available here.

RED IN TOOTH AND CLAW

It might be boring but it`s worth repeating; alcohol and/or drug dependence is responsible for around 70% of all crime in this country.  It`s also worth repeating that removing such people from the criminal justice system into a health care programme even without compulsion is sometimes frustratingly difficult.  Having regards to all that every day in every court in England a bench of magistrates has to decide on the appropriate disposal for one or more of those dregs of society.  Earlier this week it was my turn.  Martin  was 45 going on 60.  He had four pages of previous and many short jail terms for prolific minor offending.  His current address was a hostel in another town nearby.  He was before us for sentencing on assault, s.5 public order and criminal damage committed around a single incident.  His pre sentence report ran to eight pages and noted inter alia that for whatever reason his alcohol habit had never been specifically addressed by the courts.  We were told that he was awaiting his first payment from the benefits office, previous having stopped when he was homeless and or inside.  We decided that in addition to supervision and another order he should undergo an alcohol treatment requirement. It took us half a second to decide that it was a nonsense to impose costs.  So far so good but then we checked the law on so called victim surcharge and noted that we were legally required to impose such of £60.  Now £60 to many readers will buy a tankful of petrol or two theatre tickets or a ticket to Championship football match or………..  So this poor wretch has an amount which will wreck him to pay in 28 days.  The current Lord Chancellor and his short trousered advisors imposed this levy a couple of years ago so that “criminals” can contribute to society for their activities in a simply understood manner.  Previously it had been reserved as an addition to fines imposed.  Those sentenced to custody have more to pay.

If anything the M.O.J. has done since 2010 to persuade me that it is inhabited by aliens it is this iniquitous addition in the name of a just policy.  It is nothing but a feeble disguising of a truth;  that there are those in the Tory Party who are still red in tooth and claw.

DOMESTIC VIOLENCE PROTECTION ORDERS

I make no apologies today for turning the clock back but before going into more detail on what I have posted in the past I would draw my reader`s attention to what has resulted from precisely these matters. 

From 8th March 2014  legislation came into force allowing the implementation of  DomesticViolence Protection Orders (DVPOs) across England and Wales.  It is unlikely that many readers would have been aware that such game changing legislation was now in place.  I would refer now to my post of  09/04/2010 and the more detailed offering of the following week.  

This legislation was initiated by the previous government but it will be highly unlikely that the current occupant of the M.O.J. will publicise that detail.  It will be trumpeted as further proof that this government is tough on criminals and has the protection of vulnerable victims as its prime concern.  Whilst the latter consideration is of course most laudable the imposition of such legal hardware on those not found guilty in court of an offence the basis of which  is the foundation of the DVPO is IMHO a further step to the position where rather than guilt being proved a hitherto innocent party must demonstrate that  innocence.

When I was appointed part of my training was to emphasise that Justices of the Peace were as umpires to ensure a level playing field where the adversarial system of justice could be played out.  Increasingly it appears that that concept is being diminished in its importance to be replaced some might argue by placing the “victim” of crime as the centre piece of procedures.  Having the benefit of not being a lawyer my simple mind wonders where this is all leading.  Is there in the future to be some sort of 21^st century amalgam of the middle ages concept of justice and Sharia  where the offer of “blood money” has a long history?  Is the sophisticated, elegant and eloquent victim to have greater input into sentencing than one less able?  With the guidance on  and definition of domestic abuse being open to wider interpretation than previously those subject to its reach should be ensured that that level playing field remains level. 

As I have reminded new colleagues from time to time, we as lay  magistrates have in addition to other duties a duty of public protection.  We are representatives of the people; of our society; of our neighbours.  We might no longer be operating in a system of local justice so beloved of some and for which there is no longer any logical argument but unlike the professional state civil servants as are District Judges we are the nearest to a people’s  justice that is possible in a secular world of ever increasing central control. At a time where the integrity of police is quite correctly coming under increasing scrutiny the imposition of  Domestic Violence Protection Orders on the say so of an alleged complainant and a senior police officer is just the removal of another impediment to  the imposition of ever greater centralised control over the rights of free citizens.