HASTA LAVISTA

It is widely known that Windows XP is now in effect ex Windows XP. I have been using mainly an eight year old desktop and also a ten year old notebook as my main and back up computors both running XP Pro service pack 3 and supposedly virus protected. Indeed the desktop came originally with Vista installed but I had XP substituted instead.  Last week a trojan caused my desktop to go gradually down from having to start in safe mode to now not booting up at all. Today my notebook is operating only in safe mode but for how much longer I don`t know. I am off on a fairly long holiday next week and no more posts will be appearing until the second week in May when I hope by then to have mastered the workings of Windows 8.1 operating in a new all in one machine.

Hasta lavista baby; I`ll be back.

POUNDS, PENCE, BLACK BALLS AND FAIRNESS ON FARE DODGERS

It has been an interesting few days for observers of legal news as it impinges albeit indirectly on the daily activities of magistrates. Nigel Evens, a high ranking Tory politician who has admitted to behaviour which should shame anyone  who has a seat in the elected legislature of this country but who has been cleared of activities for which he was sent to trial, has railed against the imposition of legal costs of his defence which, he claims, will empty his piggy bank of his life savings.  There have been arguments in the media that the CPS was acting unfairly in hiring a top class Q.C. to argue its case.  This is untenable.  If  CPS had lost the case and it had been led by a less experienced barrister the cry might have been that inexperience had allowed a guilty man to go free.  The CPS must stand by its own decision making process including the decision whether or not to charge on the evidence at hand and the prosecution code of conduct. But, and it`s a big but, the other two ramifications of this trial and verdict are more open to reasoned debate.  There has been a suggestion often repeated  subsequent to such acquittals that there should be anonymity for those accused of sex crimes as there often is for the complainants in such cases.  When open justice in this country is subject to ever increasing salami slicing by the twin bacon cutting  blades of  sacrifices to “victim centred justice”  and anti terrorist orientated secrecy another avenue to apply somewhat oppressive witness protection measures for an accused would be a step too far.  Indeed I would posit that anonymity for an accuser has already been taken beyond what is reasonable.   On the subject of the costs to be borne by an acquitted defendant there is IMHO a strong case for  reimbursement of legal expenses incurred in that acquittal.  If CPS employ a silk the diminishing principle of the level playfield should apply and if a fellow silk secures a not guilty for his/her client tax payers` funds should be available in recompense for the defendant. 

Fare dodgers are commonplace in the docks of magistrates` courts the length and breadth of the country.  Depending on the actual charge they are usually  punished by a maximum fine of £500.  The case of the City financier who agreed to an out of court  repayment of  £42,550 plus costs instead of a prosecution in court  has raised eyebrows.  It could be argued that his wealth (he paid the total sum within a few days) allowed him preferential treatment and the avoidance of a criminal record.  On the other hand his payment into public coffers was of direct benefit to tax payers.  After all the hundreds of thousands of fines handed out to those on welfare benefits are calculated according to their means even allowing for their being convicted which this chap has evaded and sometimes are out of kilter with the offence  eg a fine of £110 for having no vehicle insurance when the costs of insurance can be three or more times more expensive.  It seems odd that the case was not pursued to its logical conclusion.  Assuming the evidence was overwhelming a guilty outcome would have allowed the railway company to ask a court for compensation for lost revenue.  Perhaps that not being the case the prosecution considered settlement was the best outcome in the circumstances.  We`ll probably never know.    

And finally a bit closer to home and the following  of political correctness by the Magistrates` Association takes it a further step along the yellow brick road.  The Association has long had a policy of offering honorary membership for senior judges.  There are self contained arguments against this policy on grounds that are pertinent to the realities of the situation. At the last AGM in October six senior members of the judiciary were co-opted as honorary  members:- the Rt Hon The Lord Mackay of Clashfern KT FRSE, The Rt Hon The Lord Irvine of Lairg, The Rt Hon The Lord Woolf, The Rt Hon The Lord Falconer of Thoroton, The Rt Hon The Lord Phillips of Worth Matravers, and The Rt Hon The Lord Judge of Draycote.  It has now been decided  that honorary membership should be abolished.  That decision has come about because Lords Irvine, Phillips and Woolf are members of the men only Garrick`s Club and rather than blackball those three for their  apparent  misogynistic tendencies in daring to belong to a gentleman`s club  the rules are being changed.  Strange or not so strange to report there is no mention of this decision on the Association`s members` section of its website or else I`ve missed it within its nebulous labyrinthine structure.

A NOT SO LEVEL LEGAL PLAYING FIELD?

"Innocent until proven guilty" is axiomatic for a justice system to be held in confidence by any society.   It could be argued that long term trends within our criminal justice whilst remaining loyal to the letter of the law are nudging ever so silently to impinge upon the spirit of the law. “Essential Case Management: Applying theCriminal Procedure  Rules” December 2009 combined with CJSSS;  Criminal Justice: Simple, Speedy, Summary a worthy  initiative of the previous government can sometimes illustrate the difficult situations for unrepresented defendants. 

 

I don`t suppose there are any J.P.s who are unfamiliar with an unrepresented  defendant appearing for trial  and for him/her to change plea owing to the last minute disclosure by the CPS of incriminating CCTV evidence.  Earlier this week my court during a bail hearing had before it a represented prolific offender on remand for other matters against whom the only evidence, according to the CPS, was from  CCTV  seen by police but not by CPS.  The defendant`s representative after taking instructions told us that as her client had not seen the supposed evidence against him his not guilty plea was repeated.  The rhetorical question put to her was that surely her client knew whether or not he was guilty.  When pressed to disclose the grounds of her client`s plea she informed us that drug addiction had affected his memory and he could not be sure where he was on the date in question.  He was remanded in custody on the current matter and a date set for trial.

“Putting the prosecution to proof”, is no longer tenable for defence lawyers.  Are my antennae too sensitive or is the level playing field just a touch out of kilter?

BEWITCH AND BETWEEN

Yesterday I described what is IMHO an anomaly in the manner in which reminders to comply with the requirements of a s.172 notice are handled.  On an extremely unusual day owing to the usual mix of incompetents, incompetence  and omissions we  sat also on a breach matter.  The offender had had an extremely traumatic upbringing in a war torn African country and had arrived here as a teenage asylum seeker. He was  now in his mid twenties with an offending history of public order and drug convictions.  He was before us for having breached his mental health treatment requirement.  The probation officer sought to persuade us that we should fine him rather than make his sentence more onerous or revoke and re-sentence.  His representative explained that although his English was of a high standard he could not engage with him with any depth. The purpose of breach proceedings is to punish those who do not take advantage of the disposals which have been offered in attempts to both punish and rehabilitate.  In this respect we encountered another anomaly in a system which is full of them although it takes a “perfect storm” for their existence to become apparent in the fog of legal jargon.     We decided to “punish” him by increasing his MHTR  from the current three months to six. 

Discussing the case afterwards in an empty courtroom all of us present were firmly of the opinion that a generation ago Mr X would probably have been offered a bed in a place of safety staffed by full time medical personnel qualified in the care of those with severe mental disturbance.  “Care in the Community” which so often oversees  the patient falling into the pit between the cracks in a failed system is long past its sell by date but with the increasing financial problems besetting the NHS it is unlikely that finance will ever again be made available for the long term in patient psychiatric care urgently required by so many.   In a similar fashion it is virtually a no brainer that the current cash starved justice system will ever return to the position it held in the minds of a previous generation of politicians; unlike politicians of the ilk of Maria Miller, recently resigned Minister of Culture,  who is quoted in today`s Times2 as stating when she made a case for arts subsidy that it was suitable for “venture capital” based solely on the “economic benefits” it would produce.To quote that Irish genious, “What is a cynic? A man who knows the price of everything and the value of nothing".


This is the kind of mind rot engulfing so many of our political masters (and mistresses) which allows the populist rhetoric of a certain N. Farage to so bewitch a nation.

SOMETHING IS MISSING

Sitting in court is never boring but sometimes it is routine; nothing of interest then,  like looking for a taxi on a rainy day, suddenly two come along one after the other. 

A morning traffic court consisted mainly of  those being prosecuted under s.172. I described such a sitting on March 27^th.  It wasn`t until a  more recent sitting last week that a previously unnoticed anomaly in the process hit me.  If police have had no reply within the 28 day deadline  to an initial notice sent to the vehicle`s  registered keeper a reminder notice is sent requesting that the completed form is returned within seven days.  Within that reminder is a little read paragraph stating that even if the return of the original notice appears to have crossed with the receipt of the reminder  the latter should still be returned fully completed to ensure compliance has been made.  The misinformation within what should be a simple  process is as follows:-  The statutory time allowed for compliance i.e. the return of the form s.172 duly and accurately completed is 28 days.  The additional time apparently offered by the reminder is a courtesy.  So the obvious problem as happened at that last traffic court was that the defendant had returned the original form on day 29 and one day later received a reminder which he ignored having assumed that the first and only form he returned would be sufficient.  He sent it without asking for proof of postage from the post office.  The police, according to the CPS prosecuting, never received that form.  As a bench we had two options as would any other bench in a similar case.  We could rule that the 28 day limit for receipt by police of a returned form   was not complied with, find guilt proven and perhaps in the extenuating circumstances  dispose of the matter with no costs and an absolute or conditional  discharge or we could find that within the apparent terms as offered by the reminder and having had sufficient but not conclusive evidence of the reminder having been sent within the extended period find the defendant not guilty.  As a bench we were split and there that story ends.   

But surely in such matters which are repeated thousands of times weekly  if the police sent a reminder well within the statutory period eg after 14 days fewer offenders would be caught out by their dilatoriness or is that too simplistic for the  boys in blue?  Can they not see that something is missing in their approach?  Common sense perhaps.

Part two of this tale will be for my next post.

CYNICISM

Over the last decade or so the Daily Mail reader  has become a euphemism for the eponymous  right winger.  For those old enough to remember,  it mirrors the image once conjured up of the flat cap wearing readers of the Daily Worker (1930-1966) now The Morning Star.  Whilst the latter tries with some vigour to manipulate chosen facts to its political point of view the once fascist leaning Mail seems now to be all too often getting its facts wrong in order to appeal to a hang `em and flog `em remnant of a Tory Party the increasingly ineffective leadership  of which is torn between its attempts of appeasement and its embarrassment.   An item in today`s Mail Online is demonstrative of this editorial attitude to fact.

I would never be described by associates, both personal and professional, by the pejorative term  “do gooder”.  On the bench like the vast majority of my colleagues I attempt to honour my oath of office; “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will."  And that means,  when it is appropriate,  sending shoplifters to immediate custody for the maximum term allowed in the magistrates` courts; namely six months.  For the Mail to stir up public mutterings against a supposedly “soft” judicial system  by falsely claiming that currently the maximum sentence is stifled by the fact that “current rules say shoplifters should not be jailed for more than six weeks "  is nothing short of disgraceful.  Indeed the whole article smells of having been prepared with some outside input. 

Having some intimate knowledge of the legal  system from the inside, as others within the system also do, I can make reasoned conclusions about matters such as mentioned above.  What is of greater personal concern is not having inside knowledge of what is behind the headlines of myriad other stories in the media whether on the subject of health, defence, environment etc etc.  As a paid up member of the Association of Eurosceptics since I was nine years old I can understand perhaps why the undimmed populist Nigel Farage was deemed to have easily won his contests with Clegg on  points decisions.  For a public facing a general election  a year from now this evident distrust of  the current political class  can be the beginning of a slide into a form of politics  more suited to Athens or Paris or Rome. 

APRIL 1st

Today is the second day in which the criminal courts` activities have been and will be severely disrupted by the non appearance of solicitors and probation personnel.  I am not a natural sympathiser of strike action and indeed could probably be described as a “Thatcherite” but I am vehemently opposed to the budget cuts affecting legal services and all that is encompassed by the term “law `n order”.   I am 100% certain that if this government manages to further curtail the rights of individuals when confronted by the power of the state in all its forms these rights will never be recovered.  For that simple reason I sincerely hope that those taking action today have the wherewithal to continue until some sort of acceptable compromise is achieved.

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?