Although
a day`s work could become routine for those of us who`ve been sitting
for longer than some in government would want, surprises are never
far from the public entrance. That was brought home to me when we
began a trial for a relatively minor motoring offence. Although
listed for a morning only the case ran until 4.00p.m. The
defendant’s wife was an acquaintance of the complainant who turned
out to be an ex lover of the defendant and whose current live in
partner was an ex employee of the defendant who was almost certainly
the current lover of his independent witness. And we had evidence from all of them. We certainly heard
more than we bargained for. Perhaps we should send a resume to the
script writers of Eastenders but then you couldn`t make it up.
Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.
Wednesday 21 May 2014
Monday 19 May 2014
SIR PAUL COLERIDGE
I
don`t sit in “family”. I admire those who do. My knowledge and
imagination tell me as much as I want to know about the dysfunctional
lives so many people are enduring and the consequences for the
children of those broken relationships. I try to live my own life by
principles which do not have a religion as their base. So even
although Sir Paul Coleridge, recently a High Court Judge, has made
headlines based on Christian values with his views and actions of
broken families, only to be castigated by the Lord Chief Justice he
has my sympathies for what they are worth.
There
is IMHO a forthcoming backlash to be expected from Christians of all
denominations on the apparent inconsistencies applied to matters
where there is an input from representatives of Muslims in this
country. Three million Muslim citizens are regarded by many opinion
formers as a “community”. Such a term implying a group of
people living in the same place or having a particular characteristic
in common is surely misplaced in this context. For many years I was
in business with a Moslem from East Africa. By his own words and
actions he had as much in common with co-religionist immigrants from
other parts of Africa or Pakistan as he had with native Americans.
I doubt his opinions are uncommon.
As
a descendant of immigrants to this country who arrived in the early
years of the 19th century I am as aware as any that
successful nations require occasional regeneration without the
widespread use of a sonic screwdriver. But it will be a
miscalculation of wide proportion if the ideals of those who worship
under the auspices of the religious heritage which is the basis of
this country`s legal institutions feel that their belief system is
being ignored or replaced.
Wednesday 14 May 2014
TRIALS ARE NOT FAIRY TALES
From
childhood we are conditioned to fairy tales and “happy endings”; when the hero
gets justice and the villain gets his comeuppance. When we begin to
understand the world`s realities we appreciate a sense of
satisfaction in these outcomes. However as we mature most of us
realise that life is not a fairy tale and that some heroes don`t get
justice and some villains get away with their villainy. So it is
sometimes in court.
Recently
we had a case where the outcome depended upon the evidence of two
unsavoury characters who happened to be man and wife and a defendant
whose tale of woe was such as to arouse sympathy in even the most
hardened of magistrates. We were forced to accept the evidence of
the complainants partly because the defendant however hard he tried
just could not provide a telling response. Indeed subsequent to his
sentencing we discovered that as had been alluded to in the evidence
of the complainants our defendant had some weeks previously been
found guilty in his absence of a strict liability driving offence
occasioned by the actions of the complainants.
We
suggested to him unofficially that an out of time application to
appeal against that other sentence might be an action to consider.
For
us the matter was a salutary reminder that the facts presented at
trial were the basis of our decision making however disagreeable we
might have considered the outcome.
Saturday 10 May 2014
WITNESS SCREENS
I was back in court yesterday for the first time in three weeks but hardly enthused by the experience. Following on from my previous post I am increasingly disturbed by the dismantling of what used to be called the level playing field of justice. This government in a not unexpected attempt to appeal to its UKIP leaning right wing supporters and using the financial melt down as excuse has made and is making determined efforts to show that it is hard on crime and hard on those who commit crime. The latest announcements on two knife crimes and you`re out of circulation seeks to overturn the sensible directions under Povey. See my blog 02/09/2011.
There are other insidious changes now so routine that younger colleagues find it strange that I question them when they arise in court. Yesterday we had inter alia a first listing of assault in a cafe. The complainant and defendant were strangers. Indeed the former was a visitor to the town and she lived over a hundred miles distant. When we were completing the case management form CPS told us she was considering safety measures (screens) for her and we allowed 28 days for her to make an application. My colleagues in later discussion questioned why I had indicated reluctance to the concept. Screens are available if the quality of the evidence of the witness is likely to be enhanced by the protection offered. Historically an accuser was expected to face the accused. Increased concern with domestic violence cases a decade ago ensured that virtually any application in such cases was nodded through. Now it seems that it is becoming increasingly the norm for screens to be applied for in the most common of assault cases such as above. IMHO this is a cause for disquiet. How many more of a defendant`s rights are to be surreptitiously withdrawn, withheld or to be rendered meaningless?
There are other insidious changes now so routine that younger colleagues find it strange that I question them when they arise in court. Yesterday we had inter alia a first listing of assault in a cafe. The complainant and defendant were strangers. Indeed the former was a visitor to the town and she lived over a hundred miles distant. When we were completing the case management form CPS told us she was considering safety measures (screens) for her and we allowed 28 days for her to make an application. My colleagues in later discussion questioned why I had indicated reluctance to the concept. Screens are available if the quality of the evidence of the witness is likely to be enhanced by the protection offered. Historically an accuser was expected to face the accused. Increased concern with domestic violence cases a decade ago ensured that virtually any application in such cases was nodded through. Now it seems that it is becoming increasingly the norm for screens to be applied for in the most common of assault cases such as above. IMHO this is a cause for disquiet. How many more of a defendant`s rights are to be surreptitiously withdrawn, withheld or to be rendered meaningless?
Thursday 8 May 2014
TORNADOES, COMPUTERS AND PENDULUMS
So, holiday over and my friend`s house damaged by a tornado after
we had left for Florida`s Gulf Coast experiencing the biggest, baddest, wettest storms in living memory with
over 12 inches of rain in three days. So,
I no longer go on holiday for a sun tan but……..
This piece is being written on a new Windows 8.1 computer
with the latest edition of Word but the computer is faulty and after absolutely
no assistance from Lenovo, it is being replaced next week by John Lewis. Being
distinctly unimpressed with this Windows format whether or not I will switch to
an Apple is a moot point.
Since this blog is based around the law as seen and
experienced by a Justice of the Peace I couldn`t help but notice a piece in
yesterday`s Times which said that that the country`s chief prosecutor had warned that
juries must be made aware that an alleged rape victim`s past sexual history, previous
consensual sex with alleged offender, style of clothing or state of inebriation
must not be considered as a defence to the charge. In other words the propensity to behave in a
certain manner by an alleged victim is not to be considered as is the bad
character of a defendant where propensity to offend can be placed before a jury
by the prosecution.
In some respects I consider that the concept of “victims`
justice” has reached the social pendulum`s
maximum swing. It will take only a very
few miscarriages of justice for the rights of defendants to be re-considered. Perhaps the trials since the Savile
revelations are an early signal.
Thursday 17 April 2014
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.
Monday 14 April 2014
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.
Saturday 12 April 2014
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?
Thursday 10 April 2014
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.
Wednesday 9 April 2014
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 27th. 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.
Thursday 3 April 2014
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.
Tuesday 1 April 2014
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.
Monday 31 March 2014
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.
Friday 28 March 2014
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 31st 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.
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