THE SPIRIT AND THE LETTER

From time to time in this job I have been involved in cases where the letter of the law and the spirit of said law do not coincide.  Starting from first principles it appears to me that the spirit arrived before the letter the latter being an expression in written form created by minds who were harbouring the spirit in their thought processes and who subsequently encapsulated those processes in what we now term “legislation”.   These points came to me as I read of two matters from the sports pages.  The first concerned  Celtic Football Club`s reinstatement in the Champions League subsequent to the opponents who thrashed them on the pitch being thrown out for a technical error in fielding an ineligible player.  It seems that in this case it is no contest: the letter must reign supreme over the spirit  however unfair it might at first glance appear.    The other case is closer to home in a blog written by a magistrate.  A star player of Sheffield United was convicted of rape a couple of years ago and is shortly  due to be released on license with his apparently having been offered his old job back at an annual wage of about one million pounds.   This seems to be a case of rehabilitating  somebody, who having committed and paid for a despicable crime, needs to find a way back to being a worthy citizen.  If he were a tradesman being accepted back into his old job there would be murmurs of praise for his employers giving him another chance.  Does the same not apply to somebody in the public eye despite being overpaid in a market where his talents reap their rewards?  60,000 people, some of  whom  are club supporters, have indicated their opposition to his return to the club.  If rehabilitation means anything at all they are misguided.  However as with most matters associated with top class English football the final decision on his employment will be based on the club`s balance sheet.  Will sponsors and supporters withdraw their support if he rejoins?  I think not such is the basis on which our national game is played and where this time the letter and the spirit are in harmony.

WHO AM I TO CRITICISE?

Exceptions proving the rule generally are bad examples of the law and the legal process at work.  Government figures seem to show that in 2013 there were 134,420 convictions of “violence against the person” in crown and magistrates` courts proceedings and an immediate custody rate of 42.8%.  There appear to be variations in the figures in various analyses. Other tables show 195,139 convictions.  Crown court figures for 2012 where the most serious violence against the person matters are tried have 37,435 convictions; a conviction rate of 73.2%  and a sentence of immediate custody in  37% of such cases.  So it is somewhat surprising that earlier this week the judge at Bournemouth Crown Court refrained from sentencing to immediate imprisonment an offender with seventeen similar previous convictions.  Amongst other requirements she was ordered to undertake during her period of two years suspension of a twelve month sentence was an anger management course.  Of course only those in court were aware of all the facts of this case but as a lowly J.P. I am as astonished as the person on the omnibus to Clapham that such a recidivist should escape a lengthy immediate prison term.  But then who am I to criticise? 

OUT OF TOUCH

On the bench when I`ve been in a situation where the term “contempt of court” has entered my mind it has been associated with the words and/or actions of an individual usually in the dock at that moment.  Like all my colleagues have experienced at some time defendants have presented wearing all manner of apparel.  Females have appeared dressed as if for a night on the town or as a female colleague remarked earlier this year on another sitting, “she`s wearing £2,000 worth of gear,” on the appearance of a middle aged woman on shoplifting charges. The male defendant can be dressed for the street or in his best(only) dark suit, white shirt and tie or during the recent hot spell in shirt and shorts.  But I have never had cause or desire to consider manner of dress a consideration for contempt.  Colleagues in Tamworth, however, took a different view when they were confronted in the dock by a man with a casual attitude to T shirts and their suitability for court. I have to say that I disagree with them.  It is very dangerous ground when appearance leads to such considerations as contempt of court.  This apparent  imposition of standards is more likely than not IMHO to have the opposite effect intended; ie contempt for the middle class mores of an out of touch bench and that in turn does not improve the concept of judgement by one`s peers who are representative of the community as a whole such being the concept of local justice expounded by the huffing and puffing great and good.  If 18 year olds can be recruited to the magistracy, and I consider that a ridiculous attempt to enlarge the "diversity"  idea,  then surely we must be open to dress standards more attuned to those acceptable to 18 year olds?

BREATH OF FRESH AIR

Part of the stimulus doing this job when time wasting and inefficiencies can rob the soul of any meaning is hearing from colleagues or reading of a procedure which has not previously been encountered.  It is of course of greater note when interesting legal argument is presented on an issue.  One example was during a recent sitting when counsel for the defendant applied for permission to refer to a newly arrived document in true Perry Mason style which he told us would go a long way to exonerate his client. After hearing more details and comments from our legal advisor we indicated that he could begin to cross examine the complainant basing such upon some information in the document.  It soon was apparent that the details being explored from the document which had been presented in the civil court on an entirely different matter were a step too far.  We cleared the public gallery and extensive argument was held on how the case should proceed. With the agreement of all parties we decided to go part heard until the judge sitting on the civil matter could make a decision on whether the document could be used as a basis for cross examination  in the magistrates` court thus revealing hitherto private information to a public gallery entitled to view proceedings.

When sentencing guidelines often suffocate original thought processes an opportunity to participate in and listen to detailed argument is like a breath of fresh legal air.