LEARN SOMETHING NEW

My very last sitting was on motoring and I learned something new.  Re s.172; most provincial police forces follow up a guilty on that charge with pursuit of the substantive matter which initiated the procedure.  That is excluding the country`s largest police force;  The Metropolitan Police.  Don`t ask me why but the motto is that we learn something new every sitting; even the very last.....ever!

MOBILE PHONE USE WHILST DRIVING, SOME STATISTICS AND SOME ADVICE

 Our lives are ruled by numbers.  Very often those numbers are translated consciously or otherwise as risk.  After that awful air crash in France it is unlikely that there were sufficient cancellations from nervous intending passengers for airlines to consider reducing flights because we assume the risk to us as individuals is miniscule.  And so is the risk relatively speaking of being  prosecuted for using a mobile phone whilst driving.  About 750,000 Fixed Penalty Notices have been issued since the offence was established in 2006. In 2011 there were 171,000 such FPNs issued for the offence.  Prosecutions in Magistrates`Courts for the offence were 35,397 in 2011 with a conviction rate of 91%.  It has been estimated by some that 10% of all driving convictions are for use of mobile whilst driving.  Current figures are hard to obtain.  Perhaps that is because of the reduced number of tickets being issued owing to the greatly reduced number of police patrol cars on the roads of this country and that is a direct result of the coalition`s policy of worshipping at the temple of the NHS while policing, courts and defence of the realm are starved of funds. 

Nevertheless those who refuse a FPN and/or plead not guilty by post are entitled for the process of summary trial to determine their guilt or innocence.  Every court in the land spends a good deal of its time on motoring matters which is why Grayling is so determined to fast track on - line facilities to “simplify” such “simple” cases.  As per past experience there are always one or two defendants per sitting who have pleaded not guilty by post to use of a mobile phone whilst driving and/or  make no further contact with the court and yet who fail to attend for trial.  What complete and utter fools these people are. Unless procedural failings are found or police perjury is suspected conviction in absence is virtually certain. A typical case earlier this week was J who was found guilty in his absence; fined £200 with costs of £640 and a surcharge of £20.  So my advice to those caught using a mobile whilst driving is to pay the FPN of £100 and accept the 3 penalty points with grace.  And if there is a hope that their case is to be one of the 9% found not guilty at trial that can only happen if they turn up for their trial with the limited defences available.

MUSINGS ON TUESDAY

At last a change in police procedure which will be to the benefit of the innocent until proved guilty suspect insofar as police bail is to be restricted to a maximum of 28 days.  An extension to three months can be authorised by a senior [currently of unknown rank] police officer.  Beyond that the police will be required to argue their case in front of magistrates in open court.  It will prove interesting to discover what the threshold will be for a bench or DJ to approve an extension and if so for what period.

During a period in which we were told that every new law would be accompanied by the repeal of those now outdated the Justice Ministry has excelled even its own well rehearsed reputation for the spewing out of new “this” and reformed “that” by this announcement of new legislation much of which is completely unnecessary.

Whilst the digitalisation of  pleas to minor  motoring offences eg no insurance (sic)  is not the primary reason this initiative will certainly be another nail in the coffin for magistrates` current responsibilities in a court environment.

A recent survey on the attitudes of judges provides some insight into the inner opinions of a hitherto closed group of high level civil servants.  The very high response rate makes the outcomes very interesting reading.

THE THEATRE OF A COURTROOM

Sometimes those who appear before us either through ignorance or arrogance or a combination of both do nothing to help themselves despite the best efforts of their representatives who have their foot on the accelerator of remorse when their unmanageable clients are holding heavily on the handbrake.

Gladstone was such a man.  He was 24 with a long history of offending, unemployed and by three women  he had fathered four children the oldest of whom we were told was six and the youngest four months the mother of whom was pregnant yet again.  Six months previously whilst on a suspended sentence order now expired he had committed two offences (one of which was either way) within twenty four hours against the above mentioned girl friend.   A previous bench had sentenced him to supervision and two requirements for those matters. He had been before the courts twice since for breach of these requirements and each time the original sentence had been revoked and he had been re sentenced with more stringent requirements.   He stood nonchalantly in the dock with a knitted hat on his head, his hands in his pockets and his jaws chewing gum at a furious rate.  From the bench it was remarked that some might think his action and appearance might suggest he had little respect for the court.  His lawyer motioned him to take off the headgear, take his hands from his pockets and to remove the gum.  He did what was advised with a clear indication of his contempt for those in court.  Lawyers generally go through the motions seeking to mitigate the results of their clients` behaviour.  Our Mr Rumpole displayed all his legal eloquence as was his duty culminating in a plea that he be given that one more chance to turn the behavioural corner.  The court probation officer was asked by the bench if he knew why a curfew had not been suggested in previous PSRs.  He replied that as far as he knew Gladstone had explained his difficulty in compliance with such an order insofar as he would not have been able to visit his then pregnant girl friend with whom he did not share accommodation.  Horace R confirmed that as per the situation just described by the probation officer  his current relationship with his aforementioned pregnant girl friend precluded his client`s compliance with a curfew order.  Apparently he lived with his mother whose house was some distance away. When he concluded that the bench should consider a fine or a conditional discharge in these unusual circumstances three experienced magistrates strained their facial muscles so that their innermost emotions could be  kept under control.   Those who describe our courts as a form of theatre have a point. All the world's a stage, And all the men and women merely players; They have their exits and their entrances, And one man in his time plays many parts.

In the retiring room we considered that a long and onerous curfew would be a just outcome.  We called our L/A who after some hesitation told us that owing to expiry of the original SSO when the breaches were committed such a disposal was not lawful.  Now my memory might be a bit confused on that detail and if that explanation is wrong I hold up my hand.  The upshot anyway was that we had to start again.  We decided to impose a custodial sentence suspended for a year for the original either way matter with  a very onerous curfew.  A similarly suspended concurrent shorter custodial period was imposed for the summary offence.  After pronouncement Gladstone indicated he wanted the curfew address to be that of the mother of his youngest child and mother – to - be again,   against whom his activities had brought him to court in the first place.  We ordered that the address on the court list......his mother`s house, be the location of his home curfew.  He seemed irritated.

FREEDOM OF INFORMATION REQUEST AND PROSECUTIONS INVOLVING DOMESTIC VIOLENCE

On 3^rd March I posted on the subject title “Are Some DV Prosecutions Politically Motivated?”.  I chose those words with some care on the assumption that protocols and methods employed at my court are typical of others and on the basis that there is now very little independent action possible within the magistrates` courts system and what is generally good for the goose court  is equally good for the gander court. 

At my court we have what I suppose can be termed a DV co-ordinator who liaises with the other organisations inputting into the system; CPS, police, probation and who produces annual reports.  CPS as is widely known have a distinct policy on domestic violence.  The section on public interest and withdrawal is of particular interest.  The position of the police has changed in the last 15 years from taking a passive attitude to being able to apply for a 28 day exclusion order from the marital home for a suspect who has not even been  arrested for any offence. Probation Service has formulated many programmes within supervision and community orders in attempts to change the mind set of those convicted of violent offending within a domestic context.  And to cap it all new legislation will be debated in the next parliament vastly expanding the parameters of what actually does constitute the term “domestic violence”.  I list all these factors to demonstrate that there is rightly or wrongly an overt political will determined to show that action must and will be taken to punish DV perpetrators.    One would have thought that all the input on the subject would be available to our legislators in order to provide a statistical basis for the promised new legislation.  According to the response from the Ministry of Justice to a recent Freedom of Information request one would have been mistaken.  The question submitted was;” Please inform me of the numbers of those charged with assault under the domestic violence protocols at magistrates courts in England and Wales and acquitted at trial for last five years for which figures are available. Please also supply numbers of acquittals as above as percentage of those charged. If possible also supply the reasons for acquittals eg cracked or ineffective trials, vacated trials .

The reply received was, “Your request has been handled under the Freedom of Information Act 2000 (FOIA).  I am afraid that I am not able to confirm whether the Ministry of Justice holds the information you have requested. On this occasion, the cost of determining whether we hold the information would exceed the limit set by the Freedom of Information  Act and, as a result, I am afraid will not be taking your request further. In this letter I explain why that is the case and I also provide you with some advice as to how you could refine your request so that we may be able to answer it. The law allows us to decline to answer requests under FOIA when we estimate that  it would cost us more than £600 (equivalent to 31⁄2 working days’ worth of work, calculated at £25 per hour) to confirm whether the department holds the information requested.  It may help if I explain that the MoJ Court Proceedings Database holds information ,on defendants proceeded against, found guilty and sentenced for criminal offences in England and Wales. This database holds information on offences provided by the  statutes under which proceedings are brought but not all the specific circumstances of each case. It is not possible to separately identify from centrally held data the relationship between victim and defendant; hence it is not possible to separately identify which offences proceeded against at magistrates’ courts involving assault between adults constituted a domestic violence offence. This detailed information is not reported to Justice Statistics Analytical Services due to their size and complexity.  In this instance, to determine if all of the information requested is held, we would  be required to contact all the courts in England and Wales and ask them to search  individual case files for all offences involving assault between adults to establish the relationship between the victim and defendant, in order to determine whether the  offence constituted a domestic violence offence. To assess whether we collect and  can collate the information you require, on the scale that you have requested, would therefore exceed the ‘appropriate limit’ set out in section 12(2) of the FOIA. You can find out more about Section 12(2) by reading the extract from the Act and some guidance points we consider when applying this exemption, attached at the  end of this letter. You can also find more information by reading the full text of the Act, available  at ttp://www.legislation.gov.uk/ukpga/2000/36/section/12 and further guidance http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/ exemptions-guidance . Whilst you could narrow the scope of your request in order to try and bring it within the cost limit, for example by requesting information for a particular magistrates’ court, I would like to take this opportunity to advise you that it is very likely that any information that may be held which would determine whether an offence constituted domestic abuse may be exempt from disclosure under the FOIA under the terms of Section 32 (Court Records). Therefore it is likely that any subsequent narrowed request asking for domestic violence conviction rates or statistics could be refused under Section 32.  

I am sorry that on this occasion I have not been able to answer your request. You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.

Disclosure Log

You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:"

Following that reply the questioner replied as follows,” Considering that every judge and magistrate in England and Wales has specialist training in domestic violence and particular protocols must be followed for every case and results reported I find your answer that such statistics are not centrally collated quite astonishing. Only a few months ago government spokesperson discussed the likelihood of new offence of assault within a domestic context. How can such legislation even be mooted when conviction rates under current legislation are unavailable as per your reply to my FOI request?"

So I ask again:- are some DV prosecutions politically motivated?