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 He had been before the courts twice since for breach of these requirements and each time the original sentence had been revoked and he had been re sentenced with more stringent requirements.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?

COURT MISMANAGEMENT MAKES BREWERY PISSUPS A MODEL OF EFFICIENCY

As I  approach the end of my tenure as a magistrate my cynicism is increasing as fast as the Ministry`s trumpet blows its shriek notes about improving efficiency by the digitalisation of all court files and the implementation of a policy of video justice at distance.  Whilst the mismanagement, at my court at least,  continues to make the proverbial brewery piss up seem like Harvard Business School best practice audit,  the magistrates` courts system will never offer criminal justice simple speedy and summary  in a quantity required to offer confidence to all participants.

Yesterday morning`s trial involved a defendant from Finland and a complainant from Poland.  Three hours had been set aside. It had been listed three times previously.  All witnesses were available.  We were sitting in a courtroom equipped with screens as agreed thus allowing the complainant to give her best evidence in what was a domestic violence matter.  The Polish interpreter as indicated in the case management form was outside awaiting request to enter when defence council rose to his feet to inform us that  no Finnish interpreter had answered the usher`s  tannoy request to come to the courtroom.  Our legal advisor confirmed that a Finnish interpreter had indeed been specified on the form.  We retired whist inquiries were made.  It transpired that in order to improve communication between courtroom and administrative staff  when an interpreter is required for a defendant (the court`s responsibility of course) a yellow page is attached to the front of the case management form to that effect.  In the case in question it appeared that the page had been removed during a pre filing process so the instruction was lost.  We were also told that a previous plea and case management hearing  had had to be vacated for lack of a Finnish interpreter. We are supposed to have a case progression officer whose job as the name suggests is to ensure that all court pre trial requirements have been met or to inform where necessary of perceived difficulties.   To me and my colleagues it appeared that he or she was as much to blame as anybody.

We enquired whether or not a manager on the administration staff could appear.  We were told that the line of management forbids such action.  Outside the courtroom our L/A explained  the  process:  she would inform the managing clerk who might or might not escalate the complaint to the Deputy Justices` Clerk who would contact the manager in the administration side who would make the decision as to how the complaint should proceed.  That is how three magistrates, an agent of the CPS, defence counsel, the officer in the case, a defendant, a complainant, a police officer witness, one interpreter and a legal advisor spent their morning.  `nuff said!  

IGNORE AND IT WILL GO AWAY..........NOT

I have blogged previously at some length on the results of ignoring police or court requests to submit information eg requests to plead guilty or not guilty to eg (relatively) minor motoring offences or information regarding income or a driver`s identity.  Such failures cost individuals time and money and escalate the cost to the state of completion of  outstanding cases.  When such dilatory inaction is with regard to environmental offences and heaven knows how these have increased in their scope and punishments over the last decade the resulting retribution to the offender can and usually should be such that a hard lesson is learnt. Such was a matter recently.  The owner of an establishment which offered food and drink to customers whilst they enjoyed the dubious pleasures of smoking shisha pipes had   ignored all the overtures from the council environmental officers who had almost pleaded with him to comply with the legal requirements for such businesses on the basis that post compliance he would have had only a fixed penalty notice to pay and no further legal action would be taken against him.  For  reasons only the offender can explain not only did he fail to take the council officers` advice he did not turn up at court to argue his not guilty  plea.  He will shortly receive notice that he has 28 days to pay fines and costs well into five figures.