M.O.J. EVADES F.O.I. ANSWERS

On 29th December last year I posted on the fact that new categories of assault in the context of domestic violence came into being without there being any statistics to validate their being enacted. Of course there is still no dedicated offence of "domestic violence".  Defendants are prosecuted under the various degrees of assault on the statute book.  With the prime minister in his recent speech on the subject describing how the incarceration of ever more offenders must stop it would have been thought that the efficiency and terms of the probation service and the study of increasing use of custody suspended would be a matter of priority.  As all interested parties now know (and many predicted)  the current state of what was once a tolerably efficient national organisation has been emasculated by the arrogance, unthinking and discredited actions of Chris Grayling the most ill fitted and catastrophic Lord Chancellor in living memory.  Having offenders allowed to remain in society with a threat that breach of their custody suspended sentences will point them towards their local prison puts a heavy responsibility on that emasculated profession and its reduced workforce.  It would therefore be thought that a coherent policy on actions to be taken against those who do indeed breach the conditions of their get out of jail not quite free card would be of prime consideration both to sentencers and probation.  That thought would be mistaken. In circumstances such as custodial sentencing,  historical statistics are a major part of the socio political arguments being argued by Cameron and other interested parties.  Punishment, deterrence, rehabilitation and public protection are all part of the sentencing mix. Suspending a period of imprisonment falls mainly into the deterrence basket with some  rehabilitative input and to validate the involved and impending processes, efficiency in such sentencing, one would have thought, would be essential. Those processes should involve knowledge of the numbers of offenders breaching suspended sentence orders and their sentences as a consequence being activated whole or in part.  By the grace of the Freedom of Information Act which some in government wish to restrict, may they rot in hell, such questions were recently asked to which in brief the answer was....we don`t collect such statistics in any simple straightforward cost effective format.  Considering all the information the M.O.J. does collect about courts, outcomes, times taken, sentencing etc etc it is rather odd that numbers which this observer at least (and no doubt many others) considers of some importance are not collected in a similar format thus enabling forensic analysis. Perhaps this failure is  not by ommission but by commission.

The  response of the MOJ is copied below.

Freedom of Information Request

Dear ***********,

Thank you for your email of ***********  20**, in which you ask for the following information from the Ministry of Justice (MoJ):

For the last five years how many suspended sentence orders have been made by magistrates` courts in actual numbers and as a percentage of all custodial orders?

For the last five years how many of these SSOs as above have been breached and resulted in the activation in whole or part of these orders in actual numbers and as a percentage of all SSOs

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

I can confirm that the Ministry of Justice holds the information that you have asked for. However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I'm afraid I 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 FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.

It may help if I explain that the Ministry of Justice 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. This centrally held information does not allow us to separately identify breaches of suspended sentence orders. This detailed information is not reported to Justice Statistics Analytical Services due to its size and complexity.

In this instance, to provide you with the information, we would be required to contact all Magistrates’ courts in England and Wales and ask them to search individual case files where a suspended sentence order was given to ascertain how many orders were breached.  To collect and collate the information you require on the scale you have requested would exceed the ‘appropriate limit’ set out in Section 12(1) of the FOIA.

You can find out more about Section 12(1) 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 http://www.legislation.gov.uk/ukpga/2000/36/section/12.

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 court, I would like to take this opportunity to advise you that it is very likely that any information that may be held within scope of your request 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 could be refused under Section 32.

However, outside the scope of the Act and on a discretionary basis  I am pleased to inform you that you can view data on suspended sentences given at Magistrates ‘ courts via the following link:

https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2014

Select and open “Magistrates’ court data tool” folder

You will be able to view the number of suspended sentences given at Magistrates’ court in England and Wales, from 2004 to 2014. The percentage of suspended sentence orders can be calculated by dividing the number of suspended sentence orders by the number of custodial sentences and then multiplying by 100.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/21 and further guidance http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance

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

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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:

http://www.justice.gov.uk/information-access-rights/foi-requests/latest-moj-disclosure-log

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The published information is categorised by subject area and in alphabetical order

Yours sincerely

Giovanni Barbuti

Justice Statistics Analytical Services

How to Appeal

Internal Review

If you are not satisfied with this response, you have the right to an internal review. The handling of your request will be looked at by someone who was not responsible for the original case, and they will make a decision as to whether we answered your request correctly.

If you would like to request a review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the

following address:

Data Access and Compliance Unit (10.34),

Information & Communications Directorate,

Ministry of Justice,

102 Petty France,

London

SW1H 9AJ

E-mail: xxxx.xxxxxx@xxxxxxx.xxx.xxx.xx

Information Commissioner’s Office

If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner’s Office. The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if he considers that we have handled it incorrectly.

You can contact the Information Commissioner’s Office at the following address:

Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire

SK9 5AF

Internet address: https://www.ico.gov.uk/Global/contact_us.aspx

ADDITIONAL INFORMATION ABOUT SECTION 12(1)

We have provided below additional information about Section 12 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities

(1) Any person making a request for information to a public authority is entitled—

(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)        if that is the case, to have that information communicated to him.

Section 12: Cost of compliance exceeds appropriate limit

(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

(4) The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a public authority—

(a)        by one person, or

(b)        by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign,

the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.

(5) The Secretary of State may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated.

Guidance

The appropriate limit

The 'appropriate limit', for the purposes of section 12 of the Freedom of Information Act has been set at:

• £600 for central government and Parliament.
• The hourly rate is set at £25 per person per hour.

The following activities may be taken into account when public authorities are estimating whether the appropriate limit has been exceeded.

• determining whether it holds the information requested
• locating the information or documents containing the information
• retrieving such information or documents
• extracting the information from the document containing it.

 

EXPLANATION OF FOIA - SECTION 32 – COURT RECORDS

We have provided below additional information about Section 32 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.

The legislation

Section 1: Right of Access to information held by public authorities

(1) Any person making a request for information to a public authority is entitled—

(a)        to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)        if that is the case, to have that information communicated to him.

Section 32: Information held by virtue of being contained within court records

(1) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)        any document filed with, or otherwise placed in the custody of, a court for the purposes of   proceedings in a particular cause or matter,

(b)        any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or

(c)        any document created by—

(i)         a court, or

(ii)        a member of the administrative staff of a court,

for the purposes of proceedings in a particular cause or matter.

(2) Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)        any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b)        any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

Guidance

Section 32 exempts information contained in those litigation documents and court, tribunal and inquiry records to which it applies. It exempts information held by a public authority if it is held solely by virtue of its being contained in those categories of document.

The information must be included in a particular type of document and must be held by the public authority only by virtue of this. However, if the information is so held, it will be exempt regardless of its content and for the reasons set out below public authorities should refuse the request. This applies both to the document itself and to any copies of that document or copies of the information which it contains.

There are separate and specific regimes for access to information held by courts and tribunals, designed to give those bodies themselves a measure of control over that information. For example, Rule 5.4 of the Civil Procedure Rules deals with access to court documents in civil proceedings in the county courts, the High Court and the Court of Appeal. It allows any person, on payment of the prescribed fee, to inspect and take a copy of (a) a claim form which has been served, (b) a judgment or order given or made in public, and (c) any other document if the court gives permission. Where a person has the right to inspect a document without permission, a request can be made to the court staff. Where permission is required, an application must be made to a judge. The Civil Procedure Rules do not include any guidance on the court's exercise of its discretion but the court will take account of all the circumstances of the case and the competing principles of open justice and the right to privacy of persons who may be mentioned in court documents.

MORE COURT CLOSURES

By now most readers will probably be aware of the government`s decision for another wholesale closure of magistrates` courts.  This was perfectly predictable.  This Chancellor who controls ministry budgets has shown for some time that he picks off these targets easiest to hit an example being the infamous "pasty tax" in 2013 which was hurriedly withdrawn.  The principle underlying the bedroom tax might have some cogent arguments in its favour but its implementation took no prisoners and has led to much ill will from some natural Tory supporters. The scandals of those whose disability allowance has been arbitrarily reduced or withdrawn have played eagerly into the hands of the Opposition.  But the closure of courts is a different matter.  Most people have not had any contact with the legal system.  The arguments against closure especially for those courts in rural districts are unchanged.  The facile statement that 97% of court attenders will be able to reach their nearest court within one hour`s travel by car is just another sign of the arrogance of those who rule us.   My experience tells me that a large but apparently unquantifiable number of court attendees travel by public transport.  In a city they  might be within one hour of the court but a brief look at the map of inter alia North West England, Devon and Cornwall or central and North Wales tells a different story for public transport. It cannot now be denied that the mantra of local J.P.s for local justice is now consigned to history despite the protestations of those whose view of the situation is coloured by their rose tinted spectacles. Already one magistrate has told his local media of his resignation from the bench owing to his court being one designated for closure.  Others will surely follow.  This will be a source of satisfaction for those in Petty France. 10,000 J.P.s have gone in ten years; only another 19,000 to go.........literally.

NOTE TAKING IN COURT

An essential part of the remit of a winger on the bench is to be on the lookout for any untoward activity in the court, particularly in the public gallery.  Such activities would include hostile actions or apparent threats or advice to a witness, talking, use of camera or mobile phone etc etc.  One action that should not cause a bench member any concern is that of an individual, wherever s/he might be sitting in the courtroom, taking notes.  Apparently a crown court judge in 2014 thought differently. HHJ Crowther QC at Cardiff Crown Court threatened a note taker with being in contempt of court. Recently the decision of the Divisional Court decided that in general terms open justice  must be the default position.  

This should be ingrained in the grey matter of all J.P.s particularly those who take the middle chair.  Legal advisors who often take the most conservative position available on controversial matters should also take note.
 

MEET THE BENCH

Although I am approaching the first anniversary of my retirement from the bench I still occasionally receive correspondence appropriate to that position.  Amongst such correspondence late last month was the bundle sent to active bench members prior to the impending six monthly bench meeting. Some observations on that bundle I think are worth commenting upon.

The minutes of the previous meeting formed part of the bundle.  As per my own experience only about 20% of the membership attended that meeting last year and about one third sent apologies.  A maths wizard calculates that around half the bench showed no interest whatsoever in the proceedings. When I left the bench last year its complement was 250 or thereabouts. Since then, so remarks by the Justices` Clerk as recorded in the minutes  stated, 28 new J.P.s had been appointed. He further said that another 17 would be required by next summer.  Wishful thinking perhaps when the minutes further recorded the local advisory committee`s struggle to effect the recruitment of the required extra numbers.  It was also recorded in the minutes of that previous bench meeting that the Justices` Clerk had said that there was currently a single Family Court and that there could  be a move to a single Criminal Court.  From such an elevated source such a remark is not to be lightly dismissed.  It also could be a further signal of the removal of the lay magistrate if not from the proposed court configuration then certainly from the middle chair.  

Documents for presentation at the forthcoming bench meeting   contained a report on the situation with the probation service. Here are a couple of quotes;

"The National Probation Service have put a strategy in place to speed up the process of obtaining reports; the majority should now be "short format reports" with 55% on the day oral reports and 20% fast delivery reports adjourned for one week.  Three week adjournments for reports should become the exception rather than the rule.  Currently ******* is falling well short of these targets, largely due to staffing problems within probation. Whilst ********** (senior probation officer) and her team are working hard to address this, the fact is that their difficulties are likely to be exacerbated in coming months as a result of the new post sentence supervision requirements, whereby all defendants who have received a custodial sentence, are, following their release on licence, subject to supervision for 12 months". 

 

"Magistrates are therefore reminded that when ordering reports they should consider whether one is really necessary.  Clearly sometimes more information is required (particularly in DV cases), but where the situation is straight forward there are alternative disposals to a community order that do not require a report. Curfews, Attendance Centre Orders and Band D fines (250% relevant weekly income) are sentencing options that do not require reports. Band D fines can be useful when dealing with more serious motoring offences".

Readers will be able to interpret these statements in line with their own experiences.  Another report to be presented at the meeting showed that about 60% of trials were effective and around 10% were being vacated. These numbers are not out of the ordinary but indicate just how much court time is being wasted.  

My final observation is that throughout the minutes of the previous meeting not one single question is reported to 

having been asked  of any of the reports presented to those attending or of any of the speakers including report writers,  Justices` Clerk, Deputy Justices` Clerk and Bench chairman. 

Of those who attended the previous meeting, what a supine lot of individuals they appear to be!  Perhaps they all considered that they did not disagree or required any extra information about what they had read or heard  or perhaps they were afraid of upsetting the great leader. It therefore follows that it is unlikely the forthcoming meeting will be a platform for any dissent.