The Magistrate's Blog

The Logjam Starts To Move

2009-11-09T18:53:00.003Z

Along with many others from all levels of the judiciary I am unhappy about the trend to out-of-court disposals that has led to more than half of all so-called offences brought to justice being dealt with outside a court, by way of a simple or conditional caution, or a fixed penalty of some sort. It has enabled the government to brag, quite fraudulently, that it is bringing more and more offences to 'justice' - but what kind of justice? The Magistrates' Association, which has recently brought a long-overdue vigour and robustness to its campaigning on this topic has managed to push the issue into the public's gaze. Tonight 'Panorama' will deal with the issue (it will be available to watch again online for a week) and there is a selection of informed views
here,
here
here
here
and here.

With the MA, the DPP, the Commissioner of the Met and others joining in, it looks as if the Justice Secretary will have to bow to pressure to bring the extra-judicial juggernaut under control. It must be about five years ago that I sat in a London conference centre listening incredulously to the plans for Conditional Cautions, stitched up behind closed doors by the CPS and the police. I was sitting next to a respected District Judge, and his feelings echoed mine. This was another of the snap judgments that emanated from the Blair sofa at no. 10, and not the first to have been shown to fail. It won't be the last, either.

Guest Post

2009-11-08T18:28:00.004Z

I am genuinely honoured to be able to post a guest contribution from the widely respected Glenna Robson, who has contributed to many legal and academic publications.
Her article speaks for itself.

“Must follow” takes pole position

Recently on this blog Peter Hargreaves rightly drew attention to the latest mammoth criminal justice bill to be wending its way through Parliament – the Coroners and Justice Bill. This is an amalgamation of two separate bills signalled in one of those spurious Queen’s Speeches now made in mid-summer by the Prime Minister and which purports to lay out government policy. The Coroners Bill has been around for some time and was heavily criticised in its original form by the Constitutional Affairs Select Committee (now the Justice and formerly the Lord Chancellor’s Select Committee) in its Annual Report for 2005-5. All went quiet during 2007-8 but the Bill resurfaced in 2008 and was again the subject of sharp criticism by the Committee in its intention to limit coroners’ powers. At the same time (June 2008) it was announced that that there would be a separate bill on Law Reform, Victims and Witnesses. Instead, these two bills got rolled into the present hotchpotch which has just received its Third Reading in the Lords (November 5). There are plenty of points for discussion, but for magistrates it is Part 4 which is of particular interest. Therein lie the provisions for abolishing the Sentencing Advisory Panel and the Sentencing Guidelines Council and establishing a Sentencing Council whose guidelines sentencers “must follow”. Currently under the provisions of the CJA 2003 S.172 sentencers are ordered to “have regard to” the guidelines. The Magistrates’ Association as well as the Conservative Party have fought to preserve this latter statutory obligation. Slight amendments in the general wording were won but the MA stated that “they are not strong enough to allay fears that undue influence through a too rigid sentencing structure will be imposed on sentencers”. High hopes were pinned on a possible successful amendment in the Lords. However the former Lord Chief Justice, Lord Woolf, signalled in both the Committee and the Report stages that he felt that there was a clear two-stage process that the sentencer “must follow” the guideline “unless the court is satisfied that it would be contrary to the interests of justice to do so”. The nub of his argument can be found on: http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/91028-0010.htm
It obviously swayed some who might have voted in favour of the amendment. As it is, the Bill goes back to the Commons and the expectation is that it will be law within days. It is interesting to note that although the Council of Circuit Judges also joined in protests about “must follow”, the senior judiciary have been silent unlike their reaction to the government’s original proposal of a sentencing grid. So will this Bill make guidelines more like tramlines?

Out Of The Mouths Of Babes....

2009-11-06T21:37:00.002Z

We saw a case of carrying a bladed article a few weeks ago. Most facts were agreed and our job was to decide, on the balance of probabilities, whether the defendant had a reasonable excuse that would amount to a defence. We went out to consider, thinking that the case was pretty finely balanced.
We went through the evidence, and as we were re-reading an interview, one of my colleagues, on her third-ever sitting, spotted a massive inconsistency between the interview and the evidence that our man had just given on oath.
I am not saying that the three of us wouldn't have got there in the end, but one of the strengths of the magistracy is the constant influx of newly trained colleagues who treat every case as a new experience, and with their training fresh in their minds.
Guilty, then.

Sadly, No Audrey Hepburn

2009-11-04T16:25:00.004Z

The confused and confusing state of the sentencing regime is something that every sentencer is aware of. Our training and guidelines insist that the sentence pronounced is indeed the sentence imposed, but there isn't a single member of the judiciary who doesn't know that the whole business can be a charade sometimes.
A few months ago we were faced with a local drunk who had again breached his ASBO. He had spent two nights in police custody, and was represented by a decent, seasoned solicitor of many years' experience. The solicitor accepted that his client was an alcoholic who was unwilling to seek treatment. He pointed out the utter futility of the man's arrest and charge with an offence carrying up to 5 years on indictment. Until half a dozen years ago the man had a house and a job and a family. Now he was derelict and homeless. We were urged to allow his release forthwith, by imposing a fine and deeming it served, but for technical reasons to do with the man's record that wasn't really on. Only custody would be appropriate, but how long? This is where the the guidelines are unhelpful, because of the shambolic early-release system. 21 days means that he would have to serve seven of them before early release could kick in. On the other hand, 28 days, bearing in mind the 3 days that our man would have served already, would result in his early release, certainly in the next few days, possibly sooner. So I went through the pronouncement of a 28 day prison sentence, knowing, as did my colleagues, the clerk, the prosecutor and the defence brief that he would serve nothing like 28 days. I was of course quite unable to announce openly what would really happen and why we were making the order that we did. That's a charade for you.

Here is an explanation of the rules for early release.
This system has already lost the confidence of the press and public and is fast losing the confidence of many sentencers. The new government that we will get next year will have a lot on its plate, but this mess should be high on the agenda for the new Justice Secretary.

Trouble On The Way

2009-11-01T21:04:00.003Z

The indispensible CrimeLine reports:-

In Gidden v Chief Constable of Humberside, DC, 29 October 2009 (no transcript available), the court quashed a conviction for speeding. The applicant had been sent, via first class post, a notice of intended prosecution. However, due to postal strikes the NIP did not arrive until 16 days after the offence.

The question posed for the determination of the High Court was whether, upon a proper construction of s.1(1)(c), s.1(1A)(c) and s.1(3) of the Road Traffic Act 1988, a notice of intended prosecution should be regarded as having been properly served where the notice was sent by first class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was actually delivered after the 14-day time limit.

Held: Save for NIP's sent by registered post or recorded delivery, the presumption of delivery was rebuttable. It was not possible to read down the Act, nor the CrPR 2005, to provide for a convenient way to close what may well become a well used loophole.

This seems to have resurrected, thanks to the postal workers' strikes, the long-running Section 172 controversy, in which hundreds of motorists who have been snapped by speed cameras have disputed the validity (especially in respect of what is good service) of the notice of intended prosecution and the requirement to name the driver of the speeding vehicle.
Solicitors who make a living from defending motorists (one of the groups that is most likely to stump up the cost of representation) will be rubbing their hands.

Small Earthquake In Chile - Not Many Dead

2009-11-01T19:22:00.000Z

Here is a report of a (gasp) illegal rave. Nobody died, but some kids had a good time.
Bloody outrageous, I call it.

Depressingly Familiar

2009-10-30T19:59:00.008Z

A friend emails me, mighty angry, as follows:-

The Telegraph reports that the Government's drugs adviser has been fired.

Why?

Not for being wrong.
Not for betraying scientific principles and methodology.
Not for fiddling his expenses and flipping his residence.
Not for being cynical shifty and self-serving in an attempt to stave off a tabloid assault.

Why then?

For telling the Government what it does not want to hear; arguments to which successive governments have stopped their ears while crying out "La-La-La" ever since James Callaghan binned the Wootton report without, apparently, troubling to read it.

The War on Drugs as as currently waged has about as much hope of a successful outcome as the one in Afghanistan. It has almost certainly cost more and killed more people too.

Here is The Guardian's View.

Another MSM Mention

2009-10-27T10:22:00.003Z

We get a mention in today's 'Times' in the Times 2 section.

One or two posters on the MA's private forum became a little cross (and in some cases rather pompous) at my picking up the early-release story there, but the Governor concerned was speaking openly and I feel no shame whatever at having brought an important issue into the public arena.

Courts are open to the public, and the workings of the justice system should to be too.

When Pusher Comes To Shove

2009-10-26T19:07:00.005Z

I have heard of criminals straining to avoid detection, but this bloke seems to have gone to the other extreme, by refusing to strain when requested.
In police argot, a confession is often known as a 'cough'. Our man wouldn't have dared.

Where Do We Go From Here?

2009-10-25T10:52:00.007Z

We seem to be in the Phoney War phase of the economic crisis at the moment. With an election due next Spring at the latest most politicians are reluctant to draw our attention to the truly enormous hole in our public finances, and to the sacrifices that will be required to put matters right. I am no economist, but if you read around a bit you will find that even serious academics are running out of superlatives to describe the problems ahead. The truth is that nobody knows the real figures, but we do know that there will be a cut in the standard of living of most people, and that those people do not yet realise this.
I may be no economist, but I know a bit about the finances of the criminal justice system, and I also know a bit about politics; it is inescapable that the system will have to make savings on a massive and yet undreamt-of scale. We all have our little grumbles at the current niggling cuts in staff here and legal aid there, buildings left without maintenance, back-office functions moved to remote places, and the rest of it. But all of this will come nowhere near the required savings in a world in which justice will have to compete for funds with health, defence, pensions (above all, pensions) and all of the other services that the public now see as an entitlement without necessarily being willing to shell out for them. As someone recently said, if you offer people a choice between a new courthouse and keeping the Post Office open I don't think that many would vote for the court. We will have, in the old cliché, to think the unthinkable.
The justice budget is huge, encompassing as it does police, courts, prisons, probation, legal aid, the panoply of family courts and services for children, and much more. So where do we start? There won't be a lot of enthusiasm for big cutbacks in the police at a time when the terrorist threat has not gone away and a real depression could lead to public disorder. There are no votes in prisons, but there will be an outcry if some are closed and the inmates sent home. Probation is expensive, but cheaper than prison. We are always hearing about 'tough' community penalties, although many of us remain sceptical. Making them tough will cost money. Legal Aid is being squeezed all the time. As it is most people are not eligible, and leaving people to face the resources of the state and the skills of a barrister all on their own will cause serious injustice. But is that injustice more or less serious than cutting back on services for the elderly?
What about the courts? Small ones will be closed and sold off. Big court complexes offer economies of scale with services such as security, and it is easier to shift work between courtrooms to ensure maximum utilisation of expensive resources. But new complexes have to be built - they will cost money and will take at least five years to get going. Efforts will be made to push Crown Court work down the scale to magistrates' courts because the lower courts are far, far cheaper to run. More out of court disposals? Looks like a done deal, despite misgivings from magistrates lawyers and police. Are JPs cost effective? We don't get paid, as opposed to District Judges on about £100k a year, but we do need training travel and subsistence to be paid for. I suspect that the answer is that we are value for money, but perhaps not as cheap as we think.
Well what would you do? There are a lot of experienced people who comment on this blog and a lot of people in authority who read it. We know that maybe 20-25% needs to come off our budget. There are no right or wrong answers; this is about politics in the real world after 2010, whoever wins the election.

Nodding Acquaintances

2009-10-21T22:36:00.004+01:00

Lord Judge, the Lord Chief Justice, has a deserved reputation for a powerful intellect that is combined with earthy common sense. Nobody who has heard him speak, as I have, could possibly believe in the myth of dozy and out of touch senior judges. He has now spoken of the real and increasing danger of juries being unable to absorb information in the form in which it is currently put before them. I think that he is right, and that a similar danger faces magistrates who deal with 95% of all criminal cases.
In a trial it is not unusual for one witness to be in the box for an hour or two. As chairman I always keep a close eye on the witness and try to allow a five minute break for a cup of tea after perhaps an hour or so. If the witness is old, or young, or otherwise liable to become tired I may break more often than that. There is also the question of the magistrates. Listening to dense evidence from 10am to 1pm then from 2pm until 4.30pm can be surprisingly tiring and it is essential in the interests of justice that those charged with making a decision are alert. Hence, I will often call a break in the middle of a morning or afternoon, and take a lot of persuading to sit on after 4.30. The so-called graveyard shift from 2pm till 3pm is particularly tricky and magistrates (no, never me) have been known to nod off, or, as has been said, 'concentrate with their eyes closed'. The average magistrate is something like 56, so it is as well to keep an eye on your colleagues - just in case - and for them to keep an eye on you.
Lots of things conspire to deaden the wits and droop the eyelids; some advocates who may be fine lawyers have a dull and flat delivery that conjures up the delights of Morpheus. This summer the air conditioning in court was often left switched off to save money, and the resulting stuffiness led advocates bench and staff to droop. Of course a real advocate will hold everyone's attention, cajole, persuade, and soothe as only a proper brief can, but he is a sadly rare creature these days.
So following Lord Judge's timely lead we all need to think how evidence may better be presented, both for young members of the Internet generation (some of whom may be magistrates as we recruit more young people) and for those of mature years whose attention spans are shrinking.
Even I can think of many ways to improve presentation of evidence, but I can't think of any that do not cost money. So don't hold your breath. We may have to rely on black coffee and timely digs in the ribs for a few years yet.

Poppy Month?

2009-10-21T19:31:00.003+01:00

I posted this a while ago, and in the many comments a consensus emerged that it was entirely appropriate that those presiding or working in Her Majesty's courts should wear a poppy in the period before Remembrance Day. I choose to do so.
However....Ministers are today (October 21st)wearing poppies on TV. This is ridiculous, since there are still 21 days to go before the 11th of November. My late father served in the Army from 1940 to 1945 and I knew him well enough to be sure that he would have been disgusted at this nonsensical grandstanding that has obviously been arranged by the unlovely spin doctors who have come to dominate politics.
Have some respect, chaps. Wear your poppy (and don't put the £2 you paid for it on exes) for a week before the day. Any longer says you are an insincere poser.

Sentencing Muddle

2009-10-19T00:10:00.002+01:00

Today's 'Times' refers to this post from a few weeks ago, and in particular to one of the comments. The piece is here, and there is a leading article here.

It's True - Honestly

2009-10-18T08:56:00.001+01:00

I read that two former solicitors have appeared before a disciplinary tribunal over allegedly misusing clients' money - the number one no-no in the solicitors' book.

One of them is called Stephen Swindle.

Are Rights Wrong?

2009-10-17T22:58:00.002+01:00

I am occasionally subjected to a pub rant from one or more of my pals about the iniquities of the government, or whatever subject has just exercised the Daily Mail, and one of the most common complaints is the dreaded Human Rights Act. There has been a sustained campaign against the Act, in which it is blamed for giving aid and comfort to terrorists and criminals, many of them foreign, and is held by some to be responsible for the rise of political correctness (usually suffixed with the expression 'gone mad'). In court, on a day to day basis, the Act has next to no effect, although every JP has had to do a full day's training on it. In an idle moment I looked up the Act and it led me to wonder just which of its rights the gloomsters would abolish:-

* the right to life
* freedom from torture and degrading treatment
* freedom from slavery and forced labour
* the right to liberty
* the right to a fair trial
* the right not to be punished for something that wasn't a crime when you did it
* the right to respect for private and family life
* freedom of thought, conscience and religion, and freedom to express your beliefs
* freedom of expression
* freedom of assembly and association
* the right to marry and to start a family
* the right not to be discriminated against in respect of these rights and freedoms
* the right to peaceful enjoyment of your property
* the right to an education
* the right to participate in free elections
* the right not to be subjected to the death penalty

There's nothing there that I can object to. Any suggestions?

A Bit Odd

2009-10-17T11:18:00.004+01:00

The Daily Mail reports the acquittal of a driver who seems to have advanced the defence that he was only using his mobile phone as a dictating machine rather than to make a call. I sat on a Crown Court appeal of a similar case last year and we were persuaded that 'using' a mobile is not just confined to making calls or sending texts; looking up numbers in the memory was also 'using' as would be recording a message. Any of the lawyers out there have a view?

(Usual caveat about the story - it was the Daily Mail so all may not be as it seems)

Spot On

2009-10-17T10:56:00.004+01:00

I had previously missed this quote from a Parliamentary committee:-

“Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals and there are good reasons for this. The CPS’s role as an independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital”.

H&R Solicitors, who quote it on their website, say that they welcome this insight. They go on to say:

"A great deal of unnecessary human misery is caused by over-zealous prosecutors. We need a prosecution service which is dedicated to truth and justice, not to scoring political points or winning votes for politicians".

I agree. The CPS culture is gradually changing, and its independence is not always apparent these days. Prosecutors are now based in police stations, so inevitably they come to see themselves as a part of the police team, which they were never meant to be. The other day, when fixing a trial date the Prosecutor made vigorous efforts to persuade us not to warn a couple of PCs that they would be required on the grounds that it might mess up their rotas. I had to say that the court's sole concern was with justice rather than police operational matters and that if the defence wanted the officers to give evidence that is the way it would be. Article 6 of the HRA enshrines the right to a fair trial, not one that is convenient to the authorities.

Day Out

2009-10-17T10:16:00.003+01:00

There's going to be an Open Day at Harrow Crown Court (Hailsham Drive, Harrow HA1 4TU) on Saturday 24th October from 10 am to 4 pm. All the fun of the judicial fair is on offer, including mock court hearings, visits to the cells and prison vans, children's drawing competition, fingerprinting, electronic tagging, video link demo, police cars, police dogs, try on a judge's wig (!) experience being on a jury, as well as displays from CAB, Prisoners' friends and family group, probation, CPS, magistrates, trading standards, Mental Health Commission, Legal Services Commission, and more. You might even get to speak to a real judge, without the inconvenience of getting arrested first.

It sounds good - I might even get along there myself.

Priorities

2009-10-15T10:31:00.005+01:00

The following proposition is due to be debated at this year's AGM of the Magistrates' Association:-

This Annual General Meeting believes that the work Magistrates undertake should be recognised more widely as a valuable contribution to the justice system in England and Wales and calls upon the Association to establish an Honours and Recognition Group to highlight this.

So as summary justice is given to the police and the dog catcher to administer, courts are to be closed, Legal Aid squeezed almost out of existence, and local justice abandoned, the best the MA can manage is a bit of mutual backslapping and a request for a few gongs to be dished out. We'll probably get them too, rather as explorers handed out trinkets to keep the natives quiet while the visitors worked out what was worth plundering.

Fraud Guidelines

2009-10-13T23:12:00.002+01:00

The Sentencing Guidelines Council has just issued definitive guidelines for fraud, an offence that covers a wide range of culpability, from a small-time benefits cheat up to Bernie Madoff and his ilk. It's a big document, and all that a magistrate needs to know is how to handle the lesser offences, and the point at which to send it upstairs to Hizonner and a jury.

Legal Costs - Another Click of the Ratchet

2009-10-13T22:34:00.002+01:00

Thanks to CrimeLine for pointing me to this statutory instrument giving the Lord Chancellor power to cap central funds costs. CrimeLine expects that costs awarded out of central funds will be capped at Legal Aid rates, which are way below solicitors' private client fees.
If I read this aright, someone who is tried and acquitted, having instructed solicitors and possibly Counsel privately, is likely to be left with a large bill for their fees, that he has no hope of recovering, despite his being innocent of the offence. The CPS, on the other hand cannot lose, and may see this as an opportunity to bully guilty pleas out of people who might have a defence but who cannot afford to run it.

Here We Go......

2009-10-13T21:17:00.002+01:00

Following the summer lull in Government and political activity the Whitehall machine is starting to lumber back into action. Peter Hargreaves points to this announcement which is the beginning of a process of closing and consolidating courthouses. There is a powerful resonance with Dr.Beeching's hatchet job on the railways a generation and more ago. London's courts are managed in a unique way, being hitherto based on the Borough structure, but I think that is a certain goner; there will be fewer and larger courts in the future. That will of course have a big effect on the structure of benches, because there are bound to be mergers. Bigger means more impersonal with management being remote. As it is, my Justices' Clerk has something like a thousand JPs under his wing, so he is a relative stranger to most. I also expect to see a lot of effort being put into videolink cases, which will be a cheap and not very cheerful way of getting more cases through. From my experience of prison videolink hearings I am convinced that a court simply cannot make a proper judgment of evidence and of people without having them before you in the flesh. We shall return to the subject as matters progress. It's going to be messy, I'm afraid.

Key Advice

2009-10-13T21:00:00.004+01:00

I have just remanded a young man in his mid teens who had 47 previous convictions.
He and his mates broke into a house and stole the keys to a VR32, which is, I am told, a desirable top-of-the-range Golf. They then drove off, pausing only to fill up with petrol, which they didn't bother to pay for. They didn't bother about the high quality CCTV cameras either, so it was easy for the police to nip round to his house and pick him up. He pleaded not guilty, of course, because for a youth there is not a lot of downside to taking things to a trial. A friend of mine was burgled last year for the keys to his son's Subaru, another favourite with young car thieves. He told the police that they would take the keys to bed in future and they told him on no account to do so, since some burglars would think nothing of threatening or even assaulting someone to force them to hand over the keys.
It's the Law of Unintended Consequences again; modern cars are pretty much impossible to steal unless you have the keys or a recovery truck, so that's the way the ever resourceful criminal will go.

Quick Question

2009-10-12T18:57:00.002+01:00

I wonder what proportion of the many parents who name their daughter Jade have studied English? One of the definitions in the Oxford dictionary reads:-

• noun archaic
1 a bad-tempered or disreputable woman.
2 an inferior or worn-out horse.

If You Can't Take A Joke Stay Out Of The Kitchen

2009-10-10T23:58:00.006+01:00

I was nearly on the radio this evening. I was phoned up this afternoon while I was sweeping the leaves from my lawn and asked to take part in a current affairs show tonight. I have done quite a few of these, so I said yes. Producers prefer studio quality sound to the vagaries of the phone network so I agreed to go to a studio that is about 20 minutes' drive from my house. On arriving I discovered that momentous breaking news meant that the piece had been dropped, so home I came. In the past I have found myself leaving the house at 6 a.m., keys in hand, ready to drive to a studio, to get a call on my mobile saying that a big story has just broken, so sorry..... The main thing that broadcasting has in common with being a JP is that you get buggered about quite often, but there's no point in complaining because it's part of the deal in both cases.
I shall never forget the frisson that I felt one day as I sat in a small regional studio at 7.15 a.m., headphones clamped on, mike in front of me, ready to talk about the victim surcharge, when the producer came on: "two minutes, then you are next. By the way, it's John Humphrys". Since you ask, he was a pussycat.