Short Shrift

So-called 'Mr. Loophole' doesn't always get his clients off, as in this case.

As the Crown Court judge (who was sitting with two JPs) pointed out, the fees of Mr. Freeman probably far exceeded the fines and costs imposed, but for a Premiership footballer it's all small change anyway.

I was interested to see that the DJ in the lower court was 'Custody' Cooper, who seems to crop up in the news quite frequently.

This Needed Saying

The constant harping on from Government about 'putting victims at the centre of justice' is in danger, as this article points out, of raising false expectations in victims of crime, and of blurring the reality that it is the state that prosecutes and the state that punishes crime, as it must. Anything else is a cruel deception, made to grab a headline.

More of The Same Claptrap

The Sun reports today that the government intends to increase the minimum term of imprisonment for those who murder using a knife. The paper claims this as a 'victory' for its campaign. Here is the Times report.

This is an absolutely typical piece of Straw's Law, and it will be bad law for a number of reasons:-

It will be introduced by Statutory Instrument, bypassing proper Parliamentary scrutiny.

It will be introduced to satisfy a media campaign driven by a prominent case in which the victim was the brother of a TV celebrity.

It takes no account of the fact that every case is different and turns on its own facts.

If it allows, as it should, judges to make exceptions where they think it to be just to do so, it will be meaningless. If not there will be injustice.

It will specify a 25-year starting point for a murder using a knife, but not for an axe, or a chainsaw, or a piece of wood with nails in, or any of the myriad weapons that humans use to maim and kill each other.

It will have not the slightest effect at street level. Someone prepared to risk a 15-year stretch isn't going to pack it in and take up embroidery because the ante has been upped to 25 years.

Hard cases make bad law. They are about to make another one.

The Logjam Starts To Move

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

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....

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

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

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

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

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

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

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?

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

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?

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.