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The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a team, who may or may not be JPs, but all of whom are interested in the Magistrates' Courts.

Sunday, February 27, 2005

Bunking Off (2)

As several people have pointed out (and thank you for all the comments) this is a case where there is no 'right' answer. The child is not before the court because the law presumes that the parent has control of him. As Dickens' Mr. Bumble replied when told that he was deemed to be in control of Mrs. Bumble:- "If the law thinks that, then the law is a ass".

Nevertheless it must be public policy that school attendance is enforced, by criminal sanctions if need be, if the best efforts of the Local Authority fail. Magistrates are not social workers and we decided that our duty was to impose a sentence that would express society's disapproval, and as far as possible deter others. So the object of the sentence is to punish the offender.

A Conditional Discharge is unlikely to be appropriate because it is highly likely to be breached, which will bring us right back to square one. A fine is impractical, as any realistic level for a woman on Donna's income will look derisory. Community Rehabilitation (the old probation) is not available because Donna is a first offender. That leaves us the options of unpaid work, or prison (there are a number of newly introduced community penalty options but for clarity I shall disregard them).
If you are looking to punish and deter there is something to be said for a short prison sentence, as there was evidence that school attendance improved dramatically for a time when a court took that option. But I am not the man to lock up a woman whose behaviour, however reprehensible, was more pathetic than wicked. So we sentenced her to 40 hours (the minimum) of unpaid work in the community, with no order for costs.

Lee's education is unlikely to advance very far in the next nine months until he can lawfully leave school. Driving home that afternoon, with a faint sense of unease at having failed to make any real difference to Lee's future, I thought that for boys like him we need to revisit the idea of apprenticeships at an age well before 16, to try to engage him in something that he can relate to. Shame he can't read and write though.

Saturday, February 26, 2005

Cunning Stunts

There is a busy public place on my patch where thousands of people pass to and fro every day. A while ago we were presented with a defendant who was charged with Going Equipped to Steal. Now that's an everyday charge, but what was not everyday was the detail of the charge. Rather than the usual screwdriver, dodgy credit card, or whatever he had a shampoo bottle filled with mustard. Yes, mustard.

The trick was obvious once we heard the details. Victim is in a public place, maybe on the mobile, or waiting for a bus, or a train. A helpful stranger points out that the person's coat has a nasty smear on it, and offers a tissue. Victim takes tissue and thanks his helper. While this is going on, helpful stranger's pal snatches the victim's laptop or briefcase and is off like a greyhound.

There are variations on this, such as dropping a low denomination banknote (often a $1 bill) and then asking the victim if it is his, or the scattering of a handful of change, or even pebbles, on to a hard floor to distract the victim for just long enough to steal his case.

We take an exceptionally dim view of this and will always send the offender to the Crown Court. The going rate there is about three or four years in prison, plus deportation for the many bag thieves who are foreigners.

So hang onto your bags, won't you? And if you do carry a laptop, don't keep it in the flash bag labelled Apple or IBM. Keep it in a cheap old shopping bag and put your sandwiches in the laptop case.

Friday, February 25, 2005

Bunking Off

The law requires that every child under the age of 16 shall attend school. Truancy is a common and increasing problem, and education authorities have specialist staff to tackle it. Rarely, things get to such a pass that the Authority will prosecute the parents (or, much more usually, parent).

Lee, who is 15, has attended school on 10 occasions out of a possible 120. There is a long history of unauthorised absence.

Lee's mum, Donna, is 35, and the cares of life near the bottom of the heap have taken a toll of her appearance. She has had scores of meetings and interviews with various officials. She pleads guilty, and her solicitor mitigates on her behalf.

He tells us that Lee's father left when the baby was eight weeks old and there has been no contact since. Mother and son live on benefits in Local Authority accommodation. Donna started to lose control of Lee when he was about 11 years old. Since then Lee has spent a lot of time with older boys, and has gradually given up going to school. He has no qualifications and is unlikely to gain any. He is functionally illiterate. The solicitor calls Donna to give evidence.

She is nervous in the witness box, and the usher discreetly slips her a handful of Kleenex. She tells us that Lee used to go out in the mornings and come back in the afternoon and that she had no idea he was not going to school. After the school approached her she started to take him to school, and deliver him right into the classroom. On several occasions he had arrived home before her, having run straight out of the school and taken a short cut across the park. She does not know what else she can do.

Cross-examined by the Council's lawyer she admits that she has known for a long time about Lee's truancy, but she has a lot of worries and her nerves are bad. She is in debt to moneylenders. Lee will be able to leave school legally in nine months' time.

Summing up, her solicitor accepts that Donna had to plead guilty as she had no defence, but she is a single mother struggling to cope. She has very little money to pay a fine, or the £100 costs that the Council has asked for.

The Guidelines tell us that the offence carries a fine up to £2,000 and/or 3 months in prison. The 'entry point' is to consider a community penalty. We decide seriousness by looking at aggravation and mitigation - not too much of the latter, because she appears to have closed her eyes to her responsibilities and there is no suggestion that Lee has been bullied.

The options are:

A Conditional Discharge
A Fine
A Community Penalty such as unpaid work.
A prison sentence (maximum 2 months after credit for guilty plea).

Each of these has merits and demerits.

What will you do?

Thursday, February 24, 2005

Special Offer - Hurry!

The Sentencing Guidelines Council, one of the exciting new bodies set up by the latest flurry of criminal law reforms, has pronounced on sentencing discounts.

It has long been the practice to knock a bit off the sentence in return for a plea of guilty. Guilty pleas save money, they save time, and they save putting witnesses through the unpleasantness of coming to court. So they are a good thing then.

The latest guidance is that plea discounts should be on a sliding scale ranging from one third for a plea at the 'first reasonable opportunity' via a maximum of one quarter after a trial date has been set, to a maximum of a tenth for a plea at the door of the court or after the trial has begun.

The new guidelines are designed to bring in consistency and to help the habitual criminal to gauge the odds more accurately when deciding on his plea. If he sticks out for a not guilty, and a key witness does not appear, or the CPS loses a crucial document, or any one of a thousand screw-ups happens, then he has had a good result. On the other hand, if he waits until he sees the whites of the victim's eyes before changing his plea he will get almost all of the tariff for the offence.

This applies all the way down to the humble offences heard in the Magistrates' court, but it only affects fines, prison terms and community penalties. There is no discount on penalty points or on disqualification periods.

Wednesday, February 23, 2005

All-time Brilliant Legal Jokes (no. 224)



Anthony Aloysius Hancock, addressing his fellow jurors in Galton and Simpson's "Twelve Angry Men" :-


"What about Magna Carta?"
"Did she die in vain?"

Tuesday, February 22, 2005

Play judge again (2)

We approached the sentence in two parts. We first looked at the offence, and decided that lights are easy to check, and as it was a company car the driver only had to take it into any garage shop to get the bulb changed. Faulty lights can cause accidents. Nevertheless, a routine offence, not the most serious, so a fine of £200 seemed about right. Because of his guilty plea we reduced it to £125. Licence endorsed, 3 points. £35 costs. He had three previous speeding convictions each earning him 3 points.

We then looked at the Exceptional Hardship argument. As others have pointed out he has the resources to pay for taxis, and there was, in fact, acceptable public transport between home and work. The clerk read us the guideline on hardship, and reminded us that the test of what is exceptional is a high one. All the same, it was up to us to decide how long this particular piece of string was. I hinted in my post at a trade-off between the fine and the length of the ban so that I could say that we never do that. It is common for drivers to say, more or less, "fine me as much as you like, but let me keep my licence". That is a no-no because it amounts to buying your way out of the consequences of your offences.

We hardened our hearts and disqualified him for six months. He appealed to the Crown Court, and we were upheld.

Three final points: when he gets his licence back after six months it will be clean, but a second totting within three years would be for a minimum 12 months. Had his exceptional hardship argument been effective he would not have been allowed to use it again for three years.

Monday, February 21, 2005

Play judge again

Mr. Smith is a well-paid executive. He drives an expensive Jaguar company car and covers many miles on business. He earns well over £100,000 per year.

In his travels he has collected nine points.

He is involved in a minor traffic accident that is not his fault. Unfortunately a pedestrian has suffered injuries (that have turned out to be minor) so the police accident investigators turn up. Mr. S. is breathalysed as a routine matter but he hasn't had a drink for two days. On looking at his car the trained police vehicle examiner finds a technical fault with the lights. Mr. S. is summonsed for the offence, because with nine points already he is ineligible for a fixed penalty.

He pleads guilty. The offence carries three points, taking Mr. S. to twelve, so he stands to be disqualified for six months.

His solicitor puts forward an 'exceptional hardship' argument and tells the court at some length of the importance of Mr. S's job, his international travel, and the need to support his young family and to pay their school fees.

So you, members of the bench, have to decide whether to exercise your discretion to make a finding of exceptional hardship, and to choose not to ban him at all or for a shorter period than six months.

Go on, then, sentence him. A fine, of course, plus costs.

The choice is:- three points, therefore a 'totter' so six months ban.

Or - as above plus a reduced ban (defence brief suggests that a really big fine need not be a problem).

Or - as above, but no ban on the grounds of exceptional hardship, leaving S. with 12 points but no ban.

As before, let me have some thoughts and I will tell you what we did in a case that differed from this one but shared the same basic features.

Bail

Bail is one of the least understood aspects of the criminal law. People find it hard to understand how the police can go to all the trouble of catching someone, only for the court to release them on bail. The answer lies in the Bail Act. I am not a lawyer, and there is no point in going into the myriad tweaks and angles of bail, but the bottom line is simple. A person has a right to bail unless there are substantial grounds to fear that he will fail to surrender to the court, commit further offences, or interfere with witnesses. There are other exceptions but those three cover the vast majority of cases. The court (and for bail purposes it can be just one magistrate) has to give reasons if unconditional bail is refused. These might include previous bail record (has reoffended or failed to turn up in the past) the fact that he faces a lengthy prison sentence and therefore has a motive to abscond, the fact that he has no fixed abode or the fact that the victim is scared stiff of him and lives two doors away. So we look at possible conditions. Can we order him to live with someone else, at a safe distance from the victim? How about an order not to go to the victim's home town? If he is NFA can Probation find him a place in a Bail Hostel? Should he surrender his passport? If he is a night-time burglar will a curfew be appropriate?
A surety (promise from a third party to pay) or a security (cash down) might be offered.

In coming to a decision the court has to take the Crown's case at its highest, and listen to defence submissions.

If none of these fit the bill, then a remand in custody is probably inevitable. Lawyers are allowed two full bail applications, then an appeal to a judge at the Crown Court, any of which might get their man out. For the most serious offences up at the murder and rape level the court must give reasons if it does grant bail. It happens though. A notorious property developer was recently on bail throughout his trial for murder.

If there is a breach of bail the court will probably issue a no-bail warrant for the arrest of the defendant. Bad news there, because in future a custody Sergeant looking at the screen and seeing a conviction for Failing to Surrender will probably not bail the def, but hold him in the cells until the next court.

If someone is held on remand and then acquitted, he has been imprisoned, in effect, for nothing. Plenty of people serve longer on remand than their eventual sentence. On the other hand, if someone who is bailed goes out and reoffends, his victim will wonder what the hell the court was doing letting him out at all.

Bail can be a difficult decision, trying to balance all of these factors. A sensible policeman, who feels strongly about a case and who knows all of its details will try to be in court when bail is considered and to back up the prosecutor if necessary.

With bail, above all, you can't please everybody.

Afterthought

Whether you are a magistrate or a police officer, you will have to visit prisons and other penal establishments. One rule applies above all:

If you don't see the tea being made, don't drink it!

Just a Thought

I recently visited a Young Offenders' Institution (prison for those under 21) and after our tour of the facilities we had a meeting with the Governor to exchange views and to debrief the visit.

During the meeting he mentioned that something like 80% of his charges had been excluded from school at some time, and that about 30% had been in what Councils call , without a hint of irony, 'care'.

It costs up to £1000 a week to keep a young man in a YOI. Not many come out better than they went in. Some are seriously corroded by the experience. With the risk factors being so predictable, should not a serious approach to offending behaviour mean getting involved with these boys much, much, earlier when the warning signs appear? It wouldn't be cheap, but nor is the present system. It would also be a good deal more humane, and could spare vulnerable kids a deal of misery.

Saturday, February 19, 2005

Over Here, Officer

The idea of 'cool' is an irritating reality of 21st Century England. It allows the young and even the dispossessed to adopt the languid attitude of an eighteenth-century fop. To show an interest in practically anything violates the canons of coolness. "Whatever" is the teenager's airy dismissal of anything requiring the slightest intellectual or emotional effort. The only exception to the iron rule is that anything to do with football and drunkenness may be enthused about.

Coolness requires young men to spurn the seat belt in their vehicle; presumably maxillo-facial trauma will enhance street credibility. Now failing to wear a seat belt is a non-endorseable offence that is usually dealt with by the issue of a £30 fixed penalty ticket. What it does do though, is to cause police patrols to stop and speak to the driver. This prompts the usual enquiries as to the state of the vehicle, its insurance and licence, whether the driver has subjected himself to the rigours of a driving test, whether he is drunk, whether he has drugs about his person, whether the car contains goods that were until recently the property of an innocent householder, and whether the driver himself might be wanted on an arrest warrant. In a high proportion of seat-belt stops one or more of these factors is present, and the man (it's always a man) ends up in front of the court.

I have no wish to be baked in a tabloid pie, but it would be very satisfying to be able to say: "Look, you stupid little git, if you had been wearing the belt the police would have left you alone. There is no specific offence of acting like a prat, but if there were you would be guilty of it". Perhaps the week before I retire..................

Wednesday, February 16, 2005

Walked Free From Court

I'm a placid sort of chap, but I am, against my better judgement, an avid reader of the daily papers. It's a habit I picked up at University, when, being an English student, I had the JCR to myself at about 10.30 am, while the lawyers and the engineers and the other rude mechanicals were working and I had just finished rubbing the sleep from my eyes. So I was able to fillet the whole of the national press in a relaxing hour or so.

My placid nature is sorely tested these days when I read in the popular prints that Bloggs has been released after serving 'no more than half' of his sentence or, infuriatingly, that this or that criminal has 'walked free' from court. 'Walked free' may mean that he was given a community sentence, which the tabloids always preface with 'let off with...' , or it may mean that he was given a prison sentence that he had already served on remand, or perhaps even been acquitted.

The tabloid presumption that anything other than a prison sentence is a let-off has had a corrosive effect on public opinion. This isn't the time to go into a learned treatise on sentencing, but we must accept that the only proven benefit of locking people up is what the pros call incapacitation - i.e. if you are in a cell you can't burgle Granny's house. I can't argue with that, but since my maximum power is 6 (soon to be 12) months inside, before remission, the Ealing Broadway Bill Sykes will be back to his usual haunts in a relative jiffy. A community order has more or less the same effect on reoffending as time in the slammer, but doesn't look as sexy in a headline.

Next time that you read a headline that mentions a criminal 'walking free' just have a think about the facts. And spare a thought for my wife who will have had to put up with me slamming doors and shouting at the walls for an hour or two.

Tuesday, February 15, 2005

Out of Place

Much of the court's time is taken up with the unruly elements in society, be they drink or drug abusers, burglars or thieves. A glance into our waiting area is a peep into life at the bottom of the heap. Saddest sight of all is the teenage mother loyally supporting her feckless and dishonest boyfriend while being left, literally, holding the baby.

Here and there, though, we see a well dressed citizen, looking and feeling entirely out of place. For the respectable majority of society the inside of a court is an unknown environment, strange and threatening. Until, that is, they commit a traffic offence such as drink-driving, or they cross the fine line that separates legitimate business practices from crimes.

Most feel ashamed and demeaned. A few are cocky, feeling that the whole thing is rather beneath them.

Emotions are never far from the surface, as we saw when a man came in accused of driving without insurance. We see these offences every day, usually committed by young lads who get a nasty surprise when they buy an old car for £500 and discover that the insurance premium will be £2,000 for the year. This man, like many of us, runs two cars. He insures his, and names his wife as a driver. She does the mirror-image. She then decides to move her insurance to a cheap company that she has seen advertised on TV. The deal is done on the phone. When the documents arrive she files them away and thinks no more of it. He is stopped in a routine check, driving her car, and it transpires that she has omitted to include him on the policy. He is charged with driving without insurance. He was advised that he had no alternative to a plea of guilty.

When he came to court, he was clearly upset. He produced a thick wad of paper that included 25 years' worth of insurance certificates. He explained what had happened, stressing his belief in the law by waving the old certificates, and we believed him. I announced that we accepted his story, but I said that the law on insurance was strict and inflexible. To reflect our view, we would reduce the fine to a token £50 but we were obliged to endorse his licence with the (minimum) six points. I thought that he would be relieved. Instead he slumped to his seat and sobbed his eyes out. It is very trying to see a grown man with no previous convictions being so devastated, but we had no options.

Comparing that man with the insouciant youths who make up our daily list reminded us that enforcing the law means most to those who respect it in the first place.

Olympic Con?

According to the Press members of the Committee that is to decide where the 2012 Olympics are to be held are visiting London. Apparently their car travel is to be eased by a subtle tweaking of the traffic lights along their route along with hasty removal of roadworks and other obstructions. Similarly all of the public transport that they will see has been checked, cleaned, and double-checked.

Two thoughts occur to me:-

Isn't this based on Stalin's wheeze of Potemkin Villages, in which cheery peasants showed the benefits of Communism?

And:-

If London wins the Games isn't someone liable to a charge of Obtaining a Pecuniary Advantage by Deception?

Sunday, February 13, 2005

Downfall of a Master Criminal

Ben, aged 18, was pleased with his new mobile phone. He had bought it in a pub for £3.75 from a chap he didn't know. When the phone had been stolen in a street robbery the previous day the victim had reported the theft to the police.
Ben had a call that evening from a stranger, offering him the chance to take part in a survey, get a free gift, and possibly win a cash prize. He gave the caller his name and address and date of birth. Unfortunately the caller was a police officer who dropped by a little later to arrest Ben, take his DNA and fingerprints, and charge him with handling.

We bailed him for a week to take legal advice.

Saturday, February 12, 2005

View From The Front Line

In the excellent Policeman's Blog the author writes about the interminably squabbling and intermittently violent couples who form such a large part of the workload of local Police. The CPS has, for good reasons, a policy of always pursuing Domestic Violence cases, sometimes in the teeth of yet another retraction statement by the victim. The Police give these 999 calls a high priority, but that has led to the sort of situation that I saw a few weeks ago. A local couple in their sixties are both alcoholics, and start violent rows as soon as they get to the bottom of the second or third two-litre bottle of 8 per cent cider. In the last year the woman has called Police over fifty times. Police have always attended. Lover boy has been arrested umpteen times, spent weeks inside because he persists in breaching bail conditions not to see his paramour, and is usually sentenced to less than he has already served on remand. More than once I have seen them leaving the court hand in hand, presumably on their way to the off-licence, home, and a row. In a nutshell, they can't live with each other and they can't live without each other. Now I take domestic violence as seriously as anyone and I am cautious about bail, because if we get one wrong there might be a dead woman to account for. Nevertheless, this can't be a good use of police or prison resources - but what else can we do?

Black Humour From The Old Bill

A Met PC was on his way to an urgent call in the Area Car. In his haste he cut a corner rather tightly. Unfortunately there was another police car coming the other way, on its way back from a routine enquiry. The ensuing collision wrote off both vehicles, but injuries were mercifully minor.

The PC concerned is now stuck with the nickname Chi-Chi.

Because he fucks Pandas.


(Note for the youthful) I have just realised that most people under 35 won't have heard of Chi-Chi. It was one of the pandas at London Zoo - their sex lives, or the lack thereof, were of great interest to the Press for quite a while.

Time for Bye-Byes

He was only about five foot two, but he looked as if he had been around a bit, seen a bit of trouble in his fifty-odd years. He was clearly no stranger to being in a dock. He had pleaded not guilty to assaulting a PC and was being cross-examined.

"I put it to you" said the prosecutor "that you then punched the officer hard with your left fist".

"Never" came the reply. He held up a gnarled left fist. "This is me tapping hand". He then clenched his right fist and waved it at the slightly alarmed looking young barrister. "This is me putting-to-sleep hand".

We Don't Need No Stinkin' Badges

I am highly sceptical of the plan to bring in compulsory ID cards. There are many false passports in circulation at the moment - so much so that the Court of Appeal laid down late last year (in the case of Kolawole) that simple possession of a false passport must attract twelve to eighteen months, even on a person of good character pleading guilty at an early stage. Quite recently we saw a man who had been arrested for a minor shoplifting offence. On being searched he was found to be carrying a false passport that had got him into the country a few days earlier. Off he went to Ealing Broadway Crown Court for sentence. Forgers are well able to deploy high technology, and anything will be available if the price is right

As an old-style libertarian I have concerns about the principle of cards in peacetime, but I acknowledge the genuine fears of a new kind of terrorism. My principal objection is on the grounds of practicality. The law abiding and the organised will carry their cards. What are the Police supposed to do about everyone else? What if a druggy forgets? He doesn't know or care what day it is anyway. At what age will cards be compulsory? 10? 12? 16? What happens when a policeman stops a burly youth who says "I'm too young to need one"? If the officer takes him in for checks that's him out of action for the rest of his shift. The child can't even be interviewed until an 'appropriate adult' has been arranged to sit in. Unlike cars, that are fitted with number plates, there is no practical way of giving a person a ticket to produce his card later - he can simply disappear. In a population of well over 50 million it will just not be possible to police a card system without causing crippling manpower problems for the police. All this and a cost of billions that could better be spent elsewhere.

My fear is that cards will be a burden on and a nuisance to the law abiding while doing little or nothing to inconvenience the criminal or the terrorist.

They Do Things Differently in America (2)

The website of the US Bureau of Prisons at Bureau of Prisons, tells us that there are currently about 180,000 inmates in Federal(NB)prisons and that 54.1% of them are in for drugs offences. No other type of offence comes close. I have not seen the stats for England and Wales, but I am pretty sure that drink and drug related offences make up the largest single part of our business, if you exclude the routine motoring stuff.

Makes you think, doesn't it?

Wednesday, February 09, 2005

Apocrypha (7)

Some years ago we had a regular customer who was suffering from a sexual identity crisis. He was a repeat, albeit petty, offender. Eventually the medical powers-that-be decided to put him on the waiting list for The Operation - a year or two hence.

The first time that I saw him he was in jeans and T-shirt. The next time he was in a PVC miniskirt, fishnets, pixie boots, and a spiky hairdo. Oh yes, and makeup. Boy George he was not. However, in all the circumstances we tried to treat him with sensitivity, and the lawyers managed to get round the problem of using the he-word or the she-word by studiously referring to 'the defendant'.

We dealt with him without any problems, and sent him away. That's when the merde hit l'hélice. On leaving the courthouse he decided to go for a pee. The lady usher took one look at him as he headed for the Ladies and said "You are not going in there". One of the security chaps muttered "I don't fancy his chances in the Gents". There was a row, which I was glad to have missed when I heard about it later.

Sometimes I miss the old certainties, but I suppose that's because I am in my fifties, and things were different in my youth. Very different.

What would you do? (2)

Thanks for all of the comments.

We had two clear alternatives of community penalty plus compensation or prison. Either fitted the guidelines and the law so our discretion was unfettered.

We imposed a Community Punishment Order towards the top of the range, and when I announced that part of the sentence the defendant looked extremely relieved. We also awarded compensation of over £2000 to the victim, plus costs to the prosecution, at which he looked pretty shocked. We said that the order was a direct alternative to custody, and that any breach of it could only have one outcome.
We said that in our view compensating the victim was the principal element of justice, being recompense for damage done, and that the community sentence was a punishment to express society's disapproval and to deter others.

Tuesday, February 08, 2005

What would you do?

The Crime:
Two neighbours had a long-running dispute that had started over parking. Mr. A made a habit of parking his car near Mr. B's house. Matters festered until one day Mr. A was getting into his car ready to go out and Mr. B. appeared, in an angry mood. Words were exchanged and A was punched in the face several times resulting in a broken nose, and a lot of blood. He required visits to hospital and he had to take time off work. B pleaded not guilty to ABH, but after a trial we found him guilty. We put the matter off for three weeks, ordered pre-sentence reports, and we said that all options would be open including custody or committal to the crown court for sentence.
The Guidelines:
The Magistrates Court Guidelines suggest custody for a first time offender pleading not guilty. There was no significant aggravation or mitigation, in that no weapon was used, but there was no provocation either. Other factors were absent so the case was straightforward.
The Pre-Sentence Report:
The report said that he was a family man with no previous convictions who worked for a small business with several staff. He had been angry at people parking near his house - he had bought it last year on a mortgage and was proud of his home. He had lost his temper and he was sorry. His solicitor had told him that prison was very much on the cards and he was very frightened. The probation officer writing the report recommended a community penalty while recognising that the court might feel that custody was inevitable. B was suitable for any of the range of sentences available.
The Sentencing Process:
We decided that the offence was serious enough for a community penalty and might be so serious that only custody was suitable. The Clerk reminded us that there is higher court guidance on road-rage type incidents that says that custody should be the norm, to deter motorists from attacking each other. This case wasn't exactly the same but was close. We dismissed the idea of a discharge or a fine, so we had the options of a Community Punishment Order up to a maximum of 240 hours, or prison up to six months. We decided that there was not enough aggravation to send the case to a judge who has greater powers. We reminded ourselves that we were obliged to consider compensation to the victim, but that if we imprisoned the defendant he would have no money to pay. We considered the impact on the victim, and the need to deter others.
The Questions:
Would you have opted for prison, or for community punishment. Why? Would you have awarded compensation? How much?

If you were the victim, what would you rather see; the satisfaction of seeing your assailant go to prison, or a community penalty plus compensation for yourself?
NB Community Punishment is served in seven-hour periods usually on a Saturday. Half of any prison sentence would be remitted for good behaviour.

I will tell you what we did after a few people have given their views.

Added 9/2
I am busy today, so I shall post what happened this evening. I would appreciate views from the victim's perspective, because that was one of the main drivers of the eventual sentence.

Monday, February 07, 2005

Bindovers

Jon enquires, on the Private Prosecutions post, about the bindover.

A bindover is an ancient power dating back to at least the fourteenth century. Until a few years ago, people could be bound over to 'keep the peace and to be of good behaviour' for a period of (say) one year, in the sum of (say) £100. These days the good behaviour bit has been dropped but the idea is the same. No money changes hands unless you breach the peace again, when you can forfeit the cash.

If someone is arrested for breach of the peace (which the police find useful when they can't think of any better reason to arrest someone) the only penalty is a bindover. A bindover is not a conviction and does not go onto your criminal record.

It can be a very handy disposal to knock people's heads together without involving the law in all its flatfooted majesty.

Until a few years ago the defendant had to consent to a bindover. If his dudgeon was high enough he might refuse consent, in which case he would receive a nifty 28 days in chokey. It usually took rather less than 28 days for attitudes to be adjusted and common sense to prevail.


Fishy Business

One of our less-riveting duties is to enforce fishing licences. All money raised from licences goes back into maintaining the waters, so it seems a fair-enough system.

Today we have a brand-new prosecutor, a young barrister. He tells our clerk that he has never prosecuted before, so would the clerk give him a nudge if he went wrong, please. As it happens none of us have done any of these for ages, so I ask the learned Counsel to remind us of the cost of a licence, so that we have an idea where to pitch the fines. Confusion. He doesn't know. His young assistant rushes out of court clutching her mobile, and comes back after a couple of minutes with a piece of paper. "May it please you Sir" he begins "A rod licence costs £23.25 for coarse fish, and £62.25 for salmon and sea trout".

I can't resist it. "Mr. Smith. The salmon and trout rivers of West London are less than renowned, so we shall deal with all of these as coarse fishing licences".

Private Prosecutions

On one day a week we allocate a courtroom to deal with private prosecutions. Mostly these are from transport companies for fare evasion, RSPCA, Health and Safety, noise complaints and so on. A few are true private prosecutions where an individual makes a criminal allegation against another.

We heard an allegation of assault against relatives, that was a classic of its kind. After we had a preliminary chat with the clerk we flagged up, using code of course, that we could well consider binding over both parties - in those days consent was required. The defence had a barrister, the prosecutors were doing it on their own. We went and had a cup of coffee to allow time for a deal, but no, the prosecutor wanted to go ahead.

In essence it was a dispute about some property. Family A had some property belonging to Family B. Two burly chaps from Family B went round to ask for the goods back. "It's not convenient, come back next week" replied Father A, his equally-burly son beside him. Family B then charged through the door into the house, where they were met by father and two sons who ejected them after a scuffle in which blows were exchanged. So B claimed that they had been assaulted by A. The first part of the trial took all morning because B kept trying to get onto the rights and wrongs of the property, and we kept reminding them that this was assault, pure and simple that we were considering. Of course the prosecution didn't have a hope, because B were in the wrong in entering without permission and A were entitled to use reasonable force to eject them. We rapidly decided on acquittal, and the barrister for A shimmered to his well-shod feet to ask for costs. "I have a detailed schedule of my clients' costs here, Sir. You will be aware that in cases such as this the costs go with the cause".

Just under two thousand pounds it came to , and that's what we ordered the unsuccessful prosecutor to pay. Ironically, if the prosecutors had accepted a bindover, that would not count as a conviction, and the question of costs would not arise. So the decision to refuse a bindover was an expensive one.

Friday, February 04, 2005

Death on the Roads (2) - the Sun's View

From the Super Soaraway Sun, the following gloating and emetic piece:-

MOTORISTS who kill while driving carelessly will face a jail term in a victory for The Sun.

The new offence will carry a sentence of up to five years.

It closes a loophole exposed by our hard-hitting campaign.

Currently drivers can only be jailed if they are judged to be driving dangerously rather than carelessly.

The new charge will end the scandal of killer drivers — like those who were on a mobile phone at the time — escaping with just a fine.

Drivers who kill while disqualified or are unlicensed will also face five years.

Home Office minister Baroness Scotland said: “We have put forward some pretty radical proposals to create a tougher legal framework to deal with bad driving.”

This is a nauseating capitulation to tabloid mob justice. Nearly every crime requires intent before it can be proved. Now people who make mistakes can be jailed for years, simply so that the Murdoch trashmeisters can crow.

Angry? Moi? Damn right.

Thursday, February 03, 2005

Apocrypha (6)

In a multi-cultural area the courts use interpreters all the time - in fact it is a requirement of the Human Rights Act. The usual languages are no problem, and there is an increasing demand for Eastern European languages, but we are occasionally stumped by a really out-of-the-way one, such as Twi, a Nigerian up-country dialect. There are fewer than a handful of accredited interpreters for that one.

For the profoundly deaf there are sign language interpreters. We saw a case a while ago where the defendant and one witness needed signing, so an interpreter was booked. He was a cheery young man who took to his task with enthusiasm. In fact at one stage he was animatedly waving his arms in all directions while explaining an abstruse legal point to the man in the dock. A colleague pushed his notepad across, on which he had written:- "Tell him to keep his voice down".

Death on the Roads

One of the most difficult things that a magistrate has to do is to deal with a case where someone has been killed on the road, and a driver faces the court as a result.

The worst offences, of causing death by dangerous driving, or of causing death by careless driving while under the influence of alcohol are straightforward - we would commit them to the Crown Court where they usually attract long prison sentences. The difficult cases are where someone has been killed as a result of careless driving. This offence can only be dealt with by magistrates, and is not imprisonable. Sometimes the tiniest error on the part of a driver can result in a death; this is fairly common where motorcycles are involved. We have always been trained to punish the offence and not the consequences, and when I was first trained we were given an example:-

You and I are driving identical cars side by side, at identical speeds, approaching traffic lights. Stationary in front of us are two more cars, identical to each other. We each hit the car in front at exactly 30mph. The driver of 'my' one gets out of the car uninjured. By horrible chance yours is dead. Should we receive different punishments? My view has always been 'no', as the carelessness is similar. Let us say that the penalty is assessed at £300 fine each, plus six penalty points (offence carries 3 to 9). Next Friday the local paper comes out with a photo of the dead man's mother in tears outside the court, under the screaming headline:- "THE PRICE OF MY SON'S LIFE : £300!" and a picture of Diana-style flowers fixed to the traffic lights.

It is vital that the Chairman prepares the court's judgement with enormous care, explaining clearly the reason for the sentence being what it is, and expressing sympathy with the bereaved. In a case that I saw the defence solicitor addressed about half of his mitigation to the victim's family. But that was not enough, and the victim's mother went off to the Daily Mail who gave it a full page.

The Government is currently reviewing Road Traffic law, and one of the proposals is to create a new imprisonable offence of causing death by careless driving. This runs a real risk of the courts dancing to the tabloids' tune, and imposing disproportionate sentences to please the mob. Accidents happen, and it is for a dispassionate and impartial tribunal to assess the proper penalty if one is appropriate. I fear that we are going to come under pressure to impose severe sentences. It will not, in my view, save a single life.

Wednesday, February 02, 2005

Today

Well, I'm home. The three-day case lasted fifteen minutes. The case was about the Proceeds of Crime Act (POCA) which is one of the civil matters that magistrates are called on to handle, and the chap whose funds had been seized threw in the towel. So I've got tomorrow off, but they want me and my colleagues back on Friday because the court has loads of work on and another bench will come in handy. It will also make the management happy by keeping the stats for courtroom usage nicely up to scratch.

POCA is another one of those laws that sometimes takes people by surprise. What it boils down to is that if you have cash or assets that look suspiciously large you may be required to account for them with a proper audit trail. The court hears evidence and then decides on the civil standard of the Balance of Probabilities whether or not the money is the proceeds of crime. If it is, the court will seize the cash. The classic case is the drug dealer who is living on benefit but who has £5,000 in soiled readies hidden under a floorboard. Another target is the wide-boy type who lives in a flash house with a luxury lifestyle, but has no visible means of support. The Government has deployed the new Asset Recovery Agency to sniff out these people, and has staffed it with squads of accountants, lawyers, and police officers. It is worth remembering that the authorities never laid a glove on Al Capone for his Mafia activities, but got him for tax fraud.

That said, the law is a draconian one, and I wonder whether a Victorian judge would have let such an infringement of privacy past him.

Tuesday, February 01, 2005

Tomorrow

I am on the rota to chair a bench on a trial tomorrow. Along with my two colleagues, there will be a qualified legal adviser, and an usher. There will be at least one, and possibly several volunteers from Witness Support (of whom one cannot speak too highly, by the way). There will be a courtroom with heat light and a security presence. There may well be witnesses, some of them scared, all of them inconvenienced.

There is about one chance in three that it will go ahead. This is expensive and frustrating - bad enough when someone is ill, but infuriating when a simple cock-up prevents the trial from proceeding. It would be naive to blame 'the system' but there is the fundamental problem of there being no penalty for failure. If the CPS screw up and forget to warn witnesses to attend (believe me, that happens!) or if a Police officer decides that his firearms course (that will get him into SO19) is more important than giving evidence against the bloke who ran over an old lady, then there is no penalty or sanction for failure.

We shall see how we get on tomorrow.

Brilliant aphorism

"Every adult must at some point have paused during some slapstick piece of debauchery and thought, "Christ, this is ridiculous". Having testicles is like being chained to the village idiot; sad, but there it is. And when we have solved every racial, political and economic problem, we will still be stuck with that one."

So writes the nice man at Chase me ladies, I'm in the cavalry, who has linked to my blog.

I wish I had said that. So many otherwise unexceptional people have got themselves into a dreadful legal tangle driven by the chemistry of their gonads having overridden the common-sense and the self preservation reflexes.

Thanks for that, Harry Hutton.


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