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 retired JP, with over 30 years' experience on the Bench.

Wednesday, January 25, 2006

Brian and the ASBO

Thank you for the many comments on the case of Brian. As I expected, the range of sentences ran the full gamut, from releasing him straight away to five years in prison. I shall draw a veil over the more gung-ho posters who preferred capital punishment.

Some people wanted to see him put into compulsory rehab, either in or out of prison. Such facilities are almost entirely non-existent and for short prison sentences offenders are simply warehoused until their release date, because there is no time to organise anything but the most perfunctory programme. This may change in the medium term with the introduction of ‘custody plus’ adding supervision in the community on to the end of a prison sentence.

It’s the ASBO that’s the problem. He was given his when they were still relatively new orders. Since then the higher courts have issued guidelines that discourage their over-use and the imposition of unrealistic conditions. He was ordered not to be drunk in public, and he probably breached that when he walked out of the courthouse door, since he is drunk pretty much all of the time. He probably would not be given a similar order today, but the order is in place, and that’s it.

So we run through the structured sentencing process:-
How serious is the offence of its type? Being drunk – not very. Breaching the ASBO, serious because of repetition and failure to respond to previous sentences.
Is a fine or discharge appropriate? No, he has already been imprisoned twice. Breach of an ASBO is a serious either-way offence.
Is it serious enough for a community penalty? Certainly, but he has been declared unsuitable, so we may not impose one.
Is it so serious that only custody is appropriate? That’s the tricky bit. It probably isn’t, but what else can we do?
Are our powers sufficient or shall we commit to the Crown Court? Following the higher courts’ current thinking the judge is unlikely to give much, if any, more time that we can, certainly nothing like five years. We decide that we will reflect his guilty plea by not sending him upstairs, so the sentence will be six months (of which he will serve half).

If you cast your eyes to the top of the blog, you can see the bit that says where my views differ from the letter of the law I will impose the letter of the law. That’s what’s happening here. A pathetic drunk, of low intellect, will have received a total of eighteen months' imprisonment for offences that normally attract sentences right at the bottom of the tariff, usually a fine. There will be no treatment, and he will not be ‘cured’. He will leave prison clutching his discharge grant and he will head for the nearest off-licence. This cat-and-mouse will go on until his ASBO finally expires or he saves all of us a lot of trouble and succumbs to the drink. Prison is an expensive resource (estimates vary, but £750 per week may not be too far off the mark) and Brian may be lucky and avoid the bullying that is often the fate of the vulnerable and the gormless, or he may not.

Of course, while he is inside decent citizens will be spared the sight and sound of him reeling in the street hurling foul mouthed abuse at all and sundry, and that is a plus point. But is prison really the best that we can come up with?

So those of you who said that there is no answer were, I am afraid, spot on.