Hiatus

There's going to be a bit of a break in postings from me over the next couple of weeks or so. I shall be attending to some (pleasant) family business that will keep me away from the Internet, because this stuff is all posted from a desktop PC. I will try to drop by if I get the chance to borrow a computer, but of course the comments and the archives will remain open.

Question

If one of the new breed of (say) litter wardens decides that you have improperly dropped something, and he decides to give you a penalty charge ticket, and you refuse to speak to him and walk briskly away, what can he do about it? Since people, unlike cars, do not carry number plates (at least not for the moment, but nothing would surprise me) how can he establish who you are, to take matters further? I doubt that he has the power to detain you - or has he?

The thought occurred to me after I saw someone drive away from a traffic warden who was only part-way through the process of booking him, and I understand that if the ticket is not put on the car, that's the end of it.

Anyone know for sure?

Tip For Murderers

The BBC reports that the latest wheeze from the Home Office is to give the relatives of victims a say in deciding when to release a prisoner on licence.

So here are two Top Tips for those of you contemplating a murder:-

1) Be sure to pick a victim from a family of Quakers or the like, as they are likely to be be more forgiving. Have a word with their newsagent, and if they are Sun or Mail readers, forget it and murder someone else.

2) A couple of years in to the sentence tell the Padre that you want to tell the family how sorry you are and how you feel their pain. Get into the creative writing class so that you can lay it on thick. Could be good for ten years off.

Remember, you saw it here first.

A Question of Identity

Many trials have at their core the identification of the accused by one or more witnesses. There is a lot of law about identification and you won't spend long on the bench before hearing about the Turnbull guidelines.

I became convinced of the perils of identification a few years ago, when I popped into the pub after court to meet a colleague, and the barmaid, who had been talking to a customer at the bar, said as she was serving us:- "Paul here was just telling me that he was in your court yesterday". It turned out that Paul was a CID officer, and we established that he had appeared in my courthouse the previous day to give evidence in a trial. "Which courtroom were you in?" I asked. "Court Two" he replied. "That's strange" I said "I was the chairman in Court Two yesterday. What was the case about?" "Firearms" he said. That's when the penny dropped. He was the officer in the case in a two hour trial, had given evidence in front of me for about 45 minutes of that time, and 24 hours later neither of us recognised the other at a range of five feet. We were both fooled by the totally different environments, probably exacerbated by the fact that I was sitting two feet higher than him in the court, but nevertheless we were both surprised.

Sometimes ID evidence is not difficult to shake. We had a (proper, police) traffic warden in the box, and a young man who was pleading not guilty. To speed things along we asked for the parking ticket to be handed up to the bench, and for once the warden had filled in the brief ID section on the back. The illicit parker was apparently an IC1 (white) male, of about five foot four. We glanced from the ticket, to the warden, to the six-foot plus dreadlocked Rastafarian who was in the dock, and decided that we had heard enough. The warden at least had the decency to look surprised.

Text Message

We had retired to consider our sentence on a man who had pleaded guilty to handling stolen goods. His activities had all the hallmarks of being a professional operation, and the value of the goods was high. On the face of it, he was well over the custody threshhold, and my first thought was whether we would sentence him or send him to the Crown Court.

The Clerk appeared, and took a folded sheet of paper from his inside pocket. "Sir" he said, looking serious, "this is a text". We looked blank.

He went on to explain that a 'text' is a letter, signed by a police officer of at least Superintendent rank, detailing help that the defendant has given to police. For obvious reasons this cannot be mentioned in open court.

We read the letter, which told us that our man was a registered police informant, and that he had supplied information leading to the conviction of at least a dozen people. He was still actively providing information on continuing enquiries.

That was it. The Clerk took the letter and returned it to his pocket. "I have no comment to make sir, you have read the letter, and you should make of it what you will". And he was gone.

So we had a think about things, and rapidly decided that the man was entitled to credit for helping the police and that it had to be in the public interest for him to continue as an informant. We wanted to reduce the sentence of course, and certainly to keep him out of jail. But we had to be careful not to overdo it, as his associates knew that he had been charged, and might put two and two together if we just slapped his wrist.

So we decided to fine him £2000, announcing (in dense code) that we had taken "all relevant factors" into account. I think that we got it about right, because he winced visibly when he heard the amount of the fine.

Texts are not all that common at Magistrates' court level, but judges see them fairly often in the Crown Court. I have only seen a handful in my time on the bench, but at least I now know what they are all about.

Dead Topical, I Am

Ploughing through a very crowded list today we filled a spare two minutes with an application for a Search Warrant.

The applicant was an officer of UK Immigration Service and his Information revealed that he was chasing one of the undeported naughty people who have caused so much trouble in the last couple of weeks (to politicians if no-one else).

The chap he was after had served his sentence for an offence worth about five years (which is what he got) but officials had overlooked the requirement to deport him.

So I authorised (as many other magistrates will have done in the last week or two) a warrant to search for the man. They will find him and attempt to deport him. I wish them luck.

Probation

I read more Press than is good for me, so I have probably absorbed some of the unhealthy obsessions that predominate in the media at the moment.

But having read what is in the media, I truly fear for what is happening to the Probation Service.

When I started out on the Bench Probation's mantra was Advise, Assist, Befriend. Over time, and as the public's mood grew more punitive, and as politicians increasingly pandered to the mob, Probation was moved into the National Offender Management Service and became part of the apparatus of punishment and supervision. I cannot offhand think of any other public service that has had its ethos turned around so comprehensively, and with so little publicity.

There is currently a media/political panic about people offending while on Probation supervision. Public concern is understandable, but short of Probation officers following their many charges around 24 hours a day, what are they supposed to do? Something like two-thirds of young men who are imprisoned reoffend within a short time.

The horrible murder of Mary-Anne Leneghan in Reading prompted headlines that the killers were 'under probation supervision'. What realistic chance did Probation have of preventing this tragedy, at least in the case of the gang members who had committed low-level offences? The Monckton case was another horror story, but the bottom line is that the killer had been released from prison and Probation could only monitor him at best, although of course even that went wrong.

The practical effect of all this will not, as it should, be to allocate more resources to Probation, but rather to cause a panic reaction that will make parole less likely and community sentences less used - in flat contradiction to the Lord Chief Justice's thoughtful policy that I have mentioned recently. Then watch out for the headlines as the prisons fill up in six months' time.

Another Good Link

All judges and magistrates, along with such people as tribunal chairmen are now officially members of one judiciary. We even have access to our own notepaper (generic rather than personalised for thse of us who toil in the lower courts) because it seemed wrong that a bench chairman (for example) writing a letter in his official capacity had to have it typed either using his home address or Her Majesty's Courts Service letterhead. The judiciary has its independence enshrined by law, so it must be right that we keep our distance from the civil servants in HMCS.

There is a new website that contains lots of useful information about the system, and attempts, as does your humble servant, to dispel myths and misconceptions about the courts.

Judicial independence is likely to come under increasing pressure in the short to medium term, so it is very important that the public understands what the judiciary is doing in its name.

Too Good To Miss

Harry Hutton, who must, on a good day, be one of the funniest writers on the Web, has come up with this.

The comments are priceless, but beware, once you follow the link you can kiss goodbye to the next half-hour!

Apocrypha (17)

I have a friend who, while a Brit (well, a Scot, actually) has made a successful career with an American company.

We were discussing the NHS the other day, and he came out with a lovely phrase:-

"The trouble with the NHS is that it has too many people hiding in the weeds".

I may well borrow that phrase when the occasion arises.

Ex Kidderminster Semper Aliquid Novi

Someone on the Kidderminster bench has sent news of a case involving an offence that had never before been alleged before any court.

It's always interesting to break new ground, and to watch the lawyers leafing through their books. The bench had no previous cases to help them, so I imagine that they fell back on Mark One common sense, just as they should.

Just A Thought

Whenever the criminal law is discussed, here or elsewhere on the Interweb thingy, it will only be a matter of time before someone brings in the subject of speed cameras, the King Charles' Head** of legal debate. Speeding motorists and recreational drug users seem to be the two groups of habitual lawbreakers who want their activity either legalised at best or ignored by the authorities at worst. Of the two groups it is arguable which causes less harm.

**For those puzzled by this, have a Google for Mr.Dick, in 'David Copperfield'.

I Entirely Agree, Your Lordship

The Lord Chief Justice recently spoke:-

He also took a swipe at newspapers that he said had an agenda “to persuade the public that judges are soft on crime, that no prison sentence is long enough and that a sentence which does not involve imprisonment is no sentence at all. The only purposes of sentencing which they recognise are punishment and deterrence; rehabilitation does not enter the picture.”

The tabloid press has, in my view, had a nasty and corrosive effect on public debate and perceptions about crime. A constant repetition of untruths and misrepresentation has led too many people to have a seriously distorted view of justice.

A Question For The Criminal Lawyers

The Anti-Social Behaviour Order can be a useful tool and properly applied can relieve people from the intolerable behaviour of others, but in the early days of the ASBO law these Orders were liberally scattered around, sometimes with ludicrous effect. There are examples here, and CrimeLine has a first-class summary of the current legal position. The higher courts are gradually getting a grip and setting out guiding principles for ASBOs that will serve to avoid some of the wilder and more oppressive uses of the Orders.

That still leaves us with many Orders made before senior wigs started to impose some sense, and there are daily injustices taking place as a result. I have blogged about an obnoxious drunk who has now served three six-month prison sentences for offences that in themselves are invariably dealt with by a fine.

More recently I have seen an alcoholic who was found in a stupor by police who had been called by passers-by who were concerned about him. Police ran checks and found that he was on an ASBO that forbade him, inter alia, to be drunk in a public place. Although he committed no nuisances or offences he was (properly) arrested for breach of the ASBO Since he is drunk 24/7 that order amounts to effective house arrest. Probation have said that the ASBO is unworkable and that repeated breaches are inevitable (in the trade, that’s what we call setting people up to fail, and we see it as a Bad Idea).

So we pushed the envelope a little when we dealt with him, but he will be back, and he will inevitably end up in front of a bench that will put him in prison. Prisons have more important things to do than to warehouse alcoholics. This man’s problem is primarily a healthcare matter, not criminal.

So my question to the criminal lawyers out there, is why aren’t we seeing applications to vary these old ASBOs, to bring them in line with current law? There are provisions for a court to consider applications to vary (I believe that written notice is required) but I don’t know of anyone who has seen one.

Me Jealous? Never!

The Judicial Salary Structure is now available on the DCA website (figures at 1 Nov. 2006).

Examples are:

Lord Chief Justice: £225,000
Lords Justices of Appeal: £164,400
High Court Judges: £162,000
Circuit Judges: £120,300
Senior District Judge (aka Chief Magistrate) £129,900
District Judge (Magistrates' Courts) £96,500
Justices of the Peace: Unpaid

This isn't a grumble or an appeal to be paid. I knew the terms when I applied for the job, and to move towards paying JPs would change the character of the bench, not for the better.

I list these just to show how modest the pay of our top judges is, both by comparison with executives in private industry, and especially with lawyers in private practice.

For a senior QC to give up practice and go on to the Bench may involve a salary cut of up to 70%. Of course they won't starve, but nevertheless they aren't in it for the money.

(Later...)

I have been taken to task for seeming to suggest that a hundred grand a year isn't a lot of money. Of course it is, given a national average for those in work nearer to £24,000. But read what I said again. Pay for senior executives in business has soared to enormous levels in recent years, and a million-plus is now commonplace in the boardroom. Senior barristers and solicitors, who are the cadre from which many judges are appointed commonly earn many hundreds of thousands of pounds a year. Those who instruct and pay them presumably think that they are worth it. Those who join the Bench will receive much satisfaction, and even the chance of a handle to their name, but the money will still be way below what they could get elsewhere.

All-Time Great Legal Jokes no. 737

A businessman who was staying in a strange city was late getting to his hotel. As he drove through the grubby streets he realised with increasing urgency that the takeaway curry he had eaten a couple of hours before was not agreeing with him. Teeth and buttocks clenched in unison, he drove on, desperate to find a public toilet.
Close to despair, he decided that if he had not found a toilet in three minutes he would resort to a dark alley or a shop doorway to do that which had to be done.
As he pulled up at a traffic light he saw, across the road, a blessed sign:-
GENTLEMEN
He carefully looked up and down the road, and without waiting for the lights to change to green he crept the car across the junction. He undid his seat belt, got out of the car, and as he went to go into the toilets he felt a heavy hand on his shoulder. He looked round and saw a pointed helmet atop six-foot-odd of blue serge uniform.
"Excuse me, sir" said the helmet's wearer. "Didn't I just see you cross a red light?"
"Officer, I'm sorry, but I'm desperate to find a shithouse".

"Well you've found one" replied the officer, taking out his notebook and biro. "What's your name?"

Snippets

We worked our socks off during this week's sitting. We dealt with a fascinating mix of remands, bail applications, sentences, committals, the lot. One particularly juicy case is sadly not bloggable, so I shall have to save it for my memoirs. It was a late sitting as the police kept on bringing in new custody cases. I asked the usher how we were doing at about a quarter past three, and she told me that we still had eight downstairs in the cells. We couldn't get help from another bench, because there weren't enough security staff to work two courtrooms.

One man came in from overnight custody, and his solicitor went through the motions of applying for bail. His client's previous was handed up and we saw that the 32 year-old had 140 previous convictions, 97 of them for burglary. The only gap in his offending record was during the two and a half years he had spent in prison. To quote the Bail Act, we had 'substantial' grounds to fear that he would commit further offences, so as I type he is sitting in a cell somewhere.

A member of one of our troublesome local families came in and pleaded guilty to refusing a breath specimen at the police station. He claimed to be earning £150 per week as a gardener, but as my colleague had just paid £50 to have her hedge trimmed we took that with a pinch of salt. He didn't blink when we fined him £300 and £75 costs, but when I told him that he was disqualified for two years he tried to argue the toss. That is a complete no-no and I cut him off very firmly, at which he said that he would appeal. "You have 21 days to lodge an appeal if you wish" I said. "The office will give you a form". "I'll do it now" he said, and left with ill grace.

He left without picking up a form.

Another Cautionary Tale

What little law I do know is almost all to do with the criminal courts. My knowledge of civil law is sketchy and when in doubt I will ask one of the lawyers among my friends and family. I never give legal advice, except for one thing:-

Do Not Sue. Ever.

This story from today's Telegraph is about a stubborn battle over a right of way that has cost the parties - wait for it - an estimated six-figure sum each in legal fees.

These disputes have a way of escalating into matters of principle, and none but the multi-millionaires among us can afford principles like that.

The law rarely delivers a result that pleases everyone (if you don't count the lawyers who have the meter running).

Don't go there. Misery and penury may be the result.

More Police Brutality

To the English language, that is.

The latest atrocity came during a trial when a PC was giving evidence of an attempt to handcuff the suspect, who was struggling wildly. We heard that the PC struck the suspect's leg with his knee, in "a technique that we are taught to disfunction him".

Call me Mr. Picky, but I couldn't let him get away with such a dreadful example of inappropriate verbing.

I shall put 'disfunction' into the Hall of Shame along with 'forensicate' and 'custodise'.

Phew!

We had a drink-driver in a couple of months ago who had blown, believe it or not, a little over five times the limit on the EBM machine.

We allowed him an adjournment to seek expert advice as to whether the medication he is on might have caused some chemical process that would have confused the machine. If the expert comes up with anything worth putting in front of a court, then the Crown will have to put in its own expert.

By now his report will have been completed, but I am unlikely to find out what it says, or where matters go from here. I have never seen a single successful defence based on medication - even baby's gripe water which someone tried once (it's 5% alcohol, you know).

Don't Say I Didn't Tell You

In this morning's Times we read that the Prime Minister proposes, as he has previously threatened, to allow police officers to impose Instant ASBOs.

In his eagerness to clamp down on small-time disorder (of which he knows nothing, other than what focus groups tell him)he has actually managed to go further than the police themselves think sensible. That takes some doing, given the propensity of so many senior officers to demand ever-greater powers.

So a person hauled off the street will be given, before he leaves the police station, an Order, the breach of which will carry up to five years in prison. He will be able (at least until the next Downing Street bright idea comes along) to dispute the Order in court some weeks later. In the meantime, he is at risk without his case having been considered by the Impartial and Independent Tribunal that is such a proud centrepiece of the Human Rights Act.