CRB Nonsense

The rise of the Criminal Records industry has been phenomenal over recent years, and very many jobs now require your record to be checked. It may do a little good, or a little harm, but no matter, it keeps the Bureau's staff in employment.
I have just posted off a CRB request for myself, enclosing the usual proofs of identity (although I refused to supply my bank details - that's a question too far for me). The charity for which I shall be doing a few voluntary tasks will be charged over £50 to check up on the background of someone who has been a JP for more than 20 years, and whose background is routinely checked by the authorities. A simple letter to my Clerk could prove that I am in good standing.
What a waste of time and money!

Fair Enough?

It was about ten past four this afternoon, at the end of a varied day's work that had seen us deal with a range of cases, resulting in a twelve months' sentence here and a conditional discharge there.
Sean Kennedy walked into the dock, a gangling young man with ginger hair. His eyes met mine, and he and I knew that we had seen each other before on more than one occasion; him in the dock and me on the bench.
I won't go into the details of the offence - Sean pleaded guilty straight off. It wasn't very serious, and it just served to confirm his long record of previous convictions. Sean has a short fuse, you see. He has next to no previous for violence, beyond the odd difference of opinion in the pub, but he tends to kick off when he becomes frustrated - as he does. He rants and raves, using lots of foul language, and eventually a PC has had enough and arrests him. He was anxious to tell us his story, and I gave him a fair chance to do so. He pleaded guilty, and accepted, when I questioned him, the elements of the offence.
He had a point, and was indignant about the police, and we could understand why he was cross, even though the officers had acted entirely correctly. Sean simply hadn't understood, because of his crossness. After he had had his five penn'orth I told him that we had listened to his story and that it did not amount to a defence, but that we would nevertheless fine him at the bottom end of the scale. He still wanted to talk about his grievance, but I stopped him there and reminded him that we had already cut him a lot of slack.
So we fined him and off he went. I don't know if he felt fairly done by, but I hope so.

Deterrence

One of the most fundamental issues in the debate about crime and punishment lies in the part played by deterrence. We can all understand deterrence: at home, at school, in my working life, I was always aware that unacceptably bad behaviour would have unpleasant consequences for me. As a simple example I am so anxious to avoid a wheelclamp that I am meticulous about where I park. It isn't worth the risk, in my view.
Unfortunately, for someone to be deterred, he needs to have the ability to make a rational assessment of the pros and cons of his actions, and that ability is missing from the majority of the people who appear in my court. Many politicians and journalists simply fail to grasp this basic fact, and that's why we see so much nonsensical law making, that plays well in the pub, but has not the least effect on offending.
Cannabis is now class B rather then class C. This has the effect of increasing the potential penalties, but does anyone, even the most rabid hanger-and-flogger, expect that this will change the behaviour of pot smokers? The penalties for importing and trading class A drugs are awesome, but the amount of the stuff on the streets shows a steady increase. The same applies to so much criminal and antisocial behaviour - adjusting penalties doesn't seem to make a lot of difference when a young man (it usually is a young man) high on drink or drugs kicks off and attacks someone or something. You could make the same point about drink-driving; the penalties are severe, and there is a minimum sentence prescribed by law that can devastate the life and career of some people - nevertheless, as I type this there are thousands of over-limit drivers wending their way home from the pub.
Not simple is it?

More Power to the Quangocrats

This is a bloody disgrace, even by the standards of the unprincipled oafs infesting Whitehall.

More Straw

From The Times, a piece that reinforces the view that so long as the present Government is in office the tabloids will rule the country.

Legal Update

Thanks to the excellent CrimeLine for this:-

Cannabis is reclassified as a class B drug with effect from 26 January 2009. Reclassification of cannabis to a Class B drug has a number of consequences in terms of maximum penalties. For possession of cannabis as a Class B drug, the maximum penalty on indictment increases from 2 to 5 years’ imprisonment. On summary conviction, in respect of which the majority of possession cases are dealt with, the maximum imprisonment penalty remains the same at 3 months, although the maximum fine that the Magistrates’ Court can impose increases from £1,000 to £2,500. For the supply and production offences for cannabis, the maximum penalties on summary conviction increase to 6 months’ imprisonment and/or a £5,000 fine (from 3 months and/or a £2,500 fine respectively). The penalties for other offences relating to cannabis are unaffected, including the maximum penalty on indictment for supplying or producing cannabis of 14 years’ imprisonment and/or an unlimited fine.

That should do it, then. The menace of marijuana is as good as defeated.

Probably.

Here's a piece from The Times, describing the chaos.

Full Matthews Judgment

The Judge in the Matthews Trial has published his full sentencing remarks, and they can be found here.

Charlie

Charlie was already an old man when I met him, and he had a reputation among the neighbours for being a rather private man, and a bit prickly on occasion. We became firm friends after a while, and on a summer Sunday my wife and I would often sit in his garden with Charlie, his wife Mary, and a glass or two of of beer or whatever. Charlie had been a teacher in his time, and by he time that I met him he had been retired for about twenty years.
One day Charlie arrived at my door looking unaccustomedly worried, and asked if he might have a private word with me about a legal problem. Of course I agreed, and we retired to sit in my study. He showed me a bundle of papers that turned out to be his car insurance renewal documents, and told me that he was very worried about them. The renewal invitation contained the usual reminder that any criminal convictions or motoring incidents had to be declared. To my amazement, Charlie told me that he was worried sick about this, because he did in fact have a conviction that he had never declared to his insurers, and what should he do. Would he get into trouble?
It turned out that Charlie was a regular soldier in the Thirties, rising to the rank of Sergeant. When he was posted to a particular camp he discovered that his predecessor had a fiddle going with a civilian contractor, and Charlie allowed this to continue. He was caught, convicted in a civilian court, and served twelve months in prison. Thereafter he returned to the colours as a private, war being imminent, and soldiered through the war until 1946, when he trained as a teacher and taught handicrafts until he retired.
I reassured him about the Rehabilitation of Offenders Act, and I went on to say that it was almost certain that no record remained of his conviction. Further, I said that there was not the slightest chance that his insurers or anyone else would be in the least bit bothered about a conviction from more than sixty years ago.
After he had gone, I pondered the contrast between this decent and hard working old man who had literally lost sleep over an ancient conviction for which he had long since paid the price, and the insouciant yobs who swagger into court accompanied by a list of fifty or more previous convictions, and who no doubt sleep soundly in their beds.
I can write this because Charlie and Mary have both passed away, leaving no descendants or relatives, and donating their valuable house to a charity. I still miss them on a summer Sunday.

Hail to the Chief

As for our common defence, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake.

So said President Obama in his inauguration speech. The United States has a written Constitution, the United Kingdom does not, but our nations share many fundamental principles in their legal and political systems.
In recent years, driven by fear of terrorism and of crime this country has almost casually tossed aside many of the ancient and hard-won freedoms that our fathers enjoyed.
I sincerely hope that one day soon my country will again be led by those who understand and value our ancient liberties, and who, like President Obama, will not sacrifice our ideals for expediency.
Good luck, Mr. President.

Cynical

Here is a photograph of a convicted criminal, taken by another convicted criminal, using an illegally-held mobile phone that has somehow found its way into Pentonville Prison. The Sun has almost certainly paid a fair bit of money to the second convicted criminal (or 'lag' as the Soaraway Sun terms convicts) thus enabling him to benefit both from his original crime and his blatant breach of prison rules.

The Sun runs a section called 'Sun Justice'.

This is what it looks like.

Bungs and The Bill

A Parliamentary Committee has deplored the common police practice of tipping off the press about anyone famous who comes under investigation, which is why we so often see police raids shadowed by camera crews. I seem to recall that the Editor of The Sun admitted to MPs a while ago that her paper pays police officers for information.
It's corruption, pure and simple. A tip-off is worth a 'drink', a major scoop is worth a 'bloody good drink'. Will anyone do anything to stop it? What do you think?

So Farewell Then

I was sorry to read of the death of Sir John Mortimer, QC, barrister, playwright, and all-round liberal bon viveur. I have read most of his books and plays, and I heard him speak at a Law Society do some years ago.
He was of course, as the obits. have said, a champagne socialist, but as he was only spending money that he had earned himself, I can't think any the less of him for that.
His occasionally affected manner could conceal his real love of liberty and of freedom under the law. As a lifelong liberal and a distinguished lawyer (but always for the defence) the authoritarian posturings and legal tinkerings of the 1997 New Labour government, elected with such high hopes, must have broken his heart. Civil liberties are deeply unfashionable at the moment, thanks in no small part to the corrosive and dishonest campaigns run buy such tabloids as the Mail and the Sun - the latter never uses the word 'liberty' without the preface 'diabolical'. We shall miss Mortimer: let us hope that the Bar continues to bring forward advocates who are fearless in the defence of liberty, and let us hope that it is not already too late for them to save our ancient freedoms.

I had a glass of house claret in El Vino's a few months ago, and I could only think of it as Chateau Thames Embankment: thanks, Rumpole.

Later - here's an article by a former client.

More on POCA

We ordered a sum north of £100,000 to be forfeit under the Proceeds of Crime Act recently. The chap who was found to have it offered three different accounts of its provenance in the first half hour of his chat to the police, and was caught out in two obvious lies.
My colleagues had previously detained the money, three months at a time. Today solicitors sent a letter to the court saying that the forfeiture application was not opposed. So two flourishes of my pen to produce my special can't-read-it court signature and the dosh was on its way to Alistair Darling's eager and sweaty palm. Okay, he still has a few billion to go, but every little helps, as the ads say.

Family Business

Frances Hoare succeeded Johanna Senior as Chairman of the National Bench Chairmen's Forum on January 1.

This rather bald announcement on the Judiciary website speaks for itself. What it does not say is that the National Bench Chairmen's Forum is becoming increasingly important in passing the views of ordinary JPs to those running the system, and is seen in some quarters as being a bit less cosy than the Magistrates' Association is sometimes said to be. It also does not say that Frances, whom I know, is the daughter of the late Lord Hailsham, sometime Lord Chancellor.

Suppressio Veri, Suggestio Falsi (Again)

The Sun has the perfect tabloid take on this story in which a witness had her evidence rejected because she was 'too honest'. Anyone with a passing knowledge of criminal law would realise that identification evidence (which hers apparently was) is notoriously fallible, and is hedged around with case law, in particular R v Turnbull, a case that every magistrate hears about sooner or later. Unless I am mistaken the judge felt obliged in the interests of justice to call a halt, since her ID evidence was legally just too thin, and her manner all too convincing - she was almost certainly telling the truth, but the dangers of the ID were overwhelming and the Court of Appeal waiting in the wings.
So fasten your seatbelts for a tabloid-led chase, with the out-of-touch old duffer in the wig being pilloried for being so horrid to such a nice girl who has been wronged by such a nasty man.

The Sun's readers' comments are often beyond parody:- just scroll to the bottom of the Sun article. (link was a bit dodgy - sorry).

More on Dogs

I signed a death warrant the other week. I have never done one of those before, even for a dog, which this was. After the initial chaos of the hastily cobbled-together Dangerous Dogs Act, rammed through Parliament by a Tory Government in a tabloid-inspired scramble (that must have impressed Tony Blair, since he went on to enact many of his own measures in a similar manner and for similar reasons) it proved cripplingly expensive and legally treacherous to define what was a pit bull or what was not. Many hundreds of thousands of pounds were wasted on vets' fees, kennel fees, lawyers' fees and the rest as dog owners and the police argued the toss. Now things are simpler, as certain police officers, usually experienced dog handlers, are trained and authorised to identify a dog as being from an illegal breed. Once the police have picked up the dog, it would be illegal to return it to its owner, as the proscribed breeds can only be so returned on the authority of a magistrate.
I can't say too much about this latest case, but reading between the lines, I reckon that the 'owner' was in fact minding the dog for a tougher and nastier person who was using the dog to add street cred to his drug dealing business.
If the Dangerous Dogs Act had worked as planned, there would be no pit bulls left by now, since neutering was mandatory, and the life cycle of a dog would have seen the breed disappear. Sadly, there are still many clandestine breeders (I have seen one with 23 pit bull pups in a 1-bed maisonette!) sustained by the demand from small-time hard men on the druggy estates.
Still, there's one fewer pit bull now than there was a few weeks ago.

Confused of Ealing Broadway

Every day in pretty much every magistrates' court in the land, we see people who use heroin, or sell heroin, or steal to get the cash for heroin. Our armoury of disposals includes fines and more often community penalties or suspended sentence orders that include mandatory drug treatment. As a country we spend many millions on enforcement, rehab, prison, and paying for the crime committed by and for addicts.
So what are we supposed to make of this piece in the Spectator, written by the respected Theodore Dalrymple (aka Dr.Anthony Daniels) who is a retired prison doctor. He is a doctor, I am not. His assertions are in flat contradiction of the accepted models of dealing with heroin users. What's going on?
I remanded a heroin user last week. She was 40 and looked 60. I let her sit down in the dock because she was shivering, her eyes intermittently closing as she tried to stand between the guards. "I'm clucking" she slurred. She was wanted at another court so we sent her into custody, and she thanked me, presumably because she was going to get a few nights' kip (she was a rough sleeper) a shower a meal and perhaps Methadone.
Should we be cruel to be kind, or is Dalrymple way off-beam? I am not qualified to comment, but I wish that I were.

Ooh! You Are a Caution!

The seemingly unstoppable march of the Conditional Cautioning régime continues. It suits the Government's priorities to have what it sees as 'low level' crime dealt with behind closed doors by the police and the CPS, without the inconvenience and old-fashioned formality of a court appearance. If the 'cautionee' (I can't call him a defendant, because he isn't being defended) fails to abide by the conditions then he will be charged with the original offence, and this has to be done within six months. These cases are now trickling into the courts, and JPs are having to get to grips with where they fit in to the great scheme of things.
I saw one last week that irritated even my always-reasonable self. I can't remember what the offence was, but the conditions of the caution were to pay compensation (I have no problem with that: paying a victim for harm you have caused is about as near as we get to natural justice) and to write a letter of apology to the victim. Admittedly I was a bit grumpy, possibly because the courthouse heating had packed up again and the people in the well of the court were all in outdoor clothes; but what idiot dreamed up the idea of making miscreants apologise? (If someone uses the words Louise and Casey I shan't be surprised; that woman is to the justice system what Goering was to Coventry).
Most who appear before magistrates, especially if you exclude traffic cases, are of limited or zero literacy, and couldn't possibly write a letter to anyone without prompting. And how sincere will the letters be, bearing in mind that they are being written at the behest of a copper or a CPS functionary?

Dear Mrs. Smith, I am just riting to apog no aplo no, i mean say sorry that i done what i done on saterdy look on the brite side i say. cars are well cheap at the mo an you orter get anuvver crappy old Rover well under a monkey. So im sorry, really. im sending you five pound a week outa me jobseekers as soon as im old enuf to get some thats if i dont go to Feltam first. sinserly yors Darren

Perhaps we need to devise a simple pro-forma with boxes to tick denoting various levels of apology. Bah!

Stop Press: One More Slice From Salami

From the Times:

this depressing piece.

One day later, here's a piece from the Telegraph about the plethora of new imprisonable offences, most of which represent gesture politics.

What a Life

We dealt with a cannabis farmer the other day - remanded in custody. He was Vietnamese, as are about ninety percent of people charged with this offence, and the converted house that he was looking after held 180 cannabis plants. He was just a low-level operator of course - we rarely if ever see the big boys. He is looking at anything up to 14 years, but five or so is more likely.
While the interpreter was being sworn in I had a glance at the list and saw that our man had been born in 1970. So he was about 5 when Saigon fell to the North Vietnamese and the Americans left in their helicopters and their big jets.
He's seen a few changes, hasn't he? His war-torn country, reunified by force, slipping over time into a quasi-capitalist then a more-or-less capitalist economy. By the 21st century he had decided to become an illegal immigrant to the UK, and paid his way by farming dope for a (partly) grateful English populace. Now he will have some years' exposure to English culture in prison. I am pretty sure that I know which will be the first word he learns, as he gets to grips with the language of Shakespeare.

Don't Punch A & E Staff (Unless You Are in Wales)

I am grateful to CrimeLine for the following guidance, issued today:-

Section 119(4) Criminal Justice and Immigration Act 2008 came in to force today; as a result the offence in section 119 became operational (see section 153(5) of the Act for commencement provisions). Note however that at the present time the offence is not applicable to Welsh NHS premises.
Section 119 creates a new offence of causing a nuisance or disturbance to NHS staff on NHS premises. It addresses behaviour which disrupts NHS staff in the performance of their duties and affects the delivery of healthcare. Penalty = level 3 fine.
Subsection (1) sets out the required elements of the offence. In order to commit the offence, a person must, without reasonable excuse, cause a nuisance or disturbance to an NHS staff member whilst on NHS premises.
A nuisance or disturbance can include any form of non-physical behaviour which breaches the peace, such as verbal aggression or intimidating gestures towards NHS staff. A person will not commit the offence if he or she has a reasonable excuse for causing the nuisance or disturbance or refusing to leave the premises. Behaviour consequential to the receipt of upsetting news or bereavement may, for example, constitute a reasonable excuse. A nuisance or disturbance must be caused to an NHS staff member, rather than any other person. At the time the nuisance or disturbance is caused, the NHS staff member must either be working at the premises or be there for some other purpose relating to his work, such as travelling to work, walking between buildings or taking a break. The nuisance or disturbance must be caused on NHS premises.
If the conditions in subsection (1)(a) are satisfied, the person may be asked to leave the premises by a police constable or NHS staff member. If the person refuses to leave without reasonable excuse, then the person may commit the offence. A reasonable excuse for not leaving the premises may, for example, include a situation where a dependent is on the premises concerned and the person causing a nuisance or disturbance has a responsibility to remain on the premises with this dependent.
Subsection (1)(c) provides that a person who is on the premises for the purpose of obtaining medical advice, treatment or care will not be able to commit the offence. Patients and those attending for consultations, to collect medication or test results or convalescing after treatment will not be able to commit the offence.
Subsection (3) sets out the circumstances in which a person will not be regarded as legitimately on the premises for medical purposes. It provides that a person that has received medical advice, treatment or care, or who is seeking medical advice, treatment or care which he or she has been refused less than 8 hours before is not on the premises for the purpose of obtaining medical advice, treatment or care and is capable of committing the offence.
Subsection (4) outlines the scope of the offence by defining the terms "NHS premises", "NHS staff member" and other related terms. NHS premises refers to both English and Welsh NHS premises. "English NHS premises" refers to any hospital owned or managed by an English NHS Trust, Primary Care Trust or NHS Foundation Trust and includes buildings, other structures and vehicles located on hospital grounds. "Welsh NHS premises" refers to any hospital owned or managed by a Welsh NHS Trust or Local Health Board and includes buildings, other structures and vehicles located on hospital grounds. "Vehicles" may include, for example, ambulances or air ambulances but do not fall within the definition of "NHS premises" when they are outside hospital grounds. The definition of an NHS staff member includes staff who are not directly employed by, but work for, the relevant English or Welsh NHS body. These could include agency workers, contractors, students or volunteers.

Any hairy-arsed old custody sergeant could find appropriate charges to deal with this kind of behaviour. Why has Parliament wasted time and money enacting this rubbish? Surely it's not aimed at tomorrow's tabloid headlines?

I have nothing to add - 2009 deserves a better start then this.