Rethink Needed

Some commenters think that I have an agenda to criticise the Magistrates' Association. Not so - I have been a member since the 1980s. It is,however, fair to say that I have not been very active, but that is due not to a lack of interest; rather to simple logistics. The western bit of London falls into the Middlesex Branch of the MA, despite the fact that Middlesex disappeared as an administrative entity in about 1964. The Branch meets, for the most part, in Bloomsbury, which is a mighty hike from where I live. I have just had my invitation to a 650th anniversary dinner at a super Central London location, but at £50 a ticket, plus travel and extras it's heading for a £200 night out - too much for this NEET.

My bench has had little to do with the MA since I joined, but until the branch structure is sorted out it is likely to stay that way.

Still Puzzled

A few months ago I had a bit of fun with a poll on the MA website in which the question was of Jesuitical obscurity. Well, it's still there, and the number of responses has rocketed to 335 with 50.1% yes and 49.9% no votes (or was it the other way round?). Anyway, there's only one vote in it, which suggests that many magistrates find the question as puzzling as I do.

For What It's Worth, M'Lud, I Agree

With this

Dipso Facto

The usher came in and bent down to whisper in the Clerk's ear. A quick nod, and the clerk turned to me: "Watch the next one sir, he's drunk", and so he was. He staggered into the dock, and stood casting a bleary and uncertain eye towards the Bench. He slurred his name and address, and had a problem recalling his date of birth. His solicitor told us that she did not feel that her client was ready to get on with the case, and asked us to put it back until the afternoon. I didn't think from the state of him that would be nearly long enough. The solicitor suggested a one-day adjournment and said that he would promise to turn up sober in the morning. I caught a glimpse of the man's father who was sitting on the gallery shaking his head vigorously. I spoke to the Clerk, sotto voce: "any reason not to remand him in custody for 24 hours?" "No sir, that would be for his own protection". As soon as I saw the two Serco officers appear I told him that he was remanded until tomorrow, but it didn't seem to sink in at first. "Come on this way" said one officer, "and we'll get things sorted out". It looked as if he was going to kick off, but he moved unsteadily towards the door to the cells, growling "Don't touch me" at the officers.
I later heard that I wasn't Mr. Popular downstairs since a major mop-and-bucket job had been required to clean up after him (our cells lack toilets or sinks, being designed for short-term use).
He will probably be sober by tomorrow, but he will equally probably have a foul hangover. I wish my colleagues luck with him.

Loophole Schmoophole

Martin has kindly drawn my attention to yet another celebrity-gets-off story.
It is always offensive when someone buys himself out of a criminal case because he is rich - Dickens would have wearily recognised many such a case. These days being famous is almost as good as being rich, since fame is the new aristocracy.
But however much that may rankle, we have to remember that the likes of 'Mr. Loophole' (yuk!) don't make new laws, but rather point out the incompetence and inefficiency with which the police and CPS sometimes assemble cases and present them in court. There are very few real loopholes; there are plenty of sloppy late-night, tired-and- just-going-off-shift police cock-ups and many CPS files that are handled casually and carelessly.
A properly considered and reviewed case that fits the CPS' criteria is unlikely to fail in court. Sadly, that is becoming an endangered species.

How Many Magistrates Would Have Done This?

The driver in this case did a great deal better than he would have done before most magistrates I can imagine. I shall make a note of his defence brief in case I ever need one; he must be very good indeed.

Survey

How would you sentence these hypothetical cases?

1) A private-hire driver has photocopied and laminated a Disabled badge, and uses it while dropping customers off at the airport. None of them is disabled.

2) A private-hire driver has his mother-in law's Disabled badge in the vehicle and uses it while dropping customers off at the station.

3) A fit young man uses a Disabled badge that he bought for £100 in the pub, to avoid the inconvenience of finding a parking space.

This offence is only fineable, they each plead guilty, and for today's purpose they each claim to be earning £350 per week.

CPS ask for £70 costs and the Surcharge has to be £15, unless there is good reason otherwise.

Don't Overdo It

This case is one that I make no apology for lifting from the Daily Mail because it is the Mail's analysis that will remain embedded in the public consciousness, following journalism's Gresham's Law that bad reporting drives out good. On the face of it, it must be wrong for a victim to have to compensate the man who stole from him, but this was one of those cases, like the one a year or so ago where a householder pursued a burglar down the street and battered him into brain damage in which the reaction to being a victim was disproportionate and excessive. English law is perfectly capable of dealing with legitimate self defence, and even makes allowances for the heat of the moment, but the reaction has to be in proportion to the crime.
I feel sorry for the man who was robbed, (I am reminded that he wasn't robbed in the legal sense, rather cheated) but he has to understand that he just went too far, and that has cost him a lot of money. It sticks in one's craw to see a low-life thief rewarded, but it doesn't take much to turn a criminal into a victim.
Mind how you go, now.

Busted Flush

I have it on good authority that a court in Kent today suffered a failure of the water supply to its toilets, forcing the judiciary, staff, lawyers, witnesses and defendants to pop out to the public conveniences when the need arose.

This is a high-minded and serious blog, so I don't want to see any unseemly comments.

Or do I?

(By the way, I have just realised that 95% of the comments that praise the seriousness of the blog go on to give me a bollocking about something I have either written or allowed into the comments).

Dramatis Personae (4)

The opportunity to study my fellow man is one of the perks of being on the bench. A court is a high-stress environment for most people, and my aim is to deal humanely but efficiently with the business before us; an orderly court allows us the space to consider our decisions carefully and within the bounds of the law and our guidelines, while exercising our discretion whenever appropriate.
For most of my time on the bench the wheels have been oiled by the omnipresent local defence solicitors. Contrary to saloon-bar and tabloid prejudice one of the most important functions of the criminal solicitor is to confront his client with the unpalatable truth, and to persuade him to plead guilty when the evidence against him looks solid. The defendant gets a third off his sentence and the court can move on to the next case. The idea that lawyers encourage not-guilty pleas to increase their fees is almost complete nonsense.
Legal aid at the lower level is on the way out, and courts are seeing more and more unrepresented defendants. As a consequence we are seeing an increase in the number of hopeless not-guilty pleas. In addition, where cases do come to trial, they take an age to get through because the man in the dock has to have everything explained to him s-l-o-w-l-y. There is no shame in that: law is a specialised subject.
Legal aid restrictions have now come to the Crown Court too. Judges are accustomed to speaking to other lawyers in the elaborate argot of their calling, thus finding it hard to get across to Tony, a truck driver, that his case was as healthy as the Monty Python parrot.
I felt sorry for Tony and for the judge, at a recent appeal hearing. Tony was guilty of a technical offence regarding his HGV driving hours, and had in fact pleaded guilty down in the mags' court. But he was honestly confused, and he couldn't see why the law hadn't been explained to him before he broke it. The judge's kindly explanation of the principle that ignorance of the law is no excuse went straight over Tony's head. Similarly, telling the bewildered trucker that his offence was one of strict liability might as well have been expressed in Swahili for all the good it did. Hizonner explained that there appeared to be no germ of a defence, but that Tony's unhappy expostulations might amount to mitigation - all fell on deaf, or rather uncomprehending, ears. He simply did not understand that the kind of case that you make to your friends at work or in the pub is utterly foreign to a court. He was given various options, in deference to his lay status, and unerringly plumped for the wrong one. His body language started to express his frustration, and at the inconclusive end of the hearing he gathered his papers, muttering "I think I'll top myself" in his heavy West Midlands accent.
A local brief could have taken him on one side, explained the facts of life, and pointed him in the direction that was in his best interest. There will now be at least two more court hearings, with Tony travelling south each time. Tony is not a wicked man, nor a stupid one; he was simply out of any environment he could understand. A brief would have been hundreds of pounds cheaper than what is going to happen now.

Well, Well.

One of the areas in which magistrates still have wide discretion is in the matter of costs and compensation. I recently sat on a Crown Court appeal against sentence, and we decided to vary the fine and costs imposed in the lower court. The CPS counsel stood up and pointed Hizonner in the direction of a passage in Archbold that says that the Crown Court has no power to alter a costs order made below, so we were obliged to leave the figure at the level ordered by the sentencing magistrates.
I never knew that, and nor, for that matter, did the judge.

Surprise, Surprise

Apparently this particular bit of panic law-making didn't work.

Quote

For no particular reason I stumbled across this quotation today:

"Cops are just people," she said irrelevantly.

"They start out that way, I've heard." he replied.


Raymond Chandler - "Farewell, My Lovely"

Good isn't it?

Malice or Stupidity - It's One Or The Other

The unlovely 'Sun' piles into Ken Clarke today, in the following terms:-

TWO terrifying court cases sum up why Ken Clarke is not fit to sit in the Cabinet.

Case One: A thug, 17, who stabbed three teenagers and put one on life support, waltzes free from court.

Case Two: Another thug of 17, who laughed as he kicked an unconscious man so hard he cracked his bones, is given just 10 months' jail.

Both sentences are pathetic. But both are in line with the Justice Secretary's craven policy of going easy on yobs.

A real Justice Secretary would have been bellowing with rage yesterday, demanding explanations from both courts and calling for the sentences to be stiffened.

From Ken Clarke, silence.

The silence of the damned useless.

The Right are of course after Clarke as a way of expressing their rage and frustration at not having a 'proper' full-on Tory government, but nevertheless the paper has no excuse for wilfully ignoring the fact that courts are independent, and the Justice Secretary has no more business than any other minister to criticise a particular judgment or call for it to be amended, and also omitting to mention that 17 year-olds are children for the purposes of the criminal law and there are completely different rules for dealing with them as opposed to adults.

Family Values

I heard the other day on the gossip circuit that some prospective magistrates have been asked at interview what they would do if they found that their child had been using cannabis. Apparently the 'correct' answer is that you should report them to the police.
Well, if I had been asked that at my interview all those years ago, you wouldn't be reading this now. I am glad that my son and daughter, who are now in their thirties, have never, to my knowledge at least, been involved in the drug scene, although it would not be surprising if they had taken the odd puff at university - I just don't know and I don't want to know. What I do know is that if I had found my child to be in possession of any kind of drug, getting the police involved would be a long way down my list of options. The ideal way to deal with this at the lower level - and I am not talking about dealing Class A - is within the family. It is no criticism of the police to say that their procedures can lack the subtlety and delicacy that this situation would call for. I am just thankful that I never had to make such a decision.

R v Illsley

It is often useful in high-profile cases to look at the judge's full sentencing remarks, since the press has neither the space nor, often, the inclination to publish. This is what the judge said in the case of the disgraced MP Eric Illsley.

Payday!

The House of Commons has voted (with the big guys standing carefully aside) to stick two fingers up at the ECHR (or 'court' as the Daily Mail has taken to calling it) by voting to defy any move to give the vote to prisoners.

Back in the Inns of Court and in solicitors' offices across the land, from the dingy to the sumptuous, spontaneous champagne parties are taking place, as m'learned friends anticipate the flood of irresistible compensation claims that will force the Government to give piles of our money to many of our 80-odd thousand prison inmates, with generous costs to their lawyers.

Great call, Straw and Davis, great call!

For a grown-up view, have a look at Lord Pannick QC's piece in today's Times. He estimates the bill at up to £50 million.

Trial and Errors

It was a nice change to hear a trial today, as I have been doing mostly remand courts, appraisals, and PoCA cases for the last couple of months. The main business of the day was a drink-drive case; these don't often plead not guilty as the number of possible defences is limited. As so often happens, the driver was caught because of a silly little accident in which he misjudged a manoeuvre and scraped his car, just as a police car was passing by. His reading was about one and a half times the limit, not the highest we have ever seen, but he escaped a long ban by the skin of his teeth because he was just a few weeks past ten years since a previous drink-drive conviction. If the stop had been just that little bit earlier, we would have had to impose a three year ban.
He was represented at his own expense and pleaded not guilty for reasons that I can't go into; we realised why he had laid out the cash for a solicitor when we heard that he drives, or rather drove, for a living.
For many people a driving ban can be a huge and costly punishment, and that is why the likes of 'Mr. Loophole' flourish.

We also sentenced an unprincipled fellow who used a forged disabled driver's badge as he went about his business. We fined him the best part of £500 and told him that we thought this was a mean and anti-social offence.

A Little Bit Of Common Sense

It was refreshing to hear Kenneth Clarke interviewed by the usually-irritating Jeremy Vine yesterday (it's on iPlayer). Vine has a populist tabloid approach to issues, but the Justice Secretary's unflurried voice of experience prevailed, as I heard it. The usual Mailesque callers came on with the usual Laura Norder rants, but KC had the measure of them.

And Another Thing........

Two more things have emerged from discussions surrounding changes to the courts:- firstly there is, certainly in my area, a halt to the recruitment of new magistrates for at least eighteen months. That makes sense, giving the new arrangements time to bed down, but will be a disappointment to some people who had planned to apply in the near future. The Advisory Committees are also being shaken up, and I hope that the new system will be more receptive than their predecessors to the opinions of the benches they are recruiting for. At my own court the Bench Chairman repeatedly asked for more JPs over several years, and two, three, or four were appointed at a time; then, over not much more than a year we were allocated twenty new colleagues, throwing a strain on the mentoring and appraisal process. Quite rightly the selection process only requires that the recruit can offer 26 half-days a year. This helps to accommodate those with work commitments, but means that it can take three new low-sitters to replace an old codger such as myself when I finally retire.
Secondly, the reorganisation means that the District Judges will have to be reallocated - a potentially touchy subject.

All Change

Across the country work is going on to cope with the widespread programme of spending cuts, court closures, bench mergers, and staffing cuts. There is much uncertainty among HMCS admin and court staff, as it is not just inevitable that jobs go, there will be relocation and reorganisation galore. The smart money (i.e.coffee-room gossip) is on Justices' Clerks being reduced to just one per region and on a cull of higher grade legal advisers. Court sitting days might well be rationed, and work shifted around between courthouses. In reality the Clerk to the Justices vanished some years ago. The old and excellent system of the JC being appointed by a committee of JPs, and being master in his or her own fiefdom, responsible for legal and admin staff and the training of magistrates was swept away, only the job title being retained. My old Clerk used to describe his job as a cross between a family solicitor and a butler.
Benches that are due to merge are meeting at Bench Officer (chairmen and deputies) level to thrash out the details and to iron out the many variations of day to day practice. Realistically, some magistrates will have to move bench as their courthouse closes, and the rest of us will have to be flexible about taking some sittings at the other courts in the group.
Time is short. At the AGMs in October the combined benches will have to ratify the changes and elect their new bench officers, with one Chairman for the new bench, and enough deputies to ensure that there are enough to cover each courthouse. It is all feasible with goodwill and flexibility, but we are going to have to work at it.

Postscript - I have just spoken on the phone to a colleague in another part of London, and it looks like their area already has enough staff volunteering to take the money and go to avoid compulsory redundancy.

Don't Feed The Need For Weed!

Thanks to the imdispensible Crime Line for this update on sentencing cannabis farmers. A large proportion of the professional operations are run by Vietnamese gangs, and it is unusual to see the main man - all we see is the 'gardener', paid a few pounds and given somewhere to sleep in return for tending the crop. It's above my pay grade, and goes straight off to the wigs in the Crown Court.

R v Auton and others, Court of Appeal, 3 February 2011
In Xu [2007] EWCA Crim 3129; [2008] 2 Crim App R (S) 50 at 308 this court considered the general level of sentencing for large scale commercial production of cannabis. The present four cases require us to consider sentencing in cases of smaller scale, but well planned and resourced, cannabis cultivation operations. Often, but not always, they may be carried on in the defendant's home.
Held (para 14):
i) where the cultivation will genuinely involve no element of supply of any kind, the sentence after trial is likely to be in the range 9 to 18 months, depending on the size of the operation, and the personal history of the defendant;
ii) where the cultivation is for the defendant's own use and is not a frankly commercial operation for profit, but will involve supply to others, the sentence after trial is likely to be in the range 18 months to 3 years; where any individual case will come within this range will depend on, inter alia, the scale of cultivation, the investment made, the number of parties involved, the nature of the likely supply and, in the upper reaches of the range, the level of any profit element; a previous history of directly relevant similar offending may take the case above this range.
iii) where the cultivation is a frankly commercial one designed with a view to sale for profit, and whether or not the defendant may use a limited quantity of the drug himself, the sentence will usually be somewhat below the Xu range because of the smaller size of operation, but is likely to be in the general range after trial of 3 to 6 years.
The circumstances, character and any criminal history of the defendant will as always be relevant. Where cultivation is accompanied by unlawful abstraction of electricity, often on a substantial scale, that will ordinarily be an aggravating factor. Adjustment should be made for a plea of guilty in the usual way according to the stage at which it was tendered.
http://www.bailii.org/ew/cases/EWCA/Crim/2011/76.html

Wind of Change

A newspaper reports a serious problem.

The article goes on to say:

The crime will be enforceable in a new 'Local Court' system which will also have powers to punish a range of other crimes in the bill set to be debated in the country's parliament.

Well, well. I hadn't heard that Louise Casey had moved abroad.

Not To Be Missed

This programme, available for a limited time on iPlayer, should be seen by every magistrate and by everyone who wants to know about the people who pass through the lower courts. I have sat at Highbury Corner (where the film was made) on occasion, and it is almost as grim on the inside as it is on the outside.
The offenders who speak to the camera on their way into court (and if they are lucky, on the way out) are sad, damaged, and frightened in most cases.
I have dealt with hundreds of people like this. I feel only compassion and pity for the state in which they find themselves, but like every other sentencer I am trained to know that my first duty is to sentence the offence, and not the offender.
Any magistrate will recognise the need to set aside personal feelings, even faced with pathetic human detritus such as we see in this film. It will never be easy though.
I cleave to no formal religion, but I cannot quarrel with: "Hate the sin, and love the sinner".