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.

Thursday, June 30, 2005

ASBO Update

THE number of antisocial behaviour orders handed out soared last year after the Prime Minister urged their use against yobbish behaviour.

A total of 2,555 orders were issued, compared with 1,040 in the previous year.

Greater Manchester had the highest number in England and Wales, followed by London and West Yorkshire, according to Home Office figures published yesterday.

The figures show that 4,649 orders have been handed out since they were introduced in April 1999. After a slow take-up by police and local councils, the number being issued has risen fast.

The figures did not show how many orders have been breached but statistics published in March showed that the proportion was more than four out of ten.

The Times 30/6/05

Wednesday, June 29, 2005


Today's Times tells us:-

A 35-year-old Wolverhampton man who ripped the head off his pet parrot told RSPCA officers he should be shot, Wolverhampton Magistrates’ Court was told. Paul Pugh, who was allegedly drunk when he killed the bird, was not allowed to enter court as he had been drinking. Another hearing was set for July 18.

It is often obvious that defendants are either drunk or drugged when they come into court, but this one seems to have gone further than most.

I would be very tempted to look for a way of remanding him in custody, perhaps overnight, but my guess is that the RSPCA had applied for a summons, meaning that he was not bailed to the court, so there is no power to lock him up at this stage. It would be nice though, wouldn't it?

Tuesday, June 28, 2005

Plus Ca Change

From the fascinating Old Bailey History

Joseph Ellis was indicted for wilful and corrupt Perjury, in a Cause between Thomas Skip and Ralph Harwood . on a feigned Issued directed out of Chancery into the Court of Common-Pleas, to try; two Points: first, Whether Ralph Harwood was a Bankrupt: secondly, Whether he was a Bankrupt, prior to some Judgments to his Sisters Mary and Elizabeth, which came on to be tried at Guildhall before the Lord Chief Justice Willes, on the 17th of December, in the Sixteenth Year of his present Majesty.

The Perjury assigned, was, that Ellis swore Mr Harwood was denied to Mrs Paterson (a Creditor who came to enquire for him, and said, he owed her a great deal of Money) when he was at Home.

There were several Council for the Prosecution, but none for the Prisoner. It was therefore incumbent on the Court (who are of Council for the Prisoner) to examine the Record, and there was a material Variance found between that and the Indictment; it
being set forth in the latter, that the Defendants appeared by Powell, their Attorney; whereas, in the Record, it was said, they appeared by Greenhil, their Attorney; whereupon the Jury were directed to acquit the Prisoner.

Well, well, getting off on a technicality at the Old Bailey in the 18th Century. What wimps those old-timers were!

Monday, June 27, 2005

Banged Up

From The Times today:-

ENGLAND and Wales have been toppled as the jail capital of Western Europe, according to figures published today .

A total of 144 people per 100,000 of the population were in jail in Luxembourg last year, compared with 142 in England and Wales, which had held the top spot in the World Prison Population List for two years.

They have now fallen from the top position as a result of the entry into the EU in May 2004 of former Communist bloc states.

Scotland had an imprisonment rate of 132 and Northern Ireland 72 per 100,000 of the population. The EU accession countries, apart from Malta, with 72 per 100,000 of the population, Cyprus, with 50, and Slovenia, with 56, all had higher imprisonment rates. Estonia jailed 339 per 100,000 of its population, Latvia 337, Lithuania 234, Poland 209, the Czech Republic 184, and Slovakia and Hungary both 165.

The United States remained the world’s top jailer, with a total of 2.1 million inmates, a rate of 714 per 100,000 of the population. In total there were more than nine million people behind bars across the globe, according to the survey compiled by Roy Walmsley.

I find the figure of 2.1 million in prison in the USA almost incredible. From what I read US prisons vary in style from the relaxed to the near-barbaric. The latter is more common when local sheriffs treat prisoners harshly in order to get themselves re-elected.

Thursday, June 23, 2005

No Comment

From The Guardian:

Magistrates were entitled not to convict an "ardent nationalist" who for two years launched into "Alf Garnett" style rants over the phone to his MP about asylum seekers and immigrants, the high court ruled today.

Two high court judges said Leicester magistrates had been placed in "a dilemma", but were entitled to decide that, although Leslie George Collins' remarks were offensive, they were not "grossly offensive" to a "reasonable person" under telecom laws.

However, Lord Justice Sedley, sitting with Mr Justice Mitting, warned that Mr Collins' references to "wogs, Pakis and black bastards" might well have been grossly offensive if those who heard the calls had been from an ethnic minority.

Lord Justice Sedley said: "The respondent [Mr Collins] had no idea, and evidently did not care, whether the person he was addressing or who would pick up his recorded message would be personally offended - grossly offended - by his abusive and intemperate language.

"It was his good fortune that none was, but this was nevertheless a fact which the justices were entitled to take account."

The judge said if Mr Collins, 60, had been speaking to a member of an ethnic minority, "it might well have been impossible, however stoically the hearer might have brushed it aside, to avoid the conclusion that the message was grossly offensive".

The judges were dismissing a bid by the director of public prosecutions (DPP) to have Mr Collins convicted.

During a recent hearing which led to today's ruling, the judges were told that Mr Collins's rants were like those of Alf Garnett, the bigoted lead character from the 1960s television show from Till Death Us Do Part.

At the hearing, John Lloyd-Jones, appearing for the DPP, argued there was no place for Alf Garnett-style tirades in today's multicultural Britain.

He described how David Taylor, Labour MP for Leicestershire North West, and three of his constituency office staff were subjected to a two-year stream of calls, between January 2002 and January 2004, full of expletives from Mr Collins, with messages also left on the MP's answering machine.

Mr Lloyd-Jones said no one was seeking to restrain Collins from articulating his views "with ardour and vigour" but said no one picking up a phone should be subjected to the type of language Collins had used.

The recent hearing heard that Mr Collins was hostile and believed the government treated foreign nationals more favourably than British nationals, and they received financial advantages to which they were not entitled.

Leicester magistrates had refused to convict Mr Collins under the 1984 Telecommunications Act for making phone calls of a grossly offensive, obscene or menacing character. The magistrates ruled in October 2004 that Mr Collins's language was offensive - "but not grossly offensive" and dismissed the charge.

At the high court appeal hearing, Esther Harrison, appearing for Mr Collins, described him as "a blunt-speaking person but not a racist" and said his complaints were about the way the country was being governed.

Mr Taylor had warned Collins about his language, but he chose to ignore the warning, the DPP counsel had argued. Of the three members of Mr Taylor's staff who took the calls, one had found them upsetting, while another did not and the third said they were "depressing

Improper Verbing

I may previously have revealed that I have a modest degree from a decent University. Having read (at public expense) some very well written stuff in my time, although my knowledge of formal grammar is next to zero many of today's abuses of English trigger an immediate reflex of disgust when I read or hear them.

I try to conduct Court business in clear and colloquial English, and I will, if necessary, commit a tautology if it aids understanding - for example "This case is adjourned - put off- until----". One tries to use the colloquial while avoiding the vulgar. I expect professionals to spare us from modern linguistic barbarities, but that is, alas, too much to hope for from many of today's police officers and solicitors.

Pomposity (known in the higher courts as judge-itis) is the heffalump trap that captures too many of us on the Bench, as we are routinely spoken to with sometimes grovelling amounts of deference. Most of us try not to tumble into this particular pit, but sometimes there is an overwhelming temptation to drop into Rowan Atkinson old-fart judge mode.

I hope therefore that I may be forgiven for having, in recent months, responded to two particular expressions with the indignation that Dame Edith Evans put into "A Handbag!"

The first was a police officer who said that the defendant had been taken to the station but was waiting to be 'custodised' and the second was a prosecutor who said that certain exhibits had not yet been 'forensicated'. In each case I stopped the perpetrator, and invited him to repeat what he had just said. Upon their reiteration of the atrocities I said that the court would only conduct its business in English, and that they were invited to rephrase their evidence.

Perhaps I was indeed a little too pedantic, and perhaps I was having a bit too much fun, but after all, clarity begins at home, does it not?

The Man Who Didn't Know His Rs From His Elbow

As I have said before, we sometimes have to use interpreters in court, West London being a cosmopolitan sort of place. We were taking a routine traffic court one day when a Japanese man turned up to answer his summons for speeding. It was a perfectly run-of-the-mill case and would have been dealt with by fixed penalty if he had not been driving on a non-EU licence. He produced a rectangle of plastic bearing his photograph and a lot of Japanese writing. He handed it up when asked for his licence, but for all we knew it could have been his library ticket. It was clear that his English was very basic indeed, but we decided against adjourning the case for an interpreter as matters were so simple, he was pleading guilty, and it seemed unnecessary to spend public money as well as inconvenience the defendant. So I spoke loudly and clearly, and asked him about his financial circumstances, as I am required to do. He didn't really get it at first, but we got a plausible income level from him, then I asked if he paid rent or a mortgage. Blank look. "Do you own your house?" "Is no 'ouse. Is frat." "Does it belong to you?" "No, is lented frat."

That was a good few years ago, but to this day I cannot pass an apartment block without wondering whether they are lented frats.

Wednesday, June 22, 2005

No More Puffs

The word is that smoking is to be banned in all parts of all courthouses shortly (although this may only just squeeze in ahead of a more general Government ban on the foul weed).

I have mixed feelings about this. I am a lifelong non-smoker, but I know that smoking is especially common among the sort of people the court has to deal with. Hanging about in a court as witness, defendant or whatever, is a highly stressful experience, and it seems a little harsh to deprive nicotine addicts of its comforts at such a time. We presently provide a smoking room with decent extractor fans for those waiting, and another for staff and magistrates. Inevitably people will gravitate outside the building for a drag - we shall need to ensure that we keep the magistrates and staff away from the defendants and their supporters. I also have a hunch that our ushers are going to have to scour the street before calling on each case in the future.

Tuesday, June 21, 2005

ASBOs Yet Again

Those of us who have reservations about the way in which Antisocial Behaviour Orders are being used in some cases have been encouraged by a recent Divisional Court judgement (W v DPP - reported in today's Times).

The defendant appealed against an absolute discharge, which is pretty unusual, but the appeal was on a principle of law. As I read it, and I am not a lawyer, the defendant had been made subject to an ASBO that forbade him from committing any criminal offence - which would be illegal in any event. That, in the view of the wise Lord Justice Brooke, was too wide, and Mr. Justice Field agreed. The prohibitions ordered had to be "sufficiently specific and clear to enable the restricted party to comply without difficulty".

So the appellant, who was convicted for breaching his ASBO as well as for the petty theft that formed the essence of the breach, was convicted twice on the same facts, even though the lower court decided to punish him only once.

I hope that the higher courts continue to force those who apply for ASBOs to give more thought to their terms, and to remind courts who consider the orders to make the terms no more onerous than necessary to prevent the offender from continuing the behaviour that led to the application for the order. ASBOs are potentially a very useful measure to protect the public, but they must be very carefully drafted if they are not to fall into disrepute.

Off-Topic (Again)

I have spent a lot of time going through emails and post since my holiday. Rather like the old gold-rush prospectors I have found a small number of nuggets among the dross and I shall try to share them with you in the next few days. Suffice it to say that the new régime running the courts is producing ideas and whizzy new schemes as fast as its Powerpoint jockeys can put finger to keyboard.

So back to today's paper and the sad news of the death of Cardinal Sin, the Archbishop of Manila in the Phillippines. His name was extraordinary for a priest, but even more so once he received his red hat.

There is a tale that I find irresistible about the Irish cleric who was found to have a teenage son, for whose existence there could only be one non-celestial explanation. He duly resigned his post and went abroad - some wags with more wit than taste suggested that he had gone to take up a missionary position.

The truth , I am told, is that he went to Manila to prostrate himself before the late Cardinal, and to cry:-

"Bless me Sin, for I have fathered".

Saturday, June 18, 2005

Bench Book

I picked up my copy of the new Bench Book this week. This is a compendium of guidance on court procedures that is given to every magistrate. There is (or should be) a copy on every bench and in every retiring room. It is prepared by the Judicial Studies Board which now oversees most of the training of the judiciary. A Very Senior Person once said to me: "Of course, it's really the Judicial Training Board, but the judges were touchy about the idea of being trained, so we called it Studies instead."

The Contents page alone runs to over three sides of A4. There are useful checklists on such things as Human Rights, case management (the new Big Idea for 2005/6. Watch this space!) structured decisions, and how to handle serious contempt. There are guidelines on mode of trial, which cover whether we should deal with a case or pass it up to a higher court, and then the absolutely essential sentencing guidelines. There is an A4 sheet for each of the more common offences giving suggested guidelines for sentence and listing potentially aggravating or mitigating factors. These are not binding (the Chief Magistrate says that they are 'guidelines not tramlines') but they help benches to adopt a standardised approach. There is an extensive section on the legal requirements for particular sentences, and draft pronouncements that the chairman can use if he chooses, although many of us prefer to paraphrase in our own style. Woe betide us if we leave something out though - the sentence might not be lawful.

There are sections covering new legislation (e.g. Section 3 Page 122, Sexual Offences Act Foreign Travel Order). So many new ideas came in with the Criminal Justice Act 2003 that there is probably not a magistrate or legal adviser in the land who fully grasps them all, so we shall be reaching for the book quite often in the months to come.

That just gives a flavour of a book that weighs three or four pounds (Hallelujah! I have just noticed that they have put it in a four-ring binder - the old ones fell apart in weeks).

To be honest, many magistrates get through a day without referring to anything other than the sentencing guidelines, and sometimes not even those when the offence is a common one. Where the book is useful, apart from a bit of quiet mugging-up at home, is when the case is complex, or, nearly as bad, looks like it is completely clear and simple. That's the time to double-check your thought processes and treble-check your decision, because it's on the seemingly obvious cases that it's easy to come unstuck.

Friday, June 17, 2005

Le Cheval Gai

Several people have asked me what I think about the Oxford 'Gay Horse' brouhaha.

Of course it is nonsense. But what did we expect when we gave the humble constable the quasi-judicial right to issue an £80 'ticket' for behaving in a manner that seems to the issuing officer to be unseemly?

That, mes enfants, is why we have impartial tribunals known as courts to interpose a little consideration between the indignation of the officer on the street and the public good known as justice.

£80 tickets are cheap and easy to administer, but as for justice - don't make me laugh.

If the peccant undergraduate had been related to me, one would have encouraged a rejection of the ticket and a plea of not guilty in front of a proper bench of magistrates.

Thursday, June 09, 2005

Adversarial Justice

My recent post about dismissing a drink-drive case because of a fatal flaw in the prosecution case has drawn a fair bit of comment, some of it critical. How, some people ask, can we 'let off' a drink-driver just because the CPS has left a piece of paper out of the file? The answer is that we operate in an adversarial system in which the defendant does not have to prove anything, and it is for the prosecution to prove their case beyond reasonable doubt. It is not the job of a magistrate or a judge to help the prosecution to get over the weakness of their case, even when as in this instance it was a minor clerical error. As I have said before, a criminal prosecution pits the mighty resources of the state against an individual, and it is right that the test of proof should be a high one.

It may sound a little pompous in the context of a simple drink-drive case, but an independent judiciary is the citizen's last defence against oppression and tyranny. Sometimes that means that society has to accept that a criminal will go unpunished because it is not acceptable for police and prosecutors to use oppressive means to obtain evidence.

There was a significant case this month in the Court of Appeal in the case of Eddie Grant. He was convicted of hiring a killer to shoot his wife's lover and was given 18 years. The conviction was quashed because the police had bugged the place where Grant went to talk to his solicitor.

The Judge said this was one of three cases in which the police had placed covert listening devices there and at Grantham police station. “We are quite clear that the deliberate interference with a detained suspect’s right to the confidence of privileged communications with his solicitor seriously undermines the rule of law,” he said. Conversations between Mr Grant and his solicitors were recorded, though no material of evidential value was picked up, the court was told.

So although the improperly obtained evidence was of no use against the defendant and he was convicted without its help, the case was thrown out because the investigation was unlawfully conducted. That's the only way that the police will ever understand that they have to play by the rules however inconvenient they might be.

It may be frustrating but any anger should be directed at those who fail to do their job properly, not the courts who insist that they must.

Sunday, June 05, 2005

Speaking For Yourself

To instruct a solicitor to appear in court on your behalf can be an expensive business. Legal Aid is not usually granted for simple cases where there are no complex legal issues and no danger of the accused losing his liberty. Thus we often see unrepresented people defending themselves. Most magistrates would rather see a lawyer do the job, as matters can get to the point a lot more quickly than they would when a layman brings in all sorts of stuff that is simply irrelevant.

Mr. Parkins pleaded Not Guilty to drink-driving, and conducted his own defence. His wife sat at the back, paying rapt attention while two police officers gave evidence of stopping him, carrying out the roadside test, arresting him and taking him to the Police Station for the Intoximeter test. The reading was 43 in breath, which is at the lower end of the scale but over the limit nevertheless. As the reading was below 55 the driver had the right to be offered a blood test, which he accepted. We were told that the blood test gave a reading of 88, the limit being 80. He cross-examined the officers in great detail, querying whether the blue lights were used on the police car, what side of the road he had been stopped on, and all sorts of other details that contained no germ of a defence. He had to be told to stop walking about, as he was trying to do a US-style job on an imaginary jury. His wife provided a muttered commentary with vigorous nods and shakes of the head, and she had to be told to sit still and keep quiet. After about an hour we had finished with the officers' evidence and the three of us were a long way from being convinced of his innocence. "That, Sir, is the case for the Crown." said the prosecutor, and he sat down. There was a silent pause, and one of my colleagues said : "can we go outside for a minute?" I knew what was on her mind, and we trooped out to the retiring room. "Are you thinking what I'm thinking?" Two nods.

When the defendant took the blood test the result of the analysis superseded the reading on the Intoximeter because the blood test is slightly more accurate. Unfortunately for the prosecution they had failed to bring any evidence of the blood reading. This is normally in the form of an agreed ('Section 9') statement that is read to the court, but there wasn't one. We rapidly agreed that the prosecution case was defective. We called the clerk out to check, and she agreed that a key element of the case just wasn't there.

We went back in, and Mr. Parkins had keyed himself up for his big moment, giving evidence from the witness box. He was holding sheaves of notes and a couple of plastic bags containing heaven knows what.

"Mr. Parkins. You are not represented by a solicitor today. If you were, we believe that he would now be making a submission to us on a point of law. We have therefore considered the matter as if he had made a submission, and we find that there is no case to answer. The case is dismissed."

Mrs. P burst noisily into tears, and as her husband rushed to the back of the court, she leapt up, and they embraced fulsomely. Mr. P then burst into tears too. It took a few minutes to convince them that it was all over and they could go, while the prosecutor sat pondering his papers, presumably wondering how to explain the débacle to his boss.

To the end of his days Mr. Parkins will tell his friends and family that he fought a drink-drive case without a lawyer, and won. He will never know that it was only an elementary procedural cock-up by the CPS that saved him. I wish I knew what lottery numbers he uses, for he is a very lucky man.

Friday, June 03, 2005

I Don't Believe It!

There was a case on our list this morning where the defendant faced two medium-ish charges. He was not in court because in the last week or so he has been given a 5 year stretch by a Crown Court in the North for something in the same line. For obvious reasons, he could not be with us.

To our amazement the CPS said that they were planning to continue the cases before us - presumably they justify the thousands of pounds this will cost by the hope of getting him another year or so consecutive, although there is no guarantee that the judge will not make it concurrent.

Best of all, the prosecutor said that the CPS were planning to apply for an ASBO - on a bloke doing a 5-stretch!

Words fail me.

Thursday, June 02, 2005

Speaking in Tongues

We had another case that required an interpreter this morning - the language was Tigrinya. No, I didn't know either, but apparently it's used in Eritrea.