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.

Tuesday, July 07, 2009

Interesting Case

Thanks to Crime Line for this interesting case about sentencing. I am sure that Justices' Clerks across the country will be issuing guidance about it.

When a matter is too serious to be dealt with there and then a bench will order a pre-sentence report. As required by the 2003 Criminal Justice Act we have to complete a reasons form to hand to Probation. We fill in the starting point for the offence, then aggravation and mitigation, and any personal factors. We then indicate our view of the appropriate sentence, often bracketing across several options. If custody is an option, immediate or suspended, we have to say so. Many of us write "ALL OPTIONS OPEN" on the bottom of the form to avoid any doubt. I always read the form to the defendant and make sure that he understands if custody is on the cards. There is case law, referred to in the above report, that if the bench indicates a community penalty then the defendant has a 'legitimate expectation' not to go inside. Until now, that has been that (and much frustration can be caused by careless benches who tie the hands of eventual sentencers). The High Court has upheld the DJ(MC) who ignored that on the grounds that the decision was 'perverse' and that too raises a few questions. Their Lordships mention the fact that the bench ordering reports did not reserve the case to itself, but that is not at all unusual because of the problems in reconvening a lay bench. It looks like this one was doing half-day sittings so they couldn't even deal with it later in the day. If we convict after trial I always insist that at least one of us comes back for sentence, despite the fact that our Clerk doesn't like it. If needs be I will swap into a sitting, or simply adjourn the sentence to a day when I or a colleague are in. I think that the objection owes more to administrative convenience than to justice. Someone who has sat through a trial and heard the evidence and seen the witnesses will have a far fuller understanding of the case than someone looking at a single A4 proforma.

So let's see what our advisers make of this latest case. I will keep you informed, of course.