Monday, 17 December 2007

It's the same the whole world over.............

A forty percent increase in the level of violent crime over the last twenty years. Prison overcrowding accompanied by an increase in the length of sentence. Fatal stabbings of young people on the street. Alcohol sales to underage youths.
Concerns covered in detail in this blog and Bystander's. And still I'm reading about it all in the daily press.
Except right now I'm in New Zealand. Wonder what I'll encounter next week when I reach Australia?

Wednesday, 14 November 2007

Sloping Off

My wife and I have just about finished folding everything and putting it into our suitcases ready to head off on what the press would no doubt call a 'trip of a lifetime'. Of course that suggests you can only have one and we've had at least two already and hope for more.
ANYWAY, all of this is by way of saying that I'll be away from my keyboard for around two and a half months, though I'll be into the occasional internet cafe, so postings will be at best sporadic. So may I direct all of those of you kind enough to visit on a regular basis, to make use of the Feedblitz link on this page. It will save you dropping in fruitlessly, and will alert you whenever an antipodean experience of things judicial seems worth sharing.
In the meantime a Merry Christmas and a Happy New Year to all; to those who do not celebrate Christmas, then my wishes are that you enjoy your own special festival.

Thursday, 8 November 2007

NEET Trick

Another offence is to be created, I learn from the Queen's Speech. The official age for leaving education will be raised to 18 - God help the poor teachers who have to implement this! - and at the same time those not in education, employment or training (NEETs) will be hit by a fine.
Unfortunately, NEETs will not be eligible for any benefit payments and will not be generating any income of their own, so out of what will they be fined? It is after all incumbent upon us to set any fine at a level which is affordable by the offender.
It feels like yet another example of the tendency of this government to declare anything of which it disapproves to be a crime.

Enough of sticks; what about a few carrots?

Sunday, 4 November 2007

Underage drinking

An article in today's Independent on Sunday makes depressing reading, particularly the fact that last year there were four times the number of prosecutions for selling alcohol to children as there were in 1995. If I believed the increase was due to stricter enforcement of the law, it would perhaps be encouraging, but I've no reason to believe that is the case. It's more likely that four times as many sales are being made to these kids. For what? For profit.

Thursday, 1 November 2007

Scrambled Laws

This article in yesterday's Independent gives a graphic example of the mess that is created by the government's kneejerk rush to legislation on whatever happens to be the hot law and order topic of the moment.

Tuesday, 23 October 2007

More on drugs (2)

There is apparently an acute shortage of morphine for use in pain management, particularly in the hospice care of the dying. Rather than trying to drive farmers out of business in the Golden Triangle, we would be better advised to pay them a commercial rate for their crops which could then be processed into morphine for therapeutic use. This has the twin advantages of developing the economies of the producer countries and of driving up the price to the heroin producer, which has either to be passed on to the end user, reducing the attraction to those not yet addicted, or the illegal markets margins are hit hard. This doesn't involve legalising heroin, though to do so and to encourage licensed sale at below street drug prices, would further squeeeze out the dealers. Finally, legalising, licensing and applying duty to such sales would fund the long overdue provision of detox and rehab services to those who wish to quit.

It may not square with what we want to be true, but it would probably be much more effective.

Monday, 22 October 2007

More on drugs

A basic principle of marketing is that where a raw material can be readily turned into a product with a strong consumer appeal, then a chain of production, manufacture, distribution, and retail sales will quickly establish itself. Moreover, so long as demand remains high then any company falling out of this market will be quickly replaced by a new player. So if Fresco Hypermarkets were found to be a mafia front organisation, its directors hauled before the courts and jailed, their stores would be bought up by another company and reopened. Hypermarket shoppers would suffer very little inconvenience.

By the same token, so long as there are large crops of opium poppy, coca leaf, cannabis and the like, and so long as there are large numbers of users of drugs made from each of these, then the prosecution, conviction and jailing of dealers achieves no more than opening the door to the entry of new dealers to take over. The solution - if there is one - lies in how effectively we can squeeze production to thwart the manufacturing process, coupled with how we significantly reduce the consumer base*, so that dealing is no longer sufficiently profitable. These are areas in which we appear to be investing insufficient effort, and this is one of the reasons why I feel that we are ideologically fixated on a failed policy.

* Banging them up will not work. Drugs are as readily available inside prisons as outside.

Monday, 15 October 2007

A Failed Policy?

This article in today's Independent makes interesting reading, I have a great deal of sympathy with this point of view. I write as a user myself. My drug of choice is alcohol, taken as wine, gin or beer, depending on my mood. I buy it from retail outlets licensed by the local authority, and I have felt no need to get involved in criminality in order to fund my habit. What I would have done had I been around in the 1920s in the USA when they attempted to wipe out alcohol with about as much success as we're having here with Class A, B, C I'm not sure.

Monday, 8 October 2007

Cause and Effect

In today's Independent, David Hanson, Minister of State at the Ministry of Justice, claims that NOMS has been a success because crime levels have fallen by 41% since 1997. Well, setting aside that NOMS was a David Blunkett production, not one of Jack Straw's, I don't see the connection.
It does make me wonder, though, whether the reduction in time taken to get cases through the judicial process these days may have nothing at all to do with all those splendid initiatives that have spewed out of the Home Office and the Lord Chancellor's Dept (a.k.a Dept of Constitutional Affairs, a.k.a Ministry of Justice). It may be all to do with there being less work to do! No, can't be that simple.......can it?

Thursday, 4 October 2007

Food for the soul

It's off topic, but I just came across this link, and all my cares were soothed away. Enjoy!

Wednesday, 3 October 2007

Le Mot Juste

A submission in court can stand or fall on the judicious (forgive the pun) choice of words. I remember a contested bail application some time ago where the defendant was represented by an obviously nervous solicitor whom we had not seen before, and who we suspected was pretty new to the job. Despite her nerves, she put up a clear and comprehensive argument as to why we should not take the Crown's case at face value, offering her client's acccount of what had happened. A shame, then, that she concluded with the killer statement: "That is my client's excuse, and it is the excuse he will give at his trial." In the interests of justice we substituted 'explanation' when deliberating and drew no adverse inference from her use of the word 'excuse'.

Friday, 28 September 2007

Another one bites the dust!

This welcome prospect has become necessary because the fatal flaw with NOMS is that there are way too few probation officers, too few prison officers and too few prison places. Apart from that, it was a brilliant idea.

Thursday, 27 September 2007

Reasonable Force

Jack Straw promises to increase the protection against prosecution for people who confront burglars or muggers. I hope that what he is talking about is a clarification of the existing law, rather than new legislation. The law already allows a person to use 'reasonable force' in such a situation, and defines this as the force necessary to deal with the level of threat. Moreover, the law goes further. It says that in judging whether the force used was reasonable, the court shall take the level of threat as it appeared at the time to the person using it. The word 'shall' in legislation is about as strong as you can get. It' something you have to do.
So I'm all in favour of clarifying the law, especially so that prosecutions aren't brought unless there is serious doubt about the force used. I'm not in favour of new legislation extending the present right. That, it seems to me is sanctioning 'unreasonable force'.

Saturday, 22 September 2007

Ads in this blog

I have had a comment from 'anothernorthernjp' re the post 'Three of a kind revisited', taking issue with the type of GoogleAds which are appearing at the moment. I have published the comment in full, under that post. The ads which appear are determined by Google and cover a range of topics. I take his point about the ads accompanying my recent focus on motoring offences, and having met Mr Freeman professionally on more than one occasion do not always care for his approach. Nevertheless, the service offered is legal and any defendant is entitled to have professional assistance in presenting his case. This may include 'technicalities', but it may also include such matters as special reasons not to endorse or disqualify, argument of exceptional hardship, legitimate but complex legal defences to the charge, the need to call expert testimony, etc.

Whether a defendant avails him/herself of such services, I shall continue to hear and decide the case on its merits.

Wednesday, 19 September 2007

Persistent Petty Offender

Several years ago we were involved in a pilot confronting the problem of the low level, low income offender with outstanding fines. These people were and still are the bane of a court's life. The offences they commit are not, in themselves, serious enough to merit more than a fine, but the offender is not able to pay any realistic fine imposed because (a) they have very little income and (b) they are already overloaded with outstanding fines fom previous offending.
The solution which we piloted, and which from the court's point of view was highly successful, was that in these circumstances we could find the person to be a 'persistent petty offender' and impose a community penalty instead. The type of pronouncement involved was: "We find that an appropriate fine for your offence would be (say) £250, but it is clear to us that you are not in a position to pay such a fine. We therefore sentence you to carry out 100 hours of community service over the next twelve months."
Most unusually, the end of the pilot was followed not by a national roll-out but by a period of review which for all I know is still going on. Suffice it to say, we lost this power. Could it be because the community penalty was more expensive to the system than an uncollectable fine? Or am I being cynical?

Thursday, 13 September 2007

The Victim Surcharge

This Times article demonstrates yet again the lack of planning which goes into so much law and order legislation. We have clear(ish) guidelines as to when we must impose the surcharge and when we mustn't. The system, however, isn't capable of knowing whether we have imposed it or not. I suspect there will be similar deficiencies in the system that is supposed to tell us where it went!

Wednesday, 12 September 2007

Three of a kind revisited.

My main concern in these posts was the way we deal with the unlicensed driver. However a fellow magistrate picked up on the insurance post in his blog and this generated lots of comments on his blog.

Saturday, 8 September 2007

Three of a kind (3)

For the reasons I've explained in my last post, I don't think that driving without a licence is treated as seriously as it should be. However, there is a power available to us which I believe could be used to remedy the situation. Every traffic offence that is endorsable (i.e. we put points on the licence, or more accurately on the driving record at DVLA) carries with it the discretionary power to disqualify for a specified period. And for every offence where we have the discretion to disqualify for a fixed period, we can IN ADDITION further disqualify the person 'until a test is passed', if we find that there are safety issues involved. This disqualification, which takes effect when the fixed period is ended, means that the person is only entitled to drive under the provisions of a provisional driving licence (which he or she must first obtain), displaying L plates and accompanied by a qualified driver. Thus, if they want to resume their driving career after the fixed disqualification, they must do what the rest of us have had to do, learn how to drive and pass a test!
My view, and I really would like to hear the opinions of others, especially any magistrates or legal advisers reading this, is that ANY person who takes to the road in a car without first learning how to use it, threatens the safety of other road users, and therefore could - and should - be disqualified under this power. I have had this discussion with a number of legal advisers over the years, and I always get the reply that this is not what the legislation was intended for, and that there must be something about the driving as put before the court to suggest that on that occasion the driving was unsafe.
Most of these unlicensed drivers, however, are picked up through routine stops (or more recently, are spotted by vehicle registration recognition cameras), where the only offences are document offences. Evidence is then given via what is called a Section 9 statement read out in court, where the officer simply states that at a particualr time, on a particular date, in a particular place he/she 'had reason to cause the vehicle to stop' with no further detail save that no documents could be produced, nor had been produced in the 7 day period allowed.
I still think that we should be entitled to infer safety concerns from the fact that the person had not bothered to take a test. Opinions please!

Thursday, 6 September 2007

Three of a kind (2)

Because driving without a licence usually comes to court as part of a set of three offences (no insurance and no MOT being the other two), it is not treated with the seriousness it deserves. That, at least, is my opinion.There are a number of considerations which combine to produce this result.
Firstly, where we are faced with multiple offences we have to put them into some kind of order of seriousness. No Insurance carries a recommendation that between 6 and 8 points should be endorsed on the licence; No Licence carries a recommendation of 3 to 6 points; No MOT is not an endorsable offence. So No Insurance is seen as the most serious and No MOT as the least.
Secondly, it is customary (I'm not sure it's obligatory) to impose points only for the most serious offence and to order a simple endorsement without points specified for other endorsable offences; so no points are imposed for No Licence.
Thirdly, two offences of No Insurance within three years will add at least 12 points to the licence. At 12 points the offender 'tots' and is then subject to a mandatory disqualification of at least 6 months the first time, 12 months the second and 18 months the third. So No Insurance very often leads to disqualification.
Fourthly, where a number of offences fall to be sentenced at the same time, each attracting a fine, then we are required to apply the so-called totality principle, which is that the total amount of fines and costs imposed must be within the offender's ability to pay within a reasonable period of time, taken to mean 12 months. Because No Insurance has been judged the most serious, this will attract the largest fine, the other fines being scaled down accordingly. The result is that the fine for No Licence tends to be lower than it should be.
The outcome is that the message sent out by the courts is that they don't view No Licence as particularly serious, which is not as it should be. For my solution, you'll have to await my next post, as this one is long enough already!

Monday, 3 September 2007

Three of a kind (1)

I think the discovery that shocked me most when I first began to sit as a magistrate was the sheer number of people driving without insurance. Naively, I had always assumed that drivers insured their vehicles. I was wrong. Not only that, but the majority of uninsured drivers had no valid MOT and had never bothered to get a licence. The traffic court list usually contained about twenty such drivers per sitting. And most of them had previous convictions for the same offences.
Nothing has changed in that respect. Fourteen years later, I see the same numbers of the same offences whenever I sit in the traffic court. What has changed though is the fine we levy. In 1993 the standard fine for a first offence of no insurance was £540 set on the principle that it should be more expensive to be caught without insurance than it was to buy insurance. Somewhere along the line though a politically inspired change took place in the way we were instructed to calculate fines. It had to be related to the offender's financial means. Then the government decided that fixed penalties could be used for first offences of no insurance and the fixed penalty was set at £200. So we were instructed to impose the same figure if the case came to court (though we don't fine speeding cases that come to court this way). Result: Whereas the value of my house now stands at 410% of its 1993 value, a no insurance fine has fallen by 63% even without allowing for inflation. Little wonder that we are making no headway in deterring these offences.
I'll come to the matter of no licence in my next post.

Tuesday, 28 August 2007

The words 'mouth', 'money' and 'put' come to mind....

In a nutshell, are we collectively prepared to put our tax money where our law and order mouth is? I suspect not.
This year's spate of killings of young males in our inner cities by their contemporaries, coupled with the violent deaths of several adults who have had the temerity to challenge groups of teenagers, has prompted much breast-beating and heart-searching as to what kind of society we have become.
Among those with a penchant for simple solutions, the call has gone out for stiffer sentences. This, however, ignores the unpalatable fact that if we have to pass ANY kind of sentence, then the system has already failed. Failed to prevent the offence. Failed to prevent the slide into antisocial attitudes and low-level offending that inexorably graduates to more serious criminality. Failed, too, in the ten year old words of New Labour to be tough on the causes of crime, let alone tough on crime itself.
Being tough on crime does not lie in ever more severe sentencing, but in investing sufficient financial resources into achieving the necessary levels of manning within police forces up and down the country, and backing that up with sufficient finances to resource those officers properly in terms of support services, equipment and the like. Low cost, superficially-trained pretend police officers are not an answer; they merely contribute to the problem. We need to do this in order to raise the likelihood that an offender will be detected and apprehended to a level where that prospect becomes a real disincentive to take the risk. The majority of persistent offenders at whatever level of seriousness at present operate in an enviroment where they can be fairly confident that they will not be apprehended.
Having resourced the police properly, we must then do the same for the Crown Prosecution Service, so that it can attract, reward and retain advocates of the highest quality. We must do likewise for the Probation Service and the Prison Service.
That will give us a chance of dealing more effectively with the current generation of offenders.
Being tough on the causes of crime is the only hopeful route to bringing about a reduction in the offending levels of the next and subsequent generations. Again, it is primarily a matter of being prepared to put in the financing that will actually permit the professionals in the respective fields to:
- work on improving the parenting skills of those whose own parents have failed to demonstrate to them what this involves.
- reduce the levels of illiteracy and innumeracy which result in too many children leaving school unfitted for employment in the workplaces of the 21st century.
- put in place the drug and alcohol treatment programmes which already exist and have been shown to work, but which are not accessible to most addicts.
- tackle the evil of domestic violence which pervades the homes of so many of those who drift into offending already accepting violence as the strategy of choice for any dispute, and of almost all of those taken into care by the local authorities.
- improve basic housing stock, so that children do not have to grow up in accommodation which is cramped, cold, damp and in disrepair.
Being tough on the causes of crime also involves looking critically at the level of financial support which the state needs to provide for those not in work, whilst at the same time working more assiduously to help these people into work paid at a level which enables them to provide for their families.
Perhaps then we might have a suitably fertile soil in which to grow once again the social cohesion which has withered away among young people in so many inner city ghettos.

Everything I have identified makes good sense, but it costs good money and there's the catch. There is only one source of government finances and that is the taxes paid by you and me. Are we yet sufficiently concerned about these things to truly put our money where our mouth is? I am reminded of a comment made by Alan Beswick, the BBC Radio Manchester presenter, to a caller to his morning phone-in programme some years ago:
"At every election since 1945, we the public have been offered a choice. Good government or cheap government. We have always voted for cheap." Well, now we are reaping the consequences.

Sunday, 19 August 2007

"You have the right to elect to be tried at the Crown Court...

On the 22nd July this year it would appear that a British Transport Police inspector logged onto a website by the name of, where he made an assignation with a lady to whom uniforms are a turn-on. At 3pm the following day, they met on the platform at Gatwick Airport station, where said inspector took a twenty minute break from his duties (He was the senior officer on duty apparently.) and taking her into an office on the platform comprehensively pleasured her.

The conscientious officer thoughtfully left on both his lapel radio and his mobile phone, though I imagine he may have taken a moment or two to gather his thoughts had a train crash or a suicide bomber had happened along while he was busy.

Last week his trial duly took place for criminal misconduct, the jury swiftly acquitted him and the judge then criticised the CPS for ever bringing the case in the first place. Now setting aside a) that this is about the shortest interval between offence (captured on CCTV, so I suppose someone will be watching for it to appear on YouTube) and Crown Court trial that I can ever remember, and b) that I know only the account given in the press, an finally c) that I do not know what constitute the elements of the offence of criminal misconduct*, I can't help wondering how he would have fared in front of a bench of magistrates.

* The CPS do know the elements and doubtless took the view that they could be made out. The judge let the jury proceed to consider a verdict; presumably had he had doubts about the elements he would have directed an acquittal.

Wednesday, 15 August 2007

The Wrong Answer

I see the Chief Constable of Cheshire Police is calling for the legal age for buying alcohol to be raised to 21. Apparently he believes that this will reduce the problem of teenage drunkenness. Which suggests that it must be a long time since he last walked a beat.
The problem is not the minimum age at which people are allowed to BUY alcohol. It's the minimum age at which too many retailers are prepared to SELL alcohol, which is already way below the present legal age of 18. Whenever local trading standards departments decide to take out underage volunteers to make test purchases, a crop of prosecutions follows. The trouble is they don't do it very frequently, so most of the time these sales can be made with impunity.
If we are serious about restricting the availability of alcohol for young people, we need much heavier sanctions against those who sell it. That used to be achieved by the threat of losing your licence and hence your livelihood, which doesn't seem to be the case these days where off-sales are concerned.

Tuesday, 7 August 2007

Where we're coming from

I regularly drop in on "The Magistrate's Blog" (see link below; the lawwestofealingbroadway), because I find what Bystander has to say is usually thought-provoking. Comment-provoking, too. Some of the comments he attracts either seem to expect the judiciary to have a society-focused agenda or complain that we are an arm of the nanny state, interfering unjustifiably in peoples' private lives.

It might help to see what we commit to on appointment. Every magistrate has to swear the Judicial Oath - so does very judge, but with appropriately amended wording. The oath is as follows:

I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill-will.

In other words:

We serve the Crown, not the government of the day.
We apply the law as it is enacted, not as we wish it were.
We will do so impartially, striving always to recognise and set aside our prejudices and preconceptions.

This is an absolute obligation. If we encounter a piece of legislation which we strongly oppose, we have only one remedy; resign from the bench. Many people did resign at the introduction of the poll tax; a small number have left as a result of the recently introduced victim surcharge.

Saturday, 4 August 2007

All too familiar

I'm reading a report about Emma (not her real name) and it makes depressing reading. It details a chaotic lifestyle, characterised by misuse of alcohol, heroin and cocaine. It isn't a probation report as you might imagine, and Emma isn't an offender. She's 11 months old and she's a victim. Her mother 'Dawn' is the addict and the report has been prepared by the local Social Services Dept. Next week, we will have to decide whether to grant the local authority a care order in respect of Emma, so that they can assume parental responsibility, something which neither mother nor her violent, drug-dependent partner want, but which their own lack of care of Emma does nothing to ward off. The report talks of Dawn's failure to prioritise Emma's needs over her own, or to engage effectively with social services to address her drug and alcohol problems and her parenting skills. In just the same way that she failed to engage with the maternity services during her pregnancy, whilst assuring them that she was not using. Even so, very shortly after her birth Emma began to show clear symptoms of withdrawal and had to be cared for on the special baby unit whilst being detoxed.

Dawn's two older children by a former partner have also been through the Family Court and are now in the longterm foster care of their maternal grandmother. The question remains unanswered at this stage as to whether grandma will be prepared and able to take Emma into her care as well. And then there will be the question of the next child; Dawn is already pregnant again.

When people think of drugs and the courts, they think in terms of the criminal courts, and indeed a high proportion of the cases we see involve abuse of drugs and the criminality needed to fund the habit. But, to protect the identity of the children concerned, the public are not admitted to the Family Court, and so this whole other area of drug impact goes largely unnoticed and unreported. The cost to the community in terms of the resources that have to be provided to rescue and protect children like Emma may not be on the same scale as the cost of drug-related crime, but it still involves enormous sums of money which is not then available for care of the elderly, the mentally ill and those with disability needs.

Saturday, 28 July 2007

BAA Injunction

Oh dear. It seems that if BAA get their way on Wednesday, I shall be considered to be a subversive under the Terrorism Act 2000. Too late now, I fear, to tear up my National Trust membership. If I suddenly stop posting, please consider visiting me in Belmarsh!

Tuesday, 24 July 2007

Iraqi civilians assisting British forces, etc

Justice, of course, is far wider than simply what courts of law do. It also encompasses how we treat other people. Whatever your feelings about the invasion of Iraq (I was opposed to it), the plight of those Iraqi citizens who came forward to assist British troops, security companies, diplomats and the like, mainly by acting as interpreters or drivers should be of concern to us.
By their actions these people have placed themselves and their families in very great danger, even of death at the hands of those who see them as collaborators. The British government has rejected the suggestion that such people should be entitled to find asylum here in the UK, arguing that they are not our responsibility. I disagree. If you also disagree, there is a newly opened petition on the Downing St website which you can sign (if you are a British citizen), and which calls on the government to grant asylum to these people.

Friday, 20 July 2007

I know it's only suppose, but all the same.....

IF the government took political corruption as seriously as it takes terrorist threats, and IF ACPO had its way on detention without charge, THEN Lord Levy, Ruth Turner, Des Smith and Sir Christopher Evans would only now be emerging blinking into the daylight after spending most of the last 15 months banged up in Belmarsh. Fortunately, they were able to keep their liberty and now of course, we discover there's nothing to charge them with.

What makes them so different from the innocent person suspected of terrorist involvement?

Thursday, 12 July 2007


Whilst it was reassuring to hear no great hoo-haa about cracking down on miscreants, etc, in Gordon Brown's sneak preview yesterday, there are two measures which have the potential to backfire.

Withdrawing the ability of magistrates to suspend prison sentences for summary offences will more probably increase the prison population than reduce it; see my earlier posting on this measure for the reasons why (Suspended Sentences; 9th May 2007).

Additionally, raising the school/training leaving age to 18 is likely to lead to more youth offending. It follows from this move that it will become illegal for an employer to take on anyone under the age of 18 except on a part-time basis for a small number of hours each week. However, disaffected youth - especially male - will be drawn to truancy rather than attend school or a training place. We already know from painful experience that truancy is a fast track route into offending, the devil as they say finding work for idle hands. I suggest that the proposed measure will dramatically increase the pool of adolescent males drifting around the streets looking for something to relieve their boredom, and most likely they will find that something in antisocial behaviour, use of illegal drugs, shop theft, mugging and the like.

I hope I'm proved wrong on both matters if they go ahead, but I have my doubts.

Monday, 2 July 2007

From the heart!

Just a short plea to Gordon Brown, Jacqui Smith and Jack Straw; please, just for one parliament, so far as the judicial system is concerned, accept that we already have enough laws available to deal with all the offences that come our way. We'd just like time to familiarise ourselves with them before a new set comes along.

Tuesday, 19 June 2007


If government is not prepared to invest adequately in tackling the causes of crime, isn't it morally bound to invest properly in tackling the consequences of crime? Just a thought....

Sunday, 17 June 2007

Pre-charge publicity

Last week, as I'm sure everyone knows by now, Michael Barrymore was arrested by police investigating the death six years ago of Stuart Lubbock. Two other men were arrested at the same time, but Barrymore's is the name that made the story 'news' and which has stuck in the public memory. No matter that a couple of days later two were released without charge, although still on police bail. Similarly in the 'cash for honours' case Lord Levy's name has been splashed across the headlines in the press and on television each time he is required to present himself to the police.

It is sometimes argued that this type of publicity impacts on these individuals' prospect of a fair trial, should a decision to prosecute ever be taken. I suspect that it does not, but another aspect concerns me. There is a popular if unreliable belief among the British people that 'there is no smoke without fire'. Even if no charges are ever laid, these two people and countless others will find their lives tainted by this publicity.

I have spent a great deal of time in Spain over the past twenty odd years. They handle things differently there. The arrest of suspects is reported just as it would be here. However, names are never used in advance of charges being laid. In the Spanish press you would read that a male MB (age) had been arrested in connection with investigations into the death of Stuart Lubbock, or that ML (age) had been arrested and interviewed in connection with the cash for honours investigation. To the vast majority of readers these initials would have no meaning, especially in the majority of cases where the suspect would be unknown outside their immediate community. Nevertheless the public interest - that police were pursuing a particular line of inquiry - is fully met.

If we accept that everyone is innocent until proved guilty, then it is surely appropriate that no one should be named as a suspect at least until they have been charged?

Saturday, 9 June 2007

What is the solution?

I’ve not posted for a while, partly because I’ve been quite busy but mainly because the news coming out of the Home Office is just more of the same. For anyone who wants to know my thinking on extended periods of detention without charge, I covered it in detail on 15th April
Something else which has been concerning me lately is the question of how we deal effectively with the offence of domestic violence. In fact, surprisingly, there is no such offence on the statute book. Violence towards spouses, partners and ex-partners or other family members is charged, according to its severity as common assault, actual bodily harm, grievous bodily harm or wounding. Only within the last couple of years has it been ruled by the Court of Appeal that a domestic setting is a serious aggravating factor, on the basis that everyone has a right to feel safe in their own home.

For years I was unhappy with the CPS charging policy, which was that the testimony of the victim was crucial if a case was to be brought to court; if the victim retracted or did not want to press charges, then no one was called to account. The consequence was often a succession of defendants on a Saturday morning admitting that their behaviour the previous night had been unacceptable and agreeing to be bound over to keep the peace.

Two or three years ago, however, CPS policy changed in the direction I had been hoping, and where there was additional evidence - the police were instructed to collect such evidence whenever possible - a case would go ahead even if the victim was reluctant.

In all honesty, it hasn’t really helped very much. I’ve sat on a number of DV trials recently where one of two defences is put forward; a straightforward denial of the alleged assault or an admission that blows were struck, but in self-defence, the ‘victim’ being the true aggressor. When the ‘victim’ gives oral evidence which contradicts her original statement to the police, or suffers a catastrophic memory loss as to what happened on the night in question, then it matters not that we suspect that the CPS account is a true one, we have to go further than that; we have to be sure beyond reasonable doubt that it is true, and the contradictory testimony of the ‘victim’ almost always prevents that since we can only speculate as to why her account has changed and which version might be the true one. At its most basic: Is she lying now out of fear or did she lie at the time out of malice?

So, I’ve got the changes I wanted, but not the result. Where we can go from here I don’t know.

Tuesday, 29 May 2007

No insurance

I note from my own sidebar links that there is great concern in Merseyside at the low level of fine imposed for driving without insurance. When I was first appointed, the guideline fine for this offence was £540. However, new guidelines were brought in several years ago relating all fines to the net income of the offender, each offence suitable for a fine being assigned to one of three bands A, equivalent to 50% of net weekly income, B, one week's net income, C one and a half weeks net income. The idea was that the amount fined for a particular offence should have an equal impact on all, irrespective of their actual level of earnings. The immediate consequence of this was that for those on very low incomes, or on benefits fine levels plummeted overnight. Later, the principle was introduced that offenders should be given credit for admitting their guilt at the earliest opportunity. The credit to be given was a one third reduction in the appropriate fine. Down went fine levels still further.

Things are further complicated by the requirement that we also apply what is known as the 'totality principle', which means that we must ensure that, where there are a number of offences being dealt with on the same occasion, the overall penalty imposed is still within the means of the offender to pay in a reasonable time (usually taken as twelve months). No insurance offences usually come as part of a 'package', the person having no licence or MOT either. The Liverpool Daily Post article mentions a maximum fine of £5,000 for no insurance. Figures like this are much loved by politicians because they indicate a suitable degree of toughness. They are notional figures in reality. Roman Abramovic or the Beckhams might be faced with this level of fine, but lesser mortals will pay substantially lesser sums.

A far greater incentive now is the power of the police to confiscate and crush cars driven without the necessary documentation. I'd rather that decision was taken by the courts than by the police, but it seems to be having the right effect.

Saturday, 26 May 2007

Whither justice?

As I look back over the fifty something years since I became politically aware, it strikes me that in the UK the democracy gene seems to be recessive. With each succeeding parliament its influence on government gets weaker and weaker. Now, as I look around me, all I see are sticks; the carrots are withering and rotting in the ground.

A colleague grew up in an inner city area during the fifties and speaks of the facilities that were available to guide adolescent males along the right track - the Boys' Brigade, Sea Cadets, boxing clubs, lads' clubs - staffed by dedicated people who set an example and acted as role models. Today they have largely disappeared from the areas that most need them, replaced by YOTs, youth offender teams, whose focus is on picking up the pieces after the damage has been done. I suspect that if we put half the money into training and employing youth workers and outreach teams, that we currently spend on ASBOs and attempts to rehabilitate young offenders, not only would we be able offer a social environment that appealed to young males, but we'd also see a real decline in all types of youth offending. And anyway, why should kids have to turn to offending in order to access any kind of input at all?

Instead, the focus is on calls for ever more severe crackdowns on those who offend - or are suspected of offending. The latest of which, which prompted the musings above, came from our soon-to-be-ex Home Secretary. Three people subject to control orders abscond, the result of insufficient resources to supervise them more closely, and does he accept responsibility? I jest, of course. No, he blames the High Court Judges who wouldn't let him just lock them up in Belmarsh until either some tangible evidence emerged that would let them be charged with an offence, or they grew to be so old, decrepit and mentally unhinged by their incarceration that they ceased even to be perceived as a threat.

The solution? Let's tear up that section of the Human Rights Act that says people have a right to liberty, or a judicial hearing at which they may hear what they are charged with, question their accusers, and speak in their own defence. Let's make a new law which will allow the government to bypass the judicial process, and in the interests of national security - a red herring that Hitler deployed to great effect by the way - just lock up whoever it wants to on the basis that someone, somewhere has come to the conclusion that they look like a 'wrong-un'.

If our security is at such great risk, may I - a non-lawyer - suggest a simple three pronged piece of legislation: First, allow the use of intercept evidence in court; second, if it is so sensitive that it must not reach public ears, allow a panel of three High Court Judges to hear the case in camera; third, apply the civil standard of proof rather than the criminal standard, so that those accused may be convicted if the evidence shows them to be guilty 'on the balance of probability', and not 'beyond reasonable doubt'.

Those accused would be charged with a specific offence. They would have the right to legal representation. They would be entitled to a full and fair hearing with only such restrictions on openness and transparency as were justified. And we would still have the protection of Article 5 of the Human Rights Act. I believe that parliament would be prepared to pass such a bill into law, and that judges would be content to work within that framework.

Wednesday, 23 May 2007

In good company

It seems I'm far from being alone in my concerns about the impact the new Ministry of Justice will have on judicial independence.

Monday, 21 May 2007

It's just too much hard work!

Every now and then a case comes along which convinces me, if I needed it, that the life of an offender is just too complicated and demanding to attract me. To take a recent case; a gentleman appeared in front of us pleading guilty to the theft of disposable nappies to the value of £22, the property of a well-known supermarket. In mitigation it was said on his behalf that he was merely seeking to fulfil his duties as a responsible parent.
As is so often the case, he was an absent father, he and his then partner having separated shortly before the birth of his daughter. He had been enjoying short periods of contact which had now moved to the stage where he could have staying contact across the weekend. However, because of his daughter's tender age, he needed to stock up on nappies. Only problem, his JSA didn't stretch to that kind of purchase. So he took a pack and walked out of the store with it, very shortly to be stopped by the security staff.
All well and good. But he also had two TICs, offences he wanted to offer up and have taken into consideration when being sentenced for the current theft. These offences were a) an identical offence three weeks previously and b) an offence, also three weeks previously, of obtaining from the well-known supermarket the sum of £22 by deception. Very suspicious. Also, it cast doubt on his account of the reason for the latest theft.
But there was a perfectly logical explanation. Three weeks previously his daughter had come to stay for the first time. Faced with the lack of cash problem he had gone and helped himself to a pack of nappies - undetected on that occasion - only to be told scornfully by his ex-partner that they were no use. They were for a newborn baby. His daughter needed a larger size. As he wearily explained to us, he couldn't face the stress of stealing two packs on the same day, so he took his pack back to customer services, got a refund and BOUGHT the correct size with the refund.
Like I say, I'm not cut out for all that effort.

Friday, 11 May 2007

Off topic - but I need help.

I bought a new pair of shoes yesterday - Clarke's - and on taking them out of the box, moulded into the sole pattern were the mysterious words, "Airport friendly". What, in heaven's name, are airport friendly shoes. And why aren't all shoes airport friendly? I'll not be able to sleep until I know!

Thursday, 10 May 2007

Ministry of Justice?

I’ve been reflecting on the subject of yesterday’s post, the creation of the Ministry of Justice. The more I think about it, the more concerned I become.

When, suddenly and without regard to its long and distinguished pedigree, the government announced the proposed abolition of the office of Lord Chancellor, and immediately replaced the Lord Chancellor’s Department with the Department of Constitutional Affairs, the justification put forward was the need to secure a proper separation of powers between the executive and the judiciary. With the subsequent creation of Her Majesty’s Courts Service, bringing the judges and magistrates under one roof for the first time, responsibility for the judiciary passed from the Lord Chancellor to the Lord Chief Justice.

Much as I will regret the disappearance of the office of Lord Chancellor (if it ever happens), the objective, separation of powers, I see as entirely laudable. It is the job of parliament to enact law, and the duty of the judiciary then to uphold and apply that law, at the same time treating each case on its individual merits. It is not for the executive to micromanage the way in which judges and magistrates carry out that duty.

It seems to me, however, that the new Ministry of Justice represents a retrograde step so far as the separation of powers is concerned. The Secretary of State for Justice is charged with responsibility provision and administration of the court system, the prisons and the probation service; the head of the judiciary, responsible for the delivery of justice in individual cases, remains the Lord Chief Justice. Well and good, but the Secretary of State takes up his duties with a prison service under severe strain and a probation service which is seriously underfunded. Both of these organisations face difficulties in providing the courts with the service which they need effectively to carry out their responsibilities. And the response? On the very first day of its existence, the head of the Ministry of Justice, Lord Falconer (the executive arm), announces his intention to restrict the use of custody, suspended or immediate, by the magistrates (the judicial arm). Thus, the very person who argued so persuasively for strengthening the separation of powers now proposes on his first day in office to blur or diminish that separation. The reason, moreover, is not that he considers that we are acting perversely or in bad faith, but rather that one of his departments is in a financial mess and so he wants to take some of the pressure off it.

All of this is justified on the basis that community penalties address reoffending more productively than custody, as if the only purpose of sentencing was to reduce reoffending. I don’t want to get onto the subject of the various other purposes of sentencing today, but I think I may well post something on that subject in the not too distant future.

For today, suffice it to say that I fear that the creation of a Ministry of Justice in its present form, may yet herald far greater interference by the executive in the delivery of justice. I’d particularly welcome comments on this from anyone reading this post.

Wednesday, 9 May 2007

Suspended Sentences

The new Ministry of Justice, I read, launched today with an announcement that the Secretary of State will seek to restrict the use of suspended sentences, in order to reduce the number of offenders being imprisoned. Obviously, Lord Falconer does not understand his own government's legislation.

The Criminal Justice Act 2003 effectively reinstated the suspended sentence which had virutally fallen into total disuse. The Act had in mind reducing the number of people going to prison. Now, we are told that restricting the use of suspended sentences will reduce the number of people going to prison. Diametrically opposed actions; same outcome. It doesn't make sense.

What's more, the new approach won't work. In order for a custodial sentence to be passed, the court must be satisified that the offence is, in the words of the guidelines, "so serious that only a custodial sentence will suffice". In other words, the courts cannot increase the severity of a community sentence by attaching a suspended prison sentence; the offence itself must merit custody. HOWEVER, the 2003 Act introduced a new requirement on the sentencing court. Having satisfied itself that the offence was indeed "so serious", it now had to ask itself "Can this custodial sentence be suspended?" If it can, then suspended it must be.

So, if the use of suspended sentences is once again restricted, the effect will be to send more people not fewer to prison, because if custody cannot be suspended, it must be served immediately.

I know it sounds like special pleading, but I really do think it would be better if the politicians left sentencing to the judiciary. We, at least, have taken the time and trouble to study the detail of the legislation and given careful thought to how it should be implemented.

Monday, 7 May 2007

Over To You

One of the more satisfying aspects of being a magistrate is the work I do for the Magistrates In The Community (MIC) project, which operates under the auspices of the Magistrates’ Association. Its objective is to bring a greater awareness to the community of what magistrates do, who they are, where they come from, how they are trained and what their powers are. In pairs, we visit organisations like Rotary, Round Table, Women’s Institutes, as well as local community groups, PTAs and the like. We also, increasingly, go into schools as part of the citizenship element of the curriculum.

We tailor the detail of the presentation to the particular type of group, but generally cover the same ground; after briefly introducing ourselves we invite the audience/class to take part in a quiz to establish how much they already know, before moving onto a sentencing case study for which we divide people into ‘benches’ of three and invite them to decide - as a bench - what sentence is appropriate for the offender concerned.

The quiz answers often surprise people - that the magistracy dates back to the fourteenth century, that it deals with more than 95% of all offences, that we have no legal qualifications, and most surprisingly that we are not paid for our work.

The sentencing exercise is a constant source of encouragement to me. In addition to a sheet setting out the facts of the case, the previous convictions of the offender and his/her personal circumstances, we also hand out copies of the appropriate page from the Bench Book guidelines together with a structured sentencing form. We set out the four sentencing bands available (fine/discharge, community order, custody, commit to crown court for sentence) and then let them get on with it whilst we circulate answering any questions and giving clarification as needed.

Recently, in schools we have been using the fictional case of one Terry Ball (22), convicted after trial of ABH to a bus driver. Our notes suggest that the appropriate sentence would be either a high-end community order with compensation or custody. Almost always our ad hoc benches arrive in the same area, their final decision depending on how important they feel it to be to keep Ball in his stable employment, providing for his young wife and two children. The only ‘mistake’ that crops up is that those who decide on custody will often also impose compensation for the victim. Interestingly, if we then introduce our powers to suspend a custodial sentence, the majority of those who have opted for custody also see the value of keeping him working (albeit with demanding requirements) and able also to pay compensation.

We encounter these outcomes irrespective or the age or youth of our audience; a reassuring demonstration of the underlying thesis of the magistracy, that if you take ordinary members of the public and equip them with starting point guidelines and a structure for their deliberations, they will usually come up with the ‘right’ decision. And, of course, it’s good to know that when people are given the facts they come up with the same sentences as we would, no matter that their preconception is that we are too soft/sending too many people to prison.

Thursday, 3 May 2007

Who Are The Prisoners?

Returning to the subject of prison, I’ve been hearing again in the media that most people in prison shouldn’t be there. This statement crops up so regularly that it almost takes on the status of a mantra. It’s usually followed by way of explanation by the comment “They are not violent or a danger to the public.” This, of course, begs the question as to what the purpose of punishment is, but that’s something I don’t want to get into right now.

I do think, though, that if we are to decide who should and who should not be in prison, it helps to start by identifying just who the prisoners are. I apologise here for not being able to say what percentage of prisoners fall into each of the categories, but I think the exercise is still useful.

Most obviously, since they are always referred to when saying the wrong people are in prison, those who have been convicted of the most violent offences, and those who represent a danger to the public form one group; a group that most people would agree should be there. Next, there is another large group whom it is generally agreed - by sentencers as well as the general public - should not be in prison. I refer to those whose offending is largely of a nuisance nature and arises out of mental health problems. Many years ago there was what was known as the mentally disordered offenders diversion scheme. It was an extremely helpful scheme which identified these people and, so long as their offence was not a serious one, referred them to the appropriate mental health services rather than bringing them to court. If occasionally such an individual did appear in court, we could stand the matter down whilst a member of the community mental health team was called to court to assess them, and they could still be diverted at that stage. Sadly, it long since fell victim to some cost-cutting exercise.

Then there are those prisoners who are in custody without having passed through the courts, terror suspects, failed asylum seekers and illegal immigrants awaiting deportation. To these may be added a group of mainly female prisoners, the ‘drugs mules’ who have been intercepted at Immigration, convicted and sentenced to custodial sentences which they must serve here before being deported to their country of origin at the end of their sentence.

So who else are prisoners?
- Some offences are considered so serious in themselves that, even though they do not involve violence, society deems that only custody is appropriate. Two high profile cases of this kind in recent years would be Jeffrey Archer and Jonathan Aitkin, convicted of perjury. Theft by an employee, particularly if large sums are involved, is another offence likely to attract custody because of the breach of trust involved. So, too, would fraud, forgery and the like. My guess is that this would account for a fairly small number of prisoners.
- Offences which would not normally attract custody, might be dealt with this way when committed by someone with a long history of such offences, who has not been dissuaded by other types of sentence.
- Next, we come to those people who will not comply with a sentence which requires their co-operation. This covers a whole range of offenders; those who persistently fail to pay their fines despite repeated court appearances to persuade them to do so; those who don’t turn up for their probation appointments, don’t do the unpaid work that the court has ordered, repeatedly go out during their hours of curfew, persist in driving when disqualified from doing so, repeatedly breach the requirements of an ASBO. Those, in other words, who seek to flout the court’s authority. Inevitably, the day will come when the court substitutes a sentence which does not require their co-operation.
- Finally, a similar group consists of people to whom bail is refused, or from whom it is withdrawn. Refusal occurs where the court finds that there are substantial grounds for believing that if given bail they will a) fail to attend court, or b) will commit further offences whilst on bail, or c) seek to interfere with witnesses, and where additionally the court is satisfied that these concerns cannot be dealt with by imposing conditions on the bail. Withdrawal occurs, where conditions have been imposed, but the person breaches one or more of those conditions.
- There are probably some other groups that I have overlooked, but they would not account for more than a small number of prisoners.

The question which those who argue that these people should not be in prison have to answer, it seems to me, is “How then would you dal with them?”

Wednesday, 25 April 2007

You can't help smiling

It's not all doom and gloom in court. Indeed there are times when it's difficult to keep a straight face. One lady - many years ago - found it absolutely impossible. Unfortunately, she was the defendant!

We were sitting in the fines court and I was in the chair. The lady in question was up before us for non-payment of a fine for no TV licence imposed about 18 months previously, with payments ordered at the rate of £3 a week, with no payments at all having been made. This was well before the days of Fines Enforcement Officers, so it was for us to decide what to do next. Summoned by the tannoy, she entered court beaming from ear to ear. She continued to beam as she confirmed her name, age and date of birth; agreed still smiling that the fine was hers and that she had made no payments. Smilingly she explained to us that what with one thing and another, not to mention what she owed on the club, she simply hadn't got around to making any payments.

I and my colleagues were not impressed with her lighthearted attitude to her predicament. I decided it was time for a few words. "I don't think you realise," I said sternly, "what a serious situation you are in. From what you have said, we could very easily conclude that you were culpably neglecting this fine, or even wilfully refusing to pay it. If that were our decision, we could send you to prison. -TODAY!"

"I know," she stammered, still grinning. "I'm scared shitless."

Appearances, I learned that day, can be deceptive.

Tuesday, 24 April 2007

Prison places

Listening to Today this morning on Radio 4, I heard Lord Woolf, the former Lord Chief Justice, suggest that the Sentencing Guidelines Council should be treated in a similar way to the Bank of England. Just as the Bank is tasked with ensuring that the inflation rate does not rise beyond a certain target ceiling set by government, so the SGC should be tasked with containing the prison population within a ceiling set by government. As with inflation, so how the SGC achieved its target would be a matter for those who manage it.

Whilst on the face of it this suggestion has a certain appeal, it seems to be endorsing the popular view in the media and among the public, that the prisons are full because judges and magistrates are too ready to send people there and for too long, rather than considering the possibility that the prisons are full because the Home Office has failed to provide sufficient capacity.

The accusation that we make too much use of custody is very frequently repeated these days, although most if not all of us can remember that only a couple of years ago we were said to be 'too soft' on offenders. The media, it seems, can indeed have its cake and eat it!

If you do not work within the criminal court system, you are probably unaware of just how hard an offender actually has to work in order to attract a custodial sentence. Let me enlighten you.

Broadly speaking, there are four bands of sentencing for magistrates' courts.
1. A fine or a discharge;
2. A community based penalty (probation, curfew, unpaid work, drug/alcohol treatment programme);
3. A custodial sentence of up to 6 months
4. Committal to the Crown Court for a longer custodial sentence.

The process of sentencing an individual starts at the lowest band, and reviewing the nature of the offence,we ask "Is a fine or a discharge (conditional or absolute) appropriate for an average offence of this type?" If the answer is "Yes", we look at any aggravating features to see whether they would raise the 'tariff'. If there are none, then a fine/discharge is the only sentence available to us.

However, if the aggravating features do make it too serious for a fine, or if the offence they have committed is in itself more serious, then we would ask "Is it serious enough for a community penalty?" If we conclude that that is the case, we must now place the offence in either the low, medium or high range of community penalty and sentence accordingly. Thus, a low level might warrant 60 hours of unpaid work, a medium 150 hours and a high 250 hours.

Next are those offences which (of themselves, or in the circumstances) appear to us to be "so serious that only custody is appropriate". Nobody can be sent to prison if we are not able to spell out in open court why we believe that this threshold has been crossed. Moreover, if our reasoning is faulty then the sentence will be overturned on appeal.

As if that were not sufficient to ensure that only those people deserving of custody are sent to prison, under the Criminal Justice Act 2003, having decided on custody, we must further ask ourselves "Can this sentence be suspended with requirements attached, or must custody be immediate?" And if we decide that immediate custody is needed we have to give reasons for our decision in open court, and if those reasons are faulty, the sentence will be suspended on appeal.

My experience over many years now, sitting with many different colleagues, is that magistrates do conscientiously apply this structured approach to sentencing and only send offenders to prison when no other sentence is appropriate.

Should we, then, be exhorted to send fewer people to custody at all costs? And if so, what should we do instead?

Sunday, 15 April 2007

Detention without charge or trial

I read in The Independent yesterday that a recent survey by Communicate Research has shown that 28% of Labour MPs would like to see the 28 day limit for police to detain terror suspects increased to 60 days, whilst a further 36% would like it raised to 90 days.

Let's just put that into context. Magistrates' courts deal with 95% of all criminal cases in this country each year. The maximum period of custody that we can impose for a single offence is six months. However, if the defendant has pleaded guilty to that offence at the first opportunity, then we must allow credit for that guilty plea and reduce the sentence by one third. So for a guilty plea, four months would be the maximum.

These sentences are for offences at the top end of seriousness for all those that we deal with. That may be because the offence itself is particularly nasty, or because the defendant has so many previous convictions for similar offences that the court can see no option but to impose the maximum available to it.

But a custodial sentence of 4 or 6 months does not mean that the offender spends 4 or 6 months in prison. Only half of the sentence is served in prison; the offender is then released on licence to complet the remainder of the sentence in the community. If he/she complies with the terms of the licence, that's that. Only if he/she breaches the terms of the licence are they returned to prison. So what?

So this; a four month sentence is equal to 120 days, and a six month sentence to 180 days. The time spent actually in prison will be 60 days for a four month sentence and 90 days for a six month. What these MPs are saying, therefore, is that they are happy for people to be locked up without charge and without due process for the equivalent of the maximum time that the magistrates' courts can impose for their most serious offences. Call me an old softy if you like, but I find that attitude scary.

Saturday, 14 April 2007

It's certainly change, but is it progress?

The season for bench half-year meetings has come around again, and it set me reflecting on the way things have changed in the fourteen years that I have been a magistrate. Back in 1993 we, like all metropolitan benches, were an independent entity, a petty sessional division serving our local community. The focus on the needs of the local community were reinforced by the fact that our PSD boundaries were identical to the borough boundaries (or as that appalling neologism would have it, coterminous).

The regulation of the court business was in th hands of the bench chairman and a small committee of senior magistrates, supported and guided by the clerk to the justices. The bench chairman was responsible for the magistrates; the clerk to the justices managed the staff and the facilities. It all worked very smoothly and we all felt part of the team. In addition the Advisory Committee dealt with any serious conduct or disciplinary matters, and sitting above all was the illustrious person of the Chancellor of the Duchy of Lancaster, by whom we were all appointed.

It was not long before things began to change. The then Lord Chancellor, Lord McKay, was not happy to have so many individual entities all ploughing their own furrow, and one could see his point - up to a point. Despite the best efforts of the Magistrates' Association to promote the idea of consistency in sentencing across England and Wales, most benches had their own 'black book' of recommended penalties for the whole range of common offences. But I suspect that he was also mindful of the fact that all of those individual clerks to the justices represented a powerful group when not happy with government proposals. Reducing their number would commensurately reduce their power. Officially, however, what concerned the Lord Chancellor was that financially it was wasteful and inefficient for his department to have to deal all the time with so many small individual PSDs.

The solution proposed was that PSDs should be encouraged to amalgamate with their neighbours and form larger, more efficient units. As I recall, sixty to eighty such groupings were thought to be appropriate. Some PSDs took the view that if that was what the Lord Chancellor required, then he should deal with it, not them. Others, my own included, took the view that if you jumped rather than waiting to be pushed, you might negotiate a better deal from the LCD. And so we amalgamated. However, the much vaunted efficiencies and cost savings were not readily apparent, because - naturally - there had to be a new level of management to run the new amalgamated body. And that very quickly came to cost more than had been saved, in addition to slowing down decisions, which now had to be discussed at length in committee, instead of over coffee or lunch in the Justices' Clerk's office. The decision makers, moreover, were now only available to and answerable to the magistrates themselves through intermediaries (MCC members) and we began to feel the effect in a reduction in involvement and consultation.

Of course, progress once initiated must be maintained and soon gathers momentum. In 1997 there was a change of government, and with it a change of Lord Chancellor. Lord Irvine spotted that if fewer justices' clerks were easier to control, then fewer still would be even easier! Forget sixty to eighty amalgamated bodies; henceforth PSDs should be coterminous (It is Lord Irvine who saddled us with this awful word) with police authority boundaries, and by considering the Met and the City of London police to be one for these purposes, declared that there would shortly be just forty two bodies for the whole of England & Wales. Oh, and PSDs would henceforth be known as PSAs. Now forgive me for seeming cynical, but when a government feels that it is worth spending time on changing a single word, I want to know why. Well, the reason was simple. PSD boundaries can only be changed by legislation, whereas the new Petty Sessional Areas could have their boundaries changed (tampered with, if you prefer) administratively. He also suggested that it would be far tidier if he removed responsibility for magistrates in the County Palatine from the Chancellor of the Duchy of Lancaster, and took it over himself. Unfortunately/fortunately, it transpired that due to the foresight of a Greater Manchester MP at the time of local government reorganisation, this could only be achieved by primary legislation, so it was shelved for a later date.

That later date arrived a couple of years ago when the government decided to combine the magistracy and the Courts Service into a new amalgamated body, HMCS. So having undergone one amalgamation in 1995, and another in 1997, we then faced a third. Each one has increased the distance between those who decide what shall happen and those who have to carry it out, be the latter magistrates, legal advisors, court managers or whatever. Justice may still be local in its delivery - though that is debatable - it is far from local in its management and accountability.

It must be acknowledged that benefits to the community have indeed occurred during this process, though whether because of it I am not sure. Principle among the benefits are the much higher quality of training which is now routinely available to magistrates to fit them for their duties and keep them up to speed, and a much greater degree of consistency across England and Wales in patterns of sentencing. These are good things and we should be proud that we have achieved them.

But I have recently become conscious of a parallel, insidious process which has been running alongside the one I have described. We used to be concerned first and foremost with the delivery of justice in our deliberations. At our recent half-year meeting, however, the word 'justice' did not crop up once. Instead, our masters at Area speak solely of performance targets, of cost savings, and of 'business cases' as the basis for decisions. I fear that in the past fourteen years we have begun to lose sight of our primary purpose. And that is most definitely not a good thing.

Wednesday, 11 April 2007

Beyond Reasonable Doubt

A day in court today. We were in the trials court with two cases listed, one for half a day, the other for four hours, which takes some doing in a six and a half hour court day, even without the complications of a work to rule.

That problem at least was resolved when the advocates asked for time for further discussion before starting trial 1. The outcome was that, for no clear reason, the CPS agreed to accept the defence's offer of hands up to breach of the peace and bind over. We remarked on the cracked trial form that we had not been enlightened as to why this could not have been done earlier in the history of the case, though I doubt that will have any great impact on the parties.

The second trial developed into one of those cases where you believe one thing but decide another. Having heard all the evidence it was clear that the prosecution case probably reflected matters as they had occurred. Unfortunately, it didn't take the case beyond 'probably', and so the defendant was acquitted. The blame (if such was the case) couldn't be laid at the door of the CPS; it was just the way things panned out on the day. I console myself on such occasions - which, to be fair don't occur that often - with the thought that if my suspicions are correct, then an acquittal is hardly likely to bring the defendant to a 'Road to Damascus' turning away from a life of offending, in which case he/she will be back. Justice deferred rather than justice denied, as it were.

Tuesday, 10 April 2007

Hard cases make bad law

The old legal saw holds just as true today as it ever did. So It concerns me to hear on Radio 4 this morning that "Sara's Law" is to be piloted in four areas of England. My concerns cover a number of different considerations.

Having been on the receiving end of a number of Home Office 'pilots' over the years, I have detected a disturbing trend; unless they prove unexpectedly expensive, eventually they always get rolled out nationally, whatever their merits or demerits. I'm worried that this is simply a way of softening up opposition by introducing the law on a creeping basis.

I'm reminded of the appalling scenes in the aftermath of the Sara Payne trial, where incensed parents marched through local estates protesting against the rumoured presence there of a paedophile (or in one celebrated instance, a paediatrician), armed with inflammatory banners and placards, chanting slogans - and dragging their young children along with them. The thought of such episodes being repeated around the country fills me with horror.

I also give weight to the belief of the Probation Service, Barnado's and the NSPCC that such a law would actually increase the danger to children rather than protect them. Why? Because the greatest degree of protection for children comes from the authorities knowing the exact whereabouts of a sex offender, and monitoring and supervising that offender very closely. The risk is that a Sara's law would encourage such people to abscond and go underground, and so unmonitored to represent a far greater danger. At the pilot stage, the temptation would be to move out of the pilot area. So the risk is not minimised; it is simply exported to another community.

The setting of a precedent also disturbs me. If the local community is entitled to know that there is a paedophile living in their midst, why not a murderer released on licence? Or a rapist? A sneak thief who preys on the elderly? Anyone convicted of anything, indeed? And then what happens to the goverment's much vaunted and much to be applauded emphasis on the need for the criminal justice system to rehabilitate offenders?

Finally - at least at the moment - what about mistaken identity? Unless details of the name, address, and photograph of the offender are made freely available, the danger exists that stereotyping will lead to perfectly innocent but mildly eccentric 'loners' being identified by the vigilante element as 'him', and suffering accordingly.

And on what basis is a Sara's law felt to be necessary? The actual level of offences against children by paedophile offenders outside the family is, I believe, no higher than it was during my own childhood sixty-odd years ago; what has changed is the perceived level, fuelled by ongoing media interest. I fear such a law will only exacerbate the paranoia.

Monday, 9 April 2007

To set the tone.....

Well, every blog has to start somewhere, so let's kick off with a topic that is raising my hackles just at the moment. The 1st April saw the implementation of a piece of legislation which hardly any of us had spotted earlier, and about which I am not at all happy. Isn't it appropriate, by the way, how many of a government's harebrained wheezes have an April 1st start date!

Anyway, this April 1st brought the Victim Surcharge into being. The government is committed to improving victim support services in England & Wales, and to this end has decreed that henceforth we, the judiciary, shall impose a £15 surcharge on any offender whom we fine, the proceeds going to said improvement of services. The surcharge is to be imposed irrespective of the nature and seriousness of the offence (so long as it is dealt with by way of a fine), irrespective of whether the defendant pleads guilty or is convicted after trial, irrespective of the defendant's previous offending history, and irrespective of his or her ability to pay the surcharge.

I mention all of those factors because each one is a factor that we are required to take into account when passing sentence on an offender. We take them into account because justice demands that each case is dealt with on the basis of its individual circumstances and those of the offender. But the VS (as I shall now refer to it) is not about such things. The VS is about parting people in no position to argue from £15 of their money alongside the court's legitimate business of punishing them for their offending. In other words, the VS is not a punishment; it is a tax. And I don't feel that it is any part of my judicial duty to collect tax payments on behalf of the Treasury.

Not only is it a tax, but it is an arbitrary and capricious one. The briefing that we have had from our Head of Legal Services, is that the key word here is 'fine'. If we fine a defendant, then we must also surcharge them. If the financial penalty takes the form of ordering them to pay compensation to their victim rather than a fine, then no surcharge is involved. If they accept a fixed penalty notice and don't come to court - no surcharge. Default on the fixed penalty and get brought to court - surcharge. If your offence is more serious and requires a community based penalty or custody rather than a fine, then again there is no surcharge. And if the offence is down at the bottom end of seriousness, so that a condional discharge is judged to be more apprpriate than a fine, again there is no surcharge. Now you may be able to discern a logical thread running through all that, but I have to admit that I cannot.

And it gets better. Quite properly, the courts these days operate on the principle of openness and transparency, so we state in simple (hopefully) language what we are doing and why we are doing it at each stage of a case where a decision has to be made. So we shall, of course, explain to the defendant that in addition to the fine that we are imposing and the contribution we are requiring him/her to make to the cost of prosecution, we are also imposing the sum of £15 to improve victim support services. I anticipate a vociferous response from the more articulate defendant, and a response approaching contempt of court from the less articulate! It is not clear, incidentally, whether we can offset the impact of the VS by a reduction in fine or costs of £15 where the defendant is of limited means, and so the penalty has had to be set at a level which can be paid; for those on benefits, the VS may well carry the penalty up to a level which they will be unable to pay and so then we may have to treat them as defaulters, who can at the end of the day be jailed for non-payment.

Oh, and in case you are thinking that if I feel so strongly I should simply refuse to impose the VS in cases that come before me and my colleagues, on appointment to the Bench, I swore the judicial oath by which I committed myself to apply and uphold the laws which parliament enacts. So my options are 1) impose the VS or 2) resign from the magistracy.

I'd be very interested to know what other people think