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. http://news.bbc.co.uk/1/hi/uk_politics/6681579.stm

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?”