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.