Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Thursday, 24 May 2018

MAXINE DE BRUNNER: A DISGRACE TO THE POLICE

Recently BBC TV has been showing short docudramas from forty years ago; "Law and Order" in which the corruption of the Metropolitan Police, often hinted at but rarely investigated, is depicted in all its rotten reality. That rottenness has never been entirely eliminated owing perhaps to political awareness of what problems and embarrassment the revelations would cause or the fact that the corrosive constituents are still in place; greed, pride and ego. 

The history of an ex senior Met officer Assistant Commissioner Maxine de Brunner is a history of all that is wrong with the Met. I first commented upon her activities  on 10th June 2016  and then a month later and finally on 19th August 2016.  This sad sordid story is now concluded. Chief Inspector  Adrian Denby a decorated and respected officer has been awarded £870K as a result of de Brunner`s sex discriminating actions against him. That it has taken two years to achieve the wronged officer`s vindication is a disgrace.  That the Met is considering an appeal compounds its folly. What is equally disturbing is that the Home Office refuses to divulge under the Freedom of Information Act the numbers of senior police officers convicted of misconduct; such refusal being only an indication of how serious misconduct by senior officers is on the increase and that the confidence of we the public would take a massive hit if the truth were known.  

Tuesday, 22 May 2018

THE PERCEIVED QUALITY OF LAY MAGISTRATES

There are around 16,000 magistrates in England and Wales and around 300+  District and Deputy District Judges (MC). It has been the practice since time began that the powers that be namely Justices Clerks or their Deputies who run individual courts to allocate to DJs those matters which might be of public significance, supposedly too esoteric for the lay magistrate too understand or involve complicated law.  I have in the past whilst active but to deaf ears protested about this syphoning of cases. The legal profession by and large disagrees with my point of view and to some degree I can understand this.  There is a large minority of Justices of the Peace whose limited intellectual capacity would be exposed if presented with arguments which strained their brain matter.  Nevertheless IMHO justice is seen to be done when a mini jury of three brings in a verdict as opposed to a single professional District Judge. Such might have been the case last week when a police officer who tasered her force`s own race relations advisor was acquitted of  assault by the unlawful  discharging of a taser gun.  It seems that according to the report "Judge Ikram said: “The issue for me is whether the prosecution have persuaded me that she didn’t act in self-defence. The prosecution failed to persuade me and she is found not guilty of assault for that reason.”"  Presumably the court was shown the video evidence.  My point today is that a jury of three lay magistrates might well have come to a different conclusion in this case.  The corollary is if the Appointments Committees up and down the country fail to appoint the best candidates or make up required numbers by reducing their standards the argument for restricting cases such as this to paid civil servants on the bench will continue in a vicious circle until the magistracy in its current form will be precluded from presiding over any public court.  

Monday, 21 May 2018

OUTSOURCING SCANDALS, BREXIT, MAY MUST GO

From the days of Margaret Thatcher outsourcing has become a watchword for successive governments.  The philosophy behind this form of contracting was and is that much of the expenditure was off the current balance sheet, capital expenditure could be reduced with the price paid  being contracts that were not fit for purpose and trade unions would not have power over the outsourcing company`s employees as they (the employees) would be beholden to the company and not direct government) thus reducing union ability to control or influence said workers.  There have been many scandals affecting these companies and many have direct contracts with the MOJ and Home office  eg running prisons, transportation of prisoners to and from court, probation services, providing translation services for police and courts.  One such company is Sodexo. In 2013 the company was intimately involved in the horsemeat scandal.  In 2016 at Its Bronzefield Prison there was the tragic death of a prisoner.  A year ago its Northumberland Prison registered a death in custody.  


There were 354 deaths in prison in 2016, including three homicides. This compares to 257 deaths in 2015 and 8 homicides. In 20161, there were 204 deaths by natural causes, 120 deaths by suicide and three homicides. 27 deaths are currently classified as ‘other’. This includes 18 deaths classified as ‘awaiting further information’ and nine deaths classified as ‘non-natural/other’. There were 120 deaths by suicide in prisons in 2016, the highest annual number since records began in 1978. This figure may rise when the outstanding AFI deaths are re-classified. There were 90 deaths by suicide in 2015 and 89 in 2014. There were three apparent homicides in prison reported in the media in 2016. There were eight apparent homicides in 2015, the highest number of homicides on record since 1978, where there were five homicides. There were three homicides in 2014 and four in 2013.

Last year Sodexo won a large order for the Department of Work and Pensions. However last week the company was fined £304,925 for operating a river cruise boat  without a valid Domestic Safety Management (DSM) certificate. This omission put the lives of passengers at risk.

In the mind of this capitalist supporting blogger outsourcing in general, not forgetting the scandals involving hospitals and care homes, has reached its sell by date. This and previous government by not restraining raw capitalism which has been allowed to run riot, the Carillion collapse of last month being just the latest example, is bedding in the possibility of Marxists entering numbers 10 and 11 Downing Street. With the current occupants there tearing each others eyes out over Brexit they have lost sight (pun intended) of the basis on which this country has provided our still just about coping standard of living.  MAY MUST GO before it`s too late. 

Friday, 18 May 2018

Wednesday, 16 May 2018

RESPECT!

I have long voiced my disdain whilst active and now retired of various displacement orders. Drinking banning orders are such an example; don`t drink in my patch........drink in somebody else`s.  They are often civil orders which lead to criminal charges if breached. They are generally a disgrace to our society and legislature. In Norwich a beggar was under the damacles sword of a community protection order when he was brought to court for breach. The CPS requested that a criminal behaviour order be imposed.  The bench refused that request.  My hat is doffed to their action or rather lack of.   May the magistracy as an organisation of individuals think very clearly before meekly complying with such requests from a CPS which just doesn`t know what to do in these circumstances and a Ministry of Justice which just doesn`t care.

Tuesday, 15 May 2018

FROM THE PARLIAMENTARY HORSE`S MOUTH

A couple of recent statements and information from the House of Commons.

The first copied below is part of a speech from Alex Chalk, Conservative MP for Cheltenham on the Grenfell Inquiry.  His words should be noted by those who criticise magistrates for not having the intellectual ability to understand complex cases.

"From my experience, just an appeal from a magistrates court in a relatively modest case will involve a judge and two lay assessors. That is why it is critical that the other members of the panel, which includes Mr Justice Moore-Bick, have decision-making power. They cannot simply be there to be thought of as making up the numbers; they must bring their weight of experience from the community and shared understanding. By the way, over many centuries lay people have shown themselves well able to analyse complex issues and do justice. To those people who might suggest we have simply a single judge, it is no answer to say, “Oh, it’s too complicated, too difficult, too technical.” Lay people are capable of understanding—of course they are—as long as matters are properly presented, and I am sure they will be."



An interesting parliamentary answer yesterday on the cost of pre-sentence reports is copied below..

Rory Stewart The Minister of State, Ministry of Justice

Information is available on the direct staff costs of preparing a pre-sentence report, based on the average time in which it is expected that reports will be completed. These costs include the time spent by the officer in court to deliver the report.
The average assumed cost of each type of report is shown in the following table:
Report typeAssumed average cost per report (£)
Standard-Delivery Report270
Short-Format Report110
Oral Report60
Information is also available on the annual volume of pre-sentence reports delivered in courts across England and Wales in 2015-16 and 2016-17. Full-year figures for 2017-18 are not yet available. The following table shows annual volumes of pre-sentence reports ordered by the courts for 2015-16 and 2016-17, together with estimated total costs. These estimates are based on the average cost figures given above and the planning assumption that 60 per cent of all reports should be delivered as oral reports, 30 per cent as short-format reports and 10 per cent as standard-delivery reports.
Data PeriodTotal number of pre-sentence reports (000s)Assumed Costs (£m)

1 Apr 2015 – 31 Mar 2016160.420.9
1 Apr 2016 – 31 Mar 2017136.716.1

Friday, 11 May 2018

IS AN ENGINE CUT OUT A GET OUT FOR MOBILE PHONE USE WHILST DRIVING?

It has been illegal for a motorist to use a mobile phone while driving since 2003. This includes handling the device, sending a text or following a map, even when the car is waiting at a set of traffic lights, as the engine is still running. In 2017 stricter phone driving laws came into force in a bid to deter people from breaking the rules.

A few years ago owing to an EU determination to reduce pollution many cars were being offered as standard equipment an engine cut out when the car was stationary.  I wonder if any legal eagles have attempted to use this factor in an attempt to have a client acquitted of the charge of using a mobile phone when driving. 

Thursday, 10 May 2018

CITIZENSHIP POST BREXIT

Currently there is no requirement for a jury member to be a British citizen. Surprisingly there is a similar lack of citizenship needed for an aspiring M.P.  Anyone wishing to stand as an M.P. must be over 18 years of age, and be a British citizen or citizen of a Commonwealth country or the Republic of Ireland.  In the light of current events perhaps the time has come to alter the rules of both organisations. 

Tuesday, 8 May 2018

THE CASE TO BRING BACK THE WORKHOUSE

Six months ago I posted on the benefits of the workhouse if the Victorian model were updated for the 21st century. The situation over the weekend at a special sitting of Nottingham Magistrates Court was just another example of what courts nationwide see every day; it is a disgrace to the society we live in which we are told by politicians of various hues is the 5th largest economy in the world.  During my lifetime since the end of WW2 this country that stood alone for a year against Hitler has been unable to harness the strengths of its people to do in peacetime what they did in war.  That is not the fault of the people but of those of Left and Right who since then have mismanaged the economy.  There is currently a BBC programme on what was the world`s most innovative aircraft manufacturer.  I recollect as a young child my father taking me to see the then largest passenger plane in the world; the Bristol Brabazon. It never was more than a prototype because its piston engine power was about to be superseded by jet propeller power.  Then the same company produced the Bristol Britannia a jet prop airliner in which I have flown which was rendered obsolete by the incoming Boeing 707 also in which I have been a passenger. The tale continues right up to Concorde  which was much too small via the Comet in which I also flew. The car industry suffered similar decline as did myriad other industries where poor management and myopic reasoning prevailed.  And so it is with social measures to limit the headlong plunge to penury and misery of a persistent small percentage of the population. Surely it doesn`t take a would be Marxist power to the people follower of Castro and all things anti historic to wake us up to the mismanagement of current social thinking. Bending over backwards to avoid giving offence to every Tom, Dick, Harry, Tommasina or Harriet leads to a broken spine.  Taking penniless addicted or non addicted individuals through a courts system which has been emasculated serves no purpose except to highlight the complete disassociation of those in charge and the population being served. Our social care system in all its aliases is broken. So once again I ask why there should not be re-established a nationwide series of workhouses where the dregs of the law breaking miscreants currently brought through the courts can be legally held in secure accommodation until such time as their release would be to their benefit and society`s as a whole? 

Friday, 4 May 2018

RAPE "NOT PROVEN" BUT ONLY IN SCOTLAND

When it comes to society, justice and the law Scottish thinking is often practically and philosophically some distance ahead of the other parts of the UK.  The alcohol tax introduced this week is an example which is highly unlikely not to be followed south of the border in due course.  On the subject of trials the Scots verdict, unique in the English speaking world, has many merits as does the requirement of two witnesses, even if police officers,  to corroborate evidence.  However when the subject is rape controversy is never far away in Scotland as elsewhere. Conviction rates are bandied about like jelly beans depending upon which side of the argument one is supporting.  The recent problems disclosed or rather not disclosed in recent high profile rape trials in England have brought the topic to a wide audience.

In March in Scotland there were angry protests at new guidance that could force rape victims to give evidence against their will. Earlier this week Scotland`s chief judge suggested that rape "victims" need not appear in court. These two apparently diametrically opposite viewpoints can be read and compared in reports here and here

There is no doubt that this debate will become more heated in all parts of the country.  When not just a normal act between two people but one could say an essential part of human life can become a criminal act there is bound to be rancorous debate.  When the likelihood of an impartial witness being available to corroborate or deny an account by the accuser or the accused is constrained a court must use all it has at its disposal to reach the truth; an exercise of extreme difficulty.  All of which leads me round in a complete circle from my statement above; namely the verdict of "not proven" in a rape trial must in real terms be a summation in the minds of many jurors but finding actual expression only in Scotland. 


Wednesday, 2 May 2018

MP`s SELF PROMOTION

Since the introduction of Sentencing Guidelines over a decade ago the process of sentencing has been reduced to a tick box exercise. Different Acts of Parliament and various degrees of seriousness, harm and culpability are to be considered. In the matter of assault these vary from common assault to causing actual bodily harm. As an example of the former with regard to the protection of those in the police force a separate charge was instituted under the Police Act 1996, s.89.  Now it is hardly a revelation that many individual M.P.s attempt to attach their names to initiate legislation sometimes  of great significance eg the Abortion Act by David Steel in 1967. But it is equally the case that some arguably useless pieces of legislation have slipped through the occasionally sharp eyed spectacles of the parliamentary draftsman. Such an instance is typified IMHO by Laura Smith Labour MP  elected  in the snap 2017 general election. As a newcomer to the House of Commons she is trying to fly her debutante`s flag from the legislative flagpole by expressing  her support for a new law that would offer more protection for police, firefighters and NHS workers in Crewe and Nantwich from sexual assault.  Note that all she apparently has done is to send a press release on the topic. She has not spoken in parliament on any subject allied to this press announcement. Public servants, such as she seeks to protect, have all the protection needed by their very occupation offering aggravation to the sentencer and thus increased culpability. Perhaps shouting loudly in the local press is an acceptable way for a new female Corbynista MP  to retain the support of her public. 

Monday, 30 April 2018

TIMES ARE CHANGING FOR DRIVERS

I blog only occasionally on motoring matters cf criminal behaviour by drivers.  As is often said of law breakers, ignorance of the law is no excuse. It is a long time since I paid more than a cursory glance at what the Daily Express had to say but for many drivers and car owners the times are a changing.  

Thursday, 26 April 2018

HOME OFFICE IS DEMONSTRATING ONCE AGAIN THAT IT`S UNFIT FOR PURPOSE

A chief Constable will be appearing on 24 May 2018 at Westminster Magistrates court on a  Health and Safety prosecution.  Although unrelated it is interesting to note that the Home Office has refused to release figures on the numbers of senior and chief police officers found guilty of misconduct. In the light of current matters at said Office this blogger is of the opinion as a previous incumbent made clear  that it needs a thorough overhaul of policy, personnel and oversight i.e. it is not fit for purpose.

Monday, 23 April 2018

SUSPENDED SENTENCING ORDERS SHOULD FOLLOW THE ORIGINAL STRUCTURED APPROACH





When sitting with colleagues  recently appointed I occasionally reminded them that we had a duty of public protection ensconced within the formulaic information overload that they were doing their best to absorb.  It was a function that was rarely if ever mentioned in any training course and one with which  most new colleagues could immediately feel comfortable as they were faced for the first or second occasion when the custody threshold had been breached.  For many the realisation that their decision meant that a fellow citizen`s  liberty was being taken from them was a sobering  moment.  Such decisions and the structured approach employed to achieve them were perhaps most significant when it came to deciding if a custodial sentence could or should  be suspended.  The pressures on so doing were and are enormous.  At all levels from Secretaries of State to L/As via PSRs and trainers,  the lower courts in particular  are being “asked” to  employ some form of rehabilitative requirement and to eschew immediate custody. 

There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.


Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.


The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of a suspended custodial sentence is a very hot potato. Sentencers only chip away to its underlying principles as best as they can in order to use it justly for all involved.  



The latest twist in the saga of suspending custodial orders has been revealed by the Sentencing Council.  Incidentally I sometimes wonder whether this organisation is the wagging tail of the public opinion dog. Whatever its anatomical relationship to the concept of sentencing once more it is changing direction as this report of a circular released by its chairman Lord Justice Treacy reveals. 

 “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”
Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In short all this hoo ha stems from the failure of some sentencers and probation officers to follow a recommended sentencing structure in which a suspension of a custodial disposal can take place when and only when  the custody threshold has been breached.  It would make more sense if all those involved followed the practice intended.  Even those with some influence seem to be mesmerised by this topic.  Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences.

She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective

The only conclusion I can arrive at is that the simple sequence in a structured sentencing policy that would satisfy the original and not unreasonable reasons for the option of suspension of custody has been ignored and needs to be re-visited. 



Wednesday, 18 April 2018

ANT McPARTLIN//COMMUNITY SENTENCE MORE SUITABLE?

I have blogged on the topic of fines a few times over the years  Indeed insert fines into the search box and they can be read by anyone interested. All this came back to me on reading of the £86K fine to multi millionaire entertainer Ant McPartlin for drink driving.  It would appear that he was fined at Band B [100% of weekly income admitted at £130K] with one third reduction for early guilty plea.  Considering the damage done to a third party it was surprising he wasn`t also charged with careless or dangerous driving in addition. Be that as it may, the financial imposition will make absolutely no difference to his current or future life style. Surely the public humiliation of community service would have been more appropriate in his case and for others whose vast fortunes and/or incomes render financial penalties a sanction without meaning.