The Justice of the Peace [magistrate`s] Blog:

I won`t go into the history of the ASBO; I`ve blogged at length many times previously and most readers will be familiar with them, their origin and their likely abolition in the life of this parliament. However the imposition of what the local Manchester on line newssheet Click proclaims is the first ASBO as a result of the riots last month is in my opinion another perhaps obtuse example of nimbyism…..{not in my back yard}
Various banning orders are available to police to displace a social problem drink banning orders and dispersal orders being just two. Moving problem individuals from one area to another for that is the real effect of these orders is just a legal way of sweeping problems under a legislative carpet. We should be able to do better.

There is such a social entity as voluntary contribution but when headlines quoting Peter Carter, head of the Royal College of Nursing, recently have suggested that relatives of hospital patients should be encouraged to come to hospitals and help with nursing duties of feeding patients and other tasks such as taking them to the lavatory the whole concept seems to be taking a sinister turn. He appears to overlook the fact that many relatives as ordinary working folk have their own responsibilities to their employers and their children, might not wish to wipe the bottoms of elderly parents, would disrupt the ward programmes and would increase possibilities of introducing infections……when did we last see doctors in freshly laundered white coats when on duty? The concept of volunteerism as being expounded by David Cameron is at risk of being used as camouflage for the employment of unpaid labour.

Exactly a year ago the Metropolitan Police announced that only those who had served as an unpaid part time special constable for eighteen months would be considered for employment as full time police constables. I think this is a wonderful filter in times of high unemployment to enable only the best and most motivated to enter the force. It is a form of apprenticeship or indentures which was common until thirty years ago for various occupations including law and accountancy. It was the basis of nurse training with student nurses being paid low salaries until qualification as state enrolled or registered nurse the majority of the training being done at the coal face of the ward. For the well heeled middle classes internship is now the name of the game for those who can afford to subsidise the work experience of their offspring.

Thames Valley Police seem to be taking the concept to a higher level. Currently they have 625 volunteers. They want another 100. The Chief Constable is quoted as saying, “ it would create substantial benefits for the force, particularly in relation to engagement, inclusion, diversity and value for money.” I would place great weight on the last three words. If an employer can have the required work done for nothing it`s a no brainer. As Justices of the Peace we are also unpaid volunteers. In times of economic uncertainty it is unlikely that applicants to the bench will be as numerous as in times past especially with doubts as to the future of this institution. But the recruitment into police forces of unpaid staff when redundancies are being created at most levels is a disturbing feature of the cost cutting applied to the police being ruthlessly argued at the highest political level.

When magistrates send an either way case to the crown court where the plea is not guilty because they decline jurisdiction owing to the facts appearing to indicate the matter is too serious for their limited sentencing powers if the defendant were to be found guilty and when they do similarly after summary conviction they expect a judge to use his/her full sentencing powers i.e. more than six months custody. In 2007 or 2008 then Justice Secretary Jack Straw in a public speech described how over 20,000 such cases in the year resulted in sentences within the lower courts` powers. This blog has previously highlighted such cases.

There is, in my court, widespread criticism of the new guidelines on assault. This criticism emanates from the legal advisors and most if not all colleagues who have been sitting long enough to have had sufficient experience since the original guidelines were introduced. Much of the criticism apart from the arguably inverted pyramidical structure was that “seriousness” might be reduced in cases which were on the cusp. In addition to the current guidelines the total lunacy regarding the new PSR request forms takes us truly into territory where Kafka himself would have felt at home. The use of the form is discretionary unlike the previous instruction that a request form must be submitted. On the new form are the words,
“ The information in this form is provided only to assist the Probation Service/Trust in the preparation of a pre- sentence report. It is not an indication of the likely sentence. The sentencing court may impose any sentence that the law allows, including a custodial sentence. It may choose to commit the offender to the Crown Court for a heavier sentence than is available in the Magistrates’ Court. This should be made plain to the defendant if the case is adjourned for a report”.

It also states that if any form is to be used it must be this one and no other. But the lunatics` input to this fiasco does not end there. The fact is that the new form is not being used by many courts. My own court is still using the previous design and according to recent information this new form itself has now been withdrawn without a replacement.

It seems that in Grantham Magistrates` Court there is less than the harmony one would normally expect between the lay bench and the District Judge[MC] and it is not unlikely that the confusion over guidelines and request forms is to blame. That, however, does not excuse the local DJ from his derogatory public remarks of his J.P. colleagues in which he was almost scornful of their {in his opinion} underestimating the seriousness of an assault. District Judge John Stobart seemed to be intellectually incapable of marrying his remarks to the sentence he finally imposed on the defendant. He said that the bench had assessed the seriousness as “medium”. Presumably he would have made the assessment as “high” but there are no longer estimates of seriousness as low, medium or high. The new guidelines specify three categories with “1” being the highest with a sentencing range of a low level community order to 26 weeks` custody. Category “2” has a sentencing range from a fine of half a week`s wages to a high level community order. And what was the final sentence imposed by the good Judge Stobart? Three months` custody suspended for one year with £60 costs and £50 in compensation. Why eg did he not impose in addition an immediate order to undertake unpaid work if he felt his hands were tied and the magistrates had so underestimated the seriousness? Why did he suspend the sentence? More detail can be found here.

If I were a member of that bench I would be voicing my concerns to my Bench Chairman and expect a full investigation.

In 2006 the then Lord Chancellor Rt Hon Lord Falconer produced his plan which is known as CJSSS; Criminal Justice Simple, Speedy, Summary. It was going to be revolutionary – all agencies involved at first listing in magistrates` courts would have assembled all the documents associated with the case so that the matter could proceed immediately or even sooner to plea. To any intelligent outsider the question would be asked as to why such routine business is not currently efficiently managed at this level. Why does a special effort have to be made? CJSSS meant essentially that the police would have to tighten up their involvement with the CPS and that the maximum information would be available to legal advisors who could appraise the morning`s bench of the situation with regard to each matter listed. It was to be so revolutionary that the bench{es} involved were required to come to court earlier than usual to be able to act as expeditiously as possible having had a detailed briefing. There is an old saying that a chain is only as strong as its weakest link. That weakest link in the CJSSS concept might be any police officer or CPS employee at whatever level of seniority or otherwise having made a cock up by commission or omission. CJSSS is now almost a mockery of what its civil service originators intended from their ivory towers in Whitehall. It seems the same virus or a new enhanced version has escaped from its confines within London SW1.

Amongst all the post lying on the hall floor when one returns from a trip the official brown envelopes are those to be opened last. Amongst them on my floor upon my return from holiday was a missive from HMCTS which is now following hard on its predecessors as a result of the hearings resulting from the August mayhem. This time the “initiative” is entitled “STOP DELAYING JUSTICE”. Having attended advanced case management training less than a year ago I feel confidently up to date with what a court can and cannot do to reduce delays to an absolute minimum. Apparently all J.P. chairmen, District Judges[MC] and legal advisors are to be trained by 31/12/2011 so that “they have the tools and confidence to deal with some of the common applications to adjourn that are often argued before the court and to ensure that cases are properly managed and progressed without any delay.”

I have signed up for the required two hour session. Perhaps there will be a mini session on how to circumnavigate the Bail Act and remand in custody defendants with firm local ties and with no previous criminal history who are accused of being part of a shop lifting gang or is that being just a bit cynical?

Absence makes the heart grow fonder: one might even say that abstinence makes the heart grow fonder still. Such is the case with time spent on holiday. All normal routine is abandoned. For most people leading even remotely high pressured working lives, for those leading tedious mundane monotonous working lives the break from day to day care and responsibilities is almost a psychological necessity. There is an opportunity to reflect on the minutiae of every day life.

Since my appointment as a J.P. I would opine that the everyday activities of a magistrates` court have become more onerous for those involved; ushers, lawyers, legal advisors and magistrates. This is due to increased legislation and pressures on all parties not to transgress failing which the consequences can be severe especially with regard to perceived discrimination however tangential which a decade ago would have caused not even a raised eyebrow. Some might say that this in itself is a wonderful benefit of the Equalities Commission and its predecessors and others that the state has gone as far as public opinion will allow in this regard.

Having more time available than many of my colleagues I am in the top 10% of sitters at my court. On the odd few occasions when I have been three weeks or so without sitting the first hour or so in the middle chair is a rapid reminder course of procedures but of course like riding a bike one never forgets; one just wobbles a bit at first. I find it illogical that the minimum sitting requirement for approved chairmen is no different from that pertaining to all Justices. In my opinion in order to maintain competence and not the competence of reciprocated back scratching chairmen need more sittings than wingers. Of course many colleagues would reply that they give enough time already and that further encroachment on that valuable commodity would persuade them to sit on as wingers only or to resign from the bench altogether. Indeed with the continuing almost take it or leave it attitude towards us by HMCTS with regard to expenses and its apparent view of us as minor civil servants we might have to begin to act as minor civil servants........

Having spent a couple of days in Istanbul on personal business before flying to more tranquil surroundings I will never again complain about traffic in England. That city of Constantine that was has just about the most horrendous traffic levels imaginable for over twelve hours daily. When I`m next in London Hyde Park Corner at 6.00pm will be a dawdle even with only one hand on the steering wheel and the other not on a mobile phone.

I am now away for a couple of weeks to allow some Vitamin D to be synthesized internally by allowing radiation from 92 million miles away to reach parts of my body normally covered in cotton or wool and I might even undertake some aquatic exercise by dangling my lower limbs in the swimming pool whilst imbibing a fine malt. It`s unlikely I`ll be able to moderate any comments until I return. In any event I hope to be here again refreshed by eastern promise to leave more tiny footprints in the cyber world.

It had been suspected; when originally made public it was rubbished; indeed I had some personal experience of it-- there was interference in the judicial process after the riots and looting of last month. I have previously posted that some judges, not J.P.s, were justifying their bail decisions and/or sentencing decisions by stating that the written by committee so called sentencing guidelines encompassed the novel situation with which such judges were faced. Others justified similar decisions by deciding that the requirements of a scenario never previously experienced demanded that the guidelines be ignored or sidestepped. In simple terms the judges still had their piece of cake after they had eaten it. A Freedom of Information Enquiry by the Guardian has blown a hole below the waterline of government denials of interfering in the judicial process. It has also given a disquieting view of some judicial kowtowing to political dictat. Indeed this nation`s pride in an independent judiciary has taken a severe knock. Political grandstanding against totalitarian regimes will, in the future, be compromised.

Of course denials have been made but the smell lingers. There is a very full report in the Guardian which is well worth reading. As far as magistrates are concerned although they make decisions based when necessary on legal advice from their legal advisor not all benches have the cojones to follow an independent line in circumstances such as followed the August mayhem and it was in my opinion disingenuous of the Magistrates` Association chairman to be quoted as saying as reported, “Magistrates have to decide whether the maximum sentence of six months custody is sufficient for a single offence and if not then the matter is sent to the crown court. It is not in any way outside guidelines as statute allows the judiciary to raise the seriousness of an individual offence after taking account of the harm caused, the culpability of the offender and any aggravating features such as an offence committed during grave disorder." He is well aware that in the few instances where magistrates were involved in bail decisions there was pressure to deviate from the terms of the Bail Act and to remand in custody. And to refer to “guidelines” when there is and was confusion as to their pertinence is a further sign that this figurehead is doing his best to be a figure on the sidelines who rarely dares to put his head above the parapet.

We are now witnessing the beginning of frantic steps by government to cover up the results of David Cameron`s so called tough talking when he told the House of Commons on August 11th that the rioters should be jailed. Whatever it takes that blanket statement might come back to haunt him.

Our membership of the European Union has many detractors. Considering the current status of that membership eurosceptics have to shout that little bit louder than the E.U.`s supporters to make their voices heard. Those colleagues in areas where there has been an enormous influx in a very short time of Eastern Europeans attracted to these shores by the English language and their desire to make better lives for themselves and their families will be all too aware of the apparent numbers appearing on drink driving charges. Almost nowhere else in England has experienced the growth in immigration from Eastern Europe than the rural shires of East Anglia. Unlike within large metropolitan boroughs or the London area foreigners are more likely to have an impact on the local populace in these relatively sparsely populated counties.

The Lincolnshire Road Safety Partnership has published figures which show that 32% of convicted drink/drive offenders in Boston and Spalding are from Eastern Europe. In all probability that ratio is only slightly more than the proportion of those nationals in the general population of some of the region`s towns. Nevertheless their drinking habits can perhaps put the alleged consumption attributed to the Scots and Irish in the shade. In its attempt to educate those settling in this country in our generally accepted attitude to drink driving the efforts of L.R.S.P are to be applauded.

Amongst the arguments often raised against “short” custodial sentences are that fines defaulters should not be imprisoned. This is often coupled with a story of an old age pensioner imprisoned for refusing to pay her council tax because she doesn`t believe her taxes should be used for this or for that purpose. Indeed refusal to pay council tax is a not uncommon form of rebellion against the state employed by those whose arrogance is equalled only by their ignorance.

Courts impose custody only when the matter is so serious that there is no alternative. Without such a deterrent anarchy would be the result. There are two grounds on which a court can impose immediate custody for fine defaulters; wilful refusal to pay or culpable neglect to pay but before either of these stages is reached there are many hoops to be jumped through and which offer an offender a way forward. Assuming the court had originally made a collection order a distress warrant can be issued. The offender can appeal against the terms set. Attachment of earnings or deductions from benefits order has failed and the reserve terms have also failed. A defaulter also has the opportunity to appear before a means court where detailed enquiries can be made and s/he has an opportunity to explain the position. If all options have been explored then and only then can a custodial sentenced be imposed according to the outstanding amount which varies from 7 days for sums up to £200 to 12 months for amounts over £10,000. However if an argument is accepted that a suspended term would secure payment then the court must suspend. Immediate custody for fine defaulters is therefore a relatively rare event.

Selby in Yorkshire is the home of one Christopher Clayton. He won`t be sitting in his favourite chair to watch T.V. for another week or so according to a report in the Selby Times describing his failure to meet the financial obligation imposed upon him three years ago. Heaven knows what the previous hearings and officials` times and efforts have cost the country. Perhaps we should be proud in this country that it is so difficult to imprison anybody or perhaps that is the very reason for a general long standing disregard of authority widely accepted as a basis for law breaking.

Every magistrates` court every week has before it a Jay Hawkins, of no fixed abode. He might have a different name, he might be black or he might occasionally be female but he invariably has a long history of public order offences and is more often than not of no fixed abode. He is always an alcoholic. It is not unlikely that he has in the past served one or more short custodial sentences. In the past he might have had a court order made to address his alcoholism. If he were married he is now separated or divorced. If he had children he is no longer in touch with them.

Jay Hawkins should be confined by a compulsory order to an institution where he could be treated just as those in the appropriate circumstances can be sectioned and treated by mental health workers having if necessary been granted a warrant of entry from a justice of the peace. Of course those financially equipped can avail themselves of all the help and assistance available to medical science but for most of the Jay Hawkins of this world those clinics could be on the planet Mars. The phrase “be cruel to be kind” is applicable in both cases; schizophrenics and alcoholics but the former have that protection that alcoholics are denied. .

By now most if not all magistrates have received copies of the new form to be used when requests are made to probation service for a pre sentence report. I received mine a couple of days ago. The difference in thinking and consequent content from the previous one is as chalk and cheese. One wonders just what brains contributed to this one and its predecessor which itself came into practice only a couple of years ago.

A section of the form is copied below.

REASON FOR THIS REQUEST
The court requires a pre-sentence report because:
(a) no previous pre-sentence report or other information is available that is sufficient for the court’s purposes, and
(b) the court considers a report necessary.

However according to the letter sent to all of us from the Senior Presiding Judge the use of this new form is not mandatory; the only proviso is if a form is used at all it must be this new one. So if my understanding of the English language has not been affected by some unrealised descent into neurological degeneration offenders can be sentenced after guilty plea or directly after trial without reference to the probation service if the bench decides that it has information sufficient for its purposes.

If that indeed is the case and I personally won`t be sure until my next sitting and I have discussed this with our clerk on the day, careful judicial inquisitorial questioning of the offender will be required and of course the offender will require representation if custody is being considered. I cannot but consider that probation service must be hopping mad.

With our local Crown Prosecution Service in what seems to be terminal decline, busy courts having to function without ushers, the police service at odds with the Home Office and the Police Federation showing two fingers to ACPO, a probation service with its morale as low as a centipede`s backside, a Sentencing Council that designs horses to look like camels and has a checklist to ascertain sentencing ranges constructed like an inverted pyramid, an HMCTS which is trying to reduce J.P.s` allowable expenses, a Justice Secretary who puts cost before the interests of the public and the interests of justice itself and myriad other factors which indicate a system which is approaching a state of not being fit for purpose I am very pleased not to be a recently appointed Justice of the Peace with great expectations.

The recent mayhem on our streets has thrown up two major topics amongst many for debate now and in future; the apparent disregard of the Bail Act in many cases and the sentencing structure applied with efforts made by some crown court judges to reiterate that guidelines were able to be applied and others justifying their sentences by explaining that the guidelines did not apply. Many times District Judges made clear that defendants would be sent to crown court owing to those courts` wider sentencing options. If ever the argument has been made that the proposals of Lord Auld should be followed for magistrates` courts` increased sentencing powers this was it. On grounds of speediness of proceedings from arrest to sentence there is no argument against. Nobody has dared suggest that justice would be compromised or if they have, they`ve kept it quiet, and on costs it`s what is commonly called a no brainer. A plea and case management hearing at the crown court can cost seven to ten times the cost at the lower court depending on what statistics are preferred. So why has Justice Obergruppenfuhrer Kenneth Clarke set out to abolish the unactivated clause of the C.J.A. 2003 which allows for those increased sentencing powers? If ever the bluster of this political relic of another era were exposed to the kryptonite of public scrutiny this intention provides it.

He is concerned that by giving magistrates sentencing powers up to 12 months increased numbers of defendants will be sent to prison. Therefore he has based his decision making on cost as opposed to justice considering the £27K [not £40K] as the average annual cost for a male convict. This assumption must logically be based upon the premise that by sending them to judges at the crown courts they are more likely to be sentenced “in the community”. A few years ago the Labour Justice Secretary Jack Straw complained that over 20,000 cases sent to crown courts from the lower courts based upon the latter`s increased sentencing options were actually sentenced to punishments which were within the magistrates` courts` limits. And that leads this blogger to wonder whether Kenneth Clarke thinks that he has some control at crown court level that he doesn`t over justices of the peace; district judges are a different kettle of fish. Attorney General Dominic Grieve disagrees profoundly with his cabinet colleague. He is urging him to activate clause 71. A comprehensive report is available in the Guardian.

I doubt whether there is a single colleague who does not agree that our sentencing limit of six months should be extended. We are not avaricious power seekers. We are unpaid and for the most part conscientious individuals who have used our abilities within our own spheres of influence and knowledge to convince others that we can apply ourselves professionally in a completely different environment. Common sense dictates that, to use that now well worn phrase, the right thing to do following the Auld recommendation is to activate clause 71; not repeal it.

There was a fascinating edition of Horizon on BBC2 last night. The programme revolved around the hypothesis that there is a molecule related to morality. The essence was that some people with psychopathic tendencies have different brain structures from the rest of the population and when they have abusive experiences in childhood a behavioural pattern can be set in motion which can lead to multiple murder i.e. serial killing. What was astounding was that a researcher in the field discovered that he himself possessed the defective genetic structure he was researching. That he was a scientist and not a multiple killer he explained by his having had a perfect and truly happy childhood. The questions for the law in twenty or thirty years from now when such research might be proven to be fact is the degree of responsibility to be considered for such individuals. Of course the “Minority Report” situation of preventative action against those so disposed to commit heinous crimes will be a taxing question for the philosophers and lawmakers of the time.

There are a few occasions when presented with facts and figures on a familiar subject that the true reality of the situation is demonstrated to be disturbing. Just such a revelation was the Parliamentary Answer by James Brokenshire (Parliamentary Under Secretary of State, Home Office; Old Bexley and Sidcup, Conservative) on September 5th. He gave figures for the numbers proceeded against in England and Wales at magistrates` courts for selling alcohol to under 18s between 2003 and 2010. The figure of 324 for 2010 is the lowest by far for the years quoted. We are not privy to the number convicted but I find it astonishing that the scourge of young teenage drinking is obviously not being pursued with the urgency the problem requires. Such prosecutions are initiated by local authorities. Is the reduced level of prosecutions because there is a lack of funding? Generally those found guilty are liable for costs which often run into four figures. Is there a lack of personnel employed by councils to undertake such work? The peak years for prosecutions were 2005 and 2006. As I recall the Labour government was at that time throwing cash around as if there were no tomorrow.

By allowing unscrupulous licensees to continue their under age trade knowing the likelihood of prosecution is virtually zero a serious problem becomes worse and the law is failing to protect those most vulnerable.

So T.V. from the courtroom…………………It`s hard for this J.P. to criticise the decision in principle having posted several times of the desirability of so doing. But to use the televising of the House of Commons as an example what has been proposed is akin to televising only the result of a debate on a bill going through the House when the debate itself is, to mix metaphors, the nuts and bolts of the whole process, where the arguments take place and where the final result originates. Live video of a judge`s sentencing remarks is a structure without any foundation. It is obvious to me this is a decision “by committee”. It is the old story of a horse designed by a committee being a camel; it is an old fashioned British compromise which has reached the lowest common denominator of the final discussion. It is designed to be as inoffensive to as many as possible of those involved. As surely as eggs is eggs there will be live T.V. of trials before the next election and it is not unlikely that a D.J. ruled remand court from Westminster, Manchester, Birmingham or other major city will be broadcast at a local level also.

It used to be so simple; apart from an area designated as a “park”, on a bus or with a mail sack any person on the streets, usually a tall man, in uniform was a policeman. If that uniform appeared from the distance to be dark and on closer inspection was a navy blue it did not require the final piece of evidence namely a 19th century style helmet to know that here was the one person everybody recognised whose attitude and actions could vary from giving directions to dragging you off either to the police station or to speak to your parents. Uniformed authority figures on our streets have increased as respect required of them has diminished. Truly a case of diminishing returns. Just as the kiwi fruit was once an exotic, rare and high priced import from New Zealand hundreds of farmers there jumped on the export bandwagon until today in an overloaded market their product is just another flavour in yogurt.

Such now is the state of disrespect for police. By their encouragement of ever more diverse uniformed operatives with roles of minor authority often not recognised by the public they have succeeded in reducing themselves to an emergency service somewhere between an AA mechanic and a firefighter who appear only when the fabric of a peaceful society has broken down unlike the prime purpose imposed on them by their founder to prevent breaches of the peace.

Of course there have always been financial pressures from national and local government. The argument of a generation ago that it doesn`t take an expensive well trained police officer to issue parking tickets is well made. But the rot set in with the establishment of Police Community Support Officers nine years ago in England and Wales. Oddly they do not exist in Scotland. These undertrained, underpaid and poorly educated people epitomised the culture of graduated authority on the streets. Few people know the limits of their authority. It is not unlikely that that ignorance is relied upon in the course of their duties.

Surrey Police have taken all this proliferation of civil authority another regrettable step. On September 2nd they proudly announced the formation of security officers accredited with certain police powers. Seven such people will be based in Camberley to assist in policing The Mall in that town. They will be employees of a company called Vision Security Group (VSG Ltd) and will be allowed to patrol on their own unaccompanied by a police officer. They will have the following powers:-

1. To require name and address for anti-social behaviour and a relevant offence
2. To require person drinking in designated places to surrender alcohol
3. To require person aged under 18 to surrender alcohol
4. To seize tobacco from any person aged under 16

Neighbourhood Inspector James Norbury of Surrey Police was quoted as saying that the new partnership between Surrey Police and The Mall Camberley would benefit all who visit or work in the town centre. By accrediting key members of The Mall security team, they could work together to build on the excellent joint working that occurs between the public and private sectors in Camberley. He continued by saying that his officers and PCSOs would now be assisted by the security staff to quickly deal with the small amount of anti-social behaviour that can occur and provide a more reassuring presence for the public.

There is a full report on the website of Surrey police. Try as I might I can conjure up no enthusiasm whatsoever for “initiatives” of this kind. They are just an attempt to get policing on the cheap. Surrey like many other police forces is making redundancies in its workforce. No wonder those youngsters on the brink of criminality have no respect for law and order when the true forces of that civil requirement are opting out of their basic role.

Dale Farm has become a totem for the extreme left, open sandle liberals, the human rights brigade not excluding those residing in New York and various hangers on. I do not for a moment consider that my experiences when sitting in non CPS courts considering matters related to planning applications or similar are different from colleagues anywhere in England; the local authority or Dept of the Environment prior to such matters reaching the court has bent over backwards to resolve every situation at every level. Considering the legal brains which have adjudicated over this case the sooner the law takes its rightful course the better……..in my humble opinion of course.

There are thousands of cases settled annually at the crown courts of England and Wales. A relative few are reported in the press. Therefore it is unsurprising that a non academic blogger who might spend an hour or two daily at his keyboard uses those few examples as a sounding off board.

Suspended custodial sentences combined with a community requirement were designed to act as a Sword of Damocles over the appropriate offender upon whom they were imposed. In simple terms they were designed to act as a deterrent to future offending. That they saved the state the cost of a prison place was of course not in the slightest way an influential argument for their introduction. So much for the theory. In the last quarter of 2009 in the crown courts 12,519 offenders were sentenced to immediate custody and 4,826 were given suspended sentence orders. What I have been unable to discover is the number of those given SSOs who reoffended during the period of suspension and whose sentences were activated. The statistics are probably there for an academic researcher to discover. What is known is that about one third of those on SSOs reoffend. In view of the aforestated purpose of these orders it is interesting and not a little disquieting to read reports of their not being activated in the crown court.

On August 12th I commented on just such a case before HH Judge William Hart at Gloucester Crown Court. It seems that the hesitancy in activating SSOs is not confined to judges in the west of England. At St Albans Crown Court HH Judge Martin Griffith on July 15th imposed a SSO on Joseph Fox. Earlier this week on August 31st Fox appeared again before HH Judge Griffith having pleaded guilty to a charge of theft and of course thereby admitting a breach of the SSO. Sentencing guidelines state that the default position in such matters is that the SSO should be activated in full or part or an explanation given if that is not the final disposal. In sentencing this offender to another SSO HH is quoted as saying, “You are a record breaker; the fastest person ever to come back before me after I’ve made an order. I give you a suspended sentence and within three weeks you scale a seven foot fence and steal a bike. If I were to say that I despair of that course of action, you’ve got no complaint if I were to lock you up. He continued: “It seems to me this was so stupid that I’m going to give you what will be the very, very last chance to show me that you can put an end to this behaviour. Any other breach and that will be it.” The report in the Herts Advertiser is available here.

The honourable judge has form on such matters. Last year he allowed a persistent recidivist to avoid prison although he had convictions for 123 raids and admitted 243 burglaries. The drug addict was sentenced to a supervised drug rehabilitation course. However surprise, surprise he committed another burglary during his period of supervision.

Is it as a result of public lack of confidence in the sentencing at crown courts as these cases illustrate that District Judges were allegedly instructed to refuse bail in hundreds of recent appearances from the riots where a reading of the Bail Act upside down,backwards and sideways indicates that a first time offender who hands himself in to police should be granted bail?

ADDENDUM 05/09/2011

There is to be an “open day” at St Albans Crown Court on September 12th. Perhaps visitors will enquire the reasoning of HH Judge Martin Griffith in his sentencing decision as above.

When I began my magisterial career it was common to hear a chairman warn a driver being disqualified from driving that breach of the order could lead to a custodial sentence. We have come to the stage in the ever reducing severity of sentencing that in all probability it is only upon a third breach of a driving ban is the point reached at which custody becomes a realistic option and even then the sentence is likely to be suspended. And so it is with the defence of “exceptional hardship”. Case law indicates that loss of employment is unlikely to satisfy the test of “exceptional”. However with the not inconsiderable numbers being allowed to keep their driving license accumulating in excess of twelve points it would seem that some courts and their legal advisors have lowered the threshold for this defence.

So many of the cases coming before me make me want to wring somebody`s neck. They generally involve forty year old men looking as though they are one month from death`s door. Invariably they are addicted to alcohol and have long records of public disorder. If ever there was an argument for medical intervention by force these sorry individuals surely demonstrate that certainly a court is not the place for them to be. Just such an offender appeared at Lynn Magistrates` Court earlier this week. I can add no further comment.

Years ago I took a conscious decision to refuse requests to sit in the youth court. I preferred to deal with adults whose personalities were fully formed and could be considered as having responsibility for their actions and behaviour. My views on feral youth and the whys and wherefores of how they arrived where they are appearing at court might not have permitted me to perform my obligations to the best of my limited abilities. What took place in London at Highgate Magistrates` Court recently is depressing insofar as the accused youth have such little regard for authority that they behaved as they did where they did....allegedly.

Of all the matters which are dealt with at magistrates` courts perhaps the most controversial is that pertaining to sentencing for possession of a knife or bladed article. The operative word is “possession”. Where a knife has been used the offender will almost without fail be sentenced at the crown court. The prevalence of knife crime in the last decade mainly by young people and the tragic consequences thereof make easy headlines for newspaper editors. The current situation for sentencers is guided by the case of Povey & Ors, R. v, Court of Appeal - Criminal Division, May 21, 2008, [2008] EWCA Crim 1261. The judgement is copied below*.

In essence the current guideline specifies three seriousness levels:-

1 is for a situation where a person has a weapon or bladed article, is not in a dangerous circumstance and the weapon or bladed article is not used to threaten or to cause fear in those circumstances. Applying Povey where the offensive weapon is a knife the starting point would be close to 12 weeks custody for a first time adult offender who has been found guilty after trial. In relation to an offensive weapon other than a knife the starting point in similar circumstances is a high level community order.

2 is for a situation where a weapon is in the possession of the offender in dangerous circumstances but is not used to threaten or to cause fear. Applying Povey where the offensive weapon is a knife the starting point would be committal to the crown court for a first time adult offender who has been found guilty after trial and so the custodial sentence would be in excess of six months. . In relation to an offensive weapon other than a knife the starting point in similar circumstances is a custodial sentence of 6 weeks.

3 is for a situation where a weapon is used in dangerous circumstances to threaten or to cause fear. In those circumstances both the starting point and range for a first time offender who has been found guilty after trial are for sentencing at crown court and therefore in excess of 6 months custody.

Previous Court of Appeal judgement indicates that in relation to a knife a circumstance is likely to be dangerous if there is a real possibility that it could be used.

On 29/12/2008 the then Minister of Justice David Hanson M.P. outlined the Labour government`s position. He indicated that from 05/01/2009 courts would be able to hand out tougher and more intensive penalties for everyone convicted of possession of a knife who are ordered by the courts to carry out community payback. Thus six months after Povey there is already backtracking on the guidance of 12 weeks custody as a starting point not allowing for mitigation. He was also quoted as saying, “Earlier this year [2008] I announced that anyone convicted of a knife related offence and sentenced to a maximum of 300 hours community payback will complete their sentence in intensive blocks. This is now being extended to include all knife crime offenders given any amount of community payback as part of their sentence. They will now have to do at least 18 hours of work a week and potentially be subject to a curfew that keeps them off the streets in the evening and a probation appointment during the week on top of these hours."

Colleagues and defence lawyers will know how rarely a sentence of 300 hours unpaid work is given. That ministerial statement was a clear example of political claptrap. Now the latest statistics show that only 20% of offenders in possession of a knife were given immediate custody whether or not they were first offenders pleading not guilty or had had previous convictions.

If ever there was a case of the political tail wagging a government`s prime duty to protect the public dog this is it. From his first days in office Kenneth Clarke has presided over a process which is having the most detrimental effect on our judicial system for a generation. He was amongst the very first secretaries of state to budget for a reduction in his department`s spending; in his case to the tune of 23%. Prisons are at bursting point, the probation service is losing about 10% of its budget and despite protestations there is no doubt that the quality of its work will be impaired although there will be no recognition of that by government, local courts have been closed despite cogent arguments for many that the decision flew in the face of common sense, many court staff are being made redundant to the extent that courts are cancelled owing to staff shortages, the Crown Prosecution Service is in total meltdown at all levels with minimally qualified staff being promoted above their competence levels and not overlooking the Home Office`s war situation with the police.

Safety on the streets is one of the main desires of a public losing confidence in all that is encompassed by the phrase “law and order”. When we go abroad on holiday the safe environment of our destination is often a consideration. It`s a wonder we still have a thriving tourist industry where young people in parts of our towns and cities still consider that it`s worth carrying a knife because the chances of being searched have been reduced by a hesitancy borne of fear of criticism and the likelihood of custody if caught and convicted is 5/1 against. Our streets are a school for knife crime scandal.

*

Court: Court of Appeal Date: 21st May 2008

Judgment Summary

An appeal, two applications for permission to appeal, and one renewed application for permission to appeal were listed together as each raised an issue in respect of possession of a bladed article or point or possession of an offensive weapon without reasonable excuse. In one of those cases, namely, the second application, the defendant and others had met in the street, at night, to resolve a personal dispute relating to one of the men. Three of the men, of whom one was the defendant, had knives. The defendant’s knife was in his sock. The police attended the scene before an incident occurred. The defendant pleaded guilty to being in possession of an offensive weapon without reasonable excuse. He had two old previous convictions. The pre-sentence report suggested that a conditional discharge was appropriate. In the event, the defendant and his co-accused were sentenced to four months’ imprisonment.

The court ruled:

Carrying a knife or offensive weapon without reasonable excuse was a crime committed far too often by far too many people. Every weapon carried on the streets, even if concealed or out of sight, or not likely or intended to be used, or unused, represented a threat to public safety and public order. That was because, even if the item was carried only for bravado or some misguided sense that it would be used for possible self-defence, there might arise a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial like a look, where the weapon was then produced, and mayhem would follow, including offences of the greatest seriousness, such as murder, manslaughter, causing grievous bodily harm and wounding.

Offences involving knife crime had recently escalated into epidemic proportions. Every knife carried on the street represented a public danger and had therefore to be stopped. Courts would do what they could to reduce or, if possible, eradicate it. It was important that the public had confidence in the criminal justice system. Accordingly, where a person had a knife or offensive weapon without a reasonable excuse, they should be brought before the courts and prosecuted.
For the time being, whatever other considerations arose in the individual case, the sentencing court should have at the forefront of its mind the fact that the sentence imposed in knife-crime cases should focus on the reduction of crime, including reduction by deterrence and the protection of the public. Even if the defendant had done no more than carry a weapon, and even if not used to cause fear, the courts had to bear in mind the harm which might foreseeably have been caused. The stark message was that carrying a knife or offensive weapon was a serious offence which would be treated with the seriousness which it deserved.
Conditions which prevailed now were much more grave than five-and-a-half years ago when the guideline authority had been decided. Accordingly, the guidance in that case should be applied with the current grave situation and relevant sentencing considerations, above, clearly in mind. Moreover, the Magistrates’ Court Sentencing Guidelines as to bladed articles and offensive weapons, should normally be applied at the most severe end of the appropriate range of sentences. (My emphasis)

In the second application, the case had to be analysed in a different way than it had been before the Crown Court. The offence was a much more serious offence of its kind than the mere possession of a weapon. For a start, the scene was three men, in the middle of the night, who were armed. There was not going to be peaceful exchange of private views in a civilised way. The potential for serious violence was obvious. It was fortunate that the police had been able to intervene before anyone was hurt, and before a public disturbance. That was not to the credit of the defendant or his co-accused. The arming of oneself and joining in with others who armed themselves for the purposes of a confrontation such as that in the second application could not be mitigated by the assertion that the weapon in issue had been taken for self-protection or self-defence. Such an offence did not fall within the category of ’weapon not used to threaten or to cause fear’, as the weapon had not been used because of the intervention of the police. The defendant was fortunate that a longer sentence had not been imposed, as it would have been fully justified and appropriate.

I am hesitant to venture into a comment on the law per se because I am not a lawyer. However the recent case of the teenagers who were jailed for inciting disorder through Facebook even though nobody turned up for the proposed riot set up a question in my mind as to the effect of intent in the criminal law. To quote from Wikipedia, “Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who acted with the absence of mental fault.”

Criminal activity which causes unexpected outcomes must be assessed with consideration of mens rea and the seriousness of the offence. Individual culpability of the offender and harm caused to victim have to be weighed.

In the case of the two teenagers who were unsuccessful in their attempts to start a riot their culpability was so high that they were jailed for four years even although the outcome was that no harm was caused. However in the matter of death by careless driving which is an either way offence which can be tried summarily in the magistrates` court with a maximum of £5,000 and/or six months custody or by judge and jury at the crown court where five years custody is the maximum the outcome of the offence is the prime consideration.

All drivers have had a careless driving moment. It is a matter of tragic misfortune when a death results from such a momentary lapse of concentration. When the amalgamation of my court is complete on January 1st next year my colleagues and I will inter alia be sitting on traffic matters at our sister court a few miles distant. It is about six years or so since traffic courts were removed from our listings. We will all have to revise our knowledge on sentencing. Death by careless driving will come within our ambit. It will be a new challenge for me philosophically as well as legally.