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

All court practitioners know that in the scheme of priorities compensation outranks fines. It is well known that over one billion pounds of fines is outstanding. However when it comes to compensation outstanding I don`t think any figures are available. For each of the years 2009 and 2010 the average compensation order was £283 and £289 respectively to 157,410 and 154,428 beneficiaries.

I well remember the controversy before during and after the Hunting Act became law. In 2009 under the Act court action was taken against 92 defendants of whom 59 were found guilty. In 2010 the figures were 49 and 36.

I make no comment on the numbers.

Some of the reports from and statements of Her Majesty`s Courts and Tribunal Service do make strains on one`s credulity. I suppose its spokesmen are applying the prime requisite of all propagandists from John the Baptist to Alistair Campbell via Joseph Goebbels and that is to repeat the lie……oops……the policy often enough and it will eventually be accepted as the “truth”.

A service which has operated in Banbury from 10.00am – 4.00pm five days a week is going to be reduced to one day a week 10.00am – 12.00 noon only operating Tuesdays “but will not impact on staff”. The service in question is the public counter at Banbury County Court. It seems from this distance that that optimism is misplaced. However if as is possible the local administration of HMCTS is correct in its predictions one wonders just what the staff were doing for five days weekly six hours a day. Perhaps the operative word is “redeployment”. Over the last ten years I have had cause to visit my own local County Court about once a year and each time I have had to wait at the public counter for at least fifteen minutes before reaching the front of the queue. Its current opening hours are 10.00am – 4.00pm Monday to Friday.

This of course is not an arbitrary administrative decision. There is in Banbury the ubiquitous “consultation” in process so it`s all OK.

I really didn`t expect to have juries and jurors at the top of my possibilities for today`s post but a certain mindset within the Crown Prosecution Service appears to have been encapsulated by remarks made recently by the CPS chief London prosecutor.

Social mores vary and none more so than society`s attitude to women`s sexuality. From a legal situation of many years it was on the 23 October 1991 that the Law Lords unanimously swept away the 250 year notion that women agree to sexual intercourse on marriage and cannot retract that consent. See Regina v R (Rape: Marital Exemption) The Times, 24 October 1991; (1992) Cr.App.R. 216 . Similarly the threshold to find a man guilty of rape has been lowered "no means no!" Rape statistics including arrests, numbers charged and acquitted etc have been and are often manipulated according to the political point of view of those conducting the analyses. But as in the great tradition of English law the jury has the final word. But Alison Saunders the Head of the Crown Prosecution Service in London. is not satisfied.

She is concerned with some of the myths and stereotypes surrounding the behaviour of some women and their influence on juries. In essence she wants juries to be thinking in her terms when reaching verdicts on rape trials. My point is that her terms might not be the terms of the average juror. As I have written previously I am a protagonist for a more careful selection of jurors but based on their ability to follow a trial`s details; not for their having pre determined attitudes to the "she was asking for it" syndrome. Since the dawn of time men have had varying opinions on womens` sexuality and availability depending on very many factors. It ill behoves a senior CPS person to enter this minefield in the manner she has done. The interview should be read here.

We`ve all had a month to experience the amalgamations of magistrates` courts. The early lesson learned in primary school of three into two doesn`t go might be applicable for my colleagues and me but unlike the arithmetic it is being made to go. Three courts are now operating as a single bench on two sites. Generally sitting with new people on the bench and legal advisors who are strangers is an uplifting experience. We now have a few middle aged male L/As to add to the generally younger females who were and are long serving court staff. The former are certainly less likely to try to take over the running of the court as some younger females might. Of course there are as many styles of chairing a court as there are approved chairmen: some are relieved for the L/A to run proceedings and others work to the maxim that the institution is a magistrates` court. Over the years I have found that once the L/A has confidence in the chairman`s ability to preside s/he is content to leave it to him/her to do the job.

Central to the efficient manning of the courts is the rota system. Having some knowledge of this process I queried those who had last year assigned themselves to the task of making things work for two venues and 100% increase in J.P.s as to the efficiency of the systems employed. Sad to say informal conversations and personal experience recently have convinced me that over the next five months minor problems are likely to become major problems……..time will tell.

Those in dusty offices in Whitehall who ordained that our court building will no longer host remand courts which will all be allocated to the other building in the belief of increasing efficiency of use or to use Nick Herbert`s mantra; increase the utilisation rate of courts from 64% to 80%, will surely get their comeuppance……..oops I forgot……we`re talking about those whose first priority is not to be available for any blame when their myopic decisions fail to materialise as predicted…….. The situation pre amalgamation allowed early finishing courts eg those where trials were cracked or vacated, to take extra work from the invariably heavily overlisted remand or PSR courts can no longer perform that function when all sentencing and remand work is in another building. The result is benches being released mid afternoon. So much for the efficiency of centralisation as produced by those who know nothing about how courts really work.

Let us not forget the idiots who ordained that all youth work be done at one building. So gangs from different post codes are now gathered at a single location. There have been two incidents so far of fighting between rivals at or near the building. This probability was put to HMCTS last year when the proposals were on the table. After initial agreement to split the youth work HMCTS reneged on the agreed plan some few weeks later.

To conclude on a more important note; our supply of plastic spoons, knives and forks in the kitchen was terminated. Personally having found it difficult to eat a pot of yoghurt with a 5mm wide spatula I now supply my own utensils. As to the future......it`s a one way trip.

I have commented a few times on the jury system. Juries and jurors have had a higher profile than usual of late. Theodora Dallas was jailed last week for six months for researching details of the defendant on whose trial she was a juror and telling her fellow jurors of her findings.

Currently there is no possibility of jury room research. We simply do not have any idea how 12 people unknown to each other reach a verdict of guilty beyond reasonable doubt or fail to reach such a decision. There are few impediments to being a juror. We might assume that an average jury will contain people of average, below average and above average intelligence the assumption being that the panel as a whole will be a panel of the defendant`s peers. Most lawyers give the impression that interference with this principle is a cause for taking to the barricades. I would argue that the ignorance of a juror or jurors is no substitute for justice. I am firmly of the opinion that the almost universal right to sit on a jury is a tradition well past its sell by date. There should as a minimum be investigation into competence with the English language and simple IQ testing to determine that an individual would at least have the mental capacity to follow the series of questions, answers and statements presented at trial and to be able to make conclusions based upon reason and evidence presented. Facing down the traditionalists will be politically difficult but it must happen sooner or later or will it take an epic scandal of injustice to force their Lordships` hands.

Perverse or not perverse? That was the question. Most readers will be aware that generally it is wrong for one bench to countermand an indication of a previous bench unless………………..

The case of R (C) v Stratford Magistrates ‘ Court and CPS QBD 19/1/2012 should be firmly in the mind of all magistrates. For this report I am indebted to that excellent source of information: Crimeline

Judicial Review of a District Judge’s decision to adjourn sentence for pre-sentence report all options open. The claimant had pleaded guilty to s47 Assault and s5 POA. The Magistrates rejected the legal adviser’s advice that custody should be the starting point and adjourned to determine a community penalty. They did not reserve sentencing to themselves and the case subsequently came before the District Judge, who found the decision to exclude custody on the basis of mitigation by way of provocation, perverse. The claimant submitted that the decision was not perverse, and that the Magistrates had given a sufficiently unqualified indication regarding sentence to found a legitimate expectation of a non-custodial sentence.

The Court emphasised that it is wrong for one bench to give an indication that founded a legitimate expectation, and for another bench to go against that, unless it could be shown that the indication was perverse or unlawful. I n this case, the Court found the District Judge was right to consider the Magistrates view of provocation perverse. He would also have been entitled to find their error in applying the wrong guidelines perverse, but had not.

Application refused.

I posted yesterday on the tick box approach of the Sentencing Council which it is fair to say I find wanting. The principles as they have been applied to assault have now been applied to burglary and drug offences will also come under this umbrella from February 27th. It is therefore disturbing to read a comment on the government`s statements around drugs statistics in “Straight Statistics”; a publication for which I have a lot of time. Drugs policy is an oxymoron. Would that some day a Home Secretary would face the reality of the situation.

Parliament sets the rules of the game and the judges apply them or rather the Sentencing Council sets the rules on behalf of Parliament. Last June new guidelines for sentencing on assault were set. Under the Council`s new approach to its remit we are now as near as makes no difference to tick box sentencing. This very idea was canvassed in the early years of this century based on the approach in the American state of Minnesota and rejected…….only to be instated by the back passage of those who are purportedly our betters. Like all such exercises it will be abandoned in due course. Quite why a mode of action or such an approach to a now discredited methodology in many places was thought worthy of replacing judicial discretion escapes me but then I`m only a lowly Justice of the Peace who now doesn`t have to display the attribute of common sense to be appointed or show competence.

Commenting on short media reports is very dangerous. But sometimes it must be attempted. Most law abiding people would in my opinion consider that an offender who broke a woman`s jaw is an example of violent conduct that must be punished by immediate custody and one basis for the rule of law is that there must be public confidence in its application. When that confidence is dented we have lost something as a society. Copied below in full is a short report from today`s WestonSupermare People.

A teenager who slapped a 17-year-old girl in the face, breaking her jaw, has been handed a suspended jail term. Jake Townsend struck the girl after the pair argued, Bristol Crown Court heard. It was later confirmed by medics she had suffered a displaced fracture. Townsend, 19, of Old Mill Way, Weston-super-Mare, pleaded guilty to causing grievous bodily harm. Judge Carol Hagen handed him a four-month jail term, suspended for a year.

It is public knowledge that all sentencers are under pressure not to impose immediate custody. Of course there are denials from the judiciary, magistrates` legal advisors and others that there is any direct interference in sentencing offenders to immediate custody but it happens. When, as likely, unreported mitigating factors as above lead to custody suspended questions will be asked. There is a sinister right wing in this country being fuelled by such diverse factors as Moslem fundamentalism, apparent social security “scroungers” currently being excused by their Lord Bishops, inappropriate sentences for violent crime and other topics of a populist nature. Populism cannot be dismissed by high sounding eloquent people as of no consequence. It must be faced and demonstrated to be a portal to disaster. The new sentencing guidelines might, some would say “will” make that more difficult.

Shortly before Christmas our court prematurely began operating as a traffic court; a situation which had been expected to begin after the amalgamation had taken place but owing to apparent logistical problems was brought forward a couple of weeks. Being a few years since we had had full daily lists of such a description it was for this J.P. quite an eye opener. What was most surprising was the absurdity of some of the reasons we heard for pleas of not guilty. Those appearing were doing so for the first time having pleaded not guilty by post so prior to evidence being presented they were asked to state briefly their basis for not guilty in order to filter out those who were confusing mitigation with not being guilty. About 10% - 20% fell into that category.

Mrs T. was charged with using a mobile phone whilst driving her VW adapted with hand controls. She had suffered a stroke some years previously which had left a slight speech impediment owing to her not having full control of all her facial muscles. She told us that she had removed the battery in the mobile and was using it as her speech therapist had recommended to hold against her jaw whilst reciting "the rain in Spain falls mainly on the plain" the vibrations from her voice being amplified through the instrument and thus giving her feedback on her enunciation. She presented a letter from her G.P. stating she had indeed suffered a stroke in 2009 which had caused some impairment to her speech. The police officer for the CPS told us he observed her with the mobile in her hand against her cheek and that her lips were moving. She was found guilty.

Mr N. originally a refugee from Zimbabwe had pleaded not guilty to driving not in accordance with his license. The evidence of the police officer who had stopped him was that he had been alone in the Ford with no L plates and driving on a provisional license. Indeed Mr N. had signed the police officer`s note book confirming that in the car the officer had found a credit card with Mr N.`s signature. Mr N. pleaded not guilty on the basis of wrong identity. He told us his cousin, also from Zimbabwe but resident in Ireland, had taken the car that morning without his permission. Questioned by the prosecutor about the credit card and his signing of the officer`s notebook he denied the signature was his even when presented with a copy of his provisional driving license application with an identical signature adding that he usually left his credit card in his glove box even when the car was parked overnight in the street. The officer identified the defendant as the driver. An appropriate fine for his income was imposed with 3 penalty points plus full costs of £350. Although he had passed his driving test since this incident this was his second such offence in a year and he was warned that his license would be revoked by DVLA. He was very unhappy.

On the other hand two charges of using a mobile phone whilst driving were dismissed because the officer witness in each case failed to appear with the CPS prosecutor unable to give any reason telling us they had been properly warned. Each defendant was so pleased to get away with this matter that they declined any costs.

Occasionally the ineptness of police and CPS must be heard to be believed. The charge against Mr E. was not [in simple terms] having appropriate insurance for business use of his car but being insured only for social, domestic and pleasure. His opening explanation for his not guilty plea was that he had had his work tools for the building trade on the back seat of his Toyota because his van had broken down and he had to get the tools home being unable because of the theft risk of leaving them in the van overnight. The constable whom we thought had done the stop was giving his evidence when it transpired that it was all hearsay; he had been standing about and his colleague had searched the car, spoken to the accused and issued the FPN. That officer was not being called. We stopped the trial immediately and dismissed the case.

If that was a typical traffic trials list I don`t know whether to laugh or cry.

We`ve all heard statutory declarations concerning the non receipt of fixed penalty notices through the post or guilty by post admissions with the prime mitigating factor the non receipt of the original FPN. Indeed this subject was discussed in my court in a mini training session only last week. The official line is that signed for service is not a great improvement and 1st class post will continued to be considered “good service”. Former cabinet minister Peter Hain M.P. recently experienced himself what thousands of common folk experience every day of the week; the unreliability of 1st class post to be delivered to the intended recipient especially to those living in flats with ground floor or communal letter boxes. Surely it can only be a matter of time before good service by post is supplemented by electronic communication?

Fictional television shows about police and policing have been a staple part of the home visual entertainment diet since T.V. became the country`s prime means of information and communication. From “Dixon of Dock Green” half a century ago through “Z Cars” in the 1960s via “The Bill” and “Prime Suspect” our fascination with the genre is unending. Combine that fascination with the techniques of fly on the wall reporting and we have “Coppers”. It follows other similar see it as it happens reportage of police involving motorway patrols, city crime cars, police in helicopters, police in boats, police, police, police. One common thread in all these is the supposed control by the programme makers of the final edit. Whether or not payments are made to whom or for what amounts of cash I am not privy but constabularies and their police authorities have sanctioned this warts and all approach and so must believe it is to their advantage that the public has an unexpurgated picture of what their police force must put up with in the course of their often dangerous and unpleasant duties. So what happens when some of the uniformed participants act in such a manner that critics, some in their armchairs some more knowledgeable, believe that their officers behaved unprofessionally? The phrase hoist with their own petard comes to mind. The local media in Nottingham no doubt will have a field day with this story in the weeks to follow.

I was never a fan of the previous chairman of the Magistrates` Association. He was, in my opinion, in thrall to government dictat and his assertions were more akin to the bleatings of a donkey than the spokesman of 24,000 J.P.s. In his successor John Fassenfelt there might just be a stiffer backbone………even a slight improvement in the rigidity of his spine cf his predecessor would be a welcome improvement.

He spoke at length to The Times [behind its paywall] earlier this week the content of his opinions somewhat like the curate`s egg. In his favour he gave an example of the regular failings caused by the ineptitude of both CPS and HMCTS. He failed, however, to emphasise how common are such failings. When Nick Herbert, Justice Minister, is tossing around his favourite statistics that it is his intention to increase the utility of magistrates` courts from 64% to 80% what better time was there to tell his interviewer that the Minister should be looking to his department`s employees for improved efficiency. Instead he seemed to agree wholeheartedly with his proposal that J.P.s should take part in local triage system of so called neighbourhood justice. Whatever might be said to the contrary this downgrading of our position will be the thin edge to a very wide wedge. When our judicial function is shifted from the courtroom before too long our presence will be argued as being more useful at the lower level thus allowing summary justice to be served by a single professional District Judge.

He is quoted as saying that he partly blames magistrates for not being sufficiently assertive. Is that an excuse or a justification? His organisation of which he has been an office bearer for some years has consistently kowtowed to government. There has been absolutely no effort by the M.A. until this year to encourage the type of independent thinking and actions he now finds wanting. If you treat people like donkeys they will behave like donkeys especially if led {as above} by donkeys. He says that the magistracy needs to recruit more young employed and non white Justices of the Peace. He even sympathises with the possibility of reducing the retirement age below the current age of 70. Appointments Committees appoint the right people for the position most of the time. Is he proposing a quota of black and ethnic minority J.P.s? If so he should say it loud and clear so that those opposing such an idea can make themselves heard. Is he considering endorsing payment for J.P.s to encourage more young employed candidates striving to save or pay for their mortgage? If so the financial argument for D.J.s is over. To hint at throwing out colleagues earlier than is the current retirement age will not get him re-elected to his position. He has no mandate whatsoever to make such a public statement.

He concludes the interview by re-stating that we should be come less compliant. He should take that advice himself in his dealing with government instead of preaching the old adage of doing what he says and not as he does.

Driving with no insurance or whilst disqualified is often the pre cursor or pointer to other criminal activity by the offenders. The Met`s public get tough policy of its new commissioner recently led to the seizure of 2000 cars in just a few days. Have to say I think this was a valuable effort considering those at the bottom of the income scale are fined only £100 + costs for a first offence owing to courts being handicapped by ridiculous guidance on “proportionality” of fines vis a vis income. With a base line so low is it any wonder that so many car owners take their chances?

Governments of late have jumped on the bandwagon of “consultation” on virtually every topic imaginable to such an extent that the term “focus group” has become almost a badge of derision. We expect leadership and political headline makers to show they have this quality but to ensure they do not go beyond what they consider the population will tolerate they try to cover their arses with consultation. Perhaps because a certain Mrs M. Thatcher was so convinced of the correctness of her own decisions that she was loved and hated in such abundance. But returning to the C word the subject of domestic violence is currently being put out for consultation. If comments on such matters are of interest the document is available here for perusal.

Anybody involved in the justice system will almost certainly put the use of illegal drugs and their supply as the most insidious influence on criminal activity. It is therefore perhaps distressing to read a well written report in the Guardian on this subject which governments skirt around not daring to grasp the nettle. Although the article was written in 2003 can anybody say the situation is much better now?

At one time only members of relatively few professions or occupations were subject to having to uphold personal and professional high standards and be answerable to their institutional peers for any failings real or suspected. Law and medicine were the two ancient professions which for generations were alone in policing themselves. In the post war era there has been increasing government influence in the standards and operation of these professions` controlling bodies. Many more professions have been brought under similar umbrellas to increase the public`s confidence in the protection offered. Optometry, osteopathy and teaching are just three of the “newer” professions subject to control by regulatory councils. This oversight in addition to the aforementioned applies to professionals employed or self employed even although those in the former category are also subject to any controls agreed with their employers according to their contracts of employment. Police officers are exempt from this individual professional regulation.

The disturbing case reported in yesterday`s Telegraph and the even more disturbing results of an inquiry into the officers` conduct should encourage the government to set up a Policing Council. Considering the coalition is almost at war with the police another controversial action might be politically opportune and popular with many of its wavering supporters. As a matter of interest the South Wales Constabulary in 2010 dismissed 6 officers and had 8 officers who resigned prior to a hearing or during investigation. None was shown to have retired on medical grounds. The complement of this force is currently 3,012 police officers.

The issue of “womens` rights” has bedeviled society for hundreds of years. In fact to be more accurate the lack of such rights was a spur to the emancipation after the Great War. World War 2, as wars are prone to do, accelerated many changes in civil attitudes including the drive to full equality as much as the word means for women. Professions and previously restricted activities were opened to equal opportunities such that employers had to be virtually blind to the possibilities of potential female employees becoming pregnant or having childcare responsibilities. The criminal justice system, too, struggles with the difficulties of sentencing the ever increasing numbers of women convicted of mainly lower level offences attracting sentences of six months or less. Women prisoners on any one day over the last couple of years have increased in numbers from an average of 3,300 to 4,200. The costs per annum per prisoner of these offenders varies from £39,838 for an open prison to £51,935 for a local prison according to latest figures from National Offender Management Service report pp4. Simple arithmetic shows that the mean cost of a female prisoner is £50,500 per annum.

Supporters of womens` rights {as if there are those who would dare oppose these terms} are continually trying to have their cake and eat it or they could be termed as facing both ways at once. However it reduces their credibility if statistics are quoted in which even a simple non statistician can find flaws. The Independent on Sunday reported their fears of additional thousands……not hundreds but thousands……….of women being imprisoned if changes are not made to The Legal Aid, Sentencing and Punishing Offenders Bill (LASPO). Apart from crying “wolf” on their substantive point to quote prison costs for women as being “higher than a man's at an average of £56,415 per year” is just plain misleading.

The issue of womens` rights is continually an effort to square a circle. Sooner or later that simple arithmetic will have to admitted as being impossible in the criminal justice system as elsewhere.

It seems that the government is considering ending the right of defendants to choose trial by jury in the crown court for a range of either way offences. Regular visitors here will know that this anomaly of so called “choice” in our legal system has been criticised regularly by me; the last time on 05/01/2012 so I will not repeat the arguments. For twenty years or more those arguments have been repeated by various lordships and Home Secretaries only to be met head on by that coterie of hypocritical members of the legal establishment who trot out the boring mantra of 1215, Magna Carta and the right to trial by jury. Their argument, self serving as it is, would have escaped the charge of hypocrisy if they had faced head on the illogicality of single District Judges[MC] presiding over trials both of summary and either way offences in magistrates` courts.

The current government proposal is not based on justice or on logic. The number counters are scratching in the sand for further savings and in the current climate it seems unlikely that this effort at this time will be unsuccessful. That a legalistic anomaly will have been eliminated and not before time is of no concern to them but for those of us with no axes to grind and above all forms of politics or personal economic considerations this is a welcome advance.

Having breakfast this morning I switched on the T.V. and found myself listening to a discussion programme The Big Question in which the subject was “Is there any evidence for God?” The believers were on one side with the non believers facing them. The usual arguments and counter arguments flowed and of course there was no meeting of minds. Believers and non believers rarely change their opinions or reject their beliefs. It is upon the fear of a divine retribution that oaths have existed since the dawn of civilisation. It seems to me that the application of oaths to witness testimony in our courts is as archaic as a belief in the gods living in Mount Olympus.

The number of those in England describing themselves as Christian can cautiously be estimated as 50% + or – 10% depending on definitions. About 10% adhere to other religious denominations and about one third are atheist. If regular church attendance indicates the strength of Christian belief only about 10-15% of so called Christians attend church at least once monthly. In my experience when witnesses with surnames of apparent Pakistani or Arab origin are asked to take the oath they rarely affirm; they swear on the Holy Koran. When Orthodox Jews are “sworn” they decline the Hebrew Bible and affirm. They are not questioned as to their choice which could be construed as having a lesser value irrespective of the religious reasons for so doing. Afirmations are therefore generally from the white majority ethnic group. My point is to question the value of the religious oath without the court knowing the depth of religious attachment to the particular faith. Therefore from my point of view the religious Jew and the witness who affirms are being up front about their evidence……..they are telling us quite simply that they will tell the truth. We believe their evidence or we don`t. Those who swear on a holy book as if by rote and with no belief can feel free to lie. They are not constrained by fear of divine retribution. With a charge of perjury virtually non existent in magistrates` courts proceedings is it not time to re-think the oath?

During the appointments process prospective J.P.s are required to inform the committee of any matters in the past or pending which could bring the magistracy into disrepute. Such matters include serious motoring offences including any disqualifications received. Revelation of such offending is not necessarily a bar to appointment but concealment certainly is if and when the offending becomes known. Lord Justice Thorpe was reprimanded yesterday by the Lord Chancellor and Lord Chief Justice for failing to disclose he had received a driving ban. I would suggest that any colleague who, after revealing a similar lapse, is treated more severely than Thorpe LJ be quick to inform the Office for Judicial Complaints that s/he will not accept a disposal less favourable than that handed to the good lord.

I have often mentioned that in many respects Scots law seems more enlightened than that south of the border. When it concerns dogs it`s a no brainer. Since new legislation was enacted last year there have been 693 investigations resulting in 67 dog control notices being served on people across Scotland who allowed their pets to get out of control. Making the appropriate assumptions a “return” of less than 10% seems rather a costly way to enforce the welcome new law. How many convictions per bawbee spent I ask myself. Perhaps the next annual figures will indicate a more realistic approach to what investigations are undertaken.

Domestic Burglary

Theft Act 1968 (section 9)

This is a serious specified offence for the purposes of section 224 Criminal Justice Act 2003 if it was committed with intent to:
(a) inflict grievous bodily harm on a person, or
(b) do unlawful damage to a building or anything in it.

Triable either way
Maximum when tried summarily: Level 5 fine and/or 26 weeks’ custody
Maximum when tried on indictment: 14 years’ custody
Offence range: Community order – 6 years’ custody

This guideline applies to all offenders aged 18 and older, who are sentenced on or after 16 January 2012. The definitions at page 145 of ‘starting point’ and ‘first time offender’ do not apply for this guideline. Starting point and category ranges apply to all offenders in all cases, irrespective of plea or previous convictions.Where sentencing an offender for a qualifying third domestic burglary, the Court must apply Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.

STEP ONE
Determining the offence category

The court should determine the offence category using the table below.
Category 1 Greater harm and higher culpability
Category 2 Greater harm and lower culpability or lesser harm and higher culpability
Category 3 Lesser harm and lower culpability

The court should determine culpability and harm caused or intended, by reference only to the factors below, which comprise the principal factual elements of the offence. Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category.

Factors indicating greater harm

Theft of/damage to property causing a significant degree of loss to the victim (whether economic, sentimental or personal value)
Soiling, ransacking or vandalism of property
Occupier at home (or returns home) while offender present
Trauma to the victim, beyond the normal inevitable consequence of intrusion and theft
Violence used or threatened against victim
Context of general public disorder

Factors indicating lesser harm

Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal)
Limited damage or disturbance to property
Factors indicating higher culpability
Victim or premises deliberately targeted (for example, due to vulnerability or hostility based on disability, race, sexual orientation)
A significant degree of planning or organisation
Knife or other weapon carried (where not charged separately)
Equipped for burglary (for example, implements carried and/or use of vehicle)
Member of a group or gang

Factors indicating lower culpability

Offence committed on impulse, with limited intrusion into property
Offender exploited by others
Mental disorder or learning disability, where linked to the commission of the offence

STEP TWO
Starting point and category range

Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. Where the defendant is dependant on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 may be a proper alternative to a short or moderate custodial sentence. A case of particular gravity, reflected by multiple features of culpability or harm in step 1, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out on the next page.

Offence Category Starting Point (Applicable to all offenders) Category Range (Applicable to all offenders)
Category 1 Crown Court Crown Court
Category 2 1 year’s custody High level community order – Crown Court (2 years’ custody)
Category 3 High Level Community Order Low level community order – 26 weeks’ custody

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing category 2 or 3 offences, the court should also consider the custody threshold as follows:
• has the custody threshold been passed?
• if so, is it unavoidable that a custodial sentence be imposed?
• if so, can that sentence be suspended?

Factors increasing seriousness
Statutory aggravating factors:
Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction*
Offence committed whilst on bail
Other aggravating factors include:
Child at home (or returns home) when offence committed
Offence committed at night
Gratuitous degradation of the victim
Any steps taken to prevent the victim reporting the incident or obtaining assistance and/or from assisting or supporting the prosecution
Victim compelled to leave their home (in particular victims of domestic violence)
Established evidence of community impact
Commission of offence whilst under the influence of alcohol or drugs
Failure to comply with current court orders
Offence committed whilst on licence
Offences Taken Into Consideration (TICs)

Factors reducing seriousness or reflecting personal mitigation
Offender has made voluntary reparation to the victim
Subordinate role in a group or gang
No previous convictions or no relevant/recent convictions
Remorse
Good character and/or exemplary conduct
Determination, and/or demonstration of steps taken to address addiction or offending behaviour
Serious medical conditions requiring urgent, intensive or long-term treatment
Age and/or lack of maturity where it affects the responsibility of the offender
Lapse of time since the offence where this is not the fault of the offender
Mental disorder or learning disability, where not linked to the commission of the offence
Sole or primary carer for dependent relatives
* Where sentencing an offender for a qualifying third domestic burglary, the Court must apply Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.

STEP THREE
Consider any factors which indicate a reduction, such as assistance to the prosecution

The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

STEP FOUR
Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline. Where a minimum mandatory sentence is imposed under section 111 Powers of Criminal Courts (Sentencing) Act, the discount for an early guilty plea must not exceed 20 per cent.

STEP FIVE
Dangerousness

A burglary offence under section 9 Theft Act 1986 is a serious specified offence within the meaning of chapter 5 of the Criminal Justice Act 2003 if it was committed with the intent to (a) inflict grievous bodily harm on a person, or (b) do unlawful damage to a building or anything in it. The court should consider whether having regard to the criteria contained in that chapter it would be appropriate to award imprisonment for public protection or an extended sentence. Where offenders meet the dangerousness criteria, the notional determinate sentence should be used as the basis for the setting of a minimum term.

STEP SIX
Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.

STEP SEVEN
Compensation and ancillary orders

In all cases, courts should consider whether to make compensation and/or other ancillary orders.

STEP EIGHT
Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of the sentence.

STEP NINE
Consideration for remand time

Sentencers should take into consideration any remand time served in relation to the final sentence at this final step. The court should consider whether to give credit for time spent on remand in custody or on bail in accordance with sections 240 and 240A of the Criminal Justice Act 2003.

I will leave it to readers to judge whether tick box sentencing is an appropriate description of where the Sentencing Council is leading us and whether or not this is an improvement in the application of justice.

It was a morning sitting last September. We were sitting in the Video Remands court. Around 11.15am as we became aware that we were behind schedule we instructed the usher to notify the prison in question which was the only prison involved in the list that we might be running late by 12.00 noon; the expected cut off time. Around 11.45am we were dealing with the case of R.M. our last case. He had been remanded in custody post conviction and pre sentence. It became clear after hearing the facts that we were likely to sentence to immediate custody. We retired about 11.55am to consider our sentence. At 12.00 noon our usher entered to tell us that the prison was enquiring how much longer we would be to which we replied that we would be back in court well within five minutes to pronounce sentence. This was indeed what happened. After pronouncing the custodial sentences [3 to run concurrently] I was in mid sentence announcing the restraining order we had imposed, a task which would have taken about ten seconds, when the link was unceremoniously cut off by the prison.

This was an intolerable abrogation of power by the prison authorities. I appreciate the requirements of the prison`s meal schedule but when a Video Remand court is sitting from 10.00am - 1.00pm it should not be beyond a simple accommodation to have prisoners available during that period. But to cut off transmission as that prison did required an explanation from the governor. I doubt that such action would have been undertaken if a judge were sitting in Crown Court. The disrespect to the court was nothing short of disgraceful and to any observer an insight into the incongruity of the prison`s relationship with HMCTS. This prisoner was represented in court and his lawyer accepted the situation allowing us to conclude the pronouncement. If that had not been the case R.M. would have had to be recalled at 2.00pm arguably causing more disruption than an additional ten seconds would have caused had we been able to remain on line. Others in the past have proudly demonstrated their ability to install good timekeeping in a nationalised organisation.

The bench made a formal complaint via our Deputy Justices` Clerk. We have had no feedback!

We all have prejudices. An important aspect of the training of J.P.s is to recognise that simple reality and to ensure that any such do not interfere with the duties required. That principle does not apply to my opinion of some unknown civil servants in the Dept. of Justice. Chance conversations over the last few weeks with colleagues who had intimate knowledge of negotiations with H.M.C.T.S. and others, one of our D.J.s and also a D.D.J. recently appointed combined with a cursory glance at some official statistics convince more than ever that deep in Whitehall there is a cunning plan to limit our functions as now perceived.

Currently there are 26,970 Justices of the Peace {at 01/04/2011}. On 01/04/2008 there were 29,419, i.e. a reduction of 8.3%. It is likely that figures later this year will show a further decline. There are currently 150 full time District Judges[MC] Around 40 Deputy D.J.s were appointed last year and a further 28 are currently being shortlisted. The workload of D.J.s and D.D.J.s currently defined as days sat was 95,167 in 2006. In 2010 the number of sitting days was 110,330; an increase of 16%. So forget the argument about how many cases are coming to court or how many out of court disposals there are: however it is denied, the fact is that magistrates are being squeezed out of the courts. Our representatives at bench and national level should have that thought repeating in their brains whenever in discussion with H.M.C.T.S. and government.

I am not in favour of ASBOs. I have blogged here often on that theme. I have described them as similar to sweeping dust under a carpet instead of cleaning the dust up. The coalition agrees. Early in its tenure the Home Secretary announced their imminent demise. Currently about 2000 have been issued in the last year. Official figures show a breach rate of 55% for a single breach and 40% for multiple breaches. These figures are hardly a positive endorsement of their effectivity. However the principle of the Sword of Damocles still seems to find favour with some of my colleagues and with the Association of Chief Police Officers, that rather odd secretive organisation which purports to influence government policy so effectively that it will be disbanded within the next two or three years. Now that the writing is on the wall for this discredited policy the whingers are clamouring for a re-think.

The ludicrous details of some ASBOs, their conditions and their recipients are featured regularly in local press outside London. Just a few from the last couple of weeks came to my attention today. Burglars have been banned from every back street in Burnley and Pendle. Perhaps somebody can comment on why this seems to be an appropriate and effective disposal from the report available here.

Public begging, an easy collar for police and PCSO, is a blight and can cause fear and upset to some caught up in the activity especially when accompanied by aggressive behaviour but banning such down and outs from a city centre is just displacing the problem. Colleagues in Blackpool perhaps had no choice.

The third case reported here is one that reeks of ostridge head burying. A society that has allowed dangerous people suffering from uncontrolled schizophrenia to be treated “in the community”, allowed a health service to run at 98% occupied bed capacity such that a flu epidemic will cause overload, reduced the numbers of bail hostels thus increasing remands in custody, substituted box ticking for offender analysis by trained probation officers, reduced the numbers of lawyers employed by its own prosecution service to dangerous levels of inefficiency, builds aircraft carriers on hire purchase but cannot afford the planes to use them, etc etc etc is going to be lucky to secure a soft landing when the shock of national poverty really hits.

Numbers are as old as civilisation. They have intrinsic fundamental values. They are abstract concepts. They induce all manner of emotions from love to hate. And in this age of spin and focus groups they are as much a politician`s prop as magician`s prop. Nowhere is this illusion spun as much before our eyes than when debating police powers to stop and search and their effects for good or ill on society as a whole and the youthful black population in particular. It is therefore illuminating to read an analysis in Fullfact.org. The results might not satisfy participants on either side of the divide but at least they appear to be untainted by political or partisan manipulation.

Numbers of those making citizens` arrests have dropped by 85% since 2002. With fear of crime, by many accounts, a greater fear than crime itself, is it any wonder that few people are willing to risk life and limb to help a passing stranger in trouble? Of course those figures do not take into account those who do help out a fellow citizen in a spot of bother and then walk away. Indeed I did just that last week in a supermarket car park where a drunk was pestering an old lady for “change”. Numbers sometimes do not tell the whole story.

Having posted earlier this week that we no longer have a probation office in our building any more it was interesting to receive from a friend in London a copy of the latest newsletter from the London Probation Trust in which is written by the CEO and I quote,”……. This review has resulted in an increase in the ratio of Probation Officers to other staff to ensure that we can provide the highest level of probation expertise. The extra Probation Officers in court means [sic] we will be able to deliver more Oral and Fast Delivery Reports on the day and we will avoid unnecessarily lengthy adjournments by providing enough information to inform sentencing decisions on the day.” Sounds innocuous enough except that the situation at my friend`s court is exactly the same as at mine:- the probation office and staff have relocated to another court within the amalgamated re-organisation.

One never ceases to wonder.

Outside England and Wales no jurisdiction allows a defendant to choose the status of the court at which s/he wishes to be tried; not even in Scotland where many court practices are brimming with common sense. The second post I ever wrote here was on the subject of either way offences. It is not unreasonable that while such a category exists magistrates should have the option of considering that the matter is so serious that it should be tried in front of judge and jury at the Crown Court. What is unreasonable is that a defendant also has the choice of venue. Perversely it is perhaps the notion that a jury is more likely to acquit which persuades a defendant and often his/her lawyer to elect trial by jury. I write “perversely” because this in itself is a demonstration of the effectiveness of magistrates in finding guilt. The statistics on successful appeals against verdict at the lower court do not appear on current official publications of statistics. I quote from pp91 of the document:- “Forty five per cent of the appellants dealt with in 2010 had their appeals allowed or their sentence varied, 30 per cent were dismissed and 25 per cent were abandoned or otherwise disposed”. It would be useful to know the number of guilty verdicts of E/W offences at magistrates` courts overturned at the crown court. The actual number of appellants in 2010 was about 14,000 out of 2,000,000 cases. The cost of trials at crown court is between five and ten times the cost of trials at the lower court [depending on the source of statistics].

Lord Justice Leveson has looked at the situation of E/W offences from another point of view. The current position is that the magistrates` court must take the prosecution case at its highest in deciding whether or not to accept jurisdiction. The defendant`s case is not for consideration at this stage. This in my opinion is avoiding the reality of the elephant in the room…….removing the current right to choose trial by jury. This is a totem for many if not most lawyers and as previously posted here does not sit well with their acceptance of trial by a single District Judge.

Paradoxically when government`s desire to shave yet more from the Justice budget overcomes its reluctance to take on lawyers` vested interests and blinkered legal view there might be an effort to remove the defendant`s right to choose. That is an innovation which would be beneficial to most and a logical step to take but unfortunately logic is not a pre requisite for government actions.

Holiday time is now a memory and the reality of the amalgamation at our court was apparent to all. Our remand courts with secure docks leading directly to the cells were taken up with trials and the other courts with motoring and non CPS work. The missing remands were entirely at the other court building about five miles away and now our “sister” court. The result was that subsequent to an afternoon trial the defendant was bailed to that court for sentencing in three weeks. But of equal significance there is now no probation office in our building. All probation interviews are being conducted at the other building and therefore no probation officers are able to have a quiet informal meeting outside the courtroom with a defendant after conviction prior to the formal interview. In my opinion that face to face meeting to exchange the very briefest of details and perhaps an unofficial warning to attend on time was an important ice breaker especially for those who had had no previous disposal at that level. This is termed to increase efficiency.

Youth trials are the exception to the trials only policy as above. They are all to be conducted at the other building which has but three courtrooms two of which will be permanent remand courts. I sit in a metropolitan area with a fair share of gang violence. Chit chat with colleagues who took part in discussions with HMCTS informed me that that our youth panel and its representatives were concerned that having rival gang members at one small court would lead to trouble and virtually begged that such trials be split between the buildings. HMCTS response was that they would not have members of rival gangs appearing on the same day. So there we have the thinking processes of idiots who run the institution. Those who belong to the Red Underpants will appear Mondays and Fridays, the No Underpants on Tuesdays and the Dollies No Knickers on Wednesdays thus keeping Thursdays for the non affiliated youthful psychopaths who terrorise the streets. Our supine spokesmen made little opposition to the employment of a second District Judge. Apparently the proposals which are now reality were discussed over more than ten meetings. Indeed agreement had been reached re the youth trials to be split but HMCTS reneged some weeks later and re-imposed their original direction and squashed the opposing argument once and for all.

When large departments of the civil service are given the merest sight of expansion they pursue their target like a greyhound chases a rabbit. They will consume all opposition. It has been seen many times. The NHS and Inland Revenue are but two examples. They are empire building but no empire lasts for ever. They all collapse under the weight of their own engorgement and we the taxpayers pay the price. What price justice?????

An authoritative and independent appeals system is an essential part of any justice system and accordingly the higher the appeal goes the higher the status of those involved in deciding it. This is as it should be as almost always lofty principles or very fine points of law are in question. But at the level of appeals to the crown courts from decisions at magistrates` courts such high considerations are more of a rarity. Sometimes the lawfully indisputable decisions of a bench are overturned on the flimsiest of reasons or opinion. In the matter of suspending an immediate custodial sentence without any other change [excepting of course the statutory need to impose community requirement{s}] one can only suppose that a judge`s opinion with his J.P. wingers of the mitigation assumed previously offered to a bench has been interpreted more favourably than by the original sentencing bench of three. I understand that District Judges are less likely to have similar sentences overturned or altered.

The case reported in the Burton Mail last week illustrates my point. The appeal court judge is quoted as telling the defendant, “If you raise your hand to that woman again, you’ll be brought back here and you’ll be lucky not to be spending next Christmas in prison.” I suppose judges can get away with saying this.

From time to time my posts on this site have been prompted by reports in the press of the vagaries inherent in the justice system and in particular vagaries in sentencing. So in a few moments of lucidity between the imbibing of various liquids over the last week or so I have reminded myself of the likely occasions when a custodial sentence can be rightfully suspended. This is an area which remains outside statutory control and in which judges and magistrates can still exercise a certain amount of discretion based on their own experience and the notion that justice should be seen to be done.

The sentencing pronouncement might be thought to have said it all:- “this offence is so serious that only a custodial sentence is appropriate”. However the Sentencing Council`s overarching principle inherited from its predecessor in 2004 is that the question of seriousness should be visited again to determine whether or not the immediate sentence of custody could have substituted for it a sentence of suspended custody plus a community requirement. General thinking is that offender mitigation and possible rehabilitation is the avenue to a decision to impose a suspended sentence. Of course there is in the shadows although never ever admitted a political driving force to reduce the numbers of offenders sent to prison. I can say that I have never sat on a sentencing where that factor has influenced the final decision but then my colleagues and I do not have to answer to superior authority in the fashion of our professional colleagues nor are we climbing up any ladders of promotion to improve our professional, social or financial futures. Be all that as it may I have never had suggested or read that a guilty plea to an offence is a consideration in suspending a period of custody. After all the custody threshold would already have been breached having taken into account a guilty plea at an earlier stage in the decision making. What then to make of the decision and explanation heard at Exeter Magistrates` Court last month, “Custody is the only suitable option and we are taking into account your guilty plea otherwise we would have sent you to prison straight away."

Perhaps somebody can point out what I appear to have missed re suspending a custodial sentence.