Sexual Abuse in Rochdale

Another gang of African and Asian men has been jailed for raping and sexually abusing a 15 year old white girl in Rochdale.

A Safeguarding Children Board found that Social Workers deemed such girls had consented to such abuse, despite the fact that an under 16 year old is legally unable to consent to sex, and Rochdale MP Mr Simon Danczuk accused Greater Manchester Police of ignoring sexual abuse against poor white girls. The girl in this particular case had complained to police in 2008, but no action was taken and the abuse went on for another four years.

Despite this, in a breathtaking example of denial, the Greater Manchester Chief Constable refused to accept what seems abundantly clear, that such abuse, by Asian and African men, is race related when he reportedly said:

"I think there is a real danger that if we try to see this as a racial issue, which we don't believe it was, it then means that society is not confronting some of these really difficult issues"

I don't know about 'society' but from his words it would seem that it is the Chief Constable who is not confronting these 'really difficult' issues'.

The Price of Freedom

There's been some expressions of outrage in the national press, and amongst some MPs, concerning the BBC allowing the 'hate preacher' Anjem Choudary to air his despicable views on the Today program.

I don't join in this condemnation.

The more we hear his poisonous narrative of extremism the more we will recognise and be aware of his danger, and that of his followers.
Forewarned is forearmed.

"The price of freedom is eternal vigilance".
Thomas Jefferson
3rd President of America (1743 - 1826)  

Log Fires and Health and Safety

I know there have been some pretty stupid Council rulings citing the dreaded Health and Safety, think kids wearing safety goggles to play conkers; banning standing for the National Anthem in case you fall over, and many other attempts by Council jobs-worths seemingly intent on banning any and everything they can, but log fires aren't one of them!

The landlord of the 'traditional' Black Horse pub has been reprimanded for burning logs in his pub's open fires, but this has nothing to do with Health and Safety, despite his protestations to the contrary. The pub in question is in a smoke control zone and burning anything on an open fire within a smoke-free zone will contravene the Smoke Control Order.

It's not Health and Safety, it's the Clean Air Act, which has done so much to transform our towns and cities from the dirty, grimy places they once were, something the landlord of the Black Horse must have been well aware of when he took over the pub.

Blaming Health and Safety does no service to the sensible people trying to control Council stupidity, and there's enough of that without trying to add to it.

Whole Life Sentences and the European Court of Human Rights

It seems that the European Court of Human Rights has ruled that ‘whole-life’ sentences, where a crime is judged to be so heinous, or the criminal so dangerous that they should never be released but die in prison, breach a criminal’s human rights.

I struggle to understand where from and how the Court could make such a determination. The Court exists solely on the legal basis of the European Convention on Human Rights – and on no other foundation. Indeed, it was the Convention which established the Court in the first place, rather than the other way round.

I’ve read and re-read the Convention in search of an answer:

Article 1 says everyone is entitled to the freedoms enshrined in the convention

Article 2 enshrines the right to life.

Article 3 prohibits torture and inhuman or degrading punishment

Article 4 prohibits slavery

Article 5 states that everyone has the right to liberty and security of person, save in the case of the      lawful detention of a person after conviction by a competent court.

Article 6 covers the presumption of innocence and the right to a fair trial

Article 7 prohibits punishment if no law has been broken

Article 8 deals with the much abused right to a private and family life

Article 9 provides for the freedom of thought, conscience and religion

Article 10 the freedom of expression, (which is why I defy the Lord Chancellor and Lord Chief Justice  and continue to express my personal thoughts through this blog).

Article 11 confers the freedom of assembly and association

Article 12 gives the right to marry

Article 13 provides for an effective remedy for violation of convention rights

Article 14 prohibits discrimination

Article 15 allows for the derogation of certain rights in time of national emergency

Article 16 allows for the restriction of political activities by aliens

Article 17 prohibits abuse of the rights set out in the convention

Article 18 limits the restrictions that can be placed on convention rights

Article 19 establishes the Court of Human Rights

Articles 20 to 51 deal with the administration of the Court

Articles 52 to 59 are miscellaneous provisions

There are also a number of Protocols, the first deals with the protection of property, the right to an education, and the right to free elections.

The forth Protocol deals with imprisonment for debt, the prohibition of expulsion of aliens and freedom of movement

Protocol 6 abolishes the death penalty except in time of war

Protocol 7 provides for the right of appeal and for compensation for wrongful conviction, for the equality of spouses and prohibits punishment twice for the same offence

Protocol 12 is a general prohibition against discrimination

Protocol 13 abolishes the death penalty without exception.

AND THAT’S IT!

How, how, how can any of that be translated into barring whole-life prison sentences? The convention contains not one word on the subject.

It seems to me that now no signatory to the convention makes use of torture, no longer executes criminals, and confers on all the right to be educated, partake in free elections, speak their mind (within limits) to marry and to have a family and be generally free of persecution that the Court has b……r all to do, and so makes things up just to fill the time, and justify their position and status.

A Mockery of Justice

I don’t know which disappoints me the most, that the fiddling peer Lord Hanningfield claims £300 a time for spending as little as 21 minutes a day in Parliament, or that he served only nine weeks of a nine month sentence imposed for falsely claiming £28,000 in parliamentary expenses.

9 weeks for 9 months!!!!!!!

Less than one quarter of his sentence. What a mockery of justice, and still the do-gooders and politicians whine on about the prison population and what they claim is the excessive use of imprisonment.

What a joke, or it would be , except it isn't funny, it's tragic.

Savile and the BBC

In another example of the high and powerful seeking to protect themselves from whistle-blowers, (see below) I recommend, without comment, yesterday's Guido Fawkes' Blog here.

It has been suggested that in order to prevent the publication of a tape-recorded conversation revealing that the then BBC chief Mark Thompson knew about Savile's activities at the BBC, and lied about his knowing, that the BBC Trust Chairman, Lord Patten, issued a legal warning to the Conservative MP Mr Rob Wilson. The BBC, it is said, later 'clarified' it's letter saying it wasn't a warning, merely a 'suggestion'!

It's also suggested, in the Daily Express and Daily Telegraph that the former news executive Nick Pollard, who carried out a review into the fiasco surrounding the shelved Newsnight report on Savile's activities at the Beeb, knew about the conversation yet omitted any reference to it from his report.

Expect more to come on this farrago.

Fireworks and Fog

I can't say I'm surprised, although I am relieved, that Mr Geoffrey Counsell has been found not guilty of causing a fatal accident on the M5 in 2011 after the Judge at Bristol Crown Court ruled there was no case for him to answer on a charge that he breached Health and Safety regulations.

How he could be held to blame for setting off fireworks, whose smoke later combined with fog to cause a smog which drivers then hurtled into, killing themselves and others, is beyond my comprehension.

I tend to think Mr Counsell is quite right when he says he was made a scapegoat by those looking for someone to blame for the accident, especially when one considers that the Highways Agency, the Taunton Deane Borough Council and the Avon and Somerset Constabulary were all consulted regarding the firework display, that no objections of any kind were raised, and that it was the same Avon and Somerset Constabulary who initially charged Mr Counsell with 7 counts of manslaughter and when that was dropped the same Taunton Deane Borough Council who then prosecuted him under the Health and Safety regulations.

How bizarre is that?

Any road fatality is tragic but accidents do happen and drivers in such circumstances must accept a degree of responsibility for their own actions. If you can't see your hand in front of your face then you really shouldn't be belting along at 70 mph!
It's an all too common occurrence on motorways in fog, or reduced visibility of any kind, to see cars and lorries, especially lorries whose drivers seem to think themselves immortal, driving at a speed from which stopping within their zone of visibility would be plainly impossible. An accident waiting to happen, and usually no convenient firework display to blame.

The Perils of Whistle-Blowing

I don't know which I find more despicable, the fact that a HIV positive child could be placed with foster parents, without them being told of the baby's condition, therefore placing the health of the baby at risk through lack of treatment, and that of the foster-parents through risk of infection (baby sick, faeces, drool etc.) or that the nurse who revealed this deception was first sacked by her employers, the Newham University Hospital Trust, and then struck off by the Nursing and Midwifery Council for 'breaching patient confidentiality'.
The High Court up-held the nurse's appeal against the NFC's decision on the grounds that fresh evidence had come to light; a letter which it is said was written by the Trust’s head of employment and which, if genuine, would throw a completely new light on the disciplinary charges.
Nevertheless, she is now fighting a second attempt by the Council to strike her from the nursing register.

The nurse, concerned for the safety of the baby born is 2008, as well as the foster parents and their three young children, who had no idea they were exposed to possible risk of infection, initially complained to her superiors at the Newham University Hospital Trust claiming it was unacceptable that the human rights of the mother, who had HIV and wanted to hide her status, were considered more important than protecting foster families.
It was only after four months of inaction that she finally decided to go public on the issue in the hope that something might be done.

She was sacked in 2009 and it was said in Court that her superiors were embarrassed by the disclosures she had made to the press (I bet they were), that she was ‘seen as a threat by some colleagues’, that allegations against her were ‘exaggerated or contrived’ and that some managers ‘instinctively closed ranks’ against her.

Whatever the rights and wrongs of this case are I find it repugnant that a Hospital Trust would engineer a deliberate cover-up and ignore a professional nurse's concerns in the way Newham University Hospital Trust seems to have done.

I think the  nurse concerned was very brave to go up against a powerful establishment such as a hospital trust, putting her job and career on the line in defence of what she believed to be 'the right thing to do', although I don't hold out much hope for her success. Those in positions of power will move Heaven and Earth to protect themselves and their establishments and without a 'whistle-blowers charter', something which would give real protection to those brave enough to expose the incompetent, the deceitful and the criminal, then means will always be found, or manufactured, to get rid of those such as she who 'blow the whistle' on wrong-doing.

Scottish Independance

How I long for the day when we can fly this flag, and finally be rid of those troublesome Scots.

Nelson Mandela

In remembrance of Nelson Mandela, 1918 - 2013

A truly great man.

The Rainbow Nation will be his memorial.

“When a man has done what he considers to be his duty to his people and his country, he can rest in peace.” 

Nelson Mandela, 1994

Newspapers

I'm a great lover of newspapers, much preferring news from those sources rather than from television, and a number or reports have recently caught my attention.


The first concerns a lady charged with a string of sex offences which occurred 25 years ago when she was 28 and her 'victim' was 15.

Now I can't comment on the specifics of the case, and I won't get into the rights and wrongs of it but I do wonder how and why it has now comes to light. I can only presume, for I can think of no other way, that the now 40 year old man has decided to report it to the police.

But why?

I can't speak for him but I would have thought that sex with an attractive 28 year old was/is right up there at the top of every 15 year old boy's wish list.

Why the sudden urge to confess all? If he was unwilling then I can only say that it's awfully difficult for a woman to have non-consensual sex with a boy/man, unlike when the positions are reversed, so again I wonder, why now?



The second report to catch my eye concerns a 60 year old army veteran who, having served his country for 16 years, in Cyprus, Kenya and Northern Ireland, has had his job-seeker's allowance stopped because he committed the heinous sin of selling Poppies in the run-up to Remembrance Sunday.

I have nothing but contempt for those desk-bound pen-pushers, who have never contributed one iota to the security and well-being of the nation, but who exercise an evil power over those that have and whose only comment to this disgrace is that 'rules are rules'.

May they rot in hell, all of them.



On a somewhat lighter note I read that Frederick Forsyth (Daily Express 6th December 2013) was put out because two Nigerian defendants, on trial at the Old Bailey, were allowed by the judge to be called by their jihadist names (whatever that means). Mr Forsyth maintains that if in similar circumstances he wished to be called Father Christmas it would be refused - I disagree.

Many years ago, when I was a very new Magistrate, I was sent to Huddersfield to observe a court in progress. The defendant, I can't now recall the charge he faced, made it known he wished to be called Rupert Bear. With an absolutely straight face the rather formidable Lady Chairman promptly did just that. Her "please sit down Mr Bear", and all subsequent such utterances, has remained with me to this day, reminding me that all who come before the courts have a right to be treated with dignity and respect, no matter how grave the charges they may face.

Petty and Mean Spirited Local Councils

Another story which caught my eye this week was about a local free school in Slough having to bus its children to lunch as the intervening road had no safe crossing point.

No! Slough Borough Council can’t alter the traffic light sequence to allow the children time to get across a busy road.

No! Slough Borough Council won’t provide a lollipop person.

No! Slough Borough Council won’t provide a Zebra Crossing.

Yes! The problem is the school’s fault.

What’s betting if the school was one controlled by Slough Borough Council all the above would miraculously become possible and that their refusal to help the school get its pupils safely across the road is more to do with spite and political dogma than anything else.


Another example of Council spite came to light in a report that Wakefield Metropolitan District Council’s hived-off housing department, Wakefield District Housing, was reneging on an undertaking given to tenants of a block of flats.

It would seem that when WDH took over the flats seven years ago they changed the tenancy agreement banning tenants from keeping cats and dogs.

However, an undertaking was apparently given by the then tenancy manager that existing tenants could keep their pets for their lifetime, a sensible and compassionate compromise.

Now however the new Area Manager for WDH, one Joanne Smith, is seeking to enforce the tenancy agreement. Whilst admitting that an undertaking had been previously given she is now adamant that she can’t, or won’t, over-ride the tenancy agreement.

Needless to say, the original minutes recording the compromise seven years ago have been ‘lost’!

How convenient for WDH.

Mrs Smith says she will ‘work sympathetically with residents’ – but not apparently sympathetically enough to abide by a promise freely given seven years ago.

No harm can possibly be done by allowing a seven year old agreement to continue and it seems to me like another example of petty council spite for the sake of it.

The Law of Unintended Consequences (or how to do more harm than good)

I read in today’s newspaper that the actions of charities like Oxfam, who ship some 2000 tons of old clothes to Africa each year, is destroying the culture of countries such as Ghana by replacing its traditional clothing with western-style jeans and football tops.

Another and more serious consequence of this mass shipment of cheap clothing is that it is now affecting the countries’ textile industries, destroying jobs and undermining their ability to grow their own industries and so overcome poverty.

Not unsurprisingly, Oxfam’s Trading Director, Andrew Horton, defends the trade in second-hand clothes and with a mind-boggling dichotomy of thought says that the trade creates jobs but undermines local garment industries!

I don’t suppose Mr Horton’s defensive position as anything to do with the money Oxfam makes out of this trade but wouldn’t it be better to invest in improving the local infrastructure, so that countries such as Ghana can become less reliant on aid, than to simply use them as a dumping ground for our un-wanted cast-offs?

Briscoe Primary School and Exclusions.

It's been reported that Briscoe Primary School, part of the Hearts Academy Trust, has excluded nine Primary School pupils because their parents failed to attend an induction session on, amongst other things,  Health and Safety.
The Health and Safety Executive is reported to be critical of the school's action saying "there are no Health and Safety laws which would require parents to attend such a briefing".

No doubt many other issues were covered as well as Health and Safety but it would seem even then the school has acted unlawfully in excluding pupils for a week and until their parents attend a fresh briefing session.

I quote from the Department of Education's Statutory Guidance and Regulations on exclusion:

Section 12 of The Guide to the Law states:

It is unlawful to exclude for a non-disciplinary reason. For example, it would be un-lawful to exclude a pupil for a reason such as the action of a pupil's parents.

I was, for many years, the Chairman of a Local Authority School's Exclusion Appeals Panel and fully expected, with the advent of Academies, such as the Hearts Academy Trust, that situations like this would proliferate, especially given that parents can no longer appeal to an independent appeals panel such as I chaired, but only to the School Governors who, in my experience, have never failed to confirm and support a Headteacher's decision to exclude, no matter how flawed in law that decision might have been.

Michael Le Vell and Elephants

I can't say I'm surprised at the jury's verdict in the Le Vell case but what does surprise me is the decision of the Crown Prosecution Service to prosecute a case which, according to their own criteria must be "in the public interest" and "have a reasonable expectation of conviction".
 
As to the second criteria, how the CPS ever thought they would get a conviction for five counts of rape when the medical evidence was that the girl in question had never been sexually penetrated astounds me.

RAPE - the offence of forcing a person, esp a woman, to submit to sexual intercourse against that person's will.

Their decision is even more puzzling when considering the history of the case; in 2011 and twice in 2012 the CPS determined there was insufficient evidence to support a conviction, no medical evidence, no forensic evidence, no supporting evidence and no witnesses! So what changed, what made the CPS consider it to be in the public interest to mount an extremely costly prosecution with no likelihood of conviction?

Jimmy Saville did!

And the whole media circus surrounding the alleged molestation of young people by 'celebrities'. Even the CPS's barrister, Eleanor Laws, felt the need in the Le Vell case to say to the jury "Is there some kind of witch hunt?" It's often said that if it looks like an elephant and smells like an elephant then it probably is an elephant - well the Le Vell case and others do look and smell like a witch hunt!

It also looks like a discredited CPS grasping at straws to atone for the fact that Jimmy Saville is in his grave and so beyond the reach of anyone save the Almighty.

What also concerns me is the ease with which anyone, celebrity or otherwise, can have their reputation ruined, their career ended, and their marriage destroyed, even if exonerated, on the un-supported say-so of some deluded, lying accuser, safe in the knowledge that she (it's usually a she) is immune from the consequences of her lies.

This cannot be fair!

A cornerstone of the entire legal process is that there should be a 'level playing field' between defence and prosecution and in cases such as Michael Le Vell there simply isn't! The field is tilted massively in favour of the prosecution. I accept that without victim anonymity many genuine cases would never come to court but hasn't the time now come when we should address the imbalance this causes and grant pre-conviction anonymity to those accused of such crimes?

The Howard League

I suppose it is hardly surprising that Professor Andrew Ashworth, writing  in a pamphlet for the Howard League for Penal Reform, an organisation committed, in the words of it's Research Director Anita Dockley, to "reducing the flow of people into the penal system" ie not sending anyone to jail, should advocate the abolition of prison sentences for those convicted of theft or fraud.

Where he and Francis Cook, the League's Chief Executive, show their lack of understanding or connection with 'real life', rather than hypothetical academia is in their alternatives to prison.

They advocate the return of the property stolen and a system of fines and compensation. What they fail to understand, or if they do understand to ignore, is that the stolen goods can rarely be returned, the thieves have already been to Cash Converters to dispose of their ill-gotten gains and spent the money on booze or drugs, and they have no income with which to pay a realistic fine, let alone compensation.

The total monetary penalty a court can impose is one dictated by what can be repaid within 12 months. For someone on benefit, and most thieves are, this equates to 52 times the weekly deduction the DSS will take from benefit, £5 per week, meaning the total a court can impose is just £260.

Take away the court cost of £80, the Victim Surcharge, a minimum of £20, a fine at Level A with a third off for a timely guilty plea, £37 and there is only £123 left for, in Francis Cook's words "the much needed compensation", which would be of little benefit to someone who has had goods to a value of £250 taken which, according to the warped thinking of  Professor Ashworth does "little harm"!

Return Control of Magistrates' Courts

An illuminating article in The Law Gazette took my eye

read it here

In light of the proposals to privatise the courts the author makes a cogent argument for returning control of Magistrates' Courts away from the despised Her Majesty's Courts and Tribunal Service (HMCTS) and back to the local community, as it was in the good old days of Magistrates' Courts Committees.

OK, so she's not advocating the return of MCCs but the idea that courts should, or could, be run locally by a board of local people, Police Commissioners, Magistrates, Local Councillors etc. seems eminently preferable to them being run by Tesco.

It's highly unlikely of course. As the author says, central government always disliked the autonomy of MCCs and it is inconceivable that having wrested control away from local people it will voluntarily relinquish that control now, more's the pity.

The author is quite right when she says that magistrates now have no influence over the running of the courts, despite having many ideas on how they could be run more efficiently, and feel like hired hands, expected to preside over justice, but having no input into its administration.

I can think of no better way of restoring that lost pride and feeling of worth, which was an integral part of being a Magistrate when I was appointed, than adopting the ideas in this article

Richard Madeley and Contempt of Court

You read some dangerous stuff in the newspapers.


I picked up an article written by Richard Madeley in the 'Richard & Judy' page of the Daily Express (Saturday 8th June) relating to contempt of court proceedings, and his decrying the lack of vigour with which these were pursued in the preliminary hearing of the Michael Adeblajo case.

My reading of his article is that he is in favour of imprisonment without trial and in this he harks back to what he considers were 'the good old days' when he was a cub reporter, it seems as if he's learnt nothing since!

Just because someone asks questions of the court, and in an open society shouldn't we encourage this, or puts his hands in his pockets, is no cause to imprison them for days or weeks at a time, which Richard seems to think is 'a good idea' - well I don't, and it isn't!

The days when an over-officious judge or magistrate could imprison someone on a whim are long gone, thank goodness. We aren't some tin-pot, third-world, despotic regime, and I suspect the great Richard would be amongst the first to condemn such regimes if they acted in his preferred manner against a British subject, we are a shining light in democratic justice, and we shouldn't allow the Richard Madeleys of this world to poison our minds.

Apart from the emotive aspect, and enough of that, R Madeley seems to have forgotten, if he ever knew, some pertinent legal facts. The first being Article 5 of the Human Rights Act - The right to liberty and security, in that everyone has the right to liberty and security of person and that no one shall be deprived of his liberty save after conviction by a competent court.

No imprisonment without trial in other words.

There are also the Criminal Procedure Rules, April 2013 which sets out, in some detail, the laws and procedures governing alleged Contempt of Court, section 62.5 deals with contempt by disruption etc.

Very briefly then:

The first step in any contempt proceedings is to offer the accused free legal advice if he or she doesn't already have it.

Secondly, the court must explain, in plain language, what is the conduct that is in question.

Thirdly, the accused must be given the opportunity to apologise, and if thought necessary an undertaking not to repeat the behaviour, in which case that is the end of the matter.

If an apology is not forthcoming then the accusation must be put to the accused and if he/she accepts they were in contempt, unlikely if they won't apologise, then the court, after making a full enquiry can, after again giving the accused the opportunity to apologise, impose punishment, which as with all punishments must be appropriate to the offence and in the case of contempt in the Magistrates' Court ranges from a fine up to a maximum of £2500 or imprisonment for one month (or both).

However, if the alleged contempt is denied there must be a trial on the issue (no imprisonment without trial remember).

Such a trial must be heard by a different court to that which was supposedly insulted/disrupted, one can't be a judge in your own cause, and the disrupted/insulted Magistrates become, in effect, witnesses as to fact.

The whole issue of contempt is so difficult that official advice to Magistrates is to effect wherever possible 'judicial deafness', small wonder then that the Magistrate in the Adeblajo case took the line that he did. He was obviously aware of the pitfalls of possible contempt proceedings, it's pity Richard Madley didn't do a little research, and even better some thinking, before making his ridiculous and damaging comments.

Cold Calling

I'm sick and tired of being called at all times of the day and night by telephone sales persons, almost always based in some foreign land who 'aren't selling anything' but nevertheless want to know everything from my sock size to who supplies me with gas and/or electricity.

The latest is the official-sounding British Development Board and their salesperson Kelly.

This is a spurious organisation who exist to gather information about you and sell it on to other firms, so they can 'target' you with even more cold-calling.

For an hilarious response to such calls watch this on You Tube.
here

Radstock Town Council, and a flag.

This is the banner of Saint George, the English flag, the foundation of the Union Flag, the basis of the Royal Navy's ensign, the flag of the Church of England and the banner of the land of birth of Eleanor Jackson, the (predicably) labour councillor on Radstock Town Council who persuaded her colleagues that to fly their country's flag would offend the town's 16 Muslims!

This is the banner behind which the English triumphed at Agincourt, that flew over Nelson's fleet at Trafalgar and to which Eleanor Jackson owes the very freedom she enjoys to critise it.

This dysfunctional set of politically correct councillors, led by their labour party leader Lesley Mansell, have banned the use of this flag for 20 years, despite the Muslim Council of Britain actually encouraging the use of the St George's cross as a symbol of inclusivity, something the petty bourgeoisies of Radstock seem unable to comprehend.

If I lived in Radstock I'd have the largest English flag I could find flying from my rooftop, and no doubt the blinkered intolerant councillors there would throw every petty regulation they could find at me - and I'd see them damned!

Little Fat Boy

Give a little fat boy with a silly haircut

a catapult and sooner or later he's going to want to see how it works by firing it at your windows.

Give him an atom bomb and..............

Setencing at Chippenham

One wonders what one has to do in Chippenham to be sent to prison.
Toby Hayden, in a drunken rage, battered his girlfriend around the face, such that she was virtually unrecognisable, and kicked her in the head while she lay defenceless on the floor.
Not content with this act of unprovoked violence he then attacked two police officers trying to arrest him.

At the time of these assaults Hayden was subject to an eight-week suspended jail sentence for a previous offence of violence.

If the reports in the press and on television are accurate, always a dangerous assumption, then two things disturb me about Chippenham magistrates decision not to send Hayden to prison.

Firstly, it is well established guidance from both the Sentencing Council and the higher courts that a suspended sentence should be activated, the more so when the two crimes, that relating to the suspended sentence and the new one, are similar in character. In this case both were offences of violence and I would have expected the magistrates to activate the suspended sentence in full, which makes the reasoning of the bench, as expressed by chairman Ms D Slate that "We are going to take the hard line by not activating the suspension order" extremely difficult to understand.

Secondly is what the Sentencing Guidelines, which must be followed, unless it would be unjust to do so, have to say about the likely sentence for such offences (assuming all three assaults were charged as Common Assault, although looking at Miss  Butterworth's injuries Assault Occasioning Actual Bodily Harm would seem to have been more appropriate):

Category 1 greater harm and higher culpability
The injury  was certainly more serious than a push or a shove, so greater in the context of a common assault, injury was defiantly caused and it was a sustained attack, all of which indicate greater harm.
Hayden kicked his victim to the head while she lay on the floor, the use of a shod foot indicates higher culpability. We need not consider any of the lesser categories and there are no factors indicating lesser harm or lower culpability.

Range of sentence for a category 1 offence is a low level community order up to 26 weeks in prison, with a starting point, without any additional aggravating features, of a high level community order.
What aggravating features are there?

1. Previous relevant convictions - Hayden had a recent previous conviction for violence, hence the suspended sentence.

2. Location of the offence - in a public place such that other people would be put in fear, the offence was witnessed by at least two members of the public.

3. Failure to comply with other court orders - Hayden was subject to a Supervision Order as part of his suspended sentence, to encourage him not to re-offend.

4. Abuse of a position of trust - the victim was his girlfriend and she had the right to expect he would treat her right, not batter her to the ground.

5. An offence committed under the influence of alcohol - Hayden had earlier drunk shots of tequila, eight pints and three cans of lager.

There are no mitigating features.

With five aggravating features the starting point of a high level community order MUST be elevated to a custodial sentence and I would have expected, taking into account the two additional charges of assault against a constable, that a sentence of 21 weeks imprisonment, reduced by a third to 14 weeks to reflect his guilty plea, plus the 8 week suspended sentence to run consecutively for a total of 22 weeks in jail.

I can only assume that the training regime for the Chippenham magistrates is woefully inadequate as the above 'working through' of the Sentencing Guidelines is nothing out of the ordinary and should be second nature to any competent magistrate.

To determine that an appropriate sentence in such a case is one of 200 hours of unpaid work and the attendance on an anger management course, which amounts to little more than a medium level community order, flies in the face of reasoning.

The Ministry of Justice and the Senior Presiding Judge say magistrates should not 'blog', as their comments may reduce public confidence in the judicial process. It's not blogging but sentences like the one handed down by the Chippenham magistrates which reduce confidence in the judicial process and if this blog does nothing more than highlight that not all magistrates think like those in Chippenham it will have served a useful purpose.

Trial by Jury

Trial by jury is the cornerstone of the English legal system, adopted throughout the world and has it’s origins in the Magna Carta of 1215, clause 39 of which states:
“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land”.
It would take a brave man, or government, to tamper with 798 years of English Law, but following the collapse of the Vicky Price trial that is exactly what is being advocated by many people, and large swathes of the media.

How has this come about, what is it about this particular trial that has caused so much concern about the jury system?
After some time deliberating the jury at Mrs Price’s trial sent ten questions to the judge. Now given the archaic defence being put forward by Mrs Price, that of marital coercion, some questions might well be expected, after all, it’s not everyday in these times of equal opportunity that a woman will admit to being ‘under her husband’s thumb’!
However, some of the questions certainly do give cause for concern.

For a jury to ask if it could reach a verdict based on a reason that was not presented in court and had no facts or evidence to support it is quite staggering and begs the question, if the verdict was not to be based on the evidence what on earth was it to be based on?
The supposition is that jurors had been searching the Internet at home and it was on what they had found there that they were considering basing their verdict, as if everything on the Internet, (this blog excepted), was true!

Another question of concern was ‘does the defendant have an obligation to present a defence’? This demonstrates a lamentable lack of knowledge of the concept of the presumption of innocence, that it is for the prosecution to prove guilt, not for the defence to disprove it, another rock upon which British Justice and English Law is founded.
Other questions, which to the informed may sound unreasonable, or even bizarre, do if nothing else demonstrate that the jury was trying its level best to separate the wheat from the chaff and come to a reasoned and fair verdict.
The fact that they were unable to do so is, in my opinion, no grounds for criticism, many juries are unable to reach even a majority verdict on an ordinary case, and this is, or rather was, far from ordinary.
That being said Mr Justice Sweeney was undoubtedly correct when he said that the questions that the jury asked him showed that at least some of the jurors had "a fundamental deficit in understanding", but whose fault is that?
Prior to 1972 and the report of the Morris Committee jurors had, amongst other things, to be over 21 and a property owner. This tended to ensure that juries were predominately white, male and middle class. While such discrimination may be unacceptable today it did at least ensure that jurors were, by and large, reasonably well educated.

Since 1972 jury eligibility has been considerably widened, and standards consequentially lowered. Now, provided you are over 18, and under 70, a UK resident for a minimum of 5 years and are not mentally disordered or otherwise disqualified, you can serve on a jury in the most complex of trials.
Given mass immigration from countries with no comparable legal system, the lamentable state of education in this country, and the years of liberal thinking when British history and social responsibility were considered too reactionary to be taught in schools, it is little wonder that the man-in-the-street has so little comprehension of the basis of the British Legal system, or English Law in general.
So is it time, as is being advocated in some quarters, to abandon the random selection of juries and replace it with a panel of trained jurors, or with four magistrates sitting with the judge to consider guilt or innocence?

As I said at the beginning of this post, it would be a brave man who proposed it, but it may come to that. There is already provision in the Criminal Justice Act 2003 for a judge to sit without a jury where the case is in-ordinarily complex, or there is a real risk of interference with the jury, and it’s a power that could be extended.

It’s certain that we will never be able to go back to the days of white, male, middle class and property-owning jurors, and I’m not sure we should, so what other avenue is there? Would better education rectify the lamentable lack of understanding shown by some jurors in the Vicky Price trial?
Let us hope so for I’m convinced that juries, by and large, try their best to get to grips with something which, for most of them, is an alien environment and a totally unfamiliar set of rules and procedures, and that, on the whole, they do a good job and, by whatever means, mostly come to the right decision.
Long may they continue.

Keeping Criminals out of Jail

Substantial concern as been raised of late, in the national press and by the Magistrates’ Association, about the new code
read it here
for Crown Prosecutors which, for the first time since 1992, introduces a “proportionality test” in deciding whether the CPS should prosecute an offender.

Keir Starmer QC, the director of public prosecutions, is reported as saying that the new “proportionality test” would bring in “a common sense approach to prosecutions" but many magistrates have raised concerns that it will lead to more and more cases being dealt with by a police caution, or not being taken through the criminal justice system at all.

That this is all to do with money is made clear in the Code  as prosecutors must now consider whether it would be in the public interest to bring charges by assessing “whether prosecution is proportionate to the likely outcome”. 
Factors including the cost and likely length of any trial will also have be considered, along with any potential sentence the suspect might get if convicted.
Prosecutors will now have to consider “the cost to the CPS and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty”.
(Excessive by what criteria one wonders).

This new method of keeping offenders out of jail comes after Ministry of Justice figures showed that thousands of criminals are let off with a caution each year, a figure certain to rise as a result of the new code.

John Fassenfelt, Chairman of Council of the Magistrates’ Association has said that Ministry of Justice figures showed that one in four criminals responsible for violent crime were let off with a caution last year, along with one in five sex offenders and one in 10 burglars. In total more than 14,000 violent criminals, 1,400 sex offenders and 2,900 burglars avoided court in this way.
This comes on top of Ministry of Justice figures showing that the number of repeat offenders with at least 15 previous convictions or cautions rose by a third last year to 108,119 and that a total of 68,100 of those convicted of a serious offence avoided jail with 16,111 being fined and 20,879 receiving a community sentence, all substantial increases on last year.

Peter Cuthbertson, chief executive of the Centre for Crime Prevention, is reported to have said:
“Since the financial crisis began, the courts have failed to lock up an increasing number of serious, repeat offenders. Tens of thousands of repeat offenders are instead receiving fines, community service or a fully suspended sentence for crimes such as violence against the person, theft and sexual offences.” 

Nick de Bois, a member of the Commons Justice Select Committee, reportedly said: “What do these people have to do before they are taken off the streets and not allowed to re-offend?” 

A Ministry of Justice spokesman said  that the figures were “highly selective” (? they’re his figures remember) and that:
"Criminals should be in no doubt they will be punished for their crimes and those who commit the most serious offences will receive severe sentences." 

Well it certainly doesn't look that way. Cautions, fines, community and suspended sentences have all showed substantial year-on-year increases; the number of repeat offenders just keeps going up and up and now cost will be one of the deciding factors in whether the CPS even bother to prosecute criminals.
Court lists show an ever-decreasing workload (ie the number of criminals brought before us) and Sentencing Guidelines restrict the use of prison sentences. Those that are sent to prison only serve, at most, half their sentences and new provisions now mean that even if, once released, they continue to offend they won't be recalled to jail.
It's a sorry tale of Governments being focussed on saving money to spend willy-nilly on high speed trains and overseas aid and not on carrying out their most basic and fundamental duty, protecting the public.