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.