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.

Not Fit For Purpose

I’ve just finished the latest round of Judicial training, this time on the Legal Aid, Sentencing and Punishment of Offenders Act, 2012.

I can’t speak for the Act in its entirety, and suspect that most of it will have little relevance to either the Magistrates’ Courts, or indeed the punishment of offenders, something this Government seems determined to avoid doing at all costs.
However, one clause, buried deep in Schedule 11, section 8, sub - section (3), paragraph (d) will have a considerable effect, on the courts, the administration of justice and the safety of the public in general, and it is this:

“A justice of the peace may not remand a person in, or commit a person to, custody if it appears to the justice of the peace that there is no real prospect that the person will be sentenced to a custodial sentence in the proceedings.”

So what does that mean in real terms?

Where a petty criminal, whose crime might not in itself merit imprisonment, comes before the court and who, on his or her past record will, as soon as they are released, go on to commit further offences, it will no longer be possible to give society some respite from his or her activities by keeping them in jail until they are sentenced. Out they will go to re-offend, and it all probability keep on doing so such that it will be impossible to ever keep them in one place (prison) long enough to sentence them.

Where a court has substantial grounds to believe that if released on bail an accused person will threaten or otherwise intimidate witnesses into not giving evidence against them, in a case where again prison might not be a realistic option, but a high-level community order might be, such as most cases of common assault and the less serious assaults occasioning actual bodily harm, then the court will have to release the accused and accept that witnesses will be intimidated and the case will never come to trial.

Where a court imposes conditions on an accused’s bail, such as residence, a night-time curfew, or staying away from their victim/s, in cases such as harassment or racially or religiously aggravated harassment where no violence is threatened, and the accused decides to ignore a condition, or all the conditions, the court will have no option but to release the person to go on doing whatever it is he or she wants.

Where the court knows damn well that if released the person before them will abscond and not turn up for trial, because he’s done it umpteen times before, but his crime is not so serious that he faces jail, then we will just have to let him go and accept we’ll never see him again.

Now if all this sounds to you like the “Punishment of Offenders” then you’ll be content.

Me?

I’m disgusted at this back-door attempt by a weak-willed government to reduce the prison population and it’s total lack of any attempt to tackle crime in this country.
The first duty of any government is the protection of its citizens – by that measure alone this government is not fit for purpose.