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.
Sunday, 22 September 2013
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?
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?
Thursday, 12 September 2013
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.
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.
Wednesday, 11 September 2013
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?
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?
Wednesday, 14 August 2013
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"!
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"!
Friday, 21 June 2013
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
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.
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.
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