Tag Archives: judge

What’s the Point?

You cannot deter people from committing crime. This is, I know, a BIG statement. It is also entirely unscientific, has no basis in research whatsoever and is probably wrong.  

Yet this is what a look around life tells me. Everyone knows that motoring offences carry points on your licence, a fine, increased insurance premiums and the possibility of a driving ban. Yet most drivers offend, whether it is gambling on the drive home after two pints or the almost ubiquitous speeding, the prospect of punishment does little to deter people who would otherwise describe themselves as law abiding. 

Burglars know that prison is the likely consequence of offending. Sentences for burglary seem to steadily rise. Yet people still burgle. They are prepared to gamble on the prospects of getting caught rather than on the consequence of getting caught. Which may be a gamble that is as simple as odds and evens, if stories about Scence of Crime Officers being deployed dependent on house number are right. If you want to deter burglars, do not boost sentences, boost clear up rates. 

And then you have those who are desperate. Drug users, who knew that drugs were bad for them (and before you tut and get all “they knew the risks and are the author of their own misfortune” you should put out your cigarette, put down your pint and leave that diabetes inducing doughnut alone) and knew that they were illegal offend because they see no other way. It is an offence committed entirely in the moment, thinking little of the consequences and thinking only of the need they have. Replace drugs with poverty and the drivers for crime are often the same. 

This is not to say that punishment is wrong and has no place in the Criminal Justice System. Clearly actions have consequences and a democratic society requires proportionate punishment for those that transgress our laws. The key word there being proportionate. And that brings me to the Criminal Courts Charge. 

From time to time in my life at the Bar I have witnessed some pretty daft pieces of legislation. I have experienced sentencing changes that were a nonsense. I have seen the folly of improbably harsh punishments such as IPP. It is difficult, however, to recall anything quite as arbitrarily unfair and impractical as the Charge. 

It is not as if the politicians had no clue as to how daft this was. I have lost count of the number of times Judges explained the Victime Surcharge with a degree of bemused exasperation to men and women who had little prospect of paying the hundred and odd pounds that now fell due. And, on occasion, have seen a Judge fall somewhere in between embarrassment and mirth in declaring that the Surcharge bites on someone they had just sentenced to 24 years in custody. 

But the Charge takes the biscuit. It wins the prize for political stupidity. 

Let me give you an example. I saw a man being sentenced last week. He was a recidivist, without doubt one of those men who has existed throughout time. A man for whom mental health difficulties, personality disorders, circumstance and sheer unpleasantness meld together to fix him firmly as one of society’s wrong-uns. 

He was being sentenced for a miscellany of relatively minor offences. One of them included a Bail Act offence. He had, during the currency of the proceedings, been bailed “within the precincts of the court”. Being the man that he is he failed to heed the terms of that prohibition. He wandered out of the building, he failed to return on time and proceedings were delayed until he graced the court with his presence (albeit that he did come back the same day, just late).

This falls somewhere at the lower end of Bail Act offences. It undermines the system and needs punishment. So the Judge imposed some relatively short custodial sentences and marked the Bail Act offence with two weeks imprisonment to run consecutively.

Then came the kicker. The hearing that he had wandered off from had taken place on 14th April. Which meant he qualified for the Criminal Court Charge. A whopping £900. 

I have no words that can accurately describe the look on the Judicial face when this was brought to the Judge’s attention. The one thing I can say is that the look was not in the least bit judicial. You could read in the Judge’s dark demeanour that he did not like having his hands tied by the imposition of a swingeing financial penalty outwith his discretion. You could see that the Judge understood that there was no prospect of this man ever paying this sum, unless he committed more crime in order to pay it. 

The taxpayer is well served by the work of the courts. A democratic society will never rid itself of crime and needs crime to be punished. But society is badly served by something as pointless and arbitrary as the Charge.

Would the defendant in my example have obeyed the Judge’s order to remain because he knew he faced a £900 Charge? Nope. Prison did not deter him. He just is not built that way. Is the taxpayer ever going to get £900 from him to pay for the part of the proceedings related to the Bail Act Offence? Not a chance of it. Has the imposition of this Charge led to a layer of administrative cost in recording the Charge, monitoring its non-payment and compiling statistical tables related to its income generating performance? Absolutely. The taxpayer will end up paying more in relation to this offender because of the Charge. Admittedly only a few pounds more, but what a waste of resources. 

As an aside, had this man leapt onto the bench and murdered the Judge on the 14th April and subsequently pleaded guilty his Charge then would have been……exactly the same. £900. Nothing brings the court system into greater disrepute than something which causes it to descend into farce. 

That the punishment should fit the crime is an expression of an innate truth. The Charge is an expression of a policitian’s inane folly. If the Charge has to remain a feature of the legal landscape make it discretionary. Better still, scrap it all together. 

One Rule for You…..

A busy PCMH list. The case of Regina v Neerdowell is called on before Her Honour Judge Potts-Puntahs. Mr Harry Charles Andrews prosecutes and Miss Fi Owen defends.

The Court Clerk: Are you Richard Neerdowell?

Def: Yes, miss.

The Court Clerk: Thank you, sit down.

Miss Owen: Your Honour, I appear to defend and my learned friend Mr Andrews appears on behalf of the prosecution. It is my application that the defendant not be arraigned today as the prosecution only served the papers yesterday….

HHJ: Is that right Mr Andrews?

Mr Andrews: Yes, Your Honour.

HHJ: They were ordered to be served six weeks ago Mr Andrews.

Mr Andrews: I know You Honour. It is a minor miracle they are here now.

HHJ: We’ll say no more about it Mr Andrews. Whilst the orders of the court are important, justice being done in the end is what matters. Now, Miss Owen, why can’t your client be arraigned?

Miss Owen: He has not had a conference with trial counsel….

HHJ: Miss Owen, you are here and can discuss matters with the defendant. You are here to make progress with the case, it is your duty to deal with the case expeditiously. Cases are meant to be ready for trial by the PCMH. Now, Mr Andrews, is this the proposed trial indictment?

Mr Andrews: It is the indictment that has been drafted, although the trial advocate has yet to be identified so they may take a different view.

HHJ: I quite understand, Mr Andrews. The Crown can have 28 days to notify the court who will be conducting the trial. Now, Miss Owen, any good reason why the defendant should not be arraigned?

Miss Owen: As I say those who instruct me only received the papers yesterday so the defendant hasn’t even seen them yet….

HHJ: Yes, well he knows whether he has done it or not, so the question of his plea is a simple one. Is he guilty or not?

Miss Owen: But it is not that simple. He is charged with possession of a prohibited firearm. A person in that situation does not necessarily know whether it falls within that definition or not….

HHJ: If he wants full credit he had better make it his business to know.

Miss Owen: But, with respect Your Honour, it is the sort of thing only an expert can know. And the defendant is not an expert.

HHJ: Let me make a note of that…. (speaks sotto voce whilst writing) “lethal weapon in hands of man who does not know what he is doing, potential aggravating feature” (the Judge finishes writing and looks back at counsel) Right, Mr Andrews, is there a report about the item?

Mr Andrews: Yes, Your Honour, the short form forensic expert’s report is at page 22 of the bundle….

Miss Owen: (leaps to her feet) When my learned friend says “expert” that is not accepted by the defence, Your Honour.

HHJ: Who is the expert Mr Andrews?

Mr Andrews: I understand that it is Bob Gunn, a civilian worker for the police armoury. Well, when I say civilian worker, I in fact mean cleaner. But he is quite a fan of the Dirty Harry films. And whilst it is still only the short form of his report it would appear that, in his expert opinion, it looks quite like the sort of thing that could, in a certain light, be a handgun. Whilst I accept that it is not perfect it is all we have been able to obtain in the nine months that have elapsed between this defendant’s arrest and his charge.

HHJ: I quite understand Mr Andrews. This is, after all, only one of hundreds of cases that the police and those who instruct you are dealing with. Now, Miss Owen, anything else to say on the subject of arraignment?

Miss Owen: Yes, Your Honour, it would be my submission that this is a case that should be dismissed for lack of evidence….

HHJ: That is an application I would ordinarily expect to receive in writing, Miss Owen….

Miss Owen: I know, but, as Your Honour knows, I only got the papers yesterday…

HHJ: Miss Owen you have had the papers overnight. That is more than enough time for you to consider them and draft the appropriate written applications. This really is not good enough Miss Owen. In this one instance, Miss Owen, I am prepared to deal with your application without written notice and I am against you.

Miss Owen: But….

HHJ: (raising voice) Miss Owen, I have given my ruling. It seems to me that there is adequate evidence to raise at least the suspicion that this defendant may have committed some offence of a nature which it is unnecessary to specify with any degree of precision at this moment in time. Now if only you recognised that fact then this defendant may have been given some proper advice in conference. But as he hasn’t all we can do is have him arraigned and put the public to the expense of a trial.

(The defendant is arraigned and enters a plea of Not Guilty)

HHJ: Miss Owen, where is the defence case statement?

Miss Owen: As the papers were only served yesterday statute allows a further 27 days for the provision of a defence case statement.

HHJ: That’s not very helpful. It doesn’t matter what statute says, have you not read the Criminal Procedure Rules? A defence case statement is vital to the effective conduct of a PCMH. Your consistent failures are most obstructive.

Miss Owen: But it’s not my fault, the Prosecution served the papers late.

HHJ: This is not the forum to carp, Miss Owens. This is a court with a “can do” outlook. And you are the one that “has not.” Did those who instruct you chase the papers?

Miss Owen: Yes they did, they sent two emails to the Crown and one to the court. They received no respon….

HHJ: (interrupting) But did they chase the response? Did they email every day? Did they go round to the offices of the Crown and chain themselves to the railings until they were given the papers? No, Miss Owen, no they did not. The criminal procedure rules are not a parlour game Miss Owen. Everyone needs to collaborate to convict the guilty. Now, your solicitor can provide the court with a signed, typed DCS by 4.30 today.

Miss Owen: I am not attended by a solicitor today. Since all the cuts they don’t send anyone. In fact they don’t even employ anyone they could send….

HHJ: In that case, Miss Owen, it looks like you’ll be providing a signed defence case statement by close of business. Right, now, trial dates.

Mr Andrews: I am told by the listing officer that there is a two day trial slot available in the first week of November, Your Honour. I should make it clear that is November 2015.

Miss Owen: I hold the brief on behalf of my learned friend Mr N’Lucky who is already engaged on a trial that week. But he is available the week after.

HHJ: As you have been so keen to point out, Mr N’Lucky has not had a conference and the court cannot countenance delaying this case for his availability. Justice delayed is justice denied and all that.

Mr Andrews: I should say that I don’t have witness availability today, may I have seven days liberty to vacate?

HHJ: Of course, Mr Andrews. Now the advantage of the case being heard in 2015 is that a mattress on the floor in the corner of a cell in HMP Overfill may have come free by then….

THERE IS A CONSULTATION THAT STILL NEEDS RESPONDING TO. YOU CAN DO SO HERE.

Better Early Than Never

A colleague of mine recently received a bad character application prepared by the prosecution. The application was sent out from the prosecution 12 days in advance of the next hearing in the case.

The Criminal Procedure Rules and common sense dictate that such applications should be made as soon as possible and at an early stage in the proceedings. This was not an early stage in the proceedings but at least it gave the defence 12 days to respond and, in the current climate, perhaps we should rejoice at this small victory.

The problem is that the application was sent out two weeks after the trial. The next hearing date is sentence.

Comical and depressing, all at the same time.

I know exactly what the problem will have been. It was dictated and went into typing weeks ago. There it will have languished for a while before being returned. Then it will have sat around for a while, waiting for the busy and the harassed caseworker to reach it in their ever burgeoning list of tasks.

How do I know this? Because I held in my hand today a letter dated 1st September that made it into the post for the 26th September. 25 days to turn around the typing and posting of a piece of correspondence. The problem? Lack of resources.

Recently HHJ Newell made the point, in open court, that we are fast approaching the time when there will be a miscarriage of justice. The fact is we have probably already gone beyond that point. We just do not know it yet.

As Judge Newell observed, “they [the staff at the CPS] are best endeavouring to work with a broken machine, it is not their fault.” It is a machine that has been broken by our politicians and the politically ambitious.

If a piece of prosecution evidence can be sent out two weeks after the trial and only in time for it to be wholly irrelevant for sentence, how can we be confident that an important piece of evidence is not being missed so as to lead to the wrongful acquittal of the guilty? Or some piece of unused material is not revealed that acquits the innocent man? How many ticking timebombs currently await discovery by the Court of Appeal?

When politicians talk of cutting this and cutting that, they should consider the damage they are doing.

The Wizard of Epsom

Finally the Lord Chancellor has agreed to meet with the chairman of the CBA…..

MTQC …enters room… Thank you for finally meeting me Lord Chancellor…err Lord Chancellor?!? …MTQC goes back door to the door… Felicity, it is Felicity isn’t it?

Felicity Yes, Mr Turner …Felicity enters room and then stops abruptly… Oh!

MTQC I thought the Lord Chancellor was waiting in here for me.

F So did I! …Felicity walks around the desk and looks quizzically at the empty chair behind the desk… He was just here, I came in and told him you were here and he muttered something about “and she now makes it 10,001” before telling me to bring you in….

Lord McNallysuddenly enters room, looking a little flustered… Michael, Michael great to see you. How can I help?

MTQC Lord McNally, I am sorry, I thought I was seeing the Lord Chancellor.

LM …looks around the room as he walks to the desk… Nope, nope, always me, never ducked a debate before and not starting now.

MTQC I appreciate that but this IS the Lord Chancellor’s office?

LM Yes it is. …sits down at the desk…

MTQC And Felicity is the Lord Chancellor’s secretary?

LM Errr…yes…non-executive secretary. …glances beneath desk… But your meeting is with me….err…decorating my office at the moment…so he and I are kind of hot desking …looks over shoulder… and my secretary is on holiday so Felicity is doing a bit for me. So let’s get down to brass tacks. No need to pussyfoot around when dealing with a wage negotiation.

MTQC But we don’t view this as a wage negotiation. We view this as a fight to save justice.

LM There you go, getting all hysterical. Why don’t you just admit that it is fat cat lawyer self interest and we can have a sensible negotiation over your fees.

MTQC This is not just about fees. This is dismantling the system and moving us rapidly to a public defender system. A system that will just increase costs throughout the system over time.

LM Well I am sure that during the consultation the Ministry will consider such matters …Lord McNally’s phone pings and he glances at a text… although the Lord Chancellor would no doubt want me to tell you that he is not going to buckle.

MTQC The system you are proposing will limit entry to the profession, limiting it to only the independently wealthy. Diversity will take a huge step backwards.

LM Well that is a legitimate concern …Lord McNally’s phone pings again, he reads the text… although the Lord Chancellor would, if he was here, remind you that it is not his problem how you structure your profession.

MTQC It will be everyone’s concern when we don’t have diverse judiciary in the future.

LM The focus must be by the profession to guarantee diversity. Our only concern has to be cost. It’s not as if the Lord Chancellor has any duty to protect the system or to guard against adverse impact to certain sectors of society.

MTQC I am afraid that is exactly what will lead to Judicial Review of these proposals.

…a disembodied voice… Bollocks.

…Lord McNally and MTQC look at each other for a moment…

LM That will be Felicity. Always gets a bit agricultural in her language when the typing goes wrong.

MTQC Sounded like a man’s voice….

LM Definitely Felicity. A martyr to hay fever. Always makes her sound a bit more…masculine.

MTQC There are also questions about the impact on quality. One of your officials at the consultation roadshow said “if quality falls, so be it”.

…a disembodied voice… Bastard.

LM Felicity. Man trouble.

MTQC It sounded like it came from behind you.

LM Nonsense. Who would be behind me? The point you have made about quality and choice is a valid one….

…a disembodied voice… Shut up man!

MTQC Is there someone in the cupboard?

LM Of course not. …Lord McNally gets up and walks towards the stationary cupboard…

MTQC The Lord Chancellor isn’t hiding from me in the cupboard is he?

LM Don’t be silly Lord McNally turns the small key in the cupboard door… No, if the Lord Chancellor was here speaks very loudly and taps door with his foot HE WOULD SIT VERY QUIETLY AND LISTEN TO WHAT YOU HAVE TO SAY.

MTQC The problem is whether he really is listening.

LM I can assure you looks for a moment at the cupboard door that he is listening to every word you say…..

Force the Lord Chancellor out in to the open to debate the issues. Sign the e-petition.