Law Review: A potpourri of legal misery

Magistrates were told to send rioters to crown court, emails show

Owen Bowcott in The Guardian has an interesting article on how the ‘higher judiciary’ appear to have approved the departure from sentencing guidelines by allowing magistrates courts to send cases to the Crown Court. Bowcott writes: “Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because “nothing like this was envisaged”, according to court documents released to the Guardian. The text of two controversial emails circulated to justices’ clerks immediately after August’s disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as “disturbing”.

The speed at which rioters and looters were processed through the courts has been seen by some, perhaps those unfamiliar or unwilling to be familiar with our laws, as a good thing ( a demonstration of Tory led Coalition power, perhaps) and by others as a worrying development – a fortiori,  the departure from sentencing norms.

This latest revelation is a worrying development. Bowcott writes: “Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: “The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.”

But to pile on the agony…may I urge you to read this excellent blog post from CrimSolicitor…

If you would like legal advice please press #1 now…(and make sure you have your credit card details to hand)

CrimSolicitor writes:

“The recent Legal Aid, Sentencing and Punishment of Offenders Bill has within it a clause that would appear to allow the government to vastly reduce the right to receive your advice in person, extending the number of offences that may only be dealt with by telephone advice. This is a worry, as this leaves open the possibility of a person being charged without ever having had a solicitor properly consider the strength of the case. Clients will and do say things in a police station for all the wrong reasons, because they are scared, bored or simply want to get out of an environment that is by definition hostile or are told by the police that they will have to wait for a solicitor to attend”

BUT… do not fear… Commissioner Batman-Howe has been appointed to save Gotham City…

Hogan’s a hero: new Met chief chases and nabs bicycle thieves

The Evening Standard reveals…

New Scotland Yard chief Bernard Hogan-Howe chased and caught two suspected bike thieves weeks before being given the top job at the Met. The Commissioner, 53, who was appointed yesterday, chased the alleged teenage thieves to a housing estate and “relieved them of the bike”.

Details of the drama came as he was hailed as a “crime-busting machine” to take on London’s gangs. A City Hall source said: “It is what Bernard is all about. He takes a zero-tolerance approach to crime. It’s how he intends to run things at the Met.”

Mr Hogan-Howe was leaving City Hall after meeting Mayor Boris Johnson a month ago when he saw two boys aged about 16 on bicycles with a third bike and felt sure they had stolen it.

A City Hall source said: “He was with a local police officer and said, ‘Let’s get them.'”

My tweet du jour just has to go to..

And this tweet…!

@stokenewington @Charonqc Especially as it turned out they hadn’t. thisislondon.co.uk/standard/artic…

FINALLY.. if you thought we have problems… this from the United States (HT @loveandgarbage) should give us a sense of perspective…

SCHENECTADY — A man charged with murder got an unexpected note in the mail — a jury duty summons for his own trial in Schenectady County Court.

On Tuesday morning with his trial set to start, Visiting Schenectady County Judge Richard Giardino wisecracked that the defendant, Derrick C. Smith, told him he was more than willing to be part of the jury pool, and if selected could be fair and impartial.

Well… this should comfort us all.  In tomorrow’s edition of Without Prejudice We are joined by an experienced silk, Francis Fitzgibbon QC, and we shall discuss these and other issues.

10 thoughts on “Law Review: A potpourri of legal misery

  1. So a letter went out stating that the sentence guidelines produced for commercial burglary and the like were not designed to include aggravating factors such as general breakdown of social order, mob behaviour and looting. The guidance is then to refer sentencing for such cases to crown courts for consideration by more senior judges.

    So this is news and somehow an infringement on judicial independence? Aren’t crown courts just as independent as magistrates? Do they not have more senior and experienced judges?

    It was notable, at the time, the media reported this referral to crown courts for sentencing as a reaction to the magistrate courts having insufficient sentencing powers. Now it appears that this was done because the sentencing guidelines that were available were not relevant to the situations at hand. I note several legal commentators claimed (and some still do) that sentencing guidelines were being ignored. This is clearly a nonsense – applying sentencing guidelines that leave out major aggravating factors is clearly wrong.

    I fail to see why any of this is somehow an attack on the independence of the judiciary. As far as I can see the judiciary is still in control of sentencing. In this case (wisely I feel) this has been referred up the judicial hain for a more considered response to the circumstances.

  2. I thought it was the case that most of the cases sentenced in magistrates courts had been heard by district judges, not magistrates. Of course cases cases referred to crown court for sentencing (which is what that article was predominantly about) will not involve any magistrates passing sentence. It would be interesting to see what happens with any appeals against crown court sentencing.

  3. The district judges in the Mags are, I understand, the modern equivalent of the old Stipes… Stipendiary Magistrates…qualified lawyers, sitting alone.

    Quite a few of the sentences handed down in the Mags have been regarded, by some, as disproportionate. Covered this in a podcast with John Cooper QC a few weeks back.

  4. Indeed that is what they are, but the point is that they are professional members of the judiciary and not lay magistrates. Junior ones of course, but I would not (in general) have thought they were inclined to reckless sentencing behaviour, although no doubt there will be exceptional cases.

  5. not inclined to reckless sentencing behaviour?

    well… two examples from my practice. one count of handling of an item said to have been looted but specifically not by D; worth a few hundreds of pounds but less than 1k. dj commits to crown court thus indicating the possibility of a sentence > 6 months.

    non riot-related handling of items said to be worth just under 1k by D with plenty of form. found guilty at trial. fined.

    any sense of proportion between these cases?

  6. SW – I am merely an observer of our legal system… but it does seem to me that lawyers charged with being district judges ( a solemn responsibility) and members of the public chosen to be magistrates (a solemn responsibility) are not being responsible…with some of the sentences handed down to ‘rioters’ and cases being rushed through in our *spanking* new McDonalds Stylee Drive-thru courts ?

    The Appeal process.. I am assuming that we are still allowed to have same – for the avoidance of doubt, I am being sardonic – is still in place in these deficit cutting days?

    But who cares in these Tory-led Coalition days where we are governed by people who are unfamiliar with our laws or unwilling to accept that our laws are to be observed when subjected to scrutiny by the ECHR…a Court we subscribed to?

    I don’t care that much any longer… I will be dead soon/5-10 years? …. but I fear for those who will live in our ‘sceptred isle’ in the future… *Back to the Past*?

  7. There’s no compulsion on the crown court to impose a sentence of > 6 months, so until that’s happened it’s not possible to say is it? In any event, the guidance given to refer up does not appear to be about the magistrate’s sentencing powers being limited but because the sentencing guidelines are inadequate.

    A friend’s daughter was in a flat in Ealing right where looting was occurring, and she was extremely concerned at the time as to her own safety (and somebody was killed that night nearby). In other parts of London people were burnt out of their homes, and it was lucky there were no more fatalities. My view is if you deal with looted goods knowing that they are likely to have been obtained as a result of the looting, then you have some responsibility for providing support for those that did it, even if it is after the event. I think it quite right that this is considered as a possible aggravating factor, and it seems to me appropriate that a more experienced judicial team look at the case.

    So, on what you’ve stated these are not necessarily comparable cases. No doubt concerning for the defendant, but if you don’t want a uncertainty in your life, then best avoid handling stolen goods I would suggest, particularly if it’s associated with actions leading to the breakdown of public order.

  8. @simplywondered

    “so handling somehow causes people to burn buildings?”

    Indirectly supporting looters by paying them money does indeed encourage that sort of behaviour. Those that provide support also have their share of responsibility. I simply don’t buy this line that the context of a crime is not one of the things that needs to be taken into consideration.

    You buy goods knowing they’ve been looted, you have a part in that crime.

    You clearly have different views. That’s OK, but not everybody sees it your way.

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