MagistrateFeature

Volume 59 ASSOCIATION NEWS 194 Number 7 Fixed penalties for road traffic offences; Case management for family proceedings; Custody plus THE DECISION TO IMPRISON 200 What factors influence sentencers when choosing between custody Cover photograph or community sentences? by Hemera STILL ONLY A DOMESTIC? 202 Joint Editors Harriet Cullis JP was part of a British delegation to New York to see Miranda Smart, Victor Smart the working of the new integrated domestic violence courts 166 Broomwood Road, London SW11 6JY Tel: 020 7223 9646 Fax: 0870 133 3795 VIEWPOINTS: WOMEN AND JUSTICE 204 e-mail: [email protected] A new inquiry in the form of a commission has been launched to assess what happens to women victims, defendants and practitioners Advertising Enquiries in the criminal justice system. Vera Baird QC MP explains Mongoose Media Ltd 2 Lonsdale Road, London NW6 6RD HOW THE BBC IS TACKLING NEW CAUSES 207 Telephone: 020 7306 0300 Could the BBC’s recent awareness-raising season on domestic Fax: 020 7306 0301 violence be a model for future co-ordinated programming? Design: Jeremy Spencer 020 8671 6484 Tim Harrison asked the producer of Hitting Home Printed by Scottish County Press Ltd. OPEN LETTER: COURTS AND CRIMINAL JUSTICE BILLS 208 Subscription Enquiries Rachel Lipscomb, Chairman of the Magistrates’ Association, Subscription enquiries and notifications updates members on the Courts and Criminal Justice Bills of address etc should be addressed to Membership Records, LETTERS 209 28 Fitzroy Square, London W1T 6DD The true cost of custody; Sentencing options for driving offences; Telephone: 020 7388 5558 Mandatory review for Home Detention Curfew; Radical re-think?; View Fax: 020 7383 4020 from the inside; Training and appraisal; Retirement age for magistrates e-mail: nick-salmon@magistrates- association.org.uk GUIDING LIGHT 211 Opinions expressed in the Magistrate editorially Noise or by the contributors do not necessarily represent the views of the Magistrates’ ON THE AGENDA 213 Association, nor is the Association responsible Activities and issues being debated by the MA Committees for claims expressed or implied made in advertisements or advertising inserts. © 2003. ON THE BENCH: LIFE AFTER RETIREMENT All reproduction rights strictly reserved. No 215 part may be transmitted by any electronic or Alex Demetriades, explains how the Manchester City Retired mechanical means, or reproduced (including Magistrates’ Association is run photocopies) or included in any retrieval system without the written consent of the COMMENT: MEANS TO PAY FINES 217 editors. ISSN 0024-9920 The Zacchaeus 2000 Trust argues there should be more research into the minimum incomes needed for healthy living and guidance for magistrates to ensure fines are proportionate to means LAW UPDATE 218 An injured child: who did it?; Digest of cases The Magistrates’ Association Patron: Her Majesty the Queen LEGAL ISSUES 219 President: The Lord Chancellor There are several medical conditions that may cause dilemmas on Chairman of Council: Rachel Lipscomb JP the bench. Sheena G Jowett, JP and Nigel I Jowett, MD FRCP, Honorary Treasurer: Flo Kaufmann JP Deputy Chairmen: Cindy Barnett JP explore a case of failing eyesight Peter Blackwell JP Chief Executive: Sally Dickinson REVIEWS 221 Rethinking What Works with Offenders: Probation, social context General Enquiries and desistance from crime; Environmental Law & Regulation; Enquiries should be addressed to The Village That Died For England Sally Dickinson, Chief Executive, The Magistrates’ Association, CROSSWORD 28 Fitzroy Square, London W1T 6DD 222 Telephone: 020 7387 2353 Fax: 020 7383 4020 COURT RISE 224 www.magistrates-association.org.uk JP Winger shares amusing moments in court News Association news

News from the national office. Please address any queries to Ann Flintham. [email protected]

Second phase shadowing Guidance on the legal scheme gets underway measures available to secure The second phase of the shadowing scheme jointly organised regular attendance by the Lord Chancellor’s Department (now the Department for Over the past year there has early action is taken. A Constitutional Affairs) and Operation Black Vote is now been a great deal of media working group, including running in Derby and South Derbyshire, Walsall, Lancashire attention given to concerns representatives from the (Burnley, Pendle and Rossendale), Merseyside, Leicester, resulting from pupils Magistrates' Association, has Nottingham, London, Oxfordshire, West Hertfordshire (Watford truanting from school and worked to produce and Hemel Hempstead), Birmingham, Bradford and Cardiff. In the consequences, both for information on the measures each of these regions, six to eight people are being selected by the young people themselves, that are available under the OBV and the local advisory committee. Participants will and for the community in law. This guidance explains: comprise a broad mix of African, Asian, Caribbean and Chinese which they live. The Youth G the roles and and other minority ethnic communities. Those selected will Justice Board (2002) has responsibilities of parents, attend a two-day workshop to discuss their experiences. found that those who truant schools and the local Georgia Ramsay from Bristol is or are excluded from school education authority in the first person to be appointed from are twice as likely to offend as ensuring children's regular the pilot exercise said, ‘I am thrilled those who regularly attend. At school attendance; to be recommended. It is very a time where nearly half of all G the law relating to school important that the racial and ethnic children are achieving five or attendance; mix within the magistracy reflects local more good GCSE's, only 8% G the range of intervention communities. Support for the scheme of persistent truants achieve strategies available to the has been extremely widespread and this standard and around a local education authority to I am pleased to be paving the way for third achieve no passes at all enforce school attendance; others.’ (DfES). Local education G the procedure for bringing authority officers have been a prosecution against a working to encourage parents parent who has failed to Domestic violence training to take their responsibilities ensure their child's regular A domestic violence training pack is currently being developed seriously and where this fails, school attendance; by the Judicial Studies Board, supported by the Magistrates’ officials must consider G what happens at the court Association and the Justices’ Clerks’ Society. The pack, to be prosecution. There have been hearing and the sentencing launched in autumn 2003, will be relevant to all magistrates in a number of high profile options available to the court their work in both criminal and family courts. The objectives cases where parents were in the event that the parent is are to enable magistrates to be able to: found guilty and given found guilty of the offence. G define domestic violence; custodial sentences. Members should make G recognise when domestic violence issues feature in cases; The accepted connection sure they read this guidance, G identify how that recognition of domestic violence impacts between crime and truancy and in particular the last on the conduct and disposal of a case, including issues means that non-attendance section, so that they are well- relating to vulnerable groups. at school is an important informed to deal with such The pack will consist of a video supported by written issue and one that must be cases in court. training materials. The aim is to provide a flexible resource treated seriously. However, The document can be for trainers to use for courses from half to one day in length. every case is different and found on the DfES school There will be training provided on the materials for trainers. there is no standard path that attendance website www.dfes. It is hoped that magistrates’ courts’ committees will can be followed in applying gov.uk/schoolattendance or include domestic violence training in their training plans intervention strategies. by contacting DfES so that magistrates will be able to attend training courses However, it is recognised publications on tel 0845 in their local area soon after the trainers have received their that for all cases of non- 602260 quoting ref DfES training. attendance, it is essential that 0432/2003

Magistrate 194 Summer 2003 News

Mock Trial Competition Useful information from the National Probation Service The Association would The National Probation Service like to thank the website has an area dedicated to Citizenship Foundation sentencers www.probation. and, in particular, all homeoffice.gov.uk. You can magistrates and court download the latest publications staff who have been produced for sentencers. The involved with the 2003 recently completed video on Mock Trial Competition. Enhanced Community Punishment, The final this year is in which includes an interview with Leeds at the beginning Lord Hurd of Westwell, is available of this month. Anyone in trailer form on this site. A copy who would like to of the MORI questionnaire that become part of this came out with last month’s issue rewarding project Vicky Alhadeff of the Magistrate is also available should get in touch Students from Enfield County School, prosecuting in the on the website. with the Citizenship hard-fought contest at the local heats in Enfield Issues three and four in the Foundation who do Magistrates’ Court earlier in the year Important Information for Sentencers a wonderful job in series will be published in July. The undertaking all the organisation. There are still some areas where magistrates are subjects are the Offender needed to support the interest from the local schools. These students may Assessment System (OASys) and be our magistrates of the future so let’s encourage them! Enhanced Community Punishment For further information contact the Citizenship Foundation 020 7367 0500 (ECP). Both these documents will [email protected] or Katie Chappell at the national office katie.chappell@ be available on the website. magistrates-association.org.uk

In brief New department The Lord Chancellor’s Department, Essex magistrate wins top award minorities. The report identified the Scotland Office, the Wales good practice and listed Celia Edey, chairman of Essex Office and part of the Office of the recommendations. For a copy, Magistrates’ Courts’ Committee Deputy Prime Minister have come contact Publications section, MCSI, (EMCC), has won the Central together to form a new Block 2, Government Buildings, Government Sector award Department for Constitutional Burghill Road, Westbury-on-Trym, sponsored by the Institute of Public Affairs. Parliamentary Under- Bristol BS10 6EZ or visit Finance in the Public servants of Secretaries of State in the new www.mcsi.gov.uk the Year awards 2003. Celia was department are Christopher Leslie, nominated by Peter McGuirk, the David Lammy and Lord Filkin. Fixed penalties to go nationwide EMCC’s chief executive for her extensive voluntary contribution in Following a successful pilot, fixed using her media training to support penalty notices for some public a large private finance initiative to order offences will be introduced Congratulations revamp the courtroom estate in nationwide by 2004. The use of Essex. these notices for crimes such as Queen’s Birthday Honours being drunk and disorderly has Congratulations to all members MCSI report on race issues released police officers from who have received awards in the spending their time filling out recent honours. A recent thematic report by the paperwork. Proposals in the Anti- We would especially like to Magistrates’ Court Service Social Behaviour Bill include congratulate Christine Field OBE Inspectorate on race issues identified additional powers for community JP (Inner London branch) and work being done by magistrates’ safety officers allowing them to Don Manley OBE JP (Black courts’ committees to help eliminate issue fixed penalty notices for Country branch), both credited racism in the workplace and to graffiti, fly-posting and other for their services to justice. increase recruitment from ethnic anti-social behaviour offences.

Magistrate 195 Summer 2003 News Fixed penalties for road Legal aid review traffic offences Spending on legal aid from the scope of this continues to rise – scheme where the CDS The June edition of the Magistrate reported on the £1,915 million in the last cannot advance a client’s Association’s response to the proposals for extending the financial year – and a case; fixed penalty system. Changes have been made (from 1 June review is being conducted, G in other areas, the 2003) but not all the proposals have been adopted. Below are including both civil and duplication of services the final details. criminal legal aid to (or services which are not G The no insurance offence – £200 penalty and six points. ensure better value for strictly required by the G No MOT certificate is not endorsable but will attract a money and to eliminate ‘interests of justice’ test) fixed penalty of £60. duplication. can be removed. These G No vehicle excise licence displayed is not endorsable but The government is include Narey hearings will attract a fixed penalty of £60. concerned with regard to and the court duty G Failure to supply details necessary to identify the offending driver contrary to s172 Road Traffic Act 1988 will criminal legal aid where solicitor, who may not at the moment be a fixed penalty offence. It follows that severe pressures have represent some people punishment remains a level three fine and three penalty stemmed from the fact even though their cases points. that a greater number of would not necessarily get G All police forces now have automatic number plate cases now pass the a representation order; G recognition (ANPR) machines. Initially 23 police forces (about ‘interests of justice’ test the system of recovery half the country) will pilot the new fixed penalty scheme. If used by the courts to of defence costs orders successful, it will be adopted nationwide on 1 January 2004. determine whether (RDCOs) where it is These changes will impact on the Association’s defendants qualify for proposed to reduce the sentencing guidelines and they will be considered at the next legal aid. courts’ discretion to make meeting of the Sentencing Guidelines Working Party. Proposals which aim orders as the discretionary to target resources better nature has led to include: unfairness. G the Criminal Defence Copies of the Service (CDS) provides consultation paper assistance for those under Delivering Value for Money investigation at police in the Criminal Defence stations. Less serious Service can be found at matters may be removed www.lcd.gov.uk

The Lord Chancellor’s Advisory Committee on Judicial Case Management in Public Law Children Act cases

This committee was formed in May on 18 June, for countrywide directions not being complied with by 2002 to produce a protocol based on implementation on 1 November 2003. the (often dysfunctional) families, and models of best practice from care Included within it, is the requirement the lack of availability of experts are all centres and family proceedings courts that each magistrates’ courts’ issues faced every week. These and (FPCs). There have been two significant committee, through its justices’ chief other obstacles have been recognised studies, one in 1996 and the other last executive, prepare a plan for the by the committee in its final report. year, that have shown lack of effective implementation of the protocol. The Nevertheless the protocol is much to case management as being a significant procedures contained in the protocol be welcomed, and has the potential to contributor to prejudicial delay in recognise that, in certain areas, reduce delay and make the whole Children Act cases. The protocol was to resource limitations do not, at present, process more predicable for its users. include target timescales for each stage allow for rigid imposition of timescales There is a significant multi- of the judicial process. The committee’s or processes. disciplinary training requirement and membership included wide Family panel magistrates in most all family panel magistrates should representation from stakeholders in the parts of the country will be well aware expect to receive training in September process: the Magistrates’ Association of the fact that delay is often the result or October. The Judicial Studies Board was represented by Christine Field. of factors outside the control of the is preparing guidance; please consult The committee has now concluded court. CAFCASS not being able to your justices’ clerk for more its work and the protocol was published make timely guardian appointments, information.

Magistrate 196 Summer 2003 News

Further to allow magistrates to Custody plus sentence to more than one sentence of Below is the Home Office reply to a 12 months exactly, or a sentence of 12 request by the Association’s Sentencing months exactly in addition to a sentence Committee to clarify custody plus. of custody plus, would mean extending magistrates’ sentencing powers to 24 months. This is considered too great a Consecutive sentences leap to take in ‘one bound’. The bill Under the proposed new system, contains an order-making power to magistrates’ sentencing powers will be extend magistrates’ sentencing powers extended to 12 months. When sentencing to 18 months for one sentence (and 24 for one offence, this will mean a single months for consecutive sentences) sentence of custody plus (between 14 and depending upon how well the extension 90 days in custody within an overall to 12 months works out. sentence length of between 26 and 51 weeks) or a single sentence of 12 months Sentence maxima exactly (of which half will be served in prison and half on licence). The sentencing maxima for all offences Why Should I? For consecutive sentences, the will be changed in accordance with the The Crimestoppers Trust is piloting an maximum total length of the sentences new sentencing framework. Offences educational resource aimed at Years 7-9 will be 65 weeks. This will take the form whose maximum is currently six months which focuses on crime-related issues as of custody plus, with up to 180 days of will be raised to a maximum of 51 part of the citizenship curriculum. custody within the overall sentence length weeks, to enable custody plus to be Why represents a question that of up to 65 weeks. This means that a imposed. Offences with maxima of Should I? many young people ask about different sentence of 12 months exactly cannot be under six months have been analysed situations and this programme of combined with a sentence of custody to determine which should have a lessons aims to demonstrate the range maximum of 51 weeks and which should plus, nor can a magistrate impose more of choices available and shows why they be made non-custodial. Schedules 19 than one sentence of 12 months exactly. should do the right thing for themselves through 21 of the Criminal Justice Bill The reason that magistrates’ and the community in which they live. sentencing powers are not being contain these changes. extended to 24 months for more than one offence lies in the nature of the Implementation Gift aid new sentences. Magistrates’ main The Association is very grateful to all new sentence will be custody plus. The new sentencing framework those members who have signed a Consecutive sentences of custody plus represents a major change for the gift aid declaration or its predecessor, are served in the following manner; the courts and the prison and probation a deed of covenant. This means that custodial periods are served consecutively services. It is essential that each of we are able to reclaim a £7.33 tax while the licence periods are served these have the capacity to undertake refund for each member who is signed concurrently. Therefore there is no need the work required before the sentences up. With over 15,000 out of our 21,100 to double the maximum sentence length are implemented. Planning for ordinary members participating, this increases the Association’s income by for one sentence of custody plus in order implementation is currently underway. well over £100,000 per annum. This to get the maximum sentence length for Dates for any pilots, rollout, training, etc makes a significant difference to the consecutive sentences. will be announced in due course. Association’s finances, and enables subscriptions to be maintained at as low a figure as possible while funding Presentations for magistrates on drink- activities which would otherwise be beyond our means. drive rehabilitation schemes Any new or unsigned members who TTC2000 provide informative and humorous presentations to provide magistrates are not sure if this applies to them but with background knowledge on the government backed drink-drive rehabilitation would like to help in this way should scheme. The length of the presentation can be flexible but a minimum one-hour is contact the membership department by e-mail or tel 020 7388 5558. recommended. Areas covered include the background to the scheme, course structures, referral process, monitoring and evaluation, high-risk offender scheme, Conversely, if you have signed a gift local area statistics etc. This includes latest news, for example, courts in Cumbria are aid declaration or a deed of covenant in the past and your circumstances using e-mail to fast track referrals and one-third of all magistrates’ courts in England have changed so that you no longer and Wales now refer convicted drink-drivers onto alcohol awareness courses. pay any income tax or capital gains TTC2000 also produce an occasional newsletter. If any magistrate would like to tax then please notify us as above so be put on the mailing list or receive further information to request a session, contact that we do not continue to reclaim tax Jenny Feehan or Graham Wynn, TTC2000, Grosvenor House, Central Park, Telford without justification. TF2 9TW tel 01952 292246 e-mail [email protected]

Magistrate 197 Summer 2003 News

Boards of Visitors are changing! Probation conference report Boards of Visitors in prisons Judy Howlett JP gives an PowerPoint demonstration, and Visiting Committees in insight of a recent conference complete with sound effects, immigration removal centres for sentencers in the east of of targeting the right have changed their name and England. programme to the offenders are now known as Independent The six probation areas will long be remembered! Monitoring Boards (IMBs). in the east of England held In his address, Nicholas Described as ‘public service at its most unglamorous and a conference for sentencers Moss JP, chair of most unrecognised’, IMBs perform a vital ‘watchdog’ role on from across the region in Hertfordshire Probation behalf of ministers and the general public in providing lay Linton, Cambridgeshire, at the Board, suggested that the new and independent oversight of prisons and immigration end of April. Bench chairs and criminal justice boards had their deputies and other major implications for magis- removal centres. magistrates with a particular trates. He wondered if we Serving as a board member is recognised as a public duty interest in probation joined were prepared for the changes and few forms of voluntary service are more unusual – or district judges, Crown Court they would bring. For example, more important. judges, probation boards were benches’ relationships members and staff from all with probation fully joined up? What do board members do? the court offices for what He also noted that about 20% was billed as ‘a useful and of people serving community Have you ever wondered what it is really like behind the fence thought-provoking day’. It did sentences under probation at your local prison or immigration removal centre? If so, not disappoint. probably should not be, have you ever considered becoming a member of your local For a start, the chairman because they did not pose Independent Monitoring Board? Board members monitor the for the day was Jon Silverman, a medium to high risk of day to day life in a particular prison or removal centre. The BBC Home Affairs reoffending. work is wide ranging, requiring an objective approach and, correspondent from 1989 to The afternoon session was above all, a sensitive understanding of all aspects of life in a 2002 and now a freelance given over to a hands-on look prison or removal centre. For example, board members hear crime and home affairs at the offender assessment complaints from prisoners and detainees, visit all parts of the analyst. Lord Justice Kay gave system – OASys. In break-out establishment, and are called in when there is a serious the keynote address and groups, delegates all tried incident to monitor how it is dealt with. looked at balancing custody their hands at assessing a and community, speaking make-believe offender. That What does it take to be a board member? particularly about the brief exercise brought home partnership which already the sheer amount of work Board members, regardless of age, should be: exists between the probation required to produce a PSR, G mature; service and sentencers, but not to mention the G open-minded; and which is becoming closer. professional skill required G committed to diversity, equality and human rights. Eithne Wallis, Director to make the necessary A certain level of commitment is required (about four half General of the National judgements and days per month), as is the need for confidentiality. Much of Probation Service for England recommendations. the work involves talking to prisoners and detainees, as well and Wales, was joined on Probation forums on the as staff. Being a good listener with plenty of common sense stage by probation benches in Bedfordshire, and tact, plus the ability to communicate effectively with practitioners from all the areas Cambridgeshire, Essex, people of all backgrounds and cultures is essential. represented. Their highly Hertfordshire, Norfolk and professional and entertaining Suffolk are now looking at how Who can apply? presentations and video clips best to follow up the issues gave us all an insight into the raised. Our thanks to east of G No special qualifications are required but successful various accredited England region of the National candidates have the personal qualities, the interest and the programmes, DTTOs and the Probation Service for staging time to make a full contribution to the work of the board. work which is carried out with such an exhilarating G Members should, ideally, live within a 20 mile radius of serious offenders. The graphic conference. a prison or removal centre to which they are appointed. G Appointments are made by ministers for periods up to three years (with possibility of reappointment at the end of Gambling Bill each three-year period). Members have been asking for an update on this bill. The government is still committed to making the earliest How can I apply? possible progress in the modernisation of gambling legislation and the bill has not been postponed until after The IMB Secretariat, based in the Home Office, is currently the next general election as has been reported. Details of the recruiting new board members for posts in prisons and proposals of the Gambling Bill are expected to be published immigration removal centres across England and Wales. To in the late summer/early autumn. The draft bill will then be request an application pack, please telephone the secretariat presented to Parliament for scrutiny before introducing the on 0870 267 8149 or e-mail [email protected] final bill as soon as Parliamentary time becomes available.

Magistrate 198 Summer 2003 Advert(s) Feature

he prison population in England and Wales has been rising steeply. TPrisons are overcrowded, budgets are stretched to the limit. Despite this, there has been remarkably little debate about the reasons for this increase, and about ways of putting a stop to it. We have just finished a study designed to go some way to filling the gap. Whether to contain the prison population is a contentious and thus a political decision. Though there is a strong case for reducing prison numbers, our study did not focus on the

pros and cons of doing so. Rather, our id8 photography starting point was that politicians who want to curb the use of imprisonment need to know the best ways of doing so. We set out to look at what might discourage the use of custody, and what might encourage the use of non- The decision custodial alternatives. We mounted 48 face-to-face interviews with Crown Court judges, recorders and district judges; and we organised 11 focus groups with to imprison 80 magistrates. We asked everyone to provide details of four cases that lay on What factors influence sentencers when choosing between custody the ‘cusp’ between custody and com- munity penalties. (Magistrates provided or community sentences? Mike Hough, Jessica Jacobson and this information in a self-completion Andrew Millie report the findings of the study they conducted questionnaire.) We also interviewed five with the Criminal Policy Research Unit and the Prison Reform Trust. members of the senior judiciary.

Explaining the rise in the Tougher sentences to be a greater proportion of first offenders now than ten years ago. prison population Why has sentencing become tougher? However, the statistics could be masking As a preliminary, we trawled through In part it is because legislation, some changes in offending behaviour Home Office statistics to identify the guideline judgments and sentence that have an impact on sentencing, such factors driving up the prison population. guidelines have all had an inflationary as increased drug dependence. We focused on the adult prison effect on sentences passed. At the same Certainly, sentencers’ perceptions of population of England and Wales. This time, the climate of political and media changing patterns of crime are a factor has grown from 36,000 in 1991 to debate about crime and sentencing has in sentencing practice, regardless of 62,000 in 2003 – an increase of 71%. become more punitive, and has their accuracy. If they regard offending The rise cannot be explained simply by influenced sentencing practice. All of the behaviour as more serious than hitherto, greater use of remand. Nor is it the five senior judges who took part in the they are likely to pass heavier sentences result of more offenders appearing study thought this, as did many Crown than hitherto. before the court. Numbers have fallen, Court judges and recorders. District Whether or not they responded to as have crime rates. judges and magistrates were less pressure to pass tougher sentences, There are two main reasons why the inclined to talk in terms of tougher almost all of those interviewed were prison population has grown. Sentencers sentences, and more likely to say that aware of these pressures. Many referred are now imposing longer prison more serious cases and more persistent to media pressures, and several referred sentences for serious crimes, and they offenders were coming before them. to ‘mixed messages’ coming from are more likely to imprison offenders In fact, the statistics show little politicians and the senior judiciary, with who ten years ago would have received a change in the ‘offence mix’ in courts’ calls for tougher sentences contradicting community penalty or even a fine. workloads, and if anything, there appear calls to use prison less.

Magistrate 200 Summer 2003 Feature

Sentencing decisions An approach tried by successive Sentencers did not identify a governments is to provide the courts We asked how sentencers had made lack of satisfactory community with a wider and more attractive range decisions in cases on the ‘cusp’ between of community penalties. This may go custodial and non-custodial sentences. options as a factor … some way to reducing prison numbers. The decision to imprison was generally However, those we interviewed did not based on considerations of the Community penalties say that they were using prison for want seriousness of the offence, the criminal of adequate non-custodial options. The history of the offender or both. It was There was general satisfaction with the enhancement of community penalties universally described as a decision of range and content of community could simply result in ‘net-widening’ – ‘last resort’. sentences. There was strong support for where the new sentences are used with A wider range of factors were of the DTTO, and the review provisions offenders who would previously have significance in cusp cases resulting in they included. Some sentencers were been fined, or served a conventional non-custodial sentences. Sentencers equally enthusiastic about curfew orders, community penalty. attached greater weight to the present while others had mixed feelings and Encouraging the use of fines could circumstances and condition of the many were poorly informed about them. prove a sensible option. This would offender in such cases. A positive Some were poorly informed about relieve pressure on the probation response to prosecution (for example, community penalties more generally, service; in terms of outcomes it could at in terms of a show of remorse or and their benefits. Most recognised that best deflect some offenders entirely willingness to co-operate with the the general public were ill-informed from further offending without resort to courts) was often a significant factor, about most community penalties. imprisonment or community penalties; as was the offender’s ‘previous good This suggests a need to improve and at worst it could defer the point in character’. This emphasis on personal awareness of community penalties their criminal career where prison mitigation makes the sentencing both among sentencers and among becomes inevitable. process a highly subjective one, in which the wider public. The analysis presented here the sentencer has to make assessments Sentencers appeared largely satisfied suggests that policies to contain the about the attitudes, intentions and with the work of the probation service: prison population should involve three capabilities of the offender; assessments many said that pre-sentence reports had levels of intervention: which feed judgements about improved, and that the enforcement of G adjustment to the legal and responsibility and culpability. community orders had become much legislative framework of sentencing, Sentencers did not identify a lack of more rigorous. However, there were so as to bring down custody rates and satisfactory community options as a widespread concerns about under- sentence lengths; factor tipping decisions towards custody. funding and under-staffing. G softening of the climate of political A lack of community options was cited and public opinion on crime and as a key factor in the sentencing Conclusions punishment, so that sentencers feel at decision only in two of the 150 cusp liberty to make more sparing use of cases that went to custody. Interviewees If there is political will to contain the custody, and greater use of the stressed that they pass community prison population, then success in alternatives to custody; sentences whenever the facts of a given doing so will depend on changes both to G improving the understanding of the case make a non-custodial sentence an sentencing practice and to the context in range of non-custodial penalties – option. which sentencing is carried out. including the fine – both among sentencers and the wider public. However, none of these The study’s conclusions at a glance interventions is likely to meet with much 1. The best way of bringing down the prison population is to issue guidance to success unless there is clear political will sentencers to use imprisonment less often, and where it is used, to pass shorter to stop the uncontrolled growth in sentences. prison numbers, and visible, consistent 2. Providing a wider range of tougher and more demanding community penalties political leadership in stressing the need will probably result in ‘net-widening’ – where the new sentences are used with to do so. offenders who would previously have been fined, or served a conventional community penalty. We would like to express our gratitude to the Esmée Fairbairn Foundation, who funded this 3. There is a need to improve sentencers’ and the public’s awareness of community study as part of its Rethinking Crime and penalties and their benefits. Punishment programme, and all those 4. The use of the fine has declined sharply. If the courts were to make more use of magistrates and judges who took part in the fines it would free up probation resources and defer the time when the ‘last research. The full report is available from the Prison Reform Trust: The Decision to Imprison: resort’ of imprisonment has to be used. Sentencing & The Prison Population, by Mike 5. Above all, there needs to be consistent and visible political leadership in Hough, Jessica Jacobson and Andrew Millie. stressing the need to end the uncontrolled rise in the prison population. £10 plus £1 p&p Tel: 020 7251 5070 Fax: 020 7251 5076 e-mail: [email protected]

Magistrate 201 Summer 2003 Feature Still only a domestic? Harriet Cullis JP was invited as part of a British delegation to New York to see the working of the new integrated domestic violence courts. She believes there are many lessons to be learnt from the US experience.

e have only two specialist supervision and co-ordination of domestic violence courts services and has led the way for similar Win the UK (Leeds and West courts to be replicated throughout NY London) and a recent visit to New York, State. where such courts have been in existence for several years, illustrated New combined jurisdiction the benefits of an approach where the focus is directed towards: This year, further progress has been G victim services and safety; made with the introduction of G intensive monitoring; combined jurisdiction. The objective of G offender accountability; integrated domestic violence courts is G co-ordination and information to bring all related cases together before sharing. a single judge, concentrating resources Significant changes in the USA and services, thus reducing delays, came about with the passing of the court appearances and conflicting Violence Against Women Act 1994, orders. resulting in mandatory arrest laws, Twelve key components have been increased funding for victims and the laid down, including those already creation of special domestic violence mentioned above, to promote victim assistance by obtaining information prosecution and police units. Judges, safety and offender accountability but from those involved in partnership with court administrators and lawyers were with the addition of: the court, eg district attorney, influential in the setting up of over 300 G extended jurisdiction (criminal, probation, batterer programmes and specialist domestic violence courts family, matrimonial); victim advocates assigned to every nationwide. G protocols for listing and preserving case about any alleged breaches and A major part in that development case integrity; victim safety. Partners are held has been played by the Center for Court G training for judges and all court staff accountable by the resource Innovation (CCI), a public/private and agencies; and co-ordinator for timely, accurate reports partnership of the NY State Unified G requirement to use IT. about victim and defendant to be Court system. The Center organised our Regular meetings are convened of presented to the judge before a visit to courts in New York State and to all those involved both ‘on and off’ the hearing. Victim advocates are also the NY Police Department and Mayor’s court and the IT program designed to aided by the children’s co-ordinator Office. We also met representatives ensure prompt information sharing is whose remit ensures the of victim advocates, NY City essential to proper judicial monitoring. comprehensive delivery of appropriate Administration for Children’s Services services for women and children. and Safe Horizon, batterer programmes. Co-ordinator assistance Defendants, who included women, In 1996, the creation of the first were left in no doubt of the specialised domestic court in Brooklyn, In court, the judge has the assistance of consequences of criminal contempt of now internationally recognised, helped a law clerk and two co-ordinators who the court. Those who had violated to transform the handling of indicted are present on the bench during the orders of protection appeared in domestic violence ‘felonies’. This busy hearing. The role of the resource handcuffs. ‘Batterers’ who were placed court has been successful in achieving co-ordinator is to aid the judge in on supervision programmes either on the objectives of intensive monitoring, monitoring compliance and victim bail or through a court order were required to pay for the course and failure to attend resulted in immediate notification to the court. As far as bail Defendants, who included women, were left in no doubt of the conditions, the attendance of consequences of criminal contempt of the court. defendants on batterer intervention programme classes can be mandated by the felony court pre trial. Using the

Magistrate 202 Summer 2003 Feature

classes as a condition of bail is an additional way to keep tabs on a defendant who has bail but is not available in the lower, misdemeanor courts. Domestic violence Orders of Protection are put onto a Registry to aid law enforcement. The registry feeds the national FBI database alerting all national areas as well as the sellers of firearms who are not supposed to sell guns to offenders.

One-stop facility

The advantages of the court operating as a one-stop facility were made clear when the judge was able to ask for on-site drug testing of two parents contesting custody. This was agreed and the result was available within the hour. In spite of allegations both parents tested negative. In another matter involving custody, there was a need for a guardian, who appeared available within a few minutes! The evaluation of the new IDV courts is still taking place. Perhaps their value can be measured to some extent by the enthusiasm shown by the judiciary and partners in the criminal justice system. Some clear evidence is emerging that ongoing judicial monitoring may well be the most effective technique to reduce recidivism. Intensive supervision during the course of proceedings and after by the judge makes for an ability to hold the defendant more accountable. Already the creation of specific courts to deal with domestic violence has demonstrated a significant shift in compliance with orders and much better outcomes for Advert(s) victims. Robyn Mazur of the CCI writes ‘the concept that the judge is watching’ is a cornerstone of the domestic violence and integrated domestic violence court model. The judges in these courts have compliance (monitoring) dockets where they bring defendants back to court with regularity. The compliance court dates help the judge to reiterate the conditions of the order of protection. The support of victims by special advocates has been key to achieving access to services and probably in reducing the number previously unwilling to proceed against perpetrators. Further improvements in consistency have been made possible by a combined jurisdiction properly serviced by excellent technology. Finally, the benefits of reducing stressful court appearances should not be underestimated. In spite of all the many complex issues surrounding the subject, it maybe an appropriate time to debate the need for combining jurisdiction in our own courts and possibly initiating a more effective system for victims and perpetrators of domestic violence.

The UK delegation to New York consisting of representatives from the CPS, police, Home Office, probation and magistracy was organised by Jill Maddison, policy adviser on domestic violence at the London Borough of Croydon. Grateful thanks are due to the Center for Court Innovation New York for much of the information supplied in this article and to the GLMCA for supporting two magistrate delegates. Contact [email protected] for a list of publications and further information about the domestic violence court in West London.

Magistrate 203 Summer 2003 Viewpoints Women and justice A new inquiry in the form of a commission has been launched to assess what happens to women victims, defendants and practitioners in the criminal justice system. Vera Baird QC MP, who is chairing the Commission on Women and the Criminal Justice System, with the Fawcett Society, explains.

Why a commission?

Lyndsey Armstrong was just 17 when she committed suicide a few weeks after the conviction at trial of the boy who had raped her. She had been through a humiliating experience while giving evidence, in particular when she was asked to hold up her underwear in front of the jury. Things are changing for young women like Lyndsey but there is still a long way to go. It is because of cases like this that the Fawcett Society has set up the Commission on Women and the Criminal Justice System. I am delighted to be chair of a high profile and expert group of commissioners id8 photography which includes Martin Narey (the Commissioner for Correctional Holistic perspective women have so little faith in the Standards), Liz Bavidge JP, and Mrs system that they do not report the Justice Heather Hallett. The Commission is examining the offence in the first place. It is The Commission will examine system in three broad areas of work; estimated that as few as one in ten women’s experiences of the criminal women as victims and witnesses, women report rape and of the few justice system which has historically women and offending and women cases that are reported only 7% result been a particularly male-dominated part working in the system. We believe that in conviction. of our legal system. It is hardly by taking a uniquely holistic The age-old problem of the surprising that our law has developed perspective we can make a significant complainant’s sexual history evidence along a male model of behaviour when contribution to the existing knowledge being introduced by the defence to you consider how few women have about women and the criminal justice discredit her as a witness has been, in been involved in criminal litigation. Our system. part, addressed by s41 Youth Justice legal system must now adapt to reflect We started our work in February and Criminal Evidence Act 1999 and the wider society. by gathering evidence about women this provision is currently subject to As magistrates will know, significant who are victims and witnesses. It is a research project on its efficacy. changes are being planned to our laws unfortunately clear from the women The changes to rape in the Sexual and procedures; the Criminal Justice Bill and organisations we have spoken to, Offences Bill which define consent and Sexual Offences Bill are currently as well as the existing research, that and introduce a ‘reasonable person’ before Parliament, there is a the system is failing female victims of test to the defence of honest belief in consultation on domestic violence, very serious offences, so much so that consent are also likely to bring both starting next month, as a precursor to many women say they would not go to improvement and an increase in legislation in the autumn, and a Victims court again. confidence. and Witnesses Bill has also been However, there are still serious promised. The Commission’s aim is to Rape problems at every stage of the bring a gender perspective to the process. Dr Liz Kelly’s research for the current debates around criminal justice I know from many years of experience Crown Prosecution Service(CPS) policy, and in the longer term to ensure as a criminal barrister that rape victims Inspectorate last year found that ‘at that gender is mainstreamed in future are often treated badly. I have seen this each stage of the legal process, policy-making. myself. The problem is systemic; most stereotypes and prejudices play a part

Magistrate 204 Summer 2003 Viewpoints

Research repeatedly illustrates the failure of the criminal justice system in its dealing with women. Statistics confirm that domestic violence is still a notoriously difficult area and in rape cases only seven out of 100 reported rapes results in conviction. And in terms of the prison population, the number of women in prison has more than doubled. in decision-making’. Dr Kelly found system work for women who are specialist referral centres (such as that too often prosecutors are looking abused. The safety of the woman and sexual assault referral centres), which for weaknesses in the complainant’s child needs to take top priority at child provide a ‘one-stop’ shop for victims. evidence, rather than trying to build contact and bail hearings, and the These centres provide specialist the case. complex relationship between the civil medical treatment, counselling, The Commission welcomes plans and criminal courts needs to be forensic sampling and access to the to address this problem by introducing simplified. (See also page 194.) police. They not only provide the specialist prosecution teams within the essential support that victims need in CPS to handle rape cases. In addition Funding of support services the immediate aftermath of crime, they we are recommending that the Director are crucial to the investigation and of Public Prosecutions takes steps to At the same time as legislative change prosecution process. ensure that only advocates who have is taking place to help victims of crime attended accredited training courses there is a crisis of funding for support Recommendations and future work are instructed to prosecute rape cases. services and the most basic provision, We have real concerns about the senior such as 24-hour helplines, is not The Commission will be publishing judiciary, who, as I discovered through available. Ms A, who was violently raped an interim report of findings and a Parliamentary Question to the Lord and assaulted by a work colleague, told recommendations in the summer. Chancellor, have had no training the Commission ‘I did report it to the Please see contact details below for whatsoever in the special skills of police four days after the incident. To be how to obtain a copy. trying rape, until now. honest though it was largely because it The Commission will next be was a Saturday and I desperately looking at the way that female offenders experience the criminal Domestic violence needed someone professional to talk to about my fears. My GP was unavailable justice system. This will be followed by The facts about domestic violence are and the Rape Crisis Foundation helpline an examination of the system from the similarly stark. Two women a week are was only open on a Thursday night!’ perspective of the women that work in killed by a current or ex-partner and The Commission is urging the it. The magistracy is at the heart of all domestic violence accounts for a government to ensure that funding is of these issues. quarter of all violent crime. While the available so that victims of sexual Vera Baird is a QC and Labour backbencher problem comes before the courts assault and domestic violence have who succeeded Mo Mowlam as the MP for frequently, it can be difficult to identify access to 24-hour helplines as well as Redcar at the last election. because there is no ‘domestic violence’ offence. In addition there is little training about the cycle which this Commission on Women and the Criminal Justice System violence always takes, which is vital if The Commission is examining the system in three broad areas of work; women as agencies are to be empowered to victims and witnesses, women and offending and women working in the system. intervene before it grows critical. As The Commission is gathering evidence from experts, organisations and most with rape, there are very low rates of importantly from individual women themselves. This is largely by way of written reporting and very high attrition rates. submissions, but we are also holding a series of hearings, seminars and closed There are ground-breaking projects sessions where individual women can tell us about their experiences in a taking place such as the operation of confidential setting. model domestic violence courts in several magistrates’ courts. But good How magistrates can get involved practice is scattered among the police, Magistrates have a wealth of experience in all the areas of our work and we CPS and the courts. A domestic very much want to hear from you. If you would like to participate or for further violence consultation paper is due to information please contact the Commission’s Policy Officer Holly Dustin at the be published imminently, followed by Fawcett Society, 1-3 Berry Street, London EC1V 0AA or e-mail holly@ legislation in the autumn. This fawcettsociety.org.uk or see our website at www.fawcettsociety.org.uk. presents an opportunity to make the

Magistrate 205 Summer 2003 Advert(s) Feature How the BBC is tackling new causes

Could the BBC’s recent awareness-raising season on domestic violence be a model for future co-ordinated programming? Tim Harrison asked the producer of Hitting Home.

rom time to time the BBC really Reaching across the BBC comes into its own as a public Fservice broadcaster, harnessing ‘I felt very passionately about the in-house know-how, co-ordinating subject, and wanted to use the disparate departments and focusing, different voices and tones of the BBC with an unflinching stare, on a to give it maximum impact,’ said chosen topic. Seetha. If, say, you’d had a hard day The Big Read recently nurtured at work, you might not want to sit and the revived appetite for reading, watch a factual programme, but the and the annual Children In Need message was also there in Casualty stimulates fundraising while raising and Radio 1’s Sunday Surgery phone- awareness of the plight of society’s in chose the subject, reaching an underclass. audience which may not have seen But in February, the BBC some of the TV programmes. attempted an even bolder move – Only ‘appropriate’ genres tackling a taboo issue, domestic were used, however. It was felt, for violence – with a co-ordinated series example, that there was no room for of programmes across the board, any involvement by the BBC’s comedy from TV documentary to radio play, departments. BBC local phone-in to website, children’s drama to film, soap opera to freephone Audience research advice. commissioning. It told the harrowing stories of the victims, survivors and Audience research suggests the season was a resounding success, particularly in Hitting Home perpetrators of domestic violence, while offering hope, advice and solidarity to reaching potentially vulnerable viewers Seetha Kumar, head of BBC Lifeskills, viewers and listeners. (who may only watch daytime TV brought everything together under the Casualty and Neighbours wove programmes) and to the black and Asian banner Hitting Home. ‘We who work in relevant storylines into their scripts; the communities via the BBC’s specialist TV are always thinking of areas we children’s channel CBBC screened a channels. should cover, and things we should be specially-written drama, Behind Closed Another measure of success is the doing,’ she explained in her office in the Doors; Benjamin Zephaniah’s play flood of requests for tapes of the shows BBC’s White City complex in west Listen To Your Parents was broadcast on from police, probation and other London. Radio 4; regional radio stations selected agencies, for use in training. ‘I’d read the odd story in the papers, the topic for their phone-ins; and the So could the template be used for and I’d been talking to a policewoman BBC’s website guided people to the other subjects? about the work she had done in the agencies that can help (it’s still ‘We in the media have a job to tell field,’ she said. With the help of accessible via www.bbc.co.uk/ the stories no-one else does. I think we researchers, and the enthusiastic hittinghome). did that with Hitting Home,’ said Seetha, support of BBC 1 controller Lorraine Jeremy Vine’s Radio 2 show tackled who previously ran the unit which makes Heggessey, the ball started rolling in the anger management; actor David Soul Crimewatch. ‘Hitting Home got a lot of spring of 2001. made a riveting confession of his own support from within the BBC and outside The stark statistics (one in four violent past in the powerful BBC1 agencies. We are talking about how we women is affected by domestic violence, documentary Dangerous Love: Tales of can do other tough subjects.’ one in three schoolboys considers Domestic Violence; and there was a One example on the agenda is violence against women ‘acceptable’) retrospective look (with contributions poverty. Other issues are also being shocked everyone Seetha discussed the from scriptwriters and actors) of the weighed up in light of the Hitting Home subject with, and Hitting Home was violent EastEnders storyline involving the experience. born. soap characters Trevor Morgan (Alex ‘It’s interesting to see how we can The season of programmes was Ferns) and Little Mo (Kacey Ainsworth), work together to do things we all believe aired in the week after Valentine’s Day, to examine how television tackles the in – the public service remit of the BBC – following two years of planning and issue. to make more of an impact,’ said Seetha.

Magistrate 207 Summer 2003 Open letter

Courts and Criminal Justice Bills

Rachel Lipscomb, Chairman of the Magistrates’ Association, updates members on the Courts and Criminal Justice Bills.

s I write this, the Courts Criminal Justice Bill Bill is about to be Apresented in the Moving on to the Criminal Justice Bill, this too will have a Commons, having been through major impact. In the March issue, Cindy Barnett wrote about the Lords. Meanwhile, the the proposals that affect magistrates’ powers. As it moves Criminal Justice Bill will shortly be through the Lords, we expect robust and extensive debate to going to the Lords, having been take place. The most controversial issues are jury trial, life through the Commons. Both sentences and double jeopardy. Individually we may have these bills are of critical strong views on these matters, but as sentencers they are not importance to magistrates. central to us as magistrates. However, there are other clauses which affect us directly and on which we are seeking When the Courts Bill is debated in the Commons, much clarification or amendments. The MA has delivered a briefing of the running will be made by the Select Committee to the to Peers which is on our website and circulated with Notice LCD*, chaired by the Rt Hon Alan Beith MP. This committee Board in July. Two examples of our concerns are: has been very active since its inception in March, when Sally G Bail. Reversing the presumption of right to bail when a Dickinson and I gave evidence to it. Their report on the defendant has failed to answer bail is not unreasonable. Courts Bill, published in June, focuses on: However it will impose an important duty on the police, G the scope of the Lord Chancellor’s powers; Crown Prosecution Service and courts to ensure that all the G the accessibility of courts; information required to make a decision is available as soon G court closures; as someone is arrested breaching their bail. G courts Boards; G Probation liaison. We shall be seeking the chance to put G the relationship between justices’ clerks and magistrates; G liaison with the probation service back on a statutory footing, court security; as it was in 1997. G fees and costs; This is an area of major concern. At the beginning of June, G fines. the MA, together with the Justices’ Clerks’ Society and the In step with this, an MA briefing went out to MPs, as Probation Boards Association met Eithnie Wallis, Director well as individual briefings in May and June. General of the National Probation Directorate. Since reorganisation, the service has faced extreme difficulty in terms Unified administration of budget and staff numbers in some areas. This is being addressed, but it is essential we now build back the contact Meanwhile, on 4 June, the LCD put on a conference in that used to exist between probation and sentencers. There is London at the request of the MA for around 250 branch and a wider range than ever before of community penalties that rely bench chairmen, as part of the consultation process on the on evidence based programmes. We, as sentencers, need to unified administration. There were presentations from the know what they are, where they are available and receive minister, Yvette Cooper, Ian MacGee, chairman of the UA regular feedback on what works. This is why we are pursuing Board, together with members of the board and the UA this matter via the bill as well as directly with probation. implementation team. This was followed by lively forum To say there is never a dull moment seems like a sessions, and an address from Lord Justice Judge, the Senior monumental understatement right now, but I am very Presiding Judge for England and Wales, who declared that conscious that the two bills currently going their opposite ways now is a major moment in our history where we become full through Parliament will shape and define the magistracy for partners in the judiciary, sharing: many years to come. This is why they are rightly taking up so G the same court rules and guidance; much of our time and energy. With your wholehearted support G the same sentencing guidelines; I am confident we shall achieve the right results. G the same standards of case management and preparedness on the part of prosecution and defence. Courts in general have arguably never been so much under the spotlight from politicians and the media. While it is right that our actions are held up to scrutiny, this must Rachel Lipscomb never be at the expense of our judicial independence, and Chairman of Council these closer ties within the judiciary will help us to resist undue pressure. *The LCD is now the Department for Constitutional Affairs.

Magistrate 208 Summer 2003 Letters

Letters

Letters are extremely welcome but, due to restrictions on space, it is impossible to print every letter, and some have to be abridged. Letters should be addressed to the: Magistrate, 166 Broomwood Road, London SW11 6JY. (Please indicate if you would like your e-mail address to be published.) If you require a reply from the national office, please also copy your letter to Sally Dickinson.

Alan Rusbridger is quite I have just been informed The true cost of custody Sentencing options for right that we cannot build that the government May I comment upon Mark our way out of the prison driving offences intends to increase from 3 to 1 Pimlet’s letter (April 2003). overcrowding crisis, and Now that there are over 24 4 /2 months prior to release It was actually Martin Narey neither should we try to. million cars on our roads the mandatory review for who spoke of the courts Mark Pimlet’s idea that today, isn’t it time that Home Detention Curfew ‘love affair with custody’ and prisoners ‘should build the offences of driving whilst (HDC). This has the record high numbers prisons themselves’ is disqualified, driving with subsequently been now in prison appear to add impossible to take seriously excess alcohol and repeated confirmed by Mr Hilary weight to this argument. and since we could build 60 no insurance be upgraded Benn MP, Home Office Imposing short prison primary schools for the cost from summary only matters Minister. sentences on non-violent of one prison it is not hard to either way offences with This increase now repeat offenders and fine to see why prison has the possibility of committing means that a sentence of defaulters may satisfy famously been described as to Crown Court for sentence? six months or less is magistrates’ needs to ‘an expensive way of making We recently had a meaningless as far as dispose of problem cases, bad people worse’. defendant who was charged custody and public but it smacks of desperation The urgent need to with drink-driving whilst protection is concerned, the and represents a quite alleviate prison disqualified by court order offender will be released in inappropriate use of overcrowding can be easily and no insurance. It was his two days. custody. and effectively achieved by 20th offence of driving whilst So that the public can His comments about a sending fewer people to disqualified and his alcohol perceive some protection local prison feeling ‘more prison and magistrates reading was three times the should we be making more like a holiday camp’ are a therefore have a key role to legal limit. use of ‘tagging’ (HDC) gift to all those who ridicule He had been before the play. Community penalties straight from court and magistrates as being courts on 33 previous are cheaper and more also/or bail remands? hopelessly out-of-touch with occasions, for similar effective than prison, as they W Hugh Phillips JP the reality of prisons to offences, and on 30 of those engage with offenders to (Gwent) which they readily commit had received a custodial challenge their behaviour, offenders. I suspect that his sentence. instead of simply views were formed as a The sentencing options Radical re-think? despatching them to a result of a short visit, at our disposal, six months I recently attended a custodial system already organised specifically for JPs in prison, are not adequate conference in Cambridge, over-stretched, for periods and designed to minimise enough when dealing with entitled Cutting Crime: too short to allow for any any meaningful contact with someone who constantly Sentences that work. prisoners. The reality is that constructive activity but long defied court orders. One of the speakers was most prisons are enough to disrupt an Maybe the knowledge Eithne Wallis, Director overcrowded, cramped, offender’s accommodation, that a severe Crown Court General of the National hostile places in which employment prospects and sentence could be a Probation Service. hours of mind-numbing family ties. Little wonder possibility would make some Pondering on this lady’s boredom are relieved only by that so many ex-prisoners motorists think twice before persuasive presentation I outbreaks of bullying and reoffend so quickly when they drove after drinking or concluded that there must intimidation. Over 600 their problems on release whilst disqualified. be a case for a radical re- people committed suicide in are so much worse than Jill Wilson JP think of sentencing. Britain’s prisons in the when they entered prison. (Berkshire) Magistrates have very 1990s and research by the Prisons will always have few options: discharge, fine, Howard League suggests their place, but they can only community punishment in that there are as many as be improved by restricting Mandatory review for one form or other, or prison. 21,000 incidents of self their use to those we really Home Detention Curfew My thought process was harm each year. Hardly a need to send there. As a member of the that when we send people to sign that prisons are ‘an David Wilkinson JP independent monitoring prison we do just that, with inviting place to stay’. (Essex) board of our local prison, no account of which prison

Magistrate 209 Summer 2003 Letters

or what regime it may if BTDCs follow the preparation for the MNTI 2 our training and appraisal, operate. Logically should we guidance published by the Appraisal Project, I found the magistracy does a very apply the same thinking to Judicial Studies Board in Peter Bailey’s article (May good job, displaying a community sentences? We October 2002. In my area, 2003) very interesting. very high level of make our judgments based candidates are nominated I share Peter’s concern professionalism. We would to a large extent on reports, and seconded by members that in-house training and not benefit from external prepared by probation. of the bench. The BTDC appraisal may not always training and appraisal Should we merely reflect makes its selection, based produce the best results. consultants. the severity of the sentence on published criteria, and However, I have serious Mr A D Turner JP in terms of length and leave there follows appropriate doubts on the suitability of (Dorset) the probation service to use training. Also, I see nothing training consultants based its skills and knowledge to wrong in appraisers and on recent experience. Most decide what our offender appraisees knowing each professionals rely on Retirement age for should do? This would allow other – in most working experts in their specific magistrates etc probation to move the environments this is bound field for training in order to I noted with interest the offender from one course to to be the case. Like provide credibility from letter from Erik Farr-Voller another if it became magistrates, appraisers their own experience. I JP (May 2003) concerning appropriate. must demonstrate the cannot imagine doctors, magistrates on the I realise that many of my confidence, sensitivity and lawyers or pilots being supplemental list. colleagues will throw up impartiality to objectively trained by independent I fully concur with his their hands in horror but I voice their assessments, be consultants with no views that it is very sad that believe it is an idea worth able to identify the evidence experience of that magistrates, who retire serious debate. Cases in support of competence profession. The important from the bench at the age throughout would be and be willing to support issue is that trainers are of 70, are not used for the improved, delays reduced colleagues in their own taught how to be effective benefit of the courts and and cost savings achieved development. trainers. their fellow magistrates. by not continually ‘going off Mr Bailey’s proposals As an appraiser I Firstly, I think that the for reports’. will, I believe, lead to understand the risks of retiring age of 70 should Jim Wyllie JP magistrates being familiarity and subjectivity not be mandatory and that between colleagues on the (Suffolk) bombarded with more magistrates should be training as opposed to same bench. However, For a report of the meeting allowed to continue their development, lead to independent assessors see Association news page duties on an annual basis alienation as opposed to would be restricted to 198 for perhaps another two or support, and his wish to see appraisal from the well of three years. During that a more representative the court only, as they time their services should View from the inside magistracy will not be could not sit as a be used to carry out the As chairman of a bench realised. magistrate with the duties of appraisers and training and development Training and appraisal appraisee. An alternative even mentors, preferably at committee (BTDC), I do not must develop in order that could be cross-bench a court near where they recognise Peter Bailey’s the magistracy will continue appraisals. Many counties have served, as I am criticisms of magistrates’ to command public already combine with their personally not in favour of training and appraisal confidence. I am sure that neighbours for training and appraising or being (Comment, May 2003) and the improvements being this could be extended to therefore do not support his sought to the Magistrates’ appraisal. The success of appraised by my colleagues arguments for independent, National Training Initiative any appraisal scheme will from my own bench. external trainers and (MNTI) will represent a be the tools provided to Secondly, there is a lot assessors. sensible and positive carry out the task. The of merit in the suggestions In my view, it is essential approach to what Mr Bailey MNTI 2 proposals put forward by Peter Bailey that the magistracy and seeks to diminish as ‘in- currently being piloted JP in his Comment in the those who advise it, retains house’ training. need a lot of consultation same issue. firm control over its Duncan Webster JP with active magistrates to It would be interesting members’ training and (Buckinghamshire) get them right, even if it to know how many of our development. Our judicial means delaying the hasty colleagues around the independence depends on it implementation presently various benches have the and is the stronger for it. Training and appraisal planned. same views in regard to The appointment of Having recently completed a I endorse Peter Bailey’s these matters. appraisers and mentors is two-day training course summary that for all the Harold Hare JP not by ‘subjective invitation’ organised by the MA as current shortcomings in (Middlesex)

Magistrate 210 Summer 2003 Guiding light

Noise

Readers are invited to study this imaginary case and to compare the sentence they would give to that on page 212.

rs Armstrong lives on kept shut but he has made no effort to co-operate. the second floor of a Having complained to the local authority, Mrs Armstrong Mdetached three storey was asked to keep a diary of noise events and an Victorian house, the other two environmental health officer visited her flat to monitor noise floors are unoccupied. Her rooms levels. Shortly afterwards the licensee was reminded that doors face what has been for many years and windows must remain shut during periods when music a relatively quiet minor road and was being played, or TV sports events were being viewed. He despite the nearby presence of a failed to comply with this request and the authority issued a pub and a certain amount of Noise Abatement Notice under s80 of the Environmental vehicle and pedestrian traffic she has never, until recently, Protection Act 1990, a copy of this being sent to the pub been troubled by noise. management company. Things have now changed drastically. The pub has changed The notice had no effect, it was a hot summer and the pub hands and an ambitious young licensee has obtained a public doors and windows were frequently opened during music and entertainment licence following which he has introduced TV sports events. On being prosecuted for breach of the several forms of noisy entertainment including karaoke, live abatement notice the licensee said in his defence that he was bands and widescreen sports TV. The pub has a new clientele doing his best but he had a business to run and that Mrs and Mrs Armstrong is beset with many hours of amplified Armstrong was a difficult woman. He had offered to pay for music, singing, clapping and cheering. On several occasions her to have air conditioning and double glazing but she had she has asked the manager to ‘keep the noise down’ and in refused, in his opinion she had an obsession about noise and particular to ensure that the doors and windows of the pub are was making a fuss about nothing.

Advert(s)

Magistrate 211 Summer 2003 Guiding light

Noise

Dudley Thomas gives his response to the sentencing problem on page 211.

here the noise nuisance denied the breach of the abatement notice. If he admitted it emanates from industrial, then credit will have to be given in determining the final Wtrade or business amount of the penalty. To what extent should the court take premises a defendant who, without into account the licensee’s claim that he was doing his best reasonable excuse, fails to comply and had offered to pay Mrs Armstrong to have double with an abatement notice is liable glazing and air conditioning installed. Apart from this offer, to a fine in a magistrates’ court not which was understandably declined by Mrs Armstrong, the exceeding £20,000. licensee, it appears, has done little to control the level of After many years peacefully noise occasioned by his recently introduced activities. enjoying her home, Mrs Armstrong’s life has changed As always the court will need to carefully examine the dramatically. The ambitious and avaricious young licensee has defendant’s means in deciding the penalty. arrogantly failed to respond to Mrs Armstrong’s request, the As a person convicted of a breach of an abatement approaches by the local authority and now the abatement notice is not also liable to a civil action for damages for the notice. At court he is dismissive about Mrs Armstrong’s plight. same mischief, the court will need to consider a This case requires a significant financial penalty to reflect compensation order in favour of Mrs Armstrong. If this is to the seriousness of the failure to comply with the notice. It is be awarded then it should take priority over and above any sadly the case that many victims of this type of interference other financial penalty. I would make such an order in this with their lives go on to suffer mental health difficulties. Mr case. Greedy-Licensee is in line for a hefty penalty. Finally, under the Noise Act 1996 the court is empowered We are not told if he has any previous convictions, so to make a forfeiture order in respect of any equipment used assume that he has none. We are not told if he admitted or in the commission of the offence – no more karaoke!

Advert(s)

Magistrate 212 Summer 2003 On the agenda

Most of the committees, honorary officers and staff at the Association have on-going work throughout the year. In each issue, we will keep members abreast of the key issues and areas of concern and provide an update on activities and representation. As space is limited, information on key issues and activities will be prioritised.

Chairman and deputy chairman of Council Family Proceedings Committee G All three officers attended a briefing with the Liberal Democrat G President’s Interdisciplinary Family Law MPs re the Courts Bill; the Courts Bill conference for branch and Committee bench chairmen on the proposed unified administration Representation – Malcolm Richardson (organised at the Magistrates’ Association request); meeting – The Family Justice Council should be in place with Kevin Sadler, Lord Chancellor’s Department; the by the end of the year. Funding is still to be Association’s charter group and editorial board meetings. approved but it is a high priority for the G Rachel Lipscomb attended Justices’ Clerks’ Society conference; government. a reception at 10 Downing Street; Seminar – Future Options – The case management protocol for public law for Correctional Services; Audit Commission Advisory group on cases will be in use by 1 November. Victims and Witnesses experiences; met Simon Hughes MP, – The Family Proceedings Committee also was interviewed by Frances Gibb of The Times, visited South responded to the consultation on the committee’s Yorkshire, Norfolk and Birmingham branches; with Sally draft interdisciplinary curriculum for all those Dickinson met Eithne Wallis at National Probation Directorate to whose professional work involves the family discuss communications between sentencers and probation; justice system. attended meeting to discuss probationer training modernisation. G All Party Parliamentary groups on Domestic G Cindy Barnett attended a Street Crime Action Group; did a Violence and Children telephone interview with East Anglian Daily Times on compen- Representation – Peter Sloman sation; visited Wiltshire Bench executive with Sally Dickinson. Meeting to review current research on the impact of G Peter Blackwell attended meeting of JUICE Training group; domestic violence on children. together with Christine Field gave a presentation at the Children G Law UK conference on the merits of referring some cases from Children Law UK conference on Welfare and the youth court to the family courts where circumstances of the Justice children cause concern. Representation – Malcolm Richardson Conference focused on the findings of the Sieff foundation report last year of the need for youth courts to be able to consider the diversion of Licensing Committee children at risk into the ambit of the family proceedings courts and how these findings may G Committee members continue to attend meetings of the various be taken forward. sub-groups of the Alcohol and Entertainment Licensing Bill G Advisory Group Meetings. Responded to articles in Community Care magazine and The Times re delay in family proceedings.

Road Traffic Committee Criminal Justice Systems Committee G DVLA Representation – Elliot Griffiths G Creating Civil Communities Conference Key issues discussed include: Representation – Cindy Barnett – new, more secure, road fund licence disc to start circulation G Greater London Domestic Violence Sixth Birthday October 2003. Reception – Improved and more secure V5, vehicle registration document Representation – Cindy Barnett to be introduced early 2004. – DVLA doing more checks before issuing a driving licence to G Policy Meets Practice reduce fraud. Representation – Cindy Barnett – continuous registration to come in 2004, meaning that until the Concerned with domestic violence issues. owner informs DVLA of a new owner, the ‘old’ owner will G Inter Agency Sounding Board of the new Victim remain responsible for vehicle congestion charges and parking and Witness Care project fines. Continuous registration should help reduce the number of Representation – Cindy Barnett abandoned cars because the owner will be more easily traced. A new group being set up by the Crown Prosecution – proposals to make relicensing of vehicle easier in early 2004 when owners of cars under three years old can buy a licence Service and Office of Public Service Reform (OPSR) over the telephone or via the internet. – a consultation document on the proposed abolition of the driving licence counterpart is expected shortly. – Part of the European Union Third Directive is that member Sentencing Committee states can issue smart card driving licence with electronic chips. Progress likely to be slow as a common standard will G Draft Mental Health Bill Forum need to be agreed. Representation – Janet Males

Magistrate 213 Summer 2003 Advert(s) On the bench

Life after retirement

How many magistrates after retirement have missed the fellowship and the interaction of views and experiences they enjoyed in their years on the bench. Alex Demetriades explains how the Manchester City Retired Magistrates’ Association is run.

t Manchester City talk at the courts on something Magistrates’ Court, of current interest to retired Acurrently a bench of over magistrates. 400 justices, about 14 years Regarding the welfare of ago, the then chairman of the colleagues, in addition to the bench, Aileen Hargreaves, network of contacts within the instituted an annual function association, the courts have in the form of a tea party for been helpful in informing us of members of the supplemental circumstances which have come list who were invited to gather to their notice which has meant again and at which some of that response can be timely. their former colleagues still serving joined to renew old Keeping up to date acquaintances. From this developed the Informal organisation idea of updating members who attended Keeping up to date with issues that with matters relating to our courts and It was decided that it should be a fairly impact on the magistracy, there have matters of concern to magistrates informal organisation with the minimum been talks on the problems arising out arising out of new legislation which amount of bureaucracy and bearing in of the reorganisation of courts seemed to be coming thick and fast. mind the advanced years of those administration and on the development involved a not too strenuous of the role of the probation service in Forming the association programme. sentencing procedures and how this Three facets were to be incorporated: affects magistrates. An example of As time passed, it seemed that those G social: with visits to places of action taken has been that of members attending the tea party would have liked interest; registering with politicians their dismay something more frequent to be available G welfare: keeping in touch with at proposals to abolish the supplemental to them to meet and in 1999 the then colleagues who might be suffering ill list. chairman of the bench, Michael health or recent bereavement; We have much to thank court officials Hammond, suggested a committee G practical: taking an interest in what for their assistance in the early days and be set up from members of the is happening both locally and nationally for continued willingness of officers to supplemental list to consider forming in the justice system specifically allow occasional use of court’s facilities. a more organised body from those affecting the magistracy and where any members interested. Invitations were influence members might have in their Membership sent to members asking if they would retired capacity might be utilised to the attend a meeting should they be willing benefit of the magistracy as a whole. Our membership at present is 80. to serve on such a committee. An inaugural meeting of members Despite anno domini we have been able Following responses received a of the supplemental list approved the to keep it around that mark and with the meeting appointed a steering committee proposals along with a constitution number of magistrates retiring or leaving to consider the form such an simple in detail. Members pay an before the age limit is reached, we association should take, what it would annual subscription of £10.00 believe their membership can assure aim to do and how it would attract them of many years of contact with each colleagues to become members on Social activities other. joining the supplemental list. We would certainly welcome contact From the beginning it was On the social side it was decided that from other retired magistrates’ recognised that without some valued the aim would be to organise about associations in order to exchange support from the court’s executive, it three events a year one of which would experiences and where appropriate would not be possible to progress the be the annual tea party already in place consider how such bodies nationally workings of the association and it was and before which the annual general might have a role to play. decided that there would be a link meeting of the association takes place magistrate still serving on the active list and a speaker or speakers are invited. Alex Demetriades is Chairman of the in a senior capacity, as an honorary There would be at least one full day’s Manchester City Retired Magistrates’ member of the association and as a outing and a further meeting which Association, Manchester City Magistrates’ member of the committee. might be a local visit – half day – or a Court, Crown Square, Manchester M60 1PR.

Magistrate 215 Summer 2003 ANNUAL GENERAL MEETING Saturday 25 October 2003, Grand Theatre, Swansea

This is your meeting, open to all members – so make a point of attending this year and help to form Association policy for the 21st century.

All members coming to the AGM will require an MENU FOR AGM 2003 entrance ticket obtained in advance. Lunch tickets Smoked salmon roulade must be purchased in advance also. Members Selection of carved cold meats requiring lunch should enclose a cheque and Welsh dragon heart (Puff pastry filled with Caerphilly Cheese complete and return the application form below. in a leek and cauliflower sauce) Hot buttered baby new potatoes The AGM runs from 10.30am – 4pm with a break for A salad of mixed leaves, baby plum tomatoes, cucumber and lunch from 12.30pm – 2pm.There will be a church feta cheese, tossed in olive oil and cracked black pepper service at 09.30am for those who wish to attend. Bakers choice (petit pain,Bread poppy basket seed, wholemeal, malted For information about Swansea, contact the Tourist wheat) with plain or herb and garlic butter Information Centre in Swansea on 01792 468321, Puddings e-mail [email protected] or visit their website Mulled wine cheesecake Champagne and raspberry torte at www.visitswanseabay.com Tiramisu

Application form for AGM 2003, Saturday 25 October, Grand Theatre, Swansea Please complete in BLOCK CAPITALS and return by 26 SEPTEMBER 2003 to Melodie Hyams, 28 Fitzroy Square, London W1T 6DD. Please complete all sections of the form including telephone number and e-mail address. Please note that all tickets will be despatched during the week commencing 1 October 2003. I wish to attend the AGM and require an entrance ticket ❑ I will require lunch @ £15.00 ❑ I will require a vegetarian lunch @ £15.00 ❑ I enclose a cheque (made payable to The Magistrates’ Association) for £

TITLE FIRST NAME SURNAME

ADDRESS

POSTCODE CONTACT TEL NO BRANCH E-MAIL ADDRESS (if applicable)

Do you have any special needs? eg diet, access etc? ✄ Comment

Means to pay fines

The Zacchaeus 2000 Trust argues there should be more research into the minimum incomes needed for healthy living and guidance for magistrates to ensure fines are proportionate to means.

he Lord Chancellor wrote to door-to-door lenders from the Zacchaeus 2000 in August ‘Provvy’. They exploit the fear Tlast year to say, ‘Setting the of eviction and prison, low correct level of fine is, in my view, incomes and the fact that the the key to successful enforcement. poor cannot borrow anywhere To enable this, it is vital that else with loans at up to and magistrates have accurate and over 300% APR. However up to date information about an unacceptable, theft or drug offender’s means at the time of running are other options. sentencing, and indeed An unemployed single throughout the enforcement mother with four children was process.’ Fines and debt threatened with prison, the repayments should be bailiffs or bankruptcy for a proportionate to means. Therein council tax debt and eviction for lies the problem for magistrates. rent arrears. She was not No British government has present in the magistrates’ ever researched the minimum court when the liability order incomes needed for healthy living and costs that occur in work but do not was granted. The arrears were a minimum degree of participation in occur in unemployment such as paying deducted from her benefits. She the community. All statutory minimum for school meals at over £7 a week, borrowed £350 from a loan shark plus incomes are inadequate. Some are far travel to work at over £25 a week. £250 interest to be paid off at £30 a below a bare minimum revealed by If the other partner works part time for week for 20 weeks. I challenged the independent research. An unemployed 16 hours the ‘ready reckoner’s’ gain to council. The debts were a mistake. single childless adult aged 18-24 work is £59.86. Add 30% of childcare Magistrates imprisoned an receives £43.25 a week income support costs to the other in work costs and unemployed single parent for the after rent and council tax. Aged 25-60 that is wiped out too. truancy of her two children. The the figure is £54.65; they can be BT has cut off the telephone of children of the poorest are humiliated reduced by £10 or more repaying an over one million households due to in the school playground due to their emergency loan from the Social Fund. unpaid bills. The preferred means of shabby clothes and lack of holidays, Work at the London School of Hygiene communication of the poor are now Christmas and birthday presents. I and Tropical Medicine has shown that the pay-as-you-go mobiles that charge called the Head Teacher to offer £150 a minimum needed for healthy living is no rent and are always able to receive a child to buy them new school £84.76 but more in metropolitan areas. calls even when they have no credit clothes and shoes. She Is any fine proportionate against an left. To query a mistake at the Child enthusiastically accepted the gift. inadequate income when it will Benefit Office near Newcastle upon increase the chances of ill health? Tyne or the Income Support Office in Disproportionate fines to means The problem is even more complex Glasgow, with all the hanging on that than that. causes, costs 10p a minute for both Until there are properly measured 0870 and 0800 numbers. The Auditor irreducible minimums after rent and The poverty trap General has repeatedly qualified the council tax that are sufficient for good accounts of the Department of Work health and some participation in the The Treasury knows that the and Pensions due to mistakes in the community, both in and out of work, combination of minimum wage at administration of benefits. for the variety of households in the UK £4.20 and tax credits will result in Life for the poorest is also poverty will not be ended. Magistrates some families being worse off in work burdened by the trigger happy will have no option but to enforce than unemployed. The Treasury’s ‘ready computers of local authorities and their fines and council tax arrears that are reckoner’ shows a gain to work of outsourced agents. Threats of eviction disproportionate to means. £33.19 for a couple with one child for rent arrears and prison for council under 16 and one of them in work for tax arrears are sent to vulnerable The Rev Paul Nicolson, Chairman of 35 hours a week. That is wiped out by people whose frequent visitors are the Zacchaeus 2000 Trust.

Magistrate 217 Summer 2003 Law update

An injured child: who did it?

David R Goodman, barrister.

here a child has suffered non-accidental injuries, definite finding can be made at the first hearing, that it is often unclear whether one or both parents should be clearly stated, to assist social workers, Wwere involved. It would be unsatisfactory to have psychiatrists etc when preparing reports for the disposal to decide what to do on the basis that the most that can be hearing. If not, a finding that a parent cannot be excluded said is that the parent was unable to protect the child from as the perpetrator of the injuries is not the same as a injury, when that parent might, in fact, be the abuser. finding that that parent did not cause them, and the court Magistrates must be careful not to return a child to a should proceed at the disposal hearing on exactly that possible abusing parent, but equally must take care not to basis: the parent has not been proved to have caused the deny a child its parent unless absolutely necessary. It is injuries, but possibly did so. The court should look at each easy to guard against the danger of physical or sexual option, and decide whether the child will be adequately abuse by removing a child, but that removal itself may be protected at that level, on the basis stated. Magistrates will an abuse if the child can be protected in the home. The be aware that social workers may assess the risk of further House of Lords has set the test that should now be applied harm from both parents as high where they cannot in such circumstances in In re O and N (Minors) (etc) 2003. ascertain which was the perpetrator, and should guard If the court cannot say which parent injured the child, the against that themselves, assessing the risk on the basis court should proceed on the basis that each was a possible that the parent is a possible perpetrator, not the perpetrator. Split hearings will usually be necessary; if a perpetrator of the previous injuries.

Digest of cases

Care proceedings vehicle onto or on any common the direct control of someone to land, moorland, or land of any other be in lawful custody. (Comment: The parents of a child who is the description which does not form The defendant was sentenced to subject of care proceedings may be part of a road. ‘Land of any other imprisonment. He then ran out of compelled to give evidence, in full description’ means what it says; a the building. He was properly proceedings or in a split hearing: village green with a track across it, convicted of escaping from lawful In re Y and K (Minors)(Split hearing: which the public as a whole does not custody, even though no security Evidence) TLR 18.4.03. use as access, will not be a road, but officer or escort was in court at the will be ‘land of any other time. In my view, the situation Disqualifications description’, so it will be an offence would be the same if the defendant to drive onto or on it: Massey and had run out of court before the Very long disqualifications are likely another v Boulden and another 2003 magistrates had sentenced him to to be counter-productive, and 2 AER 87. imprisonment, as he had answered should not usually be imposed, his bail and had not been allowed especially where the defendant is ‘Custody’ to leave by the magistrates or any being sentenced to imprisonment. court officer): R v Rumble 2003 167 (8 year disqualification reduced to ‘Custody’, in an offence of escaping JPR 205. 3 years, for offences of driving while from lawful custody, means the disqualified and excess alcohol): same as in the Bail Act 1976; when Awarding costs R v Gitau 2002 Lextel 8.11.02. the defendant surrenders to his bail, he is, until released by the If refusing to award costs to a Off-road driving court, in custody. Whether a person successful defendant, the court was in lawful custody at any given should give at least brief reasons: It is an offence under s34(1)(a) Road time will depend upon the facts, R (on the application of Cunningham) Traffic Act 1988 to drive a motor but he does not have to be under v Exeter Crown Court 2003 CLR 340.

Magistrate 218 Summer 2003 Legal issues

Medicine and the magistrate

There are several medical conditions that may cause dilemmas on the bench. Sheena G Jowett JP and Nigel I Jowett MD FRCP explore a case of failing eyesight.

Case scenario: ‘I’m sorry, I can’t least annually. This is because diabetes see you at the moment.’ is the commonest underlying cause of blindness in people under the age of An elderly lady stood before us. She 65 years, and much is preventable or looked frail and leaned heavily on a treatable. stick. We asked if she would prefer to Drivers with diabetes treated with sit, but she declined. The prosecutor tablets or insulin must notify their outlined the case to which she had condition to DVLA. Applicants are already pleaded guilty. required to submit a health She had driven into a stationary questionnaire (Form DIAB1), which car on a single-track country road at a includes a compulsory declaration speed estimated at 30 mph. There were that they can meet the legal visual no skid marks. The driver of the parked requirements (ie they can read a vehicle had sustained several injuries. registration plate at 25 yards). She didn’t know how it had happened. Where possible, DVLA make a The policeman attending the scene noted that she could licensing decision based on the information provided not read the number plate of the police car and suggested on the questionnaire. However, if further information is that she had her eyes checked. The optician found bilateral required, their medical adviser may contact the patient’s cataracts and referred her to the local hospital. Following own doctor and/or consultant, or arrange for physical surgery, her sight returned to normal. examination by a locally appointed medical officer or The lady told us that she had diabetes, but the Driver and specialist. Vehicle Licensing Agency (DVLA) was aware of her medical condition. Considerations on sentencing

The medical perspective She had a clean driving licence, and had never been in trouble with the law. Drivers of motor vehicles must be able to see. The legal At the time of the accident, this lady could not see, and standard is rather generous, and is met by being able to read legally should not have been driving. Whether she realised a registration plate from about 25 yards*. This equates to a she could not see is an interesting consideration. Most visual acuity of between 6/9 and 6/12 on a standard Snellen drivers would feel sure that they could read a number plate eye chart. Failure to meet this standard means that the from 25 yards, but how many of us have actually tried since individual is suffering from what is legally termed a prescribed our driving test! Why not try it now? disability, and their driving licence must be refused or revoked. Whilst this lady must have declared that she could do It is the responsibility of the sufferer to inform DVLA if they the number plate test when applying for continuation of her have ever had, or currently suffer from visual difficulties using licence, how did she know? Like most people when asked, it Form V1 (available from DVLA). It is an offence in law to drive is likely that her ability to meet this standard was assumed; with eyesight below the legal standard. changes in her visual status would not necessarily be picked There are many reasons for impaired vision. In the elderly, up unless she had routine eye checks as recommended to all cataracts are a particularly common cause. Most cataracts are those with diabetes. small and do not affect vision, but with progression, the The charge was driving without due care and attention, individual may notice that vision is a little blurred, rather like and the lady received a fine and three penalty points. The looking through frosted glass. As the cataract gets bigger and latter was redundant, as she had already returned her driving clouds more of the lens, it becomes harder to read and do licence to DVLA, vowing never to drive again. other daily tasks, including driving. Patients with diabetes are particularly at risk of visual loss, The Magistrate would welcome details of other cases with medical and are advised by Diabetes UK to have their eyes checked at complications that could be highlighted in this page. Please contact the editors, outlining briefly the case scenario, by post or e-mail: [email protected] * The precise wording is ‘to read in good light (with the aid of glasses or contact lenses if worn) a registration mark fixed to a motor vehicle Sheena G Jowett JP is a member of North Pembrokeshire Bench and containing letters and numbers 79.4 mm high at a distance of and Nigel I Jowett MD FRCP is Clinical Director of Medicine, 20.5 metres’. Pembrokeshire and Derwent NHS Trust.

Magistrate 219 Summer 2003 ‘…everyone concerned with environmental protection has a use for a practical handbook like the present one…’ Lord Justice Sedley

With guidance on assessing the seriousness of the crime, sentencing criteria and over 40 case studies, Costing the Earth is now available generally from the Environmental Law Foundation, price £25.95 plus p&p.

For more details or to order a copy please call 020 7404 1030 or e-mail: [email protected] Reviews

Rethinking What Works with Environmental Law & Regulation The Village That Died For England Offenders: Probation, social context John F McEldowney & Sharron McEldowney By Patrick Wright and desistance from crime Oxford University Press, Great Clarendon Published by Faber & Faber Stephen Farrall Street, Oxford, OX2 6DP, 01865 556767 3 Queeen Square, London WC1N 3AU Willan Publishing, Culmcott House, ISBN: 1-84174-114-0 020 7465 0045 www.faber.co.uk Mill Street, Uffculme, Cullompton, Price: £24.95 ISBN 0-571-21441-X Devon EX15 3AT, 01884 840337 Price £14.99p Despite its broad [email protected] title, this book ISBN 1-903240-95-6 This is a story focuses on the Price: £30 (hardback only) about the use of standards invasion of a and standard- The title of this part of England. setting in book sums up The invading protecting the very well what forces were not environment and the book is German, or human health. French, or about. The text Part I addresses can be split Roman, or underlying issues Viking. They basically into and Part II addresses specific sectors. I two parts – the were English. would not regard the book as a ‘must’ On December 19 1943 the village of first four for the practising lawyer or magistrate: in Tyneham, on the Dorset coast just east chapters give, the authors’ words ‘its primary aim is to of Weymouth, was evacuated, most what would provide a framework and conceptual reluctantly, by its inhabitants on the appear to be, to someone without a analysis ...’. But the book should be orders of the British Army. Tyneham background in criminology, a fairly helpful to those wishing to add depth to and its environs became a training detailed literature review followed by the their knowledge and understanding of ground for tanks and was never methodology to be used for the study the subject. returned to its rightful occupants, that forms the basis of the book. This Part I contains six chapters. One, despite solemn promises made at would be especially interesting for those on The Enforcement of Environmental the time. studying criminology and as such the Standards, addresses the role of the I make a point of not reading other book is well written in a formal courts. But, to illustrate the wider focus people’s comments on books I am of the book, I shall address the chapter academic style. It would also be of about to review myself on the grounds on Science, Risk Assessment and the interest to magistrates familiar with or that they may colour one’s own Concept of Safety. This explains the use at least partially familiar with the impressions. I hope to be forgiven, subject and some knowledge of of science in standard-setting, and highlights how evolving science should therefore, for expecting a dry, dusty, statistics. pedantic account of the type favoured The second part of the book lead to evolving standards. It goes on to describe some of the scientific (in my unfortunate experience) by far would be of much more interest to too many military historians. I am glad magistrates, particularly those with an techniques used in the assessment of environmental harm, notably to report that I was hopelessly wrong. interest in the probation system, as it ecotoxicology. Importantly, the chapter This book is not merely a gives details of comments made by addresses scientific uncertainty and its recollection of a most regrettable( both probationers and their probation various sources, and the relevance of the some would say disgraceful) episode officers when interviewed by public perception of risk. But I was in British military history. It is a researchers. Some of these were quite disappointed to find relatively little meticulous, flowing evocation of a time revealing about the attitudes of those discussion on how standards should be gone by: of people, attitudes, customs on probation towards life in general and set in the face of scientific uncertainty. and practices long gone. The places are to the help that had been given to them Part II examines many standard- still there, of course, but the period by their probation officer. Although setting instruments applicable in the UK and feeling are not. there were no sets of circumstances regarding water, land and air. Regarding Read this wonderful book. I have that fitted everybody it was heartening water specifically, the coverage is broad never enjoyed the written word as that the same spurs such as finding a but some important instruments receive much in my life. It is not often one partner, getting a new job, getting older, only a brief mention and there is no finds one’s self re-reading passages not drinking as heavily and reducing, or reference to the EC Water Framework simply to enjoy them again. Give ceasing, dependence on drugs were Directive. The concluding chapter looks yourself plenty of time with this book, mentioned by many. to the future. because that’s what you’ll be doing! Frank Spowart Taylor JP Daniel Owen John Bladen (North East) (Barrister, Fenners Chambers, Cambridge) (Former member of the Barnsley Bench)

Magistrate 221 Summer 2003 Crossword Compiled by Sine Die Compilers must use 15 square grids in which every alternate letter down must cross-check with a letter across, and vice versa. All grid entries must appear in The Shorter Oxford, Collins or Chambers dictionaries. Three or more entries must be in court or legal vocabulary.

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NAME AND ADDRESS Advert(s)

ACROSS DOWN 1 Is it a reasonable excuse for swearing in 1 Only frozen water, nothing else; public? (8,4) that’s fair. (7) 8 Pretentious figure has put star characters 2 Insufficiencies occurring when to good use. (7) threads are pulled. (7) 9 Lists of Indian desserts that the man 3 The cat is caught disturbing the misses out on. (7) religious instructor. (9) 11 Primitive instincts applied to one in 4 Flashing signal which doesn’t charge. That’s daft! (7) start until you make it straight. (5) 12 National Union of Railwaymen give voice 5 Command precedes the Queen. as a caring profession. (7) Who says so? (7) 13 Acts of entitlement or derring-do. (5) 6 Pet goes up onto part of roof. 14 Cross about its recent mismanagement. Feeling touchy perhaps? (7) (9) 7 In court catchment area, the jury’s 16 Application of moral reasoning when heard, in a manner of speaking. (12) something caustic is thrown. (9) 10 Vision of grained translation into 19 Lever open to find treasure. (5) immediate note recognition. (5-7) 21 Salad ingredient – only the tip is visible? 15 Berated corrected work. (6,3) (7) 17 Start street crier, who clears the 23 Point where representative is bound to be way. (7) bailed out. (7) 18 Derailed train that is in a state of 24 Nathan mostly takes chemical balance immovability. (7) on board; it provides illumination perhaps. 19 Father takes most of April and a (7) kick start to prepare seasoning. (7) 25 View of symbol of mathematical precision 20 Opening with the first letter. (7) embedded in pungent vegetable. (7) 22 Downward force on broken 26 Rioting rabble of a church I attend; it’s stringed instrument shown on no excuse for this misdemeanour. (6,2,4) chart. (5)

Please send your entries for the Summer competition with your name and address to Mrs T Reed JP, Melverley, The Warren, Ashtead, Surrey KT21 2SP by 1 August 2003. First correct entry will receive a £15 book token. The winner of the May 2003 competition was Ms Sue Dodd of Warrington. SOLUTION TO JUNE PUZZLE Across: 1. Forfeited; 6. Refit; 9. Criminal offence; 10. Lawman; 11. Skittles; 13. Seychelles; 14. Spur; 16. Read; 17. Steeliness; 19. Terrible; 20. Courts; 23. Hearsay evidence; 24. Deeds; 25. Riderless. Down: 1. Focal; 2. Railway carriage; 3. Epitaphs; 4. Tray; 5. Doorkeeper; 6. Refute; 7. Final appearance; 8. Treasures; 12. Platelayer; 13. Scratched; 15. Disorder; 18. Kiosks; 21. Seeks; 22. Diva.

Magistrate 222 Summer 2003 Advert(s) Court rise

JP Winger shares amusing moments in court. If you would like to contribute please write to the: Magistrate, 166 Broomwood Road, London SW11 6JY. E-mail: [email protected]

blushed as a marijuana joint Transparent justice fell from his hat and Radiographer Hilary dropped to the floor. The Winfield was chairing a teenager is now doing jail court in Kettering, time. Thanks to Chris Smith Northants, when she JP, Dudley for spotting the realised that she had report. recently X-rayed the defendant. She asked the defence solicitor if he Ceps maniac wanted her to step down. The HGV driver in the He replied that he was dock had pleaded guilty to rather concerned that she several tachograph offences. would be able to see right By way of mitigation, his through his client. Thank solicitor explained how you Peter Turner JP. his client’s work involved delivering mushrooms from Northern Ireland to England. It may have been written Hats off He helpfully added: Pecking order by the same person who The New York Times ‘Because these are fresh Neath magistrates in South created the following sign, reported the fate of a mushrooms, his work Wales were intrigued when a spotted in a Paris hotel lift. teenager who was in court schedule means that he raven began tapping on the Please leave your values at on a traffic summons. cannot keep within the law.’ courtroom windows and the front desk. Politely taking off his hat Thank you, Paul Helmn skylights. One solicitor told when the judge walked into JP of Chorley Bench in the local paper: ‘Defendants the courtroom, the teenager Lancashire. of a nervous disposition are What a dope quite chilled by the sight of a My thanks to Ann Clayton big black bird looking down JP of the Liverpool Bench on them.’ He said a rumour for jotting down the YESTERDAY’S JUSTICE was going round that the following question, posed A copy of a letter to the Lord Mayor of London was bird had been a criminal in by the defence solicitor to published in The Magistrate of January 1941. a past life, and had returned his client in the youth court. 1st January 1941 to haunt the place. A ‘Was it your idea to enter My Lord Mayor, spokesman for the Royal the derelict house to smoke On behalf of the members of the Magistrates’ Society for the Protection a spliff, or was it a joint Association, I should like to express to you and the of Birds said the raven enterprise?’ members of the City Corporation our profound grief probably thought its at the destruction of Guildhall by enemy action. reflection was another bird This Association came into being in the Council Man of mystery trying to muscle in on its Chamber 20 years ago, and since that time we have territory. ‘Put some paper Court exchange reported by met there annually under the auspices of the Lord over the windows,’ he overseas correspondent Mayors. Our members, I know, have many pleasant advised. Graham Capewell. recollections of the courtesy extended to them by all Lawyer: Are you concerned, and I am sure I am voicing their wish when married? I say that we sincerely hope that the Guildhall, with all Room service Witness: No, I’m that it symbolises, will rise again to carry on the I am grateful to the divorced. traditions with which it has always been associated. magistrate who let me know Lawyer: And what did I am, my Lord Mayor, about the following sign in a your husband do before you Yours faithfully, hotel room in Thailand. It divorced him? E. Marlay Samson, Chairman read: Please do not bring Witness: A lot of things I Magistrates’ Association solicitors into your room. didn’t know about.

Magistrate 224 Summer 2003