Answer Time Part Two

These are the answers to the questions that were emailed to me. I have removed information that I think could help identify people, or where requested. 

Hi there 

I know it doesn't begin with a 'p' but would welcome your thoughts on the magistracy. I attended court 3 times this year and made an application only to be told that there are no vacancies this year. Faced with the prospect of waiting for another year to apply (with the possibility of there being no vacancies again) I am now questioning whether it is going to be worth it. Based on my experience in court I think I could make a positive contribution and would add some 'variety' to the bench. On the more negative side I have heard from others that it can be quite mechanical and tedious.

I would be interested in your thoughts as someone on the opposite side (so to speak).

I look forward to hearing from you.

Thanks for the opportunity to pose a question

My pleasure. I would encourage anybody with an interest to consider becoming a magistrate. Bystander's blog would be an excellent place to start reading, if you haven't already found it, that is. It is a thankless volunteer position, continually under attack, and is consistently oversubscribed nonetheless. That should tell you all you need to know.

The strength of the magistracy is the variety that comes from its members. People from all walks of life, from unemployed single mums, to Harley Street consultants and bankers, sit as magistrates, judging their fellow citizens, making decisions with life-long ramifications for all involved. It's a position of great responsibility, and isn't to be taken lightly. As far as ages go, many come to the bench later on in life, and their wealth of experience is very much welcome. If you think you have something to offer, persevere with applying. 


Hi,

Just saw your offer on your blog, so here is my question. 

I am a witness for the prosecution [in a manslaughter case]. I made a statement to the police over a year ago, & the case doesnt commence [for some time]. Can I re read my statement prior to the case?, as over time i'm sure that my subconsious has blanked a lot of it out, It was quite a messy do. & I would not like to cause embarrassment by not remembering on the day. 

Regards

Don't worry! Prosecution witnesses are allowed to read their statements as a matter of course before the trial starts. This usually means reading them on the same day. If a witness needs to refresh his or her memory in the box, that is permissible in certain circumstances. Hopefully, the Witness Care Unit at court will provide you with a copy of your statement on arrival, arrange a visit of the actual court room to familiarise you with the layout, and introduce you to prosecution counsel.


You asked for questions. Here is one: Many years ago (back in the late 1970s), solicitors representing people who were likely to be summonsed for motoring offences were able to make written representations to the Chief Inspector in charge of the local constabulary's admin unit in advance of a summons being issued. My solicitor tells me that it is no longer possible to make written representations in advance of the summons being issued (i.e. you have to wait for the summons and then write to the CPS). Is he correct? [The case has already been dealt with, by the way].

Cases are still sometimes adjourned for written representations to be made by defence solicitors as to whether or not a case should proceed / a defendant should be cautioned, etc. These “written reps” are not usually fruitful. Writing to the police is an exercise in futility. They will simply refer you to the CPS. 

If someone is in custody, an experienced defence solicitor with a good relationship with a custody sergeant can sometimes help steer a matter into the long grass. Rarer than hen's teeth these days.


Hi there AP, You asked for questions – here is one. It is a particular bugbear of mine, and the sort of thing that Shami Chakrabati bangs on about all the time, with some justification. It is about the extent of the CPS discretion to bring prosecutions, and what to do if it goes wrong – in the context of offences that are ‘drawn too broadly’.

The favourite example is consensual kissing between 12-year-olds contrary to Sexual Offences Act 2003, but the more topical one is possession of a prohibited weapon contrary to s5 Firearms Act 1968. 

To avoid talking about current cases, let us take an (admittedly extreme) example. 

Albert is a bad guy in Walsall. He owns a sawn-off shotgun, which is a prohibited weapon and he knows it. Tsk tsk.

But he is also old and frail and one day he dies. Bertram is an upstanding and friendly local solicitor in Walsingham. Unfortunately for him he is also the executor of Albert’s will – not that he knows where Albert lives at the moment, or even that Albert is dead, or that he ever had anything to do with guns.

However, as we all know, the property of the deceased immediately vests in his executor (if he has one). So Bertram is now, completely unknown to himself and without any possibility of finding out, in contravention of s5. 

Cedric is a DI, who comes across the said shotgun, tracks down the legal owner (Bertram) and charges him. Don’t blame Cedric, he is desperate for recognition after all the name-calling for being called Cedric – and my goodness is he going to get some recognition. 

Duncan is a dopey prosecutor on an off-day and not given the full facts by Cedric. He decides to prosecute. Don't blame Duncan, it isn't his fault. Given what he was told it was the right decision. 

What happens next?  

Bertram faces a minimum five years imprisonment, removal from the Solicitor’s Roll and loss of his livelihood – all for doing nothing at all, let alone doing anything wrong. It was clearly not in the public interest to prosecute, but on the other hand the facts behind it not being in the public interest do not form part of the offence and are not available to Bertram in defence. 

We all know that things should not have happened this way- but it is too late to fix that now.

So, what should happen next? What can be done?  

Best wishes - enjoying the blog  

phisheep [pseudonym of regular contributor left in]

Fortunately for the upstanding solicitor of Walsingham, the gun legally vesting in him as executor is not enough. The gun must be under his custody and control, i.e. physical possession. 

For example, if you knowingly possess a holdall, but don't know of its contents (usually because you've turned a blind eye), you are deemed to be in possession of its contents. If someone breaks into your lock-up garage, which you visit once a year, depositing several kilos of hard drugs therein, you aren't in possession of them. When you open the garage, touch nothing and call the police.

If the Bertram is charged, his solicitors should write to the CPS asking them to review the matter carefully – they should cite authority as to what possession requires, which can be found in Archbold in the chapter on controlled substances.

In addition, the public interest test must still be satisfied for offences of strict liability. In fact, I'd say it becomes even more important. 

If the CPS are determined to bring such a dangerous criminal as Walsingham's finest solicitor to justice, his representatives could judicially review the decision to prosecute. 

Failing that, I'd ask the matter to be dealt with as a preliminary issue – a voire dire seems necessary, and a sensible Crown Court judge would weed this case out long before it got near a trial court. 

I think the issue is a little more difficult for Bertram if he attends the house of the deceased, finds the gun, and takes it to the police station to hand in. The elements of the offence are now made out.

Strictly speaking, he is liable to a 5-year term for possessing a prohibited firearm contrary to section 5 (1) (aba) of the Firearms Act 1968. 

If writing to the CPS, judicially reviewing the decision to charge, and asking nicely all fail, then all is not lost. The judge still has the power to depart from the mandatory sentence in exceptional circumstances (R v Jordan, Alleyne and Redfern [2004] EWCA Crim 3291). 

Admittedly, if he is convicted of a firearms offence, Bertram risks being struck off, and receiving an absolute discharge may be cold comfort. Likely sentence is a factor in any decision as to the public interest. And round and round we go!


Dear AP,

Sorry if this has been covered before in your blog, but I'd like to know why prisoners always seem to serve only half their sentence? Or is that Daily Mail propaganda?

Surely, time off for good behaviour should be no more time for bad behaviour?

Cheers

The government has decided that those serving custodial sentences will serve half of their time in prison, and the rest “on licence”, i.e. outside. They are supposed to be watched closely by probation, reintegrated into society, etc. All a great idea, of course, but difficult in practice, and very difficult to understand for those who see people getting 6 months jail being re-convicted after 8 weeks. 


How do you feel having had a successful prosecution when the bench sentence the defendant to 4 weeks immediate custody, burglary non-dwelling, at night, empty building, Serco call the prison, Governor's policy is to release, Serco carry out risk-assessment in the Serco van, and release defendant with the release grant in his grubby mitts? Having never seen the inside of a gaol, of course.

The answer, fairly obviously, is “pissed off”. Someone has something inside a building, that they have (probably) paid for, and left securely locked up. It might be a bicycle, a computer, a TV, whatever. In every case, its theft is a royal pain in the arse – damage to repair, insurance premiums go up, you're stuck without it for days, maybe losing income / mobility as a result. 

Scrotey McDoleScrounger wants it, can't be arsed to get a job and save up money to buy it, and decides that he'll just take it, thanks. Taxpayers' money is spent catching and convicting him, and the bench have decided that the offence is so serious that only custody will do, and in so doing, have ruled out community orders and other rehabilitative sentences. He is then released immediately. The farcical nature of that situation should be apparent to anyone. 

Those of you who voted Labour in the second time round are partly responsible. I say “second time around”, because, in fairness, their 'legislative diarrhoea' approach to the criminal justice system was not apparent in '97. However, this is an entirely typical result of the “legislate first, think later” approach that became rapidly apparent after the first few years of that particular government.

Criminalising so much behaviour, without expanding the prison estate, was not a smart move. Increasing sentences to appear 'tough', or to react to a populist concern, was not a smart move. Legislating in response to headlines, and in order to generate headlines, was not a smart move.

Releasing people early to make space is the inevitable result. Sentences should be exactly what they say on the tin – “8 weeks immediate custody” should be eight weeks of seven days each, not 4 weeks, less 18 days for early release, which makes 10 days inside, instead of the 56 the judge meant. 


I am a student studying law, and have done some work experience with local criminal law firms. Dealing with offences out of court is primarily a game of chance, so I'm told. One police officer would offer cautions for seemingly serious offences, and another would recommend taking someone with no previous convictions to magistrates over things like shoplifting with no PND or simple cautions. I read somewhere that the CPS can refuse to proceed with a case if they feel that a caution is more appropriate. However, I have never known this to happen.

So my question is: can a solicitor / accused apply / appeal for a caution? Or is it just a lottery?

I have personally written numerous emails to officers asking them to arrange for someone to be cautioned. If you get a caution unexpectedly for a serious offence, seek legal advice and seriously consider taking it. If you are charged where you think a caution is more appropriate, you can certainly write to the CPS and ask for a caution to be considered. 

Defence reps and officers alike, take note – even where no admission was made at the time, the caselaw says that if a caution is offered, the offer must be considered.

Take further note – if you are, as the kids would say, taking the piss, then that consideration may consist of as little as three-tenths of a second.