IN PRAISE OF THE JUDICIARY
COUNT 21
LORDS JUSTICE STEYN
LORD JUSTICE RODGER
LORD JUSTICE CARSWELL
LORD JUSTICE BROWN
BARONESS HALE
Five Law Lords stood up for crime victims by ruling that police should be
allowed to build the largest possible database of DNA and fingerprints. In a
landmark ruling they said the Human Rights case against storing the details
of suspects who are later cleared was ‘threadbare’. In two test cases brought
against South Yorkshire police it had been argued that holding the
information would be unfair on people who were acquitted or who had
charges against them dropped. But Lord Brown said the rights of crime
victims also needed to be taken into account, adding that the benefits of a
larger database were ‘manifest’. He said: “The more complete the database,
the better the chance of detecting criminals, both those guilty of crimes past
and those whose crimes are yet to be committed.” The decisions by Lords
Steyn, Rodger, Carswell, Brown and Baroness Hale, uphold earlier High Court and Appeal Court rulings in favour of police – at last – common sense prevails!
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LORD JUSTICE BROOKE
Appeal Court Judges have outlawed appeals that enable ‘unmerited’ asylum
seekers to extend their stay in Britain. The ruling means the Home Office
need not wait until the legal process is exhausted before removing those
with hopeless claims. Previously, failed refugees who went to the Court of
Appeal were automatically granted a stay of deportation, however weak
their case. The ruling is expected to save hundreds of thousands of pounds
of public money spent on legal aid and court expenses. Lord Justice Brooke
told the Court of Appeal: “ The practice of pursuing a further appeal to this
court in a judicial review matter in the immigration and asylum field, has
given rise to very serious abuse. Appellants are pursuing wholly
unmeritorious appeals simply to delay the time when they are to be
deported.” He said that before cases reached the Court of Appeal, they had
already been turned down by two High Court Judges, who give ‘anxious
scrutiny’ to all applications, and the Immigration Appeal Tribunal. But if a
refugee made an application to the Court of Appeal within seven days of
losing at the High Court, the Home Secretary deferred removal until the
legal process was completed. In future, a stay on deportation will be granted
only following a special application to a judge. Lord Justice Brooke said the
ruling was made following talks with leading judges, including Master of the
Rolls Lord Phillips, and called for it to be widely publicised to help cut down
on hopeless appeals. The Home Office welcomed the ruling, saying it
supported the aims of the Government’s immigration policy.
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MAIN ENTRANCE - ROYAL COURTS OF JUSTICE, THE STRAND, LONDON WC2
LORD JUSTICE KENNEDY
AND MR JUSTICE TREACY
Yobs who cause misery should not complain when they are named and
shamed, High Court judges ruled on 7th October 2004. In a crushing defeat
for the human rights lobby, they cleared the way for councils to plaster the
photographs of louts on posters and leaflets. Lawyers for Liberty had said
publicising the details of three gang members responsible for an ‘epidemic’
of crime was a breach of the controversial European Convention on Human
Rights. But, in a victory for common sense, Mr Justice Treacy and Lord
Justice Kennedy said the strategy was ‘justified, reasonable and
proportionate’. They also attacked delays in the court system caused by
bringing the case, which has cost the taxpayer an estimated £250,000.
Home Secretary David Blunkett, who announced plans for increased
naming and shaming of tearaways, welcomed the verdict. “We are pleased
that the judge recognised the rights of the community.” his spokesman said. The case was brought on behalf of Jovan Stanley, 16, William Marshall,
17, and Martin Kelly, 19 who were handed ASBOs after inflicting misery on
a housing estate in Brent, London. They were members of a gang blamed
for smoking drugs, plunging homes into darkness by removing fuses from a
communal fuse box, abusing and threatening residents, aggravated vehicletaking,
assault, carrying offensive weapons and starting fires. A total of
seven gang members were hit with ASBOs, which banned them from
causing further misery on the estate, by Brent Council and the Metropolitan
Police.
But Stanley, Marshall and Kelly complained the right to protection of
their private and family life under Article 8 of the Human Rights Act, had
been infringed by the wide-ranging publicity which followed Brent’s
decision to put their faces on leaflets and in a newsletter. The court was told
they were seeking a moderate sum in compensation. But, throwing out the
claim, Lord Justice Kennedy said: “It was clear that publicity to inform,
reassure or inhibit behaviour is unlikely to be effective unless it includes
photographs, names and at least partial addresses. Not only do the readers
need to know against whom orders have been made, but those responsible
for publicity must leave no room for mis-identification.” Ann John, leader
of Brent Council said: “The young people in this case had been involved in
serious and persistent bad behaviour, which was often of a dangerous,
threatening and violent nature, and the residents who were affected were
terrified in their own homes.” Christopher Johnston for the Police, had told
the High Court that it was hard to imagine ‘the hell of the residents’ daily
existence’ at the hands of the gang. Councils currently can name under-18s
who are made the subject of an ASBO but cannot publicise details of those
who go on to breach the order.
At the recent Labour Party conference, Mr Blunkett unveiled plans to
change the law so that under-18s who break an ASBO can be banned for the
first time.
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MR JUSTICE JAMES MUNBY
HIGH COURT FAMILY DIVISION
In April 2004, a High Court judge slammed the family justice system saying
it ‘failed’ a father who has not been able to see his daughter for more than
two years. The man, who cannot be identified, has been forced to give up
his five-year battle for access to his seven-year-old girl after 43 court
hearings. His ex-wife has continued to ignore orders allowing him contact
with the child. Mr Justice James Munby, a respected Family Division judge,
said the courts were making ‘victims’ of some fathers. Apologising to the
man, he said: “We failed them. The system failed them. It is very
disheartening. I am sorry there is nothing more I can do.” He called for short jail sentences of up to three days for mums who do not comply with
contact orders, and said sweeping changes were required. Judge Munby
attacked the ‘sheer length of the proceedings’ in the case and the number
of different judges, 16 at 43 hearings, who heard it. Proposing allocating
cases special timetables that could be measured in weeks or months, rather
than years, he said a sole judge, or at the most two, should hear complex
cases. Children should get separate legal representation and skilled social
work intervention, he added.
He then said: “There is much wrong with our system and the time has
come for us to recognise that fact and to face up to it honestly. If we do not
we risk forfeiting public confidence.” He said the system made victims of
the fathers more than the mums. The couple had separated in 1998, but
almost immediately there were problems with visits and since October
2001, the dad’s only contact had been through letters and cards. The mum
was jailed for two weeks in 2001 for ignoring court orders. Judge Munby’s
remarks came on a national day of protests in Family Court offices by
fathers. Matt O’Connor from civil rights group Fathers 4 Justice said: “ It is
a jaw-dropping judgement. Twelve months ago such a judgement would
have been unthinkable. Let no one forget the outcome was still the same.
Another father has lost his child.”
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LORD COULSFIELD
HIGH COURT JUDGE
Lord Coulsfield, who was the Trial Judge at the Lockerbie bombing trial,
and one of Britain’s top Judges, has shaken the Home Office by declaring
that the British criminal justice system has become a laughing stock,
because of releasing convicts from their prison sentences too soon.
The public’s confidence has been undermined by Home Secretary David
Blunkett’s tagging scheme. Lord Coulsfield has demanded that prison
sentences should ‘mean what they say.’ He went on to say that Mr Blunkett’s
‘custody plus’ policy, where criminals spend up to three months in jail,
followed by 6 months of external supervision in the community, has ‘little
or no value’ in reforming or the deterrence of offenders. This Judge’s
enquiry, with funding from the Rethinking Crime and Punishment group,
has backing by MPs and some victims’ groups. It was stated that more than
3,600 crimes were committed by early release scheme offenders, since the
policy was introduced in 1999. The figure of 3,600 includes the following
categories of offences:
9 sexual offences
462 assaults and muggings
163 burglaries LORD COULSFIELD
47 robberies
306 drugs offences
Comment from the Shadow Home Secretary David Davis, was as follows: “David Blunkett is more obsessed with emptying prisons than punishing
criminals. Tagging should be used as an addition, not an alternative to
prison. Sentences should fit the crime, not the number of cells available.”
Norman Brennan, director of the Victims of Crime Trust was interviewed and said: “The Judge speaks common sense and David Blunkett should take notice.” The existing HDC (Home Detention Curfew) scheme allows convicts sentenced to less than 4 years in prison, to be freed even earlier than normal, and the scheme was obviously introduced in the first place to ease serious overcrowding in prisons, which throughout 2004, have been
almost at breaking point. The normal release time scale for the less serious offenders is approx halfway through their original sentence. However, if considered trustworthy and suitable for the tagging scheme, they can be released an extra 135 days earlier.
An example of how ludicrous the system can be is illustrated by the behaviour of career criminal Brendan Fearon, who was shot in the leg by farmer Tony Martin, during a raid with others on Mr Martin’s farmhouse. Fearon, 34, had been released less than a third of the way through his sentence of 18 months for dealing in heroin. However he breached the tag requirements by driving without insurance, and was returned to jail. Lord
Coulsfield went on to say: “It’s a framework we think is unfortunate, because it interferes with the court’s decision. It is another thing capable of suggesting to the public that what the court says, is not what actually happens.” The recent report by the Rethinking Crime and Punishment group in November 2004, said sentencing should be more transparent.
Lord Coulsfield said a criminal sentenced to two years imprisonment should serve a full two years behind bars. His enquiry declared that people sentenced to non-custodial punishments, such as fines, probation or community service, should be ‘sent down’ from the court dock as if being jailed, so that they can arrange their first fine payment or probation session etc. At the moment they can just leave the dock, walk to the back of the court and depart with waiting friends or family. The senior Judge further stated that local residents in the criminal’s home area, should have some input into which community service projects should be addressed by the offenders.
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MRS ZINNIA WATSON
FORMER MAGISTRATE IN WILTSHIRE
The following article from the press was headlined in bold as follows:
' JP QUITS BECAUSE SHE CAN’T SEND BURGLARS TO JAIL '
It’s very important for me, the author, that you should hear this story ‘straight from the
horse’s mouth’ so to speak, so I’ll report it verbatim from its origin.
“A Magistrate has retired early because she is unable to accept new
guidelines ordering JPs (Justices of the Peace, viz: Magistrates) to go
soft on crime. Zinnia Watson says the last straw was a ruling from Law
Chief Lord Faulkener, insisting that house burglars should go to
prison only in extreme cases. She branded the system in some
counties as ‘fairly shambolic’ and added: “Sentences are being
dumbed down and the public is not being well served.” Mrs Watson, a
Magistrate for nearly 20 years in Wiltshire, said: “Lord Faulkener has
just told us that people who commit house burglary should not go to
prison except in extreme circumstances. Burglary was always thought
serious enough for the burglar to go to prison, not to be rehabilitated,
but because the public deserve to be protected. It is a crime that
makes people feel totally unsafe. People have heart attacks. The
victim really suffers because they don’t feel safe in their homes any
more. I couldn’t possibly sit there and be lenient with somebody who
has just destroyed somebody else’s lifestyle. But our hands are tied by
the guidelines. There’s nothing we can do about it.” Mrs Watson said
that political correctness and the increasing emphasis on individual
(criminals’) rights was also making the system unworkable. “It isn’t Lord Faulkener who has dumbed down sentences. It started with Lord
Irvine and the move towards Europe. We are taking a lot of laws that
are absolutely sound to ridiculous proportions” she said. She spent
most of her career in Salisbury, but more recently sat in Chippenham
and Devizes. She added: “People used to be Magistrates because they
knew their towns really well. Now benches are joined together, I sit in
places where I don’t automatically know the deprived areas. Crime is
increasing because family life has broken down in certain sections of
society. The children feel unwanted and the teenagers get into the
drugs scene. There is no point in putting people like that in prison.
We should have residential rehabilitation centres.” She is distrustful
of crime statistics which suggest certain offences are being reduced.
“The idea of Police warnings (Official Cautions) was to reduce the
number of cases that came through the Courts, but some counties are
giving far more warnings than was first envisaged,” she said.
Mrs Watson obviously speaks from experience and must have had
thousands of people appearing before her in Court. How sad that, having
given such good (voluntary) service in all that time, she is forced to leave
the Bench prematurely, as she feels her hands and those of her colleagues
on the bench, have been tied. (I wonder if you are now wondering whether
Lord Faulkener, Lord Woolf and Lord Irvine have ever experienced the
traumas of a burglary?)
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ANONYMOUS CHAIRMAN
OF BENCH OF MAGISTRATES
On 1st November 2004, an anonymous chairman of a bench of magistrates,
(Name and Address supplied), wrote the following letter to the Daily
Express newspaper, and had it published:
“As a chairman of magistrates, I have received full training in the application of anti-social behaviour orders (ASBOs), and know they have a genuine potential to tackle persistent offending. They are already doomed to fail, however.
At the time of my training, we were told that two out of three people who breached the orders had been imprisoned. But this figure is, I believe, already failing. It is this very basic weakness that must be addressed. Certainty must be built in. All those who breach an ASBO must be jailed, if the system is to work. The same weaknesses appear
in the excellent Community Penalty programmes, where those in breach must learn to expect custody, instead of magistrates being bullied from on high, to jail only in the most extreme circumstances. Getting tough would actually reduce the prison population in the longer term.”
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MR DEREK LEGGETTER
FORMER MAGISTRATES COURT CHAIRMAN
During the last quarter of 2004, the Daily Express newspaper launched a
‘crusade’ to help force through fresh legislation which would allow
Magistrates and Crown Courts to hand out tougher sentences. A Mr Derek
Leggetter suggested there should be a separate ‘special roads constabulary’,
quite separate from the various Police Forces. Furthermore, he suggests
that the Crown Prosecution Service should be disbarred from having
anything whatever to do with any cases involving car crimes etc.
Under his proposed scheme, he feels that victims of road crimes would
receive a better deal in court. He speaks with some authority, as he sat on
the Bench in a North London Magistrates Court for 24 years. He is now
running the only road law training course for magistrates in the whole of the
United Kingdom. Year-on-year, approx 3,500 members of the public are
killed on our roads, by drivers. His research appears to indicate that most
of the drivers responsible for these tragic deaths, escape with fines and/or a
few penalty points. Currently across the UK, such crimes are invariably
investigated by police officers employed in the Traffic Departments of the
various police forces. The Daily Express crusade has called for a new
offence of ‘death by driving’, and Mr Leggetter apparently supports this. He
stated in an interview: “An entirely separate police force is essential,
because the existing ones clearly can’t cope with a system that doesn’t
work. We need specially trained officers who will not be wrenched away
from traffic, if there is a manpower shortage elsewhere, which is what is
happening now. We must then dump the CPS, which has been an absolute
disaster when it comes to road crime prosecutions.Magistrates will tell you
that day in, day out, they see the CPS solicitor come into court with little
or no knowledge of traffic issues. But the guy defending is an expert,
because that’s what he’s paid to do. The defender simply makes mincemeat
out of the prosecutor.” (This never used to happen when police prosecuted
most of their own cases, in pre-Crown Prosecution Service times, as police
officers, particularly in the various traffic departments, had an excellent
working knowledge of past and current traffic legislation). Mr Leggetter
went on to state that magistrates throughout the UK felt frustrated that their
hands were relatively tied, in that they cannot issue tougher sentences. He
added: “ You feel like your hands are virtually tied. If a person comes into
court and pleads guilty, you have to cut their sentence by a third. Then any
financial punishment has to be set by what they claim they earn. If you don’t go along with it, they’ll simply appeal and win the day. That shouldn’t
be happening. Sometimes I would say to a family, sitting at the back of the
court, ‘we know your feelings and you’re not going to be happy with the
sentence we give out today. You’re not going to get the penalty you want but
our hands are tied’. That’s the point where the clerk of the court would turn
to me and tell me off, saying, ‘You can’t say that’, but I’d say it anyway.
Magistrates haven’t spoken about this nearly enough, because we’ve always
had to be guarded.
At the moment, the Government isn’t listening, so we just have to keep
screaming at them. We’ve got to get rid of trying to equate the penalty for
road crime, with the penalty for ordinary crime. If someone gets three years
for road crime they complain and say: ‘I wouldn’t have got that for a
burglary’. But the two are entirely separate.” He went on to say that the
Driving Standards Agency figures suggested police were failing to keep tabs
on probably the most dangerous class of driver, those who are newly
qualified, young and likely to be quickly banned.
In the mid-90’s, new legislation was introduced so that drivers
accumulating six points on their licence within 2 years of passing their
driving tests, would have their driving licences revoked. The most recent
figures for the period November 2003 to July 2004 reveal that as few as half
of drivers banned from driving by the courts, have applied for re-tests. Last
July the totals were 1,443 revoked, 722 re-applied. Does this mean that all
of those other people are driving around without licences? It’s a fair
assumption that quite a few are. The situation is appalling and the system
is obviously failing us.”
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A Premier Prison Services cellular vehicle delivers prisoners to Royal Courts of Justice
MRS ADELINE SMITH
RECENTLY-RESIGNED MAGISTRATE
FORMERLY OF COALVILLE MAGISTRATES COURT
A magistrate has been forced to quit after demanding that all burglars
should serve at least six months in jail. Her treatment caused outrage
among campaigners, who branded the move ‘a licence for burglars to
continue reoffending’.
Adeline Smith spoke out in her local newspaper after her home was
targeted by raiders. But the unrepentant veteran JP admitted that her job of
26 years was over when defence lawyers said their clients accused of
burglary might not receive a fair trial if she sat on the bench. Her views
were backed by the director of the Victims Of Crime Trust, Norman
Brennan, who said: “Time and time again burglars get away with
community service, which gives them a licence to continue. This magistrate
clearly understands, like all victims, the devastation this type of crime
causes. It’s sad her views have cost her her job.”
Mrs Smith was suspended just days after Tony Blair turned his back on
home owners by refusing to give them greater rights to fight back against
burglars. Her outspoken words cost her a seat on the Coalville bench in
Leicestershire, when she received a letter suspending her from service
following a complaint from defence solicitors to the court clerk. Labour
councillor Mrs Smith, 68, said yesterday: “I am disgusted at the way I have been treated, as all I did was speak my mind. “I got a letter telling me not
to sit until the issue was resolved. I was put in a position where I had no
option but to resign. I have raised the same subject many times at
conferences. Anyone who breaks into a person’s property should face a
minimum fixed term in jail. “I don’t think justice is done when a burglar is
not sent to prison. At the moment they can be let off with probation or some
other non-custodial sentence.”
Nick Watson, director of legal services to the Lord Chancellor’s Advisory
Committee for Leicestershire, said he was told solicitors defending clients
charged with burglary had complained they ‘might not get a fair trial’ before
her. A spokesman for the Magistrates Association yesterday insisted
appropriate steps were taken after Mrs Smith ‘stepped out of line’. He said:
“It is important that justice is seen to be done. As a magistrate, you take a
judicial oath to treat everyone fairly and equally. If you go public and say
something like that then it can make things difficult and jeopardise the
perception that justice is being done. This is a very difficult case, and one
has sympathy in all directions. But you have to go back to the basics of that
oath every magistrate takes.”
Mrs Smith, a member of the Leicester Police Authority, who lives in
Coalville, insisted she was left with no choice but to resign. She said: “I am
a free agent and stand by what I said. Burglary is a terrible crime. I wasn’t
willing to apologise, and that’s why I had to resign. I am ending my
membership with the Magistrates Association. I don’t want to lose the right
to say what I believe is right for the sake of an unpaid job.
“You only have to see these burglars who reoffend time and again to know
they have nothing but utter contempt for the law.”
In a U-turn which defied overwhelming public opinion, the Prime Minister
refused to back Tory proposals to give people stronger powers to use
physical force to protect their homes and families. Instead they will be given
leaflets on how far they are allowed to go under current legislation, despite
a pledge weeks earlier that householders would be allowed to use maximum
force against violent intruders.
North-West Leicestershire Labour MP David Taylor, himself a former
Coalville JP, said he was appalled that Mrs Smith felt she had been forced
out. He said: “When I was sitting as a magistrate I always found Adoline a
very experienced, scrupulously fair, knowledgeable and considerate
colleague. Any suggestion to the contrary, from whatever source, is grossly
unfair and wholly unacceptable. I am dismayed that she felt it necessary to
resign.”
Mrs Smith’s bungalow was raided while she and her husband Harry were
away on a two-week cruise around the Canary Islands to celebrate their golden wedding anniversary. The burglars fled with thousands of pounds
worth of goods. Mrs Smith added: “When I think intruders have been in my
home it makes me feel ill. My view about burglars has always been the same,
it’s not just because I’ve been burgled. I’ve always felt it’s a violation of
people’s homes.” Last year 402,000 households were burgled, meaning that
one in every 50 homes is broken into each year.
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