There's nothing as queer as evidence

Sad as it may be, we all have 'favourite' judges. Whether it's because we particularly like them or whether it's because it is simply better to appear before them than their colleagues, I'm not sure. Either way, I appeared before one of my favourites recently. He's a favourite because I am yet to lose a trial in front of him. I have no doubt that it's just a coincidence but it's a coincidence that I happen to like.

Recently, however, I thought the game was up. Some months prior I had attended the Crown Court to represent a gentlemen at his PCMH. The charge was one of dangerous driving. The evidence appeared overwhelming. The story goes like this- it was about 23:30 and a police car was making its way along a (not very busy) main road. The occupants comprised the driver and his colleague who was sitting in the front passenger seat. Their "attention was drawn" to "two flashy sports cars" that were travelling, one just behind the other, in the opposite direction to the police car. As the cars passed the police car, the police officers both noticed that the drivers "seemed very young to be driving such expensive cars" (one was a Porsche which was being driven by my client, the other was a BMW being driven by the Co-Defendant). The police car turned around in order "to follow them to see what they were up to". The suggestion then was that both officers witnessed the BMW pull up alongside the Porsche (the BMW now being on the wrong side of the road) and the two cars "began to race". The officers said that the police car was doing "at least 60mph" at one stage along the main road but was unable to catch up with the cars. One officer alleged that there was "a near fatal" collision with a bus at one point. (There was no evidence from the bus driver). The police radioed their colleagues and fortunately for them there were two police cars nearby. One was parked at the top of the main road near a roundabout. The other was travelling down another road which led on to the roundabout (from the opposite direction of the main road). There were two officers sitting in the car which was parked near the roundabout. They both said in their statements that the Porsche and the BMW approached the roundabout at "excessive speeds" (the speed limit being 30mph) and that the BMW went the wrong way around the roundabout. The Porsche "went over the top of it" and stopped (as did the BMW) when they was "flashed" by the third police car that was approaching the roundabout from the opposite direction. Both of the drivers were arrested and both denied driving dangerously in their respective interviews. They said that they were observing the speed limit at all times, they were not racing, there was no driving on the wrong side of the road, they did not pass a bus, and they stopped when required to do so by the police.

At the PCMH, I gave fairly strong advice to my client. In short, there were 5 police officers who were going to give damaging evidence against him at trial. They all alleged that he was travelling over the speed limit, two alleged that he was "clearly racing" on a main road where there were other road users, one alleged that he nearly collided with a bus, and another two said he approached the roundabout at an excessive speed (one added "in a dangerous manner"). Believe me when I say that the totality of what was contained within the witness statements was far from good. However, the client was adamant that he had done nothing wrong. That was good enough for me. A not guilty plea would be entered and we would let the jury decide who was right.

The following weekend I decided to go and have a look at the road in question, it being not too far away from where I live. I went at night in order to get a realistic impression of what it must have looked like to the participants involved. Two things were of interest- (i) there were CCTV cameras at various points along the road- I'd already made a request in my Defence Statement for any footage but now at least I knew that the area was 'covered'- and (ii) The road was littered with moderately high speed bumps- they were of the sort that you had to go over, there was no getting round them. How, I thought to myself, was my client supposed to have driven a Porsche of all cars at the speeds alleged without destroying the front of his car? I took some photographs, knowing that I wouldn't be able to use them in evidence, as an aide memoir. I would later ask my solicitor to take some more so that I could use them in evidence.

The trial was listed for three days. I shall not rehearse the entire evidence. On day one the two officers from car number one gave evidence. An extract from the cross examination of officer number one (the driver) is as follows-

Me- You said in your evidence that you were travelling at about 60mph?
Officer- Yes.
Me- How do you know that?
Officer- I looked at my speedometer.
Me- And you did that all the way along the main road?
Officer- Yes
Me- If you're correct about that, the Porsche and the Mercedes were travelling much faster?
Officer- I am correct about that and yes they were.
Me- Did you have them under constant observation along the main road?
Officer- Yes
Me- How did they manage to navigate the speed bumps at that speed?
Officer- Sorry?
Me- The speed bumps. How did the drivers manage to navigate them at such speeds?
Officer- There aren't any speed bumps on that road.
Me- Really? Are you sure about that?
Officer- 100% sure
Me- Take a look at these photographs please. That's the main road isn't it?
Officer- Yes
Me- What are all these (pointing at the speed bumps)?
Officer- They are obviously speed bumps.
Me- That's funny isn't it, because you just told the jury that there weren't any?
Officer- Sorry, I got that wrong.

The officer's credibility had been annihilated. There was no way that the cars could have been travelling at the speed he alleged. I knew it, he knew it, the judge knew it and the jury knew it. My Co-Defendant's Counsel, in preparation of officer number 2 coming along (who alleged the near collision with the bus), asked as follows-

Co-Def- Tell the jury please about the near collision with the bus?
Officer- I'm sorry?
Co-Def- You know, there was nearly a big accident between the cars and an on-coming bus.
Officer- No there wasn't.
Co-Def- Are you sure about that?
Officer- Yes. I would have remembered if there had been a near collision with a bus.

We were now able to sit back and relax while officer two gave his evidence. He of course talked about the "in excess of 60mph" speed and the "near collision with a bus". The members of the jury could not have looked less impressed. Neither, for that matter, could the Judge.

The two officers who were waiting near the roundabout did not take the Crown's case much further. They were stationary and could give no realistic estimate as to how fast the cars were travelling. One officer clarified that when she said the Porsche went "over the top" of the roundabout, she meant that it took the "straight ahead exit", not that it literally went over the top of it. My Co-Defendant still had some difficulties because two officers gave evidence that he had gone the wrong way round the roundabout.

What did the jury make of it all? I don't know. In relation to my client the Judge upheld a submission of no case to answer and so the case was withdrawn from the jury. The Co-Defendant remained and I'm not sure yet what has happened to him.

So the simple point to take from this tale is that sometimes witness statements can be deceptive. A case can look overwhelming on paper but that is not always borne out in court. And, this Judge still remains one of my favourites.

Sureties and the trouble with the decision in Assange

On the 8th October 2012 the Chief Magistrate, Senior District Judge Howard Riddle, ordered 9 sureties to pay a total of £93,500 into court as a result of the failure of Julian Assange to surrender to the court as per the conditions of his bail. The decision of the Chief Magistrate so to do is, in my view, highly questionable.

What is the purpose of a surety? In short, a surety (or in this case sureties) is placed under an obligation to ensure that an accused person in criminal or extradition proceedings attends at court. If they fail in that duty then they risk having to pay a sum of money (the amount of which they have agreed prior to the grant of bail) into court. If the court granting bail considers that sureties are required, it follows that, without them, the court is fearful that there is a substantial risk of the accused person failing to appear at court. It is not, for example, the job of a surety to ensure that an accused person does not commit any offences whilst on bail or indeed interfere with any of the prosecuting authority's witnesses. Section 8(2) of the Bail Act 1976 details the sort of considerations that a court should have regard to when considering whether a proposed surety is suitable. Unsurprisingly, these include the character of the person proposed, the financial resources of that person and, importantly, the relationship between the surety and the accused. After all, the surety is supposed to be able to ensure that the accused attends court when required. Accordingly, a court should ask itself whether or not the proposed person/persons are going to be able to exert any degree of control over the accused in order to get him or her to attend court. If there is no relationship, or no close relationship, between the accused and the proposed surety, what is the point of accepting them? If the accused does not care one way or the other whether this person loses their money, the exercise is a pointless one (save that it might heighten the chances of the Government making some money out of the process).

Now it of course has to be right that the starting point, if an accused fails to attend court when required, is that the sureties must forfeit their 'pledged amount'. Otherwise, what is the point of the system? The court does, however, have a discretion to order that the sureties pay less than the sum they pledged or indeed pay nothing at all. Section 120(3) of the Magistrates' Court Act 1980 is drafted in clear terms:

"The court which declares the recognisance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum."

Thus in the present case, the Judge had three options open to him- (i) order payment of the whole sum, (ii) order part payment or (iii) remit the entire sum. The Judge here went for option (ii) which is interesting for reasons which I shall return to later. It will be noted, however, that even the order for part payment still required a very considerable amount of money to be paid into court.

It is also beyond doubt that the lack of any culpability, on behalf of the sureties, for the accused's failure to appear, is not of itself a reason not to require forfeiture of the relevant amounts- see for example Choudhry v Birmingham Crown Court (2008) 172 JP 33. However, as Lord Justice Parker observed in R v Reading Crown Court ex parte Bello [1992] 3 All ER 353, at 363,

"The failure of the accused to surrender when required triggers the power to forfeit but the court, before deciding what should be done, must enquire into the question of fault. If it is satisfied that the surety was blameless throughout it would then be proper to remit the whole of the amount of the recognisance and in exceptional circumstances this would...be the only proper course."

Were the circumstances in the case of  Mr Assange exceptional? Surely, the answer must be yes. Unusually, although it appears to be happening more often than it used to, the District Judge gave written reasons for his ruling which can be viewed on the judicial website-

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/sureties-julian-assange-08102012.pdf
 
Accordingly, it is possible to clearly follow the rational of the Judge, so far as it exists, for his decision. We can ignore the lengthy procedural history of the case (which for the purposes of this post is of little relevance) and jump straight to page 6 where the Judge summarises the arguments of Counsel and the Sureties. He says this:

 

"Mr Blaxland helpfully made the following points before withdrawing. The court has wide discretion. This is a unique and genuinely wholly exceptional case. Mr Assange has not absconded – he has sought asylum with a country with diplomatic relations with this country. The sureties had been surprised by the length of time these proceedings had taken to resolve.

Mr Vaughan Smith then addressed the court. He had been asked by the nine (I think he meant eight) other sureties to speak on their behalf as well as his own. I will attach the full address to this judgment. He started by saying that the sureties "appreciate that the court wants to know what the sureties may have privately or publicly done to encourage Mr Assange to submit to the British police since he entered the Ecuadorian Embassy on 19 June." He referred to the lengthy extradition challenge; the controversial circumstances; attacks by US officials on Mr Assange personally and through Wikileaks. If the sureties publicly urged Mr Assange to abandon the embassy, "it would undermine Mr Assange but we don’t believe it would do anything to extract him from the Ecuadorian Embassy. It would certainly be a very public betrayal and in our view, importantly, it would also betray the public." The sureties visited Mr Assange the day before. They were told that the Ecuadorian Minister of Foreign Affairs had investigated and found that Mr Assange’s fears of persecution by the United States and others were not unreasonable. He had been granted political asylum. He explained the continuing threat to him emanating from the United States. Mr Assange is convinced he faces serious risks in US custody. The securities cannot disregard that risk. They believe the Ecuadorian government is negotiating with the Swedish and British authorities, looking for a solution, and they hope that those discussions will be fruitful. Mr Vaughan Smith then described the huge amount of effort the sureties have provided over an unexpectedly long period. He ended "in this unique, and this quite exceptional case, to comply with what this court seems to expect from us; to all publicly urge Mr Assange to abandon the sanctuary that he has found in the Ecuadorian Embassy, would see us acting against a man whom we and others judge to have understandable fears about his ultimate treatment in the United States if he abandons his asylum. That would render us

mercenary and contemptible individuals of great weakness of character. It cannot be the right thing for us to do."

 

As Counsel indicates, this case was indeed "wholly exceptional". Mr Assange has not absconded in the traditional interpretation of the word. He has not fled the jurisdiction. He is not 'on the run'. He has sought, and more importantly been granted, political asylum. He remains in the United Kingdom under the protection of the Ecuadorian Embassy. Everybody knows that he is there.

 

Mr Vaughn Smith makes the point that, in the circumstances of this case, the sureties felt unable to comply with the expectations of the court- in other words to try and convince him to abandon his asylum, notwithstanding the fact that there remain justifiable fears, so the Ecuadorian Embassy has found, regarding Mr Assange's treatment in the United States.

 

The Judge publicly acknowledges the position the sureties have taken at page 7 of his ruling:

 

"I say immediately that I have real respect for the way that the sureties have conducted themselves in difficult circumstances. I am satisfied that what they have said and written accurately reflects their genuine views. In declining to publicly (or as far as I know privately) urge Mr Assange to surrender himself they have acted against self-interest. They have acted on their beliefs and principles throughout. In what is sometimes considered to be a selfish age, that is admirable."

In fact, he does more than acknowledge. He states that he has "real respect" for the way in which they have conducted themselves and indeed calls them "admirable" whilst also acknowledging that the circumstances in the present case are "difficult" ones.

But then the Judge appears to turn his back on the unique facts of this particular case. Instead he recites the history of the importance of the obligations placed on sureties and the consequences that will follow in the event they fail to fulfil them. This allows him to express his 'public policy' concerns over what would happen if sureties were not obliged to forfeit their pledged sums of money when an accused fails to attend court. He says, at page 8, this:

"There is clearly an important point of public policy involved. If a person accepts the responsibility of a surety, and the defendant fails to surrender as required, then the starting point must be that the surety is forfeited in full. It would be unfortunate if this valuable method of allowing a defendant to remain at liberty were undermined. Courts would have less confidence in the efficacy of sureties. It would be particularly unfortunate if it became established that a defendant who absconded without in any way forewarning his sureties thereby releases them from some or all of their responsibilities. In this case Mr Assange told the sureties that "he did not tell us of his decision because to do so would have placed us in legal difficulty" (see the statement to the court of Mr Vaughan Smith). In short, even if a surety does his best, he remains liable for the full amount, except at the discretion of the court."

With the greatest of respect to the Judge, this public policy argument, in the context of this case, is misconceived. By refusing to forfeit the sums pledged, the Judge was not about to change the law on surety forfeiture. Nor would he have undermined the system. Nor would his decision impact upon the way in which other courts had confidence in the efficacy of sureties. To suggest otherwise is, in my view, nonsense. This case was wholly exceptional.

When people fail to attend court, it is usually for one of the following reasons:

(i)    They have a reasonable excuse (e.g they have been admitted to hospital);
(ii)   They have forgotten that they have a court hearing;
(iii)  They simply can't be bothered to go to court; or
(iv)  They are in custody having been arrested on suspicion of committing another crime.

People do not, generally speaking, fail to attend court because they have been granted political asylum within an Embassy based on-shore in the United Kingdom. That is most unusual (if not unique). Therefore, a decision not to forfeit the sureties in this case would have had no greater consequences than to acknowledge the exceptional circumstances surrounding this particular case.

As noted above, the Judge did not, however, adopt this course. Nor did he require them to pay the full amount. Instead, he ordered part payment. This path was an interesting one to take. In some instances, it was as a result of a means inquiry. But not all. The Judge observed, at page 11 of his ruling, that

"Having seen and heard from the sureties, I cannot avoid taking some account of their integrity.

I approach this decision on the basis that I should forfeit no more than is necessary, in public policy, to maintain the integrity and confidence of taking sureties so that a person may be released on bail"

This conclusion is, to my mind, extraordinary. First, he accepts that the sureties acted with integrity and indeed commends them, as noted, earlier on in his ruling. Yet he nevertheless orders them to pay substantial sums of money into court for their failures to perform their "basic duty". Furthermore, he goes on to state that his decision so to do is based upon grounds of public policy. As observed earlier, this ground is, it is respectfully submitted, misconceived. Public policy was not going to be affected as a result of refusing to seek forfeiture in the highly unusual circumstances of this case. It is fair to say that the Judge exercised his discretion in favour of the sureties but, in my opinion, he did not do so far enough.


Related Thoughts

Anxious that my post is already long enough, there is one, hypothetical situation, that is worth considering. Imagine that Mr Assange decides to leave the Embassy and voluntarily attends (or, as is more likely given that a warrant has been issued, is arrested and escorted to) court. It will be put to him that he failed to attend court when required to do so. Mr Assange will no doubt respond by saying that, pursuant to s.6 of the Bail Act 1976, he has a reasonable excuse for failing to do so. His excuse would be-

"I was granted political asylum at the Ecuadorian Embassy on the grounds that the government of Ecuador believed that I may become a victim of political persecution, as a result of my dedicated defense of freedom of expression and freedom of press as well as my repudiation of the abuses of power in certain countries, and that these facts suggested that I could at any moment find myself in a situation likely to endanger life, safety or personal integrity."

An impressive response to a charge of absconding one may think. If a court found that Mr Assange did have a reasonable excuse for failing to attend, what would happen to the forfeited sureties? The Judge touched upon the issue at page 5 of his ruling when he said-

"However I was not prepared to adjourn until such time, if any, when Mr Assange appears before the court. It is not the usual practice. The possibility that Mr Assange has a defence of reasonable cause to the allegation of failure to surrender cannot be excluded. The same applies when any defendant apparently absconds. For example it may later be discovered that the defendant had been critically injured, or perhaps kidnapped, or in some other way prevented from attending and prevented from communicating. If that happens, then any security or securities estreated would no doubt be returned."

The provision for returning the estreated amounts was not identified by the Judge. Perhaps it just has to be put down to a matter of common sense or 'discretion'. True enough, if a court found that an accused had a reasonable excuse but refused to return any sums forfeited from a surety, I suspect the matter would end up before the High Court. The references by the Judge to defendants who may be discovered to be ill, have been kidnapped, and so on, is, one may think, unhelpful. In those sorts of cases, one does not discover the reason for the defendant's failure to attend court until such a time as he has been arrested. In this case, the Judge was well aware of the reasons why Mr Assange was not present- he was in the Embassy.

It will be interesting to see what happens if and when Mr Assange does appear back before the Magistrates' Court. One thing is for sure, this tale has not yet concluded.



 

Financial Penalties- Part II

I often blog about things I have experienced whilst at court. One such post related to the conduct of two lay benches when it came to the imposition and collection of financial penalties (see my post of the 14th August 2012). Although doing no more than reciting my experiences, the post attracted written criticism from some- with one JP saying "There is no way, ever ever, that a Bench will behave in this loathsome manner" and that "unrepresented defendants are treated with deference, respect and kid gloves without exception".

Yesterday I was emailed a case which I read with considerable interest. It is called R (on the application of Evans) v North Somerset Magistrates' Court [2012] EWHC 2382 (Admin). It is worth a read.

The case concerned the decision of the Magistrates' Court to commit the Claimant to prison for a period of 12 months in respect of the non-payment of an outstanding compensation order. You know that the case if going to be worth a read when Lord Justice Moses observes in the first paragraph that "What went on leading up to that committal seems to me a matter of considerable concern".

On the 13th March 2009, the Claimant had pleaded guilty, before the Crown Court at Bristol, to offences of theft and false accounting. She was sentenced to a term of 8 months' imprisonment. Confiscation proceedings were commenced and, on the 7th April 2010, the Crown Court made a confiscation order pursuant to s.6 of the Proceeds of Crime Act 2002 (POCA), assessing the criminal benefit as £56,039 and that the available amount was £27,771.29. That available amount was calculated by reference to the fact that the Claimant had a 100% interest in the equity of a dwelling house (valued at £25,771.29) and a car (valued at £2,000). The total sum was to be paid as compensation to the victim of the crime (a rugby club) and was to be paid within 6 months.

Time for payment was subsequently extended (the property not having been sold within the 6 month period). On the 12th August 2011 the property (and car) were sold. Unfortunately, there had been a miscalculation of the amount of equity in the property for which the Claimant had a beneficial interest. A shortfall of approximately £18,600 remained. Accordingly, the Claimant applied to the Crown Court for a variation of the Order and, on the 1st September 2011, the amount of the Order was reduced to 'nil', the Crown Court being satisfied that there were no other available assets.

The Claimant, however, still had to deal with the question of compensation (the compensation issue being distinct from the confiscation order, notwithstanding that the order on its face designed the order to be deployed in satisfaction of compensation). Pursuant to section 133 of the Powers of Criminal Courts (Sentencing) Act 2000, the Magistrates' Court may:

"...On the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below."

The case thus came before the Magistrates' Court on the 7th October 2011. They apparently heard evidence from the Claimant's partner, a Dean Evans, who although in employment, was due to be made redundant and to receive a redundancy payment, and also heard from representatives of the victim rugby club as to the disastrous effect on them of the dishonest behaviour of this claimant. The Magistrates adjourned those proceedings, ordering the Claimant to make a payment of £120 per month towards payment of the outstanding compensation order. The matter came before the Magistrates again on 2 December 2011. At that stage the Court heard that the Claimant's partner had indeed received a redundancy payment and apparently had heard that there was available, out of that redundancy payment, a sum of £3,000.

The Legal Advisor to the Magistrates provided the High Court (as part of the Judicial Review proceedings) with a document described as a 'statement of facts'. At paragraphs 10-11 of the Judgment, Lord Justice Moses observes that,

"In any event, on that hearing on 2 December, he [the Legal Advisor] says that the means enquiry was conducted with the Claimant on oath and the Claimant asserted that neither she nor her husband had the means to pay the compensation order and she indicated that her husband's redundancy payment had been used in full to set up a new business and thus the offer of payment out of that was withdrawn. It appears that she was asked about a holiday she had had, which she accepted, in Turkey earlier in the year, staying in a friend's villa, but there is no record of how much that cost or whether that was unreasonable expenditure in the context of the order made against her. She told the magistrates on that occasion, according to Mr Sims, that £7,500 remained out of redundancy money. The statement then goes on in quotation:

"The Justices adjudication was that the compensation should stand (...) The Justices were satisfied that the offer of payment from the redundancy money was made freely by the Claimant at the previous hearing and no good reason existed not to further consider this."

Accordingly, they ordered that she pay £3,000 within 14 days and to continue with the monthly payments of £120. There was a warning that she would go to prison for 12 months if she did not pay it. A review hearing was listed for 4 March 2012, once, so it is recorded, it became apparent by late December that the sum of £3,000 had not been paid. I then note with some disquiet that in this, "the Claimant had failed to contact the court to advise that she was unable to pay".

It seems, however, that the Claimant had not failed to contact the Court. At paragraph 13, his lordship continues-

"There was an acknowledgement on 22 December from L Guest, the administrative officer at North Somerset Court House, saying the hearing had been arranged for 3 January to allow the magistrates to read your letter. Those circumstances, are, as I have said, a matter of disquiet that it is asserted that she failed to contact the court. She did and there was a hearing on 3 January 2012 when she was, again, unrepresented. It is recorded that the £3,000 payment had not been made and the statement goes on:

"The claimant clearly told the justices that she did not see why she should have to pay the order. Her demeanour was belligerent during the hearing and she seemed unable to understand why she should have to pay the money outstanding to the compensatee. In effect she had already been punished. In answering the questions put to her by the justices the claimant expressed a palpable level of contempt for the court, claiming to appear unmoved by her compliance with the previous court order, made no offer of payment. A means enquiry followed. No offer was forthcoming and at this point the claimant's husband stood up in the public gallery and offered to pay £3,000 that day."

I turn now to the central part of the Judgment which is worth reciting in full. Paragraphs 15-21 of the Judgment read as follows:

"It was contended at a subsequent hearing by Mr Cameron on behalf of this claimant that that offer, apparently shouted out from the public gallery, was made when both the claimant and her husband felt under considerable pressure that if an order was not made she would go to prison. Mr Sims says that there was no pressure applied, that if payment were not made, imprisonment would occur. This is a surprising statement. Given the whole context of this case and the letter sent saying that the claimant was under severe depression and suicidal behaviour and that neither member of the household was working and that on more than one occasion she had been warned that if she did not pay it she would go to prison, it is startling to read from the legal adviser that no pressure was put on this claimant. The pressure arose from the circumstances, as anybody there must have appreciated.

Accordingly, following that date, the next hearing was a hearing on 3 February 2012. At that hearing, Mr Campbell did represent this claimant and evidence was given of the amount she received by way of employment support allowance of£67.50. The submissions fell on stony ground. The court, in giving its decision to send this claimant to prison, noted that the club had lost £56,000 and that£18,000 was still owed and it must be paid. It then recorded the history I have identified and the magistrates said the court entirely refutes any suggestion of improper pressure upon you on 3 January. The question is not whether there was improper pressure but whether the offer made by the husband was not plainly as a result of fear that were it not to be made the claimant ran a very real risk back in January of the very thing that occurred the month after, namely that, having already served one sentence of imprisonment, would go back there to serve even longer of the 12-month sentence. The magistrates said: "You are clearly in breach thereof of two court orders and the court finds culpable neglect."

The reasons were then expanded by the legal adviser who made it clear that the justices were satisfied that the claimant had exhibited culpable neglect in her approach to discharging compensation and particularly that no other method of obtaining the compensation was available. This is of significance to this claim because the magistrates went through the other possible sources of money to meet the compensation obligation. The legal adviser records that all other enforcement options were considered and were discounted as inappropriate or previously unsuccessful. A distress warrant was inappropriate because the claimant had no goods to distrain. A third party debt order was not appropriate because she had no savings. A money payments supervision order was inappropriate because other debts had been paid without such an order. An attachment of earnings order was inappropriate because she was not employed. A deduction from benefit order was inappropriate as the maximum amount was £10 per fortnight and it would take too long to pay. She was too old for an attendant sentence order. This is of considerable significance in this case. It demonstrates the magistrates' appreciation that there were no funds other than the paltry sum of £127 a month out of her benefit from which her own resources could meet the obligation to pay compensation. In those circumstances, it is necessary to identify on what basis it could be said that she had been guilty of any wilful refusal or culpable neglect. That was crucial to the order that the magistrates made. Absent such a finding, there was no basis for sending her to prison.

The only factual basis stemmed from the offer of the husband to use some of his money, and I emphasise, it was his money, which he had received by way of redundancy compensation to satisfy his wife's obligation. There was no obligation upon him to make the offer. As I have already sought to emphasise the circumstances in which he made it were perfectly plain: he did so to save his wife from going back to prison. The fact that he chose subsequently not to, whether for a good, bad or indifferent reason, did not in any way begin to establish a wilful refusal or culpable neglect on the part of his partner, this claimant.

The magistrates appear, in my judgment, to have fallen into error in two significant respects. Firstly, they failed to have regard to the orders of the crown court by which it was accepted that she had no assets to meet the confiscation order and that the confiscation order was linked expressly on the face of the order to compensation. It was thus recognised by the crown court that she had no assets out of which to pay the compensation. The only basis upon which it would be right not to discharge the compensation order would be on the foundation of clear evidence that there were other resources by way, for example, of regular income from employment or some windfall subsequent to the discharge of the confiscation order out of which the compensation order could be made. No such finding was made by the magistrates. No such finding could be made because there was no such resource, there was merely the sum she received by way of benefit. The second error into which the magistrates fell arose out of their elision between the resources of her husband and her own resources. That elision could not, as a matter of law, arise out of the mere fact that her husband had made an offer of £3,000 in the circumstances I have described or indeed under any other circumstances; it was entirely open to him having made the offer to withdraw it and there was nothing to suggest that she had compelled him to do so.

The error was, in my view, a basic error of law in regarding his assets as the same as hers. If authority is needed that the two are not the same, it is to be found in the R v Charalambous 6 Cr App R (S) 385 and in Archbold, paragraph 5-405, the edition of 2004. Both were cited by Newman J in R v Patricia Engam [2004] EWCA Crim 1536. It is wrong in principle to impose a fine on the assumption that one person, for example a spouse, will pay another person's fine. In that case, the judge expressed the limitations of that principle where it was sensible to regard the assets of a household as joint income and assets. Apparently in this case there was clear evidence that the spouse before the court was not the principal earner but that she had available to her the income of her partner because the income was properly to be regarded as joint income (see paragraph 13). That situation is miles away from the case here where the redundancy money plainly did not belong to this claimant and to which she had no entitlement and which was not part of her assets. I have explained the circumstances in which the offer was made and that provided no basis in law or in fact as foundation for making the compensation order, still less for finding culpable neglect.

It is, in my view, a matter of regret that although proceedings were launched and permission speedily granted in writing, no interim relief granting this claimant bail was allowed. Of course, High Court judges are enjoined not to grant bail in criminal appeals on the basis that if it is a short sentence, the case can be heard very quickly and it is thoroughly undesirable that someone who has been sent to prison should be released on bail and then sent back shortly after. But a compensation case like this is wholly different and, I am afraid, sad to recall that three different High Court judges, as this case maundered on between 2 March 2012 and 4 April 2012, failed to take a sympathetic and merciful view and let this lady out as soon as possible. We granted bail over lunch because we had not reached a final conclusion. But for my part, in my view, she should never have been ordered to go to prison in default at all and the magistrates erred in serious measure in those two respects. I will quash the decision and I shall hear argument, if my Lord agrees with that conclusion, as to the form of the order we should make for the future."

That the Magistrates "erred in serious measure" is undoubtedly correct for the reasons the High Court gave. However, what interests me is the way in which the Magistrates seemingly conducted themselves throughout the various hearings. Once again, I refer the reader back to my earlier post of the 14th August and the comments made by some in relation to it. In particular, not only did the Magistrates make "a basic error of law", the way they appear to have treated the Claimant is deplorable. The very fact that an offer of payment was being shouted from the public gallery is, many may think, indicative of the same. Furthermore, and as the High Court acknowledged, the fact that the Magistrates had conducted the exercise they had (in relation to other enforcement options) should have set off a huge flashing red light that this lady did not have the means to pay. For some reason neither that exercise, nor the previous findings of the Crown Court, swayed them from what turned out to be one of the most troubling Magistrates' Court decisions I have read in recent months.

There are serious lessons to be learned from this case and I for one suggest that it should be circulated throughout Magistrates Courts up and down the country. I do not, for one moment, suggest that all Magistrates are as incompetent or uncompassionate as those in the present case. However, this Judgment does illustrate that incidents such as those recorded in my post of the 14th August are certainly not isolated ones.

 

Baby names and the law

Yesterday my sister had a baby. Big congratulations to her, her partner and the little one. Prior to the birth, I was chatting with my sister about possible baby names. "Are there any illegal baby names?" she asked me. I thought about it and then said "I don't know". I decided to conduct a little investigation...

I can find no legislation which directly prohibits certain names or types of name. A spokesman for the General Register Office has, however, previously stated that whilst there are no restrictions on the names that parents can give their children, "an official" could refuse to register a name, in an exceptional case, where the name could be deemed offensive. I do not, as at the time of writing, know what form the legislative basis for this proviso takes nor who and how the phrase "deemed offensive" is interpreted. What I do know, however, is that the General Register Office has, in recent years, been happy to register names such as "Superman", "Gandalf", "Gazza" and "Arsenal". It is, therefore, hardly surprising that celebrity parents have been permitted to give their children names such as "Harper Seven" and "Fifi Trixibelle"...

Is the rest of the world as liberal when it comes to the legality of baby names? It would seem not.

Countries such as Denmark, Spain, Germany and Argentina all publish lists of acceptable baby names from which the parents must select. The German authorities, for example, will not allow a baby to be called "Hitler" and have also refused specific requests that children be allowed to be named "Osama Bin Laden", "Stompie", "Woodstock" and "Grammophon".

The Department of Internal Affairs in New Zealand have rejected names such as "Christ" and "Lucifer" whilst also prohibiting parents from naming their children with symbols and numbers. In 2007, the BBC reported that a New Zealand couple had lost a legal battle to name their child "4Real" and so settled on "Superman" instead. A number of other sources I perused revealed that Judges in New Zealand have previously refused permission to name twins "Fish" and "Chips" although did permit the names "Number 16 Bus Shelter" and "Violence". Although my absolute favourite refusal by the New Zealand judiciary has to be for the request that a child be named "Talula Does The Hula From Hawaii."

Over in Malaysia, it seems that the Government had to ban the name "Chow Tow" which, when translated into English, means "Smelly Head", whilst a woman in Norway was apparently jailed for 2 days for giving her child an unapproved name.

Finally, a Judge in the United States refused to allow a man to change his name to "God" so the man settled on "I Am Who I Am".

So one thing is for sure. There is certainly no consistency when it comes to which names are permitted and which are not. Should parents be able to call their children anything they want? If not, who should make that decision and what criteria should be applied before a decision is reached?

Never work with children or animals- although if you do, it might just pay off.

I noticed a Facebook page doing the rounds yesterday which read 'RIP Pippin the Dog'. Some of you may remember the children's TV show called 'Come Outside' which featured the eccentric Lynda Baron (from Open All Hours) and her dog Pippin. Of course, anyone who watched the show would know that the same dog did not play the role of Pippin throughout the series. A dog called 'Mr Higgins', which was, I believe, a descendant of Pippin, also played the role.  Anyway I digress.

The death (whether it be of Pippin, Mr Higgins, or some other dog, or perhaps just a mistake) reminded me of a case I dealt with very early on in my career. I was representing a middle aged lady from North London who owned a dog which was not too dissimilar from Pippin. She was a lady of good character who had been charged with an offence under the Control of Dogs Order 1992. Yes, I'd never heard of it either. The offence was as follows:

"The owner of a dog or the person in charge of a dog who, without lawful authority or excuse, proof of which shall lie on him, causes or permits the dog to be in a highway or in a place of public resort not wearing a collar as prescribed in article 2(1) above shall be guilty of an offence against the Animal Health Act 1981."

The lady in questions dog was a puppy, albeit a boisterous one. It had, so the account went, escaped from her garden whereby she chased it up the street. She couldn't catch it. The dog was picked up by a dog warden and taken to the shelter. Because the dog was microchipped, the warden was able to locate the owner who came to collect the dog (she also had to pay a fee to cover the 'expenses' that the shelter had occurred). A week or so later she received a letter from the local council to say that she was being prosecuted under the aforementioned provision. She pleaded not guilty to the charge. Her defence was twofold: (i) the fact that the dog had escaped was beyond her control and therefore amounted to an 'excuse', and (ii) the dog did, in fact, wear a collar but it was able to take it off itself.

At my request, the dog was brought to court. I took it into the waiting room and watched as it bounced around and, sure enough, took its collar off the moment it was put on. Would it do it at trial?

The trial commenced and the point came where I 'called' the dog. This excited much amusement within the courtroom, with the Chairwoman remarking that if the dog 'did its business' I would be the one that had to pick it up. The collar was placed on the dog and the dog was let loose. True to form, the dog removed the collar within seconds. I thought I was on to something good here.

There was then an argument as to the standard of proof. The Crown said that the legal burden was on the Defence. I made representations that we simply bore an evidential burden which the Crown had to rebut beyond reasonable doubt. The Bench accepted my proposition.

However, did I win the case in the Magistrates' Court? No. The lady was convicted and given a Conditional Discharge. We appealed that decision to the Crown Court where the conviction was overturned and the Judge made a number of remarks about the costs involved in prosecuting this case.

So all's well that ends well.

I was pretty surprised that this lady had to go through two trials all because her dog had escaped. I also feel that the legislation is pretty outdated. I can understand why it is important that dogs can be identified through having a collar and tag but let us not forget that this lady had had her dog microchipped as most responsible dog owners now do. It seems to me that this was somewhat of a pointless (and costly) prosecution of a nice lady who, on the face of it, was a responsible dog owner.

Anyhow, now you can see the link between Pippin the Dog, Mr Higgins and a prosecution under the Control of Dogs Order 1992!

A surprise call

I'm back in the UK at the moment on holiday. Whilst here, I've taken the time to visit the parents; the consequences of not doing so are definitely worth avoiding.

Yesterday the phone rings and my mother asks if I can answer it. I pick up the phone to be greeted as follows (I will alter the names of all the participants):

"This is PC Smith. Can I speak with Mr Jones?"

"He's not here" I reply. "Can I take a message or get him to call you when he gets in?"

"He is supposed to be at X Magistrates' Court today. He was a witness to a traffic incident."

I looked at my watch. It was 11:30am.

"What time was he warned to attend?" I asked.

The officer hesitated slightly and then said "The trial was due to start at 10am but the prosecutor needs Mr Jones before the trial can start".

"Yes, but what time was he warned to attend?" I pressed.

A slightly longer pause before the officer continued: "We believe that the witness care unit called him about 2 months ago to tell him of the date and time."

And so the picture began to materialise. No-one knew whether he had, in fact, been warned to attend and, even if he had, it was "believed" that that occurred about 2 months ago.

"I will try and reach him" I said "and will call you to let you know. What number can I reach you on?"

"Dial 101 and ask to be put through to PC Smith at X Magistrates' Court."

"Ok" I say. "Goodbye".

I try to reach Mr Jones through several avenues. His mobile phone is going straight to voicemail and the few family members who I thought may have known of his whereabouts, didn't.

So I call 101 and ask to be put through to PC Smith at X Magistrates' Court.

"Does anyone know the number for X Magistrates' Court?" I hear the operator hollow in the background. It seems that nobody does and, somewhat incredibly, I am told that they don't know the number and suggest I look it up on the internet. Charming.

So I look up the number and call the Court. I'm put on hold for about 7 minutes whilst the officer is located. The officer then proceeds to tell me that I should not have called the Court directly and that I should have, as she had asked, gone through 101. As you can imagine, I am thus far wholly unimpressed with how this little exchange has been going.

"I did call 101- they didn't know the number. They were not prepared to find it for me and instead helpfully suggested that I look it up on the internet."

"Oh" replies the officer. "I am sorry about that".

Anyhow, I explain that I can't locate Mr Jones and that I do not know where he is. The officer then proceeds to tell me that his evidence is crucial and that the trial can't continue without him. Quite what she wants me to do about this I don't know.

"Can you continue to try to reach him and call me in 20 minutes to let me know if you have managed to get through?"

"Yes" said I. "How shall I reach you?"

"Dial 101" she says "and give them this extension...".

So I try and reach Mr Jones, fail to do so, call 101 and give them the extension. I come through to a different officer who says that PC Smith is in Court. He takes a message from me and says that he will get her to call me. She never does.

As of yet, I don't know what happened in Court. I'm tempted to call to find out.

I did, however, manage to speak with Mr Jones in the afternoon. He tells me that he had never been given the date of the court hearing and, had he known of it, he would certainly have attended. I have no reason to believe that he is lying about this and from the way the officer spoke on the phone, I strongly suspect that he hadn't been warned to attend. Furthermore, I didn't find the police particularly helpful. When I am giving up my time to assist them, the least they could do is put me through to the Court and not have a go when I choose to phone the Court directly. Also, quite why they were only phoning at 11:30am when the trial was due to start at 10am, I don't know.

If I find out what happened at Court, I'll be sure to add it by way of postscript!

Financial Penalties- are they worth the hassle?

I was in a civil court today where the Applicant, as he was known in this particular case, was appealing a decision of a lower tribunal. The court dismissed his appeal but, in doing so, noted that the three months he had been given to pay his USD100,000 financial penalty was a tad unrealistic. The Court varied the order to allow the Applicant to pay the penalty in ten monthly instalments of USD10,000 which he was happy about. It made me think about all those defendants who are fined (particularly in the Magistrates' Court) in the sum of (for example) £100 and ask to pay in instalments of £5 a week which is, invariably, to be deducted from their benefits. The phrase 'robbing Peter to pay Paul' comes to mind because, putting to one side compensation and victim surcharge payments, the money is simply going from one government department to another. However, when one considers the cost of administering the system- from the imposition of the fine, to its periodic collection, to its enforcement, the amount the government actually gets back must be a fraction of that which it handed out. I'd love to know the exact figures but I suspect they are difficult to analyse. It certainly wouldn't come as a surprise to learn that the associated administration costs actually exceed the amount of money coming in.

There is, however, a seedier side to the imposition and collection of fines. Two cases spring to mind. I was once sitting in a London Magistrates' Court waiting for my case to get called on and, whilst waiting, was watching a number of cases that involved unrepresented defendants. The first was a lady who pleaded guilty to possession of cannabis. She was fined £125, ordered to pay £85 in costs and the £15 victim surcharge was imposed. She was in receipt of Jobseeker's Allowance. "The full amount is due now" the legal advisor said. "I can't pay that much now" the lady replied. "Can it be deducted from my benefits?" "How much money do you have on you?" asked the Chair. I can't remember how much it was, but it amounted, so the lady said, to her bus fair. "Well you can pay that in to Court and you'll have to walk home or get a lift". The lady protested that she didn't know anybody and that it was far too far to walk home. She was then told that if she refused to pay her fare into Court she would be taken down into the cells. She burst into tears. Still the Chair and the Legal Advisor persisted that this £2.80 or whatever it was should be handed over. The tears got worse and enough was enough. "Please excuse me, but as an officer of the Court please could I address you?" I said. The Chair permitted it. I proceeded, politely but forcefully, to explain that what was going on here was pretty disgraceful. The lady was in tears, the Court was trying to seize £2.80 and was having no regard for how this lady was going to get home. Perhaps, I thought to myself, they would like her to commit fare evasion or theft? The Bench relented and agreed to take the money from the lady's benefits. The Legal Advisor looked most dissatisfied but there we are.

The second occasion involved an actual client. I was in a Magistrates' Court in Essex. My client had been convicted of assaulting a police officer. She was fined £75 but ordered to pay full prosecution costs (which were about £600) and, of course, the £15 victim surcharge. The Bench had taken umbrage with her because the nature of the assault was a spit (something many Magistrates seem to despise with a passion) and they felt that the evidence was overwhelming (i.e. the officer's word against hers) and so penalised her accordingly. This was despite the fact that she was a single mother living on benefits (namely Child Benefit, Housing Benefit and Tax Credits). She certainly was in no position to pay just short of £700 there and then but that didn't stop the Bench trying to get it. Their opening gambit was to (somewhat unrealistically) threaten her with prison. I managed to bat that one away without too much of a struggle. However, they then wanted to see her purse (she having said she had no money in it). To the client's credit, she duly provided it. There was nothing in it. Not content with that, the Bench made the point that they could have her searched by the dock officer. I confess that my patience was slowly deteriorating. I interjected again. After a bit of toing and froing they relented. However, they were not going to give up that easily. "Go to the bank" said the Chair "and get a receipt to show how much is in your account." There was then a rather unfortunate exchange between the client and the Chair but she duly went to the bank and produced a receipt. She had about £85 in the bank. "Well, we'll take that today" said the Chair. "You may have forgotten" I said politely "that Mrs X has two small children that she has to provide for". They seemingly had not forgotten but as seems to happen all too often the Chair came out with the line "well she will have to find somebody else who can either pay the fine or pay for the children- a friend or family member perhaps." I felt like screaming "HOW IS IT A FRIEND OR FAMILY MEMBER'S PROBLEM?". I didn't of course but it really gets to me when Magistrates expect the money to come from someone else. Why on earth should some poor person who has nothing to do with the case have to fork out the money? Anyway, this whole sorry episode went on for about half a day (won't somebody please think of the children cost to the public purse). Eventually, they settled on taking £5 (from a man in the public gallery who had no connection with the case but who was no doubt appalled at what was going on!) and agreed to deduct the remainder from her benefits.

Sadly these little incidents are not uncommon and it is usually people who are unrepresented who bear the brunt of them. So in short I have two general issues as regards the imposition of fines- (i) do the associated administrative costs in administering and collecting them outweigh the amounts involved? and (ii) please can we have a little bit more humanity when it comes to time to pay and not behave like some sort of extortion racket?

Answers on a postcard please.