Double or Bust? - Magistrates' Sentencing Powers

The retiring Lord Chief Justice has been reported as suggesting that magistrates' sentencing powers should be doubled to enable them to sentence offenders to prison for 12 months for a single offence.  This power has been on the statute books for many years but has never been brought into force.  His reasoning is that a huge cost saving will be made because magistrates will retain jurisdiction for more trials and more sentences.

There are three kinds of criminal offences in England & Wales: summary offences triable only in the magistrates' court, either way offences that can be tried in the magistrates' court or the Crown Court and indictable offences that can only be tried in the Crown Court.

When a defendant is brought before the magistrates' court if the offence is triable either way the prosecution will make representations about whether the case should be tried in the magistrates' court or the Crown Court.  The magistrates will then make a decision whether to retain jurisdiction or whether to send for trial to the Crown Court.  If the likely sentence on conviction would be more than 6 months' imprisonment then jurisdiction would ordinarily be declined because that is the maximum prison sentence magistrates can impose.  If the magistrates decide to retain jurisdiction the defendant has the right to elect trial in the magistrates' court or the Crown Court.

Doubling magistrates' sentencing powers would result in magistrates retaining jurisdiction in many more cases.  It, of itself, would not interfere with the defendant's right to trial by jury.  Trial in the Crown Court is hugely more expensive than trial in the magistrates' court and it takes longer for trials to be heard.  On the face of it, therefore, increasing magistrates' sentencing powers would both save money and time.  That sounds an attractive proposition.

Lord Thomas has the legal advantage over me in every respect but one and that is that I have practised in the magistrates' courts a lot more recently than he has and that recent experience causes me to hesitate to welcome this proposal.

There are essentially two schools of thought concerning the efficacy of prison.  The one I subscribe to is that prison is a necessary evil, being a place to exclude from society those that represent a clear risk to the safety and wellbeing of others and for whom rehabilitation in the community is impossible.  The other is encapsulated in the epithet: prison works.

Whichever school of thought you identify with the common ground is that prison is hugely expensive.  We have the highest prison population in our history and the highest in Western Europe.  Increasing magistrates' sentencing powers may have the effect of preventing defendants from coming before the Crown Court, it is however unclear why it would in any way cause the prison population to be reduced.

The vast majority of magistrates are unpaid volunteers.  It represents one of the most commendable forms of public service.  However I can't be the only person who finds it peculiar that unpaid volunteers are empowered to imprison their fellow citizens for up to 6 months.  We don't confer sentencing powers on juries so why do we permit lay magistrates to send people away?  We don't let enthusiastic and well meaning amateurs have a go at surgery so why do we allow them to make such fundamental decisions about people's liberty?

There is such a thing as a professional magistrate, called a District Judge, a magistrate with legal training and experience.  In contrast to lay magistrates they can sit and make decisions alone.  I therefore have an alternative suggestion to that of Lord Thomas.  Rather than doubling the sentencing powers of lay magistrates might it perhaps not be a solution to confine the power of imprisoning people in the magistrates' courts to the professional judges.  This surely would have the effect of ensuring that only those that absolutely have to be in prison are sent to prison.

Prey & Prejudice: Time to Regulate the Paedophile Hunters?

If church attendance figures are anything to go by few in modern Britain still believe in the devil.  That however is not to say that belief in and fear of evil is any less than it ever was.  Almost nothing today is more synonymous with evil than paedophilia.  It should follow then that anything done to combat paedophilia should be welcomed and those that lend themselves to the task of exposing and apprehending paedophiles should be lauded as modern day crusaders.

This proposition lies at the heart of a current BBC focus on paedophile hunting, the newest mushrooming manifestation of vilgilantism.  The premise is simple: self styled paedophile hunters (the vast majority of whom are men) set up fake profiles on social networking or dating sites and wait for a target (the vast majority of whom are men) to make contact.  They then announce themselves as being a child under the age of 16.  Online communication ensues which usually becomes sexual.  A meeting is arranged and the paedophile hunter then reveals himself to his quarry, performs a citizen's arrest and calls the police.

The target is arrested, interviewed, confronted with the content of the online communications, charged, prosecuted, (usually) convicted and (usually) imprisoned.  The paedophile hunter registers another 'kill', the police and CPS chalk up a win, the prison population swells by one and Britain's parents and children sleep soundly safe in the knowledge that there is one less dangerous paedophile on the streets.  On that analysis nobody loses except the dangerous paedophile and few will lament his misfortune.  However I would suggest the time is ripe for a rigorous analysis and wide discussion of whether theory is being reflected in reality.

It won't surprise you to hear that it is a criminal offence to communicate with a child and then meet or arrange to meet with them intending to engage in sexual activity.  Specifically it is an offence contrary to Section 15 of the Sexual Offences Act 2003, meeting a child following sexual grooming.  In paedophile hunter cases there is no child and therefore only an attempt can be charged.  However it is a general principle of law that attempting to commit a crime, for sentencing purposes, carries no less culpability than successfully committing a crime.  The maximum sentence for this offence is 10 years' imprisonment and a cursory Google search demonstrates that the vast majority of offenders convicted of this offence do indeed get sent to prison.

It seems to me that these are the topics that require discussion:

1. Regulation - At the moment there is absolutely no regulation of the activity of paedophile hunters.  They are private citizens and provided they adhere to the law governing private citizens there is no prohibition on their activities.  The same however is not true for the police.  There are myriad laws governing the way in which the police are permitted to exercise their extensive powers.  The police are permitted to undertake undercover operations but only within strictly circumscribed parameters.  Is this right?  

2. Filming - Hitherto it has been extremely commonplace for paedophile hunters to film their stings often broadcasting in real time to their social media sites and often with the videos being uploaded to YouTube.  The obvious risk that attaches to this is of prejudicing the possibility of a fair trial.  Any police officer that uploaded their bodyworn footage of an arrest prior to trial would almost certainly lose his job and potentially face prosecution.  Should this continue?

3. Arrest - Very few paedophile hunters appear willing to involve the local police force prior to a sting taking place.  In the main the practice is for the the paedophile hunter and accompanying associates to confront the target, perform a citizen's arrest and only at that point call 999.  This effectively precludes the police from making an evaluation as to whether someone should or should not be arrested.  It also carries the real risk of impeding an ongoing investigation not known about by the paedophile hunter.  Consider, for example, a police investigation into the activities of a paedophile ring, the activity of a paedophile hunter could force the police to arrest one member of that ring at the expense of the integrity of the investigation into other potentially more dangerous paedophiles.  When should the police be alerted?

4. Safety - When vigilantism is unconstrained there is always the risk of something going wrong.  You only have to watch a few videos of the sting encounters to see that these are emotionally highly charged situations.  If matters are not put into the hands of the police there is a real risk of people being hurt or even killed or even worse of a misidentification of the target.  Is this activity dangerous?

5. Entrapment - English law is very reluctant to recognise the concept of entrapment, this especially applies to the activities of private citizens.  The police are trained as to the extent to which they can involve themselves in the commission of a criminal offence.  Accordingly Test Purchase Officers (TPOs) can buy illegal drugs from drug dealers, their purpose is not to consume those drugs it is to identify and apprehend drug dealers.  What a TPO can't do is approach a completely random person about whom they know absolutely nothing and persuade them to sell drugs.  Pursuant to Section 44 of the Serious Crime Act 2007 it is a criminal offence intentionally to encourage an offence.  The police know this but do the paedophile hunters?

6. Risk - There are, without doubt, very dangerous paedophiles both within society and within custody.  We all, but especially the police and the courts, owe children a duty of care to be protected from these people.  The question is whether the activities of paedophile hunters are, in all cases, assisting in that endeavour.  When the target of a paedophile hunter has never before come to the attention of the police, never before presented as a safeguarding risk to any official body, has no indecent images of children on any of their devices is there a question mark about the risk that they pose?  Are scarce police, court and prison resources being well spent on processing and incarcerating that person?  I don't have answers to those questions but I believe they are questions that need asking and answering.

The Neighbourhood Watch has a long and admirable history of public spirited local citizens working hand in glove with local police officers for the benefit of all.  Is it too much to suggest that if paedophile hunting is to be sanctioned that it be incorporated into something similar?

A tribute to His Honour Judge John Plumstead

When I was a young(er) barrister I remember one of my colleagues reminiscing about the French chef at Knightsbridge Crown Court to whom an order was given on arrival in the morning for a freshly cooked lunch eaten in convivial company in the Bar Mess during the short adjournment.  Knightsbridge Crown Court with Harrods for a neighbour is long gone as is the supply of food fresh or otherwise from almost all courts.  Instead we have peeling wall paper, leaking roofs, broken toilets.  Conviviality is in very short supply.

A rare pleasure it is then to appear at St Albans Crown Court where every Thursday all advocates are invited to a curry lunch with the judiciary sitting there.  Far from being an opportunity to curry favour (sorry) with the judges this is the best possible reminder that ultimately wherever we sit in the courtroom we are trying to achieve the same thing.

What has always made those lunches particularly enjoyable was the company of HHJ John Plumstead, the twinkling embodiment of bonhomie.  I know he has many friends and admirers that can attest to his qualities off the bench.  My dealings with him however were purely professional and it is on a professional level that I can observe that justice has lost one of her most human and likeable disciples.

It is no exaggeration that some courtrooms provoke in the heart of barristers a real sense of dread either because their custodians clearly absolutely hate being a judge or, worse, absolutely love it.  A proper judge respects the role but doesn't harbour intense feelings about it.  A superlative judge remembers they are a human being first and a judge second.

Judge Plumstead was never anything but human, his compassion for those who came before him whether wrongdoer in the dock or wronged in the witness box was deservedly legendary.  His was a discursive and informal style that put people at their ease even if juries sometimes wondered when the judge's stories would come to an end and the trial resume.  In sentencing he believed first and foremost in mercy and giving people a chance with a few notable exceptions, he couldn't stomach those that were violent towards women nor benefit fraudsters.

Instructions to appear in his court, whatever the case, always provoked in me the feeling of visiting a favourite uncle.  His sudden death has robbed all those that practise in St Albans of a kind and good judge, him and his family of what should have been a long and very well earned retirement.  He will be much missed.