Thursday, 1 April 2010

An Easter Miscellany

This week saw a 66 year old shopkeeper fined and "tagged" by Trafford Magistrates' Court.  She pleaded guilty to two offences under the Animal Welfare Act 2006 - sections 4 and 11 - see Daily Mail - and the commentator Richard Littlejohn asserts that we are drowning in "regulations and jobsworths" and that the wrong people are being appointed as magistrates - see here.  (I disagree with the latter remark).  Magistrates use sentencing guidelines and the guidance for the section 4 offence may be seen at page 22 of this document

A rather more serious case was that of Police Sergeant Smellie who stood trial for assaulting a woman at the G20 protests in 2009.  The case was heard by a District Judge (Magistrates' Court) and he was acquitted on the basis of "self defence".  The Guardian carried an article by George Monbiot containing some trenchant criticism of this verdict.  It is to be noted that the female victim did not give evidence at the hearing.  "Self-defence", as is often pointed out, is not strictly a "defence" but it offers a justification for the defendant's conduct.  The defendant has to establish a basis that he acted in "self-defence" and it is then for the prosecution to show, beyond a reasonable doubt, that he did not act in self-defence.  The "perceptions" of the defendant at the time of the incident are also very relevant since he is judged according to the circumstances which he believed existed: R v Gladstone Williams 1984.  The amount of force used must have been "reasonable" in the circumstances.  That, in broad terms, is the law.  Having said this, I have some sympathy with the view of George Monbiot that Police Officers should not be tried by single judges.  There is an essential need for the public to see that the trial process is fair to all parties and for them to have confidence in it.  Monbiot argues that a jury should be used but juries are only used in the Crown Court.  As the law stands, the choice of court depends on the offence charged and, if the offence is "either-way", on the seriousness of the offence.  One possible alternative to a judge sitting alone might have been a judge sitting with two experienced lay magistrates (JPs) - a format which was successfully used here.

The various blogs have been busy this week. Jack of Kent has the interesting libel case of BCA v Singh [2010] EWCA Civ 350 which is concerned with "honest belief" and "fair comment".  Jack's blog has shown particular interest in this case - have a look.  The case has very important implications which are discussed here 

Head of Legal has argued that now is not the time to go for a written constitution.  Of Interest to some lawyers has followed the machinations (involving Jack Straw) over the appointment of the Head of the High Court's Family Division and, in the end, Sir Nicholas Wall has been appointed.  The Magistrates' Blog has picked up on the appointment of a Victim's Commissioner and also on Allen v United Kingdom where the European Court of Human Rights has ruled that a defendant's rights under Article 5 were breached when a judge refused her request to attend a hearing about her bail.  There is a very outspoken opinion by Judge Bonello.   Charon QC - a most interesting and entertaining blog - has launched an excellent new publication- Insite Law Newswire - 1st Edition.

Easter now beckons and the garden needs tidying.  Have a good one and let's hope the weather picks up.

Addendum 1st May 2010:  The lady "tagged" for the "goldfish" offence has had her appeal against sentence heard.  The sentence was changed, very sensibly, to a conditional discharge.   See Manchester Evening News.


  1. ..."One possible alternative to a judge sitting alone might have been a judge sitting with two experienced lay magistrates (JPs)".....

    Or, God forbid, it could have been heard by a 'small jury' of 3 magistrates and not a District Judge

  2. The trial could perhaps have been conducted by a bench of 3 JPs. However, like them or not, DJs(MC) are here to stay and they will be used in cases where there is particular public interest. The Smellie case is precisely that type of case. It is not entirely easy to state when a DJ(MC) must be used but the guidance suggests that they are "particularly suited" to:-

    • Cases involving complex points of law or evidence
    • Novel points or issues arising from new legislation
    • Cases involving complex procedural issues
    • Pre- Trial Reviews and case management
    • Long cases (over two days)
    • Some interlinked cases requiring a consistency of approach
    • Cases involving considerations of public safety
    • Cases involving intimidation of witnesses
    • Cases involving immunity applications
    • Serious environmental and public health cases
    • Breach of community penalties and review of drug treatment and testing orders,where consistency and continuity important

    The idea of a DJ + 2 JPs appeared in the AULD Report though it was in the context of Auld's idea of a "District Court". The Auld proposal has not been adopted and I am not sure whether it ever will be. However, the DJ + 2JPs appeared in the high profile case to which I provided a link.

    Personally, I think it unlikely that there will be a return to high profile cases being tried by lay benches. Surely, for this type of case, the better way forward would be for the DJs and lay JPs to co-operate in the way suggested. I would certainly be interested to hear good reasons why the system has to be always either JPs or DJs but not a combination. A combination would surely utilise the strengths of both.

  3. Here is a link to the report by Lord Justice Auld - Criminal Courts Review 2001.

  4. I was actually really surprised that Smellie was acquitted. I've always held police officers to a higher standard than "regular" people so I don't really see why you shouldn't say that in the really quite rare occasions that a police officer is actually prosecuted in a criminal trial you couldn't have a jury trial because it's a police officer.

    It's far too easy for people to say "of course Smellie got off, they're all in it together" and that's absolutely not the reaction the criminal justice system needs to promote in the public.

    I suspect that the reason he was acquitted was a BRD standard of proof issue where the victim doesn't testify but that's massively unsatisfying in a case like this. I find it hard to really sell the argument that BRD protects us from the state when you can watch the video of him battering a protester on YouTube.

  5. @ Scotslawstudent - you are not alone in your surprise! The law could be changed so that charges against Police Officers were always tried by juries but it is not our system at the moment - as explained in the post above.

    One key element of self-defence is proportionality - i.e. using no more force than is reasonable. It is there where my concerns with this case mainly lie.

  6. I should really spell out that's actually separate points - 1) surprise at him being acquitted (just on the facts) and 2) holding the police to a higher standard because they're the police (I would prefer to dot every i and cross every t to avoid the impression it's an inside job).

    I think you're right to have concerns about that. My gut tells me proportionality was not nearly met here. I think if the victim had stood up in court and said "I was just holding a carton of orange juice and he hit me" the case would have gone very differently.