Don't be so sure about the proposed prostitution law. Jacqui Smith made it very clear on the Today programme on Wednesday that it was sufficient that the prostitute was "controlled" for a crime to have been committed - i.e. it didn't matter whether the purchaser knew or not. She agreed with Evan Davis that this may seem "unfair" to the purchaser but if they didn't want to take the risk, nobody was forcing them to enter into the transaction in the first place.
In other words, her intent is really to outlaw prostitution without admitting that is what she is trying to do.
But who cares whether the policies work or not -- they generate lots of column-inches which is what matters after all.
This link should make it clear that 6 points will be possible without a court appearance:-
http://www.timesonline.co.uk/ tol...icle5194491.ece
The Home Office proposal re prostitution can be seen here:
http://www.homeoffice.gov.uk/abo...n-protect-
women
They are proposing that there will be strict liability as to the point that the "seller" is being "controlled" by someone. It will be interesting to see how they define "controlled." At this stage it seems to me that the government are proposing a vaguely defined law aimed at scaring the "buyers" away. They hope that this most ancient "profession" will then wither on the vine. Some hope in my opinion.
The falling workload of the Magistrates' Courts must be a very demoralising feature. I suspect that the "lay benches" will be hit by this more than the DJs(MC). Might be wrong though?
Here's the motoring link again - the one in my previous post seems to go to the wrong place!
http://www.timesonline.co.uk/
tol...icle5194491.ece
Widespread cynicism and rock-bottom morale. Sounds like we could use a British Obama. Shame Cameron has the experience of Obama and the inspirational nature of McCain, eh.
Cynicism? Nearly everyone in this country (especially those who voted this lot into power) is cynical.
For my part the government said they would introduce new rules so the disabled could keep more of their earnings. Did this ever see daylight? Will it ever?
We 'spazzies' as I have often been called, find it hard enough to even get a rejection letter and good ol' Gordon going back on his promises doesn't bode well with us.
Now, see why we're cynical?
Richard G Brown: I agree. I think it'd be far better if the government came out with it and proposed an outright ban (for which I think one could make a case).
Bystander: I think that you yourself are, in a sense, indicative of why the government would really rather like to get rid of the lay bench, or at least reduce their influence: namely that you are able to accept a small risk of losing your position, in this instance by maintaining a blog, because it does not represent your livelihood, as it does for a DJMC, or a police officer, or a Crown Prosecutor. This means that you are more independent of government, a concept which really scares them. This is essentially why they are also attacking/trying to replace GPs and to some extent the independent criminal bar.
I couldn't work out why there was such a blast of publicity over the 6 points on the licence for doing 50 in a 30 limit. Then I realized that the whole point was to allow the police to issue a fixed penalty notice of 6 points for speeding, therefore bypassing those cumbersome court appearances. Its only going to happen once though. If you are a totter, you have to appear in court - unless the next proposal is that the police will have the power to take away your licence upon reaching the magic 12 points. The way out of court disposals are proliferating it may not be far away.
Sounds like the government is holding the courts in contempt. Shame they can't be sent down for it.
"issue driving bans without the expense and inconvenience of a court hearing"
Good, we wont have stupid magistrate's or judges letting people continue driving when they are 15 points and have just killed someone because "it would be a hardship to have to take the kids to school on the bus"
Seems like Steve's ignorance and prejudice is up there with that of the government.
@David - you are right in saying that the concept of an independent judiciary is a problem for this government and maybe for any government. However, I don't think it "scares them" but it is a major annoyance since it gets in the way of their "control the population" policies.
Here is the latest scheme - virtual courts:
http://www.lawgazette.co.uk/
http://www.lawgazette.co.uk/news...link-
defendants
Personally, I don't think it is any accident that the magistrates' court in the Law Society Gazette picture has just a single magistrate sitting on the bench!! Lay benches, like juries, can be just that bit too independent or even bloody minded. For that reason the powers that be see reason to control them.
@John - I think you are also right in saying that the automatically Police imposed disqualification for 12 points is not far away though they might allow an "appeal" to the magistrates or (maybe) to some other tribunal (since tribunals are the latest legal growth industry). Unfortunately, Steve also touches on a valid point. There are lots of drivers on the roads with over 12 points since a magistrates' Court somewhere has accepted an "exceptional hardship" plea. It is one of those phrases which is not defined and loss of a job will undoubtedly create a lot of hardship for many BUT is it "exceptional"? A moot point. Methinks, if the Police were allowed to decide that issue then very few would be allowed to drive. However, hopefully things will not come to that but with our present government don't hold your breath.
This smacks of desperation on Jaqui Smith part to try and gain good publicity for a change. I suspect most of these initiatives emanate from her "advisors" as I doubt she or any of her compatriots could come up with all these ideas. Let's be realistic though, how are they going to be enforced? Councils are starting to remove Gatsos and traffic departments are being decimated of staff - so who will enforce these limits?
Bystander is correct when he speaks of cynicism on the bench. The public/media need to wake up to the fact that one day we will wake up to a totalitarian regime where we have no rights.
Maybe the police who attend to drunk drivers should dress in white uniforms. That would secure far more convictions. You can't argue with a fair cop.
If you're fed up with government guidelines, can I suggest you write to your MP?
I seem to recall similar advice being dished out to disgruntled cops who despair at seeing prolific offenders getting a severe community punishment order instead of jail time at magistrates.
Welcome to OUR world.......
And by the way, if I arrested someone tonight having found him standing over a dead body with a smoking gun in his hand shouting "I'm glad I killed him", CPS would probably decide that the threshold test had not been met. The prostitute thing has no chance. Pure government rubbish again.
I'm off down the pub to get drunk. I'll see you down there.....
Cheer up Bystander, no-one else seems to trust or respect this government, so why should you be any different?
Think of it as joining mainstream opinion.
Peter: "Lots" of people with over 12 points? It would be interesting to ask the DVLA to account for the number. I have allowed this once in nearly 20 years but have disqualified hundreds in that period. Some of the tales were good ones too - taxi driver with six kids to feed? Already had 18 points when he came to us for careless driving and was told it would be OK as he had a family. 12 months discretionary disqualification is the one I remember best.
As to prostitution, I look forward to the exchange, with appropriate interpreters in place where the defendant claims he did ask Olga/Ludmilla if she was controlled and he thought she said no. Sounds like a remake of the consensual sex/rape debate??
@rex_imperator - I don't actually know how many drivers are on the roads with 12 points or more but it is a substantial number since many courts accept loss of job as "exceptional hardship." As I said above, it is a moot point. The person who came before you with 18 points is an example - but, remember, they cannot use the same excuse again for three years!
Don't forget that the "kerb crawlers" can also be disqualified for driving under s.146 of the Powers of Criminal Courts (Sentencing) Act 2000.
We are taught that loss of job alone, is not exceptional hardship because the defendant can get another job. This doesn't seem so straightforward under the current economic environment. We also need to bear in mind that those who drive as part of their jobs often travel many times the average mileage and are statistically more likely to end up as totters.
To my mind, the whole experience of attending court and standing on oath before a bench has a far greater impact upon people, as compared to sending off a cheque in respect of a fixed penalty notice. I'd like to think that it persuades some of them to change their ways.
Finally, it should be remembered that it is possible to disqualify totters for less than 6 months, with reasons.
If the authorities can show that a prostitute is 'controlled' by someone, why don't they prosecute the 'someone'?
And if they can't show that the prostitute is 'controlled', how will they be able to prosecute the customer?
I have no problem with a six point FPN for doing 50 in a 30, anyone who does 50 through a town deserves to get banned.
However, not many people do 50 through a town as they know it is dangerous and stupid - lots of people do 90 on an empty motorway though...
I can see why these to subjects are difficult for mags; if you are kerb crawling you must by definition be driving slowly, so paying for sex is not really that much of an issue.
Well done Puzzled. You summed up this ridiculous legislation perfectly!
The most sensible - and popular - thing an incoming government could do would be to rescind at least 70% of the nonsense legislation and guidelines of the past decade. And frankly it matters little as to which pieces of legislation that might be. The police are ill-equipped in every sense to act as judge and jury - much as they might believe otherwise.
@Chuck
But try and persuade them of that fact...
Your comments about being disenchanted and having low morale are echoed by me. All of us working in Criminal Justice feel the same old thing.
Governments take us on at their peril I would argue. One day, many people will wake up and say, collectively, "enough is enough"
What do people think ?
JVIP
As far as I can recall, prostitution is basically defined as selling your body for personal gain. If that is so, then Jaqui Spliff has been guilty of that offence ever since she started spouting NuLab mantras. Also, being controlled by an evil, devious, person (take your choice from Gordon Brown, the late unlamented ex PM Blair, or even the party whips) means that anyone who has had any dealings with her whatsoever is guilty of a crime. I espect mass arrests any moment.
UpNorthJP - spot on. I was recently in court on a speeding offence and hre experience was much more uncomfortable than dealing with a PC at the side of the road. It seems the GVMNT are trying to introduce inconsistency into how traffic laws are interpreted.
As to the prostitution law - completely unworkable in my view, but that will not stop a few 'trophy' convictions, with some ruined lives to boot
"Widespread cynicism and rock-bottom morale. Sounds like we could use a British Obama." - We had one, Ed, we elected him in 1997 - and what a disappointment that turned out to be.
I don't often disagree with Peter Hargreaves but I must question his statement "many courts accept loss of job as "exceptional hardship". In my court it is such an accepted fact that loss of job per se does NOT constitute exceptional hardship it is never a moot point.
Cynical? Moi? Well, not till I had endured the learned Lord Chancellor's halting, lacklustre, content-free speech atteh Mermaid last Monday.
I agree with the above on Exceptional hardship. Loss of employment definitely does not constitute exceptional hardship in my Court either. We do have to consider the impact on dependents though which seems fair to me. Certainly in Courts I sit in the defendant is cross-examined to determine the extent of hardship. Unless of course you think we should ignore the consequences for innocent parties and put the entire family on benefits while the defendant tries to find another job for 6-12 months or so?
"Puzzled" touches on an interesting point with regard to the prostitution proposal. There is no draft Bill as yet so one cannot make any specific comment. The following is how I suspect matters will pan out.
"Why not prosecute the controller". Good question but, of course, they would have to know who the controller was. I suspect that this proposed new law will be drafted in such a way that a specific person as controller need not be proved.
As I see it, the prosecution would have to show that the woman was somehow "controlled" but whether or not the man knew she was controlled would be irrelevant (strict liability on that point). It will be fascinating to see what evidence is brought forward to show that the woman was "controlled."
One suspects a legal nightmare is in the making.
If you think morale's low now, brace yourself, It's set to go a lot lower over the next couple of years whne the cuts really take hold.
All very well if they want to crack down on people speeding, but how about making speed limits clearer? When I sat my test,urban dual carriageways were a 40mph limit. Now, look at Great Western Road in Glasgow, west of Anniesland Cross - urban dual carriageway, would be 40mph anywhere else, but it has a 30mph limit. Is it signed? Well, yes-ish, every quarter of a mile there is a sign tacked to the wrong side of a lamp post about the size of a digestive biscuit with "30" apparently scribbled on in marker pen.
After a mile or two of this, including a carefully-hidden GATSO, with no other changes to the surroundings, you pass a 50 sign and then straight into a large roundabout.
The other thing I don't entirely get is why Glasgow has about ten miles of 50mph dual carriageway that winds its way through more-or-less empty countryside up the A90 and down the A77. It's brightly-lit, there are only a couple of graded exits, it's clear straight road and yet for no readily apparent reason it's 50mph. At least they bothered to put up signs.
"I have never seen Bench morale so low - because if we don't feel trusted or respected by the Government we shall not trust or respect it in return."
insert police for bench and magistrates for government and you have hit the nail on the preverbial!!
you are now feeling what we have increasingly for the past 10 years!
ANON
Re Prostitution
Control does not require coercion, force, threats or any sort of financial hold over a person.
If a pimp takes bookings and passes on details to the woman, that is sufficient to prove control.
Sex with prostitute who works by herself - legal
Sex with a prostitute who works for a woman who takes bookings on behalf of her and several others, all the girls acting willingly working as prostitutes - illegal.
More half-baked, half-arsed legislation I suspect.
So under the proposed law would a woman who 'books' a gigolo through an 'escort' agency be guilty?
What about a man that aranges to have a massage through a 'massage parlour' and is then offered 'extras'?
What about a 'trafficked' woman who arranges some self-employed activity in an effort to break free of her controllers?
Legislate in haste, appeal at leisure.
Making it illegal to pay for sex under certain conditions that the punter cannot verify is very clearly incompatible with the Human Rights Act. The Home Office must know this, and saying they are going to legislate on that basis is simply a political gesture.
anon@7:05 You have to earn trust and respect, not expect it because you wear a uniform.
The government's proposal about prostitution was NOT accompanied by any draft Bill so it is not possible to be sure how the law will be drafted. "Wig and Gown" has had a go at telling us what "control" is but, at this stage, no one can be sure since we have not seen how government intend to define it (if at all). However, depending on the definition Wig and Gown's examples may be right.
DiscoveredJoys may also be right and he touches on the fact that "prostitutes" are not always women.
A certain Minister in the government sees all this in terms of men exploiting women and this Minister fails to consider that many women are escorts out of choice (even if they sign up to an agency) and can obtain a large income.
Chris has a good point about compatibility with the European Convention. I suppose that it is Article 11 which is engaged here in that people are free to associate with eachother. However, the State is permitted to interfere with this right. The interference has to be "prescribed by law" and must be "necessary in a democractic society" in the interests of matters such as prevention of crime, protection of health and morals.
Any law has to meet certain standards. It must be a law which is accessible and certain.
The European Court of Justice allows States a considerable latitude ("margin of appreciation") in some areas (e.g. public morality).
Further sentencing diversion for excessive speeding will fit nicely with the 1billion of cuts over the next three years that HMCS has to make - and that's before the effects of the credit crunch and recent government borrowing are considered. Take any bets that all strict liability offending will be taken from mags courts and given to police? Make other penalties for offences such as failing to pay council tax civil liabilities as envisaged in the regs for ID cards?
Oh well, I suppose we shall still be able to certify that someone has lost their pawnshop ticket!
Sussex JP - Spot in saying that as much offending as possible will be dealt with by non-court methods. Anything to save a few bob.
However, strict liability offences are often complex since it is not always every single element of the offence to which strict liability applies.
Perhaps sadly for magistrates, a good case could be made for making council tax default the subject of civil proceedings only. Interestingly, the civil sanctions could be quite nasty!! Making these an entirely civil matter will also stop the courts sending deliberate defaulters to prison and turning some of them into causes celebre whilst the sanctions might include a "charging order" on their home.
mcmrjp | 11.23.08 - 10:16 am
When I saw a policeman 25 years ago, I had an inbuilt respect for him. I was actually a bit scared and deferential. Probably because I had been brought up properly
The same went (by and large) for all grown-ups, including teachers, doctors, fireman, ambulance crews etc etc. Even referees!
They didn't have to EARN respect, and I have no idea how they would have gone about it.
Your attitude is symptomatic of the "what have you done for me lately?" culture which is sending society down the toilet.
UNRELATED POST - (sorry)
Hello, I couldn't find your email so I'd just like to ask you on here.
Why do police officers have to write the witness's occupation on the top of Witness Statment forms?
I've asked in the police and nobody can fatham it. I though that perhaps the court service demanded it?
http://www.judiciary.gov.uk/docs...gs-agm-
2008.pdf
Have a look at the end of the speech by Cindy Barnett, the outgoing Chair of the Magistrates Asscociation.
She expresses the sentiments of many magistrates, including myself.
@pcR: What *have* the police done to earn my respect recently? Nothing I can think of. The kind of thing that earns them my utter contempt was the incident when my fiancee's car was extensively vandalised - the police sent two spotty shorta**se teenagers who could barely string a sentence together. The sum total of their contribution was "Well if you din't see who done it what do you want me to do about it?" and "That back tyre looks a bit worn, if we'd stopped you with that you'd get three points."
Great. Very bloody helpful. What about the three huge dents in the roof?
"What do you want me to do about it?"
No, the police have a *very* long way to go to gain my respect, these days.
Everyone should readily acknowledge that Cindy has done a terrific job. Within the present government there are "dark forces" at work which will see the use of courts minimised and will see the loss of the truly independent elements within the criminal justice system: namely, lay magistrates and juries.
I would only differ from Cindy in that I do not see the family proceedings courts as "central" to the family justice system. As things stand at present, magistrates are receiving very little family work. A new "allocation order" is supposed to increase their work but I am afraid that I am not holding my breath. The reality is that the legal profession like appearing before professional judges and they will move heaven and earth to make out that a family case is so complex that only a judge could possibly grasp the points at issue.
No political party has tried so often to be rid of juries in serious criminal cases. They have failed only because of the vested legal interests in the Lords. Under no government has the use of District Judges in the magistrates' courts seen such a marked increase.
That's where we are and Cindy is essentially spot on.
I am feeling like a break now from commenting since I feel that I am beginning to plough the same furrow too often. Might reappear in the New Year. We'll see. To everyone, have a really great Christmas and all the best for the future.
@ Chris
I can't imagine that the proposed law would be ECHR incompatible -- let's hear your argument.
Very good point Gordon; and not at all unusual. That's the standard response from the police, whilst always trying to get an easy detection off of a victim. Nice work guys, that's just the way to go to earn respect.
Nicked shamelessly from Leg-Iron's blog:
"the police and the public have been separated so effectively that the police now regard everyone as a criminal, and few people now trust the police."
The following link is a letter giving details of a [preface in the latest Archbold, from such an authority it does make interesting reading http://www.telegraph.co.uk/opini...plit/
dt2201.xml
@Jon
Under the Sexual Offences Act 1956 a man who had intercourse with an under-16 was criminally liable whether he knew her age or not. This piece of legislation was originally passed in 1922. After the Human Rights Act the House of Lords dropped a broad hint, in a case where the question did not directly arise, that such a provision was not HRA-compliant; liability for a serious offence could not depend on the defendant’s knowledge of a fact which he did not know and had no means of knowing. Accordingly, the Sexual Offences Act 2003 changed the law so that the prosecution must prove that the accused did not reasonably believe that the child was 16 or over. Whereas age could be established with a birth certificate, however impracticable that might be, to prove the negative that a woman is not being controlled etc. is completely impossible.
"More half-baked, half-arsed legislation I suspect." - But it got headlines, Wig, so job done as far as Jacqui Spliff is concerned.
Peter H - We'll miss your erudite and learned comments. Have a good break, but hurry back.
@Peter
Have a good one, and nihil carborundum.
@Chris
I didn't know that -- don't suppose you have the case name to hand? I have to say that it runs contrary to my own understanding based on Salabiaku v France and later European cases, viz. that the effect of Article 6 ECHR (I presume we're talking about Article 6 here?) on strict liability offences is negligible. Furthermore, a similar line of argument in connection with the s. 5 SOA 2003 offence of rape of a child under 13 was rejected earlier this year by the House of Lords in R v G.
Police Officers in Court are entitled to exactly the same respect as a defendant in a trial or anyone else appearing in court. No more no less. Police Officers are only human, they make mistakes, their recollection can be faulty. To give a Police Officer's word priority over a defendant of good character (unless we know otherwise)simply because the PC wears a uniform would be counter to concept of a fair hearing.
In addition I have personally seen police officers tell blatant lies to court and be caught out (though far more defendants). We cannot tell simply by looking at a person or by their occupation whether they have told the truth or not. Why stop at Police officers? Surely doctors are trustworthy too, and maybe Dentists? How about teachers...
ANON's comments about the police not being respected in court by the Bench is the most ridiculous statement I have heard in a long while.
@ Jon
This excerpt from a College of Law/Open University paper is relevant:
"There is a view that strict liability offences could be challenged under the Human Rights Act 1998 on the basis that the existence of such offences is a breach of Article 6(2) of the European Convention on Human Rights, i.e. that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. However, such challenges in other jurisdictions have failed: in Salabiaku v. France (199
13 EHRR 379 the European Court of Human Rights said that the creation of a strict liability offence was not a breach of Article 6 provided (it seems) there was a rebuttable presumption created by the offence, e.g. if there was some provision for the defendant to avoid liability for the offence (such as by claiming he or she had an honest belief in a set of circumstances), there was no breach of Article 6. As most of ourcriminal offences of strict liability do have such a provision, the existence of strict liability offences will usually be difficult to challenge."
This proposed law will specifically not have such a rebuttable presumption, but the HoL in R v G to which you referred me talked of the difficulties of interpretation of Salabiaku. I think I should modify my original comments to say simply that the proposed law may be open to challenge under the HRA
@Chris
I think the problem with that argument is that the statute in Salabiaku did in fact create a conclusive presumption -- it was the French courts that carved out a limited defence of force majeure. And there's no reason to suppose that certain common law defences wouldn't be available for the proposed new offence (rare though some of them will be in practice) e.g. mistake as to the nature of the act, automatism, duress, coercion etc. But I agree that the law would be open to an HRA challenge, and it's certainly true that Salabiaku is not one of the more shining examples of Strasbourg jurisprudence!
@Chris
[The CoL/OU paper quotes] the European Court of Human Rights [as saying] that the creation of a strict liability offence was not a breach of Article 6 provided (it seems) there was a rebuttable presumption created by the offence, e.g. if there was some provision for the defendant to avoid liability for the offence (such as by claiming he or she had an honest belief in a set of circumstances), there was no breach of Article 6. As most of ourcriminal offences of strict liability do have such a provision, the existence of strict liability offences will usually be difficult to challenge."
I suggest that if the offence includes not having such a reasonable belief, that is mens rea and therefore the offence is NOT strict liability.
@ Ed
You have touched on an issue of some academic controversy. One school of thought, which included Lord Lane CJ, to judge by his remarks in Gladstone Williams, has it that the absence of a valid defence is part of the mens rea. The other, which includes Professor Lanham and the drafters of the draft Criminal Code, has it that the absence of a valid defence is a separate, negative element of the offence.
Taking the first view, one could argue, as you have done, that the existence of a defence relating to the belief of the defendant necessarily imports an element of mens rea into the offence. That's all well and good, but it doesn't follow that the offence is then not one of strict liability.
The definition of a strict liability offence is one that does not require proof of a mental state in relation to one or more elements of the actus reus *not*, as you appear to have it, one that has no mental element at all. The latter kind of offence is incredibly rare -- in fact, I'm not sure any still exist, and if they did they would almost certainly be HRA incompatible for the reasons already discussed.
@Jon
It will help us all if you can show an example (even a fictional one) of an offence that has a mental element, but not one "in relation to one or more elements of the actus reus".
@ Ed
Sure, no problem. In the case of Gammon (Hong Kong) v A-G of Hong Kong, the Privy Council considered whether the offence under the HK Buildings Ordinance of "[diverging] or [deviating] in any material way from any work shown in a plan approved by the building authority under this Ordinance" was an offence of strict liability. Their Lordships found that it was, despite ruling that knowledge of the approved plan and of the fact of deviation were elements of the offence. The crucial point is that knowledge of the materiality of the deviation was not required to be proved.
As counsel for the appellant expressed it in Sweet v Parsley: "There is a category of absolute offences in which the lack of guilty knowledge does not entitle to an acquittal. In other cases the offences are not absolute but the liability is strict. There the prosecution can establish a prima facie case but the defendant can exculpate himself by proving lack of guilty knowledge [as in the example we have been discussing]."
@Jon
I humbly submit that strict liability is actually what is described in the Sweet v Parsley quote above as "absolute liability".
Re defences, I submit that if an offence has a defence special to it (since general defences apply to all offences so far as I am aware), then effectively the absence of that defence is an element of the offence. Parenthetically, I prefer things like that to be stated in the positive as an element of the offence, rather than with the double negative of allowed defences, but apparently I'm not cut out to be a civil service drafter.
Therefore, I submit that in Gammon, although the PC may have attached the label of "strict liability", the practical outcome is this: the effect of the change between the outcome and the plan must be "material" (objective component), and D must have knowledge of the two parts: plan and outcome. All the PC appears to have ruled is that D's subjective knowledge (or really, opinion) that the change was not material is irrelevant, which seems legitimate for them to decide, since otherwise any D could just claim they didn't think their change was material, gutting the law.
In my view, that does not make it strict liability according to any definition that means anything. I submit that strict liability = no mental element.
@ Ed
Personally, I would happily do away with the term. I think it makes sense to talk of liability being strict as to a particular element of the offence (e.g. as to the materiality in Gammon), but the overall classification of offences as strict, absolute or otherwise is somewhat murkier. However, going back to where we came in -- parsing the OU document -- it seems clear that the writers were using the term as I have defined it above (which is also the definition favoured by Halsbury's Laws, Smith & Hogan, and by the PC, HL and ECtHR in a number of decisions).
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