Fast-track to Justice?

I restrained myself from rushing to the keyboard when I read yesterday that the Lord Chancellor’s Department were considering a fast track process to deal with, what the original “leak” described as, petty offences.

I have now had the opportunity to hear Lord Goldsmith outline his proposals on the Today Programme this morning. You can hear the interview  here .
It is reported here 

There will of be cost savings, but as suggested in yesterday’s leak, they will not reduce the Criminal Legal Aid bill significantly.

I assume candidates suitable for fast tracking will be those adults who are first time offenders or possibly second time offenders who may have received a previous caution. These groups are unlikely to be granted criminal legal aid by the magistrates.
Those who are subject to an ongoing penalty- Community Rehabilitation or Punishment Orders or conditional discharges- will certainly end up before the bench, as will under 18’s, whose sentencing regime severely limits the imposition of financial penalties for offences of theft and criminal damage.

With fewer punters to deal with the chronic shortage of Magistrates and the consequent dreadful delays suffered by all those involved in the system may be cured at a stroke.

But in practise, even straightforward offences often have difficulties. I gave an example of a potential miscarriage of justice here yesterday. I suspect most criminal lawyers have hundreds of examples within their archives!

This is Section 4 of the 1968 Theft Act. It defines “property”.

“(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say-

(a) when he is a trustee or personal representative, or is authorised by power

of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or

(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

For purposes of this subsection ‘land’ does not include incorporeal hereditaments:

‘tenancy’ means a tenancy for years or less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and ‘let’ shall

be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

For purposes of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.”

I would be surprised if many “fast trackers” would seek legal advice when they come up against this. Legal Help available from a shrinking number of solicitors still dealing with legal aid cases is now restricted to the indigent. At least with the Duty solicitor Scheme at magistrates’ courts, those charged with this type of offence can obtain free legal advice on the day of the hearing. When handed their shoplifting ticket there will be almost unbearable pressure to tick the “GUILTY” box and post the form back to the local police station!  This attitude may be reinforced if they were to discover in the present Magistrates Court's Sentencing Guidelines, the starting point  for sentencing an offender convicted of theft is  a Community Penalty!

The proposed system has miscarriage of justice through the middle of it as if it were a stick of Blackpool rock.

But surely, the most egregious part of the proposals is the suggestion that the Prosecutor in consultation with the police will be responsible for sentence.  I'm not persuaded when the Lord Chancellor tells the Today interviewer that there was "no question" of prosecutors determining guilt or innocence or sending people to prison. Has this government come to such a state they no longer even consider before imposing the sentencing function on the prosecutor?  If this was enacted as part of the Bill it would surely be open to a Human Rights Act challenge as a breach of the fair trial provisions of Article 6. This requires trial “by an independent and impartial tribunal. How it can be said that sentences dished out by the state agencies comply with this beats me.