Whilst reading Laura Frampton’s thoughtful and balanced article on ‘Paedophile hunting and the Management of Sex Offenders’ (BJCJ 12th July), I reflected on some of the real dilemmas that sentencers face when judicial decision making constrained although not confined to working within existing sentencing guidelines, (in the interests of justice test is the fallback position when departing from prescribed guideline penalties for offences that often lie on the cusp between community and custodial outcomes). But impose an obligation to consider a condign sentence or reach a bail decision that adequately reflect levels of culpability and harm and the particular and often challenging circumstances of the defendant.

I have been sitting as a magistrate in a busy London court for over five years (having previously worked as a probation officer for twenty years) *. I wanted to share with the readership two particular but unsettling cases that stood out from the hundreds of cases that I have been involved with, as a winger in the magistrate’s court that touched on the thorny issue of sentencing/bail decisions. When defendants appeared before the bench either accused of sexual offences or when dealing with a challenging bail application in which sexual offending has occurred.

In the two cases referenced, due to the shortage of magistrates sitting in the local court, meant that I was the only winger sitting with a chair (now referred to as a presiding justice) In light of this vacancy shortfall, the normal practice of having three magistrates sitting on court hearings was usually reserved for trials.

The first case that I recall having to spend considerable time in deliberation on with a ‘fraught’ chair ( who had a pressing domestic emergency to deal with) involved a defendant who appeared toward the end of a particularly busy sitting in one of the remand courts (which normally deal with bail decisions and committal hearings to the Crown Court). The defendant was facing indictable offences of historic sexual offending (that is the alleged offences dated from a broken relationship that had concluded some years before). His advocate presented a well-argued case for conditional bail prior to trial and I was persuaded by this in light of all the relevant factors, including suitable and proportionate safeguards to protect the complainant.

My colleagues view differed, and we agreed to retire to discuss options before returning to court. He was adamant that the offences were too serious for bail (although offence seriousness is not in itself a reason to withhold bail) and we spent over half an hour in animated deliberation poring over the specifics of the case without reaching agreement. At this point the legal adviser, came into the retiring room to request that a decision be made or if no agreement could be reached; Then the case would need to go to another bench (or before the District Judge) with the defendant most likely held in custody overnight. At this point, my colleague ‘relented’ (it was apparent that his domestic preoccupations had been a critical factor in this decision) and we agreed that conditional bail could be considered with restrictions imposed commensurate with the concerns identified.

I experienced an uncomfortable few moments on returning to the courtroom, when the defendant’s legal representative, who had braced her client for a likely remand in custody, evinced some undisguised elation and my colleague let out a grittily voiced pronouncement with the usual warnings on the consequences of any breach of bail. I left the court at the end of the day, feeling most unsettled that the outcome of a bail application seemed to pivot on the pressing demands of a domestic emergency rather than a shared understanding that bail was fully merited!

The next case involved a defendant who appeared in custody, again I was the only winger sitting with a chair, who had pleaded guilty to an allegation of being in breach of the terms of his sexual offenders registration. The defendant had served consecutive short prison sentences for the same offence. As he was homeless, he was required to report to the nearest police station within seven days of release to notify the police of his ‘ whereabouts’. His disturbing presentation in the secure dock, a suggestion of mental illness mooted by the duty solicitor who was representing him and the fact that he was most likely known to the probation service. Prompted me to quietly nudge my colleague, that the case be put back for the preparation of a pre-sentence report.

I was more than a little shaken when the chair unblinkingly uttered (his comments were clearly audible to other court users) that ‘he is going down’! We retired and having previously robustly clashed with him on reaching a past sentencing decision, albeit in a more broadly measured and respectful way. I sensed that this could be another such likely denouement. We returned to the courtroom, he conceded that the probation service needed to offer the court an update on the defendant’s response to supervision. As all the courts were then at full stretch, ten minutes elapsed before the rather hassled looking probation worker appeared, as other cases awaiting the court’s attention were put back. The defendant was in fact in breach of his licence conditions, and it was looking distinctly unpromising that any non-custodial outcome might be on offer.

But I stood by the view that a homeless defendant, with a troubled history of mental health and sexual offending and who had now served consecutive prison sentences for the similar offences (failing to register with the police due to his unstable personal circumstances), should be afforded an updated probation/mental health assessment. The mien and disposition of my colleague, in a packed open court, was most unnerving, but I was convinced that this was a just and proportionate outcome. The sheer futility of imposing yet another costly custodial sentence without post release support seem unarguable, at least to me! (one of the determining factors in pushing ahead with the much contested government’s TR reforms being to obviate such revolving door scenarios!)

In the event, the legal adviser, to resolve the split decision suggested that the case be transferred to another bench for sentencing or maybe even an updated assessment! The bemused defendant was escorted to the cells and we proceeded with the next case on the list. At the end of the day, in the post-court review, my colleague averred that it was my probation background that had bolstered my judicial resolve! But it seemed evident that the approach to judicial decision making in such cases, whilst offering scope for other perspectives, appeared more aligned to what I perceived as deeper philosophical differences and contextual understanding (again my probation background seeping through) in the way certain forms of judicial outcomes were reached. Not least when cases that involved sexual offending appeared before the court. The expression ‘ intuitive synthesis ‘ is one that does not readily trip off the tongue in a busy court setting.

But when faced with the judicial responsibility to pass sentence or consider bail, there are many and varied interstitial moments of contestation and outlook to consider that are often lost to view in a busy court setting, but which might offer researchers a richer heuristic appreciation of some of the more hidden aspects of justice embedded in what is referred to as ‘ structured decision making’ drawn from sentencing guidelines which feature prominently in the rather paltry professional training currently offered to magistrates .

I hope that these few observations culled selectively from a wider palette of judicial decision making highlight that even before those convicted of sexual offences are ‘managed’ in/out of custody and in the community. There is a broader hinterland of ‘under -researched’ and often contested judicial deliberation taking place daily in the retiring rooms of the magistrate’s court.

Mike Guilfoyle – is a retired probation officer/magistrate and writes a monthly blog for the Centre for Crime & Justice Studies( CCJS).