ARE GUIDELINES ACTUALLY REQUIRED FOR "EXCEPTIONAL HARDSHIP"?

I have posted here more times than I care to remember on the topic of exceptional hardship.  They can be accessed by putting those words in the search box.  I have also posted not infrequently that the sentencing abilities of a magistrates bench have been greatly restricted by the ever increasing "guidelines" from the Sentencing Council. There must now be thousands of magistrates who have no experience of a bench under an experienced chairman following a well developed sentencing structure in which, sometimes under the guidance of a legal advisor and sometimes not, a sensible ladder of various and varying possibilities played out. The current system will, if not now, in time lead to a tick box system in which an algorithm will issue a sentence and the bench will be tasked with deciding if any amendments are needed for any individual case.  Exceptional hardship is one of the diminishing number of issues for which no guidelines currently exist although my understanding is that that exception is currently under review.  A recent simple report makes the problem clear.  The very essence of the totting procedure is that every driver should be aware that 12 penalty points within three years equals disqualification.  For many high street law firms exceptional hardship is a very nice money tree.  In my early days on the bench as a newbie winger my protestations against my senior colleagues` decisions to allow the exceptional hardship defence in the flimsiest of arguments went unheard.  As a chairman having done some individual research as was available on the subject I would steer my colleagues along strictly rational grounds sometimes in conflict with an overbearing intrusive legal advisor voicing her concerns which we took on board and rejected. Latest  figures from the Driver and Vehicle Licensing Agency (DVLA) show that nearly 9,000 drivers still hold a licence despite exceeding the 12-point threshold.  Why should anyone with customers/ clients/ patients dependent upon their advice/opinion/labour be treated more favourably?  Where is a line to be drawn?  From my experience colleagues wanted to accept arguments from  middle class professionals much more often than from those of a lower social status. I firmly then as  now reject this view. The doctor in the case above was well aware of the consequences of her actions.  Indeed it might be argued that she would (should)  have been more aware than most of the consequences.  Indeed her culpability IMHO was increased by her social and professional position. An interesting argument which should be mandatory reading for all magistrates was heard at the  APPEAL COURT, HIGH COURT OF JUSTICIARY in Scotland 2012.  As is often the case appellants with adequate financial resources have the wherewithal to challenge a ban resulting from losing an exceptional hardship argument.  Perhaps this is actually an area where magistrates need to be subject to guidelines so that their oath might be realised in actuality as opposed to theory. 

 “I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.”

PLUS CA CHANGE ...................

We now have the 8th Lord Chancellor/ Justice Secretary since 2010. It doesn`t need advanced mathematics to appreciate that at that rate it is impossible for anyone however gifted to truly appreciate all the nuances of the job and to set the direction of travel without the combined resources of those who keep the wheels turning ie the department`s civil servants.  But the great British public really doesn`t care about "justice" until perhaps the summons appears in their letter box.  Al they know is the few brief lines in their local paper or what they read or hear on social media:- Twitter Law. With in depth reporting of criminal matters becoming more sparse week by week, headline criminality excepted, it is cases like this which form the concept of "justice" in the public mind.  Compared to many that report seems comprehensive but it leaves the impression of "soft" justice: perhaps that is justified.  There is nothing reported by the presiding magistrate which seems to justify the leniency dished out to this offender.  Taking this a step further it is this mindset which has increasingly driven sentencing to the highest levels of severity in a generation at a time when prison conditions are fast approaching a national disgrace, probation services have yet to recover from their decimation by the most incompetent of the previous seven Lord Chancellors  and increasing emphasis on so called victim-hood. The new boy at Petty France will, no doubt as all his predecessors have done, in due course issue a long statement of how knife crime will be a priority and criminals will receive their just deserts but all I can add is plus ça change plus c'est la meme chose.

A PAT ON THE BACK

For the first time since my retirement I attended a magistrates court not long ago. In the past I have described,  as an insider, some of the shortcomings of my own court and the system in general.  Indeed much frustration has been ventilated here but the 10.00 a.m. start of that recent session demonstrated to me at least a facet of English justice of which I felt justly proud to have been a very very small part. Whether that experience was typical is another matter. 

In the witness box: a Spanish interpreter sworn in; at hand a young woman recently arrived from South America was to make a statutory declaration. She had recently received a notice from a firm of bailiffs demanding around £600 in fine plus costs for non payment of a fine for a motoring offence. Her declaration stated that for various reasons she had received no earlier notification that any offence had been committed, no demand for payment and queried the offence details themselves.

The procedure was carefully explained and translated for her and she left the courtroom with a perfect understanding of what might follow. I thought to myself what other country would provide such a service at no cost to a short term visitor with only her native language available for all but the most basic topics. 

ETHNIC PAKISTANI MURDER RATES BELOW THE HORIZON

 

A decade ago most people would have been hard put to offer a meaning to the term "woke".  They had gotten used to the term "politically correct" but there was another expression which had yet to appear amongst the deluge of print in broadsheets and others; "cancel culture".  The term "racist" had become common parlance decades ago.  Until perhaps thirty years ago it was used in its basic form as an adjective  to describe being prejudiced against or antagonistic towards a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalised.  As a noun it identified being a racist as a person who is prejudiced against or antagonistic towards people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalised. How times have moved on. Whilst the "N" word is virtually forbidden and rightly erased in almost any context there are still epithets in common parlance used to denigrate Jewish people; Jew boy and Yid can still be heard whilst Zionist has been robbed of its true meaning to castigate Jews (Israel) for the situation of  those in Judea and Samaria who term themselves Palestinians.  It is ironic that there have been historic periods when the Jews of mandatory Palestine and earlier were themselves termed Palestinians.  Currently the term Paki has been become an overall term of derision for those originating from the sub continent. The users appear to be indifferent to or unaware of the dozens of ethnic minorities from Iran to Afghanistan and including Pakistan  many of whom wear a head covering or clothes of their ethnic backgrounds. However there is no doubt that many of those of Pakistani descent in England  are from families who originally inhabited outlying rural areas where Sharia was predominant as opposed to the more cosmopolitan people of the cities eg Karachi and Islamabad.  Many of those families settled in the north of England. For the last twenty years many organisations including police and politicians have gone overboard to explain the criminal actions of Pakistani men, often now 2nd or 3rd generation in this country as somehow not being associated with their ethnic status. They felt the risk of being called racist was more than they or those for whom they had responsibility could bear. And so the scandals of abused white girls by Pakistani men went underground and denied by the "great and the good" until pressure was so overwhelming that the roof was raised at the extent of what was effectively a cover up of the real facts.  The racist abuse of the accusers was quietened for a while. 

That now brings this post up to date. The UK has a population of 62 million.  Those identifying as Pakistani number 208,000: i.e. 0.34% of the population.  The table below shows that of 265 convictions of murder in 2020 seven of the offenders were of Pakistani ethnicity. To put that in context those seven represented 2.64% of the total number of convicted murderers. In other words that ethnic minority`s murder rate was 776% in excess of its numbers in the population.  These are government statistics; facts and facts alone. I believe there are vested interests in keeping those facts, shall we say, below the horizon and generally out of sight. 

STAR CHAMBER 2021 STYLE

A simple question; can justice in its myriad forms be secret?  The answer must be a resounding "no". Whether in the confines of a small room in a magistrates court where  the Single Justice Procedure is in operation,  in the hinterlands of China or at 81 – 82 Queens Building, Royal Courts of Justice, Strand London, WC2A 2LL, the home of the Judicial Conduct Investigations Office,  the answer is the same; no, no and no. It is not fanciful nor an exaggeration to refer to the last named as a Star Chamber; a system with an ominous history.......... an English court which sat at the royal Palace of Westminster, from the late 15th century to the mid-17th century, and was composed of Privy Counsellors and common-law judges, to supplement the judicial activities of the common-law and equity courts in civil and criminal matters. Being under the suzerainty of the sovereign its processes are a historical treasure trove.  Indeed they were formalised as follows:-

The proceedings, recorded in English, gathered together the details of a case as presented by plaintiff and defendant. Each of the following stages in the proceedings was officially recorded:

 A petition or bill (also known as a pleading) from the plaintiff would be submitted to the court laying out their grievance

 A response from the defendant, known as an ‘answer’

 A response from the plaintiff, known as a ‘replication’

 A further response from the defendant, known as a ‘rejoinder’

 Interrogatories – a set of questions that could be put to the witnesses of either party – in some cases interrogatories seem to have started off the procedure

 Sworn testimony, known as ‘depositions’, in answer to the questions in the interrogatories

Those unfortunate enough to come within the judicial orbit of the JCIO are faced with navigating the The Judicial Conduct (Magistrates) Rules 2014 and its updates.  

This year to date 18 magistrates have been sanctioned by the JCIO.  How many have been investigated and have escaped "notoriety" is as much a state secret as the number of Boris Johnson`s illegitimate children or the Duke of Sussex`s real father.   Of these unfortunates eleven were found to have failed to sit the minimum number of times strictly specified to them at their interview and certainly discussed with each before disciplinary proceedings were initiated. But we will never know why a sitting MP on the supplemental list was allowed to continue in that position even although he had previously faced disciplinary sanction.  It is apparent that any JP who is automatically shifted to the supplemental list at retirement and who wants to retain the perceived vanity of the letters JP on his/her letterhead had better not be caught for the most minor misdemeanour which might lead to a conviction or a suspected contravention of the judicial conduct rules above. But there have always been those whose interest in the magistracy has 99% to do with his/her perceived kudos of that suffix and 1% to serve his fellow citizens in the justice process. Nevertheless whilst the General Medical Council and many similar disciplinary bodies hold hearings in public or publish the content of such hearings it is notable that misconduct of police and judges is still under the cloud of secrecy.  Perhaps it will be historians in the 23rd century who will have access to these matters as we now have to the processes of the Star Chamber.  

POLITICS AND THE INTERESTS OF JUSTICE

Perhaps the single most reasonable criticism of our courts is that to many observers the sentence doesn`t fit the crime.  Very few matters, especially at magistrates courts, are reported in a degree of depth that allows knowledgeable and fair criticism. That in itself is IMHO a valid enough reason why media outlets and government should explore the benefits to each of live TV or on line screening of the day to day happenings at magistrates courts initially and crown courts in due course.  This post inter alia consists of extracts from recent newspaper reports which indicate sentencing which some readers might find disturbing (to paraphrase some of the ridiculous woke pronouncements heard every day prior to the showing of some TV programmes)  insofar as the apparent variation or inconsistency shown by the benches in question. Thousands of similar cases are heard every year.     

 The following case was heard at Reading Magistrates’ Court Friday, May 21

JORDAN HINDS, 27, of Holberton Road, Reading, admitted possession of cannabis in Reading on October 9, 2019. He was also convicted of two counts of driving under the influence of cocaine and one count of driving under the influence of cannabis on the same date. He was banned from driving for 12 months, fined £530, ordered to pay court costs of £620 and told to pay a £53 victim surcharge.

 A ROUND-UP of recent cases heard at Newport Magistrates’ Court.

MATTHEW WILLIAMS, 27, of George Lansbury Drive, Newport, was jailed for six weeks and banned from driving for three years and 21 days after he admitted drug driving in an Audi S3 with cocaine derivative benzoylecgonine and cannabis derivative delta-9-tetrahydrocannabinol in his blood on Ringland Way on December 27, 2020. He was ordered to pay a £122 surcharge.  

16th August The Mail Barrow in Furness South Cumbria Magistrates Court

Barrow drug driver disqualified for 12 months

MAN from Barrow has been disqualified from driving for 12 months.Liam Clawson, of James Watt Terrace, Barrow, was found to be over the legal limit for benzoylecgonine whilst driving on Island Road on February 10. Clawson, 33, admitted the offence at South Cumbria Magistrates' Court last Tuesday, where he was also fined £150. 

DRUG driver has been banned from driving for 15 months by magistrates.Mr Kamen Alty, of Maple Avenue, Ulverston, was found to be over the legal limit for cannabis whilst driving an Audi A3 along Quebec Street on May 28. He admitted the offence at South Cumbria Magistrates' Court on Tuesday, August 10, and was also fined £300.

The following are the latest results contributed by HM Courts Service, for cases sentenced by West Sussex Magistrates’ Court sitting at Worthing and Crawley from July 30 to August 6, 2021.

Alan Young, 66, of Ham Close, Worthing, was fined £186 after admitting drug-driving (118ug/l benzoylecgonine) in Clifton Road, Worthing, on January 1, 2021. He was also fined £186 and must pay £115 costs after admitting drug-driving (106ug/l benzoylecgonine) in Tarring Road, Worthing, on February 23, 2021. He was disqualified from driving for 24 months.

Andrew Brown, 44, of Ruskin Road, Worthing, was given a community order and must carry out 80 hours’ unpaid work after admitting drug-driving (5.5ug/l Delta-9-THC) in Penfold Road, Worthing, on January 16, 2021. He must pay £85 costs, £95 victim surcharge, and was disqualified from driving for 36 months.

Robert Walters, 19, of Monterey Gardens, Bognor Regis, was given a community order and must carry out 60 hours’ unpaid work after admitting two charges of drug-driving (85ug/l benozylecgonine, 5.6ug/l Delta-9-THC) in Crookthorn Lane, Climping, on January 1, 2021. He must pay £85 costs, £95 victim surcharge, and was disqualified from driving for 12 months. 

Aaron Pelling, 35, of Angola Road, Worthing, was fined £80 and must pay £34 victim surcharge after admitting drug-driving (300ug/l benzoylecgonine) in Findon Road, Worthing, on November 13, 2020. He was disqualified from driving for 12 months. 

For those convicted of drug driving in the magistrates court the penalties are:-

a minimum 1 year driving ban

an unlimited fine

up to 6 months in prison

Many high street solicitors make a handsome living for defending those accused of drug driving. A single and well reasoned example can be accessed here. 

The Sentencing Council`s latest guidance on drug driving is copied below:-

Driving or attempting to drive

Triable only summarily

Maximum: Unlimited fine and/or 6 months

Must endorse and disqualify for at least 12 months   Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to disqualification guidance. Magistrates: consult your legal adviser for further guidance

Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further guidance

I would assume (hope?) that on the bench all magistrates (and of course DJs) would have that guidance before them. However since the concept of local justice by local magistrates has been effectively discarded it is even more important that the national guidelines and guidance is applied fairly across the board.  Raw annual statistics poured over by broadsheet newspapers and academics is no substitute for bringing home to the public the results of what is happening in the courts.  Indeed the secrecy of the Single Justice Procedure makes this increasingly necessary.  When the public loses interest in the law government smiles.  I have previously here argued for what is simply called Court TV.  It has long been available in USA and there is a TV channel of that title available on Sky.  Partial televising of a criminal court process has been undertaken in Scotland and the Supreme Court is available on line.  But make  no mistake; this government is withholding itself from scrutiny in many aspects.  It is being disingenuous on the supposed construction of new hospitals, on the numbers of "new" police officers; in the latter case attempting to replace the same number removed from the service since the Tories took over from Labour in 2010. Open justice being seen to be done is a pillar of any democracy. There is however apparently little interest from those supposedly looking after our liberties in seeking this objective.  Perhaps it`s because most of those people and groups are of a leftist persuasion and IMHO there is little doubt that the capitalist media would have to be the partner to government and that would not sit squarely with their politics. So once more I assume that the politics of the situation outweigh the interests of justice.     

TAXIS AND THE APPEAL COURT

All those with more than a passing interest in criminal law will be well aware that verdicts and sentences at the magistrates court can be appealed at the crown court where a crown court judge and two magistrates will re hear the case.  This is entirely logical and understandable insofar it is rightly expected that under a judge`s scrutiny any deviations in the correct application of the law which occurred in the original hearing will not be repeated. However the magistrates with that aforementioned proviso have equal input into the determination of facts and the logical thinking in the imposition of sentence if indeed the defendant is found guilty. The single most disturbing factor of such process is that many benches do not explain an offender`s right to such an appeal process. For the ever increasing numbers of unrepresented defendants this is an omission for which I have the utmost contempt for my former colleagues.  Indeed I can recollect after making this information clear to an offender that in the retiring room one of the wingers remarked that he had no knowledge of such a procedure as it had not been mentioned at any training session.  Rising up the scale of seriousness it seems quite appropriate that there is in practice a similar process for offenders convicted at crown court. As at 15 February 2021, there are 105 Justices of the High Court (16 Chancery Division, 20 Family Division, and 69 Queen's Bench Division judges), 74 male and 31 female.  Naturally one would expect that those individuals would possess greater intellectual powers than in those of the lower level to enable them to be more expert in the interpretation of the law.  That is not to say that there are no crown court judges who could fulfil the requirements of their senior colleagues. As of 14 June 2021 there are  26 Lord Justices of Appeal and 9 Lady Justices of Appeal. At the top of this legal pinnacle is the Supreme Court where there are currently 12 judges. For a layman it is simply impossible to be certain that each one of those dozen individuals is worthy of his/her position when measured against their colleagues in the tier below. And similarly when a High Court judge is measured in whatever manner is the format against a supposedly higher grade at the Appeal Court can we, the great British public, assume that all is hunky dory at the senior levels of our judiciary?  Thankfully there is a limited number of occasions where there is demonstrated the stark contrast in the reasoning between two levels of decision making.   From one such an extract from a very recent press report reads as follows:-

However, the Court of Appeal’s full decision, which has now been published, pulls her ruling apart, with the three judges saying that it was “extraordinary and not right” that the steps taken by TfL and the Mayor be described as “extreme or ill considered,” nor were there grounds to view them as “irrational.”

They said that Mrs Justice Lang “seems to have given no or almost no weight to the fact that the [decisions taken by TfL] were made on or by 15 May 2020 at a time when the duration and future course of the pandemic were wholly unpredictable.”

The above comments are from the case below a full transcript of which is available here.

This successful appeal should be a mindset check for those who are responsible for the appointment of our judiciary especially at this senior level. From cases where contrary to official guidance magistrates are publicly criticised by crown court judges to controversial decisions by a split Supreme Court a public must trust in the quality and integrity of the senior judiciary from the Lord Chancellor downwards. When that trust evaporates it is an early signal that similar is happening within our democracy.   

ILLEGAL MIGRATION AND PRISONER REPATRIATION; IS THERE A SOLUTION?

It seems we have become accustomed every week of every summer to reading of the increased number of  individuals being assisted ashore on the south coast from a variety of flimsy often unseaworthy inflatable craft more suitable for cruising down a rural river than crossing the 22 miles of rough sea from the French coast.  For the last decade the Home Office, an institution described by John Reid a previous Home Secretary as not fit for service, has been unable to institute viable policies to control this illegal immigration. Indeed it is arguable that this failure alone contributed to the success of the Leave campaign. How foolish was the public to believe that outside the EU we would have more power to halt this influx than inside but that is another story.  Recently the Home Secretary has produced yet more legislation to try to control the masses fleeing war in the Middle East and Africa. Short of ramming these craft there is little doubt that whilst there are migrants with cash and gangs with little fear of detection and retribution this latest attempt to stop the flow will prove as futile as the previous ones.  

Whilst the Home Office is wallowing in its own disfunction the result of the criminal activities of those  foreigners whether legally or illegally in this country is almost as chaotic as the Ministry of Justice then becomes involved.  Of its 77K workers the press office of that department of state must be among the largest in Whitehall. Rarely ten days pass without an announcement of further good intentions. The latest such offering is available here.  Is there anyone reading this who does not know that beginning 2010 with 23.8% sliced from its budget that the MOJ has been starved of enough funds so much so that law `n order by any interpretation has been financially butchered from the numbers of police to the failure of the prison system with courts, legal aid and probation falling by the wayside. That recent statement above from the Secretary of State refers mainly to the probation and prison services both of which were mangled beyond belief by the worst, most inept cabinet minister in post war history half a decade ago. When it comes to return of foreign prisoners to their countries of origin it seems the two departments of state collide.  The latest document i.e. the rule book from the National Offender Management Service is available here. Personally I recollect a single occasion when unusually an offender had in my opinion transgressed such that he was eligible to be deported.  The official channels through which we as a bench made the information as appropriate  blocked us at every turn. On 26th July with more fanfare from the MOJ a statement on the return of Albanian prisoners was released. It remains to be seen how effective is this agreement.  Current figures for Albanians and others returned from British prisons are below.

There is no doubt that there are considerable obstacles to be overcome when this task is to be considered however much the Daily Mail seeks to blow the MOJ trumpet.  Here is a brief summary.  Considering the government`s record I don`t think we should be too hopeful.  

https://www.gov.uk/government/publications/immigration-enforcement-data-august-2020 (Table FNO_09 in Transparency data Immigration Enforcement data: August 2020, provides the numbers of foreign nationals removed under the Early Removal Scheme every year since 2010 but that there is no published data that breaks down these numbers by nationality or offence type).

	FNOs repatriated under EUPTFD convicted of human trafficking or modern slavery offences	FNOs repatriated under CoE Convention convicted of human trafficking or modern slavery offences	FNOs repatriated under bilateral PTAs convicted of human trafficking or modern slavery offences
2016	2	0	0
2017	0	0	0
2018	1	0	0
2019	2	0	0

All five prisoners repatriated under the EUPTFD were EEA nationals.

Climate change and the millions of people being forcibly displaced by warring factions are certain to further increase the pressures on western societies from legal and illegal migrants seeking a peaceful and economically better life.  This country`s problems are the world`s in microcosm. From Arizona to Antalya the trouble is not going to go away.  The test for us is how to handle it. 

WELSH PARLIAMENT TO BAN PARENTS` RIGHTS TO ADMONISH CHILDREN

Most people are not knowledgeable of the law until it hits them full head on often as a result of breaching motoring law or encountering prohibitions enacted by a local authority.  Breaking the law within the confines of one`s own home with regard to speech which supposedly offends is a target for some of the more active promoters of a woke society.  It seems that to be a law abiding parent within that home for Welsh parents is now, or will soon, be under the all seeing eye of the Welsh government. From 21st March 2022 all physical chastisement of children will be illegal. No longer will a loving mother or father apply the slightest physical admonishment to a son or daughter without the risk of being a defendant in a court.  In the thousands of words to describe the forthcoming legal minefield nowhere is it made clear the actual legal process that would follow in a court of law. Where will all this madness end?  Is this right wing authoritarianism or left wing wokeness?  Is the mindset of those who have pushed through this disingenuous legislation of the same mindset as those who have politicised the continual  wearing of masks as the corona virus epidemic appears to be receding? From a personal point of view I remember the only time I smacked my son.  He was three years old and I caught him poking a fork into an electric point.  Having made clear to him it was a bad thing to do I spotted him a few minutes later repeating the forbidden action with a big smile on his face.  I smacked his leg hard enough to leave a red mark. A similar corrective action will in Cardiff or Ogmore or Swansea after 21st March next year if reported by eg a disgruntled neighbour lead to possible court proceedings. 

Assuming that I am not discussing alleged assault or currently recognised acts of abuse I have three objections to this unnecessary legislation; practical, legal and philosophical as it would apply to the action of a loving parent to an unruly child or a dangerously disobedient child like my son.  In practice there will have to be an incident reported. This would offer so many opportunities for an estranged intimate partner to cause mischief making and more.  In equally practical terms medical and health workers would be faced with the Solomon type decisions of where to place blame if any for the relatively mild admonishments this legal minefield seeks to impose and punish accordingly.  Court proceedings would be a nightmare for wholly innocent parents wishing to bring up their children in the best way possible being castigated by target driven fanatics seeking justification for their entrenched anti family politics where the state knows best.  Philosophically this century has seen the state interfering ever increasingly in our daily lives. Of course to some extent there is complete justification to protect us by persuasion from the over consumption of sugar or using nudge to dissuade anti vaxers of their mistaken beliefs but there is also the state which argues that the removal of a motorway`s hard shoulder is safer than its remaining or that a Prime Minister can lie to parliament with impunity.   

All I can say is that those voting at the election for the next Senedd should bear in mind the actions of the current members. 

EMPLOYMENT LEGISLATION UNPREDICTABLE FOR DENTIST

There are millions of self employed people from artists to zoo keepers who legally claim self employed status.  Once the situation is approved by Her Majesty`s Revenue and Customs those individuals can access the tax benefits but occasionally rue their decision by losing out in other ways perhaps unforeseen at the time of making their decision.  The situation is similar for the company or individual to whom they sell their services. It or they have much reduced control over said individual but also much reduced liability if things are not as rosy as expected. However when a business, which had been run as one where all the workers were self employed, is sold one would have thought that all things being equal, liability in any form six years subsequently would well and truly not fall to that previous owner. WRONG!  It would appear that for dentist Mr Raj Rattan the High Court thought differently.  A reasonably comprehensive report explaining all this is available here. 

THE INVISIBLE CLOUD OF AUTHORITARIANISM IN COURTS

During my active life as a Justice of the Peace I spent over a decade in the middle chair.  Apart from the preceding years as a winger and having satisfied HMCTS as to my suitability to conduct the court`s business as specified there were many occasions where spontaneity and initiative were essential to ensure that justice was not just done but seen to be done. For that reason alone it is my opinion that successful box ticking for applicants seeking that role will fail to highlight those who are just not suited or capable.  Indeed with HMCTS desperately seeking  not "Susan" but new magistrates it is inevitable that the quality of presiding magistrates will fall insofar as they will be reliant increasingly on "rules" and "advice" from their legal advisors. As a winger I rarely if ever heard the bench chairman explain to defendants found guilty that they had a right of appeal to the crown court at their own expense on verdict or sentence. If I remember correctly that pronouncement was never in the list of pronouncements supplied to every magistrate in hard copy as was the only method of supply in those days. Giving that information was ever most important after trial of  litigants in person [LIP] whose numbers are now increasing annually owing to the reduction in Legal Aid rates and the consequent dearth of duty solicitors. In the current situation exacerbated by Covid-19 and especially with hundreds of thousands of cases being heard in secret under the Single Justice procedure [SJP] (my post July 6th) where we have Great British Justice being rubber stamped as if we were in Republic of China information on appeal is not just essential it is imperative. I therefore find it astonishing that in all the rhubarb emanating from the Ministry of Justice recently [as is their wont] there is an unheralded statement that time limits on appeal are changing. Below is the appropriate extract recently published...{my bold}

Time limit for appeal from a magistrates’ court to the Crown Court Under section 108 of the Magistrates’ Courts Act 1980a defendant may appeal to the Crown Court against conviction or sentence in a magistrates’ court. On an appeal against conviction the Crown Court tries the defendant again and may acquit or convict. On an appeal against sentence the Crown  Court  passes  a fresh sentence,  which may be  less  or more severe.  At present  the time  limit  for  an  appeal against conviction  is  15  business  days  from  the  date  of sentence  or  from  the  date  on  which  sentence  is  deferred (if  it  is) under  sections  4 and  5  of the Sentencing Act2020,whichever is earlier. Under sections 14 to 17 of the Sentencing Act 2020a  magistrates’  court  can  commit  a  convicted  defendant  to  the  Crown  Court  for sentencing instead of passing or deferring sentence itself.Under rule 34.2of the Criminal Procedure Rules if a defendant is convicted by a magistrates’ court and committed for sentence to the Crown Court then at present the time limit for appeal against  the  conviction  does  not start until the  defendant  has  been  sentenced  in  the  Crown Court. That may postpone the appeal unnecessarily.It may result in what turns out to be an unnecessary  sentencing  in  the  Crown  Court(because  the  defendant  then  is  acquitted  on appeal). In some circumstances it may affect the sentencing powers of the Crown Court on the appeal if the appeal fails.In practice, the Crown Court usually can avoid these potential difficulties  by  postponing  its  decision  on  the  committal  for  sentence  until  after  the  appeal against  conviction,but  only  if  the  defendant  decides  not  to  wait  until  after  the  sentencing before starting the appeal. The Rule Committee heard from Crown Court judges that it would be  more  efficient,  and  fairer  both  to  defendants  and witnesses,  if  the  time  limit  for  appeal against  conviction  were  to  run  from  the  date  of  committal for  sentence  to  the  Crown  Court, where that happens. The Committee agreed and has changed the time limit in the rule.

I will not be surprised if the current three calendar weeks time limit on appeals direct from magistrates to crown court is reduced by a third.  The whole underlying philosophy of the MOJ over the last decade is to salami slice an individual`s ability to be able to oppose the state`s decisions and requirements from magistrates courts to the Supreme Court; i.e. from those who interpret the law to those who make the law. With regard to the second proposed change above I do not think that all criminal defence lawyers will be happy and for LIPs it will be just another area where they will be floundering in a sea of uncertainty.  The full GUIDE TO THE CRIMINAL PROCEDURE (AMENDMENT NO. 2) RULES 2021 is available here. 

Rarely if ever do authoritarian governments appear like a bolt of lightening from above; they appear with stealth and cunning almost like an invisible cloud with only occasional flashes of intent  in obscure areas of our society to predict their approach. I fear we are enveloped within that invisible cloud. 

ARE MAGISTRATES BEING SELECTED BY ETHNIC QUOTA?

Magistrates courts have been around for well over 600 years. Until 2010 one might have used the term ubiquitous when describing their locations. There were around 330 in England and Wales serving the needs of a population both town and country.  And then came Kenneth Clarke as Lord Chancellor of a newly elected Tory government obsessed with the ramifications of the financial crisis.  In that first year Clarke was proud to be the first cabinet member to announce his department`s contribution to the looming deficit; 23.8% was cut from the following year`s budget of the Ministry of Justice. With like minded thinking at the Home Office the whole paraphernalia of all that contributed to the law making and its enforcement in a civilised country was hacked to pieces over the following decade.  The numbers of police and support workers were pared back  to the extent that none ever appeared except when driving past blue lighted.  Prison officers were decimated with many prisons thrown to outsourcers eg Serco and others who cut so many corners with them and their sub contractors trying to force profits from an ever shrinking capital base.  Probation services and others were catastrophically re-organised in 2015 by undoubtedly the worst most reckless and ignorant Secretary of Justice in memory only to be reconstituted by the same Tory government years later. And so to our courts system.   In the year ending March 2019, 5.3 million crimes were recorded by police in England and Wales compared with 3.9 million in 2011/12. The figures are not directly comparable over time as recording practices change although there has evidently been a rise in recorded crime. Over the same period, the number of prosecutions brought by the Crown Prosecution Service (CPS) fell by 46%.In 2019/20 the total MoJ budget was around 25% lower than in 2010/11.In 2018/19 there were 5,684 full-time equivalent CPS staff in post compared with 8,094 in 2010/11.Between 2010/11 and 2018/19 criminal legal aid expenditure fell by over a third (35%).   As of April 2010 there were 29,270 magistrates, 143 district judges and 151 deputy district judges operating in the roughly 330 magistrates’ courts throughout England & Wales.There are currently 150 magistrates courts served by 12,333 magistrates and 124 District Judges (MC). The loss of magistrates is due to retirement.  Their age profiles were always well known at the MoJ. The effect of their loss was predictable but government assumed an "all would be right on the night" philosophy with the result that over the last year or so coincident with the Covid pandemic which was a fine alibi for mismanagement the MoJ has been frantic in trying to recruit new bodies to warm the benches of our remaining magistrates courts. Almost every county `s local print media has been bombarding  its readers with pleas to apply for appointment to their local bench. Social media companies have also received their fair share of similar advertising revenue. Common aspect of such advertising is that anyone can apply and particular attention will be given to those of an ethnic minority. The committees overseeing applicants operate in secret.  The basic criteria are available here.  The application form is available at the end of this post. Latest judicial diversity statistics are available below. Unfortunately to publish this whole section magnification could not be larger.  Readers might want to use tool available on their own Windows or Mac system. 

 

With a national BAME figure of 13% of the population the figures above do not seem incompatible.  However there is pressure from assorted sources that composition of the bench must reflect local areas` ethnicity head count.  There are some who would argue that that requirement is, to coin a phrase, ill judged. I do not intend to discuss that in this post.  What I will posit is my opposition to appointment by quota.  We have seen recently the furore over the "taking of the knee" and in particular the accusations that those who oppose this act are by their very opinion; racist. In their eyes I too therefore am branded by this abuse owing to my opposition to such a political act by professional sportsmen (and women). Many will be unaware that at the 1936 Olympic Games in Berlin in front of hitler the English football team made the nazi "heil" salute.  There was much opposition at home. 

Despite denials by the Ministry of Justice there is no certainty that magisterial appointments are made without an eye on the diversity statistics. As citizens we should be entitled to know if those who sit upon us in judgement are indeed chosen strictly on merit or not.  This would be beneficial most of all to any member of an ethnic minority applying for position.  To be appointed with the purpose of maintaining or fulfilling a quota and  not necessarily on individual worth would be as insulting to those BAME magistrates as it would be for any of us in such a position.  The MoJ must declare its policy.  

 

 

 

 

 

 

 

 

 

 

 

                   

This document is produced and maintained by:

Magistrates HR

Judicial Office

10^th Floor, Thomas More Building

Royal Courts of Justice

Strand

London

WC2A 2LL

PRE-APPLICATION CHECKLIST Please read ‘Becoming a Magistrate in England and Wales – Candidate Information in full before starting your application.

You must complete the following checklist before submitting your application.  If you do not complete the checklist, your application is liable to be rejected. 

I have read the Candidate Guidance in full.
I have checked to ensure that recruitment is taking place in my area.
I am not in the process of seeking asylum or applying for indefinite leave
I understand that applicants are expected to be living or working in, or reasonably close to, the area in which they wish to serve.
I understand that, if called for interview, I will be required to demonstrate that I have a good knowledge and understanding of social issues in the area I wish to serve.
I understand that magistrates are required to sit for at least 13 full days per year (or 26 half days).  I also understand that I will be required to attend training and occasional meetings after court.  I confirm that I am able to meet this commitment.
I am in employment and have obtained my employer’s agreement to take the necessary time off work if I am appointed.  (Leave blank if not in employment and see below)
I am not in employment.
I have undertaken at least two visits to a magistrates’ court in the twelve months prior to making my application.
The people I intend to nominate as referees have agreed to provide a reference and I understand that if references are not provided by the required date my application will be rejected.

 

 

PRELIMINARY INFORMATION

 

Applicants are expected to be living or working in, or reasonably close to, the area in which they wish to serve. 

 

Please state the name of the advisory committee whose recruitment exercise you are applying for:

Advisory Committee

 

If you have a preference to sit at a particular court (or courts) within the area you are applying to, indicate them below.  Please note that we cannot guarantee to meet your preference(s):

Preferred court(s)

 

How did you initially become aware of the role you are applying for?

 

 

What additional material have you seen that has increased your knowledge of the role? This might be advertisements, pages on the internet etc.

 

Only answer the next question if you are applying for vacancies in Wales.

 

Refer to page 14 of the Guidance for Prospective Applicants.

 

If the area to which you are applying has vacancies for bilingual magistrates, please indicate below if you would like to be considered for those vacancies:

Yes

No

 

All applicants must have visited a magistrates’ court to observe the proceedings, at least twice  before submitting an application.

 

 

Name of magistrates’ court		Date	D       M      Year
Name of magistrates’ court		Date	D       M      Year
Name of magistrates’ court		Date	D       M      Year

 

 

 

 

 

 

 

 

We need to know if you have previously applied to become a magistrate, including any separate applications to sit in the family courts.

 

Have you previously applied to become a magistrate?

Yes

No

 

Have you made an application to sit in the family court?

Yes

No

 

 

 

If you answered yes, please give details of when you made your application, to which advisory committee, and the outcome (if known) of your application.

 

The Magistrates’ Association represents approximately 80% of magistrates in England and Wales. Information about the Magistrates’ Association is available at:  www.magistrates-association.org.uk/

 

If you are appointed, may we pass your details (name, address, date of birth and local justice area) to the Magistrates’ Association, so that they can contact you about the Association?

Yes

No

 

Your details will not be disclosed without your permission and will not be passed to any other organisation.

PERSONAL INFORMATION - This information will be removed prior to applications being assessed

 

                           

Title	Mr	Miss	Ms	Mrs	Dr
	Other (please state)
Surname
Forename(s)
Previous surname (if any)
Date of birth	D       M      Year
Home address (including post code)
Telephone	Home        Work         Mobile
Contact email
Nationality
Country of birth
How many years have you lived in the local area?

 

 

 

 

 

 

 

 

 

EMPLOYMENT HISTORY

 

Certain occupations (including past occupations) may affect your eligibility to serve as a magistrate. 

 

Refer to Appendix C of the Candidate Information. 

 

Please provide full information about your employment status and history:

Employment status	Employed		Self-employed		Retired		Not in paid employment
	Other (please state)
Current occupation (if applicable). Please include job title
Name and address of current employer
Brief description of work
Time with employer
Is the role?	Full Time	Part Time    Hours per week				Fixed Term (end date) D       M      Year

 

Please confirm that you have discussed your intention to apply to become a magistrate with your employer and have their agreement to take the necessary time off work if you are appointed.

 

Please give details of any other occupations in which you have been employed in the last ten years, starting with the most recent:

Occupation	Employer	From	To

 

In limited cases, the occupation of a spouse, partner or close relative may affect your eligibility.

Refer to Candidate Information for further information.

Is your spouse/partner in any form of employment?

Yes (Please state their occupation)
No		Not applicable

Has your spouse, partner or a close relative worked as any of the following - Police Officer, Special Constable, Police Community Support Officer, civilian employee of a police force, Traffic Warden, Crown Prosecution Service or Prison Service employee, or in any other occupation whose work involves attending court?

Yes (see below)

No

Not applicable

 

If you answered yes above, please describe the person’s (or persons’) relationship to you, their occupation, where it is (or was) carried out, and their approximate dates of employment:

  

 

 

 

1.   REFERENCES

 

All applicants must provide the names of three people who have agreed to act as referees.  Please complete Appendix B.

Refer to Candidate Information.

 

 

 

 

 

 

2.   REASONS FOR APPLYING TO BECOME A MAGISTRATE AND PERSONAL QUALITIES

 

Please explain what has motivated you to apply to become a magistrate (maximum 300 words)

 

The six key qualities required of all magistrates are: Good Character; Understanding and Communication; Social Awareness; Maturity and Sound Temperament; Sound Judgement; Commitment and Reliability.

 

Refer to Candidate Information for further information.

 

 

Please provide some examples of how you believe you meet each of the six key qualities.  Please give your most relevant examples.  These could be from past or present employment, from voluntary, community or leisure activities or from other areas of your life 

 

Each key quality example should be a maximum of 300 words.   

 

Good Character (maximum 300 words)

 

Understanding and communication (maximum 300 words)

  

 

Social Awareness (maximum 300 words)

  

     

Maturity and Sound temperament (maximum 300 words)

  

 

Sound Judgement (maximum 300 words)

  

 

Commitment and Reliability (maximum 300 words)

  

 

 

Voluntary work can sometimes provide an eligibility conflict.  Please provide a brief description of any voluntary work you are currently doing or have done in the past:

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONVICTIONS, CAUTIONS AND CIVIL ORDERS

 

Please read the Candidate Information carefully before completing this section.

 

Are you involved in any of the proceedings referred to at Appendix B, Section 1 - ‘Involvement in Current Proceedings’ of the Candidate Information?

 

Yes

No

 

If you answered yes, please provide details below:

  

 

Have you ever been convicted of a criminal offence? (Do not include fixed penalty notices for motoring offences.)

Yes

No

 

If you answered yes, please provide details below. You must disclose all previous convictions irrespective of when they were received.

Offence	Date of Conviction	Name of Court	Sentence or Penalty

 

Have you ever received a Police Caution?

Yes

No

 

If you answered yes, please provide details below. You must disclose all cautions irrespective of when they were received.

Offence	Date of Caution	Conditions Attached to the Caution (if applicable)

 

Have you received any Fixed Penalty Notices (FPN), including for a driving offence, within the last 4 years?

Yes

No

 

If you answered yes, please provide details below:

  

Offence	Date of FPN	Amount of Fine

 

Have you regained your driving licence within the last 4 years following disqualification from driving?

 

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of Disqualification	Date on which licence regained

 

Do you currently have penalty points endorsed on your driving licence (this includes points endorsed as a result of receiving a Fixed Penalty Notice)?

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of Endorsement	Number of Penalty Points

 

Have you received a Penalty Notice for Disorder (PND) within the last 4 years?

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of PND	Amount of Fine

 

Are you subject to any of the civil orders (or an Individual Voluntary Arrangement) which qualify for disclosure under Appendix B, Section 6- ‘Bankruptcy, Individual Voluntary Arrangements and County Court Judgements’?

Yes

No

If you answered yes, please provide details below:

  

 

To the best of your knowledge, has a spouse, partner, close relative or close friend received convictions or cautions which would qualify for disclosure under Appendix D, Section 7 - ‘Spouses, Partners, Close Relatives and Close Friends’?

Yes

No

If you answered yes, please provide details below:

  

 

Excluding any information already provided above, is there anything else in your private or working life, past or present, which could damage your credibility as a magistrate if it became known to the public?

Yes

No

If you answered yes, please provide details below:

  

 

 

DECLARATION

 

The information that I have given in this application is true and complete to the best of my knowledge and belief. I understand that my application is liable to be rejected if I knowingly fail to disclose relevant information. 

(Please sign electronically or by hand).

 

   

Signed:

Date: