JURIES, JUDGES, BARRISTERS, DEFENDANTS AND PERVERSE VERDICTS

Those with a legal ear to the ground can`t be unaware of the noise surrounding barrister Rajiv Menon KC who faced unprecedented contempt proceedings (up to 2 years' prison) over his closing speech defending a Palestine Action activist accused of damaging an Elbit Systems arms factory in Filton.  The trial judge had ruled that counsel could not invite the jury to disregard the court's rulings of law, disregard their juror oaths, or apply the principle of jury equity. Menon nevertheless referred to jury independence in his closing speech

This raises the fundamental question of what happens when the evidence against a defendant is overwhelming but the defendant nevertheless wants the jury to acquit?   Not because they did not carry out the alleged offence or because of some technicality  but because the motivation for the offence was such that they believed it was right.  That is a rather different proposition which raises the uncomfortable possibility that, in some cases, the defendant may actually be better off without a barrister because they do not have to obey the rules of a club of which they are not a member.

The Court of Appeal has already ruled that the original procedure for bringing the contempt proceedings was unlawful. That did not, however, settle the underlying question of what a barrister can properly say to a jury. The issue is still alive.

In April 2019 activists targeted Shell's London headquarters on Belvedere Road spraying graffiti, pouring fake oil, breaking windows and climbing the roof to protest against climate change. At trial in April 2021 a jury acquitted the six Extinction Rebellion activists of criminal damage despite the judge directing them that they had no defence in law. They had dispensed with their lawyers and represented themselves to enable them to put forward a defence that was not available to their barristers whose actions are strictly governed by the Bar Standards Board (BSB) Handbook, specifically Part 2: The Code of Conduct. They wanted to speak directly to the jury. There was no pretence that the damage had not occurred. The argument was essentially that what they had done was justified by the circumstances and by their beliefs. The jury acquitted them.

In the cases of Clive Ponting in 1985 and the Colston Four in 2022 their  defence teams successfully argued that their actions were in the public interest, leading to historic acquittals despite the judges` explicit directions to convict.  The bottom line is that the jury itself cannot be ordered by a judge to convict.  A judge can tell a jury very strongly what he or she thinks about the evidence and can explain what verdict would follow if the jury accepts particular facts. The jury is, however, the body which decides whether the defendant is guilty.  Even where a judge considers an acquittal would be perverse the judge has no power to pre-empt the jury's verdict by directing them to convict.

And this brings us back to the Menon case which is therefore about rather more than one barrister and one closing speech. It raises a much bigger question about the relationship between the judge, the advocate, the defendant and the jury. A judge can tell the jury what the law is. A barrister must obey the judge but a defendant representing himself can stand in the witness box, or before the jury in their closing speech, and say what they believe. And if what he believes is: “Yes, I did it but I ask you to acquit me,” there is something rather fundamental about the jury system which allows him to make that appeal. To some degree litigants in person are enabled to pursue actions forbidden to barristers and actively take that route for their defence so achieving the spectacle of perverse verdicts.

There is one further possibility which has been alluded to in an earlier post on this Blog. The previous government's proposals to reduce the use of jury trials have been presented principally as a response to the Crown Court backlog. That is the official explanation. But is it the whole explanation?  There have been a number of recent cases in which juries have acquitted defendants involved in highly political causes.  In addition to those cases mentioned above, climate protesters and Palestine Action supporters,  notwithstanding evidence which, on the face of it established what they had done, have been acquitted.

Could governments be concerned that a jury does not always behave as the Government, the prosecution or even the judge expects particularly where questions of political, religious or ethnic identity are involved?  And, more specifically, has there been concern about the possibility of block voting on an identity basis, including the possibility of Islamist influenced voting in cases involving Israel, Palestine or terrorism?

A jury is supposed to decide the case before it, not the political cause with which a defendant identifies. Yet twelve individuals bring their own experiences, beliefs and prejudices into the jury room. That is both the strength and the weakness of a jury system.  Indeed the same applies to magistrates courts.  As a peripheral observation:  if a bench constituted three Muslims could a Jewish defendant feel that s/he would get a fair hearing? 

David Lammy's own 2017 review concluded that juries did not, on average, produce different results for BAME and white defendants while identifying disparities in some magistrates court outcomes.  Those results indicated that juries are less susceptible to certain forms of bias than magistrates.  Why then reduce their role?

If there is a fear that identity politics can produce verdicts which depart from the straightforward application of the law, removing or reducing jury trial would certainly reduce that particular risk.  However on the other hand the jury system is akin to a defensive barrier between government which makes the law and the protection of the citizen from the excesses of that legislation. 

If the jury alone decides guilt how far may a defendant, as opposed to his barrister, appeal to the jury's conscience?

THE SAMPLE, NOT THE STAMP

What goes around comes around; an old adage which is understood worldwide and comes home to roost on this site. Since the first post here in 2013 this will be number 1,580 but it`s unlikely 13 years from now to be the most viewed.  That privilege currently belongs to a post  published Friday, 16th August 2013 titled WARRANTS OF ENTRY & UTILITY COMPANIES//SIX OF THE BEST. When I discovered this my first thought was that something somewhere is going wrong. What can a 13 year old and older series of posts offer to a reader in a world where 13 years has seen a totomic change in British society?  It remains, extraordinarily, the most visited "old" post on this site;  proof, if proof were needed, that the British public's appetite for stories of bailiffs, bullying and bench sitters being taken for fools has not diminished with the years.

Comparing that post to the current legal and procedural landscape the process for obtaining a warrant of entry to disconnect electricity or gas supply or fit a prepayment meter has changed in several concrete ways.   Since 6th February 2023 the listing and determination of applications for warrants of entry for the purpose of installing a prepayment meter was suspended with immediate effect, following Ofgem's announcement of a market wide review into the practice.  This followed an investigation (triggered by a Times exposé of British Gas debt agents breaking into homes) that found companies were bypassing Ofgem guidelines by obtaining rushed court warrants with several hundred warrants sometimes signed off in minutes leaving no time for genuine evaluation of individual cases; essentially confirming, at national scale, exactly the "rubber-stamping" the blog had complained about for years. 

Readers might recall my complaint of a decade ago that too many colleagues treated these applications as legal confetti,  signed, sealed and handed back across the table before the ink was dry, with scarcely a glance at the "particulars" behind the request. I described Southern Electric turning up with nothing but an address and a debt figure, expecting us to wave it through like a parking permit. I described a bailiff who could not confirm the name on the account she wished to force her way into. These were not isolated eccentricities. They were, it now transpires, symptomatic of an industry-wide practice that eventually became a matter of national outrage rather than merely magistrates' court gossip.

After the listing of prepayment meter warrant applications was suspended nationwide on 6th February 2023 on 21st February 2023 Ofgem announced that two suppliers had been given permission to restart and the courts recommenced listing such applications only once suppliers had satisfied Ofgem's new standards. So a supplier must now clear a regulatory gate with Ofgem before it can even bring a warrant application to a magistrate; an extra check that didn't exist in 2013. The complete sequencing of the revised requirements was as follows:-

6 February 2023 — listing of prepayment meter warrant applications suspended nationwide.

10 March 2023 — Ofgem announced all suppliers had signed up to the updated Code of Practice.

8 January 2024 — Ofgem announced three suppliers had been given permission to restart involuntary PPM installations.

21 February 2024 — Ofgem confirmed a further two suppliers had been given such permission.

Only once a supplier had satisfied Ofgem's new criteria  company by company, not industry wide,  did the courts recommence listing such applications at all.

Mandatory pre-application steps are now written into supplier licences, not just "good practice".  The Good Practice Guide the blog described was voluntary and unevenly followed. It's since been formalised as a licence condition. From 8th November 2023 energy suppliers must follow new stricter rules before a prepayment meter can be involuntarily installed  including making at least 10 attempts to contact the customer and carrying out a site welfare visit before installation with the highest-risk customers (e.g. those on powered medical equipment) exempted entirely. The rules specifically end forced installations for people over 85 and those with high-risk illnesses.

The hard and welcoming fact is that the system has actually changed and changed for the better.  There is also, at last, a fee protection I would have welcomed a decade ago.  Standard Licence Condition 28B now caps such charges and prohibits suppliers passing on costs associated with obtaining the warrant itself. It will not undo the injustice suffered by those who wrote to me in 2014 and 2016 describing the many repeat applications against them  but it should prevent the same happening to others.  Ofgem has extended the relevant licence conditions to 30th June 2027. 

Does this mean the rubber stamp has been retired for good? I would not go so far. Judicial guidance now explicitly directs magistrates to satisfy themselves that Ofgem's standards, the Human Rights Act 1998 and the Rights of Entry (Gas and Electricity Boards) Act 1954 have all been properly engaged with  which is welcome but guidance is only as good as the bench applying it, crowded list or no crowded list. As I have said before and evidently must say again: it will take a brave and diligent bench to make sure this is more than paper reform.

However life is not all sunshine and rainbows for those unable to cope with rising utility bills.  There is one further wrinkle the original six posts could never have anticipated and it deserves its own footnote for those of a procedural turn of mind. The old model, whatever its failings, was at least one of individual attention: a bench, a bailiff and a single warrant argued (or not argued) on its own facts. The new regime abandons that model almost entirely. Applications now arrive not as bundles of paper across a table but as a CSV file submitted electronically to an assigned court office with a separate file for each purpose:  prepayment installation, commercial disconnection, safety or theft cases and so on. The written information for each case is confirmed on oath and filed by the court officer sight unseen by the magistrate save in sample form.  

For lists under 100 cases the guidance recommends the bench examine five; for larger lists, ten  with at least five prepayment cases guaranteed a look whatever the total. If those samples satisfy the court the remainder are granted en bloc. Only "unusual applications," particularly residential disconnection, must still be heard individually.

I confess to mixed feelings. It is, in one sense, precisely the sort of structured, evidence based scrutiny I spent years wishing my colleagues would apply case by case. And yet it is also, by design, a system in which the overwhelming majority of warrants are never individually seen by the magistrate signing for them, merely inferred safe by statistical proxy. Whether that is judicial efficiency or rubber-stamping wearing a spreadsheet, readers might judge for themselves.

With continual criticism rightly falling on the Single Justice Procedure and the judicial acceptance of a statistical analysis to determine whether or not a utility disconnection or prepayment meter at an additional cost to the consumer is installed, judgement appears to be ever more distant  from the individual whose door may yet be broken down and drifting instead toward a bureaucratic exercise in probability where the fate of the many rests not on the facts of their own case but on whether a handful of others' paperwork happened to pass muster on a given morning.  

THE JUSTICE LADDER/THE MISSING STATISTICS: BY ACCIDENT OR DESIGN?

The world of 2026 does not revolve around the sun; it revolves around statistics.  From Pythagoras to Einstein via Euclid and  Newton numbers have shaped the world we live in and know today.  We, the public, unable to put our ear to the closed door whisperings of our masters  have only the numbers these masters provide to us in order to make our judgements as to whether we wish them to continue with their policies for another parliamentary term.  Nowhere is this filtering of information more profound than at the door in Petty France London SW1 home to the Ministry of Justice. 

There are several descriptions of this filtering.  It is a system where some information is readily made available, some must be extracted under Freedom of Information rules and some is kept under wraps.  It could be The Empirical Boundaries of Justice; The Parameters of Judicial Transparency; The Quantifiable Outlines of Justice; The Statistical Architecture of Justice; The Informational Perimeter of Justice; The Justice Audit but I will settle for the simplicity of The Metrics of Justice. 

In order to interpret the numbers available for inspection it is helpful to know how they are chosen.  There are various agencies and authorities which decide which aspects of justice are important enough to measure and publish.  Court and sentencing data originate largely within HMCTS and other justice agencies and are analysed and published by the Ministry of Justice's statistical and analytical teams. Professional authority over what constitutes and how official statistics are published rests with the Ministry's Head of Profession for Statistics. The wider system is overseen by the UK Statistics Authority and its Office for Statistics Regulation while the ONS independently produces the principal national crime statistics.

With millions of numbers available the decisions on which to collate and publish are made by the Head of Profession for Statistics supported by the Chief Statistician and the relevant statistical teams within the MOJ.  Perhaps just as interesting to the casual observer are the statistics not published. Some that come to mind are:-

Outcomes by individual magistrates' bench;

Conviction rates by individual court;

Appeals and their outcomes by individual court;

Reasons for successful appeals;

Cases abandoned because of prosecution failures;

Defendants waiting more than specified periods;

The proportion of cases in which witnesses attend unnecessarily;

The number of cases where a legal error is corrected before an appeal;

Comparative outcomes for magistrates and District Judges.

The above list is not in any order of significance.  I would think that some readers will have their own ideas of additions which they would consider to be equally or more important.  With controversial changes to the jurisdiction of magistrates courts hiding behind other more pressing current matters within the MOJ there are some valuable pointers as to the quality of justice in the lower courts system.  Of the defendants who appealed a magistrates' conviction in 2024 41% had their appeal allowed. Of those appealing sentence 44% had their appeal allowed.  It`s interesting to note that the comparable numbers for 2010  appeals are 44% allowed against conviction and 47% against sentence allowed.  Observers outside the legal fraternity might wish to come to their own conclusions about very fine disparity between those numbers considering how much water has flowed under the legal bridge in that time period. 

An appeal from the magistrates court is in reality a re-hearing before a crown court judge or recorder sitting with two magistrates. An appeal from the crown court against conviction or sentence goes to Court of Appeal (Criminal Division). In 2025 that court received 4,162 applications.  These can be broken down into 1,181 applications concerning conviction, 2,588 concerning sentence and 393 other appeals.

However those statistics don`t tell the whole story; there are numerical gaps. From 2022/3 the success rate fell from 62% to 37% in 2024/25. We do not know if the appeals were successful because of new evidence, process failure, insufficient evidence, a misdirected jury or legal error[s] or conversely why the majority failed.

As we go higher up the ladder of appeal the stakes for defendants, victims and the public perception become higher.  In 2024–25 the Supreme Court decided 170 applications for permission to appeal granting permission in 61 (36.1%).  A criminal appeal normally requires certification that there is a “point of law of general public importance” and that the point ought to be considered by the Supreme Court which is effectively the finest filter in a complex system of legal filtration.  To continue the analogy a simple flow chart could be shown as follows:-

 

Applications → Permission refused → Permission granted → Hearing → Appeal allowed → Conviction quashed.  

The Supreme Court already records much of the underlying information but its published headline statistics do not present it in the form needed to assess the effectiveness of criminal appeals. It would seem that the permission granted → appeal heard → conviction quashed figures are available only in the labyrinths of Petty France.

The subject of early release of prisoners has made headline news since the change of prime minister prompted a rocket to be sent up the arse of the movers and shakers at the MOJ.  The Parole Board for the justice system can be likened to Camp IV, also known as the South Col for mountaineers.  It is the last stop before the final arbiter of whether justice has been done;  The Criminal Cases Review Commission (CCRC). 

The statistics published by the Parole Board for 2025/26 are:- 

3,140 prisoners directed for release

12,528 refused release

8,835 oral hearings

The Board says its convicted Serious Further Offences rate remains below 0.7%. Figures it supplies tell us how many prisoners the Parole Board releases and how many subsequently commit a Serious Further Offence but it leaves a gap insofar as it does not publish statistics on  how many of those released prisoners subsequently commit any proven offence, how many offences they commit, how serious those offences are and whether the rate differs according to the sentence they were serving.  The table below illustrates the statistics that the Parole Board does not supply.

Especially considering the current furore about early release of prisoners occasioned by the crisis in prison accommodation  it must be asked whether the Parole Board`s limited public information is by accident or design.  

At the end of the criminal appeals process sits an institution which is perhaps the most revealing of all when we ask whether the criminal justice system is measuring its own failures. The Criminal Cases Review Commission (CCRC) describes itself as the very last stage of the Criminal Justice System. It was established in 1997 to investigate alleged miscarriages of justice in England, Wales and Northern Ireland and where it considers there is a real possibility that a conviction would not be upheld, to refer the case back to an appeal court. It is therefore not another tier of appeal: it is an independent safety net for cases which have normally already failed at the ordinary appeal stage. The numbers are small in relation to the thousands of criminal convictions produced by the courts but they are difficult to ignore.

The CCRC's 2023/24 report recorded 1,629 applications and 25 referrals. In 2024/25 it received 1,541 applications and referred 31 cases; importantly, of the 27 CCRC-referred appeals actually heard that year, 18 were allowed and nine dismissed. In 2025/26 applications rose to a record 1,841, while referrals increased to 45, an 80% increase over the figure two years earlier.

The longer-term figures are perhaps more striking. By July 2026 the CCRC had received 35,723 applications, referred 926 cases to the appeal courts and 622 appeals had succeeded. Thus once a case has actually survived the CCRC's investigation and reached an appeal court, the outcome is very different from the initial application statistics.

This is why the CCRC should be included in any serious attempt to measure the effectiveness of criminal justice. The relevant question is not simply “How many applications does the CCRC receive?” Nor is it “What percentage does it refer?” The more revealing sequence is:

Conviction → ordinary appeal → CCRC application → CCRC referral → appeal heard → conviction or sentence overturned.

The CCRC itself makes clear that, after referral, it remains for the appeal court to decide whether the conviction is unsafe or the sentence unfair.

That final distinction matters. A justice system which records convictions, sentences and appeals but does not prominently display what happens when an independent body identifies a possible miscarriage risks measuring its activity rather than its accuracy. The CCRC is therefore not an embarrassing footnote to the system. It is arguably its final quality-control mechanism. It is in effect the Mount Everest of the appeals system. 

And the question for those who decide which statistics should define the success of criminal justice is a simple one: should the number of convictions subsequently found unsafe be treated as a central measure of the system's performance, rather than as an exceptional statistic at the end of the ladder?

The figures reveal an uncomfortable truth. At every stage of the criminal justice ladder statistics are collected but the figures which most directly test whether justice has been done are often the least visible. Appeals, parole and the CCRC provide opportunities to correct error yet the system rarely presents these stages as one continuous measure of accuracy. Perhaps the fundamental question is not how efficiently the system processes cases but how often it gets them right.

HAVE LONGER SENTENCES REDUCED CRIME?

In very simple terms it might be said that a criminal justice system has three prime concerns; to punish, to deter and to rehabilitate miscreants. Until relatively modern times rehabilitation was off the menu. Christian churches were there to undertake what the state had not even considered. Punishment went hand in hand with deterrence as the main purpose for dealing with those who broke the law.

In the early nineteenth century the law could impose death for property offences which today would be dealt with by a magistrates court and Parliament itself was increasingly horrified by the consequences. Although the law allowed it no child is known to have actually been hanged in England for simple theft; they were generally reprieved usually with transportation substituted.  However at Maidstone on 1 August 1831 14 year old John Bell was hanged for murder. 

There is a strong historical argument that the political changes associated with the Reform Act helped create the parliamentary climate in which the "Bloody Code" was dismantled during the 1830s. In 1832 Parliament began to recognise that the severity of a punishment could undermine the credibility of the law itself. In the following five years capital punishment was removed for several forms of theft, including cattle and sheep stealing and certain forms of robbery and the death penalty was also abolished for most forgery offences. By 1837 hanging had been removed from many more offences until it was abolished in 1965. For those who suggest that the current trend towards longer sentences is a necessary deterrent in an increasingly lawless society the reality can be quite a shock.


The homicide rate in England and Wales was about 1.96 per 100,000 in 1865. From 1902 to 1974 the homicide rate remained below 1 per 100,000. Indeed in 1965 the rate was 0.68 per 100,000. So homicide fell by roughly two-thirds from the 1865 peak to 1965 despite the continued availability of the death penalty for murder. It would appear that homicide rates have historically moved for reasons much more complicated than the severity of the maximum sentence. Are there grounds for thinking that such analysis could be applied to other serious but lesser offending?


On more than one occasion here I have considered "crime figures" as a work of intensive imagination dependent upon the origin of such statistics and the political purposes which drive them. The table below uses selected major offences recorded by the police, England and Wales, 2002–2025.

It is striking that burglary and criminal damage are 75% and 61% respectively lower but robbery is 23% lower. The Crime Survey for England and Wales (CSEW), formerly the British Crime Survey, provides the best long-term measure of the amount of crime experienced by the public.

The average custodial sentence length rose from 12.0 months in 1995 to 19.9 months in 2025 and the prison population rose from about 51,000 in 1995 to 86,000–87,000 today. From 1995 to 2025 violent crime fell by 71% and theft fell by 78% whilst the homicide rate roughly halved. During this period the average custodial sentence rose by 66% and the prison population by 71%. The crime decline began while average sentences were actually falling or broadly flat. Can crime reduction actually be attributed to the additional years of imprisonment? From the above chart it can be seen that the Ministry of Justice confirms the rise in average custodial sentence length from 13.7 months in 2010 to 21.3 months in 2023. The Sentencing Academy calculates that the average for indictable-only offences rose from 38.7 months in 2010 to 70 months in 2024. In this period longer custodial sentences and falling crime occurred during the same period.

The question is how much, if any, of the reduction in crime can reasonably be attributed to the additional years of imprisonment?  Many big brains more enlightened than mine have tried to understand the above numbers and millions more in an attempt  to produce answers for their political masters and a public which feels increasingly at personal risk from violent criminality. The rise in victimhood exacerbates this situation with tabloid calls for ever longer sentences inconsistent with the approaching no room at the inn situation with prison capacity.

The only conclusion, however tenuous, from those millions of numbers is that current evidence does not establish that the additional years of imprisonment produced a substantial general deterrent effect.  The corollary is that sentencing will continue to be as much politically driven as it is judicially or statistically. 

CAN "VICTIMHOOD" BE COMPATIBLE WITH ENGLISH JUSTICE?

An eye for an eye and a tooth for a tooth. That phrase was for millennia a guiding light for primitive forms of justice for many ethnic, tribal or national entities. From the Frankenstein image of mobs with their flambeau besieging the gothic tower of a blazing castle to the horrific images of mutilation or execution by the sword in the current era in middle eastern or African autocracies victimhood has been a basis for a form of justice.

In a country of 3.4 million Muslims of whom it is estimated 20%-25% would welcome or activate for Sharia law to be imposed it`s not unlikely that would include incorporating some aspects of the Quran's teachings which are themselves disputed by scholars.  In the case of rape for example a victim's account of being forced can, in practice, become collapsed into an admission of the underlying sexual act, shifting the practical burden onto her to prove coercion. The nature of the victim and influence on sentence take a unique path. Broadly speaking in classical Islam rape of a free woman is involving two separate violations: one against "God's right" (haqq Allah), triggering the hadd punishment on the perpetrator and one against her personal, interpersonal right (haqq ādamī), requiring monetary compensation to her directly. These two are treated as separate and cumulative much like a thief who both loses a hand under hadd and must still return the stolen property.  If a case collapses for lack of proof and gets recharacterized as a failed zina/qadhf accusation the victim isn't just denied compensation;  she can end up prosecuted herself.  However as per my opening words above, the practice is not just a metaphorical carryover: it's still applied as physical retaliation in a handful of countries today although real cases are rarer than the historical framework suggests because most resolve through compensation or pardon instead. It is not unlikely although little is heard publicly that Muslim voices will become increasingly vociferous when and if a particular case or event provides a trigger.  

The current furore on the early release of prisoners including those convicted of manslaughter has brought a whole new actor into the victimhood drama. Under the Criminal Justice Act 2003 a Victim Personal Statement (VPS) system lets victims describe the crime's impact; physical, financial and psychological  which judges are required to consider  when assessing harm.  Since its implementation this outlet for victims has grown in intensity.  The current situation is that the victim(s) can make a VPS prior to the sentence being pronounced.  

Following the tragic case of PC Harper there was a little reported event last week at Liverpool Crown Court which  re-opened the whole debate on the role and effect of a VPS.  Police constable Simon Ward was left severely injured after being dragged down the street by Candace De Silva`s Range Rover.    PC  Ward made a VPS describing how the injuries left him needing a crutch and knee brace, suffering PTSD, unable to work for 19 months and now in a desk-based role. He said it was "hard to accept I'm now a victim of a crime".  Her prison sentence was suspended. 

 

The point in this post is whether or to what degree does a VPS influence sentencing and whether or not the current situation is providing equitable justice for offender and victim. Is the sentencing structure in England and Wales becoming too victim orientated?  As in some Muslim countries can a sentence be mitigated by recompense to the victim?  This is known as Diyyah (Arabic: دية), commonly translated as "blood money" or victim compensation.  In some countries and situations it allows the maximum capital punishment or physical retaliation to be completely averted.  In the De Silva case her barrister told the court  that she was the sole earner for her family. He stated that her partner did not work and if she were sent to prison the family would immediately lose their home because the partner could not fund the rent.  He added that his client suffered from diagnosed PTSD) and long-term mental health issues. 

In the case above PC Ward made a clearly impassioned statement of the harm he was caused and with the previously mentioned case of PC Harper in his and the public mind the judge chose to suspend a prison sentence on the offender; a sentence which is not unlikely to be appealed.  This facility has been available under The Unduly Lenient Sentence scheme created by the Criminal Justice Act 1988, specifically sections 35 and 36, which came into force that same year and allows  the Attorney General the power to refer a crown court sentence for indictable only offences  to the Court of Appeal if it's considered "unduly lenient"; not just wrong, but outside the range a reasonable judge could have imposed.

It is of fundamental importance to recognise that current practice of VPS is supposed to have absolutely no influence on a judge`s sentence. It is presented as a route for the victim to express in public the effect and degree of harm caused by the offender but is this approach sustainable? Reference again to the tragic death of PC Harper, without the public outcry co-ordinated or not, it is unlikely to have had new legislation in his name. Is this an example of vengeance for that flambeau carrying mob in the age of social media where those aspiring to further a cause can jump on a bandwagon and tailor make it for some nefarious purpose.  The murder of George Floyd, an American criminal,  resulted in Premier League football players and a former prime minister publicly to "take the knee";  an invidious kowtowing to virtual mob violence which disturbed many people  as to the underlying insidious motivations of its proponents.  

The essence of modern western legal systems including that in the UK is built on the principle that crimes are committed against the state, not just the individual.  When or if a "victims' charter" begins to dictate outcomes justice risks shifting from proportional punishment to popular retribution. In simple terms for a wide audience mob violence morphs into a form ready made to be exploited by those skilled in the craft and use of social media. A prime example of this inversion was seen  October 7th 2023 and was  demonstrated when barely 24 hours later on October 8th with hundreds of Israelis still lying dead in southern Israel mobs were formed in western cities screaming genocide against the State of Israel.  The criminal perpetrators were the heroes and the murdered victims were the aggressors.   

Lady Justice has always been seen as the state being above any tendency to be leaning one way or the other; justice is applied without fear or favour.  If the justice system appears to lean towards the mitigating factors of an offender to levels that the public considers overriding the interests of the victim there will be erosion of public trust in institutional justice.  In cases posted here on the position of those supporting Palestine Action the offenders have laid the claim to victimhood in Alice Through the Looking Glass contorted logic. 

If the public feels the state is failing to protect them or punish offenders adequately the demand for decentralized, retributive "justice" will increase from a limited number of political activists to many of those happy to align with a political party  supporting their views at the level of inclusion in a manifesto.  The wide trend to reconsidering the benefits of our democratic system would be further tested.  

In the case above of Candace DeSilva the public petition circulating on Change.org cannot force the judge to change his mind. However, because it has gained significant traction, it serves as a powerful mechanism to catch the attention of the Attorney General. If he decides that Judge Byrne placed too much weight on DeSilva's childcare situation and completely ignored the permanent, life-altering nerve damage inflicted on PC Ward, the case will be referred to the Court of Appeal where her suspended sentence could be replaced with immediate prison time.

MUSLIM OVER REPRESENTATION IN PRISON

With all the controversy in prison numbers just a point of information as to the latest official religious breakdown of the current cohort held at His Majesty`s Pleasure. The chart is published by Ministry of Justice, Offender Management Statistics (June 2023)

AI: THE NEW FOURTH MEMBER OF THE BENCH?

Having been retired from the magistracy for over a decade this blog has by default morphed into more of a commentary on general issues than was the case in years gone by.  Freedom to observe and opine on situations that are highly critical of the Ministry of Justice goose and its underwritten goslings eg His Majesty`s Courts and Tribunal Service, The Criminal Cases Review Commission, police governed by the Home Office [Met Police excepted] or the Judicial Conduct Investigations Office which reports directly to the Lord Chancellor  is something impossible for my active former colleagues without incurring the wrath of god.  This omerta by all active judiciary  is worthy of the originators of the term; various groups, political and criminal, in 19th century Sicily and southern Italy. Amongst the topics one doesn`t learn from media, mass or social, is the effect on the judicial system of AI. This post is an initial attempt to throw just a few lumens on this subject.

In 2025  The Ministry of Justice published its AI Action Plan for Justice involving inter alia courts, in an effort to make justice faster, fairer, more accessible whilst protecting human rights, the rule of law and judicial independence.  The purpose was that AI was to assist but not replace judicial decision making.  The plan, we are told, applies to all judicial office holders, clerks, judicial assistants, legal advisers/officers and other support staff.  It would appear that AI would [will?] be used as it is currently used eg with Trip Advisor summing up hotel reviews which in the court scenario would mean summarising lengthy case papers or identifying key words, phrases or sentences. Transcription of speech to text and translation of texts would be just an extension of what is already widely in operation in all walks of society.  

What is not intended is to remove from the human bench the decisions as to whether a defendant is guilty; whether a witness is telling the truth; what sentence should be imposed; whether a defendant should be remanded in custody; whether an individual is dangerous; what findings of fact a bench should make. The MOJ says its approach must preserve human decision making, legal rights and judicial independence. How long this stance can be definitive only time will tell.

In June 2026 the government announced that it is developing AI legal assistants and other AI applications to tackle court delays.  From my own experiences as a user of county courts the administration of routine functions is, to mix metaphors, in the steam age.  The current position is that AI cannot replace the exercise of human judgment.  

What is significant is what has changed since I retired.  Court attendees can manipulate text, images, videos and recordings.  The President of the King's Bench Division recently warned that AI means fabrication which previously required specialist expertise can now potentially be produced cheaply with a smartphone. He specifically identified forged email chains, synthetic voicemail, manipulated CCTV, fake social media exchanges and false expert looking reports.  Bearing in mind that the bench`s function is to find facts, fake evidence may be accepted as genuine and genuine evidence may be dismissed as fake. 

Solicitors and barristers are already able to use AI for the benefit of their clients in a manner similar to the above listed functions outlined by the MOJ. The Civil Justice Council has been examining AI generated pleadings, advocacy documents, witness statements and expert reports. Its June 2026 findings say there is presently substantial support for allowing professional legal drafting under existing professional responsibilities but witness statements remain an area of particular concern because AI can reshape or embellish a witness's recollection. It can potentially influence how a witness's account is drafted. This is of particular concern to senior judiciary. At its annual strategy meeting in January 2025 the Civil Justice Council (CJC) agreed to set up a working group examining the use of AI by legal representatives for preparing court documents.

For a legal advisor in the arena of a magistrates court the use of AI carries equally grave responsibilities. AI can produce a perfectly convincing looking citation to a case which does not exist or misstate what a genuine case decided.  During my career on the bench when a LA gave an option or opinion we could see for ourselves the words on a printed page and exercise our task of judgement and/or interpretation of those words within the law.  Currently magistrates must not allow an AI generated answer to become an unseen source of legal advice just as in my time references eg to Google were forbidden. 

Referring once again to Trip Advisor where AI sorts and categorises thousands of reviews on destinations, hotels and restaurants etc into simplified easily digestible results  senior judges now recognise its potential to help with case management and the handling of very large volumes of information.  However the downside to such abbreviation is that some important facts will be omitted or be overlooked by those reading the shortened document. 

For magistrates just as outside referring was forbidden so it is with AI. The bench cannot ask Claude for advice. Until now a bench was faced with the traditional question: do we believe this evidence? Now the question is  can we be confident that this evidence is what it purports to be?

When I first wrote about the magistrates' courts in 2010-2013 {at another site and now published  at   https://amagistratesdiaries.blogspot.com/ } , artificial intelligence was scarcely a consideration. When I retired in 2015 it was still science fiction. In 2026 it is becoming impossible to ignore.  But would I now feel out of place, out of my depth in the middle chair of my inner city bench?  The basics are still unchanged.  The bench still has to listen to the evidence, assess the credibility of witnesses, apply the law with the assistance of the legal advisor and decide whether the prosecution has proved its case beyond reasonable doubt. Perhaps in the not too distant future AI might be asked for its opinion  but for the foreseeable future it cannot make that decision of whether guilt has been proved beyond a reasonable doubt.  However it is the credibility of the evidence presented to the court which raises the possibility of its origin. AI can produce remarkably convincing photographs, documents, emails, voices and videos which never existed. It can also alter genuine material. The technology is becoming cheap, accessible and increasingly difficult to detect with the naked eye or ear.  The corollary is that genuine evidence might be dismissed as "AI generated" when it is not.  As mentioned above most worrying perhaps is the potential influence of AI on witness statements. If a witness's account has been drafted, polished or reshaped by AI where does the witness's own recollection end and the machine's contribution begin?

When Sentencing Guidelines were introduced in 2004 there was a split in judicial opinion as to their worthiness and a fear that the discretion of sentencers would be reduced if not eliminated.  The practice of structured decision making at all criminal courts was eliminated. As is now demonstrable by the many sentencing pronouncements made on live TV of major criminal offenders the steps to a sentence are almost robotic in their presentation and in my opinion are leading inevitably to a position where, when consulted, the computer says yes.  Although the limits of AI currently seem to be constructed in steel reinforced concrete I do not believe my successors in 2036 will have that inhibition cast upon them.  AI might not replace the magistrate but it might fundamentally change the nature of the task the magistrate is being asked to perform.

A NEW COURT OFFERS A NEW WAY

In 2000 The Labour government first attempted to abolish a defendant's absolute right to elect a jury trial for "either-way" offences.  In 2003 the government successfully passed legislation allowing for judge only trials in very specific circumstances such as complex fraud cases or instances where there was a significant risk of jury tampering.  On 25 November 2025 a leaked internal Ministry of Justice memo revealed plans to eliminate juries for most crown court cases.  This was formally announced to Parliament shortly after on 2 December 2025 by Justice Secretary David Lammy.  And after the parliamentary  Christmas recess the s*** surely hit the fan. 

The prime, even the only, public argument Starmer`s government had for this radical proposal was that it would reduce the crown court backlog which had reached c 80,000 cases.  A report by the Institute for Government estimated that the proposal would reduce that figure by around only 2%.  The reasoning was that there are myriad practical causes of delay; crumbling infrastructure, staff shortages and administrative failures to name but a few.  The majority of the legal profession was incensed, the erosion of democratic rights being the most quoted argument leading to loss of public confidence and a claim that there would be a disproportionate impact on minorities.  

Could there be another reason, so distant from the public or even private limits of "out of orbit" thinking  for the proposed changes?  

In April 2021 six Extinction Rebellion protesters were acquitted of causing £25,000 worth of criminal damage to Shell’s London headquarters. They won despite the judge explicitly instructing the jury that they had no defence under the law.  On 5 January 2022 a Bristol crown court jury acquitted the "Colston Four." The jury used its ancient right of conscience (jury equity) to acquit them. It was a perverse verdict. Other "perverse" verdicts followed.  In January 2024 a jury acquitted the "Palestine Action" activists who occupied and caused major damage to a Thales weapons factory in Glasgow, accepting the defence that they were acting to prevent war crimes.  A month later  5 climate activists from the group Plan B Earth were acquitted of criminal damage after spraying paint on the Treasury building despite a judicial warning that their climate anxieties did not constitute a lawful excuse.  The "Just Stop Oil" Signage Acquittals (Mid-2024) followed the high profile arrest of retired social worker Trudi Warner for holding a sign outside a court reminding jurors of their ancient right to acquit according to their conscience.  Several subsequent trials of Just Stop Oil protesters resulted in total acquittals. Jurors explicitly rejected judicial directives to ignore the "global climate emergency" when deciding on charges of public nuisance and criminal damage.  More details are available by typing perverse verdicts in search box. 

With further crown court trials in the offing where jurors`political motivations might undermine evidence based conclusions is the government making a desperate attempt to preserve traditional judicial norms by appearing to undermine them? If the government indeed has a case to answer might it be that it has shot itself in the foot by rejecting a more middle way to achieve its aim? 

The most favoured alternative to the current judge and jury system re either way cases was put forward in 2001 by Sir Robin Auld who recommended creating a unified, three-tier court system to replace the division between the magistrates and crown courts.  The proposal caused immediate outrage from the Bar Council and Law Society who branded it an "assault on jury trial". Because it was a political "hot potato," the Labour government dropped the idea.  The exact judge plus two magistrates blueprint was resurrected in July 2025 by Sir Brian Leveson who again proposed a single judge sitting with two magistrates to hear cases with anticipated sentences of up to three years. Instead of adopting Leveson and Auld's balanced intermediate panel the government pushed ahead with solely judge only trials for the new "Swift Courts". This choice heavily intensified the current political backlash.

Into this cauldron of frenzied legal xenophobia this humble retired magistrate proposes now is the time for something completely different.   To reconcile the lack of a jury let there be created an "upper magistrates court" where five presiding lay magistrates would sit on those contentious trials with a legal advisor as in all current cases where magistrates form a bench. To remove the fear of an "outlier" magistrate debasing the system a majority verdict of 4:1 would be enough to reach a verdict. Furthermore the proposed removal of a right to appeal would itself be removed. In itself that would give the public confidence  that justice would be seen to be done. 

Considering that every government proposal is subjected in minute detail into how it`s going to be paid for the above alternative  hasn't been costed by anyone.  The judge alone "swift court" model is projected to save time rather than money directly; around reducing trial time by an estimated 20% translating to roughly 9,000 sitting days saved once the system is fully staffed.  The Institute for Government flagged that the government hasn't published cost estimates for the magistrate involving options at all. A five person lay bench would cost more per sitting day than the current single judge, single magistrate or traditional three magistrate bench models but less than a 12 person jury trial with full jury expenses, jury management infrastructure, and (often) longer trial length.

To sum up my prosed changes: They build on the existing magistrates bench + legal adviser structure rather than inventing a new mechanism so it's low risk and not unprecedented. Five highly experienced bench members with a 4:1 threshold gives a stronger safeguard against a single outlier than the current 2:1/three bench majority.  A guaranteed appeal right restores a safety net the government's Bill is currently removing.  Finally and perhaps overriding much of the above the public is more likely to find this change acceptable as a development of the current position.  However it is unlikely that die hard members of the legal fraternity would be persuaded. 

There are always those on any topic who are traditionalists. They abhor change; any change.  They are the Luddites of our age.   MOJ data shows magistrates courts run four times faster than crown court and the guaranteed appeals would risk clawing that speed back.  That factor is not insurmountable if the basic change were accepted as viable. It is impossible to compare possible costs with current or proposed costs.  

With our new prime minister behaving like somebody who thinks he can produce a fine Burgundy by waving a magic wand spin is more important than functionality.  The forms our justice system will take are being paraded like the entrants for a 1950s beauty contest.  Perhaps those who make the rules don`t get out enough. It`s time they got out of the box. A new court offers a new way.

MAGISTRATES COURTS//THE ODYSSEY SINCE 2013

Everyone (including Christopher Nolan) knows that travel through the four dimensions of space time is at a constant velocity of 186,000 miles per second. However, there is a trade-off: the faster you move through space the slower you move through time. At exactly the speed of light time itself stands completely still.  That`s essential understanding for astrophysicists but notwithstanding their IQ  those of my generation appreciate all too clearly that the velocity of time also  increases with the age of the observer. What happened a year ago feels as if it happened a few months previously and those events that were kick started a decade or more ago seem to have been around just a few years. And so it is with this blog.  It began on this site in 2013 with just a few dozen page views and now daily five figure numbers are a regular occurrence. The 13th anniversary of that first post is imminent.  My thoughts go back to that year when I was a presiding magistrate as to the major changes which have taken place in what can be loosely termed as the institution of the "magistracy".  

The October 2010 Spending Review, delivered by George Osborne, set departmental budgets for the four years to 2014–15. The March 2011 Budget (Kenneth Clarke's "first budget" as Lord Chancellor) reporting on that October 2010 Spending Review put the MoJ's spending falling from £8.3bn in 2010 to £7bn by 2014, a cut of roughly 23%.  In 2010 there were 320 magistrates courts in England and Wales.  That review resulted in the closure of 93 magistrates courts between 2010 and 2014. Today there are just over 150 magistrates courts across England and Wales.

One of the many arguments against the closure of so many courts was that justice would no longer be local.  Countering that assertion by many MPs the Ministry of Justice had insisted that  90% of court users would be able to reach a court within one hour by public transport, later softened so the government would only assess whether users could reach a court by public transport at all between 7.30am and 7.30pm.  The House of Commons Justice Committee formally recommended a travel standard of no more than one hour by public transport for at least 90% of magistrates court users; a guarantee the MOJ has refused to endorse. 

Alongside the reduction in courts, age related cohorts of retiring magistrates went unreplaced. There were 25,170 magistrates in 2012 falling to 13,340 by 2023 and now around 14,576–14,636 with a national recruitment programme active. They work in association with just under 400 District and Deputy District Judges. 

The 2010 closure programme was projected to save at least £15m a year in courts running costs plus £22m in maintaining the buildings. Despite the narrative above in 2024–25 day-to-day HMCTS spending across all courts and tribunals was around £2.4 billion; the highest level in cash and real terms since comparable data began with rising staff, digital costs and caseload pressure responsible. 

A major change over the last 13 years is the current backlog of cases which stood at around 379,400 in the quarter ending December 2025, the highest since March 2019 and 70% above pre-pandemic (Dec 2019) levels.

Perhaps tying with the above as a result of the actions of truly the worst Lord Chancellor in living memory was the introduction of the Single Justice Procedure. Thankfully I had retired prior to its inception. I will not discuss it further in this post as by entering the term in the search box these posts will be available for information and opinion. 

If any function within the magistrates courts system over the last 13 years is an indication of the incompetence, short term thinking, expediency  and parsimony of HMCTS it is in the snakes and ladders attitudes to sentencing. This is easiest demonstrated as follows:-

Pre-2022 (including 2013): Cap fixed at 6 months custody for a single either-way offence (12 months aggregate for multiple offences). A power to raise this to 12 months existed in statute since the Criminal Justice Act 2003 but was never brought into force.

2 May 2022: Power increased to 12 months for a single either-way offence, under the Judicial Review and Courts Act 2022 — intended to relieve Crown Court backlog pressure.

30 March 2023: Power reduced back to 6 months by regulations, after MoJ concluded the change was adding to Crown Court pressure rather than relieving it.

November 2024: Power restored to 12 months again.

May 2025: Gauke Independent Sentencing Review reported, driven by prison capacity crisis rather than magistrates' powers specifically, but touching on related territory (short-sentence presumptions, guilty-plea credit).

22 January 2026: Sentencing Act 2026 given Royal Assent; core provisions (in force 22 March 2026) introduce a presumption that sentences of 12 months or under be suspended rather than immediate — indirectly affecting how the 12-month magistrates' ceiling is actually used in practice.

Now under review (Courts and Tribunals Bill, before Parliament as of March 2026): Clause 6 proposes extending magistrates' maximum custodial power further still, to 18 or 24 months, adjustable in six-month steps — with the Magistrates' Association supportive, citing the "efficient" 2024 transition to 12 months as evidence it can work.

Doubling the custodial ceiling for a volunteer bench sitting 26 half days a year asks training to do something I don't think training can do. It teaches procedure well but it cannot manufacture the embodied judgment that comes only from repetition and years of practice. 

No single one of these changes was necessarily fatal to the lay magistracy on its own terms.  However taken together the result has left us an institution with its ancient name and dress intact while its practical substance has been quietly emptied out.  It is a shell almost but not quite unrecognisable to my time travelling 2013 participant even with the cinematographic  talents of Christopher Nolan.  I do not think more training restores what geography, governance and procedure have taken away.  In closing I do not think the legal profession's scepticism about this bench is unreasonable. To quote from last week`s post concerning the opinions within the legal profession, "A segment of the respondents felt that reform would not be enough and openly advocated for the lay magistracy to be scrapped."

WHY DOES ENGLAND STAND ALONE?

Perhaps the outcome of what was the British Empire`s greatest gift to the world is that around 2 billion people speak English as a first or second language, i.e. 20%-25% of the world`s population.  Arguably the next most significant offering to authoritarian ruled societies was the foundation of a legal system where all the populus was treated equally before the law. At its lowest level this was incarnated in the system of magistrates courts where non lawyers were entrusted with the jurisdiction over the lowest levels of alleged criminal defendants.  It is therefore surprising that this English system  was not absorbed by the former colonies and dominions in anything like its current form.  Indeed New Zealand is the only country where the English court user would perhaps recognise its Antipodean counterpart of two community magistrates or Judicial Justices of the Peace.  Even in Scotland, the only other country where lay justices preside in any number, the system is not comparable to that south of the border e.g. single justices preside.  There are some few Australian and American states where lay justices preside. The question is why the English system has not been absorbed to the same extent as the English language in the old empire. 

Some historical aspects of the system might help to explain how we now are where we are. Government and judicial lackeys are forever extolling the virtues of "local" justice.  Until 1948 "local" meant magistrates approved by local dignitaries.  From that era until 2005 Local Advisory Committees recommended candidates to the Lord Chancellor using structured selection criteria. The current situation is that the Local Advisory Committees assess applicants; the Lady Chief Justice selects candidates and the Lord Chancellor makes the formal appointment on behalf of the Crown.

There has long been an undercurrent of disdain by criminal lawyers in their dealings with the lay magistracy in private if not in public.  While they value the principle of community justice and the fact that magistrates sit in diverse panels of three, lawyers frequently express frustration over the lay bench's lack of formal legal training.  Research indicates that some practitioners view magistrates as overly deferential to the police and the Crown Prosecution Service.   

Polling by The Queen Mary University Study (2024) indicated that lawyers overwhelmingly reported that lay magistrates are poorly trained and lack a sufficient understanding of basic law and procedural rules. Lawyers heavily favoured professional district judges, rating them as much faster, more efficient and capable of understanding complex legal arguments. They noted that lay decisions are significantly more inconsistent and prone to being unjust.  Considering the very low number of successful appeals to the crown court this opinion lacks credibility. The vast majority of polled lawyers demanded substantial, immediate reform regarding magistrates' training and communication styles. A segment of the respondents felt that reform would not be enough and openly advocated for the lay magistracy to be scrapped. 

The Law Society is always wary on its comments concerning the lay magistracy but there is an underlying theme that it opposes increasing its powers whilst the Magistrates Association, a government lap dog, strives for exactly the opposite policy and only rarely acts as an independent voice for magistrates despite its protestations to the contrary. 

I began this post with a question;Why the English system has not been absorbed to the same extent as the English language in the old empire.  Perhaps that opening should have been why England continues to rely upon lay justice but why almost everyone else decided not to.

As mentioned above only Scotland and New Zealand have retained a lower courts structure derived from the post war English form. That was a system of patronage reflecting the social structure of its time.  Advisory Committees were established to recruit candidates on merit rather than social standing with the aim of creating benches more representative of their communities. The principle of lay justice survived but the method of appointment became more transparent.

After WW2 most countries concluded that criminal courts should be presided over by legally qualified judges. England retained its lay magistrates but surrounded them with legal advisers, structured training, detailed sentencing guidelines and extensive procedural rules.  Supporters  argue that lay magistrates bring independence and community experience to the courtroom but, the detractors argue, at the cost of a lack of consistency in sentencing and decision-making which is easier to achieve when judges hear criminal cases every day rather than  26 half days annually even with the attendance of a legal advisor. 

Things are different in continental Europe.  Career judges, selected after legal education and specialist judicial training, are the norm. Where lay participation exists it is usually alongside professional judges rather than instead of them.

At a time when legislation is pending with government seeking to expand magistrates' sentencing powers, transfer increasingly serious cases into magistrates courts or curtail traditional rights of appeal they are placing greater reliance on a judicial model that few comparable jurisdictions have retained.

So asking why does England stand alone with regard to my original question and its alternative there appears to be no conclusive answer other than the observation that the employment of exclusively district judges to magistrates courts would be an additional cost which all governments to date have decided is not worth paying.  So much for the motto, local justice for local people: district judges are appointed on their merit not their neighbourhood.