PUBLIC OPINION DRIVES LIFE SENTENCES

Ten years ago the daughter of one of my best friends was killed on the M6 by a previously convicted drunk driver who was driving drunk, disqualified and using a mobile phone. The offender was jailed for the maximum at the time of seven years.  Not long afterwards  the maximum for causing death by dangerous driving was increased to fourteen years custody.  The government now proposes to increase the maximum to life imprisonment. According to the government press release this change is "part of government action to make roads safer for all and stop devastation caused by dangerous drivers and cyclists."  It will do no such thing but it will certainly satisfy the families and friends of the victims. Some might conclude that it will satisfy the taste for revenge for those affected by the loss of their loved ones. But is that the way we wish to see the law progressing?  The guilty parties of this and similar offences by their very behaviour will not be deterred. They will not reduce eg their speed on a country road from 60MPH to a safe 30MPH because if they kill a walker or cyclist they will be in prison perhaps for life.  Only the fear of being caught will be an effective deterrent and without effective police patrols on our roads such drivers will continue to drink and use their mobile phones to all our risks.

All this leads to the bigger question; how far should public opinion lead criminal legislation and how far should government accede to public pressure?  Taken to its natural conclusion it seems that the tail of public opinion wags the government dog when the dog allows it so to do.  Hate crime legislation has expanded almost exponentially in recent decades even  to include "hate" against those who deem themselves "gothics". With Brexit fast approaching the subject of capital punishment has surreptitiously begun to be heard in various quarters.  The re introduction of such a punishment even in a very limited form is no longer supported only by cranks or fascists. It is inconceivable that any government would be led by public opinion on that extreme of sentencing. Similar logic should apply to life sentences for death by dangerous driving. This change is just another example of window dressing by a government that has nothing left to offer the British people who champion the free market as being the only way to raise living standards and enable tax receipts to support those unable to enjoy the benefits achieved by the majority. It is by government`s own incompetence that the Marxist ravings of an intellectual minority appear as milk and honey to those who believe the promised land is there for the asking after Israel is evaporated of course.

WITCH BURNING 2017 STYLE

Last Tuesday October 10th I illustrated that day`s post with a cartoon of a witch burning. Indeed the last event of witch burning in these islands was that of  Janet Horne in 1722.  One might have thought that our judicial system has progressed since those days of the first Jacobite rebellion when the politics of the era pitted a Protestant Establishment against a Catholic insurgency. One would have been wrong. The last trial for witchcraft under  the Witchcraft Act of 1735 took place as recently as 1944. Yet the practice might be said to be continuing.  Indeed it could be argued that it never went away. Of course the law has changed but the attitudes and reactions against those who offend society`s norms are as hypocritical and wafer thin as ever.  Those who dare to criticise the basis of global warming rarely are able to present their point of view before a learned or even a lay public without their being ridiculed even although parts if not the entirety of their argument might harbour some elements of doubt.  So called conspiracy theorists exploit those gaps often for their own unquestionably evil ends.  Somewhere in between all these accusations and counter accusations sexual deviancies lie.  Until two generations ago it was homosexuality which was followed by paedophilia although now of course nobody can question the latter as being anything but against all our norms of behaviour.  If, as some suggest, that that behaviour is as much wired into the brains of its "victims" as is hetero or homosexuality the law will have to be re drawn.   However it is the heterosexual male predator who is in recent times the witch or more precisely the warlock that plagues us. No more clearer example is that of Harvey Weinstein, a media mogul, whose approval or otherwise of an actress`s suitability was a career changing decision. As a man of awesome power in his realm of film production he apparently escaped public denunciation until recently of his abhorrent sexual behaviour. However there is now consideration of his having various accolades awarded to him in USA and in this country withdrawn.  My point is that in his purgatorial position of unproven guilt  he is being burned at the stake of public opinion. Is this really the best or only way that we treat him and the Jimmy Saviles of this world or even the Edward Heaths?

ACQUITTAL DOES NOT ALWAYS MEAN NOT GUILTY

"Ms Saunders said: 'Just because there is an acquittal, that doesn't mean it was a false allegation."
The above is quoted from today`s MailonLine. Alison Saunders is the big chief of the CPS


2.4 Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.
The above is copied from the General Principles of the Crown Prosecution Service

In law the state of being guilty means that either a person had pleaded guilty and that plea has been accepted by the Court, or there has been a trial, before jury or judge without jury, and the accused has been found guilty of the charges levelled against him or her.

 A verdict of not guilty constitutes an acquittal. In other words, to find a defendant not guilty is to acquit. At trial, an acquittal occurs when the jury (or the judge if it's a judge trial) determines that the prosecution hasn't proved the defendant guilty beyond a reasonable doubt.

These are a few definitions; of course they are not exclusive but indicate the generally accepted meanings of the words and/or phrases used. The first lines of this post were in answer to a question by Today presenter John Humphrys on yesterday`s programme, a report of which is available here. Apparently many people didn`t like his line of questioning.  I wonder if these are the same bigots that have demanded that self confessed sexual predator Harvey Weinstein be relieved of his honourable CBE?  We as a nation have been here before; Edward I sought out Jews to kill especially in 13th c.York. Bloody Mary daughter of Henry VIII searched for protestants to burn.   Her sister was less enthusiastic in her predilections to find Catholics supposedly planning her assassination. Witches were burned at the stake even in the 18th century. In 1914 British citizens of German origin were humiliated or worse and in 1939/40 refugee Jews from German occupied Europe were held in camps as suspected spies. Today it seems the objects of such mass hysteria are those who offer even the hint of opposition to or questioning of such matters as gender identification,  self identifying so called victims of so called "hate" crime supposedly ethnically offended and the implied guilt of those found to be not guilty by the courts this last example being referred to by Alison Saunders in my opening quotation. 

We are in the latter stages of a society where being denounced as a "something" is tantamount to guilt. Where the leader of Her Majesty`s Loyal Opposition is revered as if the leader of a cult but whose disciples might just propel him to 10 Downing Street, where an incompetent Prime Minister failed to achieve a simple modifying of rules of the EU and called a referendum to try and smooth his way ahead without a thought of failure, where his successor fell into office as the least objectionable of the misfits around her our country is steaming into turbulent waters with nobody to navigate.When the Director of Public Prosecutions joins the circus we are in bad times and with unsubstantiated accusations of guilt in the criminal justice system it is but a prelude to a situation where the Salem Witch trials of 1692/3 will seem but a mere mistrial to what we will witness in years to come.

CROWN COURT JUDGE IN GYPSY CASE EXONERATED

On 25th September I posted on a crown court judge being reported to the Judicial Conduct Investigations Office by the National Alliance of Gypsy Traveller and Roma Women for remarks he made after sentencing a gypsy gang of slavers. My opinion was not in favour of that organisation`s actions. That original post is available here. The JCIO seems to have gotten its act together in record time and the charge against HH has been dismissed. I`m sure that many magistrates caught up in spurious accusations that lead to their being before that high and mighty star chamber hope that their case would be dealt with as quickly. 

CHRISTIAN VIEWS OFFEND UNIVERSITY

It seems that almost daily there is a report of the ever increasing areas where freedom of expression and/or speech is being restricted.  In many countries Holocaust denial is a criminal offence. Thankfully in the UK that is not the case......yet. Deniers have been excoriated by argument and proof.  Certainly there are a few who try to use the elegance of the variety within the English language to make their point but whose etymological camouflage is pierced by the arrows of reason and history.  The two Kens;  Livingstone and Loach are certainly amongst those leading the way in the bid to narrow the definition of anti semitism and divert it to anti Zionism.  Islamists have sought to use similar deflectionary tactics when some Muslims are accused of using their religion as a shield against accusations that political Islamism and Sharia  are contrary to our values as a country based upon centuries of being a Christian state.  Anyone with a modicum of historical knowledge will be aware that that national religion was responsible for many actions contrary to any definition of a civilised humanity.  But that was then and this now.

I suppose I am an atheist. However believing in no god does not preclude having respect where its due for those who defer to a supposed almighty being. It would seem that a devout black Christian who expressed apparently unpopular views on homosexuality on Facebook was considered by his university coursework bosses "unfit to practise" and removed from his course. He has taken the university to court and a verdict is awaited. 

I had thought and still do think that a regulatory authority, in this case the Health and Care Professions Council, is a body that has powers of discipline over its registrants and delegates that power to the Health and Care Professions Tribunal Service. It seems that those powers have been transferred, at least in this case, to the university. The particular section dealing with "fitness to practise" is copied below.  The complete document is available here. The accused is a student. Would fitness to practise rules be brought against a medical student, a dental or science student, an architectural or teaching student for expressing similar opinions in what we are told was a reasonable and non offensive manner?  Would a Muslim or Orthodox Jewish student have had similar proceedings taken against them? Would a white Plymouth Brethren student have been treated this way?

PART V: FITNESS TO PRACTISE

Council's functions in respect of fitness to practise, ethics and other matters

21.—(1) The Council shall—

(a) establish and keep under review the standards of conduct, performance and ethics

expected of registrants and prospective registrants (including registrants or

prospective registrants carrying out the functions of an approved mental health

professional)64 and give them such guidance on these matters as it sees fit; and

(b) establish and keep under review effective arrangements to protect the public from

persons whose fitness to practise is impaired.

(2) The Council may also from time to time give guidance to registrants, employers and

such other persons as it thinks appropriate in respect of standards for the education and

training, supervision and performance of persons who provide services in connection with

those provided by registrants.

(3) The Council shall—

(a) before establishing any... arrangements mentioned in paragraph (1), consult... the

persons mentioned in article 3(14);65 and

(b) before giving guidance under paragraph (1) or (2) consult the Education and

Training Committee in addition to the persons mentioned in article 3(14).

Allegations

22.—(1) This article applies where any allegation is made against a registrant to the effect

that—

(a) his fitness to practise is impaired by reason of—

(i) misconduct,

(ii) lack of competence,

(iii) a conviction or caution in the United Kingdom for a criminal offence, or a

conviction elsewhere for an offence which, if committed in England and

Wales, would constitute a criminal offence,

(iv) his physical or mental health, or

(v) a determination by a body in the United Kingdom responsible under any

enactment for the regulation of a health or social care profession...66 to the

effect that his fitness to practise is impaired, or a determination by a

licensing body elsewhere to the same effect,

...67

(b) an entry in the register relating to him has been fraudulently procured or incorrectly made.

(2) For the purposes of this article references to a conviction include a conviction by a Court Martial.

(3) This article is not prevented from applying because the allegation is based on a matter alleged to have occurred outside the United Kingdom or at a time when the person against

whom the allegation is made was not registered.

However unpopular and perhaps offensive his opinions to some should this expression result in expulsion? The judge has yet to give her decision. In due course I will be linking this post to my Twitter account.  If you wish to add an opinion please retweet.

 

MAGISTRATES` COURTS DISPOSED OF SINCE 2010

One of the major talking points amongst magistrates and some lawyers over the years since the coalition took power is the number of magistrates` courts closed and the predictions and realities of the problems these closures would cause.  To date 133 have been closed and disposed of. The full lists are detailed below.

 

OPEN JUSTICE FOR JUDGES

Joshua Rozenberg is one of the most articulate and incisive legal commentators in this country. Today he has written in the Law Society Gazette, where he is a regular contributor, of the circumstances of the Judicial Conduct Investigations Office`s inquiry into the antics of Mr Justice Peter Smith.  It`s well worth a few minutes reading time.

AMAZING BUT TRUE

This post is short and sweet. Its contents will probably be as surprising to a reader as they were to me. In this instance any comment from me is probably superfluous. In short the Ministry of Defence Police has lost its firearms standards license. What it means in practice can be read here.

A ONE SOLICITOR SUCCESS STORY OR JUST GOOD PR?

I was around in an age when many (most) professions did not allow advertising. I remember being told of a friend`s colleague who opened a new optician`s store in the 1970s and plastered the glass front door with "we take ACCESS" "we take VISA" signs.......it was the beginning of the age of credit cards......... and who was reported by a rival to the regulatory authority; the General Optical Council. Nowadays it is virtually anything goes so long as the Advertising Standards Authority doesn`t disapprove. 

Lawyers were quick to jump on the advertising bandwagon. Some, perhaps more conservative by nature, employed public relations companies or had in house employees to plug their own advantages over other practitioners. I don`t know if Rotherham solicitor Hester Russell, head of criminal law at Harthills Solicitors, used either of the aforesaid means of gaining a headline or whether he spun a yarn to a gullible local reporter but the end result quite blatantly suggests that this gentleman single handedly brought the much laid plans of HMCTS and its CEO to extend court hours at his local court to a grinding halt. 

Mr Russell might be a very eloquent member of his species notwithstanding that the  current plans of HMCTS have been put on hold including his local court. On the other hand perhaps his skills in PR are as highly focused as any others he might possess.  

POLICE MISCONDUCT,TORIES & A RED FLAG

An item on the very serious (gross) misconduct of a senior police officer caught my eye today and is commented on below but before I put finger to keyboard I quickly checked on some previous posts on this topic; there have been so many over the years that if any reader is interested just type in the search box "police misconduct".

When an Assistant Chief Constable, usually 3rd in the hierarchy after the Chief and Deputy, is facing and found guilty on a charge of gross misconduct, it is not unreasonable to expect that he should be dismissed.......no ifs, no buts.  However in Cambridgshire that has just not happened the reasons given by the tribunal being as follows below which is quoted directly from "Police Oracle".  The local news media for some reason did not use the quote; an omission which I find surprising. Its version is available here. 

"The chairman told Mr Malik, "Any officer of any rank  from police constable to chief constable who aspires to and achieves excellence should be entitled to call upon his service record at times of trouble and ask for it to be weighed in the balance in his favour". "

This IMHO is a dangerous precedent in the general process of discipline as in this case but in the wider field of jurisprudence in general. It was applied earlier this week in the matter of a medical student who was guilty of stabbing her then boyfriend. The judge considered that her circumstances allowed him to suspend a fairly short custodial sentence considering the severity of her crime. Mixed reactions unsurprisingly resulted on social media. 

There appears to be an indeterminate area of our society where the rigid ethos of our Judeo Christian heritage has given way to a thick fudge of equivocation. I do not wish or mean that we should have a society acceptable to the Plymouth Brethren or the "Wee Frees" in Scotland. We have burned enough witches. But the Tories and their capitalistic supporters have lost sight of a humanity and common cause which has in the past served us well. They have allowed perhaps a majority of voters to be subsumed in a cultish following of an Alexander Kerensky figure surrounded by those who would make this place a nation for the few not the many by  having state control of many of our services and industries. Those old enough to remember the havoc of the 1970s had like me a supply of candles when the lights went out. Since 2010 we have been witness to the incredible naivety of Tories who did not recognise that the institution of capitalism had to be controlled and more importantly seen to be controlled: that the organs of state including police forces, the NHS and the rest had to follow guidelines that achieved respect from the public. Having just watched Corbyn`s speech to his Labour acolytes in Brighton I fear the Tories` failure is beyond redemption and the red flag will in due course be flying high.

REASON ITSELF IS UNDER THREAT BY HUMPTY DUMPTY

All too often magistrates are reported to the Judicial Conduct Investigations Office for what they have said either in court or our of court.  And all too often their perceived indiscretions conclude with their being removed from the magistracy.  Crown Court and District Judges (MC) rarely appear in the news for inappropriate remarks whether in or our of a court environment. Of course there is a simple reason for that apparent lack of judicial chastisement; such individuals are skilled in avoiding controversial remarks which might lead them to explain themselves before the JCIO.  What then of HH Timothy Spencer QC and his comments a couple of weeks ago at the gypsy slavers trial at Nottingham Crown Court. To quote the judge`s remarks from the report, "Judge Spencer told the family: "You claimed that what went on at Drinsey was no different from what was going on at any travellers' camps around this country, that all travellers had workers operating under similar conditions."Sadly, I very much fear that you may be correct about that. But that does not make any of it right."

Presumably it is the second of his sentences reported that have prompted a complaint since the first merely quoted the defendants` words. To observe the possibility that the defendants` admitted actions might indeed be the case does not, IMHO, justify the mean spirited complaint and referral by the National Alliance of Gypsy Traveller and Roma Women. They would surely have been wiser to issue a statement of fact refuting the judge`s comments if indeed they could be refuted. This recourse to complaining to authority about perceived offensive language is becoming endemic in a world truly smitten by the Humpty Dumpty virus of words meaning what the listener wants them to mean. The public spats over what is considered hostile to supposed transgender people is taking these forms of criticism to localities where reason has its head stuck up its arse.  Indeed reason itself is under threat and its adherents have fewer and fewer places to express themselves.

MAGISTRATES IN FAMILY COURTS

The magistracy has lost about 60% of its numbers in the last decade. There are many reasons for this astounding reduction including a drop in cases coming before the courts, a large increase in the numbers of lawyers appointed as District Judges (MC), retirement of thousands of baby boomer JPs and fewer volunteers with the resources to make the necessary sacrifices in time and income to devote even the minimum twenty six half days annually and three or four days training. A most important consequence of this lack of personnel is the shortage of magistrates trained to sit in the Family Court. Until now at least two years experience sitting on the Criminal Bench was a pre requisite for those wishing to sit on Family. Personally I did not consider myself a candidate for any but the Criminal Bench where I was a chairman for many years. It seems that the shortage on the Family Bench has been recognised by The National Bench Chairmen's Forum, the Senior Presiding Judge and the President of the Family Division.  To alleviate the problem a major change has been approved for the selection process; JPs will be appointed and/or allowed to sit on the Family Court without the aforesaid probationary period.  

It goes without saying that the qualities needed  of a family magistrate differ greatly from those of their peers on the Criminal Bench.  With that thought in mind I recollect clear instructions from trainers in my early days on the bench that we were not social workers. That perhaps is explanation enough why the new rules have been enacted. Whilst empathy of individual JPs when on the bench was not a handicap the training advice indicated where a line had to be drawn.  For those colleagues who did and do manage to ride both horses simultaneously I have nothing but admiration having seen them countless numbers of times reading through family reports sometimes of hundreds of pages.  

Whilst I have been critical of many so called initiatives of the last decade in the structure and running of magistrates` courts many of a corporist nature this particular one has my backing.  It should place many round pegged magistrates in round pegged courts.

STOP THE CLOCK ON COURT HOURS EXTENSION

The plan by HMCTS for flexible operating hours in courts has been postponed.  It was due to begin in November but had met much resistance from the legal profession. Magistrates haven`t been too vocal in their opposition. Ostensibly the delay is to allow a more thorough investigation into all aspects of the proposals. Such a confession is an indictment itself of the manner in which the timetable had been set. The clock has been stopped.  It is not unlikely that if and when this exercise to increase utilisation of courts is concluded the result will bear little relation to that which was originally intended.  The very verbiose and Twitter happy CEO of HMCTS has explained herself here.

TO BAIL OR NOT TO BAIL;THAT IS THE QUESTION

The issue of pre trial refusal of bail for defendants has always been a contentious issue. It is certainly amongst the most difficult decisions made by magistrates. Taking away the liberty of an unconvicted person strikes at the heart of our justice system.  To that question in the few years prior to my retirement the situations where bail was mandatory in the pre trial stage were increased. With those thoughts in mind it was interesting to read this week of the numbers of defendants remanded in custody who were not later convicted at  crown or magistrates` courts. 

NOT MILK AND HONEY BUT BREAD AND GAMES

The Home Office has rarely been a direct topic of this blog.  Of course its effects on our legal system and the control of police affect us all.  In November 2011 a previous Home Secretary uttered the now famous phrase in which he described his own fiefdom as "not fit for purpose".  Many would argue that the situation is today not much changed. One fact however that has emerged from that department is that its current incumbent appears to have only limited control of what goes on under her name.  Last week an asylum seeker was flown out of the country in direct contravention of a court order known to the Home Office which was in place prior to the departure of his flight to Turkey en route to Afghanistan. There are two simple conclusions to this sorry affair; Amber Rudd knew of the court order but ordered her civil servants to continue with the deportation or she did not know and her officials did her dirty work in the full knowledge that they were acting illegally.  If the former is true she should resign and if the latter her incompetence and lack of control of her own department lend itself to the simple conclusion that she herself is not fit for purpose. 

There is no doubt that the quality of the individuals at the head of government with only a few exceptions  is devoid of intellectual rigour and application. When cabinet ministers` bending rules extends to a public lack of confidence insofar that politicians lie in order to cover their arses  we are in a sorry state. It is that very perception that has allowed populists Trump in America and Corbyn in this country to garner support from a broad swathe of the population which is being led by the nose to a promised land which will soon be found rather than  being composed of milk and honey to consist of hate thy neighbour and bread and games.  Come back Nero; all is forgiven.