IS APPEAL TO A HIGHER COURT A LOTTERY OR SUPERIOR JURISPRUDENCE?

The Court of Appeal has yesterday reinstated Dr Bawa-Garba to the medical register. Readers will be knowledgeable of the details. I do not intend to discuss the rights and the wrongs of the final decision or the ramifications for the NHS.  My point is to understand the differences between that court and the Supreme Court from a lay person`s point of view. The major difference is  that the latter is administered under a chief executive and is the highest court in the land. Yesterday`s result I suppose could yet be taken to the Supreme Court.  The brains on those courts are presumably the highest of the applicants who applied. From the lower court some will find their way to that Supreme Court.  Are we to consider that intellectually and legally minded there is a superiority of one over the other?  Or is it that there are two courts sitting consecutively and the verdict of the second supersedes the first? Is a judge in the Court of Appeal verdict which was eventually overturned who differed from his colleagues and in effect brought in the same result as the Supreme Court would do in the future appeal to be considered a more suitable contender for that court than the colleagues whose verdict was overturned?  In a similar argument would it not be prudent for two juries to sit on the most serious cases so that two verdicts of guilty are required for conviction?   In other words with the current system of appeal is it as much a lottery as superior jurisprudence?

JCIO; A MODERN WITCH HUNT

THE JUDICIAL CONDUCT INVESTIGATIONS OFFICE is the star chamber where judicial office holders are held to account.  Its machinations are secret.  Investigations are conducted far from the public eye.  In that respect itself one must suspect the integrity and/or fairness of its deliberations.  Secrecy in government departments is guaranteed to raise questions but I cannot recollect any serious journalistic inquiry or reference to this process little known outside the legal fraternity.

Today it has published its latest findings...........copied below.

The very wording, "remarks........which suggested that she holds prejudices..........." is enough to consider that this accusation was perhaps on less than solid ground.  The fact of the accused`s resignation does not detract from that.  The mental stress of such proceedings would be more than enough to break the resolve of even the strongest personality.  The expense of defending such a charge is enormous. Magistrates have no group defence body. Of course we know nothing of the actual case except the result.  This is not justice.  It could very easily be a modern witch hunt.

MORE BLAH FROM THE MOJ

Criminals with drug, alcohol and mental health problems could avoid jail after ministers branded short prison sentences “ineffective”.
David Gauke, the Justice Secretary, wants “vulnerable” offenders to be given community orders requiring them to undertake treatment instead of going to jail.
But the scheme, being piloted in several regions, risks a backlash from victim groups amid fears that criminals could play the system to avoid prison.
Under the initiative, psychologists present in court assess offenders who could be eligible for a community order. Local panels of justice and health officials will provide information to magistrates and judges so they can determine the appropriate outcome.
The Ministry of Justice said the measures have already resulted in more Community Sentence Treatment Requirements (CSTRs) being issued. Government research has found less re-offending among those who undergo treatment.  In a speech today Mr Gauke will say: “We are all clear that we need to do more to support vulnerable offenders in the community… We need to do more to raise awareness and increase confidence in treatment requirements and I look forward to exploring how these sites progress.”  Since the pilot sites went live in Birmingham, Plymouth, Milton Keynes, Northampton and Sefton on Merseyside, initial figures suggest that more than 400 CSTRs have been issued. 
District Judge Richard Clancy, lead judge at the Complex Case Court in Merseyside, which is part of the Sefton pilot scheme, said: “To have a trial scheme where the court has on-site psychologists capable of testing suitability of a defendant for a mental health treatment requirement, so that such a community order can be made by the judge on the same day without need for adjournment, is a remarkable and innovative move which I fully support.”
Community sentences can include offenders being required to carry out unpaid work as well as attending centres for their addictions or health issues.

The above is copied from The Telegraph.  Over the last two decades governments of both colours have been responsible for closing dozens of mental hospitals and refuges.  Indeed the building closest to my house about three miles away founded in 1851 as an asylum  and later was a NHS  psychiatric hospital was closed in 1993 as were so many others similar. It is now a very desirable address where Premier League players are known to have flats. Judges and magistrates have been aware for many years that the provision for the 70% of offenders who have addiction problems; drugs and/or alcohol is very thin on the ground.  The numbers of professionals available to treat such offenders is nowhere near enough to offer a prompt effective route to abstinence.  The only sensible way forward is to remove the court journey to that of a medical pathway for such offenders. That means that drug taking [not dealing] must be de-criminalised.  Secure facilities must be constructed where appropriate offenders are forcibly incarcerated.  In previous posts I have termed these places as "workhouses for the 21st century" where they are released when it is considered they are clean and no longer a threat to a peaceful society. Some may comment that this  is draconian.  I don`t disagree but where we are now and where this Justice Secretary wants to go are just not possible even with all the press releases and their blah blah blah.  

GOOD GOVERNANCE NOT

A great debate is taking place in the USA over the separation of powers; a theme throughout the constitution which is the basis of that country`s democracy and a matter of concern with the current POTUS tending to disparage Congress and Justice Dept.  We have no written constitution as many puffed up parliamentary representatives are not tired of explaining.  This is all very well except that there is no defined path for true democrats to follow when the system seems to be near breaking point.  Those same representatives make it up as they go along; hence the debacle of the Brexit Shambles. Nearer to home and as a topic for a blog which usually focuses on matters legal, paedophilia and its perpetrators are rarely out of the headlines. We have come a very long way in the last twenty years in recognising this heinous lifestyle whether initiated by genetic or environmental disorders as a scourge in our society.  As in all criminal matters the police must investigate, the CPS must charge, the court must deliver verdict and the judge must sentence.  If the chain is broken anywhere along its length justice will not be done or seen to be done. Last year Simon Bailey, the National Police Chiefs' Council lead for child protection, said that paedophiles who view indecent images should not be charged and taken to court unless they pose a physical threat to children.  He added that low level offenders should simply be placed on the sex offenders register and given counselling and rehabilitation instead. A few days ago the Solicitor General indicated that he would make provision for appealing against sentences for paedophiles which are considered too lenient. 

This complete incongruity between police and courts is more of a tragedy than a farce. But it certainly does the profile of what constitutes good governance no favours.   

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NO END IN SIGHT FOR ADDICTS AND THE DESTRUCTIVE JUSTICE SYSTEM

"Sentencing Collins to eight weeks in custody, bench chairman Graham Commons said that he felt there was a gap in the criminal system to deal with people like him.
He told him: “We don’t normally get customers as cooperative as you, so thank you for being cooperative.

“All I can say is when you’re in custody please try and get the help that you’re asking for.”

The above is copied from the Huddersfield Daily Examiner.  The sentiments of the bench chairman are exactly in line with my thoughts formed many years ago on drug addiction. I have commented similarly many times here but rarely has the current situation been more clearly expressed and reported within a magistrates court. Only by the combined efforts of a courageous Home Secretary, a Justice Secretary who actually has balls and a Health Secretary with no leadership ambitions defying his civil servants and perhaps his boss will anything like the correction action be taken. Needless to tell, the current destructive process for addicts going through the justice system will continue indefinitely.  

A LINCOLNSHIRE DRIVER//NOT A LINCOLNSHIRE POACHER

More than a decade ago national sentencing guidelines were introduced to avoid or minimise sentencing by postcode.  This innovation in hindsight can be marked as the beginning of the end of what had euphemistically been termed "local justice". We have come a long way since then.  Magistrates are now accorded the privilege? of being qualified to sit in any local justice area in England and Wales when previously they were limited to their "home" court.  Whether one agrees or not this is the situation.  

A lawyer addressing magistrates in Boston Magistrates Court pleaded for his drink driving client to have a reduced ban cf similar miscreant in London who could avail himself of the myriad transport choices in that city cf rural Lincolnshire. I must admit that that is the first time I have heard of mitigation along these lines.  Imagine if courts could act retrospectively if the mood chose them.  There could be special reasons based on the supposed historic inbreeding in East Anglia, they could designate fines in bushels utilising the high number of those employed in farming,  two thirds in the county voted to Leave EU so learning French could be a part of community service.  

I suppose the lawyer in question was just trying to do best by his client.  I wonder what his approach would have been faced with mitigating a Lincolnshire poacher? 

A STAR CHAMBER FOR TODAY//THE JCIO

Last week yet another magistrate was castigated by the star chamber AKA the Judicial Conduct Investigations Office.  The statement is copied below.

Last week a serving magistrate in Wales had what appears to be self serving portrait of himself and his recreational interests published in Barry and District News. 

Perhaps somebody can explain why this person should not be appearing before the JCIO?

MAGISTRATES ASSOCIATION AND FUNNY PROBATION MONEY

The current (for how much longer) Justice Secretary today outlines the future vision he has for probation. The underlying theme of his statement is that one of his predecessors, the notorious Chris Grayling, f***** up the whole process of privatisation of much of what we term the probation service.  What is not widely known is that during this upheaval the Magistrates Association accepted money from some of the newly created probation companies.  Not now being a member of said association I have no knowledge of the financial machinations within that organisation. However at that time I posted on the story.  It can be read here. 

LATEST CONVICTION RATES

B.A. ABSOLVED OF RESPONSIBILITY FOR 12 DRUNKS HARASSMENT OF PASSENGER

I doubt there are many reading this who have not felt harassment, alarm or distress at the behaviour of fellow travellers when a passenger on an international flight. If even one fellow passenger behaves in such a manner there is just no escape.  Many reports have been filed of pilots diverting to the nearest airport in order that such passengers can be removed from the plane and taken into custody by local law enforcement.  Of course such a diversion will inevitably prove costly for the airline and would be considered only when the captain followed certain protocols.  I have no knowledge of these but a revealing report in the Express a couple of months ago goes a long way to explain procedures to be followed.  It was therefore a surprise for me when I read today of a passenger`s failed attempt to obtain compensation from British Airways for a truly unhappy and alarming flight to Las Vegas when he was harassed by twelve football fans during said flight. It would appear that the flight crew did not follow the protocols in such a situation.  The pilot had many opportunities to divert  from Gander in Ireland, Halifax Nova Scotia and many airports in continental USA.  I hope the claimant who obviously had the means to go to law appeals this appalling decision made by Judge Paul Brooks at Central London County Court.  

FLIES, WHISKY, SQUIRRELS & J.P.s` FREEDOM OF SPEECH

               A couple of days ago I was sitting comfortably at my desk top typing away merrily at a speed which allowed me every so often to take my evening dose of muscle relaxant without spilling a drop until unnoticed by me a fly had decided it could no longer resist the smell of pure malt and decided to commit hari kari in a manner that even Rob Roy or Braveheart would have appreciated. Spooning away the now inebriated six legged intruder I took another sip safe in the knowledge that no bacteria could survive the 47% proof alcohol and continued putting the string of words within my cortex into a meaningful order before fingers once again tapped keys. A few minutes later and would you believe the thousand eyed identical cousin of the winged invader had also decided to see if immersion in a fine Scotch malt was worth dying for. So for all makers of fly traps I have a tip……bait them with your favourite tipple from the glens.The imbibing was an absolute necessity after coming upon two stories which for me became very personal indeed. 

Beatrix Potter in 1903 little realised that a charming story of a red squirrel would in its own sweet way lead to the conviction of a man at Burton Magistrates` Court under the Animal Welfare Act of 2006; another of these pieces of useless legislation that passed without a whimper through the bowels of a rotten parliament to be excreted unsuspectingly in the path of many right minded citizens going about their everyday duties of doing the best for themselves, their families and utilising the little piece of England that most would know as their garden. The original Squirrel Nutkin was Sciurus vulgaris a red squirrel. A native of this island it lives in coniferous woodland and survives on a diet of nuts and seeds. Around the time of the publication of Squirrel Nutkin the story goes that a pair of grey squirrels Sciurus carolinensis was introduced to Britain and has led to a current population of about two and a half million. Unlike the red which is endangered and is now confined to very few areas in Northern England and Scotland the grey is a wonderful example of Darwinism at its best. It is widespread everywhere and is as much a pest to suburban environments as its cousin the rat. Until 2006 like many wild creatures its welfare was covered by the Wild Mammals [Protection]Act 1986 which protects all wild mammals from cruelty. At its core the Animal Welfare Act of 2006 has in its first line the following:-(1) In this Act, except subsections (4) and (5), “animal” means a vertebrate other than man.

Bit of a catch all is that clause. Break a mouse`s back with a trap and one is caught. 

Magistrates must apply the law which in my interpretation means that if that law is broken the offender is guilty…no doubts, no ifs, no buts……s/he is guilty but if a bench takes a view that the charge need not have been brought or is relying on the letter rather than the spirit of the law there are disposals which can indicate this; an absolute or conditional discharge can be applied and the costs requested can be discounted to zero if thought appropriate. In 2010 Burton Magistrates in my opinion took a somewhat perverse view when Raymond Elliot admitted causing unnecessary suffering to a grey squirrel by trapping and drowning it. He was given a six month conditional discharge but ordered to pay £1,547 prosecution costs. Grey squirrels are pests. I have had them ruin plants in my garden, steal food left out for birds, eat birds` eggs, invade my loft causing a nasty mess and via a chimney come into my house causing havoc. I have used traps and a high powered air gun to rid myself of them and I continue doing so. This law is itself a trap. It is an example of all that was on the surface touchy feely about Blair and New Labour but red in tooth and claw underneath. So if this legislation is used to bully any reader here for exterminating a mammal which is called vermin by any other name think thoroughly before pleading guilty because an Act which has as its first line quoted above makes us all guilty.And to the second matter this week in which I had a personal connection being a bench chairman at the time; the fellow Justice of the Peace who was forced to apologise by senior judges for saying in court to an immigrant that “he had abused our hospitality” was only saying what many of my colleagues and I have said in various contexts in a variety of formats to those from abroad who have appeared consistently before us for usually common offences of no insurance, shoplifting, affray etc etc. We are supposed to be local people with local knowledge dispensing local justice but that is no longer the case. But we certainly are not mouthpieces for high level individuals who usually describe shovels as long handled implements with a metal bit at the end for digging the earth. The details of the incident were not  disclosed whether to protect the J.P. or to protect the grand members of the higher judiciary who with their high handedness once again were seen to be reverting to form of being above rather than part of society.

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LEGS CROSSED IN YORK

Urinating in public is not an action that I would think takes place to cause a disturbance or offence.  It takes place usually  because there are no public facilities available.  During normal office hours most town centres will have public toilets open. Whether or not these toilets are kept in a state of cleanliness or whether or not there is a charge is a matter for the local council and its tax payers.  As an example in the City of York  no public toilets are open after 8pm and indeed most close at 5.00pm or 6.00pm.  However in an obviously coordinated  report eight counts of urinating in public so far this year after a crack down by City of York Council and North Yorkshire Police have been publicised.  But in only one instance has the time of the offence been listed. In the circumstances I don`t think that was an oversight. Indeed it is quite possible that listing the stated time of that particular offence as "after midnight" was the oversight.  The underlying problem is that York as with many cities, does not provide safe clean toilet facilities when they are most needed and that is 24 hours a day seven days a week.  It is a matter of shame for those brought to court and for those who dispense council tax. Chester is another city with a similar problem.  With an ageing population still wishing to enjoy evenings out and having to cope with subtle and not so subtle changes in their physiological processes local councils must take this matter more seriously.  Synchronised media reports like the one indicated earlier are a cheap way for jobsworth people and organisations to make a lot of noise. But when police and the legal system are involved in this charade it sickens me. It might not be the BBC and Sir Cliff Richard but the only difference is the scale. 

SEAGULLS , CRIME STATISTICS AND DEMOCRACY

Everyone is aware that the agencies, words and figures and associated numbers which constitute crime statistics are according to what Humpty Dumpty said, "Meaning what I want them to mean".  This was never so apposite as currently. After six years under the control of an incompetent Home Secretary who is now revealed in all her disgrace undisguised as an incompetent Prime Minister those who rule us cannot escape the fact that disastrously falling police numbers have been a major contributor to rising crime; particularly crime that involves violence and murder. This post and this blogger do not need to reel off details which are well known to readers but sometimes the Alice in Wonderland world in which the aforesaid agencies which contribute to what we laughingly term our criminal justice system is not confined to the imagination of Lewis Carrol.  Today The Times in adjoining pages publishes the story of how the police in Somerset have asked the public for reports on a man who is suspected of bashing a seagull against a wall after it stole his chips and follows that with the revelation that 90% of crimes result in nobody being charged. 

We are a laughing stock at so many levels in society. Authority in many departments from MPs waiving pairing rules in a critical vote then denying it was deliberate to the Director of Public Prosecutions failing in her duties that JUSTICE must be done to ALL and yet allowed to continue in office until her contract ends instead of being relieved of her duties adds yet another notch to those who think there is an easy answer to this country`s problems.  This is how democracy breaks down; not by smashing windows and marching through the streets but by those in power failing to keep the standards which society demands or should demand to retain respect of the governed. 

AN EVERYDAY STORY AT COURT

Sometimes events enmeshed within the legal system give rise to thoughts of "How can this happen? Is nobody prepared to tell it how it is?" It is no wonder that Franz Kafka who gave his name to the description of such events {Kafkaesque}  is most well known for his novel "The Trial" published posthumously in 1925. 

Convicted sex offenders must re register with police annually and give notice of address change within three days. This offender failed to do so and was summonsed to appear at Kirklees Magistrates Court. He turned up drunk and was refused admission to the building. As a result he was bailed to appear to appear at a subsequent time. Much valued court time was wasted, the case is still unanswered and the registration etc has still not been completed. Surely it would have been sensible to admit him with security escort, place him in the cells for contempt of court if he had not sobered up for the bench and keep him either in the cells or at a police station for appearance the following day.  Perhaps my cynicism of current practice is showing........it`s only three years since I retired.........but truly there has been something lost in the justice system if a drunk sex offender can be allowed to continue to go on his way in these circumstances? 

COURT CLOSURES ARE A PRELUDE TO ANARCHY

Within the legal fraternity in its widest definition there used to be a belief in the concept of "local justice".  In the centuries that magistrates` courts have been in existence "local" has been extended from parish, to district, to borough, to county, to region. Now the terms under which magistrates undertake their duties specify that their remit is "national".  When the Ministry of Justice initiated its closure programme for courts in 2010 faint objections were made on the grounds of accessibility. These objections are now at their height when the predictions of "justice denied" owing to travel times and costs made by parliamentarians and court workers have proved accurate. It was widely reported that the MOJ insisted that even for court appearances in rural areas eg Cumbria and Northumbria, Devon and Cornwall, North Wales and East Anglia  no witnesses would be be required to travel on public transport for longer than one hour.  That commitment has always been denied by the MOJ.

On March 3rd 2018 The Times published the following:-

Reforms to the justice system, including court closures and a move to virtual hearings, will have a damaging impact on access to justice, MPs have warned. In a letter to Lucy Frazer, the junior justice minister, they say the elderly, mothers of young children and those without internet access will be disadvantaged by Ministry of Justice plans. The justice select committee says that proposals flout the principle that 90 per cent of people should be able to reach courts by public transport in one hour. The plans have no “convincing policy justification” and “appear to favour value for money over the principle of access to justice”. They also criticise the “increasing reliance on virtual and online justice”, pursued in the absence of evaluation of pilot projects. A ministry spokesman said: “This government is investing over £1 billion to reform and modernise the justice system, making it more convenient and providing better value for the taxpayer.”

In 2015 the House of Common Justice Select Committee published its findings after questioning many witnesses when investigating the magistracy including those which related to travel times to courts   The situation today has worsened.  Even in 2016 the MOJ denied it had set maximum travel times to court on public transport. But the truth will out.  The situation in Cambridge this year has become a topic of further debate about the terminological inexatitude of the weasels in Petty France.  Similar noises of the real state of affairs in rural areas with court closures can be heard in Suffolk. 

Like so much else emanating from this government there has come about a total non belief in the veracity of senior ministers when describing policy and its ramifications, the statements from the very pinnacle of power re Brexit being just the most obvious but the odious tendency to lie when a cover up is failing will have the most serious consequences for a population beguiled into believing that simplistic populist measures are in its best interests. That way lies anarchy and that is the way we seem to be heading. 

MISSED OPPORTUNITY

Recently the big chief of the Magistrates Association was interviewed by The Times for its law pages.  Even a man from Mars would have thought that that would be a perfect opportunity for this representative of 15,000 JPs to have made plain the ramifications for justice of the Ministry of Justice`s cost cutting and incompetence over the last few years especially when the prisons and the courts are still reeling from the policies of a certain Chris Grayling; perhaps the most incompetent cabinet minister of the last decade although there are others vying for that honour. How more wrong could our alien have been. Apart from slight gentlemanly veiled criticism of the effect on travelling times to court for some and innocuous comments on recruitment an opportunity to say it like it is was neglected.  I have no doubt that this was no oversight. The virtual removal of legal aid at magistrates` courts, the never ending problems of interpretation services, the emasculation of probation services not forgetting the financial tie up the M.A. has with some providers, the apparent intention to phase in video courts in a wholesale manner, the risk to justice of the rubber stamping single justice procedure and the apparent acceptance of the normality of two person benches........all these problems emanating from the bowels of Petty France were obvious by their absence in the interview.  So it`s same as usual. A chairman of the Magistrates Association given a public platform considers his future gong more important than risking being honest about the problems facing a society`s courts system. Once again an opportunity to tell the real truth about justice today is missed.