Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.
Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.
Thursday, 31 October 2013
Wednesday, 30 October 2013
Tuesday, 29 October 2013
Monday, 28 October 2013
Friday, 25 October 2013
The Magistrates` Association has had its A.G.M. and surprise, surprise, the world has not stopped spinning. But what was spun by media was one of the two motions for debate about which I posted on 8th October. The motion (“this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison,”) was lost.
I was not present at the meeting but judging by the video report fewer than 100 colleagues attended. Considering that J.P. chairmen in court should be rather capable public speakers the quality of oratory presented was rather poor. The content in general did not address the proposer`s theme that the interests and quality of justice must be the fundamental argument. The motion was defeated on a paltry show of hands and the debate lasted no more than 25 minutes.
This performance was one that did the M.A. and democracy in its widest terms no benefit. A tiny coterie of those entitled to be present was present. A vote amongst those produced a result which has as much significance as a vote for a white Christmas.
One would be hard put to find a clearer demonstration of how non representative the M.A. really is. This should be the last time such matters should be voted upon using the tools and tricks of the red baron union leaders of the 1970s. Future motions for debate should themselves be voted upon by the whole membership on line with a similar substantive vote thereafter.
Thursday, 24 October 2013
Wednesday, 23 October 2013
The wearing of the niqab in public places has been a newsworthy subject in the last weeks. In particular there was the decision regarding a witness in a recent case at crown court. I have many female Muslim colleagues and only one have I seen wearing a hijab (Muslim headscarf). A very small minority of those female and apparently Muslim by name lawyers who appear before us wears a hijab. There is absolutely no question as to their right to do so.
My point today is whether or not Appointment Committees have a policy if faced with an application by a woman who wears a niqab. Would wearing such on the bench be acceptable both to colleagues and to the court and all its users?
Tuesday, 22 October 2013
We have long been accustomed to film and T.V. series involving police. Indeed for those old enough Dixon of Dock Green was required viewing in the 1950s. Unsurprisingly antics within the legal profession have long been a theme of the written word and laterally the small screen with often fictional accounts of real mayhem suitably enveloped in a screenwriter’s narrative. As time has moved on reality television has become a staple part of the major channels` output and a major part of that has been the fly on the wall series on many aspects of policing from police patrol to police cell via umpteen scenarios from motorways to town centres.
From Rumpole to Kavanagh QC via Perry Mason and Judge John Deed we have had a surfeit of fictional legal expertise but until last year, as far as I know, reality T.V. had not reached inside a solicitor`s firm. Tuckers holds itself to be the largest legal aid firm in the country. Even without that accolade its turnover is such that the opinions of its senior partner must be worthy of a hearing. And for those who listen his opinion that the future for firms undertaking legally aided work is limited. There are now about 250 magistrates` courts after the decimation in numbers over the last three years. If Franklin Sinclair is right there will be a single firm offering services at most courts. My own bench comprising three former benches sits at two venues and two firms offer well over half the cases I`ve sat on.
Previous governments sanctioned the privatisation of energy companies, the denationalisation of train company BR, steel company British Steel and others including the National Probation Service, the Prison Service and as of last week Royal Mail by the current administration. I believe in capitalism. But in order for capitalism to work there must be strict laws against monopoly supply or attempts to procure such which is the natural target of capitalists. That is where this government is failing and it will fail in its grotesque attempt to emasculate the earnings of mostly poorly remunerated criminal lawyers. There is no doubt that the quality of representation for many defendants will be diminished and for those deemed to be ineligible for legal aid, time and costs for courts endeavouring to see justice done will increase in proportion to the complexity of what government might consider “simple cases”.
I have more faith in the accuracy of Franklin Sinclair`s predictions than any emanating from the Ministry of Justice.
Monday, 21 October 2013
When I was appointed one of the requirements sought of applicants by the appointments committee was common sense. Seems simple enough but that requirement disappeared from application forms some many years ago. The reasoning behind the change, as I understood it from documents at that time, was that with an increasing number of BME candidates and a population ever more diverse owing to immigration from all quarters what was once “common” to the population in years previously could not be construed as “common” when the population`s origin base was increasingly varied. And the commonality of sense was supposedly encompassed by the thought processes of the politically correct little weasels hard at work in Whitehall. However all was not lost and my contempt for those who still try to influence us as did their colleagues then has not abated.
In the very simplistic of terms that common sense of a bench was upheld by the High Court earlier this month in a case of drink driving. The full report is here but in short the appellant`s case was thrown out by Mrs Justice Cox who ruled that the circumstantial evidence was compelling enough for the lay bench to have found the charge proved beyond a reasonable doubt. She endorsed the decision the bench had reached; a decision that could be said to have been based upon a common sense weighing of the evidence.
Friday, 18 October 2013
“Picton” has laid out a structure by which applications for adjournments should be examined. More often than not my experience is that an application to adjourn by whichever side is opposed even if that opposition appears to be formulaic.
Not so long ago a s.4 charge was listed against a defendant based upon the statements of the only two prosecution witnesses; the complainants. One of them had a verified and very acceptable reason for her non appearance with only minimal notice. On the basis that without her evidence the prosecution would struggle to win their case an application to adjourn was made. Defence lawyer was quickly on his feet asking us to consider it a joint application on the grounds that his client would be prejudiced by that complainant`s not being available for cross examination. We agreed the adjournment wondering what was in the absentee`s statement to bring about such a decision.
Sitting as a magistrate is rarely if ever a formulaic event even in the most mundane and repetitive of situations.
Thursday, 17 October 2013
Police misconduct or allegations thereof is once again headline news so two recent contrasting or complementary reports depending on one`s interpretation make interesting reading.
Devon and Cornwall Police are surprised at an increased number of complaints whilst their colleagues in North Yorkshire are concerned that no police officer found guilty of misconduct over the last five years has been exonerated on appeal.
No opinion from me on this except to say that our whole system of policing seems to be on the verge of profound change.
Wednesday, 16 October 2013
Everyone involved in the administration of our magistrates` courts cannot but be unaware of the gross inefficiency in their performance. Of course trial and sentencing statistics are manipulated to undermine criticism and so enlarge the fiefdoms of those in Whitehall continually considering new forms of “consolidation” or “rationalisation” of HMCTS. Justices of the Peace and their hundreds of thousands of annually wasted man hours are nothing more than the collateral damage resulting.
I was recently informed by the highest authority that every time a magistrate cancels a sitting this information is recorded and passed on to HMCTS. One could remark that such an action is not unreasonable and it would be churlish to disagree. But…..and it`s a big But……when we J.P.s are cancelled that statistic goes unrecorded however short the notice of cancellation might be. Which leads me to relate a simple oft repeated experience.
Shortly after I transferred this blog to its current site here, I had scheduled a rare afternoon sitting; rare (for me) because I offer myself for whole days. However I duly appeared in the retiring room at 1.45p.m. to meet my colleagues who had arrived shortly before me. At 1.55p.m. the L/A arrived to tell us that the single pending matter was a trial, a civil case brought by an individual against the borough. The problem was that the applicant had not appeared nor had his representative. She left to make more inquiries after looking through her court file and telling us that the appropriate paperwork for the current listing had not been sent to said applicant nor his solicitor. Half an hour later she returned to tell us that the missing lawyer could not remember whether or not he had been in court on the previous listing when the adjourned date had been announced. Thus we had another ineffective trial owing 100% to the non functioning of our court`s administrators. But more to the point if the papers had been read the day previously in preparation (as they should have been) the omission would or should have been noticed and the unnecessary attendance of the three of us could have been prevented. Even if administrative delay had meant that the preparation had been the same morning our appearances could have been cancelled by three phone calls.
That is the reality of the manner in which HMCTS treats the backbone of a unique part of the justice system; the part which wraps up from first appearance to conclusion about 95% of all criminal activity brought to book in England & Wales. That is the justice baby which is being flushed down the justice drain along with the bathwater.
Monday, 14 October 2013
It is almost two years since the election of the first Police and Crime Commissioners for England and Wales. There was considerable controversy over this policy but it was driven through by the Coalition in the face of much reasoned opposition. Forecasts of public inertia were discounted only to be proved correct by a turn out to vote of only 15% of those so entitled. Since then there seems to have been continuing media interest in the goings on of these public servants, their associates and their cost to the public purse. Currently there are investigations into the affairs of the P.C.C.s in Lancashire, Durham and North Wales. A first report by the well respected Home Affairs Committee of the House of Commons on the activities of P.C.Cs was published earlier this year in May. It makes for an interesting if somewhat lengthy read.
Friday, 11 October 2013
The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.
Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.
Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc.
Chris Grayling, the tough man at the Ministry after kindly old Kenneth Clarke, usually wastes no opportunity to flex his judicial authority. His comments subsequent to a decision at Truro Magistrates` Court in April should be noted as they are likely to be acted upon before 2015. Meantime the scenario has been enacted again at Bath Magistrates` Court. I will not comment on the decision; only those present heard all the argument but once again the police show their delight in condemning the court`s decision. This trend by police to forever criticise magistrates for their sentencing does nothing to enhance their image. It serves only to divert attention from the very real problems affecting them nationally. From proven corruption at the highest levels to actions not far from being politically motivated to allegations that misconduct is brushed under the carpet where possible, to continuing mistrust by ethnic minorities it behoves them to be a bit more introspective and to cease blaming magistrates for exercising their judgement. It would be a sad day if police controlled legal outcomes as perhaps some would wish them to be able to do.
The other day I was reading the blog of a criminal lawyer who had received comments from a man who felt he had been short changed by the presiding magistrate during a recent court exchange. It would not be an understatement to consider that rules applying to the judiciary in general and the magistracy in particular must be the most constraining ever devised for a body of professionals. An immediate response would be that such people who are often dealing with the fine tuning of the English language require the finest of fine tuning in documents designed to ensure that their behaviour and actions both inside and outside the courtroom are beyond any reasoned criticism. On the other hand the more that is specified the wider the net into which people can be caught for reasoned or unreasonable criticism.
Be that as it may these documents are what we as Justices of the Peace must live with. They are available here and here.
Thursday, 10 October 2013
Under the Labour administration of 1997 – 2010 we have had introduced over three thousand new laws; Police Community Support Officers, revamped traffic wardens with powers to issue penalty notices in addition to parking tickets, ASBOs which are civil orders the breach of which can lead to lengthy custodial sentences are some examples.
Since 21/08/2009 Magistrates` and County Courts have had the power to make Drinking Banning Orders. DBOs on conviction came into force on 1st April 2010 in 25 Local Justice Areas. Latest available figures are that a total of only 625 DBOs was issued to 31st December 2011. It has been recognised by many statistical analyses that around 70% of all crime is committed by offenders addicted to alcohol and/or drugs. Considering that many more individuals are addicted to the former rather than the latter the number of alcoholics with a criminal record must number in the millions. The NHS estimates that around 9% of men in the UK and 4% of UK women show signs of alcohol dependence. The miniscule number of DBOs ......a single order per day for England & Wales is an indication that magistrates` courts have more sense than the government which introduced them. All they do is disperse the problem elsewhere. Indeed it is just another reason why alcoholic offenders should be treated as medical cases and if necessary by compulsion just as schizophrenic and other mentally unstable patients can, under certain circumstances, be forcibly incarcerated in places of safety for themselves and the general public who must be protected. Hardly a week goes by without headline stories of the havoc wreaked by such people who are supposed to be being “cared for in the community” but are walking the streets.
And yet the new publicity seekers within the law `n order brigade, Police and Crime Commissioners, still consider that shouting louder makes for understanding. The latest of these loudmouths making a noise is Adam Simmonds P.C.C. for Northamptonshire whose local online media have spread his hope that magistrates inter alia will increase their use of Drink Banning Orders. The object of his wrath was an individual who was sentenced to such a disposal at the local crown court by an order banning him from entering any pub, club or bar in Northamptonshire. He is being set up to fail. It is not reported whether or not any ancillary orders were made.
Public drunkenness is now a regular and frequent feature of high streets from Andover to Yarmouth. Where it can be controlled as on public transport or at sporting events it has brought a metaphorical breath of fresh air to the vast crowds who use or attend these places. But on our streets it seems the ubiquitous DBO is being applied like a Band Aid to a bullet wound. Such orders IMHO are a complete waste of time and resource. Invariably those subject to such orders can without much forethought figure out how to evade them. Breaches cannot be punished by a custodial sentence. All they do is displace the problem drinker from one area to another. If ever legislation is seen to be like moving the chairs on the deck of the Titanic DBOs are a prime example.
Wednesday, 9 October 2013
Freedom of the press is once more a hot topic. But perhaps of equal import is the sometimes careless sub editing of articles or their headlines. From time to time as J.P.s we are responsible for the granting or refusal of search warrants for which police have applied. We (or sometimes a single Justice) will review the merits of what is placed before us and decide whether or not the information is fit for purpose. In my court this procedure is usually conducted after the court has been cleared for obvious reasons of security.
In Yeovil, District Judge Maurice Champion must have heard an application to close down an alleged crack house in open court such is the lengthy report of the proceedings in the local on-line “This is Somerset”. Note the article`s headline:- “Judge refuses to shut alleged crack house”. The very fact that the judge refused to accept the allegation leads logically to question that headline. The impression from its double negative connotation is of a judge failing in his duty to assist police and so failing the local neighbourhood. The sub editors seem to have overlooked the minor constitutional point that judges (and magistrates) are in post to ensure that due legal process is observed.
If the day comes when judges are merely rubberstamping the demands of police or government this country will really have hit rock bottom.
Tuesday, 8 October 2013
Monday, 7 October 2013
Friday, 4 October 2013
Yesterday I posted on publicly reported remarks made by a J.P. at his retirement. I have no doubts that his opinions are shared by some if not many of my colleagues. My own position is quite clear; there is a direction from the very top levels of government to limit the numbers of offenders being sent to immediate custody. Of course nowhere will there be a direct quote from those responsible. But the evidence is as clear as daylight. On 27/09/2013 the prison population was 84,430; operational capacity is 87,788. Simple arithmetic shows that the prisons are running at over 96% capacity. In NHS hospitals in England there are 19,710 beds available for overnight occupation from a total of 136,471; i.e. hospitals which are maligned for the failure to provide sufficient beds are running at 85% capacity. Sentencing Guidelines provide further evidence that the hurdles especially to imprisonment for lower level offending have been raised. Nowhere is this more apparent than in the offences of driving whilst disqualified, assault and theft (shoplifting).
Our legislators are abysmally ignorant of the realities. Rehmen Chishti MP is the sponsor of his forthcoming Drink Driving (Repeat Offenders ) Bill which he hopes will curb this anti social and dangerous behaviour. His proposal is that the current maximum sentence of six months should be increased to two years. Considering that the offence is summary only that would mean it should become "either way" and be tried before judge and jury thus increasing time and cost. Perhaps Mr Chishti is unaware of some facts. When I was appointed in the `90s it was not uncommon for a second offence of drink driving to be punished by a custodial sentence up to six months. That now rarely happens owing to this and the previous government`s desire to reduce prison numbers. It is only after a third similar offence or an extremely aggravated second offence that prison is considered appropriate and often the sentence is suspended.
Assault on the streets is cited as a very common fear especially by younger and paradoxically older members of the population. Around half a million summary non motoring offences are dealt with annually at magistrates` courts. It is almost impossible for this non research fellow to ascertain the rate of immediate imprisonment for assault by beating. Anecdotally I would suggest that the rate is considerably less than it was twenty years ago. The ubiquitous “Suspended Sentence Order” appears so often now on pre sentence reports that I wonder if the writers understand that the custody threshold must be passed before consideration of suspending such a disposal is in the public interest. The SSO itself to have any meaning must have the default imposition of immediate custody applied following a further conviction within the period of suspension. All too often that does not happen and IMHO that brings the law into disrepute. The following case was heard by South Durham Magistrates sitting at Darlington Magistrates' Court: comment without full knowledge is dangerous but examples such as this are commonplace. What might be the view of the citizen of Darlington reading this short report?
“SENTENCE BREACH: Abigail Rae Noble, 21, of Middleton Street, Darlington, admitted two breaches of a suspended sentence order imposed by Teesside Crown Court. As punishment, magistrates imposed an eight week curfew, valid between 7pm and 7am each night, and ordered her to continue with community requirements of the original order”.
Many official statistics consider that 70% of acquisitive crime is due to addicts, whether of drugs and/or alcohol, seeking funds to feed their habit(s). Shoplifting by any other term is often their preferred route to raising cash. Sentencing Guidelines allow immediate imprisonment for such offenders even when the sum in question is only a few pounds. Magistrates have a public protection duty in addition to consideration of the criminal`s circumstances. All too often I feel that that consideration is overlooked.
A bench at Warwickshire Justice Centre chose not to impose prison terms on two individuals with what might be regarded as a propensity for thieving. I can say that having sat on many similar cases I feel that that obligation for public protection is now not a consideration for many of my colleagues.
Perhaps when dinosaurs like me have retired the Howard League and its supporters will succeed in banning all prison sentences of less than six months. Heaven preserve us all if we have to rely on the Daily Mail to plead our cause.
Thursday, 3 October 2013
Of all the prohibitions on the activities or actions a Justice of the Peace can undertake none is taken more seriously than talking to the media on the record. The Media Guide for the Judiciary is the rod with which a J.P.`s back can be broken if it is considered that s/he has stepped out of line. Colleagues have been removed from the magistracy for such failings. So it is hardly surprising that just as former generals or senior civil servants wait until their pensions are assured before going public with criticisms of systems or institutions, criticisms which would have had much more significance if they had been delivered whilst the bearer was in post, Alan Bissell J.P. waited until the moment he retired from the Flintshire Bench before lambasting procedures with which he (and others) had been forced to comply. His main outpouring was his belief that the concept of punishment had been diminished by the actions of government over many years. Certainly he would have received a letter from the Office for Judicial Complaints if he had made his remarks, which must have been co-ordinated with the press who reported them, a few weeks or months earlier.
Of course Grayling, like his predecessors, can and does produce volumes of statistics to show that whatever is the real situation crime is diminishing, police are not failing and the courts are more efficient than ever. But there is one factor that by its very nature cannot be abused by statisticians because it is a negative and everyone knows that negatives are very difficult to substantiate. And that is the increasing tendency of the Crown Prosecution Service to undercharge on assault from the summary charge to the most serious life threatening offences. Other forms of criminality eg fraud are also undercharged but for magistrates it is assault with which we are most familiar. I would posit that there is not a single colleague who has not sat on simple assault by beating and thought that the CPS was failing in its public duty of protection by not using the more serious charges that the case details warranted. The reason for such dereliction of duty in an organisation which has rid itself of 10%+ of its lawyers and is operating on a much reduced budget is not difficult to find. The other side of the same coin is well illustrated in a case on which I sat a few weeks ago. One simple incident when a young white woman who had been observed drinking from a can of cider and shouting at her friends pushed a black policeman in the back shouting “black trash” was charged with being drunk & disorderly, assault P.C. and s.5 Public Order Act racially aggravated. She was, as I recall, convicted by majority of all three offences and the CPS`s statistics were duly enhanced.
Is this the best way of applying the too oft repeated mantra, “We are the party of law `n order”? I wish Alan Bissell a well earned retirement from the bench. Long may his cup runneth over.