COURT SECURITY, WARRANTS AND MCKENZIE FRIENDS

The MOJ has just released a correction to figures previously given for weapons confiscated in crown and magistrates` courts for the last three years including the year just gone. As the press release indicates,  "The increase in the number of weapons taken from people as they enter Crown Courts between 2012/13 and 2014/15 may be due to the implementation of more robust training for Court Security Officers; improved rates of recording for the taking of such items and improved searching of people entering Crown Courts".  This is all well and good but what charges if any are laid against those people whose items have been confiscated?  It appears that just over 16,000 pieces of hardware were confiscated from magistrates` courts last year.  Assuming that there are about 200 such courts operating that means that 80 individuals were discovered with prohibited items at each court building for 2015. Is this a number for which HMCTS should be congratulated or criticised?  I just don`t know.  What I do know is that security within the courtroom leaves a lot to be desired.  

 Around a  couple of years ago the form in which police applied for a search warrant was expanded considerably.  Benevolently interpreted it allowed for more scrutiny by a J.P. or District Judge or from another point of view it reduced the possibility of police exceeding their powers such a development being of assistance to officers who were treading a fine line in their actions under previously worded warrants.  A rebranded organisation Immigration Enforcement has sent this information to all magistrates. With that in mind it is interesting to read the changes in guidance  for officials executing such warrants; a named suspect does not have to be written in.  Personally I never dealt with even a single warrant of that nature.  This new guidance seems rather less than satisfactory. 

And finally a comment for the second time in a couple of months on the subject of McKenzie Friends.  The removal of legal aid for so many was bound to drive increasing numbers  of defendants into the outstretched arms of unqualified "know it all" friends with offers of assistance........for a price. We`ve seen it all before with teaching assistants who now don`t assist but teach; PCSOs who now don`t just support but are allowed to undertake much more than originally envisaged; traffic wardens are now civil enforcement officers with much increased powers.  Surely this dumbing down of expertise must end somewhere?  The slapping down of payments to McKenzie, I`ll help you for a hefty payment, Friends would be a suitable place to begin.

PLANE STUPID OR INTELLECTUAL ARROGANCE

This morning I thought I had decided on the topic for today`s posting; that is until something far more interesting opened up on my screen.

My personal experiences of the District Judges who were allocated to my court over the years whilst I was sitting were nothing less than very satisfactory.  They dallied in the retiring room most mornings and occasionally during their downtimes; they were always more than ready to advise on the law generally and in particular cases or areas.  They assisted in many training sessions and were a source of much knowledge and advice that I and others were able to put to good use.  Some have gone now to crown court or higher tribunals. 

On February 24th thirteen offenders appeared for sentencing before District Judge Wright sitting at Willesden Magistrates Court. They had been found guilty after trial on two counts;  namely aggravated trespass contrary to section 68(1) and (3) of the Criminal Justice and Public order Act 1994 and entering a security restricted area of an aerodrome without permission contrary to section 21C(1)(a) of the Aviation Security Act 1982. Their thought processes and justification for their actions I suppose can be determined by reading their propaganda at Plane Stupid.  Although in theory District Judges have no more authority in a magistrates` court than Justices of the Peace a long considered justification for their presiding over a trial rather than their lay colleagues is when the case might be of a few days` duration and/or where the law involved might be of such a nature that it required a professional legally qualified individual to hear it. Such was the matter which caught my attention.  Magistrates` Courts are not normally courts of record although remarks at high profile cases at Westminster Magistrates` Court are occasionally published in full in the national media. The above mentioned sentencing two days ago was preceded by an extremely lucid and forensic explanation by D.J. Wright.  I have no doubt that no lay bench whilst perhaps able to determine the facts would have been suitable for such a sentencing exercise. The transcript of her remarks is  available here.

SOBRIETY TAGS

Sobriety tags and alcohol sin bins are common in various American states. With posts here and many other places suggesting that the addiction being treated as a priority over punishment might have enormous advantages for society and the individuals concerned it is gratifying for once to read in an MOJ press release of the expansion in the use of alcohol sensitive tags in London in certain cases where alcohol has been an underlying cause of criminality. One can only hope that there will be severe sanctions available against those who spurn this opportunity to change their lifestyle and sober up although with a depleted and overworked probation system with reduced morale operating under financial limitations that is indeed just a hope.  

“THE ONLY TRUE WISDOM IS IN KNOWING YOU KNOW NOTHING” SOCRATES

I have generally thought that to become the Lord Chief Justice the prime requisite over and above legal knowledge should be wisdom.  

wisdom

ˈwɪzdəm/

noun

noun: wisdom

t the quality of having experience, knowledge, and good judgement; the quality of being wise.

"listen to his words of wisdom"

synonyms:

sagacity, sageness, intelligence, understanding, insight, perception, perceptiveness, percipience, penetration, perspicuity, acuity, discernment, sense, good sense, common sense, shrewdness, astuteness, acumen, smartness, judiciousness, judgement, foresight, clear-sightedness, prudence, circumspection; More logic, rationale, rationality, soundness, saneness, advisability; informalsharpness; informalsavvy, smarts; raresapience, arguteness "a number of senior politicians questioned the wisdom of the decision"

antonyms:

stupidity, folly

the fact of being based on sensible or wise thinking.

"some questioned the wisdom of building the dam so close to an active volcano"

synonyms:

sagacity, sageness, intelligence, understanding, insight, perception, perceptiveness, percipience, penetration, perspicuity, acuity, discernment, sense, good sense, common sense, shrewdness, astuteness, acumen, smartness, judiciousness, judgement, foresight, clear-sightedness, prudence, circumspection;

 

1. the quality or state of being wise; sagacity, discernment, or insight.

2. scholarly knowledge or learning.

3. wise sayings or teachings; precepts.

4. a wise act or saying.

[before 900; Middle English, Old English wīsdōm; see wise¹, -dom]

We all know of those who are very clever but where wisdom would not be an adjective we would use in their profile.  As a mouse may criticise a king this blogger mouse  suggests that the Lord Chief Justice shows little wisdom in his suggestion that magistrates` courts` hearings could be held in pubs and hotels.  

I know pubs and hotel bars can sometimes have rowdy customers but I don`t think they have built in cells to house such unruly people or those awaiting transport to prison.  Roomsand facilities for witnesses and defendants, lawyers and all the other attendees are likely to be in short supply.  Readers will be able to imagine the many obstacles to such an inane suggestion.

But his Lordship is not the first to offer such ridiculous a suggestion. On 20th January 2010 in this blog on its previous now unavailable site I posted the following copied below.........nuff said.

 

At various times in the 650 year old history of the institution of local Magistrates the post itself has been been brought nearer to "the people". A century ago especially outside London the local "bigwig"...an interesting term in itself meaning important person.....was the Magistrate. It was only after the Great War of 1914-18 that women were able to acquire the initials J.P. Since the 1960s great efforts have been made to open up the magistracy to ordinary folk doing ordinary jobs but who have the extraordinary skills required to sit in judgement over their fellow citizens. The underlying ethos is that justice should be brought right into the community so that it is carried out simply and speedily to punish wrong doers and satisfy those who have suffered from the wrong doing.

Currently the Ministry of Justice is experimenting with "virtual" courts; effectively mini courts within police stations linked to "proper" courts by CCTV. This is highly controversial and has been criticised by many lawyers and magistrates although generally welcomed by police.

Now the chief constable of Greater Manchester Police has suggested that shopping centres – and he wants Manchester's Arndale to be the first – should contain mini magistrates courts which would try shoplifters on the spot and maybe even a mini-police station with holding cells. We are told this instant "try and fine" regime would be preferable to taking suspects to a police station to be charged and then waiting a week for them to appear at court, plead guilty and be fined according to national sentencing guidelines. John Thornhill, chairman of the Magistrates Association, was quoted as saying: "We need to be taking justice to communities and it seems to me having a court in the Arndale Centre would be one way of doing it. In principle, if we can deal with things speedily and pragmatically we are happy to do that." Not all agree. This observer is of the opinion that at a time when the Ministry of Justice is considering closing one third of existing courts to save money it makes no sense whatsoever to attempt to establish what could only become an ineffectual minimum apology for a court with or without a Costa Coffee and a Subway nearby for lunch.

Also sceptical was Mike Mackey, ex president of the Manchester Law Society who was quoted as saying, "Are the magistrates going to have a shop window in Boots? This is the chief constable shooting from the hip. It all sounds very wonderful but there are a couple of problems with it. First, if police arrest someone it doesn't necessarily mean they are guilty. Before they get to charging anyone they have to be interviewed under the Police and Criminal Evidence Act and require access to a lawyer. Are they going to be in the Arndale Centre too? My worry is these will be kangaroo courts."

So with apologies to the kangaroos I would opine that this is another attempt by a government trying to pull back from properly funding our Criminal Justice System because our current Prime Minister willfully and arrogantly enjoyed ten years spending our taxes in a manner which was not just imprudent but almost criminally deceitful, a government trying to obtain short term headlines that "it is acting on crime and the causes of crime" in conjunction with a police service which with some honourable exceptions does not understand the term "police state" and thinks it begins with jackboots and dungeons when in reality it begins when the rights of ordinary innocent law abiding citizens are made sub servient to the "efficiency" of an all mighty state and ends with jackboots and dungeons.

MORE MUSINGS ON TUESDAY [2]

As recently as last September there was confirmation by the Ministry of Justice that a smoking ban in prisons initiated by Chris Grayling would indeed be implemented by his successor Michael Gove.  Well, as the song said, "It ain`t necessarily so". It appears that wiser counsel has now informed  Mr Gove.  Proceedings are under way to exempt prisons from the ban.  With the increased risk of suicide, murder, self harm and assault in prisons liable to disturb the daily life of a prisoner more than a whiff of cigarette smoke it is policy gone mad to prevent the activity.  Having the 80% of tobacco addicts in our jails deprived of their fix will surely exacerbate the aforementioned episodes of personal and institutional mayhem.

Police Community Support Officers are despised by many as merely plastic cut outs of police officers and supported by Police & Crime Commissioners, Chief Constables and the Home Office as a cheap method of having uniforms on our high streets.  The story continues: have the misfortune to have a house fire or indeed any kind of fire in Herefordshire and Shropshire and the newly designated Police and Fire Community Support Officer could be the individual coming to attempt to douse the flames. This is austerity in practice.  I am a capitalist by philosophy and practice but capitalism can thrive and a population can prosper from its application only when the benefits so apparent in the past can be applied over the public sector.  Rid us of our trained and dedicated firefighters, police officers, probation officers, district nurses etc and the siren sound of the Corbynistas will lure this country into a rerun of the 1970s only worse.

When outsourced or outreach quasi government agencies are in a barrel load of criticism and worse all those highly paid consultants dig deep into their reservoir of the pigshit they have for brains and spend fortunes redesigning logos and selecting a new title with which to brand the product.  Thus the UK Border Agency in 2013 begat UK Visas and Immigration and since 2013 airlines have had thrust upon them duties which the aforementioned organisation clearly was incapable of doing insofar as they were to face a fine of up to £10,000 for every illegal documented passenger flown to these islands.  Airlines are not the only targets that the government has chosen to do the job it has been incapable of doing for years.  Landlords now face a penalty of up to five years in prison for letting residential  property to those with no lawful right of residence in this country. But getting back to airlines: Ryanair, the airline everyone loves to hate, has won its case in Edinburgh after having been fined £4,000 for flying two passengers who landed in the city without necessary documentation. Anybody who has complained about the procedures flying into the USA including this blogger would rather have the efficiency of their Homeland Security than the cost cutting nonsense of this country`s supposed border protection.

After the denouement of the Criminal Courts Charge the message that the provision of courts civil and criminal and all else that constitutes a justice system in a democratic nation is a responsibility of that nation and society and not some sort of burdensome activity to be funded by users  has still  not permeated the myopic mindset of this government as it didn`t its predecessor.  Apparently the quest is in full flow to squeeze more from those who are convicted.  It has even been suggested that payment of fines could be outsourced.....just as inspections of disability are or the use of an extra bedroom or probation services with their mass redundancies under similar agreements with the likes of Serco.

To round off today`s musings the activities of some of my former colleagues cannot be left out.  The Judicial Conduct Investigations Office has published its first decisions of 2016.  Three J.P.s have been sacked for failing to sit for the minimum days required, five have  gone for various reasons including anti Semitic remarks and a further two have been reprimanded. C`est la vie.

JOINED UP GOVERNMENT BUT ONLY IN AN ALTERNATE UNIVERSE

I have argued here previously that at that interface where addiction is the primary cause of criminality treatment of the addiction to the extent of its being made compulsory and adequately supervised should have a priority over punishment.  It would be unlikely to be more expensive in the short term and would in the long term be more cost effective.  

Multiple convictions for drink driving are generally the result of alcohol addiction.  An offender on his fifth such conviction in ten years must surely be assumed to be an alcoholic.  This offender has been made the subject of a 12 month suspended sentence order with the comments of the bench chairman, "previous orders do not seem to have deterred him from committing further offences". 

Is there no liaison possible between Justice and Health Departments where all those bright young things fighting for promotion can think up suitable cost effective  alternatives to prison sentences , suspended or otherwise, to combat the 70% of criminal activity owing to drink or drug habits. Financial penalties are not a solution considering the gaping gap between the amounts imposed and the amounts collected. 

What`s the term I`m seeking?  Got it!  Joined up government...... perhaps it`s all around in an unseen alternate universe. 

JOINT ENTERPRISE AND SAUCE FOR THE GANDER

Joint Enterprise is rarely a consideration in a magistrates` court which in such circumstances is usually just a staging post in the legal process.  However the decision earlier this week in the Supreme Court raises, in my non lawyer`s mind at least, some interesting points. First in my list of these are those who constitute the court.  As we are all human with limited working lives those learned folk are a snapshot of their time.  Unlike in the USA they are appointed by worthy officials without the public being able to ascertain their credentials apart from what is in the public record.   They do not appear before a parliamentary committee of our representatives to answer to the public.  The whole process whilst not held behind actual closed doors appears to take place in a series of smoke filled rooms if that were not now illegal.  Appeal Court judges are appointed also by committees of their peers with political oversight.  Public information on their opinions is non existent apart from what`s on the  public record. 

We are now informed by that Supreme Court that at the Appeal Court of which eight of their number were a constituent part prior to their elevation decisions were wrong in law for the last thirty years.  Perhaps one or more of those involved in this latest judgement were in fact overturning a previous decision they had made in their more junior capacity. Whatever their  individual histories I assume that there have been appeals at the highest level [prior to the establishment of the Supreme Court] against "joint enterprise" where such appeals have failed.  Why should the onlooking public have faith that this decision with a slightly altered view of the angels dancing on a pinhead is any more "correct" than the previous ones now declared to be erroneous?  

All this is going on when the supremacy of the Supreme Court itself is a factor in the argument of European jurisdiction over U.K. justice and its subservience to E.U. decisions from  Strasburg and Luxembourg.  Is this decision likely to enhance or not the concept of the quality of justice per se and and the reputations of those who administer it?    Will it be an argument for or against decisions from the aforementioned European courts although they are not involved in this domestic case? Many people with no intimate legal knowledge could be persuaded either way depending on their pro or anti EU opinion.  

I began this post by acknowledging that joint enterprise rarely features in magistrates` courts.  But there is one final observation to make: unlike magistrates who occupy the lowest level on the judicial tree and who have no requirement to be British,  judges as above must be British citizens or citizens of Ireland or a Commonwealth country. As an aside this anomaly to which I referred [This blog 06/05/2015] " indeed there is not even a requirement that a J.P. must be a British citizen"  surely should be amended for what is sauce for the senior goose should also be sauce for the junior gander.

 

 



 

OFFENDERS` FACEBOOK OFFENCE

An interesting case of what I would assume was contempt of court occurred recently at Burnley Crown Court.  The details could equally apply at a magistrates` court.  Given that if similar does occur at the lower court I doubt many, if any, experienced chairmen would be able to consider the matter without serious input from a senior legal advisor.  The report can be read here.

SCANDAL OF UNPAID FINES BY POOREST IN SOCIETY

It is probably fair to say that generally but not exclusively it is the poorest in our society who appear before us for non payment of fare on public transport whether it be the Metro in Newcastle, a tram in Manchester or the Tube in London. Each transport authority has its own policy on when or if it instructs its inspectors to issue a penalty fare of c£50 to be paid at 50% if paid within 14 or 21 days. Those cases not falling within that bracket are usually summonsed to court if they have been unable to provide a reasonable and acceptable explanation for their non payment. When there is a suspected fraud eg using someone else`s ticket a summons is the only outcome.

In my experience very few attend court in person, perhaps two or three out of a list of forty or fifty cases, and only perhaps a maximum of nine or ten will return the paperwork with an admission of guilt and a statement of their means. Those offenders will generally be given full benefit for their guilty plea and will be fined according to their means. The remainder will be found guilty on the facts presented unless there is an obvious flaw in the evidence submitted and fined according to the relative weekly income for the area concerned. The maximum will be for London courts where the RWI is considered as £410/week. Fine levels will usually be up to a week`s income depending on the actual charge. If there have been previous offences of a similar nature there will be a loading of the fine to reflect this behaviour.

All this is neat and tidy but for many it remains a paper exercise. Depriving the poorest in society of what little cash they have is a pointless exercise. What such unfortunates do have is time on their hands. Surely imposing some form of work in the community makes more sense than setting them up to be unable to pay a financial obligation to the state. In the neat and tidy tick box sentencing culture imposed upon all sentencers work in the community is unable to be imposed until an offence which has been committed is serious enough for that threshold to have been crossed.

Currently around £1 - £2 billion {the numbers vary according to the sources}  of unpaid fines are floating in the ether. Whatever new attempts are made to collect it is unlikely that much of this amount and newly imposed fines will ever be collected. The sanctions against non payers are so rarely imposed, or of more import, able to be imposed that the system is beyond recovery. Many states in America have simple procedures for imprisoning wilful non payers according to the outstanding amounts. But as increased prison accommodation and the will to utilise such accommodation is nowhere to be found in this or any likely future government the non payers can laugh all the way out of court.

There must be out of the box thinking on how the state is going to impose sufficient persuasion so that the scandal of unpaid fines is consigned to the same history as rotten boroughs, child labour or transportation to the colonies.