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 If any comment seems submitted just to advertise a website it will not be published.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 August 2017

IS A ROSE RED AT NIGHT?

Intending philosophy students and others have their favourite examples of simple conundrums.  Two of these are is a rose red at night and does a falling tree make a noise in the forest when nobody is there to hear it.  A similar thinking process seems to be behind the defence of a blind man charged with viewing child porn. As a retired eyecare professional the case has a significance for me but let`s assume his defence is unchallenged and no expert witnesses testify.  How would my reader react if s/he were on the bench?

Wednesday, 30 August 2017

"MINORITY REPORT" NO LONGER JUST SCI FI

In 2002 Steven Spielberg directed and Tom Cruise starred in the Oscar and BAFTA nominated movie Minority Report.  This is not a film review site but it`s well worth £2.49 from Amazon. I choose to begin this post insofar as the work itself is described as science fiction. Star Trek in 1966 was also described as sci fi and looking at some of its fixtures and fittings it was just sci truth fifty years ahead of its time. The era of actually predicting criminal behaviour is not quite with us........just yet but the era of sanctioning criminal behaviour which has not happened is with us in the here and now. 

Under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences and unconvicted people thought to be at risk of offending can be registered. The Register can be accessed by the Police, National Probation Service and HM Prison Service personnel. It is managed by the National Policing Improvement Agency of the Home Office.  As with so many factors, policies and actions which constitute the outpourings of the MOJ, Home Office and other government departments interfaced with Law `n Order a majority of the population couldn`t care less except for harbouring a complaint when asked, that sentences are not "tough enough".  That is why we have such an expansion of the prison population.  Incidents of dogs killing or injuring young children led to the iniquitous Dangerous Dogs Act 1991. More recently death by careless driving was created in response to public opinion and led the government to use an unpredictable outcome to justify the imposition of custody where none previously existed.  Dangerous cycling might conceivably be on the statute books before the next general election prompted by the recent tragedy in London. Whether or not in such circumstances government ought to follow or lead is a matter of political philosophy. But my problem today is being reconciled to severe limitations on individual liberty where no crime has been committed and where an offender has apparently paid the debt society demands; where the slate has been wiped legally clean. 

Sex is no longer a dirty word as it was pre the Great War.  Sexual offences, however, are very much in the public eye.  They still shock.  Perpetrators of such are still reviled.  But it seems that just as gay people were badly treated before the swinging sixties changed public attitudes and then the law, paedophilia whether caused by physiological and/or anatomical dysfunction in the brain  or is a learnt behaviour, a matter in dispute, sanctions will never be too severe for Mr & Mrs Joe Public.  Should such people be in effect punished before they commit a crime? The 2003 Act specifically allows this and I don`t recollect too much opposition at the time.  In the case of Paul Colin Carter his punishment (or some would say restriction) is extended.  He is not alone in being subjected to control for the possibility of future offending when his tariff has expired. He is not alone insofar as sex is often the basis of such restrictions.  There was the notorious case last year when a man was ordered to tell police 24 hours in advance of his intention to have sexual relations with a woman.  These two cases are not the same; they might not even be considered similar but they are happening because of a legal system which is taking us closer and closer to Steven Spielberg`s and writer Philip K. Dick`s vision of a dystopian future.  Do we really want or need to taken there? 

Friday, 25 August 2017

A LESSON IN CONTEMPT OF COURT

It didn`t happen more than a couple of times when I was active in the middle chair but in the last resort loud mouthed defendants screaming obscenities must face jail time if they persist in their abuse despite being warned of the consequences.  I also believe that many of my colleagues were hesitant to use such powers in the face of court being disrupted by individuals whose mouths were uncontrollable. Others would surreptitiously glance at the legal advisor for assurance or guidance; a sign of increasing lack of confidence IMHO within today`s magistracy encouraged by Deputy Justices Clerks forever mindful of being stamped upon from above. The words and actions of HH Judge Simon James at Canterbury Crown Court earlier this week serve as a perfect example of how such offenders must be handled to preserve the dignity of court procedure.

Thursday, 24 August 2017

WHAT KIND OF JUSTICE IS THIS?

Before retirement from the bench from time to time I posted on cases where I was in court the participants and all identifying features obscured of course.  Now I am an ordinary member of the public reading of cases countrywide but with, I hope, some knowledge that Joe Public lacks. For example Mr Public is not aware that currently there is no charge of "domestic violence" per se but the usual charge, common assault by beating, is highly aggravated if the offence could be construed as DV. Indeed the offence as such in certain instances can be used to exclude a possible offender from his.....it`s usually a male.....own property on the say so of a police officer without any interference from a court. Another aggravating circumstance which also applies to many crimes from common assault to murder is premeditation.  I`ll add another aggravating factor which paradoxically is sometimes argued as mitigating by ignorant solicitors; drunkenness. To top it all the vulnerability of the victim must also be considered. Now read the report on this case

Both as a retired magistrate and as a member of the public I find the sentence absolutely shocking. Even allowing for a guilty plea it seems the bench did not consider that not only did the combination of offences not reach the custody threshold, they warranted only a minimum community punishment. There will be no official looking into this matter. Nobody on that bench will be admonished. The legal advisor will carry on as previously and every reader of local media and the police officers involved will wonder just what kind of justice is available for scum like this offender. There should be an official complaint so that these J.P.s dispense justice according to society`s requirements even although these requirements are based on a tick box exercise called Sentencing Guidelines. They are all we have.

Wednesday, 23 August 2017

LEGAL SLEDGE HAMMER TO OFFENSIVE NUT

My weekly inspection of HMCTS` own blog on the topic of extending courts` hours shows that specific questions in relation to magistrates` involvement in this pilot posted on July 25th by "May" have as yet received no comment from HMCTS.  I`ll look again next week.  The original post on HMCTS is copied below:-

May posted on

Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

To matters more serious........In my previous life I was an eyecare professional and therefore have a particular interest when legal matters however remotely connected to that activity come to my attention whether in hospital, optical practice or concerning the regulatory authorities of such professions and related bodies. 

The pervading association of racism with many summary and either way offences has become common place over the last twenty years.  Indeed the use of the ubiquitous phrase "hate crime" is like an amoeba or a gigantic ever spreading blob and has kept a myriad of snotty nosed weasels in Petty France hovering over their keyboards at the slightest possibility of widening the net into which  extensions to the law might be possible. 

In some respects the Scottish legal system has unique aspects all of its own. But in the case reported here the principles are quite clear.  It is not a matter of a professional refusing to treat or accept a patient or client owing to racial or ethnic preferences and/or prejudices an act which at the least could give cause for an appropriate regulatory body to consider charges even if the matter didn`t lead to criminal proceedings.  It is a person requiring optical advice or treatment who does not wish to engage in social intercourse with someone of Asian heritage and says as much.  There is no mention in the report of any foul language or aggressive act or words being used such as to put a fear of violence to or upset the equanimity of the "victim".  Of course that is open to speculation.  Only those in court at the time know the full story.  But for the sake of argument accept the report at face value.  Do the actions of the guilty party seem worthy of a guilty plea? Being personally aware of how CPS in England can ramrod cases with little evidence against poorly educated unrepresented defendants into guilty pleas this case leaves me slightly disturbed.  Is this not an incident which perhaps unpleasant did not have to have the full weight of the law behind it.  The fact of there being reports requested before sentencing indicating a punishment in excess of a fine I consider akin to the old story of the nut and the sledge hammer.

Tuesday, 22 August 2017

GEORGE ORWELL MEETS HUMPTY DUMPTY

MISOGYNY
hatred, dislike, or mistrust of women, or prejudice against women

The above definition or something similar has been around for  hundreds of years.  But in line with the simple fact that language is a living entity, over the last decade or two the meaning of misogyny for some people  has morphed into something rather disturbing. It is being interpreted as being unlawful. 

Melanie Onn M.P. was part of the intake in 2015. Her voting record seems to indicate that there is no underlying philosophy in her opinions apart from being a very obedient member of the cannon fodder  Labour MPs who consistently tow the party line in the lobbies.  She is amongst many who are pursuing actions to force such legal changes as to consider that there should be unlimited progress to control opinion and to prosecute those who choose to be unbound by such restrictions. There is a steady and undeniable current of so called progressive action to outlaw independent thought and to change the definition of "hate".  I have commented upon similar lines in the past...3/4/2017 and 9/8/2017 being the most recent. We, in this country, are not alone in this creeping criminalisation of thought.  In 2012 the then prime minister of Australia offered her new definition of misogyny.  In the USA most readers will be well aware of restrictions on free speech being imposed under the guise of safe space by intellectually  ignorant and sometimes over educated students who have made university bosses fearful of defying the fascistic outpourings of their sensitivities being offended.  Sadly it was yesterday when we heard similar but in typical so called sophisticated middle English phraseology.  This time it was the previously discredited Director of Public Prosecutions who made the news. CPS defines hate crime as follows:-
A hate crime is an offence where the perpetrator is motivated by hostility or shows hostility towards the victim's disability, race, religion, sexual orientation or transgender identity. Undoubtedly misogyny will be construed as hate crime and on line misogyny will be treated as a criminal offence.  My point today is that have we reached a position where Humpty Dumpty as portrayed by Lewis Carroll and George Orwell demonstrate identical thinking processes. The personified egg, a character from a well known nursery rhyme, in the words of Lewis Carroll in Through the Looking Glass says:-    


"I don't know what you mean by 'glory,' " Alice said.
  Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
 "But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.  

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
 "The question is," said Alice, "whether you can make words mean so many different things."
 "The question is," said Humpty Dumpty, "which is to be master—that's all."


George Orwell is perhaps more familiar to many than Lewis Carroll. He described the way that free thinking is controlled as "Newspeak". Perhaps "1984" is best summed up by the following quotation:-



Don't you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thought-crime literally impossible, because there will be no words in which to express it. Every concept that can ever be needed will be expressed by exactly one word, with its meaning rigidly defined and all its subsidiary meanings rubbed out and forgotten. . . . The process will still be continuing long after you and I are dead. Every year fewer and fewer words, and the range of consciousness always a little smaller. Even now, of course, there's no reason or excuse for commiting thought-crime. It's merely a question of self-discipline, reality-control. But in the end there won't be any need even for that. . . . Has it ever occurred to you, Winston, that by the year 2050, at the very latest, not a single human being will be alive who could understand such a conversation as we are having now?” 

Is this dystopian vision of the future actually taking place under our very noses; these noses being led by those whom we have elected and appointed to rule our lives? 

Friday, 18 August 2017

PROVEN ANTI SEMITE IN LEGAL PRACTICE

I suppose the legal profession has always had its bad apples. My own experience tells me that they are probably more abundant than generally realised. In times past I would opine that gaining riches from clients by methods at or over the borderline of legality was the inspiration for many.  However with the proliferation of social media and the ability to tell the world in just a few words and/or minutes just what one thinks the boundaries between merely insulting, offensive and downright unlawful have meshed ever more closely.  When professionals beholden to their professional and/or regulatory body stray too close to that boundary they have only themselves to blame for the repercussions.  Such is the case of this solicitor.  I wonder if the firm`s clients would continue to be attracted to their services if they knew his recent history.

Thursday, 17 August 2017

MOJ & FAKE NEWS//MILLENIALS

Once again MOJ is telling all who`ll listen by e mail, print media, TV or social media that there are so many new recruits to the prison service that we`ll soon have this problem solved.  Does the MOJ press office with all the little weasels of Petty France spewing out this propaganda really think that those who know even a teeny little bitty of the truth will be taken in by this truly fake news?......Thank you D Trump for this new and much needed addition to our language.  

One part of today`s announcement is available here and full release is linked to Adobe Acrobat. Perhaps before those interested peruse the press release a few minutes looking at the situation in 2009/10 might put the matter in perspective.

For centuries governments have been successful in fooling the people of this country with so many lies that just could not be investigated except by professional researchers with the funds and facilities so to do.....not any more. The Mays and Corbyns plus all the others might try to disguise their versions of the truth but real facts will out. However the damage to government per se is that faith in the institution as we know it is steadily being eroded especially for those generations who might know how to count but have no idea of calculation or little knowledge of history.  

When my then 17 year old son was learning to drive I told him to regard every other driver as deaf, blind or drunk. He might not have been the most obedient teenager but so far so good; he has a clean license.  We elders have much we can teach millenials and others similar who believe in so called "safe spaces", entitlements to be free of being offended and that taxing the "rich" will pay for all their heart`s desires.  We should not be reticent in so doing.   

Wednesday, 16 August 2017

COURTS` INCREASED WORKING HOURS

There has been much comment within legal circles of the forthcoming "pilot schemes" to increase working hours of crown and magistrates` courts.  Yesterday the Sheffield Star in its report on the project gave the fairest and most comprehensive account of the proposal I have read in the general news media. It`s certainly worth a few minutes reading time.

My weekly inspection of HMCTS` own blog on this topic shows that specific questions in relation to magistrates` involvement in this pilot posted on July 25th by "May" have as yet received no comment from HMCTS.  I`ll look again next week.  The original post is copied below:-

May posted on

Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

Tuesday, 15 August 2017

WITNESSES & DEFENDANTS MUST NOT BE VEILED IN COURT

 

On 6th October 2010 I posted as follows:-

 “The Judicial Studies Board has recently published in 45 pages “Fairness in Courts and Tribunals: A summary of the Equal Treatment Bench Book”.
Considering this guidance is aimed at judges and magistrates [and others involved in the courts system] much of it is like feeding a grown man….oops……a grown person of either or indeterminate sex…….with a spoon. However where perhaps guidance might be very useful; on the subject of face covering the message is vague. Perhaps that is at it should be. Judges and magistrates must be able to use their discretion. Society expects that discretion to be exercised wisely. The consequences are grave if that facility is found wanting. The relevant paragraphs re the veil are copied below."


For those Muslim women who choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity and the woman’s involvement in the criminal, civil justice, or tribunal system (as advocate, witness, party, member of court staff or legal office-holder) may well have a significant impact on her sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals. This is of particular concern for a system of justice that must be, and must be seen to be, inclusive and representative of the whole community. While there may be a diversity of opinions and debates between Muslims about the nature of dress required, for the judicial system the starting point should be respect for the choice made, and for each woman to decide on the extent and nature of the dress she adopts. Any consideration concerning the wearing of the niqab should therefore be functional and appropriate to the circumstances of the particular case. The primary question is: what is the significance of seeing this woman’s face to the judicial task that must be performed? How does the ability or not to observe her facial expressions impact on the court’s decision-making, given her particular role in the proceedings? A distinction can be made between situations where this may be useful or important (for example, when assessing the evidence of a witness, particularly one whose evidence is in dispute), situations where it is essential (for example, for purposes of identification), and other situations where it may not be of any relevance (for example, for court clerks or ushers or where formal evidence which is not disputed must be given by a witness).

Victims or complainants. It is important that people are not deterred from seeking justice or from getting a fair hearing as a result of exclusion from the court process. Where possible a woman wearing a veil should be permitted to give evidence, either in court in her veil, or with the assistance of screens, video links or, in appropriate cases, by clearing the public gallery if she is happy to remove her veil. The most appropriate course will depend on the issues in the case. As with any consideration of permitted special measures, this is a point on which a decision should ideally be reached after discussion at a case management or preliminary hearing, rather than at a final hearing in open court. A short adjournment should be given to enable the woman concerned to seek guidance.

Witnesses or defendants. Similarly, a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses and may affect the quality of evidence given. The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence. Again, special measures may be available to mitigate the difficulty.

Advocates. The starting point should be that an advocate wearing a full veil should be permitted to appear wearing her veil. The interests of justice will be paramount and you may need to consider whether, in any particular circumstances which arise, the interests of justice are impeded by the fact that the advocate’s face cannot be seen or (if this be so) the advocate cannot be heard clearly.”


On 27th November 2013 I posted 
 
"Should a government lead or should it follow?  I suppose that or a similar question was common in ancient Athens.  On a very basic level governments don`t get elected unless there is the support of a majority.  But after that it seems increasingly that to be a follower is the mantra of the government of the day; excepting perhaps within the law when individual whims are aired to test public opinion.  The Lord Chief Justice is a perfect example of putting a wet finger in the air to test the wind`s direction.  A witness or defendant wearing or not wearing the niqab in court is surely a matter which should be decided at the highest level and the directive applied at courts from the lowest to the similarly highest level.  From J.P. to supreme court judge all would know where the line had been drawn.  Those who chose to defy the ruling whether by refusing to discard such garb in court or by allowing such to be worn  in court would know precisely where they stood.  And so it should be.  The LCJ however has put the matter out to “consultation”.  I call that a cop out."  

In 2016 Lord Neuberger is quoted as stating that women should not be allowed to cover their faces with veils in criminal trials.  

In May this year at Westminster Magistrates` Court before a District Judge two accused women were allowed to appear with one of them having her face totally obscured by a veil; and the other with only her eyes showing (according to the court artist). In view of the huffing and puffing of previous judicial observations this is not a satisfactory state of affairs especially for those J.P.s who preside in the lower court. The nettle must be grasped with firm advice that witnesses and defendants must remove such veils in court.

Monday, 14 August 2017

WHISTLEBLOWERS//WE OWE IT TO EACH OTHER

I would opine that I`m not the only citizen who`s been disrespected by police in this country. Simple examples; being accused at police car pound when collecting it of damaging my own literally brand new car when I accused police of doing it. Being ordered on threat of arrest to stop sounding horn at a wayward pedestrian in slow moving traffic, threatened with arrest for disobeying a police officer whilst being stationary when seating my young child in safety seat outside nursery on double yellow line and other incidents in the past. When such arrogant and thoughtless actions and worse are used by police to intimidate the public especially ethnic minorities relationships will be fraught.  It is current thinking that body worn cameras for police will be to the benefit of both them and the public they are presumed to serve although at this late stage there is still some controversy on that. As an example of the unimaginable myopia and sheer stupidity of some very senior people it has been shown that such body worn cameras are ineffective when armed officers raise their rifles to a firing position and now subsequent to their uselessness when most needed cameras for firearms officers are to be head mounted as they have been for years amongst frontline army. Indeed evidence from such cameras convicted a marine recently for shooting dead a mortally wounded Taliban fighter. 

So simple but so significant!  In how many other scenarios are those very highly placed and no doubt highly paid people responsible for public or private services failing on the job?  With regard to fire safety 80 or more people have been killed in order to find the answer. In crowd control it took 96 killed at Hillsborough for the questions to be asked and we are still awaiting some answers and the focus of culpability. 

Readers with their various specialised knowledge will surely be aware of other failings that are unknown to the general population but are well known to those in positions of control.  Please make your fears known and ensure protections for whistleblowers are enabled. We all owe it to each other.

Friday, 11 August 2017

LANGUAGE IS JUST ANOTHER WORD

Once again the appalling state of court interpreter services is making headlines. The MOJ might laud those services in its annual reports but every failure causes misery, depression, wasted time and costs for all involved.  As usual as with so many other deficiencies emerging within our justice system and the courts in particular this can all be traced to the cost cutting begun by an over eager to please Kenneth Clarke in 2010. One of my earliest comments on interpreter services was  24th August 2013. I copy below an appropriate section.

"This is the same Capita which took over court interpreter services last January just weeks after buying out the minuscule company Applied Language Solutions  which was awarded a contract from Her Majesty`s Courts and Tribunal Service.  This process and who paid whom for how much and in what circumstances has to my knowledge been kept firmly under wraps.  Capita and those senior people at HMCTS and the Justice Ministry responsible for the award of the contract were  castigated by the House of Commons Public Accounts Committee."  

On 1st August 2014 I wrote:-
 
"Enough has been written on the scandal involving Capita plc`s contract with HMCTS to supply interpreter services for the courts to provide future legal historians and others with evidence of how the world`s first and possibly finest and fairest legal system was brought to its knees by this and many other so called austerity requirements which have reduced the Justice budget by 25%. It would not be a big surprise if financial impropriety in Capita`s acquisition of Applied Language Solutions surfaces in a few years. Be that as it may another snippet of interpreter problems has made it to the pages of the Law Society Gazette. Notwithstanding Capita`s inefficiencies the anticipated economies have just not materialised."


On 5th February 2015 I posted on a personal experience directly relevant to the language problem:-


"Sir James Munby, president of the Family Division is not known for mincing his words.  A report in the Law Society Gazette demonstrated his difficulty in preventing his spleen being vented.  As I read the details I recollected an encounter a couple of years ago when,  at a social event,  I found myself in conversation with a court interpreter of   the Czech and Slovakian languages  qualified to standards higher than the highest requirement for the courts. Indeed she had officiated at the United Nations.  Naturally enough I discussed the Applied Language  Solutions/Capita plc situation with her.  She had previously been a freelance interpreter on court lists.  Neither she nor any single one of her few equally qualified colleagues had joined ALS/Capita and had no intention of doing so in the future. But what really showed her attitude to this publicly derided incompetent decision by government re the justice system was that she and the colleagues personally known to her had refused and will continue to refuse emergency requests issued since courts were given the opportunity to revert to previous practice. At her level she has no shortage of work.  Considering Slovakian is one of the most rarely required languages required for interpretation in the courts I am personally aware of Capita`s shortcomings despite the surface gloss of supposed improving performance."


And finally on 7th February this year  I posted on a court experience which has been seared into my memory.

I hope my reader has not been bored by all the above but it is important to recognise the common thread that links what is happening before your very eyes (with apologies to the late & great Arthur Askey) to our criminal justice system. Notwithstanding the myriad statistics showered upon us with unfailing regularity it is failing defendants, witnesses, lawyers, sentencers and all involved.  It is tragic!

Thursday, 10 August 2017

MUSINGS ON THURSDAY

Occasionally a few stories/press releases/incidents occur which, given some imagination, can paint a picture of an organisation far better that a detailed investigation.

Next week the administration department at Telford Magistrates` Court, the only court in Shropshire now operating,  is being moved to Stafford; not earth shattering news except for all the inconvenience for those involved but for a comment from the MOJ.......
"It said a small number of court staff will be relocated elsewhere within the business". That single word indicates so much that is wrong within the MOJ.

The press room at Westminster Magistrates` Court is being closed on the grounds that it`s outlived its usefulness notwithstanding that that court hears some of the most important matters to come before a magistrates` court and is "home" to the Chief Magistrate.  Despite protestations from HMCTS along with many others I fear this is a further indication of government initiating restrictions on the reporting of courts` procedures.  It might be the very thin edge of a wedge but it is a portent for the future; a future which is not very bright. 

Proposed flexible working, an HMCTS euphamism if ever there was, is broadly castigated by the legal profession but with one or two exceptions from senior ranks. More knowledge is often to be gained and just as often ignored when it comes from the troops rather than the generals.

I have remarked often enough that I am not an enthusiastic supporter of Sentencing Guidelines at least in their current proscriptive form.  An example of a judge`s idiosyncratic thought processes might suggest that my opinion has little validity in fact. This judge certainly poses an argument that Guidelines Are Good, Judgement Is Bad.

Wednesday, 9 August 2017

STILL NO REPLY FROM HCTMS

On Wednesday July 26th I posted the following:-

With increasing concern at the plans of HMCTS to impose extended hours for court sittings Twitter has been a useful pointer.  On Inside HMCTS Blog there is published a series of questions and observations to the organisation including by a couple of crown court judges.  Surprisingly there is not a single word referring to or written by magistrates except an unanswered series of questions I noticed yesterday.  I copy that part below and will do similar when a reply is published. 
Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

No reply is yet published. Check for yourself here again. 

Tuesday, 8 August 2017

TAIL OF PUBLIC OPINION WAGS DOG OF JUSTICE

The tail is wagging the dog. We`re all familiar with this idiom. Various definitions are as follows with subtle differences amongst them:- 

An item of minor importance dominating a situation. 
A small or unimportant part of something is becoming too important and is controlling the whole thing.
The least important part of a situation has too much influence over the most important part.
A situation in which a large group has to do something to satisfy a small group.

I would suggest that the latest announcement today from the MOJ that a further group of offences has been brought into the category of those where a lenient sentence can be appealed; those which are terror related, reminds us that a situation exists in our sentencing structure which clearly demonstrates the meaning of any of the above definitions.  Until thirty years ago judges  sentenced according to their interpretation of an offender`s culpability, harm caused to victim(s), previous convictions (if any), employment and domestic situation, provocation and any factors brought to their attention by the defence in mitigation such sentences being subject to appeal at a higher court. From 1988 the numbers and types of offences for which there is a basis for appeal to increase the sentence has steadily increased.

I have not previously given this situation much previous thought. Of course the right for an offender to appeal against conviction or sentence being too  severe is a certain safeguard against injustice but is there not an argument that a reverse right for the appeal court to increase a sentence on behalf of an argument by the state (the CPS) an indictment of a sentencer`s error and/or misunderstanding of the law?   In the event of such a position should there not be an inquiry of some sort into the competence of the sentencer; after all if eg a surgeon makes an error of professional judgement resulting in unnecessary problems for a patient or a pilot fails to follow protocols there is usually good reason to ask why.  When that right of appeal is extended to victims I am coming to the conclusion that this is a step too far and is a political act of appeasement rather than inspiring greater confidence in the criminal justice system. The classic example is the continuing support for the reintroduction of capital punishment although not necessarily within its previous guidelines.  A highly reputable 2014 poll is reproduced below although certainly it can be said that there is no clear majority for such a change and no ability for it even to be considered until we have left the EU. But it illustrates a principle of victims being being given a voice on punishment. 

To sum up, as the lawyers would put it,  if judges fail in their professional requirements to sentence according to all the facts in front of them in the view of the state ie they have been too lenient, they should be admonished. Government is at present having it both ways; the judge is at fault professionally in being too lenient but we dare not admonish him/her because there would be such opposition from the judiciary as a whole  that that would be impossible and we must continue to throw the public a bone or two in increased sentences  to retain credibility even although logic disputes this. As a result the tail of public opinion  must continue to wag the dog of justice. 




Monday, 7 August 2017

SENIOR JUDGES SPEAK OUT

Perhaps it`s my imagination but judges` comments in the courtroom seem recently to be directed to the wider audience than that occupying the public gallery.  Those of Sir James Munby about the inability of the NHS to find a secure appropriate institution to treat a young woman considered a suicide risk made headlines in  media from Twitter to TV and many in between. The ramifications of such outspokenness were well illustrated around Article 50.  Indeed the controversy might well have cost the incumbent and incompetent Lord Chancellor her job. My post of 1/12/2016 made the point that the remarks of senior judiciary are not necessarily unwelcome the caveat being that in so doing within our organically evolved and evolving constitution there is no firm guidance where their statements and/or opinions might be encroaching on the territory of others.

Magistrates` courts regulars have been familiar with the increasing numbers of so called McKenzie Friends appearing in court.  A once sincere and honourable way in which those with some limited knowledge and ability assisted a defendant is turning into a situation where non qualified persons take money from those who cannot afford professional qualified defence lawyers to represent them as a direct result of the strict rationing and increasing unavailability of legal aid. Crown courts are now experiencing this phenomenon virtually unheard of ten or fifteen years ago. Senior judiciary are  commenting on this unwelcome trend. 

With inevitable constitutional road blocks on the road ahead to Brexit there must surely be some comment and guidance for senior judiciary on making their opinions public,  if not from on high at least from the Lord Chancellor,  before such road blocks are staring us in the face and tripping us up.

Friday, 4 August 2017

SNAPSHOTS OF SOCIETY WARN OF THE SIRENS

When individual court cases or major malfunctions in NHS or Defence are highlighted in the media the response from officialdom is not unlikely to be words or phrases emphasising that the matter in question was atypical and for x,y and z reasons this department always has the safety of the public or the best interests of society and we have systems to cope etc etc etc.  The failure of such parrot fashion replies and excuses is that we have all been here before; the individual case or incident can be likened to a snapshot which although not giving a running account accurately depicts the vista at a particular time. The awful tragedy at Grenfell Tower is a recent example.  Eighty lives or more could have been saved but for the apparent complete malperformance of many individuals.  There is no doubt that those found guilty of criminal activity will pay dearly with the judiciary given reminder by whispers from on high that examples must be made just as happened after the riots of 2011 although there will never be official admission of such.  Thus this case a couple of weeks ago reported in Court News UK shows more clearly than any statistical analysis just why the great British public has so little faith in government being able to react to the worries and problems affecting so many citizens.  

There must or there should be eminent persons with the appropriate intellectual breadth and experience around but not beholden in any form to government who can spell out to those in Westminster just what reactions are taking place in our society often but not exclusively concerned with immigration, housing shortages and increasing disparities between the have far too much and the just about managing. The failure of policies and quangos operating under the control of the Home Office and MOJ and the inability to grasp that fundamental change must apply to the NHS as everywhere else can no longer be contained.  T.May`s pitiful attempts to explain conservatism as it is practised in SW1 are pitiful. Capitalism unleashed with no reins upon it is as dangerous for our society as Corbyn & Co preaching their brand of socialism like the sirens of old. The paradox is that that the more capitalism is allowed to rampage unhindered eg British Gas in a supposed market which is in name only the more Corbyn and his successors  can advance their cause just as the sirens did for ancient mariners. If that happens we`ll all be on the rocks.

Thursday, 3 August 2017

A SMALL SIGH OF RELIEF FROM PROFESSIONALS

My professional life prior to and whilst an active magistrate was as an eyecare professional.  I must have inspected literally tens if not hundreds of thousands of retinae.  Some of these showed patterns of serious ocular or systemic disease and such patients were referred onwards to appropriate specialists. No doubt it was unlikely that I had not missed at least one case which might have caused serious problems for the patient. I will never know.  What I do know is that I retired with an exemplary professional record as do most eyecare professionals. Therefore it was with some soul searching that I first read of the optometrist found guilty last year of gross negligence manslaughter. There but for the grace of God go I

Earlier this week the Court of Appeal overturned her conviction. The basic argument for her appeal`s success is reported here in the local newspaper. It seems to me the logic is impeccable.  The parents who lost their child responded with anger; that is their privilege although it does take the form that they were denied their revenge.  My point about all this is that there seems to be implied criticism of the trial judge. It would appear that if he had put to the jury the necessary situation for guilt to be found in the same way as the Court of Appeal it is not unlikely that the jury would have acquitted. And if I repeat my comparison with the Scottish legal system a "not proven" verdict would have been IMHO more than just a possibility.  If my observations are accepted it puts the trial judge in a somewhat similar situation to the optometrist; negligence that requires investigation by the appropriate regulator.  It won`t happen. There will be no public knowledge if any ramifications result for the judge. However for many thousands of professionals a small sigh of relief should be heard loud and clear.

Wednesday, 2 August 2017

SENTENCING GUIDELINES//ASK THE SCOTTISH PEOPLE

For over ten years sentencers in England & Wales have lived with Sentencing Guidelines. Having been there at the beginning and noting their current manifestation at least as far as magistrates` courts are concerned I am not sorry that according to the MOJ and its rules my time was up a couple of years ago. Indeed I stopped sitting in advance of retirement so as not to have to pronounce on the iniquitous now rescinded Criminal Courts Charge.  The Guidelines in their latest incarnation are a labyrinthine exercise in algorithmic steps leading to a supposedly constant outcome for the circumstances of the offending in every area of the nation rich or poor, town or country, male or female or........oops........best I don`t go there........etc etc. By their very nature and reason for being they have removed almost entirely sentencers` discretion.  Any deviation has to be explained in open court.  Indeed if the present trend continues there will be no need for sentencers at all; it doesn`t take much imagination to foresee that a fully computer controlled algorithmic exercise could take over,  reducing costs and that is the watchword of the MOJ and its partner in crime the Home Office.  Their actions over this period prove that: closing courts, removing legal aid, privatising probation, running down prisons, taking police off the streets, decimating border protection.  I could go on.  Now the people of Scotland are being invited to offer their opinions on what kind of sentencing guidelines they would wish to have in place.  One thing I can guarantee is that they won`t be asked if they want a return to capital punishment even under the most stringent conditions.  My advice to any reading this resident over the border is to take a look at what we have in England & Wales and ask yourself; do you want your representatives on the bench to be hamstrung and for initiative and common sense to be relegated to memories of a bygone era?  You have a wonderful opportunity which we south of the border were not offered. Relish it.  Take it in both hands and offer your opinion.

Tuesday, 1 August 2017

THE SACKING OF RICHARD PAGE ex J.P. PART 2

"There are so many overlapping, complementary and contradictory  aspects to the apparently simple case of Richard Page that it is my belief that we ain`t heard the half of it yet".  I concluded my post of 18/3/2016 with the preceding sentence. Now the case has taken a further twist; Mr Page, from Kent, is bringing a claim of discrimination, harassment and victimisation against the NHS Trust Development Authority, under the Equality Act 2010. A four-day hearing begins today at Croydon Employment Tribunal.

Background information is available here on Christian Concern.