JEREMIAH OF THE PEACE

When Sentencing Guidelines were introduced more than a decade ago the idea was hailed as a step in the reduction of what might be termed post code sentencing. Attention was paid by the whizz kids in Petty France to the system in use in the American State of Michigan where a tick box system operates.  In England in essence a tick box procedure was overwritten with various categories of culpability and harm to arrive at what was considered a suitable punishment. These Guidelines have been updated at regular intervals to take into account governments` desire to minimise immediate custodial sentences. Along with burgeoning numbers of fixed penalties and police cautions it was hoped to control court appearances and prison numbers. The numbers of cautions became so overwhelming and lacking apparently connections to the original offences that eventually they were brought under some form of control and due process was followed to some degree.  However the heavy hand of austerity and the ever increasingly victim orientated attitude to justice  owing to a government concerned with a rise in popularism has brought about the paradoxical situation where prisons are virtually at maximum capacity. The attitude now of a discredited government desperately seeking solace with a sceptical public has led to a push me pull me attitude to sentencing in crown courts where the margins are wider than in the lower courts. 

Recently two simple cases illustrate the results of the pressures on judges.  In this case an initial sentence of immediate custody was suspended on appeal. It seems from the report that this was justice for a middle class individual who had repeatedly lied in his efforts to evade justice. I remember a Liberal politician named Chris Huhne who in 2013 along with his ex wife was jailed for eight months for what began as a s.172 offence of having a false name attached to his driving offence. 

The other matter concerned a drug addict with an awful record who was jailed for a year for multiple acquisitive offending to satisfy his habit. This a perfect example of continuing to use the court process when compulsory medical intervention is required.  This is what devalues democratic government. President Duerte in Philippines orders police to kill drug addicts on sight and is by many accounts held in high esteem by a poverty stricken populace. 

There are no easy solutions to the predicament we are in as far as law and order is concerned.  And that is the problem. There are those who propose what do seem to be simple remedies not just for that situation but for our whole method of running this country.  I didn`t vote Leave to rid the country of immigrants. I voted to leave a union whose purpose is a united states of Europe with one currency, a unified armed forces, a common taxation system and eventually a national president and parliament with supreme power over nations. At a time of national emergency we have Chamberlains running the country and  Marxists in Opposition when we need Churchills and Atlees facing each other.  We have pygmies in office. Even today our so called prime minister doesn`t know whether to stick or twist on the peccadilloes of her MPs and ministers. Call me Jeremiah of the Peace.

SACKED JPs AND SCRAPING THE FINANCIAL BARREL

In the last two months four Justices of the Peace have been removed from the magistracy.  Each of these individuals had committed the same "offence"; they had failed to meet the minimum sitting requirement of 26 half days annually.  I have long considered that this requirement is far too limited in order to achieve any sort of competence and for approved bench chairmen it is an open secret amongst many ex colleagues of being farcically too few to accumulate all the necessary attributes of a successful occupant of the middle chair.  I hesitate to use the approved description "competences".  The structure of magistrates` training is essentially a box ticking exercise. Holding a court to account with all that that entails is, in my opinion, a facility which cannot be wholly learnt just as an individual can learn to play a musical instrument but never with the skill and/or passion to hold a place in a band unless there is that almost indefinable quality of talent. Most people recognise this difference in human quality whether as pianist, footballer,  public speaker or any one of myriad attributes within us as  human beings. Perhaps in the medical world this individual attribute describing the best of the best is in the manner most will immediately recognise; bedside manner.  There is no firm evidence whether or not the quality of applicants to the magistracy has fallen in recent years.  Of one thing I am certain; every applicant should be told in no uncertain terms of the time requirements of the position especially in the first two years.  Each JP thrown out for whatever reason represents a total waste of public money.  In the year ended 2015 £700,000 was spent on training. Latest figures indicate there are 16,129 magistrates. £43 per magistrate doesn`t seem a huge amount to inform, update and train supposedly intelligent people how to perform their desired tasks.  

This parsimony by the MOJ is a direct result of public policy. At every stage of the criminal justice system; from investigation, arrest, court, sentence, prison there is the distinct sound of the bottom of the financial barrel being scraped. At each stage from 2010 those working within the system made their opinions clear, except perhaps the judiciary to its eternal shame. Perhaps the nadir has been reached. Most people involved would hope so. 

SHOULD WE ENVY USA`S 1st AMENDMENT?

On October 5th I reported on a Christian student who was suspended from his course for alleged anti gay remarks and who indicated his intention to appeal against that decision at the High Court. Last Friday he lost that appeal.  I find this disturbing.  As an atheist I have no theological point to argue but having a libertarian tendency to my understanding of the human condition it is my opinion that we are in great danger that in our determination to protect unwelcome, disturbing, offensive or disrespectful  opinions and/or remarks with regard to minorities we are elevating said minorities to godlike status whose condition is sacrosanct.  In this matter Christianity seems to have pulled the short straw.  Muslim claims of discrimination are often played loud and very clear.  The educational shenanigans in Birmingham and the truly disgusting offenders in Rotherham and other mainly northern towns until recently were considered as simply those of cultural difference.  The idea that basic tenets of the offenders` religion had anything to do with the offending was shouted down by mainly Leftist apologists and politicians whose votes depended greatly on Muslim support.  Currently the very idea that Muslim attitudes to British society are anything but favourable are rarely given media time or space especially when they offend against liberal thinking eg Ch4 Dispatches survey What British Muslims Really Think. 

When the Labour Party is hedging its bets on rooting out antisemitic card holders in its midst, devout Christians being subjected to what could be described as self censorship, the desperation of government not to offend Muslims by continually stating that Isis and its non violent supporters in this country do not represent the true religion of the Prophet Mohammed we are following a path of self deception. Indeed in the light of these events and others similar it might be that the writers of the American Constitution had a better understanding of society over 200 years ago than the centuries of supposed wisdom enshrined in our unwritten constitution supplemented by common law and statute. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.

LESS IS BEST FOR BENCH CHAIRMEN

We all know the story of the boy who cried wolf.  Generally it`s a universal lesson and there is no downside to following its example:- shut up until the deed matches the word or vice versa.  Bench chairmen should follow that advice but unfortunately there are some who perhaps by way of liking the sound of their own voice or just plain foolishness devalue the core what they intended to say.  Such was the case recently at Boston Magistrates` Court. When the chairman told a defendant that " they are at the end of their tether" .........To be completely worn out, exasperated, or exhausted; to have no more patience, endurance, or energy left  one would have expected an exemplary sentence to have been imposed. One would have been disappointed. Read the report here.  My own experience in addressing offenders is generally less is best for American presidents and bench chairmen.

UNHELPFUL LANGUAGE ON CRIMINAL PROCEDURES

There is a general discontent in this country and elsewhere that "government of the people, by the people, for the people", has indeed perished from this earth.  A symptom of this fracture between public and politicians is the use of language which by design or ignorance misleads, confuses and obfuscates issues which affect us all. Crime and punishment in its widest context is perhaps the issue which has most lent itself to the production of analyses to suit all arguments. This is directed by government; from stop and search to legal aid to video courts. Those who have a line to propagate are in their element. Such a line is delightfully illustrated by this headline in today`s "Policing Insight":- Joined-up justice: Enhancing the customer journey through our criminal justice system.  

Customer  Journey............the phrase to describe those attending court having of course first been arrested and later charged by police. Has the author no conception of what is a customer?  Perhaps etymology is beneath him. Listed below are three definitions:-


a person or company who purchases goods and services
a person who buys goods or services from a shop or business
a party that receives or consumes products (goods or services) and has the ability to choose between different products and suppliers

Read more: http://www.businessdictionary.com/definition/customer.html

Read more: http://www.businessdictionary.com/definition/customer.html

A party that receives or consumes products (goods or services) and has the ability to choose between different products and suppliers

Read more: http://www.businessdictionary.com/definition/customer.html

Read the article and come to your own conclusions.

Read more at: https://www.brainyquote.com/quotes/quotes/a/abrahamlin101395.html

Government of the people, by the people, for the people, shall not perish from the Earth
Read more at: https://www.brainyquote.com/quotes/quotes/a/abrahamlin101395.html

Government of the people, by the people, for the people, shall not perish from the Earth
Read more at: https://www.brainyquote.com/quotes/quotes/a/abrahamlin101395.html

PLUS SA CHANGE OR HOW TO PET THE MA CAT

For as long as I was on the bench the gong hungry top table at the Magistrates Association clamoured for increased custodial sentencing powers for magistrates` courts.  I can recollect absolutely not a single word or utterance from representatives of District Judges(MC) on the topic.  This government, like all the previous of the last twenty years, has paid lip service to all the fine work that JPs do whilst calmly sending the matter into the very long grass where it has lain quietly and forgotten. It is no surprise therefore that the following was made clear to all interested parties in a parliamentary answer recently:- 
Let me be quite clear; there is absolutely no chance at all in the next twenty years that this situation will change. Indeed it is highly unlikely that courts will even have a JP presiding over them.  In future their jobs will entail out of court activities eg simple offences of littering fines unpaid or the like. But those MA folk in their nice new offices will still hunger for their meetings with junior ministers and purr gratefully when their tummies are tickled by ministerial praise.

DISQUIET RE POLICE MISCONDUCT

Last week I commented on new guidance produced by the College of Policing on the conduct of cases of alleged misconduct by police officers. The last paragraph of the website page is copied below:-

“This new guidance, while acknowledging that every case must be decided on its own facts, will assist those chairing misconduct proceedings by ensuring they have to hand all of the relevant criteria they may wish to take into account when determining whether there is a conduct breach, and if so, the appropriate level of sanction to be imposed.”

Last week also saw the results of an investigation into alleged cases of gross misconduct (a sackable offence) by four officers of the Met. The essence of the charges was that that they pursued a teenager on a powerful moped, a person eventually found with seven bags of skunk and several mobile phones, who died allegedly as a result of the alleged police pursuit.  A newspaper report of the affair is available here.  A pdf link to the IPCC report 2014 on the matter can be found here. In the light of an inquest jury`s decision last year that a pursuit had indeed taken place there must be some disquiet over the whole affair. The actual misconduct transcripts do not appear to be available on line but what is in the public domain is the reply from the Met to the Coroner who presided over the inquest copied below:-

All in all if this case is to be considered in the light of the College of Policing Guidelines it apparently fails to convince this observer.

JUDGES MUST SPEAK NOW

The article in today`s Times, headlined above, was ostensibly about the failings of management of the Crown Prosecution Service but within that article (behind the paper`s paywall) was the following comment from the crown court  judge HH Anthony Morris, "Are we to intervene to prevent miscarriages of justice.......and run the risk of appearing to support the prosecution, or are we to remain silent and allow possible miscarriages of justice to occur?".  I would posit that the judge`s very wise remarks apply equally or even more so to proceedings in the magistrates` courts. 

In 2015 I posted twice on the topic of the inquisitorial role of magistrates; in September and November. Two years on and I feel that the questions or perhaps the problems are more acute and that serious consideration must be given at the highest level to possible changes in the training of magistrates to ensure that justice is done and seen to be done.  My reasoning is based firstly upon a  fact that is virtually common knowledge amongst court officials that the quality of prosecuting officials is variable to say the least with so many cases now being handed to non lawyers in a similar fashion to teaching assistants who were originally employed to "assist" qualified teachers but who now actually teach children in their charge. We already have PCSOs who assist in peace keeping and it is mooted there will soon be non medically qualified practitioners to assist GPs in preliminary diagnoses.  The extreme difficulty in procuring legal aid for lower levels of alleged criminality and the consequent increase of litigants in person has led to the increasing danger of miscarriages of justice in magistrates` courts at least as significant for those involved as Judge Morris`s fears in crown court where there is more likelihood of legal representation for those of low to middle income. 

To return to the dilemma posed by Judge Morris, I would argue that to knowingly acknowledge the possibility of a miscarriage of justice occurring and failing to take corrective action is contradictory to the Judicial Oath:-“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  There are those who will argue for the status quo but sooner rather than later judges themselves through their representative organisations will be required to stir themselves from their normal positions on the sidelines of judgementalism until retirement and speak now and not forever hold their peace.

POLICE MISCONDUCT:NEW GUIDANCE

Investigations into police misconduct, especially where a death has resulted, do not have a great deal of public confidence. This is largely owing to the rules set by the police themselves and the lack of transparency in proceedings. Better late than never the successor to the discredited ACPO, the College of Policing, has come up with new guidelines on the subject of disciplinary hearings. This is a link.

PUBLIC OPINION DRIVES LIFE SENTENCES

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

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

WITCH BURNING 2017 STYLE

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

ACQUITTAL DOES NOT ALWAYS MEAN NOT GUILTY

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


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

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

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

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

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

CROWN COURT JUDGE IN GYPSY CASE EXONERATED

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

CHRISTIAN VIEWS OFFEND UNIVERSITY

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

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

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

PART V: FITNESS TO PRACTISE

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

21.—(1) The Council shall—

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

expected of registrants and prospective registrants (including registrants or

prospective registrants carrying out the functions of an approved mental health

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

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

persons whose fitness to practise is impaired.

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

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

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

those provided by registrants.

(3) The Council shall—

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

persons mentioned in article 3(14);65 and

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

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

Allegations

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

that—

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

(i) misconduct,

(ii) lack of competence,

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

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

Wales, would constitute a criminal offence,

(iv) his physical or mental health, or

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

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

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

licensing body elsewhere to the same effect,

...67

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

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

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

whom the allegation is made was not registered.

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

 

MAGISTRATES` COURTS DISPOSED OF SINCE 2010

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

 

OPEN JUSTICE FOR JUDGES

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