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 If any comment seems submitted just to advertise a website it will not be published.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, 30 November 2017
I`ve posted here more than a few times on problems with juries. Two such posts were 14th April 2015 and 13th February 2017. L.J. Singh is following very very slowly in well made footsteps as is the snail paced progression on the legal topic so common when a government and senior judiciary are walking on eggshells. He suggests eg that jurors should be presented with written information on presenting themselves for the forthcoming trial; my my, what a superb suggestion........no, more than that; what a brilliant suggestion that could only come from one so steeped in the law as a Court of Appeal Judge. Judges are just too afraid to grasp the nettle. There never will be confirmation but I suspect that there`s more than just a minority of judges who would gladly dispense with the jury system. Perhaps their silence is one of intent. Allow more cases to be seen to be called into question by irregular actions in or out of the jury room and the case will eventually be clear to all, so they might think, that judges are in a better position to ascertain innocence or guilt than the common man formally seated on the Clapham omnibus.
In practical realistic terms should a potential juror firstly be restricted to being a British citizen? Would it not be a simple matter to send to those selected printed or digital information of what is expected and what is prohibited? Should juries in England & Wales not be reduced to the odd number of 11 and requiring eg a 7:4 majority if unanimity cannot be achieved? And what about a juror with specialist knowledge of some technical matters which might be heard in evidence. S/he would not need to consult Mr Google or Ms Wikipedia to know the truth or otherwise of these matters. Is making his/her knowledge available to fellow jurors worthy of report to the judge, contempt of court and a re-trial? I recall a case where my own expert professional knowledge was in direct contradiction of a witness`s evidence. I did not withhold that information from my two colleagues and I do not consider that my action was against my oath.
There are of course many aspects of jury selection that can be criticised. If my previous posts as above have been perused any more comment now is superfluous. But one thing I`m sure of: the jury system as currently prevailing is on borrowed time. How and when it will be reformed or abolished is a matter for a TimeLord not a retired magistrate but it will come; of that I`m sure.
Wednesday, 29 November 2017
Tuesday, 28 November 2017
The abhorrent practice of female genital mutilation has been against the law in this country for over thirty years but the history of its prosecution or rather non prosecution is abysmal: a single case prosecuted and the defendant was acquitted. It has brought the law into disrepute. It has been treated with disdain. It is illegal to smoke in a car when there are child passengers. Being drunk in a pub is surprisingly illegal. These two activities are and were driven by public opinion. In the former to emphasise the dangers of so called passive smoking where there is some debate as to cause and effect and in the latter to satisfy Victorian morality activists of the evils of working class drunkenness. For different reasons prosecutions are virtually non existent. The Hunting Act 2004 was enacted by Labour under Tony Blair to appease his left wing. It was therefore a demonstration of power and intent rather than legislation to improve the well being of society. It was for the very mirror in reasoning that persuaded Theresa May to put in its election manifesto earlier this year that if the Tories won a majority she would allow a free vote to overturn that act. 61.8% of all organised hunters charged with Hunting Act offences have escaped conviction.86 of the 165 Hunting Act charges made were dropped either before or at trial [52%]. 40 of these related to the big Heythrop trial. Complete statistics can be accessed here.
There are other such laws that might be regarded similarly. So to answer the question at the beginning of this post my response is that if legislation is enacted the will and the means to prosecute it must be available for all the law enforcement bodies associated. Failing to do so is a luxury we cannot afford. It is tantamount to rule of the mob where the mob is the lobby group or groups with most to gain for their own sometimes nefarious purposes.
Monday, 27 November 2017
Friday, 24 November 2017
On the bench I presided over few occasions when a case involving firearms came to court and we retained jurisdiction. About 15 years ago one such involved a fake firearm being waved in the face of an innocent bystander. Despite all the pleas from the defendant`s representative our legal advisor sustained our position that immediate custody in such a situation was the only appropriate disposal. On Monday of this week the judge at Lincoln Crown Court considered suspending custody to be appropriate for a similar offence. I consider that HH failed in his duty of public protection. IMHO this is typical of the nonsense within our courts to follow government whispers to keep offenders out of jail.
That same day in the same court before the same judge HH Simon Hirst once again suspended a custodial sentence for an offender who admitted dangerous driving by ramming two police cars and driving with excess alcohol. How can we have confidence in a system where such criminality is seen to be acceptable insofar as immediate custody seems to be not just a last resort but virtually off the table for incidents where nobody is actually physically harmed? Indeed the Howard Leaguers and their ilk in our midst would indeed retain custody only for violent criminality. The bestiality in mankind will not be removed by such sentimentalist sentencing. How long must we go along this path?
Thursday, 23 November 2017
Our concept of justice underpins our whole way of life. The Babylonians lent on by Moses a thousand years later pointed the way. Alfred the Great had his input. Magna Carta is rightly regarded as another milestone in the journey from the savagery of the jungle to the rights of man. The installation of Justices of the Peace nationwide 650 years ago and the right of indicted individuals to have a trial by jury were and are steps in the process to where we are today when a level playing field of the law court is witness to argument based upon an equality of arms before a blindfolded lady justice. Or so it was but no longer. The withdrawal of legal aid for all but the poorest has laid bare the myth of equality of arms. A Crown Prosecution Service cheerleading increasing guilty verdicts irrespective of the state`s upending its end of the playing field to achieve those verdicts makes one consider whether it would hope that ever more success would be measured by 80% guilty verdicts or 90% or perhaps 99% as in China. Increasing court charges to make "offenders pay"; a policy by the toadying ignoramus Chris Grayling who also banned books from prisoners was rightfully rescinded by his successor. Sacking thousands of prison warders and then looking aghast as prisons became places of fear for many inmates seemed to bemuse those in political authority although it provided the gloating MOJ press office with substance when announcements were made that recruitment of prison officers was going ahead successfully although numbers are well below those previously in place and required for prisons at 99% capacity. A similar scenario can be sketched out about police, probation, forensic science and security forces allied to law and order.
A country cannot put justice on a financial diet; indeed one likely to be an anorexic diet without damaging this pillar of our society to all our social detriments. Yet that is precisely what is happening. Only mass disobedience by the senior judiciary to their constitutional concept of being seen but not heard has a chance of altering this situation and sadly I don`t think their bewigged honours have the cajones for that.
Tuesday, 21 November 2017
Monday, 20 November 2017
Thursday, 16 November 2017
Monday, 13 November 2017
The jailing of prolific offenders who steal to feed their drug and/or alcohol habits is not going away. These people are usual pitiful examples of lives gone very wrong. All the state has at its disposal is to wait until the offending has reached a point where all attempts at non custodial remedies have failed. At the risk of boring a regular reader this failure is a disgrace in a supposed civilised society which is afraid to look reality in the face if the actions or inactions of its political representatives are a guide. Some people do need to be incarcerated perhaps unwillingly for their own good and for the good of society. The route to so doing is not through the courts; it should be through a medical pathway. Sadly I doubt I`ll ever see such a radical change in thinking. The miserable creature who was jailed at Wigan Magistrates` Court last week is a perfect example. Her story as reported should be a stain on many consciences. Yet every day in every magistrates` court there is a similar offender. And the story goes on.
A prolific and violent offender has won £78,500 damages from the Home Office for being unlawfully detained. Read the report here on how this man whom the government would dearly love to kick out was rewarded. Read the judge`s remarks. It seems that no balance was considered. Irrespective of his actions in this country the "injustice" of executive actions was the only consideration. I wonder if in the judge`s mind there was no limit in the evil that this individual could have perpetrated that would have altered his conclusion? If that were the case, and of course we`ll never know, then the law is an ass.
And finally the Howard League for Penal Reform, a lobby group run by the obsessive Frances Crook, invited the Metropolitan Police Commissioner to give a lecture. Surprise surprise Ms Dick did not tailor her words to suit her host. She gave her honest opinion on what steps need to be taken to reduce the horrendous toll of young black men stabbed to death in London by other young black men. Hats off to Miss Dick.
Friday, 10 November 2017
In Sheriff Courts under solemn procedure a requirement for a verdict is simple; the jury is asked its decision and whether it is by majority or unanimous. Crown Court judges will ask for a unanimous decision or a majority of 10 to 2 if that change would render a verdict. Anything else and a mistrial would be declared. The Supreme Court is constituted so that a majority decision is accepted where unanimity cannot be achieved. The form of verdict is announced publicly in both courts. Where it is not announced publicly is in the Magistrates` Court with a lay bench where a bench of three having made its decision does not indicate whether it is a majority or unanimous decision. During my active career I found and still find that this is not justice being seen to be done. It is secret justice. At the very least declaring a majority decision would give an indication as to the strength of the case presented by the defendant declared guilty. At the most it would allow the offender who had the means and/or the ability to consider the option of appealing to the Crown Court where the case would be reheard in front of a judge sitting with two different Justices of the Peace. Indeed taking it a step further, a majority decision could be grounds alone to appeal.
I am sensible enough to know that my opinion is not worth even twopence. Such an extension of citizens` rights is totally contradicted by government actions over the last 20 years. Courts are increasingly sacrificing justice for pounds. Magistrates` Court closures affect the poorest of defendants with much increased travel costs; the virtual abolition of Legal Aid for all but the very poorest of the poor has led to increasing numbers of equivocal guilty pleas as has the imposition of court costs eg the now terminated Criminal Courts Charge based on the MOJ`s demands that courts should be self financing: in itself a concept that is incompatible with a nation that pre supposes Justice to be a pillar of democracy.
All this is taking place with a supine parliament the competence of which is being shown almost daily to be devoid of intellect except for a minority of individuals who whilst not being a Burke or Fox or Churchill or Bevan still appear to have a philosophy of good intent for the individual citizen as the basis for their involvement.
Wednesday, 8 November 2017
During my time on the bench probation held regular meetings open to all JPs where policies were explained and comfortable inter action encouraged. I recollect attending community payback schemes and attendance centres. I was not discouraged from ordering senior probation officers to court to castigate them when my colleagues and I felt that procedures were inadequate an/or explanations required on specific cases. The rate of immediate custodial sentences in magistrates` courts in my experience was about 2-3%. Yet now the MA asserts that offenders are being jailed unnecessarily owing to the accepted problems with probation services. According to the latest figures from the MOJ this is just not the case. 1.5% of summary cases conclude with an immediate custodial sentence. The ratio ten years ago was 2%. See chart below.
I would opine that the logical conclusion of the MA`s presentation was to give a false analysis of the current sentencing levels to advance its own political position. That position has been for many years that maximum sentencing powers be increased to 12 months from the current six. There is no doubt that the probation service is under awful strain as a direct result of government policy. There is no doubt that individual probation officers are doing their best to cope but there is certainly doubt as to the conclusion reached by the Magistrates Association that more offenders are unjustifiably being imprisoned.
Tuesday, 7 November 2017
Monday, 6 November 2017
I posted briefly on this topic in February 2014. Is it not beyond comprehension that looking to the past can sometimes provide viable and cost effective solutions to the problems of the present?
Friday, 3 November 2017
Thursday, 2 November 2017
The surprise factor in all this consideration was that the Prison Officers Association endorsed the idea knowing full well that depriving their charges of their daily doses of carcinogens would almost certainly not improve warder/prisoner relations. Originally an initiative of the inept Chris Grayling, Michael Gove seemed to change his mind from no to yes. We can overloook Liz Truss`s forgettable few months at Petty France. Earlier this year the pros and cons were again clearly laid out when government in its wisdom decided to go ahead with the ban despite the predicted consequences. Well, now these consequences have come home to roost. Prison riots happened before the ban but not at the frequency of late. Today`s Times carries an authoritative account of recent events.
One can only wonder at the ineptitude of our current rulers in so many aspects of the job they were elected (just) to do. If the alternative were not so much as going from the frying pan into the fire but descending into a Marxist Dante Hell I would forego my vote in the next election for the first time ever.