A LAW UNTO THEMSELVES

I have remarked previously that when Justices of the Peace step out of what the Judicial Conduct Investigations Office  considers the appropriate judicial approach a heavier hand is applied than seems to be the case for the rest of the judiciary.  Perhaps it expects more from those who volunteer their services, perhaps they are easier to replace and so individually have less value than their seniors, perhaps being unable to alter their lifestyle by the implicit threat for the most dire offences they are sanctioned more often, perhaps as a corollary professional judges are less likely to lose their position owing to the JCIO being mindful that removal would affect a judge`s income and be likely to hinder future employment prospects.  With those thoughts in mind I read of the case of HH Judge Karen Holt who accessed case files in a matter where her daughter was a witness. It is impossible to believe that had a magistrate done something remotely similar s/he would not have been removed from the magistracy. But one must remember that the JCIO is a law unto itself. 

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Generally speaking most upright law abiding citizens would think that coming to the defence of a woman who was being attacked by a man was a heroic action deserving praise even if in so doing a single punch felled the attacker.  In Jersey apparently the opposite is true; at least in this case. Whilst we know little of the circumstances except the essentials it does seem rather odd but then the Channel Islands are literally a law unto themselves.

LIVE TV WILL ALLOW JUSTICE TO BE SEEN AND HEARD TO BE DONE

For anybody interested in the law and the legal system last week`s ITV programme on the Court of Appeal was possibly the most interesting and entertaining programme on the subject for many a year.  For a very long time I have been an advocate of live streaming of court proceedings with, of course, the caveat that we don`t lose sight of "justice" for all parties by the nature of the editing and directing which would be inevitable.  Indeed a five minute delay when broadcasting live would be essential.  However I sense that there is much opposition to the very idea of "court TV".  Opposing opinion strikes me as very similar to that existing when the live televising of parliament was mooted in 1968.  The question to arise is not if to have TV coverage of courts but which level of court should be the first to be broadcast.  An argument that a dedicated TV channel be devoted to the topic might find favour with current media outlets being amongst the obvious contenders for such a franchise. With the Supreme Court having been the first (Scottish courts excepted) to allow the cameras within its dusty walls and last week`s programme as precedents I would opine that in keeping with the trend, cases at the High Court would follow.  Under the strict direction of senior judiciary justice would be seen to be done by the public which is being served.  On the other hand if magistrates` courts proceedings were televised it might have more appeal and interest in an area where criminal activity at all levels  could be related to by viewers. It might also act as a deterrent and public humiliation for potential offenders just as the stocks did so many years ago. 

One thing can be predicted with absolute certainty; the angst within the legal fraternity re live TV from courts will be seen in a couple of decades from now as parliamentary broadcasting was amongst politicians years ago.  And that was based, despite the hot air of political windbags, on efforts to preserve secrecy of the goings on in a clublike atmosphere.  Just as parliament exists for the functioning of our democracy and not its players so justice in the form of our courts exists similarly.   Let it be seen and heard to be done. 

LOCAL JUSTICE BY THE FISHER FOLK JPs OF HUMBERSIDE

The MOJ in its confusion about what constitutes local justice insists that that concept still exists when reality indicates the contrary.  National guidelines on sentences and magistrates` licensed to sit at any court in England and Wales..........when I was appointed I was restricted to my local court(s) show that in practice a national system of courts is in operation.  An interesting article in Grimsby Live purports to show that the region`s courts are more "jail happy" than the national average.  Of course this is a big boost for those who repeatedly claim that the lower court should no longer have custodial sentencing powers. Perhaps the good burghers of Humberside have their own sense of priorities in dealing with offenders whilst still being guided by the Sentencing Guidelines but refusing to be constrained by them.   In that event no doubt the Justices Clerk for the region will be told by his/her bosses to sort out those fisher folk and their old ideas of justice and retribution and allow the tenets of the metropolitan nanny state to operate unfettered.  

THE MYOPIA OF THE MAGISTRATES ASSOCIATION

On Wednesday August 22nd I posted on the broadcast earlier this week of the chairman of the Magistrates Association John Bache and his moaning and groaning of the need to recruit new magistrates with special reference to diversity.  Notwithstanding the political correctness and myopic lack of vision behind his utterances he also made what seemed to be a plea associated with that apparent (to him)  lack of diversity of encouraging more ethnic minority candidates to apply even if they have a criminal record.  His myopia is his failing to read the signposted intentions of this government and probably any other removing magistrates from the court process completely and having professional District Judges (MC) chairing proceedings alone although there is a possibility that Justices of the Peace will be allowed to remain as wingers only in cases where custody is a possibility. With one third of courts closed and government determined to  increase the use of video courts the cost of employing the aforesaid professionals if they agree to dispense with the then unrequired legal clerk would be as cheap if not cheaper than the costs of paying JPs` expenses. They would of course be beholden to government and that would give government what it always wants:- more control although with representatives like Bache who bend to every puff of air from Petty France the days of a so called independent magistracy were numbered a long time ago.  

Letters to the Telegraph today and copied below are not necessarily reflective of the general population but do give a sprinkling of opinion on the above. What can be said is that as far as the Ministry of Justice is concerned it goes ahead with whatever scheme is suggested by the weasels in Petty France to placate the Treasury in its constant drive to lower its budget regardless of effects on court users of all kinds.  That is why today our justice system is crumbling except for the oligarchs of eastern Europe when it comes to minimising their divorce payouts to former wives or litigating against former business partners and who willingly spend millions to keep chancellery and divorce lawyers in heightened luxury to protect their often ill gotten gains. 

Letters: Magistrates don't need to be ex-criminals to understand people on trial

23 August 2018 • 12:01am

SIR – According to the 2011 census, 87 per cent of the population were white or white British. That means that 13 per cent were not.
Why, then, is John Bache, Chairman of the Magistrates Association, worried that only 12% of JPs are black and ethnic minority? This seems reasonable to me, bearing in mind that those appointed in the last century would have been proportionately more white.
Until I retired as a magistrate last year, most criminals were male, yet half of the bench were women. It is fair in general terms to argue that magistrates should reflect the society which they serve, but that does not mean that an individual defendant should expect a bench reflecting his or her characteristics, particularly if they are of a criminal tendency.
Michael Staples JP
Seaford, East Sussex

SIR – Mr Bache is trying too hard to be politically correct by seeking to recruit more former offenders as magistrates to “make those accused of crimes feel less alienated by the justice system”. 
It is far more important that the justice system retains the confidence of the victims of crime and the law-abiding majority, as well as criminals, by having magistrates of obvious integrity.
Ronnie Bradford
Vienna, Austria

SIR – Your report includes the phrase “hiring more magistrates”. Magistrates are not hired but appointed, as unpaid volunteers. That needs to be borne in mind in any discussion of the matter.
As to the need for diversity, the principal requirement is awareness of the circumstances of those who appear in court. You need not have financial problems to judge poor people, or be black to judge black people.
Experience like that gained in Citizens’ Advice, seeing people of every kind of background, can provide the necessary qualification.
Katie Watson
Petworth, West Sussex

SIR – Sitting as a deputy stipendiary magistrate, I did not have to be a former thief to know the difference between a mother stealing food for her hungry child and a man stealing watches for profit.
Peter Thompson
Sutton, Surrey

SIR – Mr Bache suggests that recruiting magistrates with criminal records would make those accused of crimes feel less alienated by the justice system. I thought that one aspect of the justice system was just that – to make criminals feel alienated from the norms of civilised society.
David Salter
Kew, Surrey

SIR – It is suggested that former criminals should be magistrates, and only gay actors should play gay characters. What next – MPs that have lived and worked in the real world before representing us mere mortals?
David Dorey

DIVERSITY; THE "D" WORD

All those with connections to the concept of justice as a department of state will know that magistrates are rather thin on the ground and on the bench. There were 30K when I was appointed and about 16K now.  The idea of "diversity" within the magistracy has been a running sore throughout the last twenty years.  Having never been on an appointments committee the activities of which are secret I have no first hand knowledge of just how far such committees consider lowering the requirements when faced with a dearth of applicants from ethnic minorities but under an obligation to ensure that their court`s ratio of such individuals meets government`s required levels.  What I do know with absolute certainty is that at my own court there were a  very few black colleagues whom everyone from the Deputy Justice Clerk downwards knew had been appointed because of that aforesaid requirement. 

There has been a perennial complaint that the magistracy is too white, too old and too middle class.  To those criticisms it used to be added; too male. Not any more; over half of JPs are female. Latest statistics show that  more than half of magistrates were female (55%),12% of magistrates declared themselves as BAME.  The system has always allowed capable applicants with historical minor offences in their background to be appointed; eg a previous conviction of dangerous driving or assault.  But the supposed mouthpiece for magistrates, the Magistrates Association, which nowadays is not representative of its members except that they subscribe for its magazine is as usual pushing the diversity issue once more as if its credibility depends upon it.  I suppose it does because it increasingly just echoes government wishes on matters affecting the lower court. The latest to join this club is chairman John Bache. He bemoans the age profile of magistrates. It is a no brainer that only those with sufficient income can offer the required unpaid time to join the bench.  That usually increases with age. It is only by not having to pay magistrates a salary that prevents a wholly professional judiciary taking over completely the magistrates courts` system.  In order to encourage recruitment he is actively seeking candidates with criminal convictions.  He declares this as another way to increase "diversity".  This D word seems to be the watchword for so much rubbish emanating from government departments and those who criticise are immediately targeted as racist.  Quota systems, for this is what diversity is, demean those who constitute the diversity target. Doubt is inevitably placed in their inherent aptitude for the job. Indeed I know that it has made some feel that they almost have had to prove their abilities to their peers.  That is a terrible price to pay.  And of course there is the actual meaning of diversity.  Where does it stop? the categories are almost endless. 

When I applied there was a place on the form to fill in; "which political party did you vote for when you last voted at a general election?"  I returned the form with that question unanswered. It was returned shortly after with a covering letter stating that if I did not answer that question my application would be immediately rejected. I answered the question.  That question has long since disappeared from the application form.  I doubt that questions on race and/or religion will be on the application form  20 years from now. Indeed I doubt that magistrates will be part of the court function in 20 years from now. 

PROPAGANDA OF TV FLY ON THE WALL JUSTICE

The area where most decent law abiding citizens come into contact with police is when driving.  Owing to the discretion allowed the police their attitude in any individual case could leave a life long impression.  Nowhere is this discretion more widely operated than when a minor infringement of road traffic laws has been observed. Breaking lower level speed limits is one such infringement.  On motorways there is no excuse for breaking the 70MPH limit except in very exceptional circumstances eg to avoid a collision. And especially when many  new cars have cruise control or adaptive cruise control which being radar operated brakes automatically when approaching too close to the vehicle in front. But in towns and built up areas concentration on other traffic factors can lead to a momentary breaking of a 20MPH, 30MPH or 40MPH limit.  For police to seriously consider that 1MPH over those limits warrants the issue of a ticket and 3 penalty points is a further signal that the police in this country are setting their own agenda. Increasingly they are losing the goodwill of the public they serve by failing in their primary purpose of preventing breaches of the peace and the investigation of lower levels of real criminal activity. Of course police forces have been decimated by reductions in funding and the personnel required.  We can thank Theresa May for that although she would like us to forget that she was six years home secretary and authorised the cuts in resources.  Nevertheless during my last motorway journey last weekend of 200 miles  I did not observe a single police motorway patrol; a place where they would have been of more use than in many towns. Or perhaps they keep their efforts live for reality TV programmes where many parts of the justice system seem to be popping up with unfailing regularity. Detectives in live action and the CPS now have fly on the wall TV time. I suppose the relatively low costs per hour to the TV companies make such programmes worthwhile and for the forces of law and order such propaganda is an effort to whitewash their inefficiencies and reducing lack of public confidence. 

A JUSTICE SYSTEM EMASCULATED

Every Justice Secretary since I was appointed [and probably prior to that] has issued words of thunder through the weasels in the MOJ press office that something is going to be done about knife crime. Indeed I have posted here more than once on this.  It would not be inaccurate to suggest that such pronouncements are filed in the in box for every new occupant of the top seat at Petty France.I await David Gauke`s efforts. Meantime the latest Guideline has come into force.

It is common knowledge that knife crime this year in London has reached record levels. It is therefore not irrational to conclude that current practices are not having the required effect in protecting the public and victims who are often young black men as are many of the offenders. Any sensible law makers would seek reasons for the situation and offer sensible evidence based solutions. But any observers offering such a common sense approach risk being accused of political correctness if race based initiatives are amongst the mix of those possible solutions. 

This blogger along with most involved in our justice system despairs about what has happened to and within that justice system since 2010.  Police who have been deprived the resources to do what the founder of modern policing stated to be the aim of his "bobbies" although later ascribed  to Richard Mayne at the Metropolitan Police Training School at Hendon and the source of reference to all constables in the Instruction Book. The first passage in that book which they had to learn and recite word-perfect was the “Primary Objects”.This was written in 1829 by said Richard Mayne one of the first two Justices of the Peace (later in 1839 referred to as Commissioners) appointed in charge of the Metropolitan Police Force and published in Police Orders. The Primary Objects: are as follows:

“The primary object of an efficient police is the prevention of crime: the next that of detection and punishment of offenders if crime is committed. To these ends all the efforts of police must be directed. The protection of life and property, the preservation of public tranquillity, and the absence of crime, will alone prove whether those efforts have been successful and whether the objects for which the police were appointed have been attained.”   

 And the end point of criminality is prison where today Birmingham jail has been taken over by the state after the private sector has been shown to be possibly criminally incompetent in its management. Between police and prison, courts and probation service have been similarly emasculated.  I am left feeling that this is akin to the 1997 scenario of a tired and useless John Major government about to be driven out of office and rightly so except that in the wings is a group of antisemitic Marxists licking their lips at the ruin they will bring to the nation to realise their lifelong dreams.  This scenario leads to ever increasing cries for "something to be done" and that inescapably leads to the populists in our midst offering simple get out of jail free cards. And to complete the metaphor, monopoly in all its dire forms results. Another term for that in this context is authoritarianism. 

IS APPEAL TO A HIGHER COURT A LOTTERY OR SUPERIOR JURISPRUDENCE?

The Court of Appeal has yesterday reinstated Dr Bawa-Garba to the medical register. Readers will be knowledgeable of the details. I do not intend to discuss the rights and the wrongs of the final decision or the ramifications for the NHS.  My point is to understand the differences between that court and the Supreme Court from a lay person`s point of view. The major difference is  that the latter is administered under a chief executive and is the highest court in the land. Yesterday`s result I suppose could yet be taken to the Supreme Court.  The brains on those courts are presumably the highest of the applicants who applied. From the lower court some will find their way to that Supreme Court.  Are we to consider that intellectually and legally minded there is a superiority of one over the other?  Or is it that there are two courts sitting consecutively and the verdict of the second supersedes the first? Is a judge in the Court of Appeal verdict which was eventually overturned who differed from his colleagues and in effect brought in the same result as the Supreme Court would do in the future appeal to be considered a more suitable contender for that court than the colleagues whose verdict was overturned?  In a similar argument would it not be prudent for two juries to sit on the most serious cases so that two verdicts of guilty are required for conviction?   In other words with the current system of appeal is it as much a lottery as superior jurisprudence?

JCIO; A MODERN WITCH HUNT

THE JUDICIAL CONDUCT INVESTIGATIONS OFFICE is the star chamber where judicial office holders are held to account.  Its machinations are secret.  Investigations are conducted far from the public eye.  In that respect itself one must suspect the integrity and/or fairness of its deliberations.  Secrecy in government departments is guaranteed to raise questions but I cannot recollect any serious journalistic inquiry or reference to this process little known outside the legal fraternity.

Today it has published its latest findings...........copied below.

The very wording, "remarks........which suggested that she holds prejudices..........." is enough to consider that this accusation was perhaps on less than solid ground.  The fact of the accused`s resignation does not detract from that.  The mental stress of such proceedings would be more than enough to break the resolve of even the strongest personality.  The expense of defending such a charge is enormous. Magistrates have no group defence body. Of course we know nothing of the actual case except the result.  This is not justice.  It could very easily be a modern witch hunt.

MORE BLAH FROM THE MOJ

Criminals with drug, alcohol and mental health problems could avoid jail after ministers branded short prison sentences “ineffective”.
David Gauke, the Justice Secretary, wants “vulnerable” offenders to be given community orders requiring them to undertake treatment instead of going to jail.
But the scheme, being piloted in several regions, risks a backlash from victim groups amid fears that criminals could play the system to avoid prison.
Under the initiative, psychologists present in court assess offenders who could be eligible for a community order. Local panels of justice and health officials will provide information to magistrates and judges so they can determine the appropriate outcome.
The Ministry of Justice said the measures have already resulted in more Community Sentence Treatment Requirements (CSTRs) being issued. Government research has found less re-offending among those who undergo treatment.  In a speech today Mr Gauke will say: “We are all clear that we need to do more to support vulnerable offenders in the community… We need to do more to raise awareness and increase confidence in treatment requirements and I look forward to exploring how these sites progress.”  Since the pilot sites went live in Birmingham, Plymouth, Milton Keynes, Northampton and Sefton on Merseyside, initial figures suggest that more than 400 CSTRs have been issued. 
District Judge Richard Clancy, lead judge at the Complex Case Court in Merseyside, which is part of the Sefton pilot scheme, said: “To have a trial scheme where the court has on-site psychologists capable of testing suitability of a defendant for a mental health treatment requirement, so that such a community order can be made by the judge on the same day without need for adjournment, is a remarkable and innovative move which I fully support.”
Community sentences can include offenders being required to carry out unpaid work as well as attending centres for their addictions or health issues.

The above is copied from The Telegraph.  Over the last two decades governments of both colours have been responsible for closing dozens of mental hospitals and refuges.  Indeed the building closest to my house about three miles away founded in 1851 as an asylum  and later was a NHS  psychiatric hospital was closed in 1993 as were so many others similar. It is now a very desirable address where Premier League players are known to have flats. Judges and magistrates have been aware for many years that the provision for the 70% of offenders who have addiction problems; drugs and/or alcohol is very thin on the ground.  The numbers of professionals available to treat such offenders is nowhere near enough to offer a prompt effective route to abstinence.  The only sensible way forward is to remove the court journey to that of a medical pathway for such offenders. That means that drug taking [not dealing] must be de-criminalised.  Secure facilities must be constructed where appropriate offenders are forcibly incarcerated.  In previous posts I have termed these places as "workhouses for the 21st century" where they are released when it is considered they are clean and no longer a threat to a peaceful society. Some may comment that this  is draconian.  I don`t disagree but where we are now and where this Justice Secretary wants to go are just not possible even with all the press releases and their blah blah blah.  

GOOD GOVERNANCE NOT

A great debate is taking place in the USA over the separation of powers; a theme throughout the constitution which is the basis of that country`s democracy and a matter of concern with the current POTUS tending to disparage Congress and Justice Dept.  We have no written constitution as many puffed up parliamentary representatives are not tired of explaining.  This is all very well except that there is no defined path for true democrats to follow when the system seems to be near breaking point.  Those same representatives make it up as they go along; hence the debacle of the Brexit Shambles. Nearer to home and as a topic for a blog which usually focuses on matters legal, paedophilia and its perpetrators are rarely out of the headlines. We have come a very long way in the last twenty years in recognising this heinous lifestyle whether initiated by genetic or environmental disorders as a scourge in our society.  As in all criminal matters the police must investigate, the CPS must charge, the court must deliver verdict and the judge must sentence.  If the chain is broken anywhere along its length justice will not be done or seen to be done. Last year Simon Bailey, the National Police Chiefs' Council lead for child protection, said that paedophiles who view indecent images should not be charged and taken to court unless they pose a physical threat to children.  He added that low level offenders should simply be placed on the sex offenders register and given counselling and rehabilitation instead. A few days ago the Solicitor General indicated that he would make provision for appealing against sentences for paedophiles which are considered too lenient. 

This complete incongruity between police and courts is more of a tragedy than a farce. But it certainly does the profile of what constitutes good governance no favours.   

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NO END IN SIGHT FOR ADDICTS AND THE DESTRUCTIVE JUSTICE SYSTEM

"Sentencing Collins to eight weeks in custody, bench chairman Graham Commons said that he felt there was a gap in the criminal system to deal with people like him.
He told him: “We don’t normally get customers as cooperative as you, so thank you for being cooperative.

“All I can say is when you’re in custody please try and get the help that you’re asking for.”

The above is copied from the Huddersfield Daily Examiner.  The sentiments of the bench chairman are exactly in line with my thoughts formed many years ago on drug addiction. I have commented similarly many times here but rarely has the current situation been more clearly expressed and reported within a magistrates court. Only by the combined efforts of a courageous Home Secretary, a Justice Secretary who actually has balls and a Health Secretary with no leadership ambitions defying his civil servants and perhaps his boss will anything like the correction action be taken. Needless to tell, the current destructive process for addicts going through the justice system will continue indefinitely.  

A LINCOLNSHIRE DRIVER//NOT A LINCOLNSHIRE POACHER

More than a decade ago national sentencing guidelines were introduced to avoid or minimise sentencing by postcode.  This innovation in hindsight can be marked as the beginning of the end of what had euphemistically been termed "local justice". We have come a long way since then.  Magistrates are now accorded the privilege? of being qualified to sit in any local justice area in England and Wales when previously they were limited to their "home" court.  Whether one agrees or not this is the situation.  

A lawyer addressing magistrates in Boston Magistrates Court pleaded for his drink driving client to have a reduced ban cf similar miscreant in London who could avail himself of the myriad transport choices in that city cf rural Lincolnshire. I must admit that that is the first time I have heard of mitigation along these lines.  Imagine if courts could act retrospectively if the mood chose them.  There could be special reasons based on the supposed historic inbreeding in East Anglia, they could designate fines in bushels utilising the high number of those employed in farming,  two thirds in the county voted to Leave EU so learning French could be a part of community service.  

I suppose the lawyer in question was just trying to do best by his client.  I wonder what his approach would have been faced with mitigating a Lincolnshire poacher?