THE ELEPHANT IN THE (COURT)ROOM

There are occasionally court reports which appear to omit the relaying to a reader the story of the elephant in the courtroom. This is one such report. It would seem that police are the most likely villains insofar as there is silence on how this offender has escaped justice. It would have been almost a certainty that the judge would have questioned the CPS on the absence of the accused.  If he had been on bail surely it would have been reported in open court the conditions of such?  If he had been released under investigation that too would have been part of the prosecution`s opening statement. Perhaps the judge made a direction that whoever and/or whatever was responsible should not be made public. 

I am rather disturbed by this case and its possible implications.  Perhaps someone with experience of such matters could enlighten me.

TO REPORT OR NOT TO REPORT

There are occasionally news events, major and minor, that resurrect in me and probably others events long forgotten.  When I read or see on TV that there has been a terrorist explosion in a city whether in this country or not it revives memories of when the first floor of a city multi story car park  in which I had been parked was the scene of an IRA car bomb about twenty minutes after I had left.  Similarly reading this report of a member of the public reporting a possible drink driver to the police I was reminded when I was in a situation regarding a professional colleague.  Another colleague had mentioned that unknown to me at the time that person had a drink problem and had been banned some time previously. A few weeks later when a client/patient/customer was pleased that I was advising her and not "that man who breathed alcohol fumes" I felt on reflection that as he was still driving I should not be merely a bystander to the situation.  After some hesitation and having taken note of his car number from my colleague I called the local police station giving my name and situation as a magistrate to the desk sergeant who assured me that these details would not be entered into any data base.  I reported what I knew. He said that he would alert the appropriate traffic department to be alert near his registered address. In due course he was stopped, breathalysed and sentenced to 28 days custody as it was his third similar offence.  My wife and a couple of close friends to whom I told this story were aghast and were voluble in their disapproval. I had no such doubts then and none now.  

ONLY THE NAME WILL BE THE SAME

There are some who opine that magistrates or retired  magistrates should not take part in activities such as blogging. Unlike the paid judiciary whose livelihoods and pensions depend upon not biting the hand that feeds them magistrates are volunteers.  They offer opinions and knowledge that often is not listened to or does not percolate through the established layers of communication.  Indeed the MOJ was so concerned to keep the so called independent magistracy under its control that last year it advertised for magistrates to be appointed "leadership magistrates". So unlike the previous senior magistrates who were elected by their peers via the Magistrates Association or from the Bench Chairmen`s Forum  and who liaised with the various judicial committees these incomers would be beholden to the Lord Chancellor for their positions and opinions whether or not the latter were truly representative of their 15,000 colleagues. Sad to relate this is just another small step towards the bowing out of the independent magistrate as chairman over the court which bears his/her name. The name will be the same but the game will not. A lone District Judge (MC) will range over our courts and trial by a jury of three will be but a historical footnote for future generations. 

BLOWING MY OWN TRUMPET

Today the government has published "Going to a criminal court - support for defendants". This initiative is long overdue. Without blowing too hard on my own trumpet, in my blog of 28th September 2015 I suggested the very same. To quote, "My personal opinion for what it`s worth is that the provision of literature,  sent with summons and supplied  at remand courts, that explains procedures and consequences of plea and allocation is long overdue.  In the foreseeable future with anticipated increases in litigants in person it would be criminal not to so do".  The complete blog was based on interviews with a number of my former colleagues.  The complete post is available here.

SHOULD SENTENCING LEAD OR BE LED BY PUBLIC OPINION?

The country is divided by Brexit; of that we are all aware. The judiciary is divided on sentencing but we don`t hear about it until judges are retired. In a similar fashion magistrates are similarly divided on those who take a view in line with MOJ Sentencing Guidelines and try to err on the side of leniency and sympathy for the offender. The other faction takes a more traditional view; a view which has more in line with general opinion but still subservient to the Guidelines. I make no apology to anyone that whilst following those Guidelines  and in consultation with my two colleagues my opinion would also take into account public protection such a position sometimes being overlooked by magistrates and their legal advisors. The final decision of magistrates sitting in Wigan and Leigh Magistrates’ Court on this case erred on the side of leniency and sympathy IMHO of course.

The philosophical question of course for that sentencing decision as with all others is how much sentencing should lead or be led by public opinion. There is no doubt that in general sentencing has become more severe in the last decade; prisons are bursting so hence the astonishing number of custody suspended orders.  In truth so much of this debate is happening  because those responsible for the rehabilitation of offenders, especially those from youth courts and adults who are addicts have not had the funds to do their job as it should be done. The failings at the MOJ are legion and a disgrace to us all. Unfortunately there does not seem to be any motivation from any political party to enable meaningful change in the future.  Bland socialist wishful thinking on one side and still a rump of hangers and floggers on the other pandering to their core voters are more hindrance than help. 

Brexit or no Brexit, Deal or No Deal will have not the slightest significance for a justice system which seems to have lost all sense of direction obfuscated by a huge PR department which is possibly the most successful section in Petty France.   

JUDGING THE JUDGES

There is no doubt that every government of every hue has to manage secrecy.  That is a simple statement to make but far from simple to practise and manage.  Since the catastrophic decision to hold a referendum in 2016 to this casual onlooker it appears that there have been more leaks from the government than in the water pipes under London` streets. But there is one department where leakage of information seems to be kept under control and that is within the Ministry Of Justice. Despite or perhaps because it has an enormous press and public relations department employing many dozens or perhaps hundreds of workers; even that number is not available, the goings on surrounding those who are the public face of justice ie magistrates and judges are strictly off limits.  Certainly the public face of retribution for those under its auspices erring or deviating from sometimes obscure guidelines; the Judicial Conduct Investigations Office  publishes its somewhat truncated reports monthly or even more frequently. But what is unavailable for inspection, unlike disciplinary hearings at the General Medical Council and similar organisations is a complete report of the circumstances surrounding the alleged guilty party including any defence offered. It is totally valid statistically that magistrates figure in these reports many times more than others also beholden to the same body. What we do not know is how many individual investigations fail.  Not even anonymised statistics are publicly available.  How ironic that it is the Ministry of Justice where open justice is concealed. 

During my active time on the bench I was privileged to have very courteous knowledgeable District Judges working from our courts and who were always available for advice and guidance. Others became known to me by their presence at training events and others still on a social basis. I suppose in total they numbered many dozens if not a hundred or more one of whom was Margot Coleman. It surprised me to read that she retired on October 1st many years before the compulsory retirement age. She had presided over a court last year which  found Boris Johnson had questions to answer over remarks made during the Brexit referendum campaign and which was later overturned on appeal.   Having noted our prime minister`s reaction to the recent judgements of the Supreme Court and his vindictive manner with regard to possible consequences to that court`s constitution I sincerely hope that Ms Coleman`s early departure from the bench is unrelated to her actions last year.