COURTS ARE A SIGNPOST

You may be there all day
You need to arrive by the time stated in your notice letter.
The time given in your letter is when the day’s cases start. Your case might not be first so be prepared to wait.
Make any arrangements you need to, for example childcare or taking time off work.

The above "advice" is at the beginning of a document published on 7th February: "Guidance What to expect coming to a court or tribunal".  In other more honest language it might have read, "The courts are so overcrowded owing to the government`s knowingly closing half the country`s magistrates courts, many crown courts and not providing sufficient funds for judges to sit at all the remaining crown courts where facilities are available".

What a state of affairs; it is even worse than the atrocious conditions at many of our hospitals where emergency and accident departments are simply overwhelmed.  At least those who have the foresight and/or means to have private medical insurance can avoid some of the delays in the NHS but nobody can buy his/her way to a scheduled court appearance.   Even just yesterday the civil servant in charge of the Her Majesty`s Courts and Tribunals Service had the affrontary to tweet "I believe passionately that we need a justice system that leads and inspires the world. Our #justice system is an integral part of modern society – our #CourtReform programme is making the system work better by giving people new routes to justice. #JusticeWeek2020".  Is this self delusion? She didn`t need to put those words in front of a public which knows it is pure imagination. Was it imposed upon her by the dozens of weasels who constitute one of the largest press offices in Whitehall? Whatever the exact circumstances the courts` system is in disarray  and to quote a former Home Office Secretary of State about that arm of government; "it is not fit for service". 

A truly free democratic society cannot function without a justice system in which each individual has confidence. All parts of that system are in rapid decline including police where our prime minister is now notorious for his spurious use of statistics. Between the clear blue sky of optimism and the clouds of doom we are at a midway stage where the weather forecast is unable to provide confident guidance.  The state of our courts is merely a signpost along the way. 

THE CRIME OF ASSAULT NEEDS TO BE RE-THOUGHT

ASSAULT:- hit, strike, smack, slap

ASSAULT:- a sudden, violent attack; onslaught: an assault on tradition. Law. an unlawful physical attack upon another; an attempt or offer to do violence to another with or without battery as by holding a stone or club in a threatening manner.

A person is guilty of common ASSAULT if they either inflict violence on another person – however slight this might be – or make that person think they are about to be attacked.  If violence is used in a common assault, it is called a “battery” and the perpetrator would be charged with “assault by beating”

ASSAULT on a police constable in execution of his duty: Police Act 1996, s.89 

For as long as I`ve been involved in legal matters I`ve lost count of the number of occasions when representatives of the police have complained that magistrates courts when dealing with offenders convicted of assaulting one of their profession are too lenient in their disposal.  In truth I have some sympathy with that opinion but only at the lowest level of my sympathy meter. 

Some numbers might be useful: Latest statistics for ten months to September last year show that prosecutions for assaults on police and emergency workers totalled  almost twelve thousand of which 9,629 were found guilty. 1,518 were sentenced to immediate custody and 2,137 were fined. In the year ended March 2019 there were 10,399 offences of “assault with injury on a constable” recorded by the police and 20,578 recorded "without injury".  It seems to me that the term "assault" is in itself toO widely drawn.  

Grievous bodily harm with intent is the most serious form of assault charges in the UK and involves a perpetrator who intended to cause serious bodily harm to the victim. This offence may be committed four different ways:  wounding with intent to do GBH;  causing GBH with intent to do so; maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or maliciously causing GBH with intent to resist or prevent lawful apprehension etc. of any person.

Owing to the above definitions there is no way of knowing how many assaults on police are those causing any serious degree of harm beyond perhaps a push in the back or very slight bruising from an attempted kick or a helmet being knocked from the head. A new crime classification for “assault with injury on a constable” was introduced on 1st April 2017. As far as I can determine the definition of what assault constitutes an injury to police is unavailable. 

From my own and others` experiences there are and have been occasions when there has been some surprise on the bench when the charge of assault on a police constable has seemed to be undercharging considering the very serious effects on the victim.  But that also happens when the victim is a civilian and is a result of the CPS being satisfied with a highly likely guilty outcome of the lesser charge vis a vis the less assured outcome were a higher level charge taken to crown court. 

I feel sure that at some time the government will have to re-think the law on this most common of criminal behaviours where the outcome for victims; police and civilian,  psychologically if not physically can be a lifetime of trauma and/or paranoia. . 

EXCEPTIONAL HARDSHIP: A NATIONAL SCANDAL

If there`s one form of decision that got and still gets my magisterial goat it is the apparent ease with which a 12 pointer convicted "totter" can get away with a spurious exceptional hardship argument and avoid a driving ban. Smooth talking lawyers are the courts` equivalent of 1970`s  door to door double glazing salesmen flogging their wares to receptive magistrates who are often thinking "there but for the grace of god go I".  It is a national scandal. I have posted on this topic so often I won`t list the previous but for those interested just type exceptional hardship into the search box. And  to complete the picture read of a single session at Ipswich Magistrates Court last week. 

JPs MINIMUM SITTING REQUIREMENTS

The beginning of a year is often the time to look back over the previous twelve months in whatever capacity takes one`s interest: in my case the numbers of magistrates thrown out of office and publicly humiliated by their names and the reasons behind their ignominy being published by the Judicial Conduct Investigations Office. 

The magistrates bench of England and Wales (my collective description) has halved in the last decade. There are currently around fifteen thousand. Generally it is a well behaved bunch as would be expected but with any group there are always exceptions who disregard the onerous requirements of their position even within their personal lives which seem not to impinge upon their judicial duties.  One of the most important aspects of the interview with aspiring appointees is to ensure that they understand the time requirement they must undertake in order to learn and constantly update their skills for the task. With the current shortage of personnel the adverts being published up and down the country for new magistrates might lead some to believe, as the adverts say, that anyone can become a magistrate. That is blatant nonsense although there are those who would describe that opinion as untenable in a society behoved to "diversity".  Nevertheless on considering the numbers of magistrates sacked for not meeting the minimum sitting requirements;  and these in my opinion are far too low to acquire the skills and knowledge to properly contribute to the required standard I would impose on wingers, the proportion is disturbing although the numbers are low.  

In 2017 fourteen JPs were sacked of whom 10 failed that minimum sitting requirement. In 2018 the figures were nine out of a total of 12 sacked and last year five were sacked for low sitting out of 20 altogether. It is too soon to judge whether the JCIO is becoming more lenient and understanding of the constraints that modern life puts on magistrates` available time  in the light of current shortages and two person benches  or whether appointments committees are placing such emphasis of that time sacrifice that fewer appointments are actually made. 

Over the years this topic has been the subject here of a number of posts.  By inserting Judicial Conduct Investigations Office in the search box some of those posts can be accessed for those interested.  

THE RISE OF CIVIL PROTECTION ORDERS

The recent tragic events at London Bridge and Streatham have led to the imminent enaction of increasing the time  those convicted of terrorist related offending must spend in custody prior to being released on license. Undoubtedly there will also be increased limitations on their freedoms when they enter that period of surveillance. Such limitations outside formal judicial sentencing on an individual offender are not just confined to those whose fanaticism seeks to kill us.  

When I was appointed in the 1990s apart from a very few exceptions the work before the bench was based mainly on hearing cases brought by the Crown Prosecution Service. Football banning orders introduced in 1989 were an early concept of civil orders punished  if breached by six months custody.  That simplicity began to change in 1998 with the introduction of laws based on a new concept: alleged offenders being considered under civil legislation based on their anti social behaviour. Those found guilty were issued with a civil order known as an Anti Social Behaviour Order a breach of which was a criminal offence punishable by maximum five years in custody at the crown court. From that time an increasing number of civil orders were made available to police and local authorities.  From their very inception I was concerned at the implications of that wonderful, so they said, innovation; the ASBO.  Having to impose such, I did my judicial duty but without enthusiasm. ASBO was but the first of many so called exclusion notices. For over ten years constables have had the authority to issue a written exclusion notice to anyone considered to represent a "risk of disorder", even if they are not drunk or have committed no offence. The aim is to enable the police to stop violence escalating by immediately removing potential troublemakers from the scene. As a matter of interest David Davis, the shadow home secretary at the time,  said the Conservatives would consider backing the proposals but said Labour "has form for making headline-grabbing announcements only to fail to follow them up"; another politician`s words coming back to haunt him.......as if they care; it`s happening all the time. Soon to follow was the CRASBO; Criminal Anti-Social Behaviour Order.  I sat on the very first hearing in this country where such was brought.  It was a shambles and we threw it out.  Notices can be issued to those whose presence "is likely, in all the circumstances, to cause or contribute to the occurrence or continuance in that locality of alcohol-related crime or disorder". 

Since 21/08/2009 Magistrates` and County Courts have had the power to make Drinking Banning Orders. DBOs on conviction came into force on 1st April 2010 in 25 Local Justice Areas. These also are civil orders which if breached give rise to a criminal offence. It has been recognised by many statistical analyses that around 70% of all crime is committed by offenders addicted to alcohol and/or drugs. Considering that many more individuals are addicted to the former rather than the latter the number of alcoholics with a criminal record must number in the millions. The NHS estimates that around 9% of men in the UK and 4% of UK women show signs of alcohol dependence.  All they do is disperse the problem elsewhere. Indeed it is just another reason why alcoholic offenders should be treated as medical cases and if necessary by compulsion just as schizophrenic and other mentally unstable patients can, under certain circumstances, be forcibly incarcerated in places of safety for themselves and the general public who must be protected. Hardly a week goes by without headline stories of the havoc wreaked by such people who are supposed to be being “cared for in the community” but are walking the streets.

 Since 2014 the police and courts have been given powers to fill what is described as a “gap” in providing protection to victims of domestic violence. Following an incident of domestic violence where there may be insufficient evidence to allow a prosecution the police and Magistrates Courts have a power to apply for and make orders that can protect a victim for a period of time.  Once again breach is a criminal offence.

The most recent civil order allowing for criminal proceedings if breached is the Stalking Protection Order. Where the threshold to commence criminal proceedings for the commission of an offence has not yet or will not be met. This allows for early police intervention in stalking cases.  A SPO is not an alternative to prosecution for stalking offences under the Protection from Harassment Act 1997. In such circumstances a SPO can be used to complement the prosecution of a stalking offence.

In the commercial world Landlords Banning Orders prohibit landlords and agents from letting or managing residential properties.  A banning order prohibits a person from renting out residential accommodation, engaging in letting agency work or engaging in property management work. A banning order also prohibits a person from holding a HMO licence or a licence granted under a selective licensing scheme. Local authorities must revoke a licence when it has been granted to a person who subsequently becomes subject a banning order. A banning order must last for at least 12 months. There is no upper time limit. A local authority must put anyone subject to a banning order on the national database of rogue landlords and agents. Without doubt there are many landlords who are renting inherited property they have been unable or unwilling to sell without professional assistance who are breaching current legislation and are unknowingly open to prosecution and we all are aware that ignorance is no excuse for law breaking.  

There is no doubt in my opinion that as further supposed legal loopholes in many aspects of our society`s activities are exposed orders as described as above will become increasingly common but they will not be universally approved by the public they will have been supposed to protect.  That way will lead from controversy to confrontation. The risk of public disorder will be a reality.  I hope our legislators will be aware of the risks. 









   

TV LICENSE EVASION WILL BE DECRIMINALISED

One again with unfailing regularity the question of the decriminalisation of TV license evasion is a subject for much of the media. This saga will have only one end; the law will be changed when the bargaining over the renewal of the BBC charter is concluded. Early comments here were on 9th March 2014 around the time of a previous government review of the subject although when I was blogging at another host [2009-2013 and now bankrupt and unavailable] that topic received more comments than any other. Last December I commented on the current situation. Questions are now being asked in the House of Lords and in particular that of yesterday querying whether transferring to the civil court would remove the threat of custody for non payment of an imposed fine. 

With the feeble opposition across from the government benches it is now the case that for whatever the cabinet wants to legislate it will be almost a foregone conclusion that it will be enacted.  TV license evasion will be decriminalised; it is just a matter of when, not if. 

UK NATIONALISM BEGETS UK POPULISM

"This blog by its very purpose has touched on political points only when matters of the application of justice and associated considerations have been applicable."  I wrote that previous sentence on 25th May 2016 a month before the Referendum. I am not inhibited from its repetition. There are two words which underlie our current political situation and which are bedevilling so many countries near and distant: nationalism.....identification with one's own nation and support for its interests, especially to the exclusion or detriment of the interests of other nations and populism.....a political approach that strives to appeal to ordinary people who feel that their concerns are disregarded by established elite groups. They are like peaches and cream or salt and pepper: foods which appeal to our basic tastes.  

The foundation of any democracy is not just the commonly held view of "law `n order". It is a populace`s consideration that that concept applies to all people in equal measure whatever their standing and that there is absolute confidence that it will be applied without fear or favour so that justice will not only be done but will be seen to be done. In the second month of the Tory`s spectacular election victory it is accepted that their outstanding success was owing to the unelectability  of a marxist antisemite leading the Labour Party being seen to enter Downing Street.  Lord Hailsham coined the term elective dictatorship in 1976 and it is a more accurate description of the political landscape today than was the case then.  Two developments have taken us further down that road. The first is the increasing unwillingness of the executive to respect the independent authority of the judiciary, the civil service, local government and parliament itself.  The second is the willingness of governments, especially after 1997, to introduce fundamental constitutional changes, many of them effectively irreversible. Perversely, it is the over-representation of democratic legitimacy as the dominant contemporary political virtue which arguably bears a large measure of responsibility for our current predicament. In practical terms since 2010 when there was a Tory led coalition followed by Tory majority administrations  there has been a deliberate reduction of resources available to all the arms of what can be loosely described as the criminal justice system from police, probation and prison services to CPS, courts and legal aid.  The reason they got away with this atrocious attack on our democratic fundamentals was that apart from those directly involved the general public couldn`t give a monkeys. But now that somnolent society has been rudely awakened to what has been obvious to those of us who have direct involvement. Today a prime minister who has excluded certain journalists from Downing Street briefings and has refused live television coverage of his  latest pronouncements is proposing changes in the law to prevent early release of prisoners already serving according to their sentences imposed in court. He has double counted or inflated  the numbers of police officers to be recruited over the next five years, the numbers of hospitals to be built and the numbers of nurses to be recruited.  

The European Union is directly responsible for the political turmoil throughout its member and former member states.  It has attempted to suppress any expressions of nationalism whether from Polish miners in the east  or French farmers in the west and all others in between. It has striven to keep the lid on the boiling kettle. The warning was there in 2014 and 2015 when Mrs Merkel rebuffed David Cameron`s pleas to amend the UK`s terms of attachment to the EU.     

What we are witnessing is the adoption of policies which are expressly designed to foster that latent nationalism which was first apparent north of the border and not appeased by the establishment of the Scottish Parliament in Edinburgh. And where nationalism goes populism is sure to follow. The antisemitism which Corbyn allowed to flourish within his party is leeching  out to a wider society. It is now as historically the canary in the mine.  Boris Johnson has about three years of his elective dictatorship to set this country on a course which will be seen to improve the lives of its citizens. It has been trailed that his first year will see attempts to limit the powers of the courts both with judicial review and the Supreme Court. Magistrates and lawyers know full well that at their  level the law is failing the public. Perhaps there will be a public reaction beyond the furore over those convicted of terrorism associated offences but as they say over the border I hae ma doots.