JUDICIAL CONDUCT INVESTIGATIONS OFFICE MUST BE REFORMED

A decade or so ago a regular annual check on the judiciary regulatory body website now the Judicial Conduct  Investigations Office would have revealed decisions for about two dozen magistrates whose actions, speech and/or behaviour had fallen foul of the content of one or more of the 20 pages comprising The Judicial Conduct (Magistrates) Rules [available on line as a pdf file].  This year to date nine such JPs have had the ignominy of their case details published on line albeit in a highly abbreviated form. All such cases at the JCIO have the minimum of details published.  Indeed the whole process from initial inquiries to final decision is about as straightforward as the maze at Hampton Court. It is shrouded in secrecy behind the apparent clarity of the 20 pages of directions and procedures to be followed. Of the aforementioned nine, three magistrates were sacked owing to their failure to sit the minimum number of times required; viz. 13 half days annually.  I have always felt little sympathy for such people. They knew what they had signed up for and they could have discussed their time allocation problems with their bench chairman and/or Deputy Justices Clerk.  Of course the simple answer is that they might have signed up for the supposed kudos of being on the bench.   

Austin Molloy has been issued "with a formal warning after he attempted to solicit support from other members of the bench against a fellow magistrate who had made a complaint against him”. Such a bland statement tells us almost nothing.  From my own experiences I know very well the vicious backbiting that takes place in and out of the retiring room. 

Paul Latham received a formal warning when a "disciplinary investigation found that he had failed to inform his bench chairman and justices’ clerk that he was a witness in a case due to be heard on the same bench."  I find this extraordinary. A person supposedly chosen for the bench for inter alia having sound judgement being so foolish as to behave in this fashion seems lucky to be still in post. 

Krishna Patel appears to have been treated very sympathetically. I cannot recollect over the years of having heard of a similar situation but then again the whole process is shrouded in secrecy. She was issued with "formal advice after she failed to meet the minimum sitting requirements for two successive years". (my bold). 

Stuart Merrey was issued a "warning for improperly referring to his judicial status when providing a reference for another individual". This is perhaps of all the recent decisions listed here the one with which I most disagree. Many if not all my readers will at some time  have offered references on behalf of family, friends or colleagues.  The recipient of such references will judge their value depending upon the status in whatever form of the referee and his/her knowledge of the referenced person`s ability to fulfil the envisaged role on offer.  It seems to me perfectly reasonable that a respected JP should use that position on such an occasion in addition to or in place of any other qualifications s/he might have. 

David Senior received "formal advice for an ageist comment he made to a colleague and remarks he made in an email to his bench chairman". Perhaps he didn`t realise that the magistracy is about the most political correct institution in the land.

Howard Tate received a formal warning because  "whilst hearing a case in open court  he had used his personal phone to speak twice to a defendant who had not attended the hearing. He also made comments about his actions to colleagues which were not appropriate in tone". (my bold). As per Paul Latham above such a foolish action belies his appointment as a JP. 

All major professions have disciplinary procedures; most are available for the public to read. Many have the investigative process totally separate from the judicial process. And most allow representation of the accused if s/he so wishes at many or all stages. The JCIO is a star chamber. It is an anachronism in this age of instant and live communication of major institutions.  It is an afront to justice being done and being seen to be done.  It must be reformed.   

ALCOHOL ANKLE TAGGING

It has been variously estimated that around 70% of all crime is alcohol or drug related. Where alcohol has been indirectly related to a violent criminal event and not the principal offence in itself 39% has been the figure estimated.  These numbers are well known to all those involved in the legal system.  Curfews, overnight detentions, fines and occasionally imprisonment have failed to control the problem.  Those alcoholics with means can avail themselves of many medical and pseudo medical practices privately but they are a minority.  Today the government announced its latest initiative to get a grip of this problem; alcohol sensitive tags which measure alcohol in sweat  to be worn around the ankle.  

The results of the two pilots seem too good to be true. It seems to me that the counselling throughout the required period of use and the actions taken when breach is suspected will make or break this scheme. There is no mention in the press release of the probation service whose officers will be at the so called coal face in the supervision of these offenders and who will be responsible for bringing such offenders who breach  to court.  I certainly hope for the best but fear that this innovation will take its place with so many others where implementation has been ineffective for one reason or another. 

TEN YEARS ON//WHAT MAKES A GOOD MAGISTRATE?

Just over ten years ago I posted an item copied below. Readers might wish to add their own ideas of what makes a good magistrate.

BECOME A J.P. WE DON`T NEED TO KNOW IF YOU`RE A FREEMASON 

by TheJusticeofthePeace @ 15. Feb. 2010. – 16:55:52 

A few years ago........about ten or so...........when applying to be appointed as a Justice of the Peace a candidate had to declare which political party had been the recipient of his/her last general election vote, had to demonstrate that "common sense" was a faculty s/he had and could be demonstrated and that he was or was not a Freemason. With the current new advice from the Ministry of Justice the last of those three declarations has been lifted; the others were removed some years ago. So now those who objected to having to demonstrate common sense, owning up to which party they voted for or confirming or denying they were on the square can apply in good conscience to my boss Jack Straw via the Appointments Committee. 

I wonder what changes in the Ministry`s estimate of what makes a good magistrate will be mandatory in 2020? 

"NO SEPARATE PENALTY" MUST BE RE-THOUGHT

Looking back over two decades I can still recollect the feeling of uncertainty as a new magistrate when forced to agree with those more senior than myself at that time that "no separate penalty" was the appropriate sentence for some offenders.  It was just one of the many facets of life on the bench which were not covered in any form of training. If one were truly interested in "getting up to speed" it was a matter of self education. The logic as explained by the Sentencing Council  is copied below,  That logic is fairly applied in many cases where the offenders` are charged with multiple motoring offences the most common combinations being any two or more of driving without due care or speeding combined with a license offence, no M.O.T., using a mobile phone and/or no insurance.  However when dissimilar offences arising from the same "stop" by police are charged together the logic seems in my opinion to be awry. 

Where an offender is to be fined for two or more offences that arose out of the same incident, it will often be appropriate to impose on the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. ‘No separate penalty’ should be imposed for the other offences.

Where compensation is being ordered, that will need to be attributed to the relevant offence as will any necessary ancillary orders.

Possession of a controlled drug 

Misuse of Drugs Act 1971, s.5(2) 

Effective from: 27 February 2012 

Triable either way

Offence category Starting Point (Applicable to all offenders) Category Range (Applicable to all offenders)
Category 1 (class A) Band C fine Band A fine –                 51 weeks’ custody
Category 2 (class B) Band B fine Discharge –                   26 weeks’ custody

Official figures for police seizures of drugs are copied below- the police are having to face the inevitability that illegal drug use appears to be on an ever increasing scale. 

Class A

•Seizures of Class A drugs increased by 13% between 2017/18 and 2018/19, from 29,090 to32,753 seizures. Cocaine was the most commonly seized Class A drug, with 52% of all Class A seizures involving this substance in 2018/19.

•There were 17,038 seizures of cocaine in 2018/19, up 12% on the previous year (15,250 seizures). The quantity of cocaine seized also increased from 3,338 kilograms in 2017/18 to9,645 kilograms in 2018/19, an increase of 6,307 kg. This is the largest quantity of cocaine seized since recording began in 1973.

•The quantity of ecstasy seized increased from 0.7 million doses in 2017/18 to 2.2 million doses in 2018/19. This was the highest quantity seized since 2006/07 (6.6 million).

•There were 54,070 doses of LSD seized in 2018/19, the highest since 2005 when 1,137,000 doses were recorded, and an increase on the previous year (3,351 doses).

•Seizures of crack by police forces increased by 20%, from 5,443 in 2017/18 to 6,556 in 2018/19,the highest number of seizures since 2008/09. The quantity of crack seized by police forces increased by 73%, from 36 kilograms in 2017/18 to 63 kilograms in 2018/19, the highest amount seized since 2004.

•There were 22 seizures of fentanyl and 8 seizures of fentanyl analogues by police forces and Border Force in 2018/19. 

Crown Court statistics are not totally transparent on class A drug offences as they are often disposed off alongside other serious offences.  However where possession of class A drugs is the principal offence it appears that in England and Wales latest annual figures are 11,610 defendants and a conviction rate of 93%. It seems that there were an additional four and a half thousand offences of a similar nature. 

All the above is background information. Last week  a defendant appeared at Exeter Magistrates' Court where he pleaded guilty to assaulting an emergency worker. His early guilty plea was taken into consideration and he was jailed for 26 weeks and ordered to pay the officer £100 in compensation. In addition,he pleaded guilty to possession of diamorphine - heroin,  possession of cocaine and possession of cannabis. Magistrates ordered no separate penalty for these offences. [my bold].  The original press report can be accessed here. 

The bench of course proceeded directly as per Sentencing Guidelines.  However it is my long held opinion that "no separate penalty" in a case such as described above is a travesty.  More than that it is a disgrace to the concept of justice. The report tells us nothing about this offender`s previous convictions but it is not unlikely that he was not of good character. If class A drug possession was the principal charge at crown court I doubt he would have been treated so lightly. But the rule is if one matter is summary so are those added.  There surely must be a case for a complete re-think by the Sentencing Council on the principle of "no separate penalty". 

CONVID 19 AND A CHANGED SOCIETY

As much as any part of our society affected by Convid 19 I suppose our legal system has come under as much pressure as any but as is not unusual that system and its problems fly under the radar  of many (most?) commentators and most certainly the public it`s there to serve until of course one member of such is caught in its tendrils. The ridiculous behaviour of some chief constables, behaviour which is often unseen or unheard outside police headquarters, in ordering Joe Plod to issue tickets to those appearing to  contravene hastily assembled government guidelines on congregation and/or destination must be considered when this is all over so that those individuals promoted past their competence levels never again sit in places of authority. And those taking and executing those orders with the gusto of the Stasi must also be considered seriously at risk of undermining the confidence we still retain in the police generally.  Failure to do so will reduce for ever the status of the police to enforcers as they are perceived in so many less savoury parts of the so called civilised world. 

On March 24th I wrote; " By all accounts it is just a matter of time before we hear of the first corona virus death in a prison and the possibility of a serious riot in a prison is IMHO more likely than not."  Since then the MOJ press office, usually a volcano of erupting information, has been very quiet on the situation in prisons. As far as I have discovered it had been thought the first death in jail was on 22 March but Brett Moore, 48, died four days earlier at HMP Peterborough. In order to ease the overcrowding in prisons the MOJ announced that thousands of approved prisoners nearing the end of their sentences and not being of any risk to the public would be released before their due date wearing electronic tags.  On April 18th it was announced that six prisoners had been released who were not eligible for the MOJ`s scheme. That brought the scheme to an end.  As of April 24th it seems that there have been 15 confirmed deaths of prisoners with coronavirus in England and Wales - including three at HMP Littlehey.  On April 28th Public Health England said there were 1,783 “possible or probable” cases on top of 304 confirmed Convid 19 infections across jails in England and Wales. It is clear beyond argument that there is a total lack of duty of care in the prison system.  This has been known for many years. Indeed my two visits as an active magistrate to prisons built a century or more ago horrified me. To learn that just a little over £2.00 per prisoner is allocated for three daily meals per inmate does not surprise me. On my latter visit about ten years ago the amount was around 90p. Our treatment of prisoners is a national disgrace and the current pandemic has merely lifted the veil that has encompassed the institution.  Whether it leads to the required remedies is moot. 

It is reckoned by some that a third of males over thirty years of age have a record on the police national computer. The courts system at the best of times since 2010 has struggled to keep pace with the nation`s requirements. Kenneth Clarke as Secretary of State for Justice and Lord Chancellor in the Coalition in 2010 was the first Cabinet member to proudly declare that he had agreed a budget cut of 23%. And from then until now the MOJ has suffered cuts upon cuts but nobody cared because for so many in and out of government it didn`t bother the general population how the justice system operated. The result is courts have been underfunded and forced to ration the numbers of trials at the crown courts.  Government statistics show that the average crown court case takes 525 days to go from offence to completion, up 34% from 392 days in 2010. Currently crown court cases have reduced by about half owing to the virus. There is more than a mere murmur from some high flying lawyers that the jury system could be temporarily suspended to be replaced by single judge only trials. Perhaps if they advocated three judges sitting as in the lower court the idea could fly and even be considered by some as the procedure they would prefer even in future. Most magistrates are self isolating, many of their cases being taken over by District Judges; surely a portent for the future?  The Single Justice Procedure is running wild with up to 60 cases being rubber stamped in a two hour session according to one J.P. who has published his opinions. 

The legal world is facing inexorable change.  It is a given that many small firms of solicitors who rely upon conveyancing will go bust. Larger firms will certainly be shedding staff after the lockdown.  The Bar is grinding to a halt and is no longer a target for young gifted graduates. The state within prisons is unlikely to improve and magistrates are increasingly likely to be replaced for trials at least by District Judges. Convid 19 has truly changed our society for ever and ever: that phrase not to be completed by an "Amen".  

SINGLE JUSTICE PROCEDURE: A J.P.`s ACCOUNT

The Single Justice Procedure was initiated subsequent to my retirement from the bench and so my knowledge of such is necessarily limited.  My initial reaction on learning about this innovation was not exactly one of enthusiastic support.  It seemed that the onus was more on expediency than innocent until proved guilty.  It is therefore quite interesting for me to copy from today`s announcement from the Courts and Tribunals Judiciary of the experience of a magistrate operating the SJP.  One point he makes is quite remarkable insofar as he writes of dealing with 60 matters in his two hour shift whilst acknowledging the juggling and use of two or more on line facilities simultaneously including communication with his legal advisor.  Readers will have their own opinions of the benefits of this method of streamlined justice to those outside the offices of the MOJ in  Petty France; namely the defendants.  

 "Supporting the justice system from home
7 May 2020 |News|COVID-19

As we continue to find out how judicial office holders are adjusting to new ways of working during the Coronavirus pandemic, Ben Yallop, who is a magistrate in North Hampshire, describes his experience of sentencing from home.

Ben writes:

Ben Yallop JP

On 28 April I sat in the Single Justice Procedure (SJP), one of the first few magistrates to do so without being physically present in a court building.

SJP enables a single magistrate to deal with minor criminal offences such as travel fare or TV licence evasion. My experience has been of traffic offences: speeding, no insurance and other similar matters. A notice is sent to the offender who has the chance to enter a plea and, if appropriate, mitigation. Those admitting guilt who indicate their willingness to be dealt with online, and those where no plea is received but where the case can be found proved, are sentenced by a single magistrate working with a Legal Adviser. SJP was introduced about five years ago and is recognised as an effective, proportionate and fair way to deal with a large number of straightforward cases quickly, allowing time to focus on more complex and contested cases.
Working together

Ordinarily, lists are dealt with in a court building although not usually, in my experience, in a courtroom. The magistrate and Legal Advisor work from an iPad and laptop respectively in the retiring room. Following permission from the Senior Presiding Judge for a short period of remote working while government restrictions are in place, the Legal Adviser and I remained in our respective homes, as it happens about 12 miles apart. The Legal Adviser sent me the court list in advance via secure email, and I was able to check it as usual to ensure that I did not know any of those charged personally. He also directed me to relevant Sentencing Council guidelines before we started.

We were face-to-face through our laptops using Skype for Business. To begin I had to confirm that I was alone in the room, that I would not be disturbed and that my ‘Display Screen Equipment’ was appropriately set out. The Legal Adviser had two screens in front of him, one with the HMCTS resulting tool running and one, which he shared with me, displaying whatever evidence and case information I would need to see. I had the court list on a mobile phone and the Legal Adviser on my laptop. I clicked between him and Sentencing Guidelines. It took more technology than usual, and some effort and increased concentration to move between everything.

We were slightly slower than usual but we finished a list of 60 matters in exactly two hours, as hoped. Of course, as normal, some matters could not be dealt with; those pleading not guilty will have to come to court, as will ‘totters’ (those reaching 12 points) for the consideration of disqualification. But it still felt like a decent number to remove from the backlog.

The Legal Advisers, I am told, are pleased to be addressing the build up of traffic cases and to be busy while keeping safe. My experience of remote working in SJP has been that it is not much different, albeit a little slower and a little more demanding. Just two hours was quite tiring, and I would have preferred to be in a court building, but at least we are keeping going in the face of these unprecedented challenges and doing what we can to give drivers clarity on the state of their licence and protecting other road users.

None of this would have been possible without the hard work of many people within the justice system, and, particularly during my stint, a typically excellent Legal Advisor. Sitting as a Magistrate is always a privilege but perhaps never more so than now when so many are working so hard to keep our justice system going.

Ben Yallop JP
North Hampshire"

ANOTHER M.A. TILT AT THE SENTENCING WINDMILL

In today`s Times [behind its paywall]  Magistrates Association chairman John Bache has made yet another request from that organisation that the magistrates courts` limit of six months custody be increased to twelve.  I posted five years ago (copied below) on the arguments made by his predecessor and my opinion at that time.  In general that opinion has not changed but of course the circumstances surrounding the current argument have changed beyond recognition.  Expediency is a common reason for fundamental changes in the way our society is run when the clamour is loud enough but it often takes years for those changes to be revealed as detrimental to our well being in some form or other when what would have been obvious in the situation  had been more carefully considered before the decisions had been taken.  An example which comes to mind was the railway closures in 1963 as a result of The Beeching Report which was adopted by the then government; it resulted in the closure of a third of the rail network and the scrapping of a third of a million freight wagons.  The removal of tram systems in the 1950s and 60s to be replaced by buses was also a failure to consider properly future needs. All the tram systems installed in cities over the last decade have been manufactured abroad.  At this time of crisis it has become known there is no current vaccine production facility in the UK; a failure which the government is hurriedly trying to overcome.  And so it is with the courts system.  On one hand there are those who would temporarily  dispense with juries in crown courts and on the other lobbyists who are seeking to remove magistrates courts custodial powers entirely.  If the wishes of the Magistrates Association were to be granted consider what would be involved.  First of all there are very few offences where the current maximum sentence available is up to 12 months custody; one such is Offences against the Person Act 1861 (s.38) Assault with intent to resist arrest and another is a newly created   offence of  Assaults on Emergency Workers (Offences) Act 2018.  The vast majority of other offences carry maximum sentences of two years or more.  Section 1(2) of the 2018 Act provides that the existing offences of common assault and battery are triable either way and carry a maximum sentence of 12 months’ imprisonment and/or an unlimited fine, where the provisions of section 1(1) are met. Section 1(1) is met where the common assault or battery is committed against an emergency worker acting in the exercise of functions of such a worker. Another totally unlikely manipulation of sentencing to render the M.A.`s pleas even negotiable would be a reduction in the relatively few offences where the current maximum is two years custody. These are mainly offences under various Sexual Offences Acts.  A public reaction to lowering the tariffs to facilitate  summary or either way hearings would be politically unacceptable for a Tory government.  It is often overlooked or unconsidered in this argument over custodial limits that only slightly under 4% of all magistrates courts sentencing results in immediate custody.  The recognised overcrowding of our prisons is unlikely to be reduced by a Ministry of Justice already heavily criticised in this area if it appears to be exacerbating this situation.  

It is my humble opinion that this perenial target for the Magistrates Association is akin to Don Quixote`s windmill.  Whenever a possibility appears, and this time it is Mr Bache`s lance in the spotlight, there is a quick snort and the lance is lowered ready for the charge.  It will fail this time as it has in the past and will in the future. 

4th November 2015

For over a decade there have been arguments, reports and informed suggestions that magistrates should have enhanced sentencing powers; namely that the current maximum of six months custody be doubled.  No other  initiative or  sentencing possibility has been more enthusiastically supported by the Magistrates Association although whether that reflects opinion of magistrates in general is a moot point. It is not difficult to discern the reason for such changes; it has nothing to do with the efficiency or lack thereof of the crown court but everything to do with the lower cost of running magistrates` courts.  These lower costs might be self evident but are very difficult to find in an authoritative published form.  We have figures such as these but  considering that the courts are run by Her Majesty`s Courts and Tribunal Service if one had expected clear and  unambiguous figures in its annual report one would have been disappointed.  114 pages on such topics as climate change and  carbon management plan but the daily cost of running the various courts under its control are nowhere to be found.  IMHO this cannot be an oversight. It is an omission by commission.  Various ratios have been offered historically on the relative costs of crown and magistrates` courts  and from recollection the former costs two to three times the cost of the latter but I am open to correction on the detail. 

These and similar arguments will become increasingly vocal in the near future because the Law Commission has recommended that the lower courts be allowed to sentence for up to twelve months custody.  As expected, Magistrates Association chairman Richard Monkhouse quoted in the Guardian was quick to endorse such a possibility, “Magistrates are trained, ready and able to handle cases with longer sentences – we see this as an opportunity for the government to trust our members to do the job they signed up for.” From the opposite side of the sentencing divide no doubt there will be a response from the Howard League for Penal Reform long opposed to magistrates` courts having any powers at all of custodial sentencing....."The Howard League repeats its objection to the use of short prison sentences, which are ineffective and damaging and believe magistrates’ over-use of custody could be prevented if they were required to remand an individual to the Crown Court for a custodial sentence".

Having been compulsorily retired by HMCTS earlier this year although the impending imposition of the Criminal Courts Charge made me jump from the good ship justice a little earlier than required  I can perhaps  reflect more objectively than sitting J.P.s on this situation.  There is an unhealthy number of them sitting only for the minimum required period demanded by the Ministry; 26 half days annually.  The actual numbers are kept under lock and key by the country`s justices` clerks but from my earlier analysis of all J.P.s  sacked by the   Judicial Conduct Investigations Office about half were for failing to sit for that minimum number of times.  I am informed by my own former colleagues that the number of two person benches is currently as high as it has ever been and that is with a reduced number of courts.  In addition there is virtually widespread agreement that training for magistrates is not as effective  it should be and that change is around the corner.  The appraisal system is not fit for purpose. These  facts alone give cause for concern.  Whilst a winger might just get by sitting for three hours every fortnight for a chairman to be competent and to be seen as being competent such a sitting level is totally inadequate.  However the Ministry is loathe to increase this minimum sitting requirement for chairmen because of the dire and increasing shortage of those eligible for the step up to the middle chair. 

I doubt the legal profession is any too happy about the proposals. Young lawyers of both persuasions are unlikely to offer their services for an increased number of appearances at magistrates` courts where their financial rewards make the junior doctors current pay levels seem to be in the stratosphere. 

The Law Commission`s proposals will IMHO be unlikely to come to fruition and with the impending reversal by Michael Gove over the Criminal Courts Charge likely to lead to mixed headlines he most certainly will not wish to make columns in the broadsheets by allowing magistrates increased sentencing powers at least not in the near future.