JUDGE ONLY TRIALS??

Historians or perhaps pedants will wax loudly that the history of trial by jury in England goes back to Magna Carta in 1215 which I suppose has some basis in fact if one is referring to the trial of lords and nobles of the realm. So: a very brief history....... For the common man or woman no such justice was available; a bench of magistrates consisting mainly of local landowners and/or power brokers was the seat of justice with considerable sentencing options; although the most serious offences of the day were sent to Assize Courts. Up to the middle of the 19th century JPs could sentence offenders to hanging. They could also sentence to transportation to North America and the Caribbean, to whipping and the stocks and to fines. Needless to say these benches consisted  of men only. It was in 1920 in the aftermath to the Great War that women became eligible for juries. The acts of 1825 laid down the following qualifications for jury service. In England and Wales they were  that a juror should possess an income of £10 a year from real estate or rent charge or £20 a year from leasehold of not less than twenty-one years or secondly should be a householder living in premises which were rated no less than £20 a year or in Middlesex and the County of London specifically with a rateable value of not less than £30 a year or thirdly should occupy a house containing no fewer than 15 windows. It wasn`t until 1962 that the property requirement was abolished. There are specific rules where trials without juries are the norm but that fact is of no concern in this instance. This post is concerned with the current situation as it affects trials in the crown court where the normal jury consists of twelve and where in the first instance a unanimous verdict is required reducing to 10/2 if so judicially directed.               

Owing to the current crisis over corona where crown  court trial timetables have disintegrated on top of ever increasing delays  because of court closures and reduced judicial sitting times there is a backlog of 41,000 trals with an estimated five year time period for clearance. This is intolerable.  To expect witnesses to give evidence of events five years in the past is recognised by all involved as ridiculous and a real threat to justice being done and being seen to be done. The lord chief justice Lord Burnett has mooted that trial without jury must be an option when considering how to reduce the backlog.  This idea has had a  mixed response with some QCs for and some against with a similar divide amongst other legal professionals. My opinion for what it`s worth has been made here more than once; to expedite matters a judge of the crown court should be enabled to sit with two chairman  magistrates who have been approved and have experience of sitting with a judge on appeals to the crown court by offenders arguing their conviction at the lower court.  There are those who would argue that the judge would overwhelm those JP assessors but my personal experience negates that apprehension. Many former colleagues as well as myself were and are  impressed with the inquiring and respectful approach of crown court judges when discussing facts of an appeal. As a plaintiff at a tribunal appeal I personally was a plaintiff facing a bench of a high court judge and two unrobed assessors.  If a high court judge can have his/her interpretation of the facts open to discussion so can a crown court judge.  Indeed the finding of fact would be the only task of the JPs; all other processes would of course remain with the judge. 

I cannot for one moment believe that the current delays will be allowed to continue. The MOJ will not relieve the list by allowing magistrates courts to have increased sentencing powers.  It is highly unlikely that some or any either way offences will become summary offences and no either way offences will have the defendants` right to choose removed. So there is a simple choice facing the Lord Chancellor to reduce the stain on justice of delay; judge only trials or judge plus two suitably qualified magistrates.

MAGISTRATES` ETHNICITY

This is a very short FYI  latest statistics table on the gender and ethnicity composition of the magistracy.

EXCEPTIONAL HARDSHIP AND APPROPRIATE RESULT

I`ve reported here on many occasions on the excuse often put forward by those disqualified from driving as totters; an accumulation of 12 points on their driving license; namely "exceptional hardship".  Putting these words into the search box will open many of these past posts for those with time and interest. All too often both before and since my retirement I have been astonished at benches` decisions favouring the offender on many occasions.  However today there is a report in the Gazette and Herald of an appeal in the crown court by an offender whose plea of exceptional hardship was rejected by magistrates at his original hearing a few months ago. The words of the presiding judge flanked by two magistrates are as clear and damning as any similar I have ever read.  His reasoning and those remarks should be essential learning material  for all magistrates.

BACK TO THE FUTURE

The government doesn`t jail people; courts jail people.  Such a simple statement of truth but one which Tory governments seem to consider unimportant and there to be defied.  Today`s headline in TheTimes is so revealing.  

It was only yesterday in a written answer the Lord Chancellor wrote:-

Robert Buckland: ...network for released prisoners or people on community orders. My ambition is to ensure that community sentences are so robust and effective that, when it comes to decision making by judges and *magistrates*, they will be the default choice as opposed to very short sentences that can frankly do more harm than good.

To quote the song, "what a difference a day makes". Just as in 2011 during and after the riots which enveloped many cities the then Tory dominated government issued "orders" to magistrates courts that defendants facing either way charges should be sent to the crown court. Regular readers here might be aware that last Tuesday June 9th I wrote of my own experiences at that time when my two colleagues and I defied such an instruction issued by the Deputy Justices Clerk to the whole bench.  It seems that today in its headlong drive to appear strong and the party of law and order the Lord Chancellor who should know better with his reputation as an honourable man has seemingly bowed to the pressure of yet another Home Secretary with well defined signs of an authoritarian outlook defining her post. All of which leads me back to my opening remarks. There is no doubt that those arrested on charges associated with public disorder will not necessarily have the benefit of legal advice in the police station owing to there being fewer lawyers undertaking such work because of the derisory conditions associated and they themselves being unable to pay for such advice through lack of means and/or knowledge.  I would add that it is a virtual certainty that most if not all such defendants`cases  will be heard before a single district judge and not a bench of magistrates for the simple reason that there will be little likelihood of those paid judges openly defying the "send to crown court orders" and make no mistake they will be "orders" however the instructions are dressed up for private or public consumption.  Taking matters a stage further I doubt that even after a plea or finding of guilt in whatever court that a timetable of 24 hours can be achieved without dreadful harm to the offenders` rights of representation.  To publicise an intention for custody to be the result of this speedy 24 hour so called "justice" is a further travesty of our rapidly declining concept of fairness within our justice system. For the last five years or more, government has repeatedly done all things possible to avoid the prisons being further overwhelmed by prisoner numbers far in excess of what can be coped with without the rights of the inmates being so eroded that it is a disgrace to our once civilised society.  There is also the issue of bail. It is hard to see that that option will be honoured to the clear letter of the law if matters proceed as appears to be the case. As far as actual sentencing is concerned that as in 2011 judges will emphasise that "deterrence" was an issue which accounted for sentences which not just stretched the Sentencing Guidelines but drove a coach and horses through them as justification. 

It must now be obvious to all but the most obtuse that our civil rights as citizens of a country to be ruled by law are being eroded at an ever increasing rate. Of course the hard right "Brexiteer" wing of the Conservative Party in and outside parliament will rejoice and allow our blustering, incompetent and although highly intelligent buffoon of a prime minister to continue unchecked until some of his own discarded high flying M.P.s decide enough is enough. In the meantime the fascist Left will milk the forthcoming riots for all that they`re worth relishing the opportunity for true and heavy violent reaction. Police will be again caught in the crossfire undermanned with their own senior ranks looking backwards as well at what awaits them ahead on the streets.

The feelings of distance by many black people are entirely justified.  The history of policing misconduct is an open wound for them and others but we are in a place now where the prime minister is learning from and following the Donald Trump Playbook.  Real democracy doesn`t disappear in a flash of gunpowder; it is killed by the salami slicing of our liberties. The slicer is well and truly plugged in. 

JUDICIAL DINOSAURS WILL SOON BE EXTINCT

I will be unsurprised if within the next few months we will see more than the expected appeals against guilty outcomes in both magistrates and crown courts based upon a perception of racial discrimination.  No doubt police will face a rising number of such accusations. There are some highly motivated individuals at all levels of society who will use the current unrest to further their political cause. There will be a few honourable people involved but it is unlikely that ultra left wing organisations and their members who flourished under the leadership officially and unofficially of Jeremy Corbyn and his Marxist cohort will allow this opportunity to pass as a pathway to their target of discrediting everything a freely elected although incompetent government has to offer to our democracy.  There is no doubt that there has been and still is a minority of police officers at all levels of seniority who are racist.  The scandals of American policing whilst not being the norm in this country have a similarity insofar as the internal system of governance has not been up to the task of clearing out those officers who have flagrantly abused the system to their own evil advantage.  The level of misconduct that must be breached; "gross" misconduct is often out of step with the reality of the English language.  The secret tribunals closed to scrutiny unlike those for other professions eg medical or legal do not inspire confidence in those over whom the youngest inexperienced officer has such power; we the great British public.  The stain of judicial racial bias has been allowed to grow over the blanket of jurisprudence to such a degree that sentencers including magistrates are instructed to examine their supposed own unconsciously held bias.  All those on the bench must undergo lectures or to use the misappropriated term "workshops" on discrimination within the judicial system and its recognition and elimination.  No doubt there are still a few older judges and magistrates who harbour opinions perhaps stemming from their memory when in many parts of the country there were few black or ethnic minority people and who consider the many millions of BAME British citizens newcomers and not belonging. These judicial dinosaurs will soon be extinct.  

Similar discriminatory thoughts  I`m certain were common when Huguenots arrived in England from oppression in France.  They were French Protestants in the 16th and 17th centuries who followed the teachings of theologian John Calvin. Persecuted by the French Catholic government during a violent period Huguenots fled the country in the 17th century creating Huguenot settlements all over Europe. There are many places of worship, public buildings and residential areas which owe their being as a result of the influx. Perhaps the only worthwhile act of Oliver Cromwell was to allow Jews to return to England from which they had been expelled by Edward I in 1290. Immigration of Irish families after the famines of the 19th century and further influx of Jews at the turn of the 20th century from massacres in eastern Europe and before WW2 have been a wonderful stimulus to the UK economy as was the open door policy to Ugandan Asians from their expulsion by Idi Amin in 1972. A government promise to ease immigration for people of Hong Kong as a result of Chinese threats of direct repression will prove to be a boon for UK business and commerce. Indoctrination of the remaining dinosaurs in the judiciary by the aforesaid means are a waste of time.  The secrecy of proceedings surrounding those who behave so outrageously that comment becomes public is no apparent deterrent to others of similar ilk. However those who do transgress are publicised to such an extent that it discredits the 99% of honourable men and women fulfilling their judicial oath to do justice by all. And that feeds the marxist lobby that the whole system must be brought down and replaced. 

I can honestly reflect that during my time on the bench I heard more unpleasant remarks from black JPs about Jews than derogatory utterings from the white majority about any ethnic group.  Indeed around the time of the riots in 2011 I was chairman in a case of two black males accused of stealing some hifi equipment with three white police officers involved giving eye witness accounts.  I clearly recollect overstepping the "clarify but don`t cross examine" mantra of magistrates` bench limitations of an incompetent prosecutor  to ask further questions of my own which resulted in the obvious innocence of the accused pair.  As they left the court I said to them, "Tell your family and friends that a bench of three white middle aged magistrates found you not guilty despite so called evidence from three white police officers". I hope that they did. 

A BRIEF HISTORY OF TIME; NAMELY 12 MONTHS

Yesterday there was a House of Commons debate during which there was the question noted below on magistrates` sentencing powers:-

This perennial answer to a perennial question prompted me to relook at some of my previous comments on this subject about which I have consistently opined that the Magistrates Association and a few others might cry to the moon for increased sentencing options; namely to 12 months custody, but that cry will be as flotsam on the waves of a balmy ocean. For those interested in this  brief history of time; namely that 12 months, just type "magistrates sentencing powers" in the search box.

Up to the middle of the 19th century JPs could sentence offenders to hanging. They could also sentence to transportation to North America and the Caribbean; to whipping and the stocks and to fines. Imprisonment was used mainly for debtors.  So for some "hangers and floggers" the good old days are far behind but for the most part I believe that a majority of my former colleagues is satisfied with the powers they currently possess.  

CPS FAILINGS "OFFICIAL" READ ALL ABOUT IT

Just a snippet today on a matter that was becoming evident some years ago and therefore within my personal knowledge....just. The sacking......oops......redeployment of CPS prosecutors began a decade ago. It was apparent from then onwards that some of those freelancing prosecutors appearing before us were ill equipped for the job either through personal incompetence or from being poorly briefed insofar as they lacked some or all of the details of the cases allocated to them. In its latest report published this week HM Crown Prosecution Inspectorate (HMCPSI) has made these failings official. Read the report here. 

DRIVING A COACH AND HORSES THROUGH LOCKDOWN LEGISLATION AND THE INCOMPETENCE OF POLICE, CPS AND COURTS

On 6th April I posted "COVID-19 PROSECUTION// THE FINAL CHAPTER".  The case was widely reported.  Provisional data released two weeks ago shows that under lockdown legislation 13,445 FPNs have been recorded by forces in England between March 27 and May 11 while 799 were issued in Wales in the same period – a total of 14,244. National Police Chiefs’ Council (NPCC) chairman Martin Hewitt is now being urged to launch a review of all fixed penalty notices (FPNs) handed out in England and Wales using the regulations. Of the 43 regional police forces in England and Wales, the Metropolitan Police has recorded the highest number of fines with 906, followed by Thames Valley Police with 866, and North Yorkshire with 843. Warwickshire issued the fewest with just 31. How many of these fixed penalty notices have been paid is unknown but it is likely that the 50% reduction for prompt payment will have persuaded a large number to have been settled.  And now the revelation by the Director of Public Prosecutions that "most of the people wrongly charged under the Coronavirus Act were probably not legally represented" has set the cat amongst the pigeons. Providing that the fine is paid within the specified period and the matter is dealt with outside the criminal courts then it will not amount to a conviction.  If, however, it remains unpaid and the matter is brought to the magistrates court where the defendant is convicted a criminal offence will be recorded and will have to be declared when requested by a prospective employer or professional body. 

Like many of the so called regulations and guidance issued by the government since February those responsible for the drafting have many questions to answer; their incompetence having been compounded by the police, the CPS and the courts.  The same tendencies by police currently in America have been seen here albeit on a much reduced scale:- policing by the Stasi playbook. I hope the Home Office with its dire interest in the dispensation of true justice takes note but when the prime minister operates a do as I say policy driving a coach and horses through his own legislation but excludes his most important advisor from that stricture I doubt it.