WHEN JURIES GET IT "WRONG"

The NHS, the monarchy, the Spanish Inquisition and trial by jury without wasting my reader`s time by asking the question, have one thing in common: they are or were in the case of that Iberian organisation held to be sacrosanct for the societies that created them. The collapse of everything supported in those beliefs by those societies was the prediction of all who argued that their removal or modification would lead to a world of chaos or worse.  A cartoonist`s favourite backdrop of a sandwich board.......THE END OF THE WORLD IS NIGH....... perfectly sums up those believers` attitudes if change were to take place. The NHS is regarded almost in religious terms.  Attempts to improve efficiency without just a shower of money being thrown at it are viewed as contemptible especially by the wokes of the Left and the luvvies on the Right. The Catholic Church seems to have survived and even thrived subsequent to the definitive end of the Spanish Inquisition when the Spanish queen regent María Cristina de Borbón issued a decree abolishing it on July 15th 1834. And with three waiting in line for the succession it would take a brave gambler to bet against the toddler prince taking his place in Buck House towards the latter half of this century.  Standing alone is the current accepted concept of trial by jury which appears to be being questioned as the best form of justice for all those on trial at the crown court.  Northern Ireland has  been subject to judge only trial.  Diplock courts, in which serious criminal cases connected with the Troubles were  tried by a single judge sitting without a jury, were initiated  in 1973. In the ensuing years well over 10,000 defendants passed through the system, the annual average having dropped from about 1,000 at the peak of the Troubles in the Seventies to about 400 in the early Nineties. These figures represented about a third of all serious criminal cases in Northern Ireland, a statistic in itself revealing of the huge impact of the emergency regime on the legal process as a whole.  They were abolished in 2007. To quote Wikipedia: "The Justice and Security (Northern Ireland) Act 2007 abolished the idea of "scheduled offences" automatically tried without a jury. Instead it allows for the Director of Public Prosecutions for Northern Ireland to certify a non-jury trial for any indictable offence provided it was committed either from a motive of "religious or political hostility" or by on behalf of a group which is both proscribed under the Terrorism Act 2000 and "connected with the affairs of Northern Ireland". The act seeks to address the concerns which led to the establishment of Diplock courts by enhancing jurors' anonymity to prevent intimidation, and increasing randomised juror selection to prevent bias.The Northern Ireland Office's explanatory notes for the 2007 act characterise its changes as "repeal" of "the Diplock system" and its replacement with "a new system of non-jury trial". On the other hand courts in such trials have much the same format as the pre-2007 Diplock courts."  When the issue of amending the rules on jury trials is alluded to the legal profession almost with one voice expresses its horror.  Last year with regard to the backlog of cases owing to the pandemic respected QC Geoffrey Robertson proposed the possibility of non jury trials under certain conditions. Robertson, who was born in Australia is quoted as saying,

“We believe sentimentally that trial by jury is a defendant’s fundamental right but why not give them the additional right to choose instead a reasoned verdict from a judge as they have, for example, in most Australian states. That would get some courts back and running, even if barristers and judges have to argue through their face masks and it would be a boon to defendants with good cases who do not want justice delayed”.

I am not aware if any scientific authoritative poll has been taken of lawyers on the subject but I would opine the vast majority would not agree with Mr Robertson.

And that brings me to the case of the six Extinction Rebellion protesters who, despite the judge`s advice, warning, information on the law and explicit direction, were acquitted by a jury last week of causing criminal damage by deliberately spraying graffiti or smashing windows at the Shell building in Belvedere Road central London.  This immediately reminded me of the case of Clive Ponting.  To quote Wikipedia once again, "While a senior civil servant at the Ministry of Defence (MoD), Ponting sent two documents, subsequently nicknamed "the crown jewels" to Labour MP Tam Dalyell in July 1984 concerning the sinking of the Argentine navy warship General Belgrano, a key incident in the 1982 Falklands War. After Ponting admitted revealing the information, the Ministry of Defence suspended him without pay. On 17 August 1984, he was charged with a criminal offence under Section 2 of the Official Secrets Act of 1911.The Prime Minister, Margaret Thatcher, had his pay reinstated once she had been briefed on what had happened. Ponting's defence at the trial was that the matter and its disclosure to a Member of Parliament were in the public interest. It was the first case under the Official Secrets Act that involved giving information to Parliament. Although Ponting expected to be imprisoned, he was acquitted by the jury. The acquittal came despite the judge's direction to the jury, and hence by definition a "perverse verdict". The judge, Sir Anthony McCowan, "had indicated that the jury should convict him". [my bold].  As a direct result a new Official Secrets Act was passed in 1989 to give government greater control of what was classed as "secret". 

With regard to that recent ER decision it appears that the jury must have followed the line that the end justifies the means; the end being the political end i.e. a natural outcome of radical left wing opinion that the "victim" opposed ER philosophy. None will ever know if the "victim" were a person or persons would the jury have come to a similar decision.  Would offenders of an extreme right wing group or Islamist persuasion committing such an offence or worse be favoured with a defiance of a judge`s direction and/or being lauded by their peers and fellow believers?  This type of decision making  has been the basis of countless atrocities by individuals, groups and nation states. It is nihilistic. It is a perversion of justice and it will surely lead to legal and/or political ramifications. The corollary which has been expressed here more than once is that the composition of juries and the competence of jurors must be examined in detail by a parliamentary or royal commission; whichever the government considers most suitable. The current situation of jury eligibility as laid down by government is available here.  

There is no doubt in my opinion whether or not the entire structure of trial by jury is re-examined that the individual requirements of the individual potential juror must be re-examined.  The most obvious need for a juror whose finding can be life changing for the defendant is a comprehensive understanding of the English language.  Many jurors have English as a second language with varying degrees of fluency.  This should be no surprise to anyone.  The Office for National Statistics (ONS) estimate that in 2019 nearly 9.5 million people living in the UK were born abroad,  just over 14% of the total population of the UK. Of these, 3.6 million were from countries now in the European Union and 5.9 million were from non-EU countries.  A basic understanding of simple statistics or other simple arithmetical concepts is not a requirement for a juror although many legal cases depend upon such an understanding.  Jurors do not have to be British citizens.  This facet of eligibility is one that I personally find hardest to accept.  

Lawyers are happy to work within a system that allows a single District Judge (MC) to be judge, jury and sentencer within the magistrates court.  Indeed some would hold that that single person bench is preferable for their clients {and themselves?} than a three person bench of Justices of the Peace. It therefore seems illogical for there to be such opposition in the wigged fraternity to at least a re appraisal of the current jury system.  But as I began this blog logic seems to be a facility missing in this matter.   

    

POUNDS HERE THERE AND EVERYWHERE

My musings and thoughts on our courts lie only shallowly beneath my consciousness; hardly surprising since I had retired from my professional life for the last ten years of my magisterial life.  To add to that almost continual subliminal state I have almost been bewitched by the court proceedings in Minneapolis where the accused`s defence counsel has been bravely attempting to offer reasonable doubt by way of generalities opposed to scientific and factual evidence provided by the State of Minnesota. And then the cost in real money of a human life flashed along the billions of  neurons and glial cells supported by connective tissue  and as if by magic I was thinking of the half a billion to a billion pounds unpaid fines apparently a permanent feature  of our courts system.  In 2015, 866,137 people were given fines totalling around £213,611,000, according to the Magistrates' Association analysis of Court Service records. A year later magistrates imposed 902,320 fines adding up to £263,763,000. In 2017, 915,541 fines were issued, totalling £362,490,000. In 2018  893,429 fines were imposed to rake in £355,773,000.  My next thought was ascertaining the number of fine defaulters eligible for imprisonment for non payment by their willful refusal to pay their fine or that they have been careless or thoughtless in not paying (known as ‘culpable neglect’). Nowhere in Mr Google`s box of secrets could I source that number so when I read of a case at Carlisle Magistrates Court I was surprised.  From my own experience I know that it is with much reluctance that magistrates order custody in such cases.  So my question is where are the statistics on such matters or is it a deliberate policy  of concealment?

At the other end of the scale it was recently that I noted some mind boggling fines issued by those self same magistrates courts.  In my own time I can remember imposing £50K fine for fly tipping and £23K and destruction of a dwelling on a property developer.  Small cheese compared to the decision of a District Judge at Birmingham Magistrates Court to fine Tesco £7.5 million. A Mailonline report is available here. 

A case which was not reserved for a District Judge resulted in the largest fine I have ever heard of imposed by magistrates. It was at Scarborough Magistrates Court.  The owner and master of a scallop vessel will have to pay over £200,000 after pleading guilty to multiple breaches of local scallop dredging regulations and national fisheries legislation.  Full details of that case are available here.  

And finally whilst thinking of large numbers of £50 notes coming and going a long running case reported of the goings on at Thurrock Council resulting in a very wealthy man adding to his piggy bank by actions which were severely criticised in the High Court last week. I conclude with a simple question; is it the case that in order to achieve levels of wealth beyond any definitions of ordinary, average, normal etc. corners have to be cut?   

WOKE IS A PERVERSION OF TRUTH

With almost every passing day there is an incident, comment, statement, rebuttal, accusation, or response to any of the previous that includes the word woke. Being a retired magistrate with opinions of a dinosaur [according to some] it took me a while to really appreciate the implications of such a term.  So that we`re metaphorically on the same page I list below some definitions of that word kindly provided by Messrs Google Inc.

 “aware of and actively attentive to important facts and issues (especially issues of racial and social justice)”, but today we are more likely to see it being used as a stick with which to beat people who aspire to such values"

"a slang term that is easing into the mainstream from some varieties of a dialect called African American Vernacular English (sometimes called AAVE). In AAVE, awake is often rendered as woke, as in, “I was sleeping, but now I'm woke.” 'Woke' is increasingly used as a byword for social awareness."

"a term that refers to awareness of issues that concern social justice and racial justice. It is sometimes used in the African-American Vernacular English expression stay woke."

Dinosaurs are generally not woke. eg to call a spade a spade is a phrase long used without fear or favour.  It has a long history.  It entered the English language when Nicholas Udall translated Erasmus in 1542. Famous authors who have used it in their works include Charles Dickens and W. Somerset Maugham among others.  In the current climate if used in public or especially  on the bench the speaker is liable to be rebuked as racist or at the very least as careless with language that could be interpreted as such. This is a result of woke.  Similar epithets are often thrown at those who in any way offer opposition to the concept of diversity or inclusive . When I suggested some months ago on Twitter that at age 18 an individual is too young to be a magistrate with all the responsibility that position holds I was greeted with a torrent of criticism some polite but most abusive much of it from lawyers. When on another occasion I suggested that restrictions on jury service be tightened to ensure eg that the individual had capable knowledge of English or a basic understanding of arithmetic etc again it was members of the legal profession who tweeted loudest against the idea. I wasn`t too happy when the then Lord Chancellor ruled that blindness should not be a barrier to sitting as a magistrate. The usual comments were made of diversity and representation and aids to be available to overcome the obvious shortcomings. As far as I am aware deaf people cannot be magistrates although I am sure that many are actively trying to change that position.  What is about to change is the exclusion for deaf people from jury duty. On March 9th the Ministry of Justice released the following:- "Deaf people requiring the use of a sign language interpreter will be allowed to take part in jury service for the first time, Ministers announced today (9 March 2021)."  The full statement is available here. 

The basis for this decision is that nobody should be excluded from participation in public life because of disability. It goes back to the woke mantra of equality of outcome by which at the end of the day all are equal. The concept of equal opportunity for all so that each might attain the highest level possible by his or her own abilities is now historical fascism according to a generation led to believe that equality is as near to nirvana that we mere mortals can reach.  These are the same concepts that brought an avowed marxist antisemite close to the door of 10 Downing Street in 2019. Nobody would accept that people of diminished height should be able to work as surgeons or police officers or firefighters although many such handicapped individuals are at the top of their chosen fields where their stature is of no consequence. Similarly profound deafness is no longer a block against such people reaching the top of most professions or activities.  Nobody with any sense would argue otherwise except perhaps at the MOJ the most woke of all government departments. Deaf jurors, even those skilled at lip reading, would be unable to have conveyed by a signing interpreter, the nuances of speech in a courtroom where witnesses are in a foreign and perhaps hostile environment; where some might be attempting to lie or evade; where emotions are subtle and where total reliance is upon the interpreter. The history of court interpretation of spoken language is pitted with queries which astute magistrates and judges can evaluate. Indeed I had many instances in my 17 years to interrupt interpreters  who plainly were not doing their job to the expected standard.  No such long stop will be available for a signing interpreter who is wandering from the accuracy required. And of course in a case where the signer is him/herself translating from a foreign language interpretation problems will multiply and considering the number of interpreting occasions involving non English speaking defendants and witnesses that number will be in the tens of thousands.  

Unfortunately no opposition is likely to be heard from the legal profession.  They are so scared of being accused of being against the whole concept of wokeness that with no logic whatsoever they will push on the one hand for the abolition of the lay magistrates bench of three  in preference for a single District Judge but scream at the very thought that availability for jury service is anything less than a universal human right and its denial a throwback to white supremacy however removed the ties are or were.  

There is a profound difference in requiring buses, trains, taxis, public places, universities, professions etc to be accessible to blind, deaf and physically handicapped individuals where their handicap is not a burden for an equitable society.  However, to sit in judgement making life changing decisions by those deprived of their hearing is a step too far.  But it is in line with a period of perverted thinking through which the troubled Americanisation of our society is passing; their history of revolution and slavery which is filtering so much of what should be a second age of enlightenment.  In essence woke is a perversion of truth. 

MUSINGS ON TUESDAY (MICRO OR MACRO?)

In most observations there is the micro view and the macro view.  Either viewpoint can be illustrative of an opinion. Following are recent examples of the micro view of what purports to be our justice system in its totality.

Unlike other European countries the United Kingdom has no statute of limitations for any criminal offence except for summary offences (offences tried in the magistrates' court). In these cases criminal proceedings must be brought within 6 months.  

Last week a 74 year old male was jailed after being convicted of multiple charges of sexual abuse against a 14 year old boy between 1976 and 1979. There is no doubt that the victim`s trauma had a lifelong effect. We have no knowledge of the offender`s history; the report of what was a very unusual case is, unfortunately, truncated to say the least except that we know there was no need for a trial as he pleaded guilty.  Understandably the victim`s name is withheld but it might have been useful if the judge`s remarks including presumably the offender`s previous convictions, if any, had been reported. It is my belief that it is becoming essential if the term open justice has any meaning at all that the live televising of courts must be a priority if our society is to continue to be thought of as free and open. 

In complete contrast to the preceding tale it was in 1973 and the following year that 24 trade unionists were arrested five months after a strike and charged with over 200 offences including unlawful assembly, intimidation and affray. Six pickets were also charged with conspiracy to intimidate.  Last month they were exonerated by the Appeal Court.  This is the link in the press report to the judgement.

Can any reader imagine doing a part time unpaid job for 50 years and rising to that occupation`s most senior position?  As a special constable Michael Rogers did just that at West Midlands Constabulary. To him I doff my virtual hat for his service. 

Since this post is about numbers I must conclude with a recent announcement from the City of London Police.  It is the smallest force in the country policing the square mile where the resident population is less than 9,000. It comprises a total workforce of 1,207 including 756 full-time police officers and 451 support staff. Recently it announced that it intended to recruit 40% BAME officers. The current ethnicity breakdown is as below.

When observations are made about the numbers of non white people in any occupation or situation and political capital is made from such declarations voices are heard that there is a racist undertone when BAME people appear to be over or under represented depending on the particular situation or circumstances but when pushed there are inevitably denials of quota systems in selection. According to 2011 census in the City of London there are resident 57.5% White British; 2.4% White Irish; 18.6% Other White; 0.5% White & Black Caribbean; 0.5% White & Black African; 1.5%.  I leave it to readers to ponder the position and ask the inevitable questions.  I would think the answers might pose as many queries as the questions.