FOR EVERY PLAN THERE`S SOMETHING TO GO WRONG

This post is short and as sweet as your taste buds allow. Please click here for government`s plan for magistrates courts. 

THE COVID EFFECT ON JURIES, DISTRICT JUDGES AND MAGISTRATES COURTS

I suppose it could be said that a jury system of sorts in England began during the final year of the reign of Henry II in 1189.  A very interesting history of the jury as a legal instrument in England can be accessed here. In Scotland a jury consists of 15 members, believed to be the largest in the world. The system there of three available verdicts is also unique. Apart from the period of World War 2, an English jury of 12 is the norm and until 1967 a unanimous verdict was required.  That was changed when majority verdicts were first introduced by Section 13 Criminal Justice Act of that year. Covid-19 has changed government thinking on the jury per se as it has changed thinking on many aspects of our lives and customs. The pandemic descended upon us when half the country`s Magistrates Courts have been closed since 2010 as part of a 23% cut in funding.  

In the Crown Court there is a backlog of 40,000  trials owing, in addition to restrictions around Covid,  to the government`s refusal to pay for judges to work what can be described as a normal working week. In other words the current scandal of those awaiting trial notwithstanding a backlog of 400,000 cases in the lower court is partly self inflicted. As a result various "temporary" changes to the jury system have been mooted.  In recent days the Lord Chief Justice no less has suggested that juries could be reduced to speed up the trial process.  Whether he meant that smaller juries would require smaller Covid secure rooms in which to deliberate or smaller juries would deliberate more speedily is unknown.  Perhaps he had both outcomes in mind. What is not in doubt is that 1,600 defendants have been remanded in custody for over a year well in excess of the legal custody time limit of six months. However not only are defendants not facing due process within a reasonable time; witnesses and complainants who might be traumatised by their involvement in the alleged events will have to relive their experiences perhaps two years subsequently when their memories are less than clear and their mental health still less than perfect.

Other suggestions to ease the backlog have been suggested. Currently appeals against verdict or sentence at magistrates courts are resolved at the crown court with a judge presiding and two magistrates assisting. That bench construct could be applied at crown court for defendants who have chosen crown court jury trial for an either way offence instead of a summary trial at the magistrates court. The numbers of those electing crown court trial on an either way offence do not appear to be listed on any government statistics.  In addition it is an anomaly in England unlike the rules in Scotland that a defendant on an either way charge can actually choose where to be tried. It is an anomaly that should be abolished even although there would be an anguished outcry from the legal profession perhaps more concerned with reduced fees than lack of choice for their clients.  However many lawyers would be pleased if the numbers of District Judges (MC) were increased from the current 124 and they were to preside over all trials with or without assisting magistrates. 

Notwithstanding all the above there is no doubt that flaws in the justice system overlooked for a decade are coming to the fore. Ancillary services especially policing and immigration control are also being questioned. There are no easy answers to difficult questions but my personal fear is that populism of either or both Left and Right will make increasing inroads into our less than perfect democratic system of governance suggesting that there are indeed simple answers just awaiting application. With our current prime minister and his team of toadies perhaps we are closer to that situation than we would like to believe.  

THE PRICE OF JUSTICE

There cannot be many people with even the slightest interest in our justice system who are unaware that since 2010 the Conservative governments have closed  half the country`s magistrates courts leaving around 150 to serve the needs of about 60 million people. Despite guarantees to anyone interested that the travelling time for many who must attend these courts either as workers or witnesses by public transport would not exceed one hour  the result is that often up to double that time is required.  All this happened because successive governments have lost sight of what courts are for. For centuries they had been a public service whether for medieval land owners and nobles or for the king`s law to be available for all citizens. An interesting brief history is available here.   However subsequent to the financial crisis of 2008 it was decided by the high and mighty who rule over us that such a concept was no longer tenable and courts had to demonstrate their "worth" in £ to the communities they served.  And so the great sell off began. 

There is little doubt that some of the properties many of which occupied prime town centre sites were sold at below market value.  The whole system has been shrouded in a limited availability of facts apart from courts` dates of closure and final selling prices.  Much of the transfer of these courts has been done with a newly formed government agency known as Homes England.  An inquisitive individual associated with the business of property development has sourced an interesting account of how to some extent this agency operates. The document (5 pages) at the end of my post details the acquisition of Stafford Magistrates Court which closed 28/4/2017 and was sold for £435K  7/9/2017.  It is currently being developed as a car park.  

Worksop Magistrates Court was closed 31/3/2016 and sold for £115K 31/10/2016.  That site is currently being redeveloped into 13 flats in an area where the average price for such properties is £103K. It is unlikely that these two developments as well as the hundred plus others similar will have made anything but tidy profits for the professionals involved.  In both  these examples about six months transpired from closure to sale.  Knowing what  problems and unexpected issues arise with any property sales especially commercial property sales involving change of use and planning permission some might posit that discussions with interested parties had been taking place prior to closure of these courts. 

It is beyond any shadow of doubt (to coin a phrase) that this government has put a price on justice. Whilst the NHS is treated totem like as a national treasure justice is becoming a rich person`s vehicle whether in the civil or criminal court. This is shameful. With mounting public borrowing it is unlikely that this or any future chancellor of the exchequer will sanction the real required financial funding for the justice system as a whole or the courts in particular. In practical terms there are and will be more innocent people being found guilty and to a lesser degree more guilty miscreants walking the streets as usual. 

DOCUMENTS

DANCE TO THE TUNE OF EXCEPTIONAL HARDSHIP

It is the British prime minister Benjamin Disraeli who is famously credited with the phrase: "There are three kinds of lies: lies, damned lies and statistics" but the expression has been around almost as long as the word statistics (first coined in 1749 for those wondering). I stumbled recently upon statistics I had never previously considered; the numbers of drivers who escaped disqualification with the totting procedure, having successfully argued "exceptional hardship".  At this point I must make my own position clear when I chaired such a hearing; I was considered "hard" by some of my colleagues but fair by most. I can even recollect a case where the legal advisor who approached us as we were about to return to court with our decision to reject the argument (against her unasked for advisory opinion) making a final effort to allow the argument. Such cases are rare insofar as the bench must argue from its own principles, experience and common sense unfettered by pages of sentencing guidelines. However there is pressure to remove this remaining discretion and substitute the tick box sentencing procedure common to virtually all criminal sentencing. However to return to the statistics; In the decade 1/1/2010 to 31/12/2020 83,581 cases of exceptional hardship were granted to drivers who exceeded their 12 penalty point allowance over three years. In 2010 there were 330 magistrates courts.  There are now about 150.  Assuming a decline over the decade the 8,358 cases annually in those courts equate to 35 per court per year. No wonder magistrates without much time on the bench are taken for suckers by smart talking lawyers. They might sit for years and not hear a single case. But is this then a reason to further reduce what little discretion is left for a bench?  My answer put simply is "no".  Perhaps some training and or distant learning would not go amiss or by entering exceptional hardship in the search box  my own opinions over many years on this site might be of assistance. But to further circumscribe magistrates` options is a further sign if one were needed that for all its verbal support this government like its predecessors over the decade would not be unhappy if District Judges were in total command of the magistrates courts system. After all they, being pension awarded public servants, usually dance to the government tune.  

POLICING AND JUSTICE UK STYLE 2021

Salami slicing is a well trodden phrase used originally to describe the subtle reduction by the very thin slicing  of a piece of  sausage or a large piece of meat.  Of course now that phrase can be applied to many areas of our lives but in the context of government policies it means the subtle reductions in financial support to a public policy.  Nowhere is this more obvious than it  is to our justice system in its widest context. From Kenneth Clarke at the Ministry of Justice in 2010 when he proudly announced that he was the first cabinet minister to announce his department`s budget reduction of 23% until the present time when a compulsive lying prime minister has proudly announced the recruitment of 20,000 police officers which was exactly the number his predecessors over the last decade had sacked, our system of justice has been reduced from a beacon to the wider world to a system not fit for purpose.  Nowhere is this hiring and firing been more apparent than in the policy or non policy of stop and search which has become a totem of those who accuse the Metropolitan Police of racism.  There is no doubt that the Met itself has been under fire for its apparent failure to weed out and actually punish officers for gross misconduct often during stop and search actions. Indeed only six officers have been disciplined since 2014 out of over 5,000 complaints.  But that does nothing to disguise the fact that young black males are the main victims of black perpetrators.  A government with confidence in its own policies would provide not just funds to operate an efficient policing system but would also argue that the facts on knife crime require more than rhetoric which is a recurring feature of every Justice Secretary in living memory. A Freedom of Information answer from Scotland Yard might be of interest. 

There is no doubt that notwithstanding superficial improvements there is systemic failure within the police to investigate and punish their own officers.  That corruption is endemic from top to bottom  has been made front page news today 15th June on the murder of Daniel Morgan.  There is no doubt that the Met needs systemic investigation and also that the Augean Stables of the Home Office including its current boss need a thorough clean out.  Huffing and puffing by the current Home Secretary has to be met by truth, truth more truth and nothing but the truth. At a lower level amongst the hundreds of cases involving serving police officers is that of ex PC Oliver Banfield.  His unlawful actions have been repeated countless times with little punishment for those culpable. 

Sometimes I wonder at the lack of common sense amongst senior police officers.  Such an example is Detective Chief Superintendent Andy Cox the national leader for fatal collision investigations.  He has equated speeding with knife crime. He has said that reckless middle class motorists should not be treated more leniently than youths with weapons. Notwithstanding the fact that badly or recklessly driven vehicles can kill I doubt many drivers start their cars with that possibility at the back of their minds.  For those whose driving is found to be careless or dangerous and/or compounded by alcohol, sanctions have increased in the last decade to punish those responsible. Knife carrying is a statement of intent.  It is both amazing and depressing that such a senior officer can make such a crass remark but what is of more concern is if he can harbour such a public opinion and influence policy what is going on behind the scenes that we might have imposed upon us at some future date.

It is no surprise to all court workers that there is an enormous backlog of cases in our courts.  Obviously the pandemic has exacerbated what was a disgraceful situation where the acronym CJSSS;    Criminal Justice: Simple, Speedy, Summary was introduced in 2007.  In many ways this so called simplification was just a new way of applying rules that were already in place.  The introduction of the controversial Single Justice Procedure in 2015 was also another way to overcome what were considered obstacles to early guilty pleas. There is no doubt that the closing over the last decade of half the country`s magistrates courts has been a major contribution to the current backlog combined with the failure to improve recruitment of new magistrates resulting in an unprecedented advertising blitz to overcome the deficit the result of which has in all probability reduced the intellectual fitness required for decision making.  Currently there are 56,000 cases outstanding in crown court with some timetabled for 2023. 

Amidst all forms of judicial statistics, thinking and programmes there is a complete absence of joined up thinking. Policy therefore seems to belong to those who shout loudest in the required direction of those with the biggest ears.  That is how justice is administered in 21st century England. There is, however, one ray of hope for this writer who has been advocating for a decade that drug users should be put on a medical pathway and not a criminal pathway to rehabilitation and reform.  MP Dr Dan Poulter has lobbied for change. Perhaps he might be pointed to this blog and write workhouse in the search box for my suggestions. 

WHAT NO LEGAL AID REALLY MEANS

More than enough has been written about the scandal of the reducing availability of legal aid.  It`s also a scandal that with all the power they have the legal fraternity has watched over this debacle for over a decade effectively washing their hands while offering platitudes in public. Imagine dear reader that you are faced with a trial at a magistrates court and unable to afford legal representation but the state`s rules insist you cannot be offered legal aid.  At a preliminary hearing this form  (click on first link) will be passed to you by the usher for you to complete. No further comment from me is necessary. 

BELOW THE LEGAL SURFACE

When considering the content of any possible post on this site I assume rightly or wrongly that most readers in addition to an interest in the justice system and all which it encompasses will have at least some knowledge of the law and its application.  I assume also that they will have an interest and at least a layman`s knowledge of statistics insofar as they relate to criminality an example of which would be the offences committed by BAME minorities and their proportion in the population.  However with the limited amount of print media actually producing court reports except in high profile cases from the crown or High Court much criminality or legal opinion goes unreported.  Below I post on some examples of cases which below the legal surface arguably say more about the justice system that much of what is reported from the Old Bailey or the Appeal Court. 

It seems that breast feeding mothers called to jury service can have an exemption for a maximum of twelve months only.  This seems to be an arbitrary time frame considering eg the possibility that after that time the woman might be pregnant again or having physical or mental health problems associated with recent motherhood. The oft stated argument that jurors must represent all factions of the population seems to me an outdated concept for this particular class of juror especially as Her Majesty`s Courts and Tribunal Service has no idea of exactly how a jury works, outside observers being banned from the jury room.  For example if a jury system were to be established from scratch surely it would make sense for there to be an odd number of jurors, currently 12 except in Scotland where there are 15, thus facilitating a first effort decision. In such a scenario would it not be sensible for lesser offences to be tried by a smaller jury eg 7 retaining 11 or 13 for murder, armed robbery etc. In the light of Brexit why are non British citizens still eligible for jury duty?  There are many more questions and studies awaiting answers but until the feeble minds at the MOJ reflect reality and practicality by allowing the appropriately qualified personnel to study and report on juries in action we will never know. 

Like magistrates police officers must be apolitical in their application of the law and when performing their duties in general.  What they say and/or do in the privacy of their own four walls remains although in Scotland with new legislation that is questionable.  However when it comes to alleged misconduct of police officers it seems logic and uniformity of application is sometimes difficult to comprehend. In an unusual case a police officer was not sacked for gross misconduct and her chief constable appealed the decision of the independent tribunal which made that decision. His appeal was dismissed by a judge.  It will be interesting to find out what happens to the officer at a recent march in support of Palestine who vocalised her support for the marchers and their demands. 

Almost without exception every new Justice Secretary vows to undertake action against those who carry knives or sharpened instruments whether or not they are concealed, brandished or used.  Maximum sentences are increased; public statements are made that judges have these increased powers of custody and the MOJ press office churns out the same propaganda it has done for decades. But then the offender appears for sentencing and judges and magistrates spoil the arrangement e.g. at Nottingham Magistrates Court not only was custody suspended but both sentences for carrying a knife were applied concurrently. Unfortunately as is usually the case the report is so short as to make comment mere speculation.  

I retired from the bench five years ago but long before that time I, along with some colleagues, made representation as to why digital methods not excluding text and e mail, could not be used instead of and/or in addition to regular mail when informing all those who had court appointments whether as defendants or witnesses.  With regard to hearings for driving disqualification it seemed a no brainer. This is but a single example of the problem such a simple innovation would help to avoid.   

Courts have historically been built or been converted in town centres for the obvious reason that in previous times up to perhaps 1939 these areas were readily accessible to the majority of people in the area. Not any more they ain`t according to the Tories.  Having secretly decided in 2010 Tory governments have since closed half the country`s magistrates courts working on the basis of their financial worthiness rather than considering the idea of their being a community service. The former court in Stafford is to be a car park.  

Finally there is the sad and sorry case of the disappearance of Madeleine McCann.  As a parent when my son was a toddler or younger and I needed petrol I would carry him into the station when I went to pay; he was never left alone for a a single minute in such or similar circumstances. Unfortunately the McCanns did not apply the same caution that summer evening when they went for dinner in Portugal.  I can only imagine the torture they endure every single day.  However there must come a time when her death is assumed and that it becomes a cold case murder investigation. However it seems that the Metropolitan Police is continuing to pursue the matter with five full time investigating officers. It has been estimated that £12 million has so far been spent on the investigation.  One wonders whether this has been the most suitable allocation for limited resources.  

It seems that unlike the religious devotion to OUR NHS the justice system in all its tarnished glory is considered to be allocated funding where the losses are minimised. So politicians bask in the reflected glory of often foreign billionaires` legal battles in the civil and matrimonial courts whilst the county and magistrates court systems are left to function in a manner which is detrimental to those ordinary people who rely on public funds for justice. 

Readers spotting a case in their local print media which they consider would be of interest to a wider audience are invited to send the link as a comment.