STAR CHAMBER 2021 STYLE

A simple question; can justice in its myriad forms be secret?  The answer must be a resounding "no". Whether in the confines of a small room in a magistrates court where  the Single Justice Procedure is in operation,  in the hinterlands of China or at 81 – 82 Queens Building, Royal Courts of Justice, Strand London, WC2A 2LL, the home of the Judicial Conduct Investigations Office,  the answer is the same; no, no and no. It is not fanciful nor an exaggeration to refer to the last named as a Star Chamber; a system with an ominous history.......... an English court which sat at the royal Palace of Westminster, from the late 15th century to the mid-17th century, and was composed of Privy Counsellors and common-law judges, to supplement the judicial activities of the common-law and equity courts in civil and criminal matters. Being under the suzerainty of the sovereign its processes are a historical treasure trove.  Indeed they were formalised as follows:-

The proceedings, recorded in English, gathered together the details of a case as presented by plaintiff and defendant. Each of the following stages in the proceedings was officially recorded:

 A petition or bill (also known as a pleading) from the plaintiff would be submitted to the court laying out their grievance

 A response from the defendant, known as an ‘answer’

 A response from the plaintiff, known as a ‘replication’

 A further response from the defendant, known as a ‘rejoinder’

 Interrogatories – a set of questions that could be put to the witnesses of either party – in some cases interrogatories seem to have started off the procedure

 Sworn testimony, known as ‘depositions’, in answer to the questions in the interrogatories

Those unfortunate enough to come within the judicial orbit of the JCIO are faced with navigating the The Judicial Conduct (Magistrates) Rules 2014 and its updates.  

This year to date 18 magistrates have been sanctioned by the JCIO.  How many have been investigated and have escaped "notoriety" is as much a state secret as the number of Boris Johnson`s illegitimate children or the Duke of Sussex`s real father.   Of these unfortunates eleven were found to have failed to sit the minimum number of times strictly specified to them at their interview and certainly discussed with each before disciplinary proceedings were initiated. But we will never know why a sitting MP on the supplemental list was allowed to continue in that position even although he had previously faced disciplinary sanction.  It is apparent that any JP who is automatically shifted to the supplemental list at retirement and who wants to retain the perceived vanity of the letters JP on his/her letterhead had better not be caught for the most minor misdemeanour which might lead to a conviction or a suspected contravention of the judicial conduct rules above. But there have always been those whose interest in the magistracy has 99% to do with his/her perceived kudos of that suffix and 1% to serve his fellow citizens in the justice process. Nevertheless whilst the General Medical Council and many similar disciplinary bodies hold hearings in public or publish the content of such hearings it is notable that misconduct of police and judges is still under the cloud of secrecy.  Perhaps it will be historians in the 23rd century who will have access to these matters as we now have to the processes of the Star Chamber.  

POLITICS AND THE INTERESTS OF JUSTICE

Perhaps the single most reasonable criticism of our courts is that to many observers the sentence doesn`t fit the crime.  Very few matters, especially at magistrates courts, are reported in a degree of depth that allows knowledgeable and fair criticism. That in itself is IMHO a valid enough reason why media outlets and government should explore the benefits to each of live TV or on line screening of the day to day happenings at magistrates courts initially and crown courts in due course.  This post inter alia consists of extracts from recent newspaper reports which indicate sentencing which some readers might find disturbing (to paraphrase some of the ridiculous woke pronouncements heard every day prior to the showing of some TV programmes)  insofar as the apparent variation or inconsistency shown by the benches in question. Thousands of similar cases are heard every year.     

 The following case was heard at Reading Magistrates’ Court Friday, May 21

JORDAN HINDS, 27, of Holberton Road, Reading, admitted possession of cannabis in Reading on October 9, 2019. He was also convicted of two counts of driving under the influence of cocaine and one count of driving under the influence of cannabis on the same date. He was banned from driving for 12 months, fined £530, ordered to pay court costs of £620 and told to pay a £53 victim surcharge.

 A ROUND-UP of recent cases heard at Newport Magistrates’ Court.

MATTHEW WILLIAMS, 27, of George Lansbury Drive, Newport, was jailed for six weeks and banned from driving for three years and 21 days after he admitted drug driving in an Audi S3 with cocaine derivative benzoylecgonine and cannabis derivative delta-9-tetrahydrocannabinol in his blood on Ringland Way on December 27, 2020. He was ordered to pay a £122 surcharge.  

16th August The Mail Barrow in Furness South Cumbria Magistrates Court

Barrow drug driver disqualified for 12 months

MAN from Barrow has been disqualified from driving for 12 months.Liam Clawson, of James Watt Terrace, Barrow, was found to be over the legal limit for benzoylecgonine whilst driving on Island Road on February 10. Clawson, 33, admitted the offence at South Cumbria Magistrates' Court last Tuesday, where he was also fined £150. 

DRUG driver has been banned from driving for 15 months by magistrates.Mr Kamen Alty, of Maple Avenue, Ulverston, was found to be over the legal limit for cannabis whilst driving an Audi A3 along Quebec Street on May 28. He admitted the offence at South Cumbria Magistrates' Court on Tuesday, August 10, and was also fined £300.

The following are the latest results contributed by HM Courts Service, for cases sentenced by West Sussex Magistrates’ Court sitting at Worthing and Crawley from July 30 to August 6, 2021.

Alan Young, 66, of Ham Close, Worthing, was fined £186 after admitting drug-driving (118ug/l benzoylecgonine) in Clifton Road, Worthing, on January 1, 2021. He was also fined £186 and must pay £115 costs after admitting drug-driving (106ug/l benzoylecgonine) in Tarring Road, Worthing, on February 23, 2021. He was disqualified from driving for 24 months.

Andrew Brown, 44, of Ruskin Road, Worthing, was given a community order and must carry out 80 hours’ unpaid work after admitting drug-driving (5.5ug/l Delta-9-THC) in Penfold Road, Worthing, on January 16, 2021. He must pay £85 costs, £95 victim surcharge, and was disqualified from driving for 36 months.

Robert Walters, 19, of Monterey Gardens, Bognor Regis, was given a community order and must carry out 60 hours’ unpaid work after admitting two charges of drug-driving (85ug/l benozylecgonine, 5.6ug/l Delta-9-THC) in Crookthorn Lane, Climping, on January 1, 2021. He must pay £85 costs, £95 victim surcharge, and was disqualified from driving for 12 months. 

Aaron Pelling, 35, of Angola Road, Worthing, was fined £80 and must pay £34 victim surcharge after admitting drug-driving (300ug/l benzoylecgonine) in Findon Road, Worthing, on November 13, 2020. He was disqualified from driving for 12 months. 

For those convicted of drug driving in the magistrates court the penalties are:-

a minimum 1 year driving ban

an unlimited fine

up to 6 months in prison

Many high street solicitors make a handsome living for defending those accused of drug driving. A single and well reasoned example can be accessed here. 

The Sentencing Council`s latest guidance on drug driving is copied below:-

Driving or attempting to drive

Triable only summarily

Maximum: Unlimited fine and/or 6 months

Must endorse and disqualify for at least 12 months   Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to disqualification guidance. Magistrates: consult your legal adviser for further guidance

Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further guidance

I would assume (hope?) that on the bench all magistrates (and of course DJs) would have that guidance before them. However since the concept of local justice by local magistrates has been effectively discarded it is even more important that the national guidelines and guidance is applied fairly across the board.  Raw annual statistics poured over by broadsheet newspapers and academics is no substitute for bringing home to the public the results of what is happening in the courts.  Indeed the secrecy of the Single Justice Procedure makes this increasingly necessary.  When the public loses interest in the law government smiles.  I have previously here argued for what is simply called Court TV.  It has long been available in USA and there is a TV channel of that title available on Sky.  Partial televising of a criminal court process has been undertaken in Scotland and the Supreme Court is available on line.  But make  no mistake; this government is withholding itself from scrutiny in many aspects.  It is being disingenuous on the supposed construction of new hospitals, on the numbers of "new" police officers; in the latter case attempting to replace the same number removed from the service since the Tories took over from Labour in 2010. Open justice being seen to be done is a pillar of any democracy. There is however apparently little interest from those supposedly looking after our liberties in seeking this objective.  Perhaps it`s because most of those people and groups are of a leftist persuasion and IMHO there is little doubt that the capitalist media would have to be the partner to government and that would not sit squarely with their politics. So once more I assume that the politics of the situation outweigh the interests of justice.     

TAXIS AND THE APPEAL COURT

All those with more than a passing interest in criminal law will be well aware that verdicts and sentences at the magistrates court can be appealed at the crown court where a crown court judge and two magistrates will re hear the case.  This is entirely logical and understandable insofar it is rightly expected that under a judge`s scrutiny any deviations in the correct application of the law which occurred in the original hearing will not be repeated. However the magistrates with that aforementioned proviso have equal input into the determination of facts and the logical thinking in the imposition of sentence if indeed the defendant is found guilty. The single most disturbing factor of such process is that many benches do not explain an offender`s right to such an appeal process. For the ever increasing numbers of unrepresented defendants this is an omission for which I have the utmost contempt for my former colleagues.  Indeed I can recollect after making this information clear to an offender that in the retiring room one of the wingers remarked that he had no knowledge of such a procedure as it had not been mentioned at any training session.  Rising up the scale of seriousness it seems quite appropriate that there is in practice a similar process for offenders convicted at crown court. As at 15 February 2021, there are 105 Justices of the High Court (16 Chancery Division, 20 Family Division, and 69 Queen's Bench Division judges), 74 male and 31 female.  Naturally one would expect that those individuals would possess greater intellectual powers than in those of the lower level to enable them to be more expert in the interpretation of the law.  That is not to say that there are no crown court judges who could fulfil the requirements of their senior colleagues. As of 14 June 2021 there are  26 Lord Justices of Appeal and 9 Lady Justices of Appeal. At the top of this legal pinnacle is the Supreme Court where there are currently 12 judges. For a layman it is simply impossible to be certain that each one of those dozen individuals is worthy of his/her position when measured against their colleagues in the tier below. And similarly when a High Court judge is measured in whatever manner is the format against a supposedly higher grade at the Appeal Court can we, the great British public, assume that all is hunky dory at the senior levels of our judiciary?  Thankfully there is a limited number of occasions where there is demonstrated the stark contrast in the reasoning between two levels of decision making.   From one such an extract from a very recent press report reads as follows:-

However, the Court of Appeal’s full decision, which has now been published, pulls her ruling apart, with the three judges saying that it was “extraordinary and not right” that the steps taken by TfL and the Mayor be described as “extreme or ill considered,” nor were there grounds to view them as “irrational.”

They said that Mrs Justice Lang “seems to have given no or almost no weight to the fact that the [decisions taken by TfL] were made on or by 15 May 2020 at a time when the duration and future course of the pandemic were wholly unpredictable.”

The above comments are from the case below a full transcript of which is available here.

This successful appeal should be a mindset check for those who are responsible for the appointment of our judiciary especially at this senior level. From cases where contrary to official guidance magistrates are publicly criticised by crown court judges to controversial decisions by a split Supreme Court a public must trust in the quality and integrity of the senior judiciary from the Lord Chancellor downwards. When that trust evaporates it is an early signal that similar is happening within our democracy.   

ILLEGAL MIGRATION AND PRISONER REPATRIATION; IS THERE A SOLUTION?

It seems we have become accustomed every week of every summer to reading of the increased number of  individuals being assisted ashore on the south coast from a variety of flimsy often unseaworthy inflatable craft more suitable for cruising down a rural river than crossing the 22 miles of rough sea from the French coast.  For the last decade the Home Office, an institution described by John Reid a previous Home Secretary as not fit for service, has been unable to institute viable policies to control this illegal immigration. Indeed it is arguable that this failure alone contributed to the success of the Leave campaign. How foolish was the public to believe that outside the EU we would have more power to halt this influx than inside but that is another story.  Recently the Home Secretary has produced yet more legislation to try to control the masses fleeing war in the Middle East and Africa. Short of ramming these craft there is little doubt that whilst there are migrants with cash and gangs with little fear of detection and retribution this latest attempt to stop the flow will prove as futile as the previous ones.  

Whilst the Home Office is wallowing in its own disfunction the result of the criminal activities of those  foreigners whether legally or illegally in this country is almost as chaotic as the Ministry of Justice then becomes involved.  Of its 77K workers the press office of that department of state must be among the largest in Whitehall. Rarely ten days pass without an announcement of further good intentions. The latest such offering is available here.  Is there anyone reading this who does not know that beginning 2010 with 23.8% sliced from its budget that the MOJ has been starved of enough funds so much so that law `n order by any interpretation has been financially butchered from the numbers of police to the failure of the prison system with courts, legal aid and probation falling by the wayside. That recent statement above from the Secretary of State refers mainly to the probation and prison services both of which were mangled beyond belief by the worst, most inept cabinet minister in post war history half a decade ago. When it comes to return of foreign prisoners to their countries of origin it seems the two departments of state collide.  The latest document i.e. the rule book from the National Offender Management Service is available here. Personally I recollect a single occasion when unusually an offender had in my opinion transgressed such that he was eligible to be deported.  The official channels through which we as a bench made the information as appropriate  blocked us at every turn. On 26th July with more fanfare from the MOJ a statement on the return of Albanian prisoners was released. It remains to be seen how effective is this agreement.  Current figures for Albanians and others returned from British prisons are below.

There is no doubt that there are considerable obstacles to be overcome when this task is to be considered however much the Daily Mail seeks to blow the MOJ trumpet.  Here is a brief summary.  Considering the government`s record I don`t think we should be too hopeful.  

https://www.gov.uk/government/publications/immigration-enforcement-data-august-2020 (Table FNO_09 in Transparency data Immigration Enforcement data: August 2020, provides the numbers of foreign nationals removed under the Early Removal Scheme every year since 2010 but that there is no published data that breaks down these numbers by nationality or offence type).

	FNOs repatriated under EUPTFD convicted of human trafficking or modern slavery offences	FNOs repatriated under CoE Convention convicted of human trafficking or modern slavery offences	FNOs repatriated under bilateral PTAs convicted of human trafficking or modern slavery offences
2016	2	0	0
2017	0	0	0
2018	1	0	0
2019	2	0	0

All five prisoners repatriated under the EUPTFD were EEA nationals.

Climate change and the millions of people being forcibly displaced by warring factions are certain to further increase the pressures on western societies from legal and illegal migrants seeking a peaceful and economically better life.  This country`s problems are the world`s in microcosm. From Arizona to Antalya the trouble is not going to go away.  The test for us is how to handle it. 

WELSH PARLIAMENT TO BAN PARENTS` RIGHTS TO ADMONISH CHILDREN

Most people are not knowledgeable of the law until it hits them full head on often as a result of breaching motoring law or encountering prohibitions enacted by a local authority.  Breaking the law within the confines of one`s own home with regard to speech which supposedly offends is a target for some of the more active promoters of a woke society.  It seems that to be a law abiding parent within that home for Welsh parents is now, or will soon, be under the all seeing eye of the Welsh government. From 21st March 2022 all physical chastisement of children will be illegal. No longer will a loving mother or father apply the slightest physical admonishment to a son or daughter without the risk of being a defendant in a court.  In the thousands of words to describe the forthcoming legal minefield nowhere is it made clear the actual legal process that would follow in a court of law. Where will all this madness end?  Is this right wing authoritarianism or left wing wokeness?  Is the mindset of those who have pushed through this disingenuous legislation of the same mindset as those who have politicised the continual  wearing of masks as the corona virus epidemic appears to be receding? From a personal point of view I remember the only time I smacked my son.  He was three years old and I caught him poking a fork into an electric point.  Having made clear to him it was a bad thing to do I spotted him a few minutes later repeating the forbidden action with a big smile on his face.  I smacked his leg hard enough to leave a red mark. A similar corrective action will in Cardiff or Ogmore or Swansea after 21st March next year if reported by eg a disgruntled neighbour lead to possible court proceedings. 

Assuming that I am not discussing alleged assault or currently recognised acts of abuse I have three objections to this unnecessary legislation; practical, legal and philosophical as it would apply to the action of a loving parent to an unruly child or a dangerously disobedient child like my son.  In practice there will have to be an incident reported. This would offer so many opportunities for an estranged intimate partner to cause mischief making and more.  In equally practical terms medical and health workers would be faced with the Solomon type decisions of where to place blame if any for the relatively mild admonishments this legal minefield seeks to impose and punish accordingly.  Court proceedings would be a nightmare for wholly innocent parents wishing to bring up their children in the best way possible being castigated by target driven fanatics seeking justification for their entrenched anti family politics where the state knows best.  Philosophically this century has seen the state interfering ever increasingly in our daily lives. Of course to some extent there is complete justification to protect us by persuasion from the over consumption of sugar or using nudge to dissuade anti vaxers of their mistaken beliefs but there is also the state which argues that the removal of a motorway`s hard shoulder is safer than its remaining or that a Prime Minister can lie to parliament with impunity.   

All I can say is that those voting at the election for the next Senedd should bear in mind the actions of the current members.