1984 AND THE EQUALITY TREATMENT BENCHBOOK

In the days of empire, and laterally when newspaper editors focusing on the pampered lives of the great and the good who were whiling away their fortunes on sun, sea and sex in the Caribbean, it was known as the silly season and to the rest of us as August.  In the days when the assizes were in session reports from these courts probably reached more of the population in that month than the rest of the year. Some judges became celebrities from their pithy comments; e.g.  ‘In England, justice is open to all, like the Ritz hotel.’ Not so much a joke as a cynical quote from an English judge, Sir James Mathew (1830-1908). Obviously he felt that justice was a luxury for the rich!  Judges being considered out of touch with the common man was a very accurate observation.  Those were the days. When so many receive their information rated as newsworthy by their social media source the silly season is now of twelve months duration. The ever present social pendulum within and without the Ministry of Justice has swung its full arc.  Nowadays it`s impossible to read about a court case without the term victim being bandied about even before a case has been concluded when the correct description of the party supposedly done harm is complainant.  The idea that everyone is equal before the law has become but a historical reference in many matters revolving around women and their perceived harm when the only weapon involved is words that supposedly cause offence. Judges are appointed to function within the laws laid down by parliament. But that is not written on tablets of stone.  Many a durable dictatorship whether of the Left or Right has emerged from legislation which serves only to increase the power of those who enabled its propagation. In such circumstances some judiciary have resigned, some have been "removed" and some have remained to endorse and put into practice such activities that serve their paymasters. They are the most dangerous to any concept of justice. Often such legislative changes are enveloped in the mist of driving a social agenda. We are in such a mist currently that a lack of vision seems a pre requisite for those who are enablers of a process to drive common sense from political thinking as if it were a scourge on the face of society.  For some years all judicial office holders from the humblest magistrate to the most senior Supreme Court Judge have been directed to function within the prescribed direction of the recently revised "equal treatment bench book"; a hefty document currently of  538 pages.  It is impossible to read without thinking even for a moment that some legally minded geek, anorak or nerd (take your choice) has been let loose with a computer and the definition of "woke". Amongst many other instructions to judges is that they must refer to defendants and witnesses by the gender that they (defendants and witnesses) have chosen for themselves. In real world practice that means that  a defendant tried for rape with a penis must be referred to as a woman if that is the self chosen gender of that defendant. Truly we are living in a world devoid of reality. Perhaps the section on so called "Islamophobia" is the most revealing insofar as the history of Islamism is considered pp273. It would seem that the authors of the Revision have little or no knowledge of the Muslim Brotherhood.   "Islamophobia” was invented by the Muslim Brotherhood to mimic antisemitism. In doing so it is in itself a feature of Jew hate and allows any criticism to be labelled as a social disorder.  It features also with reference to criticism of those Muslims advocating jihad against the State of Israel. 

Shedding daylight on the absorption of the judicial system into the world of woke is not to lambaste the MOJ; no sector of our so called country and its institutions is immune. The government of Wales has outlawed inter alia the use of the word "Brexit" to be substituted by " transition period to refer to the time between February 1st and December 31st 2020".    In accord with the revisions above it has also decreed that "non disabled" be used rather than "able-bodied".  In a short search only a Welsh language version of these new instructions is available although unless the Welsh staff of the Daily Mail and other news media are working over hard an English language source must be out there somewhere. 

The use of language to reflect or instil changes in a society has long been a tool of authoritarian regimes.  Perhaps George Orwell was and is  the most well known observer to warn us of this least noticeable influence in the removal of individual freedoms. 1949 for most of Britain was the year of the benefit of a newly established National Health Service.  It was the year when clothes rationing ended, NATO was established, when the Chinese communists took power in mainland China and the USSR exploded its first atom bomb. For me the novel 1984 has proved the darkest warning of our future. 

Happy  New Year 2022  

A CHRISTMAS RANT

This time last year I posted inter alia that I was looking forward to the imminent arrival of a vaccine for all which would relieve most of us of the worry, torment and financial insecurity caused by Covid 19.  I commented also on the divisions in our society exacerbated by Black Lives Matter and the speed at which even the most outlandish theories can circle the world via social media and this was before most in this country had ever heard of QAnon and the invasion and deaths at the Capitol in Washington DC  were still two weeks distant. Since then we have had a new Lord Chancellor installed who seems to be more loyal to his political master  than to the concept of justice.  That should be of little surprise considering that that master so obviously puts his own position personally and politically ahead of that of the nation he is supposed to lead. Currently we face a further lockdown caused for the most part by a government that refuses to take strong measures against the so called antivaxers; fanatics who against all reason are blackmailing the rest of us into further restrictions.  By the simple expedient of imposing restrictions on those not double vaccinated hotels, restaurants, hairdressers, gyms and similar venues could serve customers in an atmosphere where they could reasonably be assured they were unlikely to be in contact with a Covid 19 infected person at the next table or chair or treadmill. 

On the plus side at least with the lifting on fine levels Premier League footballers, when their driving habits are illegal, are being hit in their pockets  at a level which reflects their financial status.  However notwithstanding that example it seems endemic that the MOJ in concert with the Home Office considers that the road to reducing crime is to increase sentences.  Criminologists and others know full well that that approach is a little bit like closing the stable door etc.  Prevention, detection and rehabilitation pursued expertly are the best way to  be tough on crime and tough on the causes of crime  as espoused in 1993 by Britain`s answer to Ronald Reagan. 

Whether or not this time next year we will all still be bedevilled by this virus is beyond an individual`s control but collectively we can help by calling out dishonesty in those and others on our behalf who make those decisions.  Whoever you are and wherever you live I thank you for using some few minutes of your precious time in reading this and perhaps previous outpourings.  

Be healthy and wise and wealth in some form will be yours.  

PROPOSED NEW BILL OF RIGHTS

It behoves politicians especially those in government to be precise in the words they use to explain previous or future actions or events. Failure to do so in an age where these words can live longer in the webosphere than the biblical three scores years and ten of humankind can be disastrous. On the day when the Secretary of State for Justice and Lord Chancellor is less than three months in post he has opened the debate on the can of worms that is the European Convention on Human Rights.  This organisation created in 1950, became operational in 1953 as a Court. It resulted from the inhumanity of the Nazis and the refugee crisis that followed World War 2 and was passed into UK law by the Labour government in 1998 as the Human Rights Act. It is not a court in the traditional sense and its members are not necessarily judges in the manner recognised in the UK. 

My comment on the composition in general is that a senior judge in addition to having the requisite knowledge of the law is also an expert on human psychology insofar as s/he is presiding over human fallibility and making his/her own subjective decisions on the actions of all those in court. The absence of that facility in many members of the ECHR in my humble opinion is akin to those various eminent specialists in their own fields commenting on the current epidemic but not having the experience of the practising doctors actually treating patients in hospital. But to return to my opening remarks on words: Dominic Raab is quoted today in having said that a British bill of rights will " deliver a healthy dose of common sense" to enable the deportation of more foreign criminals and illegal migrants. As far as "common sense" is considered; it was a required attribute for magistrates when I applied for appointment to the bench in 1997. A year or two later it was withdrawn on the basis that the word "common" might not be well understood by some sections of the population. In other words some early so called "progressive" advisors considered that what was common knowledge for 90% of people might not be "common" for some. Yet now that term is being used by the self same department as a justification for the proposed changes. Notwithstanding that illegal migration has been a bellwether of the Tory right for many years. Huguenots, Irish, Jews and "blacks" have each over the centuries been (and in some cases still are) subjected to the most blatant discrimination. However beneath the hidden racism of some government supporters there is no doubt that the fundamentals of the ECHR (and consequently the Human Rights Act)  have been manipulated in areas unforeseen in 1998. The desire for change to control a situation where billions of the world`s population immersed in wars and poverty see their future in the prosperous west is a matter of urgency.  Those who are screaming loudest in opposition have no answer to the problem;  The simple truth is that so called progressive thinking has allowed about one million undocumented "immigrants" to be living a life in this country beyond the reach of the law encouraging criminal activity and a black market for employment. This cannot be allowed to continue indefinitely if we are not to become a nation where "show me your papers" are the opening words when in conversation with police.  Unfortunately some foolish Tory MPs are making their last stand on compulsory vaccination "passports" with that same phrase.  It is intended that the Supreme Court will be the final arbiter on legal matters and parliament will be responsible for creating law.  Considering that Boris Johnson was infuriated during Brexit debate when the Supreme Court threw out his intention to prorogue parliament it will be amusing if not downright worrying about its continued efficacy if prime ministerial push comes to prime ministerial shove but then the initials BJ are not indelibly engraved forever on the door of number 10. 

As so often is the case those railing against the proposals are at risk of throwing out the baby with the bathwater.  When the proposed bill is published it will be up to parliament to fine detail it.  Errors on the scale of the Windrush scandal must not be tolerated.  Scrutiny must be the watchword; not complacency, not party loyalty.  The so called  progressives must open their eyes to the current realities and offer positive opinions of what should be incorporated in the bill and what would indeed be an affront to justice and humanity. I sincerely hope those in and outside Westminster have the required perspicacity and wisdom.   

Alterations in the legal process have been part and parcel of English law for centuries. In our own time the internet has been responsible for mind boggling changes in our courts unpredictable a generation ago.  The law and the justice system accommodates when and if appropriate.  An extract from Wikipedia on habeas corpus is an example.

"The Act is often wrongly described as the origin of the writ of habeas corpus. But the writ of habeas corpus had existed in various forms in England for at least five centuries before and is thought to have originated in the 12th Century Assize of Clarendon.[4] It was guaranteed, but not created, by Magna Carta in 1215, whose article 39 reads: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."[3] The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816, and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.[5]"  

It was followed 10 years later by the Bill of Rights which became the basis for the parliamentary democracy which exists today. 

" the Bill of Rights is further accompanied by Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. The Bill of Rights 1689 was one of the models for the United States Bill of Rights of 1789, the United Nations Declaration of Human Rights of 1948 and the European Convention on Human Rights of 1950.[3]

THE JUSTICE GAP FOR THE HAVES BUT NOT THE HAVE NOTS

It seems apparent that there can be few people actively involved in the justice system who are not totally convinced that the parsimony of  Tory governments over the last decade has not led to a permanent decline in the efficiency of and confidence in  that system.  What was often considered a beacon of our society and an example to many other nations is now a mere shadow of that former glowing reputation. For individual low level offenders the chances of receiving a true and just pathway through the jungle that is often "the system" seem to be reducing year on year.  Many millions of defendants have been prosecuted through the Single Justice Procedure since its inception in 2015. Indeed in 2020 alone the number was 535,000.  As far as I am aware there are no verified statistics of the conviction rates through the SJP but it is acknowledged by the Ministry of Justice that over 70% of defendants do not reply when summoned through the system and are automatically convicted. The chances of a defendant being eligible for legal aid when facing trial at a magistrates court have been steadily reduced over this same period owing to the miserly rates of pay offered to solicitors for undertaking this work. And to rub salt into the wounds inflicted on those acquitted in court no costs are reimbursed for any legal fees paid to those legal practitioners who have helped secure that not guilty verdict for their client. So there really is one law for the rich and pot luck for the rest. 

At another level it seems that the legal system is anything but equal for all. There is one law reserved for the prime minister when it suits his purpose.  The then adviser on ministerial standards, Sir Alex Allan, last year found Ms Patel, Home Secretary, had not always treated civil servants with “consideration and respect” and in a report published last November he said  the prime minister himself had breached that self same ministerial code in order to keep Ms Patel in post.  Boris Johnson had ignored the advice that she should be removed and this week the High Court agreed with him contrary to an appeal by the FDA union. Considering that the plaintiff himself was at risk of being accused of the self same charge it is difficult not to consider that perhaps other senior judicial figures might have altered the balance of those angels dancing on a pinhead.  With such success under his hat Johnson has now felt emboldened to let ministers throw out legal rulings. He has castigated judicial review in the past when his wishes were thwarted over Brexit. Like the civil war over parliament and the king`s authority we now have war drums sounding an impending battle between an elected government and an unelected judiciary. This is surely and incontrovertibly a process informed by history when an underlying proto fascist philosophy begins the journey to realise its ambition by morphing from right wing conservatism to right wing authoritarianism.  

With the Meghan Markle aka Duchess of Sussex case settled in her favour for now it is apparent that so called privacy has been given primacy over a public right to know and when that privacy is that which invariably surrounds the high and mighty rich and famous, justice and knowledge for Joe Public is an ever decreasing commodity. 

Most of us will not have any of our decisions taken to judicial review nor be subject to Appeal Court rulings on our right to privacy but we stand a reasonable chance over a lifetime of being summonsed to a magistrates court. And now two simple facts: In the last decade 164 magistrates’ courts closed out of 320 (51%) and that sale of court buildings raised at least £223 million to the public purse.  Was that a worthwhile choice? Half the country`s magistrates courts closed for a measly £223 million. Burton Magistrates Court closed almost four years ago.  It`s sorry financial tale since then can be accessed here. I doubt but there are many similar stories to be told but of no interest to those who have the wherewithal to send  a privately funded lawyer to represent their interests when required.  This is called the justice gap.