MAGISTRATES` COMPLAINTS//A SIMPLE BINARY PROCESS

 

Date: 25 January 2022

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

Lindsay Dalby JP

A spokesperson for the Judicial Conduct Investigations Office said:

"Mrs Justice Cheema-Grubb DBE, on behalf of the Lord Chief Justice and with the agreement of the Lord Chancellor, has issued Lindsay Dalby JP of the Coventry and Warwickshire Bench with formal advice after she was issued a fixed penalty notice for breaching coronavirus restrictions. In making their decision, they took into consideration that the breach while dining in a restaurant was accidental, that she had reported the matter to her bench chair promptly and that she had apologised for her actions."

ENDS

Fact

Following on from my post of February 15th the above named magistrate was just one of those this year who has fallen foul of the scandalous inquisition of the Judicial Conduct Investigations Office. 

Fact

The Ministry of Justice has recently announced that it is inviting recently retired magistrates aged 70-75 who may wish re-apply to the active list of serving magistrates.

Fact 

Retired magistrates are usually by default placed on the Supplemental List of Magistrates upon retirement.

Fact 

Magistrates on the above list are subject to the same disciplinary processes as are applied to those in office. 

Fact

Official guidance on supplemental list is copied below:-

Most magistrates will join the supplemental list when they retire or leave the service before the

age of 70. There is sometimes confusion around what this entails and the powers it allows.

This guide explains the key features.

February 2012

The Magistrates’ Association Guide to The Supplemental List 

Returning to the active list

Being on the supplemental list (and under the age of 70) gives no automatic right to return to the active list. However, depending on the time away from the magistracy and any exceptional

circumstances, an individual could return to sitting without going through the full application and recruitment process. He/she will be interviewed informally by the advisory committee

to assess any training needs and other circumstances. Providing there are no exceptional factors the magistrate could return to sittings.The individual will not need to provide external referees but the magistrate’s previous bench advisory committee will need to provide a reference from the bench chairman.In the end, the decision whether to allow the magistrate back to the active list remains with the advisory committee to which he/she is applying. Obviously this may depend on vacancies on the particular bench.

Retiring magistrates

On reaching the age of 70 a magistrate will normally have their name entered in the supplemental list automatically or be written to and invited to apply. They will usually be

informed in writing and sent details of the rights and duties of being a supplemental list magistrate.

Applying to join the supplemental

list before the age of 70

A magistrate may also apply to move from the active to the supplemental list at any time.This may be for a number of reasons, for instance when personal commitments mean they must take a sabbatical from sittings likely to last longer than leave of absence rules allow (about 18 months depending on circumstances). There is no minimum length of service to be entered in the supplemental list. As a general rule however, the magistrate will have been appraised as competent in the adult court; they should have met the minimum sittings requirement of 13 sitting-days within the past 12 months (except where good reasons apply); and they should not have been subject to disciplinary action for misconduct within the past five years.

All advisory committees have to consider such applications.In the unlikely event that a committee recommends to the Lord Chancellor not to enter a magistrate onto the supplemental list, they must write to the individual giving reasons for their

decision.

The purpose of the supplemental list is 

■

to commend magistrates for good service upon resignation from the active list or retirement; and 

■

to ease the process of return to the active list in situations where magistrates have had to leave the magistracy but wish to return at a later date

What you can do whilst on the supplemental list

If you are on the supplemental list you can still use the suffix JP under the same guidance for sitting magistrates. Essentially this is that the initials may be used on private and business letterheads etc in a similar way to academic or professional qualifications.You should always be alert, however, to how references to your status might reasonably be perceived by other people. Any attempt to misuse the status to gain personal benefit could be regarded 

as misconduct. Magistrates can still witness documents or sign passports, but only

in the same capacity as other members of the public.

What you may not do whilst on the supplemental list

■

sit in a magistrates’ court to adjudicate;

■

sit in a Crown Court on appeals cases;

■

be a member of any committee or any other body as a

magistrate;

■

take part in the election of chair or deputy chair of a bench;

■

attend any formal or business meeting of their former bench;

■

sign any documents in the capacity of JP – ie using the JP suffix.

This will include:

– summonses 

– warrants, including search warrants 

– shotgun licence applications (as a JP) 

– being referee for a rifle licence application (as a JP).

Duties on the supplemental list

Magistrates on the supplemental list must inform the advisory committee secretary for their existing area if they change address. Similarly, advisory committees are encouraged to keep in touch with magistrates on the list.

Complaints 

Supplemental list magistrates are still subject to complaints procedures. (my  bold underline) If a complaint is received about their conduct or behaviour, if appropriate, the advisory committee will investigate it in line with standard complaints rules.

When magistrates are considered to have erred they are subject to a complaints process outlined in perfect detail in a document twenty pages long with apparently every "i" dotted and every "t" crossed. If the matter is concluded that this process has indicated that the magistrate has indeed crossed the threshold of guilt s/he can apply to the Judicial Appointments and Conduct Ombudsman  who will investigate only the actual procedures undertaken.  Thus all the labyrinthine detail of a trade union rule book is applied; with nobody in earshot all the trees in the legal forest which are felled fall in silence. Finally the verdict is subject to the decision of the Judicial Conduct Investigation Office whether or not a sanction is applied such sanction ranging from "advice" to removal from the bench.  There are no published statistics or information on most of this whole process.  Indeed names of members of these organisations are secret.  To add grist to this metaphysical mill there are strict regulations on making public any comments from a local advisory committee.  Suppose a complaint is made to said committee re the behaviour or action of a magistrate: Nobody can make unauthorised disclosure of said complaint under pain of being pursued in the courts under s.139 of the Constitutional Reform Act 2005. 

The MOJ is currently undertaking a country wide advertising programme to persuade 4,000 citizens to become magistrates.  This previously unheard of action is a direct result of the self same MOJ under Tory Party governance since 2010 in failing to recruit annually from that year the appropriate number of magistrates required as the predicted retirement of an ageing cohort was well known to all in authority.  The judgement dealt out to the magistrate at the beginning of this post might or might not have been deserved. The lady in question might feel relieved at being able to continue in post or furious that her actions brought such ignominy.  She might or might not have freely admitted her remorse.  She might or might not have employed legal counsel to assist her.  We will never know. This is just a microcosm of what I term "secret Britain"; a country which loudly proclaims to the world and all who listen that it is a beacon of freedom.  Perhaps in some departments it is but in so many it certainly is not.  The line by line, sentence by sentence, paragraph by paragraph,  clause by clause to investigate the perceived wrong doing of a magistrate makes a trade union`s rule book for a member`s expulsion seem like a simple binary process. 

JUSTICE HENRY VIII STYLE

Justice should not only be done; it should be seen to be done.  One might conclude that in a democratic society that was axiomatic.  One would be wrong. Justice in the courts is not seen to be done if that "justice" is dispensed under the Single Justice Procedure as it has been for over five years for TV license evasion, low level non custodial  traffic offences and other "minor" infringements of the law.  Indeed a public right to know of the sentencing statistics imposed at those secret courts has been refused publication.  This curtain over these processes is in contrast to the situation when most professional and/or disciplinary bodies have opened their  hearings to the public by full publication thus allowing any citizen to inspect the evidence presented and the consequent judgements. Even the police, whilst still not completely open in this regard,  are gradually accepting that misconduct hearings should be no longer held in camera. However when we come to those occasions when members of the full time paid judiciary are thought to be acting "injudicially" inside the courtroom or out there is a tendency for a veil to be drawn over the proceedings unless the behaviour is so atrocious that it cannot be kept from the public eye. But when the volunteer junior judiciary i.e. magistrates are involved in apparent breaches of law, rules or acceptable behaviour we are witnessing a form of justice which would have been consistent with that applied by Henry VIII.   The process is laid out in a document 22 pages long full of detail on when why who where sub clauses but all the public can ascertain is perhaps ten lines or fewer of judgement published by the Judicial Conduct Investigations Office. 

Since the beginning of last year 24 JPs have faced investigation.   (The number investigated and consequently cleared of any wrong doing is unknown and unpublished).  20 of the 24 were charged with failing to meet the minimum number of sittings required; i.e. 26 half days annually. That requirement is emphasised or should be emphasised to every applicant for the magistracy. In this period 15 of the 20 were given a strict warning and the other 5 were removed from office. It is my humble opinion that in the current frantic race to appoint 4,000 new magistrates standards are going not only to slip but be irrevocably reduced in the unseemly rush to secure the placement of ethnic minority  candidates who will, in all probability although officially denied, be  subject to an unwritten policy of positive discrimination. 

There is no doubt in my mind that magistrates are strongly in need of a protective body to protect themselves should they in some manner large or small fall foul of the judicial authorities.  By its very charter the Magistrates Association is unable to fulfil that purpose.  It seems that JPs who might have the drive and ability to pursue such an agenda are more interested in climbing the hierarchical ladder of public recognition so that in later years they might have some more suffixes after their name.   

FROM GIN LANE BY HOGARTH TO PRITI PATEL AT HOME OFFICE

Alcohol has been around almost as long as human civilisation.  Humans invented alcohol many times independently. The oldest booze dates to 7,000 BC in China. Wine was fermented in the Caucasus in 6,000 BC; Sumerians brewed beer in 3,000 BC.  For most people it has been an easy but increasingly expensive method of inducing conviviality and relaxation when partaken in company of others.  It has also been a source of being able to escape the stresses of life ancient and modern.  Hogarth`s cartoon of "Gin Lane" 1751  is still relevant insofar as the wealthy in a population can do their binge drinking often behind closed or private doors and be sent to rehab clinics when their colleagues and/or families consider that their excesses are a danger to themselves and their finances in one form or another. Just as it is the rich wot gets the pleasure and the poor wot gets the blame  it is those low down in the social pecking order who are often before the courts and for them the term rehabilitation is more often than not merely a literary term in a probation report. I have long argued here that addicted habitual offenders should enter a medical pathway and not a legal one unless the level of criminality is such that other factors must be jointly considered.  I have used the term "workhouse" a search of which in the search box will explain for those interested my opinion in detail.  For the record it is widely assessed that alcohol is involved in around 40% of all violent crime.  

However we all know that there is considerable social disturbance which is related to excessive alcohol consumption and that that disturbance often is unrecorded officially but a blot on the lives of all those involved.  Our justice system is not just ill equipped to deal with addicts` criminality; it is demonstrated at almost every magistrates court every day.  This example at a crown court is typical.  Police, probation and prison have been, are and will be expected to "do something" for this person but  know full well all that will be done is to contain her.  It is indeed a disgrace that government allows this legal carbuncle to fester. 

Human beings are imperfect creatures and judges are human beings.  When doctors make decisions which are detrimental to a patient there are avenues of redress often officially impeded for those who survive the unfortunate episode.  For judges there is the shadow of much reduced local court reporting for their sentencing eccentricities to be overlooked but alas for  Judge Timothy Spencer the outcome of this case proved disastrous.  Referred by the Attorney General to the appeal court the offender received a sentence more consistent with his crime. In the hush hush world of judicial investigations it is unlikely we will hear what if any sanction was applied to his honour.  

When a magistrates court disqualifies a driver it is incumbent upon it to make reasonable effort in advance to advise the miscreant of that intended action the reason being obvious; to prevent that offender unknowingly re-offending.  In the matter of stripping a person of his/her citizenship it is obvious to all but the deaf, dumb and blind that that intention be brought to the attention of the intended recipient of being stateless.To that list of exempt parties  should have been added the Home Office the actions of which have been ruled unlawful by the Court of Appeal in the case of a woman known as D4 living in a camp in Syria. Truly this department of government is itself becoming even more of a law unto itself since a previous Home Secretary, Lord Reid, described it in 2006 as "not fit for purpose". 

On the face of it an uninsured driver with 17 penalty points convicted of death by careless driving deserves an immediate custodial sentence even if only for four months. With very limited reporting of this case reasoned criticism is limited but an understanding of the deceased`s family`s incomprehension at apparent leniency is not difficult. 

Sending racist messages over the airwaves is covered by various communication acts but along with readers I have seen much worse on social media.  Work is in progress at the aforementioned Home Office to attend to this discrepancy.  A difficult line between free speech and hate speech needs a King Solomon to adjudicate.  We have Priti Patel. 

THE RICH WOT GETS THE PLEASURE................

Everyone is equal before the law. Sentencing guidelines introduced 2010. Suspended sentences were first introduced in England and Wales by the Criminal Justice Act 1967 but their availability to courts was greatly restricted by the Criminal Justice Act 1991 which required the court to exercise its power to suspend a sentence only where it could be justified by the "exceptional circumstances".  The Criminal Justice Act 2000 saw the introduction of a new Suspended Sentence Order (SSO) overturning the previous restrictions.  All those proceeding statements are  (supposedly) in operation today.  That might be the theory but the practice has long since deviated from the ideals behind the original planners` intentions. Nowhere have those intentions been more abused or fallen into place depending on one`s political and/or social attitudes than in the used of "custody suspended".  I use the term advisedly because that was the manner in which the sentence was devised.  The custody level set by the appropriate guidelines for the offence must have had to be breached and then and only then should the determination be made if  the interests of justice justice could be served by suspending that custodial period.  The sanction provided in law is that breach of the accompanying community service order would allow the custodial sentence to be activated.  In 2019 just under 40,000 suspended sentence orders were made.  In the eyes of many of the public such orders are regarded as a get out of jail free card. In September 2021 a very interesting examination of this subject was published.  My point today is that similar to the explosion in exceptional hardship orders being allowed by magistrates when a driver faces disqualification the SSO has become a tool that the Ministry of Justice hoped and hopes will stabilise or reduce the number of low level offenders in jail.  Clearly there are occasions where its use fulfils that ideal but its almost indiscriminate effect is to provide inequality before the law. I have posted here more than once as to why for example a doctor with 12 penalty points avoids a driving ban and a carpenter doesn`t.  Prior to the introduction of Sentencing Guidelines magistrates were rigorously instructed in structural decision making when deciding sentence.  It allowed free thinking by the bench members to be justified by reason and logic and took offenders` personal and other circumstances into account. If that exercise concluded in a custodial period being appropriate every effort was made to determine whether or not suspension was a suitable option.  The statistics seem to indicate that that ladder of progression has in many cases been overlooked. 

Recently at Workington magistrates court a previous offender was convicted of a  ""serious" public order offence involving threatening behaviour."  By all accounts in the short newspaper report he escaped immediate custody because the court believed his mitigation that his employees` livelihoods would be at risk if he were incarcerated.  Consider the situation if it were one of those employees in the dock under similar circumstances.  We are entitled to assume that s/he would have been subject to immediate imprisonment. Where is equality before the law in this example and countless others of similar nature? The old adage slightly modified perhaps that it`s the rich wot gets the pleasure and the poor wot gets the blame is still around in 2022 England.