TRIALS AND TRIBULATIONS

Sometimes this retired magistrate notices a single incident which might be of interest to those who give a few of their valuable minutes to read his opinions. On some occasions a few legal happenings from magistrates courts to the Appeal Court can shine a light on principles underlying the law and/or the legal system. Today is such an occasion. 

Time and time again I have railed against the system allowing dangerous drivers to avoid disqualification.  It is known as the exceptional hardship argument. Use the search box with that input for previous comments.  It seems that dozens of times daily solicitors are making vast fees by persuading muddled headed magistrates of an argument for which no legal definition exists and which relies solely on said solicitors making the bench feel sympathy for the recidivist erring driver who has previously accumulated penalty points.  In this particular case his argument; ""I now work as a delivery driver for ASDA and I am the sole breadwinner in my house because my wife looks after our four children. "Living in the countryside, most of the jobs that are available are ones that you have to drive to so even if I went for a job that wasn't a driving one, it would still be difficult. That would mean that we would lose our home and so I don't know what we would do." is heard time and time again in court. It is a spurious argument .  I won`t repeat now what can be found in those previous posts referred to above. The matter was reported in Lincolnshire Live. 

ASBOs, CRASBOs and their like have become a way of life over the last twenty years for police and councils. They are Civil orders thrown at those where criminal actions cannot or are unwilling to be proved in a magistrates court. They are akin to raising the volume on a TV set when the problem lies in the viewer`s having a hearing problem. I have a personal interest in Criminal Behaviour Orders having sat on the very first such action ever brought in England.  FYI  it was badly drafted and my bench threw it out. The ASBO was but the preliminary of many such so called orders to be promulgated.  Currently Football Banning Orders are in the headlines but this is a typical example.

By the actions of more than a few, MPs are behaving as if the law and shame are not parameters of their behaviour or actions.  Such is the scandal of Claudia Webbe. Now that her custodial sentence has been overturned she does not face a re-selection process.  She can continue with impunity to supposedly represent her constituents. This is just a single and not the worst example of how our society is disintegrating in a morass of political effluent. 

It doesn`t happen often in magistrates courts but I have personally (in agreement with my colleagues of course) intervened in a case and dismissed the charge there being no case to answer.  A recent case in Scotland might be of interest for the principle applied in that decision being reversed.

I would imagine that very few criminal lawyers are in favour of judge only trials.  That in itself is a paradox because one doesn`t hear them complaining of trials presided over by a single District Judge but many are quick to criticise a three person jury comprising JPs. This actor had his nose put out of joint when he was refused a jury trial.  

Having many years ago been personally involved in a case of employee status which ended up in the Appeal Court in front of a high court judge and two assessors this caught my attention. 

I was well ensconced in the middle chair when reference to defendants` bad character was officially introduced in the lower court under strict conditions. This is an interesting case which might provide thoughtful opinions for those who are not too familiar with the nuts and bolts of the requirements for its introduction. 

With the Home Secretary and the Attorney General recently accused of sailing too close to the legal wind in some of their recent comments and commentaries on the law, various legal matters and the legal ramifications of some government actions  Lord Burnett the Lord Chief Justice commented in a speech last night that the Lord Chancellor aka the Secretary of State for Justice must inter alia, ‘In imposing an obligation on the lord chancellor to have regard to defending the independence of the judiciary he is required to be active in support of the judiciary, within government and, if necessary, in public when that independence is threatened or attacked.’  A report is available here.

Many of the preceding observations might by some be considered  of only marginal interest to magistrates although I would of course disagree but a topic that gets down to the  nitty gritty of the state of current and future development of justice at the lower court is the Single Justice Procedure initiated in 2015 supposedly on the basis of how Tesco operates; pile it high and cheap.  Simple non custodial offences are adjudicated upon by a single JP sitting in a private office advised by a legal advisor. Previous posts can be accessed through the search box where a regular reader will not be surprised that I am certainly not in favour with such a system. As if the iniquity of the process is not enough it seems that the know alls at the MOJ are about to squeeze the justice lemon of even more pips by cutting the numbers of legal advisors to a third of the current level i.e. one such advisor will oversee the actions of three so called courts simultaneously.  And so continues the decline of  what was once the finest and fairest justice system in the world.  I suppose it still might be if you`re a Russian oligarch or married to a Premier League multi millionaire. 

CANARIES AND LAVATORIES

The story goes that the indigenous native Americans, pre communist Chinese and many other societies of the last and previous centuries revered the elderly of their populations who were relatively few in number cf modern times for their wisdom.  For many, especially those under 40,  in an age of instant mass information and communication such reverence is but a footnote in history. In some respects no amount of empathy by the young with the elderly can ever truly reveal the changes which age bestows upon us.  

The first time lavatories became a subject for a magistrates diary was 12th March 2010.  When I blogged here 27th October 2016 I was entering upon my last quartile of life or as much of it as I was offered by powers greater than mine. The following year that  basic human requirement denied to many as posted above was excoriated by me yet again as its deprivation led to more court appearances and criminal records. To pee or not to pee has become for so many innocents especially after closing time a question of risking the wrath of the law or the discomfort and embarrassment of pissing themselves.  It`s not just public lavatories being closed that councils are reducing services which are not near the top of their functions considered essential. Council run public dump sites have imposed appointments systems on anyone who has items for disposal.  No more attempts to be customer orientated the Covid pandemic being the temporary excuse which has become universal in so many spheres of our lives.  

Personally I now plan my long distance trips by ensuring as much as I might be held up by delays that I use motorways with their guaranteed 24 hour lavatory facilities such consideration alien to my younger self of even 20 years ago.  On that personnel level a few weeks ago I was in the seaside resort and golfers` paradise of Troon on the Ayrshire coast.  A wonderfully sunny Saturday  warm afternoon had brought thousands from Scotland`s industrial heartlands to the fresh air, wide sandy beach and Italian ice cream parlours for which the town is famous in Scotland.  Despite carefully rationing my liquid intake walking along the promenade I found myself in need of what euphemistically is known as a public convenience.  Eventually there it was; a redbrick building with minimum signage as to its purpose.  However as I entered there was a queue barred by an electronic gate; highly unusual in my experience. The chap in front explained that a credit card was needed to gain entrance to the porcelain lined activities area.  There was no attendant and no cash alternative to access the interior. As the chap ahead of me took out his phone in anticipation hoping that it would suffice in place of a real piece of plastic a relieved man of my own vintage exited the electric gate opening for him.  My fellow in need ahead of me inserted himself through the entrance before the gate could close and I followed doing likewise.  

I am not anally orientated.  With a population living longer in every generation the needs of the body need to be accommodated by those who make the rules realising that at 60+ most [many?] people are very sound in mind, are actually quite wise and require public services as much as teenage addicts or autistic children.  This is a national problem. Yesterday`s Times carried the article below.  

Public urination is usually included in the by-laws of individual local authorities under Section 235 of the Local Government Act 1972. A Penalty Notice for Disorder - PND (Section 5 of Public Order Act 1986) is the likeliest course of action of a police officer who catches someone urinating in public. PNDs are used by officers to deal with low level, anti-social and nuisance behaviour. A fine of £50 or £80 is issued to be payed within 21 days of receipt of the notice. But of course all magistrates have had before them defendants charged with the more serious  Outraging Public Decency (Criminal Justice Act 2003) - prosecution under this act is extremely rare. However a “plainly indecent” act carried out in public in front of two or more people could result in an unlimited fine or prison terms or Indecent Exposure (Sexual Offences Act 2003).  Indecent exposure occurs when a person displays part of themselves in a public place that is considered as being offensive or morally unacceptable. Punishment can range from a fine to a maximum 2 years prison sentence. 

Society doesn`t break down overnight from the impact of an asteroid.  It collapses when a sense of moral order, respect and compassion for all its members is removed, forgotten or overlooked by the forces of power, envy or indifference.  It is an insidious process. It is continuing its inexorable  traverse across so many of our institutions that we ought to be concerned that council refuse dumps and public lavatories are being denied to those who need them. They are but canaries in the coal mine. Who knows what is coming next.  

RED CARD FOR JUDGES

There can`t be anybody who`s not heard of or used the phrase, "there`s one law for them and another for us" the terms "them" and "us" being who the listener wants them to be.  There is also the commonly accepted concept that the more of an object or a commodity one possesses the less value is perceived of a single item of that object or commodity.  An obvious example is money.  £10 to a receiver of social security and other benefits is worth almost literally infinitely more than the self same amount to a multi millionaire.  And what has this to do with what is a magistrate`s blog or perhaps more accurately the thoughts of a retired magistrate?  Confidence in equality before the law and confidence in those who administer the law are fundamental to our democratic well being.

At the last count earlier this year there were 12,651 magistrates in England and Wales whilst there were 3,174 judges of all levels of jurisdiction from county courts to the Supreme Court.  However reading through just a single year of disciplinary cases (2021)  and for any other year the cases against judges are rare and the outcomes relatively mild as opposed to the numbers and outcomes of J.P.s sanctioned.  Statistically there might or might not be simple explanations.  However the latter are usually in the star chamber owing to personal failings of one sort or another.  Judges` failings on the other hand have a direct effect on legal outcomes where an eager media seem regularly to inform us that government law officers; the attorney general or solicitor general have appealed for a serious offender`s sentence to be increased. On the assumption that a sentencing judge has consulted the sentencing guidelines prior to his/her decision pronounced in open court and has had the requisite experience and training to preside on such serious criminality in the crown court I often wonder at what if any level of "sentencing error" do judges have to undergo some form of retraining?  With most other professions disciplinary processes are in the public domain.  When there are attempts to limit public access as in police gross misconduct cases at least media are informed with the consequent publicity itself of imposed secrecy being used to castigate the particular authority involved.  

The rule of law is fundamental to our continuing functioning as a democracy. Parliamentary proceedings where there is even the remotest suggestion of government attempts to stifle or thwart such is broadcast near and far. But against this trend the judiciary seem to be above criticism.  Perhaps the Lord Chancellor and his advisors are fearful that undermining judges and judicial authority with open disciplinary processes would in itself undermine the rule of law.  I would urge them to see a bigger picture.  If judges` errors and human failings are suspect more harm will ensue to the body politic by their being covered up than fair and and open admittance of their happening. In the interests of fair play sometimes the red card must be shown and be shown publicly.    

25 SUGGESTIONS FROM THE JUSTICE GAP

I would  assume that most readers here have noticed in some media or other a convicted felon having his/her jail sentence increased on appeal by the attorney general. Indeed there are a couple of high profile cases currently going through the process right now.  Less media attention is given to those whose legal teams have convinced the court of appeal that the verdicts by which their clients were imprisoned were unsafe. Rape trials and child killers have often made the headlines with the conviction rate of the former being criticised as far too low and sentences of the latter less severe than the common man would deem necessary short of hanging. Whilst no UK government would every admit and perhaps even secretly admire in private whilst deploring in public the Chinese conviction rate of 99% is typical of justice within a dictatorship where opposition of any kind, criminal or otherwise, is seen as political opposition which must be eradicated.  

The Justice Gap, magazine of an independent pressure group, has this week published its 25 areas where changes in the general manner of criminal court appeals should be improved to reduce the numbers of prisoners released on appeal as their convictions being unsafe.  I have my own opinions of where of the 25 it is just a fishing expedition but there is no doubt that a nation which has been proud of its justice system (at least pre 2010) should not be cutting corners for financial or any other reasons in the process of appeal.  Personally in my own small way often to the perplexity of my colleagues I have,  when active, after pronouncing sentence especially after trial, informed the offender of the manner in which an appeal can be made to crown court. With unrepresented offenders, the vast majority, this is a course of action they never knew existed.  

There is no doubt that since the 25 recommendations would incur some cost or other, direct or indirect, few of the proposals will ever be taken up at least by the current government but they should certainly be food for thought if the next occupant of the woolsack is not a Conservative. 

CROWN COURT BACKLOG/MAGISTRATE SHORTAGE// GOVERNMENT SELF CREATED PROBLEMS

The issues of anything to do with magistrates are usually not headline making nor worthy of headline making........until recently.  No judicial voices were heard in the last decade crying out against the two thirds reduction in the numbers of magistrates from 2010 a reduction that was entirely predictable considering the age profile of those in 2010 and a government policy of non recruitment thereafter.  Now there is a headlong drive by the Ministry of Justice to enlist no less than 4,000 new magistrates to join the current cohort of twelve and a half thousand. One doesn`t need to be a Nostradamus to appreciate that within a year or less a quarter of those on the bench will be novices. One unmentioned result of this inexperienced influx will be that legal advisors will hold sway to an unhealthy level of magistrates` decision making. The ability of benches to take an independent view of a situation will be funnelled into the mindset of paid civil servants who should have no business except that of ensuring that benches` processes fall within the law. Their opinions on fact are outwith their raison d`etre. Their opinions on sentencing should be confined to overseeing that a bench follows the lawful structure contained in Sentencing Guidelines.  From my own experiences there is certainly a number of advisors in every court who exceed those boundaries. It takes a strong minded presiding justice to impose the will of a bench when a legal advisor has a mind of his/her own to impose an alternative view.  With 4,000 newbies it is a certainty that the diminished number of old hands on a bench will face increasing pressure from their novice colleagues not to oppose legal advisors when opposition is exactly what is and will be needed from time to time in the future as it always has been in the past. One overlooked fact is certain: professional district judges are not selected on the basis of being  representatives of their area although they preside alone over about a quarter of cases. So there are and have been two forms of magistrates courts; a supposed court of "representatives"  and another of a government paid professional judge selected only for his/her abilities to do the job.  The propagating of "diversity" in the magistracy is a distraction. 

The other headline maker which has many in the legal world finding the discomfort when their knickers are in a twist is the extension enacted this week of magistrates courts` sentencing powers. Offenders agreeing to either way matters being tried at the lower court face the possibility of a twelve month maximum custodial sentence; double the previous limit which has held sway for many decades. The Ministry of Justice as usual with its overpaid coterie of a press and public relations department has been quick out of the blocks with its gung ho press releases the headline of which from its point of view seeks to alter the basis of argument to its own agenda; "Magistrates to help tackle backlog as sentencing powers doubled."  In short the MOJ seeks to imprint on our feeble minds that the backlog of crown court trials will be reduced.  That is rubbish.  In March the House of Commons Committee on Public Accounts reported, with recommendations to government. The Government had two months to respond.  In the Report amongst its conclusions was written, 

"The number of cases in the Crown Court waiting to be resolved has nearly doubled since March 2019, from an all-time low of 33,290 to 59,928 cases in September 2021. Since March 2020 alone, the number of cases waiting longer than a year has increased by more than 340%. The Department’s plan is to reduce the backlog by less than 7,000 cases, to 53,000 by March 2025. We remain unconvinced of the Department’s intentions to reduce waiting times in the Crown Court, given the slow pace of recovery. In January 2022, after we had taken evidence in December, the Department announced that magistrates will be able to hand out longer prison sentences. The Department expects this will reduce the number of cases that magistrates need to send to the Crown Court for sentencing."

Note that the Committee itself does not endorse the MOJ conclusion; it just repeats it. The prime reason for the delays at crown courts was the government`s own decision to reduce the number of judges` sitting days to reduce costs. In addition there has been a known reluctance to appoint the required number of new judges; again cutting costs having been the reason.  There are c120 full time District Judges sitting in magistrates courts and around 160 Deputies. It is estimated, although hard facts are difficult to obtain, that they sit on about a quarter of all the trials at magistrates courts. Thus they will be judge, jury and sentencer all in one; a situation which is likely to exacerbate the rancour of the more libertarian defence advocates. Currently about 4% of all offenders at magistrates courts receive an immediate custodial sentence. It is beyond any shadow of doubt that the numbers of appeals at crown court against sentence will multiply.  This will further take up time of judges and recorders away from their prime purpose. In addition many more defendants will take the opportunity to elect trial at crown court on those either way offences where their lower perceived risk of being found guilty is confirmed by statistics.  

To sum up; apart from some magisterial bigwigs crowing about their new status there is absolutely no requirement or argument to suggest that the increased sentencing powers will do anything to reduce the backlog at crown courts.  It is nothing less than a cynical effort to demonstrate that the "government is doing something" to fix a problem it itself created.