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.