CHANGE OF P.M. WILL HAVE LITTLE CHANGE FOR JUSTICE

Yesterday I published the latest post of a magistrate`s diary:  A NEW BEGINNING WITH A NEW SECRETARY FOR JUSTICE?  This was written 13th May 2010. Four days previously as a result of the general election on that day the Tories regained power after thirteen years of Labour government.  Thus began an age of austerity subsequent to the recent banking collapse which was almost an existential end to two generations of economic growth following the end of World War 2 and the collapse of the Soviet Union in 1991. The newly ensconced Lord Chancellor Kenneth Clarke was proud to announce ahead of all his cabinet colleagues his departmental budget reduction for the following year.  Altogether 23.8% (£2 billion)  was to be cut from the previous money pot.  Immediately a programme of economies followed including limits on recruitment at the Crown Prosecution Office and legal aid.  In June the ministry announced plans to close more than 150 of the 530 courts in England and Wales. In a major speech the following week Clarke made it clear that the prison population was too high. Changes were initiated which effectively allowed offenders to walk free from what would have been previously an immediate jail sentence. Those with a more thorough knowledge of our justice system than I ever possessed were scathing in their opinions:  they asserted that the economies to be expected would be false ones. Cutting legal aid would simply lead to more litigants in person. Cases would take longer and court costs would rise. Vulnerable children would be at greater risk. There would be more miscarriages of justice costing huge sums to investigate and put right.  How prescient were those commentators.  162 of the active 323 magistrates courts in England and Wales in 2010 have shut with predictable results.  Waiting times have gone through the roof. Those on low income have been denied legal aid, travel times and therefore costs  for staff and witnesses have increased against assurances propagated by a press office`s regurgitation of information that would have made a Pravda reporter in the former USSR feel comfortable. At its heart justice is a function of the state. Apart from the armed services it is not like other public services which can be handed over to the private sector. Justice is a pillar of a democratic society. When the public lose confidence in its efficacy the future is dire. 

Literally at the time of writing a new prime minister is kissing hands with the monarch. Within 24 hours we will be informed whether or not the current incumbent  Brandon Lewis retains his position at Petty France or whether the 10th Secretary of State at the MOJ since 2010 will be appointed. In any event what changes affecting magistrates will take place during his/her occupancy and what would be desirable?  Non payment of the BBC license fee will be decriminalised; a long overdue realisation that an outdated financing model for that organisation cannot be enforced by outdated legislation which to say the least is unjust for so many caught up in its rotten tentacles.  The iniquitous Single Justice Procedure is likely to be offered to miscreants presenting for a wider range of offences that at present.  The increased sentencing powers available to magistrates court benches (two years custody) was met with howls of rage from the legal profession.  I have some sympathy with them owing to the likely diminished quality of Justices of the Peace currently being appointed on a mass basis with questions being asked over a tendency for "diversity" being a criterion in the minds of advisory committees.  However the necessity of defendants being able to have legal assistance when they need it be it because of the seriousness of charge to be faced and/or an inability to self fund that assistance is in my opinion fundamental to a society retaining confidence in those who judge them in court.  The concept of the level playing field of justice and an equality of arms to decide the outcome of trial is no longer realistic when lawyers cannot afford to appear in a court to speak for defendants owing to the derisory fees on offer.  Magistrates must have the confidence to be more interrogative when it becomes apparent that a miscarriage of justice is a possibility owing to a witness`s or defendant`s inability to express his/her thoughts in an acceptable or appropriate manner.  

With so many factors in front of him to be tackled before the next general election it is unlikely that activities of the Ministry of Justice will make headlines or that the new prime minister would want them to.   Plus ça change, plus c'est la même chose.

ADDENDUM 13.15  25TH OCTOBER

Current Justice Secretary Brandon Lewis has resigned.  Look forward to Lord Chancellor number 10 at Petty France since 2010

JUDICIAL CONDUCT INVESTIGATIONS OFFICE IS UNFIT FOR PURPOSE

The Judicial Conduct Investigations Office is the judiciary`s disciplinary body.  Its composition is charted below. 

Unlike most such organisations it operates in secret. Unlike the Spanish Inquisition or the Star Chamber in England the proceedings are not available to public inspection unlike the trial eg of Joan of Arc who was tried by an English ecclesiastical court the verdict of which was subsequently overturned.  Of course that didn`t prevent her being burned at the stake.   Details of the disciplinary process and more are available by typing JCIO in the search box. Today, however, the iniquity of this so called judicial court  is more exposed than ever in its treatment of magistrates who have supposedly erred. In a word they are punished much more severely than their civil service full time paid seniors on the judicial ladder. 

Date:16 September 2022

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

Mr Gary Cracknell JP

A spokesperson for the Judicial Conduct Investigations Office said:

"Mr Justice Keehan, on behalf of the Lord Chief Justice, and with the Lord Chancellor’s agreement, has issued Mr Gary Cracknell JP of the South Northumbria Bench with formal advice for misconduct following a complaint about a verbal altercation he had with a neighbour. While finding the majority of the complaint to be unsubstantiated, they decided that Mr Cracknell’s conduct demonstrated a lack of the circumspection and sound judgment expected of a judicial office-holder."

ENDS

Note that even although the majority of the complaint is unsubstantiated Mr Cracknell`s judicial record is permanently endorsed with "formal advice".  This terse statement is typical of the public record. 

Date: 19 August 2022

 

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

 

Kate Fitzpatrick JP, Natalie Carter JP and Susan Carrington-Porter JP

 

A spokesperson for the Judicial Conduct Investigations Office said:

"Mr Justice Keehan, on behalf of the Lord Chief Justice and with the Lord Chancellor’s agreement, has issued Kate Fitzpatrick JP, Natalie Carter JP and Susan Carrington-Porter JP, of the Staffordshire Bench with formal advice for leaving court early without authorisation when they were listed to sit on hearings."

ENDS

From the above it would seem that a full bench must have had its own very good reason(s) for leaving.  The term "without authorisation" is a form of words that I`m sure would not have been used were the miscreant a District Judge or Recorder. It indicates the manner in which the JCIO regards magistrates. 

Date: 26 July 2022

 

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

 

Lesley Pickup JP

 

A spokesperson for the Judicial Conduct Investigations Office said:

"Mr Justice Keehan, on behalf of the Lord Chief Justice and with the Lord Chancellor’s agreement, has issued Lesley Pickup JP of the Greater Manchester Bench with a formal warning for her disruptive behaviour during an online training course and for the improper tone of her post-course feedback. In reaching their decision, they took into consideration that Miss Pickup had received a previous disciplinary sanction for intemperate behaviour and was unwilling to accept full responsibility for her actions."

ENDS

"disruptive behaviour",  " improper tone of her post-course feedback", "intemperate behaviour",  "unwilling to accept full responsibility for her actions."  These phrases of castigation appear to me as if a teacher is disciplining a disruptive child in her class.As for " unwilling to accept full responsibility for her actions." that means that she defended herself against the accusations but failed to convince the accusers of her innocence.  It reminded me of an occasion when I was appraised internally by the then bench chair who told me the process was that subsequent to her presenting me with her report and signing it off I was permitted to add my own comment after hers and that would complete the matter.  However after my criticism of her comments and having signed as instructed she proceeded to add her criticism of my comment wholly against  her own description of how the matter would be officially completed. She had changed her own rules to suit herself.  In the above case I have a sense that Ms Pickup had forfeited an opportunity to be professionally defended and that no doubt would be due to the cost of so doing.  In any event we just do not know proving once again that secret justice is bad justice.

Date: 25 July 2022

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

Polliner Chukwuma JP

A spokesperson for the Judicial Conduct Investigations Office said:

"Mr Justice Keehan, on behalf of the Lord Chief Justice and with the Lord Chancellor’s agreement, has issued Mrs Polliner Chukwuma JP of the East London Local Justice Area with a formal warning for making a complaint against another magistrate in bad faith. In reaching their decision, they took into consideration that Mrs Chukwuma failed to accept responsibility for her actions."

ENDS

Once again the statement throws out the accusation that the erring magistrate "failed to accept responsibility for her actions."  In other words she had not pleaded guilty but defended her actions.  What`s more the sentence of the inquiry took into consideration that non acceptance of culpability.  The defendants at the Spanish Inquisition knew they could save their lives by renouncing their heretic beliefs or their Judaism.  I doubt that Mrs Chukwuma was offered the opportunity to "repent" and accept a reduced sentence; eg "advice" as opposed to "formal warning".  Unfortunately she now faces dismissal if a further "grievance" is successful. 

The above is just a current extract of the everyday workings of an organisation which should not exist in an England of 2022.  There must be some form of disciplinary process for members of the judiciary but in its current form it is simply not fit for purpose.

BAD NEWS FOR THEM AND WORSE NEWS FOR US

It seems that with Dominic Raab`s departure from Petty France the new government (for that is what we have in practice if not in name) felt that pressure on the courts would be relieved by the Criminal Bar Association`s acceptance of an agreed fee increase back dated to the backlog of 60K cases in crown courts. But no sooner had one head of the legal Gorgon been lopped off than others have appeared.  Solicitors are also putting forward claims for increases.  The Crown Prosecution Service, a direct employer within the MOJ, is under pressure from its diminished workforce of prosecutors for increased pay rates.  This from a service which, like teaching, dentistry, the legal profession and others has, over the last two decades, introduced a class of prosecutors of lower qualification to prosecute initially what were simple guilty pleas in the magistrates courts. And like the aforementioned professions their scope has been widened the prime purpose of which is to reduce costs.  On top of all that magistrates courts staff, legal advisors and court associates, who  postponed last month’s planned strike after the death of Queen Elizabeth II, will take action from 22 to 30 October at 65 magistrates’ courts in England and Wales over the  controversial Common Platform system. 

And that leaves magistrates, who,  for more than a decade have been considered in practice if not in theory as unpaid employees by HMCTS [His Majesty`s Courts and Tribunals Service].  Their morale whilst not measurable is considered by some as not of the highest level.  Part of the reason is one of out of pocket expenses; an important consideration considering that JPs are volunteers.  The mileage rate is now 45p per mile – the standard, HMRC-approved, rate. However it was changed some time ago from a three tier system which paid a different rate according to the size of your car’s engine. Those with very small cars were made better off, those with larger engines lost out to the tune of 13p per mile. The new system might be fair but inevitably the losers are not happy. If officials want someone to sit in a court thirty, forty or fifty miles from their home, they do not take account the cost to the magistrate of that journey before allocating that sitting to him or her. In response to requests that the paid rates should be increased to cover the significant increases in the cost of fuel, insurance, maintenance etc, the MoJ simply says it would be too difficult to introduce a new, fairer, system.  When magistrates courts were responsible for their own individual rotas such difficulties were sorted in house.  The take over of that process was the second in a continuing series of authoritarian grabs by HMCTS the first being the abolition of magistrates courts committees a couple of decades ago.  This has continued to the present when so called unelected appointed "leadership" magistrates were supposed to be a replacement for elected bench chairmen who comprised a national forum which could be described as a magistrates` senate. They most certainly are not.  They are self serving people with a veneer of doing public works looking forward to a gong which the civil service often offers to its own unlike that which is earned by fine people like my late mother for doing good works within the community.   

I am sure that many now on the bench must be re thinking their role in our justice system.  Covid 19 has reeked havoc on the courts as it has in so many parts of our lives.  There are three areas to be considered.  The best place to begin is the judicial oath which every JP must swear in a public place before being recognised.    “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign lord King Charles III in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  With the introduction of the Single Justice Procedure over five years ago can it truly be said that those undertaking this position are following their oath?  The process is carried out behind closed doors where the onus in practice is for the accused to prove his/her innocence; where there is no possibility of outside comment because of course there is no reporting. But it seems there are enough magistrates willing to sell their souls so that they do not incur the wrath of HMCTS.  Indeed they might be described as spineless but their dark place in our courts system is self inflicted to some extent.  They have no way to resist apart from resignation.  They have no organisation which represents them.  Some might cry but there is the Magistrates Association.  But the Magistrates Association is to magistrates what the Spanish Inquisition was to heretics: a lingering painful  departure or a quick end. Its charter prohibits any form of representative protective activity.  It produces a lengthy 37pp account of its activities for the Charities Commission and specifies that its annual income from membership fees is £472,728 equalled by a similar grant from government but nowhere does it tell us in all the 37pp how many active members are on its books.  Generally speaking if the government whistles the MA does a jig. Unless magistrates have a truly independent protective organisation where individuals can exchange opinions and have a shoulder to cry on when faced with professional problems representation as we know it is a mirage. Indeed as a very early contributor to an independent forum constructed on the MA website early this century I have witnessed its being absorbed into the "protective arms" of the MA and then being removed altogether.  The result is as a body of around 12,000 souls nationally magistrates have no way to communicate with each other except in small voluntary groups

Finally and perhaps of most importance is the fact that so many defendants now appear for summary trial without legal representation or plead guilty simply to avoid the period wasted until court time is allocated for trial and of course to seek a 33% early guilty plea sentence reduction.  During the trial magistrates have from their earliest training been told to apply the principle of there being equality of arms on a level playing field and that their position is to sit as Zeus in the clouds and pass judgement on the facts presented. It is my strongly and long held opinion that whilst not approaching the position of "magistrate" as employed in France nevertheless British magistracy must be redefined.  And that means that a currently forbidden on pain of death interrogative approach must be undertaken when litigants in person (LIP) are facing professional prosecutors of the CPS.  During my final five or so years pre retirement when this situation even then was becoming not uncommon I upset many legal advisors and not a few colleagues by assisting those who could not quite formulate their answer in cross examination by the often incomprehensible legal verbalise of crass prosecutors owing to poor English or intellect or both and more significantly those whose ability to question witnesses was hampered by their inability to translate their thoughts into clearly understood sentences.  

Justice cannot be done in 2022 by habits formed in 1922. It is urgently required that an academic researches all aspects of the magistrates courts procedures from first appearance to sentencing outcomes with particular regard to those points above.  Only then will there be continuing public confidence in this part of the justice system; a part where well over 95% of justice is dispensed. And for magistrates themselves: until utilising perhaps outside influences attempts to attract individuals of the calibre of those of the last decades of the 2oth century will be blighted.  But as the cynic within me keeps whispering: governments are seeking ever increasing control of the legal system to suit themselves.  Sourcing JPs en masse as is happening now is not a clear indicator of  a desire to improve the quality of what was once upon a time the independent bench.  All too often the appearance is to reinforce the concept of  a master and servant relationship which is bad news for them and worse news for us.

 

TITANIC JUSTICE

So now we have the ninth Justice Secretary in 12 years of Tory government.  Each has left no fundamental mark upon the justice system although failing Grayling did his best to undermine the prison and probation services.  Until the summons hits them in the letter box most people have little knowledge of and couldn`t care less about the courts and what goes on within them.  Part of the reason is that local court reporting about which I have written here more than once is becoming a historical left over from the time when local newspapers cost a single denarious  (1d). When local communities were what that term really meant and neighbours or some of them were truly their brothers` keepers. When shame of transgressing in many forms really did act as a deterrent to misdemeanours and more serious acts of local disapproval. With over a million cases annually passing through magistrates courts very few are considered worthy of local reporting by newspaper editors or their financially pressed owners.  Instead when apparently atrocious decisions are reached in the courts it`s more likely that dissemination of the cases is spread by social media with all the accuracy and (m)objectivity such media offer to those with the time and the wit to provide an opinion.  Indeed the Law Society Gazette last week published a very interesting article on court reporting. 

Thankfully notwithstanding the above there are still some reports of the magistrates courts up and down the country.  And there are still some cases where the defining object seems to be that all steps must be taken so that as few offenders as possible are subject to immediate custody however much the facts of the case seem to point unhesitatingly in that direction. 

An officer of Staffordshire Constabulary was found guilty after a two day trial  of common assault following which he was found guilty of misconduct at a public hearing chaired by the force`s Chief Constable but allowed to keep his job. Such lenient decisions are sure to undermine public  confidence within the country. No shame, no deterrence and yet there is wonder in high places why respect for the uniform is failing. 

Until 15-20 years ago suspended sentences were not very common.  Then the law changed in parallel with the cost of keeping convicts in jail becoming a hot political topic and the increasing discomfiture within and without parliament of the annual rises in custodial sentences almost overwhelming the prison system.  According to all guidance given to magistrates a custodial sentence could be suspended only when the custody threshold had been reached.  That instruction  fell upon the deaf ears of some magistrates and certainly many probation officers who saw a suspended sentence as one level below certain immediate jail time.  Criminal Behaviour Orders (CBO) have been the subject here previously my opinion being that they should be titled for accuracy as criminal displacement orders.  They are civil orders the breach of which is a criminal offence.  Indeed I sat on the first such case in the country and because its terms were not met by the prosecution it was thrown out. When a magistrates court sentences an offender to 40 weeks inside it is a matter of note considering that only about 3% of all cases in those courts receive an immediate custodial sentence. It is somewhat against the grain when 40 weeks custodial, a very severe sentence, is suspended.  What does that do for public confidence in our courts?  Consider also that the offending was in public.  

Crown Court judgements naturally receive more coverage than the lower courts but the single sentencer, the judge, also has the Sentencing Guidelines to follow plus the unwritten advice concerning our overcrowded prisons.  Critics of comments such as those here maintain that without full knowledge of a court`s proceedings remarks on sentencing are without foundation.  Unsurprisingly I disagree. The alternative is silence. As this case shows it is truly shocking that apart from any mitigation by the defence such an offender committing such an offence should not escape immediate custody. To the general public as per the article headline he has avoided jail. When the state fails to act in accordance with natural justice that justice and its proponents are devalued and a sense of vigilantism creeps in to the dismay of all who hope some sense of society still remains in our psyche.    

A similar case in Hartlepool shows that there is a deficit in government thinking brought about by a continual failure to provide required funding for the Ministry of Justice currently a little over £9 billion.  

The problem is an unrecognised national carbuncle on the arse of justice.  Readers will see a similar dereliction of catering for the public good  in this case. 

There is no doubt that below the public consciousness budgets like that are of little significance to public and Treasury when NHS, Education, Defence and Social Security hit all the headlines.  However like the Titanic it`s what is below the waterline which most effectively defines whether a ship (and its passengers) or a nation sinks or swims to safety.