SUSPENDING CUSTODY

Health, immigration and crime; these three topics are, according to our political masters, the subjects most raised on the doorstep.  That term "doorstep" is shorthand for what a politician seeking election thinks will carry most meaning as a personal interest for the electors many of whom have never been visited by such an individual for many years.  My own suburban doorstep has been politician frei  for decades.  Nevertheless all three topics are a statistician`s delight.  Every aspect of the inner workings, inputs and outputs and much else of their function is argued over and debated from school children being encouraged to consider how society works to cabinet ministers agreeing to disagree to preserve party unity to improve their prospects of re-election. Crime, unlike the other two topics, for all the hubbub raised in media from time to time, is rarely an issue of personal involvement.  Opinions flare according to headline news.  Indeed that is why since 2010 government has been able to get away with closing half the country`s magistrates courts,  emasculating the legal aid service, imposing a secret courts system (the Single Justice Procedure) and using the recent pandemic as an alibi for trial delays of two years or more. The last decade has also seen that same government attempt to control the numbers of offenders who deserve immediate custody by virtue of government`s own sponsored sentencing guidelines.  There is no altruism involved.  No latent governmental compassion is involved.  Quite simply what was once a reasonably efficient probation service has been systematically ruined by government dictat and prison services allowed to deteriorate both in those still under their control and the remainder outsourced to companies whose shareholders` dividends are their sole reason for their existence.   Those are the reasons why a decade or more ago sentencing discretion in the courts which had followed an informal but well structured approach was abolished in favour of state controlled sentencing guidelines.  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.  However On 4 April 2005 two new sentences for adults aged 18 and above became available to the courts in England and Wales: the Community Order and the Suspended Sentence Order (SSO). Both sentences were intended to narrow the custody/community divide and therefore were important factors for the development of the National Offender Management Service (NOMS). Both were also intended to offer more robust, demanding and credible alternatives to short custodial sentences, thereby contributing to reductions in the prison population. Both should be served in the community.  From my own experience the basic judgement that the court had to be absolutely certain that the custodial threshold had been crossed before there could be consideration of its being suspended was often overlooked by fellow magistrates as well as probation officers in their pre sentence reports.  To this day, more than a decade into the current guideline, many media still refer to custody suspended as a get out of jail free card.  The number of persons who received suspended sentences at magistrates courts in 2006 when revised guidelines were introduced  increased more than three-fold over 2005 from 7,100 to 23,300, having been around 1,200 on average in the years from 1996 to 2004. The proportion of persons who were sentenced to suspended sentences at magistrates courts was two per cent in 2006, compared with 0.1 per cent in 2004, the last full year before the changes brought about by the Criminal Justice Act 2003.  In the year ended June 2021 the number of suspended custody orders made at magistrates courts was 8,395 or 1.16% of 722,563 sentenced that year.  The immediate custody rate for the same period was 1.5%. Undoubtedly the pandemic has had a major effect on the numbers during that time and is having a knock on effect with all courts severely backing up hearings.

In practice it is my opinion that it is difficult not to get an impression that there those deserving of immediate custody who are being given too often the benefit of the doubt insofar as the sentence being delivered is of custody suspended.  Just a few of such recent outcomes are listed below.  Media reports are as usual basic and only those attending these courts will have had  the same information as the bench but nevertheless until local court reporting becomes as regular on our TV screens as "breakfast television" or weather forecasts these reports are the only media on which we can base an opinion on the outcomes so readers` opinions are as valid as any. 

Leeds cleaner

Assault on police

Assault by police

Multiple drug driving

 

EQUALITY BEFORE THE LAW? I DON`T THINK SO

Controversy exists in all walks of life. It could be argued that it is within the practice of medicine and the interpretation of the law that that condition when it does exist  affects most people most often most seriously.  To some extent the judicial oath should minimise or eliminate much of the controversy in our courts. “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign King Charles the Third in the office of ________ , 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.”  Medical practitioners have their own historic words to affirm their intentions in the practice of their profession. Many people think that doctors still swear the Hippocratic Oath. It is not compulsory but in fact many medical schools now hold a ceremony where graduating doctors do swear an updated version. It is often said that the exact phrase "First do no harm" (Latin: Primum non nocere) is a part of the original Hippocratic oath. Although the phrase does not appear in the AD 245 version of the oath similar intentions are vowed by, "I will abstain from all intentional wrong-doing and harm".

And so to a situation where these two declarations clashed at City of London Magistrates’ Court.  At this point I must declare an interest.  As I have written previously I have experienced the result of Extinction Rebellion`s determination as an organisation to disrupt the daily lives of ordinary people going about their ordinary or extraordinary but lawful business by blocking the public highway.  Having said that the following comment is based simply on fact.  

Section 14 of the Public Order Act 1986 grants the police the power to impose conditions upon public assemblies which govern the time, location and circumstances of such assemblies. They are only permitted to do this if a senior police officer reasonably believes that:
 
1. An assembly may result in serious public disorder, serious damage to property or serious disruption to the life of the community; or
 2.The purpose of the assembly is to intimidate others into doing or not doing something which they have a legal right to do.

In the case of the Extinction Rebellion protests the Met Police have stated that they believe the protests have caused serious disruption to the community, following what they say have been ongoing breaches of previous section 14 conditions. The courts have said that any conditions imposed under s.14 must not amount to a disproportionate interference with the rights to freedom of expression and freedom of assembly. Earlier this month seven medical professionals were acquitted by a District Judge of a breach of article 14 on the grounds that  he was "not convinced that the necessary steps that are required for the imposition of section 14 had been taken". Of reports that I have checked none has reported if the judge explained that observation. In my humble opinion the court, the CPS and the public are owed an explanation for his action. Certainly from my own experience of the admittedly relatively limited times of presiding over high profile cases the legal advisor would have politely suggested that my pronouncement should include the complete reasoning for the bench`s decision including what said steps deemed to have been omitted.  In addition it appears that the judge was pre disposed to the fact that the defendants were doctors. According to a report "The judge was ‘impressed by the integrity and rationality of their beliefs’ and found doctors’ evidence ‘highly moving’."  Thus by his own comment the judge was emotionally motivated in reaching his decision.  The defendants` occupations had obviously been a major factor in his conclusions.  Consider for one moment what the decision might have been had these defendants been unemployed or poorly educated workers exercising what they had considered to be their "rights".  Indeed in that instance would the police themselves have acted differently.  These questions should not arise from this case.  The law should be equal for all. This hearing shows clearly that that is and has been for decades a misconception. 

SNIPPETS

Sometimes there are snippets of information which in the excess media output showered upon us all in any 24 hour period are often overlooked.  These snippets are today the subject of my post. 

Judges can be bullies.  I doubt that there are many lawyers who disagree with that assessment.  But it is not I offering this opinion it is Lord Burnett the big chief himself. A comprehensive report in the Law Society Gazette can be found here.  However unlike the disciplinary bodies of the vast majority of professions the general public will rarely be aware of these episodes of misconduct and in the current climate the "m" word is certainly appropriate.  There will be discreet "advice" offered for most cases when judges` godlike behaviour or language  exceeds what is termed "tolerable" by those judging the judges.  Only the most serious matters will ever reach the eyes and/or ears of Joe Public.  There are those who view the current way of handling such cases in private as essential for retaining public confidence in the judiciary and hence the law and hence the government which makes such law. Whilst there is a whiff of an argument in that position it is now untenable.  When universal websites and interactive social media conspiracy theorists and rumour mongers benign or benevolent  are just around so many corners it renders that policy time to be overhauled.  Those that do feature in the 1984 version of the Judicial Conduct Investigations Office deserve at least for them and for us a full explanation of their situations.  The General Medical Council was for decades also secretive about its actions when its members fell foul of their own ethics or the law of the land. Not before time its disciplinary processes are now open to those interested.  

There is no doubt that magistrates who transgress receive shorter shrift at the hands of the aforesaid JCIO than others who feature in its disciplinary statement. But how do lawyers fare in comparison?  From this example it would appear that the Law Society is much more tolerant of aberrant behaviour than others performing a similar function to protect the population from those who fail to abide by internal rules of behaviour.  Certainly a magistrate would be sacked if s/he were guilty as  Simon Trees a solicitor partner. 

I am old enough to remember when from time to time one broadsheet or another would comment on how a defendant in India had been remanded in custody for perhaps 10 years or more before being acquitted at trial.  "How awful" would be the Comment or Opinion column which would then go on to congratulate the British justice system for its professionalism where such outrageous delays could not happen and especially when the result was acquittal.  Such glorious national chest beating by the legal profession and its mouthpieces like homing pigeons has come home to roost. DPP Max Hill has said that 74,587 cases at crown courts were live (between charge and trial) at the end of September. Asked if the government’s target of bringing down the backlog to 53,000 by March 2025 was achievable, he replied: ‘A large number of things would need to align for that to take place. It’s certainly achievable to return to the backlog below 50,000. That’s where the system was, at 43,000, in February 2020. But to achieve that now, at a baseline of almost 75,000, a number of things would have to happen.’  On the current economic climate and impact of potential budget cuts, Hill said: 'If we are not able to maintain the budget that we were given in the spending round of 2021, and we are therefore not able to maintain the expansion in our numbers within that budget envelope, I think it will be catastrophic for our work, it will be catastrophic in terms of the impact on the backlog. In simple terms, I will not be able to say to CPS staff, "just work even harder". I have said that already.'  With the statement of the Chancellor of the Exchequer due in 48 hours and predictions of budgets being decimated the future of our courts being able to offer simple, speedy justice seems unlikely at best and a descent into Indian standards of tardiness at worst.  

For many years it has been obvious that the government will check out any method that keeps people out of jail provided that it retains the public`s confidence and that statistically it reduces recidivism. Enter remote monitoring. At 30 September 2022, the total number of individuals actively monitored was 14,996 , an increase from 13,371 as at 30 September 2021. The number of individuals actively monitored under a court bail order was 5,979 as at 30 September 2022 or 40% of all individuals actively monitored. This is a 9% increase from 5,471 as at 30 September 2021. Between 30 September 2021 and 30 September 2022 the number of individuals actively monitored with a location monitoring device (GPS) increased by 143% (from 2,161 to 5,243). This increase is the result of the continued roll-out of electronic monitoring to new offender cohorts, particularly immigration bail. As at 30 September 2022, 1,503 individuals were actively monitored with an alcohol monitoring device, a 153% increase from 593 as at 30 September 2021. This reflects both the continued national roll-out of alcohol monitoring from March 2021 and the introduction of alcohol monitoring for prison leavers.  Whatever the cost involved in tagging it is much cheaper than keeping an offender in prison the average cost of which is £926 per week.  What is difficult to calculate is the failure and/or recidivist rate.  Perhaps a criminologist reading this can supply some answers. 

Earlier this year  in 47 Crown Courts in England   pre- recorded cross examination became available to victims and witnesses of crimes such as rape and modern slavery. The video was then able to be played later during trial subject to a successful application to the court.  By the recording taking place as close to the time of the offence as possible memories remain fresh, and helps victims avoid the stress of giving evidence in a live trial which some might find traumatic.  Many statistics on rape and conviction rates are open to speculation and the politics of the observer.  What is obvious and cannot be denied is that an act which for most people is lawful ie sexual intercourse must be separated from a not dissimilar act which is a very serious offence.  Sometimes the proverbial counting of the angels on a pinhead might be considered simpler to codify. 

Finally for those who wish to know the latest criminal statistics here is your opportunity. 

STATISTICS, SPEEDING AND THE FACIAL CARBUNCLE OF THE SINGLE JUSTICE PROCEDURE

Cases at magistrates courts are usually routine insofar as they involve breaches of the law committed by thousands annually. Last year 48% of cars exceeded the limit on motorways; 11% of cars exceeded the limit on national speed limit single carriageways and 51% of cars exceeded the limit on 30mph roads. The proportions of cars complying with the speed limit were 52% on motorways, 89% on national speed limit (NSL) single carriageways and 49% on 30mph roads.On NSL single carriageway roads 11% of cars exceeded the speed limit compared to 51% on 30mph roads and 48% on motorways.The proportion of cars exceeding the speed limit by over 10mph on 30mph roads was 5%, whilst 1% and 10% exceeded the speed limit by more than 10mph on NSL single carriageway roads and motorways respectively. The RAC Report on Motoring 2021 asked users to select up to three reasons why they exceed the speed limit for each road class. The respondents who admitted to exceeding the speed limit on motorways selected a greater number of reasons on average than those who admitted exceeding the speed limit on 20mph roads. Of these five reasons the top reason given was “I drive according to the speed of other road users”, cited by 40% of motorway users and 33% of 30mph road users. On 20mph roads users most often cited the speed limit being inappropriate as the contributor to their exceeding the speed limit (49%). All the above are hard statistics. For those involved there was an 90% conviction ratio for people proceeded against for speed limit offences in England and Wales in 2021 (187,000 were found guilty). In 2021, 33% of motoring convictions were for speed limit offences. It is unlikely that any magistrate on any day is aware of all these numbers and many more concerning the results of these transgressions. As of 2019, the Single Justice Procedure  accounted for 57% of the 1.5 million cases passing through magistrates courts in England and Wales. In 2020-21, 2,426,950 speeding offences were detected in England and Wales. These represented 86% of the total number of all motoring offences for all of England and Wales.  I have so far been unable to discover the number of speeding offences undertaken through the Single Justice Procedure. 

There can be few of us who have not driven past two or more  speed cameras on a motorway whilst exceeding the speed limit on that stretch of tarmac.  The police must send the actual speeding ticket, i.e. the Fixed Penalty Notice, within six months of the date of the offence. They can only send the speeding ticket if they previously sent the Notice of Intended Prosecution within 14 days. With a six month delay allowed for prosecution those of a nervous disposition are liable to experience a few sleepless nights. A defendant who had the experience of multiple charges for excessive speed on a single journey decided to exercise his right to a court hearing.  Personally not once in my time on the Bench did I sit on any situation remotely similar. I would hazard an opinion that my lack of experience in that regard is common amongst JPs.  My point in all this statistical overload is the likelihood of so many defendants with a clean license in a similar situation, perhaps with two lapses involving 6 penalty points, or three with 9 points at stake being unable or unwilling to take their case to a full hearing at a magistrates court open to the public and to that diminished coterie of court reporters. Increasingly warranted criticism of the SJP is beginning to move some "movers and shakers" in the direction I have advocated since its inception.  It is a carbuncle on the face of British justice and it should be abolished. 

ONE COURT`S MEAT IS ANOTHER COURT`S POISON

Lawyers involved in criminal law have a lot to read.  Daily, thousands of cases are decided.  Whilst most are routine in the broadest sense of that word because for those involved be they witnesses of defendants they are anything but, there are always a few where there are lessons to be learnt or an exposed conflict between the letter of the law and its spirit.  For the interested  non lawyer only those cases which make the national or increasingly under reported local news media are attention worthy.  Occasionally this blogger considers them worth a few minutes of his and others` limited reading time.  

Perhaps the most interesting revelation of recent weeks is an insight into how woke our justice system has become.  The tendency for so called "diversity" to be upheld as the 11th commandment is to me of great concern.  It reveals a desire for superficial appearances in thought, mind, intention, opinion or deed to be of a uniform nature on pain of expulsion or to use the current terminology "cancellation". The individual who has expounded this "philosophy" is no less than the Master of the Rolls.  Whilst there is much to be improved with British judges and especially those at the top of the judicial tree such comments are in my humble opinion most unhelpful.  Perhaps judges` dining quarters (where I have in times past been a guest whilst sitting on appeals) should display a notice of topics to be outlawed.  Perhaps there should be microphones hidden under the dining tables to catch those robed figures in full flow over their Salade Niçoise.  

As if Bristol University has not self harmed over its years long refusal to sack antisemitic lecturer David Miller it is now faced with demands over its policy regarding the well being or otherwise of the students under its care.  Whilst not currently a matter for lawyers it might soon be.  The very sad case of  Natasha Abrahart must strike a chord with every parent with a student child.  I recollect that when as a parent amongst many others  I was in a lecture hall at Newcastle University where my son was considering enrolment listening to a professor telling us that the university could not discuss with parents any matters; educational or medical  affecting their children because they were over the age of 18 and their consent would be required.  Too many student suicides surely must force authorities to allow a middle ground of common sense to overcome rigidity of historic practices. 

The Home Office and its bosses are currently very newsworthy for an authority which is the epitome of all that is lawful in practice.  Nimbyism will forever be a trade off between local rights and political favouritism and a greater national interest. Nowhere is this more relevant than in the dispersal of illegal immigrants to hotels and accommodation in areas palpably unsuitable.  Perhaps a court will again have to overrule the wishes of this department of state.

Having personally been delayed on the M25 for over an hour by so called protesters I am pleased at this judicial ruling last week.  These misguided individuals are proto fascists seeking to impose upon so many others their supposed solution to a massive problem.  This ruling must be followed by others similar when required. 

Knife crime even when the weapon is brandished but not used must be punished by immediate custody has been the mantra of Lord Chancellors for a decade.  Oooops but the tidal wave of cases where "mental health" is an excuse seems to have infected the judiciary to see things differently.  In such matters I ask myself how did the generations of the last century survive such problems with a weary "get on with it " attitude but then perhaps I really am a dinosaur out of touch with current norms. 

Legal interpreters, translators and other language service providers have long been an essential part of the justice system. The ability to understand the case against you and to understand the process you are subject to, either as a plaintiff or defendant, is a vital part of the right to a fair trial and is guaranteed both by centuries-old common law and Articles 5 (right to liberty and security of person) and 6 (right to a fair trial) of the European Convention on Human Rights.  Answering questions about this privatisation contract in the House of Lords on 9 July 2012, Lord McNally Minister of State for Justice stated that the courts receive ‘some 800 requests a day for such interpretation’. In an attempt to make savings  of up to a reported £12 million per year as well as to make the system more efficient, the MoJ entered a four-year framework agreement in August 2011 worth £168 million with a small private language service provider, Applied Language Solutions Ltd (ALS), to provide legal interpreting services potentially across the whole justice system (police, courts, prisons, etc.) A further five-year contract, under the framework agreement (‘agreement’), worth £90 million signed by the Ministry in October 2011 and took effect in January 2012 covering mainly the courts and tribunals, has courted much controversy. It has been the subject of two parliamentary select committee inquiries and a report which revealed the total inadequacy of the individuals responsible for approving the deal. Shortly afterwards ALS was sold to Capita the outsourcing firm for a large profit. Probably some time after the 30 year rule the shenanigans will be revealed. Meanwhile the consequences continue.  This is an example. 

I have at times castigated judiciary for saying too much and occasionally too little about the inadequacies of the judicial system at present.  At Swansea crown court HH Judge Geraint Walters spoke I`m sure for many of his colleagues when he raged at the CPS.  

It was the recommended practice in my day not to ban drivers in their absence and to do everything to secure their attendance at court.  The reason of course was obvious: no driver should be driving with a disqualification over his/her head about which s/he was unaware.  I wonder what efforts were made at Harrogate magistrates court to drag these offenders to court to hear their fate straight from the horse`s mouth? 

A round of strike action at magistrates courts under the auspices of the Public and Commercial Services Union led by far left boss Mark Serwotka ended on October 30th.  According to the union it has a mandate to take further action and reserves the right to call more strike action if necessary.  Considering the problems currently with magistrates courts` backlog one would hope that sense will prevail but of course one court`s meat is another court`s poison.