SERMON ON THE BENCH

A common theme, some might say obsession,  of many of my posts over 13+ years on this site  is secrecy: whether in the police, judiciary, other legal associated professions  or in the judicial supervisory process.  The Judicial Conduct Investigations Office is the organisation tasked with doing what it is says on its lid. However in many aspects it doesn`t perform according to its website where its raison d`etre for its existence is as, " an independent statutory body which supports the Lord Chancellor and Lord Chief Justice in their joint responsibility for judicial discipline. Our statutory remit is to deal with complaints of misconduct . This means how a judge has behaved personally, e.g. making a racist remark, inappropriate use of social media, or falling asleep in court."  The definition of "misconduct", the be all and end all of its function as defined above, in itself seems narrowly drawn. Considering that investigation into magistrates is the largest group by far into which the JCIO involves itself this omission is telling.  In addition there is a caveat insofar as the limits of its authority.  "We cannot accept complaints about a judge’s decision or the way a judge has managed a case". And that is exactly where the secrecy begins.  Compare that with "how a judge has behaved personally, e.g. making a racist remark".  

On 29th September last year  calling themselves environmental protesters a rag band of people blocked Britain`s busiest motorway M25 causing misery and delays for thousands of drivers going about their lawful activities whether of business, pleasure or public duty.  Owing to delays in the court process those arrested for their actions that day only came to court on 12th April this year.  Some of the demonstrators appeared at Crawley Magistrates' Court while others pleaded guilty by post. They appeared before District Judge  Stephen Leake who had been appointed just six months earlier. And during that legal process he made remarks which if they had been made by any presiding magistrate would almost certainly have led to an investigation by that august body to which I have referred above. But my point is that despite widespread media coverage it seems that this arrogant, foolish, irresponsible judge having made possibly the most injudicious judicial remarks of the year will continue to preside over his court with nary a word of official criticism.  Once again I publish below the judicial oath; an oath which must be obvious to the most legalistic mind, has not just been broken but has been torn to shreds by the ego, smugness, imperiousness and haughtiness of this highly paid civil servant in whom the general public must place its trust and in those who appointed him and deemed his actions acceptable. 
“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.”  Perhaps he considered that by finding the offenders guilty his remarks were justifiable.  His comment:- "I have heard your voices. They have inspired me and personally I intend to do what I can to reduce my own impact on the planet"  gives me the impression he regards himself as a preacher to those of us who consider these law breakers as embryonic fascists seeking to impose their opinions on the rest of us by any means they consider necessary. 

He is not only a district judge.  Stephen Leake was appointed to the Sentencing Council on 2nd May 2022. This sermon on the bench was a disgrace to his office.  It is an affront to those whose lives and livings were considered so called collateral damage to the offenders` extremist views but it is also a warning that there have been, will be and currently are judges who will use their positions either for their own aggrandisement or to further the will of the state.  A supervisory office whose activities are shrouded in secrecy  seems to be a compliant accompaniment in all this. 

Of course those remarks by Leake have precipitated glorifying comments of their comrades by self styled anarchists  calling themselves Insulate Britain:those who would align themselves with true heroes of the past who made this nation truly a better more civilised society. This is the country suffering from the effects of a savage war in Ukraine and the results of a political system falling apart.  Others might view the situation as the perfect time for a cultural revolution  British style.  

A CHRISTMAS BENCH

It`s that time of the year when the watchwords of "Peace on earth and goodwill toward men!” will be dismissed by some as sexist, misogynist and an archaic use of language unfit for current usage. Whilst not everyone is duty bound to be a Christian in one form or another the sentiments in that phrase are universal.  It is just like a sailor many days at sea  looking at the horizon; it seems to be never ending until land is sighted.  There are occasions when war and hate also seem never ending. History unfortunately is often on the side of the pessimists.  However for all readers of any denomination or none I wish you that traditional English "merry" Christmas and a happy new year.   

MAGISTRATES AND GETTYSBURG

Very few people, I`m sure, of those interested in the application of law to our society will have been unaware that the MOJ has been using widespread advertising in order to appoint in the near future 4,000 new magistrates.  This requirement is similar in some aspects to the widely propagated view of highly placed Conservative ministers and MPs that 20,000 new police constables are being recruited or 40 new hospitals are being built. That since 2010 20,000 police officers have retired from the force, been made redundant or not been replaced by various Conservative governments is now as well known as the chimera of the current recruitment drive. Similar argument can now be seen as applicable to the nonsensical claim of 40 new hospitals. When urgent numbers of new personnel are needed for any profession there is clear risk that standards will be lowered, stretched or in other ways made as flexible as possible to fill the quota required especially when a government is ultimate employer and seeks to maximise the hoped for beneficial optics. 

And so to those eager, aspiring new magistrates required now in bulk owing to the MOJ refusing to recruit over the last decade when retirements were predicted as easily as future Christmas days were diarised.   It is unlikely that any information, gossip or assistance they receive either prior to or subsequent to a successful application will adequately prepare them for what they are about to receive. The intangibles of entering a hybrid state of being volunteers but also considered  unpaid employees of a government quango; the most junior members of the judiciary, so called representatives of their local communities, examples of "diversity" in action and yet having the power to sit in judgement upon their fellow citizens who are at risk of 12 months jail time.  In addition they will be entering an environment where the term woke in word and deed is considered as normal.  Perhaps if they were instructed to read the statements published with unfailing regularity on the website of the Judicial Conduct Investigations Office they would be warned of what is expected of them. Indeed the initial training might be considered in commercial and/or website small print as terms and conditions.  

On the JCIO website today Helen Mackay JP was placed into the last chance saloon.  Also today it was announced that Miss Kaira McCallum JP has been kicked off the bench. Last month  Ms Shirley Young JP was given a formal warning as has  Mr Declan Curran JP.  Mr Mark Philpotts JP  has been handed "formal advice" for his misdemeanour. In September for " a lack of the circumspection and sound judgement expected of a judicial office-holder" Mr Gary Cracknell JP has also been subject to "formal advice".  

To paraphrase one of the wisest orations of all time:- that this nation, under God, shall have a new birth of justice—and that justice of the people, by the people, for the people, shall not perish from the earth.  But only if those sitting in judgement satisfy those in authority of being of the people and by the people and subject to the strictures higher than those applied to those at the top of the judicial tree. 

And finally this year a big thank you to those who I hope take some pleasure from giving me precious minutes of their valuable time.  A healthy and happy Christmas and New Year to you one and all. 

WARRANTS OF DISCONNECTION//A VERY LATE P.S.

Having removed my finger from the magistracy`s pulse seven years ago I am now just an observer sometimes rather late in my observations.  Real time now is but a memory.  However a debate yesterday in the House of Commons on some magistrates` benches approach to dealing with energy companies` warrant applications set my mind back to my blog of 16th August 2013. 

Magistrates have it within their powers and indeed within their souls to investigate each and every application for disconnection.   The delays will infuriate legal advisors as those instigated by my actions certainly did but I persuaded like minded colleagues and eventually a protocol was agreed with the Deputy Justices Clerk.  I even still have the documents on file.  But and it`s a big "but", it is my concern that magistrates are now less willing or even unable to counter "orders from above". Their independence is now but a shadow of what it was when I was appointed.  I might remind JP readers of their oath: “ I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign King Charles the Third 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.” However with many doctors prepared to ignore their Hippocratic Oath or similar undertaking I cannot be sure that magistrates will not free themselves from the words spoken on their appointment. 

OUT OF COURT DISPOSALS// ARE MAGISTRATES` OPINIONS VALIDATED?

The Ministry of Justice worships the god of diversity and the goddess of representation. Underlying the selection of those thought capable of being able to judge their fellow man (in this terminology man embraces woman, transwoman, transman and all varieties in between) is the supposed need that local communities, however they might be defined for a magistracy which is geographically and legally no longer local, need locally based unpaid volunteer lay magistrates. The same MOJ employs full time judges sitting in the supreme court down to district judges sitting full or part time in the magistrates and county courts.  These highly paid civil servants are not considered by any criteria apart from their abilities to do the job in question. There were 13,000 county court trials in January to March 2022.  The complete current analysis of the workload at those courts for those interested is available here. My main point, however, is not the numbers but the people; those who sit alone high on a bench changing the lives of many.  They are not nor need to be "diverse" or representative of the populations within the courts` jurisdiction. Which brings me to the organisation which purports to be the representative of lay magistrates.  Latest head count is that there 12,506 magistrates but the number of those holding membership of the M.A. is secret. I am not an accountant but within the 36 page annual report of  to the Charity Commission are these few details re membership:- "Income for 2021-22 was £589,337  and for 2020 -21  £619,239. "  The individual membership annual charge is £47 so simple arithmetic would appear to tell us that there are 12,539 magistrates but what those figures omit is that that income includes the annual £39.50 paid by retired magistrates who wish to stay involved.  Since it can be estimated that at least 20% of magistrates do not join the M.A. the regular clarion calls from its recently appointed new chief executive about this or that policy being "magistrates  consider etc etc etc" are exaggerated to say the least. 

The latest outburst concerns out of court disposals.  We have been there before.  In 2015 the House of Commons Home Affairs Committee published a paper available here which if one scrolls down indicates that the then chairman of the M.A. was somewhat critical of the situation which of course is now generally speaking supposed to be in operation.   But M.A. criticism in that report is not a one off.  Its underlying motivation is to secure as much work in the magistrates courts as possible. Its long standing ambition for the lower courts` limit on custodial sentencing powers to be doubled to 12 months custody has become reality in the last year with the perfect storm of a Covid pandemic reducing capacity so causing hitherto unheard of delays in all courts combined with this government`s increasing recklessness in reducing budget imbalances.  Crown courts are much more costly to run than magistrates courts thus taking more serious cases from the former to the latter makes financial sense but the debate whether or not justice is being truly served is for another time.  

The immediate question is how the rate of out of court disposals is not to the liking of the M.A.  Out of court disposals are a means by which a law enforcement agency such as the police can swiftly and efficiently deal with less serious offending without commencing a criminal prosecution. In order for an out of court disposal to be valid the offence must be eligible and the offender must accept his/her guilt.There are currently a variety of different out of court disposals of which three are not recorded on the Police National Computer. These are: community resolutions, drugs warnings (for cannabis and khat), and penalty notices for disorder. Under the proposed new Act only community resolutions will remain in place.

Almost every Justice Secretary from the year dot has indicated that knife offenders will face custody.  It`s almost a mantra observed more in the absence than in the reality.  "Out-of-court disposals 'expanding uncontrollably', magistrates warn"  is the headline of an article in today`s Law Society Gazette.  There are indeed valid questions to be asked about knife offender policy today as there have been for over a decade but my raison d`etre today is the lack of true informed opinion of magistrates owing to their having no mouthpiece other than the M.A. an organisation which should be asking itself why for a small tax deductible sum it has not achieved mass membership. Its attempts to keep the actual numbers of active member secret is itself a statement which throws a shadow over all its endeavours.  Government, i.e. the MOJ if it wanted to know what magistrates really think should undertake its own survey.  Perhaps that action has been considered and rejected because the answers from the  devil it knows might be infinitely preferable to those from one that it doesn`t know.  Indeed validation of opinion is not necessarily a priority for this government or any other for that matter. 

QUEUING FOR JUSTICE

"It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256.  It is remarkable that this landmark ruling arose out of a minor collision case where the fine was just £10 with costs. Yet the King’s Bench issued a rule nisi and ultimately quashed the conviction merely because the deputy clerk was also present at the deliberations in the chamber of the Sussex justices. A century on from that case can it now be said with any conviction that the above dictum is still applied where justice is dispensed?  I would answer in the negative.  It could be answered that the essence of the word justice in the above context  is applicable only in the courts.  Of course forms of justice and authority are applied in many aspects of society. It is not for nothing that the supervisory body for the control of courts is His Majesty`s Courts and Tribunals Service.  The list of tribunals and therefore the scope of control of HMCTS is so extensive that I challenge any reader to be acquainted with all of them listed here.  Can it be said without fear or favour that all the proceedings in those tribunals which are this country`s form of  the management of conflict and control  in a myriad of situations offer a form of justice which is seen to be done?  The Justice and Security Act (2013)   extended secret procedures into the main civil courts. Closed hearings are not unprecedented. Cases in the family division of the high court relating to child custody and divorce issues are regularly held in camera to protect privacy. However it is in the field of military intelligence that the use of closed court sessions can be most justified.  But secrecy has been endemic in British government thinking for generations; perhaps more than in any other western nation. When the open justice door has been closed once it enables its closing on future occasions when arguably the primary reason has been diluted. Currently it is the Single Justice Procedure introduced in magistrates courts in 2015 which has now reached the eyes and ears of the mass media. 

However secrecy and control have been utilised in another form by HMCTS with regard to the magistracy in particular. In London where I sat, for decades magistrates were involved in the control of their courts through a committee of  magistrates, at least one of whom had to be a district judge and mayoral and other local authority nominees. Not only did it own its courthouses and associated property but it also acted as a paying authority in its own right.  The magisterial member(s) was chosen by the whole bench and was usually the bench chairman him/herself chosen by his/her colleagues. In 2018 that position was reduced almost to an honorary position appealing to those who saw opportunity to advance their goal of  being appointed MBE or OBE at some future time.  They have been supplanted since 2018 by so called leadership magistrates; toadies to surreptitiously spy on their colleagues, leak propaganda to them, nudge them in various HMCTS directions...............?????   We just don`t know because the MOJ refuses to disclose their current identities or the benches on which they sit apart  from Duncan Webster JP,  OBE.   My post of 14/06/2018 was perhaps the first time this topic was aired publicly.  The identities of the original cohort I posted on 17/03/2020.  These names were apparently subsequently removed from publication. This is what Mr Google has to say.  The Parliamentary Justice Committee had its doubts on this innovation. 

There is no doubt that there are occasions when secrecy is paramount for a nation`s security.  Rampant Edward Snowdons are a danger to us all.  But within a civil population the erosion of open justice is a threat which must be taken more seriously by the supposed "great and the good"  although it could be argued that it is they who are driving forward this diminishing of our civil rights.  The most senior judiciary who are more concerned with their pensions perhaps than the finer points of citizens` rights under the law seem to break their silence only when their financial futures are securely within their bank accounts.  The axiom, If knowledge is power  then  secret knowledge is secret power.”  is probably drilled into the head of every Justice Minister and worker in Petty France.  Control! control! control!  A glance at any broadsheet headline or ten minutes on Twitter is an indication of where so many societies are heading.  For once we should be last in that long queue of aspirants.