OFFENCES AGAINST SOCIETY

 

"It`s only a domestic".  Most people with an interest in the law would fail to recognise that distinctive phrase as having, so the story goes,  its origin in supposed police speak after being called to a home where a female  occupant accused her male co-occupant or "friend" of having assaulted her.  TV crime shows of  the 1950s, 60s or even 70s or modern films depicting events of that era often set the scene with Morris Minor so called panda cars and police  in uniforms fashioned unlike the para combat outfits often seen today. The underlying theme was of male dominance over women; a dominance considered normal.  Indeed it was an attitude prevalent today amongst some religious non Christian minorities. It is not coincidental that the aptly named women`s liberation movement became a mass movement around the 1960s and not just a fringe cult with a penchant for liberating their breasts.  Legislation also followed and continues currently not only to protect women from violent partners but to ensure that any apparent inequalities in society  to the detriment of women are ironed out. In that regard the emphasis has been on rape and the difficulty in securing convictions notwithstanding statistical distortions often produced by those whose political intent outweighs the accuracy of their use of statistics.  Stalking, workplace harassment, indecent exposure, non contact assault and other transgressions have encouraged legislation that offers now a degree of protection to women that their mothers and grandmothers could only dream about. No doubt such direction of legislation will continue in the knowledge that serious violent crime against women is often predictable from lesser events which might be condoned or ignored.  Indeed perhaps we are reaching the region of "overkill" when some are considering even the old fashioned wolf whistle to be a criminal offence. Nevertheless there is a glaring inconsistency in how violence against women or the threat of such is considered by the courts.  

Here I must declare a prejudice. I am totally unsympathetic to sexual predators  and sceptical of the courts` treatment of them.  Firstly when my wife was seven years old walking with a friend one afternoon through a park, as young children were able to do in those long forgotten days of innocence, from about twenty yards distant a middle aged man exposed himself to her.  To this day she can picture exactly his face and would be able to pick him out in a police line up.  Apart from that I have never asked her how she feels now about that incident but it must have deeply traumatised her.  Secondly I am less than impressed with Sentencing Guidelines.  Every year, fewer magistrates and judges, as retirement takes it toll, will remember that sentencers used to use their own well honed constructive sentencing ladder to arrive at a just outcome for offenders.  A decade ago I likened the idea of the Guidelines as a prelude to computerised sentencing.  Most readers will be unaware that as a prelude to its publication in 2004 those of the "great and the good" variety so embedded in the "British way of doing things" studied the sentencing manuals of the State of Michigan USA which used simple algorithms for the sentencing process.  That state now has taken that principle forward so far that in my opinion it will not be long before the computer takes over leaving only refinement to a human being.  

It is approaching seven years since MP Jo Cox was murdered.  Since then in October 2021 David Amess MP was murdered in his constituency office.  Not since the IRA embarked on its murderous campaign against MPs have our parliamentary representatives been under such a real or perceived threat and female MPs most of all.  This week Raymond Batchelor was found guilty to a charge of harassment without violence against the Bishop Auckland MP and her chief of staff Jack Bell.  This pervert was sentenced to custody suspended with the usual ancillary activities and restraining order. Court report is here.  His victim, the youngest MP in this parliament, has announced she will not be standing again as a candidate.  Of course nobody but her immediate family and circle will know how much effect the offender`s actions had on her decision. However much Steven Hood (DJ magistrates court) pontificated it is hard to believe that suspending custody was just on the basis of the evidence.  It is hard to believe that there is no pressure on publicly paid officials to severely limit the numbers of offenders being sent to vastly overcrowded prisons. It is hard to believe that high profile cases are virtually always assigned to those paid judges who will obey dictats from on high rather than magistrates who should be free to follow their consciences and oath rather than their Justices` Clerks` "advice". 

At the Crown Court also the tendency to suspend cases of threatened violence to women seems to be against a true sense of justice. The proportion of suspended sentences in 2021 given for indictable offences increased to 18% from 15% in the previous year. In practice that means that this victim, like so many others threatened with violence by her co-habitee, is unlikely not to fear that actual grievous violence will be directed towards her irrespective of a judge`s order.  

The bench at Cardiff Magistrates Court sentenced an offender who assaulted two women  to five months custody.  Given that six months is the maximum for common assault that is a significant indication of the seriousness with which his offences were considered.  Why then was that sentence suspended?  

Stalking has been shown often to be a prelude to actual violent behaviour.  This stalker was revealed in an excellent newspaper report [but which failed to tell us the actual offence committed] to be a prime candidate to fulfil that statistical prediction by his repeated bizarre behaviour.  He was not even give a custody sentence suspended.  Once again a District Judge (MC), this time  DJ Nina Minhas,  declined an appropriate outcome which I most certainly would not have done.  The offence of stalking has a maximum sentence of six months custody.  The outcome in this case was an offence against society. 

These reports are but the tip of a statistical iceberg.  An aspiring prime minister with an impressive background has pledged  to reduce a public`s fear of violent crime.  If in power he could appoint a Justice Secretary who shares his thinking and makes good the rhetoric with action. 

I TOO HAVE BEEN CANCELLED

Writers of all kinds high and low, full of sense or nonsense and judicial office holders of all kinds appear to be high on the target list of those who operate and/or support what`s now commonly termed cancel culture.  Of the former the person with the highest profile is probably J. K. Rowling because she dared to say what others have feared to publicly admit that there are two sexes and that so called trans women have the potential in some cases to be an actual physical danger to women notwithstanding the fact that in essence they are in opposition to what she and others consider  the fruits of  the women`s liberation movement.  At the opposite end perhaps of this literary spectrum has been the recent announcement by Puffin, publishers of the works of Roald Dhal, a notorious antisemite and world famous author of children`s books, that some of his language is now unfit for young human consumption.  Cloud-Men have become Cloud-People in "James and the Giant Peach". In The Witches, there are no longer any old hags – only old crows. These are just two of the hundreds of changes that have been made to the author’s stories. To the criticism from many quarters the publisher replied by saying that  it had taken such actions so that  (Dahl) “can continue to be enjoyed by all today”.  An extreme result of similar perverted thinking was that the outstanding author Salmon Rushdie had his life almost cancelled by his fanatical Islamist assailant`s dogmatic beliefs. The common factor between Puffin and him was that authors` words must not be heard; they must be muted by killing the author or substituted by what a publisher considers "acceptable".  

The treatment of the judiciary of the words they utter in a professional or private manner, certainly in the case of magistrates, falls within that black to white spectrum where even that phrase itself is regarded by some as suspect.  I have recently commented on the remarks of District Judge (MC) Stephen Leake. We will probably never know if or what "advice" he has been given or if any at all by judicial authorities. This is a classic mirror image of cancel culture insofar as any comment is kept secret and out of the public domain.  Last week Just Stop Oil offenders were praised by District Judge (MC) Wilkinson as he sentenced them.  I, along with some other commentators, have questioned the appropriateness of these remarks.  Once more any official response is cancelled at least to us the public.  Instances as above have been reported in the press; often the local press but old fashioned press reporting is a dying occupation thus denying a wider  public of what they have a right to know. However much as judicial authorities mouth the slogan that magistrates are members of the judiciary their treatment by said authorities is far from equal with their seniors when they are thought to have transgressed.  Unlike their seniors such deviations whether in the courtroom or without are displayed in a public place albeit in an edited form such as has put  Dr Ian Haffenden JP in an unenviable position.  He was not cancelled but put in the spotlight: to every action there is an equal and opposite reaction to quote a rather clever fellow called Isaac Newton. 

To be cancelled has this week become for me something personal.  Yesterday Blogspot, the hosts of this site on which I have commented for 10 years, informed me that a post of 09/04/2019  "MEANS FORM MEANS NOTHING"  had been reported to them as it "was flagged to us for review. We have determined that it violates our guidelines and deleted the post."  I had been cancelled almost four years after publication of the supposedly offending material.  After I objected to this action the post was re-instated.  If any reader agrees with the objector perhaps he/she should delete this address from bookmarks.  

DIVERTING THE BLAME

It seems there is a concerted attempt for the government to put as much distance as possible between the MOJ and the furore created by the entry warrants scandal.  To keep this post short and sharp I have copied below some parliamentary answers to questions raised yesterday.  Please note in particular the link to Ofgem`s Gas and Electricity Codes of Practice for Domestic Suppliers in the first reply. 

Compare that very length document with the Best Practice Guide for magistrates which became standard practice at my court a decade ago. This relied on the magistrate(s) asking the right questions at the right time after the applicant had taken an oath. That Guide was to the point and covered virtually all the grounds to sniff out occasions and individuals where disconnection and PAYG meters were not advisable.  It is accessed in this post of  27/5/2015.   Note a common theme:-  B L A M E is diverted from where it originated.......deep in the bowels of Petty France. 

JUDGES: BACK UP OR BACK OFF ? (GOVERNMENT)

There have been observers from time to time who have opined that the law is or should be above political bickering; that it stands supreme.  A well known adage is worth a thought that there is sometimes  an occasion when  a choice has to be made by judges between the letter of the law or the spirit of the law the latter being an attempt to enact what the law makers intended but failed to make 100% explicit in their legislation as it was passed by an act of parliament.  The balance between lawmakers who create the legislation over which the judges must adjudicate and judges who must interpret and apply the legislation has always been a matter of controversy.  The American constitution whose writers are held by some as demi gods did their best to separate legislative and judicial functions.  Events of late in that country have demonstrated the difficulties involved.  Currently Israel, the only democratic country in the middle east, is having its own moment in the spotlight where a right of centre government is trying to extend its power by eating into what had been assumed since 1948 were powers reserved for the judiciary.  This country is far from immune from the executive`s attempt at similar actions when a private citizen went to the supreme court to overturn the actions by the then prime minister Boris Johnson to prorogue parliament in furtherance of his political objectives subsequent to the 2016 referendum majority decision to leave the European Union.  

In actual courts where most of the public obtain their legal information through the media, whether that is the mass or on line social variety, Sentencing Guidelines are held as an example of a government attempting to overcome judicial decision making by laying out national ground rules which are little short of a box ticking exercise that phrase now itself held in contempt as being an excuse for failure. However that has not been enough.   For over 30 years the Unduly Lenient Sentence (ULS) scheme has helped victims of crime get what some perceive as righteous justice.

The scheme was launched in 1989 following public outcry over a series of controversial sentencing decisions, including the 1986 ‘Ealing vicarage rape’ case where 21-year-old Jill Saward was raped by burglars at her father’s vicarage. The first ULS hearing took place in July 1989. In this case, a man who committed incest on his daughter had his sentence doubled from 3 to 6 years in prison. The scheme has since helped thousands of victims and their families get justice, and in an important hearing last year two of the UK’s most prolific rapists - Joseph McCann and Reynhard Sinaga - had their sentences increased by 10 years, meaning that both offenders should now serve at least 40 years in prison before they can be released. In 2019 alone, 63 offenders had their sentences increased under the scheme – 16 of those were given custodial sentences after avoiding prison time at their original sentencing. Since it launched, the scheme has been expanded 6 times and now includes a range of terror-related offences, all serious sexual offences, threats to kill, child cruelty, people trafficking and modern slavery, and many racially and religiously aggravated offences. Most recently, sexual offences involving an abuse of trust, indecent images offences and domestic abuse offences were added to the scheme.  Commenting on the anniversary, Attorney General, the Rt. Hon. Suella Braverman QC MP said:   For over 30 years, the ULS scheme has helped victims of crime and their loved ones get justice. The scheme includes many more offences now than it did when it was first launched, allowing us to look at more sentences which don’t appear to fit the crime.   In the vast majority of cases, judges get it right, but the scheme is important to ensure that certain cases can be reviewed where there may have been a gross error in the sentencing decision. The ULS scheme allows prosecutors, victims of crime and members of the public to ask for certain Crown Court sentences to be reviewed by the Law Officers if they think the sentence is far too low. Some cases referred to the Court of Appeal can also offer guidance for future sentencing decisions. Anyone can ask for a sentence to be reviewed if they think it is too low, and only one person needs to ask for it to be considered. Further requests do not lend any extra weight as the decision to refer a sentence as too low can only be based on the legal threshold. The Law Officers have 28 days from the date of sentencing to refer a case to the Court of Appeal, so it’s important for them to receive a referral as early as possible in order to properly consider a case.

What happens to the judges who get it wrong?  We do not know.  As with many aspects of the secrecy in the workings of the unwritten British constitution any sanctions are applied behind closed doors. Examples of late are District Judge Stephen Leake who told Medway magistrates court last month that he wanted to jail Fabian Greco for 18 weeks for a violent offence but couldn`t because the prisons were full.  He suspended the sentence for two years because, he said, the courts had been issued with guidance from the government to "relieve the pressure on the prison estates as much as possible" due to a lack of spare capacity. Government sources said his remarks were nonsense.  Whether DJ Leake has been chastised by his superiors we do not know; the cloak of secrecy surrounding such matters is tightly drawn.  However if lowly magistrates dare stray from an imposed straight and narrow path they are held up to public disgrace by the forum AKA the Judicial Conduct Investigations Office. For recent examples  refer to statements  2522  2422   2222  2122   1922  2622

The omarta code of silence from the senior judiciary and His Majesty`s Courts and Tribunal Service over the scandal of mass authorisation of entry warrants forced if necessary with the purpose of installing PAYG energy meters is but the latest proof that there is an almost conspiratorial protection surrounding the biggest of the bigwigs who must have had input into the original decision to approve such policy but the supposed face of local justice, itself now an anachronism, the lay magistrate, can be treated like a peasant subject to the whims of his/her medieval master.   There are, however, the odd occasions when the senior judicial mask slips or appears to slip.  The difficulty is knowing when government prodding and poking has enforced the slip.  Recently the Lord Chief Justice has complained that defendants pleading not guilty are holding up the reduction of the massive backlog in the crown courts itself blamed on Covid 19 but mush self inflicted by government imposed restrictions on the number of courts available to hear cases owing to  that self same government being unable to settle pay disputes with its own judges or self employed barristers, or pay for the courts to be legally complying places of employment.  Paradoxically magistrates have known about defendants offering an equivocal plea of  guilty just to expedite proceedings and reduce their possible financial losses since the introduction of the Criminal Courts Charge in 2015.  In November of that year the House of Commons’ Justice Committee stated, "In many cases it is grossly disproportionate, it fetters judicial discretion, and creates perverse incentives – not only for defendants to plead guilty but for sentencers to reduce awards of compensation and prosecution costs. It appears unlikely to raise the revenue which the Government predicts. It creates a range of serious problems and benefits no one."

Two questions:

Does (should) the judiciary back up government?

Does (should)  the judiciary back off from backing up government?

So the point is does the secrecy surrounding judges, their decisions, their errors, their disciplinary procedures, their relationship with government, their relationship with the public and their colleagues benefit us the man in the street, the person on the Clapham omnibus, Joe Public or Jo Bloggs?  I would venture to opine when marking the judicial report card, "Attempting by obfuscation  to avoid  answering the question as set by the examiners. Must try harder failing which examiners must question the candidates` future in their chosen career". 

A MESS OF JUDICIAL POTAGE

It seems that the entry warrants scandal still has some steam in it.  The Times today features an article on pp2 revealing a letter from Right Honourable Lord Justice Edis Senior Presiding Judge of England and Wales that instructs the granting of such warrants to cease.  See below.

Of course for any thinking reader as I assume my readers are the question that comes to mind is how did this scandal arise in the first place.  The answer to that must be considered in the light of the enormous numbers of cases documented here over the last few weeks posts.  These matters of entry warrants were concentrated over a specific number of magistrates courts as noted here on 17th January.  Only His Majesty`s Courts and Tribunals Service would have this authority to instruct under the term of what I understood when active was THE Justices` Clerk who had delegated control of a number of courts where the on site boss was designated Deputy Justices` Clerk. As a new magistrate myself in 1998 after sitting as a winger a number of times on entry warrants I was horrified that very large bundles of warrants were passed for me to sign without examination. Subsequently I refused to participate in such a pastiche of justice.  My efforts, successful in the end, to change that atrocious practice ensured that all colleagues could participate in a systematic examination of all applicants` payment and social histories of those whose home they wished to enter to install PAYG meters.  Using the search box will open many posts over the last 10 years on this topic.

What dismays me most is the participation of magistrates whose compliance is an indictment of every single one of them.  They swore the judicial oath and when it mattered that it should take precedence over an in house instruction they behaved like sheep letting any conscience they might have had to be overruled by the fear of upsetting authority.  Perhaps now the reality of lay magistrates` subservience to HMCTS and their failure to confront that authority  will hasten the end of a system in which I was proud and honoured to be a participant.  Unknown to most observers in 2018 six magistrates were appointed by the powers that be to be leadership magistrates.  Their names were published here on 17th March 2020.   This is the official line: "There is 1 national leadership magistrate – Duncan Webster – and 6 regional leadership magistrates and 1 for Wales. All had to have been a Bench Chair in the previous 3 years, go through a selection process and have been appointed by the Lord Chief Justice for a period of time."  The names of the 7 magistrates subordinate to Webster are being withheld by the Ministry of Justice.  A Freedom of Information Request has been refused.  Therefore it is reasonable to suppose that with an impotent Magistrates Association held in contempt by many, these 7 appointees are acting as a fifth column on their benches and wider,  to influence policies and report on their colleagues,  taking such information high up the civil service and political ladders.  This insidious action is a danger to us all.  We think that justice (not policy) can be separated from the actions  of government.  That it can stand alone whatever the turmoil in Downing Street and Whitehall.  This seemingly insignificant policy ordered by government until its exposure, is a warning.  When those with judicial authority fail to be counted as defenders of that which they have sworn to uphold even at the lowest judicial level it will be only a matter of time before their senior colleagues are placed in the same or similar position. The problem for society is that unlike lay magistrates who have absolutely no excuses for their scurrilous actions except their own hubris judges have their salaries and future pensions to consider.  Be in no doubt there will always be those who would sell their (judicial) souls for a mess of potage. 

THE INIQUITY OF GRANTING WARRANTS OF ENTRY

Well!  The cat is now out of the bag.  The years old scandal of magistrates granting warrants of entry to the representatives of utility companies to install pay as you go energy meters willy nilly has now become front page news.  Any regular reader on this site will be aware that this carbuncle on the face of justice has been knowingly  ignored by HMCTS, the Magistrates Association and individual magistrates who have complied with a directive either through ignorance, in which case they are unfit for the post, or fear of being counted as rebellious.  Either way they disgrace the ancient title of Justice of the Peace.