BIZARRE SENTENCING AND JPs OUT TO PASTURE

After a couple of weeks away from here in some ways it is a pleasure and in others a bizarre revisiting of some strange criminal activities that come before the magistrates courts resulting in some equally illogical sentencing decisions.  Regular readers might have picked up some hints that I am not the greatest supporter of the  principles enshrined in Sentencing Guidelines.  I am also sceptical  of many statements emanating from Petty France home of the Ministry of Justice. A feature which combines these observations is that despite prisons increasingly approaching the point at which their overcrowding is becoming a legal, mental and physical health risk to all those within their walls the MOJ specifically denies instructions to courts to consider their sentencing with those facts in mind.  In simple terms that "guidance" is to use community sentences and/or suspended sentences where possible even when the facts of a case suggest otherwise.

Two recent such examples are a sexual pervert and a teenage yob  who assaulted a police officer.  It is beyond belief that the former is not a danger to society; his record speaks for itself.  Such cases rarely merit much media reporting because local press cannot afford the wages of even young inexperienced journalists who in decades gone by would learn their trade at the local magistrates court.  The actions of the feral youth who committed the heinous assault, an action which should turn the stomach of most of us, were aggravated by his being drunk but that seems to have registered in the sentencing as mitigation by a bench which must have lacked training.  It is absurd insofar as lenient illogical sentencing like those will raise the pressure for magistrates to be replaced by district judges but again one must consider whether this and other benches have been "got at" by their Justices` Clerk on instructions from above to avoid immediate custodial sentences.  An explicit example of the truth behind unduly lenient sentencing is provided in this case.  The report speaks for itself. 

Last month at Leicester Magistrates Court a judge said what I was told never to say; he told an offender of what future action to expect if appearing again in court thus tying the hand of another sentencer.  Such statements in my time on the bench would have been immediately criticised or worse at a post court review.  But of course magistrates courts not being courts of record any sanctions would be behind closed doors.  With a labyrinthine system of investigating alleged poor judicial practice by magistrates and district judges inefficiency and incompetence are bound to pass unnoticed either by a blind eye or poor housekeeping.   

There are currently around 12,500 magistrates of whom 5,492 are > 60; i.e. 44%.  The MOJ is scrambling to appoint another 4,000 ASAP.  Sensible apolitical recruitment practice would be to select the best for the posts available with total disregard for any other factor.  But such practice does not apply.  The MOJ is so sensitive to "diversity" that despite denials it is almost certain that a quota system is in operation using age, sex and ethnic origin in the appointments mix. What is now happening is that in addition to many lawyers` increasing antipathy to the lay magistracy advisory committees are stressing the benefits to employers of their employees becoming magistrates.  The underlying reason for this approach is the loss of working time by employed magistrates which must be suffered by the employer.  In our financially straightened times this is unlikely to find their favour.  It might be intolerable to many but the facts on the ground lead to magistrates being recruited from those financially able to  to bear the burden of volunteering.  With the loss of thousands of experienced old hands in the last decade it is, in my opinion, that the intellectual, self assertive and  independent  qualities which made the magistracy such a fine unique feature of the English justice system  are gone forever.  The result is that the day when Justices of the Peace are led out to pasture is just that little bit closer now than when I retired in 2015. 

ADDENDUM 26th April 2023

For retired JPs who wish to consider reinstatement to the Bench this might be of interest.

LIE BACK AND THINK OF ENGLAND(`S LAWS)

Shortly I am leaving wind and rain in the hope that I will enjoy a week or so where sunshine and perhaps local moonshine will enhance the optimism I am privileged to possess through life`s daily balance sheet of profit and loss.  Earlier today I published on my other site  my previously unpublished [like all the entries]  diary entry of  July 2nd 2010.  In view of current thinking around the topic I also publish it here below.

Until next time............

• ASBOs,DISPERAL ORDERS, DRINK BANNING ORDERS; WHAT NEXT? WHAT USE?

by TheJusticeofthePeace

02. Jul. 2010. – 13:19:01 

I do not sit on the youth bench. It was a conscious decision. I have nothing but admiration for my colleagues who, week in week out, adjudicate on matters involving juveniles who for the most part have been brought up in family circumstances in which only a very positive “nature” would overcome very negative “nurture”. 

Thus my experience of ASBOs is fairly limited as they are used mainly in youth courts. However I find it depressing, especially in the current climate over sentencing, that they are used as a legal “cosh” in a similar manner in which medicaments like Prozac are reputedly used as liquid “coshes” in old age homes to keep senile residents controlled. ASBOs have begat various other “control” orders; Dispersal Orders and Drink Banning Orders being two. Breaches of such orders are criminal offences. 

I would venture to suggest that this progression in excluding, banning, preventing offenders in order to allow the rest of society to live their lives without external disturbance is bound to fail. Young people need to live in properly controlled environments where their immediate family and society around them instil boundaries to their behaviour. That means that teachers must have authority to act as they did fifty years ago and be respected for so doing. They must be allowed to tell their pupils that they are expected to conform to rules and head teachers, governors and the paraphernalia of governance must be so ordered. Rowdiness on public transport must be stopped by giving drivers instructions to deal with the miscreants verbally or by calling police immediately. Confidence in authority must begin at the bottom of the pyramid. 

Some of the reports on ASBOs and Dispersal Orders etc are so obviously vain attempts to rectify two generations of muddled child centred thinking. Rehabilitation must not begin after the offence; it must begin before. 

RETHINK THE COURT OATH?

 

The website Oxford Academic Chapter 1 Abstract 2011 reads as below  (1) (1) Perjury and proof of perjury

Perjury law, which usually applies to courtroom testimony under oath, is briefly described. Critical aspects include the need for both the questioner and the respondent to have a mutual understanding and clarity of the meanings of questions and answers. Questions cannot be ambiguous and defendants, questioners and juries should need to have to speculate or infer meanings. Answers cannot be taken out of context. To prove perjury, the defendant’s testimony must be knowingly false and must conflict with verifiable and known information held by the questioners. Since proof of perjury depends on the language used, linguistic analysis can play an important role by analyzing the separate processes of intelligence gathering and intelligence analysis, which are the keys to whether a prosecution succeeds or fails.

Few will remember an item debated at the Annual General Meeting of the Magistrates` Association in 2013. Such events have historically been a talking shop for the small numbers attending and of little interest to anyone else.  There was a motion for debate:- “That this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison.’   There is zero information on the M.A. website for non members to learn if this matter was reported.  My vague recollection as a non member at that time is that it was passed. 

Witnesses in court currently are offered the opportunity to take the oath on an appropriate holy book or to affirm.  The wording of the former is, “I swear by .......... (according to religious belief) that the evidence I shall give shall be the truth the whole truth and nothing but the truth”.  Those who choose to affirm say, "I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth the whole truth and nothing but the truth."  In historical terms oath taking can be traced back to the Book of Genesis.  Virtually all ancient civilisations recognised the taking of an oath as the highest level that an individual could place upon the truthfulness of his words.  The Christian tradition from which current English court practice is derived originated at a time when the population believing in a literal translation of the Bible was in awe of the Church and the divine retribution for lying having taken the Lord`s name in vain.  There were notable exceptions particularly Quakers who to this day will affirm rather than swear.  Similar religious objections to swearing the oath are held by orthodox Jews.  The manner in which a witness is asked to swear or affirm is of some significance.  I often heard a legal advisor say to a witness, “Do you want to swear on your holy book or affirm?”  Other forms of approach are, “ Do you have a religion?”  and variations thereof.   Unless the witness has a belief in divine retribution it seems to me that the oath indeed is superfluous even if it is followed by a warning of the consequences of lying.  From that point of view an affirmation to tell the truth is more realistic.  Over the years I noticed that the majority of police officers declined the oath and affirmed.  I would leave readers to make their own conclusions on that observation.  It is usually the case  that very rarely if ever does a witness who might be considered Muslim or ethnically of Arab heritage decline to swear on the Koran.  It seems that even when such witnesses in their evidence attest to behaviour forbidden by the Koran they have chosen not to affirm.  An interesting situation took place at Liverpool Crown Court in 2015 and is relevant to this day. 

 Believers and non believers rarely change their opinions or reject their beliefs. It is upon the fear of a divine retribution that oaths have existed since the dawn of civilisation. It seems to me that the application of oaths to witness testimony in our courts is as archaic as a belief in the gods living in Mount Olympus.

The number of those in England describing themselves as Christian can cautiously be estimated as 50% + or – 10% depending on definitions. About 10% adhere to other religious denominations and about one third are atheist. If regular church attendance indicates the strength of Christian belief only about 10-15% of so called Christians attend church at least once monthly. In my past experience witnesses with surnames of apparent Pakistani or Arab origin rarely affirmed; they swore on the Holy Koran. When Orthodox Jews were “sworn” generally their decision was to affirm so as not to sully the holy name of Jehovah in such matters; an opposite point of principle from Muslims. They are not questioned as to their choice which could be construed as having a lesser value irrespective of the religious reasons for so doing. Affirmations are therefore generally from the white majority ethnic group. My point is to question the value of the religious oath without the court knowing the depth of religious attachment to the particular faith. Therefore from my point of view the religious Jew and the witness who affirms are being up front about their evidence……..they are telling us quite simply that they will tell the truth. We believe their evidence or we don`t. Those who swear on a holy book as if by rote and with no belief can feel free to lie. They are not constrained by fear of divine retribution. The Liverpool case could be used as an example of the placibo effect. Was not the belief itself that the correct holy book was used for taking the oath not sufficient?

Recent research has postulated that jurors who swear on a bible might be biased in that they are more likely to find a defendant guilty if that person on giving evidence affirms rather than taking the oath on a holy book.  In a case where the balance of evidence might be very narrow there is, according to the study, a real risk that atheists could be in danger of conviction from god believers on the jury.  

There are very few statistics on perjury in English courts.  The very nature of the offence is obviously going to make detection difficult or warrant investigation futile except perhaps in very high profile cases such as this.   It could be argued that when a verdict is delivered which by its conclusion contradicts witnesses` evidence there is a prima facia case of perjury taking place in most trials. We will never know. The threat of court proceedings in the event of a witness having been shown to be a liar  is  99% an empty threat.  In 2010 only three defendants of 37 charged were found guilty of perjury in a magistrates` court and one of those was given a conditional discharge.  That is the real situation of truth telling and lying in the lower court.  The only verifiable statistics I can unearth are below. 

With a charge of perjury virtually non existent in courts` proceedings is it not time to re-think the oath?

  

  

THE PARADOX OF TRUE DEMOCRACY

All those interested in the criminal law in its multifarious forms including, but not exclusively, deterrence, arrest, charging, sentencing, courts, probation, prison, rehabilitation will have reservations about one or more aspects of the system one of which  will be government intervention post sentence.  All sentencers must declare in open court except in exceptional circumstances that an immediate custodial sentence will be within prison walls usually, but not always, for the first half of the stated sentence and the offender will be released on license for the remainder.  For many observers this policy seems at odds with guidelines laid down by the Sentencing Council.   Considering all the stages that judges and magistrates must  consider in a sentencing exercise, an exercise that surely within a decade will be replaced by smart algorithms, finally stating in open court that a decision has been reached after studying "a,b and c to x,y and z" of the offender and the crime "you will be released after serving half that time" seems to make a mockery of the whole process. Whatever the license conditions surely it would be more logical to offer offenders the possibility of release depending on  their behaviour in prison and their state of rehabilitation? The public would also be more likely to believe that the punishment really does fit the crime. Government thinking on sentencing can be gauged from this document and on early release  on this paper published in 2020.  On 7th March I commented on the tragic case of Auriol Grey.  The Times reported a few days ago the MOJ commenting on the sentence and future appeal, "Sentences are determined by independent judges based on the full facts of the case": an arms length comment rather different from the powers this government  has taken to intervene in such matters when it considers worthy of media headlines. 

Sections 35 and 36 of the Criminal Justice Act 1988 empower the Law Officers to apply to the Court of Appeal for leave to refer for review any sentence which:was passed in respect of an offence to which Part IV of the Act applies;
was passed in a proceeding in the Crown Court; and
appears to be unduly lenient.

 

On 8th November 2022 the Court of Appeal issued the following statement:- "If the Court of Appeal agrees that the sentence is unduly lenient then it may increase it. The Court of Appeal will only find a sentence to be unduly lenient where it falls outside the range of sentences which the judge, applying their mind to all the relevant factors, could reasonably consider appropriate."

The Parole Board  was established as an arms length body to oversee the possible early release of  prisoners. It is supposed to be completely independent.  It appears that this government  seeks further control of Parole Board decisions.  We are therefore in a situation where quite correctly the MOJ sets out the parameters under its control and as is right and just in a democratic society assigns certain operational features to be applied and administered by independently appointed people chosen for their supposed abilities in the area under question.  It cannot be right and just for government to change the rules of the game and to have  final control on sentencing by overruling the decisions made by those specifically appointed and trained for such function.  

All parts of the criminal justice system have been systemically underfunded since 2010.  Those squawking 13 year old chickens have now well and truly come home to roost a year or so before a general election where the Tories are hastily trying to inculcate their version of  what became  in 1997 Tony Blair`s successful mantra of 1993; "Tough on crime and tough on the causes of crime."   But in so doing they are destroying that very system.  In the modern era all aspiring authoritarian governments have attempted to take control of the courts by enacting measures through what the late Lord Hailsham, former Conservative Cabinet member, described as the "elective dictatorship of parliament"  during the 1966 general election. ‘Of all the democracies’, Hogg warned, ‘Britain is nearest to an elective dictatorship’.  The following year, Hogg called for a constitutional convention, chaired by ‘some elder statesman of universally respected character’, to restrict these unlimited legislative powers of Parliament. Hogg proposed the establishment of regional parliaments, a British Bill of Rights that limited parliamentary action, the ability of the judiciary to override Acts of Parliament it deemed to be ‘unconstitutional’ or passed without ‘adequate debate’, and fixed-term parliaments. These reforms would ensure that a government which enjoyed the confidence of the House of Commons could be stopped from implementing its agenda whenever judges felt such policies were objectionable. The  solution to elective dictatorship, then, was that ultimate power would be wielded by unelected experts.

Parliaments and judiciary have been in conflict for centuries.  Indeed in Israel at this very moment the argumental essentials of this dissention are being played out on the streets of Tel Aviv and Jerusalem.  Generally those of right wing disposition tend to be supportive of the rights of parliament as the democratically elected government and on the Left of centre the judiciary is seen as the brake on untrammelled power.  It is a paradox that true democracy is most in danger when those two forces are in alignment.  Let the discord continue for all our sakes.