BIND OVERS// A REMINDER OF TIMES PAST// PART 2

A Bind Over is neither a conviction nor a punishment. It is a preventative measure whereby a person enters into a recognisance before the court (gives a promise) to engage in good behaviour and to keep the peace for a period not exceeding three years. The recognisance is a promise to pay a specified sum of money if the recognisance is breached.  On June 13th I told of my own experience prior to appointment of witnessing a bench exercising its power to threaten a plaintiff to being bound over.  In my opinion this was in retrospect a bench led by an arrogant chairman exceeding its powers. Ever since, the words "bind over" have held an interest for me.  I offer again the CPS guidance on that disposal.  For an apparently simple disposal the underlying conditions prior to and subsequent to its activation are considerable but its use is diminishing annually as the statistics below testify. 

I find this information rather strange.  The obvious question is why.  The situations where, according to the CPS guidance, such a disposal is lawful are as frequent now as in past years and it`s not as if it is costly in financial and professional terms for a bind over to be made as  no input from probation service is necessary nor legal representation for the miscreant.  The next point of interest is that there is no public availability of the effectiveness of the order insofar as its deterrent effect against future criminality.  Therefore nobody knows how many of the above numbered offenders breached their bind overs.  When a sentence appears to be ineffective or rarely used some bright spark in parliament seeking a few minutes in the headlines or a press release from Petty France lays the foundation to repeal such legislation.  Sentencing Guidelines on making bind over orders are quite pithy. My explanation for the virtual disappearance of the sentence is quite simple.  It doesn`t respond easily to a "computer says no" or algorithmic solution.  It is predicated on future risk rather like bail decisions and such decisions demand discussion.  It is a situation for a bench where the justices have to actually think for themselves and not be herded like a flock of sheep in the direction to which the legal advisor is pointing.  These considerations have, over the last two decades, been gradually and silently removed from magistrates` judicial discretion.  Ask any magistrate about binding over and the chances are that s/he will display total ignorance of the disposal. After all with just 318 such decisions in 2022 and 150 courts offering so called local justice each court will have had but two such outcomes the whole year and like local as to justice is a historic anomaly bind overs as to sentencing I`m sure will follow that example. 

KNIFE CRIME SENTENCING; THEORY & PRACTICE

We are expecting a general election next year. As a matter of curiosity I attempted to see a copy of the Conservative Party manifesto for the election of 2010.  A normal search indicated it was not available for public observation.  

Ever since I was appointed J.P. during the last Labour government  I naturally have taken an interest in crime and government statements on how  they are going to crack down on this crime or that offence.  Tony Blair in his first Labour manifesto famously declared, "tough on crime and tough on the causes of crime."  Having been in office for 13 years the Tories are making yet again another effort to convince us they are tackling knife crime.  A new consultation paper on knives has just reached its final submissions date. Since 2010/11, the total number of selected offences involving a knife or sharp instrument has increased by 34% (from around 34,000 to 45,000) and the number of threats to kill using knives or sharp objects has nearly quadrupled (from around 1,400 to 5,500).The recent police recorded crime figures published by the ONS showed a 21% increase in the number of knife and offensive weapon offences recorded from 37,706 in year ending September 2021 to 45,639 in year ending September 2022. We all know that "Lies, damned lies, and statistics" is a phrase describing the persuasive power of statistics to bolster weak arguments but nevertheless it is in the courts that the final link in the chain of promises, manifesto commitments, parliamentary processes and legislation becomes manifest.  I recollect that the case known as Povey became standard approach to sentencing knife crime in magistrates court.  I kept a copy in my personal folder which accompanied me every time I sat.  Indeed my colleagues often requested a copy.  Throughout my appointment there was never a training session on such criminality. All such "advice" was supposed to emanate from our legal advisors.  Such ignorance must be bliss to so many now sitting in judgement on their peers being led by their noses under the control of HMCTS. In practice sentencing on bladed articles and knives seems no more or less than the pot luck of the last century despite all the exhortations and Guidelines. On so many grounds this offender`s sentencing even with the limited report seems a throwback.   This Deputy District Judge perhaps was "under orders" not to increase the prison population although such instructions from on high are always denied.  At the other end of the scale here is a case where logic and compassion seem to have been sacrificed to "the computer says no" attitude possibly encouraged by a legal advisor covering his/her arse.  

I have long looked forward to the time when live TV of magistrates courts to a local population becomes as commonplace as parliamentary TV.  Indeed with the dearth of local news media reporting court activities it has become essential for justice to be seen to be done by a wider public ignorant of its processes until Jo Bloggs has to appear herself.  I can find no statistics on the numbers of litigants in person conducting their own defence at trial in magistrates courts. From my experience the vast majority of defendants pleading guilty are unrepresented except perhaps when expert representation is needed in more serious matters eg driving disqualification or possibility of a custodial sentence  This academic study might be worth a few minutes of JPs` reading time.  

From all accounts there is a public perception that knife crime is out of control and sentencing is inadequate. No doubt until the general election we will hear the same old platitudes familiar to us all [at least those of us with long enough memories] from the days of tram cars and trolley buses whether referring to the Glasgow razor gangs or the Sweeney Todds of the East End : we will reduce knife crime and punish offenders. 

A MOCKERY OF JUSTICE

First there was ASBO and ASBO begat CRASBO and from its loins there came landlord banning orders, drink banning orders, football banning orders et als.  However it must not be overlooked that there are also for one`s delectation  non-molestation orders, occupation orders and restraining orders for those inclined to a soupçon of domestic violence.  These are civil orders the breach of which is a criminal offence triable in the magistrates or crown court where offenders face a custodial sentence.  The numbers of such orders are not public knowledge.  A Freedom of Information Request has been refused on the grounds of costs of retrieving such information.  The standard such response to refuse an application is "I can confirm the MoJ holds all of the information you have requested. However, to provide this as the request currently stands would exceed the cost limit set out in the FOIA. Section 12(1) of the FOIA means a public authority is not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days determining whether the department holds the information and locating, retrieving and extracting the information."  However in view of the vast scope under which such orders can be made it is not unreasonable in my opinion to suggest that the number must run into six figures annually.  The logical next step in considering the efficiency of banning orders, i.e. their effectivity, is again a matter of conjecture owing to the lack of public information of subsequent breaches of orders and the consequent punishment handed out to offenders. 

I cannot help but, drinking from the cup of cynicism, thinking that at the bottom of these law making and sentencing exercises lies but a single objective of reducing costs.  Unless and until the Ministry of Justice publishes actual numbers we will never know.  What we do know and every magistrate and criminal lawyer will know is that the apparatus  of banning orders is so often so ineffective that the law in its inaction makes a mockery of justice per se. Here is just a single example from a single court on a single day last week. 

JUDICIAL DECISION MAKING

With increased reporting of the Court of Appeal and the Supreme Court owing to various government proposals being considered unlawful by some the debates previously of interest only to legal eagles have become if not front page news no longer limited to a few inside columns of the broadsheets.  Indeed major news programmes are not long after social media in joining the reporting.  There has been considerable comment on the Court of Appeal`s decision last week that the government`s proposals to send asylum seekers to Rwanda was unlawful.  That result had been widely predicted but what was of interest was that the decision was by a majority of two to one the dissenter being the Lord Chief Justice.  That, as a secondary point, leads me to question whether the intellectual and legal requirements of members of the Appeal and Supreme Courts are that much different.  Are such eminent practitioners given points in the manner within the military when one star generals must be promoted three times to achieve top billing?  

Judges are also in a Scottish spotlight.  SNP proposals that a single judge should preside over rape trials without a jury have received considerable resistance from within the legal profession and without. Onlookers shouldn`t be surprised.  Nationalist governments throughout history have targeted courts to do their bidding.  Without juries  that target is closer to being achieved.  As in England in certain quarters there is disquiet at [according to those quarters] the low conviction rate in such trials. In addition they also claim that many more under investigation for rape are not brought to trial. Considering that the offence is not an offence and is a consensual decision in private for the vast majority of people it is unsurprising that a high hurdle is necessary for conviction.  Perhaps there is envy of the Republic of China where the conviction rate is 99%. 

When discussing judges and judgements many commentators overlook what constitutes a conviction in magistrates courts.  And well might they overlook.  In the lower court the pronouncement simply is "guilty".  The reasons are explained but whether or not that verdict is reached by all three magistrates or by two to one majority is never spoken publicly.  This is an anomaly I questioned during my own time on the bench and never had a reply worth its weight.  With the advent of majority 10:2 decisions being publicly accepted by judges in England since 1967 the secrecy in magistrates courts is untenable.  Knowing s/he was convicted on a majority verdict would certainly allow a defendant to consider the  possibility of a successful appeal at crown court.  Similarly on an acquittal such a split decision in itself would reflect the court`s lack of certainty in the prosecution case not too dissimilar to the 3rd verdict in Scots law of not proven; a conclusion with which I am in 100% agreement but another questionable change proposed by the nationalist government in Edinburgh. 

The trend by actions of the Ministry of Justice is to secrecy or at least increased difficulty in opening the door to accessible justice; the Single Justice Procedure is an obvious example. Therefore we are extremely unlikely to have any recommendations for change as above. If there were a real body to represent magistrates` opinions perhaps the matter would at least be aired.  As of now JPs are just kowtowing unpaid employees  of HMCTS.