HOPE OVER DESPAIR

Justice to many people is reading or hearing of the apparent ever lengthening sentences handed down to rapists, terrorists and child murderers.  As of 18 January 2021 Kit Malthouse said that there were 13 million person records, 58.5 million driver records and 62.6 million vehicle records stored on the Police National Computer [PNC]. The PNC is currently directly managed by the Home Office.  According to a Ministry of Justice extract of PNC data there were 9.4 million offenders of working age (16-64) with a nominal record as opposed to the population of 42.4m.  I suppose it can be assumed that around 40%- 50% of the adult population can be considered as having at some time been classified within the system as offenders the majority of whom will have been registered as guilty at a magistrates court hearing.  

There are around 14,000 magistrates, 140 District Judges{MC} and a similar number of Deputy District Judges {MC}. With the backlog in summary matters reaching chaotic proportions the MOJ is once more scratching its bewigged head in how to expedite the situation before its total collapse.  Legal eagles of all denominations will be crying "here we go again".  This time Sir Brian Leveson, he the author  of the controversial "Leveson Review" of 2012   has been handed the poisoned chalice.  Disregarding the closure of half the country`s magistrates courts and apart from such minor changes as increasing magistrates courts sentencing powers from 6 to 12 months custody and then reversing that decision a short time later, the integration of  the courts into His Majesty`s Courts and Tribunals Service, the introduction of digital technology has probably been the main updating of the whole system.  

At the turn of the millenium Lord Justice Auld was similarly charged.  At that time there was relatively little pressure on the system as we now understand it.  The review was more an intellectual exercise in improving what we had by examining existing resources.  As far as magistrates were concerned the general political argument by the then respected Magistrates Association was the more power to jail offenders the better.  From Auld`s point of view the structure of the courts, the utilisation of manpower  and the costs were his paramount concerns.  There is speculation that the impending review might recommend an intermediate level of jurisdiction where a District Judge would preside assisted by two magistrate wingers as is the composition  at crown court appeals where the judge is of the crown court or a recorder.  I can confidently predict that the M.A. would resist that and be prepared "to die on that hill."  Indeed Auld himself rejected that innovation. 

"I recommend that in the exercise of their summary

jurisdiction:

• District Judges and magistrates should not routinely

sit as mixed tribunals to deal with the general range or

any particular type of case or form of proceeding,

though there may be training and local ‘cultural’

advantages in their doing so from time to time"

But that was then and this is now.  There is little doubt that district judges sitting alone without the need for a legally qualified clerk would cost not much different from lay magistrates` expenses plus the salaries of legal advisors. They would also get through more work without the need to retire as often or confer. There is also the question of whether the intellectual quality of the magistracy is as it was a generation ago now that there is high pressure for Diversity, Equity, and Inclusion (DEI).  

Lord Justice Auld`s Review was masterful in his analysis of the magistrates courts.  The impending exercise will have a political blueprint as much as an economic or judicial point of view.  It has been ordered from current weaknesses; its predecessor`s was from a neutral position.   My experience tells me that a majority of criminal lawyers would welcome the limiting of the lay magistracy to non custodial matters.  Indeed they would probably welcome the Scottish form of a Justice of the Peace who hears cases limited to theft, minor assault, antisocial behaviour and road traffic offences where their powers are limited to fines of up to £2,500, prison for up to 2 months, disqualifications and unpaid work in the community.

Although at this time of year hope should overcome despair, for most of the public all this will appear to be a new government`s further attempt to move on from the previous ineptitude of the last 13/14  years.  With the history of the failures at Petty France in full view who can say that that opinion has no validity? 

Finally I thank those who give me some of their valuable minutes to read my opinions.  Whatever one`s religious or non religious affiliations please respect and enjoy the peace and goodwill associated with Christmas and New Year.

BREAD AND CIRCUSES FOR MODERN TIMES

One of the simplest analogies used to describe the benefits of our economy is to compare it to a rising tide where all the vessels sitting in the harbour will rise, the larger cruisers rising more than the rowing boats. Enlarge that rising tide ranging from the start of the industrial revolution to the beginning of this millenium and most economists would agree with Harold Macmillan, prime minister from 1957-1963, who was quoted on 20th July 1957 when he made an optimistic speech telling fellow Conservatives that "most of our people have never had it so good". From his patrician point of view it could be said he was speaking down to a majority of this country`s people. But on the other hand the NHS was providing fine healthcare for all but a small minority who chose and could afford private healthcare.




In 1959 there were 71,692 warranted police officers in England and Wales roughly half the current number. As of March 31 2024 the UK had 170,500 police officers which is 244 officers per 100,000 people. In 1961 there were 807 people for every police officer in England and Wales whereas the most recent figures in a House of Commons briefing paper show that there are now 462 people for every officer. It would be a brave statistician who would argue that that the 1960s was a more lawless era than that since 2000.




Despite the reform of the higher courts during the 1870s, the system of local assizes and quarter sessions had remained largely unchanged though it had become prone to excessive delay. This was chiefly because the courts only sat at certain times during the year. There appears to be no published information of trial court delays or backlogs as we now are all too familiar. It could be said that until the 1970s our courts and their processes would have been familiar to legal practitioners of the 19th century.




Legal aid was originally established by the Legal Aid and Advice Act 1949. In 2009 legal aid in England and Wales cost the taxpayer £2bn a year – a higher per capita spend than anywhere else in the world – and was available to around 29% of adults. In 2022/23 the criminal legal aid budget in England and Wales was £873 million. All the latest legal aid information is here. What can be said is that it is far more difficult for the defendant on the Clapham omnibus to get legal aid now than it was half a century ago.




In a nation where a two-week holiday for a UK family of four can cost around £4,792 the idea of having charges for some medical treatment is akin to crying "fire" in a crowded theatre. According to ABTA 58% of young families and 57% of older families went on a foreign holiday in the last 12 months. Today on a morning TV show an articulate married woman with two young children and expecting another explained her reliance on food banks. I wonder if the sympathetic interviewer would have lost her job if she had hinted at her position with regard to having another mouth to feed when she couldn`t manage to heat her home and also clothe and feed her current family. She would have lost all chance of ever working again in the TV media.




Margaret Thatcher famously said in 1987, "There is no such thing as society". There are many criticisms to be made of the Iron Lady but also some forgotten truths. This country`s infrastructure is fading fast. Recent motorway trips will reveal mile upon mile of expensive equipment lying unused whilst speed restriction beacons flash for long removed obstructions. NHS delays are literally the cause of tens of thousands of annual deaths. Trial delays make the Indian justice system efficient by comparison. Add to that list armies that have no bullets, aircraft carriers that have no planes and an RAF lacking pilots, aircraft and personnel. But this government like its predecessors continues on its merry way with the sweet political treacle coming from the lips of every minister. Avoidance of panic and head in the clouds, whichever metaphor takes the fancy, is the order of the day. That is why here and in much of western society populist politicians are on the rise. Perhaps it`s in the nature of any society, not just that of ancient Rome, that bread and circuses precede collapse. From Assad to Zimbabwe societal discontent can take many forms. Each collapse is as individual as a fingerprint but like fingerprints they all have a commonality. An existing order must replace the failed regime. How that change in political direction takes place and its effects on a population are unpredictable. All that I would opine is that the course is set.

CRASS COMMENTS AND A FUTURE MAGISTRACY

There can`t be many people who are unaware of the circumstances around the following statement videoed to the great British public a couple of days ago; “middle-class women of a certain age”. That that crass statement by a man who has been made a household name and extremely wealthy by the BBC was offered by him in riposte to allegations of misogyny and worse indicates a certain arrogance or worse. Even at a distance it demonstrates an inability as Robbie Burns observed “o wad some pow'r the giftie gie us to see oursels as ithers see us!”

In our woke infected world it is almost beyond belief that there are still those whom one would have imagined to have their woke antennae at the ever ready sensitivity position. Nowhere is that awareness more active than those working for, with or employed by the Ministry of Justice. Magistrates being hybrids in the system but as over regulated as the rest of the judiciary or perhaps more regulated are subject to being overseen as closely as any character from "1984". Considering the extent that supposedly top functioning appointments committees are responsible for the selection of JPs they certainly allow some crass individuals to fall between the cracks in the system when one reads the results of some investigations of the Judicial Conduct Investigations Office.

"The expedited process in the Judicial Conduct Magistrates Rules 2023 enables the JCIO to advise the Lord Chancellor and the Lady Chief Justice that a magistrate should be issued with formal advice or a formal warning where—

(a) there is no dispute as to the facts set out in the complaint;

(b) the alleged facts relate to conduct which the JCIO considers that the Lord Chancellor and the Lady Chief Justice would be very likely to decide amounted to misconduct; and

(c) the JCIO considers that the Lord Chancellor and the Lady Chief Justice would be very likely to decide that formal advice or a formal warning was the appropriate disciplinary sanction.

The declaration and undertaking signed by all magistrates on their appointment states that they will agree to be circumspect in their conduct and maintain the good reputation of the magistracy at all times, in their private, working, and public lives. They should avoid situations which might reasonably reduce the respect for judicial office or which might cast doubt upon their judicial impartiality. This includes avoiding use of the ‘JP’ status in ways that could be perceived as trying to gain influence."

Take the case of Mr Timothy Nathan JP quoting the report of 1st August this year.

"Following a hearing in March 2024, two magistrates who had sat with Mr Nathan on the bench, complained to the London Conduct Advisory Committee that Mr Nathan had been using his iPhone and iPad during the proceedings to read and respond to personal messages and emails. One of the magistrates reported that they had seen Mr Nathan using his iPad on a separate occasion to send personal messages to his partner, a fellow magistrate, who was sitting at the back of the court, having finished sitting for the day.

Timothy Nathan JP’s representations

Mr Nathan accepted that he had used his personal devices to send and receive messages, in relation to his self-employment as a professional pilot, during the long pauses in the hearing. He denied that there was any effect on his performance at the hearing or on the dignity of the court. The only people affected were the two magistrates who were sitting with him, as no other court users were aware of what he was doing. Whilst he did not recall, the other incident mentioned in the complaint, he confirmed that it was possible that he was having a text conversation on that occasion with his partner regarding travelling home arrangements."

The result for him was being issued with "formal advice".  

On 1st October this year the decision on Mr Michael Woodhouse JP was published.

"A legal adviser complained about the manner in which Mr Woodhouse had spoken to her at the end of a court day. She said that she had informed him that he could not invite a member of the public who was considering applying to the magistracy into the retiring room for a conversation. He asserted that he had invited prospective applicants into the retiring room for years and would not be told what to do in ‘his’ court. He demanded in a raised voice that the complainant call her senior legal manager and line manager to verify the information. He then repeated these sentiments in a conversation with the member of the public, which the complainant heard.


Mr Woodhouse’s representations


Mr Woodhouse accepted the allegations. He agreed that his behaviour was unacceptable and excessive and that the discussion should not have taken place in open court. He offered two further written apologies for his behaviour. He said he had been surprised at what the complainant had told him as it was contrary to advice he had received for several years. His frustration was not aimed at her but at court communications. He had apologised to the complainant and prosecutor on the day. He had also immediately called the senior legal manager and complainant’s line manager to apologise, and promptly reported his behaviour to his bench chair. In mitigation, he detailed several personal difficulties he was experiencing which he believed had affected his behaviour."

His transgression according to the investigating judge amounted to misconduct and resulted in a sanction of formal advice.

On the same day as the above, Mrs Jean Banford JP heard of her fate. 

"A complaint was made to the North West Conduct Advisory Committee that Mrs Banford referred to her status as a magistrate during a heated dispute with a neighbour about the neighbour’s dog. Mrs Banford was said to have repeatedly emphasised her knowledge of the law given her position as a magistrate, when telling the neighbour that their dog could be destroyed.

Mrs Banford’s representations

In her representations, Mrs Banford accepted that in hindsight her comment could be deemed as inappropriate, but explained that the neighbour’s refusal to accept that the dog was putting people in fear and could be destroyed as a result, caused her to emphasise her knowledge of the law."

For her inflated ego she was issued with a formal warning.

On 11th October Ms Lynn Killoran JP was issued with formal advice for misconduct.  Her misfortune was as follows:-

"A fellow magistrate complained that during two conversations with him, Ms Killoran made remarks which displayed an unconscious bias of an antisemitic nature. He alleged that she spoke about her work in the charity sector and a correlation between Jewish charities and fraud.

She stated that Jewish charities are believed to make use of the ‘Jewish Accounting System’, whereby money disappears without a trace and reappears later at a much higher value. The magistrate, himself Jewish, was concerned that Ms Killoran was relaying antisemitic stereotypes.

Ms Killoran’s representations

In detailed representations, Ms Killoran denied making the majority of the comments alleged in the complaint and asserted that what she did say had been taken out of context. She denied that her comments were antisemitic."

The 16th October saw the publication of the misdeeds of Miss Tessa Smith JP;  resulting in her being given "formal advice".

"The North West Conduct Advisory Committee (NWCAC) received a referral about a reference relied on by a defendant in a criminal case, which was given by Miss Tessa Smith JP. In the reference, Miss Smith described her own judicial role and used the JP suffix.

Tessa Smith JP’s representations

Miss Smith took full responsibility of her actions and apologised. Miss Smith explained that she had been a magistrate for less than a year. She accepted that she should not have used the JP suffix and should have given the reference in a personal capacity."

On 24th October 2024 Mr Jeremy Betts JP found out what his ill considered remarks cost him.

"Mr Betts and his colleagues were sentencing a youth following the recent imposition of a 24-month Detention & Training Order (DTO) at the Crown Court. The defence advocate made representations to the bench regarding the recent sentence and the sentencing remarks of the judge who, in the knowledge of the upcoming case at the Youth Court, said they had sentenced the youth with the intention that no additional sentence would be added.

It was alleged that, following these representations, Mr Betts said, “I’m not having some judge tell me what to do”.

Mr Betts’ representations

In his representations Mr Betts denied that he had made the comment in open court but admitted that he had made the comment, or a variation of it, in the retiring room."

His copybook is now blotted with "formal advice".

The 25th November saw the results published of the indiscreet comments by Mr Thomas Rock JP.

"A complaint was made to the North West Region Advisory Committee about a comment which Mr Rock had made during a panel discussion with fellow magistrates in the retiring room. The panel was due to hear a case of possession of the controlled drug, Khat in the afternoon session. During the discussion, it was mentioned that Khat was commonly used in Pakistan. In response, Mr Rock made the remark that they had to keep people in Pakistan subdued or they’d be off joining the Taliban.

Mr Rock’s representations

Mr Rock expressed his concern that the complaint had been made and explained that he was previously unfamiliar with the term ‘Khat’ and had been trying to enlighten himself by discussing it with a colleague.

He explained his belief that high levels of poverty in Pakistan, where it borders with Afghanistan and where there is a Taliban presence, feeds into the recruitment into rival gangs/factions operating in the use and production of drugs."

His misconduct resulted in a formal warning.  

Elizabeth Slamer JP`s  comeuppance arrived last week on 26th November.  

"A complaint was made to the Midlands Region Conduct Advisory Committee after a letter entitled ‘Single parenthood’ was published in The Times on 26 July 2024. The letter, written by Ms Slamer, included her status as a family court JP. Ms Slamer’s letter, sent in response to a letter from a different author about the failure of the Child Support Agency, remarked on the “relentless rise in the acceptability of” absent fathers than of “single mothers”.

Elizabeth Slamer’s representations

Ms Slamer accepted full responsibility for her actions and admitted that she had included her judicial status in the letter to add weight to her argument and highlight her experience. She stated that she had reacted in the moment to a perceived unfairness in the original author’s comments, who she considered had unfairly identified single mothers as the sole reason for the problem of demands on benefits and housing. Ms Slamer accepted that she had failed to consider the lack of impartiality that this could indicate."

That lack of impartiality resulted in "formal advice" for Ms Slamer. 

For Mr David Payne JP the day of reckoning was 27th November.  

"Mr Payne was referred to the Midlands Conduct Advisory Committee regarding his use of social media.

Mr Payne had identified himself as ‘Presiding Justice’ on his Facebook page and checked in at Wolverhampton Magistrates Court when he was sitting there. He had also shared posts on politically sensitive topics such as refugees and the government’s winter fuel policy.

Mr Payne’s representations

In representations, Mr Payne stated that he had a limited understanding of how Facebook worked and that a family member had set the account up for him and it was they who had identified him as ‘Presiding Justice’. He explained that he had used the check in feature as a means of keeping in touch with relatives that lived abroad and that he had shared the posts because he thought they were humorous.

Mr Payne admitted that he had not made himself aware of the guidance on the use of social media and, having read this and reflecting further, he realised that others may see the posts differently.

He also confirmed that he had deleted his account."

A formal warning was the outcome. 

To sum up:-  Judicial misconduct is categorised as minor, serious, or gross and the sanction for misconduct is determined by the seriousness of the conduct:

Formal advice: A sanction for lower level misconduct

Formal warning: A sanction for more serious misconduct

Reprimand: A sanction for more serious misconduct

Removal from office: A sanction for the most serious misconduct 

The Lord Chief Justice and the Lord Chancellor jointly agree on the sanction for each case of misconduct. Factors that are considered when deciding the sanction include:

Whether the office-holder accepted responsibility for their actions

Whether the conduct affected others or damaged the reputation of the judiciary

Whether personal issues affected the office-holder's behaviour

Any previous disciplinary findings against the office-holder

Having regard to the selection of the above recent rulings I find it astonishing that those selected for the position of Justice of the Peace with all the responsibilities of that office can allow their tongues to be light years ahead of their brains. Personally when active I reported winger colleagues whose activities included whilst on the bench sleeping, doodling, mind blowing incompetence and agreeing with every argument guilty or not guilty when discussing verdict in the retiring room. But these complaints were put to the Deputy Justices Clerk who had private words with those involved. However when I saw a letter in a newspaper signed by a Mr X J.P. I did report him to the advisory committee. 



I am of the opinion that considering there are 14,576 magistrates in post across England and Wales as at 1 April 2024, up 9% compared to the previous year those reported today are a small minority. But the rate of increase is perhaps outpacing the resources available to ensure adequate training especially with the imminent retirement of experienced presiding justices notwithstanding the ability to sit until aet 75 which some [many?] will not undertake. It`s no secret that many of the judiciary and legal profession would prefer to see the end of or at least a diminished role for magistrates. I do think that on a scale of zero to 100 where 100 represents the end of the magistracy in its current form we are at around 70. Time will tell.

THE CANARY IN THE JUSTICE SYSTEM AND A LEGAL ASSORTMENT

I would hesitationally suggest that for most people when asked about their contact or interest in the justice system their response(s) would be based on their experience(s) or knowledge of having had fines imposed for a motoring offence or other low level summary matter.  Further questioning on sentencing levels for "real" crime particularly crimes of violence would be answered  by many [most?] as being too lenient especially in the current climate where early release owing to prison overcrowding is becoming an epidemic of frightening proportions. The Tory`s underfunded justice system`s chickens are certainly coming home to roost in Downing Street and Petty France. But notwithstanding all that, sentences for violent crime have increased since the millenium.  Murderers twenty years ago were released after serving about 14 years; today that period inside has become about 19 whilst the actual minimum sentence has increased from 14 years to 21 years in custody.  There is a public perception gap between sentences pronounced in court and the reality.  Release under license halfway through a sentence is the mantra for courts including the magistrates courts.  It is a given.  Generally there is little incentive for a prisoner to behave within prison rules. Perhaps Sentencing Guidelines and remarks would be better served and better appreciated if that facade were faded out.  An analysis of the prison population between 1993 and 2020 is available here.  Justice in Numbers - Summary Tables: 14 November 2024 is available here.  This is the current pocketbook version.

The reality of sentencing killers was recently well outlined in the Court of Appeal decision on double murderer Marcus Osborne.  Before 1965 undoubtedly he would have been hanged.  

Long before an alleged offender appears in a courtroom it is the police officer in uniform on the street where the law steps in to make an appearance.  Recent accusations of there being two tier policing in England have been given credence in the matters of severe sentencing resulting from the Southport riots and other disturbances related and in the blatant antisemitism and hate mongering of supposed Palestinian sympathisers  being accepted as within the law.  An offender within the former category has appealed his custodial sentence for kicking a police officer.  Social media within the last few weeks have had widely viewed videos of police retreating in the face of hostile crowds, often consisting of young men of south Asian descent, in contrast to police in USA, Germany and France inter alia who appear to  take a much harder line to enforce the law on their streets.   The government and chief constables, especially the Commissioner of the Metropolitan Police, appear to hold dissimilar opinions on when and to what level police should be controlling our streets.  Perhaps the more pertinent question is whether or not the police are capable of enforcing the law on our streets. 

From an opposing point of view Palestine activists appear to think they have an exemption to destabilise our society by acts of criminal damage, obstruction or other "non violent" means as being on a par with eg the suffragettes of the early 20th century.   They are in reality on a par with the colloquially named eco terrorists who have plagued us in the last few years in their "cause" of saving the planet even if it entails imposing their ideas and methods on the majority population.  In simple terms they are embryonic fascists brooking no opposition from authority in pursuit of their objectives.    

Meantime at Northampton Magistrates Court it was heartening to read of criminals exploiting the homelessness of many people by being fined sums of money which will make them suffer where it hurts most; in their pockets.  During my career the maximum single fine my bench imposed was around £40,000 on a fly tipper with a property developer runner up at £22,000.  Those despicable men making fortunes from others` misery have been told to fork out over £400,000 in fines and costs etc.  What we do not know is the payment system agreed and whether it will be enforced; a subject about which I have posted recently.  

And finally in today`s assortment  of legal goings on all too often we read of the comments of a retired very senior judge of the High Court, Appeal Court or Supreme Court.  Sometimes I wonder why such eminent jurors kept silent prior to their receiving the first payment of their civil service pension. The ethics of their contributions are discussed in an interesting article by Joshua Rosenberg. 

The warning of the canary in the coalmine has been adapted to many situations.  It has been observed in the justice cage still alive but breathing heavily.  It can still be saved if there is a will to do so.

MOTORWAYS, JUSTICE AND THE DEMOCRATIC PARADOX

Recently I had reason to travel slightly further afield than is my usual need.  Having a very comfortable vehicle with all mod cons a few hundred motorway miles was by far preferred to the uncertainties and cost of travel by train.  On my return home it dawned on me how similar this country`s road traffic has grown out of all proportion to the underlying infrastructure in a manner similar to the courts being overwhelmed by structural failings, staffing shortages, political interfering and increasing regulation  which cannot be policed or enforced.  In 1966 when I obtained a driving license there were fewer than 10 million cars on UK roads. Statistics on other vehicles are unreliable. Today with an unpredicted and increased population there are 41 million.  I remember clearly driving on the M1 which opened in 1959 at 90MPH prior to the 70MPH limit being imposed. There was generally little individual danger owing to the low ratio of vehicles to motorway mile.  My single fine for speeding was for driving at 80MPH on that same M1 in 1984 stopped by a patrol car two miles from the second last exit before the M1 ends. 

During my recent trip I did not see a single police patrol car.  On that Sunday journey flashing signals of 50MPH were ignored by most vehicles.  These signals were repeated for about four miles before brake lights ahead became quite obvious from a few hundred yards distant where police were tidying up the inner carriageway after a car had apparently gone off the road.  There were of course the usual hundreds of yards of road narrowing or coned off with much machinery lying idle but no workmen around.  Daily around 25% of crown courts are not in use owing to a lack of available judges, structural building problems or lack of legal and other staff.  Recent disclosures in the media indicate that some cases of rape will not be heard for up to four years.  Delays at magistrates courts are going to increase now that the MOJ has decided once again that 12 months custody is available in some cases. Loud voices from the parliamentary and other sources Left are calling for everything but the building of more prisons.  Laudable as those policies are the protection of the public does not seem to be the prime consideration.  Just as motorways need to be increased the Sunak government finally admitted billions of pounds were wasted on a high speed rail network that was flawed from its inception. 

As in decades long gone government priorities seem to be aping Alice through a judicial looking glass. Interfering with a badger sett is punished by ten weeks custody suspended.  Over the last decade or so with unpaid fines,  compensation and costs running at anything from one to two billion pounds outstanding it has taken one court nine years to identify an offender.   In many US states such miscreants are jailed a day for every $ owed to the court. I have witnessed such courts in action.  It was and is a salutary lesson for those involved.  Criminal Behaviour Orders [CBOs] are a joke; a refining of ASBOs they should be renamed Displacement Orders because they are the modern version of the the police saying, "Move along now; nothing to see here". This is just another similar single occasion repeated tens of thousands of times annually.  Domestic violence and stalking have rightly moved up the public political agenda but so has releasing suspects even on conditional bail.  It`s not an exaggeration to consider that the expedient judicial dog is wagging the justice tail.  

The essentials of our lives as citizens of a civilised nation which rewards its workers, encourages those who aspire to improve our and their own fortunes and indicates its non acceptance of those who would feed as leeches off other`s endeavours is fading whilst we count the angels on the pinhead.  Just perhaps those who retain their belief in a democratic society where there are downs as well as ups will see that society renewed in the next decade without undemocratic means having to be employed to retain it: otherwise known as the democratic paradox. 

LEGAL SOUPS FROM BROTH TO CONSOMME

For the vast majority of car owners for whom the legal system is no more impacting on their lives than when they have gone through a red light or been stranded on the yellow criss cross pattern when a major road meets another at a right angle the Appeal Court decision on Close Brothers Motor Finance probably was of little concern.  If it isn`t now it soon will be. Indeed for me it brought back memories of when I bought my current car a few years ago.  It was a new model and I had waited about six months for delivery so I was pleased to attend the dealership to complete the transaction.  I had negotiated what I thought and still consider a good deal.  When I told the salesman I intended to pay the balance due in cash I thought in my naivety he would be pleased but no, his face dropped.  He then spent at least fifteen minutes explaining why by taking their finance deal I would be doing myself a favour.  In fact he could drop that negotiated price by a further £1,000. When I insisted on making that immediate bank transfer from my phone he made his final pitch;  you can, he assured me, cancel the deal after one month, pay the balance due which would be based on a loan over only a single month and be quids in. I was unconvinced and replied that I would buy elsewhere if he persisted.  Only now reading of the high commissions Close Brothers and others paid car retailers to push loans their way do I understand that salesman`s persistence. 

Flags and their implication when being used outwith their historical associations to assert political supremacy are once more in the headlines.  Rarely has a foreign flag especially for a non existing country been paraded worldwide in support of terrorism when combined with chanting that a country which does exist should be removed from the map.  When the flag involved is the Union Jack being flown or not flown  in Northern Ireland the issue can be volatile.  The grey area between patriotism and nationalism becomes even less definable. Whatever the religious divides, that province is within the United Kingdom and in this month commemorating November 11th 1918 the union flag should be a symbol of just that: unity. However it took an order from a High Court judge for that red, white and blue totem to be flown  permanently at war memorials in Ards and North Down.  

Often politicians proclaim with pride the independence of the British judiciary within our unwritten constitution.  I beg, as a humble retired lowly magistrate, to disagree. On 23rd April 2020 I posted of my own experience of interference with my independence after the 2011 riots.   It seems that the rioting of August has initiated a similar instruction to the police and professional judiciary; mass arrests, immediate court appearances and deterrent sentences. Apparently the Court of Appeal is not quite in step with the tune that the executive played.  Long might that continue although like all organisations it is as strong only as its weakest link which snapped under the pressure surrounding Covid. 

Magistrates are often blamed for decisions which are deemed unlawful.  As they are constituted as non legal professionals although many younger members of that world strangely are accepted in a lay capacity, the office of legal advisor is present at every sitting to ensure the correct functioning of the bench.  When a bench is accused of  acting unlawfully rarely is there any public comment that the legal advisor has been less than diligent. A recent case where matters reached adjudication at the High Court illustrates that those like the  many intelligent  inquisitive colleagues I met and learned from at my court  are now no longer to be found in such numbers.  Frequently my colleagues and I ordered documents eg wage slips, bank accounts, Inland Revenue statements, end of year accounts from Chartered Accounts etc when dealing with offenders confronting what would be high financial penalties relative to their unverified claimed income.  Such actions were in our joint opinions common sense; a personal attribute required on my application form in 1997.  That requirement was deemed unnecessary about 20 years ago.    

And finally today a comment subsequent to my post last week; prolific shop theft as exemplified by Benjamin Gothard-Smith at Isle of Wight Magistrates Court.  The brutal truth is that our current system cannot cope with the likes of him and the hundreds of thousands of others similar, the vast majority of whom are addicted to alcohol and/or drugs.  I have long advocated a way forward where I am realistic enough to know there is no will. [for fuller information type "workhouse" in search box] A medical pathway through a modern interpretation of the Victorian workhouse would offer hope to offenders as well as a society which has tolerated their sleeping on the streets.  Attention could then be focussed on those immigrants who are fast becoming an unwelcome addition to this country already striving to hold together its disparate elements under the aforementioned Union Jack. 

SHOPLIFTING AND BROKEN WINDOWS

I remember this case.  Around that time like all other magistrates courts we were experiencing a noticeable rise in shoplifting cases.  Subsequent to the "banana" case and others similar shoplifting became a summary only matter. Orders came via the Deputy Justices Clerk that a "new" word was to enter our lexicon when consideration of sentences for those convicted was being discussed; propensity. Irrespective of the small value of the theft from a shop the "p" word was to figure insofar as protection of the public [shopkeepers] was concerned.  That allowed when appropriate six months immediate custody for e.g. stealing an apple from Tesco.  And then a decade ago the coalition government classified stolen items valued at less than £200 as "low value shoplifting".  From that decision a steady increase in the crime of shop theft has taken place. 

The situation now is that shoplifting is a "no lose" activity for criminals because a severely undermanned police force has not got the resources or the will to pursue those who are having a free criminal ride.  The lowest form of punishment for theft under £100 is a fixed penalty notice.  In the year to March 431 such notices were handed out. Many constabularies didn`t hand out a single FPN.  A decade ago 19,419 were issued.  Ten years ago 16,281 shoplifters were cautioned. The most recent figures show 2,077 were issued. Ten years ago when I was still active my court and others convicted 71,998 shoplifters but by the last year where statistics are available  that number had fallen to 28,955.   The latest numbers compiled by police forces indicate that in the year to March there were 443,995 shoplifting occurrences reported.  The number unreported is...........unreported. The British Retail Consortium estimated that there were over 16 million episodes of customer theft in 2023-2024.  

The Broken Windows Theory of Criminology suggests that visible signs of disorder and neglect such as broken windows or graffiti can encourage further disorder and criminal behaviour. The theory states that by stamping out small crimes (such as vandalism or being drunk and disorderly) the signal is sent that no criminal behaviour of any kind will be tolerated.  This has to be considered alongside the view that the theory oversimplifies the causes of crime by focusing primarily on visible signs of disorder insofar as it neglects underlying social and economic factors such as poverty, unemployment and lack of education which are known to be important contributors to criminal behaviour.

Undoubtedly there will be many at Petty France at this very moment trying to formulate responses to the above situation and others more serious with inadequate resources to do so. The coalition and successive Tory administrations failed miserably.  I would not want to wager a single penny that the current lot will do any better.  

ADDENDUM 6th November 2024

Today`s issue of Law Society Gazette has had some interesting editorial and comment on this topic

UNCONSCIOUS BIAS IS A FALSE TOTEM

Everyone knows what prejudice is.  Many of us will have enough self awareness to know that in some form or other there is a possibility, probability or certainty that on some every day topic or  subject of minor interest we are prejudiced or in the words of some psychologists who think they have all the answers, we have a conscious bias for or against said topics or interests.  My wife, for example, is biased towards purple.  Her house plants are dictated by the colour as is her car, her wardrobe and long ago the paint chosen to cover walls in the hallway. She is also biased against intellectual snobbery and doesn`t suffer fools gladly.  

However the spreading tentacles of human resources departments and their university psychology departments` academic sources have fostered the concept of "unconscious bias".  This concept has  infected the western world without challenge.  It has infiltrated the working and academic lives of millions.  It is within the legal profession that, in my opinion,  it has been the most devastating to freedom of thought and the corruption of what constitutes reality.  Politicians have been quick and eager to jump on this bandwagon for their own nefarious ends. Unconscious bias as defined by Edinburgh University is  The tendency of us as humans to act in ways that are prompted by a range of assumptions and biases that we are not aware of.   This can include decisions or actions that we are not consciously aware of, as well as hidden influences on decisions and actions that we believe are rational and based on objective un-biased evidence and experience.  Unconscious bias can be present in organisations and groups as well as influencing the behaviours and decisions made by individuals.  

Civilisation has developed from primates learning from their and others` actions and reactions which are beneficial to their survival and which are detrimental.  The most active benefit to the individual is the bond of the family.  The bias toward family is natural and rewards such affinity with longer life and happier offspring.  We learn continually who, what, when and where  love, safety, danger and misery lie.  These are conscious and  unconscious thoughts, feelings, actions and reactions to maximise our lives, loves and livelihoods and to diminish the dangers we had and have to face from sabre toothed lions to telephone scams.  

But now the lines are crossed.  Those who refuse to accept the mantra of Equality, Diversity and Inclusion (EDI) as a requirement to rid themselves of unconscious bias are labelled fascist, racist or similar epithet.  And those within the legal profession who have fallen for this artificial fabrication and the politicians who empower them have failed to realise that within that mindset the need for inclusiveness also must encompass acceptance of ideologies which are the very antithesis of western civilisation and are indeed a suicidal call for what has been the Judeo Christian foundation on which our society has been built.  Nothing exemplifies this attitude more than the disgraceful and disgusting verdict on the successful appeal by David Miller against his expulsion from his tenure at Bristol University. Astoundingly an employment tribunal decided that "The claimant’s anti-Zionist beliefs qualified as a philosophical belief and as a protected characteristic pursuant to section 10 Equality Act 2010 at the material times."  The full 120 pages of the judgement are available here.  Building on the incessant anti "Zionist" propaganda of the past year in which clear anti semitism has been expressed using the term Zionist as a cloak the tribunal has ratified that a belief in a Jewish homeland held by a large [60%-80%] of Jews here and worldwide is not protected in law from those who would preach in a manner directly based on activities in pre war Germany.  Indeed by substituting Zionist in their diatribes in place of Jews Miller and his ilk  can continue to spew their hatred to those who are the children to his Pied Piper.  I would argue that if unconscious bias does exist it existed in the minds of that Tribunal. It has been offered as the reason for another forum to castigate a magistrate [see below].  Unfortunately but unsurprisingly it has taken a marxist orientated publication to offer a riposte to the Tribunal`s decision to which I understand an appeal is in hand.  There are those who would defend Miller and that verdict.  The professional judiciary are government paid and pensioned civil servants. There is always a significant cohort who would put their own careers and well being above the requirement to uphold the law where the two come into conflict.  In the Miller case it might be said that the Tribunal members revealed their own unconscious bias against Jews.  Now that is  paradoxical. 

Closer to home a magistrate has recently been investigated by the Judicial Conduct Investigations Office for making antisemitic remarks in a court setting. To quote the particular paragraphs;

 "A fellow magistrate complained that during two conversations with him, Ms Killoran made remarks which displayed an unconscious bias of an antisemitic nature. He alleged that she spoke about her work in the charity sector and a correlation between Jewish charities and fraud. {my bold}

She stated that Jewish charities are believed to make use of the ‘Jewish Accounting System’, whereby money disappears without a trace and reappears later at a much higher value. The magistrate, himself Jewish, was concerned that Ms Killoran was relaying antisemitic stereotypes."

The complete report can be accessed here. 

I would opine that there was nothing "unconscious" about the prejudice that Ms Lynn Killoran JP expressed.  It was a deliberate anti Jewish slur of which she was fully aware.  The implication of the judgement is that she was not responsible because it was unconscious bias.  Just as the fashion for the gender bending of children has been demonstrated to be against all logic and laterally illegal so it will be, concerning the concept of unconscious bias. That change in perception cannot come soon enough.  Academics and pseudo psychologists have weaved their dangerous patterns for far too long. Soon reality must resurrect itself and prevail.  Unconscious bias is a false totem. 

GORGE ORWELL HAS ADOPTED ALICE IN THE WONDERLAND THAT IS NOW THE UNITED KINGDOM

I suppose it`s not being too late with the news that once more magistrates courts` sentencing powers have again been increased to 12 months custody for a single offence. The reason given by the MOJ is that prison overcrowding will be eased.  But does this simple explanation stand up to simple scrutiny?  Forget all the statistics except this; for decades the rate of immediate custody in the lower courts has been no more than 3% - 4% of all sentences.  On an individual level I have yet to meet a magistrate who enjoyed acquiescing to such a sentence. Indeed a personal guideline which in days gone by I offered to a new magistrate was a case which has stayed in my mind for 20 years when discussing custody for assault: it went as follows: a man in his mid twenties with a previous record of violent behaviour living with a partner in the late stages of her pregnancy  pulled her down a flight of stairs by her hair at their home.  We sentenced him to the maximum six months immediate custody.  The proposed new guideline will mean that more either way offences will be tried and sentenced in magistrates courts.  Perhaps in its wisdom the MOJ will remove that choice.  In any event why would the number of custodial sentences be reduced?  There does not seem to be any logical reason.  What will happen is that the waiting time at crown courts will be reduced.  However an unintended consequence for this chopping and changing trial horses in mid gallop is that there will be a frantic increase in attempts to have more magistrates and perhaps an increase also in the number of appointed District Judges[MC].  A rushed recruitment programme for demanding jobs inevitably leads to a lowering in subsequent performance.  Police forces throughout the country having lost long serving officers by the thousand since 2010 are facing a similar situation with fewer "old hands" available to bring their knowledge and experience on the streets to their new young colleagues.  The new Secretary of State by publishing another sentencing review is just following on the pious words of so many of her predecessors.  How long she will be around to see it fail is a moot point.  

In view of the fact that Scotland has the worst drug problem in Europe there was an interesting answer to the following Freedom of Information Request:- In the last five years how many people have received the maximum sentence permitted for contraventions of the Misuse of Drugs Act, in relation to possession, possession with intent to supply or being concerned in the supply of Class A drugs in the High court?  The short answer is not one.

It seems that the push of some Muslims to associate many social issues to the situation in Gaza should be a cause for concern.  Thankfully this country has a record of church and state mainly (but not always eg House of Lords) being separated.  Whilst not like a constitutional requirement as in America our fumbling way through such matters and others similar seemed to be effective........until now.  The banking arrangements between Tesco and Barclays Bank should be a matter only for the companies concerned.  For these Islamists who can be described as political Muslims our society should be re-aligned to their long term desire for sharia.  These and other early signs of political Islam unfortunately are not being faced by the government or perhaps Keir Starmer hopes that the public is blind to such matters. With a population now of 3.4 million Muslims he might be correct but with a projected population of 13 million in 2050 the chickens will be coming home thick and fast to do their roosting. 

All too often from TV to Twitter [X] we are being informed of the remarks in the workplace or elsewhere that are taboo and worthy of legal action.  Another reference can now be added to the plethora currently classified as verboten.  Calling a man "baldie" is now to be viewed as sexual harassment. Truly this country is in wonderland, down the rabbit hole or through the looking glass. Whatever you might choose we are at a period in our history when George Orwell has adopted Alice.  

THE END OF THE ROAD FOR MAGISTRATES?

For centuries magistrates were chosen from a small select group of local worthies to adjudicate over a local population generally when the crimes committed did not require an indictment.  Defendants were tried summarily.  By the late nineteenth century the summary courts were dealing with twenty times as many cases as the jury courts. This included an increasing use of pre-trial hearings - a kind of pseudo-trial in which magistrates evaluated the evidence in cases that strictly speaking should have been forwarded to the jury courts without review.  In 1166 King Henry II issued the Assize of Clarendon which required non-King's Bench judges to travel the country to hear cases. This established the system of judges sitting in London while others traveled the country, known as the "assizes system".  It has been within the magistracy that the concept of local justice has survived and even that concept is being whittled away with  non local District Judges being now a common and necessary fixture of the magistrates courts system.  And yet the MOJ still propagates that notion of "local justice for local people".  It could be argued that as it was when I was appointed, a magistrate`s jurisdiction was limited to the area in which s/he resided.  All that changed a decade or more ago when the whole country was deemed an individual`s jurisdiction thus allowing, if and when needed, out of county JPs to fill sittings.  The professional judiciary have no such locality requirements for appointment. 

Since Covid and following on from the closure of half the country`s magistrates courts JPs` numbers have fallen from a peak of 30,000 20 years ago to around 14,000 currently.  Now as with decimated police numbers the MOJ is trying desperately to recruit more members of the lay bench.  Millions of pounds are spent on advertising and much more in investigating the dozens of facts about each applicant`s background, parenthood, religion, occupation and what they have for breakfast.  Is it any wonder that so few people are willing to put themselves through such filters for up to two years just to give of their free time 13 days annually on the bench and almost as many in training. As an example the recruiting organisation for the South East of England has published this standardised recruitment advertisement.    

Towards the end of the last century an academic study [of which sadly I can now find no trace] estimated that if District Judges sat without a legal advisor or clerk instead of  lay benches the costs would be about equal to the cost of magistrates` expenses and training.  Many criminal lawyers would welcome such a change.  Whether the public would be equally receptive is another matter.  Nobody has ever bothered to inquire.  

Last week I commented on the case of His Honour Judge (HHJ) Martin Davis who was castigated by the Judicial Conduct Investigations Office.  Reading the first few statements of that office`s October`s findings I find it difficult to understand how those JPs were able to be appointed in the first place.  Whatever the findings they seem to have had underlying traits which should have been teased out much earlier in the process.  Perhaps they were appointed long before the current fine tuning which is in place although that details on who and what they have been and are now. 

It seems obvious that all the supposed brains at Petty France don`t know what to do with lay magistrates.  As I have posted here in times past, they have treated them like the Grand Old Duke of York treated his soldiers; he marched them up to the top of the hill and marched them down again except the hill involved is that of making 12 months custody for a single offence available.  "Yes it is but then no it isn`t".  My sentiments on this subject have crystalised in the last few years. The more desperate the demand for Justices of the Peace the more the likelihood of the quality of applicants reducing.  Whether they will wither on the vine as increasing numbers of DJs are appointed or become add ons to a new form of lower courts system is unknown.  But the current situation is surely that sign of a system`s eventual demise. 

THE DAUGHTERS OF THE ME TOO MOVEMENT

Like many of my generation I am subject to annual blood tests which serve to pacify any anxiety I might have on my general well being [so far so good] and allow the NHS the earliest opportunity at the cheapest cost to right that which might seem wrong.  It does this by analysing and classifying blood tests according to an "average".  I had recent cause to study some of my results over the last decade or so and noticed that the "average" figure against which my personal result was normal or abnormal was not a constant; inquiries informed me that some of those figures were a local population average. As an example in August 2023 my serum potassium reading was "normal" between 3.5- 5.1.  In April this year the "normal range" was 3.5- 5.3.  Has the error allowed in analysis been subtly  altered?  Has the population`s blood been contaminated? Has the measurement system developed inaccuracies?  In other words is our being medically out of step mathematically a cause for concern or an attempt by the state to allow greater variation to pass unquestioned? 

And so to the world of woke folk.  In 2006 a wonderful German film Lives of Others exposed the system by which the communist government of the then East Germany kept dissidence and dissidents under control by their secret police the Stasi.  That was then, this is now.  The judiciary from the lowest level magistrates to the members of the Supreme Court is arguably the most tightly controlled group of  professionals not only on the public payroll but amongst all the professions.  Their every attribute or profile is in the public domain but they are appointed in secret.  Almost their every public statement is subject to oversight.  And now a combination of so called progressive thinking and a fear of accusations of being unfair or bias in their behind the scenes activities has led to iniquities of which a Parisienne concierge of 1789 would recognise as not merely intrusive but in their own way, deadly. 

THE JUDICIAL CONDUCT INVESTIGATIONS OFFICE ostensibly is the fairest and most open of supervisory authorities which plague this nation.  It is a classic example of  an organisation seeing all the trees and unable to recognise the wood.  It follows {or has led} a pattern seen in numerous cases of maladministration in health authorities, children`s care and uncorrected injustices within the legal system to name but a few.  

The latest fly to be ensnared by the secretive soundings of the JCIO spider is His Honour Judge (HHJ) Martin Davis.  Rather than re-stating his encounter readers should read for themselves the published conclusion or verdict   on his supposed wrong doing. 

There is a single line within that apology of a report which bears thinking about above all others; "the complainant, a female member of staff who was subordinate to him, and therefore unable to object to anything said, and who did not know him." 

I find this extraordinary.  Such an apparent mouse of a woman yet apparently sensible enough to be employed by HMCTS....... 

The bottom line is that an unknown accuser has left a black mark on the career of an honourable man and this action has been justified by fellow judges.  This is the lives of others being played in real time in England in 2024.  Is misconduct a product of our times?  As with my blood tests how far does "fashion", average or wokeness play in such decisions. Is today`s street protester tomorrow`s fascist rabble rouser? Just as the virus of #antisemitism in the guise of being pro Palestinian or anti Zionist has infiltrated all corners of society it seems the daughters of the Me Too fanatics have found a new home within the English justice system.