PERVERSE OR NOT PERVERSE:THE DEBATE CONTINUES

Last week my post heading was "Perverse Verdicts".  This week the High Court came to a conclusion on what might be described as a corollary to that; namely that  "Mr Justice Saini refused the Solicitor General’s application for permission to bring proceedings for contempt against Ms Warner. Ms Warner had displayed a placard with the words “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE” to passers-by outside Inner London Crown Court on the morning a trial of a number of defendants associated with the environmental group Insulate Britain was due to begin.

Mr Justice Saini reached the firm conclusion that the Solicitor General’s case did not disclose a reasonable basis for committal, given Ms Warner merely “accurately informed potential prospective jurors about one of their legal powers”.  

To re-cap an interesting juxta position of the law; a barrister is forbidden to speak in favour of his client who wishes to put forward a perverse argument as his/her defence but an unrepresented defendant can him/herself argue that self same perverse argument. As I indicated last week this debate has a long way to run.  The full transcript of the above case HM SOLICITOR GENERAL Claimant - and - TRUDI ANN WARNER Defendant is available here.   

PERVERSE VERDICTS

It seems that especially since October 7th 2023 the term "public order" has been re-defined by police especially in London.  The Commissioner of the Metropolitan Police has taken a Humpty Dumpty attitude to expressions of public hate insofar as HD`s definition was that words mean what I want them to mean.  This approach to the policing of demonstrations large or small has infiltrated the minds of those mainly on the socialist so called "progressive" Left who are assembling at the drop of a hat to make felt their opinions on an ever increasing range of topics which they think that they and only they have the right to impose upon the public all manner of interference in their daily lives.  

Perhaps one of the first such demonstrations which was arguably aimed at government and not public opinion was that at Greenham Common between 1981 and 1992 when a group of women formed a 24 hours a day seven days a week permanent camp to protest at nuclear weapons being stored at the site in Berkshire on instant alert to be used by U.S. aircraft to bomb Russia if the "need" arose.  From tree huggers to road blockers via climate change fanatics, trans fascists and Black Lives Matter reparation seekers the elasticity  of the legal right to protest and the public`s right to go about its lawful business unimpaired has become increasingly stretched.  The bitter hatred of the politics being exposed by that massacre on October 7th has taken the antipathy to law and disorder a further anarchic step first posted here on 19th December 2023.    In simple terms in view of the protesters but a minefield for legal big wigs campaigns are being organised to allow jurors to disregard judges` directions that verdicts should be based purely on the evidence presented at trial and that the opinions or consciences of jurors should not override that prime consideration.  Events in Salisbury and Bristol appear to be following previous methods of protest. 

As a retired member of the lowest level of the judiciary I can, like everyone else, have an opinion and enjoy debate over a pint were I so inclined.  But for those at the top table this is a matter of fundamental constitutional importance.  With racists in the guise of "progressives" absorbing Islamo-Marxist inspired "anti Zionism" to avoid in their minds expressing hatred of Jews and justifying acquittal of criminal damage, breach of the peace and/or affray, BLM supporters defacing  statues and artworks and others similarly using climate change in their defence of public order charges the debate and conclusions on perverse verdicts has a long way to run.  

JURIES AND TELESCOPES

Today`s opinions for what they`re worth are from the viewpoint of an interested outsider and not as those of a retired magistrate.  An area where outsiders and the law interact without detriment to the former is in jury service.  Personally I have never served as a juror but for those who do especially in cases of acute public interest the pressures must be considerable  especially if their backgrounds are such where there has been no need to exercise higher intellectual functions.  In typical British fashion there has been virtually no research into how a jury functions.  All that academics can do is to analyse results and their aftermath. Such limitations were available for all to see in the cases of  PAUL YUSUFF,  MATTHEW YUSUFF  and  MOUSSA TRAORE. To quote from the matter heard on 27/3/2024 IN THE HIGH COURT OF JUSTICE KING'S BENCH  DIVISION DIVISIONAL COURT and available here in full the jury spokesperson made a mistake on telling the court the jury`s verdicts.  The ramifications of this situation must be having or at least should have major second thinking at the MOJ as to how to prevent a further similar happening and that the "untouchable" workings of juries must be set aside in favour of properly funded academic research.  What immediately comes to my mind is that the jury`s findings should be written and signed by all jurors and handed to the judge before the pronouncement is made.  In the event of confusion that confusion could be rectified by the judge and clerk of the court before before any public "misspeaking". 

The other major legal event in recent weeks  was new guidelines from the Sentencing Council on Domestic Homicide Sentencing. For what it`s worth I do think said body is looking at the law through the wrong end of the telescope.  Thankfully the unlawful killing of another is still a relatively rare event in this country and domestic homicide whilst a dreadful crime with widespread ramifications for any family is also relatively low in the UK.  Perhaps Mr, Mrs and Miss Person in the street would rather that criminal activities on their doorsteps or high streets were in the sights of the Council in its efforts to use sentencing as a deterrent and punishment.  However with almost every day bringing news that more and more offenders who deserve immediate custody not being jailed owing to there being no prison accommodation and others being released with ever increasing remission I see no more prospect of that than I do of a much needed increase of police officers actually on our streets and new police stations being opened or re opened where they are actually needed i.e. on our high streets.  Meanwhile the Sentencing Guidelines despite denials look increasingly as if they are ripe for computerisation at least in the early stages of determining the seriousness of an offence but that is a topic for another day.   

SJP JUGGLERS DROP THE BALL OF JUSTICE

Sentencing of newsworthy serious criminals on live TV is no longer in itself a newsworthy event.  Pioneered in Scotland such opportunities  to show  the law in action are an indication of how the MOJ wants the public to perceive the state of justice perhaps to disguise the failure of the last 14 years during which from police to prisons and all posts in between only a rabid optimist would opine that  the public is well served against criminality. When multiple murderers are sentenced in effect to die in jail the tool makers in Petty France can almost be seen as clap happy with their mutual back slapping as national media take up the stories. However it`s at the local level whether on line or in print that tens of millions of people have their glimpses of the law in action. One would have thought that the recent furore initiated  belatedly  by the Magistrates Association in respect of the Single Justice Procedure would have invited criticism as to why it has taken nine years to reach the eyes and ears of the general public.  It has not.

Local print media, the vehicles which in times past by their reporting of local magistrates courts when indeed such were actually "local", were  once the "name `em and shame `em" engines of a type of neighbourhood watch all but absent now in our collective rush to the keyboard.  At one time the option for local newspaper proprietors would have been to try and increase circulation by offering content that social on line media and mass media print by their very structures could not.  However nowadays it seems the business plan for local press is to restrict their on line availability to subscription only.  By playing chicken with their readership as to who will give way first; those prepared to buy the hard copy, those who would pay subs or those who refuse either option, it`s increasingly unlikely that truly local news will be reported.  It is likely news agencies` synchronised   stories will become the mainstay for many.  And so the "news" of the Magistrates Association`s self critical and snivelling statement posted here last week has been widely repeated almost word for word up and down the country.  My point is why has it taken so long for this overdue criticism to reach the public.  A large cadre of defence lawyers must have been the first to be aware of the iniquities involved.  Their representatives within the Law Society would surely have been in the loop to lobby MOJ.  But most of all individual magistrates not worthy of their appointment have been complicit since 2015 in presiding over a court system that they must have been aware was acting contrary to their oath: "  I... swear that I will well and truly serve our Sovereign Lord King Charles the third, in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will."

I have yet to see, hear or read of the contrition of any single or group of magistrates for their actions.  In my time on the bench we had an annual general bench meeting where any subject deemed suitable by the bench chairman and his/her committee could be discussed and voted on.  I understand that such process has been discontinued.  This is unsurprising since the take over by HMCS, the abolition of magistrates courts committees and subsequently the establishment of HMCTS, was to that end; the magistrates courts must be taken under complete government control.  So much for the joke concept of "local" when ascribed to justice. 

It`s apparent that unless magistrates form a new body to actually represent themselves as a professional association the operation of the lower courts system will increasingly be weighted to the needs of a government and less to the application of the law for local communities.  I always thought that magistrates being the only members of a branch of the judiciary not being financially beholden to government could and would use that independence for the public good.  On a personal level I resigned before my designated retirement date because I did not want to implement impending legislation.  I wonder how many sitting as Single Justices have had any doubt about their position?  They are as jugglers trying to keep five concepts airborne when they`ve trained for three.  There is the inevitability of public failure which should be accompanied by humiliation but rarely is.

 I do not expect this site will be flooded with comments.  

SINGLE JUSTICE PROCEDURE//FAILURE OF THE MOJ AND MAGISTRATES ASSOCIATION

My post today is on a subject upon which I first commented 15th June 2016 and on which my last comment before today was 24th January 2023.  The subject is the Single Justice Procedure. The above comments and others can be viewed by writing Single Justice Procedure in search box.  The background will assist in realising that from the start this supposed "improvement" in dealing with simple summary matters was misconceived from the outset. 

This is a topic which to be fully understood requires perhaps more reading time than a blog post usually demands. Some of the posts revealed by "search" offer viewpoints from a variety of sources.  The Single Justice Procedure (SJP) was introduced by the Criminal Justice and Courts Act 2015 in England and Wales. The procedure was designed to be an accessible, speedy, effective and more efficient means of delivering justice when dealing with the most minor summary offences.  Until recently, with very few exceptions, there has been almost no criticism of the process.  The body that makes few attempts to truly represent its J.P. members; the Magistrates Association has, by and large, been silent on this issue since its inception.  That truly is unsurprising since many of its "guiding lights" see a gong on the horizon as a fitting tribute to toadying to government.  It has also helped that persistent posts by  Tristan Kirk [@kirkkorner] Courts correspondent for the Evening Standard and Penelope Gibbs [@PenelopeGibbs2] and [@transformjust1] have brought this legal anomaly to a wide audience through X.  Belatedly the M.A. have yesterday 25th March issued an opinion which for the sake of simplicity I have copied in full below but the original release is available for those who choose; here. 

The Single Justice Procedure—which handles around 40,000 criminal cases every month—needs reform if it is to be seen as fair and transparent, according to the Magistrates’ Association, the organisation that represents over 12,000 magistrates in England and Wales.

The Magistrates’ Association (MA) today published its new position on the Single Justice Procedure (SJP). This reflects hundreds of its members’ insights into hearing SJP cases over the last eight years since it was introduced and responds to recent interest from the media on the SJP’s impact on defendants, especially vulnerable and elderly people. It also includes 12 recommendations to improve the operation, transparency and fairness of the SJP.

The MA found that many of its members are uncomfortable with the SJP process as it currently works, and a significant proportion feel they do not always get as much time as they need to properly consider each case.

Although training on the SJP for magistrates is available, MA members feel that it is largely focused on how to use the system and does not emphasise that the SJP is a judicial process in which magistrates can exercise their discretion, as they do with cases heard in court.

Mark Beattie JP, National Chair of the Magistrates’ Association, said:

“We believe that the principle of the Single Justice Procedure is good. Every year it spares thousands of defendants the ordeal of having to attend court for minor offences, and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences.

“However, it is not a perfect system. While the vast majority of cases are handled effectively by the SJP, our members—magistrates who decide on SJP cases—have told us about flaws in the way it operates and the harm that this can have on some of society’s most vulnerable people. It is clear to us that reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure.

“This is why we have made a total of 12 recommendations today, to change the Single Justice Procedure and make it fairer, more consistent and more open.”

The Magistrates’ Association’s recommendations include:

Making it a requirement that prosecutors (the agency that is prosecuting someone, for example, TV Licensing or the DVLA) see all pleas and mitigations from defendants before the cases are heard by the magistrate.

Reviewing and improving the training that magistrates receive before they can sit on SJP cases. Training must emphasise the ability of magistrates to use their discretion fully and without reservation, including the ability to refer cases back to the prosecuting authority.

Safeguarding the SJP process so that neither magistrates nor their legal advisors feel any pressure to process cases more quickly than they want to.

The government should make provision for SJP sittings to be observable by accredited journalists.

Boosting transparency by publishing more data on the SJP, such as how many defendants plead guilty, how many make no pleas, and how many ask to come to court, nationally and broken down by region.

Undertaking research on how improvements can be made to the process for the vulnerable, including those with learning difficulties, communication challenges, or who may be less able to engage with the process.

Improving communication, through a review of the paperwork sent to defendants, to make it simpler and easier to understand.

My general comments are that whilst the above points have merit they are too little too late.  Over 3 million cases up to 2020  have gone through the procedure; one of the search revealed posts (6th July 2021) has exact numbers 2015-2020.  Between 1st April 2019 and 30th September 2023, 3,102,392 criminal cases were received into the Single Justice Service, which includes 609,164 receipts through the reformed digital service. Note the name change; a symptom of the MOJ in its various departments when it wishes to demonstrate "improvement".  The Magistrates Association claims that its members have spoken of flaws and where they have been disturbed by outcomes.  Yet for years it has been noticeably reticent about making waves where it should have: Petty France.   From the above the M.A. has perhaps unwittingly revealed its desire not to upset its governors.  Consider, "and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences."  It should not be for magistrates to be considering "use of court time" or "speedier justice".  The delivery of  Justice alone is what they are appointed for.  Managerial concepts are for others since magisterial courts committees were abolished by the MOJ over 20 years ago.  The M.A. refers to "training" which it implies could be improved.  Part of its remit as a charity is to provide training for magistrates. "reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure."

It should be questioned as to why, by this observation, its members [and nowhere near all J.P.s are members] are lacking in the ability or knowledge to function to a higher required standard.  A lack of accountability has been built into the system since its inception.  Those law makers and the M.A. should be answerable for the diliteriness in approving the legislation in the first place.  It was apparent from the start that the SJP was an affront to open justice.  The House of Common debate in which this whole fast forwarding of justice was discussed on 25th March 2014 is available here.  

The Magistrates Association is a registered charity governed by the rules of the Charity Commission for England and Wales on the website of which is written, 

"ROYAL CHARTER OF 12 NOVEMBER 1962 AS AMENDED 1 JANUARY 1971, 9 DECEMBER 1980, FEBRUARY 1995 AND 9 FEBRUARY 2005.

Charitable objects

THE OBJECTS FOR WHICH THE ASSOCIATION IS ESTABLISHED AND INCORPORATED ARE TO PROMOTE THE SOUND ADMINISTRATION OF THE LAW BY THE FOLLOWING MEANS: (A) EDUCATING AND INSTRUCTING MAGISTRATES AND OTHERS IN THE LAW, THE ADMINISTRATION OF JUSTICE, THE TREATMENT OF OFFENDERS AND THE BEST METHODS OF PREVENTING CRIME; AND (B) ISSUING PUBLICATIONS AND PROMOTING CONFERENCES AND DISCUSSIONS ON DEVELOPMENTS IN THE LAW AND THE ADMINISTRATION OF JUSTICE."  {my bold}

It would appear in my humble opinion that the M.A. has failed to live up to its own charitable objects.  

Readers will by now, I hope, have enough information from which they can make their own informed opinions. 

IS THE END NIGH FOR BRITISH JUSTICE?

Many will be no longer fascinated by the recent attempts by China, Japan, India, USA to land unmanned space vehicles on the moon. Perhaps those who were agog at watching live on TV the first time that human beings walked on the moon in July 1969 are now just passive observers to the many sociological and political changes that afflict the planet  and have changed the face of this country as much as any war might have done in decades past.  

With a general election expected before Christmas pollsters will be bombarding the media with the results and opinions of their paymasters on what is likely to influence the electorate in our individual voting decisions.  No doubt previous successes from before the age of Tik Tok  will be rehatched to reach a generation that was in short trousers when Labour ended its 13 year reign in the House of Commons.  “It's the economy stupid” was a phrase coined by James Carville in 1992 when he was advising Bill Clinton in his successful run for the White House.  Like the rotten boroughs of times past, by all accounts an extra £1,000 per annum in the pocket of Mr, Mrs or Ms average earner`s bank account will be enough to buy a vote.  The esoteric notions of foreign policy or mass hysteria over a foreign war are unlikely to be considered worthy of mention in any through the letterbox leaflets.  Unfortunately the deliberate break up of our once admired justice system will be similarly classified; not worthy of debate but arguably in its many forms just as likely to affect our lives as a penny on or off any taxable item.  

We all depend on the police.  Their popularity with the public seems to rise and fall like a child on a trampoline.  On one hand events of the years since the brutal murder of Sarah Everard have exposed that there aren`t just some misbegotten rotten apples but rotten barrels full of misbegotten rotten apples.  But on that other hand it is the police who stand between peace on the streets and anarchy.  When PC Paul Fisher was acquitted of dangerous driving in November last year four years after  he crashed on his way to the scene where Sudesh Amman had stabbed two people  there were some murmurings that he had "got off".  That he was on trial at all for attempting to save innocent lives seemed incongruous to many within and without the policing and legal professions.  His case seems to sum up the push me pull me of Dr Doolittle fame in our attitudes to policing.  

Whilst I was active the persistent shoplifters had a pseudo legal adornment to their propensity to steal; "prolific", the essence of which was that even when an individual case was of low value an offender with a history of dozens or perhaps hundreds of previous convictions was to be treated for the entirety of his convictions thus ensuring that the maximum sentence of six months immediate custody was available as a true reflection of his/her law breaking.  That was the theory but the practice was very different last year.  Recorded offences rose 25% but charges fell.  In the year ending 30/6/23 police recorded 365,164 shoplifting offences but only around 12% of suspects were charged.  In the year before Covid almost 19% of suspects were charged. This decline is just a symptom of failures for more serious matters.  If the government proceeds with its stated intention to remove custodial sentences from the arsenal of disposals at magistrates courts one can expect an exponential rise in theft from shops and an increasing number of stores having security guards  inside and outside their premises as in most large retail premises in America. 

 Knife possession and knife crime have both increased and despite the wooly words of Justice Secretaries since 2010 the proportion of knife offences resulting in a suspended sentence has increased by almost 100% to the end of September 2023 resulting in almost a quarter of such offenders avoiding prison.  Further statistics show that even for repeat knife offenders in the same period 40% were not sentenced to immediate custody despite legislation that instructed judges to do just that.  

Between 2017 and 2021 more than 35,000 of the 142,275 motorists who totted up 12 points avoided being banned due to claiming 'exceptional hardship'. From my own personal knowledge and experience [posted here many times and available using the search box]  magistrates are too quick to offer relief to drivers with 12 or more penalty points.  A Google search shows that hundreds of solicitors are advertising their expertise in arguing successfully for "exceptional hardship".  Their lucrative income stream and magistrates misplaced sympathies must surely come under scrutiny by a future Justice Secretary and be formalised.  

And so to our judges who can be castigated for speaking out of turn but can be incompetent in their sentencing without retribution unless the case is particularly a high profile one attracting photogenic witnesses, available finance or public relations experts and sometimes all three.  In the last 20 years prolific offenders represented nearly half of all convictions; 243,000 people aged over 21 with at least 16 convictions or cautions. In 2022 hyper prolific offenders with 45 or more convictions or cautions offended almost 10,000 times and were subject to non custodial sentences 53% of occasions.  

Hundreds of judicial decisions in sentencing miscreants, which have been made according to the Sentencing Guidelines, have been tossed aside.  Known only to individual judges offenders who should be in jail are walking the streets because the MOJ has instructed the judiciary to use non custodial outcomes because the prison population is at breaking point.  Recent police and judicial decisions regarding the treatment of those who openly spout religious hate in their marches for so called Palestinian freedom from "the river to the sea" are bringing this government to a point of no return in the interface between anarchy and democracy.  Simple but deep philosophical questions on the freedom of judges` sentencing options, jurors` rights to bring in "perverse" verdicts, police interpretations of the law in conflict with parliament`s interpretation of said law, prison governors` and parole boards` decisions in overriding original sentencing decisions and many other policies and decisions below the public horizon are about to be tested. MOJ spending figures show a planned 4.8% cut in operational spending on justice to £10bn in 2024/25 from £10.5bn in 2023/24.  Russian oligarchs, their estranged wives, Arab property developers, disgruntled media stars and others similar might consider London the best place to spend their favoured currency on their favourite high priced KCs but for Josephine Bloggs alighting from the Clapham all electric omnibus needing help on a dark winter night as she walks home the legal future is bleak.  Is the end nigh for British justice? Can somebody help?

MACRO MICRO AND THE LEGAL ROOST

The word macro describes something that is very large or something that is related to things that are large in size or scope. Macro is also used as a combining form meaning “large” or “great.” The word micro describes something that is very small or something related to things that are small in size or scope.  Both terms are often used in academic studies.  As with many commenters on myriad topics this blogger has, consciously or unconsciously, pontificated from both aspects at any one time.  The more distant the time when being active in the middle chair was laterally almost a weekly occurrence the more perhaps a macro or overview of magistrates courts and their inner workings appeared here. Sometimes reports of actual courts` proceedings or activities can and should bring a sudden state of the here and now into any esoteric commentary.  Three such matters have today caught my attention persuading me to turn from the macro to a micro view of the workings of magistrates courts every day at every court. 

Perhaps the most complicated cases I can recall were those brought by a local authority against those who had ignored or in some other ways had failed to comply with enforcement notices often under under section 179(2) of the Town and Country Planning Act 1990.  I distinctly remember an offender represented by a then QC telling me as the presiding magistrate that the bench would not be capable of understanding his client`s complex arguments and that we should adjourn to a date for the matter to be heard by a District judge(MC).  We gave him a polite response noting his objection and invited the prosecutor to proceed.  In another similar situation the prosecuting solicitor for the local authority presented a bundle he was relying upon and, as he thought helpfully, argued that we need read only some specified two dozen of more than 200 pages. We retired to read the whole bundle.  A further case where the claim was for £22,000 had the offender who had pleaded poverty in his personally delivered mitigation writing a cheque for the full amount on his guilt being established.  There were many offenders who had to be threatened with contempt for refusing or delaying the court`s requirement for audited accounts to be presented by a future court date.  And so it was with interest that I noticed this report by Camden Council in London where justice was certainly seen to be done. 

Fly tipping has, over the decades, slowly crept up the ladder of environmental offending.  Whereas it had been in the post war years an "annoying" offence it`s now on a par with some offences causing bodily harm.  The seriousness of such offending can be gauged by the Sentencing Guidelines.  Once again on a personal level if memory serves correctly my bench fined a sole trader of a fly tipper around £20,000 for what the offender considered just "a few bits and pieces" he`d dumped at the side of a quiet street. It was interesting to note that a fly tipping offender was subject to a six weeks custody order but owing to current politics it was suspended.  With government having given notice that magistrates courts will soon be unable to impose any custodial terms immediate or suspended there is going to be a huge ill considered gap in the justice system.  I suppose when a government in power for 14 years does not provide enough prisons or prison cells to house offenders in a humane manner nor provides sufficient trained staff both in the prison service and probation to oversee sentencing and sentences there is little surprise of chickens coming home to roost.

I cannot recollect having a police officer in the dock throughout my time on the bench although there were not a few who committed perjury from the witness box with a straight face.  On consideration I assume that in today`s world things would be different for colleagues.  The current climate certainly gives one hope that, without prejudice, erring officers are more likely than in past years to face justice for offending. Last week Swansea Magistrates Court saw a serving police officer appear on a charge of sexual assault by penetration.  What is interesting is the statement of Nathan Adams, criminal lawyer at Reeds Solicitors in Cardiff.  It can be found along with a statement by Senior Investigating officer Detective Superintendent Huw Davies here. 

Criminal offending affects real people on both sides of the legal divide. Sometimes the judgements, emotional, theoretical, intellectual and judicial are based, notwithstanding the tome that is the Sentencing Guidelines, at a macro level.  There can be no confidence in a judicial system where consideration at the micro level is overlooked and unfortunately that is what has happened over the last few years and is, in my humble opinion, likely to continue whatever party is ruling that legal roost this time next year.  

JUSTICE IN THE SHADOWS

At the turn of the century if one turned on the TV to watch a police or crime thriller it was almost certainly a work of fiction.  Over the next few years TV executives and writers began exploring the possibilities of a sub genre; mockumentaries and "reality" programming centred around routine police work and true life investigations.  Fast forward to present day and all manner of true crime is reflected on our screens from static traffic cams, motorway patrols to historical investigations of gruesome murders from initial crimes to eventual outcome for offenders.  Perhaps that format has outlived its popularity for some but with an ever expanding supply of visual media to be available for an insatiable viewing public demand must be satisfied.

This blog has long advocated and predicted that live court TV will eventually be sanctioned in this country and probably from magistrates courts locally funded with national control on advertising policy. That is the future but the live televising of a court was initiated  in September 2015   when STV became the first broadcaster to televise a Scottish court case live and in full. Four cameras were used in court one of the Court of Session in Edinburgh to cover a two-day Election Court case involving Alistair Carmichael. Four constituents were seeking to have Carmichael deselected as an MP after he leaked a memo in April to The Daily Telegraph which suggested that Scottish First Minister Nicola Sturgeon had told the French Ambassador she would prefer David Cameron to remain prime minister. 

On July 28th 2022 for the very first time a Crown Court judge`s sentencing remarks were televised live.  Her Honour Judge Sarah Munro QC in sentencing 25 year old Ben Oliver for the manslaughter of his grandfather said, "Time spent in remand would be deducted, resulting in a term of nine years and 63 days.  Once you have served that term, you will be entitled to apply for parole. However, you will not be released by the Parole Board unless they conclude you no longer pose a risk to the public. If you are released, you will remain on licence for the rest of your life."  And the pattern was set.  Since then broadcasters have filmed the sentencing of 33 offenders including Thomas Cashman and Wayne Couzens.  

February 26th was arguably the date on which another legal taboo was breached.  It was the broadcasting by ITV of the first of two hour long episodes concerning the killing of his wife by British Airways pilot Robert Brown.  Some distressing footage was shown including some of  Brown`s police interviews.  He was found not guilty of murder but was sentenced to 24 years custody for his admission of manslaughter. The programme appeared to have been inspired by pressure from the deceased`s mother and friends when they were informed that Brown was due to be released under license having almost served half his sentence.  Pertinent sections were portrayed  by actors from the trial transcript.  Understandably the programmes ended with observations by Brown`s lawyers that he was fairly cleared of murder by the jury according to the evidence and is entitled to fair treatment under the law including eligibility for parole.  The images of the jurors reacting with sorrow or perhaps disbelief at the judge`s remarks presumably based on eye witness accounts when he explained the unusually harsh manslaughter sentence were  certainly designed to show that with some of them there was a realisation that they had reached a perverse verdict.  As is his prerogative the Lord Chancellor blocked his release on license; a very unusual decision.  The matter will now go forward to a hearing of the Parole Board.  It is interesting to note below an extract of  a letter of 1st December 2023

 Letter from the Minister of State for Justice

The Government has also introduced amendments to the proposed reforms of the Parole Board, as well as changes to the creation of the Independent Public Advocate. The Government’s latest proposals reflect the concerns raised by the Chair of the Justice Committee in a letter to the Lord Chancellor on 7 June 2023.

On Parole, the Government’s initial plans would have allowed the Lord Chancellor to “call in” Parole Board decisions to release certain prisoners. The Committee said: “We cannot understand how a Secretary of State sitting in Whitehall can be better placed to make a release decision than the Parole Board which has had the opportunity to hear evidence from the prisoner first-hand.” The Government has now dropped this plan, and instead proposes to introduce a power to allow the Lord Chancellor to refer a certain release decision to the Upper Tribunal or the High Court.

Sentencing for serious criminality is apparently now a major attraction for broadcasters.  When such sentencing seems out of kilter with public perceptions especially in the most awful murder cases and/or bereaved families are particularly articulate or photogenic all pressures to pursue the victims` families` complaints are likely to be met with some sympathy by TV media with half an eye on their ability to attract audiences in this country and abroad.  I would opine that the outcome of the heinous murder of three people last year in Nottingham, when the judge accepting expert evidence that the accused Valdo Calocane would  be detained in a high-security hospital following his sentencing at Nottingham Crown Court, will be high on a list of suitable cases to be considered for in depth TV analysis.  Once again a sentencer`s sentencing remarks have provoked profound dismay within and without the legal fraternity insofar as he remarked that Calocane is likely never to be released, so that he can receive treatment for paranoid schizophrenia – a mental illness that can be “mitigated” with treatment but not cured. Judge Mr Justice Turner added he was satisfied Calocane would not have committed his “appalling” crimes had he not been suffering from the illness."

It is unlikely that the aforesaid decisions by judges have gone unnoticed by the policy wonks at the MOJ however with an impending general election affecting almost everything coming from government sources it will almost certainly be the next government which faces the reality that justice cannot be kept in the shadows from a wider audience for much longer.  The only caveat I can envisage is that by hurriedly exploiting a much tougher law `n order policy Tories would hope that their traditional voters will be less likely to abstain. 

SWEEPING JUSTICE UNDER THE TORY CARPET

 

There are many reasons why some populations can be considered "patriotic" or unified and others less so. Climate change, external threats, political gerrymandering, immigration and in current terms unseen infiltration by aggressive AI from known or unknown sources.  Governments are elected to predict, control and counter where and when possible threats from the above sources and others.  Common to most political regimes are justice systems which vary in quality from totalitarian (virtually non existent and which Russia is a prime example) to "progressive" where excessive zeal has created a virtual free for all which is the basis of the democratic system`s near breakdown in Israel with consequences for all its citizens.  

In between is U.K. where pride in a justice system has been broadcast loud and proud for a century or more.  Not any more: this century has seen belief within and without the legal and associated professions diminish when the ability of many to access the justice system has been deliberately constrained by the imposition of costs for not just those of low income but also for many middle income earners in both criminal and civil courts.  There is however another factor at one time reluctantly accepted as a necessity of government which pervades the justice system; secrecy.  Appointments to the higher ranks of the bar and to the judiciary at all levels were carried out by whispers in cloisters or smoke filled rooms.  Some of the more atrocious activities have had light shone upon them but many remain.  By their very nature they resist exposure but events sometimes cast a fleeting glow on what governments are trying to avoid.

One such event was the verdict and sentencing of three terrorist supporters at a recent march supposedly in sympathy with Gazans and their terrorist overlords Hamas.  Earlier this month a senior district judge (MC) with sentencing options of six months custody allowed the offenders to walk out of court with a conditional discharge, the lowest but one non financial  sentence available to him.  However reporters digging for details, as is their prerogative, discovered that this judge had shown sympathy in social media with those who had accused Israel of terrorism against Palestinians;  similar sympathies of which the trio had been found guilty.  In addition this judge was no ordinary district judge. Tanweer Ikram in 2017was appointed Deputy Senior District Judge (Chief Magistrate).  To add to that Tanweer was appointed to the Judicial Appointments Commission  as a Judicial Commissioner for a term of three years from 14 December 2023.

Now from the viewpoint of that person on the Clapham omnibus comes the  non activity of  those who are supposed to expose questionable or ill advised judicial actions.  None of the bodies which has powers of oversight has chosen to use those powers to determine whether there was bias in Tanweer`s sentencing of those offenders. The Evening Standard has published a fair account of the situation thus far.  It would appear that having been promoted in December those in an oversight role of the judiciary have decided to close ranks fearing ridicule of their protégée. In other words they hope this case of disgraceful judicial bias  will fade away from the public mind to be replaced by positive headlines for a government desperately trying to convince us that it should be re-elected. 

It seems that a political lesson from times long gone have been forgotten; it`s the cover up wot got `em.  In the modern era from Richard Nixon onwards trying to hide scandal under a bush is a sure way to exposure.  Apart perhaps from the military and all that that word entails our justice system still reacts as if it indeed is a law unto itself from dealings with lowly magistrates to those at the top of the tree.  Secrecy is the bedfellow of demagogues and for those aspiring to such exalted position.  I hope we will soon hear more about this discredited judicial office holder.  The Tory carpet cannot have room for much more to be swept under it.  

MUSLIM JUDGES AND THE DEMOCRATIC PARADOX

With a general election on the horizon there is much media comment on how a divided political party is a turn off for voters. But what has faded into the political background is that His Majesty`s Loyal Opposition; the Labour Party, is itself still divided over an apparent acceptance of antisemitism in its ranks depending on who are labelled as such and those who at heart are still Remainers.  Although the issues are not as stark or as many as in USA this country is exhibiting bitter divisions over weekly marches by groups using Palestinian sympathises  as a cloak for hatred of all Jews not just the 7 million residing in Israel.   

The history of nations where there is unreconciled division is ominous.  The French Revolution of 1789 was followed by a disastrous European war until the defeat of Napoleon in 1815.  Subsequent to the American Revolution in 1776 those who were on the side of Great Britain and remained unreconciled to being subjects of the new United States fled to Canada the first use of which as an official name came in 1791 when the Province of Quebec was divided into the colonies of Upper Canada and Lower Canada. In 1841 the two colonies were united under one name; the Province of Canada.  The American Civil War literally almost divided the new nation until the Union success of 1865. Millions were killed in post 1917 Russia following revolutions and the subsequent civil war.  Post the Great War Ireland had its own civil war between unreconciled political parties and unremitting antagonism between fascists and communists was played out in the Spanish Civil War.

Whilst 2024 is not exhibiting the first symptoms of violent disorder in the UK the history of these islands has demonstrated all the signs that have preceded our current state: civil war in the 1400s AKA the Wars of the Roses, actual civil war  1642-51 and the final defeat of the Jacobites and the threat of a Catholic monarch in 1746.  

The social divide over Brexit in 2016 subsequent to the ouvert division in Scotland from the 2014 referendum, the opposition to the Covid 19 shutdown and the increasing threat from Islamist extremists shouting very loudly over the silence of many of their co-religionists is provoking verbal, literal and political opposition verging on violent threats in some quarters.  The failure, apparent or otherwise, of political and police authorities to contain current examples of an unholy trinity of Palestinian sympathisers, marxists and fascists on the streets of London and other cities weekly since October 7th should be provoking anxiety in 10 Downing Street.  The influence on events of the Secretary of State for Justice is an unknown factor.  However when activities of those who seek to force their opinions on others by tactics of obstruction in some way or other the dirty washing on the clothes line of justice is there for all to see. 

One cannot complete a form for many occasions or applications of one sort or another some voluntarily, some essential without it seems ticking boxes to describe all or some of one`s ethnicity, sexuality, gender, skin description, heritage, education etc etc etc. France, officially a Catholic nation, on the other hand has been deaf, dumb and blind to such intrusions on privacy since 1972. Since 2004 there has been a ban in public schools of wearing religious symbols; hijabs, kippa and crucifixes. There is an estimated Muslim population of 7%-9% mainly from 1950s and 60s immigration from Algeria, Morocco and Tunisia. This Muslim minority, increasing annually, is likely to be a large factor in the next French presidential election. 

In the Uk over the last 30 years we have had our own share of Islamist violence.  We also have our own share of Islamist judges and magistrates in our courts, numbers unknown, sitting in judgement on those whose views they might share when it comes to public disorder.  Indeed despite the authorities knowing almost how many hairs are on the heads of magistrates the number of Muslim magistrates is unknown. According to the Office of Judicial Statistics they do not currently publish these figures in their annual Judicial Diversity report.  The Judicial Office who are the data owners have offered the following statement:- 

Magistrates can provide information on their religious affiliations. However, disclosure of this information is optional and therefore Magistrates may choose not to disclose this information. As a result, the information held on the religious affiliations of Magistrates at this time is not of suitable robustness (i.e. the declaration rate is too low) to be published publicly, as doing so may lead to inaccurate and misleading interpretations being made.

And so to last week when Heba Alhayek, 29; Pauline Ankunda, 26; and Noimutu Olayinka Taiwo, 27; were found guilty of a terror offence in the wake of the incident at a pro-Palestinian march in central London a week after Hamas militants entered Israel.  Deputy Senior District Judge Tan Ikram said he had decided their lesson had been “well learned” and he did not intend to punish them sentencing them to effectively a slap on the wrist; a conditional discharge.  This blogger and many legal bigwigs have indicated their outrage and demanded appropriate intervention to make the punishment fit the crime. My point today, belatedly perhaps, is how many sentences on similar offending are being conditioned by magistrates whose public profiles are by far and away below the horizon of public and media scrutiny?  When the scrutiny of Advisory Committees who select magistrates is deep enough to view the proverbial angel on the proverbial pinhead why is religious or non religious affiliation not a compulsory feature for every aspiring Justice of the Peace?  My own opinion is that it`s a case of the three monkeys; the MOJ doesn`t want to hear, see or speak the answers or the numbers for the simple reason they would, perhaps by pressure, have to publish those very numbers and they`re fearful of what these numbers would reveal especially in areas where Muslims constitute a quarter or more of the population. 

Our nation has a history of peaceful protest protected by law.  The political convolutions over the last decade have proved that existing law is strained to breaking point. Almost daily institutions and private and company premises are being invaded with criminal damage caused, lives are being seriously disrupted by obstructive tactics, weekly demonstrations have led to under policed and under contained public disorder and Jewish citizens have undergone record numbers of occasions of direct antisemitism including children at school.  

There comes a time when a democracy must consider apparent undemocratic actions to preserve that very democracy. Such an occasion is described as the Democratic Paradox. Recognising the situation unchanged an early question for the next government is firstly to admit its reality and secondly when or if to apply a remedy and finally to justify and select an appropriate redress.  Failure will be a catastrophe. 

 

IS THIS REALITY?

 It`s now two weeks since I underwent major surgery.  Having had anaesthesia problems as a young man when I underwent elective surgery I was very careful and fortunate enough to be able to select not only my surgeon but also the consultant anaesthetist who worked alongside him.  Whilst the operation was successful I later learned that owing to unforeseen complications chemical anaesthesia was not possible even partially and I underwent full blown gaseous  anaesthesia.  Common sedative agents used during rapid sequence intubation include etomidate, ketamine, and propofol. Commonly used neuromuscular blocking agents are succinylcholine and rocuronium. Certain induction agents and paralytic drugs may be more beneficial than others in certain clinical situations. CW my anaesthetist was long gone when I awoke a surprisingly long time after schedule according to my surgeon. But what I do remember and committed to my diary of these events were my first words to the recovery nurse, " Is this reality?".  Indeed I repeated the same question three times.  I felt like Rip Van Winkle on magic mushrooms.  It was a further day or so into my recovery programme that it dawned on me that when I compare my first experiences of being inside our justice system in 1998 with the current situation I could also remark; "is this reality"?

Of these 26 years 14 were were overseen by Tory governments.  The coalition years will fade into the ether as rightly they should.  That first Conservative Secretary of State for Justice Kenneth Clarke proudly announcing his support for austerity commented that he was the first around the Cabinet table to implement budget cuts; in his manor 23.8%.  Oh how they drooled. Others soon followed with police numbers being reduced by 20,000, prison officer numbers being cut, the probation service being decimated and secret magistrates courts taking on a million + cases annually under the cloaking device AKA as Single Justice Procedure.  Notwithstanding that all this was in the public domain being excused by government rhetoric daily that would have had Cicero cutting his own throat years before  "together with his son, his brother, and his brother's son and all his household, his faction, and his friends" (Appian, Civil Wars, IV.19.1). Cicero was killed on December 7, 43 BC, aged sixty-three, his head and hands (having penned the Philippics) hacked off."  For even the most miserable, incompetent, arrogant Justice Secretary this nation has ever endured Chris (failing) Grayling [2016-19] who took the probation service into penury and disarray  resignation was not even a footnote in his diary.  Throughout 14 years of incompetence half the courts of England and Wales were closed and even with that process which continues the cry of "local justice" and "diversity" scream from the depths of Petty France where woke reigns supreme.  His Majesty`s Courts and Tribunal Service now has the publishing rights for several areas where local court reporting has become part of local history.  So we cannot be certain that what`s being published in local media reflects the reality of court happenings in local areas.  In the last two years magistrates courts` sentencing powers have been increased to 12 months custody from the previous 6 months and reduced again to 6 months.  Notwithstanding those decisions there is current parliamentary process in action to remove custody as an option altogether.  But here`s the rub; owing to the inaction or inability of the Metropolitan Police to curb disorder occurring in so many  so called "marches for Palestine"  in future protesters who climb on to war memorials could face up to three months in jail under new laws put forward by the government. Security minister Tom Tugendhat told MPs people who scaled national monuments could also be fined £1,000.  Apparently the irresistible force of no more jail available to the lower court will meet the immoveable object of a 3 month jail sentence for those guilty of breaching the new proposed legislation.  That means that those cases will be added to the lists of crown courts where some matters are estimated to be heard not sooner than two years from now. 

The unbelievable incompetence of those aforementioned inhabitants of Petty France added to the equally do lally knuckle dragging grunters of the Home Office has resulted in our prisons being unable to accommodate all those who should lawfully, morally and societally be there.  The scandal and it`s nothing less than a scandal, of "suspended sentences " will continue and indeed accelerate.  If there is one factor above the reducing numbers of lawyers undertaking uneconomic legal aid work in and out of the courtroom to the detriment of low income defendants it`s the release of prisoners when they have completed only a half of their supposed well rehearsed and logically deduced sentences whether or not they deserve such beneficial treatment. The list of failings and incompetence goes on but this is a blog post, not a treatise or novella. 

Perhaps my Rip Van Winkle could have met the Sleeping Princess and seen the world through her eyes without a frog in sight.  Perhaps we can elect some politicians who are of A Level quality in place of the GCSE failures who are leading us into penury and misery down almost every political avenue we have to navigate for the next decade.  Perhaps we can be under a general anaesthetic until then and upon awakening wonder in awe; "is this reality"?

NO LONGER SEEN OR HEARD

During my first few years on the bench as a winger it became apparent to me that the chairman, or to use current nomenclature, the presiding  justice fitted clearly into two classes; those competent in dealing with the duty to run the court in both an orderly and lawfully correct fashion  and those who could not.  There was no middle way.  I also noticed that those who failed to meet my expectations failed on both hurdles.  Although from the beginning lay magistrates were and are schooled in the mantra that legal advisors advise on the law it was obvious to this newbie that colleagues who had knowledge skilled themselves in such basic offences considered at magistrates courts e.g. the law on bladed articles  or the criteria of exceptional hardship also seemed to have an inert ability to deal with the efficient direction of the court with regard to ensuring that in the widest possible sense justice was not only done it was seen to be done.  When I became qualified to sit in the middle chair I continued to have on the bench my personal folder of topics carefully annotated to provide instant reference when needed in order that I might stay one step ahead of our legal advisor if possible.  This practice was apparently strictly forbidden but nobody ever told me to my face.  What it did was to allow me to manage the court as efficiently as possible without having to refer to the legal advisor unless I considered it necessary. I would imagine that currently I would be chastised by over zealous and arse licking colleagues seeking brownie points from the Deputy Justices Clerk.  

Having made my position clear as above I read with disdain of the sheer incompetence of a magistrate.  There is a well written but second hand report here of the failure of an unknown magistrate probably based in Wiltshire  to comply with the law relating to a S.45 notice on reporting restrictions the full guidance on which is available here.  Although the magistrate`s name in question would have been published outside the courtroom like so much else in the courts system s/he remains an unknown figure.  

Considering the personnel changes within the magistracy since 2010 it`s not unlikely that many more JPs than expected, with limited experience, have been catapulted into the senior position with fewer capabilities than previously when DJCs could to some extent pick and choose who to promote. The current tick box process as in so many other factors of our society is not the best way to choose a candidate.  

One aspect of this whole episode has come to light and it`s not a pleasant thought as far as this blogger is concerned.  The website reported above Wiltshire 999S  does not feature the report.  It also seems to have been deleted from X [Twitter].  If this is self censorship by a well known news reporter or his bosses it is worrying.  If they have been pressurised by powers that be it is a matter of great concern to those of us who consider that our courts are being subjected to ever increasing government control.  Those who follow current legal events especially the situation re postmasters` scandal will no doubt have their own opinions. 

Finally I have to report that owing to my imminent need for elective surgery this blog will be silent for the next couple of weeks or so. 

SEX ON THE BENCH

 

    

During my time on the bench I had a position on our Rota Committee.  In those days the committee had an overview of each court`s composition produced by an early computerised data base overseen by an experienced court officer and finalised by the bench Rota Committee.  That method followed the guidelines at the time and the oversight my colleagues and I performed ensured that anomalies of any sort were avoided. 

The topic appeared  on the now long defunct forum of the Magistrates` Association insofar as it pertained to the question of whether or not there was guidance on the issue of same sex benches in the adult court or perhaps as one wag put it, “same gender benches”: a comment that perhaps would now produce the wrath of God or the J.C.I.O. upon the "offender". My bench was split about 50/50 on sex………..I will resist a temptation to go slightly off topic…………so mathematically a random approach to the rota which we employed would usually produce MFM or FMF. MMM or FFF was generally the exception. In addition in a highly mixed ethnically diverse area reflected in a correspondingly higher ethnic mix on the bench as a whole race and religion produced more diverse benches than sex alone. As far as I was aware any composition of J.P.s on a bench would effect justice on any matter before it. There was no guidance. The good sense of all ensured it was not required.

PUBLIC DISSENTING OPINION OK FOR SUPREME COURT BUT NOT FOR MAGISTRATES

It would be presumptuous to say that everyone has now at least a passing acquaintance with the Post Office scandal but for those involved in criminal law there are probably subtle signals that what was known by professionals is gradually becoming if not public knowledge then certainly a situation which has been to a lesser extent part of the civil justice system for many years.  

In the magistrates courts where reputations might be at stake miscarriages of justice are unlikely to make headlines.  For the uninitiated a bench is usually composed of three magistrates although currently only two person benches seem to be more frequent in recent years.  To bring a guilty verdict  (on a full bench) a majority must find the prosecution case proved beyond a reasonable doubt but when that is announced in open court there is no acknowledgement that one magistrate might have come to a different conclusion.  Surely then it is logical to consider that the bench as a whole unit had that reasonable doubt.  A single District Judge (MC) has only his or her own conscience  to which to answer.  

My own practice after pronouncing a finding of guilt was to advise the offender of the process of appeal.  When the verdict was split perhaps I put more emphasis on the detailed manner to go about that appeal.  I was unable when I was active and am of the same opinion now as to why a split verdict, at least of guilt, cannot be made publicly.  When crown court judges were allowed to accept majority verdicts of 10:2 in 1967 there was general agreement in parliament and legal circles that it was of benefit to the concept of justice not only being done but being seen to be done.  It seems illogical that the lower court does not follow the example of the higher court. Even the Supreme Court allows for a dissenting opinion.  An interesting essay on this topic can be accessed here.  

Current numbers suggest that there were around 5,000 appeals from magistrates courts to the crown court where a judge sits with two magistrates for a re- hearing.  The percentage rates of success on appeal were 30% for conviction appeals and nearly 68% for sentence appeals. It seems that the MOJ no longer supplies detailed statistics on such appeals.  All this is rather confusing.  The latest verified statistics I can find are below:-

Whatever the actual numbers are the principle of dissent should be applied to magistrates courts.  There is no justifiable reason to oppose that except for the law for the ordinary citizen to be an increasingly tick box exercise which is a lot cheaper for government than the facade that justice is available for all.