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. 

2024 MORE OF THE SAME OR WORSE TO COME?

In this, my first post of a new year, it would be gratifying to have been able to look back on 2023 with the faint hope that  improvements or increased efficiency within the justice system particularly re magistrates courts were just an early sign of better things to expect in 2024.  Alas great expectations remain just that. 

14years ago I mused that magistrates and their powers in their then current form would be on the road to extinction.  That they`re still here, is for some, a disappointment especially amongst the fraternity of criminal lawyers; an ever diminishing band of legal brothers.  Considering the havoc brought about by the musical chairs being played about at Petty France and especially the incompetence of that address`s most abject failure "Failing Grayling"  it might occur to many that we`re fortunate that the magistrates courts system is still functioning at all with half the number of courts cf 2010 and one third the number of magistrates owing to various bad planning decisions or indecisions since then. An example from 2016 on the thinking behind court closures can be read in this paper; Response to the proposal on the provision of court etc

The June 2019 report House of Commons Justice Committee "The role of the magistracy: follow-up"  did not exactly endorse the previous nine years of a cataclysmic mismanagement by the MOJ. 

 Judging by retirements and recruitment figures it seems reasonable to deduce that around one third of magistrates have less than five years experience and that the personal, academic and employment profiles of magistrates have changed considerably since my appointment.  The result is that few benches have many members who were sitting when their courts were semi independent of government and a certain free thinking was the order of the day.  So called post code sentencing lottery by local magistrates has been abandoned for the algorithmic  Sentencing Guidelines which appear to be but a stepping stone to "the computer says "X"  when sentence is determined.  

The last year has seen sentencing maximum of six months increased to 12 months and reduced again to six months.  The next few months will herald another fundamental change when magistrates courts will no longer have the option of any custodial sentence for offenders who appear before them.  I would imagine that District Judges(MC) who increasingly take a greater proportion of what are termed "high profile" cases will have their noses out of joint.  Prison overcrowding and severe court backlogs have meant that the judicial tail is wagging the judicial dog.  In Scotland by comparison with its long established independent justice system Justices of the Peace powers of punishment are limited to 60 days' imprisonment or a fine of up to £2,500 or both.  With such changes in England and Wales unimaginable even a year ago who`s to say that somewhere in the bowels of Petty France locked in a secure cabinet there is not a Green Paper with government thinking on reducing further the punishment levels open to magistrates and reintroducing custodial sentences in the future with the proviso that only salaried District Judges will in future be able to impose them.  

My opinion as written above has not changed; only the time frame has changed.