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