UNKNOWN UNKNOWNS

 

"Government of the people, by the people, for the people, shall not perish from the earth".  Readers, I`m sure, will recognise that phrase from what is considered one of the most famous speeches in recorded history.  Its relevance to us almost exactly 162 years later is manifold.  There are probably millions of words written and spoken by thousands of learned people about the significance of those words but they were triggered in my mind by the recent announcement that government ministers can hide their criminal records from the public they ostensibly are sent to serve.   

As a background some facts of what in general is termed "disclosure". 

1. Most jobs cannot legally ask for spent convictions.


Under the Rehabilitation of Offenders Act 1974 (ROA) once a conviction is “spent”, the individual normally does not have to disclose it.


2. Some professions are exempt from the ROA (“Exempted Professions”). These can require all convictions, including spent ones often via an Enhanced DBS check.

3. Certain roles are separately regulated and have statutory fitness-to-practise rules requiring disclosure of all past criminality.

Some professions are legally allowed or required to demand disclosure of criminal convictions. Among those are:-

Solicitors, Barristers, Legal Executives

Medicine & Healthcare Professions (Doctors, Nurses, Pharmacists

Police / Law Enforcement

Teachers / School Staff / Education Professionals

Judges, Magistrates, Court Officers

Regulated Financial Roles

Members of Parliament

Professions Working With Vulnerable Adults or Children

Military

Taxi & Private Hire Drivers

Accountants (Chartered, Certified)

There are certain exception clauses and amendments. However that government ministers can be in office with an undisclosed criminal conviction is a travesty of what is supposed to be an open democracy.  On November 12th the Information Commissioner`s Office rejected an appeal by The Times to force the Cabinet office to disclose how many ministers had declared a prior criminal conviction before taking office.  

On top of Keir Starmer`s gifts of spectacles and suits from sundry sources in its short period in power it`s becoming increasingly obvious that this government is pushing the boundaries of acceptable behaviour to equal or exceed the breaches of the 14 years of Tory mismanagement and sleaze. It seems almost daily that from the woodwork of Downing Street and the Victorian edifices of Whitehall democracy devouring weevils are hard at work filling their already bloated bellies with as much as they can before their inevitable demise as the tidal deluge of night extinguishes their brief follies in the sun of power.  

Scandals involving Government, police, NHS, military  and others  seem to be in the public eye with ever increasing frequency.  The corollary, however, is the extent of cover ups in many aspects of our "open democracy" of which we know little.  I posted last week on the secret lives of judges. Perhaps the literary legacy of another American politician less well known to the British public, Donald Rumsfeld in 2002,  is worth repeating here, "Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know."

CONFIDENCE IN DEMOCRACY DEPENDS ON CONFIDENCE IN THE LEGAL SYSTEM

With widespread social media available to all with topics and sources  designed to lure individuals from tots and teenagers to astronomers to zoologists there is little that can be kept secret from prying eyes especially if these eyes know where to look. If an optometrist does not perform his/her duties to a required standard there is the General Optical Council to convene a disciplinary committee to investigate. The General Medical Council`s disciplinary committees have been busy of late and the dental profession has similar oversight. Indeed where the public is putting its faith in a licensed profession there are public processes available to those aggrieved with the performance of those licensed. But in that part of the UK`s often and perhaps optimistically termed "unwritten constitution" which is as Churchill described USSR in 1939 "a riddle, wrapped in a mystery, inside an enigma" no public accountability when judges fail in their professional competence. 

Whilst the Judicial Conduct Investigations Office (JCIO) investigates complaints of misconduct by judges it has no part in sanctioning judges for any apparent failing in their application of the law.  Judicial capability issues are managed entirely within the judiciary under the final authority of The Lord Chief Justice (LCJ). A capability concern is usually identified by: 

A senior judge reviewing court performance

Repeated issues flagged by other judges

Feedback from court staff, legal professionals, or persistent patterns in appeals

Serious problems noted during case audits

Appeal rates themselves do not automatically trigger anything but patterns can lead to internal monitoring.

If a leadership judge (e.g., a Resident Judge, Designated Family Judge or Presiding Judge) believes a judge is struggling they may initiate:

Private meeting with the judge

Advice or mentoring

Adjusting case allocation (e.g., fewer high-complexity cases)

Support from a senior colleague

If considered appropriate LCJ  can order observation in court by senior judiciary

Mandatory retraining

Performance improvement plans

Regular monitoring

Temporary removal from sitting

If a judge cannot meet judicial standards even after support, the LCJ and Lord Chancellor jointly have the power to suspend  or remove the judge from office (in extreme cases).

But all of the above is hidden from us; the great British public. Some cases do become newsworthy; the following recent examples where incompetence or unacceptable performance are in the public domain are a world away from misconduct cases investigated by the JCIO; eg the judge who fell asleep on the bench. Perhaps the most newsworthy example of late became public knowledge only because it was revealed during the inquiry into the Post Office Scandal.  Former senior prosecutor Sir David Calvert-Smith publicly criticised a number of judges for not scrutinising the prosecution’s case deeply enough in the Horizon IT scandal leading to wrongful convictions. He argued that some judges failed to challenge prosecution evidence or push for disclosure in the trials.  Sometimes information of judicial failings is revealed only as a secondary factor in a public inquiry an example being  the inquiry into the Lucy Letby case (the deaths and collapses of babies at Chester hospital) Dr Michael Hall, a neonatologist and medical expert, strongly criticised the opening remarks made by Lady Justice Thirlwall.  Hall asserted that Thirlwall’s comments mischaracterised those who questioned the convictions and said that some of his expert medical evidence (and possibly that of other defence experts) was not sufficiently presented in the original trial. Thirlwall defended her position but the fact that such critique came out in an official inquiry means the judicial role was publicly challenged.

A Commons inquiry report in 2022 suggested that judicial independence may be under political pressure. The report found that certain ministers had conflated “decisions with political consequences” with “political decisions,” giving a misleading impression that judges were acting outside their constitutional role. 

Under the Constitutional Reform Act 2005, the Lord Chancellor can remove a judicial office holder (below High Court level) for “inability to perform the functions” of the office but only after a tribunal under section 135.  There do not appear to have been in government, judicial or academic sources  a removal tribunal convened since 2020 that publicly concluded a judge was “unable to perform their duties” (i.e., a formal “capability” removal).  There seem to be no secret “Lord Chancellor competence investigation” culminating in removal of a judge for legal incompetence.  A reasonable conclusion could be that either such cases are very rare or very secret or even both. 

The legal professions from whom judges are chosen are becoming ever more aware that they and/or their members are being associated with political/constitutional opinions; leftie lawyers, immigration tribunal judges and family court judges have all had more than their fair share of recent publicity but after the newspaper headlines have receded any further investigations as to their competence will have ascended to cloud cuckoo land.  There are those who will proudly say this is the British way.  This point of view has little left to commend it. There are many criticisms of the continental way of running a nation or of an America where many posts are dependent upon election and not appointment as in UK. A certain conclusion is that if there is doubt in the competence of the legal system and its supervision there will arise doubt as to the efficacy of the democratic conventions from which it arose and developed. 

BLADED ARTICLES

 

I have posted here more than a few times that there are statistics and there are criminal activity statistics. Perhaps none of those is of more concern to ordinary law abiding people than those on knife crime. Along with illegal drugs, possession of knife or bladed article is a prime reason why stop and search is so important to the safety of communities and especially to the teenage members of such communities. When these communities are of a high proportion of ethnic minority citizens the consequences for a number of reasons can be volatile.


Police-recorded possession offences in 2024 were similar to those of 2020. The number dealt in magistrates’ courts has been broadly stable or slightly lower in the 2020–2024 period. Courts were closed during 2020 lockdowns. Immediate custodial outcomes for knife/offensive-weapon offences fell in the most recent year to 2024.

The proportion of offenders receiving immediate custody has fallen from around ~33 % in the earlier years to ~29–31 % in more recent data

For the year ending March 2024: offences = 18,572. 

For the year ending December 2024: offences = 20,422. 

Proportion receiving immediate custody for year ending March 2024 = 29%. 

Proportion receiving immediate custody for year ending December 2024 = 30.9%. 

Prior to 2020/2021 levels: the proportion had been as high as ~38-39% in years ending June 2020. 

It`s interesting to note that the percentage of offenders receiving immediate custody has fallen from ~38-39% in around 2020 to ~29-31% in more recent years. The much vaunted mantra of Justice Secretaries for decades has been to reduce knife crime and to severely punish those guilty of such.  It would take a brave and overconfident statistician to argue that their targets have been achieved.  

And finally for those who prefer a single picture to 1,000 words:-

 

SHORT AND NOT SO SWEET

 

So you`re thinking about becoming a magistrate?

MURDER, DIMINISHED RESPONSIBILITY, SECURE HOSPITALS AND DEMOCRATIC PARADOX

In the last couple of years this country has seen what at first glance appears to be an almost monthly number of convicted murderers having their crimes reduced to that of manslaughter by diminished responsibility and sentenced to time in a secure psychiatric hospital such institutions known to my generation colloquially as loonie bins. With ever more frequent live television of the sentencing of such offenders the question arises whether or not there is a causal relationship between such killings and the closure of aforesaid psychiatric hospital beds. 

A case which still makes news sources is that of Valdo Calocane who killed three people and attempted to kill three others in Nottingham in June 2023. Although initially charged with murder the prosecution accepted his guilty pleas to manslaughter based on diminished responsibility. This decision was supported by four psychiatrists who concluded he was suffering from paranoid schizophrenia which impaired his ability to make rational judgments and exercise self-control. Calocane received an indefinite Hospital Order instead of a prison sentence.  That decision sparked public outrage and calls for reviews of homicide laws.

In October 2024 David Gower pleaded guilty to the manslaughter of his wife, Jane Gower, by reason of diminished responsibility. The recognised medical condition was a moderate depressive disorder. Given strong personal mitigation his age and ill health he was sentenced to one year and eight months' imprisonment, suspended for two years.

Barry Donnelly (Court of Appeal ruling January 2025): While this case was an appeal regarding sentencing length the initial conviction was for manslaughter on the grounds of diminished responsibility due to schizophrenia. The Court of Appeal provided guidance on sentencing for such cases and dismissed the appeal finding the nine-year minimum term was not excessive.

A final example of recent cases of diminished responsibility being reversed in murder convictions is that of Shaine March.  He murdered his pregnant girlfriend Alana Odysseos in July 2024. He initially admitted manslaughter on the basis of diminished responsibility but during his trial an expert withdrew their support for the claim and he subsequently admitted murder and was sentenced to life imprisonment. This case illustrates a situation where the defence was initially pursued but ultimately not accepted.

In those cases above and others similar including perhaps those in the headlines this week it is not outlandish to consider whether the closure of secure hospitals begun in 1979 and the corresponding increase in the numbers of those with severe mental problems on the streets has any relationship with the numbers of  random killings of innocent victims unknown to their assailants.  

The sentencing guideline for judges in such matters is here.  Hard statistics are just not available to consider directly whether the reduction of psychiatric beds is in any way related to those who are committed under the legislation.  As at 31 December 2020 there were 7,796 restricted patients in England & Wales.  In 1979 there were in England 88,425 available staffed mental hospital beds.  In 1987/88 there were 67,100 mental health beds falling to about 18,400 in 2018/19; a fall of roughly 73% in that period. 

England currently has three high-security hospitals, Broadmoor, Ashworth and Rampton.  These three hospitals have a combined accommodation of approaching 800 beds.  Whether or not there is a direct relationship between the reduced accommodation for seriously affected psychiatric patients/offenders and those committing serious crimes is not immediately discernible.  It appears that there are so many sources involved that it would take highly qualified researchers with access to perhaps dozens of sources and millions of bits of information to come to a possible conclusion.  My rule of thumb by a very basic read through indicates that there were the following cases of  murder being reduced to manslaughter by reason of diminished responsibility for selected years as below 

 2006: ≈ 32

2008: ≈ 36

2014: 23 (Sentencing Council reported value / sample)

2016:  ≈ 24

From the above a cynic might argue that with regard to those who for no apparent logical reason enter upon a killing spree our governments have and had literally no knowledge as to the causation and in particular that their own policies have contributed to the current situation. We hear almost daily about victims.  They are the unfortunate results of a country driven by its governors spending tax payers` taxes on aftercare and overlooking pre care. As in other societal aspects research on so many subjects is sacrificed to cosseting those who choose to spend their £ on TV contracts, gambling, holidays and other ancillary examples of their self defined entitled lifestyle.  

The disturbing conclusion is that perhaps our form of democratic government can no longer be relied upon to deliver that which is best for the majority of the population. The current Cabinet has made it quite obvious that its prime purpose is to be re-elected; a target which many within have realised is unobtainable. That same venerable cynic might suggest that faith in our leaders has hit the nadir. During his campaign for the Labour leadership in 2020 Keir Starmer indicated a desire for electoral reform and a move toward proportional representation (PR) saying that the current First Past the Post (FPTP) system caused millions of votes to be wasted and that this "has got to be addressed".  Then it suited his purpose to say that but how times have changed. In the run-up to the 2024 general election and after becoming Prime Minister he explicitly stated that electoral reform was "not a priority for me" and that Labour would contest the election under the existing FPTP system. Last year he also indicated that FPTP was "the right system" as it provides a strong and stable government. 

The debacle that has become our justice system with all the ramifications for all of us is the thin edge of a very large wedge in the shape of Marxists, Greens, Fascists and Islamists in a combined diabolical journey pushing at the boundaries of our very democracy. The timing of the democratic paradox is fast approaching when the will of the majority collides with individual rights and non democratic means must be employed to protect those rights.