CAN "VICTIMHOOD" BE COMPATIBLE WITH ENGLISH JUSTICE?

An eye for an eye and a tooth for a tooth. That phrase was for millennia a guiding light for primitive forms of justice for many ethnic, tribal or national entities. From the Frankenstein image of mobs with their flambeau besieging the gothic tower of a blazing castle to the horrific images of mutilation or execution by the sword in the current era in middle eastern or African autocracies victimhood has been a basis for a form of justice.

In a country of 3.4 million Muslims of whom it is estimated 20%-25% would welcome or activate for Sharia law to be imposed it`s not unlikely that would include incorporating some aspects of the Quran's teachings which are themselves disputed by scholars.  In the case of rape for example a victim's account of being forced can, in practice, become collapsed into an admission of the underlying sexual act, shifting the practical burden onto her to prove coercion. The nature of the victim and influence on sentence take a unique path. Broadly speaking in classical Islam rape of a free woman is involving two separate violations: one against "God's right" (haqq Allah), triggering the hadd punishment on the perpetrator and one against her personal, interpersonal right (haqq ādamī), requiring monetary compensation to her directly. These two are treated as separate and cumulative much like a thief who both loses a hand under hadd and must still return the stolen property.  If a case collapses for lack of proof and gets recharacterized as a failed zina/qadhf accusation the victim isn't just denied compensation;  she can end up prosecuted herself.  However as per my opening words above, the practice is not just a metaphorical carryover: it's still applied as physical retaliation in a handful of countries today although real cases are rarer than the historical framework suggests because most resolve through compensation or pardon instead. It is not unlikely although little is heard publicly that Muslim voices will become increasingly vociferous when and if a particular case or event provides a trigger.  

The current furore on the early release of prisoners including those convicted of manslaughter has brought a whole new actor into the victimhood drama. Under the Criminal Justice Act 2003 a Victim Personal Statement (VPS) system lets victims describe the crime's impact; physical, financial and psychological  which judges are required to consider  when assessing harm.  Since its implementation this outlet for victims has grown in intensity.  The current situation is that the victim(s) can make a VPS prior to the sentence being pronounced.  

Following the tragic case of PC Harper there was a little reported event last week at Liverpool Crown Court which  re-opened the whole debate on the role and effect of a VPS.  Police constable Simon Ward was left severely injured after being dragged down the street by Candace De Silva`s Range Rover.    PC  Ward made a VPS describing how the injuries left him needing a crutch and knee brace, suffering PTSD, unable to work for 19 months and now in a desk-based role. He said it was "hard to accept I'm now a victim of a crime".  Her prison sentence was suspended. 

 

The point in this post is whether or to what degree does a VPS influence sentencing and whether or not the current situation is providing equitable justice for offender and victim. Is the sentencing structure in England and Wales becoming too victim orientated?  As in some Muslim countries can a sentence be mitigated by recompense to the victim?  This is known as Diyyah (Arabic: دية), commonly translated as "blood money" or victim compensation.  In some countries and situations it allows the maximum capital punishment or physical retaliation to be completely averted.  In the De Silva case her barrister told the court  that she was the sole earner for her family. He stated that her partner did not work and if she were sent to prison the family would immediately lose their home because the partner could not fund the rent.  He added that his client suffered from diagnosed PTSD) and long-term mental health issues. 

In the case above PC Ward made a clearly impassioned statement of the harm he was caused and with the previously mentioned case of PC Harper in his and the public mind the judge chose to suspend a prison sentence on the offender; a sentence which is not unlikely to be appealed.  This facility has been available under The Unduly Lenient Sentence scheme created by the Criminal Justice Act 1988, specifically sections 35 and 36, which came into force that same year and allows  the Attorney General the power to refer a crown court sentence for indictable only offences  to the Court of Appeal if it's considered "unduly lenient"; not just wrong, but outside the range a reasonable judge could have imposed.

It is of fundamental importance to recognise that current practice of VPS is supposed to have absolutely no influence on a judge`s sentence. It is presented as a route for the victim to express in public the effect and degree of harm caused by the offender but is this approach sustainable? Reference again to the tragic death of PC Harper, without the public outcry co-ordinated or not, it is unlikely to have had new legislation in his name. Is this an example of vengeance for that flambeau carrying mob in the age of social media where those aspiring to further a cause can jump on a bandwagon and tailor make it for some nefarious purpose.  The murder of George Floyd, an American criminal,  resulted in Premier League football players and a former prime minister publicly to "take the knee";  an invidious kowtowing to virtual mob violence which disturbed many people  as to the underlying insidious motivations of its proponents.  

The essence of modern western legal systems including that in the UK is built on the principle that crimes are committed against the state, not just the individual.  When or if a "victims' charter" begins to dictate outcomes justice risks shifting from proportional punishment to popular retribution. In simple terms for a wide audience mob violence morphs into a form ready made to be exploited by those skilled in the craft and use of social media. A prime example of this inversion was seen  October 7th 2023 and was  demonstrated when barely 24 hours later on October 8th with hundreds of Israelis still lying dead in southern Israel mobs were formed in western cities screaming genocide against the State of Israel.  The criminal perpetrators were the heroes and the murdered victims were the aggressors.   

Lady Justice has always been seen as the state being above any tendency to be leaning one way or the other; justice is applied without fear or favour.  If the justice system appears to lean towards the mitigating factors of an offender to levels that the public considers overriding the interests of the victim there will be erosion of public trust in institutional justice.  In cases posted here on the position of those supporting Palestine Action the offenders have laid the claim to victimhood in Alice Through the Looking Glass contorted logic. 

If the public feels the state is failing to protect them or punish offenders adequately the demand for decentralized, retributive "justice" will increase from a limited number of political activists to many of those happy to align with a political party  supporting their views at the level of inclusion in a manifesto.  The wide trend to reconsidering the benefits of our democratic system would be further tested.  

In the case above of Candace DeSilva the public petition circulating on Change.org cannot force the judge to change his mind. However, because it has gained significant traction, it serves as a powerful mechanism to catch the attention of the Attorney General. If he decides that Judge Byrne placed too much weight on DeSilva's childcare situation and completely ignored the permanent, life-altering nerve damage inflicted on PC Ward, the case will be referred to the Court of Appeal where her suspended sentence could be replaced with immediate prison time.

MUSLIM OVER REPRESENTATION IN PRISON

With all the controversy in prison numbers just a point of information as to the latest official religious breakdown of the current cohort held at His Majesty`s Pleasure. The chart is published by Ministry of Justice, Offender Management Statistics (June 2023)

AI: THE NEW FOURTH MEMBER OF THE BENCH?

Having been retired from the magistracy for over a decade this blog has by default morphed into more of a commentary on general issues than was the case in years gone by.  Freedom to observe and opine on situations that are highly critical of the Ministry of Justice goose and its underwritten goslings eg His Majesty`s Courts and Tribunal Service, The Criminal Cases Review Commission, police governed by the Home Office [Met Police excepted] or the Judicial Conduct Investigations Office which reports directly to the Lord Chancellor  is something impossible for my active former colleagues without incurring the wrath of god.  This omerta by all active judiciary  is worthy of the originators of the term; various groups, political and criminal, in 19th century Sicily and southern Italy. Amongst the topics one doesn`t learn from media, mass or social, is the effect on the judicial system of AI. This post is an initial attempt to throw just a few lumens on this subject.

In 2025  The Ministry of Justice published its AI Action Plan for Justice involving inter alia courts, in an effort to make justice faster, fairer, more accessible whilst protecting human rights, the rule of law and judicial independence.  The purpose was that AI was to assist but not replace judicial decision making.  The plan, we are told, applies to all judicial office holders, clerks, judicial assistants, legal advisers/officers and other support staff.  It would appear that AI would [will?] be used as it is currently used eg with Trip Advisor summing up hotel reviews which in the court scenario would mean summarising lengthy case papers or identifying key words, phrases or sentences. Transcription of speech to text and translation of texts would be just an extension of what is already widely in operation in all walks of society.  

What is not intended is to remove from the human bench the decisions as to whether a defendant is guilty; whether a witness is telling the truth; what sentence should be imposed; whether a defendant should be remanded in custody; whether an individual is dangerous; what findings of fact a bench should make. The MOJ says its approach must preserve human decision making, legal rights and judicial independence. How long this stance can be definitive only time will tell.

In June 2026 the government announced that it is developing AI legal assistants and other AI applications to tackle court delays.  From my own experiences as a user of county courts the administration of routine functions is, to mix metaphors, in the steam age.  The current position is that AI cannot replace the exercise of human judgment.  

What is significant is what has changed since I retired.  Court attendees can manipulate text, images, videos and recordings.  The President of the King's Bench Division recently warned that AI means fabrication which previously required specialist expertise can now potentially be produced cheaply with a smartphone. He specifically identified forged email chains, synthetic voicemail, manipulated CCTV, fake social media exchanges and false expert looking reports.  Bearing in mind that the bench`s function is to find facts, fake evidence may be accepted as genuine and genuine evidence may be dismissed as fake. 

Solicitors and barristers are already able to use AI for the benefit of their clients in a manner similar to the above listed functions outlined by the MOJ. The Civil Justice Council has been examining AI generated pleadings, advocacy documents, witness statements and expert reports. Its June 2026 findings say there is presently substantial support for allowing professional legal drafting under existing professional responsibilities but witness statements remain an area of particular concern because AI can reshape or embellish a witness's recollection. It can potentially influence how a witness's account is drafted. This is of particular concern to senior judiciary. At its annual strategy meeting in January 2025 the Civil Justice Council (CJC) agreed to set up a working group examining the use of AI by legal representatives for preparing court documents.

For a legal advisor in the arena of a magistrates court the use of AI carries equally grave responsibilities. AI can produce a perfectly convincing looking citation to a case which does not exist or misstate what a genuine case decided.  During my career on the bench when a LA gave an option or opinion we could see for ourselves the words on a printed page and exercise our task of judgement and/or interpretation of those words within the law.  Currently magistrates must not allow an AI generated answer to become an unseen source of legal advice just as in my time references eg to Google were forbidden. 

Referring once again to Trip Advisor where AI sorts and categorises thousands of reviews on destinations, hotels and restaurants etc into simplified easily digestible results  senior judges now recognise its potential to help with case management and the handling of very large volumes of information.  However the downside to such abbreviation is that some important facts will be omitted or be overlooked by those reading the shortened document. 

For magistrates just as outside referring was forbidden so it is with AI. The bench cannot ask Claude for advice. Until now a bench was faced with the traditional question: do we believe this evidence? Now the question is  can we be confident that this evidence is what it purports to be?

When I first wrote about the magistrates' courts in 2010-2013 {at another site and now published  at   https://amagistratesdiaries.blogspot.com/ } , artificial intelligence was scarcely a consideration. When I retired in 2015 it was still science fiction. In 2026 it is becoming impossible to ignore.  But would I now feel out of place, out of my depth in the middle chair of my inner city bench?  The basics are still unchanged.  The bench still has to listen to the evidence, assess the credibility of witnesses, apply the law with the assistance of the legal advisor and decide whether the prosecution has proved its case beyond reasonable doubt. Perhaps in the not too distant future AI might be asked for its opinion  but for the foreseeable future it cannot make that decision of whether guilt has been proved beyond a reasonable doubt.  However it is the credibility of the evidence presented to the court which raises the possibility of its origin. AI can produce remarkably convincing photographs, documents, emails, voices and videos which never existed. It can also alter genuine material. The technology is becoming cheap, accessible and increasingly difficult to detect with the naked eye or ear.  The corollary is that genuine evidence might be dismissed as "AI generated" when it is not.  As mentioned above most worrying perhaps is the potential influence of AI on witness statements. If a witness's account has been drafted, polished or reshaped by AI where does the witness's own recollection end and the machine's contribution begin?

When Sentencing Guidelines were introduced in 2004 there was a split in judicial opinion as to their worthiness and a fear that the discretion of sentencers would be reduced if not eliminated.  The practice of structured decision making at all criminal courts was eliminated. As is now demonstrable by the many sentencing pronouncements made on live TV of major criminal offenders the steps to a sentence are almost robotic in their presentation and in my opinion are leading inevitably to a position where, when consulted, the computer says yes.  Although the limits of AI currently seem to be constructed in steel reinforced concrete I do not believe my successors in 2036 will have that inhibition cast upon them.  AI might not replace the magistrate but it might fundamentally change the nature of the task the magistrate is being asked to perform.

A NEW COURT OFFERS A NEW WAY

In 2000 The Labour government first attempted to abolish a defendant's absolute right to elect a jury trial for "either-way" offences.  In 2003 the government successfully passed legislation allowing for judge only trials in very specific circumstances such as complex fraud cases or instances where there was a significant risk of jury tampering.  On 25 November 2025 a leaked internal Ministry of Justice memo revealed plans to eliminate juries for most crown court cases.  This was formally announced to Parliament shortly after on 2 December 2025 by Justice Secretary David Lammy.  And after the parliamentary  Christmas recess the s*** surely hit the fan. 

The prime, even the only, public argument Starmer`s government had for this radical proposal was that it would reduce the crown court backlog which had reached c 80,000 cases.  A report by the Institute for Government estimated that the proposal would reduce that figure by around only 2%.  The reasoning was that there are myriad practical causes of delay; crumbling infrastructure, staff shortages and administrative failures to name but a few.  The majority of the legal profession was incensed, the erosion of democratic rights being the most quoted argument leading to loss of public confidence and a claim that there would be a disproportionate impact on minorities.  

Could there be another reason, so distant from the public or even private limits of "out of orbit" thinking  for the proposed changes?  

In April 2021 six Extinction Rebellion protesters were acquitted of causing £25,000 worth of criminal damage to Shell’s London headquarters. They won despite the judge explicitly instructing the jury that they had no defence under the law.  On 5 January 2022 a Bristol crown court jury acquitted the "Colston Four." The jury used its ancient right of conscience (jury equity) to acquit them. It was a perverse verdict. Other "perverse" verdicts followed.  In January 2024 a jury acquitted the "Palestine Action" activists who occupied and caused major damage to a Thales weapons factory in Glasgow, accepting the defence that they were acting to prevent war crimes.  A month later  5 climate activists from the group Plan B Earth were acquitted of criminal damage after spraying paint on the Treasury building despite a judicial warning that their climate anxieties did not constitute a lawful excuse.  The "Just Stop Oil" Signage Acquittals (Mid-2024) followed the high profile arrest of retired social worker Trudi Warner for holding a sign outside a court reminding jurors of their ancient right to acquit according to their conscience.  Several subsequent trials of Just Stop Oil protesters resulted in total acquittals. Jurors explicitly rejected judicial directives to ignore the "global climate emergency" when deciding on charges of public nuisance and criminal damage.  More details are available by typing perverse verdicts in search box. 

With further crown court trials in the offing where jurors`political motivations might undermine evidence based conclusions is the government making a desperate attempt to preserve traditional judicial norms by appearing to undermine them? If the government indeed has a case to answer might it be that it has shot itself in the foot by rejecting a more middle way to achieve its aim? 

The most favoured alternative to the current judge and jury system re either way cases was put forward in 2001 by Sir Robin Auld who recommended creating a unified, three-tier court system to replace the division between the magistrates and crown courts.  The proposal caused immediate outrage from the Bar Council and Law Society who branded it an "assault on jury trial". Because it was a political "hot potato," the Labour government dropped the idea.  The exact judge plus two magistrates blueprint was resurrected in July 2025 by Sir Brian Leveson who again proposed a single judge sitting with two magistrates to hear cases with anticipated sentences of up to three years. Instead of adopting Leveson and Auld's balanced intermediate panel the government pushed ahead with solely judge only trials for the new "Swift Courts". This choice heavily intensified the current political backlash.

Into this cauldron of frenzied legal xenophobia this humble retired magistrate proposes now is the time for something completely different.   To reconcile the lack of a jury let there be created an "upper magistrates court" where five presiding lay magistrates would sit on those contentious trials with a legal advisor as in all current cases where magistrates form a bench. To remove the fear of an "outlier" magistrate debasing the system a majority verdict of 4:1 would be enough to reach a verdict. Furthermore the proposed removal of a right to appeal would itself be removed. In itself that would give the public confidence  that justice would be seen to be done. 

Considering that every government proposal is subjected in minute detail into how it`s going to be paid for the above alternative  hasn't been costed by anyone.  The judge alone "swift court" model is projected to save time rather than money directly; around reducing trial time by an estimated 20% translating to roughly 9,000 sitting days saved once the system is fully staffed.  The Institute for Government flagged that the government hasn't published cost estimates for the magistrate involving options at all. A five person lay bench would cost more per sitting day than the current single judge, single magistrate or traditional three magistrate bench models but less than a 12 person jury trial with full jury expenses, jury management infrastructure, and (often) longer trial length.

To sum up my prosed changes: They build on the existing magistrates bench + legal adviser structure rather than inventing a new mechanism so it's low risk and not unprecedented. Five highly experienced bench members with a 4:1 threshold gives a stronger safeguard against a single outlier than the current 2:1/three bench majority.  A guaranteed appeal right restores a safety net the government's Bill is currently removing.  Finally and perhaps overriding much of the above the public is more likely to find this change acceptable as a development of the current position.  However it is unlikely that die hard members of the legal fraternity would be persuaded. 

There are always those on any topic who are traditionalists. They abhor change; any change.  They are the Luddites of our age.   MOJ data shows magistrates courts run four times faster than crown court and the guaranteed appeals would risk clawing that speed back.  That factor is not insurmountable if the basic change were accepted as viable. It is impossible to compare possible costs with current or proposed costs.  

With our new prime minister behaving like somebody who thinks he can produce a fine Burgundy by waving a magic wand spin is more important than functionality.  The forms our justice system will take are being paraded like the entrants for a 1950s beauty contest.  Perhaps those who make the rules don`t get out enough. It`s time they got out of the box. A new court offers a new way.