REASON ITSELF IS UNDER THREAT BY HUMPTY DUMPTY

All too often magistrates are reported to the Judicial Conduct Investigations Office for what they have said either in court or our of court.  And all too often their perceived indiscretions conclude with their being removed from the magistracy.  Crown Court and District Judges (MC) rarely appear in the news for inappropriate remarks whether in or our of a court environment. Of course there is a simple reason for that apparent lack of judicial chastisement; such individuals are skilled in avoiding controversial remarks which might lead them to explain themselves before the JCIO.  What then of HH Timothy Spencer QC and his comments a couple of weeks ago at the gypsy slavers trial at Nottingham Crown Court. To quote the judge`s remarks from the report, "Judge Spencer told the family: "You claimed that what went on at Drinsey was no different from what was going on at any travellers' camps around this country, that all travellers had workers operating under similar conditions."Sadly, I very much fear that you may be correct about that. But that does not make any of it right."

Presumably it is the second of his sentences reported that have prompted a complaint since the first merely quoted the defendants` words. To observe the possibility that the defendants` admitted actions might indeed be the case does not, IMHO, justify the mean spirited complaint and referral by the National Alliance of Gypsy Traveller and Roma Women. They would surely have been wiser to issue a statement of fact refuting the judge`s comments if indeed they could be refuted. This recourse to complaining to authority about perceived offensive language is becoming endemic in a world truly smitten by the Humpty Dumpty virus of words meaning what the listener wants them to mean. The public spats over what is considered hostile to supposed transgender people is taking these forms of criticism to localities where reason has its head stuck up its arse.  Indeed reason itself is under threat and its adherents have fewer and fewer places to express themselves.

MAGISTRATES IN FAMILY COURTS

The magistracy has lost about 60% of its numbers in the last decade. There are many reasons for this astounding reduction including a drop in cases coming before the courts, a large increase in the numbers of lawyers appointed as District Judges (MC), retirement of thousands of baby boomer JPs and fewer volunteers with the resources to make the necessary sacrifices in time and income to devote even the minimum twenty six half days annually and three or four days training. A most important consequence of this lack of personnel is the shortage of magistrates trained to sit in the Family Court. Until now at least two years experience sitting on the Criminal Bench was a pre requisite for those wishing to sit on Family. Personally I did not consider myself a candidate for any but the Criminal Bench where I was a chairman for many years. It seems that the shortage on the Family Bench has been recognised by The National Bench Chairmen's Forum, the Senior Presiding Judge and the President of the Family Division.  To alleviate the problem a major change has been approved for the selection process; JPs will be appointed and/or allowed to sit on the Family Court without the aforesaid probationary period.  

It goes without saying that the qualities needed  of a family magistrate differ greatly from those of their peers on the Criminal Bench.  With that thought in mind I recollect clear instructions from trainers in my early days on the bench that we were not social workers. That perhaps is explanation enough why the new rules have been enacted. Whilst empathy of individual JPs when on the bench was not a handicap the training advice indicated where a line had to be drawn.  For those colleagues who did and do manage to ride both horses simultaneously I have nothing but admiration having seen them countless numbers of times reading through family reports sometimes of hundreds of pages.  

Whilst I have been critical of many so called initiatives of the last decade in the structure and running of magistrates` courts many of a corporist nature this particular one has my backing.  It should place many round pegged magistrates in round pegged courts.

STOP THE CLOCK ON COURT HOURS EXTENSION

The plan by HMCTS for flexible operating hours in courts has been postponed.  It was due to begin in November but had met much resistance from the legal profession. Magistrates haven`t been too vocal in their opposition. Ostensibly the delay is to allow a more thorough investigation into all aspects of the proposals. Such a confession is an indictment itself of the manner in which the timetable had been set. The clock has been stopped.  It is not unlikely that if and when this exercise to increase utilisation of courts is concluded the result will bear little relation to that which was originally intended.  The very verbiose and Twitter happy CEO of HMCTS has explained herself here.

TO BAIL OR NOT TO BAIL;THAT IS THE QUESTION

The issue of pre trial refusal of bail for defendants has always been a contentious issue. It is certainly amongst the most difficult decisions made by magistrates. Taking away the liberty of an unconvicted person strikes at the heart of our justice system.  To that question in the few years prior to my retirement the situations where bail was mandatory in the pre trial stage were increased. With those thoughts in mind it was interesting to read this week of the numbers of defendants remanded in custody who were not later convicted at  crown or magistrates` courts. 

NOT MILK AND HONEY BUT BREAD AND GAMES

The Home Office has rarely been a direct topic of this blog.  Of course its effects on our legal system and the control of police affect us all.  In November 2011 a previous Home Secretary uttered the now famous phrase in which he described his own fiefdom as "not fit for purpose".  Many would argue that the situation is today not much changed. One fact however that has emerged from that department is that its current incumbent appears to have only limited control of what goes on under her name.  Last week an asylum seeker was flown out of the country in direct contravention of a court order known to the Home Office which was in place prior to the departure of his flight to Turkey en route to Afghanistan. There are two simple conclusions to this sorry affair; Amber Rudd knew of the court order but ordered her civil servants to continue with the deportation or she did not know and her officials did her dirty work in the full knowledge that they were acting illegally.  If the former is true she should resign and if the latter her incompetence and lack of control of her own department lend itself to the simple conclusion that she herself is not fit for purpose. 

There is no doubt that the quality of the individuals at the head of government with only a few exceptions  is devoid of intellectual rigour and application. When cabinet ministers` bending rules extends to a public lack of confidence insofar that politicians lie in order to cover their arses  we are in a sorry state. It is that very perception that has allowed populists Trump in America and Corbyn in this country to garner support from a broad swathe of the population which is being led by the nose to a promised land which will soon be found rather than  being composed of milk and honey to consist of hate thy neighbour and bread and games.  Come back Nero; all is forgiven.

POLICE & PCCs/SOME ARE A DISGRACE

I suppose there`s a good case to answer insofar as police and Police Crime Commissioners is the group of public sector workers most often in the public eye.  That being the case one would have thought that in the light of past behavioural, disciplinary and procedural problems members of those bodies would ensure for their own employment prospects that their actions were acceptable to inquisitive public scrutiny.  One would have been wrong. Following are a just a few very recent cases reported this month where it is hard to believe that some individuals consider themselves perhaps not above the law but certainly above scrutiny.

In Worcestershire a Police and Crime commissioner does a deal which certainly was and is worthy of investigation.

In Wiltshire a PCC is under scrutiny for his handling of the job.

In the West Midlands a police officer`s remarks whilst wearing a body camera are so outrageous it`s hard to believe he was accepted as being suitable for his job.

In Leicestershire four police officers are sacked after a prolonged investigation into profoundly un police officer like remarks made in WhatsApp exchanges. 

These examples are not those of so called political correctness.  They go to the heart of what is just totally unacceptable as far as police are concerned.  With regard to the Police and Crime Commissioners they are just the latest in a long  line since the office was created a few years ago.  When such people have the power to hire and fire Chief Constables their history, credentials, behaviour, actions and remarks must be equal to the highest standards expected of those in public office.  How these two can remain in position escapes me.  One thing for sure as a result of their misdeeds real and apparent  and those of dozens of other PCCs is that a democratic vote isn`t necessarily the best way to fit the correct individuals in high public office. 

3 WISE MONKEYS OF HMCTS

For those who have followed my weekly report on HMCTS communications with interested parties on the scheme for "flexible working" there is still no comment on what seems to be the only question concerning magistrates.  Perhaps HMCTS is following the policy of deaf ears and blind eyes to justify dumb mouths. Question is copied below. Website is here.

May posted on on 25 July 2017
Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

THE LAW AND ANIMAL BEHAVIOUR

Animals usually feature in the legal pages and reports when they attack a human being, escape from captivity, save their owner from a fate worse than death, help to capture criminals etc etc.  Images appear when their expression seems almost human like.  Indeed last week an attempt to assign copyright of a monkey`s image to the monkey itself failed. However a more interesting and some would say sinister case is taking place in Scotland where a defendant is accused inter alia of training his dog to perform a Hitler salute to promote his alleged anti semitic views. Where can this progress in law and disorder end up?  Amongst commonly owned animals horses and pigs are perhaps the most intelligent and responsive to being trained by their human masters and mistresses. The latter species for obvious reasons perhaps lends itself to being used in demonstrations against Muslims and/or Jews. I wonder what police reaction would be if a nazi badged porker was included in such a demonstration? Probably a public order charge would be levelled against its owner.  Now that would be an interesting case to report here.    

BENCH CHAIRMEN SHOULD NOT "FEEL"

Over 2 million disabled blue badge holders have special parking privileges. Fewer than 1000 prosecutions are brought against those who abuse the system by using counterfeit badges or otherwise fraudulently try to play the system. Since prosecutions are the responsibility of local councils and those councils often appear to be more interested in using their reducing resources for other matters that are more profitable many magistrates will not have been involved in such matters. I first posted on this topic earlier this year on 23rd February. A recent case, I suppose because of the rarity and because of the affluence of the offender, caught my attention. 

What strikes me about the case is not reported in the national press; one of my eyes and ears on the ground has informed me of the purported statement of the bench chairman: "We feel that you used the blue badge deliberately. We feel that the offence requires a fine but we have taken into account your early guilty plea".........(my bold)

As a bench chairman for many years I generally did not make pronouncements parrot fashion from the "book" but always made very clear the bench`s reasoning, intentions and any other considerations appropriate to the individual.  Neither I nor any other chairman with whom I sat ever used the phrase we feel or anything similar.  One might say that using those words was just a matter of that chairman`s style.  I would opine that it typifies lack of cogent thought, reasoning, common sense and use of language; factors which should be a requirement for the position.  But then this is the result of trying to train people to be chairmen and allowing them to sit for a minimum of only twenty six half days annually. It has often be said by those wiser than I that leaders are not made, they just are. Chairmen of a bench are leaders; some are capable to lead and others...................

Most professionals whatever their speciality whether it be wood carving, train driving, architectural designing or plastic surgery know well that frequency of performance is essential to retain or upgrade skills. Over twenty years ago when abdominal laparoscopic surgery was in its infancy and I required a double hernia operation I asked my chosen surgeon how many such procedures he had performed and how many had he required to redo: four hundred & three and two were his respective answers. My op went perfectly.  There is no doubt in my mind that trying to teach or train people to be bench chairmen is a difficult task. There is also no doubt that sitting on twenty six half days each year is inadequate for most to attain the required abilities to do the job satisfactorily.  It is not unlikely that poor performances as exemplified by today`s example above and others more blatant will be used as examples by those who desire to reduce JPs` role within the court environment in the not too distant future.Indeed on some social media that point is frequently made.

NO JAIL = NO PUBLIC CONFIDENCE

The current on line edition of the Bath Chronicle has the following on its front page:-

"Michael Stephen Phillips, 50, of Haycombe Drive in Twerton, was given a suspended prison sentence after he admitted assaulting a woman in Stothert Avenue, Bath Riverside. Magistrates noted the following aggravating factors: “domestic violence, nature of injury, sustained assault on a vulnerable victim plus previous conviction against same person”. Phillips was committed to prison for 16 weeks, suspended for 18 months. He must take part in a building better relationships programme for 42 days and a restraining order was made. He was ordered to pay £250 in compensation, a £115 victim surcharge and £85 Crown Prosecution Service costs".

The fact of not imposing immediate custody whatever the personal circumstances of this offender, circumstances which the reporter deemed unnecessary to write up, is nothing short of disgraceful if the public is to have confidence that our judicial system is one in which they can have confidence.   When that confidence is eroded so is a pillar of our democracy.

DAVID LAMMY`S SELF SERVING REVIEW

I must declare that I have never had any respect for David Lammy M.P. IMHO he is a self seeking publicist and will do or say anything regarding supposed bias against individuals who are self describing ethnic minorities. No sooner had the referendum result been announced late June 23rd last year than the morning headlines were David Lammy M.P. arguing for a second one to get the "right" answer. Somehow or another using influence unknown to me he persuaded David Cameron that he should carry out a review of the treatment of aforesaid ethnic minority people within the criminal justice system.  I have written  this blog as a labour of love for over nine years and I don`t intend to burden myself with reading the 108 pages of the review; just the introduction where in addition to a link to the final Report you will notice said gentleman`s picture on the page. That speaks for itself on his underlying personality.   I draw your attention to the following paragraph copied below:- 

Apart from there being no statistical evidence for the above; "more confidence" is purely subjective, in all my years on the bench I detected no bias from white colleagues at any time towards those of ethnic minority status.  Some will say; ah.......but you would have had unconscious bias against black people.  To that I would answer........bollocks.  Now my experiences were not unique.  I will admit that amongst the coterie of 29,000 magistrates as was  there probably was a small minority who might have exposed their inherent discrimination but they would have been swiftly brought to order by their colleagues. 

It is people like Lammy who spread the discord. They forever preach of discrimination where it exists only in the mind of the accuser. It is just another sign of objectivity in the CJS being driven by so called "victims" such a term often in my experience being used by CPS and others prior to conviction when the correct term is "complainant". Similar processes are at work when university chancellors agree with the concept of "safe spaces" for those who fear being offended by opposing ideas.  Truly my fears of approaching 1984 in some previous posts are being realised quicker than I can comment upon them.

SHORT JAIL SENTENCES AND POLITICAL & RELIGIOUS TOLERANCE

Those who forever and a day lobby for short prison sentences to be abolished have recently been able to lift up their eyes and gaze longingly at proposals north of the border to do just that. It is not a foregone conclusion. The protagonists of this policy change seem to be unable to consider that the situation with recidivism is as much to do with the dumbing down of the probation service since 2010 and the collapse of structures within the prison service over decades. How can prison governors fulfil their remit if they have barely enough to feed their charges never mind rehabilitate them? How can probation services do their jobs with political shenanigans in their recent privatisation and reduced funding combined with general uncertainty for those at the sharp end?

Sooner or later one government or another must explain to the great British public that prison services, justice systems, defence requirements must have much more money spent on them; not the euphemism "invested" as Labour politicians continually preach. That money has to come from increased taxation or reductions in the budget of the holy cow NHS.  Governments especially prime ministers are entrusted and enabled to lead we citizens but currently they are sheep being led by the nose. Perhaps that is why Jacob Rees-Mogg has emerged from rank and file Tories as a future PM.  He has shown his backbone by declaring his Catholic faith and consequences of that faith. If they are kept as his private  belief system just as MPs of Muslim, Hindu, Jewish, Jedi or no faith do there is no problem. Similar arguments against him were put to Jack Kennedy in 1960. He declared that the US Constitution would be his guide; not the Pope. The antagonistic sheer nastiness being directed at  Rees-Mogg from the left especially on social media is a disgrace to our values. It is illogical and all right thinking people should reject it.  Oppose him on political grounds but opposition because of his religion is a dangerous intolerant route to take with catastrophic destinations.   

HMCTS INVITES QUESTIONS BUT DOESN`T ANSWER THEM

On 21st July HMCTS initiated an on line question and answer page on proposed pilot schemes to extend the working hours of magistrates` and crown courts. It seems, surprise, surprise that many points made by various contributors remain unanswered.  What an indictment of the senior management of that organisation that offers a sounding board to interested parties and then ignores the responses. 

SALAMI SLICING TO 1984

The army is, according to reports, thousands of men short of its anticipated even lowered capacity.  Two hundred or so years ago at the height of the Napoleonic Wars there was no problem in recruitment for the army or the navy;  admirals sent well armed hard men around the country and press ganged reluctant sailors.  The army was equally robust.  We are constantly informed now that in the 21st century a career for intelligent people is awaiting them in the army, navy or air force and one would have thought that even when recruitment is below expectations feeding from the bottom of our social strata would be conducted with some care. Combine that thought with a bench of magistrates that seems to have abandoned its duty of public protection, a probation service that considers custody an anathema and we have a ridiculous situation of a thief with 25 previous convictions who has broken his early release license being given a conditional discharge. 

This is the reality of those individuals and organisations that are daily propagating the notion that non violent offenders should not be jailed, that custodial sentences of up to six months should be withdrawn in favour of so called "community sentences".  We have all noted what has happened since the closure of dozens of mental health institutions and their inhabitants entrusted to "care in the community".  Every time planning for a new prison is approved the cry goes out that prison doesn`t work in the same way that when motorways are extended or newly built the cry goes out that their very construction will encourage more traffic. 

We are living in very dangerous times.  Every day another incident happens which is undermining our freedom of expression or confidence in those who govern or guide us whether in the universities, the armed forces or parliament where an incompetent prime minister can threaten colleagues` jobs in order to prolong her existence and to hell with what`s best for the country.  We are salami slicing to 1984.

DEATH BY DANGEROUS AND/OR CARELESS DRIVING

DANGEROUS DRIVING:A person drives dangerously when the way they drive falls far below the minimum acceptable standard expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

CARELESS/INCONSIDERATE DRIVING. Road Traffic (NI) Order 1995. 12.- If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

The charge of Causing Death by Dangerous Driving is a much more serious charge than Causing Death by Careless Driving with a maximum penalty of 14 years in prison but its definition differs in only one word: it can be brought when driving 'fell far below the standard expected of a careful and competent driver'.

The above definitions or words very similar are the bases on which the CPS initiates charges.  When death occurs as a result of the lesser charge the maximum punishment is five years imprisonment; a considerable reduction cf the more serious offence.  Although the lesser offence is either way it is highly unlikely that any JP has ever sat on such a charge: as far as I am aware neither I nor any former colleague of mine ever did.  I would opine that my comments to follow are those of a layman with perhaps a smattering of legal knowledge and awareness and those with professional experience might have a field day with their literary rotten tomatoes.

The basis of dangerous driving would appear, from the definition above, to be founded upon a comparison of an offender`s driving ability  with that of a "competent and careful driver".  But how would the definition be interpreted if the offender had inherently demonstrated that he was not at the time a competent and careful driver but of such a standard only that he possessed a valid driving license? That would IMHO lead to a very searching definition of the words "competent and careful" and if it could be shown that the offender did not fulfil that secondary requirement he could not then be subject to an accusation of dangerous driving.  With that in mind I would refer you to this recent case. Going by the report the actions of the offender were far from careless; they were culpably dangerous. Road traffic lawyers might disagree.  In any event I would opine that in this case where the offender pleaded guilty it is not unlikely that when originally presented with the more serious charge he was offered a plea bargain insofar as a guilty plea to careless driving would reduce considerably his expected jail time.  

I would conclude by offering the thought that the definition used for death by dangerous driving is in need of re thinking so that there is less opportunity for aggressive and truly evil drivers to be offered similar plea bargains in future. Manslaughter and murder might be examples where the demarcation line is more clearly drawn and could serve as a basis for putting away deserving offenders for the longer custodial periods they deserve. 

COURT CLOSURES

The closure of hundreds of magistrates courts by the end of this parliament has enraged lawyers and magistrates not unnaturally but little is heard from disinterested 3rd parties. Of course it`s a perfect bandwagon for MPs to latch on to whatever their party but a fat lot of good they do in this regard when the decision is made before the ubiquitous "consultation" is promulgated. However the reporter of Devon Live gives his opinion as a layman on this subject.  It`s worth a look.

IS A ROSE RED AT NIGHT?

Intending philosophy students and others have their favourite examples of simple conundrums.  Two of these are is a rose red at night and does a falling tree make a noise in the forest when nobody is there to hear it.  A similar thinking process seems to be behind the defence of a blind man charged with viewing child porn. As a retired eyecare professional the case has a significance for me but let`s assume his defence is unchallenged and no expert witnesses testify.  How would my reader react if s/he were on the bench?

"MINORITY REPORT" NO LONGER JUST SCI FI

In 2002 Steven Spielberg directed and Tom Cruise starred in the Oscar and BAFTA nominated movie Minority Report.  This is not a film review site but it`s well worth £2.49 from Amazon. I choose to begin this post insofar as the work itself is described as science fiction. Star Trek in 1966 was also described as sci fi and looking at some of its fixtures and fittings it was just sci truth fifty years ahead of its time. The era of actually predicting criminal behaviour is not quite with us........just yet but the era of sanctioning criminal behaviour which has not happened is with us in the here and now. 

Under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences and unconvicted people thought to be at risk of offending can be registered. The Register can be accessed by the Police, National Probation Service and HM Prison Service personnel. It is managed by the National Policing Improvement Agency of the Home Office.  As with so many factors, policies and actions which constitute the outpourings of the MOJ, Home Office and other government departments interfaced with Law `n Order a majority of the population couldn`t care less except for harbouring a complaint when asked, that sentences are not "tough enough".  That is why we have such an expansion of the prison population.  Incidents of dogs killing or injuring young children led to the iniquitous Dangerous Dogs Act 1991. More recently death by careless driving was created in response to public opinion and led the government to use an unpredictable outcome to justify the imposition of custody where none previously existed.  Dangerous cycling might conceivably be on the statute books before the next general election prompted by the recent tragedy in London. Whether or not in such circumstances government ought to follow or lead is a matter of political philosophy. But my problem today is being reconciled to severe limitations on individual liberty where no crime has been committed and where an offender has apparently paid the debt society demands; where the slate has been wiped legally clean. 

Sex is no longer a dirty word as it was pre the Great War.  Sexual offences, however, are very much in the public eye.  They still shock.  Perpetrators of such are still reviled.  But it seems that just as gay people were badly treated before the swinging sixties changed public attitudes and then the law, paedophilia whether caused by physiological and/or anatomical dysfunction in the brain  or is a learnt behaviour, a matter in dispute, sanctions will never be too severe for Mr & Mrs Joe Public.  Should such people be in effect punished before they commit a crime? The 2003 Act specifically allows this and I don`t recollect too much opposition at the time.  In the case of Paul Colin Carter his punishment (or some would say restriction) is extended.  He is not alone in being subjected to control for the possibility of future offending when his tariff has expired. He is not alone insofar as sex is often the basis of such restrictions.  There was the notorious case last year when a man was ordered to tell police 24 hours in advance of his intention to have sexual relations with a woman.  These two cases are not the same; they might not even be considered similar but they are happening because of a legal system which is taking us closer and closer to Steven Spielberg`s and writer Philip K. Dick`s vision of a dystopian future.  Do we really want or need to taken there? 

A LESSON IN CONTEMPT OF COURT

It didn`t happen more than a couple of times when I was active in the middle chair but in the last resort loud mouthed defendants screaming obscenities must face jail time if they persist in their abuse despite being warned of the consequences.  I also believe that many of my colleagues were hesitant to use such powers in the face of court being disrupted by individuals whose mouths were uncontrollable. Others would surreptitiously glance at the legal advisor for assurance or guidance; a sign of increasing lack of confidence IMHO within today`s magistracy encouraged by Deputy Justices Clerks forever mindful of being stamped upon from above. The words and actions of HH Judge Simon James at Canterbury Crown Court earlier this week serve as a perfect example of how such offenders must be handled to preserve the dignity of court procedure.

WHAT KIND OF JUSTICE IS THIS?

Before retirement from the bench from time to time I posted on cases where I was in court the participants and all identifying features obscured of course.  Now I am an ordinary member of the public reading of cases countrywide but with, I hope, some knowledge that Joe Public lacks. For example Mr Public is not aware that currently there is no charge of "domestic violence" per se but the usual charge, common assault by beating, is highly aggravated if the offence could be construed as DV. Indeed the offence as such in certain instances can be used to exclude a possible offender from his.....it`s usually a male.....own property on the say so of a police officer without any interference from a court. Another aggravating circumstance which also applies to many crimes from common assault to murder is premeditation.  I`ll add another aggravating factor which paradoxically is sometimes argued as mitigating by ignorant solicitors; drunkenness. To top it all the vulnerability of the victim must also be considered. Now read the report on this case. 

Both as a retired magistrate and as a member of the public I find the sentence absolutely shocking. Even allowing for a guilty plea it seems the bench did not consider that not only did the combination of offences not reach the custody threshold, they warranted only a minimum community punishment. There will be no official looking into this matter. Nobody on that bench will be admonished. The legal advisor will carry on as previously and every reader of local media and the police officers involved will wonder just what kind of justice is available for scum like this offender. There should be an official complaint so that these J.P.s dispense justice according to society`s requirements even although these requirements are based on a tick box exercise called Sentencing Guidelines. They are all we have.