THE LEGALITY OF EMERGENCY BLUE LIGHTS AND SIRENS

Every now and then a little remarked upon case makes its electronic appearance in my office. And one such is this. It reminded me of the time when I had to make an emergency dash to hospital one morning with a relative in a critical condition on the back seat . I made a conscious decision to put my headlights on full beam and this was at a time many years ago before the advent of daylight running lights. I recollect even now carefully running at least two red lights sounding my horn as I did.

We might not be aware of this particular ambulance service but I doubt there is anyone who has not seen a private ambulance with its origin duly notated on its body panels speeding through town to or from an emergency. And we are all aware of the possibility eg of a driver over the limit pleading special reasons including medical emergency to evade disqualification. Perhaps the appeal against a decision based on an apparent variation of special reasons will be televised for us all to view.

BENCH TRAINING AND DEVELOPMENT COMMITTEE AND ITS ELECTION

The Magistracy is trumpeted as being a uniquely English institution allowing local justice to be dispensed by local people. With certain caveats I would agree. The Scottish and Irish versions are not quite the same. Individual benches must follow strict guidelines in performing some duties and are most locally idiosyncratic in others. Individual benches control their own rota, ideally placing mixed sex and ethnic benches where possible. Rota systems are very variable with some benches following outdated local procedures that should have gone out with ladies` compulsory hats and cigarette holders de rigueur in the retiring room whilst others perform this vital function using common sense and the latest soft ware.

One vital aspect of bench representation is the Bench Training and Development Committee. This can be appointed internally or have individuals elected annually. But here`s the b u t....if an elective committee only those attending the annual election meeting can vote. No postal or proxy voting is allowed. At my bench about one third of members turn up....of course not always the same third. To allow change in the voting system or to allow benches to alter their own voting procedures government would have to table a statutory instrument. Perhaps there is an organisation of magistrates which might consider lobbying for this extension of democracy or is that akin to asking the pot to call the kettle black?

CLIMB THE LADDER

Got to grips for the first time with the new format for search warrants.  If truth be told it seems a waste of time.  According to L/A the changes arise from the non compliance of various parties with the previous rules for same.  So, I ask myself, why not insist that all parties;  courts, J.P.s and police follow the previous rules to the letter.  Perhaps that is too simplistic so we spent an unnecessary amount of time combing through the minutiae of the language used.    

We were required to re-open a s.172  matter where the defendant had not had his not guilty by post presented at the last occasion.  As a result he had been  found guilty in absence.     On this occasion we discovered that the service from court to the defendant  included words to the effect that his presence in court was  not required!        So once again the matter was adjourned.  We were told later that there are hundreds of examples of such incompetence piling up owing in the main to there being so few administrative staff after many redundancies and many of those that remain being unfit for the posts they hold.   

The blame of course rests with the Justices Clerks and Chris Grayling.   But I would imagine that they are pre occupied contemplating their clamber up the ladder of civil service and political favour and promotion to be bothered about such minor details. 

NOT MORE LAW//APPLY EXISTING LAW

“Teachers, doctors and social workers who fail to report concerns over suspected cases of child abuse should face criminal charges, one of Britain’s most senior barristers has said”.  That is the opening paragraph quoting the words of Keir Starmer in today`s  Independent.  Keir Starmer was until very recently England`s top prosecutor.  It never ceases to surprise me how often people in powerful positions wait until they`ve moved on before making controversial policy statements.  

The three classes of professionals quoted, one would hope, have the personal and professional integrity in addition to any contract to blow the whistle when events appear to justify it.  I could be described as uninformed on this topic just as most of my fellow citizens are but it would seem that there is a legal framework  already in place which would justify those with responsibility directly or indirectly who shirk, ignore or abuse that responsibility being charged with a criminal offence.  If such terms were part of employment contracts for those who could conceivably bear some responsibility for any malpractice no additional legislation would be required.  In addition if Mr Starmer`s argument leads to legislation it will surely cause more problems than it would solve.  Ever more people would be brought within its net however innocent they were.  The Old Bailey trial which is headline news is an example of where existing legislation albeit applied after far too long a delay shows that further curbs on news media via a Royal Charter are totally unnecessary.  We have enough legislation to detect and punish paedophiles if it were applied efficiently and consistently.  What  we don`t need is a witch hunt.   

CENTRE OF LEGAL EXCELLENCE

Centre of excellence refers to a team, a shared facility or an entity that provides leadership, evangelization, best practices, research, support and/or training for a focus area. “Harley Street”  would be considered such a centre; indeed “London” by extrapolation could be considered a centre of excellence in medicine, associated technology and treatment. Thousands of foreigners annually certainly consider it so. In a similar fashion the term “Silicone Valley” has but one connotation built up over many years.  Add “Hollywood” or “Bollywood” and the meaning is clear.  And for legal expertise all one has to say is Inns of Court.

In this age of instant visual anywhere communication, a facility available only in science fiction when I was a student, face to face inter actions can be reduced, avoided or valued as the case might be.  Internet dating sites are arguably better introductory media than any previously devised but only as a prelude to two people actually being in such proximity to each other than true interchange of personality etc can be made.  The same can be said of any intimate conversation whether between individuals and  family members, friends, medical advisors or let it be said; lawyers.  In all these examples one`s soul is bared to another person and in my humble opinion that cannot be best undertaken on Skype.  The Lord Chief Justice thinks otherwise.

There are many excellent legal firms and chambers north of Watford but as a centre of excellence London with its high prices, extortionate business rents and high incomes per capita is as honey to a bee.  Indeed the major London legal firms have never had it so good.  Hundreds of years of history and human nature cannot be changed   by dictat.    It sounds too much that the great man might have had his ear bent by politicians. 

LIVE T.V. FROM COURT

Kicking and screaming the televising of court proceedings is progressing along  an inevitable path with typical British reluctance.  Almost live T.V. from the Court of Appeal is now a reality.  Caveats are in place so that only  advocates’ arguments, and the judges’ summing up, decision and (in criminal cases) sentencing remarks may be filmed. But this is a beginning. 

At my previous site on 31/01/2013 I blogged of Lord Judge`s concerns on this subject.   Before 2020 commenters will be looking back at the current restrictions and wonder what all the fuss was about as they tune in to their local crown court for full live coverage of the day`s proceedings.

INVESTIGATE POLICE FROM TOP AND BOTTOM OF THE PILE

Disillusionment with policing doesn`t hinge on the result of an investigation whether or not a cabinet minister referred to police in Downing Street as “plebs” and the resulting possibility that he was “fitted up”. Citizens going about their regular activities have their reactions and opinions based upon their own experiences and opinions of police interventions or non interventions.

Within a few days last week three reports served to illustrate much of what is thought to be wrong with police.

Early last week fourteen caravans and cars of a group of French gypsies parked in  the very limited car parking space reserved for staff at the Royal Gwent Hospital.  Eventually some days later  after causing much disruption they moved off.  My point today is to consider what would have happened if a single car driven by eg a hospital visitor had parked in a space reserved for a staff member.  It is not unlikely that after a very brief “due process” it would have been towed.     What kind of message does this non-intervention convey to the thousands of hospital visitors who strive to park legally and at some expense to visit their friends and family?  It brings authority and police into disrespect and deservedly so.

The second report has been four years in the making.  An innocent man was tasered without any due cause and had to undergo those four years waiting for justice to be done to those police officers who had disregarded all guidelines.  There will always be rotten apples in any barrel of police officers but the concern is the difficulty or lethargy in weeding them out.

And finally and perhaps the most offensive of inappropriate police activity; activity which has finally had some light shone upon it not least by the Magistrates` Association. It is the excessive offering of police cautions when offenders should be charged and tried in a court of law.  And when victims of crime are subject to what can only be described as harassment to accept a financial pay off to permit police to administer that caution and avoid the effort to take the case to court one can only despair.

Reform of police, badly overdue, must also be instigated at the bottom of the pile in tandem with investigating activities at the top.

WAR OF WORDS

With the closure programme of magistrates` courts not yet complete the marginal cases are now the subject of bitter dispute with HMCTS using all arguments available whether viable or not to justify closures and the running down of courts` listings. The recriminations being bandied about at Gloucester Magistrates` Courts are typical. This is not the first such case and will not be the last.

NO BLOG TODAY ;MY LUCK HAS GONE AWAY

They say that bad luck comes in threes. Very early this morning  some idiot in a new Porche drove into my wife`s Toyota; a tree felled in the storm crashed through my empty garage where the Toyota had been a short time before and I`m waiting patiently for number three.

A POOR REFLECTION ON THE MAGISTRATES` ASSOCIATION

The Magistrates` Association has had its A.G.M. and surprise, surprise, the world has not stopped spinning. But what was spun by media was one of the two motions for debate about which I posted on 8th October. The motion (“this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison,”) was lost.



I was not present at the meeting but judging by the video report fewer than 100 colleagues attended. Considering that J.P. chairmen in court should be rather capable public speakers the quality of oratory presented was rather poor. The content in general did not address the proposer`s theme that the interests and quality of justice must be the fundamental argument. The motion was defeated on a paltry show of hands and the debate lasted no more than 25 minutes.



This performance was one that did the M.A. and democracy in its widest terms no benefit. A tiny coterie of those entitled to be present was present. A vote amongst those produced a result which has as much significance as a vote for a white Christmas.



One would be hard put to find a clearer demonstration of how non representative the M.A. really is. This should be the last time such matters should be voted upon using the tools and tricks of the red baron union leaders of the 1970s. Future motions for debate should themselves be voted upon by the whole membership on line with a similar substantive vote thereafter.

J.P. RESIGNATIONS AT DUDLEY WOULD BE WELCOMED BY HMCTS

Some of the most powerful unions in the country are no longer those representing the interests of working people in the traditional sense that those millions are not pouring out of factories on a whistle at 5.00p.m. sweat on their brows cigarettes in mouth.  They are organisations like the British Medical Association, The Prison Officers` Association or the Police Federation.  They are tightly controlled and their members have benefitted from their ability to negotiate from strength.  The Magistrates` Association cannot be included in such a group because it represents volunteers and so operates on a shoestring budget each of its 20,000 or so members paying subs of less than £40.   In other respects it has no affinity with other professional unions or associations because it has no brief to represent its members against  employers because we are not employees although the attitude of Her Majesty`s Courts and Tribunal Service is that we are just that;  employees but merely unpaid. So generally speaking with few exceptions magistrates as a group are  not seen and not heard………….except in Dudley.

With the threatened closure of their court the bench has threatened en masse resignations if such action goes ahead. According to my information the Justice Ministry factored in a general J.P. resignation rate of up to 10% as a result of the implementation of court closures.  How many have actually resigned for that reason is unknown and it would be an interesting question for the M.A. to contemplate.  Whilst having great sympathy for my colleagues the paradox is that they would be rubbing their hands in the corridors of Petty France LONDON SW1 at the opportunity to parachute in yet another District Judge(MC) to yet another local justice area.   

Human Rights lawyers and others can huff and puff all day that our Supreme Court should have another tier outside these shores as a final Court of Appeal.  They should stay closer to home and consider the probability that the time is not long away when a single professional judge will be presiding over all matters, including of course trials,  in the magistrates` courts system and not just a minority of cases as is now the position.    What logic then to the continual argument that whatever developments in jurisprudence the totem of trial by jury must be retained……..except when the matter is summary only…………?  

WOULD NIQAB BE ACCEPTABLE ON THE BENCH?

The wearing of the niqab in public places has been a newsworthy subject in the last weeks. In particular there was the decision regarding a witness in a recent case at crown court. I have many female Muslim colleagues and only one have I seen wearing a hijab (Muslim headscarf). A very small minority of those female and apparently Muslim by name lawyers who appear before us wears a hijab. There is absolutely no question as to their right to do so. 

My point today is whether or not Appointment Committees have a policy if faced with an application by a woman who wears a niqab. Would wearing such on the bench be acceptable both to colleagues and to the court and all its users?

CRIMPING CRIMINAL LEGAL AID LEADS TO EMASCULATION OF CRIMINAL LAWYERS AND FEARS OF IMPOTENT JUSTICE

We have long been accustomed to film and T.V. series involving police. Indeed for those old enough Dixon of Dock Green was required viewing in the 1950s. Unsurprisingly antics within the legal profession have long been a theme of the written word and laterally the small screen with often fictional accounts of real mayhem suitably enveloped in a screenwriter’s narrative. As time has moved on reality television has become a staple part of the major channels` output and a major part of that has been the fly on the wall series on many aspects of policing from police patrol to police cell via umpteen scenarios from motorways to town centres.


From Rumpole to Kavanagh QC via Perry Mason and Judge John Deed we have had a surfeit of fictional legal expertise but until last year, as far as I know, reality T.V. had not reached inside a solicitor`s firm. Tuckers holds itself to be the largest legal aid firm in the country. Even without that accolade its turnover is such that the opinions of its senior partner must be worthy of a hearing. And for those who listen his opinion that the future for firms undertaking legally aided work is limited. There are now about 250 magistrates` courts after the decimation in numbers over the last three years. If Franklin Sinclair is right there will be a single firm offering services at most courts. My own bench comprising three former benches sits at two venues and two firms offer well over half the cases I`ve sat on.


Previous governments sanctioned the privatisation of energy companies, the denationalisation of train company BR, steel company British Steel and others including the National Probation Service, the Prison Service and as of last week Royal Mail by the current administration. I believe in capitalism. But in order for capitalism to work there must be strict laws against monopoly supply or attempts to procure such which is the natural target of capitalists. That is where this government is failing and it will fail in its grotesque attempt to emasculate the earnings of mostly poorly remunerated criminal lawyers. There is no doubt that the quality of representation for many defendants will be diminished and for those deemed to be ineligible for legal aid, time and costs for courts endeavouring to see justice done will increase in proportion to the complexity of what government might consider “simple cases”.


I have more faith in the accuracy of Franklin Sinclair`s predictions than any emanating from the Ministry of Justice.

COMMON SENSE STILL RULES; OK?

When I was appointed one of the requirements sought of applicants by the appointments committee was common sense. Seems simple enough but that requirement disappeared from application forms some many years ago. The reasoning behind the change, as I understood it from documents at that time, was that with an increasing number of BME candidates and a population ever more diverse owing to immigration from all quarters what was once “common” to the population in years previously could not be construed as “common” when the population`s origin base was increasingly varied. And the commonality of sense was supposedly encompassed by the thought processes of the politically correct little weasels hard at work in Whitehall. However all was not lost and my contempt for those who still try to influence us as did their colleagues then has not abated.



In the very simplistic of terms that common sense of a bench was upheld by the High Court earlier this month in a case of drink driving. The full report is here but in short the appellant`s case was thrown out by Mrs Justice Cox who ruled that the circumstantial evidence was compelling enough for the lay bench to have found the charge proved beyond a reasonable doubt. She endorsed the decision the bench had reached; a decision that could be said to have been based upon a common sense weighing of the evidence.

DIFFERENT ROUTE BUT SAME RESULT

“Picton” has laid out a structure by which applications for adjournments should be examined. More often than not my experience is that an application to adjourn by whichever side is opposed even if that opposition appears to be formulaic.


Not so long ago a s.4 charge was listed against a defendant based upon the statements of the only two prosecution witnesses; the complainants. One of them had a verified and very acceptable reason for her non appearance with only minimal notice. On the basis that without her evidence the prosecution would struggle to win their case an application to adjourn was made. Defence lawyer was quickly on his feet asking us to consider it a joint application on the grounds that his client would be prejudiced by that complainant`s not being available for cross examination. We agreed the adjournment wondering what was in the absentee`s statement to bring about such a decision.


Sitting as a magistrate is rarely if ever a formulaic event even in the most mundane and repetitive of situations.

POLICE IN CONFUSION

Police misconduct or allegations thereof is once again headline news so two recent contrasting or complementary reports depending on one`s interpretation make interesting reading.

Devon and Cornwall Police are surprised at an increased number of complaints whilst their colleagues in North Yorkshire are concerned that no police officer found guilty of misconduct over the last five years has been exonerated on appeal.

No opinion from me on this except to say that our whole system of policing seems to be on the verge of profound change.

JUSTICE BABY AND JUSTICE BATHWATER

Everyone involved in the administration of our magistrates` courts cannot but be unaware of the gross inefficiency in their performance. Of course trial and sentencing statistics are manipulated to undermine criticism and so enlarge the fiefdoms of those in Whitehall continually considering new forms of “consolidation” or “rationalisation” of HMCTS. Justices of the Peace and their hundreds of thousands of annually wasted man hours are nothing more than the collateral damage resulting.


I was recently informed by the highest authority that every time a magistrate cancels a sitting this information is recorded and passed on to HMCTS. One could remark that such an action is not unreasonable and it would be churlish to disagree. But…..and it`s a big But……when we J.P.s are cancelled that statistic goes unrecorded however short the notice of cancellation might be. Which leads me to relate a simple oft repeated experience.


Shortly after I transferred this blog to its current site here, I had scheduled a rare afternoon sitting; rare (for me) because I offer myself for whole days. However I duly appeared in the retiring room at 1.45p.m. to meet my colleagues who had arrived shortly before me. At 1.55p.m. the L/A arrived to tell us that the single pending matter was a trial, a civil case brought by an individual against the borough. The problem was that the applicant had not appeared nor had his representative. She left to make more inquiries after looking through her court file and telling us that the appropriate paperwork for the current listing had not been sent to said applicant nor his solicitor. Half an hour later she returned to tell us that the missing lawyer could not remember whether or not he had been in court on the previous listing when the adjourned date had been announced. Thus we had another ineffective trial owing 100% to the non functioning of our court`s administrators. But more to the point if the papers had been read the day previously in preparation (as they should have been) the omission would or should have been noticed and the unnecessary attendance of the three of us could have been prevented. Even if administrative delay had meant that the preparation had been the same morning our appearances could have been cancelled by three phone calls.


That is the reality of the manner in which HMCTS treats the backbone of a unique part of the justice system; the part which wraps up from first appearance to conclusion about 95% of all criminal activity brought to book in England & Wales. That is the justice baby which is being flushed down the justice drain along with the bathwater.

ALL 15% OF YOU PAYS YOUR MONEY AND YOU GETS YOUR CHOICE OF POLICE AND CRIME COMMISSIONER

It is almost two years since the election of the first Police and Crime Commissioners for England and Wales. There was considerable controversy over this policy but it was driven through by the Coalition in the face of much reasoned opposition. Forecasts of public inertia were discounted only to be proved correct by a turn out to vote of only 15% of those so entitled. Since then there seems to have been continuing media interest in the goings on of these public servants, their associates and their cost to the public purse. Currently there are investigations into the affairs of the P.C.C.s in Lancashire, Durham and North Wales. A first report by the well respected Home Affairs Committee of the House of Commons on the activities of P.C.Cs was published earlier this year in May. It makes for an interesting if somewhat lengthy read.

CURFEWS AND CHANGING THEIR TERMS. IT IS A DECISION FOR THE COURT; NOT THE POLICE

The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.



Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.


Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc.



Chris Grayling, the tough man at the Ministry after kindly old Kenneth Clarke, usually wastes no opportunity to flex his judicial authority. His comments subsequent to a decision at Truro Magistrates` Court   in April should be noted as they are likely to be acted upon before 2015. Meantime the scenario has been enacted again at Bath Magistrates` Court. I will not comment on the decision; only those present heard all the argument but once again the police show their delight in condemning the court`s decision. This trend by police to forever criticise magistrates for their sentencing does nothing to enhance their image. It serves only to divert attention from the very real problems affecting them nationally. From proven corruption at the highest levels to actions not far from being politically motivated to allegations that misconduct is brushed under the carpet where possible, to continuing mistrust by ethnic minorities it behoves them to be a bit more introspective and to cease blaming magistrates for exercising their judgement. It would be a sad day if police controlled legal outcomes as perhaps some would wish them to be able to do.   

GUIDANCE ON JUDICIAL CONDUCT FOR J.P.s

The other day I was reading the blog of a criminal lawyer who had received comments from a man who felt he had been short changed by the presiding magistrate during a recent court exchange. It would not be an understatement to consider that rules applying to the judiciary in general and the magistracy in particular must be the most constraining ever devised for a body of professionals. An immediate response would be that such people who are often dealing with the fine tuning of the English language require the finest of fine tuning in documents designed to ensure that their behaviour and actions both inside and outside the courtroom are beyond any reasoned criticism. On the other hand the more that is specified the wider the net into which people can be caught for reasoned or unreasonable criticism.

Be that as it may these documents are what we as Justices of the Peace must live with. They are available here and here.