MAGISTERIAL INNOVATIONS OR DIVERSION TACTICS FOR A BELEAGUERED P.M.

It`s been quite a week for the topic of magistrates and the magistracy.  For the last decade or to be more precise since 2010 this government of Tories with a contribution from the Lib Dems, before its leader decided that one million $ per annum from Facebook was a more worthy job than politics, has steadily sold off half the country`s magistrates courts to a present level of 150. It has overseen the deliberate reduction in the number of magistrates from 29,270 in 2009/10 to 12,651 currently.  Perhaps the thinking was that with that 50% reduction in court buildings a similar reduction in magistrates would be commensurate. Of course the MOJ and the cabinet arse lickers who approved this decision forgot to consider that the numbers of offenders  would not co-operate by reducing by half the numbers of offences committed. That same disjointed thinking was not confined to the legal sector. Highways for England proudly announced during this same decade that by converting  the hard shoulder of motorways into a fourth lane more traffic could be accommodated at minimum cost in pounds and travel time.  They overlooked the effect of inefficient control systems to the ultimate cost of 63 fatalities between 2015 and 2019. Personally twice I have had a complete power cut out, electrics, engine, brakes and steering on the A1 M at 70MPH. It is a frightening experience trying to coast safely from the third lane to a safe stop even on the dedicated hard shoulder. 

But I digress.  In a world where philosophy had at least a toe hold on politics the concept of justice would be recognised as a pillar of democracy without which politics descends into divisiveness and barbarism. Although far removed from  modern practice the ancient Greeks of Athens had developed a basic justice system where argument enabled the displacement of vendetta for many who felt subject to grievance.  When the court closure programme was well underway we were told that nobody would be more than one hours travel time by public transport from their nearest remaining court. This was criticised almost immediately as a matter of desire over reason.  Once again those myopic civil servants conveniently overlooked that a bus, tram, train or tube cannot be summoned like an Uber.  In rural areas of Wales and the north and west of England it is fact that for some who attend court the travel time is twice that estimated. But the government did and does view court costs as part of a balance sheet. The notion that justice is there to serve the population as does that holy grail the NHS has either escaped them or has been discarded with intent. The announcement that magistrates courts would have sentencing powers doubled to 12 months custody has sent spasms of uncontrollable hysterics from many of the legal fraternity. Twenty years ago Sir Robin Auld, an appeal court judge, published his report on the future of the magistracy. He recommended a unified three-tier criminal court to replace the separate crown court and magistrates courts. Under the Auld proposals, the defendant would lose the right to decide where the case was tried and the decision would be taken by magistrates. To some extent that is included in the current plan. His suggestion of the creation of a third tier court where a judge and two magistrates would constitute the bench as is the composition of the crown court acting as an appeal court was dismissed by many of the judiciary. As now lawyers in general were none too happy and the report was shelved. The reason presented by the MOJ for increased sentencing powers is supposedly that that innovation will speed up the judicial process by taking some of the backlog from crown courts where that backlog is estimated at 60,000.  An estimated 400,000 cases are outstanding at magistrates courts. Those involved in the courts system are well aware that much of the backlog was caused by the MOJ setting limits on the numbers of days judges could sit and was a self inflicted wound.  There is considerable argument that the proposed sentencing changes will do little to hurry things along. Currently fewer than 4% of cases at magistrates courts result in an immediate custodial sentence. In 2020, magistrates’ courts in England and Wales received 1.13 million cases and disposed of 1.04 million. Of the cases received 74% were for summary offences or breaches which can be resolved in a magistrates’ court without the need for a trial. Most of the remaining cases (258,000 or 23%) were triable-either-way, meaning they could proceed to trial at the Crown court. The conviction rate after trial for either way offences at magistrates courts is 97% but 82% at crown court.  These numbers show clearly why so many lawyers advise their clients to elect trial by jury assuming they  can afford to pay the fees required; the miserable legal aid fees (another reason for the backlog with so many defendants self representing) notwithstanding.  

With regard to the other announcement this week of a recruitment drive to appoint 4,000 magistrates to fill the enormous gap in current numbers this is another belated effort to speed the trial process. The statistics on magistrates` numbers are published regularly. The retirement of thousands over the last decade could have been mitigated if there had been some sensible thinking at Petty France as opposed to cost cutting.  If I were cynical I would suggest that the timing of this drive is just another effort to distract from the woes facing Boris Johnson.  Training of magistrates is carried out mainly by legal clerks.  Dozens if not hundreds of those people would have to be seconded from their court duties or sought from the private sector to induct the new appointees.  It would if carried through mean that a quarter to a third of all magistrates were newbies; rather an unwieldy ratio. With the emphasis in the MOJ press release on that convulsive term "representative" there is no doubt in my opinion that we will have appointments committees instructed to consider BAME candidates as a priority although of course that will never be admitted on pain of death or worse. 

With so many legal big wigs commenting this blogger can only highlight a subject such as this. To sum up; the Magistrates Association is blowing its trumpet over this and many (most) lawyers are moaning and groaning. Unsurprisingly The Howard League is jumping up and down and individual magistrates are continuing their retreat from public comment as usual.  And the latest incumbent at Petty France looks forward to a change of address. 

JURIES AND JURORS

Many dozens if not hundreds of PhDs have been granted and millions of words written on the subject of juries and all that surrounds that ancient concept of a suspected offender`s guilt  being determined by his/her peers.  The whole process once the 12 (15 in Scotland) good men (and women) and true have been escorted to the jury room has been shrouded in secrecy on pain of custodial sentence for those who transgress.  When juries were assembled from a restricted class within the population it could be argued that the variations in knowledge, awareness, education and even religion were minimal.  With the obstacles to jurors` requirements having today been reduced to a bare minimum the aforementioned variations have increased substantially. It is therefore not unrealistic for some jury members to have more knowledge than their fellows of evidence brought before the court.  As an aside when I was active I listened to a defendant explain, as part of his defence, supposed facts about his eye condition at a relevant time during the alleged offence. This went unrebutted by the CPS under cross examination. As an experienced eye care practitioner I knew immediately that he was lying. When considering our verdict  in the retiring room I informed my colleagues of my opinion on his eye condition argument. He was proved guilty.  

My argument then and now is that I contributed to justice being done.  The case for open investigation into how juries are functioning in the age of mass immigration and social media without restraint is needed now more than ever.  Indeed only last week a juror was given a suspended custodial sentence for investigating on the internet certain evidence presented in court. And of course as per my comprehensive post of a week ago on the Colston four who were acquitted of criminal damage, the current establishment view of juries that they and their workings are sacrosanct is as logic based as flat earthers` pre Copernican papacy driven articles of faith. 

I have no doubt that the refusal to investigate the happenings within jury rooms will be overturned if only to refute the arguments of a near future authoritarian regime which proposes to impose judge only trials.  And so this self styled Prometheus looks forward to enjoying lawyers` apoplectic reactions to today`s news that magistrates courts are to have powers to double their current maximum sentence of six months custody for certain limited offences.     

COLSTON STATUE VERDICT//PREDICTIVE OF PROBLEMS YET TO COME

The trial and acquittal of the Colston 4 seems to have divided opinion of commenters along cultural lines; woke-v-conservative: self styled legal eagles who seem to value the letter of the law against those legal observers who value the spirit of that law when it comes into conflict with the letter. 

The action which precipitated the whole sorry affair was the death of a black man murdered by police in the state of Minnesota USA.  Apparently left leaning young white radicals cloaked in the shadow of some home grown black activists who themselves adopted the history of black slavery in America to their own political ends took it upon themselves to cause damage to the statue of an infamous slave trader of the 17th century. This trial could have been conducted in the magistrates court but the defendants opted for jury trial as was of course their right the charge being an either way matter. Whether or not such choice should remain in English law is another (contentious) matter.  The essence of the case rests in the legal definition of criminal damage.

Criminal Damage Act 1971. Section 1(1) provides:

“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
To prove the charge the CPS must succeed in showing:-

The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.

The defendants` defence was based on their having a "lawful excuse" for their actions. For the prosecution to make its case it had to demonstrate that the defence had not succeeded.  I have copied below the judge`s legal directions to the jury. 

LEGAL DIRECTIONS – JUDGE’S HANDOUT

My jobs are:-
To explain to you the law which applies in this case.
I am responsible for decisions about what legal rules you have to follow.
All of my directions about the law, set out in this document, are compulsory for you to follow – you have no choice.  If I get them wrong they can be corrected by an appeal.
To remind you of the core parts of the evidence to help you remember what witnesses have said, but you are the assessors of the evidence, not me.  I will do that after you have heard the closing speeches of the advocates in the case.

Your jobs –
Appoint someone to chair your discussions.  Choose someone in any way you want.  That person should ensure everyone is given the opportunity of expressing their views and everyone listens respectfully to each other.  The person you choose to chair your discussions doesn’t have any special status – you are all equally important – you each have one vote.  When you have made up your minds one of you will need to act as your spokesperson and answer a series of questions from the court clerk to tell us what verdicts you have reached.
Make the necessary decisions about the facts of this case, as a group of the 12 of you together, in order to come to your agreed verdicts of either ‘guilty’ or ‘not guilty’.  Here are some guidelines about how to approach your task
Assess what witnesses have said and assess the other material placed before you so as to decide what facts have been proved.
You are the only judges of the evidence. 
Throughout your discussions as a jury you have to decide on the facts of the case.  That’s not for me, nor anyone else.
Respect each others’ opinions and value the different viewpoints you each bring to the case.
Be fair and give everyone a chance to speak.
It is okay to change your mind.
Listen to one another. 
Do not be afraid to speak up and express your views
Do not let yourself be pressured into changing your opinion, and do not pressure anyone else.
Do not rush into a verdict to save time.  Everyone involved in this case deserves your attention and thoughtful consideration.
Do not under any circumstances make your own inquiries about anything to do with the case (as explained in the handout “Your Legal Responsibilities as a Juror” that you received on the first day of the trial).
If someone is not following the instructions in this document, or refuses to engage, or relies on other information outside of the evidence presented to you then you must let me know by sending me a note straight away.
You can vote on where you have all got to in your views at any stage of your discussions.
You can take votes by raising your hands or by writing it down – that is up to you.
Your verdicts have to be unanimous: 12-0 decisions.  (If the time were to come when I could accept any verdict from you involving fewer votes than 12 in favour of it you must wait until I call you back into court and tell you about it.)

Who has the job of proving the facts of the case?
The Prosecution has brought the case to court, so the Prosecution has the burden of proving its allegations.
A Defendant does not have to prove anything or disprove anything.
How is something ‘proved’?
Something is proved if, and only if, you are sure about it in the light of all of the evidence you have heard on that topic.
If, in the light of all of the evidence on that topic, you are not sure about it, then it hasn’t been proved.

Separate verdicts
There are four Defendants and so there are four verdicts of ‘guilty’ or ‘not guilty’ you have to reach. 
You must examine the evidence in relation to each Defendant – one by one, reaching a separate verdict on each, based upon your analysis of the evidence against each of them. 
Your verdicts may well all be the same, but they might be different.   
It all depends on your view of the evidence against each.
What is it that has to be proved by the Prosecution for ‘Criminal Damage’?
The indictment charges contain a number of separate ingredients, all of which the Prosecution must prove before you can convict a Defendant. 

The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-
1)         D, jointly and together with others
2)         damaged property;
3)         the property belonged to another;
4)         D intended to damage it, or was reckless as to whether it would be  damaged; and
5)         D did not have a lawful excuse for damaging it.
We are going to examine each of those five ingredients in a little more detail:-
The prosecution alleges that the Defendants acted “jointly and together with others”.
The law is that a person may be guilty of a crime either by carrying it out themselves, or, if they intended that the crime should be committed, by deliberately assisting or encouraging or causing it to be committed, even if it is actually carried out by others. 
A Defendant in this case may therefore be guilty, even if they did not personally cause damage to the statue, if they deliberately assisted/encouraged/caused others to damage it by providing ropes or by attaching ropes to the statue, intending to assist others to intentionally or recklessly cause damage to the statue.
Property is “damaged” if it is temporarily or permanently physically harmed.  Whether you are sure there was physical harm to the statue or not (which is a question of fact and degree) is a question for you to decide on the evidence which you have heard. 
Property is to be treated as “belonging” to those who have custody or control of it and to those who have any proprietary right or interest in it.  The Prosecution case is that the statue was maintained by Bristol City Council and held in trust on behalf of the people of Bristol.  The Defendants have not suggested that the statue belonged exclusively to one or more of them – they do not dispute that it “belonged to another”.     
“Intending to damage the statue, or being reckless as to whether it would be damaged.”  ‘Intending’ is a straightforward word which needs no further definition.         
D would have acted ‘recklessly’ as to whether the statue was damaged if D was aware of a risk that damage would occur and it was, in the circumstances known to D, unreasonable to take the risk.  If D was unaware of a risk that damage would occur then D could not have been reckless.          

It is for the Prosecution to disprove that a Defendant had a “lawful excuse” for damaging someone else’s property.
In this case it is being argued that a D had one (or more) lawful excuses. 
You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.
The use of reasonable force to prevent a crime.          
 

A person is to be treated as having a lawful excuse if:-
(1)  they used such force as was reasonable in the circumstances as they believed  them to be      
(2)  in the prevention of a crime.
(3) When they gave evidence you may consider that the Ds were saying they used force to prevent the following crimes:
the public display of indecent matter
the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.
I will explain a little more about each of those three parts of this lawful excuse which is relied upon by the Defendants, but I will do so in reverse order: (3), (2) & then (1), because that will make it easier to understand.
May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?
There is a criminal offence of displaying indecent matter publicly.      
May D have genuinely/honestly believed Bristol City Council was displaying ‘indecent matter’ in public with this statue on the Centre?      
The definition of ‘indecent’ in the Oxford English Dictionary includes: “unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognised standards of propriety and delicacy; highly indelicate…”
There is a criminal offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.      
May D have genuinely/honestly believed that Bristol City Council was committing that crime by displaying an abusive statue, where one or more people were likely to have been caused distress by it? 
The Defence argue that they genuinely/honestly believed that a factual situation existed which amounts to these criminal offences being committed by the Council.    
The Prosecution argues that no criminal offence was being committed at all by the display of this statue – it was neither ‘indecent’ nor ‘abusive’, and you can be sure that the Ds did not genuinely/honestly believe a factual situation existed which would have amounted to these crimes. 
If you decide that D may have genuinely/honestly believed that a factual situation existed which amounts to these criminal offences, you need to go on to examine the following. 

(2)  Were D’s actions carried out in order to prevent what they honestly/genuinely (even if mistakenly) believed to be a crime?      
The Defendants argue that that is what they were doing – their actions were done in order to prevent one or both of those crimes, which they honestly/genuinely believed to be happening.       
The Prosecution argues that they were not trying to achieve that, but instead were trying to force their own agenda because they were frustrated by the lack of progress in the debate about the statue. 
Did D use ‘reasonable’ force to prevent a crime, in the circumstances as they believed them to be?       
It is for you to decide what force was reasonable by your own standards.  It is not what D thinks was reasonable – it’s what you think was reasonable.    
However, the ‘circumstances’ in which force was used are the circumstances as D believed them to be.         
If D only did what they honestly and instinctively thought was necessary to prevent a crime, then that would be strong evidence that reasonable action was taken.         
In the case of the first 3 Defendants, did each of them honestly and instinctively think it was necessary to play a part in pulling down the statue to prevent a crime?     
In the case of the fourth Defendant, did he honestly and instinctively think it was necessary to help roll the statue all the way to Pero’s bridge to prevent a crime?               
The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,
it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.
The Defendants argue that their actions were reasonable because any such processes had failed.
(ii)   Belief in the consent of the owners        
A person is to be treated as having a lawful excuse if he/she honestly believed,
at the time of the acts alleged to constitute the offence,            
that those who the person honestly believed were entitled to consent to the damage,            
would have consented to it,       
if they had known of the damage and its circumstances.          
(It does not matter if the person’s beliefs were justified or not, as long as they were honestly held.)             
Neither Milo Ponsford nor Sage Willoughby have presented evidence that could form the basis of an argument that they had this lawful excuse.    
Rhian Graham and Jake Skuse have given evidence to the effect that they had this lawful excuse for their actions, saying that on 7 June 2020 they honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done.        
The Prosecution argues that there is no way that they could possibly have honestly believed that the people of Bristol would have consented to what they did because they didn’t take any steps to find out.             
If you consider that this lawful excuse applied, or may have applied, in the case of either of those two Defendants, then the Prosecution would have failed to disprove it and you will find that Defendant ‘not guilty’.
(iii)   The final lawful excuse you have to consider concerns all four defendants (and, again, the Prosecution has the burden of disproving it).  However, I am going to deal with it under a separate bold heading:-  
Would convicting D be a disproportionate interference with his/her rights?
Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have.  
Two of those rights are:
the right to freedom of thought and conscience and to manifest one’s beliefs;
the right to freedom of expression, including to hold opinions and impart ideas.
These rights protect not only beliefs, such as anti-racism, and speech itself, but also actions associated with protest.  Even where those actions have more than a minimal impact on the rights of other people, they need not result in a conviction.  It is all a matter of fact and degree.  
Limitations on these rights are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others.
It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.
The Ds will argue that even if you reject all of their other arguments, if you were to convict them it would be a disproportionate interference with them exercising those rights.
You will therefore have to decide if the Prosecution made you sure that convicting them of criminal damage would be a proportionate interference with them exercising those rights.     
Even if you are sure that all the other elements of the crime of criminal damage are made out and that no other lawful excuse applies, you must go on to consider whether it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions.    
Another way of looking at that question is to ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D.
It is your task to make an assessment of where the balance lies, having regard to all the facts in the case.
In considering whether a conviction would be disproportionate for any D, the question for you is not whether you agree with their actions or their aims, nor is it about sympathy or whether you think they are likeable.  Everyone in the country has these rights and we each enjoy identical protection of those rights.  This means that people with whom we fundamentally disagree have exactly the same protection as those with whom we agree.
When examining the facts of this case and deciding whether you are sure it would be proportionate to convict a Defendant, you may wish to consider the following factors.  The list is not intended to be exhaustive and you are not obliged to consider any individual factor if you do not consider it to be helpful in reaching your verdict.  It is also up to you what weight to give the factors you consider helpful.
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was  directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety. 
‘No comment’ interviews
The words of the police ‘caution’ are: “You do not have to say anything.            
But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
As it says, it is a suspect’s right not to answer police questions, but there is also a warning that there might be damaging consequences if they do not mention something when questioned which they later rely on in court. 
Two of the accused – Milo Ponsford and Jake Skuse, declined to answer any police questions.  
When the Prosecution asked Milo Ponsford and Jake Skuse why, they both told you they acted on the basis of advice from a Solicitor’s representative.  
They each acknowledged it was their own choice to decide whether or not to answer the police questions and face any consequences from a decision not to.  They do not accept that the real reason behind their decisions not to answer questions was because they had not yet had time to think up answers which might provide them with the basis of a defence that they might be able to rely upon if they were charged with criminal damage.
They have now given you detailed accounts from the witness box.  I will summarise their evidence in due course, but they were both asked: whether they had any lawful excuse for damaging it.  Both replied “no comment”.  They have now put forward accounts from the witness box, during the course of which they have said they did have lawful excuses for what they did.
Could they have reasonably been expected to set out what lawful excuses they now rely upon to the police when asked about the allegation in their interviews back in 2020?  Why didn’t they answer the questions with the answers they have now given to you in court? 
You must consider their explanations for that.  They have each told you the real reason was because they took the advice they were given by a legal adviser.  If you accept that may have been the real reason behind their decision to remain silent, then take this matter no further, don’t hold it against them.
However, if you are sure that the real reason for keeping silent was that that Defendant didn’t have an answer to those questions and was giving himself time to make-up answers later to support a defence to the allegation, then you are entitled to hold their silence at the police station against them and treat the things they have said from the witness box as having less weight. 
You should only reach that conclusion if the prosecution case was so strong as to call for an answer and you think it is fair and proper to do so.  You must not convict that defendant wholly, or mainly, on the basis of this point – it is just one of the factors which may feature in your assessment of all of the evidence in the case.
Sage Willoughby and Rhian Graham, on the other hand, answered many of the police questions and explained what motivated their actions.  Do not hold it against them that they did not answer some police questions, because those questions have no bearing upon your assessment of whether they are guilty or whether any of the others are guilty.
Expert evidence
In this case you have heard the evidence of Professor Olusoga, who has been called on behalf of Sage Willoughby.  Expert evidence is permitted in a criminal trial to provide you with information and opinion, within the witnesses expertise, which is likely to be outside your knowledge.  You should look at it in its proper perspective – it is just part of the evidence as a whole to which you may have regard on one particular aspect of the case, namely if you think it helps you assess the question of whether displaying a monument of Edward Colston may be indecent or abusive.  You are entitled to have regard to the historical information he has researched and interpreted when coming to your own conclusions.  Bear in mind, however, that if, having given the matter careful consideration, you do not accept any parts of his evidence, or do not think it helps you answer the questions you have to answer, then you do not have to act upon it.  It is for you to decide what evidence you consider relevant, what evidence you accept and what evidence you reject.
The relevance of the first three Defendants having no previous convictions
You should consider this in 2 different ways:
a)    It is relevant to your assessment of their credibility as witnesses.  Someone with previous criminal convictions might be considered less likely to be a truthful witness.  Because they have not got criminal records you should take that into account in considering whether they are therefore more likely to have been truthful to you.
b)    Would someone who has reached their ages without a criminal record have started offending now?  It is relevant to your assessment of them because it may support the argument that they are not the sort of people who have a tendency to be law breakers. 
These are not defences, because obviously no one would otherwise ever be convicted for a first time if they could rely on these two points as an answer to an allegation.  You must take them into account, but it is for you to decide how much weight you give them. 
Comments
The Prosecution and Defence barristers will make comments to you in their speeches, seeking to convince you of the strengths of elements in their cases and weaknesses in the other side’s case. 
If those comments and arguments help you then please take them into account in your own thinking about the evidence, but you have to decide this case on the basis of your assessment of the evidence and not on the basis of anyone else’s. 
It is possible that you may sense that I have a view about some parts of the evidence.  I do not intend to influence your views one way or the other and I don’t intend to do so in this summing-up. You alone are the judges of the facts.
Evidence
What I will do is to pick out what I think may be the most useful and relevant parts of my notes to remind you of the evidence.
Because you are the judges of the evidence, not me, take no notice of any things I remind you about which you think are irrelevant.
Equally, if you remember things which I do not mention, pay attention to what you recall.
Final practical points
Don’t suffer in silence – if you need to be reminded of any of the evidence that has been given (remembering there cannot be any further evidence presented to you), or you need me to explain some part of the law more clearly, just send me a note and I will do what I can to help. 
If some of you need the occasional break for a smoke then arrangements will be made for that.
Take all your papers with you when you go out to decide on your verdicts.  There is no time pressure on you.  If you are still discussing the evidence at around 4:30 and have not reached your verdicts I will have you back into court then and send you home overnight with some further legal directions.  We will then resume again the next morning.

We don`t know which of the available defences to the charge persuaded the jury to acquit.  To this layman the essence of this case is the extent to which a political opinion on the history of of slavery and the representation of that history by the damaged statue succeeded in the legal definitions as outlined by the judge and therefore overcame the barriers erected by the letters of the law. In this respect the spirit of our law that the guilty are punished and the innocent are acquitted has been to say the least somewhat compromised.  Taking that argument one logical step forward what other alleged criminal activity could be undertaken in similar fashion and yet the defendant be found not guilty if a historian is allowed to justify actions based upon events of three hundred years ago? It would appear that those defendants assumed a moral position on the righteousness of their cause of which  we mere mortals are oblivious.  Such fanatics have appeared infrequently justifying their law breaking by similar reasoning but that reasoning has with few exceptions been based on current contemporaneous events.  Delving into events 300 years in the past for their verdict the jury has demonstrated that a dangerous thinking process has infiltrated the very basis of our society. In another recent controversial case recently those who were charged with the blockage of major roads at the costs of £millions were exonerated by the Supreme Court by having a lawful excuse as defined by human rights laws  Ziegler ruling.  The law in this case has lost all meaning. Those who use public demonstrations of outrage are offered pseudo protection by a public in the form of a jury which is afraid of expressing opposition when legislation is expressly designed to draw the line between what is lawful and what is not. 

I would opine that the majority of legal opinion is in agreement with the outcome of this case.  There is almost a universal cry of civil liberty having been preserved against the tyranny of the state.  But the price is a perversion of the law.  The time will come when a right wing activist before the courts will seek to use a similar argument. Then we will see the folly of the liberal legal establishment`s embracing this verdict like it were manna from their liberal progressive heaven. 

For his/her view of these events the "Secret Barrister" published a lengthy opinion on Twitter which I have copied below.

1. What happened in this case?
On 7 June 2020, in the course of a Black Lives Matter protest in Bristol, a monument of 17th-century slave trader Edward Colston was pulled down and thrown into the harbourside. Consequently, four of those involved, Milo Ponsford, Sage Willoughby, Rhian Graham and Jake Skuse were charged with criminal damage.
On 5 January 2022, following a trial at Bristol Crown Court, all four were found not guilty by the jury.
 
2.   What is criminal damage?
Criminal damage is defined in the nattily-titled Criminal Damage Act 1971. Section 1(1) provides:
“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
In a criminal Crown Court trial, the prosecution has to prove the case, by making a jury sure of guilt (what used to be formulated as “beyond reasonable doubt”). A defendant does not have to prove their innocence. For a charge of criminal damage therefore, the prosecution has to prove the following:
The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.
 
3. I thought I read that the defendants all admitted criminal damage?
The defendants all admitted their part in pulling down the statue. It was accepted that Ms Graham and Mr Ponsford had brought ropes to the scene, that Mr Willoughby had climbed the statue to pass ropes around its neck and that Mr Skuse had encouraged the crowd to roll the statue into the harbour and into the water. The prosecution case was that these four defendants were acting together and jointly with others, meaning that the prosecution didn’t have to prove that each defendant personally caused damage to the statue. It was enough if a defendant deliberately assisted or encouraged others to damage it, say by providing ropes to be attached to the statue.
But it is wrong to say – as has been widely misreported – that the Defendants admitted criminal damage. They did not. Looking at our checklist above, while there was no dispute that the statue belonged to another (Bristol City Council held the statue in trust on behalf of the people of Bristol), the other elements of the offence were challenged.
Three of the defendants argued that the Colston statue had in fact not been damaged, defined as “temporarily or permanently physically harmed”; that its value had increased as a result of it having been pulled down, salvaged and restored in a museum. It follows that they did not accept intending to damage the statue or being reckless as to whether it was damaged.
But the key issue, raised by all defendants, relates to that phrase “without lawful excuse”. Because the case for all defendants was that, even if damage had been caused, it was not unlawful. And this is where things get interesting.
 
4. What is a lawful excuse for damaging property?
Section 5 of the Criminal Damage Act 1971 provides examples of what might amount to a ‘lawful excuse’. But it is not exhaustive. There are also a number of cases from the High Court and Court of Appeal which clarify what might and might not amount to a lawful excuse. For instance, damaging property because you believe you are carrying out God’s will is not a lawful excuse. Nor is damaging a wheel clamp after you’ve parked your car in a private car park with a clear warning that your car will be clamped.
In this case, the following lawful excuses were raised, and the judge agreed that they should be left for the jury to decide:
 
i. Reasonable force was used to prevent a crime
It is well-established, both in our common law and in legislation (section 3(1) of the Criminal Law Act 1967, as you ask) that a person is entitled to use reasonable force to prevent the commission of a crime.
All defendants argued that the public display by the council of the Edward Colson statue was itself a crime, or potentially two crimes. First, it was said that displaying the statue amounted to an offence of displaying indecent material contrary to section 1 of the Indecent Displays (Control) Act 1981.
Second, it was said that there was an offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it, contrary to section 5 of the Public Order Act 1986.
It was this element of the case that resulted in expert evidence being given by historian Professor David Olusoga, who detailed the history of Edward Colston, the role that the Royal African Company, of which Colston was CEO, played in enslaving and shipping African people, and of the violence and brutality inflicted by the RAC upon tens of thousands of enslaved people. It was argued by the defence that the public display of a memorial to Colston was therefore both indecent and abusive, such as to render it criminal under the two Acts cited above.
Now when considering this defence, there were three key questions for the jury:
Did the defendants honestly believe that a crime was being committed? (Note that the question is not whether a crime had been committed by displaying the statue, but whether the defendants honestly believed that a crime was being committed)
Were the defendants’ actions in order to prevent one or both of those crimes?
If so, did the defendants’ actions amount to the use of reasonable force, in the circumstances as the defendants perceived them to be?
The prosecution case was ‘no’ to each of these questions. And, as mentioned previously (and as I’ll repeat throughout), the prosecution has the burden of disproving this defence.
 
ii. Owners’ consent
 The second ‘lawful excuse’, which set out in section 5 of the Criminal Damage Act 1971, was raised by two of the defendants, who said that they honestly believed that the statue was owned by the people of Bristol, and that had the people of Bristol known of the circumstances, they would have consented to what was done.
The prosecution case was that the defendants had no such belief, and had taken no steps to consult the people of Bristol.
Again, the burden is on the prosecution to disprove the defence. If there’s any doubt, the defendants are entitled to the benefit. That is the cornerstone of our justice system.
 5. So if the jury were sure that damage was caused and that there was no lawful excuse, they had to convict the defendants, right?
 Not quite. If the jury rejected all of the other defence arguments, there was one final issue for the jury to decide. And, to put it in its simplest terms, it relates to the right to freedom of thought and conscience and the right to freedom of expression.
These rights, the courts have long held, protect not only beliefs – such as anti-racism – but actions associated with protest. Because the alleged damage was caused in the course of a protest, these rights – guaranteed to us all by the European Convention on Human Rights – were engaged in this trial. Now this does not provide a ‘trump card’ – you don’t have an automatic defence to a criminal offence simply because you were acting in according with your beliefs or exercising your right to protest. Limitations on those rights – such as laws preventing criminal damage – are permitted. But, as the Supreme Court recently confirmed, when considering whether a ‘lawful excuse’ exists for potentially criminal acts committed in the exercise of those rights, the courts are required to consider whether convicting the defendants would represent a proportionate interference with the exercising of those rights. In other words, is it necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions?
Answering this question requires the jury to balance the rights of the statue owners not to suffer damage to their property with the rights of the defendants to act according to their beliefs. As the judge directed the jury, everybody in the country enjoys these rights. And the jury were expressly directed that the question is not whether the jury agreed with the defendants’ actions or aims. The same exercise would apply to any defendant, irrespective of how sympathetic (or otherwise) the jury found their cause.
Put even more simply, if the jury were satisfied that the prosecution had made them sure of guilt, they would also need to be sure that a criminal conviction for criminal damage would be proportionate.
In this exercise, the jury were directed to consider the follow (non-exhaustive) list of factors (drawing on the Supreme Court judgment):
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety.
 
 6. So which defence did the jury accept?
 We don’t know, and will never know, because juries are not allowed to disclose details of their deliberations, or to give reasons for their verdicts. All the verdict tells us is that the jury were not sure that the prosecution had proved its case, or alternatively that the jury were sure the case had been proved, but were not sure that it would be proportionate to convict the defendants. And that formulation is key. The defendants did not have to prove that they were acting lawfully; the prosecution had to prove that they were not. That is not a glitch or a technicality: that is the foundation of how our system works.
 
7. Why are so many people so upset?
The trial has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue see the verdict as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case was about, and what the verdicts mean.

The last paragraph above in its own language is, in its meaning, not dissimilar from my own opinions as at the beginning of this post. The difference being that it is of a self publicising eminent  barrister interpreting  the law in all its letters. However the last sentence neatly sums up, as is a barrister`s wont, an opinion disguised as fact. This commenter has no grievance, has not been inflamed by others, and certainly does indeed understand what the verdicts mean. They mean that lawyers and the "progressive" establishment continue to consider that they are morally leading us away from darkness and into the light; that those who are not within this caravan of truth are devaluing the right of juries to bring in verdicts considered as perverse. Re read the preceding paragraph with some slight alterations. 

The trial  vaccination programme has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue to oppose vaccination see the verdict process as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case vaccination was about, and what the verdicts effects mean.

It is almost being suggested by the language used that  opposition to the verdicts is as heretical as eg antivaxers are to the control of Covid-19.  There is no doubt that the near future will see our laws being tested in like manner by those who are aware that although no precedents are created by this case a public is being programmed to support a cause and not those laws enacted for the well being of all our society and not particular sections with which they identify.  This in tandem with the Supreme Court`s decision on Extinction Rebellion is a warning to everyone who senses the rot which is seeping through the mores of our society. More such legal problems are yet to come. 

COURT REPORTING

Actual court reporting is now no longer a mainstay of local media whether printed or otherwise.  That is more than just regrettable; it is a failure of local democracy insofar as it distances the individual from a major pillar which guarantees our freedom under the law.  When the time comes; and I write "when" not "if",  court proceedings are broadcast live it will be a step in the right direction for anyone anywhere to witness justice in action.  Paradoxically that very initiative will lead to much opposition to Court TV just as happened when the live televising of the House of Commons was first mooted in 1968.  It wasn`t until 21 years later that what is today an accepted adjunct to freedom of information began despite opposition from many of the so called "establishment".  So when a local newspaper publishes a retrospective of judges` sentencing remarks it should be required light reading for anyone interested in legal matters. The Liverpool Echo is to be congratulated for its contribution published 31st December.   

1984 AND THE EQUALITY TREATMENT BENCHBOOK

In the days of empire, and laterally when newspaper editors focusing on the pampered lives of the great and the good who were whiling away their fortunes on sun, sea and sex in the Caribbean, it was known as the silly season and to the rest of us as August.  In the days when the assizes were in session reports from these courts probably reached more of the population in that month than the rest of the year. Some judges became celebrities from their pithy comments; e.g.  ‘In England, justice is open to all, like the Ritz hotel.’ Not so much a joke as a cynical quote from an English judge, Sir James Mathew (1830-1908). Obviously he felt that justice was a luxury for the rich!  Judges being considered out of touch with the common man was a very accurate observation.  Those were the days. When so many receive their information rated as newsworthy by their social media source the silly season is now of twelve months duration. The ever present social pendulum within and without the Ministry of Justice has swung its full arc.  Nowadays it`s impossible to read about a court case without the term victim being bandied about even before a case has been concluded when the correct description of the party supposedly done harm is complainant.  The idea that everyone is equal before the law has become but a historical reference in many matters revolving around women and their perceived harm when the only weapon involved is words that supposedly cause offence. Judges are appointed to function within the laws laid down by parliament. But that is not written on tablets of stone.  Many a durable dictatorship whether of the Left or Right has emerged from legislation which serves only to increase the power of those who enabled its propagation. In such circumstances some judiciary have resigned, some have been "removed" and some have remained to endorse and put into practice such activities that serve their paymasters. They are the most dangerous to any concept of justice. Often such legislative changes are enveloped in the mist of driving a social agenda. We are in such a mist currently that a lack of vision seems a pre requisite for those who are enablers of a process to drive common sense from political thinking as if it were a scourge on the face of society.  For some years all judicial office holders from the humblest magistrate to the most senior Supreme Court Judge have been directed to function within the prescribed direction of the recently revised "equal treatment bench book"; a hefty document currently of  538 pages.  It is impossible to read without thinking even for a moment that some legally minded geek, anorak or nerd (take your choice) has been let loose with a computer and the definition of "woke". Amongst many other instructions to judges is that they must refer to defendants and witnesses by the gender that they (defendants and witnesses) have chosen for themselves. In real world practice that means that  a defendant tried for rape with a penis must be referred to as a woman if that is the self chosen gender of that defendant. Truly we are living in a world devoid of reality. Perhaps the section on so called "Islamophobia" is the most revealing insofar as the history of Islamism is considered pp273. It would seem that the authors of the Revision have little or no knowledge of the Muslim Brotherhood.   "Islamophobia” was invented by the Muslim Brotherhood to mimic antisemitism. In doing so it is in itself a feature of Jew hate and allows any criticism to be labelled as a social disorder.  It features also with reference to criticism of those Muslims advocating jihad against the State of Israel. 

Shedding daylight on the absorption of the judicial system into the world of woke is not to lambaste the MOJ; no sector of our so called country and its institutions is immune. The government of Wales has outlawed inter alia the use of the word "Brexit" to be substituted by " transition period to refer to the time between February 1st and December 31st 2020".    In accord with the revisions above it has also decreed that "non disabled" be used rather than "able-bodied".  In a short search only a Welsh language version of these new instructions is available although unless the Welsh staff of the Daily Mail and other news media are working over hard an English language source must be out there somewhere. 

The use of language to reflect or instil changes in a society has long been a tool of authoritarian regimes.  Perhaps George Orwell was and is  the most well known observer to warn us of this least noticeable influence in the removal of individual freedoms. 1949 for most of Britain was the year of the benefit of a newly established National Health Service.  It was the year when clothes rationing ended, NATO was established, when the Chinese communists took power in mainland China and the USSR exploded its first atom bomb. For me the novel 1984 has proved the darkest warning of our future. 

Happy  New Year 2022  

A CHRISTMAS RANT

This time last year I posted inter alia that I was looking forward to the imminent arrival of a vaccine for all which would relieve most of us of the worry, torment and financial insecurity caused by Covid 19.  I commented also on the divisions in our society exacerbated by Black Lives Matter and the speed at which even the most outlandish theories can circle the world via social media and this was before most in this country had ever heard of QAnon and the invasion and deaths at the Capitol in Washington DC  were still two weeks distant. Since then we have had a new Lord Chancellor installed who seems to be more loyal to his political master  than to the concept of justice.  That should be of little surprise considering that that master so obviously puts his own position personally and politically ahead of that of the nation he is supposed to lead. Currently we face a further lockdown caused for the most part by a government that refuses to take strong measures against the so called antivaxers; fanatics who against all reason are blackmailing the rest of us into further restrictions.  By the simple expedient of imposing restrictions on those not double vaccinated hotels, restaurants, hairdressers, gyms and similar venues could serve customers in an atmosphere where they could reasonably be assured they were unlikely to be in contact with a Covid 19 infected person at the next table or chair or treadmill. 

On the plus side at least with the lifting on fine levels Premier League footballers, when their driving habits are illegal, are being hit in their pockets  at a level which reflects their financial status.  However notwithstanding that example it seems endemic that the MOJ in concert with the Home Office considers that the road to reducing crime is to increase sentences.  Criminologists and others know full well that that approach is a little bit like closing the stable door etc.  Prevention, detection and rehabilitation pursued expertly are the best way to  be tough on crime and tough on the causes of crime  as espoused in 1993 by Britain`s answer to Ronald Reagan. 

Whether or not this time next year we will all still be bedevilled by this virus is beyond an individual`s control but collectively we can help by calling out dishonesty in those and others on our behalf who make those decisions.  Whoever you are and wherever you live I thank you for using some few minutes of your precious time in reading this and perhaps previous outpourings.  

Be healthy and wise and wealth in some form will be yours.  

PROPOSED NEW BILL OF RIGHTS

It behoves politicians especially those in government to be precise in the words they use to explain previous or future actions or events. Failure to do so in an age where these words can live longer in the webosphere than the biblical three scores years and ten of humankind can be disastrous. On the day when the Secretary of State for Justice and Lord Chancellor is less than three months in post he has opened the debate on the can of worms that is the European Convention on Human Rights.  This organisation created in 1950, became operational in 1953 as a Court. It resulted from the inhumanity of the Nazis and the refugee crisis that followed World War 2 and was passed into UK law by the Labour government in 1998 as the Human Rights Act. It is not a court in the traditional sense and its members are not necessarily judges in the manner recognised in the UK. 

My comment on the composition in general is that a senior judge in addition to having the requisite knowledge of the law is also an expert on human psychology insofar as s/he is presiding over human fallibility and making his/her own subjective decisions on the actions of all those in court. The absence of that facility in many members of the ECHR in my humble opinion is akin to those various eminent specialists in their own fields commenting on the current epidemic but not having the experience of the practising doctors actually treating patients in hospital. But to return to my opening remarks on words: Dominic Raab is quoted today in having said that a British bill of rights will " deliver a healthy dose of common sense" to enable the deportation of more foreign criminals and illegal migrants. As far as "common sense" is considered; it was a required attribute for magistrates when I applied for appointment to the bench in 1997. A year or two later it was withdrawn on the basis that the word "common" might not be well understood by some sections of the population. In other words some early so called "progressive" advisors considered that what was common knowledge for 90% of people might not be "common" for some. Yet now that term is being used by the self same department as a justification for the proposed changes. Notwithstanding that illegal migration has been a bellwether of the Tory right for many years. Huguenots, Irish, Jews and "blacks" have each over the centuries been (and in some cases still are) subjected to the most blatant discrimination. However beneath the hidden racism of some government supporters there is no doubt that the fundamentals of the ECHR (and consequently the Human Rights Act)  have been manipulated in areas unforeseen in 1998. The desire for change to control a situation where billions of the world`s population immersed in wars and poverty see their future in the prosperous west is a matter of urgency.  Those who are screaming loudest in opposition have no answer to the problem;  The simple truth is that so called progressive thinking has allowed about one million undocumented "immigrants" to be living a life in this country beyond the reach of the law encouraging criminal activity and a black market for employment. This cannot be allowed to continue indefinitely if we are not to become a nation where "show me your papers" are the opening words when in conversation with police.  Unfortunately some foolish Tory MPs are making their last stand on compulsory vaccination "passports" with that same phrase.  It is intended that the Supreme Court will be the final arbiter on legal matters and parliament will be responsible for creating law.  Considering that Boris Johnson was infuriated during Brexit debate when the Supreme Court threw out his intention to prorogue parliament it will be amusing if not downright worrying about its continued efficacy if prime ministerial push comes to prime ministerial shove but then the initials BJ are not indelibly engraved forever on the door of number 10. 

As so often is the case those railing against the proposals are at risk of throwing out the baby with the bathwater.  When the proposed bill is published it will be up to parliament to fine detail it.  Errors on the scale of the Windrush scandal must not be tolerated.  Scrutiny must be the watchword; not complacency, not party loyalty.  The so called  progressives must open their eyes to the current realities and offer positive opinions of what should be incorporated in the bill and what would indeed be an affront to justice and humanity. I sincerely hope those in and outside Westminster have the required perspicacity and wisdom.   

Alterations in the legal process have been part and parcel of English law for centuries. In our own time the internet has been responsible for mind boggling changes in our courts unpredictable a generation ago.  The law and the justice system accommodates when and if appropriate.  An extract from Wikipedia on habeas corpus is an example.

"The Act is often wrongly described as the origin of the writ of habeas corpus. But the writ of habeas corpus had existed in various forms in England for at least five centuries before and is thought to have originated in the 12th Century Assize of Clarendon.[4] It was guaranteed, but not created, by Magna Carta in 1215, whose article 39 reads: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."[3] The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816, and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.[5]"  

It was followed 10 years later by the Bill of Rights which became the basis for the parliamentary democracy which exists today. 

" the Bill of Rights is further accompanied by Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. The Bill of Rights 1689 was one of the models for the United States Bill of Rights of 1789, the United Nations Declaration of Human Rights of 1948 and the European Convention on Human Rights of 1950.[3]

THE JUSTICE GAP FOR THE HAVES BUT NOT THE HAVE NOTS

It seems apparent that there can be few people actively involved in the justice system who are not totally convinced that the parsimony of  Tory governments over the last decade has not led to a permanent decline in the efficiency of and confidence in  that system.  What was often considered a beacon of our society and an example to many other nations is now a mere shadow of that former glowing reputation. For individual low level offenders the chances of receiving a true and just pathway through the jungle that is often "the system" seem to be reducing year on year.  Many millions of defendants have been prosecuted through the Single Justice Procedure since its inception in 2015. Indeed in 2020 alone the number was 535,000.  As far as I am aware there are no verified statistics of the conviction rates through the SJP but it is acknowledged by the Ministry of Justice that over 70% of defendants do not reply when summoned through the system and are automatically convicted. The chances of a defendant being eligible for legal aid when facing trial at a magistrates court have been steadily reduced over this same period owing to the miserly rates of pay offered to solicitors for undertaking this work. And to rub salt into the wounds inflicted on those acquitted in court no costs are reimbursed for any legal fees paid to those legal practitioners who have helped secure that not guilty verdict for their client. So there really is one law for the rich and pot luck for the rest. 

At another level it seems that the legal system is anything but equal for all. There is one law reserved for the prime minister when it suits his purpose.  The then adviser on ministerial standards, Sir Alex Allan, last year found Ms Patel, Home Secretary, had not always treated civil servants with “consideration and respect” and in a report published last November he said  the prime minister himself had breached that self same ministerial code in order to keep Ms Patel in post.  Boris Johnson had ignored the advice that she should be removed and this week the High Court agreed with him contrary to an appeal by the FDA union. Considering that the plaintiff himself was at risk of being accused of the self same charge it is difficult not to consider that perhaps other senior judicial figures might have altered the balance of those angels dancing on a pinhead.  With such success under his hat Johnson has now felt emboldened to let ministers throw out legal rulings. He has castigated judicial review in the past when his wishes were thwarted over Brexit. Like the civil war over parliament and the king`s authority we now have war drums sounding an impending battle between an elected government and an unelected judiciary. This is surely and incontrovertibly a process informed by history when an underlying proto fascist philosophy begins the journey to realise its ambition by morphing from right wing conservatism to right wing authoritarianism.  

With the Meghan Markle aka Duchess of Sussex case settled in her favour for now it is apparent that so called privacy has been given primacy over a public right to know and when that privacy is that which invariably surrounds the high and mighty rich and famous, justice and knowledge for Joe Public is an ever decreasing commodity. 

Most of us will not have any of our decisions taken to judicial review nor be subject to Appeal Court rulings on our right to privacy but we stand a reasonable chance over a lifetime of being summonsed to a magistrates court. And now two simple facts: In the last decade 164 magistrates’ courts closed out of 320 (51%) and that sale of court buildings raised at least £223 million to the public purse.  Was that a worthwhile choice? Half the country`s magistrates courts closed for a measly £223 million. Burton Magistrates Court closed almost four years ago.  It`s sorry financial tale since then can be accessed here. I doubt but there are many similar stories to be told but of no interest to those who have the wherewithal to send  a privately funded lawyer to represent their interests when required.  This is called the justice gap.

PRESS DEPT. COSTS AT MINISTRY OF JUSTICE

It seems almost daily that somebody or some group within the "legal umbrella" ranging from the Lord Chancellor to the retired criminal lawyer or barrister is explaining, discussing, excusing, justifying, castigating someone or some factor within that very same umbrella. The common basis for such verbal opinions is the simply dreadful state of what can be termed our criminal justice system. From prisons to police to probation and all stations en route there are practitioners complaining about the dearth of financial resources to do their job properly and a spokesperson of the Ministry of Justice, even the Lord Chancellor of the day him/herself, extolling the benefits even the beneficence of future policies sometimes in conjunction with the Home Office. Of late it has become almost a mantra that for some crime or other, usually initiated by a highly publicised heinous wrong doing, sentence will be increased.  It is not uncommon for the judiciary to be blamed in the first place as if it were responsible for the law breaking in not applying the appropriate sanctions in court on previous occasions. Lawyers are blamed for exercising current legal rights for illegal immigrants when the government has not placed before parliament bills to re write such legislation. Currently Covid 19 is the excuse of excuses for the delays in crown court trials of over 60,000  an increase of 45% since last year. What is not mentioned has been a policy of enforced reduced sitting days for judges nor the lack of lawyers available to work for the miserly rate at which legal aid is paid for. Indeed the MOJ budget over the last decade is a sorrowful sight.

These raw figures are unadjusted for inflation which over the last decade has been 28%. But according to the press office at Petty France one would never have thought that the system was anything but smelling of roses. From a total current budget of £8.4 billion, an increase of £0.3 billion over last year`s, no less than £2.6 million is spent on its press office, an increase of £100K since the previous year. 27 employees, IT, contracts, travel and training account for this expenditure. I have no idea if this level of largess is compatible with that of industrial firms with equivalent turnover. However as a layman my gut reaction is that at £96,296 per employee the amount spent just to put out the supposed good works emanating from the MOJ is somewhat excessive. Considering the total staff costs at Petty France alone are £24,648,744.38 just over 10% is spent on public relations. Perhaps that percentage of wage costs spent on image projection is not uncommon in industry but promoting a rosy picture of a failing system with that amount of public money seems to me to be a luxury, we the public, cannot afford.  

 

STATISTICS AND A SOCIETY UNDER STRESS

The Ministry of Justice has much for which criticism is appropriate but one area where that criticism is rightly muted is in the collection of statistics. Apart from information on the numbers and outcomes of appeals at crown court against decisions at magistrates courts which have in the past been made available through Freedom of Information, almost everything that results from a court appearance is available by way of charts and numbers to satisfy the most fastidious statistician amateur or professional.  Being neither of those it is still possible as a mere observer  to find some interest. The year ended June 2021 is the latest in such releases. The section chart below is quite interesting.

In my experience many if not most lawyers advise clients facing an either way charge to elect trial at the crown court.  Of course not every defendant can afford the fees involved and many others just want to get the process over and done with as quickly as possible but nevertheless it is instructive to compare the conviction rates in these matters. In magistrates courts that rate was 97.4% in 2011 and remained virtually unchanged at 97.9% in 2021. By contrast the comparable rates at crown court over that period were 81.1% and 84.7%. Even as a non statistician I can note that from the defendants` point of view the motto must be "elect trial by jury". The unasked question of course is why does this discrepancy exist.  Some observers assert that magistrates become case hardened; others that magistrates are more likely to be able to detect liars.  It could be that a bench follows a structured decision making process to come to its conclusion but a jury of peers can involve a whole gamut of human emotions in coming to its decision.  However with around 300 District Judges (MC) and Deputies sitting over an unknown number of such trials the picture becomes somewhat clouded. 

For summary motoring offences the statistics indicate that in all probability and with few exceptions defendants would be advised to plead guilty and make use of the reduced sentencing such early pleas offer.  In 2011 the conviction rate was 98.5% and in the year ended June 2021 98.8%.  In other words whether the CPS evidence is from camera or police officer it`s unlikely to be successfully contested. It would also appear that the Single Justice Procedure introduced in 2015 has not influenced the conviction rate. 

A disturbing fact is that indictable offences of violence against the person proceeded against at magistrates courts have increased from 42,530 to 52,925 (+24.44%)between 2020 and 2021 a period in which there was social lockdown. Perhaps future social historians will have something to say about our society under stress. 

JUSTICE EVAPORATES WITH 8 JUSTICE SECRETARIES SINCE 2010

To put it mildly, the justice system is in a mess. As will increasingly become apparent much of this mess as with so many other policies is being put down by government to Covid 19. Perhaps there other reasons one of which is that we are now on Secretary of State/ Lord Chancellor number eight since 2010. With only one of this number still clinging on to the greasy political pole and the current incumbent there as a demotion is it any wonder that justice, a pillar of any successful democracy, is crumbling before our very eyes. 

With Kenneth Clarke on his first appearance before the Justice Select Committee 25/7/2010 we saw what was below that "I`m a fair chap" image; " He was not fussed about competitive tendering (“we have enough lawyers” and there is “no lack of people wanting to come in”). “I haven’t made that many policy decisions yet”, he concluded." Further comment is available here. He was proud to tell the media that in that first austerity budget of the Coalition he had made cuts of 23.8% in the MOJ budget and that he was the first secretary of state to have submitted that intention to the Chancellor of the Exchequer. His period at Petty France was just the beginning of the cracks which are now threatening to collapse the pillar of justice. 

From the sublime Kenneth Clarke to the ridiculous Chris Grayling who was his anointed successor. It was his bright idea to decide that having courts and personnel to offer a system of justice to all as the right of every citizen as had been the ethos (more or less) for centuries was untenable and wasteful of precious funds. He decided to impose a tax on every offender for the privilege of appearing in a court of law. This tax was to be over and above any fines, compensation or social or custodial sentence imposed. It was not means tested. Perhaps his landmark achievement was to forbid visitors bringing books for prisoners to read in jail; such a stupid decision it was reversed by his successor. However he will forever be  remembered for his actions in his next job as Transport Secretary in signing a shipping contract with a company which had no ships.But no problem; he was a staunch supporter of our prime  minister and a fanatic Brexiteer. 

Next came Michael Gove to who, to many supporters, is the brains of the party. Speaking outside his portfolio before the Referendum he was not immune to endorsing the lies of the Leavers; Just prior on being questioned on Sky it is quoted, " Like Mr Cameron, Mr Gove faced intense scrutiny of his campaign tactics, in particular the claim that the UK sends £350m to the EU every week. Sky’s political editor Faisal Islam said Mr Gove knew that figure was wrong, and accused him of importing the “post-truth” politics of Donald Trump to the UK. The UK Statistics Authority has said the figure “is misleading and undermines trust in official statistics”, because it is a gross sum and does not account for Britain’s rebate and funding received from the EU. In response to Mr Islam, Mr Gove agreed to have the figure independently audited."  The full text is available here. To quote from Politico, "As justice secretary and lord chancellor, Gove got “a lot of the judges and legal Twitter on-side” with warm words on rehabilitation and the justice system, according to one former civil servant who was working in government at the time.But the ex-official believes Gove “did little in the way of actual reform, simply applying his strong rhetorical skills to tell a story about justice.” That was mainly due to his short tenure. He was in post for just over a year before the EU referendum brought the Cameron government to an abrupt halt". It is arguable that had he been in post longer our justice system would have benefited greatly from his intellectual prowess, a facility sadly lacking in some of his contemporaries.  Under his short stewardship at Petty France the MOJ produced its annual report 2016/2017 as bland and meaningless as ever. 

We have four strategic objectives to deliver our vision. 

1. A prison and probation service that reforms offenders. We will:
 Maintain the highest level of public protection;
 Keep prisons safe and secure;
 Reform offenders; and
 Reduce reoffending.
2. A modern courts and justice system. We will:
 Upgrade the best justice system in the world using
technology and modern ways of working;
 Put the citizen at the centre of the justice system;
 Protect vulnerable victims, witnesses and children; and
 Support the independent judiciary and their ability to attract the best and widest range of talent.
3. A Global Britain that promotes the rule of law. We will:
 Make the most of opportunities presented by exiting the
EU to expand the reach of our world leading legal services;
 Promote our world class legal sector and judiciary; and
 Protect our common law traditions and strengthen ourhuman rights framework.
4. A transformed department. We will:
 Deliver excellent services to the public through a diverse,
engaged and capable workforce;
 Be a unified and responsive department, collaborating withpartners across the justice system and government;
 Put data, information, technology and innovation at the
heart of our work to improve our services; and
 Deliver value and drive efficiency in all we do.

Liz Truss, another non lawyer, the next incumbent, lasted less than one year bossing the MOJ.  Her short reign was rather less than successful.  She initially failed to defend the judiciary in November 2016 after they were branded “ Enemies of the people” by the Daily Mail because they ruled parliament had to be given a vote on triggering Brexit. Ms Truss later issued a statement supporting the judges but this was seen as too little, too late. Her actions drew unprecedented criticism from Lord Thomas, the Lord Chief Justice, who told a committee of MPs in March that he felt Ms Truss had been “completely and absolutely wrong”. It was the duty of Ms Truss to defend judges, Lord Thomas told the committee, adding he was “very disappointed” that she initially failed to defend them describing it as “constitutionally absolutely wrong”. The Lord Chief Justice also attacked Ms Truss for a “complete misunderstanding” of reforms to cross-examination of vulnerable witnesses in rape trials.

And so we have another Lord Chancellor who is not a lawyer; David Lidington. He had  consistently voted in favour of restricting the scope of legal aid and for allowing national security-sensitive evidence to be put before courts in secret sessions. He had a history of squeezing as much from the parliamentary purse as possible. In May 2009, it was revealed he had claimed £1,300 on expenses for dry cleaning. He also claimed for toothpaste, shower gel, body spray and vitamin supplements on his second home allowance. He repaid the claims for the toiletries, saying: ’I accept that many people would see them as over-generous.’  He could claim the honour of being the shortest in tenure at Petty France having lasted a whole six months. 

In January 2018  David Gauke transferred from Work and Pensions. At least he was a lawyer.  Indeed he was the first solicitor to be appointed Lord Chancellor. A month into his job he outlined his hopes in a speech available here; as bland as ersatz coffee and egg powder available to war time Britons between 1939 and 1945. His leaving office was as notable as his arrival. 

Robert Buckland, a solicitor, was anointed in 2019.  His keynote speech on judicial review is available here. I copy below an extract.  (my black)
The second part of my principles is the Rule of Law. What I mean is that as a society we are governed by clear rules set in advance and not by the arbitrary choices of those in power. That is a fundamental principle of our Constitution and I would not want any reform to endanger it.
The third is the Sovereignty of Parliament. In order for life in common to be possible, the laws that govern us must be orientated towards the common good. But what the common good means is, of course, open to interpretation. As Winston Churchill said, the least bad way of settling those disagreements is through democracy. It is our Constitution that gives the final say to the elected Parliament, not to the unelected branches of the state. I think that is a very sensible settlement which has served us all very well.

It is arguable to say the least that above we have the irresistible force meeting the immovable object and of course as a buddy of Boris Johnson when push came to shove he was a government lackey in the Brexit controversies over parliamentary rights. 

And so we come to Dominic Raab, demoted this year to Petty France but given the office? (title) of Deputy Prime Minister. That alone indicates the status of Justice Secretary in the eyes of this Tory government  where its newest holder needs his ego polished. 

Is it any wonder that Justice in this country is now an accoutrement  to our society`s well being in addition to saving the face of on overblown egotistical political irrelevance. The concept of Justice as a right for all citizens has long gone and with it the basis of our democratic traditions and freedoms because without Justice they evaporate just as surely as the morning mist in autumn.