MUSINGS ON THURSDAY

Occasionally a few stories/press releases/incidents occur which, given some imagination, can paint a picture of an organisation far better that a detailed investigation.

Next week the administration department at Telford Magistrates` Court, the only court in Shropshire now operating,  is being moved to Stafford; not earth shattering news except for all the inconvenience for those involved but for a comment from the MOJ.......

"It said a small number of court staff will be relocated elsewhere within the business". That single word indicates so much that is wrong within the MOJ.

The press room at Westminster Magistrates` Court is being closed on the grounds that it`s outlived its usefulness notwithstanding that that court hears some of the most important matters to come before a magistrates` court and is "home" to the Chief Magistrate.  Despite protestations from HMCTS along with many others I fear this is a further indication of government initiating restrictions on the reporting of courts` procedures.  It might be the very thin edge of a wedge but it is a portent for the future; a future which is not very bright. 

Proposed flexible working, an HMCTS euphamism if ever there was, is broadly castigated by the legal profession but with one or two exceptions from senior ranks. More knowledge is often to be gained and just as often ignored when it comes from the troops rather than the generals.

I have remarked often enough that I am not an enthusiastic supporter of Sentencing Guidelines at least in their current proscriptive form.  An example of a judge`s idiosyncratic thought processes might suggest that my opinion has little validity in fact. This judge certainly poses an argument that Guidelines Are Good, Judgement Is Bad.

STILL NO REPLY FROM HCTMS

On Wednesday July 26th I posted the following:-

With increasing concern at the plans of HMCTS to impose extended hours for court sittings Twitter has been a useful pointer.  On Inside HMCTS Blog there is published a series of questions and observations to the organisation including by a couple of crown court judges.  Surprisingly there is not a single word referring to or written by magistrates except an unanswered series of questions I noticed yesterday.  I copy that part below and will do similar when a reply is published. 
Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

No reply is yet published. Check for yourself here again. 

TAIL OF PUBLIC OPINION WAGS DOG OF JUSTICE

The tail is wagging the dog. We`re all familiar with this idiom. Various definitions are as follows with subtle differences amongst them:- 

An item of minor importance dominating a situation. 
A small or unimportant part of something is becoming too important and is controlling the whole thing.
The least important part of a situation has too much influence over the most important part.
A situation in which a large group has to do something to satisfy a small group.

I would suggest that the latest announcement today from the MOJ that a further group of offences has been brought into the category of those where a lenient sentence can be appealed; those which are terror related, reminds us that a situation exists in our sentencing structure which clearly demonstrates the meaning of any of the above definitions.  Until thirty years ago judges  sentenced according to their interpretation of an offender`s culpability, harm caused to victim(s), previous convictions (if any), employment and domestic situation, provocation and any factors brought to their attention by the defence in mitigation such sentences being subject to appeal at a higher court. From 1988 the numbers and types of offences for which there is a basis for appeal to increase the sentence has steadily increased.

I have not previously given this situation much previous thought. Of course the right for an offender to appeal against conviction or sentence being too  severe is a certain safeguard against injustice but is there not an argument that a reverse right for the appeal court to increase a sentence on behalf of an argument by the state (the CPS) an indictment of a sentencer`s error and/or misunderstanding of the law?   In the event of such a position should there not be an inquiry of some sort into the competence of the sentencer; after all if eg a surgeon makes an error of professional judgement resulting in unnecessary problems for a patient or a pilot fails to follow protocols there is usually good reason to ask why.  When that right of appeal is extended to victims I am coming to the conclusion that this is a step too far and is a political act of appeasement rather than inspiring greater confidence in the criminal justice system. The classic example is the continuing support for the reintroduction of capital punishment although not necessarily within its previous guidelines.  A highly reputable 2014 poll is reproduced below although certainly it can be said that there is no clear majority for such a change and no ability for it even to be considered until we have left the EU. But it illustrates a principle of victims being being given a voice on punishment. 

To sum up, as the lawyers would put it,  if judges fail in their professional requirements to sentence according to all the facts in front of them in the view of the state ie they have been too lenient, they should be admonished. Government is at present having it both ways; the judge is at fault professionally in being too lenient but we dare not admonish him/her because there would be such opposition from the judiciary as a whole  that that would be impossible and we must continue to throw the public a bone or two in increased sentences  to retain credibility even although logic disputes this. As a result the tail of public opinion  must continue to wag the dog of justice. 

SENIOR JUDGES SPEAK OUT

Perhaps it`s my imagination but judges` comments in the courtroom seem recently to be directed to the wider audience than that occupying the public gallery.  Those of Sir James Munby about the inability of the NHS to find a secure appropriate institution to treat a young woman considered a suicide risk made headlines in  media from Twitter to TV and many in between. The ramifications of such outspokenness were well illustrated around Article 50.  Indeed the controversy might well have cost the incumbent and incompetent Lord Chancellor her job. My post of 1/12/2016 made the point that the remarks of senior judiciary are not necessarily unwelcome the caveat being that in so doing within our organically evolved and evolving constitution there is no firm guidance where their statements and/or opinions might be encroaching on the territory of others.

Magistrates` courts regulars have been familiar with the increasing numbers of so called McKenzie Friends appearing in court.  A once sincere and honourable way in which those with some limited knowledge and ability assisted a defendant is turning into a situation where non qualified persons take money from those who cannot afford professional qualified defence lawyers to represent them as a direct result of the strict rationing and increasing unavailability of legal aid. Crown courts are now experiencing this phenomenon virtually unheard of ten or fifteen years ago. Senior judiciary are  commenting on this unwelcome trend. 

With inevitable constitutional road blocks on the road ahead to Brexit there must surely be some comment and guidance for senior judiciary on making their opinions public,  if not from on high at least from the Lord Chancellor,  before such road blocks are staring us in the face and tripping us up.

SNAPSHOTS OF SOCIETY WARN OF THE SIRENS

When individual court cases or major malfunctions in NHS or Defence are highlighted in the media the response from officialdom is not unlikely to be words or phrases emphasising that the matter in question was atypical and for x,y and z reasons this department always has the safety of the public or the best interests of society and we have systems to cope etc etc etc.  The failure of such parrot fashion replies and excuses is that we have all been here before; the individual case or incident can be likened to a snapshot which although not giving a running account accurately depicts the vista at a particular time. The awful tragedy at Grenfell Tower is a recent example.  Eighty lives or more could have been saved but for the apparent complete malperformance of many individuals.  There is no doubt that those found guilty of criminal activity will pay dearly with the judiciary given reminder by whispers from on high that examples must be made just as happened after the riots of 2011 although there will never be official admission of such.  Thus this case a couple of weeks ago reported in Court News UK shows more clearly than any statistical analysis just why the great British public has so little faith in government being able to react to the worries and problems affecting so many citizens.  

There must or there should be eminent persons with the appropriate intellectual breadth and experience around but not beholden in any form to government who can spell out to those in Westminster just what reactions are taking place in our society often but not exclusively concerned with immigration, housing shortages and increasing disparities between the have far too much and the just about managing. The failure of policies and quangos operating under the control of the Home Office and MOJ and the inability to grasp that fundamental change must apply to the NHS as everywhere else can no longer be contained.  T.May`s pitiful attempts to explain conservatism as it is practised in SW1 are pitiful. Capitalism unleashed with no reins upon it is as dangerous for our society as Corbyn & Co preaching their brand of socialism like the sirens of old. The paradox is that that the more capitalism is allowed to rampage unhindered eg British Gas in a supposed market which is in name only the more Corbyn and his successors  can advance their cause just as the sirens did for ancient mariners. If that happens we`ll all be on the rocks.

A SMALL SIGH OF RELIEF FROM PROFESSIONALS

My professional life prior to and whilst an active magistrate was as an eyecare professional.  I must have inspected literally tens if not hundreds of thousands of retinae.  Some of these showed patterns of serious ocular or systemic disease and such patients were referred onwards to appropriate specialists. No doubt it was unlikely that I had not missed at least one case which might have caused serious problems for the patient. I will never know.  What I do know is that I retired with an exemplary professional record as do most eyecare professionals. Therefore it was with some soul searching that I first read of the optometrist found guilty last year of gross negligence manslaughter. There but for the grace of God go I. 

Earlier this week the Court of Appeal overturned her conviction. The basic argument for her appeal`s success is reported here in the local newspaper. It seems to me the logic is impeccable.  The parents who lost their child responded with anger; that is their privilege although it does take the form that they were denied their revenge.  My point about all this is that there seems to be implied criticism of the trial judge. It would appear that if he had put to the jury the necessary situation for guilt to be found in the same way as the Court of Appeal it is not unlikely that the jury would have acquitted. And if I repeat my comparison with the Scottish legal system a "not proven" verdict would have been IMHO more than just a possibility.  If my observations are accepted it puts the trial judge in a somewhat similar situation to the optometrist; negligence that requires investigation by the appropriate regulator.  It won`t happen. There will be no public knowledge if any ramifications result for the judge. However for many thousands of professionals a small sigh of relief should be heard loud and clear.

SENTENCING GUIDELINES//ASK THE SCOTTISH PEOPLE

For over ten years sentencers in England & Wales have lived with Sentencing Guidelines. Having been there at the beginning and noting their current manifestation at least as far as magistrates` courts are concerned I am not sorry that according to the MOJ and its rules my time was up a couple of years ago. Indeed I stopped sitting in advance of retirement so as not to have to pronounce on the iniquitous now rescinded Criminal Courts Charge.  The Guidelines in their latest incarnation are a labyrinthine exercise in algorithmic steps leading to a supposedly constant outcome for the circumstances of the offending in every area of the nation rich or poor, town or country, male or female or........oops........best I don`t go there........etc etc. By their very nature and reason for being they have removed almost entirely sentencers` discretion.  Any deviation has to be explained in open court.  Indeed if the present trend continues there will be no need for sentencers at all; it doesn`t take much imagination to foresee that a fully computer controlled algorithmic exercise could take over,  reducing costs and that is the watchword of the MOJ and its partner in crime the Home Office.  Their actions over this period prove that: closing courts, removing legal aid, privatising probation, running down prisons, taking police off the streets, decimating border protection.  I could go on.  Now the people of Scotland are being invited to offer their opinions on what kind of sentencing guidelines they would wish to have in place.  One thing I can guarantee is that they won`t be asked if they want a return to capital punishment even under the most stringent conditions.  My advice to any reading this resident over the border is to take a look at what we have in England & Wales and ask yourself; do you want your representatives on the bench to be hamstrung and for initiative and common sense to be relegated to memories of a bygone era?  You have a wonderful opportunity which we south of the border were not offered. Relish it.  Take it in both hands and offer your opinion.

THE SACKING OF RICHARD PAGE ex J.P. PART 2

"There are so many overlapping, complementary and contradictory  aspects to the apparently simple case of Richard Page that it is my belief that we ain`t heard the half of it yet".  I concluded my post of 18/3/2016 with the preceding sentence. Now the case has taken a further twist; Mr Page, from Kent, is bringing a claim of discrimination, harassment and victimisation against the NHS Trust Development Authority, under the Equality Act 2010. A four-day hearing begins today at Croydon Employment Tribunal.

Background information is available here on Christian Concern.  

THE JEREMIAH JUSTICE OF THE PEACE BLOG

When I was a student the situation re law `n order was on the surface reasonably transparent; you committed an act which for various reasons was considered illegal, somebody called the police and if admitting guilt or found guilty an appropriate punishment would be ordered: simples.  Not any more it is. Councils in liaison with or without police have umpteen powers to enforce restrictions, impose fines, relocate individuals etc all without the orders of a court.  In straightforward language those people who transgress in someway against certain specified norms and who can be wholly innocent of any criminal offence can be subjected to arbritary demands of a council official or police constable.  In most such cases the victimes have not the wherewithall in any worthwhile capacity to resist such orders.  This case is a classic example.  The property does not belong to the council but to a private landlord and no charges have apparently been brought against either of the occupants yet one of them has been evicted.  By its very nature the report is brief but is this really the way our society has developed since the swinging sixties?  Salami slicing of our freedoms is progressing at a frightening pace yet the real issues of today are brushed under the political carpet. For obvious reasons I have more than average knowledge and awareness of what goes on in most aspects of our lives that can even loosely be described as the manifestations of what pass for policies at the MOJ and Home Office. But I ask myself; what is happening within the NHS and associated organisations where I have no special knowledge or within the MOD where aircraft carriers are constructed at billions of pounds over estimates to accommodate planes that don`t perform according to projections, to a railway expansion where those in control deny that the final price will double original numbers and where others insist that its construction is unnecessary and of a governemnt forced into having a referendum which is incompatible with parliamentary democracy the governing party of which chose its least objectionable individual to be our prime minister whose inadequate abilities are now on public display to our collective cost.

Societies do not implode overnight. Blatent anti semitism openly tolerated in the Labour Party is not an instant reacion to Israel`s survival in 1967 or the Entebbe rescue in 1976 both of which were lauded by most people and parties in the West. Drug addiction on its current scale didn`t arise from nowhere.  Private health insurence was unknown for 99% of the population forty years ago.  Nations and their societies are living organic entities; they are subject to continual incremental change.  That process can develop in many directions and each of us can offer some input. That being the case those whom we endow with our votes from time to time have failed us, are failing us and God help us will continue to fail us.  Perhaps I should change the title of this blog to Jeremiah Justice of the Peace.

IS 2 OUT OF 3 A SATISFACTORY MARGIN FOR GUILTY VERDICT IN COURT?

In all the many hundreds of articles, tweets, posts etc on the workings of magistrates` courts rarely is it written or explained that in a bench of three lay magistrates a unanimous decision on guilt or innocence is not required; it is sufficient for only two of the bench of three to be in agreement.  Such a majority verdict is not made public. The court is simply informed of the decision.  This has long struck me as at least inherently less than transparent and at most departing from judicial honesty. The fact that I have never heard comment form senior judiciary is astonishing.  If the public were to be told there would not unlikely be an outcry.  In Scotland`s higher court a simple majority of fifteen jurors is all that is required for a guilty verdict. At all court levels including summary matters a third option is the "not proven" verdict. Wikipedia is a fine reference source. If ever there was an argument and one with which I agree for the Scottish Verdict to be available in England surely it is in the magistrates` court that it should be offered.  JPs are not random jurors taken from the electoral register; they are highly trained people skilled in the forensic analysis of complicated and/or technical argument.  If one third of their number has reasonable doubt on guilt surely that should have significance. When it comes to sentencing the stakes are equally high in such a circumstance.  When in my position as a dissenter I have been asked for my input when exploring the sentencing structure I have often recused myself from proceeding through the maze which the Sentencing Guidelines have made compulsory. If that experience was whilst I was chairman of the bench I limited my input to ensuring that my colleagues had followed correct procedures in line with their perceived reasoning. I know that colleagues took different options in these circumstances.  I also know that many were not bothered at all.  With a bench of two and an intractable collision of opinion obvious difficulties arise.  I have experienced situations where the JP for guilty felt duty bound to go along with his/her not guilty colleague; a course of action which I believe follows judicial oath. Very occasionally a mistrial was declared and the game was replayed.

There are lessons to be learnt and changes to be implemented. I have often wondered why an even number of jurors is selected.  Surely the principle of an odd number as in Scotland even with a more limited majority decision required makes more sense and would obviate the need for mistrial outcomes.  The Law Commission or another appropriate body should undertake a redefining of what makes for a guilty verdict in magistrates` courts and opinion expressed on the 2/3 majority remaining valid and withheld from the public.