LIFE SHOULD BE LIFE: END OF

When I was twelve years old I wrote an essay the subject of which was "Why I want capital punishment abolished".  Eight years later when abolition took place I was aware that all the proponents of that unique change (noting the increasing restrictions on its application) in a centuries old policy were very ready to offer their assurances that new sentencing powers would ensure that the public would be every bit as protected as pre abolition.  That was a fatuous guarantee.  However I, in harmony with a majority of the population, was prepared to be supportive on the basis of time will tell.  Well; time has told.  What ever statistics are used and/or manipulated homicides have increased considerably  in the last half century. There are occasions when a significant minority of people has a certain repugnance at the conclusions of the Parole Board.  The furore surrounding the black cab rapist who was scheduled for release a few months ago  persuaded the Parole Board to have a re think. It seems, however, that the great and the good on that Quango have once again given two fingers to public opinion.  The release has been authorised of triple child killer David McGreavy after his 45 years incarceration.  Their reasoning is that he is no longer a threat to the public. This indeed might be the case but it does not justify IMHO his release. Restricted prison accommodation or cost cannot be used as an excuse in this matter. Consideration for him in any way similarly must be ignored. His crime was of the most heinous nature.  There have been few of equal barbarity.  His punishment was life imprisonment.  If this lowest form of humanity cannot serve out his remaining days under lock and key we, the great British public, will find that our respect for the justice system will be accelerated further towards terminal decline. 

JUSTICE: THE COMING DISASTER

I`m not saying the Lord Chief Justice was slow to get off the mark and I`m not saying that I have crystal balls but sometimes I do wonder at the rate at which pennies seem to drop when justice  in all its facets indicates a sense of the direction in which it is travelling or being forced to travel by the executive.  Every year it seems the Sentencing Guidelines have become more prescriptive.  The aforementioned LCJ spoke recently on the emergence of AI in the courts.  He did not specify the Sentencing Guidelines but alluded to other aspects of what we call the justice system that could be involved.  Having retired just prior to the introduction of the digitilisation programme my opinions are based on what I read and hear; certainly a poor substitute for experience. On 7th October 2015 I concluded my post that day as follows:- "There are those who fail to see this changing face of justice and there are those who see it but don`t recognise it for what it really portends but the most disheartening factor of all is that there are many on and off the bench who do realise what the future holds but remain silent for reasons not always honourable  IMHO of course." 

Since then there have been many changes. The Single Justice Procedure has, I believe, come in for its fair share of criticism, many more magistrates courts have been closed, national and regional magistrates have been appointed by the executive presumably on the basis that their support can be shown as an indication of general support of the magistrates on the Clapham Omnibus, video courts are being utilised as if personalities have no importance and of course legal aid is virtually non existent for defendants and a financial  loss for ever increasing numbers of lawyers. On 26th October 2016 the final paragraph of that day`s post was:- "It is only a matter of a generation before such artificial intelligences become even more a part of our daily life.  Who is to say that those advances will not include interaction with current legal processes."  

Only those on the "inside" can hope to have the slightest influence on the catastrophe for individual freedom and justice which is coming our way. It seems that whilst they are in receipt of the Queen`s shilling their mouths remain closed. That, unfortunately, is the way it has always been. But perhaps there are still some who can voice their opinion without fear or favour to avert the coming disaster. 

SUPPORT JUSTICE: SUPPORT HH JUDGE MATTHEWS

The vast increase in the numbers of unrepresented defendants has been a major feature of courts, criminal, family and civil since 2010.  The many Lord Chancellors since then have attempted to deny the subsequent problems arising directly from the cause of this eruption and have sought to minimise its effects by the introduction of ever more applications of digital technology of one sort or another. There are two fundamental foundations to a justice system; equality of arms and a level playing field. . One can only guess how many injustices have been allowed to happen by the imbalance of the former. Within the magistrates` courts there are no statistics of defendants who do not present with a lawyer. The latter in recent years has been undermined by the prosecution`s inability to follow the rules on disclosure.  High profile cases especially with regard to rape have exposed this iniquity.  Whether this lack of information is by lethargy, accident or design will be known only to that small coterie in Petty France where the most hard working section is the press office. 

I retired from the bench in the early part of 2015.  Even then it was becoming apparent that in my opinion a real risk of justice not just being seen to be done but not being done per se was staring me in the face at almost every sitting. It did not happen by calculation but I realised that my manner when presiding over cases involving unrepresented defendants was changing ever so subtly. The traditional approach of seeking only "clarification" when directly questioning a witness had occasionally to be sidestepped to avoid a possible or probable miscarriage of justice. In that year I posted twice on this subject. 

Similar problems have almost certainly been presented to judges at crown court. How many have gone unreported is anyone`s guess but recently none other than a High Court judge His Honour Judge Matthews has been castigated by the Appeal Court for his inquisitorial approach to an unrepresented defendant. The Law Society Gazette has a recent report.

There is no doubt that very soon those law lords who offer guidance often only when they are retired will provoke discussion around the very basis of trial law in England. My personal justification for sometimes incurring the disapproval of legal advisors was that I would rather push the boundaries of what was hitherto acceptable practice than see a possibly innocent person convicted because s/he was unable to construct the vital question or interpret the obvious flaw which would have exposed the CPS case`s failings. HH Judge Matthews deserves the support of all those with similar opinions. 

COURT STATISTICS: NUMBERS AND YET MORE NUMBERS

For those who like their legal knowledge or some of it in numbers latest court statistics published yesterday can be accessed from here.

DISPLACEMENT ORDERS NEED DISPLACEMENT

Archimedes' principle states that the upward buoyant force that is exerted on a body immersed in a fluid, whether fully or partially submerged, is equal to the weight of the fluid that the body displaces and acts in the upward direction at the centre of mass of the displaced fluid.  The word displacement and its derivatives was for many centuries associated mainly with that fellow Archimedes. Anthropologists also found the term useful in describing ethnic or national groups who have been removed from an area and possibly replaced by others.  It is almost twenty years since the principle of displacement entered the legal domain with the introduction of ASBOs where a civil order made with criminal sanctions if breached could enable miscreants to be banned from any area the court designated.  Various other displacement orders have since been legislated eg Drinking Banning Orders followed ten years ago. Offenders were prohibited from a particular area and were pushed into adjoining towns or counties if they wanted to go to a pub.  Indeed there have been cases where a recidivist was banned from drinking in any public place in England. Such prohibition orders are just an easy way to avoid constructive answers to habitual offenders such answers to consist in varying percentages of deterrence, punishment and rehabilitation all of which are costly in comparison.

The Ministry of Justice and the Home Office has since 2010 cut to the bone the resources necessary for the justice system to function for all of us; law abiding citizens, defendants and witnesses and those who work within the whole system. This recent case is a perfect example. 

COURT TV IS OVERDUE

A literate population in times long past was considered a threat to authority. No clearer example was the advent of the printing press and the subsequent availability of the bible in the English language produced by William Tyndale in 1536A.D. whose efforts cost him his life. The first ever manuscript in English of the bible by John Wycliffe c1380A.D. led to his long dead bones being exhumed and crushed into powder on papal orders. With the advent of at least a rudimentary education for the masses in the middle and late nineteenth century the coming of mass media allowed sometimes lurid accounts of court proceedings to be brought to anybody`s attention for the price of one penny. Indeed court reports were a major feature of local newspapers until the increasing prevalence of a television set in most homes about fifty years ago gradually reduced the impact of the written word so far as news reporting was concerned.

From time to time MPs have debated televising the House of Commons. The first proceedings actually to be televised was the Debate on the Address in November 1989 and the first televised speech was by Ian Gow a Conservative opponent of the experiment. In July 1990 what had been an experiment became a permanent feature and it is now hard to imagine what the reporting of the political world was like without live T.V. from the House of Commons when it consisted of abridged newspaper reports mixed with opinions of newspaper editors and proprietors. Hansard was for the very few. There have been  limited transmissions in Scotland. With the Supreme Court being available live on Sky I hope this is just the beginning.

It is my opinion that those politicians charged with considering the possibilities of live programming of court are of the same mind set as their forebears of fifty years ago; the details might not be the same but the principles most certainly are especially at a time when this government like its predecessor is attempting to limit public access to legal proceedings in the civil courts and is in general under the blanket of reducing costs making life so difficult for defendants in some cases as to be impeding the maxim of innocent until proved guilty. Without doubt there are major areas of concern regarding witnesses but the principle of a public gallery open to all in 60” 3D and surround sound surely is the basis on which this innovation must be allowed to come to fruition however large the gallery.

WHEN IS "EXCEPTIONAL" HARDSHIP REALLY EXCEPTIONAL

Yasmin Qureshi Shadow Minister (Justice)

"Driving ban sentencing needs to be looked at again. Many hon. Members have referred to how the exceptional hardship plea is being used, and suggested that courts and magistrates have been granting it too readily. That clearly needs to be looked at. Maybe there needs to be a change in the sentencing guidelines that magistrates take into account when deciding whether to grant exceptional hardship. That area also needs to be revisited and reviewed". 

I have posted here all too often [for those interested just type the term exceptional hardship into the search box]  that the get out of jail free card that is exceptional hardship indeed appears to be too often accepted by benches. From my experience I suspect that legal advisors are perhaps having too much input into bench sentencing discussions. I recollect that I had to ask a new to our court L/A on her first day who sat without invitation as my colleagues and I were about to begin our deliberations to kindly leave the table and await our decision.  After somewhat heated objections she did as was requested and was more respectful of our independence at future occasions when I was sitting. The shadow minister quoted above yesterday on 20th November perhaps is unaware that this decision is outwith sentencing guidelines but on her general point I do agree. It is scandalous that so many thousands of totters escape their due deserts.  

WHEN A SEX OFFENDER ESCAPES IMMEDIATE CUSTODY

The latest sentencing guidelines on sexual assaults were published after my leaving the bench. Fortunately I did not sit on many such cases because the majority are heard in crown court.  All that I can say is that for any person and a teenage female in particular to be sexually touched by a stranger without consent or to be similarly assaulted against her will must be an awful experience.  The law on all illegal sexual activity has expanded considerably in recent years. The range of offences is listed below.

Most but not all these offences are too serious to be heard in the magistrates court. The report of a recent case at Caernarfon magistrates court fails to mention which actual offence was committed by the offender but was likely to be the offence copied below. The appropriate CPS guideline is also available below.

It appears to this observer that at the very lowest level of culpability or harm this offender has traumatised the victim to such an extent that suspending custody is more of a bench following orders to keep offenders from filling the jails with short sentence prisoners  than simple old fashioned punishment. 

CPS GUIDELINE

SENTENCING GUIDELINE EXTRACT

RANGE OF SEXUAL OFFENCES

DRIVING IN ALICE`S LEGAL WONDERLAND

Imagine you are 15 years old and after much nagging your parent(s) have given in and bought you an electric scooter.  Unsurpassed joy from the child who sets off down the pavement in a quiet suburb only to be spotted by one of the very few police officers still on the beat.  The happy go lucky child is asked to identify himself and to produce his driving license. Calamity upon calamity; the officer on hearing that there is no driving license, takes the name and address of the suspected offender and warns that a summons might follow. So far this is not a particularly pleasant tale but wait; it gets worse.  A 15 year old boy has been given six penalty points for riding a scooter "at speed". The report makes no mention of whether a police car or a beat police officer made the "stop".  No actual speed appears to have been recorded. We all know ignorance of the law is no excuse for breaking it but this boy in order to drive legally when he is 17 or older will have to obtain a driving license at quite some expense and then have said license immediately revoked for six months after which he will have to pass a complete driving test all over again. This is the law Alice would have recognised in Wonderland. 

COURT REPORTING

I have commented here previously and it is well known that there is a dearth of court reporting from the magistrates courts.  There are many reasons put forward for this; social media is a substitute for local reporting, local newspapers are in decline and those still publishing operate with reporting costs limited, new journalists are not well paid and court reports are generally served up by such novices in local press, public interest is lacking etc etc.  So three cheers for Grimsby Live.  I don`t know whether there is a hard copy available to the good burghers of  Grimsby but it is a pleasure for this observer to read local reports.  Other local press barons take note.