ONLY THE NAME WILL BE THE SAME

There are some who opine that magistrates or retired  magistrates should not take part in activities such as blogging. Unlike the paid judiciary whose livelihoods and pensions depend upon not biting the hand that feeds them magistrates are volunteers.  They offer opinions and knowledge that often is not listened to or does not percolate through the established layers of communication.  Indeed the MOJ was so concerned to keep the so called independent magistracy under its control that last year it advertised for magistrates to be appointed "leadership magistrates". So unlike the previous senior magistrates who were elected by their peers via the Magistrates Association or from the Bench Chairmen`s Forum  and who liaised with the various judicial committees these incomers would be beholden to the Lord Chancellor for their positions and opinions whether or not the latter were truly representative of their 15,000 colleagues. Sad to relate this is just another small step towards the bowing out of the independent magistrate as chairman over the court which bears his/her name. The name will be the same but the game will not. A lone District Judge (MC) will range over our courts and trial by a jury of three will be but a historical footnote for future generations. 

BLOWING MY OWN TRUMPET

Today the government has published "Going to a criminal court - support for defendants". This initiative is long overdue. Without blowing too hard on my own trumpet, in my blog of 28th September 2015 I suggested the very same. To quote, "My personal opinion for what it`s worth is that the provision of literature,  sent with summons and supplied  at remand courts, that explains procedures and consequences of plea and allocation is long overdue.  In the foreseeable future with anticipated increases in litigants in person it would be criminal not to so do".  The complete blog was based on interviews with a number of my former colleagues.  The complete post is available here.

SHOULD SENTENCING LEAD OR BE LED BY PUBLIC OPINION?

The country is divided by Brexit; of that we are all aware. The judiciary is divided on sentencing but we don`t hear about it until judges are retired. In a similar fashion magistrates are similarly divided on those who take a view in line with MOJ Sentencing Guidelines and try to err on the side of leniency and sympathy for the offender. The other faction takes a more traditional view; a view which has more in line with general opinion but still subservient to the Guidelines. I make no apology to anyone that whilst following those Guidelines  and in consultation with my two colleagues my opinion would also take into account public protection such a position sometimes being overlooked by magistrates and their legal advisors. The final decision of magistrates sitting in Wigan and Leigh Magistrates’ Court on this case erred on the side of leniency and sympathy IMHO of course.

The philosophical question of course for that sentencing decision as with all others is how much sentencing should lead or be led by public opinion. There is no doubt that in general sentencing has become more severe in the last decade; prisons are bursting so hence the astonishing number of custody suspended orders.  In truth so much of this debate is happening  because those responsible for the rehabilitation of offenders, especially those from youth courts and adults who are addicts have not had the funds to do their job as it should be done. The failings at the MOJ are legion and a disgrace to us all. Unfortunately there does not seem to be any motivation from any political party to enable meaningful change in the future.  Bland socialist wishful thinking on one side and still a rump of hangers and floggers on the other pandering to their core voters are more hindrance than help. 

Brexit or no Brexit, Deal or No Deal will have not the slightest significance for a justice system which seems to have lost all sense of direction obfuscated by a huge PR department which is possibly the most successful section in Petty France.   

JUDGING THE JUDGES

There is no doubt that every government of every hue has to manage secrecy.  That is a simple statement to make but far from simple to practise and manage.  Since the catastrophic decision to hold a referendum in 2016 to this casual onlooker it appears that there have been more leaks from the government than in the water pipes under London` streets. But there is one department where leakage of information seems to be kept under control and that is within the Ministry Of Justice. Despite or perhaps because it has an enormous press and public relations department employing many dozens or perhaps hundreds of workers; even that number is not available, the goings on surrounding those who are the public face of justice ie magistrates and judges are strictly off limits.  Certainly the public face of retribution for those under its auspices erring or deviating from sometimes obscure guidelines; the Judicial Conduct Investigations Office  publishes its somewhat truncated reports monthly or even more frequently. But what is unavailable for inspection, unlike disciplinary hearings at the General Medical Council and similar organisations is a complete report of the circumstances surrounding the alleged guilty party including any defence offered. It is totally valid statistically that magistrates figure in these reports many times more than others also beholden to the same body. What we do not know is how many individual investigations fail.  Not even anonymised statistics are publicly available.  How ironic that it is the Ministry of Justice where open justice is concealed. 

During my active time on the bench I was privileged to have very courteous knowledgeable District Judges working from our courts and who were always available for advice and guidance. Others became known to me by their presence at training events and others still on a social basis. I suppose in total they numbered many dozens if not a hundred or more one of whom was Margot Coleman. It surprised me to read that she retired on October 1st many years before the compulsory retirement age. She had presided over a court last year which  found Boris Johnson had questions to answer over remarks made during the Brexit referendum campaign and which was later overturned on appeal.   Having noted our prime minister`s reaction to the recent judgements of the Supreme Court and his vindictive manner with regard to possible consequences to that court`s constitution I sincerely hope that Ms Coleman`s early departure from the bench is unrelated to her actions last year. 

FREEDOM SWAN`S FRANTIC WEBBED FEET

We all have become accustomed of late to earth shattering  legal decisions which have or will have profound results for our daily lives and/or the way we live both as individuals and as a nation.  However it`s not always the headline making stories of legal jousting which illustrate just how authority or those entrusted with enabling parliamentary direction alter people`s lives. 

The police have been granted since my appointment two decades ago, increasing powers of control over ordinary citizens without recourse to the courts.  Indeed some forms of authority which used to be under the auspices of police at superintendent level are now available to inspectors. Evidence based out of court decisions by police or local authorities are not now necessarily the norm.  An interesting case at  St Albans Magistrates' Court before a professional District Judge (MC) rather than a bench of magistrates which arguably would have been more suitable in the circumstances has been recently reported involving a man`s private hire driver's licence. A fairly comprehensive report is available here. Nowhere is it mentioned that the individual was legally represented.  Thus his livelihood was taken from him on a subjective balance of probabilities.  I find this case very disturbing.  His rights as an individual seem to have been as secure as a dissident`s in Soviet Russia. Of course he has the right of appeal to a higher court but from all accounts he is an ordinary working man without the means to pursue such an action.

There are those who will maintain very loudly that this is a "free" country.  A case like this suggests that the gliding appearance of the freedom swan on the placid surface of the river of state is belied by the increasingly frantic motion of the underlying webbed feet beneath that surface.

SENIOR JUDICIARY MUST REMAIN ABOVE POLITICS

The Supreme Court has had more exposure in the last week than since its establishment ten years ago. For this retired magistrate it was a pleasure to witness the eloquence and purposeful arguments put forward by both sides` lawyers.  The final judgement was a masterpiece in logical structured reasoning which left no room to doubt the diligence in the way that that judgement was reached.  It was regrettable and inevitable that as soon as it had been broadcast some politicians on the Leave side of the Brexit debate accused their lordships and ladyships of bias. The accusation made in 2016 by the Daily Mail will not be forgotten.

Enemies of the people: Fury over 'out of touch' judges who have 'declared war on democracy' by defying 17.4m Brexit voters and who could trigger constitutional crisis 

• Judges ruled Brexit could not be triggered without a Westminster vote
• The Lord Chief Justice and two colleagues were branded 'out of touch'
• They were accused of putting Britain on course for a 'constitutional crisis' 

By James Slack, Political Editor For The Daily Mail

Published: 23:38, 3 November 2016 | Updated: 15:26, 4 November 2016

Yesterday the Attorney General putting forward his best booming bombastic response suggested that it was not unlikely that in future aspiring appointees to the Supreme Court  would require some sort of vetting.  When I applied to the magistracy on the application form  there was a box to be filled in naming the political party to which I had given my vote in the previous general election.  I left it blank only for the form to be returned some time later with an accompanying letter which told me that my application would be rejected unless I filled in the appropriate information. I complied. It is some years since that iniquitous demand has been rescinded. When we are witness to the interrogation that takes place in the USA for Supreme Court appointments we should be very thankful that our current system is as it is.  It is the very distance from political interference which gives strength to our senior judiciary.  It would be a very thin edge to a very thick wedge were we to allow even a hint of political interference in the process.    

THE LEGAL PYRAMID

Currently the nation has the opportunity to see and hear the finest legal brains exercising their minds on the prime minister`s recent proroguing of parliament.  We all should be proud that the pinnacle at the very top of the judicial pyramid can produce such exquisite minds on and before the bench. However the very careful considerations and histories which have brought us this bounty are the antithesis of the situation at the base of said structure. Availability of even the most limited legally qualified mind is now rarely available for the millions who appear annually before the bench in magistrates courts.  The provisions for any form of rehabilitation  for the 70% of offenders who are addicts involved in violent and/or acquisitive offending are in practice few and far between.  Consideration of a non court pathway if it has been considered at all by MOJ has been given short shrift.  By the actions of Chris Grayling the probation service is struggling to cope with demands upon it with consequent reactions from a staff whose morale is as low as it ever has been. Latest figures show that £653 million pounds is owed for unpaid fines; a figure which has remained roughly unchanged for a decade. Bob Dylan made his reputation by simple poetic lines such as "When you have nothing you have nothing to lose". The bench recently at Isle of Wight Magistrates' Court might have had that couplet in mind. 

Regular readers might be bored by my repeating that out of the box thinking must now be taken by those who govern us for the hundreds of thousands of cases similar to this.  My hobby horse is that a modern form of the Victorian concept of the workhouse must be considered. Put that "W" word into the search box for previous posts and consider what changes would be developed if you were in control. 

MOJ CONTROL BY MANAGED DECAY

In some respects the criminal justice system doesn`t know whether it`s coming or going.  That directionless state can, I suppose, be placed at the feet of the four prime ministers of the last  decade who have saddled arguably the most important pillar of our democratic society with no less than eight Justice Secretaries each of whom had his/her "vision".  An obvious example of this antithesis to joined up thinking is the confused attitude to sentencing.  Ever since it was decided that judges and magistrates could not be trusted to sentence according to the structured sentencing system which had been inculcated into them all, Sentencing Guidelines have become the bible for all sentencing decisions from the very simplest to the most serious. The original Guidelines of 2010 have been modified as almost an annual undertaking.  The custodial powers of magistrates courts have been mooted to be increased to twelve months from the current six to being abolished altogether.  The newly appointed current incumbent of Petty France has stirred the sentencing plot yet again by her recent announcements to increase the severity of sentencing for the very most serious offences.  My own view expressed many times here is that institutions must be established to offer a non court pathway for offenders whose substance addictions are driving their offending, such offending estimated to be responsible for 70% of  violent and/or acquisitive crime.  

Notwithstanding the above I was pleased to read of common situations where, in contrast to government direction to avoid immediate custodial sentences at magistrates courts, two offenders were sent to immediate jail for offences and histories which I believe all but fanatic believers in non custody outcomes would applaud. Fortunately most of us will not be involved directly as victims of crime on the streets, in the pub or in our homes but on the roads as drivers or passengers in cars and other vehicles the situation is quite different. My wife`s best friend`s daughter was killed driving her car on the M6 by a repeat disqualified drunk driver who was disqualified, using her mobile phone and drunk at the time. These two examples of society`s retribution for such offending are, I fear, not dispensed perhaps as often as perhaps some would wish. Instead the MOJ recently issued a press release to ban all mobile phone use in a vehicle including those that in most new cars are hands free.  This legislation will never happen.  It is a frightener from the weasels at Petty France in conjunction with "look at me attention seeking MPs" to divert attention from matters which do require our attention; namely returning legal aid provision and CPS numbers to 2009 levels notwithstanding proposals to reduce even further the numbers of magistrates courts.    

That is the system which is being undermined every day by a government which regards it as a necessary evil to its long term target of control by managed decay. Perhaps there are those who look upon courts of the 19th century as the best application of justice for the common man?

COURTS CAN PROTECT SCHIZOPHRENICS BUT CANNOT REHABILITATE ALCOHOLICS OR ADDICTS

Every magistrates` court every week has before it a Darren Marples, of no fixed abode. He might have a different name, he might be black or he might occasionally be female but he invariably has a long history of public order offences and is more often than not of no fixed abode. He is always an alcoholic and/or drug addict. It is not unlikely that he has in the past served one or more short custodial sentences. In the past he might have had a court order made to address his alcoholism/addiction. If he were married he is now separated or divorced. If he had children he is no longer in touch with them.


Darren Marples should be confined by a compulsory order to an institution where he could be treated just as those in the appropriate circumstances can be sectioned and treated by mental health workers having if necessary been granted a warrant of entry from a Justice of the Peace. Of course those financially equipped can avail themselves of all the help and assistance available to medical science but for most of the Darren Marples of this world those clinics could be on the planet Mars. The phrase “be cruel to be kind” is applicable in both cases; schizophrenics and alcoholics and/or drug addicts but the former have that protection that the latter are denied

MUSINGS ON THURSDAY 5

During my tenure on the bench I had several cases where a foreign offender appeared to be eligible for deportation; in theory at least. It would seem from my experiences and cases publicly reported that expelling an offender who comes within the guidelines is virtually impossible insofar as the process is Kafkaesque in its complexity. Therefore IMHO for a district judge to cry "wolf" in this case is bluster and bluster is unwise from judicial figures. 

Of all the iniquitous financial reductions imposed upon the justice system perhaps the very worst is the reduction in the availability of legal aid.  At Barkingside and Romford magistrates' courts notice has been given that there will be  further difficulties for defendants as fewer solicitors will be available to assist them.  This is a national disgrace but apart from most professionals will be recognised as such only by those caught up in the court system. 

It`s unusual for a defendant being given the maximum custodial sentence at a magistrates court also having that sentence suspended. All I will say is that if I were involved the sentence would have been shorter and it would have been immediate. 

At Sheffield Crown Court a remanded defendant refused to appear in court by video link for the first hearing yet the judge did not sentence him for contempt.  Am I missing something or was this another example of a judge failing to use the powers at his disposal specifically available to punish those who treat the law with disdain.