LATEST SENTENCING GUIDELINE OFF ITS TRACKS

The vast majority of the population is not in any way connected with the justice process from the police officer who used to be on the streets  to the judges of the supreme court and all functionaries in between. That is why successive Tory governments over the last decade have allowed our so called justice system to, using a vintners` term now in common usage, wither on the vine. That phrase defined as; "something being destroyed very gradually, usually because no one does anything to help or support it" perhaps describes our justice system more accurately than in its original meaning. Add to it a systemic reduction in resources available and the culpability of government becomes increasingly apparent. The last decade has also seen our sentencing system codified to such an extent it would have made Napoleon proud.  Having been retired from the bench for over five years my own opinions on the above have almost imperceptibly morphed from a sentencer within the legal orbit to a knowledgeable asteroidal outsider on a possible collision course.  Rightly or wrongly I have always been slightly apprehensive about putting the victim at the centre of the process as has increasingly been happening. It personalises everything when my inner core believes that the singling out of individuals leads to possible inconsistency. But that perception of inconsistency led the Ministry of Justice and senior judiciary to impose upon all sentencers Sentencing Guidelines which paradoxically is having the opposite effect. The situation is like two heavy lorries facing opposite directions and connected by a chain trying to drive away despite the equal and opposite resistance from each other. The Sentencing Guidelines try to eliminate individual perceived prejudices and are becoming more akin to algorithms used by computer programmers and software developers. Indeed I can foresee a time when the human input is removed totally but that is for the future and Hollywood. 

But what has prompted this rant is the latest Guideline  - Effective from 1 October 2020 Sentencing offenders with mental disorders, developmental disorders, or neurological impairments - Effective from 1 October 2020. It can be accessed in full by following the link in the summary  It is a very long document at over 10K words and presumably will be on the desk and on line for courts.  I am in general disturbed by the content. First of all at the length: there is absolutely no way that during discussions on sentencing that the full content will be in the minds of those involved.  I would assume that all would have read it through a number of times before 1st October but its application will be more hit and miss. It makes many generalisations based on "diversity" meaning effects on the mental competences of black and south Asian people. This is a dangerous precedent.  Certainly there is scientific basis for knowing that certain groups are eg susceptible to becoming diabetic.  The current Convid 19 epidemic has demonstrated that some ethnic groups have died in relatively high numbers which are statistically significant but there are also many unanswered questions revolving around predisposition. What will actually happen in a magistrates  court bedevilled by over long adjournments will be that some minorities will in effect be given literally a get out of jail free card and the refusal of such court for that to be accessible will be grounds for an appeal at crown court. Considering the logistics of both Probation and court inspired general medical services, pre sentence reports will be few and far between.  

Why as a society have we come to this situation?  The pre occupation with all that is separate, different or seeking such diversity is the driving force. The homogenous nature of our population culturally and educationally is being stretched to its limit.  This is not a statement to encourage the racists in our midst whose increasing noise has arisen with the failed and miserable existence of Jeremy Corbyn as Labour leader. This self proclaimed so called anti racist initiated the worst excesses of anti Jewish racism seen in this country since pre 1939.  

To achieve a non racist society one does not encourage separation; one encourages unification.  This latest guideline fails on that account as it fails on understanding the practicalities of its proposals on mental health.  

MINISTRY OF JUSTICE SPEECHWRITERS ARE PROTECTING EMERGENCY WORKERS

When I retired over five years ago those found guilty of common assault in theory  faced a maximum sentence of six months.  Most such offenders were sentenced to less than that and served only half the given sentence in prison being released on license  having done half their time.  Those who indeed were the subject of that six month maximum were usually found to be in the highest category of harm and culpability according to the Sentencing Guidelines. Often it was considered that if the victim were a public servant simply doing his/her job whilst being subjected to the assault that aggravating feature fed into the sentencing mix. However a year or so ago I learnt from a former colleague that public servants becoming assault victims in the course of their duties would, according to the government, be given the gratification of knowing that their assailant would be subject to a maximum incarceration of twelve months with the usual caveats of early guilty plea and early release. That of course was dependant of the miscreant being detained in the first place and progressing through the justice system. The thinking of those who have increased the available sentence in the circumstances outlined had to have been that the threat would serve to deter the incipient offender but of course that person would first of all have to be arrested, charged, brought to court and convicted with no certainty that the new maximum sentence was lawful and appropriate and last but not least overturned by appeal. There is of course a consideration that just perhaps the increase was a sop to the weasels in the press department of the Ministry of Justice so that the minister could address parliament and the public that measures were in hand to protect that very same public, notwithstanding the considerable reductions  over the last decade in police on duty, and to begin the first stage i.e.to arrest the offender. It is unlikely that the statisticians will be able to inform us or their masters of any public protection benefit for the increased sentencing powers of the courts. But much of that so called initiative has now been superseded by the announcement earlier this month that those who attack police or other emergency workers will be liable to two years maximum custody; double the existing sentence as above. The Secretary of State for Justice Robert Buckland said, 

"We will continue to do everything in our power to protect police, prison officers, firefighters and paramedics and ensure those who seek to harm them feel the force of the law". 

Since last November about 9,300 offenders have been convicted of assault and 17% were subject to immediate custodial sentences of which only 6% received more than six months.  10% of those convicted received suspended sentences while 69% were subjected to a community punishment, fine or discharge. 

It is becoming ever more apparent to those outside the courts and legal fraternity that it is a political driver rather than an informed, apolitical, supra departmental, multi dimensional  umbrella of knowledge and statistics which is in control of what has been imposed on the Sentencing Council and which in turn determines the outcomes for offences and offenders. In a world where common sense ruled, attention and finance would be thrown at offences committed by those addicted to alcohol and/or drugs who are responsible it is estimated for 70% of violent or acquisitive crime including assaults on emergency workers.  According to a Home Office report in 2017 each year in the UK drugs cost society £10.7 billion in policing, healthcare and crime with drug-fuelled theft alone costing £6 billion a year. Research shows that for every £1 spent on treatment an estimated £2.50 is saved. But it is obvious that the only weapon that this government feels able to weald is deterrence.  Whilst it, for myriad reasons not least of which is the fear of bad publicity, resolutely sets its sights against even the consideration to decriminalise illicit drug use the dealers will continue to prosper and the users will continue to suffer on their downward slope to social, financial and in many cases human oblivion.  Meanwhile emergency workers and the rest of us will be happy in the knowledge that MOJ speechwriters are doing all they can to protect us. 

BLM/ANTISEMITISM AND STOP & SEARCH

The following post comprises government and parliamentary information, public information from the Metropolitan Police and reporting in the Manchester Evening news. 

The last census informed us that in England and Wales 86% were White, 8% were Asian/Asian British and 3% were Black/African/Caribbean/Black British. In London that figure for White falls to 69.7%.  Since 2009, the conviction ratio (the percentage of defendants convicted out of all those prosecuted) for indictable-only or 'either way' offences has increased for all ethnic groups. In 2017, the conviction ratios for Black and Mixed ethnic groups were lowest at 78.7% and 79%. In 2017, the conviction ratio was highest for defendants in the White ethnic group at 85.3%. In 2017 93% of White defendants prosecuted for drug offences were convicted compared with 86.6% of defendants from the Mixed ethnic group. In 2016/17 compared with the White ethnic group stops and searches proportionate to population size were more likely to be carried out on the Black (eight times as likely), Mixed (between two and three times as likely), Asian (just over two times as likely) and Chinese or Other (one and a half as likely) ethnic groups.  Relative to the population, the rates of prosecution for indictable offences for Black and Mixed ethnic groups were four and two times higher than for the White ethnic group. For every 1,000 population members 16 Black and 9 Mixed defendants were prosecuted compared to 4 White defendants. The Relative Rate Index indicates there is a statistically significant disparity in the rates at which defendants from non-White ethnic groups are convicted when compared to White defendants.

According to the Manchester Evening News:- "Figures on the ethnicity of the suspect are not given on a local level, but national figures show that of the white people killed between 2009/10 and 2017/18, 92 percent were thought to have been killed by another white person and just 2 percent by a black person.In comparison, of the black people killed during that time, just over half - at 55 per cent - were killed by another black person, and 33 percent by a white person.This reveals that white-on-white violent crime is much more prevalent than black-on-black violent crime, despite rarely being talked about in the same way. Between 2009/10 and 2017/18, an estimated 373 homicides, including both murder and manslaughter, were committed in Greater Manchester. Of these, 288 victims were white, and 30 were black. When these figures are compared to the population, it means black people were nearly three times as likely as white people to be the victim of homicide.The number of deaths works out as a rate of 35 homicides for every 100,000 black people in Greater Manchester, and 13 for every 100,000 white people."

In May there were 43K instances of stop and search in London. In 2017 that number was about 12K monthly. Between December last year and June the arrest rate was 11% but the Met`s target was 20%.  In May 80% of young black males stopped and searched did not require further action. 

There is no doubt that the unhappy events in America have triggered public anxiety throughout the population but it has also released widespread condemnation of Black Lives Matter UK which recently announced " As Israel moves forward with the annexation of the West Bank, and mainstream British politics is gagged of the right to critique Zionism, and Israel’s settler colonial pursuits, we loudly and clearly stand behind our Palestinian comrades. FREE PALESTINE’.

The submerging of woke marxist antisemitic views within what is supposedly a representative organ to overcome what is described by its supporters as black oppression in the nation which was the first to outlaw the slave trade in 1807 devalues its ethos in the eyes of many who would wish to be supportive. This is a problem which shows no end time. 

NO LONGER JUSTICE FOR THE PAUPER; ONLY THE PRINCE

The Crown Prosecution Service is perhaps the arm of the MOJ which is more exposed to criticism than any other.  In simple terms and by any interpretation it is failing.  There are many arguments to indicate this. Whilst I was active CPS began the use of non lawyers in place of legally qualified personnel. The quality or rather lack of quality of submissions was immediately apparent.  But of course the daily routines in the magistrates courts are rarely of interest to a wider public especially as the number of such courts has halved in a decade and the media are much less inclined to have court reporters in the remaining courts.  All manner of other issues, some mere candy floss from the Home Office which considers upping a sentence will cure the disease, including consideration for "victims"  when they are complainants, false statistics on rape by Left leaning women`s organisation and undoubted grievances of lawyers who are given little consideration and even less remuneration than their position demands. Reductions in those eligible for legal aid have been disastrous for many defendants.  Inefficiencies of the police owing to their numbers being decimated over this same decade have not assisted in pre trial organisation. Indeed some estimates are of a four year waiting time for crown court trials caused by the aggravating delays owing to Covid 19. Latest statistics from the CPS show that in the year 2018/19 convictions after trial were  only  6,468 or 9.3% of a total of 69,713 prosecutions. Whilst I would hope that nobody would wish the numbers in China to be emulated where 99% of all trial defendants are found guilty 9.3% does appear to be rather low. 

This country could once have been proud to wear the mantle of having the finest judicial system in the world where the prince and the pauper could equally achieve justice. Unfortunately now it appears that it is only the prince or the film star or the Russian oligarch who has that attainment and then it is in the civil court not the criminal court.  

JPs SOON ABLE TO RETIRE AT 75

It is now virtually certain that magistrates will shortly be allowed to sit until they retire at 75.  Perhaps some bright spark at MOJ immune from "diversity and ageist" viruses will look again at the youngest age at which they can be appointed and consider that at 18 most human beings have not developed the final brain connections which will see them attain adulthood. And it`s adults that are required to sit in judgement on their fellow citizens. 

18 IS TOO YOUNG TO BE A MAGISTRATE

Amongst many unexpected effects of the Convid 19 crisis the composition of juries in the crown court has come under scrutiny owing to the enormous backlog in trials which some experts are predicting could take four years or more to clear. This has caused some angst at the Ministry of Justice which has been suffering more than many other government departments from the austerity imposed from 2011 resulting in the closure of half the nation`s courts. 

The  jury system in England can be traced back to Henry II in the 12th Century becoming formalised under Magna Carta a century later when it can be said that the magistracy also came into being.  It wasn`t until 1919/1920 in the aftermath to the Great War that women became eligible both for the magistracy and for juries. From 1825 to 1962 a juror was required to own property.  In 1972 the age requirement for jury service was lowered from 21 to 18.   In 1988 the maximum age of jurors was raised from 65 to 70 and in 2016 to 75. In 1995/96 an inquiry undertaken by the Home Affairs Committee, suggested that of 875 new magistrates only 22 per cent were under the age of 40. In 2004 the age requirement for appointment to the magistracy  was reduced from 27 to 18.  In that year there were 22 magistrates under the age of 30.  In 2015 Alex Hyne, aged 18, became the youngest magistrate.  The following year a 19-year-old law student Lucy Tate was appointed. Latest statistics indicate that currently there are 123 magistrates under the age of 30 out of a total of 14,348 in England and Wales.  It`s a widely held view that the number of young magistrates must be increased but there are no statistics on the numbers of each age in this group.  It has been argued over recent years by many scientists including Peter Jones of Cambridge University, that the human brain does not fully mature until the early to mid twenties or even later. The most important brain area to become fully “wired up” in adulthood is the prefrontal cortex — the front portion of the frontal lobe. This area handles many of our higher level cognitive abilities including  planning,  problem solving and decision making. It is also important for cognitive control — the ability to suppress impulses in favour of more appropriate actions.  It is arguable perhaps that the 1972 decision to lower the minimum age for jury duty and the 2004 decision to appoint magistrates from the age of 18 was in ignorance of the cognitive  maturity of those teenagers.

When oblique reference was made in a recent tweet alluding to this argument I was castigated for the mere suggestion that  the lower age level  was too young. Some commenters  insulted my integrity and position as a retired JP. It is a very sad day when Twitter users ranging from QCs to students to new young JPs cannot debate this topic without resorting to insult.   Crowd opinion seeks to block reasoned alternatives and their proponents. Blocking or censoring unwanted opinions is taking our society to a cliff edge most cannot envisage: where democratic freedoms, not least of which free speech, are defined by those with the loudest voice.  J.K. Rowling, creator of Harry Potter, and a philanthropist to many causes was recently subject to hostile abuse because her opinions on trans people “offended” many who considered that their opinion brooked no dissent. Recently, “Father Ted” creator Graham Linehan and right wing provocateur Katie Hopkins were both permanently blocked from Twitter for expressing their views.  

The Referendum opened breaches not only in society but expanded the license of reasoned debate to include harassment, verbal and physical, loudest voice wins and levels of anti-Semitism perhaps not seen since the 1940s.  With the current backlog of crown court trials proposals to have the backlog reduced by enabling a single judge to sit with two magistrates for matters at the lower end of seriousness the issue of age of the latter becomes a topic of some concern. Not many of us would assume a similar level of expertise from an 18 year old vis a vis a 27 year old in any other discipline.  Why do we accept that for the sake of “diversity” an 18 year old is adequately to fulfil  the judicial function of sitting in judgement on his or her fellow citizens having the wisdom so to do?   Perhaps we can learn from the Chinese where the philosophies of Confucius and Mencius prevailed for thousands of years and aging indicates an increase in wisdom.                                                       

JUDGE ONLY TRIALS??

Historians or perhaps pedants will wax loudly that the history of trial by jury in England goes back to Magna Carta in 1215 which I suppose has some basis in fact if one is referring to the trial of lords and nobles of the realm. So: a very brief history....... For the common man or woman no such justice was available; a bench of magistrates consisting mainly of local landowners and/or power brokers was the seat of justice with considerable sentencing options; although the most serious offences of the day were sent to Assize Courts. Up to the middle of the 19th century JPs could sentence offenders to hanging. They could also sentence to transportation to North America and the Caribbean, to whipping and the stocks and to fines. Needless to say these benches consisted  of men only. It was in 1920 in the aftermath to the Great War that women became eligible for juries. The acts of 1825 laid down the following qualifications for jury service. In England and Wales they were  that a juror should possess an income of £10 a year from real estate or rent charge or £20 a year from leasehold of not less than twenty-one years or secondly should be a householder living in premises which were rated no less than £20 a year or in Middlesex and the County of London specifically with a rateable value of not less than £30 a year or thirdly should occupy a house containing no fewer than 15 windows. It wasn`t until 1962 that the property requirement was abolished. There are specific rules where trials without juries are the norm but that fact is of no concern in this instance. This post is concerned with the current situation as it affects trials in the crown court where the normal jury consists of twelve and where in the first instance a unanimous verdict is required reducing to 10/2 if so judicially directed.               

Owing to the current crisis over corona where crown  court trial timetables have disintegrated on top of ever increasing delays  because of court closures and reduced judicial sitting times there is a backlog of 41,000 trals with an estimated five year time period for clearance. This is intolerable.  To expect witnesses to give evidence of events five years in the past is recognised by all involved as ridiculous and a real threat to justice being done and being seen to be done. The lord chief justice Lord Burnett has mooted that trial without jury must be an option when considering how to reduce the backlog.  This idea has had a  mixed response with some QCs for and some against with a similar divide amongst other legal professionals. My opinion for what it`s worth has been made here more than once; to expedite matters a judge of the crown court should be enabled to sit with two chairman  magistrates who have been approved and have experience of sitting with a judge on appeals to the crown court by offenders arguing their conviction at the lower court.  There are those who would argue that the judge would overwhelm those JP assessors but my personal experience negates that apprehension. Many former colleagues as well as myself were and are  impressed with the inquiring and respectful approach of crown court judges when discussing facts of an appeal. As a plaintiff at a tribunal appeal I personally was a plaintiff facing a bench of a high court judge and two unrobed assessors.  If a high court judge can have his/her interpretation of the facts open to discussion so can a crown court judge.  Indeed the finding of fact would be the only task of the JPs; all other processes would of course remain with the judge. 

I cannot for one moment believe that the current delays will be allowed to continue. The MOJ will not relieve the list by allowing magistrates courts to have increased sentencing powers.  It is highly unlikely that some or any either way offences will become summary offences and no either way offences will have the defendants` right to choose removed. So there is a simple choice facing the Lord Chancellor to reduce the stain on justice of delay; judge only trials or judge plus two suitably qualified magistrates.

MAGISTRATES` ETHNICITY

This is a very short FYI  latest statistics table on the gender and ethnicity composition of the magistracy.

EXCEPTIONAL HARDSHIP AND APPROPRIATE RESULT

I`ve reported here on many occasions on the excuse often put forward by those disqualified from driving as totters; an accumulation of 12 points on their driving license; namely "exceptional hardship".  Putting these words into the search box will open many of these past posts for those with time and interest. All too often both before and since my retirement I have been astonished at benches` decisions favouring the offender on many occasions.  However today there is a report in the Gazette and Herald of an appeal in the crown court by an offender whose plea of exceptional hardship was rejected by magistrates at his original hearing a few months ago. The words of the presiding judge flanked by two magistrates are as clear and damning as any similar I have ever read.  His reasoning and those remarks should be essential learning material  for all magistrates.

BACK TO THE FUTURE

The government doesn`t jail people; courts jail people.  Such a simple statement of truth but one which Tory governments seem to consider unimportant and there to be defied.  Today`s headline in TheTimes is so revealing.  

It was only yesterday in a written answer the Lord Chancellor wrote:-

Robert Buckland: ...network for released prisoners or people on community orders. My ambition is to ensure that community sentences are so robust and effective that, when it comes to decision making by judges and *magistrates*, they will be the default choice as opposed to very short sentences that can frankly do more harm than good.

To quote the song, "what a difference a day makes". Just as in 2011 during and after the riots which enveloped many cities the then Tory dominated government issued "orders" to magistrates courts that defendants facing either way charges should be sent to the crown court. Regular readers here might be aware that last Tuesday June 9th I wrote of my own experiences at that time when my two colleagues and I defied such an instruction issued by the Deputy Justices Clerk to the whole bench.  It seems that today in its headlong drive to appear strong and the party of law and order the Lord Chancellor who should know better with his reputation as an honourable man has seemingly bowed to the pressure of yet another Home Secretary with well defined signs of an authoritarian outlook defining her post. All of which leads me back to my opening remarks. There is no doubt that those arrested on charges associated with public disorder will not necessarily have the benefit of legal advice in the police station owing to there being fewer lawyers undertaking such work because of the derisory conditions associated and they themselves being unable to pay for such advice through lack of means and/or knowledge.  I would add that it is a virtual certainty that most if not all such defendants`cases  will be heard before a single district judge and not a bench of magistrates for the simple reason that there will be little likelihood of those paid judges openly defying the "send to crown court orders" and make no mistake they will be "orders" however the instructions are dressed up for private or public consumption.  Taking matters a stage further I doubt that even after a plea or finding of guilt in whatever court that a timetable of 24 hours can be achieved without dreadful harm to the offenders` rights of representation.  To publicise an intention for custody to be the result of this speedy 24 hour so called "justice" is a further travesty of our rapidly declining concept of fairness within our justice system. For the last five years or more, government has repeatedly done all things possible to avoid the prisons being further overwhelmed by prisoner numbers far in excess of what can be coped with without the rights of the inmates being so eroded that it is a disgrace to our once civilised society.  There is also the issue of bail. It is hard to see that that option will be honoured to the clear letter of the law if matters proceed as appears to be the case. As far as actual sentencing is concerned that as in 2011 judges will emphasise that "deterrence" was an issue which accounted for sentences which not just stretched the Sentencing Guidelines but drove a coach and horses through them as justification. 

It must now be obvious to all but the most obtuse that our civil rights as citizens of a country to be ruled by law are being eroded at an ever increasing rate. Of course the hard right "Brexiteer" wing of the Conservative Party in and outside parliament will rejoice and allow our blustering, incompetent and although highly intelligent buffoon of a prime minister to continue unchecked until some of his own discarded high flying M.P.s decide enough is enough. In the meantime the fascist Left will milk the forthcoming riots for all that they`re worth relishing the opportunity for true and heavy violent reaction. Police will be again caught in the crossfire undermanned with their own senior ranks looking backwards as well at what awaits them ahead on the streets.

The feelings of distance by many black people are entirely justified.  The history of policing misconduct is an open wound for them and others but we are in a place now where the prime minister is learning from and following the Donald Trump Playbook.  Real democracy doesn`t disappear in a flash of gunpowder; it is killed by the salami slicing of our liberties. The slicer is well and truly plugged in.