BLEAK PROSPECTS IN THE HOUSE

This is a first post of a new year but unfortunately although not unexpectedly once again we are forced to listen to an aspiring warlord of a home secretary telling us how we are going to be kept so much safer in our daily lives by the actions she is undertaking for our protection. Methinks we have heard it all before.  In the last few days she has pledged to use new stronger powers to deport criminals and deter illegal immigration.  Considering the latter proposal it has been apparent for the last year that this country just does not have the naval facilities to combat the illegal flow across the channel and even if it had what actions could it undertake accepting of course that it is against international law to use force lethal or otherwise to stop such people reaching their desired destination. Prevention is often said to be better than cure but even with willing partners in France and Belgium it is impossible for them to police 50 miles from Ostend to Calais 24 hours daily. Knowing that such illegal traffic is directed by criminals,  authorities in all three countries involved have scarcely made any inroads into arresting and convicting those gangs who, by all accounts, are making millions of pounds from their human cargoes. These usually impoverished people consist of some who are fleeing repression in their homelands of Iran, Syria or Africa and the remainder who seek to improve their economic status by coming to Britain. It has been considered that the numbers of unaccompanied young males is indicative of the latter group. But the official numbers by their very source can provide only a fleeting glimpse into the whole problem analyses of which provide great difficulties for those with vastly more knowledge than I. 

On her other assurance to a public which she presumes to be as spectators at a medieval hanging at Tyburn she has outlined plans to make it easier to remove offenders who are subject to custodial sentences of six months.  On this topic I can opine with some personal knowledge. Current policy imparts any person of 17 years or over who does not have the right of abode who is convicted of an offence is liable to a custodial sentence and recommended for deportation by a court which has the power to sentence him.  The fact that a court has decided not to make a recommendation for deportation does not debar the Secretary of State taking such action on the basis that such an offender is non conducive to the public good.  In May 2006 it was recognised by the Labour government that there was a need to prioritise cases by the level of risk that a person posed to the public for those given a 12 month custodial sentence either in one sentence or as an aggregate of sentences over a five year period. That provision, of course, enabled an offender who received two consecutive six month sentences at a magistrates court; infrequent but not unusual, to be subject to deportation. These and other provisions became law under the terms of the UK Borders Act 2007. I recollect in that year my bench, against the advice of our legal advisor at the time, instigating such a process against an East European who had been convicted and sentenced to be within such provisions. After voluminous correspondence it was rejected.  To reduce the required prison sentence from 12 to 6 months for the sanction of deportation to be available the Home Secretary is behaving with a similar  mindset as Nero throwing Christians to the lions. She is offering what she believes is the public demand to deflect much warranted criticism of her own follies. Thus many offenders convicted of low level drug offences, thousands of motoring offences and common assault  could be on her "deport them" wish list not to mention a multitude of other offences tried summarily at magistrates courts.  Considering her recent outbursts against lawyers and political opponents who offer logical criticism in principle and of the logistics involved there is no doubt in my mind that her proposals will meet short thrift unless the current incompetent and overtaxed prime minister decides to use parliamentary dictatorship and his political capital to force through such measures through the House of Commons. 

This is the state we have reached in this country: an inability for many years to provide enough hospital beds and equipment, a myopic money saving effort involved in the closure of half the country`s magistrates courts with the resultant delays, a transport infrastructure in disrepair to be balanced against the spiralling costs of a new railway which is already outmoded, a population of ever increasing child poverty, a miserable housing situation for a large minority who will never be able to buy their own home and so many other public services not fit for purpose.  One does not have to be a member of the Corbyn cult to realise that something is failing in the way in which we are governed.  And as previously mentioned that time honoured method of diverting public criticism is alive and well in this new year as it has been in every year previously; get rid of the foreigners who are the cause of it all. Italy, Germany, Rwanda, China, USA...........  The numbers, methods and enforcement might vary but the underlying motivation is the same.  I`m an optimist but the prospects are bleak. 

"SLAINTE MHATH" OR FOR THE NON GAELIC SPEAKER "CHEERS" EXCLUDING THE WEE BEASTIES

 Although I hadn`t planned on posting here until after the new year natural curiosity in checking day to day events which might be of interest overcame my reluctance. 

It would appear that, simple as it appears to me having bought, sold and managed various business projects in my previous life, the notion of HMCTS being able to inform its staff that many black and ethnic minority people attending court do so in a professional capacity and not as defendants is beyond its capabilities. In any normal business or professional environment those individuals responsible for that lack of training and of grievously insulting non white attendees would be severely admonished or sacked subsequent of course to so called HR investigation. There is no doubt in my mind that that organisation is no longer fit for purpose irrespective of all the "good news" put out by its inflated task force of weasels in its PR department.  

Sometimes I just fail to understand the leniency of some magistrates when dealing with a case which clearly requires the maximum sentence available for said offence.  Such was the decision recently at Northampton Magistrates Court when a driver in a 40MPH zone was clocked at over 100MPH.  He was given six penalty points when the maximum for said offending is 56 days disqualification. Perhaps, if he already had points on his license, the thinking? process of the bench was the sword of Damacles approach "next time a ban will be inevitable". The short report leaves questions unanswered.  

At the same court on December 21st the chairman of the bench was castigated by commenters apparently echoed by the reporter for very severe words to an offender who had been released from a mental health institution shortly before he had offended. There is no doubt that governments over the last two decades have brought nothing less than havoc to the treatment of those with mental health problems.  As a society we have accepted the predictable results of such incredibly myopic actions. We have actively allowed millions of our fellow citizens to suffer their agonies unchecked until they appear in a courtroom.  My suggestions here and elsewhere that a modern form of workhouse (use search if interested) be established for particularly vulnerable people have been ridiculed. Current treatments and rules for mentally sick and also those with addictions are not fit for purpose. But like legal aid such matters flow beneath the popularity horizon of most of the population until they are personally involved and government is very happy to let that insularity continue until perhaps major events intervene. 

Finally for those wish an insight into current court statistics access here.  

With many of my generation awaiting a message from their GP to be next in line for you know what I will be content to see in my next Hogmanay with a large glass or two of 12 year old Glenlivet. Slàinte Mhath (Pronounced Slanj-a-va)

ROLL ON VACCINATION DAY

 A year ago I posted the following:-

"I suppose "peace on Earth and goodwill towards men" sums up precisely what the world needs most. Unfortunately recent events indicate that that aspiration might never be attained.  However until such time that that enduring phrase is erased from our consciousness and our consciences we can but be hopeful that we might reach an era when its repetition offers some solace to all of us.

I thank all my readers for the precious minutes they have spent to read my simple offerings in 2019 and hope to be back here with some more of the same in January."  

There had been, around that time, the most fleeting of references to a "new flu" type infection in a part of China of which few of us insulated in the west had heard.  Now we are deafened by the continual information being directed towards us by all media.  To my personal astonishment there are still some diehards mostly emanating from the "land of the free, home of the brave" where ridicule is directed at those media with their scientific all too rational reports. From a country where we have had an astonishing display from a petulant president inciting his cultist followers almost to a state of rebellion it would be no surprise if someone somewhere in Alabama or Mississippi announced the second coming of his messiah.  The original such coming took three hundred years for his being to become the established deity by its greatest antagonist.  Communication is now but an instant for all with the advent (no pun intended) of Twitter, Facebook and Instagram. As a contributor to the first of those outlets I am well aware of how even the most cut and dried and sometimes  mundane legal matters can elicit the most venomous of responses. Notwithstanding those, our legal system is being undermined from the very top if that`s not an oxymoron. We have had recently the Attorney General lodging an appeal against the supposed lenient sentences given to the killers of PC Harper. On dismissing that appeal  the senior judges appeared to criticise the attorney general saying that rather than pointing out errors in following sentencing guidelines she argued that the judge should have violated the guidelines. A few days ago the Home Secretary made on line comments about the trial of those involved in the death of 39 immigrants in a sealed lorry container: comments which nearly were the cause of a mistrial. A full report can be read here. 

There has been a history of late of the executive attempting to compromise the legal process of Brexit and parliamentary procedures. The portents for our well being as a society are being threatened by government in its undermining of the legal and justice system and its practitioners on and in front of the bench. The divisions in so many areas encouraged by such organisations as Black Lives Matter and the trend in so many spheres of employment and elsewhere for quota systems to operate are a road to despair. Where does a quota begin and end and are those in any selection content to know that suitability  for a position might or might not have been solely on merit?  The times they are a changin`. Bob Dylan recently sold his library for $300 million. Judas sold Jesus for 30 pieces of silver. We are selling our political souls for a 30 second sound bite.

We can`t vaccinate against authoritarian government tendencies but we can against Covid 19. For those of my generation especially, roll on vaccination day. Have a hale, hearty and endure with fortitude a more lonely Christmas and New Year than expected. BE SAFE.

LEGAL MUSINGS ON TUESDAY

From time to time there are little seen news items with a legal flavour which pass largely unnoticed by many but which offer a snapshot view of our justice system by practitioners and offenders.

The furore over BBC licensing allied with cheers from often right wing commentators at the prospect of the license fee being decriminalised usually brings forth noises off from the opposite political dimension and of course the luvvies who, with a few notable exceptions, endorse the "downtrodden" wherever and whenever the opportunities arise.  One interesting fact in all this is that one third of female convictions is for license fee evasion and women accounted for 74% of the 114K offences of this nature last year. One possible explanation is that the door opener to an inspector is the person held liable and it is thought many more women than men are home at those times when an inspector calls. 

In the last decade the number of police traffic patrols has dropped by around 30%. In 2017 insurance companies began accepting in car videos as evidence for claims and courts began accepting them as evidence for prosecutions. In that year 2,612 videos were presented to police of which a third were used as evidence of an offence.  This year it is estimated 32,500  will have been submitted to police. 10% of the third acted upon have led to a court prosecution. 

21% of solicitors are BAME yet according to the Law Society Gazette the Solicitors Regulation Authority confirmed this week that the group made up 26% of individuals reported to the regulator in 2018/19; 32% of those whose cases are taken forward for investigation; and 35% of those whose case concluded at the tribunal. There are obviously many reasons for this apparent statistical imbalance; some political and some not but it seems so many aspects of our society are being driven by similar analyses. The full Gazette article can be accessed here. 

Finally, below for ease of access I have copied an article from Worcester News. In my humble opinion justice was not done on behalf of the victim nor of a society which, sadly, is losing faith in the judiciary to do right by them according to their oath.    

 "A man who reversed over a pedestrian in his car before fleeing the scene has been fined and banned from driving at Worcester Magistrates Court.Thomas Roche appeared before magistrates in Worcester on November 20 charged with causing injuries to the leg and knee of a pedestrian who he reversed over while at a junction in Evesham on November 7 last year.On the day in question, Roche, 25, was reversing at a give way sign in Worcester Road when he hit a pedestrian walking behind him.The pedestrian’s wife shouted at Roche, of Sandleheath Road, Hampshire, to get his attention, but the court heard he carried on, injuring the man’s knee and leg. He then went on to drive away from the scene without stopping to exchange details with the injured pedestrian, also failing to report the incident to the police.Further checks carried out on the vehicle he was driving, an Audi A3, showed Roche was not listed as the named driver on its insurance policy.Roche originally pleaded not guilty to the charges, but changed his plea when he appeared in Worcester, where he was fined a total of £1,020 as well as having six penalty points put on his licence." 

SENTENCING COUNCIL KOWTOWING TO POLITICAL CORRECTNESS

There is no doubt that the subject of racism is around us in ever increasing contexts.  I would hazard a guess that in the public eye racism in sport and in crime ranks of more interest and concern than in other contexts  eg employment or education although like many others I am no expert on sociology or statistics. Although the R word is bandied about it is mostly when discussion about black people takes place. "Asian" has become a euphemism for those mainly of Pakistani origin or heritage. In brief there is well documented history of criminal activity by male members of that social group which has been actively suppressed by law enforcement and associated agencies. The reasons for such "blind eyes" have in recent years been admitted as a fear of accusations of racism.  The knock on effects of such dereliction of duty by the involved agencies are becoming public knowledge almost weekly. The association between the sometimes medieval attitudes of some of those within that group and abhorrent criminal activity  have prompted a more realistic attitude by police and courts. The fear of their being denounced as racist by some Muslim organisations has given way to the view that everyone is equal before the law whatever brickbats might be hurled at them metaphorically and literally. The benefits to the vast majority of perhaps the third generation of immigrants from Pakistan are profound.  They are proudly British and seek to attain the highest levels within society that their abilities allow.  But many black people who comprise around 13% of the population have histories utterly dissimilar from south Asians.  They did not immigrate to these shores seeking a better life. As is common knowledge their ancestors were, over a period of four centuries, torn from their homes in mainly west Africa by European slave traders; Spanish, Portuguese and predominantly British.  The fact that Africans were also involved is neither here nor there. The heritage of those slaves is not some subconscious memory in their descendants; it is active and all consuming as is the collective memory of the Holocaust for many Jews.  Generally comment is one way.  Rarely is it spoken publicly of the enormous and statistically exceptional performance of black sportsmen and women. Athletics provided Jesse Owens in the 1936 Berlin Olympics with the perfect opportunity to prove that Hitler`s nation of so called aryans was inferior to his trained body where his muscles` structures were superiorly adapted to his sports.  And it  continues to this day whether in boxing, athletics and of course in football. At all levels of the game but seen by millions in the Premier League black players form more than a quarter of the clubs` players; twice the proportion of black people in England and Wales. This should be a matter of pride for all but is often overlooked when eg bemoaning the lack of black managers. The current furore over "taking the knee" from both pro and antagonists is a clear example of the distress in which this subject is mired. The politicalisation of Black Lives Matter is significant despite denials. The recent outcry over Millwall supporters is an example of confused thinking. The majority of observers have castigated those involved as racists. That is a popular response but misses the point.  Taking the knee is a political act.  Rejecting that does not demonstrate racism against black people. Those in fascist Italy and nazi Germany who refrained from the salutes associated with the leaders in those countries risked loss of their jobs and much worse. I would venture that there is fear amongst some well meaning footballers being seen to avoid the knee gesture and that is most disturbing for our attitudes as members of a free society. 

The latest example of concern over matters concerning attitudes to BAME offenders has been published by the Sentencing Council. It relies on the Lammy Review with its questionable statistical analysis to insist that sentencers must be pro active in considering that such offenders are not overly penalised.  Contrary opinion can be accessed here. Underlying all the huffing and puffing from the bigwigs is the unsaid accusation that sentencers have been biased in their judgements whether conscious or in the newspeak language of 2020 exhibiting unconscious bias when sentencing black offenders.  This is an insult to all those on the bench; an insult which just might be justified for a few but not the many. Personally I cannot recall a single such an incident during my time on the bench but according to the sociologists pronouncing on this topic I and my colleagues would have been unaware of our deviant behaviour. Would that have been the case when I announced to the court and to two young  black men accused of theft that we accepted their evidence over that of several policemen and that they were free to go. The Sentencing Council`s latest outburst  is on the  approach road to the type of policy introduced by China to correct unacceptable attitudes of some of its population.  The common term of the result of failure to conform being utilised ever more often is known as self censorship. And here is where taking the knee is an example. I look forward to when a team decides to stop this form of compliance and then is castigated as offering succour to racists. At least if that indeed takes place the discussion will be out in the open and not behind closed doors and kowtowing to political correctness. 

INNOCENT UNTIL PROVED GUILTY?

Generally speaking the phrase “innocent until proved guilty” when used after an acquittal is that the defendant walks out of court with, if appropriate, his previous good character remaining unstained. The reality of the situation is that the prosecution had been unable to prove its case beyond reasonable doubt. The Scots since 1728 have had a third verdict of “not proven”. I suppose it could be interpreted crudely as a defendant perhaps being morally guilty but not having had the prosecution prove its case to the required standard. It is a matter of philosophical debate whether that is a preferable scenario to guilty/not guilty. Certainly no other jurisdiction has followed this path. 

Although not logically connected, a change in English law in 2009 could be argued to be having a similar effect of casting doubt on a not guilty verdict. Sections 5 (following conviction) and 5A (following acquittal) of the Protection from Harassment Act allows a restraining order to be made following acquittal. In 2010, the first full year where this legislation was applicable, 647 restraining orders were made on defendants acquitted of charges in a context of domestic violence. Actual numbers of more recent defendants who have been acquitted in court but who have subsequently had a restraining order imposed are not readily available but in 2017 around 2,500 people found not guilty of various offences associated with domestic abuse, stalking etc were subject to this expedient form of legal chastisement. Victim orientated justice? Innocent until proved guilty……………?

MOMENT OF RESPITE

I would imagine that most of us are suffering with "news headlines" fatigue given the seemingly endless story of corona virus and its effects on all of us so I hope that a brief glimpse at the activity of the misbegotten soul in this headline allows a moment or two of respite and a glimpse of depravity almost beyond belief.

CORONA VIRUS: A WONDERLAND OF FINES & FIGURES//ROLL ON EASTER

The inconsistencies associated with lockdown will no doubt be considered by future historians as a primary reason why the fatalities in this country per 100K population are in excess of those in USA where many states have virtually abandoned any attempt to control individuals` and businesses` activities and there has been only a half hearted attempt at control at the federal level. In mid July Boris Johnson was telling us it would be over by Christmas and now of course he has stated that by Easter things should be back to normal. The literally fatal flaws in the epidemiological and political analyses of this epidemic have been followed by a similar mish mash over the issuing and amount of fines by police.  Figures show 20,223 fines were issued for breaches of coronavirus restrictions in England and Wales between March 27 and October 19. More than a half of police forces have not issued a single fine for the non wearing of face masks. Since the pandemic began only 0.01% of the population have been fined for breaking corona virus rules. Between June 15 and September 21 89 fines were issued for breaches of face covering rules on public transport or in shops or similar. Staffordshire Police  had the lowest proportion of fines handed out; 43 amounting to 0.01% of the population whereas between March 23 and September 21 the fine rate was 0.33% in Dyfed-Powys.  This is a staggering disparity in enforcement or perhaps the Welsh are more independent of Westminster regulations  than we thought.  Indeed the overall rate of fines in Wales was  0.08% compared to 0.03% in England. On Friday November 13 the National Police Chiefs` Council told forces to stop issuing super fines to organisers of large gatherings having belatedly realised the injustice of these fines being issued without any knowledge of the offenders` ability to pay. Magistrates Courts benches are unlikely to find those appearing before them facing a £10,000 fine able to pay having taken into account their means. However that advice from NPCC has now changed.  Anyone issued with a fixed penalty notice will now be fully informed of their right to a court hearing so £10,000 fines are now once more available for gross disregard of the regulations on organised crowds.  Apparently only a single fine of £10,000 out of 66 issued has actually been paid. It is widespread public knowledge that there is a backlog of over 400,000 cases at Magistrates Courts and a possible two year delay for trials. We are in a situation even the imagination of Lewis Carroll and his Wonderland could not have envisaged. Roll on Easter. 

J.P.s ON SUPPLEMENTAL LIST

From time to time I have reported here on the goings on at the Judicial Conduct Investigations Office. Generally I`ve considered that in comparison to the decisions meted out to more senior members of the judiciary for their various indiscretions magistrates appear to be less benevolently dealt with. However recently there was the unusual matter of a magistrate on the supplemental list being sanctioned. Upon retirement magistrates are automatically transferred to this list. The do`s and don`ts for those individuals are as follows:-

Magistrates on the supplemental list can use the suffix JP, under the same guidance set out for sitting magistrates.

Magistrates can sign passport applications. They  must either work in (or be retired from) a recognised profession. Justice of the Peace is a recognised profession.

Neither retired magistrates nor those on the supplemental list can sign off statutory declarations.

Magistrate in the Supplemental List may not

Sit in a magistrates’ court to adjudicate on cases

Sign summonses or warrants, including search warrants

Be a member of any committee or any other body as a magistrate

Take part in the election of chairman or deputy chairman of any bench

Attend any formal or business meeting of their former bench

Countersign an application for a shotgun or firearms licence

In addition those on the supplemental list are subject to exactly the same rules of conduct as their colleagues who are active. Nevertheless for such a person to appear before the JCIO is very unusual. One such who has transgressed is  Dr  Nigel  Molden  JP who blotted his copy book by being convicted of careless driving which cost him 6 penalty points. The report is here. Quite frankly I fail to see why any JP on the supplemental list remains so.  The risk of falling foul of the onerous regulations seems to me to be unworthy of having a couple of letters after one`s name.  Then again there are still many who seek appointment to have those very letters after their name. I`ve met a few.  Shame on them. 

HOW EXCEPTIONAL HARDSHIP PLEA IS ABUSED

On November 3rd I posted on exceptional hardship about which I was critical insofar as the leniency offered by many benches when offenders offer mitigation not worth tuppence in order to retain their license. Earlier this month Arsenal footballer Mezut Ozil appeared in court pleading guilty to speeding on a motorway at 97MPH. It is unknown whether he has existing points on his license.  The penalty for his offence is a fine between 25% and 75% of his relative weekly income plus 3 penalty points. However from the brief reports it appears his representative feared that his client might lose his license because he seems to have offered an exceptional hardship defence. Sentencing is due later this month and that seems odd. In my experience the plea and submission of exceptional hardship is itself adjourned to a set date and sentence is pronounced immediately afterwards.  Once again an internationally famous figure appears to have been offered treatment above that for ordinary mortals. A section of the full report I have copied below. Quite frankly if his plea is accepted it will be nothing short of disgraceful.  He can afford a team of chauffeurs for the period of any driving ban. 

"But he said the current coronavirus pandemic meant he would find it very difficult for him and his young daughter to travel on public transport. He added: ‘I travel to work on a daily basis by car and have personal commitments and a very young baby daughter, seven months old.‘In the current climate I would be very much against travelling on public transport with my baby daughter. My wife does not drive and therefore by necessity I will have to undertake the driving to any healthcare appointments for my daughter. ‘I do not suggest that this in any way excuses my driving on the day at all — I fully accept that the speed my vehicle was travelling is wholly unacceptable.”