NO BLOG TODAY ;MY LUCK HAS GONE AWAY

They say that bad luck comes in threes. Very early this morning  some idiot in a new Porche drove into my wife`s Toyota; a tree felled in the storm crashed through my empty garage where the Toyota had been a short time before and I`m waiting patiently for number three.

A POOR REFLECTION ON THE MAGISTRATES` ASSOCIATION

The Magistrates` Association has had its A.G.M. and surprise, surprise, the world has not stopped spinning. But what was spun by media was one of the two motions for debate about which I posted on 8th October. The motion (“this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison,”) was lost.



I was not present at the meeting but judging by the video report fewer than 100 colleagues attended. Considering that J.P. chairmen in court should be rather capable public speakers the quality of oratory presented was rather poor. The content in general did not address the proposer`s theme that the interests and quality of justice must be the fundamental argument. The motion was defeated on a paltry show of hands and the debate lasted no more than 25 minutes.



This performance was one that did the M.A. and democracy in its widest terms no benefit. A tiny coterie of those entitled to be present was present. A vote amongst those produced a result which has as much significance as a vote for a white Christmas.



One would be hard put to find a clearer demonstration of how non representative the M.A. really is. This should be the last time such matters should be voted upon using the tools and tricks of the red baron union leaders of the 1970s. Future motions for debate should themselves be voted upon by the whole membership on line with a similar substantive vote thereafter.

J.P. RESIGNATIONS AT DUDLEY WOULD BE WELCOMED BY HMCTS

Some of the most powerful unions in the country are no longer those representing the interests of working people in the traditional sense that those millions are not pouring out of factories on a whistle at 5.00p.m. sweat on their brows cigarettes in mouth.  They are organisations like the British Medical Association, The Prison Officers` Association or the Police Federation.  They are tightly controlled and their members have benefitted from their ability to negotiate from strength.  The Magistrates` Association cannot be included in such a group because it represents volunteers and so operates on a shoestring budget each of its 20,000 or so members paying subs of less than £40.   In other respects it has no affinity with other professional unions or associations because it has no brief to represent its members against  employers because we are not employees although the attitude of Her Majesty`s Courts and Tribunal Service is that we are just that;  employees but merely unpaid. So generally speaking with few exceptions magistrates as a group are  not seen and not heard………….except in Dudley.

With the threatened closure of their court the bench has threatened en masse resignations if such action goes ahead. According to my information the Justice Ministry factored in a general J.P. resignation rate of up to 10% as a result of the implementation of court closures.  How many have actually resigned for that reason is unknown and it would be an interesting question for the M.A. to contemplate.  Whilst having great sympathy for my colleagues the paradox is that they would be rubbing their hands in the corridors of Petty France LONDON SW1 at the opportunity to parachute in yet another District Judge(MC) to yet another local justice area.   

Human Rights lawyers and others can huff and puff all day that our Supreme Court should have another tier outside these shores as a final Court of Appeal.  They should stay closer to home and consider the probability that the time is not long away when a single professional judge will be presiding over all matters, including of course trials,  in the magistrates` courts system and not just a minority of cases as is now the position.    What logic then to the continual argument that whatever developments in jurisprudence the totem of trial by jury must be retained……..except when the matter is summary only…………?  

WOULD NIQAB BE ACCEPTABLE ON THE BENCH?

The wearing of the niqab in public places has been a newsworthy subject in the last weeks. In particular there was the decision regarding a witness in a recent case at crown court. I have many female Muslim colleagues and only one have I seen wearing a hijab (Muslim headscarf). A very small minority of those female and apparently Muslim by name lawyers who appear before us wears a hijab. There is absolutely no question as to their right to do so. 

My point today is whether or not Appointment Committees have a policy if faced with an application by a woman who wears a niqab. Would wearing such on the bench be acceptable both to colleagues and to the court and all its users?

CRIMPING CRIMINAL LEGAL AID LEADS TO EMASCULATION OF CRIMINAL LAWYERS AND FEARS OF IMPOTENT JUSTICE

We have long been accustomed to film and T.V. series involving police. Indeed for those old enough Dixon of Dock Green was required viewing in the 1950s. Unsurprisingly antics within the legal profession have long been a theme of the written word and laterally the small screen with often fictional accounts of real mayhem suitably enveloped in a screenwriter’s narrative. As time has moved on reality television has become a staple part of the major channels` output and a major part of that has been the fly on the wall series on many aspects of policing from police patrol to police cell via umpteen scenarios from motorways to town centres.


From Rumpole to Kavanagh QC via Perry Mason and Judge John Deed we have had a surfeit of fictional legal expertise but until last year, as far as I know, reality T.V. had not reached inside a solicitor`s firm. Tuckers holds itself to be the largest legal aid firm in the country. Even without that accolade its turnover is such that the opinions of its senior partner must be worthy of a hearing. And for those who listen his opinion that the future for firms undertaking legally aided work is limited. There are now about 250 magistrates` courts after the decimation in numbers over the last three years. If Franklin Sinclair is right there will be a single firm offering services at most courts. My own bench comprising three former benches sits at two venues and two firms offer well over half the cases I`ve sat on.


Previous governments sanctioned the privatisation of energy companies, the denationalisation of train company BR, steel company British Steel and others including the National Probation Service, the Prison Service and as of last week Royal Mail by the current administration. I believe in capitalism. But in order for capitalism to work there must be strict laws against monopoly supply or attempts to procure such which is the natural target of capitalists. That is where this government is failing and it will fail in its grotesque attempt to emasculate the earnings of mostly poorly remunerated criminal lawyers. There is no doubt that the quality of representation for many defendants will be diminished and for those deemed to be ineligible for legal aid, time and costs for courts endeavouring to see justice done will increase in proportion to the complexity of what government might consider “simple cases”.


I have more faith in the accuracy of Franklin Sinclair`s predictions than any emanating from the Ministry of Justice.

COMMON SENSE STILL RULES; OK?

When I was appointed one of the requirements sought of applicants by the appointments committee was common sense. Seems simple enough but that requirement disappeared from application forms some many years ago. The reasoning behind the change, as I understood it from documents at that time, was that with an increasing number of BME candidates and a population ever more diverse owing to immigration from all quarters what was once “common” to the population in years previously could not be construed as “common” when the population`s origin base was increasingly varied. And the commonality of sense was supposedly encompassed by the thought processes of the politically correct little weasels hard at work in Whitehall. However all was not lost and my contempt for those who still try to influence us as did their colleagues then has not abated.



In the very simplistic of terms that common sense of a bench was upheld by the High Court earlier this month in a case of drink driving. The full report is here but in short the appellant`s case was thrown out by Mrs Justice Cox who ruled that the circumstantial evidence was compelling enough for the lay bench to have found the charge proved beyond a reasonable doubt. She endorsed the decision the bench had reached; a decision that could be said to have been based upon a common sense weighing of the evidence.

DIFFERENT ROUTE BUT SAME RESULT

“Picton” has laid out a structure by which applications for adjournments should be examined. More often than not my experience is that an application to adjourn by whichever side is opposed even if that opposition appears to be formulaic.


Not so long ago a s.4 charge was listed against a defendant based upon the statements of the only two prosecution witnesses; the complainants. One of them had a verified and very acceptable reason for her non appearance with only minimal notice. On the basis that without her evidence the prosecution would struggle to win their case an application to adjourn was made. Defence lawyer was quickly on his feet asking us to consider it a joint application on the grounds that his client would be prejudiced by that complainant`s not being available for cross examination. We agreed the adjournment wondering what was in the absentee`s statement to bring about such a decision.


Sitting as a magistrate is rarely if ever a formulaic event even in the most mundane and repetitive of situations.

POLICE IN CONFUSION

Police misconduct or allegations thereof is once again headline news so two recent contrasting or complementary reports depending on one`s interpretation make interesting reading.

Devon and Cornwall Police are surprised at an increased number of complaints whilst their colleagues in North Yorkshire are concerned that no police officer found guilty of misconduct over the last five years has been exonerated on appeal.

No opinion from me on this except to say that our whole system of policing seems to be on the verge of profound change.

JUSTICE BABY AND JUSTICE BATHWATER

Everyone involved in the administration of our magistrates` courts cannot but be unaware of the gross inefficiency in their performance. Of course trial and sentencing statistics are manipulated to undermine criticism and so enlarge the fiefdoms of those in Whitehall continually considering new forms of “consolidation” or “rationalisation” of HMCTS. Justices of the Peace and their hundreds of thousands of annually wasted man hours are nothing more than the collateral damage resulting.


I was recently informed by the highest authority that every time a magistrate cancels a sitting this information is recorded and passed on to HMCTS. One could remark that such an action is not unreasonable and it would be churlish to disagree. But…..and it`s a big But……when we J.P.s are cancelled that statistic goes unrecorded however short the notice of cancellation might be. Which leads me to relate a simple oft repeated experience.


Shortly after I transferred this blog to its current site here, I had scheduled a rare afternoon sitting; rare (for me) because I offer myself for whole days. However I duly appeared in the retiring room at 1.45p.m. to meet my colleagues who had arrived shortly before me. At 1.55p.m. the L/A arrived to tell us that the single pending matter was a trial, a civil case brought by an individual against the borough. The problem was that the applicant had not appeared nor had his representative. She left to make more inquiries after looking through her court file and telling us that the appropriate paperwork for the current listing had not been sent to said applicant nor his solicitor. Half an hour later she returned to tell us that the missing lawyer could not remember whether or not he had been in court on the previous listing when the adjourned date had been announced. Thus we had another ineffective trial owing 100% to the non functioning of our court`s administrators. But more to the point if the papers had been read the day previously in preparation (as they should have been) the omission would or should have been noticed and the unnecessary attendance of the three of us could have been prevented. Even if administrative delay had meant that the preparation had been the same morning our appearances could have been cancelled by three phone calls.


That is the reality of the manner in which HMCTS treats the backbone of a unique part of the justice system; the part which wraps up from first appearance to conclusion about 95% of all criminal activity brought to book in England & Wales. That is the justice baby which is being flushed down the justice drain along with the bathwater.

ALL 15% OF YOU PAYS YOUR MONEY AND YOU GETS YOUR CHOICE OF POLICE AND CRIME COMMISSIONER

It is almost two years since the election of the first Police and Crime Commissioners for England and Wales. There was considerable controversy over this policy but it was driven through by the Coalition in the face of much reasoned opposition. Forecasts of public inertia were discounted only to be proved correct by a turn out to vote of only 15% of those so entitled. Since then there seems to have been continuing media interest in the goings on of these public servants, their associates and their cost to the public purse. Currently there are investigations into the affairs of the P.C.C.s in Lancashire, Durham and North Wales. A first report by the well respected Home Affairs Committee of the House of Commons on the activities of P.C.Cs was published earlier this year in May. It makes for an interesting if somewhat lengthy read.

CURFEWS AND CHANGING THEIR TERMS. IT IS A DECISION FOR THE COURT; NOT THE POLICE

The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.



Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.


Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc.



Chris Grayling, the tough man at the Ministry after kindly old Kenneth Clarke, usually wastes no opportunity to flex his judicial authority. His comments subsequent to a decision at Truro Magistrates` Court   in April should be noted as they are likely to be acted upon before 2015. Meantime the scenario has been enacted again at Bath Magistrates` Court. I will not comment on the decision; only those present heard all the argument but once again the police show their delight in condemning the court`s decision. This trend by police to forever criticise magistrates for their sentencing does nothing to enhance their image. It serves only to divert attention from the very real problems affecting them nationally. From proven corruption at the highest levels to actions not far from being politically motivated to allegations that misconduct is brushed under the carpet where possible, to continuing mistrust by ethnic minorities it behoves them to be a bit more introspective and to cease blaming magistrates for exercising their judgement. It would be a sad day if police controlled legal outcomes as perhaps some would wish them to be able to do.   

GUIDANCE ON JUDICIAL CONDUCT FOR J.P.s

The other day I was reading the blog of a criminal lawyer who had received comments from a man who felt he had been short changed by the presiding magistrate during a recent court exchange. It would not be an understatement to consider that rules applying to the judiciary in general and the magistracy in particular must be the most constraining ever devised for a body of professionals. An immediate response would be that such people who are often dealing with the fine tuning of the English language require the finest of fine tuning in documents designed to ensure that their behaviour and actions both inside and outside the courtroom are beyond any reasoned criticism. On the other hand the more that is specified the wider the net into which people can be caught for reasoned or unreasonable criticism.

Be that as it may these documents are what we as Justices of the Peace must live with. They are available here and here.

RE - ARRANGE DECKCHAIRS AND IGNORE SINKING; AKA DRINKING BANNING ORDERS

Under the Labour administration of 1997 – 2010 we have had introduced over three thousand new laws; Police Community Support Officers, revamped traffic wardens with powers to issue penalty notices in addition to parking tickets, ASBOs which are civil orders the breach of which can lead to lengthy custodial sentences are some examples.



Since 21/08/2009 Magistrates` and County Courts have had the power to make Drinking Banning Orders. DBOs on conviction came into force on 1st April 2010 in 25 Local Justice Areas. Latest available figures are that a total of only 625 DBOs was issued to 31st December 2011. It has been recognised by many statistical analyses that around 70% of all crime is committed by offenders addicted to alcohol and/or drugs. Considering that many more individuals are addicted to the former rather than the latter the number of alcoholics with a criminal record must number in the millions. The NHS estimates that around 9% of men in the UK and 4% of UK women show signs of alcohol dependence. The miniscule number of DBOs ......a single order per day for England & Wales is an indication that magistrates` courts have more sense than the government which introduced them. All they do is disperse the problem elsewhere. Indeed it is just another reason why alcoholic offenders should be treated as medical cases and if necessary by compulsion just as schizophrenic and other mentally unstable patients can, under certain circumstances, be forcibly incarcerated in places of safety for themselves and the general public who must be protected. Hardly a week goes by without headline stories of the havoc wreaked by such people who are supposed to be being “cared for in the community” but are walking the streets.



And yet the new publicity seekers within the law `n order brigade, Police and Crime Commissioners, still consider that shouting louder makes for understanding. The latest of these loudmouths making a noise is Adam Simmonds P.C.C. for Northamptonshire whose local online media have spread his hope that magistrates inter alia will increase their use of Drink Banning Orders. The object of his wrath was an individual who was sentenced to such a disposal at the local crown court by an order banning him from entering any pub, club or bar in Northamptonshire. He is being set up to fail. It is not reported whether or not any ancillary orders were made.



Public drunkenness is now a regular and frequent feature of high streets from Andover to Yarmouth. Where it can be controlled as on public transport or at sporting events it has brought a metaphorical breath of fresh air to the vast crowds who use or attend these places. But on our streets it seems the ubiquitous DBO is being applied like a Band Aid to a bullet wound. Such orders IMHO are a complete waste of time and resource. Invariably those subject to such orders can without much forethought figure out how to evade them. Breaches cannot be punished by a custodial sentence. All they do is displace the problem drinker from one area to another. If ever legislation is seen to be like moving the chairs on the deck of the Titanic DBOs are a prime example.

DUE LEGAL PROCESS

Freedom of the press is once more a hot topic. But perhaps of equal import is the sometimes careless sub editing of articles or their headlines. From time to time as J.P.s we are responsible for the granting or refusal of search warrants for which police have applied. We (or sometimes a single Justice) will review the merits of what is placed before us and decide whether or not the information is fit for purpose. In my court this procedure is usually conducted after the court has been cleared for obvious reasons of security.

In Yeovil, District Judge Maurice Champion must have heard an application to close down an alleged crack house in open court such is the lengthy report of the proceedings in the local on-line “This is Somerset”. Note the article`s headline:- “Judge refuses to shut alleged crack house”. The very fact that the judge refused to accept the allegation leads logically to question that headline. The impression from its double negative connotation is of a judge failing in his duty to assist police and so failing the local neighbourhood. The sub editors seem to have overlooked the minor constitutional point that judges (and magistrates) are in post to ensure that due legal process is observed.
 

If the day comes when judges are merely rubberstamping the demands of police or government this country will really have hit rock bottom.

THE WITNESS OATH//AN OPPORTUNITY WASTED AT MAGISTRATES` A.G.M.

Unsurprisingly there has been only limited publicity in national media to a motion to be debated at the forthcoming Annual General Meeting of the Magistrates` Association. This event has historically been a talking shop for the small numbers attending and of little interest to anyone else.  However in the light of the momentous changes affecting magistrates  which have taken place since 2010, are in current progress  and/or are likely to be activated in the next few years, changes which affect the functioning of the courts through which over 90% of criminal cases begin and end,  some might consider that one of the two resolutions for debate ; “this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison.’   is a peripheral matter and not worthy of the time allocated for its discussion.   

Witnesses in court currently are offered the opportunity to take the oath on an appropriate holy book or to affirm.  The wording of the former is, “I swear by .......... (according to religious belief) that the evidence I shall give shall be the truth the whole truth and nothing but the truth”.  Those who choose to affirm say, "I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth the whole truth and nothing but the truth."  In historical terms oath taking can be traced back to the Book of Genesis.  Virtually all ancient civilisations recognised the taking of an oath as the highest level that an individual could place upon the truthfulness of his words.  The Christian tradition from which current English court practice is derived originated at a time when the population believing in a literal translation of the Bible was in awe of the Church and the divine retribution for lying having taken the Lord`s name in vain.  There were notable exceptions particularly Quakers who to this day will affirm rather than swear.  Similar religious objections to swearing the oath are held by orthodox Jews.  The manner in which a witness is asked to swear or affirm is of some significance.  I have often heard a legal advisor say to a witness, “Do you want to swear on your holy book or affirm?”  Other forms of approach are, “ Do you have a religion?”  and variations thereof.   Unless the witness has a belief in divine retribution it seems to me that the oath indeed is superfluous even if it is followed by a warning of the consequences of lying.  From that point of view an affirmation to tell the truth is more realistic.  Over the years I have noticed that the majority of police officers declines the oath and affirms.  I would leave readers to make their own conclusions on that observation.  It is usually the case  that very rarely if ever does a witness who might be considered Muslim or ethnically of Arab heritage decline to swear on the Koran.  It seems that even when such witnesses in their evidence attest to behaviour forbidden by the Koran they have chosen not to affirm.  There are certain conclusions that might be drawn from this equivocal attitude to religious belief or lack of and not just by Muslims  that might be more suitable for another occasion by other commenters.   

The threat of court proceedings in the event of a witness having been shown to be a liar  is  99% an empty threat.  In 2010 only three defendants of 37 charged were found guilty of perjury in a magistrates` court and one of those was given a conditional discharge.  That is the real situation of truth telling and lying in the lower court.  

The taking of the oath has significance only to a small minority.  I therefore support the motion but wish the M.A. would have relegated it to a lower level of discussion and allowed more significant changes to our situation to be the subject of debate at the A.G.M.

DEFECTIVE TYRES

One of the more undignified situations which can befall us in the winter months is to slip on an icy patch of pavement or road; if the latter a lack of dignity is the least of the possible outcomes.  Those few square inches of leather or rubber on the soles of our feet just did not have sufficient friction to prevent our losing balance.  It is incredible to consider that about the same such area is the area a tyre has in contact with a road surface. All that steering and braking technology has zero value if the tyre behaves as our footwear on that icy street. 

Apparently over 87% of the 10,228 prosecutions for defective tyres last year were proved.  My personal experience of such cases is that other charges are often brought in addition.  Rarely is the maximum fine of £2,500 imposed but the three penalty points are mandatory and can lead unsuspecting drivers to the totting limit of twelve.  Considering that the cost of tyres, economy brands included, is so relatively low the price for neglect in this regard can be extremely high in every meaning of that word especially when considered as an aggravating circumstance in a more serious charge.

AFTER DINOSAUR J.P.s; THE DAILY MAIL: HEAVEN PRESERVE US!

Yesterday I posted on publicly reported remarks made by a J.P. at his retirement.  I have no doubts that his opinions are shared by some if not many of my colleagues.   My own position is quite clear; there is a direction from the very top levels of government to limit the numbers of offenders being sent to immediate custody.  Of course nowhere will there be a direct quote from those responsible.  But the evidence is as clear as daylight.  On 27/09/2013 the prison population was 84,430;  operational capacity is 87,788.  Simple arithmetic shows that the prisons are running at over 96% capacity.  In NHS hospitals in England there are 19,710 beds available for overnight occupation from a total of  136,471; i.e. hospitals which are maligned for the failure to provide sufficient beds are running at 85% capacity.  Sentencing Guidelines provide further evidence that the hurdles especially to imprisonment for lower level offending have been raised.   Nowhere is this more apparent than in the offences of driving whilst disqualified, assault and theft (shoplifting). 

Our legislators are abysmally ignorant of the realities. Rehmen Chishti MP is the sponsor  of his forthcoming Drink Driving (Repeat Offenders ) Bill which he hopes will curb this anti social and dangerous behaviour.  His proposal is that the current maximum sentence of six months should be increased to two years.  Considering that the offence is summary only that would mean it should become "either way" and be tried before judge and jury thus increasing time and cost.  Perhaps Mr Chishti is unaware of some facts. When I was appointed in the `90s it was not uncommon for a second offence of drink driving to be punished by a custodial sentence up to six months.  That now rarely happens owing to this and the previous government`s desire to reduce prison  numbers.  It is only after a third similar offence or an extremely aggravated second offence that prison is considered appropriate and often the sentence is suspended.

Assault on the streets is cited as a very common fear especially by younger and  paradoxically older members of the population.  Around half a million summary non motoring offences are dealt with annually at magistrates` courts.  It is almost impossible for this non research fellow to ascertain the rate of immediate imprisonment for assault by beating.  Anecdotally I would suggest that the rate is considerably less than it was twenty years ago.  The ubiquitous “Suspended Sentence Order” appears so often now on pre sentence reports that I wonder if the writers understand that the custody threshold must be passed before consideration of suspending such a disposal is in the public interest.  The SSO itself to have any meaning must have the default imposition of immediate custody applied following a further conviction within the period of suspension.   All too often that does not happen and IMHO that brings the law into disrepute. The following case was heard by South Durham Magistrates sitting at Darlington Magistrates' Court:  comment without full knowledge is dangerous but examples such as this are commonplace.  What might be the view of the citizen of Darlington reading this short report?

“SENTENCE BREACH: Abigail Rae Noble, 21, of Middleton Street, Darlington, admitted two breaches of a suspended sentence order imposed by Teesside Crown Court. As punishment, magistrates imposed an eight week curfew, valid between 7pm and 7am each night, and ordered her to continue with community requirements of the original order”.

Many official statistics consider that 70% of acquisitive crime is due to addicts, whether of drugs and/or alcohol, seeking funds to feed their habit(s).   Shoplifting by any other term is often their preferred route to raising cash.  Sentencing Guidelines allow immediate imprisonment for such offenders even when the sum in question is only a few pounds.   Magistrates have a public protection duty in addition to consideration of the criminal`s  circumstances.  All too often I feel that that consideration is overlooked.   

A bench at Warwickshire Justice Centre chose not to impose prison terms on two individuals with what might be regarded as a propensity for thieving.  I can say that having sat on many similar cases I feel that that obligation for public protection is now not a consideration for many of my colleagues.

Perhaps when dinosaurs like me have retired the Howard League and its supporters will succeed in banning all prison sentences of less than six months.  Heaven preserve us all if we have to rely on the Daily Mail to plead our cause.

SAYING IT LIKE IT IS BUT ONLY WHEN RETIRED

Of all the prohibitions on the activities or actions a Justice of the Peace can undertake none is taken more seriously than talking to the media on the record.  The Media Guide for the Judiciary is the rod with which a J.P.`s back can be broken if it is considered that s/he has stepped out of line.  Colleagues have been removed from the magistracy for such failings.  So it is hardly surprising that just as former generals or senior civil servants wait until their pensions are assured before going public with criticisms of systems or institutions, criticisms which would have had much more significance if they had been delivered whilst the bearer was in post, Alan Bissell J.P. waited until the moment he retired from the Flintshire Bench before lambasting procedures with which he (and others) had been forced to comply.   His main outpouring was his belief that the concept of punishment had been diminished by the actions of government over many years. Certainly he would have received a letter from the Office for Judicial Complaints if he had made his remarks, which must have been co-ordinated with the press who reported them,  a few weeks or months earlier.   

Of course Grayling, like his predecessors, can and does produce volumes of statistics to show that whatever is the real situation crime is diminishing, police are not failing and the courts are more efficient than ever.  But there is one factor that by its very nature cannot be abused by statisticians because it is a negative and everyone knows that negatives are very difficult to substantiate.  And that is the increasing tendency of the Crown Prosecution Service to undercharge on assault from the summary charge to the most serious life threatening offences.  Other forms of criminality eg fraud are also undercharged but for magistrates it is assault with which we are most familiar.  I would posit that there is not a single colleague who has not sat on simple assault by beating and thought that the CPS was failing in its public duty of protection by not  using the more serious charges that the case details warranted. The reason for such dereliction of duty in an organisation which has rid itself of 10%+ of its lawyers and is operating on a much reduced budget is not difficult to find.  The other side of the same coin is well illustrated in a case on which I sat a few weeks ago.  One simple incident when a young white woman who had been observed drinking from a can of cider and shouting at her friends  pushed a  black policeman in the back shouting “black trash” was charged with being drunk & disorderly,  assault P.C. and s.5 Public Order Act racially aggravated.  She was, as I recall,  convicted by majority of all three offences and the CPS`s statistics were duly enhanced. 

Is this the best way of applying the too oft repeated mantra, “We are the party of law `n order”? I wish Alan Bissell a well earned retirement from the bench.  Long may his cup runneth over. 

WHAT IT SAYS ON THE TIN

My last sitting saw me in the courtroom for six hours.  Those unaware of the wall to wall inefficiencies to be encountered in magistrates` courts might utter, “so what”.  They would be right to do so.  The time wasted in courts presided over by me and my colleagues has to be seen and experienced to be believed.  I won`t rehearse the reasons.  Everyone bar the number crunchers and greasy pole climbers at HMCTS and Justice Ministry who behave like the three monkeys is well aware that the withdrawal of capital from the system has wrought changes which if not readily reversed will have ever lasting detrimental effects on what was once one of the  world`s fairest justice systems where in timely fashion it was almost beyond reasonable doubt that the innocent were acquitted and the guilty punished with punishment appropriate to the offences committed. 

But returning to my recent all day session;  the morning was taken up by the trial of a youth of nineteen; a refugee  from a war torn central African state, who was charged with assault.  When he was identified we asked our L/A to have him confirm his date of birth.  William Hill would have given odds on he was no more that 15 given his slight build and height of about 5ft 6 inches.  However he insisted he was 19 and CPS called the complainant, a cruiserweight to the accused`s featherweight status. African boy spoke a very educated English and displayed a certain confidence bordering on arrogance when he gave his version of events.  Severe cross examination did not put him off his stride.  The evidence, however, was so overwhelming that we wondered how legal advice had allowed him at this 3^rd listing to continue with a not guilty plea. 

With his previous good character, a part time evening job at a supermarket and confirmation of his excellent grades at college we were satisfied that a conditional discharge and advice to avoid alcohol which seemed to be responsible for his errant behaviour was an appropriate disposal.  The relief on the face of his mother in the public gallery was an indication that his offending might have been nipped in the bud. 

Our afternoon was occupied by the case of a Sudanese man from the Nubian region.  He was about 60 and walked with the aid of walking sticks in each hand.  He had the classical features of his race.  His jet black skin, sculptured cheekbones and classical brow would not have been misplaced on a hieroglyph from ancient Egypt.  His authoritative manner matched his appearance.  He had previously been tried in absence and found guilty of s.4 public order and was before us with his lawyer applying to have his case re-opened.  After lengthy legal argument which I personally found particularly intellectually stimulating he failed. Post sentence we wondered just what damage he could have been capable of if he could have moved freely without his crippled lower limbs being assisted by the walking sticks occupying his hands.

The standard has been set.  I doubt that there will be another non remand session before  2014  where my all day sitting will be what it says on the tin.