A VICTIM CENTRED JUSTICE SYSTEM MAKES EVERYTHING OK....DOESN`T IT?

Enough has been written on the scandal involving Capita plc`s contract with HMCTS to supply interpreter services for the courts to provide future legal historians and others with evidence of how the world`s first and possibly finest and fairest legal system was brought to its knees by this and many other so called austerity requirements which have reduced the Justice budget by 25%. It would not be a big surprise if financial impropriety in Capita`s acquisition of Applied Language Solutions surfaces in a few years. Be that as it may another snippet of interpreter problems has made it to the pages of the Law Society Gazette. Notwithstanding Capita`s inefficiencies the anticipated economies have just not materialised. Add to that the enormous additional costs every time CPS is represented in court by an agent to overcome the deficiencies caused by 10% of its employees being cast out into the employment wilderness and one has a funding crisis just around the corner. The problem is that unlike similar situations in the NHS privatising all or parts of the courts service is not an answer. So this government insists that the courts have to pay their way and in addition to minor details eg having no ushers, over promoted and inefficient court administration staff, double or treble trial listings to keep everybody occupied and to hell with defendants` costs and inconvenience, that means that unless one is on the lowest income levels or facing the most serious criminal charges no funding is available for professional representation. In the civil courts it`s survival of the fittest and only relatively well to do litigants have the wherewithal to use a system which although it never offered a level playing field did to some extent allow for an equality of arms. But..........not to worry........with a victim centred justice system everything will be OK........won`t it?

IMPORTING FOREIGN CRIMINALS

On reading today`s government publication of prison statistics a colleague in London has pointed out to me that there is little mention of foreign prisoners in the system notwithstanding those awaiting deportation. It is hardly a state secret that the powers to deport  E.U.  citizens guilty of even serious crime are rarely implemented. My London colleague says it is unusual not to have at least one Eastern European on some charge or another when she sits in the remand court. Indeed she added the proportion is often at least 20% of those in the dock. Whilst her observations are of interest they are no substitute for hard facts. Perhaps in the mass of statistics there might be some comment. After all, a country which has seen an influx of (East European and South Asian) immigrants in two decades such a rate never having before been experienced in its entire history is not unlikely to have a fair share of criminals or those of criminal intent amongst their number.

The recent elections for the European Parliament have shown the rise of constitutional right wing parties although some of those espouse rhetoric bordering on that of the late unlamented BNP. They have achieved this position, UKIP included, because the major parties have steadfastly refused to address the question of immigration and multiculturalism. Those so doing have faced accusations of xenophobia and worse. Political animals and the tabloids will rush to fill any void in the political spectrum just as air will rush into a damaged vacuum tank in a laboratory. It is a dead certainty that the numbers of foreigners in British prisons will be a political debating point long before next May.

DOMESTIC VIOLENCE PROSECUTIONS

It would be interesting to know the statistics on the numbers of trials designated under the umbrella title of “domestic violence” which are categorised as cracked or ineffective. The reason for my curiosity is that IMHO some? many? DV charges are brought to our courts on thinner evidence than would be the case with other matters; eg assault, criminal damage, handling, etc etc. From statements by those in authority from Home Secretaries, Chief Constables to senior prosecutors and highly publicised pressure groups there is no doubt political motives are behind this prosecution policy and it is not difficult to understand why. Domestic violence is an ugly activity. Currently this descriptive term covers offences from common assault to murder although David Cameron has hinted that it might become a stand alone aggravating feature defined within legislation. Be that as it may as magistrates in the lower courts system we are sitting on the vast majority of such trials. My last such sitting had two cases; the non appearance or availability of the complainant and our refusal to adjourn caused one matter to be dismissed and the other concluded with a conviction although that could have been described as fortunate for the CPS because of certain technical defects. Looking back over my experience of the last year or so I would find it hard to conclude that more than 50%-60% of such trials actually went ahead. Is this a price worth paying or do others; lawyers or J.P.s have different opinions and experiences?

HIGH LEVEL FINES INSTEAD OF COMMUNITY ORDER: ONE LAW FOR THE RICH?

Following the Criminal Justice Act 2003 magistrates` courts were given the power to impose fines in two higher bands; Band D (where a fine is imposed as a direct alternative to a community order) can be up to 300% of relevant weekly income and Band E (as an alternative to a custodial sentence) which can be up to 500% of relevant weekly income. These fines differ from the normal fines imposed by the courts as they can be collected over a two year period; however, they remain uncommon despite the fact that courts must consider fining as an alternative to community and custodial penalties. It is surprising therefore that in my experience knowledge of their availability is not widespread on my bench.

A case before me and my colleagues a few weeks ago was a prime example of the usefulness of these higher banded fines. The offender, a female in her mid sixties, pleaded guilty to drink driving. This was her second similar offence in six years. In the retiring room we decided that she be disqualified for an appropriate period and then we discussed the form of community sentence which her offence merited. The suggestion that she be punished by a level D fine at its highest ratio; ie 300% of her relevant income was met with some surprise from my colleagues. Her means form showed a monthly income of £6,000. A new colleague offered his opinion that that form of disposal could be interpreted as one law for the rich..........My other colleague who was also previously unaware of these higher level fines put down that argument with some eloquence and the offender was fined £3,000 plus costs.

NO ALTERNATIVE

The woman, late twenties with an East European accent, was before us for sentencing. She was smartly dressed as if going out to dinner. She had been found guilty in her absence some weeks previously of two charges within a domestic context. She had denied receiving a summons although she had been present in court when being bailed to attend. We had a non report in front of us. Indeed it was the second non report since her trial. The probation officer explained that she had been written to twice at her address which was accepted as being her correct current place of residence to attend for interview prior to sentencing. For each appointment made a follow up text message had been sent to a mobile number which the offender had admitted as being that which she uses. No response having been received to the second appointment she had been arrested on a warrant. She asserted that she had not received any letters or texts from probation. Her “previous” included several breaches of community orders and seven convictions for assault the last two of which resulted in one suspended and one immediate custody of several months. Of a four figure compensation order made three years ago not a penny had been paid. Despite the mitigation scraped together by her lawyer we had no doubt that an immediate term of custody utilising our powers to the maximum was justified. On hearing her sentence she immediately went into a violent rage. Perhaps she thought that dressing smartly and smiling at the bench would secure her from her just desserts. However unpleasant I might sometimes find it when pronouncing immediate custodial sentences and however unjustifiable such people as the Howard League might argue are such “short” custodial sentences there are times when there is no alternative. Such was the case described above.

THE MYSTERIOUS WORLD OF POLICING

The last few days have produced a few interesting stories about the boys in blue. It seems that the recently amalgamated Scottish police forces now known as Police Scotland are more likely to be armed than some consider is necessary. There is also the practice of “stop and search” which has had the Met Commissioner recently on the defensive. In Scotland the cops do it an awful lot more often than they do in New York. It has been recognised that the Met`s policy was directed out of all reasonable proportion to black and brown skinned people. Considering that ethnic minority north of the border can signify ginger hair one wonders just what justifies those numbers. And while West Yorkshire Police have rejected all direct entry high rank applicants the Met has decided that if you want to join its club and patrol the streets of the metropolis you will have had to have lived in the great city for at least three years preceding your application.

What an interesting world we inhabit.

WHAT JUDGEMENT?

After the Coulson affair one would have thought that D.Cameron with L.Crosby at his shoulder would have been particularly circumspect in his choice of those he decided to appoint in his recent shuffling of the cards he intends to play at the next election. Perhaps he knew that his new Solicitor General had been found guilty by the Bar Standards Board of misconduct; perhaps he didn`t. Either way his judgement is once again called into question.

BBC SHOULD BE MORE COMMERCIAL

It`s well known that some bars and pubs use live sports events on TV to encourage custom. Sky TV is the most widely used format for this aid to business and consequently its commercial contracts reflect this in their pricing and the punishments handed out for breach of contract. BBC television licenses are fixed in price; £145 for up to 15 entertainment units. A publican in the East Midlands was fined only £135 for operating a TV on his premises without a license; a similar figure for householders using a TV without a license. With all the hoo ha about BBC TV licensing renewal structure surely it would make sense if that organisation is to continue to be publicly financed for it to follow Sky TV and make commercial locations pay an individually priced contract fee depending upon circumstances, turnover etc and thus reduce the burden on low income families.

PART 2

Arrived back yesterday for a two o`clock start and yet again a complainant is giving the CPS agent cause to request an adjournment. The upshot was that he refused to identify himself. All the while the defendant was looking quite smug behind the dock`s reinforced glass. The officer in the case, under oath, identified the reluctant witness as the person who had answered to his name at the address at which he was living when inquiries had been made by the officer. The agent seemed perplexed. She virtually asked the L/A in an audible aside as to what could be done. The chairman queried whether we should call the Spanish Inquisition. The case was dismissed and the defendant and witness  left the court together.

The remainder of our sitting was taken up by feeding off the crumbs of the four other courts sitting.  Not sure whether our non trials go into the "ineffective" or "cracked" column of the statistics.  Never mind......the three minor motoring offences for which one very stupid and two very arrogant defendants had appeared were in the "guilty after trial" column.  

WHAT MORE CAN BE SAID?

I shouldn`t be writing this; I should be in a courtroom listening to a trial. It is, however, the same old story. A CPS agent has received no file but has managed to obtain some papers from the officer in the case; a complainant has turned up and decides that she is not willing to give evidence and after a short confrontation with said agent leaves the building. Result..........case dismissed! We all leave at 11.00a.m.

MUSINGS ON A THURSDAY

Since 2012 the Her Majesty`s Courts and Tribunal Service has become an estate agency. Well; not exactly but it has been the seller of highly prized real estate mainly in prime town centre locations. The buildings for sale have, of course, been the magistrates` courts deemed unviable in one way or another. These sales have provoked considerable objections up and down the country. M.P.s of all hues have found objections to their closure to be a sure way of having constituents agreeing with them in their “campaigns” to retain these monuments to a justice system of another age. Presumably somewhere in Whitehall will be a reckoning of the money raised. I would hazard an opinion that time will show that these assets were sold at seriously under valuations. One of these sales, the Harrow Magistrates` Court building, was to a charity known as the Jaspar Foundation (Registered Charity No1127243). This organisation provides facilities for the Asian population in North London. Apparently it was so eager to get to grips with its new acquisition that it blew asunder planning regulations. If any unlawful action is discovered and the matter comes to court the London Borough of Harrow will have to take the case to a court in another borough.

Further evidence of inefficiencies or selective disclosure in the sale of court buildings is evidenced by the goings on in Spalding. But of course we have the best civil servants in the world including those who work for HMCTS.

There is increasing pressure on the Secretary of State for Justice aka the Lord Chancellor to reconcile his desire to be seen to be tough on crime and criminals and yet at the same time being unable to provide adequate prison accommodation for those whom the courts deem to deserve such accommodation. It is also known that in excess of a billion pounds is outstanding in unpaid court fines, costs, compensation and surcharges. My point today is whether the pressures on prison places or the inability of courts to collect fines etc is justification for modifying sentences which otherwise would have been imposed. My own opinion for what it`s worth is that these considerations should have no input into our structured decision making processes and if fines or custody etc have been deemed appropriate they should be imposed. My colleagues at Newton Aycliffe thought otherwise.

The only serious deterrent to serious law breaking or a series of such offences when driving is the imposition of a driving disqualification. A defence against such a ban is the successful argument of “exceptional hardship”. It has been established that the loss of employment by itself is unlikely to satisfy the “exceptional” test. However the usual argument put forward to surpass the “exceptional hardship” hurdle is to “demonstrate that there were other circumstances associated with the loss of employment which might involve reflected hardship of a serious kind on the defendant’s business, his family or his long term prospects.”  Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospect.

A House of Commons answer of 5/6/07 is useful.

Mr. Sutcliffe: When a driver faces disqualification under the totting-up procedure, the court has very little discretion other than to disqualify, unless they are satisfied that to do so would cause ‘exceptional hardship’.
Whether exceptional hardship would be caused is a matter for the court to decide in each individual case.
The Sentencing Guidelines Council is responsible for magistrates' sentencing guidelines on this issue, and the decisions of the Court of Appeal in any relevant cases will impact on any decisions made.
Mr. Paterson: To ask the Minister of State, Ministry of Justice who is responsible for specifying the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure. [139642]
Mr. Sutcliffe: The Sentencing Guidelines Council are responsible for magistrates' sentencing guidelines, along with guidance provided by Court of Appeal judgements. The Sentencing Advisory Panel recently carried out a consultation paper on magistrates sentencing guidelines and responses will be considered in determining the final guidelines.
Mr. Paterson: To ask the Minister of State, Ministry of Justice whether (a) changes have been made in the last five years to the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure and (b) any such changes are proposed in the next six months. [139643]


So with the above in mind one can only conclude from a newspaper report  that my colleagues at Kidderminster Magistrates Court took a benevolent view of this driver`s circumstances although one could argue that those whose livelihoods depend upon having a driving license should exercise due care and attention at all times when behind the wheel.

LOW SITTERS GETTING AWAY WITH IT

One of the fundamental arguments in favour of Justices of the Peace presiding over magistrates` courts` trials as opposed to a single professional District Judge is that the former construction could be described not unfairly as trial of the people, by the people, for the people. However something is seriously amiss with our requirement to have three people on a bench with, if possible, diversity considered be it ethnic or sex. A recent day last month at my own court had seven courts in operation with nine sittings throughout the day. Of these, seven sittings consisted of a two person bench. This is plainly unacceptable. We have around 360 members. It seems to me that with my previous experience of some of the back room comings and goings that there are probably far too many colleagues who are sitting for the minimum number of sittings required. Which obviously leads to the next question as to whether or not they were fully appraised of the time requirements of a Justice of the Peace when before the Appointments Committee. I would suggest that prospective appointees were unlikely to admit time restraints at that stage in the process.

However there is a disturbing set of statistics hidden within the website of the  Judicial Conduct Investigations Office more familiarly known until recently by its former title; The Office for Judicial Complaints. One tends to be suspicious of organisational name changes for name changes sake; think Border Agency, Criminal Records Bureau etc etc. Anyway getting back to the topic; in 2012 in the period January 1st to July 16^th 14 magistrates were subject to disciplinary procedures of whom five were removed from the magistracy owing to their failure to complete the minimum number of sittings required. In the similar period for 2013 the figures were action against 12 magistrates of whom five low sitters were removed from the magistracy. This year up to today`s date the disciplinary process has been applied to 18 colleagues of whom one only was removed from the judiciary for being a low sitter. To a non statistician like myself it would appear that there is a prima facia case of there having been instructions to those powers that be to go easy on magistrates who have been unable to give the minimum time required to do this job. If that suspicion of smoke has arisen without fire somewhere in the Ministry of Justice I would be most surprised. The scandals of trying to have justice on the cheap which are routine knowledge to those of us in the system are just beginning to reach the general media. So next time any colleagues are sitting on a two person bench as I will doing at my next sitting ask your Bench Chairman what your bench statistics are on low sitters.

HERE YESTERDAY GONE TODAY

So the architect of reducing J.P.s` long leasehold (until aet 70) appointment to that of an assured short tenancy of ten years has had his own period of occupancy as a police minister abruptly terminated. Pity his boss wasn`t also given his cards.

MRS MAY IS NO MRS THATCHER

I had no post intended for today; that is until the lunch times news that Baroness Butler - Sloss had decided to stand down from the proposed inquiry into various allegations of paedophilic activity particularly amongst the great and the good. Despite her previous protestations she has now removed herself from the inquiry. Being the sister of the late Attorney General who was actively involved when accusations of child abuse were rife in Westminster did not seem to figure much in the mind of Home Secretary Theresa May when she appointed the Baroness. The more the denials of any previous covering up or of any intention of resignation emanated from the 81 year old the more it became obvious that hers was a losing case. But of more import it demonstrates all too clearly the inadequacy of the Home Secretary who just last week tried, apparently with some success, to convince her political opponents that emergency legislation had to be brought to parliament on the pain of there being an imminent risk of a successful Guy Faulkes night.

The leaders of the Tory Party have demonstrated so many instances of firm immutable decisions that have been reversed when they should not have been made in the first place that in some ways I hope the Scot Nats get their “Yes”. Our esteemed prime minister gave in on so many issues eg votes for 16 year olds that he has demonstrated he has no principles whatsoever and is following in the steps of his predecessor in securing whatever short term advantages he can get day to day. By pandering to the “victim” culture which has overtaken our legal system like the witch hunt of old he and his ersatz Thatcher have brought this latest sorry mess down upon their own heads.

APPLICATIONS UNDER MENTAL HEALTH ACT

Sitting with a single colleague last month at 1.50p.m. having been told by our legal advisor that we had an application from a mental health professional under the Mental Health Act s.135  I casually asked whether she had ever been on a bench which had refused such an application and was unsurprised at her reply that she had not.

I have posted on my early days on the bench with senior colleagues virtually rubber stamping entry warrants by utility companies and police search warrants. My more recent experiences indicate that with warrants to detain an individual under the Mental Health Act there is a definite disinclination to refuse such applications. I can recollect two occasions in the last eighteen months when, sitting with one other, we agreed that the information presented was lacking enough weight to allow us to grant the warrant to detain. Indeed on one of these occasions the applicant was merely the “message boy” and had no knowledge of the case apart from what had been written by his colleague which in itself was vague and mostly hearsay with virtually no medical history. He was advised, that if the matter were considered so serious, he should have a colleague with detailed knowledge make a further application ASAP.

I would urge all colleagues to consider very carefully, as I`m sure most do, such applications which are usually of high standard and be aware that as in findings of fact at trial there are certain thresholds to be met; the problem being that they are often more difficult to determine and upon them hangs a person`s liberty and our duty of public protection.

DAMIEN IS AN OMEN OF THE FUTURE

I have never had much time for the National Bench Chairmen`s Forum. At the very least its title does not indicate a desexualisation of the term “chairmen”. My own bench procedures often refer to such a group as “chairtakers”. Be that as it may it seems that this organisation is very slowly taking over positions which should be firmly occupied by the Magistrates Association. The NBCF is constituted with official standing in judicial matters affecting the workings of the lower courts. The M.A. by its almost toadying attitude over the years to government of all shades is losing members and influence. Until and unless it truly represents the interests of members in all the aspects a professional union should occupy, viz the B.M.A. I can foresee its becoming an irrelevance within a decade. However returning to the NBCF it has recently produced a position paper on the government`s ridiculous proposals to limit the tenure of J.P.s to ten years; [speech by Damien Green 25/03/2014] That document with a very effective demolition of the argument is copied *below. My only comment would be that for a bench chairman to be an effective court officer many more than the minimum number of sittings is required. A half day a fortnight is just insufficient time to become and/or retain effective competence; not the absurd definition as currently is the case. Considering that probably only about a third of sittings would be in a remand, breach or sentencing court as opposed to sittings in trial courts it is all too obvious that some colleagues are failing and rely almost totally on being carried through the sitting by their colleagues and/or legal advisor. It is unfortunately readily appreciated why an increased minimum for chairmen will not be imposed.

When one is acquainted with all the proposals of the last twenty years to “redeploy” magistrates and this current "initiative" from the Policy Exchange  it truly takes the ostrich position to argue that deep in the bowels of Petty France there does not exist a dossier containing a to be dated press release explaining why the justice system must follow the European example and have professional judges presiding over magistrates` courts. By that time I will need more than my battery charger to keep me interested.

*NATIONAL BENCH CHAIRMEN’S FORUM

TENURE OF OFFICE FOR MAGISTRATES

The proposal to have a set tenure of office for Magistrates arose from the document “Future Courts - A new vision for Summary Justice”, by the Policy Exchange. In this analysis (Page 10) there is a recommendation to introduce a ten-year tenure of office for Magistrates. It suggests, “This would generate a greater turnover of Magistrates and offer more opportunity for younger Magistrates to volunteer, Magistrates would be able to reapply, but only following a thorough appraisal and updated training”.It is also stated by the Policy Exchange that following appointment, “Magistrates continue to serve until they reach 70 years of age, preventing the appointment of younger magistrates.” The Minister, Damian Green, further raised the idea of a defined tenure when he spoke at the Policy Exchange on March 25^th 2014; he stated, “The introduction of a ten year tenure of office has been suggested by the Policy Exchange and others. I am attracted to this idea, because it would generate more opportunities for people to volunteer.” The purpose of a defined tenure of office is to “boost diversity” as the Minister stated, and “to free up Magistrates to use their expertise in other areas within the CJS”. Some suggestions for this redeployment have been; Neighbourhood Justice Panels and Local Criminal Justice Panels. It is assumed that any changes to the tenure of Magistrates will only apply to new appointees. There would be significant practical difficulties were it to apply to existing Magistrates, not least because complex transitional arrangements would be necessary. There may in any event be other challenges to any proposals to change the terms on which Magistrates have already been appointed. This paper is therefore written on the basis that any change will not be retrospective.

Recruitment

In response to these proposals, the question must be posed whether, and to what extent, would tenure of any length, achieve the objective of increasing the diversity of the bench? The recruitment would need to focus on selected groups, traditionally hard to reach, such as the 30 and 40 age groups and those from the BME communities. Targeting such groups as a source for new Magistrates is not new, although the proactive recruitment of former years has largely been replaced by reliance on the GOV.UK website. Proactive recruiting methods are used far less today, because the need for recruitment has reduced as workload has declined, and the number of applications that are received via the Internet in many cases exceeds the number required for a recruitment exercise. Targeted recruitment will have resource implications and, if successful, will create new issues because the need for new appointments is unlikely to increase in the short-term, whilst the number of applicants will rise. Ideally the recruitment process would be carried out in a way that enables Advisory Committees to specify that any new appointments should be in the age range and ethnicity required, although such an approach will almost certainly be rejected because it would be subject to challenge on the basis that it is discriminatory. There would therefore be a risk that the work in targeting specific groups would have only limited impact. A great deal of work has been undertaken by the JAC over many years to target recruitment to the salaried Judiciary; it would be useful to explore what lessons have been learned as a result of that. Ten years on from the first recruitment exercise based upon a ten year tenure, the Magistracy is likely to experience an annual ‘turnover’ in excess of ten per cent; almost twice as much as current turnover. Between the ages of 30 and 40, men and women are very engaged with their work, building careers and in many cases, raising a family. They are very often financially burdened and to commence a voluntary role, as demanding as that of being a Magistrate, represents a real challenge. In addition, employers do not encourage voluntary service and employees fear being disadvantaged in the promotion equation. In many cases employees are being refused time off for voluntary work, even in a Judicial role. Parents struggle with childcare responsibilities, particularly if family cannot assist. Introducing incentives for employers may help and they must also be made aware of the positive aspects when an employee becomes a Magistrate. It is often very obvious that after appointment a Magistrate becomes more confident, able to give a more balanced view and they develop skills, which can be transferred to the workplace. It may be useful to look again at the criteria for appointment to ensure that it is not weighted in favour of those who are slightly older, have more life experience and are in white-collar jobs; at present such individuals tend to score highest in the selection process. Just one example is the appointment of members of the legal profession, who often wish to volunteer for this kind of role in the community. They naturally score high at interview. One of the problems identified with the current system is that Magistrates can continue to sit to 70 years of age and this can have the effect of blocking the appointment of younger Magistrates; it would be useful to obtain some statistics on the number of new appointees who are over 55 and therefore serve for no more than 15 years. To impose a defined tenure period by itself would not be effective. Other changes would also be required. As Magistrates are redeployed to community work, they would possibly be replaced by those in the exactly the same age group and of the same ethnicity as at present. As part of community work based on what they are already doing, Magistrates are in an excellent position to speak and encourage employers to be more flexible in allowing their staff to become Magistrates. This may be a role for them in which to increase participation in the Justice System.

What period of tenure?

If defined tenure were to be introduced, it is sensible to consider what period would be preferable. The Policy Exchange suggested that the tenure of a Magistrate should be ten years. Under our current system Magistrates who have served between ten and twenty years form the pool from which people are selected to become Panel Chairmen, Deputy Chairmen and Chairmen of Benches. Likewise, there must be the correct balance of Chairmen and Wingers on a Bench, and Chairmen do not generally start chairing until their fourth or fifth year in office; this would need to change, but would mean relatively inexperienced Magistrates having to take the chair. Careful monitoring would need to be carried out to ensure that there are a sufficient number of Chairmen to run the courts. The risks of this approach must not be understated. A bench of Magistrates needs to be competently led by an experienced chairman. If inexperienced and less competent tribunals become the norm, this will have an effect on the work of the Magistrates’ courts and the reputation of the Magistracy. If the proposal were for tenure for more than 10 years, it would be important to review the average length of service across those who have retired in recent years. There is a perception that an increasing number of Magistrates serve between 15 and 20 years, and setting the tenure at 20 years may not bring any change. Currently Magistrates are able to join the Family Panel after 2 years on the Adult Bench and specialize after 5 years. They need training and experience for this role. If a defined tenure were to also apply to Family Magistrates it would remove them just when they are achieving competency in dealing with family cases, which can be very complex. The loss of a significant number of Magistrates with a Family ticket would compromise the speed at which cases could be dealt with at a time when Family work is increasing and there are set timetables for completion of cases. It follows that the recruitment of Magistrates directly to the family court, bypassing the need to sit in the criminal court, may be necessary.

Appraisal

Addressing the suggestion by the Policy Exchange of a “thorough appraisal and updated training”, it is important to recall that Magistrates already have appraisals throughout the time they are in office. To consider a thorough or robust appraisal only after ten years is far too late in the Magistrates’ tenure of office. Magistrates need robust appraisals eighteen months after appointment and then either every two or three years. This should identify those individuals who perhaps need to consider a different kind of volunteering role at an early stage. A more effective efficient Magistracy would be developed. To achieve this and improve performance, the appraisal system itself needs to be reviewed. At present, colleagues who have undergone training as appraisers currently appraise Magistrates. Some cross bench appraisals are also conducted, when an appraiser from another Bench carries out the appraisal. This was introduced to allow Magistrates to be appraised by someone who they did not know. Current experience unfortunately suggests that this has not improved the appraisal system. Some individuals have continued to sit, who are not able to execute the role to the required standard. Leaving a robust appraisal only until ten years into office is thus leaving things too late.

A renewable tenure?

A further consideration might be a renewable tenure based upon the need to retain experienced and competent Magistrates. It would be superficially attractive to employ a system whereby a Magistrate’s term of office is not renewed after 10 years on the basis of the need for ‘turnover’ and their individual competence. However, if a Magistrate were found not to be competent after tenure of office, there would need to be an appeals process in place. This would be an added burden to the Training committees and have further resource implications. It is likely that some Magistrates would wish to commence litigation if they had been deemed competent for ten years and were then removed on the basis that they were no longer competent.

Training

The statement that there should be “updated training” is difficult to comprehend. Training is ongoing from the moment a Magistrate is appointed. Only the core training, carried out before a Magistrate can commence sitting, soon after appointment, is currently compulsory. Therefore, there is very little that can be done if a Magistrate, shown to be competent at appraisal, has not attended very important on going training. Good numbers of Magistrates do attend training, but compulsory training would be an advantage and should not require significant additional resources.

Judicial Office holders

Magistrates are Judicial Office holders, part of the Judicial Family and members of the Judges’ Council. Although unpaid, it will be argued that they should not be treated differently to other members of the Judiciary. As Judicial Office holders, Magistrates are appointed with this as their key role. The defined tenure would be introduced to free up some Magistrates to carry out other tasks in the community. It cannot be presumed, however, that all those after fulfilling their judicial office as a Magistrate, would wish to do other work on a voluntary basis in the community. The two roles are very different. Would they remain as judicial office holders whilst fulfilling the community role? As a Magistrate the individual is accountable to the Lord Chief Justice under a Judicial hierarchy. This encompasses all the work they discharge whilst appointed. Some system of accountability would need to be established if Magistrates ceased to be Judicial office holders after a period of tenure, but engaged in other activity using the badge ‘former Magistrate’.

Alternatives

One alternative option to tenure might be to have a reduction of the numbers of Magistrates appointed in line with the reduction in workload. A further reduction is anticipated when legislation allows regulatory work to be carried out by one Magistrate sitting with a legal advisor. The reduction in Magistrate numbers would be managed over a period of time, until the right number was reached for the level of work. It is always an advantage to have newly appointed Magistrates. They invigorate the Bench with new ideas and enthusiasm. This too, could be managed according to any fluctuation in workload. A smaller Magistracy would be cheaper to administer and maintain. A smaller, better-trained, effective Magistracy is attractive, because it would improve public confidence, speed up the Judicial process and have little resource implications. A separately appointed group who are interested in community work associated with the CJS could carry out community work. There are already lay members of Independent Monitoring Boards, Youth Offending Teams, Victim and Witness support. They do not need to be Magistrates.

In summary therefore, there are better ways of achieving a more effective and efficient Magistracy without imposing tenure of office and they are mainly without resource implications. Defined tenure is extremely unpopular with the Magistracy and would engender a lack of commitment if individuals knew that after a few years they might be removed.

Magistrates should be treated as other Judicial Office holders. Their main role must be Judicial, but as is the case now there is scope for community engagement and work in the community by those who wish to do it.

20.6.2014.

CHARGE BATTERIES

Time for this J.P. to charge his batteries.............back next week sometime.

NOT THE SHARPEST KNIFE IN THE DRAWER

The current case management form used in our courts followed the guidance from the Senior Presiding Judge in 2009; “Applying the Criminal Procedure Rules”. The underlying principle is quite simply that the innocent are acquitted and the guilty convicted. There are still some defence solicitors who refuse to be bound by these rules. However in practice it is very difficult to confound them when they insist on putting the prosecution to proof. Be that as it may occasionally a word or two on the form can mean the difference between acquittal and conviction.

Some months ago it seemed opportune to sit in the well of our court over which one of our D.J.s was presiding. A small group of men was alleged to have caused criminal damage on a deserted high street at around 3.00a.m. All but one of the group admitted the offence on the morning of trial and the singleton not having answered his bail was tried in his absence. Prosecution relied upon CCTV the images on which were not of the highest resolution but appeared to show the defendant`s active part in the alleged offending. At the police station where he had a lawyer there had been a “no comment” interview and a pre prepared statement affirmed the defendant`s denial of knowing the others in the group and his being there. Before the prosecutor closed her case the District Judge asked to inspect the case management form completed on the 1st listing for the defendant who on that occasion was represented. He then commented for all to hear that written in the unmistakeable flowing black ink of a fountain pen equipped lawyer in the appropriate section 8 box was ticked “yes” to the statement; “The defendant was present at the scene of the offence alleged.” He continued, “At 8.4 ( disputed issue) in the same ink was written, “presence admitted but not part of group nor participant in alleged offence”. The defendant was convicted in his absence and a warrant without bail issued for his arrest. Unlike his co offenders when he would have been  sentenced he would have  received no discount.

JUSTICE UNDER RESOURCED? IT`S THE ECONOMY STUPID

Currently there is much controversy over the prosecuting policies of the CPS. The conviction on all charges of Rolf Harris has gone a long way, some would argue, to justify the time and cost of investigating the activities of those reprehensible examples of humanity. On the other hand the very logical response of the Attorney General regarding convictions for rape has provided ammunition for those whose standard of required proof might fall short of beyond a reasonable doubt. Such extremes of opinion are visible to any visitor to a trial held at a magistrates` court.

A recent sitting featuring two trials could have been filmed as a demonstration of the width between good and bad judgement by the CPS. In the former case an elderly defendant with a long history of offending had pleaded not guilty in a low level sexual offences matter where the prosecution case was nothing less than overwhelming. The complainant and an independent witness were as forthright in their testimonies as one could wish. Even with very competent counsel the defendant had as much chance as a snowball in hell in establishing any doubt in our minds. On the other hand the evidence from a complainant in a very minor matter of public (dis)order and criminal damage resulting from an innocuous road rage encounter was as thin as a strand emanating from a silkworm. The complainant in evidence admitted having lied to police, tampering with the alleged damage, behaving aggressively and herself having initiated the whole episode. We threw the case out at half time. With just a modicum of investigation and some little insight by police and CPS at a very early stage it should have been put into the waste paper basket where hundreds of such cases no doubt should end up.

Such a waste of time and resources is as much to do with the actions of this government and in particular the Justice Ministry as more widely propagated examples of ineptitude and blind adherence to a mantra of cutting public funding irrespective of the consequences longer term. Oh, I almost forgot.........there`s an election next May where the winning ticket has printed upon it (according to one advisor to Bill Clinton); “It`s the economy stupid”.

HOW EXCEPTIONAL MUST EXCEPTIONAL BE?

Exceptional Hardship is an example of where Justices of the Peace can still exercise some free thinking as opposed to the myriad situations where the Sentencing Guidelines have brought tick box thinking to our courts in the name of “uniformity”. As with health outcomes there should be only one outcome in any post code; the best and most suitable in the individual circumstances.

This reported case has virtually all the ingredients of such applications. Bear in mind that loss of employment is not a valid reason for allowing such an appeal are there any colleagues out there who would have come to a different conclusion considering also that a finding of exceptional hardship does not necessarily require the whole six months ban to be lifted; a partial ban can be imposed eg four weeks?

POLITICS, POLICE AND THE PRESS

The three Ps; Politics, Police and the Press have in all combinations made the headlines this week. There can be few individuals IMHO who exemplify this entanglement more than former Metropolitan Police Commissioner Ian (now Lord) Blair and his colleague John Yates   the latter now working in Australia who was an advisor to the ruler of Bahrain on reform of its security forces when he resigned from the Met. Judging by a report from Amnesty International he left his Arab employer with work still to do. The good Lord Blair`s recent public comments are of interest when read against his entry in Wikipedia.

ADDENDUM 4th July 2014

There is a very interesting piece in the Guardian 2nd July which takes this story to the next level

LOOPHOLES

Cards on the table; I`m what`s commonly known as a Eurosceptic and have been since I could spell the word “politics”. We read all too often that up to 70% of are own laws are based upon legislative directions coming from Brussels in one form or another. I suppose the directives on driving licenses are a case in point. At one time not so long ago EU driving licenses were valid for a year for settled immigrants or until application was made for a provisional UK license. Things are much different now for incomers from the EU; such individuals can drive in Great Britain on a full, valid EU driving licence until age 70 or for 3 years after becoming resident in Great Britain, whichever is longer. I am unsure how the authorities define “resident”. It would appear that at some time or another incomers from the EU had to pass a British driving test which is probably the most difficult of all within the EU. It seems logical that many would try to manipulate the system to avoid having to surmount this hurdle. When it comes to EU drivers of any nationality being banned in the UK  I have discovered there is an apparent anomaly or loophole in the system.

Last month a second generation unrepresented Maltese man was before us for driving whilst disqualified. He pleaded not guilty at the first listing on the basis that he had, since his UK license was taken from him, passed a driving test in Malta and was therefore entitled to drive on that. Consulting the books the L/A and CPS prosecutor were unable to determine whether there was indeed an EU directive worded in his favour and the case was listed for trial in September.

When government spokesmen deride the figure of 70% of our legislation being EU based it is matters like the above that they conveniently overlook. I would argue strongly “roll on referendum 2017” were it not the case that no government will allow a fair vote if it fears defeat eg Syrian intervention revolt shocked the Tories to the core. The Scots got theirs only because Cameron thought it impossible for the Nats to succeed.

Perhaps Mr Loophole has the answer?

ANOTHER SITTING; ANOTHER DAY OF FRUSTRATION

This blog seems to be becoming repetitive. However when the same story is repeated virtually every time one steps into the courtroom what else can one do but relate the story. I have no reason whatever to think that the experiences at my court are in any way different from courts all over England and Wales serving a suburban ethnically mixed population. We are being encouraged to take charge of the case management form at the first listing.......oops..... it`s now termed the pre trial form......Don`t those w****** in Petty France have anything else to do with their time than rename forms or procedures? But to get back to basics; I have no objection at all to magistrates taking greater responsibility for what goes on in the courts that still bear their name; indeed I am a proponent of just such actions but I am wary when or if we are being set up to take the fall if things go wrong. When it comes to the time estimates which now must be listed for every witness it seems that the reasoning is to have a foundation which justifies over listing. Generally, however, the L/A suggests the required time to allocate. If a defendant is unable to confirm that s/he will be represented there is IMHO not enough additional time allocated. If s/he requires an interpreter the additional time is often underestimated.

My last sitting was completely in disarray owing to statutory declarations keeping us occupied from 9.45a.m. until 10.40a.m. followed by an unrepresented defendant applying for an adjournment in a case with a history of previous gaps in chronology. The result was that the first of our two trials listed was not completed until 1.30 p.m. and the other was necessarily re listed for September two police officers, a complainant and a defendant having to suffer a wasted morning.

It is well known that NHS hospital beds are running at around 98% occupancy cf the 80%+ in many European countries. Some call this efficiency. But this “efficiency” is akin to running your petrol tank to the flashing light before filling up. If things go wrong one can be stranded out of gas in a country road at midnight. In due course the statistics of wasted, cracked and ineffective trials will be published and a gloss painted over them. Ask those actually involved and the responses will not be fit to to be published except by a series of expletives.

NOTHING ON THE HORIZON

However dismayed my colleagues and I might be over the crumbling of the magistrates court system for those whose livelihood requires them to fulfil their court appointed functions I have nothing but admiration. Those in the justices` liaison office who are forever juggling names attempting, often in vain, to have three person benches still have a smile in their voices when cancelling sittings for some reason or another. It is a not an inexplicable paradox that now with our bench at a strength of about 360 cf 165 pre Clarke we seem to have more and more benches constituted with only two J.P.s. They and our legal advisors daily come to work with clear knowledge that every day is a struggle to keep running a system of summary justice which is failing them and the public. Whilst the NHS receives almost daily headlines for one reason or another, our justice system without which there is no free democratic society of any colour, is steadily and quietly being eroded. Unfortunately nothing on the horizon suggests any improvement.

Having moaned and groaned enough this morning a recent sitting in our remand court was as varied as is usually expected. A 71 year old of previous good character was before us having pleaded guilty to assault by beating. Although her case was considered as “road rage” and the “book” sentence was at least to have reports from the probation service we made use of the provision available to fine her at the D rate. After we had challenged the low level of income and assets she had declared on the means form she left court having paid almost £2,000 on the spot for her temporary loss of self control. Two cases where the custody threshold had clearly been breached were dealt with. The prolific shoplifter whose previous ran to four pages was sentenced to an immediate custodial sentence. Similarly the offender who was before us for a third driving with excess alcohol and for a third time driving disqualified was given the maximum allowed by law. In both cases our duty of public protection left us in no doubt as to sentence although there are still critics who would object to prison for shoplifters.

A KITE FLYING OVER PETTY FRANCE

The Ministry of Justice is really becoming repetitious in devising out of court tasks for magistrates. Our numbers are falling like the winter rain in the Western Isles. Various reasons are behind this drastic drop in numbers; the age profile of J.P.s, reduction in new appointees owing to fewer offenders coming to court, reduced number of courts and increasing numbers of District Judges. The MOJ and Magistrates Association talk up the wondrous world of out of court opportunities for my colleagues and me....magistrates in the community, mediation, local rehabilitation councils or similar, oversight of police fixed notices etc etc. The latest such wheeze is the flying of a proposal to put magistrates on the parole board not as individuals as now is the case, but in an institutional fashion to oversee the early release of various classes of prisoners. There is no official notice anywhere within the MOJ or Parole Board websites of this proposal. Almost certainly it`s another kite flying over Petty France. My fear is that it will be be treated with some seriousness by my colleagues when instead it should be ridiculed for the nonsense it really is.