GOOD INTENTIONS AND THE ROAD TO RUIN

Something is badly out of kilter.  At my last morning  sitting I entered retiring room as usual to check arrangements for the day ahead.  Five trial  courts were operating and each with only two J.P.s.  There were no religious holidays that day for Christian, Hindu, Moslem or Jewish colleagues.  There has not been a `flu epidemic.  There was no transport strike.  Local trains were not reported as having problems with the leaves on the tracks and there were no unusual road hold ups.  The bench liaison office just could not summon enough sitters.  Who is to blame?  Candidates are Bench Training and Development Committee who make recommendations, Appointments Committee,  local court manager i.e. the  Deputy Justices Clerk, the  Justices Clerk with overall authority for many courts in the area,  HMCTS or Ministry of Justice?    I recollect having sat on two trials where my single colleague and I could not agree a decision on guilt and retrials were ordered.  Admittedly this is such tiny proportion of my involvement in trials as to be statistically insignificant.  Nevertheless  courts should consist of three lay justices; not two. 

This is just another example of the malaise within the system.  Those responsible from the top ranks of government down to those in the trenches bear a grave responsibility for constructing the road to ruin for our summary justice system which they have paved with the supposedly good intentions of reducing the deficit.

COMMUNICATIONS ACT (2003) s.127; MAXIMUM SENTENCE TO INCREASE TO 2 YEARS

s.127

Improper use of public electronic communications network

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)sends by means of a public electronic communications network, a message that he knows to be false,

(b)causes such a message to be sent; or

(c)persistently makes use of a public electronic communications network.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

This is currently a summary only offence with convictions as follows:-

Between 25/07/2003 and 31/12/2011  5,316 people were  found guilty at magistrates` courts in England and Wales of offences under section 127. These figures  include obscene telephone calls and text messages as well as internet-based communications. The figures available cannot distinguish between communications to an individual (such as a phone call) or the public (such as a Twitter post).^[3]

Section 127 cases, England and Wales
	2003	2004	2005	2006	2007	2008	2009	2010	2011	2012	2013
Proceeded against	0	214	355	550	680	872	126	1511	(2000+)[4]	?	2000[5]
Found guilty		143	260	377	498	693	873	1186	1286 (1309)	1423	?
Conviction ratio %		67	73	69	73	79	78	78	(<64)	?	?

In simple language Section 127 provides that it is an offence (and thereby means that a person can be arrested, charged, convicted, sentenced, and obtain a criminal record) if a person sends "a message or other matter" which is "grossly offensive or of an indecent, obscene or menacing character" by means of a "public electronic communications network".

Our esteemed Chris Grayling has this weekend secured his desired headlines by announcing changes to the above Act insofar as it shall become an either way offence with a maximum term of imprisonment increased from the current six months to two years.  Like much criminal legislation the maximum sentence for any offence is intended as much as a deterrent to the committing of that offence as a punishment.  IMHO it is not difficult to conclude that this increase in sentencing availability is based not upon logical understanding of the behaviour involved and the requirement to modify that of possible offenders but to pander to what he assumes is public prejudice aroused by a few particularly nasty cases.   In 2012 under the Section only 201 offenders  received custodial sentences.  If the current sentencing guidelines are not employed to the maximum what changes are to be expected?  If that small number jailed for the offence were to be replicated when the new maximum is  available are we to assume that Crown Court judges will step up their punishment?  Will juries be as ready to convict with two year jail terms on the horizon as magistrates do now at a highly efficient  rate of around 70%?  And most significantly will the possibility of conviction at Crown Court deter those possible offenders from making their sometimes odious on line remarks as opposed to the current situation, which is so rarely warranted,  of six months maximum at the magistrates` court.  “I hae ma doots”, as Boswell said to Dr. Johnson.

INTERPRETERS IN COURT//M.O.J. ANALYSIS

The Ministry of Justice has today published statistics extolling Capita plc`s efforts to satisfy the critics of its interpreters` contract  insofar as its apparent failures to provide a quality service to courts and tribunals.  It is obvious to all that a statistical analysis of any procedure depends 100% upon the information supplied to the analysers  who conduct the analysis.  My own personal experience informs me that that is where the rosy picture painted at Petty France originates.  I would argue that court officers through a mixture of under reporting for a variety of reasons and ineptitude do not report in full the true extent of failures to attend.  As far as seeking locally sourced replacements; by the time which has elapsed since a failure to attend has been accepted or “confirmed”  a decision has been made to adjourn proceedings or no local substitute is available. 

            Any fly on the wall statisticians attending a magistrates` court for a couple of weeks  with access to the retiring room  would soon become acquainted with the lack of management.  It is to their credit that the majority of legal advisors ,  who are privy to this maladministration,  by their fortitude in this situation   keep the system tottering along with the ever sympathetic lay benches in support. 

NOT SURE OF NOT PROVED

Those associated with the Scottish legal system have generally been proud of its efficiency and fair treatment of defendants.  Indeed along with education it was cited often during the referendum campaign as symbolic of the country`s status as  an independent  nation within the United Kingdom.  With the recent amalgamation of the separate police forces in Scotland into a unified command;  Police Scotland, there has now been established an expert group to examine the ramifications of abolishing “corroboration” in the courts.  The most widespread example is that two witnesses not excluding police officers  are required to give evidence against a defendant whereas a single witness is sufficient in the other parts of the U.K.  There are also going to be questions as to changing the number of jurors and the majority needed to convict.  All these proposals are, according to the arguments,  to safeguard the innocent until proved guilty concept of our justice system.  It seems strange therefore  if  the Herald report is comprehensive  that that most unusual of all processes in Scots law, the verdict of “not proven” ,    is not up for consideration.  On the surface that verdict alone seems calculated to ensure that any shadow of doubt in the prosecution case  is firmly placed in favour of the defendant.