THE DISTRICT JUDGE OVER WORKED AND UNDER VALUED

There was an interesting piece in yesterday`s Law Society Gazette.  A supposedly overworked and under valued District Judge(MC) is taking action against HMCTS to bring a claim citing disability discrimination and whistleblowing under the Employment Rights Act 1996.  The many comments after the article are as interesting as the piece itself.  For my part I have little sympathy with her.  Perhaps she thought the job involved a very hefty salary with none of the downside of being in practice and a juicy pension to boot. Readers can judge for themselves here.

SUPREME COURT PRESIDENT WAS MISUNDERSTOOD!?!?

There was a time long ago when my respect for judges was almost unbounded.  Successive incidents, announcements, actions and inactions  and pronouncements have eroded that respect. The result and conclusions of Lord Levison`s effort to control the freedom of the press were the antithesis of the basis of a free society and gave this blogger at least the impression that the senior judiciary is marching to a popular tune far removed from its original melody. In April last year Lord Neuberger, the President of the Supreme Court no less made headlines which stated unequivocally that a foreign non religious culture should be able to supervent the requirements for impartial secular, non denominational court proceedings in this country.  It seems his lordship`s thinking processes are not to be relied upon. Last week he had a change of mind.  Now some changes of mind are welcome when a situation or a basis for consideration is altered to such a degree that not to alter an opinion is simply foolish. But nothing of fundamental value has changed in the question of whether witnesses in court should be allowed to wear a veil. Nevertheless he has issued a new statement in The Times 30th January (behind its paywall so scanned below)  telling the world that his previous utterings had been "misunderstood".  Misunderstood!  Are we to believe that the President of the Supreme Court could not make his thinking processes clear to mere mortals?  Are we to believe that this man at the top of his profession; a profession which daily decides upon the machinations of those angels dancing on pinheads, could allow himself to be misinterpreted?  There are only two outcomes.  If we believe then confidence in his position is eroded; if we disbelieve confidence in his position is eroded.

REWARD FAILURE

Along with most other legal commentators or observers this blog was highly critical of the previous government`s Justice Secretary, one Chris Grayling AKA currently as the Leader of the House.  I think it is fair to say that few legal big wigs made any great criticism of his activities whist he was in occupation of the woolsack.....at least in public.  He brought nothing less than havoc to the criminal courts, the magistrates` courts in particular, by the imposition of the criminal courts charge last April.  He tore down the national probation service in an effort to substitute  payment by results from outsourcing companies who have predictably and contrary to their original assurances proceeded to reduce the workforce but at a cost in all probability  of reduced effectiveness in what is now a two tier probation system.  He presided over a walk out of barristers who demonstrated outside the very courts in which they were scheduled to appear and who thus prevented proposed cuts to their fees. Against all advice and common sense he introduced curbs on the books which prisoners could have in their cells.  He contracted to a joint venture on their prison system with Saudi Arabia.  All these proposals bar the changes to probation have been rescinded by Michael Gove.   Earlier this week he scrapped proposed changes to the legal aid contracting scheme for lawyers. 

Rarely if ever has there been such a disassociation and repudiation of one cabinet minister`s actions by his successor of the same party. It is beyond belief that he occupies a front bench position in the House of Commons.  It is little wonder that politics and politicians are held in contempt by the general public when such  failure is rewarded.

WEED: NO EVIDENCE SO NO CONVICTION

I support the decriminalisation of drugs for personal use.  Addiction is primarily a medical problem; criminality is a consequence.  Although there are cogent arguments against,  I believe that beginning with reforming the law for cannabis in all its forms would be a desirable thin edge of a very wide wedge.  During my time on the bench that philosophy was enhanced by the many occasions of a lackadaisical police approach to producing evidence in court of the use of the weed for personal use.  Depending on circumstances cannabis for personal use was an easy collar or an unnecessary irritation.  Events recently at Cambridge Magistrates' Court were,  I`m sure, not unfamiliar to any Justice of the Peace.  It is, however,   unlikely that this government has the cojones to bring forward such legislation.  A very substantial parliamentary majority would have to be in place and the political rewards would need to be apparent.  Weed smokers had best still keep their habit behind locked doors and those don`t include car doors on or off the public highway.  

RISK OF SEXUAL HARM NOTICE//MIRTH IN THE MAKING

There`s an ancient proverb that says more or less that if one offers the devil a finger he`ll take the whole hand.  Apply the metaphor to the police and there is a neat congruity.  Domestic violence protection orders are such an example.  On the basis that the "victim" must always be protected from somebody these iniquitous actions can be applied by a police officer of superintendent rank or above. In practice no superintendent is going to attend such an alleged incident in person; s/he will rely upon a report from a constable or even a PCSO.  The consequences for those arrested and subjected to such an order can be life changing.  For further information government guidance is available here and as an example in practice Sussex Police have published this.  The College of Policing has its own text on the topic. 

In the Sexual Offences Act 2003 can be found the following:-(as amended by the

Anti- social Behaviour, Crime and Policing Act 2014)

126Interim RSHOs

(1)This section applies where an application for a risk of sexual harm order (“the main application”) has not been determined.

(2)An application for an order under this section (“an interim risk of sexual harm order”)—

(a)may be made by the complaint by which the main application is made, or

(b)if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3)The court may, if it considers it just to do so, make an interim risk of sexual harm order, prohibiting the defendant from doing anything described in the order.

(4)Such an order—

(a)has effect only for a fixed period, specified in the order;

(b)ceases to have effect, if it has not already done so, on the determination of the main application.

(5)The applicant or the defendant may by complaint apply to the court that made the interim risk of sexual harm order for the order to be varied, renewed or discharged.

The law of unintended consequences might apply to the application of this legislation so I wonder if the bright young minds in Petty France foresaw the possibilities that the sublime would  soon turn into the ridiculous if this poorly considered amendment were followed, as it was to be, by police to the extreme.  North Yorkshire Police in their wisdom would appear to have brought a smile and mirth to every sub editor worth his/her salt  with the decision to specify the conditions under which a man inter alia must inform them 24 hours before having sex with a woman. 

Once again this is an example of so called victim orientated law going beyond the bounds of reason. It will take resolve, good sense and strength for a bench to refuse such applications.  I fear that few will be able to withstand the pressures put upon them when the time comes.

 

CRIME AND LACK OF PUNISHMENT

Despite the introduction of sentencing guidelines a decade and a half ago it can probably be said that no two cases are the same and certainly not the outcomes.  Indeed within the same courtroom I have in the past had to remind colleagues that each and every case had to be assessed on its individual circumstances and that there is no such thing as a judicial size fitting all.  It is, however, interesting to note the dissimilarities between two matters where assault was committed using footwear as the weapon.  Firstly the charges were of different magnitude; grievous bodily harm or unlawful wounding and common assault.  The former unprovoked attack  resulted in serious injury and after a guilty plea the offender was sentenced in the crown court to 18 months custody suspended. The latter case before High Peak Magistrates resulted in 10 weeks custody suspended for the assault by a man on his pregnant girlfriend who was approaching her due date when the assault took place.  

The second matter reminded me of a case over which I presided when the male in a relationship dragged his heavily pregnant partner by her hair to the top of the stairs in the house they shared and pushed her down those stairs.  We were astonished at the undercharging by the CPS and had no doubt that he deserved and received our maximum sentence of six months immediate custody.  With the cases reported above only those in court know the full extent of mitigation offered but on the surface it does appear that the crown court judge might have been feeling particularly benevolent that day.  The case in the lower court does IMHO raise more awkward questions.  Did the CPS under charge?  Did the bench feel apprehensive about immediate custody owing to "advice" from the legal advisor?  If a man can strike two or three times the back of a woman`s head with presumably a reinforced work shoe and that woman  is near to giving birth  and still not receive immediate custody just where are we going with crime and punishment?

THREE OF A KIND

I am one of the fortunate people who can experience a Christmas New Year period as a time for reflection and relaxation. Having some years ago had quite extensive training in traditional hatha yoga and latterly in transcendental meditation not only can I attempt to control psychological and physiological processes it does not take much effort to allow a certain amount of introspection to enter my consciousness.

Sometime after Christmas after talking with an ex colleague  I was thinking of the significance of a bench split in its decision and its consequences at the close of a trial for sentencing. I would hazard a guess that over the years no more than 10% of the trials on which I  sat led to such a division in the retiring room. That minority was probably equally split between both majority guilty and not guilty. Of course nowhere is it recorded whether the verdict is or is not unanimous. The bench makes a collective decision and that is how it is likely to  remain and that is why we are a bench of three and IMHO a fairer method of judicial fact finding than a single individual however well qualified. However while I was active when it came to the same bench sentencing I noticed that there was and presumably is no set pattern and certainly no guidance from anybody. Some former colleagues who were in the “acquit” minority quite logically, when opining on sentence using the correct structured approach, made clear that their situation led them to a minimum tariff whilst others declined to be involved. There is a third group which in acceptance of the bench decision of guilt undertook the exercise without prejudice and partook in the usual manner.

That period of introspection has led me to the conclusion that there is no right or wrong approach morally, judicially or legally with any of the three situations as outlined above. Others might disagree.

REALITY T.V. COP SHOWS AND THE CUTTING ROOM FLOOR

Fictional television shows about police and policing have been a staple part of the home visual entertainment diet since T.V. became the country`s prime means of information and communication. From “Dixon of Dock Green” over half a century ago through “Z Cars” in the 1960s via “The Bill” and “Prime Suspect” our fascination with the genre is unending. Combine that fascination with the techniques of fly on the wall reporting and we have "Forced Marriage Cops". It follows other similar see it as it happens reportage of police involving motorway patrols, city crime cars, police in helicopters, police in boats, police, police, police. One common thread in all these is the supposed control by the programme makers of the final edit. Whether or not payments are made to whom or for what amounts of cash I am not privy but constabularies and their police authorities have sanctioned this warts and all approach and so must believe it is to their advantage that the public has a supposedly unexpurgated picture of what their police forces must put up with in the course of their often dangerous and unpleasant duties. So what happens when some of the uniformed participants act in such a manner that critics, some in their armchairs some more knowledgeable, believe that their officers behaved unprofessionally? Perhaps those who make cheap programmes involving out takes might find the cutting room floors of the involved production companies a source of rich material.  Whether such images would reach our screens is another matter.