GRIST TO A POLITICAL MILL

Almost exactly a year ago the worst Lord Chancellor in the lifetime of most of us introduced the Criminal Courts Charge by which costs unrelated to means were imposed upon offenders.  Very few members, if any, of the senior judiciary voiced any concerns over the principle, implementation and probable ramifications of this  disastrous corruption of our legal system which until then had generally related financial punishment to ability to pay.  Personally I left the magistracy somewhat earlier than my birth date demanded so that I would not be required to make the iniquitous pronouncement.  It is thought that dozens of former colleagues reaching the end of their tenure resigned prematurely for exactly the same reason. On October 23rd last year I posited the question as to why opposition to the Charge had been muted. 

Now  has been revealed what any right thinking legally orientated individual could have predicted but didn`t about the collection of the Charge; It wasn`t (collected). The Facts Sheet, including the so called Impact Assessment of February 2015 reveal what all the mighty brain power of the Ministry of Justice had conjured up and told the general public including presumably the senior judiciary and newspaper editors. 

All the modelling, statistical analyses and forecasts must have cost hundreds of thousands of pounds.  We will never know whether Grayling actually read those 29 pages or whether some functionary within his department summarised it and other documents for him from a précis as was admittedly the case  during the Parliamentary Committee hearing on the scandal of Capita plc and interpreters not so long ago.   

With news that our prime minister`s late father has been caught up in a tax avoidance scandal, the Business Secretary being recalled from a jaunt to Australia aside from the underlying lying to frighten that`s going on within the Remain supporters faith in politicians is being eroded to such an extent as has not happened for a generation. All this is grist to the mill for those who would welcome mob or momentum rule upon us.

THE END DID NOT JUSTIFY THE MEANS

The Code for Crown Prosecutors is not a featherlight document; it should offer to prosecutors most scenarios that CPS has to face. However it does not insist that prosecutions must take place to prevent the CPS being accused of inefficiency or complacency.

Not long ago I was spending a weekend with a  J.P. whose court is about one hundred miles away from my former territory. On the Monday morning as I was about to leave he suggested I visit his court room as an observer where he was to chair his first court since becoming an approved chairman. It was a DV court. I was given the privilege of being a silent occupant of the retiring room when I wasn`t in the public gallery. The case had been previously listed for trial but the complainant and two civilian witnesses had not appeared and it had been adjourned for that Monday. The court was told that the complainant had turned up on a witness summons but would be treated as hostile. The two others, one of whom had been witness summonsed only five days previously, did not appear. CPS admitted that their liason with the witness support unit via the police force had been awry in this case. The officer in the case had no excuses. Two police officers neither of whom had witnessed the alleged assault were available. An adjournment was requested by the CPS and naturally resisted by the defending lawyer. My friend performed exceedingly astutely for a newbie and prised from all parties including the L/A all that was to be prised from the history of the case which went back eight months. The trial went ahead and ended at half time with “no case to answer”.

When we had a chance to discuss it over a coffee before I left for home he told me that the L/A was told informally that CPS went ahead in order that should the defendant be later charged with a serious offence against the complainant CPS would not be shown as shirking their job of protecting or trying to protect complainants in DV cases. Some might consider that that justified CPS but in my opinion it was another example of trying to pursue the ends by whatever means and forgetting that a defendant in this country is innocent until proved guilty.

A LEGAL SYSTEM WITH ITS HEAD IN THE CLOUDS

As a long serving magistrate never once did I ever have to listen to a victim impact statement or anything similar before the formalised regulations of such came into being.  Of course this is not surprising; if the result of any offending were of such effect that original offence would have been serious enough to have been heard in the crown court.  The case of lorry driver Luke Bates who was sentenced yesterday to custody suspended for causing death by dangerous driving appears to be of interest owing to the reported remarks of the victim`s sister and others of his family.  News reports seem to indicate that the recorder who presided was persuaded by those remarks  that he could suspend the prison sentence.  Victim Personal Statements per se are subject to quite critical guidelines by the Crown Prosecution Service. Whether or not what was said in the case of Luke Bates was a formal V.P.S. it does raise concerns if indeed it influenced the sentencing decision. To quote from the guidelines......."The opinions of the victim or the victim's close relatives as to what the sentence should be are not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them".  It seems to this non lawyer that, to coin a phrase, the V.P.S. allows the victim to let off steam and not much else.  However returning to the Luke Bates case; what would have been the effect if the victim`s family had made their opinion loud and clear that they wanted the killer of their family member imprisoned immediately for as long as the law allowed notwithstanding reduction for guilty plea.  

I have long been against the whole concept of what has been termed victim orientated justice.    Whether a duke or a dustman the victim`s status or opinion should have no bearing on the matter if IMHO the state imposes justice without fear or favour on the facts of the offence and/or harm done and the offender`s culpability.  The case of Luke Bates illustrates very clearly where our legal system has its head in the clouds when it should have its feet firmly on the ground.

LEGAL AID STATISTICS

The provision of legal aid or more often the lack of such has been the subject of much criticism since its inception over 60 years ago. Today`s statistical report and its accompanying guide will no doubt feed much comment over the next few days.  The raw material can be accessed here and here.

IS ANOTHER COURT CLOSURE A PRELUDE TO ELECTORAL SUPRISE?

The feeble attempts of apologists of our so called local system of summary justice and its representation in those local courts by local representatives seem to continue despite the events actively moving in the other direction.  A clear example is the continuing programme of court closures.  Just as that single swallow doesn`t make a summer a single court closure doesn`t exemplify a policy but the recent announcement of the imminent closing of Calderdale Magistrates Court is but the latest in the current series. From the report it might be assumed that this is yet another last minute decision.  With budget cuts on those unprotected departments including Justice the fabric of public policy in this country is being deconstructed.  The incompetence and arrogance, for what other terms can be used, by those making such decisions is beyond belief.  Presumably they consider that a Corbyn led Labour Party will be in the electoral wilderness for so long that they can make some Conservative hay while the sun shines on them.  I just wonder whether there will be so many disillusioned Tories in 2020 that the impossible might happen and a rabid Marxist led party might surprise all the psephologists. Perhaps that is why there is consideration today on effectively re-nationalising the steel industry or part of it.

QUESTIONS FOR APPOINTMENTS COMMITTEES

I recently posted on the sacking of former magistrate Richard Page. It seems that for Mr Page trials and tribulations for his Christian view of homosexuality have not ended; indeed it could be said that they have been resurrected. He has now been suspended from his role as a non-executive director at a hospital trust for the very same reasons he was thrown out of the magistracy.  My general opinion is that until perhaps twenty years ago the hold of Christianity, indeed religion per se, within all levels of the way this country runs its institutions of all kinds had minimal effect upon the population in general.  That was before the increasing number of people self described as Pentecostals, the immigration of one million Polish immigrants many of whom are practising Catholics and three million Muslims  of whom arguably half would welcome the introduction of sharia to this country. It appears, however, that actions against Christians for their beliefs rightly or wrongly are disproportionate with regard to attitudes of authority in all its forms when it comes to Muslim positions when similar situations arise.  I have commented previously on opinions of Muslims in the magistracy.  If such individuals are "representatives" of their communities as we are forever being told it seems more than likely that hundreds of Muslim J.P.s hold opinions as "extreme" as Richard Page. Do Appointments Committees up and down the country who vet applicants on their views ever inquire of their attitudes  on homosexuality, sharia law, mixed marriage etc etc etc? or do they rely upon the generalisation that all people should be treated equally?   Should magistrates with so called extreme views be appointed as being representative of a growing segment of our multi cultural society? Is there a point where religious devotion is a factor which should prevent appointment as a magistrate?  

I fear that problems of religion are going to be an ever increasing disturbance to our secular way of life.  For somebody whose teenage years were in the swinging sixties this is very depressing.  The shackles thought destroyed in that decade seem to be re-appearing from the very sources it was considered had been consigned to the periphery except now we are too feeble to recognise them for what they are.

NOT A TWEET TOO FAR

It seems that the man whom Metropolitan Police asserted had gone a tweet too far has been spared prosecution. The original story was posted here last Friday and in many other places. According to a BBC report  " a charge under the act "can only be prosecuted with consent of Attorney General" and requires a referral to the Counter Terrorism Division to "be dealt with by specialist prosecutor" the act being the Incitement to racial hatred - sections 17-29 Public Order Act 1986.  However I seem to recall a case on which I sat  two or three years ago with a similar scenario and it was brought under s.5 Public Order Act.  If that were the act used in the current case the blah about the CPS is just covering up the Met`s incompetence yet again.  If the BBC report is indeed accurate once more the Met has caused its own problem.  I suppose with a Commissioner, who like Arsen Wenger, considers he can do no wrong why should we be surprised at the arrogance of some of his constables.

A TWEET OR A TWAT

I had no intention of posting anything today but a story in the Telegraph has caught my attention.  There seems to be a creeping forward of restrictions on what is not acceptable on social media.  Twitter has been involved in more than its fair share of incipient transgressors. But the words for which a man has been charged with  publishing or distributing written material which is threatening, abusive or insulting, likely or intended to stir up racial hatred might be considered if not inocuous certainly unlikely to fall within the limits of the law. Perhaps the individual acted foolishly but readers can judge for themselves whether or not they agree that his printed comments constitute justification for the charge.

2 FOR 1 NO LONGER AN OPTION

A matter which should be of considerable interest to magistrates and District Judges (MC) was heard earlier this month at the High Court.  It revolved around the conviction of a defendant  for an offence in addition to its more serious level of  being religiously or racially aggravated.   It reminded me of a time when a friend of a family member with whom I discussed a court appearance many years ago had pleaded guilty to a section 5 public order offence and was summonsed weeks later to appear at the same court in relation to the same incident and was found guilty of the same offence racially aggravated.  He had had no legal representation and at the time of his first summons I suggested he consult the duty solicitor whose advice would be worthwhile.  I was shocked when he informed at a later time of the second conviction.  Well; it seems that procedurally he was in the same situation as the appellant in the reported case.  Morally I considered at the time that the CPS had behaved disgracefully in not informing him at the initial appearance of two charges.  If he had had better advice I`m certain the  initial guilty plea would have initiated the dropping of the more serious offence.  

JUSTICE COMMITTEE TODAY

The Justice Committee of the House of Commons met today on the topic of the magistracy.  It is available here.

THE SILENCE OF THE TORY LAMBS

As one who supported Tony Blair`s decision to invade Iraq on the basis that he had come to that conclusion having studied sufficient reports, been assured of its legality and concluded that we, in the UK, were at direct risk of attack with WMD, I was despondent as were millions of others when the yet to be written conclusion is that he lied to parliament and to the British people. It was a lesson to many that faith in the probity of British politicians was misplaced.  Perhaps we were just naive.  I was.  And so to today`s report in the Guardian that when the devil is offered a finger he will take the whole hand. With the example of the arrogance of the George Osborne/ David Cameron double act being brought crashing to earth merely a few days past our mouthpiece of a Foreign Secretary Philip Hammond seeks to cast aspersions on the judicial decision last week at the High Court that a Saudi billionaire`s claim to hold diplomatic status to avoid divorce proceedings in this country was a chimera; an artificial device with no substance in international law.  

In the current pre referendum climate arguments are being deployed by Brexiteers that the European Court of Justice holds too much power by its unelected judges in its influence over British policies. The Foreign Secretary is a Remainer but that hasn`t prevented him from public criticism of the aforementioned high court decision. All too often of late we have witnessed this and the previous government seeking to appeal legal decisions which have confounded their policies. Perhaps he should seek advice from the presidents of Russia or Turkey. This case, however, is much more serious.  It is public knowledge that Blair intervened personally to prevent investigation into arms sales and kick backs revolving around the sale of £ billions of Eurofighters. In the present confusing state of alliances in Syria, Saudi involvement in the promotion of Muslim extremism and the precarious market for oil for Hammond to act as he has done is not merely typical of Foreign Office attitudes it must be verging on the unconstitutional........but then I am not a lawyer.

Minds much more politically tuned than mine have opined that with a defunct Labour party the reining in of the current lot will fall to its own supporters inside and outside parliament.  I await the sound of their voices or will it be the silence of the Tory lambs.  



 

MUSINGS ON MONDAY

Over the last few days some apparently unrelated incidents and observations have come to my attention which as a whole reveal more than any expensive reports by the "great and the good" the reality about what is taking place within our so called system of justice, all these little kilobits constituting the gigabit of decline. 

Having visited remand courts in a few overseas English speaking jurisdictions I have always been impressed by the unfailing police presence in court This is undoubtedly a deterrence to violence and a support for respect for legal procedures. Suffice to say the situation inside Bolton Magistrates` Court last week was less rigorous. Not only were no police inside a courtroom........they rarely are........but no officers were in the building when somebody urinated in public. They had to be called!  It would appear from the very brief report that outsourced security personnel from Group 4 or Serco or some other company feeding off the public purse as vultures devouring carion were unavailable also. There surely must come a time when natural Tories in and out of Parliament plead with government to halt this continue salami slicing of our public services.  

Restraining Orders are made when there is evidence that one individual must have protection from another and the failure of which to be observed can be sanctioned by custody.  One would have thought that five breaches of such an order would warrant an immediate custodial sentence but one would have been mistaken. What mitigation was offered in the courtroom we`ll never know but this man joins the thousands whom the emasculated  probation service will attempt to re-habilitate. It is not unlikely that the result will be similar to that in Llandudno where an offender was still awaiting a place on a rehabilitation course one year after sentencing.  Of course, apologists for Chris Grayling will say, outsourcing of probation during his tenure at Justice has nothing to do with the shambles that is today`s probation services. 

Occasionally there are some professionals with the cajones to tell the public the reality of the system.  One such is solicitor Chris Pye-Smith who has openly accused the government of manipulating statistics to justify the closure of Grantham Magistrates’ Court. As I have discovered when FOI requests on legal matters  are answered with the response that such statistics are not available government collects numbers when it suits its purpose and obfuscates when it doesn`t. 

And finally a serving Justice of the Peace who has taken his magisterial  life in his hands to tell the truth, the whole truth and nothing but the truth to Guardian readers about the situation in dedicated domestic violence courts as he sees it. Probably better for him if he refuses any invitations to be interviewed on T.V.

THE SIMPLE SACKING OF RICHARD PAGE ex J.P.

From time to time over the last few years I have commented on the numbers of magistrates removed from office. I have also alluded to the reasons that such drastic action was taken.  The interface between law and religion has occasionally also been a subject for comment as has the almost unfettered selection of jurors in the crown court where extreme or not so extreme religious views might influence decision making.

All these points to a greater or lesser degree seem to encompass the case of sacked J.P. Richard Page; a practising Christian. In 2014 he was suspended from the bench for remarks he made subsequent to a case in the family court. Apparently his opinion that he could not support the adoption of a child by a same sex couple became known to the Advisory Committee which oversees disciplinary matters. His point of view that such an arrangement would not be in the best interests of the child was considered contrary to his oath of office; “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  There is also provision for an affirmation for those who prefer to leave out reference to a supreme being. The official notice of his suspension is available here. Presumably Mr Page satisfied the powers that be that after further training he was competent to resume his place on the bench. That is until earlier this week when he was sacked by the  THE JUDICIAL CONDUCT INVESTIGATIONS OFFICE.  The wording of the report is ambivalent.  "Mr Page’s comments on national television would have caused a reasonable person to conclude he was biased and prejudiced against single sex adopters." Was the underlying position of opposition to same sex adoption the prime cause of his dismissal or its being broadcast on ITV?


This case raises matters of importance as to what we are as a society.  Unlike the French almost every form with a sociological basis however flimsy that we are asked or told to complete has a question on ethnic origin but belief system or  religion unless of direct relevance is not demanded. The matter of the Belfast bakers and the symbolism on a cake has raised fundamental questions which are still unanswered owing to the adjournment of an appeal.  The Roman Catholic population of this country has been invigorated by the immigration of close to one million Poles the majority of whom practise their religion with greater devotion than their British neighbours.  Three million Muslim citizens are settled here and a large number, variable according to source, subscribes to opinions on society that would be incompatible to their non Muslim fellow citizens. It is not unreasonable IMHO  to consider that of the 956 (4.42%) of magistrates listed as "Asian" as at 31st March 2014  hundreds are Muslim and that extreme if not extremist opinions could be considered as being part of their philosophy of life.  I have yet to read of a non Christian removed from the magistracy on the basis that his/her religious belief was incompatible with the judicial function although there has been apparent discrimination against Christians within the medical world where perceived criticism of Muslims has been suspected. The already heady mix of English law and Sharia has been thrown into further confusion by the appointment in Bristol of crown court judge  Shamim Qureshi to sit on Sharia cases.

There are so many overlapping, complementary and contradictory  aspects to the apparently simple case of Richard Page that it is my belief that we ain`t heard the half of it yet.
 

THE WATER OF LIFE aka WHISKY

Dear reader, I`m off to the land of whisky and water.........considering the lowered drink driving level the train will take the strain. Hope to be back here in a week or so.

DO BARRISTERS DISRESPECT J.P.s?

Within Magistrates` Courts buildings sit benches of Justices of the Peace [magistrates] and District Judges, formally known as Stipendiary Magistrates, whose powers are no more and no less than their JP colleagues`. In my experience there is a great deal of mutual respect between the DJs and these colleagues.

When it comes to the attitudes of members of the bar to DJs and JPs it appears to me that far too often barristers appear to tolerate appearing before a lay bench. There is something about a condescending tone from a nasally inclined barrister which I found personally demeaning to all present. Examples that come to mind are the occasion when counsel for various reasons applied for a week`s adjournment. After discussion with my colleagues I announced that the matter would be adjourned until the following day to which the response was, "Sir, did you hear my application?" I replied, "Yes" and proceeded with the court`s business. On mentioning this to some legal colleagues including a DJ they agreed with me that the reply was indeed impertinent and intended to belittle the bench. Even worse was the reply of a barrister who had her request for the adjournment of a trial refused,"Sir, is your decision based upon court statistics?" She was told in the least offensive manner possible to sit down and ponder her words. That latter occasion I was reliably informed would have had a District Judge holding the individual in contempt with the aside that a barrister would never have said that when appearing in front of a DJ.

Generally, however, I suppose barristers must impress upon their privately  paying clients that they are being seen to do their best and if that means some risky language against JPs so be it. But I resolved that if and when a sharp suited tongue asked again if justice were tempered by the desire to alter or conform to statistics s/he would be told to remove her/himself. As far as I can remember it was a one off event.

ANOTHER ALL NEW BRIGHT AND SHINY RENAMED QUANGO

My musings on February 23rd included the following; "When outsourced or outreach quasi government agencies are in a barrel load of criticism and worse all those highly paid consultants dig deep into their reservoir of the pigshit they have for brains and spend fortunes redesigning logos and selecting a new title with which to brand the product. "
 
Last Thursday March 3rd I posted inter alia that the IPCC was not fit for purpose. It seems that the Home Secretary kept it from me that she too had misgivings about the so called police watchdog.  The seriousness of a government department`s intention to clean out the stables can always be gauged by the so called advice to it from the expensively hired consultants and advisors hired to cover its arse. This current regime has more such weasels than any previous. In February 2013 the Home Office employed in one form or another  27,546 people.  It is difficult to obtain current numbers of "consultants/advisors" employed on short term contracts. Figures published in the Telegraph in 2009 showed that in the previous four years under the Labour government £500 million was paid to such people.  But back to the current situation and yesterday`s  announcement by the Home Secretary of a shake up at the Independent Police Complaints Commission. Indeed this organisation and its rebranding in 2004 from what was then called the  Police Complaints Authority can be seen as typical of the way quangos in this country fail, are renamed and rebranded and fail again with the whole process repeated every decade or so whether the organisations are involved in health, security, education, teaching, social care...........in fact in all walks of supposed public service. 

There is without doubt a deficit within the governance of this country which goes beyond party political differences.  It is as much a part of the myth that is Britain as is the stiff upper lip of its inhabitants.  Corruption at high levels  whilst arguably and visibly on the rise might be below that of a banana republic but the covering up of government failure after failure by waving a magician`s cloak of political deception  over it to reveal,  when it is flamboyantly removed, an all new bright and shiny fully functioning renamed quango is the British way of doing things just like the gentlemanly way we supposedly play our cricket except that others do it better and more honestly.

SELLING ALCOHOL TO DRUNKS AND DUTCH ELM DISEASE

Information here and from myriad other more substantial sources dispel any doubts that alcohol is a root cause of at least half of all criminal offences many of them violent. It would seem therefore that any simple measures to curb excessive drinking in public would be cost effective. Licensees can refuse to serve drunks or those who appear so. In many towns licensed premises are often situated within a relatively small area enabling them to be policed efficiently………or so one would have thought. In 2013 precisely   five people were proceeded against at magistrates` courts for selling alcohol  (pp5) to drunks and a further 63 were handed Penalty Notices for Disorder.  The relevant section of the CPS Guide is reproduced below.

Sale of Alcohol to a Person who is Drunk

Section 141 makes it an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person on relevant premises.
Subsection 2 applies to:
• any person who works at the premises in a capacity, whether paid or unpaid, which gives him the authority to sell the alcohol concerned;
• the holder of a premises licence in respect of the premises;
• the designated premises supervisor (if any) under such a licence;
• any member or officer of the club which holds a certificate who at the time the sale (or attempted sale) takes place is present on the premises in a capacity which enables him to prevent it; and
• the premises user in relation to the temporary event notice in question.
This section applies in relation to the supply of alcohol by or on behalf of a club to or to the order of a member of the club as it applies in relation to the sale of alcohol. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

It is obvious to a man from Mars that there is no will to enforce this law. The same criticism applies to those who sell alcohol to children. Trading Standards offices have been beset by redundancies and reduced funding as have a multitude of public offices.

Whilst the shrill voices continue to insist that the forest of health and welfare services remains almost untouched by current economic necessities the trees in our public services where relatively small efforts could yield vast rewards are allowed to whither where they stand just like Dutch Elm disease a few years ago where common sense was non existant and  neglect to act promptly increased what was then a controllable problem and allowed  it to become uncontrollable.

THE ROLE OF THE MAGISTRATE AS SEEN BY "TRANSFORM JUSTICE"

Regular readers here will be aware that I am rather less than optimistic that the function of lay magistrates will, a decade from now, be similar to the current position particularly in presiding over the court.  Pressures are being applied to persuade them, with of course the support of the obsequious Magistrates Association, that functioning #1. as single arbitrators outside the courtroom and/or #2. as wingers in a court presided over by a District Judge, is where the future lies.  The chimera of doubling sentencing powers to twelve months custody is an illusion under the current system. IMHO that will only be realised when option #2 is simultaneously in operation.  But what do I know?  I am only a retired J.P. indulging myself. 

Someone who isn`t, is an ex J.P. Penelope Gibbs who runs a most thought provoking organisation; Transform Justice. Unlike me she is a professional student of matters such as those mentioned above. Her January report The Role of the Magistrate is certainly worth a read.  Personally I do not agree with some of her recommendations or conclusions but  she does present arguments which require analysis.   

THE IPCC AND THE MET NEED TAKEN TO THE CLEANERS

"A spokesman for the Met said the force disagreed with the findings and added: Whilst there is little doubt the meeting on August 14th 1998 took place, there is little or no evidence to suggest that either of the former officer's intentions in attending or arranging the meeting was in anyway improper or that any of the information passed to, the then, Acting Inspector Walton was used, or could have been used, to supplement the Met's submissions to the Macpherson Inquiry or indeed that any information relating specifically to the Lawrences or their campaign was exchanged." 

The quote above  from the Metropolitan Police is in response to a report from the Independent Police Complaints Commission  regarding police conduct during the investigation into the inquiry in 1998 into the murder of Stephen Lawrence five years previously.

It is IMHO deeply disturbing when presumably with authority from the highest level the country`s largest police force controlled directly by the government, insofar as the Home Secretary is overseer, directly rubbishes an independent report compiled by what is supposed to be the public`s safeguard against unlawful or mis-conduct by  increasingly voracious police activity.   Something is far wrong.  Either the Met is out of control or the IPCC is yet another quango unfit for purpose. But this is not a zero sum game.  Perhaps both organisations need to be taken to the cleaners.