THE LANGUAGE OF JUDGES

The judiciary relies on language.  Such a comment might seem superfluous; don`t we all rely upon it?  Judges especially at the higher levels of their profession must use language as a fencer uses a foil......a delicate yet deadly apparatus to be applied with precision.  

The notorious solicitor advocate, known as Lord Harley etc etc found himself in rather hot water when appearing before HH Judge David Wynn Morgan  in 2014.  As a consequence he took action against the judge whilst action was taken against him by the Solicitors Regulation Authority which has not yet published any decision. Meantime Harley has in turn issued papers against the Solictors Disciplinary Tribunal. 

Last year the original judge involved HH Judge Wynn answered these complaints by Lord Harley before the Judicial Conduct Investigations Office. On 2/7/2015 it published the following:-

"2 July 2015 – His Honour Judge David Wynn Morgan

The Lord Chancellor and the President of the Queen’s Bench Division, on behalf of the Lord Chief Justice, have dismissed complaints against His Honour David Wynn Morgan, a Circuit Judge sitting at Cardiff Crown Court following an investigation into his conduct. The Lord Chancellor and the President of the Queen’s Bench Division found that HHJ Morgan was entitled to challenge the appearance and status as a legal representative of Dr Alan Blacker, also known as Lord Harley and this did not amount to misconduct. HHJ Morgan has been issued with informal advice regarding how to deal with such situations in future. This is not, however, a form of rebuke or disciplinary sanction".

Returning to my opening point about language; the sentences I have highlighted seem puzzling. There has been no rebuke or disciplinary action against him but he has been issued with informal advice.....

Why has this sentence been published unless JCIO indeed intended  to put into the public domain its censure however informal.  If I were His Honour I would not be too pleased at the shades of meaning implied.

ADDENDUM 3rd May 2016

With regard to the notorious so called Lord Harley there has been a further uncomfortable  twist in the tail (tale?) of said lord.  Read the report here.  

THIS BENCH SEEMS TO CONSIDER THAT SOME ARE MORE EQUAL THAN OTHERS

Premiership footballers who appear in court on whatever level of offending must expect the procedings and outcomes to be of public interest.  It might be the case that such intrusion would be much diminshed  if,  as fifty years ago, they were being paid around the average workman`s wage, but when their average  wage is £44,000 weekly media interest is par for the course. Driving offences attract intrusion like no others because the majority of us are drivers and we can relate outcomes to our own incomes. Unlike in Switzerland where exceedingly wealthy individuals flouting traffic regulations eg speeding, can have enormous fines imposed this country has a laudable principle of fines according to means. Driving not in accordance with a license is a Level 3 offence [£1,000 maximum] with 3-6 penalty points imposed with a fine of half a week`s wages.  

Papiss Cisse who plays for Newcastle United  was recently in court where he pleaded  guilty to [I presume] driving not in accordance with a license aggravated by other offences. He was fined £220 and with other fines and costs  left the court £547 poorer not forgetting 4 penalty points.  Perhaps somebody can explain why the bench did not fine him £666 for the offence and increase the number of points handed out.

My time on the bench never involved me in any matter dealing with a multi millionaire sporting personality but had I been I would have sought to make a case for the highest financial penalty to have been imposed within the law and within a structured argument for that decision. For that bench to apparently not to have done so is a matter of regret.  For the many thousands in the local area it will have brought the magistracy into disrepute.  It demonstrates that equality before the law is limited by the appearance of some being more equal than others.

THANKS FOR THE MEMORY//A MEMORABLE SITTING REMEMBERED

From time to time during my "active" years there would be a sitting that was just made to be the subject of a post but owing to pressures of time and other matters never got past the "for future blog?" folder.  The following is one.

I suppose for colleagues who sit the minimum number of times ordered by the Chancellor; a half day every two weeks, many sittings remain in the memory by virtue of their relative rarity. For me and others similar being fairly frequent sitters by virtue of the courts` demands and our availability many such sittings drift away from the conscious mind after a week or two; many but not all. Such was a Friday 13th last year noted in my diary as being certainly unlucky for some who were before us. Our listed trial had completed early and we were feeding off the crumbs of Court 1`s table.First there was Mr A. who was brought in on a warrant having failed to appear for his DV trial the previous day when surprise, surprise he had been found guilty in absence of common assault on Mrs A. Mr A. was no youngster experiencing the pain of early marital difficulty. He was 47, about 5ft 8” and looked extremely capable of delivering a good right hand to anybody who crossed him and that included members of the bench as when he was asked to identify himself he launched into a tirade re recent events. Our L/A whose feistiness sometimes erupts prematurely from her 5ft nothing frame was perhaps a bit premature in threatening him with all manner of judicial retribution but eventually he answered the question as to why he had failed to attend with the bland statement that he had got the dates mixed up and anyway didn`t their honours know that the previous year a jury at Crown Court had taken only ten minutes to find him not guilty of inflicting GBH on his wife. When asked whether he had more to say than getting his dates mixed up he shook his head. He grudgingly agreed also that he had received due notification of the hearing in addition to being in possession of his bail form. He denied that he had heard the previous bench`s warning of “trial in absence” a note of which was in the court file. Our position was made clear by the L/A who told the court that we could re-open the case and set a date for a retrial or proceed to sentence. We decided on the latter course. This pronouncement fanned Mr A`s fuse which had been slowly igniting. His objections became a tirade against all present. The chairman gave a nod to the very efficient usher who called for a security guard just prior to seeing one through the glass door panel going past in the corridor outside. She opened the door to request aid. So far Mr A`s violence was confined to the English language. Our usher returned and whispered to our L/A within our hearing that owing to our courtroom not having a secure dock SERCO would not attend. The chairman said that that was the prime reason why they must attend. Mr A had quietened down for a minute. He probably heard the usher saying that the SERCO person had told her it wasn`t in “the contract”. After a hurried conversation our L/A announced that the court would be transferred to Court 2. For those in the know Court 2 had a secure dock. We retired. Later the usher told us that Mr A had not answered the tannoy and was not in the building. A warrant was issued not backed for bail. 

 And then there was Elijah. He had pleaded guilty to obstructing a police officer in the course of his duty by refusing to be searched for drugs. Strip searched at the police station he had been pharmaceutically clean. He was twenty two years old, handsome with smooth black skin, had a perfect smile of perfect teeth and was athletically built. My female colleague whispered that with looks like that he should have been a film star advertising toothpaste except he wasn`t in Hollywood, he was in court and he had two pages of previous consisting mainly of theft, criminal damage and possession of Class B. He had experienced everything the justice system could offer except imprisonment as an adult. He was asked in simple terms to mitigate although as soon as he began to talk it was apparent he had the intellectual and verbal skills to match his appearance. When he had finished the chairman commented that it was truly ironic that having many convictions for possession he was standing in the dock for refusing to be searched when he had nothing on him. He smiled. He had been in police custody since 2.00am that morning so we deemed his £50 fine served but imposed half the CPS costs plus surcharge. On being told the money was due there and then he replied, “No problem”, smiled a perfect film star smile at my female colleague and was directed to the payment office. I think my colleague was still blushing when we left the building.

UNPAID LITTER FINES & SIMILAR; PRISON OR THE NAUGHTY STEP?

People of a not so certain age when discussing current social mores will sometimes use the phrase, "in my day" to describe changes which in their opinion are for the worse for each of us as individuals and for us all as "society"; the entity for which Maggie T doubted the existence.

Aged relatives who lived through the horrors of World War 2 on active service and the Blitz at home have described to me [and I presume others can claim similar discussions] that if not "law" but certainly "order" was encouraged if not enforced by individuals be they family, neighbours, bus conductors, train guards or park rangers to name a few. Unless there was direct violence or a risk of such, admonishment from such individuals was enough to oil the wheels of public civility and avoid confrontation with most people including rowdy teenagers most of the time. Street tidiness was a job for local authorities and street cleaners were a common sight keeping the environment clean and tidy and also providing low level employment for those who would otherwise be unemployed or unemployable. A clean and tidy neighbourhood has been shown to reduce disorder especially low level disorder which can blight many lives. The "zero tolerance" concept pioneered in New York City is a direct result of this thinking.

The Keep Britain Tidy Campaign began in 1954 as an initiative of the National Federation of Womens` Institutes. Some might remember the iconic posed picture of Margaret Thatcher tidying up in Trafalgar Square. The Litter Act of 1983 consolidated all previous legislation. Prosecutions for littering are brought under section 87 - Offence of Leaving Litter - of the Environmental Protection Act 1990. The offence is:

"A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.” However, a person convicted of this offence could be liable to a maximum fine of £2,500 (a level 4 offence on the standard scale). Current criminal prosecutions are conducted by local councils under the Clean Neighbourhoods and Environment Act 2006.Prison awaits those who refuse to pay the fine or are guilty of culpable neglect in not paying.

And that was why Natasha McCabe who left a refuse bag in the street ended up at Manchester Magistrates` Courts. She had pleaded guilty to failing to pay a Fixed Penalty Notice of £80. In the end her littering cost her a total of £319. 

 

It is indeed a sad reflection on our conduct when the criminal law must be applied to such basic anti social behaviour. Singapore has the reputation of being the world`s cleanest city. In 1992 Corrective Work Orders were introduced as an alternative to fines up to S$1,000 [£500] for littering and offenders were required to wear distinctive clothing whilst cleaning streets for a specified number of hours.

There is a vociferous lobby which would dearly like to do away with short custodial sentences. At a stretch, to coin a phrase, they would relax their opposition for violent offenders being removed from society. But generally even when prison is a last resort for the oft quoted council tax defaulters or similar they refuse to acknowledge the need for the final sanction of loss of liberty.  Those holding such opinions are often “green” in their approach to society`s problems and their attitude to litterers is unforgiving. What then must the courts do to an offender in this regard who refuses or neglects to pay the fine imposed after conviction or in absence for ignoring a fixed penalty notice?  Are those who consider such sentencing inappropriate able to impose their own solution in such cases?  Perhaps they would have him treated as a naughty boy.

  

Without entering into any religious context  the original precept for the individual and society to rub along with minimal friction is to do to others what one would ask them to to do to oneself. And that includes taking one`s rubbish home to dispose of carefully [including cigarette ends]

APPOINTMENT TO THE LAY BENCH AND WHAT BRITISH MUSLIMS REALLY THINK

On 29th March I posted with the heading  "QUESTIONS FOR APPOINTMENTS COMMITTEES" and made reference to Muslim applications to become J.P.s and their being representative of the society in which they work or reside.........a requirement for appointment.  Last week was published a headline making survey on the opinions and attitudes of British Muslim citizens; "What British Muslims Really Think".  A programme on this subject will be shown tonight on Ch 4 T.V. 

Judicial statistics published by the MOJ have for some years categorised office holders by "ethnicity" but not by religion and for a century or more religion or lack of has had no bearing on appointment.  This admirable procedure was IMHO based upon the simple acceptance that only proven qualification and ability were necessary for interrogation as to suitability although inquiry until recently was made of political preference or membership of a masonic lodge. In my own application to the Bench I deliberately omitted answering those two questions.  My form was returned with an accompanying letter informing me that unless the questions were answered my application would be halted there and then.  I returned the form duly completed to the satisfaction of the Appointments Committee.  The core of the survey mentioned above is that eg 39% of respondents agreed that wives should always obey their husbands, 31% believe that it is acceptable for a British Muslim to have more than one wife, 23% support the introduction of Sharia law in Muslim dominated areas, 52% believe homosexual acts should be illegal. With increasing concern within the Labour Party over anti- semitism  is it a coincidence that the survey revealed that more than a quarter of respondents felt Jews were “responsible for most wars” compared to a 6 per cent average across the UK while almost four in ten felt Jews had “too much control over global affairs,” compared to a ten per cent average over the general population?

We are constantly informed that magistrates are or should be representative of their communities.  That being the case, of the 4.6% of magistrates who are self classified as "Asian" ie about 900,  many hundreds must be assumed as being Muslim.  

Richard Page ex J.P. is appealing against his removal from the magistracy. Whether or not he succeeds the issue of particular religious belief being compatible or not with sitting as a magistrate must be faced especially in the light of the survey.  Of course it is not unlikely that the cry of "racist" will be heard but this is nothing to do with race.  If a Christian acting on his belief re the suitability of same sex couples` suitability for adopting a child is chastised we are IMHO faced with the prospect of making inquiry of all applicants whether they hold beliefs that would preclude their being able to fulfil the judicial oath.  That Muslims generally according to that survey are more likely to hold opinions contrary to their more secular and/or free thinking non Muslim neighbours is a factor that cannot be ignored especially when such opinions are more suited to the 19th rather than the 21st century.  It is highly likely that Muslim representative organisations will seek to discredit this survey but there have been others including a previous Ch4 Dispatches programme with not dissimilar findings.  Until enough secular living Muslims and/or those who have an enlightened attitude to their religion  feel confident enough to speak out and interpret their religion for modern living, established Muslim spokesmen are liable to increase rather than decrease any prevailing or anticipated inter communal tensions. 

CPS IS A VICTIM

The story continues:  otherwise known as the decline of the CPS as an effective organisation.  Television companies are always seeking effective ways of providing programmes at lower costs without losing audience share.  One of the first such programmes now included in the genre "reality TV" was in 1964, when the Granada Television Company produced "Seven Up";   broadcast interviews with a dozen ordinary 7-year-olds from a broad cross-section of society that inquired about their reactions to everyday life. Every seven years, a film documented the life of the same individuals during the intervening period, titled the Up Series, episodes include "7 Plus Seven", "21 Up", etc.; it is still ongoing. One of the most recent reality TV shows was ‘The Prosecutors: Real Crime and Punishment’ broadcast on BBC last month. This blog has made its own view of the CPS  quite clear in the last couple of years and many times previously at its now defunct site.   Just as with all the similar programmes in various disguises on the police service and other organisations  the objective of the subjects is to show themselves in the best possible light considering the circumstances under which they work.   For them it is cheap propaganda. But propaganda can go only so far.  Yet again the failings of the CPS have been highlighted this time in a BBC report  and this in the week when another group of alleged rapists has been acquitted owing to failures of the police and prosecution to make required use of information at hand.  They must have been blinded by the myopic approach under their so called victims` charter to pursue the alleged perpetrators.  

The problem IMHO lies in the CPS operating what in so many words seems to be a "target" culture.  We have seen such principles in public services before.  The NHS was [is?] notorious for outcomes to have been distorted by such a culture.  Police forces have been thoroughly discredited for such a means to an end.  At lower levels of importance town councils and their employees have used the same approach with traffic management as their excuse for the imposition of all manner of restrictions and offences. 

The methodology at the CPS when government has a non cabinet member as Victims` Minister is hardly likely to change in the near future.  Sensible outcomes of convictions and improved efficiency will come about only when such a ridiculous ministerial post is abolished and the balance of justice is allowed to take its course without the state i.e. the CPS being deprived of funding, being sidelined, pushed, cajoled and  pressurised from such sources.  Indeed one might comment that the CPS itself is a victim.

LEAVE OR REMAIN? EU PRISONERS IN BRITISH JAILS

It is inevitable and rightly so that until the referendum is over we will be subjected to figures, statistics and more figures.  Statisticians, economists and politicians despite their exhortations of what is or is not the better course to take, know no better than any of us what will result of a decision whether IN or OUT.  The choice for the most intellectual or most ignorant of us is the underlying philosophy of our being master in our own little British semi or just another voice within the cavernous walls of a European mansion. The argument will be won or lost on numbers and ideas easily understood and relevant to almost unthinking analysis. Supposed to be published today by Grassroots Out, levels of  EU nationals in British prisons are IMHO an example of such numbers although the document itself has evaded my search.

First of all the most recent figures 2014  on Europeans in British prisons :-                    

That table makes a total of 4,746 from, as I understand, last year`s figures of which 4,067 are from EU states with today`s total number of prisoners at  85,398.  GO asserts  that the numbers of foreign prisoners in British jails has soared since the former Soviet client states of Bulgaria, Estonia, Latvia, Poland and Romania joined the EU whilst those countries have seen a fall in their own prison populations.  Between 2002 and 2014 EU nationals in this country`s prisons have, according to GO, risen from 1,763 to 4,252 [Apparently different periods from above].   Prison numbers in Romania, Latvia and Poland have fallen by 3,882, 3,092 and 2,997 respectively since their accession to the EU. UK prisons have seen the numbers of Poles, Romanians and Lithuanians increase by 1,800%, 1,100% and 900% respectively over the same period. 

These statistics and others similar will be converted by Leave campaigners  into pounds spent which would have been better spent  on matters over which we had direct control.  No doubt this blogger and others will be posting future posts on aspects  of REMAIN or LEAVE according to their individual interests. 

MORE MUSINGS ON FRIDAY

As if the goings on in Northern Ireland as described in the post immediately preceding this one were not sufficient for a re-think by the province`s prosecuting authority it appears that another woman is to face the full force of what passes for justice there.  She also was involved in an abortion; she procured drugs to induce her daughter`s miscarriage.  There is a paradox here: it is recognised that a prohibition on abortion is a tenet of the Catholic faith, the majority religion in the Irish Republic, and is also equally disparaged by many unionists, mainly Protestants, in Northern Ireland   but it is in the Republic that there is movement towards a referendum on the current prohibition.  Gay marriage is possible in Ireland after a recent referendum but is unavailable in Ulster owing to a constitution designed to end 30 years of murder and mayhem. Truly there is  need for more change in those six counties but I fear it will be a long time coming.  

Former colleagues who sit in family court have on quite a number of occasions told me of the havoc produced by the unavailability of legal aid for one or both partners in such matters.  It seems that changes brought in by LASPO in 2012 are unlawful.  Another of Grayling`s initiatives is brought crashing down.   Would that the man himself suffer a similar political fate.

It`s news enough when a judge sues the Ministry of Justice.  It`s momentous news when the Lord Chief Justice intervenes suspecting the playing field might not be as level as it should be.  

For those who, disregarding the evidence, still cling to the notion that this government believes in local justice and that whilst not endorsing the use of Arndale Centres as suitable,  believe courts will not be transferred to buildings totally unequipped for the task, the recent notice from the MOJ should persuade them otherwise.  However for the flat earthers at the Magistrates Association and elsewhere I fear faith overrides evidence.

As one who was a professional within the eye service provision of this country it is disconcerting to read that a lapse in recognition of  a life threatening condition has led to an optometrist facing a manslaughter charge.  I must have inspected the interiors of nearly a million eyes and discovered a fair share of tumours, diabetes, heart disease, genetic disorders etc etc.  Although I retired with a spotless record...........??????

NORTHERN IRELAND TRUMPS TRUMP ON ABORTION

I doubt that any readers are unaware of Donald Trump`s notorious answer to an interviewer`s question on abortion. A reminder is here if needed.  Many people including those who favour right wing policies politically, socially, economically and/or ecumenically were astonished.  Subsequently he attempted to row back from that statement but the damage had been done.  A chink of light had been allowed to penetrate his chameleonic thick skin.  But for all those in the U.K. reeling with horror that such an opinion should be held by an aspirant for the world`s most powerful office look no further than the province which constitutes the "and Northern Ireland" part of the United Kingdom of Great Britain..........  

Sensitivities to certain activities  within Northern Ireland are much more acute than in Great Britain. Three days ago a woman of the six counties, for self inducing an abortion, was sentenced to three months imprisonment, albeit suspended, under  Section 58 of the Offences Against the Person Act 1861. That such legislation is alive and kicking to be put to such use even in Ulster is, to coin a well used phrase well rehearsed across the Irish Sea, an abomination. To quote from the full report in the *Belfast Telegraph, "The Northern Ireland Public Prosecution Service said the case met the evidential threshold and its pursuance was in the public interest. "The test for prosecution has two elements," said a PPS spokesman. "It involves an assessment as to whether the available evidence provides a reasonable prospect of conviction - and also whether prosecution is in the public interest. "In this particular case it was decided, having carefully considered all of the relevant evidence and information, that both elements of the test for prosecution were met. A range of factors were relevant to the balancing of the public interest, including the important fact that the law in Northern Ireland makes the conduct in question a serious criminal offence in respect of which a conviction carries the potential of a significant custodial sentence."

 By his own admission "Judge McFarland said there were no guidelines or similar cases to compare this to, adding in his experience there have been no other prosecutions under this specific piece of legislation."

Considering all this the judge still made the decision that custody was the required sentence of his supposed structural decision making.  He had a choice just as the defendant had a choice. He could have decided that there was no case to answer and acquitted her.  No doubt he would have been criticised by a vocal number of the Protestant community had he done so.  He could have decided that her guilt demanded no more than a conditional discharge or fine.  Indeed it is somewhat suprising that he suspended her sentence but even in doing so he decided upon the maximum term of two years.  

The people of Northern Ireland have endured much suffering since 1968.  At that time their timekeeping was thirty years slow compared to the social clock of Great Britain.  Before it is outbred by the current Catholic minority perhaps the majority should set that social clock to equate to the  summertime of their fellow citizens of the United Kingdom.  

*FULL REPORT IN BELFAST TELEGRAPH

ADDENDUM 28th April 2016

This is not an isolated case.  There is a another reported here.  Truly much of what happens and the thinking behind it in the province is akin to a foreign country.

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.