WHO RUNS THE PRISONS?

There are four constituent parts of any criminal justice system, the process of catching suspected offenders, charging and convicting them in the courts, incarcerating them in prisons where it is hoped that many can be rehabilitated. The first two components consist of many people with corresponding checks and balances to ensure justice is done with fairness to all and is seen to be thus done. However when it comes to the running of prisons in general the governor is "king" and almost but not quite an absolute monarch. Controversy erupts from time to time when it is revealed that governors have power and were using that power to release prisoners far sooner than anybody had authorised. 

If prison governors are "kings" then prison warders are the "nobles" and as we learn in history kings and nobles were often in conflict as to where the power would lie. In prison it is forbidden for inmates to possess or use mobile phones, drugs, or to use networking sites. So there is no drug problem in jails.....? no criminal activity involving mobile phone contact between convicts and the outside world.....? It is a fact that inmates are using Facebook to further their criminal activities whilst inside and to promote their violent actions inside.

It has been said by many with knowledge that the Prison Officers Union is the last bastion of left wing union extremism where union power and not the management is in control of the work place . Similarly it has been said that whilst drugs are illegal if they were totally excluded from jails there would be serious riots with the result that to a certain extent a blind eye is turned to the illegal supply in prisons. If using Facebook is contrary to prison rules how does a dangerous inmate access it without the knowledge of those paid to keep him secure and out of contact with the public at large?

Continuing shortfalls in the rehabilitation of offenders and efforts to overcome this deficit are endemic.  Whether this government led by a former Home Secretary can do any better is a moot point. 

LEGALLY IT REALLY IS G.B. & NORTHERN IRELAND

Over the years seeking interesting matters for this blog I`ve become aware that not for nothing is the term for our nation The United Kingdom of Great Britain and Northern Ireland.  The province has its own legislation for many offences which can differ from that in England & Wales never mind Scotland; the other part of Great Britain.  Abortion, or the forbidding of,  is perhaps where the legal treatment differs to the greatest extent.  But I have noticed from time to time quite significant variations in the treatment of motoring offenders although the local guideline for no insurance is as G.B.

District Judges rule the lower courts system.  Their decisions on sentencing have appeared to me as a distant observer with only news reports to go on to be occasionally arbitrary.Giving a driver a four week ban when he already had six points on his license as in this case, if heard in England, would have had the legal advisor to a bench gently reminding magistrates of the accepted protocol that he be given 6 - 8 points  and treated as a totter with an immediate mandatory disqualification of six months.  Just goes to show that the Irish north or south of the border are a law unto themselvers.

MP`s PLEA TO IMPRISON ALL WHO ASSAULT POLICE

On July 29th I posted on the Police Federation of Northern Ireland`s demand for mandatory custodial sentences for those convicted of assault on their members.  The problem is  the definition of what action(s) constitute(s) an assault.  Some definitions are:-

This is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. Such an act must be with the intent being calculated in that persons mind to cause apprehension or fear in the mind of the victim. Therefore, where there is no intent, there will be not be an assault, UNLESS, that the person who assaulted another, ( and it was conclusive by way of evidence), that the person was indeed reckless as to the other person would in all probability have indeed apprehended that immediate unlawful violence would be used.

 An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

A further  refined legal analysis of assault can be found here.  

The fact is that every J.P. and criminal  lawyer knows that police officers in the main will seek every opportunity to bring a common assault charge against an individual with whom they are in hot verbal and non violent exchanges when they are frustrated that they cannot impose their will.  Obstruction of a police officer in the course of his duty is another all embracing favourite when commands legitimate or as is often the case illegitimate are not obeyed. 

Protection of police officers in the course of their duty is a very easy bandwagon for an MP of only one year`s seniority  to pursue.  And Holly Lynch appears to be one of that ilk.  This type of populist appeal by Labour is in line with its Corbynistic policy of rule by the people......read mob. It should be resisted in general and the proposed madatory jail for police assault  in particular notwithstanding an overriding policy of reducing the prison population.

HARM INDEX IS HARMFUL

This blog along with many more authoritative sources has long been sceptical of so called crime statistics.  The use of tick box mentality of recording has long been questioned.  To the despair of many that methodology is so widespread it is endemic among both government and non governmental organisations; the Sentencing Guidelines produced for magistrates and judges  are a perfect example. This "bible" of sentencing attempts to categorise sentences by a combination of harm to the supposed victim and culpability of offender.  And now a "crime harm index" is to be deployed by police to classify the significance of different offences taking into account the number of offenders jailed for the crime including violence, knife and gun crime and the average sentences imposed.  Considering that about 95% of all crime that comes to a court begins and ends in magistrates` courts  with six months custody maximum it is likely that effects of inevitable prioritisation by police will be based on crown court statistics of the remaining 5%. An additional (overlooked?) factor seems to be the designation and weight to be given to suspended sentences where the decision to suspend custody is based primarily on an assessment of the offender as opposed to the effects of the crime itself.  An additional flaw IMHO is that people, I dislike the term so commonly used and abused, victims,   invariably do not have similar or common reactions to the crime inflicted upon them. There are those who can put the experience, however traumatic, behind them and those who wallow in their own misfortune over the most minor transgression to their property, person or psyche. 

It is almost certain that police will use this new indexation to target their diminishing resources and will inevitably issue so called statistical evidence to justify their so called efficiency.  Such activity distorts that which is itself being measured whether it`s GCSE and A Level results or an indication of a hospital`s ability to deal with its workload.  This blogger will need some convincing that this harm index is less than harmful to public accountability of police. 

RISK OF SEXUAL HARM NOTICE//MIRTH IN THE MAKING part 3

The saga of the sadomasochist who is under a police notice to tell them 24 hours in advance of his proposed sexual activity  continues  from the first mention here on January 25th.  A follow up was posted on June 9th.  Whatever the legal niceties where the angels on the pinhead have been well and truly counted the current state of affairs in this matter appears to be a blight on any meaning of the term "justice".

The District Judge ruled that the terms of the ban imposing a 24 hour notice period were disproportionate but that nevertheless the order will not be reviewed until a further hearing on September 22nd.  This individual might not be the man that the father of the bride might wish for a son in law but he was found not guilty at a trial for rape.  Even so police branded him as "a very dangerous individual".  In my naivety I did not think that such actions could take place in this country.  After all this is not Turkey of "Midnight Express" or Russia under a repressive regime or  Czechoslovakia during the time of Franz Kafka. This is England in 2016.  What have we become?  Where are we going?

POLICE BIG SHOTS GET AWAY WITH IT AGAIN!

On June 10th I first posted on a certain Maxine de Brunner. It was July 19th when I last posted on her antics. At that time she was referred to as Deputy Assistant Commissioner Maxine de Brunner; not any more.  This person has a history of being a disgrace to that most senior uniform she wore to serve her own vanity and aggrandisement. Recently after her arrogance finally provoked action from the Met. Commissioner she has been allowed to retire, presumably on her maximum taxpayer funded pension, without any official internal action against her despite recent government guidelines to the contrary.  It appears that there is now a slight change in wording of the regulations from allowing a twelve month window after retirement when charges could be brought  to let that period be extended “in exceptional circumstances”. It seems that her boss has once again protected one of his "own" in preference to acting for the public good.

Actions of misconduct to a lesser or usually greater degree of senior cops over the last few years directly impinge upon the public`s confidence in authority in general including government.  They also reduce the respect in which senior police officers are held by their subordinates. Police and Crime Commissioners were established inter alia for just such purposes.  Apparently the current Commissioner after previous ill judged actions is in his last year of office.  The Home Secretary should seek his replacement from a totally different box from whence her predecessor chose Hogan-Howe. 

AFTER THE CIRCUS OF GOLD MEDALS WE`LL RETURN TO REALITY

It is gratifying to note that amongst the hysteria of gold medals at the Olympic circus damning observations of courts` efficiencies or lack of them are becoming increasingly frequent. This will cause a certain discomfort where it is overdue. It has taken some years for the inevitable daily problems in our courtrooms of which every court practitioner is only too well aware to become the stuff of media comment. The Public Accounts Committee of the House of Commons report in May highlighted the continuing breakdown in the courts` system.  Since the coalition`s 23%  budget reduction for "Justice" in 2010 and annual reductions since then it was hardly rocket science to predict that back room "reorganisations" would soon percolate to the actual courtroom. The oft repeated comments by the Tory government and its lackeys that reducing inter alia police numbers, courts, legal aid provision, CPS lawyers and interpreter services as a result of all these budget cuts could be overcome by increased efficiency has been shown for what it is; a rash decision with no consideration for the future of our justice system.

What a blessing it is for government every four years when news headlines of gold medals  displace stories of political and market turmoil:a modern example of  following  Nero`s initiative of the circus to distract the plebs. At least this time the cost paid was  for the agrandisement of a fallen Brazilian president and not for the vanity of an erzatz political chamelion who felt the hand of history on his shoulder.

Although Mrs May might be going for gold in the Brexit negotiations current problems are not the end of the decline in judicial services still to come. Anybody who thinks otherwise is in for surprises or shocks depending on their support for current policies.

TO ARREST OR NOT TO ARREST? THAT IS THE QUESTION

"Have you ever been arrested?"  Not an everyday sort of question but exactly the sort of question that can be on an application form for eg some types of insurance, a job, a visa or another inquiry where personal integrity is a pre requisite.  This is not so surprising as there has to be a prima facia case of law breaking. To quote the appropriate government website, "To arrest you the police need reasonable grounds to suspect you’re involved in a crime for which your arrest is necessary." According to Citizens` Advice..........

 

When can the police arrest you

Police can arrest you if they have a valid arrest warrant. There are also some situations where they can arrest you without a warrant. These are where:

• you are in the act of committing certain offences
• they have reasonable grounds for suspecting you are committing certain offences
• they have reasonable grounds for suspecting you have committed certain offences
• you are about to commit certain offences
• they have reasonable grounds for suspecting you are about to commit certain offences.

The police can also arrest you if they have reasonable grounds for suspecting you have committed or attempted to commit any offence, or if you are committing or attempting to commit any offence, but it is impractical or inappropriate to serve a summons. However, they can only do this if one of the following conditions applies:

• they do not know, and cannot get, your name
• they think you have given a false name
• you have not given a satisfactory address. This means an address where the police can contact you
• they think you have given a false address
• the arrest is necessary to prevent you causing physical injury to yourself or others, suffering physical injury, causing loss or damage to property, committing an offence against public decency, or causing an unlawful obstruction of the highway

• they have reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person. 

So  far so clear.............However when a former Chief Constable admits that she told officers to "arrest first" and investigate later when dealing with rape cases one has to be concerned.  Presumably this instruction was based on the notion that victims have always to be believed in the first instance; a policy which, thankfully, is beginning to be perceived as misguided at best and oppressive at worst.  

Such was the operating procedure of the recent incumbent as Surrey Chief Constable.  Whether or not similar orders are still operating under the new Chief of that force cannot be ascertained from its website. That former Chief Constable now heads the National Crime Agency where as is the fashion all major departments are now "commands". On May 16th she made what I presume was her policy speech  in her new post.  In her opening she included ,"How do we build public confidence and avoid appearing distant from the public? And how can we ensure that we are always acting with the public’s consent? " 

My answer to her questions would be to admit that her policy in Surrey was flawed. 

JUDGE SWEARS TO ENFORCE THE LAW

Following on from yesterday's`s post about the crown court judge who responded to a defendant`s volley of four letter insults with a backhand return worthy of the centre court at Wimbledon it appears, surprise surprise, that a complaint has been served  at the Judicial Conduct Investigations Office.  No doubt this is but the opening  in a prolonged contest.

LEST YE BE JUDGED

I have opined previously that magistrates are more likely to feel the wrath of authority for perceived minor infractions than their full time brethren.  What would happen if a J.P. swore at a defendant in court  doesn`t bear thinking about.  So it will be interesting to find out if a complaint is made to the Judicial Conduct Investigations Office concerning HH Patricia Lynch QC and her robust response at Chelmsford Crown Court in the face off what can only be described as abusive language from a low life scum.  The newspaper headlines themselves might be enough for her to be asked questions. What I do know is that if a magistrate responded similarly s/he would be lucky if the JCIO merely issued a reprimand.

DAVID LAMMY M.P. AND REVIEW OF LEGAL BIAS

It is disturbing that it appears that many black people are looking to America to discover their binary relationship in being black and British.  But perhaps it is not surprising.  How many generations did it take for Anglo Saxons to consider themselves English, Normans to become anglicised, French Huguenots to "become British" or Irish navvies to consider themselves British of Irish heritage.  In America countless millions of Italian, Irish, Jewish and Scots Americans celebrate their origins even at the tenth generation removed. But they were all white or almost white skinned.  My own visits and sojourns to the deep south leave me in no doubt that there is still a deep division between white and black Americans.  So why is it in that direction that some black Britons look for inspiration in their aspirations when the degree of racial harmony in this country puts America and other places to shame? 

David Lammy is a black politician who throughout his career has seemed to  to ride on the backs of two horses at once attempting to balance between the left and the right. He is currently   leading a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities.  He is certainly no shrinking violet........is any politician?  He has issued more than one interim account of his work this being the latest. When he comes to his almost inevitable conclusion one would hope that his work is better researched than those of the newest black grouping to wrap itself in the folds of Americans who have very good cause to justify their slogan of "Black Lives Matter".  Fullfact.org   have corrected some numbers from the British "Black Lives Matter" organisation.  In such contentious circumstances it is essential that statistics are fact checked to the "n"th degree before publication.  

And a final word on Mr Lammy; his voting record on E.U. matters is open to doubting his true affiliations.  In 2007/8 he was apparently a supporter of integration within the E.U. but was mostly absent on E.U. connected votes since then.  He was, however, the first M.P. to publicly announce his support for a second referendum after the result was announced on June 23rd.  He has been quoted as saying, "63% of the electorate did not vote for Brexit". Using the same arithmetic almost 60% of his north London constituency did not vote for him in the 2015 election. He was elected!  I would hope his aforementioned review which is certain to cause some headlines when published is on firmer foundations than his numerical reasoning. 

CULTS AND THE PATHOGENICITY OF SUPPOSED HATE CRIME

On July 14th  I posted on the disturbing policy of Nottingham Police on what it constituted as hate crime and a detailed further report on July 27th of the calamitous effects on a young school girl of that force`s totally inappropriate and possibly unlawful use of its powers of arrest and detention.  The policy and the atrocious behaviour subsequently are caused by a combination of centring a justice system around a so called victim and seeking offensiveness however inocuous and only in the eye of that "victim" as a hate factor to be sought out as the witchfinder general saught his prey in the 17th century. 

This week an article in the Spectator clearly reveals the reality of a body politic which has been infected by a policy virus which has been zealously transmitted to police and prosecutors   alike.  As with all such plagues in history it will eventually sow the seeds of its own destruction when the infected hosts become too few to sustain its pathogenicity. But by that time countless lives will have been damaged or worse.  When western society is experiencing the politicisation of cults in the form of Trump, Sanders and Corbyn followers who worship the man before the politics and who are supposedly adult in status all we can do is hope that like the Beetlemania of teenagers of another era it will pass and  ideas will eventually prevail over personality. 

JEREMIAH AND NEW JUSTICES OF THE PEACE RULES

Whilst in office I tended not to attend events arranged by the social committee.  Generally I liked and/or respected my colleagues but there were exceptions as I suppose there are in all similar gatherings. But when it came to bench meetings I rarely missed the three or four times a year evening.  Apart from the formally constituted annual election meeting the other two or three in the year usually allowed a wide range of discussion  around an agenda often used for that very purpose.  That was until HMCTS took control and the Justices` Clerk, not the affable and familiar Deputy, assumed a greater role in the proceedings.  Indeed I well remember an occasion when that J.C. told the bench chairman as I was on my feet that the particular topic and point raised was not a matter for the bench.  He was told exactly where his authority ended.  Such occasions might now be stymied. On July 31st  Justices of the Peace Rules 2016 came into practice. Within these rules  amongst other things regarding bench meetings it is written:-

7.

Justices for an area shall meet no less than once per year between 1 April and 31 March to carry out the purposes in paragraph 8.

            8.

The purposes of Bench meetings include:

a). enabling justices to liaise with other bodies to share information relevant to the

work of the magistrates’ court;

b). representing the views of Justices (principally through their Chairman or Deputy Chairmen) including to the Judicial Business Group and other governance groups of justices;

  c). making recommendations to the relevant body responsible for training for inclusion in an annual training plan and any training necessary to ensure that Justices maintain their competence;

 d). providing a forum for training agreed under the training plan.

By stipulating the minimum single meeting required (the election meeting) it is likely that many benches will abandon the idea of having any other meetings throughout the year.  Thus there will be less opportunity for  bench  members to discuss matters important to them but not necessarily contained within the above parameters.  This will increase the power and influence of HMCTS and reduce yet again the ability of individual justices to have some control of their judicial career.  

I hope I`m just a Jeremiah making noises off stage but I doubt it. 

THE UNACCEPTABLE WORDS OF A DISTRICT JUDGE

All members of the judiciary must follow strict protocols in their words and behaviour inside and outside the courtroom. These protocols apply equally to members of the Supreme Court as they do to every Justice of the Peace. With judges in particular the bible they must observe and the advice and/or instructions to which they must adhere is the Guide to Judicial Conduct. From s.8 of that document the following is of interest:- "A judge should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press".

Last week at Kirklees Magistrates Court a lay bench of J.P.s disposed of a charge of racially aggravated threatening behaviour............a very woolly offence which in some circumstances can be conjoured up over a very minor and spontaneous atypical verbal outburst........by the imposition of a 12 months conditional discharge. From the report which has only the barest of details it appears it was another example of a police officer milking a situation for all it was worth.  Nevertheless West Yorkshire branch of the Police Federation made a big splash about what they described as, "an utter joke of a sentence".  As the police trade union there was nothing exceptional about its opinion being put into the public domain.  What followed was indeed exceptional.  The same offender, earlier this week on August 3rd, appeared before District Judge Michael Fanning at Huddersfield Court on charges of breaching court orders.  During that hearing the judge commented, "He got a conditional discharge and I can’t see how when you commit a racially-aggravated offence in these circumstances for which you were convicted in your absence. It seems to me that it was dealt with very lightly". 

It is my strong opinion that by criticising disparagingly  in front of the offender in a public courtroom the sentence previously handed out to him by the lay bench  this judge has brought the law into disrepute.  I hope the chairman of the bench in West Yorkshire has the cajones to complain to the Senior Presiding Judge on behalf of all his/her colleagues.

EBB AND FLOW OF RUSSIAN PAGE VIEWS

I don`t know whether I`m pleased or not that the sudden influx of page views from Russia  last weekend seems to have passed.  Currently it is unlikely that the daily numbers of the comrades will reach three figures.  Such is a graphic example of the ebb and flow on the world wide web.

SILENT WITNESS & AN IGNORANT GOVT. MINISTER

Yesterday I posted on the words used by a High Court judge during a hearing within the family division.  Perhaps it is only politicians as a group  who should care more for their public utterances.  When ministers of the crown offer their opinions especially outside Westminster they should be doubly mindful of what they say.  When the minister is one of the few remaining former barristers (Kenneth Clarke MP is another) still flaunting in his biographies the courtesy title of Queens Counsel awarded to members of that profession purely as a result of being elected to parliament and certainly not as a sign of recognised excellence, a practice quite correctly discontinued about 25 years ago, we gain a glimpse of the inner man.   Notwithstanding that background the Hon.....oops......Rt Hon gentleman is now Minister of State at the Ministry of Justice. Recently he made an official visit to Liverpool Crown Court where he commented on the improvements taking place within the courts` system.  Amongst other things in a report in the Liverpool Echo he was quoted as saying, “This court is one of the first to use new technology, which allows cross-examination of a witness, which is recorded in advance. “It means they know that they have given their evidence and that is that. It gives them a sense of closure. “They have already had a horrible experience. To come to court and have to live it again and experience cross-examination, which could be very long, was difficult."  This all very laudable.   As is the current fashion he appears to place "victims" at the centre of the justice system; a practice that will be seen in time as great endeavour but highly misplaced.  However, of more significance, he goes on to say, "Sometimes the jury cannot agree on a verdict and you can then have a retrial, when they had to go through it all over again. “We don’t need to when we have already got their evidence pre-recorded."

Think about that. The necessity of a re-trial as he is discussing is because a jury cannot agree a majority verdict. And that in itself indicates that the evidence presented is not sufficient to erase that shadow of doubt in the minds of at least three jurors.  The logical next step is that the evidence of witnesses at a re trial should be further cross examined to remove any lingering doubts before another jury.  The very idea that the same video being presented to it which might have left unanswered questions at the previous trial should simply be replayed on the second occasion is frankly nonsense. Indeed it is more than nonsense.  It is an abrogation of the function of a trial by jury.  For such an opinion to be propounded by the minister responsible is a travesty.  Once again the arrogance and ignorance of a senior politician is before us for all to see.   

HIGH COURT JUDGE HAS LOST HIS MORAL COMPASS

Long before my occupation of the middle chair I came to the conclusion that legal advisors and lawyers  were often unaware that the language they were speaking was almost unintelligible to the court users to whom it was addressed. When I was authorised to occupy the middle chair I was in a position to remedy these failings.  Lawyers mildly chastised along those lines invariably accepted with good grace and usually a smile that my interruption was merely to speed up the process for all.  Pointers in the other direction whether of substance or style were usually of more substance.  Criticism of a High Court during proceedings is a rare event.  However outside the courtroom it obviously has no legal effect but the ramifications can be explosive.  Mrs Justice Hogg and the Ellie Butler case was an example.  

Another High Court judge of the family division, Mr Justice Holman, made remarks in a recent case that seem to have been largely overlooked. A Saudi father  has kept his  British daughter in a cage for four years at his home in Jeddah.  Whatever the rights and wrongs involved, (a report is available here,) the judge did nothing to enhance the reputation of British jurisprudence when he said, "We have to be careful about asserting the supremacy of our cultural standards."

It is just this levelling down of the basis of our legal and cultural heritage which I find nothing less than nauseating. Taken to its logical conclusion we must assume that in the judge`s mind there is no moral, legal, cultural, historical or religious basis for the way in which we conduct or attempt to conduct our society in what we consider the most satisfactory manner for the benefit of all of us. Mr Justice Holman might be a High Court judge but if these comments are a reflection of his thinking processes the Appointments Committee missed a trick granting him the honour and privilege of occupying that most prestigious of chairs. He has lost his moral compass.