TRIAL BY JURY:NOT G&S

The anomaly of either way offences has once more reached the higher echelons of our justice system. This time the intervention is by "Lady Justice Hallett, who sits on the Court of Appeal,(and who said) that a full jury trial could cost £20,000 for defendants accused of offences such as stealing sweets from a supermarket. She said the Government should ""remove the right to elect trial by jury in cases that simply do not warrant it"". Since the publication of two of my posts from 2009 and 2013 copied below, theft of items with a value of £200 can be tried summarily only.  However the right to elect jury trial for either way offences remains.  It would appear that it is to this anomaly  that the Hon. Lady is referring.  As far as I know there is no similar availability in any other jurisdiction. She even refers to a case on which I commented below in 2009. At this proposal no doubt most of the legal profession will be up in arms and will take to the barricades crying justice or death.  This display of support for the common man, however, is barely skin deep. The secretary of the Criminal Bar Association  in commenting on a case he was defending says in the article, "The time taken over a summary trial can be a lot quicker - and things came out over that longer process which utterly exonerated them." What a fatuous self serving argument. 

Barristers from the highest and most respected QCs to the newest pupils in their rush to denounce such proposals conveniently forget the situation in the numbers of ever increasing trials that take place in magistrates` courts before a District Judge(MC) sitting alone. Their memory lapse  includes the underlying fairness in these lower courts of three Justices of the Peace sitting as a tribunal where a majority verdict is required for conviction; a jury of peers albeit limited in number but more highly qualified than any jury supposedly randomly selected where "randomly" can include those with English as a very poorly understood 2nd or even 3rd language, where reasoning ability is not tested, where prejudice can exist and who do not even need to be citizens of this country. 

Lady Justice Hallet would not dare to entertain this point of view.  She is likely to be amongst those who in their heart and soul might pay lip service to the magistracy but would not object to its being relegated to a peripheral role allowing a professional cadre of full time government paid District Judges to preside and adjudicate unhindered by supposedly unqualified J.P.s.  But as usual there is obfuscation. 

Most people could not give a damn whether or not the lay magistracy is eased out and an effective system of summary justice founded nearly 700 years ago and developed to cope with the requirements of a 21st century democracy survives.  Senior judiciary are not "most people". The least they should do is make their opinions known before they retire to their country cottages on their civil service pensions safe in the knowledge that government can`t chastise them. 



           Is it time to say goodbye to either way offences?

by TheJusticeofthePeace @ 21. Nov. 2009. – 14:18:34

Long before the recent financial debacle which the citizenry of this country will be paying for twenty years from now the government was looking for cost savings wherever it could primarily as a political stick to beat the Tories in a Dutch auction to demonstrate that "P?rudence" was the watchword. Of late this belt tightening has more in common with a financial famine where the survival of this country in the political premier league is uncertain.

The Ministry of Justice is certainly more than a bit player in this race to the bottom. Unlike the NHS where most of us have personal experience HMCS impinges upon a minority and a minority by its very being that has little influence the professionals running it the exception. It is only in England Wales.....the Scots and the Irish have more sense.......that within a certain category of offences the alleged offender can choose to be tried at the Magistrates` Court or the Crown Court. At the former the bench comprises three highly trained personnel generally representative of the community they serve who give their time for no payment except minimal expenses. The maximum sentence that bench can impose is six months` imprisonment which can be appealed before a judge in the Crown Court where a life term can be the disposal. Thus generally although over 90% of cases are completed at Magistrates` Courts and the most serious at the Crown Court there is an intermediate level of offences; either way offences, in which the defendant can elect to be tried at either venue. At Crown Court the trial will be in front of a jury of twelve.

Recently the Crown prosecution Service has launched a consultation paper on proposed changes in policy with regard to the initiation of a prosecution amongst which is the following,"The changes extend this test to include a requirement asking them to consider whether a prosecution is proportionate (balancing time and cost of prosecution with the seriousness of the offence)". What this means in simple terms is whether prosecuting a case is worth the cost the inference being in my opinion that the costs of a trial are not worth the low level of offending. A recent case demonstrates this. A man was taken to court for stealing a banana worth 25p. It was an either way offence of Theft from a shop. He elected trial by jury at the Crown Court where it took a jury about ten minutes to acquit him. Latest figures show 59,000 people were sentenced at Crown Court for either way offences. Depending on one`s viewpoint many of these offences could be considered as suitable for one court or the other with perhaps the majority at Magistrates` Court especially if the maximum sentence available there were increased to twelve or even twenty four months imprisonment.

Recent statistics on the costs to government of trials at Magistrates` Courts and Crown Court trials are hard to come by but within the last ten years or so it has been guesstimated that the latter costs ten times the costs of the former. So by eliminating either way offences we eliminate an enormous expense and in doing so remove an anomaly that has had its day {in court?}

 

by The Justice of the Peace @ 14. Jan. 2013. – 21:358

The second post that I wrote on this site 21/11/2009 was entitled “Is it time to say goodbye to either way offences?” The powers that be obviously think not. Probably the most commonly committed of such offences is that of theft. As far as I am aware there are no figures to show how many charges of theft are heard before a judge and jury at crown court and what percentage of the total these represent. An argument often heard from lawyers why the status quo should remain ie theft should not be summary only, is eg for those of good character a conviction of theft however minor could have a devastating effect on their career and/or reputation. IMHO this is a spurious and unmerited argument. The underlying imputation is that a jury is more likely than a bench of J.P.s or a SINGLE DISTRICT JUDGE to acquit their client. Whether said client committed the crime or not is of course not a matter for consideration. If juries are seen to acquit in demonstrably doubtful situations and in contrast to the evidence presented, then one of two changes will eventually take place; a change in the particular law in question or pressure from government to satisfy a restless populous by demanding more judge only trials at crown court and dispensing with the jury altogether.

Criminal damage is an offence tried summarily only if the sum involved does not exceed £5,000. Above that figure or if the charge is racially or religiously aggravated the offence becomes either way. What logic prevents a similar cut off level for theft as a summary only offence? What form of trial would the 40 thieves have preferred?

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FINED FOR WALKING HIS DOG

They do things differently in the Isle of Man.  It does seem ludicrous that this council has a bye law prohibiting dogs from walking on a grassed unused sports field.  And I`m not a pet owner.

BOSS:WORKER WAGE RATIO

During this relaxing if somewhat chilly  weekend I had no intentions of putting any opinions on line until I re read news of retiring managers and bosses with eye watering pension pots of £millions plus often large amounts in shares and stock options. Now in the case of  obviously successful businessmen and entrepreneurs in the mould of Richard Branson or Alan Sugar I would wish such people well to consider the disposal of the results of a lifetime`s risk in creating success. But many such pay offs are to managers, perhaps of exceptional ability, who have increased the wealth of shareholders. Do they and others similar require such astronomical payments to fulfil their duties? Taking an extremely introverted view would Justices of the Peace perform their duties to a higher standard if they were paid a going rate of eg £300 daily? I think not. There surely must be a maximum multiplier in any organisation between the pay of the lowest and highest earner related to median salary which produces the incentives for all to achieve their personal best performances? And the corollary is that there also must be a point of departure from an optimum inter salary relationship which initiates envy and consequent inefficiencies from sections of a workforce or population. “Let them eat cake”, has resonated for over 200 years. The sentiments are as alive today as they were then. Indeed they form part of the Labour manifesto. It is to be hoped that we have learned to avoid the consequences.

PUNISHMENT//WHO YOU ARE OR WHAT YOU DID?

It is not very often that I have urged readers to link to another blogger but the matter under consideration requires an understanding of the legal issues before the philosophical aspect of the case can be considered.  The Secret Barrister has an outstanding reputation. The case of the knife wielding medical student.......there is no knowledge of whether she has qualified with a medical degree........poses fundamental questions.  

A few years ago Sentencing Guidelines were modified so that increased fines above the normal maxima could be imposed in place of community orders where appropriate. In simple terms those offenders who could afford it could buy their way to a sentence of lesser magnitude.  It seems to me that a similar principle has been applied in the case of the above mentioned student: substitute academic and social potential for ability to pay and the judge`s reasoning is clear.  My point is that it might be clear to him but were the argument applied wholesale the justice system would be in turmoil. The 18 year old addict from a broken home subjected to abuse since childhood is the opposite side of the sentencing coin. Some would say that s/he should be offered reduced punishment in recompense for his/her  background.  Before Sentencing Guidelines judges and magistrates used their own common sense to decide sentencing for such offenders; both  those offering benefits (current or future) to society and the addicted thug at the bottom of the social heap.  The Guidelines are more or less a tick box exercise. Should rich offenders be able to buy a financial penalty which others could not afford? Should a certain standing in society protect an offender from prison? Should deprivation of all kinds and/or addiction be considered mitigation and an argument for more considerate treatment? In cases of violence drunkenness is on the contrary considered an aggravating factor.  There is also the matter of public protection which IMHO is often overlooked by those who seek to remove custody from many offences and offenders.  In the actual case discussed here the assumption by the judge is that this is a one time offence and public protection is not a consideration.  When news of another stabbing of a girlfriend/boyfriend by a partner or ex partner is concluded by immediate custody for a first time offender no doubt there will be a comparison.  

This is a murky area of the law.  It has even darker undertones when who you are takes precedence of what you did.

IS POLICE PROBITY JUST A HISTORICAL REFERENCE?

The scandals involving senior police officers over the last decade have been discussed here and in many other media.  There is no doubt that there is something seriously rotten in the state of Denmark. This creeping bacterium has invaded the posts of Police and Crime Commissioner; an elected office, and deputies.........an appointed position.  The latest incumbent to be caught with his trousers around his ankles albeit in his past life is Andy Coles, Cambridgeshire's deputy crime commissioner.  This man would have been interviewed by senior officials around the PCC, his CV would have or should have been thoroughly investigated and his referees` opinions checked out.  It was, however, only be chance that his sordid actions as a former police officer came to light.  Is probity in all aspects of our legal, justice and police systems just a historical reference?

MAGISTRATE TWEETER SHOULD RESIGN

Justices of the Peace hold public positions. That being so it is a fact  that not only must they have been upright in their pre J.P. lives but are held to account for their actions not necessarily just inside the confines of the courtroom.  Deviation from the straight and narrow can have devastating effects.  That being the case when this blogger signed up to  Twitter a few months ago it was with some circumspection that my keyboard did not run amok from a self imposed ten second delay for second thoughts.  Thus it is with a certain dismay I have to mention that a prominent magistrate well known for his IT skills has allowed his prejudices to become public in the aforementioned public debating forum.  Nick Harrington tweeted two days ago, 

As some readers might be aware I am the antithesis of being politically correct and a convinced Brexiteer but the above reference to gypsies is totally unacceptable. If anybody is in doubt just substitute "Muslims" or "Jews" or "homosexuals" in his Tweet.  This man should do the honourable thing and resign from the magistracy before he is subjected to the inevitable investigation.

LIB DEMS OFFER LEGAL CANNABIS

The Monster Raving Loony Party regularly offered voters many improbable benefits if the electorate suddenly became part of that Mad Hatter`s Tea Party.  The Lib Dems from election to election propagate a somewhat similar line. But today they offer a change so frighteningly simple that no previous political party has had the cohones to dare even suggest such an innovation; the legalisation and regulation of cannabis. Of course it will not happen this time but as an unexplored way of raising billions of pounds some chancellor sometime will persuade a prime minister and his/her colleagues that this would be a no brainer.

POLICE ARE POLITICALLY CORRECT: NOT PROGRESSIVE

There are some things that, after being away on a holiday however satisfying, one appreciates that little bit extra upon return: sleeping in one`s own bed, noticing how two weeks milder weather has encouraged grass and plants to grow, deciding how to catch up on all the programmes recorded on Sky are just a few. But reading of the political correctness of police in this country seems to be more than just unchanging; it is  progressing at an unstoppable rate.

The latest constabulary striving to be progressive is Northamptonshire.  It has decided that the old Victorian helmets are now well past their sell by date.  There can be few arguments against that.  In their day they reflected the most suitable protective headgear in line with then current trends. By 1953 all male police officers in Scotland had abandoned the helmet in favour of the flat cap.  Recently Scottish female police officers have been able to wear the hijab.  These were sensible initiatives.  In Northampton, however, the helmet is to be replaced by the baseball cap; a form of headgear forever associated with the land where the game is ubiquitous.  The flat cap which offers some protection to the skull and sometimes with its chequered pattern around its rim as in Chicago and Australia, another Scottish initiative, has been adopted in many overseas jurisdictions  It serves as a distinguishing feature in police uniforms when so many quasi uniforms now adorn such operatives as traffic wardens and other council employees.  In an age when aforesaid baseball cap is such a common form of headgear in Britain it behoves police officers to stand out from the crowd without trying to imitate their American counterparts.  

Just as the magistrates` courts` system is losing all pretence to be "local" it cannot be a long time in coming when there will be forced amalgamation of constabularies into a national force perhaps with the equivalent of a local force as in France.  The argument from Northampton that costs will be reduced is fatuous and we all know that. There are simply too many chiefs afraid of being sent to the reservation.   

HOLIDAY TIME

A certain D. Trump persuaded me that rather than taking a trip on a Mississippi river boat my holiday spending power would be more welcome at points in an easterly direction.  The desert awaits so all being well this page will be updated in a couple of weeks.

REHAB OR PRISON?

Many times here I have castigated the refusal of our overlords to consider compulsory rehab for addicts so that the court system is finally avoided for those 70% who are repeatedly offending in order to finance their habit be it narcotics or alcohol or both.However I doubt we`ll see that initiative for many a long decade. A perfect example was in front of Kirklees Magistrates this week. Whilst he is deserving of pity the public must be protected.  I cannot believe that the costs of re hab would exceed the costs of prison including a reduction in future offending and all that that would save.  Indeed with new prisons on the horizon existing establishments could be converted to such hostels and these being mainly in cities family ties would have a real possibility of being restored between addict and parents/partners/children.

ARE IDENTITY CARDS DEAD AND BURIED?

Almost seven years ago after Labour was thrown out of government the decision to impose identity cards for all was rescinded by Mrs T. May the new Home Secretary. Libertarians and perhaps many others not so single minded about retaining their privacy in an increasingly big brother state were extremely pleased at that announcement. Identity Cards for all, a policy so fervently espoused by successive Labour Home Secretaries, are now history or so we hope but the problem of privacy for the citizen didn`t begin in this century.

In late December 2008 I was sitting on a case where a driver had refused to give his details when required by a police officer. For a reason now forgotten during this hearing we had some "downtime" and were in the retiring room where on impulse I looked at the bound annual copies of "The Justice of the Peace" on the bookshelf. I chose to look at the edition of 1908 and found the page for the same December date of that year. And there it was in black and white Edwardian prose; the case law where a driver on the request of a police constable was required to give his name and address. Licenses to drive were for the future. A gentleman had been motoring through Hyde Park and for whatever reason refused to give his details to the constable when asked. The case duly reached a higher level where it was decided that a constable had the right to demand a driver`s name and address.

In the seven years since Labour`s loss of power our security situation has changed.  It would be foolish to think that there will be no repeat of the Westminster terrorist murders in future.  In some quarters there are whispers of resurrecting the issue of identity cards for all.   Of course we won`t hear anything of this in the next seven weeks but later..........?

BE A J.P. IN WIGAN

There is a shortage of magistrates in Wigan.  The local paper has published the following statement from Liz Truss to encourage applicants.  I wonder how much is still applicable to today`s situation. 

The Lord Chancellor Liz Truss said: “The involvement of lay people - recruited from a cross-section of our society - is a central principle in the administration of justice. It helps safeguard our citizens, with crucial decisions affecting an individual’s liberty being decided not by officials of the state - but by an independent bench of trained magistrates drawn from the local community. Our judiciary is amongst the most respected and independent in the world - part of a justice system that is widely admired at home and abroad.”

The Lord Chancellor Liz Truss said: “The involvement of lay people - recruited from a cross-section of our society - is a central principle in the administration of justice. It helps safeguard our citizens, with crucial decisions affecting an individual’s liberty being decided not by officials of the state - but by an independent bench of trained magistrates drawn from the local community. Our judiciary is amongst the most respected and independent in the world - part of a justice system that is widely admired at home and abroad.”

Read more at: http://www.wigantoday.net/news/crime/appeal-for-magistrates-due-to-volunteers-shortage-1-8505905

The Lord Chancellor Liz Truss said: “The involvement of lay people - recruited from a cross-section of our society - is a central principle in the administration of justice. It helps safeguard our citizens, with crucial decisions affecting an individual’s liberty being decided not by officials of the state - but by an independent bench of trained magistrates drawn from the local community. Our judiciary is amongst the most respected and independent in the world - part of a justice system that is widely admired at home and abroad.”

Read more at: http://www.wigantoday.net/news/crime/appeal-for-magistrates-due-to-volunteers-shortage-1-8505905

BEFORE OUR VERY EYES

Yesterday I posted on the apparent lack of local knowledge shown by the Appeal Court in a case of dangerous driving. Today in the Telegraph the opposite appears to be the case with a crown court judge who has placed a spurious exaggerated defence of a twice convicted drunk driver ahead of the public interest.  Such cases happen daily but only a few can be reported to a wider audience.  Of course the results of all criminal cases are available in a statistical form.  This allows the general nature of our courts system to be commented upon but it bears no reality for those involved either practically or intellectually. 

In magistrates` courts arguments, as in today`s case, are often based upon exceptional circumstances in an attempt for totters to retain their driving licenses with 12 penalty points or more  having accrued.  Generally the arguments are similar to those in this much more serious example.  Perhaps there are judges who really are detached from the public perception of their decisions.  Perhaps judges should not allow public perceptions to influence their decision making.  Somewhere along that slippery gradient and notwithstanding Sentencing Guidelines there is a gap. Perhaps if there were the requisite financing of our courts the CPS could be mandated to challenge any such sentencing decision as a matter of course filtered through specified considerations. All I would say now is that decisions within and surrounding our courts are costing us the justice we deserve,  as the magician says,  before your very eyes.

EX CHAIRMAN OF BRADFORD BENCH CASTIGATES APPEAL COURT

Lesson one for new magistrates:- do not talk to the media.  It`s that simple. Of course there are so called rules which define the limits of expressing opinions to same but those who`ve been around for a while understand that unless you were in Kingston or Barry or similar situations and your court was being closed and you vented a portion of your spleen to the local journal the chances were that you would be brought before the headmaster and duly chastised.  So often it is the retired J.P. who makes known his/her opinion on a legal topic in the press, TV or social media. Thus it is that the former Chairman of the Bench in Bradford has castigated the Appeal Court for second guessing an original sentence passed by  HHJ Roger Thomas QC the Honorary Recorder of Bradford.The offender`s sentence was reduced from 6 months to 4 months custody.

Ms Carroll is a wise and experienced individual.  There are many more of her ilk active and retired.  More of them should speak up when the situation demands.  Justices of the Peace are told that they are full members of the judiciary (junior branch). But they are a race apart.  They are volunteers with incomes derived outwith the MOJ.  They are often experienced professionals or tradespeople in their own right. Yet they are treated as little better than school children by the authorities in their ivory tower in Petty France controlled by an increasingly reactionary Ministry of Justice which appears at times more interested in its press releases than common sense in trying to remember when the British justice system was held in such high regard world wide.  Would that were the case now notwithstanding the opportunities afforded by Brexit.

A LORD CHANCELLOR AND A JUSTICE SECRETARY

One sure result of the election will surely be the appointment of a new Secretary of State for Justice.  Perhaps in view of recent controversy a separate position of Lord Chancellor will be re - established.

ACCEPTABLE COMMENTS IN 1957

This report of a case at a magistrates` court in 1957 quotes the words of the presiding magistrate or "stipe"...we don`t know which.  I wonder whether such comments would pass today without reprimand from those in authority. 

CBOs TAKE THE BISCUIT

For the most part, criminal behaviour orders are just another way of avoiding the reality that some offenders who are not being put away should be put away.  When every trick and turn considered to be acceptable to a sceptical public has been exhausted the bright young things at the MOJ offer ever more suggestions on how to run a service to protect that public and simultaneously reduce its reliance on incarceration whilst upping custodial limits in  Sentencing Guidelines.  Seems to me that having a custodial cake whilst eating it  hasn`t succeeded in the past and won`t succeed now.  To expand the metaphor this example takes the biscuit.