DRIVING JUSTICE WITH HANDBRAKE ON

An apparently simple case last week at Teesside Magistrates Court has left me thinking. It involved the defendant being found guilty for the second time of carrying a weapon and receiving a suspended custodial sentence.  What set what`s left of my little grey cells firing off in all directions was the conclusion reached by the bench that the knife in question was accepted as being for trade purposes; namely for decorating but also an "offensive weapon". Whilst I was active such a defence (for trade) was an acceptable defence against the charge. Has that changed?  The magistrates seem to be in two minds on this matter and have effectively driven the judicial vehicle with the hand brake applied. There is no mention in the report if his advocate was considering an appeal. Make up your mind after you read all about it here.

AND THEN THERE WERE CUTS

A new year and amid an overdue recognition by senior legal eagles on both sides of the bench that the quality of British justice is in freefall from which it might never recover it is curious to read the last 2017 edition of the Scunthorpe Telegraph copied below  highlighting what I too recollect at my own court was happening around two decades ago.  It all seems so petty now with not an inkling of the savage financial cuts which began in 2010. Kenneth Clarke who is merrily trying to usurp the decision of the British public and have the Leave decision overturned didn`t just turn a blind eye to imposed cuts as Justice Secretary in 2010; he thoroughly encouraged them with a 23% reduction in funding that year and was proud to proclaim he was the first Cabinet Minister to satisfy the Treasury of having done its wishes.  

"One piece of news hitting the headlines in Scunthorpe 20 years ago was the decision to stop the supply of free biscuits to magistrates. John Towndrow, vice-chairman of the Humberside Magistrates’ Courts Committee, revealed it cost £400 a year to provide the local justices with biscuits to dunk in their coffee and tea. He said the committee had been faced with making savings of £145,000 that year and needed to cut the annual budget by three per cent over the next three years. The cuts had led to the closure of courts in Barton, Brigg and Epworth, job losses and under-funding for ushers, with clerks on occasions having to take over their duties.

“I am bitterly disappointed that my fellow magistrates have lost the only perk they had, namely the free biscuits with their tea or coffee,” Mr Towndrow said.
“However, the search for savings in every department has led to swingeing cuts. I am sure the local justices will appreciate the reasons for the withdrawal of their biscuits.”

The cutbacks also saw filter coffee-making machines in Scunthorpe removed and replaced by jars of instant coffee, tea bags and flasks of hot water. Mr Towndrow said previously the coffee had cost 20p a cup, but now the expense had been reduced to only 4p.However, one justice of the peace, who asked to remain anonymous, told the Telegraph: “This really takes the biscuit! It will only save pennies over the year.”"

AT THIS MERRY TIME THE CANARY IS WARNING

Council Tax more than any other tax can be seen to be used where we live and work.  Many untruths about the results for non payers are propagated by political vested interests.  The actual numbers receiving the ultimate sanction and why can be accessed here.

There was great publicity from the  diarrheac output of the MOJ press office not so long ago on a new offence  of controlling or coercive behaviour under section 76 of the Serious Crime Act 2015. The result? not very much........just another example of how government thinks that throwing more legislation at a problem will cure it. 

So begins another period of hedonism where the word "merry" is the common adjective.  Thinking about it that word is rarely used in any other context. My opinion for what its worth is long might that continue.  There are too many political correct apologists and activists of propagating all that`s wrong with our world.  As a non religious person I`m all for the free expression by those god fearing of one faith or another but those who are intent on taking us back to the middle ages where tolerance of difference did not exist  must not be able to have the tolerance and equal voice in this progressive world.  At some point the liberalism of the democratic state must decide when purveyors of hate must be silenced. With anti semitism once confined to private conversation now becoming an almost regular public occurrence the time must be approaching when that warning canary of religious and right and left wing extremism, call it Islamism, fascism and Marxism, must be confronted head on.     

So Merry Christmas and a Happy New Year and thank you, my reader, for allowing me to occupy your time for just a few minutes today and previous days.

STATISTICS ON GENDER RELATED LEGAL MATTERS

It`s coming to that time of year when this blog and many others will go into hibernation for a couple of weeks.........but not just yet.  Recent parliamentary questions on two different subjects within the remit of the MOJ produced statistics for women and women-V-men that some readers might find interesting? disturbing? gratifying? or you name it.  Judge for yourselves below.

PRAISE FOR LOCAL COURT REPORTING

I`ve complained often enough about the lack of local court reporting. Today`s an exception. Very full reports in two local media on proceedings at Ealing and Staines Magistrates` Courts where the latter had a District Judge(MC) presiding although the reporter failed to mention that. Both reports well worth a few minutes.

SUCH MAGISTRATES SHOULD QUIT

BuzzFeed, a provocative on line agency, in association with the Magistrates Association this week published a lengthy account of the situation from both sides of the bench of unrepresented defendants in the magistrates courts.  Its detailed account could be summarised simply by two facts; defendants without lawyers are prone to be convicted in circumstances where legal representation might have got them off or their punishment mitigated and magistrates are only too aware of such failings and are too mealy mouthed to do anything about it.  I posted comprehensively on this subject 28th September 2015 where I proposed simple inexpensive measures to counteract the situation.  However with regard to the BuzzFeed quotations from magistrates, assuming their veracity, I have nothing but contempt for former colleagues who blithely admit to miscarriages of justice or unfair conclusions whilst they were in a position to mediate. Of course there will be the usual cry of magistrates are merely overseeing the process and must not enter the legal fray.   This cop out must be ended.  Magistrates and of course District Judges(MC) in an era where the power of the state is vastly superior to those of most defendants must now assume an inquisitorial role in the interests of justice being done and being seen to be done. My contacts with former colleagues convince me that the independence of the magistracy where it really matters, in the courtroom, is now compromised. JPs are trained to kowtow to the legal advisors who are assuming more influence than just offering legal advice.  This will require some magistrates with memory of times past to impart to their newer colleagues that almost forgotten spirit of radical thought and confidence to assist unrepresented defendants when such defendants exhibit blatant inability to assist themselves. 

Some of the magistrates quoted by BuzzFeed and some results eg 

"defendants without lawyers are being found guilty of crimes they did not commit and being sentenced too harshly."

"They’re not being fairly treated, through no fault of the court." 

"many magistrates said they were concerned that those without lawyers faced being found guilty of crimes they did not commit."

"I cannot recall any cases this year where non-represented persons defended themselves effectively.

"On at least two occasions recently I have sat in a trial that should never have come to court"

It amazes me that magistrates can sit through proceedings over which the chairman should have control and wash their hands over such abominations in the name of justice.  They should hang their heads in shame and offer their resignations if they fear HMCTS more than their own consciences.  Access BuzzFeed here. 

THE REALITY OF A DAY IN COURT

From time to time I have commented here on the day to day comings and goings at magistrates` courts; on delays, sentencing etc and all the scenarios that are part of the normal day`s sitting. I have also posted on the sometimes misleading headlines of local print media when reports are published. Indeed the rising influemces of social media are an ever increasing restraint on publishers` financial resources to enable old fashioned court reporting as it used to be.  With all that in mind it was interesting to read last week of Kent News` intention to do an in depth review of a day in a local courtroom.That report was published last week and makes sorry reading but conveys with more reality what is actually happening than the rosy perception projected by all the myriad statistics published by MOJ............read and digest.

BENCH GOT IT WRONG

I suppose upon some reflection that I have commented here when it has seemed apposite on sentences being too weak rather than the reverse.  Today I find myself in the opposite corner. Curfew is a useful sentence because it is a deprivation of liberty and can be applied immediately upon a finding of guilt without the need to have a pre sentence report.  For those reasons it is essential that the bench takes on an inquisitorial role to ensure that the punishment fits the crime and the offender fits the punishment.  At least that is the way in which I personally approached such a disposal. For a bench to impose a curfew on a grandmother of previous good character who deprived the DHSS of £12,500, a relatively small amount for an offence  in such circumstances, is a disgrace. The report does not state under which section of the law she was charged.  If defence lawyer did not immediately appeal against sentence she ought to be ashamed as should the bench for the imposition of a sentence which was totally unsuitable in the circumstances.

POLICE MISCONDUCT//LATEST NEWS

Earlier this year on 18th October I posted on the change in regulation which had previously allowed police officers under misconduct investigation to resign and avoid such investigation.  Not surprisingly I was pleased. Well; today I`m not. In short this  new legislation in some circumstances allows officers to retire while under investigation.  The College of Policing appears not to have this new information on its website.

It would be interesting to know statistics of police chiefs charged with misconduct. 

FREE SPEECH MUST FOLLOW VOLTAIRE

FREEDOM OF SPEECH:- While lovers of liberty in all lands have urged the necessity of freedom of speech none put the case more pointedly than Voltaire when he wrote, “I wholly disapprove of what you say and will defend to the death your right to say it.”  Perhaps that sentence exemplifies the difference between those of a libertarian bent from all others whether of the Left or the Right.  In 2009 The far-right Dutch politician Geert Wilders was allowed entry to the UK after appealing successfully a ban imposed some months previously by the Home Office. His visit passed without incident.  Currently there is growing opposition to a proposed visit by Franklin Graham an American evangelist preacher on the grounds that he is likely to provoke a possible reaction from Muslims, gay people and others whom Graham has castigated in speeches in the USA.  The rise of a British Muslim population of 3 million has simultaneously led to increasing criticism of conservative Christianity and its adherents` proselytising. Cases of people wearing a cross around their necks have hit the headlines when their companies have ordered them to remove such items. For generations the Plymouth Brethren in England and the "Wee Frees" in Scotland have quietly lived their lives within their own strict rules and communities.  They too hold views not dissimilar from the aforesaid American and Dutchman. In short outside Northern Ireland religion was a private topic in this country until the immigration of hundreds of thousands of people from lands where religion was not only public but carried with it political inferences long dismissed here.  

The latest manifestation of perhaps anti Christian bias within the justice system was demonstrated by Lincoln Magistrates on 14 September when a Christian preacher was convicted of using threatening and discriminatory language whilst preaching in that city. That verdict was overturned on appeal at the crown court.  

I have posted three times in the last year or so on the topic of hate crime: 9th August 2016, 3rd April 2017 and most recently 22nd August this year.  It truly requires senior judiciary to halt this apparent upping of the ante as to what constitutes "hate".  Provided no incentive to violent action can be construed from actual words used, those opposed to the views and opinions of people like Geert Wilders, Franklin Graham and others whether of the Right or the Left, Christian or Muslim, gay or trans or whatever should make their arguments orally, in writing or through social media. Banning those who voice what some consider unsayable is a short slope to the unthinkable.

SCHOOL CENSUS

For very many years the governments; Labour, Coalition and Tory have been less than expansive about the number of illegal immigrants in this country including those who arrived legally and overstayed. Indeed that evasiveness was no doubt a factor in the arguments on immigration prior to the Referendum.  The Right criticised the Left for its attempts to play down the problem and the Left accused the Right of little short of racism and bigotry.  There is one certainty and that is government still does not know the numbers of foreigners living  here.  From time to time we read in the media of those illegals having children in the UK and using that as an argument under Human Rights that their stay in this country be legitimised.  Since June 23rd last year various measures have been put in place to determine the nationalities of people who fall into certain groups which have contact with state authority.  All defendants in court must now state their nationality. Surprising no one the legal profession has been blowing its top into a so called breach of rights.  Now a similar uproar has occurred over the requirement of childrens` parents or guardians to name their child`s nationality as part of a schools` census.  IMHO with education defects being seen as a major problem from low industrial productivity to the limiting of lower social class children being able to climb out of poverty it seems perfectly reasonable to have facts on the nationality of such where eg lack of English as a native language in the home might be proving a detriment to inherent ability.    Of course the Left immediately cries racist or fascist in any situation where it thinks it will enhance its support amongst new arrivals.  To that extent a High Court Appeal against the census is underway by a group calling itself Campaign group Against Borders for Children.  I sincerely hope that appeal fails.

JUSTICE OF WHICH TO BE PROUD

There is much to be said for the opinion that justice for all but the rich is no longer the certainty that it was a couple of generations ago. But then a little reported event happens along and all that can be said is that there is still a flickering flame within the system of which we should be proud.  "A Muslim suspected of involvement in "terrorism-related activity", who complained that Home Office movement constraints prevented him from visiting McDonald's and treating one of his children to a Happy Meal, has failed to persuade a High Court judge to relax restrictions." The report makes no mention of how his appeal was funded but I would hazard a guess that he was legally represented under legal aid.  I wonder where else he could have pursued his appeal on such grounds at state expense.  The brief report is available here.

TOO MANY CHIEFS AND NOT ENOUGH INDIANS? (2)

On 25th July 2013, shortly before my previous host site was taken down, I commented on the numbers of serving police officers in England and Wales and the ratios of how the various ranks were proportioned.


4.86 constables/sergeant
3.26 sergeants/inspector
3.49 inspectors/chief inspector
2.2 chief inspectors/superintendent
2.24 superintendents/chief superintendent
1.82 chief superintendents/ACPO rank




On 8th August 2015 I posted as follows:-

Although I am cautious when reading of a latest form of crime statistics which appears to indicate that the trend is up, down or sideways there is more than a little fascination in the structure of those in blue employed (in reducing numbers) to keep the peace. According to current figures there are:-

1.68 chief superintendents for every ACPO ranked officer

9 inspectors and chief inspectors for every superintendent

3.3 sergeants for every inspector

5.2 constables for every sergeant

Figures for 2013 were:- 

4.86 constables for every sergeant
 
3.26 sergeants for every inspector
 
3.49 inspectors for every chief inspector
 
2.2 chief inspectors for every superintendent
 
2.24 superintendents for every chief superintendent
 
1.82 chief superintendents for every ACPO rank


I have no knowledge of the internal workings or management of large organisations but it does seem that the police are top heavy at the higher ranks of chief inspector and above. The army also seems to be similarly afflicted with around 200 brigadiers and  generals  for a force of around 100,000 reducing. 

Perhaps this is a historical anomaly and recruitment and promotion are trapped in a time warp? 

I followed those figures up on  22nd July 2016:-


Current figures are for 2015:-

Thus the ratio of ranks is now:-


5.17 constables/sergeant
3.36 sergeants/inspector
3.44 inspectors/chief inspector
2.02 chief inspectors/superintendent
2.43 superintendents/chief superintendent
1.68 chief superintendents/ACPO rank

Are there too many chiefs and too few indians? The numbers above indicate a constable:ACPO rank of 493.78. Perhaps somebody more knowledgeable than I can comment on the significance of these numbers?
                                                    ______________________________________________

Latest figures and ratios are:-


5.11 constables/sergeant
3.40 sergeants/inspector
3.43 inspectors/chief inspector
1.80 chief inspectors/superintendent
2.76 superintendents/chief superintendent
1.55 chief superintendents/chief officer

The current ration of constables to police chiefs is now 458.56/1.   I have no idea of the optimum staffing ratios for an organisation like the police.  But I do know that with various constabularies rationing their investigative procedures public interest in these numbers is bound to become more critical.
 

SUSPENDING CUSTODIAL SENTENCES

Today December 1st the prison population is 86,859. Prison capacity is 87,411. That equates to the fact that prisons are at 99.37% of their capacity. It probably is not unconnected to the fact that suspending custody seems to be a preferred option when at all justified and at times without that justification. My last sitting was in March 2015. According to the Sentencing Council "the percentage of cases sentenced to a wholly or partially suspended sentence decreased sharply, from 6.0% in 2013–14 to 0.5% in 2015–16. This decrease coincided with the abolition of suspended sentences in the Magistrates’ Court for offences committed on or after 1 September 2014".  I therefore have no first hand knowledge of the current situation. But I do read court reports.  Caught driving whilst disqualified this person was given custody suspended. Why he was not banned for an increased period but subject only to six penalty points only those present in court would know.  A registered sex offender who re-offended in what one assumes in a similar fashion was given a suspended sentence at a magistrates` court. Perhaps a legal eagle can explain this apparent contradiction vis a vis Sentencing Council as above. However my main thrust today is the apparent proliferation of suspended custodial sentences notwithstanding again the figures above. In 2016, 56,317 offenders had a suspended sentence order imposed, representing five per cent of offenders sentenced. In the twelve months to June this year 1,216,915 were sentenced at all courts of whom 88,091 were sentenced to immediate custody and 55,450 to custody suspended. Figures for 2010 were 1,334,083, 103,770 and 48,976 respectively.  There are those who shout loudly that far too many offenders are imprisoned.  This dovetails nicely with the severe restriction on prison capacity; a situation wholly owing to government policy.  The single irrefutable fact is that when offenders are incarcerated the public is protected from their further offending. That fact is debated by criminologists as being no antidote to further re-offending after release to the detriment of that very same public. 

I doubt there will not be similar controversy for decades to come.

JURY REFORM IS ONLY A MATTER OF TIME

I have never served on a jury so my knowledge and opinions could be termed hearsay to some extent.  Lord Justice Singh certainly is an expert although from his exalted position he too has no practical experience of what it`s like behind closed doors sitting with eleven people he`s never met and trying to decide what would probably be a life changing decision for an individual.  

I`ve posted here more than a few times on problems with juries. Two such posts were 14th April 2015 and 13th February 2017.  L.J. Singh is following very very slowly in well made footsteps as is the snail paced progression on the legal topic so common when a government and senior judiciary are walking on eggshells.  He suggests eg that jurors should be presented with written information on presenting themselves for the forthcoming trial; my my, what a superb suggestion........no, more than that; what a brilliant suggestion that could only come from one so steeped in the law as a Court of Appeal Judge.  Judges are just too afraid to grasp the nettle.  There never will be confirmation but I suspect that there`s more than just a minority of judges who would gladly dispense with the jury system.  Perhaps their silence is one of intent.  Allow more cases to be seen to be called into question by irregular actions in or out of the jury room and the case will eventually be clear to all, so they might think, that judges are in a better position to ascertain innocence or guilt than the common man formally seated on the Clapham omnibus. 

In practical realistic terms should a potential juror firstly be restricted to being a British citizen?  Would it not be a simple matter to send to those selected printed or digital information of what is expected and what is prohibited? Should juries in England & Wales not be reduced to the odd number of 11 and requiring eg a 7:4 majority if unanimity cannot be achieved? And what about a juror with specialist knowledge  of some technical matters which might be heard in evidence. S/he would not need to consult Mr Google or Ms Wikipedia to know the truth or otherwise of these matters.  Is making his/her knowledge available to fellow jurors worthy of report to the judge, contempt of court and a re-trial?  I recall a case where my own expert professional knowledge was in direct contradiction of a witness`s evidence.  I did not withhold that information from my two colleagues and I do not consider that my action was against my oath.

There are of course many aspects of jury selection that can be criticised. If my previous posts as above have been perused any more comment now is superfluous.  But one thing I`m sure of: the jury system as currently prevailing is on borrowed time.  How and when it will be reformed or abolished is a matter for a TimeLord not a retired magistrate but it will come; of that I`m sure. 

I`M A VERY SILLY MP

Written parliamentary answers cost over £150.00. It is almost impossible to credit but recently a London Tory MP asked the purpose of supplying drinking water to witnesses at magistrates` courts.  No! I couldn`t believe it at first. The proof of the pudding is copied below.

LAW BY LOBBY GROUP

"So far there haven't been any prosecutions for FGM, so would you argue that the law about FGM should be done away with, too?"  That question was put to me in comments made by a commenter to yesterday`s blogpost.  It set me thinking.  Should the law or should legislation be enacted by parliament to, using the easily understood colloquialism, make a statement?  Take the example of early day motions which are motions submitted for debate in the House of Commons for which no day has been fixed. As there is no specific time allocated to EDMs very few are debated. However many attract a great deal of public interest and media coverage. EDMs are used to put on record the views of individual MPs or to draw attention to specific events or campaigns. Topics covered by EDMs vary widely.By attracting the signatures of other MPs they can be used to demonstrate the level of parliamentary support for a particular cause or point of view. MPs, especially those new to parliament, besides putting their cause in the public domain can put themselves into the public eye and add some lines to their website about how much effort they`re making to justify the votes of their constituents. But the law should not be about making statements.  The rule of law is the legal principle that it is law which should govern a nation as opposed to being governed by decisions of individual government officials. It primarily refers to the influence and authority of law within society particularly as a constraint upon behaviour including behaviour of government officials.The law serves many purposes and functions in society. Four principal purposes and functions are establishing standards, maintaining order, resolving disputes, and protecting liberties and rights. The law is a guidepost for minimally acceptable behaviour in society. It serves nobody if it merely advocates the opinion of the current legislature. 

The abhorrent practice of female genital mutilation has been against the law in this country for over thirty years but the history of its prosecution or rather non prosecution is abysmal: a single case prosecuted and the defendant was acquitted. It has brought the law into disrepute.  It has been treated with disdain. It is illegal to smoke in a car when there are child passengers. Being drunk in a pub is surprisingly illegal.  These two activities are and were driven by public opinion.  In the former to emphasise the dangers of so called passive smoking where there is some debate as to cause and effect and in the latter to satisfy Victorian morality activists of the evils of working class drunkenness. For different reasons prosecutions are virtually non existent. The Hunting Act 2004 was enacted by Labour under Tony Blair to appease his left wing. It was therefore a demonstration of power and intent rather than legislation to improve the well being of society.  It was for the very mirror in reasoning that persuaded Theresa May to put in its election manifesto earlier this year that if the Tories won a majority she would allow a free vote to overturn that act.  61.8% of all organised hunters charged with Hunting Act offences have escaped conviction.86 of the 165 Hunting Act charges made were dropped either before or at trial [52%]. 40 of these related to the big Heythrop trial. Complete statistics can be accessed here. 

There are other such laws that might be regarded similarly.  So to answer the question at the beginning of this post my response is that if legislation is enacted the will and the means to prosecute it must be available for all the law enforcement bodies associated. Failing to do so is a luxury we cannot afford. It is tantamount to rule of the mob where the mob is the lobby group or groups with most to gain for their own sometimes nefarious purposes.

A QUESTION OF LAW

Sometimes questions made to Ministers of the Crown indicate the ignorance of the questioner [in this case ; ignorance of max sentence on single count in magistrates` court] rather than merely a lack of knowledge expected of MPs. This question also leads one to question the necessity for legislation when its employment is rarely required. 

LINCOLN JUDGE FAILS TO PROTECT PUBLIC

There are those who would gladly scrap short custodial sentences ie six months or fewer and those who, knowing a particular sentence demands custody, would do all in their power and find all the reasons under the sun to suspend said sentence thus following recommendations from on high to keep our prisons from mass explosions of discontent.  

On the bench I presided over few occasions when a case involving firearms came to court and we retained jurisdiction.  About 15 years ago one such involved a fake firearm being waved in the face of an innocent bystander. Despite all the pleas from the defendant`s representative our legal advisor sustained our position that immediate custody in such a situation was the only appropriate disposal.  On Monday of this week the judge at Lincoln Crown Court considered suspending custody to be appropriate for a similar offence. I consider that HH failed in his duty of public protection. IMHO this is typical of the nonsense within our courts to follow government whispers to keep offenders out of jail. 

That same day in the same court before the same judge HH Simon Hirst once again suspended a custodial sentence for an offender who admitted dangerous driving by ramming two police cars and driving with excess alcohol. How can we have confidence in a system where such criminality is seen to be acceptable insofar as immediate custody seems to be not just a last resort but virtually off the table for incidents where nobody is actually physically harmed?  Indeed the Howard Leaguers and their ilk in our midst would indeed retain custody only for violent criminality.  The bestiality in mankind will not be removed by such sentimentalist sentencing.  How long must we go along this path?

SENIOR JUDICIARY HAVE NO CAJONES

Subsequent to the election of 2010 when G. Brown made his exit from 10 Downing Street and after kisses in the Rose Garden a certain N. Clegg and D. Cameron discovered that the objective of politicians before anything else eg philosophies, money, integrity or relationships is power and as much of it as possible.  Having acquired that state of being and appointing a cabinet to implement austerity; a laudable intention then as now, the appointee as Secretary of State for Justice and Lord Chancellor was Kenneth Clarke, he of the "my part of Nottingham loves the EU" party. When the Treasury issued its demands that year he was the very first Secretary of State to knock at the door of 11 Downing Street to offer his 23% reduction in his department`s budget. Plus sa change etc Yesterday`s budget included a requirement to make  £600m in savings at the MOJ by the end of the decade. The Treasury has committed to reduce the department’s spending from £6.6bn in 2017/18 to £6bn by 2019/20.  This forecast indicates a 40% real cut in funding for the Ministry of Justice from 2011 to 2020. One can almost hear the sound of the knife scraping the justice bone because the meat has already been removed. 

Our concept of justice underpins our whole way of life.  The Babylonians lent on by Moses a thousand years later pointed the way. Alfred the Great had his input. Magna Carta is rightly regarded as another milestone in the journey from the savagery of the jungle to the rights of man. The installation of Justices of the Peace nationwide 650 years ago and the right of indicted individuals to have a trial by jury were and are steps in the process to where we are today when a level playing field of the law court is witness to argument based upon an equality of arms before a blindfolded lady justice.  Or so it was but no longer.  The withdrawal of legal aid for all but the poorest has laid bare the myth of equality of arms.  A Crown Prosecution Service cheerleading increasing guilty verdicts irrespective of the state`s upending its end of the playing field  to achieve those verdicts makes one consider whether it would hope that ever more success would be measured by 80% guilty verdicts or 90% or perhaps 99% as in China.  Increasing court charges to make "offenders pay"; a policy by the toadying ignoramus Chris Grayling who also banned books from prisoners was rightfully rescinded by his successor.  Sacking thousands of prison warders and then looking aghast as prisons became places of fear for many inmates seemed to bemuse those in political authority although it provided the gloating MOJ press office with substance when announcements were made that recruitment of prison officers was going ahead successfully although numbers are well below those previously in place and required for prisons at 99% capacity.  A similar scenario can be sketched out about police, probation, forensic science and security forces allied to law and order. 

A country cannot put justice on a financial diet; indeed one likely to be an anorexic diet without damaging this pillar of our society to all our social detriments. Yet that is precisely what is happening. Only mass disobedience by the senior judiciary to their constitutional concept of being seen but not heard has a chance of altering this situation and sadly I don`t think their bewigged honours have the cajones for that.   

   

FOOD FOR LEGAL THOUGHT

During my time on the bench I sat on very few cases concerning indecent images of a child.  Those that do come to mind were of  category A or B and were of course sent to the crown court. The 21 year old male sentenced by Blackburn magistrates last week has in my humble opinion reason to feel aggrieved at a justice system which in effect came to its conclusion by finding him guilty by applying the concept of strict liability in theory if not in practice.  In England and Wales if you are under 18 you must have parental consent to get married. However, if you are 16 or 17 years old and you are from England and Wales you can be married in Scotland. The child in the case in question was 16 and had on her own initiative sent an image to her then boyfriend. The report is available here. It provides food for thought.

LESSONS LEARNED OR NOT?

On November 19th 2009 I published my first post for this blog on a host site which was taken down by its owners some years ago.  On re reading that post now copied below, no longer being an active member of the bench, I do not have the information to decide whether its content is as accurate now as it was then.  However judging by various although necessarily limited published reports I would not bet against the conclusions of 2009 being remedied currently.  That being the case it doesn`t increase my confidence that past lessons have been learnt by current participants at all levels of our justice system.

"Problems within the criminal justice system generally make the headlines on the relatively limited occasions when a serious mishap occurs. Unlike the NHS where most of us are "customers" the majority of the population has still just managed not to be engaged within the system although the numbers are gradually rising but that`s a tale for another time.

Most caring parents would never dream of giving a very naughty toddler even the mildest slap on the leg or arm for an action which the child could not possibly know was dangerous or in some other way to be avoided. When my own son was three years old and stuck the prongs of a fork into an electric point I grabbed the fork from him and made it clear that action could have been very dangerous and could have hurt him. A few moments later, whilst my back was turned he did it again. I took the fork and lightly slapped his leg whilst repeating the danger warning. I graduated the punishment to suit the circumstance.

Recently when faced with a defendant convicted of criminal damage and considering sentence the list of previous convictions showed he had first been before the courts in 2007 for criminal damage and had been sentenced to a community order. The next and final entry was again for criminal damage less than a year after the first offence. On that occasion he had been cautioned by police! Doesn`t seem right does it? Repeat the offence and the punishment is reduced.

Of course cases like that don`t make headlines but they give such a clear indication of the direction in which the Ministry of Justice and the Police are travelling. And these directions seem to be at right angles to each other. Would it not be better for us all to be travelling in the same direction?"

UNNECESSARY LEGAL BARKING

Since this blogger joined Twitter just over a year ago I have found it has proved often to be a very useful early warning system of events which reach daily newspapers and TV 24 hours later. Currently it seems there is what can usefully described as apoplexy amongst lawyers of both persuasions over the activation of section 162 of the Policing and Crime Act 2017 to ascertain defendants' nationality when they attend at the start of a case.  Since all criminal cases begin in the magistrates` courts I have been very surprised that there seems to have been little or no public comment from the Magistrates Association; another reason why I consider this body a total waste of time for your average Justice of the Peace. The furore from the legal profession seems to resonate about the possibilities of deportation for offenders.  In 2016 there were 39,626 people who were removed from the UK or departed voluntarily after the initiation of removal. This is down from 41,879 in 2015. This figure excludes individuals refused entry at port and subsequently removed, in order to focus more closely on what most people normally think of as ‘deportation’. Of the 86,000 people in prison about 10,000 are foreign nationals. On 6th June last year during a House of Commons debate The Secretary of State for the Home Department (Mrs Theresa May) said "Since 2010, the Government have removed over 30,000 foreign national offenders, including 5,692 in 2015-16—the highest number since records began. The number of removals to other EU countries has more than tripled, from 1,019 in 2010-11 to 3,451 in 2015-16. We aim to deport all foreign national offenders at the earliest opportunity; however, legal or re-documentation barriers can frustrate immediate deportation. Increased rates of detection can also lead to the population of foreign national offenders increasing despite a record number of removals". In order to have accurate statistics it does not seem unreasonable that when a defendant is asked to identify him or herself that declaration of nationality or citizenship should be added to name address and date of birth.  None of the legal Twitters on my time line has offered reasoned argument why this process is so objectionable.  An editorial in today`s Law Society Gazette also fails to impress.

Regular readers of this blog will know I am a firm upholder of the rights of individuals in the criminal justice system and no friend of authority. Lawyers should use their bite where it can effect change  but  I fear the louder this legal barking the less effective it will be in practice because in this matter there are no intruders at the door.

MUSINGS ON MONDAY (2)

Three situations under the general umbrella of law `n order appeared on my screen recently.  Each in its own way served up controversial decisions which could be said to be thought provoking. 

The jailing of prolific offenders who steal to feed their drug and/or alcohol habits is not going away.  These people are usual pitiful examples of  lives gone very wrong.  All the state has at its disposal is to wait until the offending has reached a point where all attempts at non custodial remedies have failed.  At the risk of boring a regular reader this failure is a disgrace in a supposed civilised society which is afraid to look reality in the face if the actions or inactions of its political representatives are a guide.  Some people do need to be incarcerated perhaps unwillingly for their own good and for the good of society. The route to so doing is not through the courts; it should be through a medical pathway.  Sadly I doubt I`ll ever see such a radical change in thinking. The miserable creature who was jailed at Wigan Magistrates` Court last week is a perfect example.  Her story as reported should be a stain on many consciences. Yet every day in every magistrates` court there is a similar offender.  And the story goes on. 

A prolific and violent offender has won £78,500 damages from the Home Office for being unlawfully detained.  Read the report here on how this man whom the government would dearly love to kick out was rewarded.  Read the judge`s remarks. It seems that no balance was considered.  Irrespective of his actions in this country the "injustice" of executive actions was the only consideration. I wonder if in the judge`s mind there was no limit in the evil that this individual could have perpetrated that would have altered his conclusion?  If that were the case, and of course we`ll never know, then the law is an ass.

And finally the Howard League for Penal Reform, a lobby group run by the obsessive  Frances Crook, invited the Metropolitan Police Commissioner to give a lecture.  Surprise surprise Ms Dick did not tailor her words to suit her host. She gave her honest opinion on what steps need to be taken to reduce the horrendous toll of young black men stabbed to death in London by other young black men.  Hats off to Miss Dick.

MAGISTRATES` COURTS` SECRET VERDICTS

For the sake of argument for this post please assume there are main three levels of jurisdiction in this country: the magistrates court and its Scottish equivalent the Justice of the Peace Court, the Crown Court and its Scottish equivalent the Sheriff Court and the Supreme Court of the United Kingdom. The Crown Courts sit with a judge and jury.  In Scotland the procedure followed might either be solemn procedure, where the Sheriff sits with a jury of fifteen or summary procedure where the sheriff sits alone in a bench trial.The lowest courts in both jurisdictions can be presided over by a single J.P. in Scotland or a District Judge(MC) in England & Wales. Those individuals are in fact acting as both judge and jury if not executioner. In England a single magistrate can now act on supposedly simple speedy summary cases eg failure to have a valid ticket to travel on London buses or tubes. There is reason to believe that current requirement to have as the norm three magistrates per bench and two if absolutely no third is available is not carved in stone and that we will  increasingly experience courts sitting with the single professional District Judge presiding. But that is looking in the crystal ball.

In Sheriff Courts under solemn procedure a requirement for a verdict is simple; the jury is asked its decision and whether it is by majority or unanimous. Crown Court judges will ask for a unanimous decision or a majority of 10 to 2 if that change would render a verdict. Anything else and a mistrial would be declared.  The Supreme Court is constituted so that a majority decision is accepted where unanimity cannot be achieved. The form of verdict is announced publicly in both courts. Where it is not announced publicly is in the Magistrates` Court with a lay bench where a bench of three having made its decision does not indicate whether it is a majority or unanimous decision.  During my active career I found and still find that this is not justice being seen to be done. It is secret justice. At the very least declaring a majority decision would give an indication as to the strength of the case presented by the defendant declared guilty.  At the most it would allow the offender who had the means and/or the ability to consider the option of appealing to the Crown Court where the case would be reheard in front of a judge sitting with two different Justices of the Peace. Indeed taking it a step further, a majority decision could be grounds alone to appeal.

I am sensible enough to know that my  opinion is not worth even twopence. Such an extension of citizens` rights is totally contradicted by government actions over the last 20 years. Courts are increasingly sacrificing justice for pounds.  Magistrates` Court closures affect the poorest of defendants with much increased travel costs; the virtual abolition of Legal Aid for all but the very poorest of the poor has led to increasing numbers of equivocal guilty pleas as has the imposition of court costs eg the now terminated Criminal Courts Charge based on the MOJ`s demands that courts should be self financing: in itself a concept that is incompatible with a nation that pre supposes Justice to be a pillar of democracy.  

All this is taking place with a supine parliament the competence of which is being shown almost daily to be devoid of intellect except for a minority of individuals who whilst not being a Burke or Fox or Churchill or Bevan still appear to have a philosophy of good intent for the individual citizen as the basis for their involvement.

MAGISTRATES ASSOCIATION PLAYING POLITICS WITH STATISTICS

There is a disturbing article in today`s Law Society Gazette in which Sheena Jowett, deputy chair of the Magistrates Association, told a Westminster Legal Policy Forum seminar on probation services that magistrates were in effect sentencing to immediate custody offenders about whom there was little knowledge owing to the privatisation of probation services. That policy and others initiated with great enthusiasm by possibly the worst Lord Chancellor in living memory Chris Grayling MP was heavily criticised by those in the legal world with knowledge of the likely results.  Nevertheless it went ahead as part of "austerity" and the probation baby was thrown out with the money saving probation bathwater. It has surprised nobody that myriad problems are resulting. 

During my time on the bench probation held regular meetings open to all JPs where policies were explained and comfortable inter action encouraged.  I recollect attending community payback schemes and attendance centres. I was not discouraged from ordering senior probation officers to court to castigate them when my colleagues and I felt that procedures were inadequate an/or explanations required on specific cases.  The rate of immediate custodial sentences in magistrates` courts in my experience was about 2-3%. Yet now the MA asserts that offenders are being jailed unnecessarily owing to the accepted problems with probation services. According to the latest figures from the MOJ this is just not the case. 1.5% of summary cases conclude with an immediate custodial sentence.  The ratio ten years ago was 2%.  See chart below.

I would opine that the logical conclusion of the MA`s presentation was to give a false analysis of the current sentencing levels to advance its own political position. That position has been for many years that maximum sentencing powers be increased to 12 months from the current six. There is no doubt that the probation service is under awful strain as a direct result of government policy.  There is no doubt that individual probation officers are doing their best to cope but there is certainly doubt as to the conclusion reached by the Magistrates Association that more offenders are unjustifiably being imprisoned. 

SENTENCERS SHOULD LEAD OR BE LED?

In the past I have posited the question of whether in sentencing offenders judges should be leading public opinion or following it. Since all sentencers must follow Sentencing Guidelines or explain in public if such Guidelines are not adhered to variations in sentencing can be said to be less disparate than perhaps a decade ago.  The largest increase in prisoner categories over this last decade is that of sex offenders and around 20% of prisoners can be so classified. This is of some concern to prison authorities for a number of reasons; in particular the ability of the prison estate to accommodate those who must be segregated for their own safety and the realisation that many will be unable to benefit from any form of rehabilitation.  This latter problem leads on to the fact that there is no real understanding if and/or how such behaviour is hard wired into the brain.  So there is no doubt that in sentencing such people judges often have a difficult job. As far as I am aware and I`m open to correction, no statistics are kept on the sentencing practices of judges. It is, however, an open secret, that barristers have a keen awareness of which judges can be considered "hard or soft".  HH Judge Tabor is not  of the former disposition.  He has form as far as his tolerance of offenders who might have fared very differently in front of many other crown court judges. Prison is to deter miscreants, deprive them of liberty and where possible to rehabilitate them. It costs about £35,000 weekly to incarcerate an offender averaging the costs of prisons of various categories.  There is substantial pressure not to impose immediate custodial sentences now that prisons are at bursting point with almost 86,000 inmates. It can be said that public protection is a factor in sentencing and many would argue that an inmate inside cannot hurt the public.  Others would of course disagree. Be that as it may Judge Tabor has again dismayed many when, last week, he gave a sex offender the benefit of the doubt and allowed his custodial sentence to be suspended.  There are some (many?) people who would be pleased if castration, chemical or surgical, was the default sentence for most serial sex offenders. In our enlightened times they are given short shrift by the same members in society who consider Leave voters to have been racist ignoramuses.  Leaders or the led........who is to tell us which way is better to reduce the criminality in our country?