SUSPENDED SENTENCING ORDERS SHOULD FOLLOW THE ORIGINAL STRUCTURED APPROACH

When sitting with colleagues  recently appointed I occasionally reminded them that we had a duty of public protection ensconced within the formulaic information overload that they were doing their best to absorb.  It was a function that was rarely if ever mentioned in any training course and one with which  most new colleagues could immediately feel comfortable as they were faced for the first or second occasion when the custody threshold had been breached.  For many the realisation that their decision meant that a fellow citizen`s  liberty was being taken from them was a sobering  moment.  Such decisions and the structured approach employed to achieve them were perhaps most significant when it came to deciding if a custodial sentence could or should  be suspended.  The pressures on so doing were and are enormous.  At all levels from Secretaries of State to L/As via PSRs and trainers,  the lower courts in particular  are being “asked” to  employ some form of rehabilitative requirement and to eschew immediate custody. 

There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.

Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.


The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of a suspended custodial sentence is a very hot potato. Sentencers only chip away to its underlying principles as best as they can in order to use it justly for all involved.  

The latest twist in the saga of suspending custodial orders has been revealed by the Sentencing Council.  Incidentally I sometimes wonder whether this organisation is the wagging tail of the public opinion dog. Whatever its anatomical relationship to the concept of sentencing once more it is changing direction as this report of a circular released by its chairman Lord Justice Treacy reveals. 

 “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

“In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”

Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In short all this hoo ha stems from the failure of some sentencers and probation officers to follow a recommended sentencing structure in which a suspension of a custodial disposal can take place when and only when  the custody threshold has been breached.  It would make more sense if all those involved followed the practice intended.  Even those with some influence seem to be mesmerised by this topic.  Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences.

She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective”

The only conclusion I can arrive at is that the simple sequence in a structured sentencing policy that would satisfy the original and not unreasonable reasons for the option of suspension of custody has been ignored and needs to be re-visited. 

ANT McPARTLIN//COMMUNITY SENTENCE MORE SUITABLE?

I have blogged on the topic of fines a few times over the years  Indeed insert fines into the search box and they can be read by anyone interested. All this came back to me on reading of the £86K fine to multi millionaire entertainer Ant McPartlin for drink driving.  It would appear that he was fined at Band B [100% of weekly income admitted at £130K] with one third reduction for early guilty plea.  Considering the damage done to a third party it was surprising he wasn`t also charged with careless or dangerous driving in addition. Be that as it may, the financial imposition will make absolutely no difference to his current or future life style. Surely the public humiliation of community service would have been more appropriate in his case and for others whose vast fortunes and/or incomes render financial penalties a sanction without meaning.  

JPs, JUSTICE, AND POLITICS

By now I would imagine that anyone remotely connected with the workings of our courts will be aware that dozens of barristers` chambers are refusing to undertake legally aided work to represent defendants in crown court.  That it has come to this is a sad situation.  Despite repeated warnings to the MOJ by the criminal bar that the financial returns especially for those recently called are such that practitioners could not continue subsidising their state underfunded work government refused to act. Now the Law Society has issued its guidance to solicitor advocates to consider carefully their position. 

In the magistrates` courts where 95% of criminal cases begin and end magistrates have been aware for years of the iniquities within a system that attempted for example  to exhort unrealistic payments from defendants found guilty; 2015 Criminal Courts Charge; legislation so burdensome and ill conceived that it was repealed. Along with many other inefficiencies there was widespread concern that defendants were pleading guilty only because they feared the financial costs of going to trial and being found guilty. It is thought that as many as 20% of trials are conducted with a bench of two; a further sign of problems over the horizon. Yet J.P.s` representatives have been silent about the difficulties and problems of which they are all well aware.  Their parrot like response is that justice would be imperilled if they entered the political arena.  I would opine that magistrates have themselves allowed justice to be denied to many by their very avoidance of stating clearly and loudly that the courts system with all that that entails is not fit for purpose. They paid lip service to the closure of hundreds of courts thus increasing costs for witnesses despite the fake news published by the MOJ on increased travel times. They whimpered when that Criminal Courts Charge came into being exactly three years ago for its short lived existence.  Magistrates considering their having no financial interest in their occupation of the bench  could demonstrate that their concern for justice overrides the passive position they have traditionally taken. They don`t. They assert that justice would be sacrificed if they involve themselves in the politics of justice.  To use once often quoted phrases that once distinguished our summary justice system but no longer are guaranteed to exist...........level playing field, equality of arms etc  when the rules change changes to the game are inevitable.  The change which I hope and believe will eventually happen is that the bench in the face of unreliable CPS operatives and unrepresented defendants must come off the fence and become inquisitorial in the manner of many continental benches. Failing that there cannot possibly be justice for all as we have proudly proclaimed for many decades. 

FAILING JUSTICE? IT WAS EVIDENT IN BRADFORD 8 YEARS AGO

Those who inhabit our courts system have been getting more air time and media attention over the last few months than normally has been the case.  Most of the shortcomings now affecting justice have not materialised out of the ether or from rubbing a magic lamp; they began almost exactly eight years ago.  In 2009 I began this blog on a site now long since departed the cyber world but I did save all the posts. I have copied below such a post which should demonstrate that what we are now experiencing was evident in embryonic form when all the legal world was supposedly hunky dory. 

BRADFORD CROWN COURT OVERWHELMED WITH TRIALS BACKLOG

by TheJusticeofthePeace @ 17. Apr. 2010. – 12:10:24

The Ministry of Justice is closing Magistrates` Courts at quite an alarming rate. The driving force is the need to reduce costs. Various reasons are added to the mix to lesson the raw impact of that political word; "cuts". It is being said that crime is falling but that depends on what figures one believes. It is widely recognised that by allowing police officers and laterally uncle Tom Cobley and all to issue various forms of fixed penalties offender numbers at court are greatly reduced.

Over twenty thousand cases annually are tried as either way offences at Crown Court. It has been suggested that if Magistrates` Courts were allowed to increase their sentencing powers to twelve months custody many more matters would of course be brought within their jurisdiction. These sensible options had they been effective would have eliminated a difficulty which receives virtually no publicity; the backlog of Crown Court trials.

Officials at Bradford Crown Court are wrestling with just this problem. Instead of the usual 450 trials within the system there are 750 pending. Court manager Adrian Marshall said the situation was due to an increased number of cases being committed to them by magistrates, but the reasons for that were unclear. It seems to me, a distant observer with no inside knowledge, that there is only a limited number of perfectly obvious reasons some primary and some secondary. Of the former;
not enough courts, not enough judges, increased criminal activity. Secondary reasons are; increased numbers of defendants in either way matters opting for Crown Court trial by judge and jury instead of summary trial before magistrates under utilised Magistrates Courts which could be remedied by increasing powers as above

The court manager at Bradford Magistrates` Court is quoted as saying,“I can’t establish a reason why there has been this increase, but the feeling I get is there is more serious crime coming through, and I think there are more sexual offences occurring.” That answer doesn`t fill this observer with confidence. Once again it appears that whilst justice per se is still generally of a very high standard and the practitioners involved working very hard sometimes for minimal financial reward the administration of said justice is often shambolic. However all this maladministration is usually below the waterline of public awareness. How many more Bradford Crown Courts are there?

READ ALL ABOUT IT! STRAIGHT TO THE POINT

When I was active  as a chairman I rarely if ever used the pronouncements as listed in the Bench Book. I was not an actor with a script; I spoke to witnesses and defendants as I would have liked to have been addressed were I in their position. Most of all it meant that simple English was used that would be understood readily without need for further explanation unless of course a witness had English as a second or third language.  The chairman of the bench at    Flintshire Magistrates’ Court at Mold, was to the point when he told an offender, "you were conned".  He was referring to so called advice given by this firm of solicitors. A clap on the back from me to the chairman. Read all about it.

WHEN GOVERNMENT LIES WE`RE DOOMED, WE`RE ALL DOOMED

For the last week many barristers have refused to undertake legally aided briefs at crown court.  They have been driven to this desperate action by the miserly rates of pay offered by the Ministry of Justice. I am not proposing to discuss the rights and wrongs of this action but to point out the lack of coverage in many? most? national media including TV. Indeed although most days I catch bits of Sky, BBC and Channel 4 news programmes the lack of reports appears suspiciously like news management from Petty France where the MOJ has since 2010 been conducting the emasculation of our once heralded justice system. It seems that no news is the watchword.  However in the week when the Home Secretary tries to assert that drastic falls in the numbers of police officers have no significance with regard to the increase in knife crime, a view which has been demonstrated doubtful to say the least, especially in London it is instructive to discover that this major department of state described by a former Home Secretary John Reid a decade ago as being "unfit for purpose"   lied to parliament and the public when Theresa May was in charge. In 2016 against many opposing views the government legislated that schools had to collect data on their pupils` nationality and country of birth.  Many groups and organisations and parents refused to co-operate. During this time the Home Office then under our current prime minister`s regime  made it clear that the information to be collected by the Dept of Education would not be passed to its (Home Office) control for immigration purposes but that it was needed to help pupils whose first language was not English. This was an out and out lie that was recently discovered under freedom of information legislation by Schools Week.

Such actions are a disgrace to what we still consider to be our democratic way of life. It gives credence to conspiracy theorists who would see the country under the control of Jews, Masons and all manner of beings bent on reinforcing those misguided individuals` irrationality and prejudices.  This is apparent now within the Labour Party where discussion once taboo is being repeated as fact; where it is acceptable to demonise groups; where scum like Nick Griffin a nazi apologist is intending to vote Labour. See tweet below.

When government is and is seen to be lying through its teeth the bells should be ringing out loud and clear that, as the late John Laurie of Dad`s Army fame was wont to put it; "We`re doomed, we`re all doomed". 

JURORS` KNOWLEDGE BOUNDARIES

I have posted from time to time on jurors and juries. Use the search box if required to find a few previous contributions. According to an interesting piece in the "Conversation" juror problems are on the increase.  Apart from a fact that really annoys me insofar as jurors do not have to be British citizens nor demonstrate their ability to comprehend possibly intricate constructions in the English language a juror`s individual knowledge which is in conflict with evidence is not addressed. My own professional experience and knowledge when I was active was in direct contradiction of a witness`s evidence. This was not knowledge gained by using the Internet or a reference book which is expressly forbidden for magistrates just as it is for jurors; it was in my memory and for justice to be done I informed my two colleagues with 100% certainty  that the witness had lied. If I had been a juror would demonstrating that knowledge have led to my being reported to the judge and held for contempt?

With the secrecy of the jury room more closely guarded than a papal conclave I do not know the answer. With judicial hints that judge only trials are likely for one reason or another to become more common such a minor point as above might assume increased significance.  As eligible citizens we have a right to know where the boundaries are? 

CPS BOSS IS A SYMBOL OF A NATION IN DECLINE

The recent case of a doctor being struck off after being  convicted of manslaughter by gross negligence has been the subject of much interest from Twitter lawyers and medics. I offered my own view at the time that in order to retain public confidence the conviction and subsequent decision to remove her registration was correct.  Now she has been granted an appeal against the ruling by the General Medical Council. It seems much substance will be made of the institutional failings within the NHS which contributed to a great extent in her failure to perform her duties adequately and led to the tragic death of a child in her care.  It appears to be another case to be excused by an ism. It began when Stephen Lawrence, a black British man from Plumstead south east London was murdered in a racially motivated attack while waiting for a bus in Well Hall Eltham on the evening of 22 April 1993. The subsequent report, The Macpherson Report published on 24 February 1999, found that the police investigation into Stephen's murder was “marred by a combination of professional incompetence, institutional racism and a failure of leadership by senior officers. Since then the problems within an organisation have often proved to be an alibi for personal incompetence. Social services departments` failures  have been used to some extent as excuses for those working within them in cases of grooming of girls by mainly Pakistani men. 

Comment on the news earlier this week that Alison Saunders Director of Public Prosecutions aka chief of the CPS has focused on the failures of the institution rather than the serial incompetence and rotten decision making of the lady herself. This derogation of responsibility is a further sign of the moral authority we vest in senior public servants and politicians being diminished. What begins at the top as sure as night follows day percolates through society like a hot knife through butter so that individual responsibility becomes a rare commodity and those abusing it are all the more likely to evade their just deserts. This is what we are becoming; a country in decline where nobody is blamed for the problems and institutions continue to fail.  

SECULARISM AND SENTENCING REMARKS

The National Secular Society has raised an interesting point about the appropriateness of a judge`s comments.  At a recent sentencing hearing Mr Justice Haddon-Cave sentenced the Parsons Green bomber Ahmed Hassan to life in prison and ordered him to serve a minimum of 34 years. As he closed his sentencing remarks at the Old Bailey he told Hassan he "should understand that the Qur'an is a book of peace; Islam is a religion of peace".  

Personally I am atheistic in my approach to the wonders of life and how we live it but IMHO castigating the judge for what I consider as pertinent comments was misplaced zeal and an over reaction.  NSS chief executive Stephen Evans wrote that the judge's remarks had "undermined the principle of judicial impartiality and the universal applicability of secular law" and added "judicial office holders must be expected to treat everyone equally before the law, regardless of religion or belief". I wonder therefore if Mr Evans considers hate crimes to be unlawful pieces of  legislation or to be correct "religiously or racially aggravated offences"?  In such cases whether one agrees or not the motivation of the offender is an important consideration and is likely to increase the sentence imposed.  

I will not repeat many other remarks in the report as there is a whole page on this topic on site.   Suffice to say the NSS has shot itself in the foot in this matter and will not encourage wavering  believers to its cause by this ill thought out diatribe against a judge doing his job on behalf of all of us secularists included. 

MUSINGS ON WEDNESDAY

The case of the black cab rapist today took another turn insofar as the Parole Board has been criticised for its earlier decision to grant him early release under license.  The details are available in many media for those few who are unaware.  My point, however, is that the Board was accused of being secretive by the High Court which overturned the original decision.  It said that justice must be "open".  Perhaps the same criterion will be applied to the lower courts where if HMCTS has its way increasing numbers of cases will be tried by video and where single justices in a closed courtroom or office will hear bundles of seemingly "simple" cases; eg failure to pay council tax or TV license.  Some motoring cases will also be tried in similar fashion. Somehow I doubt it.

To my recollection in all the years I was an active JP I can recall only two cases of "theft by keeping". This report in the Mirror offers a simple explanation. 

Virtually everyone who drives regularly will have had the experience of receiving a ticket for parking on a yellow line.  It seems if one is in Suffolk such a transgression is likely to go unpunished. 

A JUDGE`S PARALLEL UNIVERSE

When a convicted offender cannot be sentenced without a pre sentence report from the probation service and the offence is so serious that s/he is warned that all options are open including custody the court must decide whether s/he can be remanded on bail until the date set for sentencing. In such a situation the court must do all it can to ensure the offender will return on that date.  In the case of a non British citizen surrender of a passport might be required. Indeed such an order might be applied to a British citizen whom, for whatever reasons, the bench considered to be a flight risk. An offender might be tagged or be required to report daily to a police station.  The court, in short, has wide powers to do its utmost so that justice will be done.  In the case of a serious sex offender to be sentenced at crown court to allow him to enjoy a pre booked holiday seems over generous.  To release him on non conditional bail is IMHO a disgraceful failing by a judge who seems to be living in a parallel universe.  For her sake I hope the offender appears when he is due. A report in MailOnLine is available here.

ON THE OUTSIDE LOOKING IN

Some of us recognise inefficiencies without their having had any personal effects on our personal lives; some don`t.  Some of us are responsible for these inefficiencies; some are not.  Some of us endeavour to put right these inefficiencies; some do not.  My biggest grouch is reserved for those who can rectify inefficiencies but choose not to do so either through indolence, disinterest or fear.  As can be noted from all the political clap-trap of late all major parties are placing the reduction or removal of inefficiencies within government in its broadest sense as a prime requirement to reduce the deficit caused by the government`s failure itself to control ineffectiveness in various financial supervisory bodies.

I could comment on the Ministry of Justice in general in this regard but not today. But I can comment on the courts` system in particular. Whether or not  these comments are typical of a general malaise I can only refer to my previous blogs on the Crown Prosecution Service where many ex colleagues and I were well aware of its being unfit for purpose  long before the official inspections proved us correct.

A few years ago a friend approached me for advice.  He had been summonsed as a witness to a neighbouring court.  I inspected the summons which stated clearly the time and date at which he was to be available at the named court.  Indeed the court was named but there was no mention of its address or telephone number.  I wrote a letter and made a couple of calls receiving an unapologetic reply that the matter would be looked into.  As is often the case my friend duly turned up to do his duty but the case was adjourned because on the morning the interpreter who had been booked did not turn up.  When, a few weeks later, my friend received another summons the court`s address and telephone number were on the summons.  I took four  points from that. How long had the previous design been in use, what individual or more likely  what committee had approved the design,  how much had it cost to re-print  and how many witnesses failed to appear as a result?

Within the Magistrates` Courts system there are many varied activities; some courts are very busy and some less so.  In a major city court building where perhaps six or more courts are sitting simultaneously  in the remand courtroom there are invariably listed more cases than can be dealt with and the excess cases will be decanted to another courtroom where for one reason or another there is spare capacity. In a small court in a suburb or in the shires where the building has not yet been closed under the Ministry`s drive for "efficiency" ie reduce costs if eg a trial does not proceed JPs can be left sitting around with nothing to do; an activity which the Ministry is not too concerned about because JPs are unpaid volunteers. But when that inactivity is due solely to CPS inefficiencies which should and could have been sorted by a ten year old child one really does despair.

For any number of reasons many Magistrates` Courts are listing trials three or four months ahead.  Justice delayed is justice stayed.  Many magistrates enjoy the experience of sitting away from their home courts perhaps to examine their own competence with new colleagues and legal advisers whose procedures might provide a learning experience and/or the need for some additional thought to what as in many skilled professional jobs can become somewhat routine activities.  Such was the case with a former colleague. A neighbouring court in the county required additional chairmen JPs to help clear a backlog of trials. She volunteered to attend. Although all parties, CPS prosecutor, defence counsel, defendant, interpreter, police witnesses for the prosecution and a witness for the defence were all in attendance the prosecutor`s case file had not reached the court  and had gone missing.  The story of this missing file is an example of such gross incompetence and lack  of interest in procedures by those concerned that I tell it here as she relayed it to me.

The file was held at local CPS office to be sent to "her" court, one of three courts in that CPS area. The Government Mail Department is responsible for the delivery of all such files. Complaints by the bench to a very senior person at the CPS elicited the information that it had been left at the CPS in a sealed envelope addressed to the court. No information on whether the procedure of collection required a signature or time stamp on some log. The courier service confirmed that all files that morning had been collected and delivered. My ex colleague enquired about procedures usually employed at the court for acceptance of such files.  She was told by a court official that the files are left in an office by the courier; they are not checked on receipt or signed for.  Her conclusion was that the missing file must have been delivered in error to another court building in the county and if all other courts operate such non procedure procedures it probably would have remained there until some curious individual looked inside.

The senior CPS person promised to provide a full written explanation in due course.  The upshot of this tale of woe is that the three magistrates who had apparently all come from their home courts for the morning sitting had nothing else to do as in that particular local small  court building there was only one other courtroom  functioning and the list was not unduly overburdensome for its bench.

Any  number of people involved could and should have been alerted to the inherent inefficiency that was in operation.  Meantime a complete CPS case file containing highly sensitive information went missing. If this weren`t a Justice of the Peace blog I`d say this waste of public time and money was criminal.........but since it is such a blog I`ll content myself as describing those involved whoever they might have been as highly culpable. 

Now I am a passive observer of and no longer an active participant in court affairs.  From observations and accounts heard and read from various sources it would appear that today  HMCTS and CPS in combination are presiding over a much more inefficient courts system than I ever experienced.  I`m very pleased to be where I am; sitting on the outside looking in.

THOUGHTFUL

News from magistrates` courts and stories about magistrates have been thin on the ground of late but two articles have caught my attention: a very interesting piece about "victims" was printed in the The National last week and Family Law Week published a very thoughtful essay by David Bedingfield, barrister. 

JUDICIAL BLINKERS

Members of the judiciary including those on the very lowest level i.e. magistrates, face the prospect of a rap across the knuckles or worse if they fall foul of what the superbeaks at the Judicial Conduct Investigations Office deem to be appropriate behaviour.  There are few who would not argue that magistrates are far more likely to be contenders for judicial castigation than their senior professional well remunerated colleagues. Indeed a cursory glance at the reasons why three J.P.s this year have been already sanctioned for what some might say are merely minor behavioural infringements adds weight to that impression of unduly robust censure for  magistrates.  

A recent Appeal Court ruling on a Deputy District Judge`s behaviour will almost certainly sustain the belief of the professional judiciary`s near immunity from public sanction except when the matter reaches and is concerned with a wider audience.  Spend a few minutes reading the Law Society Gazette report and the accompanying comments and come to your own conclusions on whether or not judicial blinkers are in use depending upon the situation. 

JUSTICE DOWN THE PAN

Anyone vaguely connected with the justice system is aware of the reduced level of service at all levels as a result of the unadmitted and shameful reduction in financial support for these services.  Indeed in 2010 when he was Justice Secretary Kenneth Clarke MP, he of the REMAINER till I die persuasion, was proud to announce that he had slashed his budget by over 23% before the then Chancellor had broken the news. Now it`s official and public knowledge that Justice has taken the biggest hit of all government departments since then. What an indictment of Coalition and Tory attitude to this indispensable safeguard for our democracy and system of government. For them it was and is justice down the pan.

THE OLDEST VIRUS

I have never previously copied a complete news report of a case preferring readers to access the link if they so wished. However the issue of anti-semitism, the oldest virus, is appearing in much of the media of all kinds to an extent never experienced in my lifetime. It has even infected the upper regions of the Labour Party and publications like the New Statesman.  Anti-semitism is unlike most other forms of racism insofar as it has appeared throughout history and in areas where there has been public insecurity and dissatisfaction with the political process. England has had its fair share. In the late 12th century, members of the Jewish community in Lincoln settled in York. However, there was growing hostility towards the Jewish population in England. This was in part due to public disagreements in theology between Jewish scholars and Christian churchmen. In the mid-12th century several vicious stories were spread accusing Jews of murdering Christian children. Such slanders, now known as the ‘Blood Libel’, strengthened anti-Semitic sentiment in England and in 1190 all the Jewish population of York was trapped by a mob in Clifford`s Tower.  One of the mob’s ringleaders, Richard Malebisse, had offered safe passage to any Jews who agreed to convert and leave the tower. A few took this option, only to be murdered as soon as they came out from the burning building. Afterwards, the rioters destroyed the records of debts to the Jews, which had been placed in safe-keeping at York Minster.The triggers for the massacre were many. The calls to crusade in the Holy Land made many Christians sensitive to the presence of non-Christians in England. These feelings may have been heightened by the approaching celebrations for Easter, when the Church preached that the Jews had connived at the death of Jesus. Some rioters also saw the possibility of clearing themselves of debts to the Jews. All remaining Jews were soon after expelled. Only in 1656 Oliver Cromwell allowed Jews once again to enter England.

Anti-semitism is often described as anti-Zionism by its proponents. Nobody would deny freedom to criticise the State of Israel, its policies, its politicians or aspects of its society as would be the case with any country but all too often these critics reveal themselves  to be blatantly critical of Jews being Jews whether in Israel or anywhere. And so to the report copied below from Jewish News.

The performer Alison Chabloz, on trial this week at Westminster Magistrates’ Court over three songs alleged to be antisemitic, was repeatedly denounced as a Holocaust denier by the Crown Prosecution Service barrister Karen Robinson. But Ms Chabloz, giving lengthy evidence on her own behalf in a delayed second day in court, insisted that her songs were “satire”, that she was “an artist”, and that freedom of speech meant she was entitled to her opinions. Ms Chabloz is facing five charges of sending, or causing to be sent for viewing on social media, several videos of her playing three songs, two of which were performed in front of an audience of the London Forum in September 2016. She is said to have embedded a link to one of the performances on a WordPress page she runs, called “Tell Me More Lies,” and posted a separate performance on YouTube. But in nearly two hours of testimony, Ms Chabloz insisted that “many Jewish people find my songs funny”, and claimed that there was no “official” evidence that gas chambers had been used as a murder weapon to kill Jews during the Holocaust. Defending the lyrics of her songs, which include the description of Auschwitz as a “theme park”, Ms Chabloz referred repeatedly to “the so-called Holocaust” which she said was “a fiction” designed to facilitate “the criminal Jewish state” in Palestine. She complained about the “official narrative” of the deaths of six million Jews and deplored the practice of sending schoolchildren to visit Auschwitz, which she said was”allowing the so-called Holocaust to be used as a manipulative weapon to prevent nationalist feelings among Europeans”. It was used, she said, to “persecute Holocaust dissidents in democratic countries.” The Holocaust, she declared, was “used for Machiavellian ends”, and claimed that “there are plenty of Holocaust revisionists who are Jewish.” She described herself as a Holocaust revisionist rather than a Holocaust denier, but said that there had never been “an official investigation” into many of the claims made about what happened during the Second World War. Prosecutor Karen Robinson asked the defendant over and over again to explain the lyrics of her songs, which she said had been deliberately set to well-known Jewish melodies such as Hava Nagila in order to cause maximum offence. But Ms Chabloz denied this, and said she had no hostility to Jewish people. She had the right to express her views, she said, and disagreed vehemently with Ms Robinson who said that such views as expressed in the disputed songs were “racist”. “Some may say that”, Ms Chabloz said, smiling broadly. She said that her very presence in court was “proof” of an external control of the media, society, the banks and even the justice system. There were “a disproportionate number of Jews in the media, the Houses of Parliament”. And, she added: “I strongly disagree that [my lyrics are] racist. The love of a people for its country is not racist and could equally be applied to Israel and Jews”. No-one, she said, was forced to listen to her songs and she did not accept that they were grossly offensive, instead insisting that they were “funny” and that those who were offended “were offended at being laughed at”. Ms Chabloz said her attacks were aimed at “Zionist Jews” and that “Orthodox Jews don’t want a state of Israel”. When Ms Robinson said that her songs “targeted Jews because they are Jews”, the defendant responded: “There are plenty of Jews who find my songs funny”. One of the three contested songs, (((Survivors))), using the “echo” brackets said to identify Jews on line, focuses on the experiences of three survivors, Irene Zysblat, Elie Wiesel and Anne Frank. Ms Chabloz said stories of all three had been debunked, and that she had chosen to write about them “because their tales are dubious”. A written submission to the court was provided by Ms Chabloz’s friend Peter Rushton, described as a writer, who had researched documents in the British Library designed to support the defendant’s assertions. Among the books he cited on her behalf, it was said, had been Norman Finkelstein’s controversial book “The Holocaust Industry”. District Judge John Zani said he would take written and final oral submissions from Ms Robinson and Ms Chabloz’s defending barrister, Adrian Davies, before announcing a verdict on May 25.

FURTHER PROOF OF GRAYLING`S INCOMPETENCE

The arrogance and incompetence of former Lord Chancellor the unlamented Chris Grayling set in motion the destruction of the probation service.  Further proof of his and previous incumbents of his post`s mishandling of their duties can be seen from the reducing numbers of breaches of ASBOs and laterally CRASBOs.  

With the demise of ASBO and replacement with CRASBO the latest current numbers combined, 6248, compare very poorly with 13,659 ten years ago. This is a direct result of reducing resources and efficiencies of the probation services now carried out mainly by outsourcing companies.  The parliamentary answer from which this table has been copied is available here. 

OUR BODY POLITIC REQUIRES LEECHES.

Sentencing Guidelines were introduced during my days on the bench.  Initially they appeared to codify in relatively simple terms a ladder in which any bench could logically come to a sentence ranging from a fine to custody and repeat the exercise on most occasions irrespective of post code or composition of any bench in England or Wales. My well trained colleagues on my own bench had been following similar procedures for years using straightforward common sense and structured reasoning.  The latest offspring of those first Guidelines has recently been published: The Equal Treatment Bench Book, 422 pages of dos and don`ts for the judiciary.  How on earth do the civil servants at the MOJ think that those for whom it has been deemed necessary will react to being schooled like primary age children.  This is the society we have become.  We cannot walk, talk, tweet, write, flirt, discuss, remark or observe without fear of breaching somebody`s psychological, physiological, sociological, anatomical, rational or irrational, real or imaginary mental or physical boundary.  No wonder students are being accused of being snowflakes unable to host debates with speakers who voice differing opinions from their own self satisfying smug ignorant and ill formed views of the world and how they want to see it. Our very own legislators of all parties have themselves to blame for this insidious poison seeping into the veins of the world politic.  Who has the will to apply the leeches and the necessary transfusion of common sense and reality to our national being?

DISQUALIFICATION FOR THE MANY NOT THE FEW

I have observed over the months from skimming court reports that there are lay benches who are all too easily suckered into granting a plea of exceptional hardship to those with ample assets and/or income defended by sparky efficient advocates.  It is therefore refreshing to read of a wealthy high earning businessman failing in his efforts to avoid disqualification as a totter. Long might such examples continue: just deserts for the many not the few.

VIDEO COURTS;TAKE IT OR TAKE IT

The Ministry of Justice and its offspring Her Majesty`s Court and Tribunal Service are trying to convince legal practitioners, judges, and to a lesser extent magistrates and the public that the way forward in improving justice and courts` efficiency is not to have any courts and to "simplify" the basic concept of justice.  O.K..........That might be thought by some to be too Kafkaesque a description but certainly the disposal of hundreds of court buildings, the reduction and near elimination of legal aid in the lower court, the outsourcing of many court related functions,  the instigation of single J.P. jurisdiction for so called minor mass offending and perhaps most controversially of all the increasing use of video courts leads some way to a justification for the opinion.  When I was active video courts were being used in bail hearings.  Apart from prison officials not co-operating in a sensible fashion much of the time the actual operation was simple and certainly not unfair to the person on remand who of course always had a lawyer in court to safeguard the process.  But the idea of wholesale justice by video link is a wholly different ball game especially in crown court.  The old adage of the accused facing his/her  accuser is being disregarded in the face of what we are told is efficiency.  For "efficiency" read economy.  The MOJ is overloaded with a huge expense in so called consultants [£30 million] and a gargantuan press office  the numbers within being apparently unavailable to Mr Google although I seem to remember in a long forgotten post I finally discovered that there were well in excess of 60 people employed. Judging by the diarrhoea like output of the MOJ I have no reason to think they have reduced the spending of that part of the ministry. Economy seems, for the MOJ, to be in the eye of the beholder. However doing some simple research into the manner in which HMCTS records or doesn`t record aspects of its functions the following parliamentary question and answer provides an interesting summing up of this process of video courts.  At least one crown court judge has spoken out.  Would that more did.

Ministry of Justice

Courts: Video Conferencing

120987

To ask the Secretary of State for Justice, what proportion of people who have appeared in court for their (a) first appearance, (b) remand hearing, (c) bail hearing, (d) case management and (e) sentencing have done so by video link in the last 12 months.

A

Answered by: Dominic Raab

Answered on: 08 January 2018

Information is not collected centrally on the proportion of court appearances by video link irrespective of the reason for the court appearance.

Information collected centrally in respect of hearings is published quarterly on:

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-january-to-march-2017

Today the following has been published:-

Lucy Frazer The Parliamentary Under-Secretary of State for Justice

Between 1 June 2012 and 30 September 2017 HMCTS recorded 372,941 defendants appearing via video link from prison (181,688 in Crown Courts and 191,253 in Magistrates’ Courts) and 48,024 via video link from police stations into Magistrates Courts. The information on a breakdown of the demographics of the defendants involved can only be available at a disproportionate cost.

SEX, AGE AND DIVERSITY

All you need to know about magistrates` ages, diversity and sex.

THE DEA(R)TH OF COMMON SENSE

Amongst the qualities required for appointment as a magistrate when I applied was common sense. Those two words were actually written in the application form. That quality is not indicated at all in the current application form or notes which include the following:-

Personal qualities

You need to show you’ve got the right personal qualities, for example that you are:

• aware of social issues
• mature, understand people and have a sense of fairness
• reliable and committed to serving the community

You also need to be able to:

• understand documents, follow evidence and communicate effectively
• think logically, weigh up arguments and reach a fair decision

When I made an official inquiry many years ago as to why this personal quality was omitted I was told that what might be "common" to some people might not be common to others who were immigrants or unfamiliar with the mores of this country and would therefore be at a disadvantage.  British citizenship is not a requirement to sit as a J.P.; a rule with which I profoundly disagree. 

"Common"...........usual, ordinary, customary, habitual, familiar, regular, frequent, repeated, recurrent, routine, everyday, daily, day-to-day, quotidian, standard, typical

It seems, however, that the good J.P. folk of Dorset don`t know their own rules. Rachel Small , a recently appointed magistrate interviewed by the Daily Echo with regard to magistrate recruitment, is quoted as saying inter alia, "They can come from all backgrounds, but must have "common sense and personal integrity".  Her full interview is available here. 

From my years on the bench and nine years of seeking out various goings on at magistrates` courts for this blog the lack of common sense amongst recently appointed benches  in recent years seems to be a logical conclusion for some strange or very unusual decisions. 

The magistracy is far from being the only organisation where common sense is noted for its absence. I don`t know the qualities essential to being an Inspector in Surrey Constabulary but a brief reading of the case of an officer cleared of a misconduct charge of stealing colleagues` biscuits  leads me to think that perhaps some training in such is called for there. 

BLACK HATTED POLICE CHIEF

According to the folklore of Hollywood and of Western  movies prior to the mid fifties native Americans often described the black hatted white villain as speaking with forked tongue and of course the reference was to snakes.  Today we would describe the activity as saying one thing and acting in a totally opposite fashion i.e. being an out and out liar.  Now to accuse a Chief Constable who is head of professional standards for the National Police Chiefs Council of terminological inexactitude might perhaps be going a little too far but contrast two statements in the public domain made by this man.  On the website of the NPCC amongst other things the above mentioned Chief Constable Martin Jelley wrote in 2016, 

"We will not tolerate corrupt officers or staff and it is vital that we respond swiftly and robustly to incidences of sexual misconduct.
“After reviews by Independent Police Complaints Commission (IPCC) and Association of Chief Police Officers (ACPO) in 2012, police chiefs committed to doing more to root out abusers from the service. Since then, police leaders have emphasised that this behaviour has no place in policing, made changes to vetting and supervision processes, and encouraged reporting - the majority of force investigations into abuse of powers are started in response to concerns raised by officers and staff."


In a recent  issue of Police Oracle behind a pay wall there is a front page report:-


Misconduct system 'too focused on punishment' says national lead. CC Martin Jelley. Head of professional standards for NPCC calls for 'revolution' in attitudes. Date - 15th February 2018. By - Ian Weinfass - Police Oracle. The police misconduct system must become more focused on learning and improvement and less on punishment.

Perhaps I am being pedantic but my simple understanding is that these two statements appear on the surface at least to be just a little contradictory.  Of course the first is specific and the other is a generality but my opinion is that this very senior officer is wearing that black hat beloved of early directors of the Western genre of movie making. 

THE NOT SO SIMPLE SACKING OF RICHARD PAGE EX J.P.

Ex magistrate Richard Page is continuing his protest at being sacked from office by suing the Lord Chancellor and the Lord Chief Justice.  This is a very interesting and important case because the outcome will be significant to all who hold what some would describe as intolerant religious beliefs. It is not unlikely that the many Muslim magistrates who statistically would hold similar beliefs are watching closely. A brief perusal of a much more detailed post of 18th March 2016 predicting such a development might assist some in understanding the origin of this situation.

BEING FREE TO OFFEND

Being free to offend is a fundamental right for a democratic society in order for that society to continue being democratic. Until recently the law in this country was the antithesis to that concept. 1st February 2014 saw the end to s.5 (1) Public Order Act thus decriminalising insulting words or behaviour in the hearing or sight of someone likely to be caused harassment, alarm or distress. For "distress" read offend and many who would stifle debate have emerged as latter day Mary Whitehouses seeking to show that current fears of internet trolls are a direct result of such freedom. There is a coherent argument that the enormous increase in anti semitism disguised as anti Zionism can be attributed to that change in the law.  Nevertheless we are all better off  by facing down such arguments than prosecuting them.  I am a collector of political cartoons and for me an interesting example on this subject occurred recently in New Zealand. The original source document should be compulsory reading for all who have an opinion one way or another on whether there should be prohibition of what some would describe as offensive material and the right to publish such.

JUST ANOTHER COURT SITTING

Freemen of England: regular practitioners in the magistrates` courts will have enjoyed the appearance and ravings of those who have refused to recognise the court`s authority citing that they were members of a group as per the title at the beginning of this post.  I dealt with a few in my time. I particularly recollect a male about 50 years old who was dressed as if about to appear in a pantomime as Toad of Toad Hall. After being sent to the cells for an hour for contempt his manner on his re-appearance in the dock was just a little subdued and his bravado gave way to humble acceptance of his fate. Suffolk magistrates appear to have been a little less robust than I when dealing with a defendant who challenged the prosecution to trial by combat.  So much for CJSSS. 

Perhaps I have harped on rather a lot about the advantage of bringing back the workhouse updated for today`s offenders.  Yet every day in every court there is a poor misbegotten soul who demonstrates that the court process is for him/her a complete waste of time and money. Here`s today`s example from the court in Durham.