THE WHOLE SORRY TALE OF MOJ CUTS

From time to time there are, in every walk of life, unheralded events which often are a more accurate indicator of the underlying situations behind those events  than any number of statistical analyses or television interviews by those in authority.  The closure of a third of magistrates courts in the last decade was justified by the Ministry of Justice on cost saving.  But that`s not the message that the dozens of weasels in the MOJ press and PR department  distributed.  Efficiency was going to be improved without any significant downside.  Travelling times for participants to, from and between the reducing available courts were manipulated, predictable detrimental effects of video court "justice" were ignored, communication problems were similarly held to be simply overcome. Add to the mix the limited possibility of legal aid for many? most? defendants and a system that once was held in high regard was seen from outside Petty France as crumbling before our very eyes.  In Shropshire an example of a relatively minor unheralded event (for non participants) being symptomatic of the underlying malaise more or less tells the whole sorry tale.    

Repetition can sometimes, I confess, be a little boring but that does not necessarily reduce the underlying truth.  As a society we are failing the lowest drug addled,addicted and often  mentally impaired  members of society.  Sometimes we lock them up and sometimes we are so much in despair that we don`t.  Pressures are increasing to abandon completely custodial sentences currently available to magistrates.  We are told that rehabilitation will reduce offending for those currently being sent to custody within current magistrates` sentencing guidelines.  It is, however, because that cabinet member of supreme failure Chris Grayling emasculated the probation service on the basis of political ideology that it will be years before there will be confidence in truly being able to undertake such changes.  But we have been here before. His successor three times removed as justice secretary, David Gauke, has said that 3,111 prison officers were recruited between October 2016 and March 2018, surpassing a government pledge to recruit 2,500 prison officers by the end of this year.  What he doesn`t say is that approximately 5,000 prison officers lost their jobs between 2010 and 2016.  The MOJ instigated enormous cuts in those years ignoring the outcries from those who were in a perfect position to predict the outcome. 

Just two of thousands of cases of recidivism which our current sentencing guidelines cannot cope with are available here and here.  Similar offenders  are being sentenced in every courtroom every day all over the country. It is a national disgrace. It must not continue.

There must be out of the box thinking on what can be done for those tens of thousands locked up by my former colleagues annually.  Although forming only about 4% of all those sentenced the costs to society are enormous.  My out of the brain box remedy is a workhouse designed and staffed for the 21st century.  For those interested just type "workhouse" in the search box for my more detailed previous posts on the topic.  

MAGISTRATES RETIRING AGE

For as long as I can remember since joining the bench there have been two underlying causes on their wish list from magistrates individually and as a collective; to increase sentencing powers and to increase retirement age.  As far as the former is concerned there is absolutely no chance of that being granted unless the legal climate experiences a  catastrophic warming.  The question of compulsory retirement at age 70 is more contentious. Firstly the trend for some time as the baby boomers retire is to under resource replacements owing to the gradual but steady increase in District Judges who by their very positioning have been ready, willing and able to forfeit the dubious advantages of steady employment or self employment  in the private sector for a pensioned position in the civil service where they are unlikely, in line with their senior colleagues, to question the actions or directions of the executive paying their wages until they are in a receipt of a juicy pension. There is of course the equality [no discrimination] argument where age related compulsory retirement is illegal in the private sector. Add to that the very reasonable argument that oldies are holding up the progression of younger magistrates and the arguments for and against are likely to continue.  The government certainly is not offering any clues to its thinking judging by the answer below to a recent parliamentary question. So don`t hold your breath.  You`re liable to suffocate before there is a change of policy at the MOJ.

SINGLE JUSTICE PROCEDURE

The Single Justice Procedure is governed by The Criminal Justice and Courts Act 2015.  Many magistrates, I believe, are not fully supportive of the process.  The Magistrates Association has yet to make clear its opinion.  As with some decisions made by individual JPs as to where they want to sit the SJP is for volunteers.  But more to the point it is not justice seen to be done in a court the doors of which are open for anyone to witness the daily activities where  c95% of the criminal justice system takes place. It is a clear example of where the Ministry of Justice and its  wunderkind, Her Majesty`s Courts and Tribunal Service, know the price of everything and the value of naught.  It is a system to save money pure and simple.  It is a moot point whether or not justice is done behind these closed doors where SJP takes place.  Here is a recently published report in the Norwich Evening News. 

Our once admired criminal justice system is being salami sliced to an unrecognisable tick box procedure of an assumption of guilt which the defendant must overturn.  It doesn`t just take place at crown courts where the shifty shenanigans of the Crown Prosecution Service often with the collaboration of the police have shown activities which every honest citizen of this country must find to be blots on our social landscape.  Magistrates are coming under enormous pressures both personal and procedural. Ever since Criminal Justice Simple Speedy Summary [CJSSS] became the watchword a decade ago  government removed its gloves and made it clear it would fight dirty to reduce costs.  Indeed the arch proponent of remaining in the EU Kenneth Clarke when he was Lord Chancellor in 2010 was the very first minister after the election to offer a reduced budget for his department in accord with the Treasury demands; 23%.  His current pathetic performance indicates just how much he values our legal system never mind the result of June 23rd 2016.  Supine individuals have followed him like chocolate soldiers in a heatwave within Petty France  to emasculate our justice system. With a prime minister who in her previous incarnation cared nothing for the rights of the individual I fear we have still some way to travel along that insidious path where only the rich and/or the famous have the wherewithal to fight the state when accused of wrong doing.   

MAXINE DE BRUNNER: CHUTZPAH OR ARROGANCE

I had intended to begin by describing the topic today as an individual who had chutzpah:- the classic definition of which is that given by Leo Rosten: "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan."  But in the case of Maxine de Brunner of whom I last posted last Thursday May 24th that definition just doesn`t do justice to the unashamed arrogance of this woman.  When she was an Assistant Commissioner at the Met that arrogance should have been extirpated if those at the very top of that organisation had any wider concerns of their public role apart from polishing the turds within their fiefdom.  Still I suppose old habits die hard. 

It seems that the aforesaid disgraced police chief who has cost her previous employer over a million pounds in trying to defend the indefensible seeks to persuade business organisations that her opinions and advice are worth paying for in the form of presentations filtered through her speech giving agent Speakers Associates.  On the basis that the old adage; a fool and his money are soon parted, applies to business I can only assume that any company that employs this person deserves to go down the pan sooner rather than later. 

MAXINE DE BRUNNER: A DISGRACE TO THE POLICE

Recently BBC TV has been showing short docudramas from forty years ago; "Law and Order" in which the corruption of the Metropolitan Police, often hinted at but rarely investigated, is depicted in all its rotten reality. That rottenness has never been entirely eliminated owing perhaps to political awareness of what problems and embarrassment the revelations would cause or the fact that the corrosive constituents are still in place; greed, pride and ego. 

The history of an ex senior Met officer Assistant Commissioner Maxine de Brunner is a history of all that is wrong with the Met. I first commented upon her activities  on 10th June 2016  and then a month later and finally on 19th August 2016.  This sad sordid story is now concluded. Chief Inspector  Adrian Denby a decorated and respected officer has been awarded £870K as a result of de Brunner`s sex discriminating actions against him. That it has taken two years to achieve the wronged officer`s vindication is a disgrace.  That the Met is considering an appeal compounds its folly. What is equally disturbing is that the Home Office refuses to divulge under the Freedom of Information Act the numbers of senior police officers convicted of misconduct; such refusal being only an indication of how serious misconduct by senior officers is on the increase and that the confidence of we the public would take a massive hit if the truth were known.  

THE PERCEIVED QUALITY OF LAY MAGISTRATES

There are around 16,000 magistrates in England and Wales and around 300+  District and Deputy District Judges (MC). It has been the practice since time began that the powers that be namely Justices Clerks or their Deputies who run individual courts to allocate to DJs those matters which might be of public significance, supposedly too esoteric for the lay magistrate too understand or involve complicated law.  I have in the past whilst active but to deaf ears protested about this syphoning of cases. The legal profession by and large disagrees with my point of view and to some degree I can understand this.  There is a large minority of Justices of the Peace whose limited intellectual capacity would be exposed if presented with arguments which strained their brain matter.  Nevertheless IMHO justice is seen to be done when a mini jury of three brings in a verdict as opposed to a single professional District Judge. Such might have been the case last week when a police officer who tasered her force`s own race relations advisor was acquitted of  assault by the unlawful  discharging of a taser gun.  It seems that according to the report "Judge Ikram said: “The issue for me is whether the prosecution have persuaded me that she didn’t act in self-defence. The prosecution failed to persuade me and she is found not guilty of assault for that reason.”"  Presumably the court was shown the video evidence.  My point today is that a jury of three lay magistrates might well have come to a different conclusion in this case.  The corollary is if the Appointments Committees up and down the country fail to appoint the best candidates or make up required numbers by reducing their standards the argument for restricting cases such as this to paid civil servants on the bench will continue in a vicious circle until the magistracy in its current form will be precluded from presiding over any public court.  

OUTSOURCING SCANDALS, BREXIT, MAY MUST GO

From the days of Margaret Thatcher outsourcing has become a watchword for successive governments.  The philosophy behind this form of contracting was and is that much of the expenditure was off the current balance sheet, capital expenditure could be reduced with the price paid  being contracts that were not fit for purpose and trade unions would not have power over the outsourcing company`s employees as they (the employees) would be beholden to the company and not direct government) thus reducing union ability to control or influence said workers.  There have been many scandals affecting these companies and many have direct contracts with the MOJ and Home office  eg running prisons, transportation of prisoners to and from court, probation services, providing translation services for police and courts.  One such company is Sodexo. In 2013 the company was intimately involved in the horsemeat scandal.  In 2016 at Its Bronzefield Prison there was the tragic death of a prisoner.  A year ago its Northumberland Prison registered a death in custody.  


There were 354 deaths in prison in 2016, including three homicides. This compares to 257 deaths in 2015 and 8 homicides. In 20161, there were 204 deaths by natural causes, 120 deaths by suicide and three homicides. 27 deaths are currently classified as ‘other’. This includes 18 deaths classified as ‘awaiting further information’ and nine deaths classified as ‘non-natural/other’. There were 120 deaths by suicide in prisons in 2016, the highest annual number since records began in 1978. This figure may rise when the outstanding AFI deaths are re-classified. There were 90 deaths by suicide in 2015 and 89 in 2014. There were three apparent homicides in prison reported in the media in 2016. There were eight apparent homicides in 2015, the highest number of homicides on record since 1978, where there were five homicides. There were three homicides in 2014 and four in 2013.

Last year Sodexo won a large order for the Department of Work and Pensions. However last week the company was fined £304,925 for operating a river cruise boat  without a valid Domestic Safety Management (DSM) certificate. This omission put the lives of passengers at risk.

In the mind of this capitalist supporting blogger outsourcing in general, not forgetting the scandals involving hospitals and care homes, has reached its sell by date. This and previous government by not restraining raw capitalism which has been allowed to run riot, the Carillion collapse of last month being just the latest example, is bedding in the possibility of Marxists entering numbers 10 and 11 Downing Street. With the current occupants there tearing each others eyes out over Brexit they have lost sight (pun intended) of the basis on which this country has provided our still just about coping standard of living.  MAY MUST GO before it`s too late. 

LATEST COURT SALES INFORMATION

Latest numbers on court closures are below.

RESPECT!

I have long voiced my disdain whilst active and now retired of various displacement orders. Drinking banning orders are such an example; don`t drink in my patch........drink in somebody else`s.  They are often civil orders which lead to criminal charges if breached. They are generally a disgrace to our society and legislature. In Norwich a beggar was under the damacles sword of a community protection order when he was brought to court for breach. The CPS requested that a criminal behaviour order be imposed.  The bench refused that request.  My hat is doffed to their action or rather lack of.   May the magistracy as an organisation of individuals think very clearly before meekly complying with such requests from a CPS which just doesn`t know what to do in these circumstances and a Ministry of Justice which just doesn`t care.

FROM THE PARLIAMENTARY HORSE`S MOUTH

A couple of recent statements and information from the House of Commons.

The first copied below is part of a speech from Alex Chalk, Conservative MP for Cheltenham on the Grenfell Inquiry.  His words should be noted by those who criticise magistrates for not having the intellectual ability to understand complex cases.

"From my experience, just an appeal from a magistrates court in a relatively modest case will involve a judge and two lay assessors. That is why it is critical that the other members of the panel, which includes Mr Justice Moore-Bick, have decision-making power. They cannot simply be there to be thought of as making up the numbers; they must bring their weight of experience from the community and shared understanding. By the way, over many centuries lay people have shown themselves well able to analyse complex issues and do justice. To those people who might suggest we have simply a single judge, it is no answer to say, “Oh, it’s too complicated, too difficult, too technical.” Lay people are capable of understanding—of course they are—as long as matters are properly presented, and I am sure they will be."

An interesting parliamentary answer yesterday on the cost of pre-sentence reports is copied below..

Rory Stewart The Minister of State, Ministry of Justice

Information is available on the direct staff costs of preparing a pre-sentence report, based on the average time in which it is expected that reports will be completed. These costs include the time spent by the officer in court to deliver the report.
The average assumed cost of each type of report is shown in the following table:

Report type	Assumed average cost per report (£)
Standard-Delivery Report	270
Short-Format Report	110
Oral Report	60

Information is also available on the annual volume of pre-sentence reports delivered in courts across England and Wales in 2015-16 and 2016-17. Full-year figures for 2017-18 are not yet available. The following table shows annual volumes of pre-sentence reports ordered by the courts for 2015-16 and 2016-17, together with estimated total costs. These estimates are based on the average cost figures given above and the planning assumption that 60 per cent of all reports should be delivered as oral reports, 30 per cent as short-format reports and 10 per cent as standard-delivery reports.

Data Period	Total number of pre-sentence reports (000s)	Assumed Costs (£m)
1 Apr 2015 – 31 Mar 2016	160.4	20.9
1 Apr 2016 – 31 Mar 2017	136.7	16.1

IS AN ENGINE CUT OUT A GET OUT FOR MOBILE PHONE USE WHILST DRIVING?

It has been illegal for a motorist to use a mobile phone while driving since 2003. This includes handling the device, sending a text or following a map, even when the car is waiting at a set of traffic lights, as the engine is still running. In 2017 stricter phone driving laws came into force in a bid to deter people from breaking the rules.

A few years ago owing to an EU determination to reduce pollution many cars were being offered as standard equipment an engine cut out when the car was stationary.  I wonder if any legal eagles have attempted to use this factor in an attempt to have a client acquitted of the charge of using a mobile phone when driving. 

CITIZENSHIP POST BREXIT

Currently there is no requirement for a jury member to be a British citizen. Surprisingly there is a similar lack of citizenship needed for an aspiring M.P.  Anyone wishing to stand as an M.P. must be over 18 years of age, and be a British citizen or citizen of a Commonwealth country or the Republic of Ireland.  In the light of current events perhaps the time has come to alter the rules of both organisations. 

THE CASE TO BRING BACK THE WORKHOUSE

Six months ago I posted on the benefits of the workhouse if the Victorian model were updated for the 21st century. The situation over the weekend at a special sitting of Nottingham Magistrates Court was just another example of what courts nationwide see every day; it is a disgrace to the society we live in which we are told by politicians of various hues is the 5th largest economy in the world.  During my lifetime since the end of WW2 this country that stood alone for a year against Hitler has been unable to harness the strengths of its people to do in peacetime what they did in war.  That is not the fault of the people but of those of Left and Right who since then have mismanaged the economy.  There is currently a BBC programme on what was the world`s most innovative aircraft manufacturer.  I recollect as a young child my father taking me to see the then largest passenger plane in the world; the Bristol Brabazon. It never was more than a prototype because its piston engine power was about to be superseded by jet propeller power.  Then the same company produced the Bristol Britannia a jet prop airliner in which I have flown which was rendered obsolete by the incoming Boeing 707 also in which I have been a passenger. The tale continues right up to Concorde  which was much too small via the Comet in which I also flew. The car industry suffered similar decline as did myriad other industries where poor management and myopic reasoning prevailed.  And so it is with social measures to limit the headlong plunge to penury and misery of a persistent small percentage of the population. Surely it doesn`t take a would be Marxist power to the people follower of Castro and all things anti historic to wake us up to the mismanagement of current social thinking. Bending over backwards to avoid giving offence to every Tom, Dick, Harry, Tommasina or Harriet leads to a broken spine.  Taking penniless addicted or non addicted individuals through a courts system which has been emasculated serves no purpose except to highlight the complete disassociation of those in charge and the population being served. Our social care system in all its aliases is broken. So once again I ask why there should not be re-established a nationwide series of workhouses where the dregs of the law breaking miscreants currently brought through the courts can be legally held in secure accommodation until such time as their release would be to their benefit and society`s as a whole? 

RAPE "NOT PROVEN" BUT ONLY IN SCOTLAND

When it comes to society, justice and the law Scottish thinking is often practically and philosophically some distance ahead of the other parts of the UK.  The alcohol tax introduced this week is an example which is highly unlikely not to be followed south of the border in due course.  On the subject of trials the Scots verdict, unique in the English speaking world, has many merits as does the requirement of two witnesses, even if police officers,  to corroborate evidence.  However when the subject is rape controversy is never far away in Scotland as elsewhere. Conviction rates are bandied about like jelly beans depending upon which side of the argument one is supporting.  The recent problems disclosed or rather not disclosed in recent high profile rape trials in England have brought the topic to a wide audience.

In March in Scotland there were angry protests at new guidance that could force rape victims to give evidence against their will. Earlier this week Scotland`s chief judge suggested that rape "victims" need not appear in court. These two apparently diametrically opposite viewpoints can be read and compared in reports here and here. 

There is no doubt that this debate will become more heated in all parts of the country.  When not just a normal act between two people but one could say an essential part of human life can become a criminal act there is bound to be rancorous debate.  When the likelihood of an impartial witness being available to corroborate or deny an account by the accuser or the accused is constrained a court must use all it has at its disposal to reach the truth; an exercise of extreme difficulty.  All of which leads me round in a complete circle from my statement above; namely the verdict of "not proven" in a rape trial must in real terms be a summation in the minds of many jurors but finding actual expression only in Scotland. 

MP`s SELF PROMOTION

Since the introduction of Sentencing Guidelines over a decade ago the process of sentencing has been reduced to a tick box exercise. Different Acts of Parliament and various degrees of seriousness, harm and culpability are to be considered. In the matter of assault these vary from common assault to causing actual bodily harm. As an example of the former with regard to the protection of those in the police force a separate charge was instituted under the Police Act 1996, s.89.  Now it is hardly a revelation that many individual M.P.s attempt to attach their names to initiate legislation sometimes  of great significance eg the Abortion Act by David Steel in 1967. But it is equally the case that some arguably useless pieces of legislation have slipped through the occasionally sharp eyed spectacles of the parliamentary draftsman. Such an instance is typified IMHO by Laura Smith Labour MP  elected  in the snap 2017 general election. As a newcomer to the House of Commons she is trying to fly her debutante`s flag from the legislative flagpole by expressing  her support for a new law that would offer more protection for police, firefighters and NHS workers in Crewe and Nantwich from sexual assault.  Note that all she apparently has done is to send a press release on the topic. She has not spoken in parliament on any subject allied to this press announcement. Public servants, such as she seeks to protect, have all the protection needed by their very occupation offering aggravation to the sentencer and thus increased culpability. Perhaps shouting loudly in the local press is an acceptable way for a new female Corbynista MP  to retain the support of her public. 

TIMES ARE CHANGING FOR DRIVERS

I blog only occasionally on motoring matters cf criminal behaviour by drivers.  As is often said of law breakers, ignorance of the law is no excuse. It is a long time since I paid more than a cursory glance at what the Daily Express had to say but for many drivers and car owners the times are a changing.  

HOME OFFICE IS DEMONSTRATING ONCE AGAIN THAT IT`S UNFIT FOR PURPOSE

A chief Constable will be appearing on 24 May 2018 at Westminster Magistrates court on a  Health and Safety prosecution.  Although unrelated it is interesting to note that the Home Office has refused to release figures on the numbers of senior and chief police officers found guilty of misconduct. In the light of current matters at said Office this blogger is of the opinion as a previous incumbent made clear  that it needs a thorough overhaul of policy, personnel and oversight i.e. it is not fit for purpose.

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.