CAMERON OR JOHNSON; WHAT`S THE DIFFERENCE?

All those interested will have by now made up their minds whether or not our newly enthroned prime minister was showing “leadership” or being unwise in speaking out in support of “tough” sentencing. My own opinions on his and David Cameron`s similar comments and particularly of the Sentencing Council`s tick box structure have been mentioned here on more than one occasion. Cameron when PM revealed, perhaps without too much forethought, his thinking processes on the Sentencing Council.  He is quoted in The Telegraph at the time  as saying,

“My mum was a magistrate for 30-odd years and you don’t go on being a magistrate just reading the handbook and working out exactly what sentence is handed down. You respond to local circumstances, to the sense of right and wrong in that community.”

And that is precisely where the dispute in current sentencing now lies. For some years we have been told to do exactly that which is on the tin or top cover if preferred; read the handbook [guideline] and work out exactly the sentence. The tick box analogy is perfect. Now Johnson wants us to respond to local circumstances when he is well aware that his government is bent in removing “local” from such services as far as justice is concerned.

Politicians are like ladybirds; they never change their spots, some of them have a nasty bite and they fly off and leave the scene when disturbed.

HOW AWFUL

There is no doubt, unless the opinion is emanating from an MP on the Tory side where it`s waffle from dawn to dusk or from the Opposition where it`s based on, "they`re wrong whatever the topic", that most clear thinking individuals when pressed will admit to apprehensions about our justice system.  For this short post the justice system is a loose term encompassing the process from the law being broken to a defendant being found guilty or acquitted. In order to bring a defendant to court s/he must first be arrested for an alleged offence. However only about 8% of such people are actually charged.  In the last eight years the number of prosecutions has fallen by around 45%. Eight years ago there were just under 900,000 cases at magistrates and crown courts. Latest figures are just under 500,000. Ten years ago there were 20,000 more warranted police officers than there are currently. And nine years ago in Bradford the crown court was being overwhelmed with cases it could not handle with available resources. I posted on this particular city`s problems in this regard on 13th April 2018 with reference to an earlier post almost eight years prior.  

It seems that the situation in Bradford is no better now and arguably worse as the parliamentary answer of last week shows below.  For the complete exchange access is here. 

We used to read of the dreadful delays in places like India where defendants awaited trial for many years and sometimes waited in custody on remand.  "How awful", would be the opinion of most of the legal world.  We used to read of the corruption of police in Pakistan or in some Eastern European countries. "How awful", would be the outcry of British police authorities. We used to read of political double dealing in our near European neighbours and our parliamentary representatives would answer interviewers` questions, "How awful". 

Our justice system as an appendage of our total democratic system can now be summed up by just those two words "How awful".  

MUSINGS ON THURSDAY (2)

Sometimes magistrates courts and information of interest to those who use them are bereft of interesting items and at other times the pieces of news flow like buses after a hold up.

Whilst on the bench the most onerous decision making for me was not about whether to convict or acquit, to jail or not to jail but to decide if it were unsafe to bail an untried defendant especially in cases of alleged domestic violence.  Since then the procedure regarding bail has changed drastically. If I were a cynic I would suggest that these changes were designed to reduce the number of people kept in prison on remand but of course government does not operate like a black market shyster during World War 2.  Being now unable to keep suspects on almost unlimited bail with the associated conditions imposed police must release them without any conditions until they are ready to charge; this is called released under investigation.  This has been the case since April 2017. Since then the Metropolitan Police have released 97 out of 284 murder suspects.  During the same period 807 suspects have been similarly released. Of those suspects no figures are available for what subsequently happened to them.  Once again as has been the MOJ philosophy for at least two decades the tail of the target to reduce the numbers of prisoners has wagged the dog of the duty of a government to keep its citizens safe. 

It is against the law to use a mobile phone whilst driving; the operative word being use. At least that is what I and tens of thousands of judges, JPs and lawyers thought was the law.  But, and it`s a very big but, yesterday at the High Court the pronouncement from the bench was that the legislation does not prevent all use of a mobile phone held while driving. The defendant claimed in his defence that he was shooting a video with the phone`s camera.  This decision opens up a large can of worms. The press report is here although there might be some difficulty tracing it.   

The conviction of the offender who gained notoriety as "Nick" has produced not unexpected ramifications.  The newly installed Justice Secretary has backed a call from Sir Cliff Richard and Paul Gambaccini to ban the naming of those arrested for rape and other sexual offences. A report can be accessed here for those who wish to note opinion other than from  their usual media. 

THE MOVING FINGER WRITES

Following on from my recent tweets when I alluded to the themes that have driven this blog along for almost ten years I surely must add perhaps the one of which I have most confidence that my fears will be realised; namely that the functions of Justices of the Peace comprising independent finders of fact and sentencers of the guilty will be but a historical memory within the next five or ten years. The pathway to our being snuffed out by governments with little regard for opposition within the whole panoply is there for anyone to see. Since the early 1990s an independent magistracy has been constrained and eventually consumed by what is now Her Majesty`s Courts and Tribunal Service via the disestablishment of magistrates` courts` committees and the local arrangements alongside; arrangements such as the daily rostering of J.P.s` benches by independent court elected rota committees. Instructions for such procedures are now directed by senior judiciary. Management structures have been put in place to serve the needs of government as opposed to the concept of justice. J.P.s have been increasingly encouraged to participate in out of court functions eg serving on committees with police to overlook the functioning of the system of Fixed Penalty Notices, to serve on groups whose function is restorative justice and other forms of what is termed “neighbourhood justice”. The appointment of professional District Judges(M.C.) has accelerated corresponding with a 50% reduction in the magistracy over a similar period; this at a time when, owing to various factors, the through put in the courts is down by 30%+.

Quite simply the Ministry of Justice cannot be trusted.  As I write its PR weasels are propagating the history of legal aid being founded 70 years ago today when in truth its availability has been removed for the vast majority who require it notwithstanding the fact that derisory rates of pay to practitioners has decimated the numbers prepared to offer their services under its umbrella and demoralised the rest still attempting to make a living offering their expertise to defendants.  The die has been cast irrespective of the name of the passing stranger sitting in Petty France and his cohort. The decision has been made. We are to be transformed or at least our role must be transformed. The runes are there to be read. The Moving Finger writes; and, having writ: all those who have refused to read the writing on the wall must surely now be convinced. All magistrates courts will be presided over by District Judges who for their part of the bargain will have to dispense with legal advisors. Indeed the term “magistrates courts” will likely be changed to “District Court” or “Local Royal Court” or similar. J.P.s such as remain (perhaps 5,000 – 7,500)will be precluded from remand courts but will be given the sop of sitting as permanent wingers on trials with perhaps or perhaps not an input on sentencing.

Such is the emasculation prepared for the magistracy.

LEADERSHIP MAGISTRATES ARE MOJ TOADS

Whenever there is talk on line, in the press, on TV and in Parliament of magistrates and their diversity or lack thereof, keyboards and throats get on their metaphorical high horses and proclaim how diverse the magistracy is in almost all aspects of gender, age and ethnic origin.  They try to be so transparent as to be free to the wind.  But when it comes to policies that affect magistrates courts those weasels in Petty France and Fitzrovia are rather less likely to be what you see is what you get organisations. 

For many decades the Magistrates Association has existed and I suppose still exists as an organisation of paying members of the magistracy to be their representative in dealings with government in its widest form.  At its peak about a decade ago or so there were around 30,000 magistrates of whom about 80% were MA members.  Now numbers of JPs have halved and the MA membership is a much lower percentage putting great financial strain on that organisation.  It has even stooped to the level of doing some dubious deals with probation providers to raise capital.  Nevertheless its clout with government has been reduced to a whimper.   A couple of years ago advertisements in appropriate media were placed by the Ministry of Justice for the appointment of a "national leadership magistrate" notwithstanding that there was already functioning an organisation The Bench Chairmen`s Forum which consisted inter alia of the chairmen of all the benches in England and Wales.  Considering that each chairman is the result of a bench wide election one would have thought that as a collective their opinions had merit. After the appointment of the aforesaid magistrate further ads appeared inviting applications for seven positions as regional leadership magistrates. I posted on this as early as  14th June 2018 . Last week a pressure group,  Transform Justice, also posted on this topic.

These people are the toads of the MOJ.  They represent nobody. Perhaps they are seeking long term non financial benefits  eg gongs.  Perhaps they consider themselves to be superior to their colleagues. One factor of which there is no doubt is that their identities are secret; SECRET in this supposedly age of openness. Copied below is yesterday`s  written question to Paul Maynard The Parliamentary Under-Secretary of State for Justice and his answer. 

This action of withholding the identity of these lackeys is nothing short of an affront to open government.  Their names should be published forthwith and as the old adage said "if they find the kitchen is too hot for them then they should bugger off".  

CHRISTIANITY AND THE LAW

Insert "Richard Page" into the search box and you will find a history of one of the most controversial sackings of a Justice of the Peace in living memory. The posts, the most recent of which was earlier this year on January 7th, need no explanation; they speak for themselves. It seems the final chapter of this story has been written.  An employment appeal tribunal has ruled that he was rightly dismissed.  Readers will have their own opinion on the decision made earlier this week.  

The above was the first paragraph of my post last month on June 21st. Another case of interest is the recent successful appeal by a Christian student expelled from his university.  The two cases  of course are quite different but paradoxically similar in many ways. I posted on this topic on 5th October 2017.

Religious belief, Christian, Muslim and Jewish has seemed to be more in the legal news than in previous years.  Considering that this is ostensibly a passive Christian country and that the Jewish population is only 250K it is not unlikely that with about three million Muslims in the UK many of whom are sympathetic to a strict interpretation of Islam  it will be from that area that future legal and social conflict with religion will arise. 

COURT FOR PROTESTERS

Many people had their daily lives and routines severely disrupted recently when an organisation which has a one pony policy of alerting us to the perils of climate change took over main thoroughfares in many cities to make their point. Police as is often the case had to decide where the boundary lies between a citizen`s right of public protest and breach of public order. As a result, having been very "hands off" initially the need to keep streets available for all to use led to public criticism and the subsequent arrest of thousands of protesters. The CPS has endorsed more than a thousand prosecutions to be undertaken at Westminster Magistrates Court. This decision has led to the expected objections of those who have been called tree huggers in the past.  In this subject they are on the wrong side of the argument. Street disruption is straight from the anarchist playbook.  Whilst those in the current matter might have had altruistic motives their methods would be a demonstration of what would befall us as a society were extremists of left or right to mobilise supporters to emulate their sandal shod predecessors.  Criticism might be made of police being too slow to enforce the law. The fact that those arrested are to face the reality of what the law considers their behaviour is a welcome decision to this retired magistrate. 

COUNCIL TAX NON PAYERS AND JP DIVERSITY

Facts; that`s today`s simple post.  Too many observers throw out emotional statistics about short custodial sentences eg those imprisoned for non payment of council tax.  Last year there were five such cases. 

There`s a growing trend from some quarters that above every other requirement the magistracy must be as diverse as the population it serves.  I disagree.  Justices of the Peace must be selected on perceived ability to do the task for which they have applied. If that procedure produces anomalies cf diversity statistics  then it is regrettable but must not lead to selection by quota. Latest such statistics are below.

A NON TOO ROSY FUTURE

A long long time ago when trams and later trolley buses travelled our high streets our justice system was recognised by most as amongst the finest in the world. A system admittedly ruled and administered by a public school and Oxbridge educated minority but a system nevertheless where noblesse oblige much of the time. And then came the swinging revolution begun in the 1960s where the cockney sparrow became the tweet of the masses. Prime Ministers` lies did not remain hidden for a generation but soon became public knowledge. Diversity in its myriad forms became the name of the game and legal protection was legislated for it in ever widening patterns.  Increasingly the opinions of the masses were sought and occasionally acted upon. Parliament enacted laws in ever more areas of our lives; much to the good of all but not all to the good.  Margaret Thatcher, loved by many and perhaps hated by more changed society almost as much as World War 2 but with fewer casualties. But there were still areas where civic cohesion was beginning to strain at the seams; namely at Mastricht and Lisbon but few were able to sense the arising murmurings. And then came 2008 and the world fell apart as did our politics. As a direct result in 2010/11 the budget of the Ministry of Justice was proudly cut by 23% by Kenneth Clarke Secretary of State for Justice and has continued to be cut so that Justice is not now considered a pillar of our democratic society paid for by the state in the same way as the armed forces are paid for by the state but a necessary function which must as far as possible pay its way in the grand scheme of budgetary things. He also instigated the destruction of the concept of local justice resulting in the continuing closure of hundreds of courts the latest sales figures of which are published today. As a result of the disastrous tenure of Chris (failing) Grayling with, we must suppose, the support of cabinet, a Criminal Courts Charge was initiated in 2015 which attempted to increase income from offenders irrespective of their ability to pay. Such was the iniquity of that legislation that it was revoked within a year by his successor at Petty France.  Under the control of the Home Office, the dismal performance of which competes with the MOJ for the most inefficient not fit for purpose government department, police forces have been emasculated in numbers and demoralised in practice. 

The result of the above and more is that British society, at one time a concept familiar to all, is now so fragmented that the petrol of Brexit, itself a result of supine stupidity by governments since the ill fated Gordon Brown occupied number 10,  has lit the fire under our whole idea of democracy. With justice denied to so many by so few our headlong dive into a dark future seems unstoppable. The scandal of the appointment of our next prime minister, the undeniable antisemitism within her Majesty`s Loyal Opposition and many of its supporters and the demagoguery of competing interests here and abroad paint a non too rosy future.  

SOFTEST OF TOUCHES AT YOUR REGIONAL MAGISTRATES COURT

I have been posting on the problems of court interpreter services for six years.  Before I retired I was in a position to report from the "front line".  Now like most of us who become aware of so many matters from media of all kinds my knowledge is limited. It appears that I am in good company. The Ministry of so called Justice does not know or says it does not know of the true extent of the problems dealing with those witnesses and defendants who say they require the use of an interpreter. Those last few words are quite deliberate.  There is no requirement for an objective standard to be used when a court assesses the need for such services. Whist an active bench chairman I (and my colleagues) was often faced with a defendant at pre trial stage requesting an interpreter when to all intent and purpose that person`s age, apparent intellectual capabilities, occupation and years of UK residence would indicate that his/her knowledge of English was well able of being of a standard to understand and partake in court proceedings.  I recollect all too often after clear questioning of a defendant my observations that an interpreter would not be required being over ruled by the legal advisor stating more or less that the court is powerless to refuse such a request even when the situation would suggest otherwise.  An incident comes to mind when an Arabic speaking interpreter failed to turn up. A colleague whispered to me that he was fluent in an Arabic dialect very closely associated with the defendant`s.  I asked him to interpret for the court for the short time required to formally adjourn.  In the retiring room the legal advisor told me my actions were borderline if not misconduct at least putting into jeopardy the impartiality of the court.  I told her I`d do it again in similar circumstances where the alternative was further delay and time wasting for all involved. 

The statistics below would not reflect that situation.  Courts are afraid to even think the term "robust". All manner of means are employed to reduce costs even when justice itself is at risk but when it comes to the treatment of offenders truly the softest of touches is not soft enough for some at all levels from Petty France to what was once upon a time your local court but now is your regional magistrates court. 

LEGAL AID?????????????????

The availability of legal aid has been reducing for the last nine years; every worker within magistrates courts is well aware of this and the consequences it poses for ensuring that every defendant has a fair crack of the whip.  Quite simply the concept of a level playing field between the state and the citizen no longer exists as a practice or a philosophy.  It is now shown that in our crown courts where the consequences for unrepresented defendants are so much more severe than in the lower court reductions in legal aid are all too apparent.  A short article in today`s Law Society Gazette is worth a glance.  

AN OPINION?

It is unusual that a judgement at the Court of Appeal might appeal (excuse the pun) to the reader of this site. However today`s result on when is "opinion" "opinion" is quite interesting. 

INQUEST INJUSTICE

Only a tiny minority of the population has been or will be involved in a terrorist attack. Of these unfortunates a significant number has been or will be killed.  In those circumstances an inquest would normally be held in order to establish the facts of what happened.  Unlike court proceedings it will be inquisitorial not adversarial.  All the government agencies involved will be represented by highly qualified legal teams funded by public money; your taxes and my taxes. The relatives of the bereaved will not be so funded.  Legal aid is usually unavailable for such people unless "it is the public interest" and only after an intrusive and means tested process.  That is one example of how our government hides its secrets.  It is a disgrace about which most people don`t know or care. It is a prime example of how very rotten our governing classes have become. It is yet another example of the bedrock of our society disintegrating before our very eyes.  But of course the MOJ has an explanation: "Our thoughts remain with those who lost loved ones and while our review showed that legal representation is not necessary for bereaved families at the vast majority of inquests we are making changes to ensure there is more support for them."

THE SACKING OF RICHARD PAGE ex J.P. PART 4

Insert "Richard Page" into the search box and you will find a history of one of the most controversial sackings of a Justice of the Peace in living memory. The posts, the most recent of which was earlier this year on January 7th, need no explanation; they speak for themselves. It seems the final chapter of this story has been written.  An employment appeal tribunal has ruled that he was rightly dismissed.  Readers will have their own opinion on the decision made earlier this week.  

PARLIAMENTARY JUSTICE COMMITTEE REPORT

The Parliamentary Justice Committee has just published its latest report on the magistracy.  It seems that these worthy representatives of ours are once more wasting their time and effort not to mention our pounds.  Since 2010 the Conservative governments including the Coalition have steadily and painstakingly reduced the budgets of the justice system as a whole; from the curtailment of legal aid to the bare bones resulting in the impoverishment of the young lawyers seeking to secure their professional status by the imposition of pay rates in many cases no better than those of checkout workers to the acute shortage of judges who actually preside over crown courts and sit at the high court and whose position must not be overlooked even although many corbynites might consider they are already overpaid.  Then they would wouldn`t they.  Their modus operendi is to sow discord and confusion. Hundreds of closed courts based on government lies about the time and transport costs of alternative venues have taken place in the last decade. Prisons are a disgrace for a supposed enlightened nation.  And so to the magistracy: numbers of JPs have almost halved in the last decade.  Training costs have been decimated.  Probation services are not fit for purpose owing to Grayling`s failings. Bleatings are repeated by a desperate MOJ press office for more JPs to be appointed especially those from ethnic minorities and from disabled individuals who might or might not be able to offer 100% of what is required for the job. The list goes on.

Our justice system of which I as a new magistrate twenty or so years ago was so proud is now but a historical footnote. But all these newly appointed magistrates are unaware of that history.  They are represented not by elected colleagues (the Magistrates Association is but a figleaf)  but by government appointed lackeys and are known as national magistrates.  Where will this salami slicing end?  The apologists for all the above and more  will say that as a result we will have a streamlined system where justice is done to all.  The Jeremiah in me overcomes my natural optimism to conclude that on one side with a government more incompetent than any in my lifetime,  a parliament stuffed with self seekers whose main task is re-election and an opposition led by an antisemitic communist pied piper calling out a tune to dash our country on the rocks morally, defensively and economically, the prospects for our justice system are very poor.  But I forget; our civil courts at the highest level will still be targeted by unconvicted unscrupulous billionaires and their legal henchmen when their profits and/or their wives are failing. 

NUMBER OF MAGISTRATES COURT SESSIONS

A recent parliamentary answer by  Paul Maynard The Parliamentary Under-Secretary of State for Justice was as below:-

The number of sessions sat in magistrates’ courts in England in the calendar year 2018 was 208,711. We don’t count days sat in the magistrates’ court and instead count sessions. A session is usually half a day in length.

A Freedom of Information request as to how these sessions were allocated to magistrates or District Judges(MC) was unable to be answered. " I can confirm that MOJ holds some of the information you have requested. However, to provide as the request currently stands would exceed the cost limit set out in the FOIA. Section 12(2) of the FOIA means public authorities are not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for central government it is set at £600. This represents the estimated cost of one person spending 3.5 working days determining whether the department holds the information."  

Perhaps a number crunching reader can offer some insight into the significance or other wise of these figures bearing in mind my post of April 24th.  

NO INNOVATIVE THINKING AT THE MOJ

Main stream news unsurprisingly reports legal matters at the top of the legal tree; violent criminality, criminal suspected activity by famous persons, international infamous criminality, multi billion cases from the civil courts etc etc. These are the headline makers; the two minutes in a ten minute news bulletin. These events are not the legal stuff that affect the vast majority of the public. The million and more cases before magistrates courts every year are those which have an impact on the lives of most of us. And all the processes involved in these matters are treated with contempt by government. Police are so under resourced that most so called "minor" offences are in simple language "written off". Those that actually get to court, the tip of an unknown criminal iceberg, are often undercharged, undefended by people who have not the wherewithal intellectually or financially to present their case and who face a punishment if guilty determined by MOJ budgetary restraints rather than joined up thinking. Around 70% of those million cases have alcohol or drug addiction at the root cause of their offending and no government has has an answer to this problem which is costing billions of £ and thousands of lives annually. Those policy makers are bean counters with the occasional answers from innovating thinkers squeezed out of the process as was David Nutt. I am no innovator by training or inclination but a moment`s thought must lead to the conclusion that change is overdue in the treatment of such offenders as this. There is no sentence suitable for her or to address her offending. My answer is, to use the term offered by the Victorians, the workhouse. Not the institution we all read about as described by Dickens but an institution fit for the problems of the 21st century. Type that word "workhouse" into the search box on the side of this post for further information of my proposals which of course have absolutely no chance of being acceptable to any authority steeped in the ways of those who govern us. Innovative thinking is not a requirement for the MOJ just as common sense, a requirement when I was appointed JP, is not needed now to sit on the bench.

U TURN ON SENTENCING BY MAGISTRATES ASSOCIATION

Shortly after my appointment as a Justice of the Peace like most of my colleagues I signed up to the Magistrates Association happy in my mind that the modest annual membership fee was a worthwhile payment for services received directly and indirectly.  I attended  not only local training sessions but more intimate brainstorming sessions.  Indeed at one such get together I suggested that with so many talented individuals with varied skills surely it would make much sense to invite such members to utilise their skills in direct service to the MA eg in marketing, public relations, statistics, informative writing, teaching etc etc etc.  This was at time when the members numbered about 90% of 30,000 JPs and when MA professional staff was minimal.  My suggestion made at the highest level was, as far as I know, never formally adopted. The MA around the millennium sponsored an interactive forum on its website after an initial member`s attempts failed. That effort ceased after a few years coinciding with the beginning of the government`s initiatives to bring the magistracy under closer control and at a stage now where HMCTS treats magistrates as unpaid employees and the MOJ appoints magistrates to represent magistrates. It was only around the millennium that government advisory panel considered increasing magistrates courts custodial powers to twelve months.  Now we have a situation where an emasculated probation service is being lobbied to take over all previous instances where custody would have been employed to ensure rehabilitation of a high order is available for the 4% of such offenders from well over a million cases annually where immediate custody is the outcome. This week the MA announced its backing for the abolition of all custodial sentences less than eight weeks. I would ask the Association upon what basis does it have its members` opinions to make such an announcement which is a major policy turn.  There is no doubt that heavy pressure must have been applied by government and that is its prerogative but if the Magistrates Association, a mere rump of its previous incarnation with only about 80% of the current 16,000 JPs as members, makes such an obvious U turn on its members` behalf the process of that decision being made must be made public. 

BENCHES GET IT RIGHT

Latest annual figures indicate there were 1,462,441 cases at the magistrates courts.  Of these 4,739 were appealed at the crown court against the verdict. 2,061 were allowed.  3,600 were appealed against sentence and 1,752 were allowed.  As a non statistician or lawyer I would suggest that this shows that benches did their job fairly well. 

THE PILLAR CRACKED

I really hope I`m not being repetitive but it seems that cases like this are more frequent than perhaps a decade ago.  Even if that is not the case the process of dealing with them has failed, is failing and will continue to fail until old ideas are swept away.  As with 70% of such offending alcohol and/or drugs are responsible for the recidivism.  Only by treating that underlying cause in a new and radical fashion will there be a possibility of rehabilitating such people.  The current so called choices for sentencers and probation service are next to useless. I have argued here for many years that that new form of institution required to carry out treatments for such offenders must have them under lock and key and subject to compulsory detox procedures. Write "workhouse" in the search box and take your choice of posts. Dismiss the underlying theme as is your wont but consider how you would address the problem. Add the comments to your reading. Apart from the ill informed ones most of the them indicate a legal failure to deal with the issue.  Public lack of confidence in our judicial system which these comments represent is another crack in the justice pillar which is the mainstay of democracy.  

WHAT A PREDICTABLE PROBLEM

Every day thousands of demands are made of those in the probation services the efficiency of which as readers will know was decimated by Grayling`s disastrous incompetence at the MOJ.  One such demand is when an offender is being considered for unpaid work as part of a community sentence. Whether or not s/he is represented the bench should make detailed inquiries as to that person`s availability for such work; eg whether a disability could be a problem, childcare duties, employment obligations  etc etc. Since every court appearance by every offender costs the state money  it is in everyone`s interest that when sentencing all possible questions are raised as to any unforeseen problems that might arise. In the case reported here unless one was in court the quality of such pre sentence investigation is unknown but we do have reported the result.  Perhaps with the culling of senior JPs by retirements inexperienced magistrates are being let down by their legal advisors or perhaps pressures of time through overlisting are having not unexpected consequences. 

US AGAINST THEM:WHEN NOT IF

There is no doubt that at many levels the criminal justice system is badly damaged if indeed "broken" is too severe a description; an opinion I do not hold. The civil courts still manage to operate with a modicum of fairness to those who use it.  Its being employed by very high net worth individuals to settle their disputes and divorces lines the pockets of those lawyers who specialise in such matters where legal aid is akin to band aid for billionaire pop stars.

It is unquestionable that there is a great temptation for unrepresented defendants in magistrates courts to plead guilty to "get the matter over with at the lowest possible cost".  Even before the introduction of Grayling`s iniquitous Criminal Courts Charge I as well as many colleagues had the personal experience of explaining to such defendants the downside of such hasty ill considered decisions often to little avail. For many years and with varying frequencies depending on the MOJ press office priorities and the loudmouth of the newest Minister to sit in Petty France, there have been hints that short custodial sentences ie those handed down by magistrates courts should be abolished.  The last few months have seen a resurgence of such "hints" on social media. Then a few weeks later we are told that the probation service grievously wounded by Grayling amongst his other failings is to be given a new lease of life as a quasi nationalised service in 2021. Every month prison numbers are published.  Most recent figures below:-

All manor of the MOJ`s arts and crafts are employed to reduce these numbers including the automatic release after half a sentence has been served. But the current judicial system just like the current political system is not fit for purpose.  Every day in every magistrates court in England and Wales benches (and District Judges MC) are making decisions which fly in the face of common sense and purpose. This is but a single example.

The very basis of the pillar of justice can no longer be relied upon whether "justice" is used in its simple legal definition or its application to the trials through which many of the public are put when dealing with government departments.  The NHS eg is considered by many to be a totem; to be sacrosanct in its current form when such a system is demonstrably failing those who bet their lives on it. But any who dare utter any criticism are regarded as pariahs.  There is so much gone awry in our politics in its widest form that in historical terms indicates a populist uprising of "us" against "them" is but a matter of "when" and not "if".

FAILING GRAYLING`S ROAD TO AUTHORITARIANISM

The current Lord Chancellor (how long will he remain in post) announced today that the probation service will in effect be re nationalised in 2021.  Thus another "innovation" of the worst of his predecessors and least effective cabinet minister of modern times bites the dust. The probation service pre Grayling was, in my area, a service teetering on the brink of failing those in whom the courts had placed their future hopes of offenders  leading a law abiding future life.  Virtually every group or organisation involved with the delivery of probation services advised Grayling of the pitfalls in his proposals. The due diligence and pilot projects reinforced those predictions but he continued like the proverbial bull crashing into all the china. Not satisfied with what would be a ruinous policy he proceeded to inflict more of his ill considered policies. He removed the rights of prisoners` having books in their cells. Books were to be allowed to prisoners only when they displayed good (compliant) behaviour. To his eternal shame he reduced by tens of £millions the legal aid budget and enforced severe financial cuts on the CPS. Perhaps these two decisions have contributed more than anything else to the calamitous state  of today`s justice system. Arguably his crowning glory was effecting the Criminal Courts Act in 2015 by which the imposition of court charges for all offenders irrespective of their ability to pay or original offence was so iniquitous IMHO that I retired shortly ahead of my allotted date so that I would not have to utter the pronouncement of said additional costs. His disastrous tenure at the MOJ was merely the latest in a line of questionable policies beginning in 2010 when the then Lord Chancellor Kenneth Clarke proudly announced in line with the austerity policies of the Coalition his forthcoming budget cut of 23% for the Ministry of Justice before any of his cabinet colleagues had announced theirs. Graylings lamentable period in his office was from 2012-2015.  Michael Gove who followed Grayling lasted in post for only one year but during that time he abolished the Criminal Courts Act and undid many of his predecessor`s actions re the prison service. From Clarke to Gauke ie from 2010 until the present time there have been six Secretaries of State for Justice.  Is it any wonder that our justice system is in terminal decline?    

The lamentable history above is but a microcosm of what has befallen this nation as a result of the Referendum; a device hastily thrown together to serve the interests only of the Conservative Party.  Grayling`s failings were all and I repeat all approved in cabinet. That miserable collection of incompetents for their own selfish reasons and laterally serving under the most incompetent personally unsuitable holder of the title of prime minister allowed the country to drift politically adrift from all reality.  Grayling as a hard Brexiteer was kept in Cabinet as Secretary of State for Transport where  currently he is continuing to demonstrate his complete and utter unsuitability for office.  Paradoxically his being there is final proof that the government has not only failed the country and its people; he has reduced confidence in the democratic norms we have taken for granted since 1945.  If this country tends to populism and subsequent authoritarianism a route from Grayling in 2012 until today can be directly traced as having nurtured the unthinkable. 

MAGISTRATES COURTS MUST RETAIN POWERS OF CUSTODY

There has been a flurry of announcements on social media particularly Twitter that the MOJ is seeking to abolish "short" prison sentences.  That is a press relations department`s way of talking up a ban on any magistrates court being enabled to send offenders to custody.  Instead any outcome would be of a financial or so called rehabilitative nature overseen presumably by some sort of probation service which owing to the incompetence of failing Grayling is utterly incapable of providing such a service.  Such is the way the iniquitous weasels at Petty France perform their duties. Despite the usual moaners and groaners who have been pressing for such changes in the powers of the lower courts for as long as I have been involved in such matters it is almost a dead certainty that their desires will be as pie in the sky in the next decade  as they have been in the past. 

To return to real life as it is lived in court this offender has been correctly treated as the law allows.  To all those in the aforesaid moaners and groaners camp please indicate how they would prefer such a miscreant be treated were custodial sentences to be prohibited in the lower court. 

2007-17 FINES AND MORE FINES

Today the MOJ released its latest batch of criminal justice statistics.  No doubt most major news outlets and commentators  will be giving their opinions on what they all mean and then the politicians will weigh in.  I cannot and will not compete with that but I can comment on just a snippet of information from the myriad of numbers below which can be seen more clearly with the Windows magnifier tool.  They cover the years 2007-2017

The inflation rate in the £ over those ten years was 31.89%. The average fine (top of table left) in 2007 was £172 and ten years later (top right of table) was £256; a rise of 49%.  At the other end of the scale for fines over £10,000 there were 276 offenders in 2007 and in 2017 such offenders receiving over £10,000 fines numbered 2695. That major increase seems to be a direct policy result of using fines as punishments in place of other outcomes. There is much to decipher in this table. Readers more acquainted with statistics might have their own knowledge and opinions. 

RAPE AND DIGITAL HISTORY

Not surprisingly this page is usually used to air problems, grievances, histories etc of matters  normally associated with magistrates courts and/or their users. Generally matters of law are beyond the competence of the blogger and best left to those who are more qualified to comment.  However there are from time to time matters where the principle underlying that law or decision can be open to comment to any thinking member of the public.  Such a situation arose last week with the lurid headlines in most of the press of the victims` lobby denouncing new police procedures when there is an accusation of rape.  During my time on the bench I have seen the rise and rise of this lobby to such an extent that the impartiality of our legal system can rightly be called into question. On the issue of rape this has had a profound effect on the manner in which complainants (pre a guilty verdict the "victim" is a complainant), have been and are treated.  Whilst there is little doubt that in the past such people have been less than justly considered by police and prosecution there is a real danger that the legal pendulum has swung too far. It seems that the words of that great thinker Benjamin Franklin (1706-1790) "That it is better 100 guilty persons should escape than that one innocent person should suffer", is a maxim that has been long and generally approved in law books but in current times has been placed in the waste paper basket of our legislators. Shrieks from vocally enhanced left thinking activists have left the facts of the situation far behind. There are strict conditions to be applied when application is made to examine complainants` phone records.  If there had been no infamous cases of late of false allegations of rape it is unlikely that the changes would have been considered. By denouncing the procedures outlined there is no doubt that a green light would be given to more such false allegations. The mere fact is that the spectrum from lawful consensual sexual intercourse to rape is a difficult legal road to travel when in most cases it is a case of he says she says. There are in our midst those who have in their minds the "she was asking for it" scenario when a woman`s clothing, sobriety and behaviour have had a bearing on their attitudes to sexual intimacy whether in the privacy of a home or in the steam pressure cauldron of the jury room. Franklin`s adage was correct in the male orientated society in which he lived and is equally correct in our supposed times of enlightenment. 

REAL COST COMPARISON OF DISTRICT JUDGES AND MAGISTRATES

I have long opined that an unsaid policy of the Ministry of Justice is that the role of Justices of the Peace should be in managed long term decline in order that government would have  total control of the court process. In the last decade JPs` numbers have halved to around 15,000. District Judges(MC) numbers have been fairly constant over the last five years at around 115 with a slightly greater number of part time Deputy DJs. The argument that such an opinion is misguided is usually based upon the vastly greater costs of employing professional judges, ie DJs. The official statistics of the comparable costs are tabled below. 

These numbers, however, have a hidden story. Taking the 2017-18 figure for DJs alone £22,012,824 simple arithmetic results in a cost per DJ of £194,803. Now consider that the current salary of a DJ is £110,335 with an additional payment of £8,000 p/a for London appointments and that the MOJ contributes around £8,000 towards the DJ`s pension. DJs must devote a minimum of 215 days each year to judicial business. It is reasonable to assume that about seven weeks holiday is paid for.  So in reality the individual costs about £120,000+ per annum in addition to the cost of holiday cover of the lost seven weeks by a DDJ of at least £500 per day which works out at about £17,500. The costs imposed to reach the figure of £194,803 amount to £57,500.  These admittedly crude calculations lead me to believe that this last figure is the cost of a qualified legal advisor sitting with the District Judge. Without knowing exactly how many sittings are performed by DJs, DDJs and lay magistrates it is impossible to calculate the actual cost of a DJ + L/A  to compare with the expenses incurred by magistrates` costs of  £9,143,381.  What can be implied is that if the qualified L/A attending with a DJ were removed from the calculation or replaced with a low level unqualified clerk the cost advantage currently favouring using magistrates would be considerably reduced perhaps to the level where my previously stated opinion would be likely to be implemented. 

TO PUNISH OR NOT PUNISH;THAT IS THE QUESTION

Every day thousands of cases hit the magistrates courts. This observer can generally comment only on what reaches the public domain although from time to time information is available from other sources. In the former category I noticed this week two examples of what I believe are real but subtle changes in how we ie the law, treats miscreants at the lower level of harm.

Freedom of expression is perhaps the most basic of all our "freedoms".  And most importantly freedom to express that which others might find objectionable is arguably one of the most difficult areas in law as to where the line of freedom  is drawn that one person`s freedom is another`s hurt feelings or worse.  The laws of slander and libel have developed over the decades to cope with social media but many cases are much less clear cut than those which involve wealthy corporations and whistle blowers. 

Earlier this week Southark News reported that "A man from South Norwood has been charged after a video of a burning cardboard model of Grenfell Tower was shared online. Paul Bussetti, aged 46 (30.05.72) was charged on Friday, April 12, with two counts of sending, or causing to be sent, grossly offensive material via a public communications network. This is contrary to section 127 (1) (a) and (3) of the Communications Act 2003.He will appear at Westminster Magistrates’ Court on Tuesday, April 30."

Type in the search box exceptional hardship and my reader will read many of my examples where IMHO those on the bench applying the non guidance on this matter to the advantage of the offender are just plain soft and afraid to use the law as it is meant to be applied. They might be impressed by a junior counsel`s heartfelt apologetic  words or the seniority of the accused.  They might feel that they themselves if in that position would beg steal or borrow to avoid the mandatory disqualification on reaching 12 penalty points.  One reason I had offered by colleagues more than any other to accept the hardship argument  is the old story; leave the Sword of Damocles hanging over his head until the next time. What a fatuous argument in a matter where the current offence is at the very least the second in the three year period.  Indeed in most cases the disqualifying offence is the third or fourth example of the law being broken. Where is that useless sword to be sheathed?  

Here is another example where a bench, at least according to the report, did not have the cajones to do its job to punish habitual law breakers on our roads. 

DRIVING AND MOBILE PHONE "USE"

Every magistrate will have had his/her own experiences of excuses offered by those defending a charge of using a mobile phone when driving.  Such a  driver convicted of using a mobile phone whilst driving has been given leave to appeal his conviction at Willesden Magistrates Court and a subsequent upholding of that conviction at the crown court.  The High Court will consider the matter: should be interesting. 

CHICKENS HOMING IN TO THE MINISTRY OF JUSTICE

I have long advocated here and elsewhere that offending drug users should be removed from the court pathway and transferred willingly or otherwise to a medical pathway where they can be treated for their addiction under lock and key until it is considered that they are no longer dependant. These institutions I have described as workhouses for a modern age. To view such posts type "workhouse" in the search box.

It seems that the Sentencing Council in its wisdom has made wide sweeping changes in its Guidelines for sentencers of addicts (and others).  This is a promising start for such cases.  Around 70% of violent and/or acquisitive crime is committed by addicts. Police have more or less washed their hands in pursuing cannabis possession for own use.  It is only a matter of time until contrary to the opinions of some outspoken right wing so called thinkers a format will be achieved to remove cannabis possession from the criminal law.  Until such time those responsible for our judicial system like its political counterpart will have to undertake radical  revision of processes which are so obviously not fit for purpose. The country is in a mood for change.  It is a dangerous time. My fear is that if clear thinking people in positions of power and influence do not appreciate the problems only a short time ahead of us decisions will be taken out of their hands. The complete and utter incompetence of Theresa May and her Cabinet have changed our political landscape for ever.  There is a high risk that dark forces will prevail to fill the vacuum of the current lot of MPs who have lost the confidence of those they should be representing. 

I have not been a supporter of much of what the Sentencing Council has produced in the decade or so of its existence. But this much is clear; the public will not for much longer tolerate sentencing which allows so many custodial outcomes to be suspended nor automatic release from custody when only half or less of a sentence has been served.  The Ministry of Justice since 2010 under that arch EU appeaser Kenneth Clarke has been deprived of such amounts of capital that it is a miracle that it still functions. It cannot continue.  The chickens at the Home Office have come to roost. The door is open at the coop at Petty France.