ALLOW MEDIA TO SPONSOR LIVE TELEVISING MAGISTRATES COURTS

For some years there have been musings from quarters on high on the televising of events at the criminal courts.  Since its inception the Supreme Court has been available for those interested to view on line. I`m sure that nobody then would have predicted that during the Brexit legal shenanigans prior to October 31st last year at its height over 2.8 million viewers gave up some of their valuable time to watch the live proceedings.  However with regard to the every day process of justice at magistrates and crown courts with the decline of local print media that process has become ever more invisible to the general public in England and Wales. However for those north of the border the criminal justice in my opinion bears much more relevance to this new millennium than its southern counterpart.  

  
Guide to Jury Service Eligibility and Applying for Excusal in Scotland
Are you qualified for jury service?
Subject to the information included in boxes A and B below, you are qualified for jury service if:
 you will be at least 18 years old on the date that you start your jury service;
 you are registered as a parliamentary or local government elector; AND
 you have lived in the United Kingdom, Channel Islands or Isle of Man for any period of at least 5 years since you were 13 years old.
You are not qualified for jury service if you do not meet all of these criteria, or if anything in box A applies to you, and you should complete the enclosed application and return it to the court as soon as possible.
You are ineligible if anything in box B applies to you, and you should complete the enclosed application and return it to the court as soon as possible.
You may apply for excusal as of right if the information in box C applies to you. If you wish to apply you should complete the enclosed application and return it to the court as soon as possible.
WARNING: It is an offence to serve on a jury knowing that you are not qualified for jury service or are ineligible or disqualified from jury service.
Part 1 of your application
You must fill in this section carefully or the court will not be able to process your application. Please make sure that you include your name, address, person ID (this is the number which is in brackets after your name on the front of your citation, it is 7 or 8 digits long), date of birth (where requested).
Box A – Persons disqualified from jury service
You are disqualified from jury service if:
 you are on bail in or in connection with criminal proceedings in any part of the United Kingdom;
 you have been sentenced, at any time, in the United Kingdom, the Channel Islands or the Isle of Man –
 to a period of imprisonment for life or for a term of 5 years or more; or
 to be detained during Her Majesty’s pleasure, during the pleasure of the Secretary of State or the Governor of Northern Ireland (i.e. sentenced for murder while under the age of 18);
 or you have in the United Kingdom, the Channel Islands or the Isle of Man –
 in the last 7 years (or 3.5 years where you were under 18 on the date of conviction) served any part of a sentence of imprisonment or detention, which was for between 3 months and 6 months; or
 in the last 10 years (or 5 years where you were under 18 on the date of conviction) served any part of a sentence of imprisonment or detention, which was for between 6 months and 30 months; or
 at any time served any part of a sentence of imprisonment or detention, which was for between 30 months and 5 years; or
 in the last 7 years been detained in a borstal institution;
 in the last 5 years (or 2.5 years where you were under 18 on the date of conviction) you were convicted of an offence and one or more of the following disposals was made:
 a drug treatment and testing order;
 a restriction of liberty order;
 or a community payback order;
under the Criminal Procedure (Scotland) Act 1995; or
 a community order under the Criminal Justice Act 2003;
 a youth community order under section 33 of the Powers of Criminal Courts (Sentencing) Act 2000;
 a community order under the Criminal Justice (Northern Ireland) Order 1996; or
 a drug treatment and testing order under the Criminal Justice (Northern Ireland) Order 1998.
Box B – Persons ineligible
You are ineligible for jury service if any of the categories mentioned below apply to you:
 you are a Justice of the Supreme Court or the President or Deputy President of that Court;
 you are a Senator of the College of Justice;
 you are a sheriff;
 you are a summary sheriff
 you are a Justice of the Peace;
 you are the chairman or the president, the vice chairman or vice president, the registrar or assistant registrar of any tribunal;
 you have, at any time within the 10 years immediately preceding the date at which your eligibility for jury service is being considered, come within any description listed above in this box.
 you are an Advocate or a solicitor, whether or not in actual practice as such;
 you are an advocate’s clerk;
 you are an apprentice of, or a legal trainee employed by, solicitors;
 you are an officer or staff of any court if your work is wholly or mainly concerned with the day to day administration of the court;
 you are employed as a shorthand writer in any court;
 you are a Clerk of the Peace or one of their deputies;
 you are a member of or staff of the Scottish Police Authority
 you are an Inspector of Constabulary appointed by Her Majesty;
 you are an assistant inspector of constabulary appointed by the Secretary of State.
 you are a constable of the Police Service of Scotland (including constables on temporary service within the meaning of section 15 of the Police and Fire Reform (Scotland) Act 2012.
 you are a constable of any constabulary maintained under statute;
 you are a person employed in any capacity by virtue of which you have the powers and privileges of police constables;
 you are a special constable;
 you are a police cadet
 you are person appointed under section 26(1) of the Police and Fire Reform (Scotland) Act 2012.
 you are a member of the National Criminal Intelligence Service;
 you are a member of the Service Authority for the National Criminal Intelligence Service or a person employed by that Authority under section 13 of the Police Act 1997;
 you are an officer of the National Crime Agency;
 you are an officer of prisons, remand centres, detention centres, borstal institutions and young offenders institutions;
 you are a prison monitoring co-ordinator appointed under section 7A(2) of the Prisons (Scotland) Act 1989 and independent prison monitor appointed under section 7B (2)(a) of that Act
 you are a prisoner custody officer within the meaning of section 114(1) of the Criminal Justice and Public Order Act 1994;
 you are a procurator fiscal within the meaning of section 307(1) of the Criminal Procedure (Scotland) Act 1995, or are employed as a clerk or assistant to such procurators fiscal;
 you are a messenger at arms or sheriff officer;
 you are a member of a children’s panels;
 you are a reporter appointed under section 36 of the Social Work (Scotland) Act 1968 or are a member of a reporter’s staff;
 you are a director of social work appointed under section 3 of the Social Work (Scotland) Act 1968 or are employed to assist such directors in the performance of such of their functions as relate to probation schemes within the meaning of section 27 of that Act;
 you are a member of the Parole Board for Scotland; or
 you have, at any time within the 5 years immediately preceding the date at which your eligibility for jury service is being considered, come within any description contained in the categories above in box B;
 you have, at any time within the 5 years immediately preceding the date at which your eligibility for jury service is being considered, been a member or employee of the Scottish Police Services Authority.
SCS003Pilot
 you are a member or employee of the Scottish Criminal Case Review Commission;
 you are a chief officer of a community justice authority established under section 3 of the Management of
Offenders etc. (Scotland) Act 2005;
 you are a person who is receiving medical treatment for a mental disorder and are either –
 for the purposes of that treatment, detained in hospital under the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995;
 for the time being subject to guardianship under the Adults with Incapacity (Scotland) Act 2000.
Are you eligible to apply for excusal?
Box C – Persons excusable as of right
If you come within one of the categories noted below, you have the option to apply to the court to be excused as of right. Please Note: you will only be excused ‘as of right’ if you apply within 7 days of receiving the Jury Citation. If you apply outwith this period then you will be required to state a good reason for excusal. The clerk of court will consider your request, taking account of all relevant circumstances and you may be required to attend for jury service. This does not apply if you are aged 71 or over - in these circumstances you can apply for
exemption up until the date you attend court.
 you are a peer or peeress entitled to receive writs of summons to attend the House of Lords;
 you are a member of the House of Commons;
 you are an officer of the House of Lords;
 you are an officer of the House of Commons;
 you are a member of the Scottish Parliament;
 you are a member of the Scottish Executive;
 you are a junior Scottish Minister;
 you are a representative to the Assembly of the European Parliament;
 you are a member of the National Assembly for Wales;
 you are the Auditor General for Scotland;
 you are a medical practitioner; dentist; nurse; midwife; pharmaceutical chemist; or a veterinary surgeon or veterinary practitioner (if actually practising your profession) and are registered (whether full or otherwise), you are enrolled or are certified under the enactments relating to that profession;
 you are a practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service.
 you are a person in a holy order;
 you are a regular minister of any religious denomination; or
 you are a vowed member of any religious order living in a monastery, convent or other religious community.
 you are a serving member of:
 any of Her Majesty’s naval, military or air forces;
 the Women’s Royal Naval Service;
 Queen Alexandra’s Royal Naval Nursing Service; or
 any Voluntary Aid Detachment serving with the Royal Navy.
However, if your commanding officer certifies that it would be prejudicial to the efficiency of the force of which you are a member, should you be required to attend for jury service, you may apply for excusal as of right up until the date you attend court;
 you have attended court for jury service within the last five years but were not selected by ballot to serve on a jury (this only applies where your previous attendance was on a date prior to 10th January 2011);
 you have attended court for jury service within the last two years but were not selected by ballot to serve on a jury (this only applies where your previous attendance was on a date on or after 10th January 2011);
 you have attended at court for jury service and were selected by ballot to serve on a jury, within the last five years;
 you were excused by direction of any court from jury service for a period which has not yet expired;
 you have reached the age of 71.
SCS003 Pilot V19.02.19
Applying for excusal
Box D – Applications for excusal on the grounds of ill health or physical disability
If you wish to apply for excusal on the basis of ill health or physical disability then you must enclose a medical certificate along with your response. This can normally be obtained free of charge from your GP, in terms of Article 4 of Schedule 4 and regulation 25 of The National Health Service (General Medical Services Contracts) (Scotland) Regulations 2018 (2018/66). If your doctor considers your condition is long term or unlikely to change, please ask your doctor to include this information in your medical certificate.
Box E – Applications for excusal due to other special reasons
If you wish to apply for excusal due to another special reason, for example commitments at work, cancellation of which would cause abnormal inconvenience either to yourself or others, or holiday plans which would be difficult or expensive to rearrange, you should complete the relevant sections of part 3 of the form. You must also provide evidence of this, for example booking confirmation or letter from your employer.
Whilst all applications for excusal will be considered sympathetically, you must understand that court staff may not be able to excuse you from jury service. Rules of court state that a jury cannot be balloted where there are less than 30 of those named on the list of jurors present in court, meaning that it may not be possible for court staff to excuse jurors in all cases.

English requirements are available here. Perhaps the biggest differences between the two trial systems is that the Scottish jury of 15 has to meet only a simple majority for a verdict to be reached and that there is the third verdict of not proven available. In Scotland rather than the police who lead an investigation in England it is the procurator fiscal who takes a much greater role than the CPS in the active role of investigation. "Double- sourcing" evidence is unknown in English law. In Scotland it describes the corroboration of evidence which is all important in serious offences.  In practice in addition to a complainants`s evidence there must be additional evidence preferably DNA related or else the case cannot proceed. It could be said that some aspects of the process are akin to the French way of conducting matters insofar as their examining magistrates initiate investigations and issue warrants. Indeed I have long advocated here and elsewhere that Justices of the Peace take a more investigative position especially when trials involve unrepresented defendants. 

However the major difference is that those wise Scottish legal eagles have allowed television into the criminal court.  That decision was further reinforced recently when edited sections of a murder trial were on our televisions recently  Admittedly this was not a live broadcast but it probably dismayed those in the senior English judiciary who would still murmur in private that things have already gone too far in removing the supposed sacred aura surrounding the legal system. 

For the last decade successive governments have allocated ever decreasing funds to a justice system which is more and more seen as having to pay its way in contrast to the historical concept that it had been considered a public service and not a pay to use activity. The demise of local court reporting which has been commented upon more than once on this site has left the door open for enterprising media companies to sponsor live TV broadcasting from magistrates courts. The financial input would be welcomed by HMCTS and the idea of "open" justice would be a reality.  It might not be until the end of this decade but I have no doubt it is just a matter of when and not if. 

Previous posts which might be of interest are available here,  here and here.  

BANNED FOR RIDING AN E BIKE

Electrically assisted pedal cycles, as the government defines electric bikes, can be ridden without bureaucratic interference from the Ministry of Transport provided they comply as follows


An EAPC must have pedals that can be used to propel it.

It must show either:

    the power output
    the manufacturer of the motor

It must also show either:

    the battery’s voltage
    the maximum speed of the bike

Its electric motor:

    must have a maximum power output of 250 watts
    should not be able to propel the bike when it’s travelling more than 15.5mph

An EAPC can have more than 2 wheels (for example, a tricycle).
Where you can ride

If a bike meets the EAPC requirements it’s classed as a normal pedal bike. This means you can ride it on cycle paths and anywhere else pedal bikes are allowed

It was therefore surprising to read that a disqualified car driver at Taunton Magistrates Court was further disqualified as a result of riding an   E bike.  I would hope that the bench was familiar with the law as above. 

DAME ALISON SAUNDERS: THE PROCESS STINKS

Admission:- I am not a major fan of the honours system but...........at the age of 83 my late mother was awarded MBE for services to the community.  She ran her local Citizens` Advice Bureau for over twenty years.  She was immensely proud of these three letters and was known to occasionally let others be aware of her pride.  She thoroughly deserved that royal recognition and others who have been similarly awarded are likewise held in high regard in their communities and rightly so.  However, when the prime ministers responsible for the recommendations of the highest public awards do so in act akin to the showering of confetti at a bridal party the smugness and aloofness of their position should be intolerable. It isn`t. Twice yearly undeserving gong seekers are bestowed with their lifelong dream irrespective of their worthiness. From failed politicians and former MPs being given a meal ticket until death in the House of Lords to those who have been miserable failures in their often public positions the tale seems endless. In the recent so called honours list no recipient has least deserved this form of recognition than Alison Saunders; recently retired head of the CPS. I first posted on her 13th April 2015;  10th October 2016 was her next appearance followed by 10th October 2017 . Under her so called leadership rape prosecutions fell apart owing directly to police and CPS failures to disclose evidence to the defence that might have assisted in defence counsel arguing their clients` innocence. She had succumbed to the "rape lobby" in their spurious arguments that far too many men were "getting away with it" and was determined to increase the conviction rate by whatever means were within her power. Between 2014 and 2016 disclosure errors in such trials increased by 70%. She failed three times to convict defendants accused of female genital mutilation. Of sinister import under Operation Elveden 34 journalists were arrested and 29 charged with making payments to public officials.  Many were on bail for years in a legal limbo while CPS tried to build a valid case.  None was convicted. There was a similar scandal under Operation Yewtree concerning historical sexual abuse claims later dismissed. Her period in office was nothing short of a shambles.  In any non civil service employment she would have been fired for incompetence but in our society where feather bedded  politicians and senior civil servants looking at their own futures behave as their Victorian forefathers did such direct actions are few and very far between. The current suggestions by Dominic Cummings, number one advisor to the prime minister, seeking weirdos out of the box to advise Tory policy might not be to everyone`s taste but they are a straightforward reaction to the very situation that allowed Saunders to keep her job.  But the fact that she has been made Dame Alison in the new years honours list is a scandal too far. Tax payers have funded her pension pot of £1.8 million while she has walked into a six figure figure salary at Linklaters. The whole process stinks.  

TOADY:- BE OBSEQUIOUS TOWARDS

Many more illustrious observers than I have pointed out in recent days that the government is seriously considering restricting the powers of the judiciary as a result of the shenanigans over parliament`s control of its proceedings during the Brexit debacle of last year. Those constitutional high flying legal eagles on and appearing in front of the Supreme Court certainly are well able to offer their own arguments when push comes to shove but where the legal system truly impacts upon the general population is at the magistrates courts and it is within the confines of this institution that the ravaging of our supposedly world renown justice system is there for all the world to see if it were interested and that`s the point; within and without "justice" the policy is make do and mend. When I was appointed in the 1990s magistrates controlled within certain boundaries the process. And that is when government began to extend its power. Beginning with the 1997 Labour administration and accelerating fiercely with the Coalition of 2010 and the following years of Tory rule. Magistrates were increasingly removed from positions of influence and began to resemble those in Pong Yang or Beijing listening with feigned rapture to the words of their great leader.  But until a couple of years ago there was still a couple of avenues where the untrammelled opinions of my former colleagues could be expressed by elected representatives on the Magistrates Association  and the National Bench Chairmans` Forum.  But that was still too much independence for the liking of an ever increasing authoritarian tendency at Petty France.  And thus was born the idea of "National and Regional Leadership Magistrates". These would be  toads allowed their own self aggrandisement to overcome any reticence that they would be lap dogs of the MOJ. They represent nobody but themselves in their path to public recognition at some future time with some magical letters after their name.  Their whole ethos is an insult to their 15,000 colleagues who serve their communities at the whim of their masters at HMCTS often being treated as unpaid employees instead of worthy individuals giving up their time and offering their varied expertise and histories in a worthy cause. For more information a post from 2018 might be of interest. 

For the record those appointed are listed below. 

    

PEACE ON EARTH

I suppose "peace on Earth and goodwill towards men" sums up precisely what the world needs most. Unfortunately recent events indicate that that aspiration might never be attained.  However until such time that that enduring phrase is erased from our consciousness and our consciences we can but be hopeful that we might reach an era when its repetition offers some solace to all of us.

I thank all my readers for the precious minutes they have spent to read my simple offerings in 2019 and hope to be back here with some more of the same in January.  

   

NO LEGAL AID MEANS NO ROSY FUTURE

Of all the announcements in the Queen`s Speech one that will have bypassed those without a vested interest in the subject is that almost 500 new prosecutors will be recruited in the next six months after concerns that criminal cases were dropped or delayed owing to a shortage of resources. Since 2010 when the MOJ budget was slashed by 23% and loudly proclaimed by he who has just retired as "father of the House; Kenneth Clarke", the justice system of which politicians of all hues shout so proudly has been allowed to fall into what can only be described as disrepair.  Of course at the top of the justice tree where the highest civil courts and their professional protagonists operate billions of pounds keep rolling in from those foolish individuals and companies with more money than they know what to do with. The Supreme Court as has been seen recently offers the most demanding questions of law to its members and provides the highest quality of decisions. But at t`other end in what remains of our magistrates courts and to a certain degree in the Crown Courts inefficiencies and sheer incompetencies  seem every day to outdo each other in their capacity to undermine swift, safe and secure justice for all. All the components in the running of a court are there in a state of disarray and/or wilful neglect. The numbers of magistrates was allowed to drop to alarming levels supposedly in line with a falling workload and the closing of half the courts in England and Wales. Urgent recruitment over the last few months and currently is likely to lead to a drop in quality standards of those hurriedly thrown into the midst of a recruitment policy which over emphasises the diversity mix as much as any other individual requirements. During the last few years of my career on the bench prosecutors without a law degree were being employed in matters where properly qualified CPS personnel were unavailable. Returning to my opening sentence there is no knowing of what academic or professional level these 500 hurriedly soon to be employed newcomers will have to have achieved but in all likelihood many will not be qualified lawyers.  During my tenure such people were referred to as "assistant prosecutors". It remains to be seen what 2020 holds but I`m afraid that without the availability of legal aid as it was twenty years ago that outlook is far from rosy.  

GOVERNMENT AND LAW

It would be churlish to ignore the election result on the basis of this writer being primarily concerned with matters which affect magistrates and those who appear before them  That a blatantly antisemitic communist whose political ethos has been driven by a hatred for western civilisation and sympathy and support for murderous terrorists became leader of the Labour Party reflects very badly on us all.  It remains to be seen whether his cult following will be culled by the incoming leadership. An English nationalist is now holding more power over us than any prime minister since 1945. He has returned to number 10  with an ouvert admiration for Donald Trump and irrespective of any  major policy announcements has clearly hinted that he regards the courts as an obstacle to his will having been humiliated by the Supreme Court and the Court of Session. I comment as a firm Leaver until last spring when it became clear that Theresa May was incapable of securing a withdrawal agreement that would not ruin much of British business and the jobs involved.  As a Remainer Now supporter on Twitter I am therefore not unhappy now that the Conservatives are securely in power and are likely to deliver on a settlement which will not be detrimental to our future growth but..................and that "but" is the  threat to the courts` powers to step in when the executive appears to have overstepped its authority.  There will be no European Union authority as a long off.  We will be on our own. Boris Johnson should be reminded that any changes to our legal system concerning the constitution would be available to a future government less inclined to operate under the rule of law.   

TV LICENSING SHOULD BE DECRIMINALISED

It seems, predictable as ever, Boris Johnson has come up with what he thinks might be a last minute inducement to secure more of the "grey" vote which tends to be more conservative than socialist. There is the possibility that over 75s will lose their "free" TV license next summer and he has hinted that he might tell the BBC to fund the freebie if it wants it to continue. With a maximum fine [rarely applied] for TV license evasion of £1000 appearing not to deter evasion by usually the poorest of pensioners he has mused on its abandonment. Last year there were 129,446 prosecutions for TV license evasion all of course in magistrates courts. It is exceedingly difficult to translate that number into meaningful statistics owing to the frequency of court closures undertaken since 2010 when the coalition government came to power.  It seems that 162 of the 323 magistrates courts in England and Wales have shut – a loss of 50.2% of the estate. That translates as the remaining 161 having each 804 defendants annually to deal with or 15 every week in each magistrates court.  It has been suggested that these cases represent about 10% of all cases at the magistrates court. There are about 26 million license payers ie about 0.50% of TV viewers` households have been found guilty of evasion. Along with the vast majority of my former colleagues I was none too happy with the situation. Invariably the poorest and/or recently arrived immigrants seemed to form the bulk of offenders although it was not unusual to discover that a subscription TV service was being paid for when the license was not. Those appearing before us were distressed to discover that that they had committed a criminal offence.  License inquiry agents tended to hold the first person to open the front door of a suspected premises to be the person responsible for the offence. Most members of the public do not know that they were under no obligation to open the door nor allow entrance to their property. I recall a case where that unlucky door opening first person who appeared before me and my colleagues was a visiting American Harvard law graduate who now as a result has a criminal record in the UK.  As a result when my son went to university I advised him not to overlook requiring a license for his flat`s TV and never to open the door to an inquiry agent. 

There is no doubt that it is about time that this offence was decriminalised and offenders were brought before county court. I would go further and agree with the aforementioned Johnson that in keeping with the development of digital entertainment platforms a license funded BBC is an anachronism.  That, however, is a situation outwith the sphere of legal eagles and is a purely political matter for those oh so wise individuals who are so superior in their judgement than we poor mortals; heaven be praised and God save the Queen. 

IT`S NOT WHAT YOU SAY: IT`S WHAT YOU MEAN. SOME PERSONAL HUMOUR

How often in general discussion do we ask for a remark to be repeated because although we heard what was being said we hadn`t actually been listening. A rarely mentioned benefit of chairing a court is that one trains oneself to listen to everything that is said. As I was listening to a weather forecast on TV last week the forecaster began by saying,"Most of us will have a wet and windy night". Speaking to my wife for both our sakes I remarked,"Not me I hope." 

EARLY RELEASE

The tragic circumstances last week involving a convicted terrorist who was freed early according to the law at the time in question has led to many claims and counter claims about which party was ultimately responsible.  That debate conducted whilst the crime scene was still cordoned off and the relatives of those murdered still in shock was a disgusting spectacle which reinforced my and many others` opinions that we are being asked to vote for the most inadequate pair of party leaders in my adult lifetime.  However the question of early release is one considered by every magistrates bench in every magistrates court every day of the week. On sentencing a miscreant to immediate custody the chairman of the bench after stating the exact term must tell the person in the dock that it is likely that s/he will be released on license after having served half the sentence aforestated.  During my time when I was responsible for such pronouncements I made them through gritted teeth.  It seemed to me then and it seems to me now that it made nonsense of the Sentencing Guidelines which every court must follow. The concept of sentence reduction as a "given" renders the process meaningless. Certainly in the right circumstances early release in itself is a fine ideal.  It is, however, offered willy nilly. We hear so often much criticism of the "stick" approach to sentencing from well financed lobbyists but rarely that the "carrot" approach has been misused in order to keep the prison population from exploding.  Early release should be subject to the satisfactory behaviour of prison inmates and be considered by an expanded and more citizen weighted parole board whose members would be of a similar calibre to those appointed to the bench able to function without the underlying government`s opinion on whether or not it is in line with their political aspirations. I am realistically despondent, however,  insofar as that situation is unlikely ever to materialise.  

COMMENT CAN BE A TECHIE PROBLEM

It has come to my notice that accessing the comment feature via "no comments", itself a bit of a misnomer, can be impossible with some browsers; certainly I know that readers using Safari have had this problem. My advice is to use Chrome for this purpose if others fail.

SENTENCING NEEDS UPDATING

It goes almost without saying but I`ll say it anyway; sentencing structures in this country are (to be polite) in need of drastic changes to meet with the drastic changes in society and its mores and the knowledge we now have on the sciences concerned with human behaviour.  To add to the mix no government has been or will be willing to pay the £billions necessary to face the reality of what must be spent to halt the seemingly intractable problem of criminality and the measures required to protect society from such whether the criminality is on line fraud sometimes and sometimes not covered by insurance but where there is no physical harm or violence or gangs of rampaging youths with knives or guns in their hands as is now happening all over the country.  Into the mix there is one fact which needs to be faced; about 70% of all acquisitive crime including harm to victims or property is committed by those addicted to alcohol and/or prohibited drugs.  The definition of criminal offensiveness is now almost beyond parody. Religious tolerance to changes in human behaviour once common except in Northern Ireland is now at straining point especially in some parts of a Muslim population which will soon exceed three million.  The scourge of that oldest of all viruses which had been thought to have peaked in 1944 was only slumbering as recent events in Hungary, Sweden and within the Labour Party have shown. How to react to the above is not the sort of comment common to Lord Chancellors.  All they seem able to do is mouth platitudes about knife crime and good intentions. The only hardened opinions in this country seem to be to abolish all short (ie up to six months) custodial sentences or increase jail time for serious offending. My own view posted here a few times is that institutions should be created for the compulsory incarceration of all offending addicts until they are clean and ready for rehabilitation.  Use the search box on this page "workhouse" for lengthier argument.  Meanwhile an interesting but limited item on sentencing from New Zealand caught my attention.  Access it here. 

THE WRONG SIDE IN MITIGATION

The tragic case of Harry Dunn, the motor cyclist who was killed by the wife of an American diplomat who was driving on the wrong side of the road has faded from the headlines but what will not have faded from the memories of all British drivers who have driven their own cars abroad  is the fleeting moment when they too have momentarily dropped their concentration and found themselves on the wrong side of the road in continental Europe.  It has happened to me and I got away with it. The demands from many quarters that she be extradited  to face justice reminded me of a case I recollected from 2013.

« Je conduis habituellement à droite donc ma culpabilité dans cette affaire de conduite imprudente est moindre. » could have been the words of Alexis Fleury of Orleans in the Appeal Court six years ago. Or in English..........“I usually drive on the right so my culpability in this matter of careless driving is lessened”. And their Lordships agreed with him. 

Whilst the principle and logic of the decision is immediately comprehended where does it end? If I were a resident of Outer Eurasia where use of a mobile phone whilst driving is not prohibited would that lesson my culpability using one on the Outer Circle? Readers will have their own analogies in mind without much effort.

POLICE A DECADE ON

Exactly ten years ago I blogged as copied below.  It seems that despite all that has happened since then the police have learned little of what the public expects.  Even with hindsight I don`t believe that there is a willingness for police to learn and that is as dire for us, the public, as it is for them.


         ACPO and proposed police restructuring

by TheJusticeofthePeace @ 23. Nov. 2009. – 12:13:02

Sir Hugh Orde, president of ACPO wrote recently in The Times with his recommendations for a restructuring of policing. He appears to be taking not unnaturally a top down approach as opposed to giving consideration to the requirements at a local level where the vast majority of the population is not a victim or terrorism or cross border organised crime. He criticises, "people who are claiming to represent communities" who suggest that more police on the beat is what is required by offering ridiculous statistics about a patrolling officer rarely coming across a burglary being committed. In this statement he reveals his apparent indifference to the concern of local communities that above all they want assurances that their properties will not be burgled per se and that officers seen to be patrolling are a deterrent to criminal activity which might impinge upon their desire for a quiet peaceful life. He continues in the same manner when he says that control of police and democratic policies cannot co-exist. This subject is surely worthy of debate rather than an authoritarian denial of its practicability .

The original principles of Robert Peel were that police patrol to prevent crime and disorder and that they must have the public`s approval and willing co-operation.

If Sir Hugh cannot persuade us that he and his colleagues can succeed with prevention as the prime objective they are unlikely to continue to carry the public with them on the other two requirements as is becoming apparent almost weekly.

A STAIN ON OUR CIVILISATION

There are some human actions which are perfectly normal at most times for most people but which cross the threshold into offences under limited circumstances.  Perhaps the most commonly committed offence in that category is rape. And that is why this offence is perhaps the most difficult to prove beyond a reasonable doubt. However to add to this apparent get out free card for offenders is the height of the bar at which the CPS sets its decision to prosecute.  The criteria long held for any prosecution are to consider if is it in the public interest and is there a reasonable (>50%) chance of success. Such opinions are of course subjective but then so much of daily life is subjective. But with the decision to charge an individual with rape there is another ingredient thrown into the melting pot and that is the consideration of the statistics published on the success rate of rape prosecutions. To put that in perspective the success rate of all prosecutions in China is 99%.  Does that indicate the superb ability of Chinese prosecutors? Does it indicate the very careful selection of cases to prosecute? Does it indicate that the system as a whole is pre determined to achieve that rate of success?  In England the CPS has set a target of success in rape prosecutions of 60%.  One doesn`t require a PhD in statistics to appreciate that that figure lends itself to the selection of only the strongest cases for prosecution thereby being an incentive to pass on so many cases where the traditional threshold has previously been the guideline.  

But such pre determination of success is not confined to rape.  As magistrates and lawyers participating in the lower court we all know only too well the policy of undercharging by the CPS is all too common particularly in charges of assault and assault by beating where an either way charge would have thought to have  been the  expected outcome once the details have been heard. A once fair justice system with a level playing field and equality of arms in the fact of legal representation for all irrespective of means is now a pale shadow of its previous high moral and legal standing amongst the nations of the world. This is a stain upon our civilisation from which I fear we will never be cleansed nor will we ever recover especially if this country falls for the mirages presented by a Marxist antisemite with his sights on 10 Downing Street and pseudo liberals in our midst falling for his smoothly spoken smokescreen of togetherness.  

APPEAL BETWEEN VOTE LEAVE LTD Appellant And THE ELECTORAL COMMISSION Respondant 12th November 2019

Neutral Citation Number: [2019] EWCA Civ 1938
Case No: C1/2019/0150
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court (Queen’s Bench Division)
Administrative Court
Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12/11/2019
Before :
LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE SINGH and
LADY JUSTICE NICOLA DAVIES
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Between :
VOTE LEAVE LTD
Appellant
- and -
THE ELECTORAL COMMISSION
Respondent
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Mr Timothy Straker QC and Mr James Tumbridge (respectively instructed by, and of, Venner Shipley) for the Appellant
Mr Philip Coppel QC and Mr Ravi Mehta (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 3rd October 2019
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Approved Judgment
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
Lord Justice Underhill:
INTRODUCTORY
1. The Appellant, Vote Leave Ltd (“VL”), was the designated lead campaigner for the “leave” outcome in the 2016 EU referendum. The Electoral Commission, which is the Respondent, has responsibility under the Political Parties, Elections and Referendums Act 2000 (“PPERA”) for, among other things, monitoring and ensuring compliance with the statutory rules which apply to the financing of referendum campaigns. Non-compliance may constitute an offence. I give details of the relevant statutory provisions below.
2. In November 2017 the Commission opened an investigation under Part X of PPERA into related allegations of contraventions of those rules by various persons, including VL. The details of the matters investigated are not material for the purpose of this appeal: broadly speaking, they concern payments made to a Canadian data analytics firm called Aggregate IQ (“AIQ”) for campaign services during the referendum campaign and how those payments were reported to the Commission.
3. On 17 July 2018 the Commission served two Notices (dated 16 July) under paragraph 6 (5) of Schedule 19C of PPERA notifying VL of its decision to impose “variable monetary penalties” (in ordinary language, fines) on it in respect of four offences. The fines for the first three offences, covered by what I will call the first Notice, totalled £41,000; and the fine for the fourth offence, covered by the second Notice, was a further £20,000. On the same date it served Notices on two other leave campaigners – Mr Darren Grimes, who ran an unincorporated association BeLeave; and Mr David Banks, the responsible person for an organisation called Veterans for Britain – in respect of related offences.
4. The same day the Commission published on its website a document entitled “Report of an Investigation in respect of Vote Leave Limited, Mr Darren Grimes, BeLeave, Veterans for Britain, concerning Campaign Funding and Spending for the 2016 Referendum on the UK’s Membership of the EU” (“the Report”). The Report runs to 38 pages and gives an account of the Commission’s investigation and findings, culminating in its determinations as to the offences for which VL, Mr Grimes and Mr Banks were fined.
5. On 8 October 2018 VL applied to the High Court for permission to apply for judicial review of “the making and publishing” of the Report. Mr Grimes and Veterans for Britain were named as interested parties. It is important to emphasise at this stage that VL’s challenge was not to the Commission’s decision that it had committed the offences for which it was fined, which was, as noted below, the subject of a separate appeal. Rather, the objection was to the publication of the Report: it was and is VL’s case that the Commission had no power under PPERA to publish such a report.
6. On 20 November 2018 Yip J refused permission to apply for judicial review. VL renewed its application at an oral hearing before Swift J on 15 January 2019 but he too refused permission.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
7. VL applied for permission to appeal against Swift J’s decision. By an order dated 4 June 2019 Hickinbottom LJ granted permission to apply for judicial review and directed, pursuant to CPR 58.5 (5) and (6), that the application be retained in this Court.
8. Before us VL has been represented by Mr Timothy Straker QC, leading Mr James Tumbridge of Venner Shipley. The Commission has been represented by Mr Philip Coppel QC and Mr Ravi Mehta. The interested parties did not appear and were not represented.
9. It is convenient to mention at this stage two pieces of related litigation.
(1) A person who is fined by the Commission under the provisions in question has a right to appeal to the County Court. Originally, both VL and Mr Grimes appealed against the fines imposed on them, and the two appeals were directed to be managed together. On 29 March 2019 VL discontinued its appeal, but Mr Grimes proceeded. By a decision dated 19 July HH Judge Dight CBE, sitting in the Central London County Court (Mayor’s and City of London), allowed Mr Grimes’s appeal on a particular basis which I need not explain save to say that it depended on the procedural consequences of the precise formal relationship between him and BeLeave.
(2) Secondly, in 2017 the Commission decided not to investigate whether payments made by VL to BeLeave, from which AIQ’s bills were paid, were in breach of the applicable limits on VL’s campaign spending. A challenge to the lawfulness of that decision was upheld by the Divisional Court in March 2018, but on appeal its decision was set aside by this Court: see R (Good Law Project) v The Electoral Commission [2019] EWCA Civ 1567.
Mr Straker appeared at some points in his submissions to be suggesting that those two decisions called into question the basis of the Commission’s decision to fine VL. Mr Coppel disputed that, pointing out that both appeals were decided on grounds which had no application to the basis on which the fines with which we are concerned were imposed. So far as I can see, that is correct, but it is unnecessary to consider the point because the correctness of the decision to fine VL is not material to the issue before us: that issue is limited to whether the publication of the Report relating to that decision was within the Commission’s statutory powers.
THE STATUTORY BACKGROUND
10. Part I of PPERA is headed “the Electoral Commission”. Section 1 provides for the establishment of the Commission. Sub-section (6) incorporates Schedule 1, which contains more detailed provisions about the Commission. Paragraph 2 of Schedule 1 reads:
“The Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions.”
That language is substantially the same (apart from the prohibition on the borrowing of money) as the well-known terms of section 111 (1) of the Local Government Act 1972, which empowers local authorities “to do any thing … which is calculated to facilitate,
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
or is incidental or conducive to, the discharge of any of their functions”. That provision codifies what had long been recognised to be the position at common law.
11. Sections 5-13 are headed “Commission’s General Functions”. I need not set these out, but I should note that sections 5 and 6 impose particular duties on the Commission to make reports – under section 5 to make and publish a report on the administration of each election or referendum, and under section 6 to submit reports from time to time to the Secretary of State on various specified matters. In this connection I should refer also to paragraph 20 of Schedule 1, which requires the Commission to report annually to Parliament about the performance of its functions in the year in question and to publish that report.
12. Part VII contains provisions regulating the conduct of referendums. For our purposes I need note only that they include, in section 118, limits on the amounts that may be spent by “permitted participants” and, in section 122, requirements on permitted participants to submit returns of referendum expenses incurred by them. Contravention of those requirements is an offence: see section 118 (2) and section 122 (4). Two of the offences for which VL was fined were under section 122 (4) and one under section 118 (2).
13. Part X of the Act is headed “Miscellaneous and General”. Sections 145-148 are headed “Enforcement of Act”. The sections relevant for our purposes are 145-147. I take them in turn.
14. Section 145 is headed “Duties of Commission with respect to … compliance with controls imposed by the Act etc”. Sub-section (1) reads, so far as material:
“The Commission must monitor, and take all reasonable steps to secure, compliance with –
(a) the restrictions and other requirements imposed by or by virtue of –
(i) …
(ii) Parts 3 to 7, and
(iii) sections 143 and 148; and
(b) …”
15. Section 146 is headed “Investigatory powers of Commission” and gives effect to Schedule 19B. The Schedule contains detailed provisions about the conduct of investigations by the Commission. These include powers to require the production of documents. Paragraph 13 (1) provides that failure, without reasonable excuse, to comply with any requirement imposed under the Schedule constitutes an offence. The fourth of the offences for which VL was fined was under paragraph 13 (1), for failure to produce documents by a specified date. Paragraph 15 requires the Commission to include in its annual report to Parliament (see para. 11 above) information about the use made by it of its investigatory powers during the year in question.
16. Section 147 (which was substituted with effect from 1 December 2010, by the Political Parties and Elections Act 2009) is headed “Civil Sanctions” and reads:
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
“Schedule 19C makes provision for civil sanctions in relation to–
(a) the commission of offences under this Act;
(b) the contravention of restrictions or requirements imposed by or by virtue of this Act.”
It was under the civil sanctions regime established by section 147 and Schedule 19C that the Commission imposed on VL the fines which gave rise to the Report. I need not attempt a full summary of the provisions of the Schedule, but the following points are relevant for our purposes:
(1) The fines were imposed under paragraph 5, which empowers the Commission to impose one or more “discretionary requirements” on a person who it is satisfied beyond reasonable doubt has committed a prescribed offence. Such discretionary requirements include, by sub-paragraph (5) (a), “a requirement to pay a monetary penalty to the Commission of such amount as the Commission may determine”, elsewhere referred to as a “variable monetary penalty” – in other words, as I have said, a fine.
(2) Where the Commission proposes to impose a discretionary requirement it is required by paragraph 6 (1) to give notice to that effect (sometimes referred to as an “initial notice”) to the person in question, who is entitled (by sub-paragraph (2)) to make written representations and objections in response.
(3) Paragraph 6 (5) provides that where the Commission decides to impose a discretionary requirement it must serve a notice on the person in question specifying the requirement. The notice is the actual instrument by which the requirement – in this case, the fine – is imposed. By paragraph 7 (3) such a notice must: “... include information as to —
(a) the grounds for imposing the discretionary requirement;
(b) where the discretionary requirement is a variable monetary penalty —
(i) how payment may be made,
(ii) the period within which payment must be made, and
(iii) any early payment discounts or late payment penalties;
(c) rights of appeal;
(d) the consequences of non-compliance.”
(4) Paragraph 6 (6)-(7) provides for a right of appeal to (in England and Wales) the County Court.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
(5) Paragraph 25 requires the Commission to publish guidance as to, among other things, “the sanctions (including criminal sanctions”) that may be imposed on a person who commits an offence under the Act, including guidance about its use of the power to impose discretionary requirements.
THE NOTICES AND THE REPORT
17. Both the paragraph 6 (5) Notices served on VL follow the same format. Section 1 contains various preliminary and formal matters, including the notification of the right of appeal required by paragraph 7 (3) (c) of Schedule 19C. Section 2 is headed “Grounds to Impose the Penalty”. This follows a systematic structure reflecting the matters that the Commission had to determine. I need not attempt a detailed summary. Broadly, however, it begins with an explanation of why the Commission is satisfied (to the criminal standard) that each offence has been committed, identifying the evidence relied on and giving reasoned conclusions on disputed points; proceeds to give reasons for its decision to propose a fine, as notified in the initial notice; considers VL’s representations in response to the initial notice; and reaches conclusions on the appropriate level of fine. In the first Notice section 2 runs to some 34 pages, and in the second Notice it covers seven.
18. We were not shown the Notices in the cases of Mr Grimes, BeLeave and Veterans for Britain; but no doubt they followed the same structure.
19. The Report was published in accordance with paragraphs B.14-16 of Appendix B to the Commission’s Enforcement Policy. Paragraph B.14 says that once an investigation is concluded the Commission will publish the outcome on its website and lists the minimum information which will appear. Paragraph B.16 says that the Commission “may also produce a more detailed investigation report and/or issue a media statement where this will further our enforcement objectives and it is in the public interest to do so”.
20. The Report is evidently a “more detailed investigation report” of the kind identified in paragraph B.16. What it does is to present in a single document the findings of the Commission’s investigation about the payments made to AIQ and how they had been treated in the various returns. This necessarily involved a different structure from that adopted in the Notices, which were concerned only with the conduct of the person on whom the fine in question was imposed. However, the principal sections of the Report, sections 3 and 4 (“The Investigation” and “The Investigation Findings”), cover the same factual ground as section 2 in the Notices and, unsurprisingly, are substantially similar in their content. Neither party attempted a detailed comparison, but Mr Coppel in his skeleton argument identified a number of passages in the Report which were essentially cut-and-pasted from the VL Notices. Mr Straker said that the section of the Report setting out the history of the investigation was more elaborate than its treatment in the Notices, and that the circumstances of the creation of BeLeave were dealt with rather differently; but we were not taken to the passages in question and he did not submit that the differences were of fundamental importance or that there was any important material in the Report that did not reflect equivalent material in the Notices, even if not identically expressed.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
THE ISSUE: DISCUSSION AND CONCLUSION
21. It was common ground before us that there is no provision in PPERA which expressly empowers the Commission to make or publish a report of the kind which was made in the present case – that is, a report setting out the result of an investigation under Schedule 19B which culminated in findings of offences under the Act and the imposition of fines for those offences under section 19C. Mr Straker submitted that such a power could not be conferred by implication. Where it was intended that the Commission should make or publish reports the Act said so in terms: see, e.g. sections 5, 6 and 20. The publication of a report of this kind was liable to have serious prejudicial effects on the entities or individuals who were the subject of its findings because of the press publicity which it would attract. He submitted that that had indeed been the effect in the present case: he referred us to passages in a witness statement of Mr Patrick Moynihan, a director of VL, which showed the degree of hostile – he says unfairly hostile – publicity which VL and individuals associated with it had received following the publication of the Report. Its publication was accordingly in substance a further sanction, in the nature of a public reprimand, over and above the code of sanctions provided for in Schedule 19C and thus unaccompanied by any right of appeal; that was inconsistent with the scheme of the Act and unlawful. He referred in this context to what he said was the principle that returning officers were not entitled to take any step beyond what the statute expressly provides for: he referred to R (De Beer) v Returning Officer for the London Borough of Harrow [2002] EWHC 670 (Admin) and Begum v Returning Officer for the London Borough of Tower Hamlets [2006] EWCA Civ 733, though he did not take us to them in his oral submissions. He said the same approach should be taken to the powers of the Electoral Commission in what is inevitably a highly sensitive area of law.
22. I do not accept that submission. In my view the publication of the Report was within the Commission’s powers because it was incidental to the carrying out of its enforcement functions under Part X of PPERA and was accordingly authorised by paragraph 2 of Schedule 1 of the Act.
23. I take first the functions in question. As noted above, sections 145-148 of PPERA fall under the heading “Enforcement of Act”. Section 145 (1) requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Mr Straker submitted that the publication of the Report could not be regarded as “incidental to” the function of “monitoring” or “securing” compliance: as a matter of ordinary language, those terms are directed at the conduct of participants in a referendum campaign as it happens and not to investigating or punishing non-compliance subsequently. He might perhaps be right about “monitoring” (though para. 37 of Singh LJ’s judgment has given me pause), but I regard his approach to “securing compliance” as over-literal: since the knowledge that non-compliance may be investigated and punished is an important incentive to compliance, proceeding with such investigation and punishment, albeit after the event, can naturally be described as a step to secure compliance. However, even if that is debatable the point does not depend on the construction of those words alone. Section 145 must be read with sections 146 and 147 and with Schedules 19B and 19C to which they give effect. Whether those provisions are regarded as fleshing out the general terms of section 145 (1) or as supplementing them, they form part of a package of enforcement functions conferred on the Commission by Part X.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
24. Making a public report on how those functions have been performed in a particular case can in my judgment properly be described as “incidental” to their carrying out. Although that seems to me a natural description as a matter of ordinary language, in so far as there is any ambiguity I should say that it also seems to me the right construction as a matter of policy. There is an important public interest in public bodies with an investigatory function being as open as possible about inquiries which they have conducted: for a recent affirmation of that principle, albeit in a different context, see para. 1 of the judgment of Lord Mance in Kennedy v Charity Commission [2015] UKSC 20, [2015] AC 455 (pp. 488-9). That value is particularly important in the case of investigations carried out by the Electoral Commission, both because of the centrality of its functions to our democracy and because they may, as here, result in findings that criminal offences have been committed: indeed the Commission’s role under Schedule 19C is quasi-judicial. That being so, it is highly desirable – and, I believe, in no way problematic – that the “incidental powers” provision in PPERA should be construed in a way which allows the Commission to publish, in whatever form seems appropriate to it, the results of its investigations (so long, of course, as that is done in a reasonable and responsible manner). It is clear from the terms of the Commission’s Enforcement Guidance (see para. 19 above) that it believes that the publication of detailed investigation reports will sometimes be in the public interest; and that is in my view plainly right.
25. It might be said that such publication is unnecessary because notices under paragraph 6 (5), which Mr Straker accepted were public documents, should contain all the information necessary to justify the determinations which they record, and the consequent “discretionary requirements”, and there is no need to publish anything else. But even if that is sometimes so there will certainly be cases where the Commission reasonably regards it as important to report the results of its investigations in some other form. The present case is a good example: it would not be straightforward for a member of the public to gain a complete picture of the investigation from reading several individual Notices, all of which only tell part of the story, and there is obvious value in a single report covering the same ground in a comprehensive and comprehensible way.
26. If anything, the fact that the Notices are public documents is a point against Mr Straker’s submissions, since it would seem to render much of VL’s objection to the publication of the Report rather unreal. Mr Straker accepted that it would have been within the Commission’s power to announce on its website that it had issued the paragraph 6 (5) Notices and/or to issue a press release to that effect, in either case attaching or providing links to the full texts: presumably, though he did not expressly acknowledge this, the power to do so would derive from paragraph 1 (2). It might be thought that such publication would be just as damaging and prejudicial to VL as the publication of the Report is said to have been, since they contain substantially the same material (see para. 20 above). Mr Straker said that the Report was different because its contents would be understood to be unequivocal findings of fact, whereas the Notices contained explicit statements that VL could appeal and would accordingly be understood to be provisional, or qualified. I find that distinction unconvincing. Although the Report presents the material in a more accessible form, it is fanciful to suppose that the publication of a press release attaching the Notices would not have attracted much of the same attention.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
27. It follows from the foregoing that I do not accept Mr Straker’s submission that the publication of the Report constituted a distinct sanction falling outside the scheme provided for by the Act. The only sanction on VL is the requirement to pay the fines. The Report is simply an explanation of the basis on which the decision to impose that sanction, and the sanctions on the other participants, was taken. It is ancillary to that decision and not a separate reprimand. It also follows that I see no need for the application of the principle which he said applied in construing the powers of returning officers.
28. Mr Straker attempted to draw some support for his case from the decision of Lord Bingham CJ in R v Liverpool County Council, ex p Baby Products Association [2000] LGR 171. In that case the council had issued a press release impugning the safety of a particular brand of baby-walker. Lord Bingham held that it had had no power to do so because the Consumer Protection Act 1987 and the regulations made under it provided for “a detailed and carefully crafted code” under which a local authority could issue suspension notices in respect of products which were suspected to be unsafe, subject to safeguards intended to protect the legitimate interests of manufacturers and suppliers; and the press release would have the same effect as such a suspension while circumventing those protections (see p. 178 c-g). I can see no analogy between that case and this. I have already rejected Mr Straker’s submission that the publication of the Report constituted a separate sanction and therefore that it subverted the code of sanctions provided for in PPERA. In fact, in one respect Lord Bingham’s judgment might be thought to give at least some support to the Commission’s case. At p. 178 b-c he records with apparent approval the concession of counsel for the claimant (Mr Michael Fordham) that “... generally speaking, it was open to local authorities to publish information relating to their activities, at any rate within their areas. Had the council issued suspension notices in accordance with section 14 of [the 1987 Act], that fact could (he accepted) have been announced to the public. Had the council initiated any criminal proceedings that fact, and the outcome of such proceedings, could similarly have been announced to the public. Sections 142(2)1 and 111(1) gave authority to make such announcements if statutory authority was needed2.”
The release by a local authority of a press release in the circumstances referred to seems to me reasonably analogous to the issue of the Report in this case; and it is accordingly of interest that Mr Fordham acknowledged, and Lord Bingham apparently accepted, that it would fall within the scope of section 111 (1) of the 1972 Act, which is, as noted above, in substantially the same terms as paragraph 2 of Schedule 1 to PPERA.
1 For completeness, I should note that section 142 (2) of the 1972 Act empowers a local authority to arrange for publication of information relating to its functions; but it is Mr Fordham’s reference to section 111 (1) which is relevant for our purposes.
2 I doubt whether by using the phrase (as recorded) “if statutory authority was needed” Mr Fordham was intending positively to suggest that statutory authority was not needed. But if he was I believe that that would be heterodox: see para. 31 below.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
29. Finally, I should say that the fact that PPERA contains some express provisions requiring the Commission to make reports of a particular kind – see para. 11 above – plainly does not demonstrate a statutory intention that it should have no power to publish any other kind of report.
30. The conclusion that the Commission was empowered to publish the Report by paragraph 2 of Schedule 1 to PPERA is sufficient to dispose of the claim. Mr Coppel in fact advanced three other bases on which the publication of the Report should be held to be within the Commission’s powers. I will address them briefly but not in the detail that would be appropriate if any of them was the basis of my decision.
31. The first was that the Commission had a power, simply by virtue of being a public body and without reference to paragraph 2 of Schedule 1, to inform the public about its activities. He referred us to the decision of the Divisional Court, comprising Donaldson LJ and Woolf J, in R v Director General of Fair Trading, ex p Taylor & Co Ltd [1981] ICR 362. In that case the applicant, which was an importer and distributor of toys and electrical goods, had a long history of contravening safety regulations. The Director General of Fair Trading in the exercise of his statutory powers requested it to give a written assurance that it would commit no further offences, and the assurance was given. He then issued a press release setting out the terms of the assurance. The applicant contended that he had no power to do so. The Court rejected that contention, Donaldson LJ saying, at p. 294 C-D:
“The Director General needs no statutory authority to speak and write about his work and about the misdeeds of others with which he is concerned in his work. Both the Director General and his office have full freedom of speech …”
That rather reads as if Donaldson LJ was proceeding on the basis that the power in question derived from the Director General’s status as a natural person, in which case it is immaterial for our purposes3. But if it was intended as a general proposition about the powers of a statutory corporation, I believe that it should be read as if he had said “the Director General needs no express statutory authority …”. It is in my view axiomatic that all the powers of such a corporation must derive from statute, though of course many of those powers may not be conferred express and will be enjoyed only because they are to be regarded as deriving from those functions that are so conferred. I certainly do not believe that the passage can be taken as authority for the proposition being advanced by Mr Coppel. Nor do I see what is gained by advancing the case in this way: paragraph 1 (2) gives the Commission all it needs.
32. Mr Coppel’s second alternative was to argue that section 145 (1) conferred express authority on the Commission to publish reports of investigations and fines because doing so was a “step” which would secure compliance with the statutory requirements by other participants in the future: they would, he said, constitute “case studies” which would both provide guidance and have a deterrent effect on potential offenders. I need not express a concluded view on this argument, but I have to say that I do not find it a natural reading of section 145 (1) and prefer to reach the same result by treating the power to report as incidental to the Commission’s express functions as explained above.
3 It may also be debatable whether it is correct, but there is no need for us to consider that.
Judgment Approved by the court for handing down. Vote Leave v Electoral Commission & Ors
33. Finally, Mr Coppel relied on the Commission’s duties under the Freedom of Information Act 2000. In bare outline, his case was that the Commission’s “publication scheme”, adopted pursuant to section 19 of the Act, included among the classes of information which it published “decision making processes and records of decision” and “enforcement actions and sanctions”; and that since the Report contained information in those classes it was obliged by the Act to publish it even in the absence of any other statutory power. When I first read the papers I found that argument unpersuasive. Mr Coppel in his oral submissions strove to shift me from that first impression, but the exercise succeeded only to the extent of satisfying me that a proper treatment of the question would require a careful analysis, both of the statutory provisions and of the Commission’s publication scheme, of a kind which would not be justified in a case where it can have no bearing on the outcome.
34. I have not thought it necessary to review the judgment of Swift J. It was, as was entirely appropriate to an ex tempore judgment refusing permission to apply for judicial review, succinctly (though clearly) expressed. I can say, however, that his reasoning seems broadly to the same effect as mine, though I think he attached more weight than I have to Mr Coppel’s argument to which I refer at para. 32 above.
DISPOSAL
35. I would dismiss VL’s application for judicial review.
Lord Justice Singh:
36. I agree that this application for judicial review should be refused, essentially for the reasons given by Underhill LJ. I would like to add a few words of my own because of the importance of the issues.
37. At paragraph 23 Underhill LJ refers to section 145 (1) of PPERA, which requires the Commission to “monitor, and take all reasonable steps to secure, compliance with” various requirements of the Act, including those of Part 7. Speaking for myself I would have no difficulty in construing the word “monitor” in this context as including acts of investigation and scrutiny which take place afterwards and not only contemporaneously. This is particularly so in a statutory context in which the “referendum period” is narrowly defined: in the case of the EU referendum of 2016 it ended on the date of the referendum. In practice it might be simply unrealistic for the Commission to monitor events as they take place. In my view, a broader construction of the word “monitor” is appropriate in this context.
38. Secondly, I would like to associate myself in particular with what Underhill LJ says at paragraph 24 above in relation to the public interest in making inquiries such as that conducted by the Commission as open as possible. This is important not only in cases such as this, where an investigation led to the imposition of fines, but would be equally important in cases where the Commission does not find a breach of the rules or no sanction is imposed. In such cases the public would still have an important interest in knowing that the Commission had gone about its work properly and conscientiously.
Lady Justice Nicola Davies:
39. I agree with both judgments.

MAGISTRATES AND MEDALS

On November 30th 2009 when this blog was but  a fortnight old I wrote what is copied below.  The MA forum to which reference is made was withdrawn about two years later because the powers that be considered it was giving members too much vocal power. But at this time of year when memories of my father in law`s generation and its mementos awarded as participants in that wartime struggle are so recent  we have recently had so called "leadership magistrates" imposed upon the hierarchy of those who influence and control the magistracy.  They were appointed by the Ministry of Justice initially with their names withheld  at the same time as true elected magistrates representatives indicated by the Bench Chairman`s Forum was disbanded. Of course these "influencers" to use the modern term have no thought of any future honours which might be available in the future. 

"My late father in law served in Burma during WW2 and like many of his generation never talked about his experiences until a year or two before his death when my son, his grandson, was still in short trousers I suggested he give him his medals to show future generations that his grandpa was a hero like others who had been given no choice in 1939 but willingly accepted a citizen`s obligation to fight for his country. To my surprise he told me that he had never bothered to apply for them. He hadn`t won an MC or been mentioned in dispatches; he had just done his duty and didn`t expect any recognition. With some reluctance he wrote to the Ministry of Defence and the service medals were duly sent to him. I still hold them in safekeeping for my son.

How different today.....senior civil servants expect a gong just for doing their job for a few years and low level employees in the M.O.D. expect and receive bonuses although how such a conglomerate can justify and calculate a "bonus" escapes me however many verbose attempts are made by those ensconced in the same sweetie jar. It seems the same glittering virus has infected magistrates especially the very small vocal minority who post on the Magistrates` Association private Forum where in a poll 83% were sympathetic to the idea of a JP`s long service medal. The pressure was such that it even reached the recent AGM of the Association as a proposal. Thankfully in that arena sense ruled and it was thrown out. Are the days now gone when, as in the case of JPs, voluntary work had its own reward without bits of metal to be worn demonstrating ostensibly what a good chap/chapess"?