THE CRIME OF ASSAULT NEEDS TO BE RE-THOUGHT

ASSAULT:- hit, strike, smack, slap

ASSAULT:- a sudden, violent attack; onslaught: an assault on tradition. Law. an unlawful physical attack upon another; an attempt or offer to do violence to another with or without battery as by holding a stone or club in a threatening manner.

A person is guilty of common ASSAULT if they either inflict violence on another person – however slight this might be – or make that person think they are about to be attacked.  If violence is used in a common assault, it is called a “battery” and the perpetrator would be charged with “assault by beating”

ASSAULT on a police constable in execution of his duty: Police Act 1996, s.89 

For as long as I`ve been involved in legal matters I`ve lost count of the number of occasions when representatives of the police have complained that magistrates courts when dealing with offenders convicted of assaulting one of their profession are too lenient in their disposal.  In truth I have some sympathy with that opinion but only at the lowest level of my sympathy meter. 

Some numbers might be useful: Latest statistics for ten months to September last year show that prosecutions for assaults on police and emergency workers totalled  almost twelve thousand of which 9,629 were found guilty. 1,518 were sentenced to immediate custody and 2,137 were fined. In the year ended March 2019 there were 10,399 offences of “assault with injury on a constable” recorded by the police and 20,578 recorded "without injury".  It seems to me that the term "assault" is in itself toO widely drawn.  

Grievous bodily harm with intent is the most serious form of assault charges in the UK and involves a perpetrator who intended to cause serious bodily harm to the victim. This offence may be committed four different ways:  wounding with intent to do GBH;  causing GBH with intent to do so; maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or maliciously causing GBH with intent to resist or prevent lawful apprehension etc. of any person.

Owing to the above definitions there is no way of knowing how many assaults on police are those causing any serious degree of harm beyond perhaps a push in the back or very slight bruising from an attempted kick or a helmet being knocked from the head. A new crime classification for “assault with injury on a constable” was introduced on 1st April 2017. As far as I can determine the definition of what assault constitutes an injury to police is unavailable. 

From my own and others` experiences there are and have been occasions when there has been some surprise on the bench when the charge of assault on a police constable has seemed to be undercharging considering the very serious effects on the victim.  But that also happens when the victim is a civilian and is a result of the CPS being satisfied with a highly likely guilty outcome of the lesser charge vis a vis the less assured outcome were a higher level charge taken to crown court. 

I feel sure that at some time the government will have to re-think the law on this most common of criminal behaviours where the outcome for victims; police and civilian,  psychologically if not physically can be a lifetime of trauma and/or paranoia. . 

EXCEPTIONAL HARDSHIP: A NATIONAL SCANDAL

If there`s one form of decision that got and still gets my magisterial goat it is the apparent ease with which a 12 pointer convicted "totter" can get away with a spurious exceptional hardship argument and avoid a driving ban. Smooth talking lawyers are the courts` equivalent of 1970`s  door to door double glazing salesmen flogging their wares to receptive magistrates who are often thinking "there but for the grace of god go I".  It is a national scandal. I have posted on this topic so often I won`t list the previous but for those interested just type exceptional hardship into the search box. And  to complete the picture read of a single session at Ipswich Magistrates Court last week. 

JPs MINIMUM SITTING REQUIREMENTS

The beginning of a year is often the time to look back over the previous twelve months in whatever capacity takes one`s interest: in my case the numbers of magistrates thrown out of office and publicly humiliated by their names and the reasons behind their ignominy being published by the Judicial Conduct Investigations Office. 

The magistrates bench of England and Wales (my collective description) has halved in the last decade. There are currently around fifteen thousand. Generally it is a well behaved bunch as would be expected but with any group there are always exceptions who disregard the onerous requirements of their position even within their personal lives which seem not to impinge upon their judicial duties.  One of the most important aspects of the interview with aspiring appointees is to ensure that they understand the time requirement they must undertake in order to learn and constantly update their skills for the task. With the current shortage of personnel the adverts being published up and down the country for new magistrates might lead some to believe, as the adverts say, that anyone can become a magistrate. That is blatant nonsense although there are those who would describe that opinion as untenable in a society behoved to "diversity".  Nevertheless on considering the numbers of magistrates sacked for not meeting the minimum sitting requirements;  and these in my opinion are far too low to acquire the skills and knowledge to properly contribute to the required standard I would impose on wingers, the proportion is disturbing although the numbers are low.  

In 2017 fourteen JPs were sacked of whom 10 failed that minimum sitting requirement. In 2018 the figures were nine out of a total of 12 sacked and last year five were sacked for low sitting out of 20 altogether. It is too soon to judge whether the JCIO is becoming more lenient and understanding of the constraints that modern life puts on magistrates` available time  in the light of current shortages and two person benches  or whether appointments committees are placing such emphasis of that time sacrifice that fewer appointments are actually made. 

Over the years this topic has been the subject here of a number of posts.  By inserting Judicial Conduct Investigations Office in the search box some of those posts can be accessed for those interested.  

THE RISE OF CIVIL PROTECTION ORDERS

The recent tragic events at London Bridge and Streatham have led to the imminent enaction of increasing the time  those convicted of terrorist related offending must spend in custody prior to being released on license. Undoubtedly there will also be increased limitations on their freedoms when they enter that period of surveillance. Such limitations outside formal judicial sentencing on an individual offender are not just confined to those whose fanaticism seeks to kill us.  

When I was appointed in the 1990s apart from a very few exceptions the work before the bench was based mainly on hearing cases brought by the Crown Prosecution Service. Football banning orders introduced in 1989 were an early concept of civil orders punished  if breached by six months custody.  That simplicity began to change in 1998 with the introduction of laws based on a new concept: alleged offenders being considered under civil legislation based on their anti social behaviour. Those found guilty were issued with a civil order known as an Anti Social Behaviour Order a breach of which was a criminal offence punishable by maximum five years in custody at the crown court. From that time an increasing number of civil orders were made available to police and local authorities.  From their very inception I was concerned at the implications of that wonderful, so they said, innovation; the ASBO.  Having to impose such, I did my judicial duty but without enthusiasm. ASBO was but the first of many so called exclusion notices. For over ten years constables have had the authority to issue a written exclusion notice to anyone considered to represent a "risk of disorder", even if they are not drunk or have committed no offence. The aim is to enable the police to stop violence escalating by immediately removing potential troublemakers from the scene. As a matter of interest David Davis, the shadow home secretary at the time,  said the Conservatives would consider backing the proposals but said Labour "has form for making headline-grabbing announcements only to fail to follow them up"; another politician`s words coming back to haunt him.......as if they care; it`s happening all the time. Soon to follow was the CRASBO; Criminal Anti-Social Behaviour Order.  I sat on the very first hearing in this country where such was brought.  It was a shambles and we threw it out.  Notices can be issued to those whose presence "is likely, in all the circumstances, to cause or contribute to the occurrence or continuance in that locality of alcohol-related crime or disorder". 

Since 21/08/2009 Magistrates` and County Courts have had the power to make Drinking Banning Orders. DBOs on conviction came into force on 1st April 2010 in 25 Local Justice Areas. These also are civil orders which if breached give rise to a criminal offence. It has been recognised by many statistical analyses that around 70% of all crime is committed by offenders addicted to alcohol and/or drugs. Considering that many more individuals are addicted to the former rather than the latter the number of alcoholics with a criminal record must number in the millions. The NHS estimates that around 9% of men in the UK and 4% of UK women show signs of alcohol dependence.  All they do is disperse the problem elsewhere. Indeed it is just another reason why alcoholic offenders should be treated as medical cases and if necessary by compulsion just as schizophrenic and other mentally unstable patients can, under certain circumstances, be forcibly incarcerated in places of safety for themselves and the general public who must be protected. Hardly a week goes by without headline stories of the havoc wreaked by such people who are supposed to be being “cared for in the community” but are walking the streets.

 Since 2014 the police and courts have been given powers to fill what is described as a “gap” in providing protection to victims of domestic violence. Following an incident of domestic violence where there may be insufficient evidence to allow a prosecution the police and Magistrates Courts have a power to apply for and make orders that can protect a victim for a period of time.  Once again breach is a criminal offence.

The most recent civil order allowing for criminal proceedings if breached is the Stalking Protection Order. Where the threshold to commence criminal proceedings for the commission of an offence has not yet or will not be met. This allows for early police intervention in stalking cases.  A SPO is not an alternative to prosecution for stalking offences under the Protection from Harassment Act 1997. In such circumstances a SPO can be used to complement the prosecution of a stalking offence.

In the commercial world Landlords Banning Orders prohibit landlords and agents from letting or managing residential properties.  A banning order prohibits a person from renting out residential accommodation, engaging in letting agency work or engaging in property management work. A banning order also prohibits a person from holding a HMO licence or a licence granted under a selective licensing scheme. Local authorities must revoke a licence when it has been granted to a person who subsequently becomes subject a banning order. A banning order must last for at least 12 months. There is no upper time limit. A local authority must put anyone subject to a banning order on the national database of rogue landlords and agents. Without doubt there are many landlords who are renting inherited property they have been unable or unwilling to sell without professional assistance who are breaching current legislation and are unknowingly open to prosecution and we all are aware that ignorance is no excuse for law breaking.  

There is no doubt in my opinion that as further supposed legal loopholes in many aspects of our society`s activities are exposed orders as described as above will become increasingly common but they will not be universally approved by the public they will have been supposed to protect.  That way will lead from controversy to confrontation. The risk of public disorder will be a reality.  I hope our legislators will be aware of the risks. 









   

TV LICENSE EVASION WILL BE DECRIMINALISED

One again with unfailing regularity the question of the decriminalisation of TV license evasion is a subject for much of the media. This saga will have only one end; the law will be changed when the bargaining over the renewal of the BBC charter is concluded. Early comments here were on 9th March 2014 around the time of a previous government review of the subject although when I was blogging at another host [2009-2013 and now bankrupt and unavailable] that topic received more comments than any other. Last December I commented on the current situation. Questions are now being asked in the House of Lords and in particular that of yesterday querying whether transferring to the civil court would remove the threat of custody for non payment of an imposed fine. 

With the feeble opposition across from the government benches it is now the case that for whatever the cabinet wants to legislate it will be almost a foregone conclusion that it will be enacted.  TV license evasion will be decriminalised; it is just a matter of when, not if. 

UK NATIONALISM BEGETS UK POPULISM

"This blog by its very purpose has touched on political points only when matters of the application of justice and associated considerations have been applicable."  I wrote that previous sentence on 25th May 2016 a month before the Referendum. I am not inhibited from its repetition. There are two words which underlie our current political situation and which are bedevilling so many countries near and distant: nationalism.....identification with one's own nation and support for its interests, especially to the exclusion or detriment of the interests of other nations and populism.....a political approach that strives to appeal to ordinary people who feel that their concerns are disregarded by established elite groups. They are like peaches and cream or salt and pepper: foods which appeal to our basic tastes.  

The foundation of any democracy is not just the commonly held view of "law `n order". It is a populace`s consideration that that concept applies to all people in equal measure whatever their standing and that there is absolute confidence that it will be applied without fear or favour so that justice will not only be done but will be seen to be done. In the second month of the Tory`s spectacular election victory it is accepted that their outstanding success was owing to the unelectability  of a marxist antisemite leading the Labour Party being seen to enter Downing Street.  Lord Hailsham coined the term elective dictatorship in 1976 and it is a more accurate description of the political landscape today than was the case then.  Two developments have taken us further down that road. The first is the increasing unwillingness of the executive to respect the independent authority of the judiciary, the civil service, local government and parliament itself.  The second is the willingness of governments, especially after 1997, to introduce fundamental constitutional changes, many of them effectively irreversible. Perversely, it is the over-representation of democratic legitimacy as the dominant contemporary political virtue which arguably bears a large measure of responsibility for our current predicament. In practical terms since 2010 when there was a Tory led coalition followed by Tory majority administrations  there has been a deliberate reduction of resources available to all the arms of what can be loosely described as the criminal justice system from police, probation and prison services to CPS, courts and legal aid.  The reason they got away with this atrocious attack on our democratic fundamentals was that apart from those directly involved the general public couldn`t give a monkeys. But now that somnolent society has been rudely awakened to what has been obvious to those of us who have direct involvement. Today a prime minister who has excluded certain journalists from Downing Street briefings and has refused live television coverage of his  latest pronouncements is proposing changes in the law to prevent early release of prisoners already serving according to their sentences imposed in court. He has double counted or inflated  the numbers of police officers to be recruited over the next five years, the numbers of hospitals to be built and the numbers of nurses to be recruited.  

The European Union is directly responsible for the political turmoil throughout its member and former member states.  It has attempted to suppress any expressions of nationalism whether from Polish miners in the east  or French farmers in the west and all others in between. It has striven to keep the lid on the boiling kettle. The warning was there in 2014 and 2015 when Mrs Merkel rebuffed David Cameron`s pleas to amend the UK`s terms of attachment to the EU.     

What we are witnessing is the adoption of policies which are expressly designed to foster that latent nationalism which was first apparent north of the border and not appeased by the establishment of the Scottish Parliament in Edinburgh. And where nationalism goes populism is sure to follow. The antisemitism which Corbyn allowed to flourish within his party is leeching  out to a wider society. It is now as historically the canary in the mine.  Boris Johnson has about three years of his elective dictatorship to set this country on a course which will be seen to improve the lives of its citizens. It has been trailed that his first year will see attempts to limit the powers of the courts both with judicial review and the Supreme Court. Magistrates and lawyers know full well that at their  level the law is failing the public. Perhaps there will be a public reaction beyond the furore over those convicted of terrorism associated offences but as they say over the border I hae ma doots.  

UNPUNISHED HIGH CRIMES AND MISDEMEANOURS UK STYLE

There was a time when the term "supervisory body" was self explanatory:-  a board of management of which non managerial workers are members, having supervisory powers over some aspects of management decision-making. There was a time when there was confidence in the functioning of such bodies and the decisions that emanated from them.  That time has, in my humble opinion, long passed its sell by date. The appeals systems in the criminal courts has failed all too often whether by default or design. Its slow coach approach has led to too many convictions being overturned only after inordinate delay but of course in such cases the general public couldn`t give a hoot.  That was until the whole sorry story of Hillsborough was revealed after three decades of procrastination by all the supervisory bodies involved. The rape scandals in Rochdale and other towns would never have continued as they did if the so called supervisory bodies locally and nationally had done the job their members were paid to do. Since the "Libor" scandal of a decade ago which cost billions of pounds only one person has been convicted; a national disgracing once more of the supervisory bodies involved. Mad cow disease of the late 1980s could have been minimised if not prevented if the  Conservative government at the time (the supervisory body of last resort) had not failed to stop cattle infected with BSE getting into the human food chain and not failed to alert the public to the possible dangers posed by the disease. Currently there are calls for an independent inquiry into previous inquiries on the hundreds of deaths at Gosport Memorial Hospitals over the last twenty years. Financial organisations are still treating their investors with disdain and getting away with it.  Currently in the dock are Hargreaves Lansdown and the funds run by Neil Woodford who has enriched himself by hundreds of thousands of pounds while his investors have been unable to access their shrinking funds.  Where is the oversight?  And only last week a member of the Grenfell  Tower inquiry has been made to resign owing to her association with the company responsible for the cladding. Even at this early stage of that inquiry it is not unlikely that various supervisory bodies will be found to have failed in their duty of care.  Almost weekly there are revelations of failings by the Quality Care Commission with regard to the organisations over which it is charged with supervision and the maintenance of standards. Perhaps nowhere is the failure of supervision more apparent and concerning than in the working of the Independent Office for Police Conduct and its predecessor. There is no national information of the numbers of senior police officers (Chief Inspector and above) and more significantly Chief and Assistant Chief Constables who resign or are dismissed. Indeed the statistics on misconduct generally  are a fairly recent innovation. An atrocious example of what is happening before our eyes with regard to police misconduct is that of former Assistant Chief Constable of Greater Manchester Police. For her gross misconduct she was not fired. She was the topic on this site on 31st January 2017 and retained her position until she resigned  about a year later.  Yet notwithstanding that disgrace she has been appointed to a high profile job again in the public sector at Oldham Council. 

It is not just in the highest office in the USA where it seems that there is no high crime or misdemeanour which can be guaranteed to prevent a merry go round of miscreants in high offices of supervision in this country from continuing on their merry money making way. 

GOVERNMENT STATEMENT ON TERRORISM

The Home Office and the Ministry of Justice are at it again. Like every government for the last twenty years crime and punishment makes its pitch for a few headlines to show that in addition to the two competitors; education and the NHS, this government is going to keep you safe by punishing the bad guys. From Tony Blair making his pitch in 1993 to today`s announcement  on tougher sentences and monitoring  of terrorists the tone doesn`t change and it`s unlikely that results will prove the benefits promised.  In essence legislation will be enacted so that convicted terrorists would not be eligible for parole and those convicted of preparing acts of terrorism or directing a terrorist organisation will spend at least 14 years behind bars. The Home Secretary has told us that there would be increased police and that a probation service ruined by failing Grayling as Justice Secretary under Cameron would be given the resources to manage offenders after they are released. This is an assurance that a probation service which cannot manage its existing priorities will somehow be able to manage an increased and more intransigent workload than ever before:  not to overlook that the increased number of police officers mentioned in the report are already included in the 20,000 additional officers featured in many of Boris Johnson`s pre election speeches.  In simple parlance that is known as double counting.  The same falsification as he has used in promising increased medical personnel and hospitals. We have been told that lie detectors will be available to assess the supposed rehabilitation of convicted terrorists when simultaneously, apart from limited use with sex offenders,  their use has been banned by law enforcement and the courts.  There is an assurance that increasing numbers of professionals will be employed in the rehabilitative procedures; namely 70 more specially trained  probation officers to take their number to 135, more psychologists to counter Islamism in jails and sympathetic imans trained to counter that same warped view held by extremists. 

If only we can have confidence that such statements will lead to the measures actually being achieved and that they will bring about the results envisaged. With the fall out from Brexit set to infiltrate every particle of our society,  judging by the past is no guarantee that the future will turn out similarly but if this initiative and similar on education and the NHS are seen to fail the jackboot of populism whether of the left or the right will ride roughshod over our parliamentary system as we know it and for that eventuality, however unlikely, there will be no quick fixes from any government press office. 

RACISM IS THE NEW McARTHYISM

Magistrates just like many especially in public service have to use the sensitivity of a spider`s leg to guard against false accusations of sexism, sizeism, fatism etc,and the bete noir of them all, racism. Oops! Let me rephrase...the bane of them all and the one ism that has caused the death of tens of millions and misery for millions. However like the unbridled prescribing of antibiotics the wider the term is bandied about the weaker is its application. 

Last week the actor Laurence Fox appeared on the panel of the BBC programme "Question Time".  In response to a comment re Duchess of Sussex  from an audience member widely considered to have been planted by the BBC he was accused of being a “white privileged male”. His reply,  “I can’t help what I am, I was born like this, it’s an immutable characteristic, so to call me a white privileged male is to be racist — you’re being racist.” was well received by the audience. 

And that whole sorry episode reminded me of a conversation just before Christmas ten years ago with  a colleague from Wales who told me that after she had told a person summonsed from a support unit at court to go back from where he came from [the particular office] and get the correct information a complaint of racism was made insofar as the individual was Estonian and the implication was that he should return to Estonia. It is scarcely credible that this nonsense was taken seriously and that my colleague had to explain herself. Of course the matter was dropped and the complainant was pacified. 

Now ten years later I begin to wonder if the circumstance of my former colleague were to be repeated whether she would still be on the bench or would have become another victim of political correctness gone overboard.  But that we have come to such a state of intellectual fear in this country where even the most straightforward of remarks can be so misinterpreted and worse still the complainants are afforded the status of having been verbally abused to placate those who would foster a culture of perpetual conflict amongst us; not the perpetual conflict envisaged by George Orwell in "1984" but the perpetual fear of causing offence resulting in silence instead of comment and inwardness in place of social contact. 

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.