5 YEARS RETIRED

Tomorrow, the ides of March, is forever noted in history as the day when Julius Caesar met his bloody end. Tomorrow, as in the last five years, will mark the anniversary of my final sitting as a magistrate. I hadn`t quite reached my sell by date but owing to the impending imposition of having to pronounce to all convicted offenders  the terms of the iniquitous Criminal Courts Charge dreamed up by that ministerial court jester failing Grayling I had decided to exit stage left a month or two prematurely.  

Currently there are appeals in the media from the MOJ; "anyone can become a magistrate": as trite a slogan as the weasels in the Petty France basement have yet conceived. This is how a society beset with anxieties that it does not appear to be sufficiently diverse at work, rest or play seeks to anoint itself with a self righteous shower of  the holy oil of equality.  I was appointed in my mid fifties when my secure financial position allowed me to offer a minimum of around two weeks full time on the bench per annum.  It wasn`t long before I realised that especially for chairmen that minimum sitting requirement was totally inadequate for even the most respected colleagues to become truly competent. Today the minimum requirement is unchanged and that is no surprise.  In order for the lay bench to continue in its present limited form the imposition of extra sitting days would stimie the enthusiasm of even the most ambitious JP.  But there is another view that in the long term government would not be sorry to see the demise or at the very least the diminution of the magistracy in its present form. District Judges (MC) being full time civil servants are beholden to said government for putting bread on their tables.  They are less likely to strike a path of even minor deviation from the path set out for them. When my court began having before it some of those charged subsequent to the riots of 2011 advice from the Deputy Justices Clerk was that they were to be sent to the crown court if they were pleading not guilty to an either way charge. No "ifs" and no "buts"; those were our instructions at pre court briefings.  On a particular occasion when I was chairing in such a matter my colleagues and I refused to follow that instruction despite our respected clerk making the official advice public. To protect her from any ramifications when we accepted jurisdiction we expressly exonerated our clerk from any failure to advise us in accordance with her duty.  That, in my opinion, is the value of the magistracy but unfortunately in my humble opinion we are unlikely to have that system of jurisdiction in its current format in another decade. 

It is not unlikely that by this time next year the retirement age for all judicial officers will be raised to 75.  This will mean that the opportunities for increasing the numbers of younger magistrates will be reduced.  In any event to expect an 18 year old, as is the current minimum age for magistrates, to possess the wisdom to sit in judgement on his/her fellow citizens is a fatuous nod to the equally fatuous notion of equality for its own sake. Future historians will look back at the century following the 1960s as one where reason was given up to mob culture: where the louder the voice the greater the influence in law as in other segments of our society.   

OUTSOURCING BY THE CPS

I don`t remember when I first heard the term "outsourcing" but there are few people now who don`t have a fair notion of what it means.  Although historians will say that the term was first coined in the 1800s during the industrial revolution it was in the 1970s apparently that the term became commonplace.  Some of the advantages of outsourcing are said to be that companies don't have to hire more employees. When outsourced labour is used payment can be made as a self employed contractor thus avoiding many rules applying to an employed workforce and reducing direct employment costs. A price many companies are willing to pay is the lack of control over outsourced workers.  A common description now applied to such workers is that they are employed on zero hour  contracts.  Without them many web based organisations could not exist.  Food and other delivery services and personal taxi services are obvious examples of enterprises which were unimaginable even ten years ago and unobtainable unless one was exceptionally wealthy. However twenty years ago it was unimaginable that 25% of lawyers prosecuting for the CPS would be outsourced. CPS uses the description of such people as "agents" but the change in etymology doesn`t disguise the reality. It is a shameful disgrace. The CPS has many millions of gigabytes of statistics to determine the likely workload to be expected at any quarter but along with many functions within the Ministry of Justice efficiency has been sacrificed to the dogma of austerity since 2010; a dogma which apparently has had its comeuppance in yesterday`s budget. A press release from the weasels in Petty France yesterday attempts to hide the gross inefficiencies of the service as it is currently constituted by subheading a report:-  "The Crown Prosecution Service deploys agents effectively, but needs to provide them with better support". 

Those who are regular users of our courts will have their own opinions. I doubt there will be much contradiction to this post but of course all pertinent comments will be published.  

COPY OF TODAY`S GOVT. E MAIL RE KNIFE & BLADED WEAPON POSSESSION

FOR THOSE WHO DO NOT RECEIVE GOVERNMENT E  MAILS BELOW IS THE BEST AVAILABLE COPY OF THAT PUBLISHED TODAY ON SENTENCING FOR  KNIFE AND BLADED WEAPON POSSESSION. UNFORTUNATELY CERTAIN FEATURES DO NOT COPY eg TABLES AND THE FORMAT IS NOT AS THE ORIGINAL

For any feedback related to the content of this publication, please let us know at statistics.enquiries@justice.gov.uk
Published 12 March 2020
Knife and Offensive Weapon Sentencing Statistics, England and Wales – 2019
Main points
The number of knife and offensive weapon offences dealt with by the Criminal Justice System (CJS) has been increasing since 2014.
In 2019 nearly 22,300 knife and offensive weapon offences were formally dealt with by the CJS, an increase of 3% since 2018. The increase has been driven by possession of an article with a blade or point offences.
The proportion of offenders receiving an immediate custodial sentence for a knife and offensive weapon offence has remained stable for the last three years at around 38%.
Between 2009 and 2016 there was an increase in the proportion of offenders receiving an immediate custodial sentence for a knife and offensive weapon offence, from 23% in 2009 to 35% in 2016, but the trend has been stable over the last three years.
The average length of the custodial sentences received increased from 6.3 months in 2009 to 8.2 months in 2019.
For just under three quarters (71%) of offenders this was their first knife or offensive weapon possession offence
The proportion of offenders for whom this is their first knife or offensive weapon possession offence has been decreasing and is now at its lowest level since 2009 (80%).
The average custodial sentence received by offenders sentenced under section 28 of the Criminal Justice and Courts Act 2015 was 8.0 months in 2019
This has risen since 2016, the first full year after the legislation was established, where it was 7.1 months.
This publication presents key statistics describing the trends in the number of offenders receiving cautions and convictions for possession of a knife or offensive weapon offence in England and Wales. This also includes offences involving threatening with one of these types of weapons. It should be noted that figures for the latest year have been estimated and should be treated as provisional, please refer to the technical guide for further details.
2
1. Knife and offensive weapon offences overview
The number of knife and offensive weapon offences dealt with by the Criminal
Justice System (CJS) has been increasing since 2014.
In 2019, 22,285 knife and offensive weapon offences were formally dealt with by the
CJS, an increase of 3% since 2018.
Recent police recorded crime figures published by the ONS1 also showed an increase
in the number of knife and offensive weapon offences recorded. In the year ending
March 2013, 15,699 offences were recorded compared with 36,588 in the year ending
September 2019. Furthermore, information published by the Home Office on “Crime
outcomes in England and Wales” show that 51% of these offences resulted in a
charge or police caution in the year ending March 2019.2
Figure 1: Knife and offensive weapon offences by offence type, England and Wales,
annually from 2009 (Source: Table 1a)
0
5
10
15
20
25
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
Number of offences (000s)
Year
Possession of an article with a blade or point Possession of an offensive weapon
Threatening with a knife or offensive weapon
Figure 1 shows that this increase is driven by possession of an article with a blade or point
offences. These offences have now increased to over 14,200 offences.
The number of adult offenders convicted or cautioned for a knife or offensive weapon
offence has increased by 3% in the last year while the number of juveniles convicted or
cautioned has increased by 2%.
1https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/year
endingjune2019, table A4
2 https://www.gov.uk/government/statistics/crime-outcomes-in-england-and-wales-2018-to-2019
3
2. Sentencing
The proportion of offenders receiving an immediate custodial sentence for a
knife and offensive weapon offence has remained stable for the last three years
at around 38%
Between 2009 and 2016 there was an increase in the proportion of offenders
receiving an immediate custodial sentence for a knife and offensive weapon offence,
from 23% in 2009 to 35% in 2016, but the trend has been stable over the last three
years.
The average length of the custodial sentences received increased from 6.3 months in
2009 to 8.2 months in 2019.
Figure 2: Knife and offensive weapon offences by disposal type, England and Wales,
annually from 2009 (Source: Table 1)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
Percentage of offences
Year
Caution Absolute / Conditional discharge Fine
Community sentence Suspended sentence Immediate custody
Other disposal
The proportion of offenders receiving immediate custodial sentences has remained stable at
around 38% for the last three years, but has increased since 2009 when 23% received
immediate custodial sentences. In 2019 over 8,000 knife and offensive weapon offences
dealt with resulted in immediate custody compared with nearly 6,000 in 2009. This increase
has been driven by adults, for whom there was a 49% increase in offenders receiving
immediate custody in the period.
The increase in average custodial sentence length between 2009 and 2019 was seen in all
age groups and offence types but particularly for adults, for whom it increased from 6.2
months to 8.2 months, and for possession of blade or point offences, where it increased
from 5.4 months to 7.5 months.
4
3. Offending History
For 71% of offenders this was their first knife or offensive weapon possession
offence
The proportion of offenders for whom this is their first knife or offensive weapon
possession offence has been decreasing and is now at its lowest level since 2009
(80%).
The decrease in the proportion of first time knife and offensive weapon offenders has been
seen for both adults and juveniles, with the proportion for adults decreasing from 77% to
68% between 2009 and 2019 and the proportion for juveniles decreasing from 91% to 83%
over the same period.
Figure 3: Number of previous cautions or convictions for the possession of a knife or
offensive weapon offence for offenders cautioned or convicted for a knife or
offensive weapon offence, England and Wales, annually from 2009 (Source:
Interactive Pivot Table Tool)
0
2
4
6
8
10
12
14
16
18
20
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
Number of occasions (000s)
Year
0 Previous convictions/cautions 1 Previous conviction/caution
2 Previous convictions/cautions 3 or more previous convictions/cautions
Figure 3 shows that whilst the proportion of first time offenders for this offence type has
fallen the number of offenders dealt with for their first knife and offensive weapons offence
has remained stable over the last three years.
Since 2014 both the number and proportion of offenders dealt with who had one or more
previous knife and offensive weapons possession offences increased year on year, rising
from 25% or 3,755 occasions to 29% or 5,795 occasions.
5
4. Sentencing under section 28 of the Criminal Justice and Courts
Act (CJCA) 20153
The average custodial sentence received by offenders sentenced under section 28
of the Criminal Justice and Courts Act 2015 was 8.0 months in 2019.
This has risen from 2016, the first full year after the legislation was established, where it
was 7.1 months. Over the same time period the average custodial sentence length has
increased from 7.2 to 8.1 months for adults and 5.8 to 7.6 months for 16 and 17 year
olds.
Figure 4: Knife and offensive weapons possession sentencing and cautioning
occasions for adult repeat offenders, by disposal type, 2014 and annually from 2016
(Source: Interactive Pivot Table Tool and Table 7)4
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
2014 2016 2017 2018 2019
Percentage of occasions
Year
Caution Absolute / Conditional Discharge/Fine/Other Community Sentence Suspended Sentence Immediate Custody
Section 28 of the
Criminal Justice and
Courts Act was
introduced in July 2015
Following the commencement of section 28 of the CJCA 2015, a court must impose a
minimum custodial sentence5 on an offender who has been convicted of a second or
subsequent offence involving possession of a knife or offensive weapon. The court must
impose the minimum sentence unless it would not be in the interest of justice to do so.
3 http://www.legislation.gov.uk/ukpga/2015/2/part/1/crossheading/repeat-offences-involving-offensive-weaponsetc
4 Figures for 2014 have been taken from the Interactive Pivot Table tool while the figures for other years have
been taken from Table 7.
5 At least 6 months for adults and at least 4 months for juveniles aged 16 or 17.
6
In 2014, prior to the introduction of this legislation, half (50%) of adult knife and offensive weapons possession offenders with at least one previous knife and offensive weapons possession offence received an immediate custodial sentence. In 2019 two thirds (66%) of adult offenders sentenced under section 28 of the CJCA 2015 received an immediate custodial sentence. Overall 86% of adult offenders sentenced under section 28 of the Criminal Justice and Courts Act 2015 in 2019 received some form of custodial sentence, either immediate custody or a suspended sentence, compared to 69% of adult offenders with at least one previous knife and offensive weapons offence in 2014.
For 16 and 17 year olds, in 2019 44% of offenders sentenced under section 28 of the CJCA 2015 received an immediate custodial sentence compared to 28% of knife and offensive weapons possession offenders with at least one previous knife and offensive weapons possession offence in 2014.

EQUAL TREATMENT FOR PENIS AND VAGINA POSSESSORS

There is a well known adage "Work expands to fill the time available to complete the task" commonly known as  Parkinson`s Law; a proverb coined by its originator   C. Northcote Parkinson.  As a magistrate its application  first became noticeable to me when the first edition of Sentencing Guidelines was published on  13 June 2011. It dealt only with assault and had been in gestation for years.  The Sentencing Council has published four definitive guidelines in the last two years.  In less than a decade from a standing start that Council has revolutionised the government`s thinking on sentencing and imposed more or less a tick box method for all judges and magistrates to follow.  Woe betide any who do not provide acceptable reasons if they deviate from said guidelines. The latest publication is  a new edition of the Equal Treatment Bench Book published today. Ostensibly like its predecessors this is supposed to ensure that nobody is affected by any prejudice consciously or unconsciously held by sentencers. Aside from the assumptions scientifically or unscientifically supposedly held  by the writers this "book"  published by the Judicial College takes 427 pages (click link to pdf) to explain itself and "guide" its readers in their decision making.  It would appear to this old lag that someone somewhere in the bowels of Petty France is working on an AI system to remove any input at all from a fully functioning intellectually gifted human being as are most sentencers.  

The matter of gender has, in recent months, become the topic of war between so called interested parties. All manner of groups have taken to the barricades in support of their professed opinion except that their opinion   has developed into open intellectual and political warfare involving universities, publicly used changing facilities, schools and many other aspects of our society.  Indeed last week my wife who regularly attends a large city centre gym was shocked to see a short haired skinny  flat chested person with absolutely no breasts or mastectomy scars  wearing only men`s shorts walking through the ladies changing room. There being nobody else in the area she was loath to challenge this individual and was too broad minded in her social attitudes to mention this event to the manager.  I was shocked. But when a judge spares a person from jail because being unable to confirm his/her gender an immediate custodial sentence is unwise owing to his possibility of harm if he were sent to a male prison and not having the gender reassignment certificate to send her to a female prison we have gone down Alice`s rabbit hole. Whilst there is no doubt a tiny number of people who in this age as historically have a sexual structure which is ambiguous the degree of political weight attached by some for their own dubious purposes is a nonsense. As is perhaps typical of those of my generation I hold to the opinion that a person with a penis is male and those with vaginas are female. 

COURTS ARE A SIGNPOST

You may be there all day
You need to arrive by the time stated in your notice letter.
The time given in your letter is when the day’s cases start. Your case might not be first so be prepared to wait.
Make any arrangements you need to, for example childcare or taking time off work.

The above "advice" is at the beginning of a document published on 7th February: "Guidance What to expect coming to a court or tribunal".  In other more honest language it might have read, "The courts are so overcrowded owing to the government`s knowingly closing half the country`s magistrates courts, many crown courts and not providing sufficient funds for judges to sit at all the remaining crown courts where facilities are available".

What a state of affairs; it is even worse than the atrocious conditions at many of our hospitals where emergency and accident departments are simply overwhelmed.  At least those who have the foresight and/or means to have private medical insurance can avoid some of the delays in the NHS but nobody can buy his/her way to a scheduled court appearance.   Even just yesterday the civil servant in charge of the Her Majesty`s Courts and Tribunals Service had the affrontary to tweet "I believe passionately that we need a justice system that leads and inspires the world. Our #justice system is an integral part of modern society – our #CourtReform programme is making the system work better by giving people new routes to justice. #JusticeWeek2020".  Is this self delusion? She didn`t need to put those words in front of a public which knows it is pure imagination. Was it imposed upon her by the dozens of weasels who constitute one of the largest press offices in Whitehall? Whatever the exact circumstances the courts` system is in disarray  and to quote a former Home Office Secretary of State about that arm of government; "it is not fit for service". 

A truly free democratic society cannot function without a justice system in which each individual has confidence. All parts of that system are in rapid decline including police where our prime minister is now notorious for his spurious use of statistics. Between the clear blue sky of optimism and the clouds of doom we are at a midway stage where the weather forecast is unable to provide confident guidance.  The state of our courts is merely a signpost along the way. 

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.