ANOTHER M.A. TILT AT THE SENTENCING WINDMILL

In today`s Times [behind its paywall]  Magistrates Association chairman John Bache has made yet another request from that organisation that the magistrates courts` limit of six months custody be increased to twelve.  I posted five years ago (copied below) on the arguments made by his predecessor and my opinion at that time.  In general that opinion has not changed but of course the circumstances surrounding the current argument have changed beyond recognition.  Expediency is a common reason for fundamental changes in the way our society is run when the clamour is loud enough but it often takes years for those changes to be revealed as detrimental to our well being in some form or other when what would have been obvious in the situation  had been more carefully considered before the decisions had been taken.  An example which comes to mind was the railway closures in 1963 as a result of The Beeching Report which was adopted by the then government; it resulted in the closure of a third of the rail network and the scrapping of a third of a million freight wagons.  The removal of tram systems in the 1950s and 60s to be replaced by buses was also a failure to consider properly future needs. All the tram systems installed in cities over the last decade have been manufactured abroad.  At this time of crisis it has become known there is no current vaccine production facility in the UK; a failure which the government is hurriedly trying to overcome.  And so it is with the courts system.  On one hand there are those who would temporarily  dispense with juries in crown courts and on the other lobbyists who are seeking to remove magistrates courts custodial powers entirely.  If the wishes of the Magistrates Association were to be granted consider what would be involved.  First of all there are very few offences where the current maximum sentence available is up to 12 months custody; one such is Offences against the Person Act 1861 (s.38) Assault with intent to resist arrest and another is a newly created   offence of  Assaults on Emergency Workers (Offences) Act 2018.  The vast majority of other offences carry maximum sentences of two years or more.  Section 1(2) of the 2018 Act provides that the existing offences of common assault and battery are triable either way and carry a maximum sentence of 12 months’ imprisonment and/or an unlimited fine, where the provisions of section 1(1) are met. Section 1(1) is met where the common assault or battery is committed against an emergency worker acting in the exercise of functions of such a worker. Another totally unlikely manipulation of sentencing to render the M.A.`s pleas even negotiable would be a reduction in the relatively few offences where the current maximum is two years custody. These are mainly offences under various Sexual Offences Acts.  A public reaction to lowering the tariffs to facilitate  summary or either way hearings would be politically unacceptable for a Tory government.  It is often overlooked or unconsidered in this argument over custodial limits that only slightly under 4% of all magistrates courts sentencing results in immediate custody.  The recognised overcrowding of our prisons is unlikely to be reduced by a Ministry of Justice already heavily criticised in this area if it appears to be exacerbating this situation.  

It is my humble opinion that this perenial target for the Magistrates Association is akin to Don Quixote`s windmill.  Whenever a possibility appears, and this time it is Mr Bache`s lance in the spotlight, there is a quick snort and the lance is lowered ready for the charge.  It will fail this time as it has in the past and will in the future. 

4th November 2015

For over a decade there have been arguments, reports and informed suggestions that magistrates should have enhanced sentencing powers; namely that the current maximum of six months custody be doubled.  No other  initiative or  sentencing possibility has been more enthusiastically supported by the Magistrates Association although whether that reflects opinion of magistrates in general is a moot point. It is not difficult to discern the reason for such changes; it has nothing to do with the efficiency or lack thereof of the crown court but everything to do with the lower cost of running magistrates` courts.  These lower costs might be self evident but are very difficult to find in an authoritative published form.  We have figures such as these but  considering that the courts are run by Her Majesty`s Courts and Tribunal Service if one had expected clear and  unambiguous figures in its annual report one would have been disappointed.  114 pages on such topics as climate change and  carbon management plan but the daily cost of running the various courts under its control are nowhere to be found.  IMHO this cannot be an oversight. It is an omission by commission.  Various ratios have been offered historically on the relative costs of crown and magistrates` courts  and from recollection the former costs two to three times the cost of the latter but I am open to correction on the detail. 

These and similar arguments will become increasingly vocal in the near future because the Law Commission has recommended that the lower courts be allowed to sentence for up to twelve months custody.  As expected, Magistrates Association chairman Richard Monkhouse quoted in the Guardian was quick to endorse such a possibility, “Magistrates are trained, ready and able to handle cases with longer sentences – we see this as an opportunity for the government to trust our members to do the job they signed up for.” From the opposite side of the sentencing divide no doubt there will be a response from the Howard League for Penal Reform long opposed to magistrates` courts having any powers at all of custodial sentencing....."The Howard League repeats its objection to the use of short prison sentences, which are ineffective and damaging and believe magistrates’ over-use of custody could be prevented if they were required to remand an individual to the Crown Court for a custodial sentence".

Having been compulsorily retired by HMCTS earlier this year although the impending imposition of the Criminal Courts Charge made me jump from the good ship justice a little earlier than required  I can perhaps  reflect more objectively than sitting J.P.s on this situation.  There is an unhealthy number of them sitting only for the minimum required period demanded by the Ministry; 26 half days annually.  The actual numbers are kept under lock and key by the country`s justices` clerks but from my earlier analysis of all J.P.s  sacked by the   Judicial Conduct Investigations Office about half were for failing to sit for that minimum number of times.  I am informed by my own former colleagues that the number of two person benches is currently as high as it has ever been and that is with a reduced number of courts.  In addition there is virtually widespread agreement that training for magistrates is not as effective  it should be and that change is around the corner.  The appraisal system is not fit for purpose. These  facts alone give cause for concern.  Whilst a winger might just get by sitting for three hours every fortnight for a chairman to be competent and to be seen as being competent such a sitting level is totally inadequate.  However the Ministry is loathe to increase this minimum sitting requirement for chairmen because of the dire and increasing shortage of those eligible for the step up to the middle chair. 

I doubt the legal profession is any too happy about the proposals. Young lawyers of both persuasions are unlikely to offer their services for an increased number of appearances at magistrates` courts where their financial rewards make the junior doctors current pay levels seem to be in the stratosphere. 

The Law Commission`s proposals will IMHO be unlikely to come to fruition and with the impending reversal by Michael Gove over the Criminal Courts Charge likely to lead to mixed headlines he most certainly will not wish to make columns in the broadsheets by allowing magistrates increased sentencing powers at least not in the near future.

MOJ`s CONTEMPT FOR MAGISTRATES

There is no doubt that the MOJ pays only lip service to magistrates, their opinions, their well being, their future.  A clear example is today`s  publication of the latest press release from the weasels in Petty France on the subject of new technology in courts. It includes remarks from a crown court judge, a senior police officer and the chair of the Bar Council. But one would seek in vain a comment from somebody representative of magistrates or indeed a single magistrate him or herself. Such is another indication that the days of the magistrate and his/her current position in our courts system are clearly numbered. 

CIVITAS OPINION ON HUMAN RIGHTS LAW

Today CIVITAS has published its monthly review for April. The section copied below from the review is IMHO essential reading for all those involved in our legal system.  Certainly the views expressed will not be acceptable to many (some) but the issue is one of importance to us all however much we agree or disagree with the conclusion. 

Rebalancing the British Constitution: The future for human rights law
The Human Rights Act 1998 is claimed by its advocates to contain fundamental rights that everyone in the UK is entitled to, by incorporating the rights set out in the European Convention on Human Rights into domestic British law. But as Jim McConalogue writes, its 22-year history now testifies to a lawyer’s charter which disregards the fundamental rights of many people in society and has enabled judicial supremacy to unsettle the UK constitution.

The Act is publicly justified as ‘an integral part’ of the British constitution and yet in practice, it emboldens a judicial supremacy of rights, far removed and insulated from the electorate. Innumerable court cases continue to permit Convention rights of often dangerous individuals – including detained terror offenders – to supersede the rights of all others in society in safeguarding their public safety and national security. The capacity to govern and protect the nation state operates in the face of serious ambiguity because of the Act.

The further continued glaring contradiction between a policy of withdrawing from an EU legal architecture while seeking to enhance a complementing European Convention rights-based system is now inconsistent and for the future, will become unmanageable. The repeal of the Human Rights Act is now well overdue, given its detrimental impact on the UK constitution.

A post-Brexit politics which requires a stronger democratic process in which applicable rights and laws derive from a strongly contested domestic public sphere means ‘rights questions’ can no longer be simply administered by a foreign court, or remain unchallengeable by the public or be left practically unamendable by parliament.

The opportunity to rebalance the constitution, to take back parliamentary democracy and to reverse the judicial supremacy and overreach of the Strasbourg court is viable and achievable. That decision will provide for a rekindling of the power of the executive to govern and protect, while demonstrating a respect for sovereignty and the restoration of a genuine British human rights moral code. The foundation for future rights must lay with society reclaiming democracy and deliberation as the basis for deciding those rights.

WHAT IS THE "SENIOR MAGISTRACY"?

Yesterday the Lord Chancellor made the following statement in reply to a question in the House of Lords,

"I thank the hon. Lady for that question. She will be glad to know that daily work is going on between my officials and Her Majesty’s Courts and Tribunals Service, the senior judiciary and the senior magistracy (my bold)  to make sure that we can progress more cases through both the magistrates and the Crown courts. Of immediate importance are magistrates court hearings: I want to see more of them come forward. We can do a lot of them virtually, and I know that the work being done by my hon. Friend the Minister for Crime and Policing, together with my Department, will help improve the speed of the delivery of these important cases."

My simple point is what is the senior magistracy?  My suspicions are that I know what it is not likely to be and that is the various chairman of the various benches known as the bench chairmen`s forum.  Not likely because these people are elected by their colleagues and the last thing government wants to hear are the opinions of the 15,000 people who are currently appearing in court when requested and able.  It appears that a representative of the Magistrates Association was involved. In all probability this so called discussion with senior magistracy consists in addition with the six magistrates appointed within the last two years by the senior presiding judge himself appointed by the Lord Chancellor. One might comment that if the LC can appoint judges` representatives as being "senior" why not these "leadership" magistrates. The difference is that magistrates are volunteers and not paid civil servants beholden to government for their incomes, career progression and pensions. These leadership toads represent nobody but themselves. We all know in all professions there are those who seek prominence and adulation and stand in line for their gongs at some future time. Such people are not representatives of the rank and file of my former colleagues. It is just another small step in the planned elimination of magistrates from presiding as they do over the vast majority of court sittings in the lower court. Nobody seems to notice and nobody seems to care.  For further posts on "leadership magistrates" type those words into the search box.  

THE MYTH OF OPEN JUSTICE

During the riots of 2011 instructions to me and my colleagues from the Deputy Justices Clerk were that where defendants were facing either way charges they must be sent to the crown court for trial.  I did not observe that order and on at least one occasion my  bench accepted jurisdiction.  With the corona virus trashing so many of our legal, business and social activities the Ministry of Justice after a somewhat inauspicious  beginning is organising the early release of some carefully chosen prisoners.  However it occurred to me as I presume it has occurred to others outside the judiciary that it is not unlikely that similar "advice" as that detailed above to me in 2011 has been whispered to sentencers in the lower court that every attempt should be made to avoid immediate imprisonment of offenders even although only around 3% of offenders suffer immediate custody in that court. These examples from Sheffield seem to be such an indication. Now that some magistrates courts are closed to the public and reporters also experiencing difficulties in accessing proceedings digitally  one thing can be said for certain and that is nobody remotely connected with the MOJ will ever admit to such advice having been given. That is an indication that when it suits government the myth of "open" justice is just that: a myth.

"QUIZ" AND THE SECRET BARRISTER

Owing to current circumstances there is a dearth of interesting cases or controversial events upon which it is worth my commenting or you, dear reader, reading. But what is worth a few minutes, is that for those old enough to have watched the original shows of Who Wants to be a Millionaire 20 years ago and to have watched the ITV three parter "Quiz" based upon the notorious case of the coughing major who was convicted of cheating his way to a £1,000,000, is the comment by the "Secret Barrister" on the court and other legal scenes.   

I must admit to having missed one or two of the points she has made.  I would hope that practising criminal lawyers missed none.

THE IDENTITY POLITICS OF THE MAGISTRATES ASSOCIATION

IDENTITY POLITICS: 

"a tendency for people of a particular religion, race, social background, etc., to form exclusive political alliances, moving away from traditional broad-based party politics".

"sometimes referred to as identitarianism, is a political approach and analysis based on people prioritising the concerns most relevant to their particular racial, religious, ethnic, sexual, social, cultural or other identity, and forming exclusive political alliances with others of this group".

I doubt many will argue with the above definitions.  The term has been in use in various forms since the 1960s or 1970s, but has been applied with, at times, radically different meanings by different populations.  It is likely that as with so many now popular labels this one originated in America and primarily as a vehicle for black Americans to vocalise the rights as citizens they felt had been undermined by the white majority. In such a diverse society it quickly became a useful tool for Hispano Americans, native Americans and others.  At the heart of the disconnect felt by those groups was the realisation that the prejudices of white America were withholding the equality owing to them by the Constitution and that previous methods of securing their rights whether in education or one man one vote had been less than successful. It didn`t take long for the argument for such representative activities to  become a totem for the Left.  Initially black Britons aped their American examples in language, dress, culture and politics. Rarely were there any black groupings on the Right of the political spectrum.  With the immigration of over a million mainly poorly educated Muslims in the 1970s onwards they too saw the radical Left as their natural political home. And what a paradox that was and is: a large minority group holding often beliefs more suited to the middle ages in close alliance with agnostic or atheist gay supporting abortion on demand so called "progressives".  That this retrograde division of society has pervaded so many of its institutions is a cause for concern.  The Equality and Human Rights Commission is a statutory non-departmental public body established by the Equality Act 2006. Paradoxically this respected organisation set up by a Labour government is currently investigating that very same Labour Party for alleged antisemitism. There are however myriad groups steeped in the philosophy that must argue their separate cause whether it is the National Black Police Association or Muslim Women Network. 

The image at the top of the page was published earlier this week by the Magistrates Association, an organisation which is proving itself increasingly ineffectual in its contacts with this and previous  governments which had and have their own agenda with regard to the running and organisation of the lower court system.  

PEERS

"a person who is equal to another in abilities, qualifications, age, background, and social status".

There is no doubt that in today`s context  the above current definition is not strictly applicable. The jury system of "judgement by one`s peers" does not follow the above.  Jurors are not appointed or selected by the above criteria; they are or are supposedly a random selection of people whose names appear on the local electoral register.  Magistrates no longer belong to a "local" bench as they did during my time on the bench. Now there is a national bench which allows any magistrate to sit anywhere in England or Wales.  Thus the whole ethos as written at the top of the page by Paul Brearley JP Chairman of MA LGBT + special interest group is a chimera, a phantom, a non existent entity dreamed up by a failing body seeking to cause division in its ranks. 

The appointment of so called "leadership magistrates" by the MOJ has not exactly helped the MA in its attempts to have a leading role in directing the future of its members.  Indeed it has followed the aforestated examples of sub dividing its reducing membership into those groupings as copied below from its website. 

The MA LGBT+ Group was launched in February of 2020. 

We are in the process of launching groups for BAME magistrates and magistrates with disabilities. 

For more information on the Young Magistrates Special Interest Group (YMSIG), please email ymsig@magistrates-association.org.uk .

For more information on the MA LGBT+ Group, please email LGBT@magistrates-association.org.uk

For more information on any of the other groups, please email info@magistrates-association.org.uk 

So now if a member is a transvestite, bisexual or any sexual derivative imaginable the MA has a place especially tailored for the individual. I suppose any magistrate can double his/her/its involvement if his/her/its construction serves within several boundaries. It follows that there could be established eg a group for disabled BAME magistrates or LGBT disabled BAME magistrates. Or heaven forbid there could be a right wing group of aet. 40+ white male magistrates. The list goes on and serves to demonstrate the ridiculous morass into which the Magistrates Association is sinking. Indeed a vector diagram would be useful for them. Such divisions are destructive especially in an organisation which is bound by a common oath and which has a single objective:-  "I... swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second, in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will. So help me God."

It is not unlikely that many will disagree with my opinion.  To those I will say only that the history of "diversity" is relatively short and that time will tell if the divisions caused by its excessive propaganda and propagation have helped or hindered a the construction of a cohesive society such a society being essential to all our well being. 

COURTROOM TELEVISION IS A STEP NEARER

The MOJ, HMCTS and others are making full use of the dozens of public relations weasels frantically typing away on their keyboards in the bowels of Petty France. A section of their latest missive on behalf of HMCTS is copied below. 

Media and interested parties continue to be able to attend physical hearings in the ‘open’ courts to uphold the principles of open justice. Where this is not possible, judicial consideration is being given to enable new ways for journalists to join a hearing remotely, or a receive a transcript afterwards. We are continuing to work to develop ways in which we can continue to support media and public access to the work or courts and tribunals.

There have been many unconfirmed reports that despite the thousands of words from MOJ on how information on the workings of the courts, including of course magistrates courts which are not courts of record, can be brought to the public via accredited court reporters and other journalists there is a lack of information to the extent that many hearings are going unreported even in the circumstances when only about half the courts are functioning and there is a limitation on the matters being brought. 

For as long as these posts have been published I have stated my unswerving opinion that not only is televising of courts including magistrates courts necessary for justice to be seen to be done it would be a fund raising operation for HMCTS with media groups seeking to broaden their appeal on a localised basis. 

The tragedy we are witnessing and the consequent economic catastrophe for individuals and businesses large and small will lead to their necessarily aggressive manoeuvres  to maximise income over the next five years or longer. Courtroom television live in the living room is another step nearer.  

COVID-19 PROSECUTION// THE FINAL CHAPTER

Last Friday April 3rd I told the story of Marie Dinou who found unwanted fame as the first person found guilty of contravening the new regulations about movement in this era of virus contagion. Having admitted that she was convicted under "wrong legislation" her conviction was quashed.  British Transport Police has apologised but added that she refused to speak to its officers when she was stopped "loitering between platforms". The CPS has been silent. Apparently Ms Dinou did not speak to anyone at the police station, failed to confirm her identity at court, failed to enter a plea and did not speak to a solicitor assigned to represent her. The District Judge was a certain Sarah-Jane Griffiths who was called to the Bar (L) in 1998 and admitted as a Solicitor in 2010. She was appointed as a Fee-paid Judge of the First-tier Tribunal, Social Entitlement Chamber (Social Security and Child Support) in 2013. Judge Griffiths  concluded that the defendant was being "obstructive".It seems that the judge`s inquiries into Ms Dinou`s silence were hardly exhaustive. She made no effort or instruction for Ms Dinou`s health, mental and physical, to be ascertained. She was kept in the cells despite no charges being put to her and that no papers had been served. She was ordered to pay a fine of £660 without her income having been made available to the court. 

She was charged under Schedule 21 of the Coronavirus Act even although the prosecution knew that she was unlikely to be infected. Perhaps Judge Griffiths needs "advice" from the Lord Chief Justice?

A DARK ROAD AHEAD

Restrictions on movement
6.—(1) During the emergency period, no person may leave the place where they are living
without reasonable excuse.
(2) For the purposes of paragraph (1), a reasonable excuse includes the need—
(a) to obtain basic necessities, including food and medical supplies for those in the same
household (including any pets or animals in the household) or for vulnerable persons and
supplies for the essential upkeep, maintenance and functioning of the household, or the
household of a vulnerable person, or to obtain money, including from any business listed
in Part 3 of Schedule 2;
(b) to take exercise either alone or with other members of their household;
(c) to seek medical assistance, including to access any of the services referred to in paragraph
37 or 38 of Schedule 2;
(d) to provide care or assistance, including relevant personal care within the meaning of
paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(a), to
a vulnerable person, or to provide emergency assistance;
(e) to donate blood;
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it
is not reasonably possible for that person to work, or to provide those services, from the
place where they are living;
(g) to attend a funeral of—
(i) a member of the person’s household,
(ii) a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to
participate in legal proceedings;
(i) to access critical public services, including—
(a) 2006 c. 47. Sub-paragraph (3B) was substituted, with sub-paragraphs (1), (3) and (3A) to (3E) for sub-paragraphs (1) to (3)
by s. 66(2) of the Protection of Freedoms Act 2012 (c. 9).
5
(i) childcare or educational facilities (where these are still available to a child in relation
to whom that person is the parent, or has parental responsibility for, or care of the
child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);
(j) in relation to children who do not live in the same household as their parents, or one of
their parents, to continue existing arrangements for access to, and contact between,
parents and children, and for the purposes of this paragraph, “parent” includes a person
who is not a parent of the child, but who has parental responsibility for, or who has care
of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.
(3) For the purposes of paragraph (1), the place where a person is living includes the premises
where they live together with any garden, yard, passage, stair, garage, outhouse or other
appurtenance of such premises.
(4) Paragraph (1) does not apply to any person who is homeless.

The above is the recently drafted section on "movement" from the The Health Protection (Coronavirus Restrictions) (England) Regulations 2020. These are made under the Public Health (Control of Disease) Act 1984 Part 2A.  Some of its terms are very loosely defined if at all.  An enterprising reporter a couple of days ago brought to light the first case of somebody appearing in court allegedly in breach of the regulations. A factual report is available here.  Some inferences can be made from that report.  The level of fine indicates that it is unlikely the defendant actually appeared in court.  Considering the very short time between the legislation being in effect and the alleged offence having taken place it is almost certain a summons was not served.  From various sources it is fair to assume that the court was presided over by a District Judge(MC) and not a bench of lay magistrates. Certain very disturbing questions arise from this matter. In order for a case to proceed to court the Crown Prosecution Service must in essence believe there is more than a 50% chance that the prosecution will be successful, i.e. that a guilty verdict will result and secondly that bringing it to court is in the public interest.  In actual fact that means that this new legislation under which the police charged the defendant  was read carefully by a senior prosecutor and that the two requirements as above were fulfilled.  The CPS is supposed to be independent of government.  If we are to believe that there was no pressure or "advice" from on high the CPS are to be castigated for initiating a prosecution where there is no actual law being broken. If the CPS, however, succumbed to pressure from lackeys at 10 Downing Street we are in very dangerous territory.  Once the matter was before the judge it would appear that s/he had either been  ignorant of the legislation or had been "persuaded" by the Deputy Justices Clerk or even perhaps the Justices Clerk him or herself to convict. Either way the whole process has the whiff of the latrine about it. 

This legislation went through parliament on the nod.   Lord Chancellor of the United Kingdom, Lord Hailsham, in a Richard Dimbleby Lecture at the BBC in 1976 coined the phrase "elective dictatorship" by which he meant the power of an executive branch of government which could not be constrained by normal parliamentary means.  It would seem,  that judging by recent events which have left this nation without an opposition party worthy of the name owing to its having been taken over by a coven of antisemites and Marxists, the political upheavals since 23rd June 2016 are leading us down a very dark road the end of which is too bleak to view without a certain foreboding. 

COVID-19 LOCKDOWN; MAGISTRATES` HEALTH OR DUTIES?

Today and for the foreseeable future magistrates of whom around 85%  are over 50 years old and over half are more than 60 will be rechecking their rotas and wondering whether they should be thinking of their own health and that of their families or whether the social good and obligation  of appearing at court has priority.  Considering all are volunteers it is impossible not to assume that many benches will consist of two magistrates and not the usual three for the next few months.  

Whilst I was active video links were in operation mainly for bail hearings for prisoners on remand.  The expansion of video links has been one of the major initiatives of HMCTS in its "modernisation" programme and has been ruthlessly promulgated by its press relations factory deep in the bowels of Petty France.  It seems, however, that such links are hopelessly bedevilled by system failure often at police stations so demonstrating the inability of defendants to be dealt with by the technology on first appearance.  The result is that an unknown number of defendants is appearing in person despite their exhibiting some or many symptoms of Covid-19. This is placing many court users in jeopardy and is particularly disturbing for magistrates owing to their age profile as mentioned above. In addition the cells in the court buildings have not necessarily been deep cleaned daily despite their occupation by multiple persons and in some cases  their lawyers. 

As I have opined recently it would be reasonable to assume that unlike District Judges(MC) who are salaried civil servants some if not many magistrates will take the path of safety and security and decline to fulfil their rota requirements.  Indeed the silence, as far as is known on this topic, of the so called six magisterial toadies aka leadership magistrates  recently appointed by the MOJ to act as torch bearers for their master is an example of their uselessness as being cast as true representatives of their brethren and confirms this writer`s opinion of their being a fifth column within the magistracy.  Considering Twitter is often the first medium of choice for many important organisations to announce policy and/or news the Magistrates Association is outstanding for its public silence on this situation or perhaps it is communicating only with its dwindling membership. 

Just perhaps there will be some unpredictable results if there is a courts lockdown. Time will tell as it usually does. 

CORONA VIRUS`S LUCKY 4%

Having self isolated for the last week or so and having been retired from the bench for over five years my intimate knowledge of the magistrates courts is at best third hand or at worst via Twitter.  Having now laid my ignorance firmly on the line please allow me to voice a couple of thoughts that seem to require others for the answers.  

Even allowing for the closure of some courts the notification of which is a resounding silence from HMCTS the situation must be untenable for magistrates of whom around 85%  are over 50 years old and over half are more than 60.  Considering all are volunteers it is impossible not to assume that many benches will consist of two magistrates and not the usual three.  Each JP will have considered the health of those with whom s/he is in daily contact such consideration overriding  any obligation to perform their allotted duties. In such circumstances I fail to see that the single justice procedure, of which I have no personal experience its implementation being some time after my retirement, will not be extended temporarily so that courts will still be able to function albeit at a reduced level.  Paradoxically this will be directly opposed to what I think is the government`s ultimate destination; magistrates courts presided over by a single District Judge(MC) but as the saying goes; needs must. 

The second thought that comes to mind is the situation in the prisons. By all accounts it is just a matter of time before we hear of the first corona virus death in a prison and the possibility of a serious riot in a prison is IMHO more likely than not. All of which leads to the MOJ`s probable future announcement and guidance on sentencing at magistrates courts. It is inconceivable that sooner rather than later benches are going to be advised to eliminate custody from the sentencing options open to them. With fewer lawyers in a court to offer mitigation and fewer probation officers to prepare pre sentence reports jail capacities being reduced by the early release of current miscreants will not be jeopardised by the current 4% of offenders being given immediate custodial sentences. That lucky 4% will be the  beneficiaries of a situation which is causing havoc for the rest of us.  

TO JP OR NOT JP: THAT IS THE QUESTION

Post-nominal letters also called post-nominal initials, post-nominal titles or designatory letters, are letters placed after a person's name to indicate that the individual holds a position, academic degree, accreditation, office, military decoration, or honour, or is a member of a religious institute or fraternity.

The Lord Chancellor’s Directions to Advisory Committees from which I have copied the following would seem to make the situation re use of said letters perfectly clear:-

"Magistrates
The initials JP may be used on private and business letterheads etc in the same way as academic or professional qualifications. But they should not be used for the furtherance of trade, professional, business or political interests".

I know of at least one magistrate who is located in the West Midlands who flights that direction with impunity despite the powers that be knowing full well of her disregard for the directive. Perhaps there is an underlying cadre within upper judicialdom  which has given the nod to some and not to others because a cursory glance through the many decisions of the  Judicial Conduct Investigations Office over the last decade would reveal those magistrates who have been sanctioned for that "offence".  All of the above leads me to another possible scandal which has apparently escaped widespread  reporting in the MSN or even within the bowels of social media.  Probable new leader of her Majesty`s Opposition and former Director of Public Prosecutions Sir Keir Starmer had his leadership campaign funds boosted by £100,000 donated by a judge no less whose name is Robert Latham who sits as a part-time specialist property court judge  and who is still listed on the books of Doughty Street Chambers in London. I would not be at all surprised if there is not an action against him slowly progressing through the labyrinthine system of judicial complaints procedure. That of course is discounting the consideration that the complaints system can function on the basis of "who do you know" or "I`ll scratch your back if........."  It seems that there are some who seem to place themselves above and beyond the reach of a memo from the Lord Chancellor in 2014 stating that "judicial office holders are expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality".  Perhaps it`s purely the coincidence that Judge Latham was awarded Legal Aid Barrister of the year in 2008 by Tony Blair`s wife after his nomination by none other than the serving DPP at the time Sir Keir Starmer. 

DESCENT INTO AUTHORITARIANISM: AN EARLY WARNING

This post is about taking control.  I posted on 14th June 2018 that the MOJ were seeking to appoint a team of "leadership magistrates". I posted on  23rd July 2018 that the identities of those magistrates named above who had been appointed had been kept secret. Shortly after that July post and ministerial procrastination their names were published.  Around the same time the lobbying organisation Transform Justice had made similar comments about the secrecy with which these people had been appointed and the  iniquity of their identities being withheld. And now finally under the camouflage of these government lackeys we have, this week,  the future of the magistracy laid out before us by the Lord Chief Justice.  For ease of use I have copied the document below although the format has had to  be altered. The highlights are mine. 

 Foreword by the 
Lord Chief Justice


The Magistracy is at the core of the judicial system. It has 
been at the forefront of the delivery of justice across England 
and Wales for over 650 years. In 2018, I approved changes to 
the leadership structure and governance of the Magistracy. 
These changes brought its administrative structure into closer 
alignment with the rest of the Judiciary, and began the process 
of embedding the magistracy firmly within the judicial family.

The key purpose of the Magistrates Leadership Executive 
(MLE) is to support the governance of magistrates’ courts and represent the interests of the magistracy. Its initial task was to develop the first national strategy for the Magistracy. This strategy builds upon the governance structures and continues to develop the senior judiciarys plans for establishing and securing the future of the magistracy. I commend the MLE who led the development of this strategy. Working collaboratively with Her Majesty’s Courts and Tribunals Service (HMCTS), Ministry of Justice (MOJ), Judicial College, Magistrates` Association and involving local leadership magistrates, they have sought to consolidate the position and future of the magistracy with six key priorities. These priorities also reflect the evidence and recommendations of the House of Commons Justice Select Committee Reports on the Role of the Magistracy.

I endorse this national strategy and MLE`s responsibility to support my office and that of the Senior Presiding Judge in the development, leadership, management and support of the Magistracy of England and Wales.



Introduction

Magistrates are responsible for making decisions that significantly affect the lives of the people of England and Wales. It is essential we ensure the magistracy is committed, competent, consistent, and confident in dispensing justice 

The public has the right to expect that magistrates will: 

• be selected against rigorous criteria
• make competent independent judicial decisions in a structured and objective way
• be well trained and supported
• take personal responsibility for ongoing development via peer appraisal
• seek, receive and act on regular feedback, including peer appraisal


This document sets out key objectives that will ensure all the above is achieved.



Strategic themes

Communication

Communication for magistrates will be consistent, clear and purposeful

The magistracy is a diverse community and their engagement and communication needs will vary. The role of the magistrate is an extremely responsible one as it is part of the judicial family upholding the rule of law. It is essential that all magistrates have access to timely, relevant and clearly expressed communications, to engage and carry out their judicial role effectively.

Objectives:

1. E-judiciary email addresses will be used when communicating with magistrates.
2. The engagement of magistrates will be maintained via a structure of regular and relevant communications which avoid duplication.
3. The National Leadership Magistrate will keep magistrates updated through regular newsletters.
4. Magistrates will have access to a digital store of information via e- judiciary and will take responsibility for complying with judicial security IT guidance.
5. Leadership Magistrates will explore and trial the use of social media for positive networking opportunities.




Organisation

The magistracy will operate with clear committed governance and appropriate support Her Majesty’s Courts and Tribunals Service manage administration of the justice system through seven regions, including Wales. The magistracy operates through local justice areas as defined by statute. In February 2018, new arrangements were laid down by the Lord Chief Justice for the governance of magistrates` courts business. In October 2018, a new Magistrates Leadership Executive was established.

Objectives:

1. Work towards realising the framework for a single bench for the magistracy, with adequate safeguards and conditions to protect magistrates’ identity and sense of belonging within a local leadership structure.
2. Maintain and develop the relationship between Leadership Judges, Regional Leadership Magistrates, Bench chairs and Her Majesty’s Courts and Tribunals Service on matters relating to the management and organisation of magistrates’ courts business, facilities and performance, reflecting the need of the Family Court where appropriate.
3. Leadership Magistrates and Bench chairs will be properly supported to fulfil their roles as judicial leaders.
4. Enhance the structure and relationship between the magistrates sitting in the criminal and family courts.
5. Work with the Judicial Office, Her Majesty’s Courts and Tribunals Service and the Ministry of Justice to monitor the impact of reform and how the magistracy will progress and change in the future. Monitor how that will be effectively communicated and understood by magistrates and ensure they are properly prepared and supported for any changes.
6. Clarify and communicate the respective roles of the Magistrates Leadership Executive and Magistrates Association at political, national and regional levels. They will work together for the successful future of the magistracy.
7. Magistrates will work in a mutually respectful and supportive environment where unnecessary bureaucracy is removed.




Profile

The magistracy will continue to have a strong foundation within the judicial family and its profile will be promoted with confidence

The office of Justice of the Peace has existed since 1361 and holds a unique position within the judicial family. The magistracy represents the largest group of judicial office holders – yet there is limited public understanding about its role.

Objectives:

1. Magistrates will develop and maintain close and regular relationships with the senior judiciary as appropriate at national level (Lord Chief Justice, Senior Presiding Judge, President of the Family Division, Deputy Senior Presiding Judge), regional level (Presiding Judges) and local level (Resident, Circuit and Designated Family Judges).
2. Magistrates will discuss with the senior judiciary matters of mutual relevance, such as community events and the use of social media.
3. Promote the profile of the magistracy to the general public to ensure it is understood and respected, and will make sure that all communities are engaged.
4. Magistrates Leadership Executive will develop appropriate relationships with the media (including television, radio, newspapers and the social media) as appropriate. This will be managed in conjunction with the Judicial Press Office and Her Majesty’s Courts and Tribunals Service communications teams.
5. Agreement from Ministry of Justice will be sought to establish a national steering group, develop and promote the national profile of the magistracy across England and Wales and thereby aid recruitment, increase diversity and assist advisory committees.




Recruitment

A comprehensive and sustainable plan for recruitment will be created, to increase the number and diversity of applicants, while maintaining high standards of competence

There is a shortage of magistrates and over 50% will reach retirement age within the next 10 years. Judicial Appointments Commission does not have responsibility for the recruitment of the magistracy. This responsibility lies with the 23 non- departmental public bodies known as recruitment advisory committees.

Objectives:

1. An effective judicial deployment protocol will be developed that provides a clear forecast of recruitment needs for at least three years ahead.
2. Regional and Bench leadership teams will support the induction of new magistrates.
3. Magistrates will be able to help promote recruitment campaigns, including direction to the digital recruitment pages.
4. Magistrates will share ideas to support attraction to the role and increase the diversity of new applicants.
5. Bench chairs will encourage exit interviews for all colleagues upon leaving the magistracy to ascertain aspects of the role that may impact upon retention rates.
6. Agreement from Ministry of Justice will be sought to establish a national steering group, develop and promote a national profile for the magistracy across England and Wales and thereby aid recruitment, increase diversity and assist advisory committees.




Training and competence

Magistrates will be trained to ensure they are confident and competent to perform their judicial roles to a high standard

The Lord Chief Justice has statutory responsibility for magistrates training which is delegated to the Judicial College. The Judicial College through its sub-committees, identifies national training needs and incorporates these into the minimum provision of training agreement with Her Majesty’s Court and Tribunal Service. Training, Approvals, Authorisations and Appraisals Committees are obliged to take into account the agreement and have responsibility for identifying magistrates 
training needs and developing a plan to meet them. Her Majesty’s Court and Tribunal Service funds magistrates’ training.

Objectives:

1. Support magistrates to be responsible for their own competence, personal development and preparation for appraisal.
2. Promote available training resources and materials across the Magistracy.
3. The Training Approval Authorisation and Appraisal Committees role in respect of training and appraisal will be strengthened and the communication links with Training Approval Authorisation and Appraisal Committees and Judicial College will be enhanced to ensure the needs of the magistracy will be met.
4. Communication links between Judicial Business Groups, Training Approval Authorisation and Appraisal Committees and the Judicial College will be enhanced, underpinning the Judicial Business Groups’ role in respect of training.
5. The professional accreditation of magistrates’ training and development will be investigated and considered.
6. IT training for magistrates will be included in the minimum provision agreement for all new magistrates and refresher training in line with the guarantee of the Lord Chief Justice and Senior Presiding Judge.
7. Opportunities will be developed, with the agreement of the Senior District Judge (Chief Magistrate), to share the experience and skills of the District Bench with the magistracy.
8. Different methods of delivery will continue be explored.
9. A review of the minimum training requirement for the magistracy to facilitate an identified development pathway will be requested.




Judicial Development Pathway

Magistrates will be encouraged and supported to be committed to their roles and 
expand their involvement within the magistracy

When magistrates first join the bench, they do so as a winger in the adult or family court. While some will continue solely in this role, there are a range of opportunities available within in the magistracy.

These include:

• sitting in other jurisdictions
• becoming a Presiding Justice, a mentor, an appraiser, a youth panel member, (deputy) Bench or panel chair
• contributing to committees such as Training Approval Authorisation and Appraisal 
Committees or advisory committees


Objectives:

1. Encourage and support magistrates to take on these additional roles.
2. Vacancies to be advertised transparently and through appropriate channels, with a clear statement of the role, and the skills and experience required and sufficient time for all potential candidates to apply.
3. Appropriate (and where possible accredited) training to be provided for all magistrates, including those taking on additional roles, to enable them to carry out their role effectively.
4. Produce an analysis of the transferable skills gained from carrying out each role so that potential candidates and any employer can see how they would benefit.
5. Explore ways to recognise the contribution made by magistrates, including those who take on additional roles.

I would assume that some whether JPs or not would find nothing unreasonable in most[much] of the above. However the basis of my lack of approbation is the self declared intention of central government to take over each and every stage of the system. There are certainly some aspects of recruitment and training and observations of just what conduct is considered unacceptable for what is a cadre of ordinary citizens leading dual lives that requires deep thought and perhaps revision. But in general this document is just the latest step in a long term desire to ensure the magistrates courts are under full government control and that means controlling individual magistrates. I have highlighted in yellow the number of times reference is made to "leadership magistrates. These people are totally beholden to those who appointed them.  They are in place to further the purpose of the MOJ. I doubt they will have regard to the lack of respect afforded them by their more experienced colleagues but then they are on their way out.  All those newly to be appointed to the bench will have no knowledge and little interest in the history of the last two decades of the magistracy.  Thus they will be more easily led; a task which the Magistrates Association has failed miserably owing to its senior officers over that period being more interested in the  gongs and bling awarded for being lap dogs kowtowing to their masters. This is its reward with references to it in a single instance. The Bench Chairmens` Forum was the only national organisation that could truly be said to have been representative of Joe magistrate. Bench chairmen have three mentions in the document although their functions are likely to be limited to the individual bench from which they were elected.  

This government and its prime minister in particular have not hidden their intention to curb power and/or influence at the very highest levels of the legal system; namely the Supreme Court. The intentions re the country`s lowest courts which account for and will affect about 93% of all appearances will be to direct these courts to the aims of the government of the day for good or ill.  Three magistrates will be inhibited as never previously from deviating from the orders imposed upon them. When these magistrates are prohibited from presiding over trials which will be chaired with or without them as wingers by a single District Judge (MC) as will surely be the case just a few years from now the government will have achieved total control of the legal process. There are many lawyers who would applaud the abolition of lay magistrates. To them I say; beware of what you wish for.  That will be a further step on the ladder of authoritarianism upon which we have begun the slow climb..........or should that be the descent?