RESEARCHERS MUST BE ALLOWED INTO THE JURY ROOM

A major "problem" with any justice system is that apart from those who are involved with its functioning and therefore derive their ability to put bread on their family`s table from its continuance, is that the majority of the public who are uninvolved in serious law breaking whether as witness or defendant rarely express any interest in the subject.   Their knowledge of the legal system and its many ramifications in a democratic society are derived from the various media available which now means the sometimes rabid utterings in Twitter or Facebook and the like.  Indeed that is one reason why I have written here not a few times bewailing the lack of old fashioned local newspaper court reporting and the corollary of my wish to see local live TV court reporting. However to return to the reality of today; what some would say is the bedrock of our justice system, the jury, is under severe criticism from both ends of the legal spectrum; judges and victims or their families.  On 27th April I referred to the situation in Northern Ireland where the then current practice as in Great Britain "a jury of one`s peers" could not cope with the incendiary civil disturbances of the Troubles. The problems in England and Wales caused by the current pandemic exacerbated by a decade`s under spending imposed on the Ministry of Justice by successive Tory administrations have led some senior judiciary to contemplate the suspension of jury trials.  Not all lawyers are opposed to the idea or at least are open to a detailed investigation into the possibility of changes to the hallowed jury of 12.   Wikipedia offers a fairly comprehensive but not total understanding of the jury system. The Criminal Justice Act 1967 allowed for the acceptance of majority verdicts. I think it is fair to say that investigations and inquiries into the jury system have been more theoretical and statistical than practical.  No outside observers are allowed into the jury room and jurors are not allowed to comment subsequent to their trial involvement. It would seem that the prime requirement for a juror would be an ability to understand the English language and not just every day language but the more defined language of the legal system and its operatives.  A well recognised authority on this topic and its findings is available here with an emphasis on English language proficiency of those who have immigrated here. It would not seem unreasonable that there should be a check on language ability as a requirement for jury service. It would also seem sensible that a person`s ability to be able to reason and differentiate credibility of evidence of witnesses as essential to wade through the statements given in the witness box where there is always the possibility  of deliberate lying or distortion of the truth.  Finally in this very short opinion piece I would opine that it is inappropriate that a person who is not a British citizen can be selected for jury duty. Surely when we talk of a jury of peers a fellow citizen fits that requirement and a non citizen does not. 

All the above is theory, opinion and history.  The nefarious results of some jury trials are essential reading for most criminal lawyers.  Indeed such an event was the subject of my post 27th April referred to above. However an example of the more serious consequences of a possibility of a jury gone wrong was reported in some detail in long reads today. Of course we will never know why the jury acquitted; speculation is all we have.  However there is one speculation that has probably more credibility than any other: if the case had been heard in Scotland there would have been the possibility of the third verdict, unique in the western world, not proven. There are those south of the border who would be aghast at the very thought of such a decision being available to English juries their argument being that the innocent could be tarred with guilt and the guilty would forever be unable to claim their innocence. Given the case aforementioned above it doesn`t seem unreasonable to state that the true verdict was indeed that the level of proof required for a guilty verdict was lacking and that non proven is a more accurate understanding of what happened in the privacy and secrecy of the jury room.  We will never know. And that is the crux.  The conduct of juries being treated as sacrosanct is no longer tenable.  Selected academic studies must be initiated into this so called bastion of English justice if judge only trials in England are to be a non starter until revolution hits the streets of Westminster. 

THE INCREASING UNPREDICTABILITY OF COURTROOM DECISIONS

Although it might be boring for regular readers to read again of my dismay at the lack of or reduced amount of newsprint analogue or digital  devoted to court reports today`s effort is an attempt to showcase however slightly items that might interest those who are themselves interested in what goes on in our courts. 

As training and common sense (the latter a factor which is frowned upon by the Ministry of Justice owing to the possible discriminatory connotation of the word "common" which might be unequal among some sections of the population) dictate it is at the very least unwise and at the worst most injuducial to criticise in public a fellow member of the bench however junior.  Indeed the chairman of a bench or a District Judge [MC] must not in any public remarks allude to a previous or future court`s decision which was or is likely to have been or to be out of his/her control. It would appear that HH Jason Taylor QC at Swindon Crown Court felt that either those unwritten rules did not apply to him or that the situation was so serious that he had no choice not only to criticise but to heap scorn on a magistrates bench which had taken action at a preceding hearing on the defendant in his honour`s current matter before him.   Magistrates are well aware that  allowing bail with or without conditions is probably the most difficult of all the decisions they must make.  With many amendments over the decades by the MOJ the assumption is that a bench must present cogent reasons why bail should not be granted. Personally I remember my own involvement in granting conditional bail to a defendant charged inter alia with manslaughter.  My colleagues and I were relieved to know he had turned up for his next court hearing without any breaches. It is therefore so unfortunate that we, the public, have no information except the crown court report and no knowledge of what actually transpired earlier. Regular local court TV might have  been helpful; another of my moans and groans. 

The legal goings on in Norther Ireland are literally and paradoxically a law unto themselves. From current cases of alleged murder by army troopers over fifty years ago to abortion rights and more, politics seem far more ingrained in the legal process than in England. Member of the Legislative Assembly as a DUP representative Joanne Bunting was charged last year with four offences resulting from a motoring matter.  Now, over a year later all charges have been dropped. More than meets the eye?  We`ll never know more than this single report I could find. 

If you ever wondered how ongoing unpaid fines of varying amounts from £500 million to well over a  billion pounds at any one time are going to be collected forget it. The system just doesn`t work for so many offenders of supposed limited means. This miscreant at Taunton Magistrates Court was, I presume, kept in the court cells until the end of that day`s business around 5.00pm as punishment after his fines were remitted. Short changed just doesn`t do justice to a broken system. 

With a backlog of over 50,000 cases at crown court and around 400,000 at magistrates court there are sure to be many incidents of disappearing or overlooked disclosure, rushed decision making, justified investigation into Single Justice Procedure and equivocal pleading accepted by unthinking or careless magistrates, the next couple of years could prove very interesting for observers.  In simple terms fairy tales might not always be considered incredible.

WHEN JURIES GET IT "WRONG"

The NHS, the monarchy, the Spanish Inquisition and trial by jury without wasting my reader`s time by asking the question, have one thing in common: they are or were in the case of that Iberian organisation held to be sacrosanct for the societies that created them. The collapse of everything supported in those beliefs by those societies was the prediction of all who argued that their removal or modification would lead to a world of chaos or worse.  A cartoonist`s favourite backdrop of a sandwich board.......THE END OF THE WORLD IS NIGH....... perfectly sums up those believers` attitudes if change were to take place. The NHS is regarded almost in religious terms.  Attempts to improve efficiency without just a shower of money being thrown at it are viewed as contemptible especially by the wokes of the Left and the luvvies on the Right. The Catholic Church seems to have survived and even thrived subsequent to the definitive end of the Spanish Inquisition when the Spanish queen regent María Cristina de Borbón issued a decree abolishing it on July 15th 1834. And with three waiting in line for the succession it would take a brave gambler to bet against the toddler prince taking his place in Buck House towards the latter half of this century.  Standing alone is the current accepted concept of trial by jury which appears to be being questioned as the best form of justice for all those on trial at the crown court.  Northern Ireland has  been subject to judge only trial.  Diplock courts, in which serious criminal cases connected with the Troubles were  tried by a single judge sitting without a jury, were initiated  in 1973. In the ensuing years well over 10,000 defendants passed through the system, the annual average having dropped from about 1,000 at the peak of the Troubles in the Seventies to about 400 in the early Nineties. These figures represented about a third of all serious criminal cases in Northern Ireland, a statistic in itself revealing of the huge impact of the emergency regime on the legal process as a whole.  They were abolished in 2007. To quote Wikipedia: "The Justice and Security (Northern Ireland) Act 2007 abolished the idea of "scheduled offences" automatically tried without a jury. Instead it allows for the Director of Public Prosecutions for Northern Ireland to certify a non-jury trial for any indictable offence provided it was committed either from a motive of "religious or political hostility" or by on behalf of a group which is both proscribed under the Terrorism Act 2000 and "connected with the affairs of Northern Ireland". The act seeks to address the concerns which led to the establishment of Diplock courts by enhancing jurors' anonymity to prevent intimidation, and increasing randomised juror selection to prevent bias.The Northern Ireland Office's explanatory notes for the 2007 act characterise its changes as "repeal" of "the Diplock system" and its replacement with "a new system of non-jury trial". On the other hand courts in such trials have much the same format as the pre-2007 Diplock courts."  When the issue of amending the rules on jury trials is alluded to the legal profession almost with one voice expresses its horror.  Last year with regard to the backlog of cases owing to the pandemic respected QC Geoffrey Robertson proposed the possibility of non jury trials under certain conditions. Robertson, who was born in Australia is quoted as saying,

“We believe sentimentally that trial by jury is a defendant’s fundamental right but why not give them the additional right to choose instead a reasoned verdict from a judge as they have, for example, in most Australian states. That would get some courts back and running, even if barristers and judges have to argue through their face masks and it would be a boon to defendants with good cases who do not want justice delayed”.

I am not aware if any scientific authoritative poll has been taken of lawyers on the subject but I would opine the vast majority would not agree with Mr Robertson.

And that brings me to the case of the six Extinction Rebellion protesters who, despite the judge`s advice, warning, information on the law and explicit direction, were acquitted by a jury last week of causing criminal damage by deliberately spraying graffiti or smashing windows at the Shell building in Belvedere Road central London.  This immediately reminded me of the case of Clive Ponting.  To quote Wikipedia once again, "While a senior civil servant at the Ministry of Defence (MoD), Ponting sent two documents, subsequently nicknamed "the crown jewels" to Labour MP Tam Dalyell in July 1984 concerning the sinking of the Argentine navy warship General Belgrano, a key incident in the 1982 Falklands War. After Ponting admitted revealing the information, the Ministry of Defence suspended him without pay. On 17 August 1984, he was charged with a criminal offence under Section 2 of the Official Secrets Act of 1911.The Prime Minister, Margaret Thatcher, had his pay reinstated once she had been briefed on what had happened. Ponting's defence at the trial was that the matter and its disclosure to a Member of Parliament were in the public interest. It was the first case under the Official Secrets Act that involved giving information to Parliament. Although Ponting expected to be imprisoned, he was acquitted by the jury. The acquittal came despite the judge's direction to the jury, and hence by definition a "perverse verdict". The judge, Sir Anthony McCowan, "had indicated that the jury should convict him". [my bold].  As a direct result a new Official Secrets Act was passed in 1989 to give government greater control of what was classed as "secret". 

With regard to that recent ER decision it appears that the jury must have followed the line that the end justifies the means; the end being the political end i.e. a natural outcome of radical left wing opinion that the "victim" opposed ER philosophy. None will ever know if the "victim" were a person or persons would the jury have come to a similar decision.  Would offenders of an extreme right wing group or Islamist persuasion committing such an offence or worse be favoured with a defiance of a judge`s direction and/or being lauded by their peers and fellow believers?  This type of decision making  has been the basis of countless atrocities by individuals, groups and nation states. It is nihilistic. It is a perversion of justice and it will surely lead to legal and/or political ramifications. The corollary which has been expressed here more than once is that the composition of juries and the competence of jurors must be examined in detail by a parliamentary or royal commission; whichever the government considers most suitable. The current situation of jury eligibility as laid down by government is available here.  

There is no doubt in my opinion whether or not the entire structure of trial by jury is re-examined that the individual requirements of the individual potential juror must be re-examined.  The most obvious need for a juror whose finding can be life changing for the defendant is a comprehensive understanding of the English language.  Many jurors have English as a second language with varying degrees of fluency.  This should be no surprise to anyone.  The Office for National Statistics (ONS) estimate that in 2019 nearly 9.5 million people living in the UK were born abroad,  just over 14% of the total population of the UK. Of these, 3.6 million were from countries now in the European Union and 5.9 million were from non-EU countries.  A basic understanding of simple statistics or other simple arithmetical concepts is not a requirement for a juror although many legal cases depend upon such an understanding.  Jurors do not have to be British citizens.  This facet of eligibility is one that I personally find hardest to accept.  

Lawyers are happy to work within a system that allows a single District Judge (MC) to be judge, jury and sentencer within the magistrates court.  Indeed some would hold that that single person bench is preferable for their clients {and themselves?} than a three person bench of Justices of the Peace. It therefore seems illogical for there to be such opposition in the wigged fraternity to at least a re appraisal of the current jury system.  But as I began this blog logic seems to be a facility missing in this matter.   

    

POUNDS HERE THERE AND EVERYWHERE

My musings and thoughts on our courts lie only shallowly beneath my consciousness; hardly surprising since I had retired from my professional life for the last ten years of my magisterial life.  To add to that almost continual subliminal state I have almost been bewitched by the court proceedings in Minneapolis where the accused`s defence counsel has been bravely attempting to offer reasonable doubt by way of generalities opposed to scientific and factual evidence provided by the State of Minnesota. And then the cost in real money of a human life flashed along the billions of  neurons and glial cells supported by connective tissue  and as if by magic I was thinking of the half a billion to a billion pounds unpaid fines apparently a permanent feature  of our courts system.  In 2015, 866,137 people were given fines totalling around £213,611,000, according to the Magistrates' Association analysis of Court Service records. A year later magistrates imposed 902,320 fines adding up to £263,763,000. In 2017, 915,541 fines were issued, totalling £362,490,000. In 2018  893,429 fines were imposed to rake in £355,773,000.  My next thought was ascertaining the number of fine defaulters eligible for imprisonment for non payment by their willful refusal to pay their fine or that they have been careless or thoughtless in not paying (known as ‘culpable neglect’). Nowhere in Mr Google`s box of secrets could I source that number so when I read of a case at Carlisle Magistrates Court I was surprised.  From my own experience I know that it is with much reluctance that magistrates order custody in such cases.  So my question is where are the statistics on such matters or is it a deliberate policy  of concealment?

At the other end of the scale it was recently that I noted some mind boggling fines issued by those self same magistrates courts.  In my own time I can remember imposing £50K fine for fly tipping and £23K and destruction of a dwelling on a property developer.  Small cheese compared to the decision of a District Judge at Birmingham Magistrates Court to fine Tesco £7.5 million. A Mailonline report is available here. 

A case which was not reserved for a District Judge resulted in the largest fine I have ever heard of imposed by magistrates. It was at Scarborough Magistrates Court.  The owner and master of a scallop vessel will have to pay over £200,000 after pleading guilty to multiple breaches of local scallop dredging regulations and national fisheries legislation.  Full details of that case are available here.  

And finally whilst thinking of large numbers of £50 notes coming and going a long running case reported of the goings on at Thurrock Council resulting in a very wealthy man adding to his piggy bank by actions which were severely criticised in the High Court last week. I conclude with a simple question; is it the case that in order to achieve levels of wealth beyond any definitions of ordinary, average, normal etc. corners have to be cut?   

WOKE IS A PERVERSION OF TRUTH

With almost every passing day there is an incident, comment, statement, rebuttal, accusation, or response to any of the previous that includes the word woke. Being a retired magistrate with opinions of a dinosaur [according to some] it took me a while to really appreciate the implications of such a term.  So that we`re metaphorically on the same page I list below some definitions of that word kindly provided by Messrs Google Inc.

 “aware of and actively attentive to important facts and issues (especially issues of racial and social justice)”, but today we are more likely to see it being used as a stick with which to beat people who aspire to such values"

"a slang term that is easing into the mainstream from some varieties of a dialect called African American Vernacular English (sometimes called AAVE). In AAVE, awake is often rendered as woke, as in, “I was sleeping, but now I'm woke.” 'Woke' is increasingly used as a byword for social awareness."

"a term that refers to awareness of issues that concern social justice and racial justice. It is sometimes used in the African-American Vernacular English expression stay woke."

Dinosaurs are generally not woke. eg to call a spade a spade is a phrase long used without fear or favour.  It has a long history.  It entered the English language when Nicholas Udall translated Erasmus in 1542. Famous authors who have used it in their works include Charles Dickens and W. Somerset Maugham among others.  In the current climate if used in public or especially  on the bench the speaker is liable to be rebuked as racist or at the very least as careless with language that could be interpreted as such. This is a result of woke.  Similar epithets are often thrown at those who in any way offer opposition to the concept of diversity or inclusive . When I suggested some months ago on Twitter that at age 18 an individual is too young to be a magistrate with all the responsibility that position holds I was greeted with a torrent of criticism some polite but most abusive much of it from lawyers. When on another occasion I suggested that restrictions on jury service be tightened to ensure eg that the individual had capable knowledge of English or a basic understanding of arithmetic etc again it was members of the legal profession who tweeted loudest against the idea. I wasn`t too happy when the then Lord Chancellor ruled that blindness should not be a barrier to sitting as a magistrate. The usual comments were made of diversity and representation and aids to be available to overcome the obvious shortcomings. As far as I am aware deaf people cannot be magistrates although I am sure that many are actively trying to change that position.  What is about to change is the exclusion for deaf people from jury duty. On March 9th the Ministry of Justice released the following:- "Deaf people requiring the use of a sign language interpreter will be allowed to take part in jury service for the first time, Ministers announced today (9 March 2021)."  The full statement is available here. 

The basis for this decision is that nobody should be excluded from participation in public life because of disability. It goes back to the woke mantra of equality of outcome by which at the end of the day all are equal. The concept of equal opportunity for all so that each might attain the highest level possible by his or her own abilities is now historical fascism according to a generation led to believe that equality is as near to nirvana that we mere mortals can reach.  These are the same concepts that brought an avowed marxist antisemite close to the door of 10 Downing Street in 2019. Nobody would accept that people of diminished height should be able to work as surgeons or police officers or firefighters although many such handicapped individuals are at the top of their chosen fields where their stature is of no consequence. Similarly profound deafness is no longer a block against such people reaching the top of most professions or activities.  Nobody with any sense would argue otherwise except perhaps at the MOJ the most woke of all government departments. Deaf jurors, even those skilled at lip reading, would be unable to have conveyed by a signing interpreter, the nuances of speech in a courtroom where witnesses are in a foreign and perhaps hostile environment; where some might be attempting to lie or evade; where emotions are subtle and where total reliance is upon the interpreter. The history of court interpretation of spoken language is pitted with queries which astute magistrates and judges can evaluate. Indeed I had many instances in my 17 years to interrupt interpreters  who plainly were not doing their job to the expected standard.  No such long stop will be available for a signing interpreter who is wandering from the accuracy required. And of course in a case where the signer is him/herself translating from a foreign language interpretation problems will multiply and considering the number of interpreting occasions involving non English speaking defendants and witnesses that number will be in the tens of thousands.  

Unfortunately no opposition is likely to be heard from the legal profession.  They are so scared of being accused of being against the whole concept of wokeness that with no logic whatsoever they will push on the one hand for the abolition of the lay magistrates bench of three  in preference for a single District Judge but scream at the very thought that availability for jury service is anything less than a universal human right and its denial a throwback to white supremacy however removed the ties are or were.  

There is a profound difference in requiring buses, trains, taxis, public places, universities, professions etc to be accessible to blind, deaf and physically handicapped individuals where their handicap is not a burden for an equitable society.  However, to sit in judgement making life changing decisions by those deprived of their hearing is a step too far.  But it is in line with a period of perverted thinking through which the troubled Americanisation of our society is passing; their history of revolution and slavery which is filtering so much of what should be a second age of enlightenment.  In essence woke is a perversion of truth. 

MUSINGS ON TUESDAY (MICRO OR MACRO?)

In most observations there is the micro view and the macro view.  Either viewpoint can be illustrative of an opinion. Following are recent examples of the micro view of what purports to be our justice system in its totality.

Unlike other European countries the United Kingdom has no statute of limitations for any criminal offence except for summary offences (offences tried in the magistrates' court). In these cases criminal proceedings must be brought within 6 months.  

Last week a 74 year old male was jailed after being convicted of multiple charges of sexual abuse against a 14 year old boy between 1976 and 1979. There is no doubt that the victim`s trauma had a lifelong effect. We have no knowledge of the offender`s history; the report of what was a very unusual case is, unfortunately, truncated to say the least except that we know there was no need for a trial as he pleaded guilty.  Understandably the victim`s name is withheld but it might have been useful if the judge`s remarks including presumably the offender`s previous convictions, if any, had been reported. It is my belief that it is becoming essential if the term open justice has any meaning at all that the live televising of courts must be a priority if our society is to continue to be thought of as free and open. 

In complete contrast to the preceding tale it was in 1973 and the following year that 24 trade unionists were arrested five months after a strike and charged with over 200 offences including unlawful assembly, intimidation and affray. Six pickets were also charged with conspiracy to intimidate.  Last month they were exonerated by the Appeal Court.  This is the link in the press report to the judgement.

Can any reader imagine doing a part time unpaid job for 50 years and rising to that occupation`s most senior position?  As a special constable Michael Rogers did just that at West Midlands Constabulary. To him I doff my virtual hat for his service. 

Since this post is about numbers I must conclude with a recent announcement from the City of London Police.  It is the smallest force in the country policing the square mile where the resident population is less than 9,000. It comprises a total workforce of 1,207 including 756 full-time police officers and 451 support staff. Recently it announced that it intended to recruit 40% BAME officers. The current ethnicity breakdown is as below.

When observations are made about the numbers of non white people in any occupation or situation and political capital is made from such declarations voices are heard that there is a racist undertone when BAME people appear to be over or under represented depending on the particular situation or circumstances but when pushed there are inevitably denials of quota systems in selection. According to 2011 census in the City of London there are resident 57.5% White British; 2.4% White Irish; 18.6% Other White; 0.5% White & Black Caribbean; 0.5% White & Black African; 1.5%.  I leave it to readers to ponder the position and ask the inevitable questions.  I would think the answers might pose as many queries as the questions. 

FINALLY COMPREHENSIVE MAGISTRATES COURTS REPORTING

There is no doubt that the reporting of the goings on at our magistrates courts has gone into decline.  Previous to the pandemic I suppose that state of affairs could have been described as slow as has been posted here more than once.  I would opine that the situation can  now be described as dead slow.  I feel it is only a matter of time before we reach that next and final stage where I hope live televising of selected courts will fill the gap.  Meantime two recent cases have caught my eye because they demonstrate two aspects of alleged criminality and the reports are unusually comprehensive although as many observers point out  only those actually in court to hear all the evidence would be in a position to make reasoned comment. Since magistrates courts` proceedings have never been courts of record I would say that that aforementioned criticism is facetious and unhelpful.  

Sacked magistrate Richard Page`s supposed transgressions have been documented here since his unfortunate saga began many years ago.  His religious beliefs triggered anger in certain quarters and his final dismissal by the Appeal Court could be seen by some (many?) as the establishment finally ridding itself of an irritant however fancy the words of that court to justify its decision.  A recent case of religious belief justifying criminal activity although considered minor by its adherents should give us all cause for concern. I believe that there is an underlying belief in this country that Christians are not given as much protection by the criminal justice system  as other religions when the law appears to be broken.  Usually that involves Muslims. Indeed currently there are Muslim demonstrators apparently breaking lock down rules in their quest to have a teacher in Batley sanctioned for having shown his class the infamous cartoon of the Prophet Mohammed published in  the satirical French magazine Charlie Hebdo which resulted in an orgy of murder by Islamist gunmen in Paris in 2015. It is an open secret no longer that police failed to act when aware of thousands of cases of child sexual grooming mainly by men of Pakistani origin in northern towns over a decade or more. The recent actions of public protest against, paradoxically, the Police, Crime, Sentencing and Courts Bill 2021 are providing generous fuel for this government to curb the rights of us all to demonstrate.  If the legislation passes through both Houses, the state and police will be handed new powers to control the length of protests, impose maximum noise levels and prosecute activists for causing serious annoyance, a concept that has not been clearly defined. 

An altogether different matter came before magistrates in Tameside.  The defence that  prohibited amounts of alcohol had been imbibed by the defendant subsequent to an incident of alleged driving over the limit was successful.  This defence is not unusual but rarely successful if the police do their job efficiently. But what is unusual is the reason I have brought it to the attention of a wider readership: it has been very well reported and any opinion based on the report must be respected. Credit is due to MailonLine  or its regional associates for this piece. 

PRISON REFORM//A TEST FOR OUR FUTURE SOCIETY

LIBERTY:- the quality or state of being free: a : the power to do as one pleases. b : freedom from physical restraint. c : freedom from arbitrary or despotic control. d : the positive enjoyment of various social, political, or economic rights and privileges. 

And of course there are other definitions along similar lines of thought but those will suffice for now.  And it is precisely the loss of that liberty as a punishment in itself which is now one of the purposes of imprisonment. It wasn`t always so.  Hard labour or penal servitude was not abolished in this country until 1948.  The prison population of England & Wales quadrupled in size between 1900 and 2017 with around half of this increase taking place since 1990. There are currently around 80,000 convicts in England and Wales that number having reduced by around 6% since the onset of the pandemic. Treatment of those incarcerated has been a political and social hot potato since the days of Elizabeth Fry 1780-1845. Allied with arguments over sentencing,  prison with all its ramifications, no topic is more fiercely debated inside and outside parliament. Prime ministers and home secretaries have seen their reputations rise and fall along their perceived road of squaring the circle of deterrence, punishment, redemption for criminal activity and the sometimes forgotten duty of a government to provide public protection to citizens from those who would harm them physically, financially or as is now a prevalent consideration emotionally. The failure in rehabilitation of those who have fallen by the criminal wayside seems to be endemic but this failure is more caused by government policies and underfunding than failures of individual probation officers of whom there are 14,000 employed in the UK  having doubled in number from 2017 when many left or were made redundant as a result of a failed policy of part privatisation initiated by the most incompetent cabinet minister of modern times Chris (failing) Grayling when he was Secretary of State for Justice and Lord Chancellor. It is obvious to all but the most hardened proponents of hang and flog on one side and prison is ineffective on the other that radical thinking is required but apparently unacceptable to politicians owing to perceived cost or their chances of re-election. During my time as an active magistrate I visited Pentonville and Wandsworth prisons. Aside from the obvious authority of the warders cf the governors the conditions were appalling and considering this was 20 and 10 years ago respectively when overcrowding was considerably less than at present  the current position is a disgrace for a supposedly enlightened nation.  Prisoners, especially those serving sentences of two to five years must be given the opportunity to learn a trade or to practise their existing skills whilst incarcerated. If they are addicts as so many are they must be weaned off their habit. They must be nourished so that their bodies and minds are as healthy as possible unlike the current situation where, according to a parliamentary question 5 March 2019, Her Majesty’s Prison and Probation Service (HMPPS) allocates food budgets to prisons based on £2.02 per prisoner per day which covers the daily prisoner food and beverage requirements. What an indictment for our supposed benevolent society; the aforesaid reformer Elizabeth Fry would turn in her grave at the situation two centuries since her own endeavours. 

I have long posted here of the need for a 21st century form of the Victorian`s workhouse where the basic foundations as listed above could be available for those considered suitable either upon sentence or when it was thought any prisoner had become a suitable case for treatment. (use search box for previous posts)  But of course that would require money; lots of money. Government spending for the foreseeable future will now be regarded in a different light as a result of the enormous sums being spent to soften the impact of the pandemic on our economy.  When a former Tory prime minister is caught lobbying the current chancellor: David Cameron was an adviser to Greensill at the time and it is claimed that he had share options believed to be worth up to tens of millions of pounds, whilst his own chancellor during his premiership, George Osborne,  secured millions in fees based on his inside information and influence after resignation from parliament and the deputy prime  minister of the period became poacher turned gamekeeper for perhaps capitalism`s most egricious example of wealth over principle there is little hope for the current Conservative government or party being the vehicle to prioritise prison reform.  Unfortunately whilst Her Majesty`s main opposition is still the home for antisemites and revolutionary Marxists it is equally obvious that with its current leadership hopes of its obtaining power are slim. And that is how populist opinion begets a populist leader who promises all manner of goodies to all except those minorities who are the cause of our supposed miseries. UKIP founded in 1993 became a slow burning destructive fuse lit when Nigel Farage became its leader. Its influence continues to this day under various aliases.  It has led to greater acceptance of authoritarian thinking both within and without parliament than many thought possible. Prison reform used to be the cry of do gooders and wooly thinkers; not any more.  It is the need for a people and its governors to look inwards into their very souls. It is a test for what  kind of future society they wish for their children and grandchildren.

THEIR LORDSHIPS` PRICE OF 1000 PIECES OF SILVER

There`s an old adage that a cat can look at a king. In my forays on Twitter I`ve been criticised by the occasional lawyer that I`m only a retired lay magistrate so what do I know.  But there are occasions when that lowly cat can indeed not only look at a king but can offer a loud miewowwww.  The situation in Hong Kong is one of those occasions. The "handover" in 1997 to the Republic of China allowed for certain rights as existed under British rule to be retained for fifty years. The continuation of the legal system was one of those rights. However as is well known to readers China has abrogated these and other rights of HongKongers. The king that this cat is making noises off is no less than a former president of the UK Supreme Court; a certain Lord Neuberger.  It has been announced by the Chinese that he along with another former Supreme Court judge Lord Walker have agreed not only to continue sitting on Hong Kong`s final court of appeal but to extend their contracts for a further three years. This at a time when the ROC has virtually cancelled all freedoms guaranteed to Hong Kong citizens by the terms of the 1997 agreement. Their reasoning at least in public is that they can be of service in preserving the rule of law: what facile nonsense.  The law over which they assert their belief in preserving is the law of an authoritarian tyrant which in recent days has been enforced by the edicts specifying that only candidates approved by the Chinese government will be able to stand for elections to the various local government levels of Hong Kong.  In addition the new security law enacted by China means that its approved leader Carrie Lam can send any cases she wishes to be tried in the mainland. That effectively overrules  any case where she considers a result of the Appeal Court would be detrimental to the interests of the ROC.  I wonder perhaps if the pair of lordships have been persuaded by a nice little earner before they pack up their robes in exchange for trowels and wheelbarrows. The top earner, the Chief Justice Court of Final Appeal, earns $366,750 with the next ranking, Permanent Judge Court of Final Appeal and Chief Judge of the High Court, each making $356,550.  The complete pay scale at 2018 is available here. Others who have taken Chinese silver can be found here. 

It is my very humble feline opinion that the pair of aforementioned high flying legal eagles is dancing like angels on the proverbial pinhead in their argument that by being in place they will offer a final resource to restrain the evil hand of Chinese autocracy.  The Foreign Office, for once under the management of somebody with the cajones to speak for a nation with some remaining principles, is pressing their lordships to rethink their position which provides cover for the ruthless destruction of the  last few democratic rights of the citizens of what was once a showcase of British imperialism turned territory.  The situation for ordinary citizens is so dire that of over 5 million eligible it is thought that 300K will emigrate to the UK and many thousands to Australia and Canada. With their enterprise, energy and capital (if allowed so by China) they would make a similar benefit to this country as those south Asians forced from Uganda in 1972 by the murderous Idi Amin. Unlike a previous wave of immigration from Pakistan of non English speaking sharia observing poorly educated individuals English fluent Chinese Hongkongers would be quickly absorbed into our society assisted by a hard working law abiding highly educated existing Chinese minority of 433,000. Hong Kong`s loss would be UK`s gain.  They see very clearly the problems ahead. Their lordships` superficial excuses echoed by the British chairman of the Hong Kong Bar Association that their departure would weaken the court are a permanent stain on the characters and records of two men who were at one time highly honoured for their probity and integrity.  1000 pieces of silver between now and 2024 seems to be the price they have been paid to sully all that has gone before.    

QUOTA:THE FORBIDDEN WORD DIVIDING MAGISTRATES AND SOCIETY

In many parts of our daily lives merit seems to have been thrown out of the window, overboard or left behind; whatever metaphor suits your style. Many major decisions on myriad areas of our lives are based on identity politics, levelling up (or down), anti this or anti that or dare it be said, quotas the term that hides in shame from being discovered as the truth to defy another oft quoted term; privilege and increasingly often white privilege. In some activities it is at a risk of being denounced as racialist or being a racist that defines an individual. Observing that in so many fictional crime series on TV the police officer in charge is female will bring forth the accusation of misogyny or worse still if that character is played by a black actor. Remarking that many TV commercials seem to be using black or ethnic minority actors far in excess of the 13% of the population that is BAME risks outright abuse or worse. Whatever the sins of past omission the luvvies and the industries around them are all wearing a coat of a single colour; coffee coloured.  And that is how such a woman of colour can make such awful accusations with absolutely no evidence and be revered as a new Harriet Tubman or Rosa Parks; women whose like are with us fleetingly but whose legacies will live as long or longer than Joan of Arc`s. 

The remaining "ist" which the English language so simply allows us to convert a noun to an adjective is ageist  which is increasingly  added to the pejorative vocabularies of those who  would seek to impose equality of outcome upon us all where what is so often lacking and is vitally required is equality of opportunity.   When it comes to the institution of the magistary all those prejudices affecting society as a whole come together under the twin umbrellas of political correctness and identity politics. For an understanding of the latter term I can do no better than quote what was said by  Alex Beresford co presenter and a man of colour when Piers Morgan abruptly left the TV studio during a live discussion:  "For me to do that(to sit on the fence)I would have to strip myself of my identity".  His actions and opinions of Morgan were based solely on his (Beresford`s) skin colour with no consideration of the strength or otherwise of his colleague`s opinions. 

In 2007 the minimum age of appointment of Justice of the Peace was reduced from 27 to 18. The parrotted response of the protagonists of that change was to have the lay bench more representative of the society  over which it sat as fact finders and sentencers.  No consideration was give then or now to the undisputed fact that the human brain and consequently judgement and personality are not fully developed until around the early to mid twenties in the vast majority of people.  Indeed to question that age reduction was to invite opprobrium from many quarters. This week the government has confirmed that  retired magistrates who are now over 70 will be able to return to the bench until they become 75 the revised retirement age for those currently appointed. It is logical that only those on the supplemental list will be eligible.  For further information type supplemental list in search box.  Obviously there will have to be a period of re training and other than the most recently retired I would doubt that a previous presiding magistrate would be allowed once again to take the chair or at least until a full re appraisal validated his/her competence.  This apparent reversal of an ageist policy has been brought about simply because of the lack of the required numbers of JPs able to fill the sitting sessions available.  The Ministry of Justice in its wisdom of closing half the country`s courts thought it could function with around one third of the numbers of magistrates sitting in 2008 with no consideration of their age profile.  The danger is now that currently some appointees are being approved on the basis of the Q word; ie quotas.  This of course is denied by all especially the Magistrates Association which despite its taking cash from myriad organisations still heralds its website as the Independent Voice of Magistrates.  It is now well ensconced in the language of woke with its crowing of its recently established special interest groups. Sikhs, Muslims, Hindus and Jews and not forgetting Christians  might bleat that they too should have their own special interest groups. Why not further divide Magistrates Association members into more special interests sub groupings?  I`m sure readers will have their own ideas on such. *Below is a statement copied from its website.  Just how does any organisation believe or even consider that highlighting differences in its composition is helpful to bringing about a nation which is inclusive and offering equality of opportunity to all its participants?  It is divisive divisive and divisive. Propagation of such nonsense is the antithesis of a harmonious society. We can only hope that when this generational carbuncle on our development as a caring and homogenous community able to live comfortably with its variations and differences of opinion, skin colour, religion and common goals of harmony is finally exchanged for reason and equal opportunities for all, we are still around to enjoy the fruits.  

*The MA is working to recognise and bring together magistrates who are also members of groups we believe to be underrepresented within both the MA and the magistracy, as a whole. We have formed Special Interest Groups (SIGs) which will allow these members to network and discuss issues specific to them. These are the only groups of this kind that exist for the magistracy.
They exist to: Provide opportunities for magistrates from underrepresented groups to network with their peers across the country;  Generate discourse around the issues affecting magistrates from underrepresented groups (who are members of the MA) and advise, inform and work with MA HQ to address these issues; andTo advise and inform the work of MA HQ with the relevant government bodies on the creation of routes to the recruitment and retention of magistrates from underrepresented groups.  Each group is governed by an elected executive comprising a Chair and two Deputy Chairs.

MA Young Magistrates Special Interest Group
The first of these to be launched was the Young Magistrates Special Interest Group (YMSIG), which comprises members under the age of 40. It was launched in April 2019 and has undertaken a series of successful activities since then. 

MA LGBT+ Group
The MA LGBT+ Group was launched in February 2020. It comprises all MA members who identify as members of the LGBT+ community. Over the next year, the executive is working to ensure: the MA is an inclusive environment where LGBT+ members feel welcomed and represented.   LGBT+ magistrates are fairly represented in the MA and across the magistracy 

MA Magistrates with Disabilities Special Interest Group
The MA Magistrates with Disabilities Special Interest Group (MWD SIG) was launched in August 2020. The executive was elected in September and is currently creating a programme of activities for the next two years.
 

MA Black Asian Minority Ethnic Special Interest Group
The MA Black Asian and Minority Ethnic Special Interest Group (BAME SIG) was launched in November 2020. The executive was elected in December 2020 and is currently creating a programme of activities for the next two years.

COURT TV MUST SURELY BE COMING

Watching Prime Minister`s Questions today I couldn`t fail to remember that it was as long ago as 1989 when the House of Commons debates and proceedings were first broadcast live to the great British public. It had taken eleven attempts (all but the last defeated) and 22 years for the necessary legislation to succeed. Yesterday I happened to switch on "Court TV" to witness the live screening of juror number 2 being questioned by defence and prosecuting lawyers in the George Floyd trial preliminaries prior to the opening of the trial in Minneapolis which will be televised live. And to cap it this morning on Twitter as on most other days I read a series of news reports and reporters informing the world of video evidence not being available to report, of a dearth of reporters actually reporting events, of reporters being barred from proceedings and various other reasons why only the headline crimes make news these days and so much lower level crime is thus under reported. Add to the mix that as a result of THAT INTERVIEW more attempts and pressure from MPs and others are being urged to fettle even more the so called freedom of the press that we currently still enjoy. Surely it is only a matter of time for permission from government and the attraction of another source of revenue for broadcasters to allow direct court television in this country? I would envisage this initiative to begin at magistrates court level and progress eventually to crown and appeal court. After all the principle has been established in Scotland and in the live viewing of the Supreme Court. Admittedly this topic has been a bee in my post JP bonnet for some time [search court TV or similar in the search box for previous posts]

As I said; it`s only a matter of time unless our politics drifts too much to the extremes of Left or Right when extremists on both sides will, if true to form and history, have the objective to reduce public awareness of certain events and to increase control of their reporting with the Morning Pravda, Evening Pravda and Sunday Pravda our favourite media.

FOR RICHARD PAGE EX JP THE END OF THE LINE

The end of the line has come for ex JP Richard Page. His appeal against dismissal has been rejected.  The full sad story before this denouement  is available in my previous posts by putting "Richard Page" in search box. I hope as an atheist that if other magistrates who are god fearing of any other religion apart from Christianity are subject to similar investigation they will be subject to similar sanction.  If an orthodox Jewish JP or a Sharia observant Muslim JP  were to fall foul of the Judicial Conduct Investigations Office and is seen to be treated differently all hell should break loose.  

JUSTICE NOT SEEN TO BE DONE

I would assume that most readers here will be familiar with the phrases; "now you see it now you don`t", "what aboutery" in relation to arguments, "tactical deception" and others similar. Whilst individually they might refer to different scenarios they have a common thread which is to deflect and/or to deceive an opposing party into believing that an action physical, verbal,  or military will be opposite to that expected by the onlooker,  debater or enemy. The Ministry of Justice with its public relations and advertising spending hidden from public view is a master of those aforesaid tactics. 

In the last couple of months media have been bombarded with stories of how throttling is to be made a crime, secret justice in the magistrates courts and that rape complainants [often wrongly written and spoken of as "victims"] will be offered opportunity to give evidence at a distance and /or to a court cleared of the public: all this whilst as a result of the deliberate policies during the last decade of slashing the MOJ budget by eg closing half the country`s magistrates courts and effectively squeezing hundreds of lawyers out of the legal aid system. Despite all the propaganda and announcements of how Covid 19 is being overcome the very basis of our system of justice is at breaking point; not at the top end for Russian oligarchs divorcing avaricious wives or a Supreme Court overruling the Appeal Court on parliamentary process or citizens` rights deprived from a fifteen year old groomed by Islamist fanatics to applaud public beheading of innocents but at the bottom end where 1.5 million cases are brought annually and over 100K trials are held. These diversions which have been flagged for attention by the PR weasels in Petty France consist of focussing on female complainants of abuse and the secrecy of the single justice procedure. 

As usual the Victims` Commissioner and women's groups shout loudest that women are in greater need of legal protection from domestic abuse. The purpose is to make non fatal strangulation (throttling) a stand alone offence with a maximum of five years custody.  By any stretch of the imagination such an act is horrific but an argument put forward for the inadequacy of current legislation is that all too often the accused is charged with common assault; a summary offence for which the maximum penalty is six months custody.  It is argued that the current law is inadequate. Reading  the Sentencing Guideline shows that punishment commensurate with the crime is available but if the CPS do not charge according to the seriousness of the offence and continue to undercharge in order to secure conviction offenders will of course cock a snoop at the law.  Despite the gearing of statistics to highlight their arguments and conveniently forgetting the recent examples of false allegations those same vociferous advocates for change wish to ban attendance in the public gallery when complainants give their evidence in rape trials perhaps the most difficult of offences to prove beyond a reasonable doubt owing to a common mutually pleasurable and legal activity being undermined by one party, usually female, making accusations of force by the other participant.  The watchword of justice being SEEN to be done is conveniently overlooked or considered obsolete. 

Nowhere has justice by stealth crept up on us more steadily than in what`s known as the single justice procedure.  Incredibly this blot on the legal landscape has been endorsed by most magistrates and the Magistrates Association. Originally intended for common offences where custody is not an option eg non payment of TV license, low level motoring offences or non payment of transport fares etc  and personal appearance by the defendant is not required it has developed to a situation where charges such as assault can be laid before a single justice. In the nine months to last September almost 400K  people have been prosecuted of which 70% offered no plea and so were convicted and fined. Since the epidemic thousands of fines have been issued through this process under Coronavirus Act and allied regulations. Hundreds and possibly thousands to be investigated of these cases were wrongly prosecuted.  Those at the sharp end of these injustices were likely to have been at the lower end of the socio economic spectrum. This is justice Chinese style where 99% of cases result in conviction. It has no place in England and at least its format should be reviewed.  But be in no doubt the toads of Petty France have many more avenues to divert critics` prying eyes from what is really happening in our courts.  

WHEN IN ROME? MACCLESFIELD? DO AS THE TURKISH

It is of no great surprise when visual media covering visits of female  royalty or lesser supposed personalities or leaders to middle eastern countries publish images of said visitors dressed in such a manner that we are told they are paying respect to the mores of those host countries.  These outward manifestations of "respect" would often include the wearing of head coverings of a form associated with the Muslim religion and or trousers when that form of dress would be unusual in a western setting.  Most observers would not in any way offer criticism.  For mere mortals visiting such countries following local modesty rules is more than just out of politeness or respect it is an absolute necessity to avoid falling foul of local gendarmerie and a possible jail sentence or forced deportation. For visitors to this country or immigrants the British and especially Londoners are and have always been tolerant to  seeing people attired in all manner of national costumes from the lavish colours of the silk dresses of Nigerians to the burka of Afghans and others.  In similar fashion shisha cafes, almost unknown in Britain 20 years ago, are now commonplace in many towns and cities. Provided they are open in line with current regulations and the substance smoked is only tobacco they provide a new experience for us and a sense of home for the mainly Turkish and middle eastern proprietors and their immigrant countrymen. The essence of British hospitality to newcomers is an expectation that they respect are laws but fearful of accusations of racism many organisations have for too long failed in their duties to call a spade a spade when faced with clear examples of law breaking.  Perhaps the most atrocious of such cases was the cover up of Pakistan heritage men grooming, exploiting, abusing and raping under age girls mainly but not exclusively in northern England. Similar offences by high profile wealthy Arab visitors have been reported for years. Currently a billionaire Arab potentate and friend of the Queen is suspected of causing harm or worse to his daughter. At the lower end of the financial scale there are major concerns that immigrants of Pakistani origin and their families are involved in forced marriage; an offence that was enacted purely as a result of those practices which were common in their countries of origin. The old adage "when in Rome do as the Romans" is particularly applicable to foster harmony between a home population and immigrants.  And that brings me to the disturbing outcome of a case where a few days ago a Turkish chef was cleared of sexual assault of a teenage waitress on the basis of his claim, accepted at Stockport magistrates court, that in his native country it would be considered acceptable behaviour.  A comprehensive court report from World News can be accessed here although the case was widely reported in many other media outlets. 

A case like this will do more to encourage the true racists in this country than all the taking the knee at football matches. Left wing comment has been almost non existent.  Our laws are there to provide justice for all without fear or favour.  In simple terms that means that every case is decided by a single standard. Allowing this defendant to be acquitted is an injustice not only to the complainant but to us all. Thousands who read of this matter will have their faith in our system of justice further eroded. Thousands more will have their hatred for those they consider unwanted  foreigners in this country enhanced. I will conclude by posting below the final few paragraphs of the report. 

A SNAPSHOT OF BRITISH JUSTICE 2021 STYLE

Being retired from any job allows time for some introspection.  As a retired magistrate who has enjoyed sharing his opinions since 2009 this freedom has offered me opportunities to muse on matters of national importance and occasionally to comment [criticise?] on real time happenings at magistrates courts.  Today`s effort is one of those times.

I was active when dedicated domestic violence courses became compulsory for any JP who sat or wished to sit in those courts. I recollect at the time that the providers were heavily dependent on statistics from USA and very much dedicated to male on female violations. I would imagine that such courses have been modified since then.  However a recent case at Grays Magistrates Court caught my eye. As bad a case it is possible to be heard outside the crown court. Indeed from the report it seems it was undercharged resulting in a suspended custodial sentence for the offender.  Readers can access the matter here and it is refreshing to note the detail often omitted these days from the local print media.  In my opinion that offender should have been charged at a higher level where the crown court would pass judgement.  Perhaps pressures on court schedules and Covid -19 have reared their delaying heads. The refusal of compensation defies belief. 

As a Twitter user I have tweeted not so long ago on the public silence of the Magistrates Association concerning its members` court experiences in the light of the pandemic.  Narey a response from it nor the dozens of JPs linked to that outlet. The staff at Highbury Magistrates Court who are in the thick of possible infection are contemplating strike action.  I wish them well. 

Peterborough Magistrates Court was the scene last week where a dangerously drunk driver was sentenced to custody suspended. I am more convinced as the years roll on that sentences of that ilk for offenders such as he are distorting our communal sense of justice to appease left wing activists and the financial restraints of the Ministry of Justice. This particular offender was driving a lethal weapon in such an inebriated state it was akin to conspiracy to murder.  When a population begins to think that criminals can "get away with it" there are social problems ahead. 

On a more positive note to end my rant the user of an illegally transferred Blue Badge recently received her just desserts at Medway Magistrates Court.  For too long these offences were treated too lightly. Justice must be seen to be done and her punishment was just that. 

 Some senior police officers have the foresight, intellect and sensibilities of a mouse. Readers might remember about ten years ago many police forces placed cardboard effigies of a constable   in town centres, supposedly as a deterrent against criminal activity, to a chorus of public derision. It seems that a decade later the top echelons of some police forces are still finding ways to demonstrate their incompetence. A headline today (accessible below) which for me at least sums up so much that is woeful when discussing in general our system of justice from apprehending offenders to their being sentenced. That aforementioned headline was caused by police in Liverpool telling the public by means of large posters that being offensive was illegal. Will they ever learn? 

RETIRED JP STILL BEHOLDEN TO JCIO

 I sat on an inner city bench for seventeen years until enforced retirement allowed me to retain use of the J.P. suffix and automatically relegated me to the "supplemental list" where a very few magisterial functions were still within my authority. The most significant of those  is the authority to countersign  passport applications as  countersignatories must either work in (*or be retired from) a recognised profession and Justice of the Peace is a recognised profession. Those on the supplemental list or retired magistrates cannot:-

 Sit in a magistrates’ court to adjudicate on cases

Sign summonses or warrants, including search warrants

Be a member of any committee or any other body as a magistrate

Take part in the election of chairman or deputy chairman of any bench

Attend any formal or business meeting of their former bench

Countersign an application for a shotgun or firearms licence

Sign off statutory declarations

There is, however, a price to be paid for those who wish to retain the kudos of having those two letters after their name; namely the holder will still be subject to the rules and guidelines to which serving magistrates are subject. Mr Karl McCartney JP MP was first elected at the 2010 general election and represented the constituency until he was defeated by Labour's Karen Lee at the 2017 general election. He was re-elected as a Tory in the 2019 general election and is on the supplemental list. He also exhibits attitudes of an arrogant right wing Tory. In January 2021 the Judicial Conduct Investigations Office issued a formal warning to McCartney for referring to his role as a Magistrate in election material despite having been reprimanded for this previously. This reprimand was "for allowing his judicial status to be referred to on a political leaflet in a way that gave the appearance of seeking to gain advantage which is contrary to guidance that is intended to protect judicial independence and impartiality." In reaching their decision, the JCIO noted that McCartney had previously received a disciplinary sanction for similar behaviour and was unwilling to acknowledge the inappropriateness of his actions. [my bold]

On 29th October 2020 a spokesperson from the Judicial Conduct Investigations Office said:“The  Lord  Chancellor  and  Mrs  Justice  Cheema-Grubb  DBE,  on  behalf  of  the  Lord Chief  Justice,  have  issued  Dr  Nigel  Molden  JP,  a  magistrate  on  the  Supplemental List,[my bold]  with a formal warning following a careless driving conviction and the accrual of six  penalty  points  on  his  driving  licence.  In  considering  this  matter,  the  Lord Chancellor  and  Lord  Chief  Justice noted  his  continuing  denial of  any  wrong  doing and also took into account Dr Molden’s timely disclosure to his Bench Chair, and his otherwise clean driving and disciplinary records."

These are but two recent examples of retired magistrates falling foul of the almighty JCIO.  Considering that many thousand magistrates will retire in the next decade they ought to think carefully at that point when they receive a letter such as the one I received copied below. No request was made by me to join the list.

What that letter and enclosure did not spell out was an option to opt out of joining the supplemental list and the fact that being on it placed upon the retired magistrate exactly the same obligations and guidelines as existed when active on the bench. .  Perhaps my advice to magistrates about to retire is that if you do not want your personal activities to come under the long reach of the JCIO you must ask to be removed.   As for me; I did not give a thought to the supplemental list and its obligations until as a result of a blog post 23/7/2019 I was threatened with a full on investigation.

*

I decided that rather than months of arguing and stress to retain those two letters JP and my right to freedom of expression  I resigned from the supplemental list thus ending the inquiry.  But going back to the second sentence of this post I am still a retired magistrate and I suppose that my signature to sign a passport application on that basis will not lead to a death by a thousand cuts from the London Advisory Conduct Committee or its standard bearer Mrs Featherstonhaugh. 

MAGISTRATES COURTS MUST BECOME MORE INQUISITORIAL

There is no doubt that many previously ignored facets of life in the European Union previously taken for granted are now being compared to life in a supposedly independent UK. Extremists on both sides of the Brexit argument are still raising their voices metaphorically and in real time to offer their opinions many of which are bereft of sensible argument but complete with invective and ever more strident haranguing of the perceived opposition. One aspect central to our collective lives continues to underperform using Covid 19 as a convenient excuse; our criminal justice system. In the week ending 20 September 2020, there were 509,347 cases outstanding in the magistrates' courts   and  at the end of Q3 2020 there were 50,918 outstanding cases at the Crown Court, an increase of 44% on Q3 2019 (35,478 cases). This is the highest level of outstanding cases seen since the end of 2015 and continues the consistent increases seen since Q1 2019.  I have yet to read anywhere of any significant member of the legal profession daring to suggest that judicial systems in continental Europe might offer increased efficiency compared to the concept of common law underlying English law. Perhaps there really is a belief that English is best;  I don`t know but what I do know after watching again many series of the wonderful French series "Spiral" is that the case for magistrates in England taking on a more inquisitorial role is in my humble opinion one that cannot be merely dismissed as unEnglish. 

In France and other jurisdictions where the justice system is inquisitorial as opposed to the adversarial system in the U.K. there is an office of investigating magistrate. And as it says on the tin that person takes an active role in the investigation and court proceedings. Judges and J.P.s take an impartial role in the presentation of a criminal case and its defence. There are, however, occasions in a magistrates` court where intervention is not just allowed but necessary in the interests of justice. Frequent examples which come to mind are where a witness is being badgered by a lawyer prosecuting or defending or where the lawyer is insensitive to a witness`s ability to comprehend a convoluted question whether that lawyer`s insensitivity is by accident or design. The cause for intervention in such cases is relatively simple to make. But matters are never always so straight forward.

Many non Crown Prosecution Service offenders are brought to a magistrates` court. Examples are RSPCA, TV licensing, transport companies [fare dodgers], trading standards [fly tipping, health and safety etc ] , local authorities [council tax defaulters] etc etc

I can recollect a case some years ago when I was sitting on one such prosecution. The prosecutor in her opening told us that her only witness, the investigating official, would read his five page statement and she would be relying on a bundle of over 200 pages as her evidence. We duly heard the official and a brief glance at the bundle showed that in addition to the official`s statement it was divided into three complainants` statements, the defendant’s interview, documents directly connecting the offender with the alleged offences and his various bank accounts over the specified period. Defence council had little upon which he could defend his client during cross examination of the official. His client who was not the sharpest knife in the drawer duly did his best under cross examination which was not approaching a Perry Mason standard. We retired to read the bundle telling those involved that we might have some questions for the defendant.

Much of the material in the bundle was totally unhelpful and unnecessary. We had to hunt for the pearls that the prosecutor had told us would be the basis for her case. We duly did find documents which appeared to link the defendant with the offence. Our concern was that they although they had been exhibited neither lawyer had pin pointed them. We decided that in the interests of justice we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail overruling objections from his counsel. He was found guilty. At the post court review our legal adviser anticipating the tone of the discussion assured us that our inquisitorial approach was, in this particular case, perfectly lawful. He agreed that the prosecutor was failing in her duty when she attempted to rely on a huge bundle without further probing. He added that he would have intervened if we had been overstepping the mark.

With ever increasing numbers of defendants denied legal aid and without the means to employ representation it is my belief that magistrates and District Judges must be allowed discretion to undertake an inquisitorial  role to ensure that a defendant is assured of justice not being denied owing to their  inability or lack of confidence in presenting their opinion in the witness box.  There will be many who will vociferously protest that the level playing field and equality of arms argument must not be questioned but those very terms are now nothing but fond memories. Indeed they are a misrepresentation of the current state of activity in the magistrates courts system. They are an anachronism. Even before my last court sitting almost six years ago it was apparent that many defendants were considering guilty pleas simply because of convenience in getting the matter over with. Pressures for such equivocal pleas have increased greatly since then although I know of no research to prove my point. A most enlightening article on the consideration of early guilty pleas and ancillary information The Supervision of Guilty Pleas by the Court of Appeal of England and Wales – Workable Relationships and Tragic Choices is available here. 

Chairmanship of a magistrates` bench is an art not a science although the drafters of the so called competences required and the resultant appraisals techniques would seem to argue otherwise. J.P.s` awareness of when sensitive questioning of a witness is useful is not in the instruction manual but it is in the interests of justice especially in this era of unrepresented defendants.  The adversarial system can only offer confidence in the concept of justice for all being done and being seen to be done when there is a true equality of arms.  When boxing enthusiasts attend a fight they do not expect a flyweight to be matched with a middleweight.  In the magistrates court where the stakes are sometimes life changing such mismatches are an every day occurrence.  There must be change.