HIGH SPEED SPEEDING

I think it is fair to say that for most honest and good citizens, i.e. without a record with the Police National Computer, it is when driving that contact is made with the law. Aside from anything else that is why it is imperative that police officers behave with the utmost civility when stopping drivers. Probably most do but we all have heard tell when they do not. Be that as it may in 2009 153,000 defendants were summonsed to court for speeding offences. In 2010 986,700 fixed penalty notices were issued for speeding. Fines and penalty points for speeding are calculated according to income and the recorded speed. The maximum recorded speed for the purposes of punishment has been fixed for umpteen years at 110 MPH. In simple terms that means that driving at that speed attracts the same punishment level as driving at 150 MPH or more. Others like myself who have driven in countries with no speed limit at very high speeds (in my case 200KPH) will be only too aware of the changing dynamics of a car at those speeds. There is no doubt in my mind that the Sentencing Guidelines should be updated to factor in the increased performance of even the most basic vehicles including motor bikes in the last 15-20 years. 

Last week Inspector Paul Cording, of North Yorkshire Police’s Roads Policing Group, said with reference to a speeder, “This sentence is a clear demonstration of the determination of all those in the criminal justice system to keep the roads in North Yorkshire as safe as possible. Barton’s speed was completely unacceptable and utterly reckless. It is simply not something we will tolerate. He not only put his own life at risk, Barton endangered the safety of other road users. Anyone caught using the roads of North Yorkshire as a racetrack should expect to face the same punishment when they are caught”. The offender, a Mr Barton, was caught riding his bike at 135 MPH on the A1. The report indicates his driving ban was for 56 days; the maximum available. He could have been given six penalty points and been a six months banned totter if he had had six points already on his license but that was a choice for the bench which had all the facts and circumstances placed before it. In the light of such speeding offences the cut off penalty at 110 MPH surely should be amended.

LIES, DAMNED LIES AND STATISTICS

 

I have from time to time offered the opinion commonly held that the adage of  there being three kinds of lies: lies, damned lies, and statistics is applicable to all manner of numbers offered in the law `n order debate.  That now encompasses legal aid, its benefactors and its recipients.  Figures were released earlier this week; figures which I will make no attempt to analyse.  They are presented for those who wish to draw conclusions.  For me the situation in court  is that an increasing number of unrepresented defendants is appearing at trial.  One result is that prior to CPS opening its case the defendant as usual is asked if his plea remains as not guilty and when that question seems to be difficult to answer further questioning elicits what is in effect mitigation.  The result is often a change of plea and more wasted court time.  When the defendant has required an interpreter the costs escalate.  In my experience a defendant pleading not guilty at the first listing requires to be carefully questioned to avoid a wasted second listing as above.

 

These increased delays in proceedings will I suppose eventually appear as cracked or ineffective trial percentages but it is hardly likely that  a direct association with reduced funding for legal aid  will be made….lies, damned lies and statistics.

 

MAGISTRATES DURING THEIR SITTINGS ORDERED TO CONDUCT TIME & MOTION SURVEYS FOR HMCTS

I have previously expressed the opinion that we are more and more being considered by HMCTS as unpaid employees as opposed to the actuality that we are volunteers comprising the lowest level of the judiciary.  This situation has arisen purely and simply because our representatives have been impotent in the face of the steamrolling  actions of HMCTS and other parts of the Justice Ministry.  The supine behaviour of organisations eg Bench Chairmen and their talking shop aptly named Forum {definition:- a meeting or medium where ideas and views on a particular issue can be exchanged}.  show it has no power whatsoever and is an ego trip for its participants.  Of more significance is the continuing failure of the Magistrates` Association to confront (at least in public) government with opposition to the unsaid future of J.P.s being excluded from their primary function in our courts. 

The insidious traps which are salami slicing our functions baited with the honeyed proposals of Damien Green in his letter to magistrates of 30/08/2013 serve as a warning -

"1.      How do we ensure that magistrates deal with the right cases in court?

2.  How can magistrates play a stronger role in the community?

3.  How can we ensure that Magistrates are in the driving seat of improving performance of the justice system in their communities?"

With Her Majesty`s Courts and Tribunal Service the evidence is even more stark in their attitude to us.  We are to be part of a time and motion study of the performance of SERCO; a giant  organisational amoeba absorbing all the government contracts it can stomach as a result of the almost paranoid desire of Chris Grayling to rid his Ministry of any responsibility for its primary functions at the alter of payment by results.  An interested individual  has kindly provided proof of this in  documents sent to a Bench chairman.  These are reproduced below with some redactions.

Members of a bench are being instructed to effect a time and motion study on the orders of their Justices Clerk.  The requirement is to monitor the efficiency or lack thereof of SERCO in relation to its contract to produce prisoners in court on time.  This is stretching to an unprecedented level the co-operation which has historically been essential to the smooth running of magistrates` courts. If HMCTS wishes to know if its contract with SERCO is less effective than expected it should employ appropriate people to fulfil that function. Magistrates are not on the bench for such a purpose.   They  have been hitherto ready, willing and able to function as volunteers in a unique partnership with an essential limb of government.  That HMCTS has issued such a decree is nothing short of outrageous and it risks losing what little goodwill remains between it and many if not most of my colleagues if and when the process encompasses them personally.  

Reference is made in doc 1 to the Judicial Issues Group.  This organisation started off as the Justices Issue Group and when HMCTS was merely Her Majesty`s Courts Service  before the inevitable “bigger is better” mantra for such organisations saw it digest  the Tribunals Service to become the  monster it is today.   This document is the foundation of all relationships between Justices of the Peace and those who operate the courts. This was followed in 2006 by  the paper “Responsibilities for the leadership and management of the judicial business of theMagistrates’ Courts”.   2007 saw the publication of “The Responsibilities of Justices’ Clerks to the Magistracy andthe Discharge of their Judicial Functions”.

It seems impossible for the underlying themes within those documents to be compatible with what is happening re the monitoring of performances of SERCO by magistrates who are sitting in court exercising their judicial function.

Bench chairmen have or should have a lot of explaining to do.  The Magistrates Association is as impotent as a eunuch in ancient Egypt in its dealings with this Justice Secretary and his minions so it`s no surprise that this “initiative” has, as far as I know,  not appeared in its official publication although I am ready to be contradicted.   This fiasco is further proof if that were needed that the views and/or opinions of J.P.s are of no consequence whatsoever despite the usual arguments of representation at bench or M.A. branch level.  These are totally ineffective and allow weak representatives to be overwhelmed by the government machine.  

Who is there now who is confident that the majority of magistrates` courts in 2025 will be constituted as they are now; by three Justices of the Peace?

OFF PISTE

I`ll be off piste for a few days so look in again next week.

WEASELS OF WHITEHALL

As if there were not enough writing on the wall to warn us that the days of magistrates  in court  are numbered Lord High Executioner Grayling could not have made his intentions any clearer in his recent speech at the National Bench Chairs Forum; an organisation which is a total waste of time and effort.  It is not representative of J.P.s and is just a talking shop.  It effectively has  divided magistrates whose primary representative organisation, the Magistrates` Association, has allowed itself to be out thought and  out manoeuvred by the weasels of Whitehall whose long term plan is to have us removed from our position in the magistrates` courts.   

Magistrates in buildings where there are no longer remand, breach or sentencing courts; those now having dedicated venues, spend at least half an hour per three hour sitting on down time if averaged out over a few months if my typical court is anything to go by.  And that means there is slack in the system…..we all know why but that`s not for today.   

“It’s utterly absurd that three magistrates should spend their time rubber-stamping foregone conclusions in simple road traffic cases.’  Thus spake Grayling.  So in those traffic courts where it is not uncommon for a bench to discover improper procedures or errors of one sort or another two J.P.s will be superfluous whilst the third sits in an office.  That`s enough to get rid of two thousand of us.  Next stop will be T.V. license courts where 3,500 prosecutions are brought weekly.  As sure as night follows day we will be told that these also require only a single magistrate to rubber stamp the decision.  That`s reason enough to sack or allow age related natural wastage to dispense with another three thousand magistrates.  He was quoted also as stating that, “that with a falling number of cases coming before the courts there needs to be ‘smart’ ways of deploying them”.  It cannot be more plain even for the chairman of the M.A. who refuses to believe what is staring him in the face that the long term for J.P.s will involve mainly non court activities.  There might be the solace of sitting as wingers to District Judges(MC) in trial courts for those newly appointed J.P.s  who would know no better. Combined with  natural wastage of  a relatively old cohort of current magistrates   mass resignations which would inevitably follow would fit tidily with the change over to a fully professional judiciary in the lower courts; a judiciary beholden to government and owing to its age and background less financially independent of government decree that the current senior judiciary. Of course that is exactly what government wishes to see happen.  The directions to DJs  and sentencing results after the August riots of 2011 are proof of that.

The weasels of Whitehall are on game and set; only the match remains to be won.

T.V. IN COURT

For a long time I`ve argued in favour of the televising of court proceedings in England. Scotland has been broadcasting trials for some years albeit on a very selective basis.  Two years ago  SKY TV began live coverage of the Supreme Court. Today  the go ahead has been given to widen the coverage of legal proceedings initially on a restricted basis.  So for the first time in many months I doff my hat to a proposal from the Ministry of Justice.

AYE; THERE`S THE RUB

“We have a case of assault in a domestic context”.  These are the opening words  I usually use when pronouncing the bench decision after a trial of assault where the defendant and complainant are or were individuals in an intimate relationship although by default the term applies more widely eg father to child or sister to sister in law.   The important consideration is that there is no offence of “domestic violence” although that is the generic term widely used to describe acts ranging from assault which is a summary only offence to murder. And perhaps that is part of the problem for a problem there certainly is.

Much legislation by the very nature of our system of government is enacted for or by political pressure whereby a government of the day seeks to gain favour with the electorate.  To quote Wikipedia, “The first known use of the expression "domestic violence" in a modern context, meaning "spouse abuse, violence in the home" was in 1973”.  It is no coincidence that by this time the “women`s movement”  had become firmly established  subsequent to widespread use of  oral contraceptives and the drive for equality in all walks of life including the marital home.  Thereafter efforts to promote that equality have been part and parcel of  the  parliamentary as well as economic process. Much of the evidence used in DV training for J.P.s is derived from studies in the state of Michigan U.S.A.  where it was concluded that victims suffered over 30 episodes of violence prior to informing police.  It was only about a decade ago that the Metropolitan Police decided to investigate cases where there was little hope of the victim being persuaded to appear in court. My memory of the training sessions on DV is that the trainers considered that we should bear in mind that when a case appears in court it is as the tip of a violence iceberg.  That philosophy might be appropriate if government had legislated for DV  per se.  Instead we have it under various levels of assault as mentioned earlier with the context as an aggravating factor.  The result is that we must IMHO disregard statistics and find only on the facts of any case on which we are sitting.  This inevitably results in acquittal of some who might have been found “not proven” north of the border.

However of all criminal law making  DV must come as high a priority as any when  a party becomes a vote seeker in 2015 which is a good reason why Theresa May, the Home Secretary, last Friday announced that Her Majesty's Inspectorate of Constabulary (HMIC) will inspect the performance of police forces across the country, to identify where improvements need to be made to ensure effectiveness of the police approach to domestic violence and report back in April 2014.  But it is not just the police in the dock.  The CPS and its associate the Witness Service have much to answer for also insofar as those agencies have been entrusted with the task of actually bringing the evidence before a court where that evidence seems likely to lead to conviction and is in the public interest.    And as the Bard might have considered when writing in his will that his wife should inherit only his second best bed…….. “Aye, there`s the rub”. 

JEREMIAH, J.P.s, CHRISTMAS & TURKEYS

What can magistrates do, outside of courtrooms, to help reduce crime and re-offending, and make communities safer?

This is the headline on a page in the members` area of the Magistrates` Association website.  This page is unavailable to the public. The headline itself is an introduction to a request for ideas or comments on ideas already submitted for the Justice Ministry to explore in depth.  To quote directly from the web page:-

"Great things already happening

The following are some of the great examples of where you are already using your knowledge and experience from the bench in your communities, to improve the criminal justice system.

• organising mock trials to explain sentencing to the local community
• visiting local schools to explain the legal system to young people in an innovative and exciting way
• you play an important role in making sure the police are using out-of-court disposals correctly

What you can submit

Ideas can be as innovative as you like (they could even involve us changing the law), the only ground rules are that they must:

• involve magistrates outside of the traditional courtroom role
• be compatible with your core role as judicial office holders
• (in these chastened times), not mean significant extra cost.

What we will do next

We will take the top 5 voted ideas and work with you to develop them further, either to include them in our forthcoming consultation on the role of magistrates or collate them into a best practice guide for local areas."

There are those, magistrates official spokesmen amongst them, who would look at the above as evidence of the government`s continuing commitment to the role of Justice of the Peace.  I beg to differ.  By apparently prioritising our position outside its natural habitat; the courtroom, it appears to be preparing the way for us to be removed from that habitat and to be induced to accept a position as functionaries wholly involved in an environment distanced from those very courtrooms where we currently preside inter alia over procedures, management, trials and sentencing.  We are judicial  turkeys being prepared for Christmas by being offered tasty distractions to peck at whilst preparations are being made to wring our judicial necks.  

If I were female I would sign off this post as Cassandra.  Since I`m not how about Jeremiah?

THE WORLD WE LIVE IN

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

And so it was a couple of months ago when a  colleague was about to relocate to Wales and confided in me that after she had told a person summonsed into the courtroom from a support unit in our court office to go back from where he came from [the particular office] and get the correct information a complaint of racism was made insofar as the individual was Estonian and the implication was that he should return to Estonia. It is scarcely credible that this nonsense was taken seriously and that my colleague had to explain herself. Of course the matter was dropped and the complainant was pacified. But that we have come to such a state of intellectual fear in this country where even the most straightforward of remarks can be so misinterpreted and worse still the complainants are afforded the status of having been verbally abused to placate those who would foster a culture of perpetual conflict amongst us; not the perpetual conflict envisaged by George Orwell in "1984" but the perpetual fear of causing offence resulting in silence instead of comment and inwardness in place of social contact.

PLUS CA CHANGE………..

Legal Aid limitations now agreed is the latest headline from Chris Grayling.  As usual everything is going to be better and cheaper. I suppose it can all be likened to choosing the devil over the deep blue sea.  Manchester Police reveal that they can investigate only 40% of crimes and Police Scotland are castigated for incestuous inquiry into complaints of mal practice.

DRIVING ON EMPTY

Those who have been and are currently responsible for the oversight of justice provision in this country are not fools; they are for the most part highly intelligent, well educated people just following orders as so many have done in the past and are doing so now.  Their saving grace of course is that their orders are to decimate the structures of the system as opposed to the destruction of those within it. But the mentality is similar IMHO of course.  Fear of unemployment and lack of confidence in taking their talents elsewhere provide reason enough for legislators and facilitators to continue to take actions which are undermining one of the two basic structures of our society.

There cannot be a single magistrate or criminal lawyer who has no personal experience of  failure within the Crown Prosecution Service which has unbalanced the scales of justice.  My post of August 30^th was just the latest in a long line cataloging my personal experiences.  London Assembly Member Tony Arbour has compiled figures for London where the CPS was responsible for 16% of cases at Crown Courts and 20% at Magistrates Courts being held up.  To quote from his report;

“23,777 cases in London’s Crown and Magistrates courts were dropped or delayed in 2012.5Failings by the prosecution and court system were to blame for four in ten (9,560) thrown out or delayed cases, working out at 184 every week. London was the worst performing region for delayed cases (16% at Crown Courts and 20% at Magistrates  Court level classed as ‘ineffective’).5 The North East had the highest number of cases being thrown out  (53% at Crown Court level and 44% at Magistrates Courts classed as ‘cracked’ “

And this report is from a Conservative grouping. For how much longer can such a state of affairs continue?

Last week saw a  reinvigorated  House of Commons defeat a government which wanted to take this country to yet another war.  This decision was endorsed by a recent chief of the army; a man whom we presume knows all there is to know about such matters.  He was not alone amongst his recently retired colleagues in uniform.  Government spokesmen and others bewailed the decision commenting that Britain had thereby lost its status amongst the nations.  And this after the self same government has presided over the biggest reduction in the armed forces in living memory.

There is a commonly used phrase for all this; “driving on empty”.  We are not driving on empty.  As far as our justice system goes we are coasting to a dead stop.

FROM EAST TO WEST

Immigration is a topic which is now rarely out of the news.  Perhaps if it had not been off limits for politicians of all parties for so long it would not now be newsworthy when every ramification of the previous government`s blind eye to the numbers and origins of incomers seems to be coming back to haunt us from the vastly under estimated numbers coming here from Eastern Europe after 2006 to the latest prediction of schools running out of capacity owing mainly to the fertility of immigrants of the last decade.  Immigration mainly from Pakistan has opened a door to the cultural manifestations of a society which were virtually unknown to many in these islands twenty five years ago.  In general there is a tolerance and harmony of which we and  our newest citizens  can be proud.  However when people are uprooted by war and civil strife and are forced to bring their familial traditions to these shores from east of Suez a court can be the place where these are revealed to a wider audience.

Ameera and her large family of parents and five siblings had been forced to leave their native country earlier in the last decade because of continuing civil  unrest which had become life threatening.  Her father was in court charged with assault.  Ameera who had just the  slightest trace of an Arabic accent was eighteen years old and appeared as the complainant and only CPS witness. She was wearing clothes common to any girl of her age; neatly pressed jeans and a modest top.  Her long black hair was uncovered.  She took the oath on the Koran. Her evidence of life under her father`s roof revealed that he was an authoritarian for whom religion, culture and tradition were inseparable.  Repeatedly wiping away her tears she described the alleged assault.  When Abir entered the witness box he was accompanied by an interpreter.  His evidence was full of contradictions.  He was proud to tell the prosecutor  that he was a devout Muslim and admitted that   he found living in the west had put a strain on family relationships all the while denying the charge.  The evidence was clearly against him and we found him guilty.  Prior to adjourning for pre sentence report we were informed that he had been cautioned a year previously for assault on his wife and earlier this year had been convicted of assaulting Ameera. 

We had been given an insight into the innermost conflicts within a family trying to adapt to life in a very foreign country and with little likelihood of their ever being able to return from whence they came.  Probably repeated within  thousands of households many such events are unlikely to come to court but are likely to remain commonplace for a very long time.

FROM MAGISTRATES COURT TO ADMINISTRATIVE COURT

My attention has been drawn to an appeal in THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT IN BIRMINGHAM DIVISIONAL COURT.

There is a much meat in this case the constituents of which most colleagues will have experienced in part if not whole…...part heard, tried in absence, medical certificates, a bench re-constituted from three to two. The judgement in full is here.

DRESSED FOR COURT?

A question for colleagues; does the attitude or apparel of a defendant have any influence on the manner in which his/her evidence is considered?  From time to time it is obvious that  the person in front of us, statistically likely to be  male,  has made an effort to be “presentable”; dark suit and a white shirt with tie.  So far so good but what about at the other end of the sartorial scale?  Someone brought in having been remanded overnight in the cells might not be responsible for appearing looking like a dog`s breakfast.  My own words to a defendant in the witness box with hands in pockets would be along the lines of, “ With your hands in your pockets some might think you have no respect for this court and that would not be a good way to continue.”

However when in court answering to bail or a summons should somebody be criticised for showing disrespect to the court because he presents with no regard to the occasion?  It seems that at Hull Crown Court Judge Jeremy Richardson QC thought that the defendant before the court was so poorly attired that he needed to be punished for his lack of respect for the court and promptly had him put in the cells for three hours. 

A brief report is available here.

MAGISTRATES AND COUNCIL TAX LIABILITY ORDERS

Some of the law which magistrates have to administer might not be to their personal liking.  One such is having to adjudicate on those brought before us for not having a T.V. license when their actions demanded they possess one. However we must work within the law as it is, not as we might want it. For those unable to follow that simple logic resignation is but a short letter away.  Another area where colleagues, especially those new to the job, occasionally consider themselves as successors to the Sheriff of Nottingham is in the granting of liability orders to pay Council Tax to borough councils.  The occasions when we can behave as Robin Hood are very few and far between.  It is probably as near as it gets on the bench to rubber stamping.  Our power to refuse a liability order is limited in the extreme.  Indeed I can recollect perhaps only three or four times I have ever done so and then only when gross mal practice or irregularity was presented by a defendant making his/her case personally.   It was therefore a grossly uninformed Reverend Paul Nicolson who made recent headlines in Haringey protesting about the actions of the local bench.  Those who might fund his further actions would be wise to acquaint themselves with the limitations under which the court operates in these matters.

TOO LITTLE TOO LATE FOR THE CPS

Almost four years and around 1,200 posts is a lot of bytes.  I have no inclination to count how many of these were concerned with the Crown Prosecution Service but it is likely to be in two figures. And the reason is not difficult to find: that organisation plays such a mammoth part in the daily system of justice being done and being seen to be done in magistrates` courts that its failings have repercussions right down to the loudmouth in the pub who boasts of having “got away with it”; “it” being an offence of which he should have been but was not found guilty.  This week my sitting witnessed (at least from the bench) such a scenario.

It was a prosecution (CPS) application to admit “bad character” at a trial listed for a fortnight hence.  It was a third listing.  The only problem for the CPS was that the application was over a month out of time. As the prosecutor stood and began to explain the reasons for the application our legal advisor thrust the actual form detailing the application on to the bench.  Counsel for the defendant started to rise whereupon bench chairman motioned him to sit and told the prosecutor to begin by applying for permission to bring the application out of time. In a nutshell prosecutor who was an agent had no plausible explanation except to fall back on the truism of the CPS being under such pressures that procedures are continually being overlooked  and/or being left to last minute review.  Unsurprisingly defence counsel opposed the application with some vigour. We rejected the application.  However we had, as previously mentioned, been prematurely presented with the details of the defendant`s history of convictions of a similar nature to that of which he was currently awaiting trial. His propensity of offending was such that had his bad character evidence been available for CPS to present to the forthcoming trial bench his chances of acquittal would have  almost certainly been  reduced.  So it is not unlikely that the troubles with the CPS  have affected the course of justice being  done.   And this is not an isolated example; just the latest to persuade me to put fingers to keyboard.

POLICE ACCOUNTABILITY

Last January at my previous “home” for this blog I posted under the title “DO WE NEED A GENERAL POLICE COUNCIL”   I have reproduced that post below.

“At one time only members of relatively few professions or occupations were subject to having to uphold personal and professional high standards and be answerable to their institutional peers for any failings real or suspected. Law and medicine were the two ancient professions which for generations were alone in policing themselves. In the post war era there has been increasing government influence in the standards and operation of these professions` controlling bodies. Many more professions have been brought under similar umbrellas to increase the public`s confidence in the protection offered. Optometry, osteopathy and teaching are just three of the “newer” professions subject to control by regulatory councils. This oversight in addition to the aforementioned applies to professionals employed or self employed even although those in the former category are also subject to any controls agreed with their employers according to their contracts of employment. Police officers are exempt from this individual professional regulation.

The disturbing case reported in yesterday`s Telegraph and the even more disturbing results of an inquiry into the officers` conduct should encourage the government to set up a Policing Council. Considering the coalition is almost at war with the police another controversial action might be politically opportune and popular with many of its wavering supporters. As a matter of interest the South Wales Constabulary in 2010 dismissed 6 officers and had 8 officers who resigned prior to a hearing or during investigation. None was shown to have retired on medical grounds. The complement of this force is currently 3,012 police officers.”

Since then the reputation of police has hardly been said to have improved.  Indeed with revelations from Hillsborough to “cyclegate” via Leveson it could be said that the police`s reputation if not at an all time low is damn near rock bottom.  It now appears that the Police Federation is considering the possibility of establishing a system whereby individual officers would be responsible for their actions perhaps under the auspices of the Police College.  On the basis that this organisation stands rock steady until it`s pushed there is no doubt IMHO that somewhere in the Home Office there is under advanced discussion a plan  to establish a body with regulatory powers to oversee and rule on the actions of police in a fashion similar to that which operates for nurses, dentists etc.  Perhaps that body will be called the General Police Council?