PAPERING OVER THE CRACKS

Chris Grayling and his cohort at Petty France just don`t stop with their press releases.  If the efficient manner in which they are propagated were typical of the efficient thinking of those behind their publication there would be cause for a modicum of cheer.  However even in this season of goodwill I find little about the latest offering that is anything more than a lot of hot air.

His main innovation is to add the “punishment” element he considers missing from a third of community sentences.  These consist of fine, unpaid work, curfew or exclusion from certain areas.  The Ministry of Justice website has the following to say about fines:-

“Fines are the most common sentence passed at court, accounting for around two-thirds of all sentences handed out by the criminal courts (66.5 per cent in the 12 months ending September 2012). The fine rate is consistent with that seen in the same period for the previous year, and has declined from a peak of 70.3 per cent in the 12 months ending September 2004. The decline has been due to a decline in prosecutions and subsequent conviction for summary motoring offences - the offence type for which fines are most commonly given. The latest figure of 816,600 fines represents a decrease of 5. 2 per cent compared to the 12 months ending September 2011, and the lowest number of fines handed out over the last 11 years.”

To quote from this blog on 21/11/2013:-

What an example of the spin doctor`s art of obfuscation by omission. The total amount of unpaid fines is estimated at £2 billion and rising. In addition over £130 million  annually is written off because the state cannot find or squeeze the cash from offenders. Perhaps the Secretary of State instead of pursuing his rehabilitation of offenders by results policy with the decimation of the probation service as a by product or playing hardball with G4S and SERCO he would be more profitably employed in root and branch investigation of the whole process of fines from imposition to collection or otherwise as the case may be.

As far as “unpaid work” which is arguably the most punishing of community requirements; with the probation service in turmoil over privatisation the resulting omnishambles of payment by results will render any increase in throughput a disaster. 

We have all read of the scandal of the outsourcing behemoths SERCO andG4S.  This blogger for one has no confidence that an increased workload can be any more efficient than currently is the case.  Exclusion Orders are a waste of time and an insult to intelligence.  All they are is a displacement order……NIMBYism  writ large and unpleasantly. 

For donkeys years various Justice Ministers have proclaimed they will be “tough on knife crime”.  It makes good headlines but bad law. This effort will be no different.

A government which is disguising the chaos in private prisons, ruining the probation service, decimating the police forces, throwing 10% of CPS lawyer on the scrap heap, admitting that its own crime statistics are almost fraudulent and generally causing despair amongst those with inside knowledge of what`s really  happening   deserves nothing but contempt for this latest attempt to paper over the cracks it has created under the cloak of austerity.

IN ABSENCE

Can anyone explain this paradox.  I ceased updating my blog at blog.co.uk in August and transferred it here.  Since then that blogsite`s  readers and page views have soared. I wonder if I left a few pounds in my bank account and transferred earnings to a new bank my old account would soar equally?

 

Month	Total Pageviews	Total Visitors
November 2013	56642	13539
October 2013	40269	12938
September 2013	38555	11799
August 2013	24786	9945

SKY T.V., PUBS AND ITS PROSECUTION POLICY

British Sky Broadcasting is becoming increasingly litigious concerning the transmission of sporting events at pubs by licensees who are out of their Sky contract or who have no contract at all.  I sat on such a case about six months ago.  It was difficult not to have a smidgeon of sympathy for the landlord who, single handed with his wife,  was failing in his attempts to keep profitable a long established public house in an area that is now bereft of regular trade. He was found guilty and the fine and costs were not unlikely to have forced him to close the business and get what he could for his remaining leasehold interest.  So it was with interest that the following came to my attention.

Last year a Plymouth publican was acquitted by local magistrates of showing domestic Sky T.V. without a commercial contract.  However on appeal at the High Court that judgement was overturned.  He was conditionally discharged with costs of £850.  It appears that this case is not ended. 

By all accounts Sky is currently operating a policy of prosecuting all those pubs suspected of  showing its content without a commercial contract.  Of course every case must be decided on the evidence presented but personally I will attempt to set aside a few brain cells to remember this one.

COLD NUMBERS

I have copied below two extracts from the latest quarterly court statistics released today by the Ministry of Justice. Knowledgeable readers will judge for themselves whether or not the cold numbers give a true reflection of their own individual experiences. What the figures do not and cannot show is the amount of “downtime” experienced by Justices of the Peace sipping coffee in the retiring room……coffee brought in by themselves as HMCTS no longer provides same……….because listed trials have been aborted. This lost time is being paid for in the form of justices` expenses although because perhaps fewer than half claim anything more than petrol money and subsistence allowance for lunch it is miniscule in real terms. It results in the highly paid District and Deputy District Judges (M.C.) being allocated cases in preference to J.P.s when work is thin on the ground.



The second smaller extract is interesting insofar as it gives an indication of the professionalism with which cases are conducted at the magistrates` courts. Considering that the vast majority of trials are still presided over by lay benches as opposed to District Judges(M.C.) my colleagues and I can feel justly proud IMHO of course.

Trials in the magistrates’ courts

"Between 2003 and 2006, there was a step change in the proportion of ineffective trials from 29 per cent to19 per cent. The proportion of effective trials increased from 33 per cent in 2003 to 44 per cent in 2006. Since then rates of effective, cracked and ineffective  trials in the magistrates’ courts have all remained relatively stable. There were 39,115 trial hearings listed in magistrates’ courts during the first quarter of 2013.  Of these trials, 44 per cent were recorded as effective, 38 per cent were recorded as cracked and 18 per cent were ineffective. The main reasons for ineffective trials in the magistrates’ courts in the first quarter of 2013 were due to court administration problems (21 per cent of all ineffective trials), absence of the defendant (20 per cent of all ineffective trials) and the absence of a prosecution witness (16 per cent of all ineffective trials). In the first quarter of 2013 the main reasons for cracked trials were due to a late guilty plea being accepted (49 per cent of all cracked trials), the prosecution ending the case(16 per cent of all cracked trials) and insufficient evidence (14 per cent of all cracked trials). A trial that has been removed from the list before the trial start date is labelled as vacated. Vacated trials are counted in the month the vacation happens rather than the date when they were due to start. As an example, a trial due to be heard in Q1 2013 that was removed from the list in Q4 2012 would be included in the vacated trial numbers for Q4 2012. There has been a continued annual decline the number of vacated trials from 52,188 trials in 2008 to 45,873 trials in 2012".

Appeals

"Since 2000 the number of appeals against magistrates’ courts decisions has remained relatively stable, around 13,000. During the first quarter of 2013, the Crown Court received 2,819 appeals against magistrates’ courts decisions, a 12 per cent decrease when compared with the same quarter in 2012, where by 3,214 cases were received".

THE STATE IN WHICH WE LIVE

Sometimes there are small news reports tucked away in a corner of the www which require a minimum of comment. They are often a microcosm of just what a reasonably sensible citizen or even a J.P. blogger for that matter might consider to be indicative of the failing of a very small area in economic terms but a major plank in how we operate as a civil society.



It was sublime when Essex Constabulary discovered in 2010 that cardboard policemen were rather inefficient in deterring the local villains. Truly it was a waste of money at £20 for each of one hundred purchased. Their co cops in Gwent obviously didn`t watch BBC. The idiots there spent £255 each on fifty two of them. Obviously the plods made in Essex have a nose for a bargain when they want to waste public money.



Of course we don`t need police stations; what a waste of money they are. These poor police officers hanging about in a major commercial site in a busy high street waiting for the locals to report some form of actual or suspected criminal activity. And what`s worse? Spending £30 weekly for a table in a disused town hall nearby waiting for the self same complainers. I say bring back the

Tardis to every high street so those whose smart phones have been nicked can call for assistance.





When is an offence an offence? Being of a simple disposition I believe if money to which a person is not entitled eg M.P.s, Police Crime Commissioners etc is used for personal gain either the civil or the criminal law requires to be invoked. Asking for its return before making such decision to prosecute brings the law into contempt.



ASBOs were a perfect example of the Labour Party`s attitude to law `n order. Make a civil order to prevent a future action and five years in the jug if it is disobeyed. Yet they are still being propagated at our courts with terms that can disgrace those so doing.



For every crown court judge castigating court interpreter service by Capita plc there are dozens of magistrates` courts every day experiencing the same omnishambles initiated by the mickey mouse incompetents of HMCTS. I doff my hat to His Honour at Bradford Crown Court.



One would have thought that HMCTS being one of the most `elf & safety conscious employers on the planet would have been aware that the cells at Newcastle Magistrates` Court were a fire risk. After all they must have been subject to umpteen inspections over the years. One would have been wrong. A failure of words has come upon me.



Is it 50%, 60% or 70% of offenders who suffer from mental and/or addiction problems? A joined up society would long ago have processed a system for such unfortunates to by pass the legal system and be forcibly (if necessary) entered into the health system. No wonder the term “asylum” was used to describe a place of refuge. For how many more decades have my colleagues and I to square a circle in dealing with the likes of Richard Collett Harvey?



And finally not least; as a non believer I have some sympathy with Christians who consider the banning of a radio advertisement upheld at the Appeal Court unjust in the extreme. Replace “Christians” with another religion and consider whether their ad would have been banned also. The offensive ad was, “We are CCP. Surveys have shown that over 60% of active Christians are being increasingly marginalised in the workplace. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help a fairer society. Please visit CCPmagazines.co.uk and report your experiences.” The full report is available here.



This is the state in which we live. Thoughtless people running it with hardly a coherent thought in some of their heads.




ADDENDUM 29th November 2013


Oh to be a fortune teller!  Did I write suggesting a Tardis on the High Street?  Please read on.....

A CAT LOOKS AT A KING

Should a government lead or should it follow?  I suppose that or a similar question was common in ancient Athens.  On a very basic level governments don`t get elected unless there is the support of a majority.  But after that it seems increasingly that to be a follower is the mantra of the government of the day; excepting perhaps within the law when individual whims are aired to test public opinion.  The Lord Chief Justice is a perfect example of putting a wet finger in the air to test the wind`s direction.  A witness or defendant wearing or not wearing the niqab in court is surely a matter which should be decided at the highest level and the directive applied at courts from the lowest to the similarly highest level.  From J.P. to supreme court judge all would know where the line had been drawn.  Those who chose to defy the ruling whether by refusing to discard such garb in court or by allowing such to be worn  in court would know precisely where they stood.  And so it should be.  The LCJ however has put the matter out to “consultation”.  I call that a cop out. 

At perhaps another end of the philosophical spectrum Lord Neuberger, President of the Supreme Court, has his own ideas of being able to put his so called personal opinion in the public domain whilst disclaiming official responsibility. He questions the value of short term custodialsentences; the very sentences which my colleagues and I pronounced almost 69,000 times in the year ending March 2013.   His spokesman is quoted as saying, “His reflections of their views on short term sentences are in no way intended as official statements of sentencing policy, which are matters for the Sentencing Council and Parliament”.  Well; a J.P. cat can look at a Supreme Court king.  Of the aforementioned 69,000 individuals sentenced to custody 23,331  such sentences were suspended.  Ten years ago the same analysis showed 63,657 sentences of immediate custody  plus 1,030 suspended sentence orders.  Various academics have been critical of SSOs. From time to time big wigs have been critical of over long sentences resulting from high profile trials and events. 

The good lord is way out of his comfort zone.  One does  not have to have the personality profile of Attila the Hun to know that the very essence of short jail sentences is to indicate that a threshold has been crossed; that magistrates` courts and the J.P.s and D.J.s presiding on behalf of their fellow citizens have reached a structured decision that enough is enough (when it comes to propensity of offending even of a relatively minor degree eg shoplifting) or that people must be protected from those whose behaviour is beyond what a civilised society will tolerate.  That a prison cell does not offer home comforts is mere common sense.  That an offender`s life and/or lifestyle is affected is a primary purpose of this punishment.  And punishment is what sometimes seems lacking in this and other aspects of our advanced western humane civilisation. 

On one hand we have a government whose concept of legal services in the widest interpretation of that phrase means cutting to the bone the essence of civil society and fearful of or disregarding consultation when it suits their prejudices (removal of legal aid, court closures, increasing numbers of D.J.s etc.) and on the other judges who pronounce on matters they should leave well alone and that includes Senior Presiding Judges telling magistrates they must stop blogging.

END OF THE ROAD

Sitting in the middle chair at a remand, breach or sentencing court is becoming an increasingly rare event for my colleagues and me owing to the closure of courts, ever rising numbers of District Judges(MC) and reducing figures  of offenders brought to court.  It was therefore refreshing of late to find that, quite like never forgetting how to ride a bike, everything returns in a  minute or two after the usher announces, “Your first case your worship is………..”

A full sitting`s list had two items which stand out; we exercised our powers to the maximum to sentence an offender to two consecutive terms of  six months notwithstanding his guilty pleas  his “reward” for which was not sending him to the crown court for sentencing.  The other was a pre charge application to vary bail conditions.  During the hearing we were informed that the lady in question {from outside the Hague Convention Area}  had mentioned in passing to a police officer that  she would be unlikely to return to England if her passport which had been retained were returned to her.  Since her lawyer made no challenge to this part of a conversation noted by the officer at the time she will be spending the next few weeks where she will need hat, gloves, coat and scarf  and not a bikini. 

It will be well into next year before I once again ride my bike.  I detect that more and more of my colleagues are coming round to my point of view that our days in court are numbered.  It`s the end of the road for J.P.s.

POLICING THE POLICE

Confidence in the integrity of public bodies and those who job is to lead and manage them has never IMHO been lower. The examples have been public property for some time now and there is no need to list them.  On the hit list after parliamentarians of all shades undoubtedly is the police so called “service”.  The scandal of misconduct charges being dropped when an officer resigns is truly outrageous.  The unpublicised corollary in such matters of officers escaping any financial sanction vis a vis their pension entitlements adds to the disenchantment felt by many observers.  I know not whether current police contracts have been tightened to preclude this get out of jail free card with cash.  If not they should be. To add to public disdain for what was once a prime example of British identity was the sight of three police officers squirming under the interrogation of the Parliamentary Home Affairs  Committee investigating the Plebgate matter.  What is perhaps less well known is that there appears to be no statutory requirement for police to co-operate with the Independent Police Complaints Commission.  It is now beyond any discussion subsequent to  denial after denial that police distort, twist, alter and manage crime statistics for their own purposes. With totally inappropriate decisions having been taken on cautions and other out of court disposals it is little wonder that courts are dealing with the fewest offenders for forty years despite a huge increase in population.  It is upon a combination of phony statistics that police numbers have been decimated and up to a third of magistrates` courts closed or are in the process of so doing.  Around 10,000 magistrates fewer  than a decade ago are dealing with current offenders.  It is estimated that 10% of probation officers are expecting their marching orders and the same ratio of lawyers has been sacked from the CPS. 

Lack of confidence in police is not just a product of the Daily Mail and curmudgeonly bloggers.  I well remember a sitting at the crown court not so long ago when the judge upheld an appeal (and persuaded my J.P. colleague in the process)   because a police officer`s evidence was just too perfect to be relied upon.  Making similar remarks myself when considering a case have more often than not brought remonstrations from legal advisors when they have been informed of the result of our structured decision making.  Thankfully I follow a strict protocol and refuse to allow a fourth person to be present when such discussions take place however much pressure is applied. 

Perhaps a Royal Commission on policing whenever it might be ordered will put a halt to behaviour and attitudes which would not be tolerated in any other public service notwithstanding the many individual officers who get caught up in the current maladies.

RISK

Commenting on media reports of events at magistrates` courts can be a risky undertaking  for a J.P. blogger.  Only those present at the time would have heard the full facts and circumstances  of the case.  However, taken to its logical conclusion, that caveat would appear to prevent any reasoned comment at all.  That IMHO is plainly ridiculous.  And on the surface it seems odd, to say the least, that a recidivist drunken driver whose previous similar offence had resulted two years previously in an immediate custodial sentence was subject recently  to a custodial sentence suspended plus the usual accompaniments to such an offence. But as I began this post; although comment can be risky I find it hard to recollect my being on a bench where similar escalating or repeat offending be it drunk driving, theft or assault did not result in an escalation of sentencing.

Addendum:
It is interesting to note that police speak reaches all parts of the country.  My area is not alone in hearing the description given by the police officer involved (paras 4&5 of report)……. “the driver’s eyes were glazed and bloodshot…….she could smell intoxicating liquor on his breath”.

MUSINGS ON THURSDAY

We are all aware of the situation when we contract some disease or illness which requires treatment and rehabilitation over a relatively short period when the problem can be described as acute. However on the scale of discomfort a “permanent” itch, ache or irritation can be equally debilitating. And so it is here today. I am referring to four examples of legal issues which I  have found to be a disturbance to my equilibrium:  Itch, ache or irritation?.....you can judge.



Most offenders are punished by the imposition of a financial penalty. As posted on the Ministry of Justice`s website the numbers are:-



“Fines are the most common sentence passed at court, accounting for around two-thirds of all sentences handed out by the criminal courts (66.5 per cent in the 12 months ending September 2012). The fine rate is consistent with that seen in the same period for the previous year, and has declined from a peak of 70.3 per cent in the 12 months ending September 2004. The decline has been due to a decline in prosecutions and subsequent conviction for summary motoring offences - the offence type for which fines are most commonly given. The latest figure of 816,600 fines represents a decrease of 5. 2 per cent compared to the 12 months ending September 2011, and the lowest number of fines handed out over the last 11 years.”



What an example of the spin doctor`s art of obfuscation by omission. The total amount of unpaid fines is estimated at £2 billion and rising. In addition over £130 million  annually is written off because the state cannot find or squeeze the cash from offenders. Perhaps the Secretary of State instead of pursuing his rehabilitation of offenders by results policy with the decimation of the probation service as a by product or playing hardball with G4S and SERCO he would be more profitably employed in root and branch investigation of the whole process of fines from imposition to collection or otherwise as the case may be.



The ASBO is IMHO a nasty concept; a civil penalty followed by criminal proceedings if breached. It is being consigned to legal history only to be replaced by an even nastier process; the IPNA....injunction to prevent nuisance. Its proponents state that it will be an effective deterrent against ,eg, begging gangs. But just for a moment consider what other aspects of our daily experiences could thus be so construed. The chimes of an ice cream van once or twice daily could be “annoying” for some. A pavement evangelist who is convinced that beans are a sure way to hellfire and damnation could be annoyance. High spirited children, of which I was once one, being children but perhaps rather noisily on a summer`s evening in a middle class estate could conceivably fall foul of a couple of miserable householders. Such is the way our laws are progressing. Easy targets make for easy statistics of success. And a person who should know is the Chief Constable of Derbyshire amongst others.



Paul Ford, the Secretary of Police Federation National Detective Forum, said: “It would help if politicians would stop using crime statistics as the be all and end all of the total success of policing and public safety. It’s misleading. It helps no one. “You can say that crime has gone down one week but not mention that crime went up the two weeks before.”



Former Metropolitan Police detective chief superintendent Peter Barron said the service had to stop having an aversion to crime rates increasing. He added: “It needs to be seen as enhancing the intelligence picture. If a crime isn’t counted, it’s missed completely.” Mr Jenkin ( Chairman of the Public Administration Committee) even apologised to the officers “on behalf of all politicians of all parties”, who he said had “created this atmosphere where targets must be achieved”.



I have blogged in the past that this country is coming to resemble a banana republic of 1970s South America. Public officials with no ability, corruption at high levels in public service, self serving oversight bodies and political policies offered for partisan interests with national betterment a distant second requirement seem to be de rigueur.



« Je conduis habituellement à droite donc ma culpabilité dans cette affaire de conduite imprudente est moindre. » could have been the words of Alexis Fleury of Orleans in the Appeal Court earlier this month. Or in English..........“I usually drive on the right so my culpability in this matter of careless driving is lessened”. And their Lordships agreed with him. Whilst the principle and logic of the decision is immediately comprehended where does it end? If I were a resident of Outer Eurasia where use of a mobile phone whilst driving is not prohibited would that lesson my culpability using one on the Outer Circle? Readers will have their own analogies in mind without much effort.

GUILTY?

Having an enforced two hour lunch break is not usually welcomed by me or most of my colleagues.  As once weekly volunteers we are not in the business of working fewer hours for more pay.  The morning sitting over listed as is the norm with three trials ended for various reasons beyond our control about noon and there being no remand courts at that building since the great amalgamation we had no bail, breach or sentencing crumbs to feed on.  Some colleagues in such situations manage to make an unscheduled visit home, others have been boy scouts and have prepared for such situations by bringing in all the necessaries to do some of their day job.  The rest of us have an early lunch whether pre prepared or taken at a local café and wonder just to what depths the efficiency of our court system can reach. 

And so at 2.00p.m. we entered courtroom 2 with just limited expectations that we  would be able to actually achieve something.  Domestic violence cases are for this J.P. at least somewhat dispiriting.  Having been born into and having a stable family life an insight into some dysfunctional relationships is a required but bleak  experience.  Owing to a variety of seemingly  untenable reasons we were told that there would be a late special measures application for screens. This dilatory attitude of CPS to basic functions has become more frequent.   After a brief huddle we decided to allow the application and subsequently in the interests of justice sanctioned screens to prevent eye contact between alleged victim and her alleged assailant. As is the norm in such matters it was her word against his except we did not hear his.  Although, as we were shown, her statement clearly indicated that she was not going to give evidence against her partner she was called into court being ushered by a woman from witness support her reluctance being quite apparent. She barely managed to repeat the oath and from then her answer to every question from the prosecutor was that she was too drunk to have any memory of the evening in question when the assault was alleged to have taken place.  That included her questioning by the officer who took her statement.  That officer was not listed as a witness but a statement by him was put in evidence but nowhere within it was there mention of the sobriety or otherwise of the complainant.  An application was made that the officer be called.  Unsurprisingly defence objected; this was the fifth listing and at no previous nor on the case management form was any request for the officer`s  presence indicated.  We decided, however,  to allow CPS five minutes  to inquire of his whereabouts.  He was away on holiday.  The predicted application to adjourn and go part heard was received and to which we sustained the inevitable objection.  It took us less than five minutes to decide there was  no case to answer.  The complainant who had placed herself in the public gallery after leaving the witness box  whooped with joy. The defendant smiled broadly.  Considering he had been remanded in custody for the previous seven weeks that expression of relief was probably the most truthful statement we had seen or heard.

Understandably the Crown Prosecution Service`s  legal procedural considerations in DV differ from those where victim and defendant involved are strangers to each other.  There is no doubt in my mind that legal advisors and the prosecution system do not sit as impartially on such cases cf others.  The evidential burden has been reduced as a matter of political purpose perhaps to compensate for the years when such assaults were regularly dismissed by police as merely “domestics”.  My training as a J.P included much supposed statistical analyses from here and abroad  on how DV can and does often escalate from the almost benign to the deadly.  Whilst there might be some substance to all that information in the courtroom we must consider only the evidence presented.  I sometimes have the impression that the CPS is  bringing such cases to court based on there being more than a 50% chance of conviction  except subconsciously they are using the civil standard of probability and not that guilt must be established beyond a reasonable doubt.

PRESCIENT OR WHAT?

It is exactly four years ago that I posted my first thoughts under the headline title of this blog {at its previous site}.  That was almost 600,000 page views ago.  During that month, November 2009, I posted a further five times.  The content of four of them encompassed the excessive and inappropriate use of police cautions, the removal of defendant choice in either way offences, the re-structuring of ACPO and the previous  government`s indication of  its disdain for the magistracy at least in its current format.

It is only now, four years on, that the subject of cautions has become a topic of the general media with a likelihood that at least some form of brake will be put on this activity and that police will be made to apply it only under appropriate conditions as was envisaged in the first place.  But the old story of giving police limited powers and they will take them to extremes has been confirmed time and time again; the Terrorism Act being a case in point. 

LASPO has nibbled at the edges of the principle of either way offences and the pleading that follows.  I am unchanged in my belief that having battered lawyers into revolt over fees the last thing they would now consider would be effectively removing further fee income by fewer cases being heard at the crown court. However the principle is IMHO unassailable; defendants should have no right to choose mode of trial.  No other jurisdiction offers this concept.  And the argument over citizen`s  right to trial by jury has no logic when a single District Judge(MC) can preside over trials at magistrates` courts.

The current government is even more robust than its predecessor in its efforts to reduce the magistracy to a local form of arbitration and/or reconciliation panel. Justices of the Peace who, 20 years ago, more or less  ran their own courts, have increasingly become almost nonentities in the hierarchy within Her Majesty`s Courts and Tribunal Service. Government`s  ambition to have the  magistrates` court entirely under the control of a single District Judge(MC) is now a no brainer.  Of course there are denials all round from all quarters but like global warming it will be upon us the only caveat being that the time scale is open to debate.

And as for ACPO………probably the least said the better.

CONFUSION OF THEIR LEGAL LORDSHIPS

Interrogatively the utterance “are we coming or going” can be considered as being written or said without anger or accusation but substitute “they” for “we” and the phrase takes on a definite meaning of lack of confidence in the activity in question. And thus just as a new chairman is appointed to lead the Sentencing Council with intentions to carry on the prescriptive actions of his predecessor The Lord Chief Justice informs us that he is, in line with the procedures of his political master, putting the subject of wearing the niqab in court to public consultation.


My simple mind finds these two activities by such senior authorities confusing in their juxtaposition. Just what topic should be affected by so called public debate and what should be so heavily ordered as to remove the last remnants of any wriggle room for sentencers? I have my own thoughts on the niqab but I am today interested only in the thought processes of those great and good in the legal world. They all now are eg chanting the mantra of the victim being at the centre of the justice system. Whatever happened to the concept of the state being the impartial arbiter of punishment to fit the crime? Is a victim with no family to be considered a factor in the sentencing of an arsonist cf a mother or brother with a sad victim statement? Because the former has nobody grieving should the offender be dealt with any differently from the other criminal? Stranger upon stranger crime is a two way affair; neither aggressor nor victim is involved with any consideration for anyone else. I presume the theory is that of “outcomes”. This principle it could be argued was laid to rest recently in the matter of the successful appeal in R v Hughes (Appellant). Mr Hughes had been convicted of two offences under the new section 3ZB, namely for causing the death of Mr Dickinson by dangerous driving at time when he was uninsured and without full driving licence  but exonerated from any blame as to his causing the accident..


The matter of the niqab in court should not be one for me or any of my colleagues to make however strongly opinionated we might be; it should be directed by the Lord Chief Justice in the interests of justice. When parliament is extremely unlikely to debate a return of capital punishment to consider that the public should have a collective opinion on wearing of a contentious cultural garb is dangerous for our already precarious regard for the democratic process and equality for all before the law.


It seems coalition government leads to following from behind. Equivocation rarely begets satisfactory results.

TOO LITTLE TOO LATE FOR MAGISTRATES

It would be fair to say that although I have been a member of the Magistrates` Association  since my appointment it did not take me long to become disillusioned with that organisation insofar as its effect on me personally or the magistracy in general.  To be sure it had a bit of an ear to government by there being no other body with similar pretensions. Its hierarchy seemed to be populated by those of a similar outlook to the great and the good of Whitehall with whom there seemed to be the cordiality of a  gentleman’s club.  Perhaps St James was a more fitting address than Fitzroy Place where the incumbents would patiently await,  every new year,  recognition in the form of a gong.  However it is just possible that changing events have prompted changed thinking.

J.P.s` ranks have fallen about 20% in less than a decade and with it the income of the M.A. whose membership is about 80% of those eligible.  The penny seems to have dropped that the current top down structural system of  membership has little attraction for potential members.  I blogged  critically on 25^th October of the debate at the M.A. AGM on the taking of the oath in court. Notwithstanding that example there seems to be the possibility under its new chairman that the organisation has finally woken from its torpor and is confident enough to broach topics previously inconceivable.

Chairman      Richard  Monkhouse has opined that having a criminal record is not necessarily an obstacle to being appointed J.P.  Considering that it is estimated that 30% of men have such a record (including cautions) by the age of 30 his position is one of considering our society as it is and not as a place at the end of a yellow brick road.  Indeed a close and highly respected colleague now approaching retirement was disqualified from driving after a conviction for dangerous driving in his late teens.  This he duly declared on his application for the magistracy over thirty years later and good service was done by all in that he was selected. 

Perhaps Mr Monkhouse is finally beginning to realise that the magistracy is very close to being relegated within a decade to a para legal sideshow.  Perhaps this is a way to make contact with a wider audience than would usually be listening to such a spokesman.  Perhaps he is attempting to invigorate an organisation which has been in stasis for decades.  Whatever his motive for this initiative it is probably too little too late to change the course of government intentions but it is a gallant attempt for all that.  

MINORITY REPORT GUIDELINES

With the inevitable expected problems of the Crown Prosecution Service I find it somewhat uplifting when I am allocated to a non CPS court as was the case recently.  Cases are usually well prepared and advocates capable.  Of course being contracted for the purpose as many are the incentives are clear.  Disregard of planning conditions, appeals against council tax liability orders for businesses and saddest of all; failure to ensure school attendance were just a few of the cases we heard and upon which we adjudicated.  Our guidelines were our common sense and the range within which we determined culpability etc.  Such is the way the Sentencing Council is progressing we and more particularly the higher courts are more or less within a tick box culture where everything is assumed predictable and punished accordingly.   “Minority Report” and consequent disposals are nearer than anyone could have foreseen. 

THE HYPOCRISY OF s.146 (ALCOHOL SALES TO CHILDREN)

I joined our Licensing Committee in 2003/4. I have never been called upon to sit as a licensing magistrate. In 2005 licensing matters were transferred to Local Authorities, via the creation of ‘Licensing Authorities’. Many learned individuals and organisations  counseled against such a transfer. Sadly the Jeremiahs have been proved correct. It is hardly coincidental that problems of excessive alcohol consumption have since then become almost a daily feature of the printed media and a common subject for TV programmers. And this is not mere anecdote. Medical statisticians have their own evidence of the increasingly younger age at which liver disease is appearing in patients. The man from planet Mars sitting in any public gallery of any magistrates` court in England and Wales will quickly be appraised of the relationship between criminal activity and alcohol. So in the usual British way belated political so called initiatives, sticking plaster solutions and some shrewd marketing practice are in the news.

Last year the Police Reform and SocialResponsibility Act 2011 became the law of the land.  As far as selling of alcohol is concerned the following are the two main measures designed to reduce the impact of drunken offending and sales to children.

1. Measures to give communities and local authorities greater control over alcohol licensing to tackle problem premises. They will have new powers to restrict premises from selling alcohol late at night if necessary and be able to clamp down harder on premises which persistently sell to children doubling the fine to £20,000.
2. A stronger local influence on licensing decisions by allowing everyone the option to comment on licensing applications: not just those living close to premises, and ensuring health and policing concerns are considered more widely so that the impact of licensing on crime and disorder or public safety can be taken into account.


To put in perspective the first point above, the average fine imposed under s146 [selling alcohol to children] in 2008 was less than £500. I have been unable to source newer statistics. This is a clear example of the politics of hot air. It rises above the cold air of reality until temperatures are equalised and then falls to earth. The other point is remarkably similar to the considerations that magistrates` licensing committees applied before their powers were removed into the welcoming hands of “representatives of the community”. Guidance on under age sales operated by local authorities revolves around test purchases.  Invariably that involves small off license shops being being visited for purchases by children under the watchful control of trading standards officers.  I have never experienced in court or read of a supermarket being prosecuted.  Either they never arouse suspicion or they are too big to be tackled.


The application of sticking plaster is the proposal to set up “drunk tanks” where those jelly legged apologies for thinking beings can be held in safety whilst they sober up rather than clogging up the custody cells in police stations. The Independent Police ComplaintsCommission (IPCC) has made the remarkable discovery that many people suffer from alcohol and/or mental health problems. I would never have guessed……….On second thoughts an analogy with sticking plaster is inappropriate. A complete bodycast seems apposite. There should be an enquiry into why supposed intelligent people in Westminster and Whitehall can consistently support legislative changes that are so obviously [to the common man from Mars] inappropriate for the situation and/or problem under consideration. Of course we will have to wait for the 3rd coming for that…..nobody will believe the 2nd coming if and when it happens. 

The Lancashire Evening Post has a report which demonstrates all too clearly what is wrong with those whose remit is to uphold the law and demonstrate its strength; police, trading standards officers and CPS who are failing in their duties to apply meaningful sanctions to those who flout this legislation. It is only by fining licensees a meaningful amount and enforcing premises closures that s.146 will be observed.  Until then society is hardly even paying lip service to the notion that there is a prohibition on under age drinking.


And shrewd marketing tactics are never far away from the Coca Cola company. It is not unlikely that its BOGOF will arrive at many pubs in time for Christmas as it did last year. That is “Buy 1, get 1 free” provided it`s for the designated driver and the drink is straight Coke. I suppose every little helps. At least that`s what the Transport Department hopes.