IO SONO IN VACANZA

As I`m off to warmer climes tomorrow I hadn`t intended posting today but having been an arch critic of interpretation services at magistrates` courts I thought it appropriate to pass on the latest statistics from the MOJ on the efficiency or otherwise of said services.  So for those statistically minded all the evidence is here.

All being well I hope to return here in a couple of weeks with more observations excessive amounts of Chianti and lasagne permitting.

THOUGHTS AFTER RETIREMENT

It is generally accepted that magistrates` courts came into being in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace. The title Justice of the Peace (J.P.) first appeared in 1361, in the reign of Edward III. As the office was unpaid only those with independent wealth could be appointed.  Until the turn of this century applicants had to declare their political affiliation before their applications would be considered. Prior to 2003 there was a great deal of truly local control of individual magistrates` courts.

With major changes in society since 1997; reduction in crime, increase in out of court disposals, mass immigration, increases in legislation and government`s increasing desire to exercise control,  units of governance increased in size eg many smaller London boroughs were abolished and absorbed into larger entities with populations the size of cities such as Bristol.  Courts were no exception to this big is best philosophy.   With the formation of Her Majesty`s Courts and Tribunals Service in 2011 central government has overall control of the whole courts` process. 

On March 25th I   sat  for the last time as a magistrate.  I did not resign, I was not removed for misconduct; I have been retired because I will be about to reach the biblical standard and compulsory retirement age of three score years and ten.  As an individual who has freely given  one day weekly for each of these seventeen years it will most certainly leave a gap in my life and lifestyle which will not easily be replaced.  But as part of a cohort of baby boomers, currently 55% of my colleagues are over 60 years old, the lay magistracy  is losing its most experienced members many or most of whom are qualified to sit as chairmen in court.  Those in their fifth decade of life make up 28% of J.P.s. The youngest group; the under forties has been fairly constant over the last decade at under 4% of the total.  An organisation which for whatever reason loses or is projected to lose such a high percentage of its most senior members cannot be expected to have a long shelf life.  This brief summary is not about the representative nature of the magistracy.  My concern is that as appointees and the most junior members of the judiciary we are subject to the whim of government.  And that whim hints at the removal of lay magistrates from our courts system as we know it;  a  system of courts unique in the world where lay magistrates have powers of custodial sentencing.

The last fifteen years have seen a gradual erosion of the powers of magistrates` benches over their members and behind the scenes court processes.  Her Majesty`s Courts and Tribunal Service has arguably created powers for itself not envisaged by those who set these changes in motion.  Whilst the number of J.P.s has fallen by almost a third over this period of falling numbers of cases coming to court  the same period has seen the number of full time District Judges sitting alone  rising from below 100 to 139 assisted by 154 part time Deputy District Judges.  The numbers of District Judges (and D.D.J.s)  have increased as a direct result of government policies. It is reasonable to ask oneself why.  It cannot be purely on cost although if their having a qualified legal clerk for assistance were abolished the cost difference would be a close run thing allowing for J.P.s expenses.   It cannot be that increasing court time is required.  The last decade has seen the number of lay magistrates reduced from c30,000 to c 23,000. The only logical conclusion is that by having the lower courts under the control of salaried civil servants they become more amenable to central control.  Those more expert than I in the manipulation of statistics have suggested that converting the Deputies to full time D.J.s would enable a government to remove the lay Justice of the Peace from the criminal court altogether replacing him/her with a single arbiter of law, fact finding and sentencing  thus allowing  full -  on control of the total courts process by civil servants beholden to government for their stipend.   It is virtually beyond argument that this is indeed what happened after the riots of 2011.  I personally experienced pressure from senior officials to send where lawful a  related matter at that time to crown court as District Judges were instructed to do notwithstanding whether or not it had passed the required seriousness test.  My colleagues and I at the time declined such pressure. 

There is no doubt that in their quest to pursue the concept of restorative justice,  the proliferation of out of court disposals, the pressure to reduce custodial sentencing and the virtual balancing of costs between J.P.s and an arguably  more efficient and cost effective professional judiciary there are politicians all too willing to heed the voices of pressure groups to remove the lay magistracy from the courtrooms of England and Wales.   Recent legislative changes, many by the coalition, have seen the resignation of a small number of J.P.s........statistics are impossible to find.  Imposition of taxes unrelated to income termed “victim surcharge” on convicted offenders in addition to costs, fines, community requirements and custodial sentences were greeted with dismay by most of my colleagues.  Newly announced additional such taxation known as the Criminal Court Charge will almost certainly accelerate the philosophical distance between magistrates and government leading  inevitably to resignations especially from the most senior cohort of J.P.s.

I can now write in all honesty that against my previous expectations I am happy to have reached this milestone; the end of my judicial career. However I intend to continue with this blog as long as I think I have something useful to say and there are some who consider it is something useful to read.  

JUSTICE, JURIES AND JURISPRUDENCE

In 2010 there was much attention paid to Lord Judge, Lord Chief Justice and the judiciary`s then main man.  And when he commented on the jury system everybody listened.   But critical comment was………… pianissimo. The good lord had explained his discomfort in that jurors might seek further knowledge from outside the courtroom when considering facts pertaining to a case. In other words they might seek to increase their knowledge by the common man`s most accessible source of information……the internet……. which might offer many things but in general terms is an enormous fantasamagorical library with an indexing system easy enough for Joe Blogs to find in seconds eg the Italian musical term for playing softly. But in the good old days only toffs and so called intellectuals had shelves full of books which contained information that was or could be useful for or of interest to them.  In effect the LCJ was complaining that ignorant jurors trying to fulfil their task were seeking knowledge outside the courtroom which others in their group might already have possessed by virtue of their education, profession, general or specific knowledge or quite simply a higher IQ.

Of course in those days old or good most such folk declined to serve on juries; they were too busy or considered themselves too important to judge their fellow man. Now that`s all changed and everybody……..or is anybody a better description?……..can be chosen for jury service. And that`s the point. There is no consideration of anybody`s intelligence or ability to follow the performance, to appreciate the hurdle “beyond reasonable doubt”, no test to ascertain the limits of anybody`s understanding of the English language or anybody`s capability of balancing the credibility of witnesses or the facility for anybody to comprehend a judge`s summing up. Truly anybody can be a bit thick but then that`s why we have a jury of twelve people who can be anybody. Of course under current attitudes supposedly handed down from Magna Carta and modified for current times peer review by any other term is what determines a defendant`s guilt or innocence.

Lord Justice Moses  also entered this debate. He advocated that trial judges should rule on matters of fact, and juries, instead of weighing all the evidence as at present, should simply be given a list of questions to answer. It is not unreasonable to infer that he was alluding to an inclination that complex argument might be beyond the wit of some jurors. I agree. Members of the legal profession were and are  unlikely to be supportive. They would deny that pecuniary interests serve their opinion. Magistrates at the very bottom of the judicial pecking order are well acquainted with defendants on either way matters selecting jury trial over summary trial; they consider that they are more likely to be acquitted…..a statistic which is open to question. With crown court legal aid rates higher than those at the lower court to dismiss legal pecuniary interest out of hand in court matters would be presumptive in my opinion. Universal jury service is now an outmoded concept and sooner or later a senior member of the judiciary, probably after retirement, will step into the public arena and say so. This is not to say I am advocating judge[s] only courts……I am against the practice of single District Judges acting in trials as both judge and jury. I am suggesting that the concept of juries now constituted is not an 11th commandment notwithstanding the recent paper Are Juries Fair?    Another interesting paper taking a wide historical perspective is A Historical and Comparative Perspective on the Common Law Jury .

To bring the arguments forward five years, today`s Times behind its paywall

reports that the outgoing government`s dying spasms included the Criminal Justice and Courts Act and  amongst other iniquitous features of that Act it makes it incumbent upon judges to investigate during trials the possibility of jury misconduct.  The question will be for the new government as to how much criticism by the judiciary it will take to make amendments and for the judiciary how much it can be seen to oppose parliament.