THE SUN IS OK FOR SOME

A provocative headline in this week`s "The Lawyer".  I`d bet that few of those hard working souls were primarilly working in the magistrates` courts.  Those folk probably couldn`t afford to take a holiday and yet they were the ones possibly most in need of two weeks ultra violet and a gallon of Stella.

UNDULY LENIENT SENTENCES

I have to admit in my arrogance that I thought I had  been aware of most of the statistics published on disposals for various offences etc. etc.  Some were  difficult to source, some statistics ceased to be collected and some eg assaults in a domestic context or the numbers of unrepresented defendants are not collected.  But the details published yesterday on  unduly lenient sentences were a revelation.  I make no observations but leave that to readers.

MAGISTRATES ASSOCIATION IS NOT FIT FOR PURPOSE

It seems that the Magistrates Association once again is following a path that would probably have had its own members scratching their heads in wonderment had there been so much as a nod as to what was happening on their behalf.  If there is one topic that almost certainly has more agreement amongst J.P.s than any other it is that of the reducing catagories of those defendants at Magistrates` Courts  and participants at others entitled to legal aid.  Indeed that facility is likely to be further reduced by this government`s stated intention to restrict funding for  criminal solicitors who provide most of the service and therefore reduce further how many undertake the work.  So logically it would seem that when the M.A. wished to appoint a Co-Chairman of the All-Party Parliamentary Group for the Magistracy, alongside MA member and Labour peer Lord Ponsonby of Shulbrede it would seek from the newly elected members of the House of Commons a member who would sympathise with this core tenet at least. However in its wisdom it has appointed Lincoln M.P. Karl McCartney J.P.  It would seem that he is one J.P. who  excludes himself from the majority opinion of his colleagues as mentioned above. His voting record shows where his sympathies lie.  My question today is why such a person so out of tune with the the policy of the M.A. such as it is has been asked to fill such a role.  As a matter of futher interest on the M.A.s obfuscation of a website I used its search facility to find "legal aid"; not a single source was found.  This organisation is unfit for pupose and should die its death and be reborn as one fit for its members.

WALES GOES ITS OWN WAY

Many years ago there was a popular T.V. comedy entitled "Never mind the quality, feel the width", featuring the goings on at a tailoring establishment.  That title has entered into the English language as a euphemism for quantity over quality.  The decimation of the numbers of quality warranted police officers over the last few years  is now being countered by efforts to increase  the quantities of lowly qualified PCSOs in Wales  Of course official spin tells a different story.  We`ve been here before.  Assistants to teachers originally hired to assist treachers in preparatory work now "teach" children.  Nursing assistants now undertake basic nursing and more.  Readers will have their own examples.  By all accounts the Labour controlled NHS in Wales is considerable less efficient  than in England. The Welsh can`t complain; it`s called devolution. Perhaps instead of moving the goal posts politicians at all levels will learn one day to tell the public who pay their wages the truth, maybe not the whole truth but certainly nothing but the truth.

COULD J.P.s TAKE DIRECT ACTION FOR JUSTICE?

The camel`s legal back is near to breaking point.  Barristers have made their point by witholding their labour. Criminal solicitors are deciding whether they too need to take action.  All those involved in the daily comings and goings in the magistrates` courts are only too aware of the increasing numbers of unrepresented defendants such people necessitating increasing amounts of court time so that it is certain that justice is being served.  It is true to say that there is a strong possibility that innocent people in court on low level charges are pleading guilty "to get it over with".  The government has no idea of how many defendants are being subject to erroneous results whether for the aforementioned reason or their receiving inadequate assistance to present their cases.  

Of all people Justices of the Peace are the ideal group within the whole legal jungle able to make the point that we are in danger of going beyond the point of no return in our ability as a nation to guarantee justice for all; from the high born to the peasant.  J.P.s are unpaid volunteers usually idealistic in their view of the concept of justice.  Apart from the few who seek appointment purely for their idea of the kudos the appointment might give them in their business life J.P.s  are honourable folk seeking to be of use in the fair treatment of their fellow citizens.  If even a single bench at an extraordinary or  annual meeting proposed for debate "This bench is in favour of non attendance of its members on a designated date within the next three months to express its belief that our ancient concept of equal justice for all is being eroded by government policy" it would make world wide news.  But more importantly it would indicate to the senior judiciary that its junior ranks cannot be intimidated.  It is my opinion that there is no long term future for the magistracy in its current form, i.e. presiding over a courtroom on equal terms with the professional judiciary so there is little to lose. However I live in the real world and my bottom dollar knows there is more chance of hell freezing over. 

THIRD TIME AND STILL LUCKY

I must have sat on hundreds if not thousands of cases of no insurance often coupled with driving not according to a license and/or no MOT.  I cannot recall a single occasion when an offender`s third conviction for no insurance did not result in immediate disqualification.  But then I`m not a District Judge giving her one final chance.

SNOOPERS` CHARTER//EXCUSING THE INEXCUSABLE

I would guess that most readers who are gracious enough to give me an hour of their time when they access this site (25%) and others just passing through are to some degree political animals and their political antenae are likely to be quivering at the event horizon between privacy and security.  The fangs available to the so called snoopers` charter have been called into question by the report of David Anderson QC.  An interesting piece of information in The Times behind its paywall reveals that "Home Secretary Theresa May personally authorised 2,345 interception warrants last year".  That equates to nine every working day.  J.P.s and others will be only too aware of how long it takes to approve or reject a simple search warrant under the latest rules. Reading the information, questioning the applicant and formulating reasons for granting or rejecting such a document rarely takes less than 15 minutes. It is just not credible that Mrs May can personally apply the time and consideration required to adequately assess matters of suspected terrorist or dangerous criminal activity.  Her minions will have made the decisions prior to requesting her signature.  This is reminiscent of the Stasi.  The film "Lives of Others" should be compulsory viewing for D.Cameron and others.  Apparently he and the Whitehall cohort amongst other considerations "are also concerned  about the availability of judges to authorise warrants in the middle of the night in an emergency"...(The Times today 12/6/2015 behind its paywall.)  I have rarely read such  pathetic rubbish even from Whitehall weasels;  people attempting to excuse the inexcusable.

If ever there was a time, convention or no convention, when senior judiciary should be making clear their position this is it. Perhaps they are behind closed doors.  I suppose we will know the results before too long. 

MAN`S BEST FRIEND

Probably not commonly known is the fact that magistrates can impose the death penalty.  Those canines which receive such a penalty most certainly deserve it because dog lovers or not I`m sure most  J.P.s have  in the back of their minds that properly trained and well homed dogs are unlikely to be so dangerous and that humans have been at least partly responsible for such an animal`s unacceptable actions.  The 1991 Act was a dog`s breakfast of legislation and new powers introduced last year should allow more appropriate disposals.  Meanwhile latest figures on prosecutions provided by the government are available here and here.

OBFUSCATION BY ASSOCIATION

I make no apology for returning to criticism of the Magistrates Association.  The Criminal Courts Charge is nothing short of a legal abomination.  It was introduced as part of a philosophy forced  upon  the previous government in its search for financial cuts which left inter alia the NHS "free at the point of service" and overseas aid to remain at 0.7% of GNP.  It introduced the principle already forced upon civil courts of trying to make justice pay for itself overturning a long cherished tradition that alongside defence it is a pillar of a democracy which must only be funded by the state.  The chairman of the M.A. in a letter for members *copied below,  refers obliquely to this charge as to whether it has "negatively effected the administration of the law and justice"  in his quest for members` responses.

Administration (noun)    The process or activity of running a business, organization, etc.

Effect  (verb)    cause (something) to happen; bring about

It would seem therefore that he is asking magistrates to answer a question which is completely "off topic".  The charge  blatantly does not affect administration as above defined; it affects the ability to pay without means testing of those found guilty. Perhaps the question was phrased deliberately in this form to elicit particular forms of reply or perhaps it was phrased thus owing to simple incompetence of the writer.  Either way, apart from the writer`s confusion between affect and effect  it is just another example of obfuscation by the Magistrates Association. 

*

 

LAWS SHOULD BE APPLIED EQUALLY TO ALL ETHNIC GROUPS

Being of a generation that, when much younger,  didn`t have the money, the opportunity or a big desire to sojourn through far flung exotic parts of this world I really have little sympathy with a proportion of a current generation of travellers that appears to ignore, have little knowledge of or fails to observe local mores and customs of those who follow traditions unfamiliar to westerners.  Such appears to be the case of the mountain strippers.  However ludicrous it might seem to us if an area`s native people believe in causes and effects which are akin in our eyes  to medieval witchcraft it would seem wise to bear such considerations in mind before acting in a manner which insults those beliefs. Having acres of flesh visible on a beach on the Riviera does not allow the wearing of bikinis or budgie smugglers on the Promenade des Anglais.  However wisdom per se is not a function of youth but it should be a pre requisite  of High Court judges except it appears to be absent in the reasoniong of  High Court Judge Mrs Justice Pauffley.  She was prepared to allow for the Indian cultural heritage of a father to be considered in a case related to his abuse of his child. So there we have it; the law can be applied according to the culture of the law breaker........precisely the same kind of disjointed reasoning as allowed the abomination of child abuse by men of Pakistani origin in so many northern towns to continue for years after the knowledge of such crimes was known to police and child protection agencies.  During my time on the bench similar attitudes were occasionally expressed by some colleagues after listening to the pleas of a defence advocate.  Thankfully such views never became a majority on any case in which I was involved.  But I do wonder sometimes........................

MISREPRESENTATION AT THE MAGISTRATES ASSOCIATION

Last week I commented once again unfavourably about the goings on at the Magistrates Association. Now and again whilst I was a member I really didn`t give the subject a great deal of my time or attention.  I believe that that attitude of mine is echoed throughout J.P. benches across the country.  To quote from one of the very few items easily sourced from the ram shackle website of said organisation:-

"The Magistrates’ Association aims to represent the views of its members when developing policy or responding to consultation documents. Clearly, with so many members it is impossible to consult everybody and so, in common with similar bodies, the Magistrates' Association forms policy through the Council and its standing committees. The Council comprises representatives - branch council members - from each of the 58 local branches throughout England and Wales. Branch council members are appointed for terms of one year and meetings are held twice a year in May and December."

The largest trade union elects its council according to the following mode of representation as per its website:-
 

"UNISON branches are grouped into 12 regions which cover the UK. Each region has its own head office and a regional council made up of delegates from all branches in the region. As a union member you have the right to vote in elections to decide who sits on these committees and structures. You also have the right to stand for election to any of these bodies, at branch, regional or national level. All UNISON elections are governed by the principles of "proportionality and fair representation". This means the make-up all elected bodies in the union must represent the make-up of the membership – so you will often find some seats on committees etc. reserved for women or low-paid members, for instance, to make sure this happens."

 

Nowhere in Unison`s website was there any reference I could find on on line voting. The surest and simplest way to ensure a high turn out and a truly representative result when about 70% of the  adult population own a smartphone is to institute on line voting but that would not suit these two orgaisations.  They thrive on the lethargy of the majority of members thus allowing activists to pursue their own agendas.  It was precisely this lethargy and to a lesser degree intimidation which caused the collapse of the British car industry in the 1970s.  It was responsible for extreme left wing groups  taking over Liverpool, Lambeth and Islington councils around the same time.  It is certainly reponsible for the failure of the M.A. to follow its own doctrine of consultation highlighted above. In the not unlikely event of future scandals  involving a community rehabilitation company which has benefited the M.A. to the tune of £10,000 those responsible will wriggle and wiggle but not swallow the blame. If the M.A. wanted to truly represent its members its new website would have had within it a feature for on line voting and surveys for its total membership.  Only under such a circumstance would it be able to truly reflect members views and opinions.  Perhaps that`s why there is little likelihood of such a transformation in M.A. voting processes.  After all it took centuries for the abolition of rotten boroughs in England.

HAVE WE HAD ENOUGH OF POLICE AND CRIME COMMISSIONERS?

The installation by local election of Police and Crime Commissioners was supposed to be one of Theresa May`s brighter ideas within the Coalition.  With many instances of incompetence, wrong doing, lying and general malfeasance within their ranks it seems that she is trying to do her best off the back foot.  The latest example of a PCC being shown as an ignorant bully and a liar from his position in Humberside can be read here.  Whilst there initially might have been an underlying argument to install a single individual in place of a local committee to oversee policing the results so far are a justification for the whole process to be re-assessed.

INNOCENT UNTIL PROVED GUILTY/TIME FOR A CHANGE?

It used to be axiomatic; a defendant was innocent until proved guilty. It seems this pillar of British justice has some cracks within it.  The difficulty in some cases of achieving levels of proof in this regard until relatively recently persuaded police that getting suspects to "fess up" was the way to secure conviction.  It is to be hoped that with current safeguards this habit has died a well deserved death. However the ever increasing cacophony of "the victim must be the centre of our justice system" emanating from myriad sources is liable to lead to just as many miscarriages of justice as ever perpetrated by police.  An early sign of this perverted philosophy was the argument that if most European countries can do it why not the U.K.?  And the "it" was to place guilt upon the motorist in any collision with a cyclist until such time as it was shown that said motorist was blameless.  Indeed it was only yesterday as I was driving down a local street, cars parked on both sides, when I had to sound my horn to warn a cyclist ahead of me, earphones in place, who was cycling well over the halfway line in the road.   And to further my point of view a hundred yards further on a family of adult and two teenagers was cycling  towards  me on the wrong side of the street.  The suggestions in Scotland are concerned with action in the civil court not in criminal cases but the words "wedge, thin, edge" come to mind. 

The crime of rape is horrendous.  The perversion of a pleasurable natural function to an act of hate and misogyny can arguably be considered in the criminal court as a matter of opinion.  There are rarely any independant witnesses.  Consequently there has been considerable legal argument as to where the height of the hurdle of guilty beyond reasonable doubt should be     placed. Contrary to many loaded analyses, convictions are over 60% which compares well with other indictable offences. But megaphone arguments of what could be termed the victim lobby seek much more.  Pressure is building for guilty until proven innocent when certain considerations are before the court. Primarily that is the issue of consent.  This post is not about the detail but about the underlying philosophy and for what it might mean for British justice. We have seen over the last year or so the witch hunt which began with Leveson.  Apart from burning at the stake the search for heretics be they sexual deviants or those who operate a free press is being propelled by a similar hysteria.  This does not augur  well for the lowly citizen when and if in contest with the almighty state.  


ADDENDUM

As if to prove a point, earlier today in the High Court two long serving prisoners were ordered to be released because their convictions were considered unsafe but were denied their claims for compensation because after a ruling by Chris Grayling on such matters, "A person who has been wrongfully convicted can now only get a payout if it is proved beyond reasonable doubt they had not committed the offence."  And we all know how easy and simple it is to prove a negative; don`t we?

FORCES AND OBJECTS

The major political parties were truly glad that matters relating to this country`s foreign policies were totally ignored by commentators.  All that is except immigration whilst that is only a result of our losing the abilities to govern ourselves which is the mammoth in the political room.  It is to be hoped that the forthcoming referendum will illuminate the underlying root of our relationship with the E.U. and not merely those examples which make the headlines. 

With American security services climbing the wall over recent happenings in the Senate we too are approaching a crunch in the argument of individual freedom and freedom from terrorism exemplified perhaps by the fact that the organisation Cage  argued by some as an apologist for terrorist activity, is seeking judicial review against the Charities Commission.   This government like its predecessor  tries to shift the security curtain to landlords and employers because of its own inadequacies.  The irrestible force and the immoveable object come to mind.

DAVID DAVIS M.P. HOOKS HIS SLING

Capita plc the outsourcing megalith which collects license money for BBC and is probably hard at it behind the scenes lobbying against any attempts to decriminalise non payment of such despite protestations from BBC bigwigs is also the company that collects council tax for many boroughs including my own.  Recently I received a form for me to sign confirming the number of people at my property eligible to be counted for said tax.  There was a space below my address which asked for my trelephone number and e mail address so that I might be subject to a telephone survey.  I returned the form leaving the space empty.  This is just another example of such bodies collecting information to which they are not entitled but how many will feel comfortable not answering in the required format?  

All of which leaves me bemused by the arch libertarian and Eurosceptic David Davis M.P.`s  opposition to the so called "snoopers` charter" yet also opposing the government`s aim to withdraw from the European Court of Human Rights.  Would we be in a better place had he won the Tory leadership contest against  another David a decade ago?
 

PRIVILEGED

From time to time and too often IMHO we read of celebrities, politicians, sportsmen and women etc seeking to persuade magistrates that their particular and often privileged positions offer them sufficient reason why they should be acquitted of offending in driving matters.  It leaves a bad taste in this blogger`s mouth when somebody of such status seeks preferred treatment in our courts. In the dock at Wimbledon Magistrates` Court  Conservative peer Lord Trefgarne`s  excuses for speeding based upon his supposed medical condition and his position as a member of the House of Lords were rejected and he was duly disqualified from driving.  At £300/day attendance allowance he can afford taxis.

ANDY COULSON ACQUITTED IN EDINBURGH

The trial was held in Edinburgh so coverage in England has been scant but its history and participants go back some years.  I commented in 2011 on a by product of the original case which led to the current proceedings just concluded.  The judge`s comments will be regarded carefully by lawyers north and south of the border.

MAGISTRATES ASSOCIATION WITH CRCs

Public and private finance or similar phrases are a common feature of our social and political discourse. Such phrases can indicate a social and political minefield the most commonly quoted being our national religion; the NHS. When large sums of money flow from recipient of business  to provider there will inevitably be the question of a quid pro pro.  The world`s  media booked their tickets to Zurich last week for just such a situation.  In this regard the financial goings on at the Magistrates Association however apparently laudable cannot be glossed over.  Yet it seems that glossing with a fine coat of the best obfuscacious  paint is just what appears to be the case.  That organisation has lost about a third of its members and consequently substantial income over the last decade.  It is an organisation which if it were founded tomorrow from scratch would not bear any resemblance to its current form. Historically it has been run by well meaning individuals with their own agenda often including the hope  of a gong for meritorious service to the community.  About eight years ago there appeared to be a willingness to allow some light to shine where before darkness reigned and an on line members only forum attached to its website  was established to allow on line discourse, debate and discussion limited only by respected colleagues who moderated where occasionally required. Earlier this year the M.A. in somebody`s wisdom revamped an already  navigationally impossible website, abolished the forum and made it virtually impossible to source many of the thousands of items  probably hidden away somewhere in its archives.  Considering the costs involved for web re-design such actions could not have been an accident.  And one factor where the shrouding of information might be of significance is that of the M.A.`s seeking additional income by inviting "affiliates" to buy into its activities. These currently comprise five Community Rehabilitation Companies (CRC's). According to the April-May edition of its house magazine:- 

"The end of January management accounts show a year-to-date deficit of £21,100. This is largely due to expenditure on the new MA website, which has now been launched and is evident across this edition of the MAGISTRATE. Membership income and associated gift aid is marginally ahead of budget, but with the continuing decline in membership, due to the continuing fall in the number of magistrates, other income streams are being developed" {my italics}

In the same issue the chairman writes:-

"Some may be nervous about our engagement with political stakeholders, opinion-makers and the media. But it is important not to lose sight of the fact that when we do this, we do so as spokespeople for a nationally respected charity, not as individual holders of judicial office; the two roles are separate. It is, of course, a delicate operation and it is important that the MA is seen – at all times – to be exactly what it is: a non-partisan, independent national charity in the criminal justice field. Our slogan has been for some time ‘the independent voice of the magistracy’".

These monies received will apparently pay so we are told  for commissioned research.  In the same issue was  published the following:-


"CRCs are often conglomerations of different service providers with experience of addressing different criminogenic factors in the lives of offenders. The Senior Presiding Judge has issued guidance about liaison between providers of probation services and sentencers, emphasising that it is the NPS who have that responsibility". 

The current edition of the magazine contains the following statement on behalf of the M.A.:-
 
"so we can make comparisons at a later stage, and we would like to be able to present views to other interested parties with a greater understanding of how our members feel about developments. Responses would be very much appreciated." {my italics}

It begs the question as to why such a major and  controversial policy was not put to the membership before  its initiation. It might transpire that the tail of a CRC will wag the dog providing research.  Of equal or greater importance is the possibility not just of conflict of interest but contagion.  It is not unlikely that sooner or later some form of bad publicity will surround one of these CRCs. The M.A.`s reliance on a probation provider to keep its book balanced is not odour free.  It stinks.

When representative organisations, and of course the M.A. is a registered charity, cannot fund their expenditure from their own or members` resources they enter that minefield when they go cap in hand to those who might conceivably benefit from the closeness of their association and for whom they provide business. The first call should have been on members to seek a membership fee increase.  This latest "venture" reinforces the correctness of my and hundreds of other decisions to leave the M.A. in the last decade

HARMONY INCLUDES ENCOMPASSING DIFFERENCE

Recent activities within the ultra Orthodox Jewish Belz sect would not normally warrant national news coverage or a mention in this blog.  It is a miniscule minority within a minority of observant Jews who arguably are a minority of  this country`s Jewish population of 263,000.  The advisory letter regarding mothers who drive their children to school draws immediate comparison with the rules enforced by the Wahabi interpretation of Islam as practised in Saudi Arabia where women are forbidden to drive. Indeed it is likely that if  similar "advice" were given by governors of a Moslem school the headlines would be much more strident.  Even allowing  for those Jews who live a ghetto style life in this country  it must be a disturbing event to their co-religionists who have a large variety of institutions to cater for their varying levels of religious devotion.  Perhaps if  Islam could cater for the very same differences in observance that Christianity also offers disharmony would be less likely to occur within our society.

Section 4A religiously aggravated  of The Public Order Act is defined as religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress.  Apparently calling two Muslim men “terrorists with guns in their pockets” constituted the offence committed by a 65 year old  female pensioner of previous good character. Notwithstanding the fact that the group to which the offender was apparently affiliated would arguably appear to be of a non denominational messianic variety which holds the Jewish people and the Land of Israel as crucial in the Second Coming (a common belief amongst many on the right wing of the Republican Party in America)  the basis of a finding of guilt might be on shaky ground.  If the lady involved does indeed go to appeal the result will be of some interest.

The murders committed by Islamists  in Paris and Toulouse  France  of Jews simply for being Jews is a warning to all of us that we in this country are not immune from the 2000 year old virus.  Activities such as those described above do not IMHO assist those within Moslem communities here who strive to live in harmony with their monotheist and atheistic co citizens.

A VERY NAUGHTY BOY

Reading this report and accepting such limitations to my knowledge of the particular case I can only wonder why former colleagues allowed this fellow to retain a license to drive. Perhaps they were under the impression that the Sword of Damacles approach would act as a deterrent.  The public in North Devon I would suggest might not be so generous.