PROBLEM SOLVING COURTS AND FURTHER THOUGHTS

"British magistrates are, in principle, in favour of the “problem-solving” initiative [my highlight] but caution that it should not result in cases that “need to go to court” avoiding trial. Malcolm Richardson, chairman of the Magistrates Association which represents magistrates in England and Wales, said: “We believe problem-solving approaches show great potential, especially in addressing the causes of offending behaviour with a view to stopping reoffending."

The above is a quote by Malcolm Richardson chairman of the Magistrates Association commenting on another proposal from America. From which  analysis of magistrates` opinions he can make such assertions I know not.  On 7th December I posted critical comments on this so called initiative from the USA.  Whilst I am a great admirer of that nation and its people, apart from wispy haired billionaires with mouths wider than the Grand Canyon, the ever admiring justice ministers who return from its shores with great new ideas are a source of mystery to me.  Prisons, sentencing, probation etc have all been supposedly informed by practices in America. It would appear that Michael Gove and his advisors have been hypnotised by yet another American justice process.  Perhaps the esteemed transatlantic visitor does not realise that our 19,000 magistrates are volunteers required to offer only 26 half days yearly spread over adult, youth and family court.  I am not the only J.P. past or present who considers that, particularly for court chairmen, that requirement is too few to attain and retain competence in the management of a court. Of more import, however, is the proposed function itself.  To become enhanced social workers instead of finders of fact and sentencers would be a change too many for many existing and aspiring Justices of the Peace.   Indeed such a fundamental change in our courtrooms would lead to yet more Deputy District Judges (M.C.) being appointed and a further diminution of magistrates` functions.


Once again magistrates are in danger of being led by the nose to surrender their primary function; to manage the court, to be finders of fact and to sentence the offender when required.

CHRISTMAS MUSINGS

Before settling down to a few days indulgence a couple of news items recently caught my attention.  This one concerning the antics of a failed asylum seeker is a perfect example of our failed "immigration" control organisation.  It feeds arguments over the European Court of Human Rights and its replacement by a similar court responsible only to British jurisdiction.  Cases such as this are sure to occupy more headlines in all media as we approach the referendum on the European Union.

The  hundreds of years of  war, strife and internecine violence in Ireland pre 1923 and in Northern Ireland subsequently will be forensically analysed by historians for centuries to come.  For many of those separated by the Irish Sea from these events  they might as well have taken place on the moon. But for the inhabitants of that island tribal history reaches back eons. For me a headline last week in the Irish Post brought back its own memories.  During my professional life about thirty five years ago I was consulted by a tall well built man with a London accent.  Nothing unusual in that description except that during our conversation he remarked in an aside almost casually that he was a member of the Parachute Regiment who was involved in the shootings on Bloody Sunday.  That was it.  A few sentences spoken in about ten or fifteen seconds and we were back discussing his prime reason for consulting me.  Some things are embedded in our long term memories. We just don`t know at the time. 

Thank you to my readers for gifting me your precious minutes reading these posts from time to time. "Merry" is a very English description of a state of being.  Have a very merry Christmas and if driving north of the border bear in mind the  wise and canny Scots have lowered the drink driving limit. 

TO ARM THE POLICE WHEN POLICE KILLING VERDICTS INDICATE SUPER EFFICIENCY OR OBFUSCATION

In 1936 only on the authorisation of a sergeant with good reasons could police officers be issued with a firearm.  Since that time of course authorisation has been tightened.  A recent survey of unknown origin or accuracy indicated that the vast majority of police officers do not wish to be routinely armed. To my knowledge no such survey has ever produced a different result.  But the consequences of this are not necessarily in line with what the public wants.    This most important aspect of our overall justice system is coming under increasing strains and all in just a few weeks. The conclusions  provided by the recent  inquest into the shooting dead of Mark Duggan, namely that he was lawfully killed, have offered as many questions as answers. Last month after the Paris massacres the Met Chief pleaded to be allowed to train and appoint more armed officers in London. Less than two weeks ago an apparently unarmed man was shot dead by police in Wood Green.  In a rare action  the shooter has been arrested by the Independent Police Complaints Commission and interviewed under caution. This has provoked considerable anger from a former Met Police Commissioner who was quickly elevated to the House of Lords upon his retirement.  Current Met Chief Sir Bernard Hogan-Howe is also none too happy at the actions of the IPCC whose 2014 document Deaths During or Following Police Contact 2013/14 offers interesting numbers when compared to the number of those police officers actually convicted.  Like many such comparisons there appear to be two general conclusions:- our police are super efficient in their use of lethal force or there is bias and obfuscation on a grand scale.

THREE ANONYMOUS DEFENDANTS AND THE WALLS OF JERICHO

On November 9th I posted on three defendants in a high profile case of public disorder being given unconditional bail despite their refusal to reveal their names or addresses.  Indeed a trial date had been set after their not guilty pleas.  It is not all that often that I am in 100% agreement with comments offered by the Daily Mail but in this matter I agree 110%.  The decision is an affront to justice.  The CPS under its current boss Allison Saunders  has come under severe criticism recently here and elsewhere.  After the death at the weekend of Lord Janner who was suspected of child abuse she will have to decide whether the trial of facts in his case will go ahead as scheduled.  She will be damned if it does and damned if it doesn`t.  She  has lost all credibility.  She should go whilst she can still summon some dignity and allow an outsider to cleanse the stables. 

The walls of Jericho did not suddenly tumble at the first sound of Joshua`s trumpets.  The initial vibrations caused minuscule crumbling of the lower reaches of the structure where there were minute weaknesses in its stability.  They were imperceptible at first. It was the continuous application of the trumpet blasts that eventually were of such resonance that when the eventual collapse happened it was all over fairly quickly just like the sinking of the Titanic.  The institutions of a state are not dissimilar.  A once homogeneous society is now described as multi ethnic. An island nation in north west Europe is now part of the "European Project".  I offer no opinions there but I castigate those in power who realised full well when the regulations and law were adapted to allow  such to happen that our society would be forever altered and yet such predictions were withheld from the general public being realised only by the few who could read the runes.

The recent history of the CPS, the political football being played with and by the police, inappropriate influences within education,  the increasing and uncontrolled power of the executive and the Bolshevik manoeuvring of the left wing shadows behind Her Majesty`s Loyal Opposition are akin to the crumbling dust at Jericho.

THE LAW OR JUST ANOTHER OPINION?

It is not very often that a Court of Appeal decision is of legal interest to Justices of the Peace although there have been and probably will be occasions when decisions have been of intellectual interest.

Earlier this week  an appeal against a decision to remit the criminal courts charge at Inner London Crown Court  was heard.  The report in Law Society Gazette is available here.

DPP IS OUT OF TOUCH

Any regular attender at any magistrates` court over the last decade would have been able to testify to the sheer absurdity of time wasted because of the declining efficiency of the CPS.  After all an employer can`t reduce its workforce by 10%, employ lower qualified lower grade employees to substitute in addition to agency locums and not expect to face substantial difficulties.  Most people including parliamentarians are rarely interested in the justice process so it was interesting to see the DPP criticised by an M.P.  She certainly won`t go down in history to be described as outstanding as arguably were one or two of her predecessors.

JUDGES WASH THEIR HANDS

I have blogged extensively of my belief that in effect within Whitehall in a securely locked safe there is an outline document describing the phasing out of Justices of the Peace within the magistrates` courts system as now constituted.  In conjunction with HMCTS, pre determined analyses, so called consultations and the nod from the senior judiciary the way seems to being cleared for District Judges to take over and eventually usurp the functions of the lay magistracy for all but the most minor offences these being confined to a spurious system of local or neighbourhood panels. The continuing recruitment of Deputy District Judges(MC) to sit for a minimum number of sittings annually on a daily fixed fee is just the beginning of this process. 

There are 139 full time District Judges (M.C.) and 154 D.D.J.s. Ostensibly this is being trumpeted to speed up trial delays. The authorities have denied that court closures have been responsible for such delays. This is akin to saying that a shortage of bread for sale does not push up the price of what bread is available.  There is no shortage of J.P.s in England. They are available to sit when requested and no court will be underused by their inactivity. They are now, as when I was sitting,  under active because the whole courts system is being steered to increasing numbers of courts being taken by District Judges(MC) sitting alone. We can be 100% certain that more reports will be issued concerning courts all over the country. Unless some senior judges who are seemingly so proud of our jury system make known their objections to a single judge sitting on criminal trials that is precisely where we are heading. On the other hand perhaps those self same judges have been paying only lip service to their admiration of the lay magistracy and when it comes to the crunch will wash their hands of it not daring to lift a finger in its defence preferring to keep out of what they define as the  political arena.The example of their public silence over the criminal courts charge until pressure from others was overwhelming serves as an example.

DRINK DRIVING STATISTICS/YOU PAYS YOUR MONEY AND MAKES YOUR CHOICE

I have previously commented here on the unreliability of police and/or crime statistics. This does not make me a unique observer.  The scepticism in general over official statistics from immigration to sugar consumption has led to many becoming deaf to hard facts and thus allowing their opinions to be fed by prejudice. Approaching Christmas and the new year drink driving figures are of particular interest especially now that Scotland has its own reduced level of alcohol permitted for drivers: 50 mg. of alcohol per 100 millilitres of blood.  This is in contrast to the limit in England and Wales where the limit is 80 mg. So digging up some numbers and comments on the effects or otherwise of this differential are curious.  Of course the extent to which police pursue such potential law breakers in various areas is the great unknown.  However accepting this anomaly some incongruity is shown in the following analyses.

A recent publication by the Scottish government available here in full has the following conclusion:-  "The Scottish Government and Road Safety Scotland (part of Transport Scotland), today (16 June 2015) released new Police Scotland statistics which show one in 40 drivers stopped in the past fortnight were over the legal drink drive limit. The figure applies to drivers stopped and breathalysed between 29 May – 12 June 2015, the first two weeks of the 2015 Summer Drink Drive campaign. This is an increase compared with 2014, when one driver in every 55 stopped was found to be over the limit. Following the introduction of Scotland’s new lower drink drive limit on 5 December 2014, even just one drink could now put a driver over the limit." 

In contrast the Independent reported,  "The introduction of a lower drink-drive limit in Scotland has had virtually no impact on the rates of offending, police statistics have revealed."

While AOL newsite reports that it is the Welsh who are the worst offenders but otherwise offending has reduced.

So what is the reality?  You pays your money and makes your choice.

THEY HAVEN`T A CLUEDO

Sometimes it`s the small stories, perhaps the little read local stories that indicate more accurately than headline news where we`re going  as a country with regard to law and order.  Below are three such snippets.

Speed awareness courses are run by the local constabulary offering particular offenders the paid for opportunity to avoid three points on their license.  Even with a money making scheme like this it does offer those successfully completing the exercise an equal opportunity for rich and poor alike to buy their way out of three penalty points. I`m sure the Labour leader would approve of such a philosophy. 

It has now been established by those in horsehair headcovering that racially aggravated doesn`t quite mean racially aggravated. Irish, Scots, Welsh and in the New Year at Somerset Magistrates` Court Polish will be the context of the evidence of a racially aggravated offence.  This is a classic example of the law acting like a giant amoeba moving ever so slowly absorbing all in its path.  The extended criteria of what constitutes domestic violence is another example. From the House of Commons Library note 10/02/2015   SN/HA/6337

The new definition of domestic violence now reads:
Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
 psychological
 physical
 sexual
 financial
 emotional
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”
This definition, which is not a legal definition, includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.11

 And finally  Cambridgeshire Police are looking for amateur unpaid detectives. Where are you Professor Plum, Colonel Mustard and Miss Scarlett?

ACCIDENTAL RAPE

We`ve all had to listen in silence and with poker faces to outlandish excuses from those who have come before us.  One that stands out in my mind was the cab driver accused of using a mobile phone who told us it was on medical advice he should use it to massage his cheek muscle to alleviate the facial effects of Bell`s Palsy.   He was convicted.  However at a much more serious level this defence is hard to beat for sheer audacity. 

ADDENDUM  16the December 2015

The accused was acquitted!!!!!!!!!

MICHAEL GOVE`S CHRISTMAS OLIVE BRANCH TO MAGISTRATES

Much has been made of the estimated fifty magistrates who resigned earlier this year in protest against the imposition of the criminal courts charge.  Indeed I ceased sitting some weeks before I was officially given the boot so that I would not have the dubious privilege of having to actually make the pronouncement of that iniquitous charge. It was in his address to the Magistrates Association on the 3rd December  that Mr Gove declared the impending death of that charge. But perhaps as an after thought, yesterday in the House of Commons he announced a welcome back for those Justices of the Peace who had resigned  and who would now wish to return to the bench.  This is an unprecedented action.  It will be interesting to see just how many accept in the spirit of Christmas his offer of the judicial olive branch.

CAN WE TRUST JUDGES?

Very occasionally this blog has commented upon the idiosyncratic nature of a judge`s sentencing or comments at the crown court.  But when such a judge is reported by two newspapers serving the same locality on two different cases in one day it is worth noting.

It would seem to me that Judge David Ticehurst was putting his own preferences ahead of the public interest.  In this matter of burglary the non imposition of even custody suspended was a travesty.  His closing remarks reported as, "I'm giving you a chance. Turn your life round. Get back on track. Don't get back to your old ways. You're not a very good burglar anyway because you get caught." seem to belong to another age. The good judge`s apparent benevolence that day took his idiosyncrasy a little bit further along a path of irrationality that veered to the downright inappropriate when he advised an offender how to avoid the criminal courts charge.

Now  the whole legal profession particularly judges at all levels are expressing their satisfaction that the criminal courts charge is being discontinued.  Where were they all early this year when magistrates individually, on line and organisationally were expressing their views that the charge was in principle unsupportable and a carbuncle on the face of justice?  They were as silent as the grave at least in public. Shame on all of them especially when there are apparently cogent arguments re the substitution of a British bill of human rights for its European equivalent. How much faith can be placed in their hands to be an adequate replacement? Trust is built like a house......with a foundation upon which brick by brick and piece by piece  it is strong enough to withstand the many forces nature sends against it. In short; can the ordinary citizen with eg threats to the Freedom of Information Act and the Leveson recommendations  trust judges to protect us from the state`s iniquities?

 

PROBLEM SOLVING COURTS WILL BE A PROBLEM

A recent post was a "hat`s off to Michael Gove" for his resolution in signalling the imminent demise of the criminal courts charge.  This action demonstrated political, moral and common sense; a combination hardly common in a cabinet minister but certainly to be valued and praised. Therefore it was somewhat of a surprise to this J.P. now on the supplementary list to read that this minister thinks that judges and magistrates could take on the role of helping offenders to overcome drug or alcohol addictions following examples of such practices in some American courts.  I will not comment on the proposal concerning judges. They are paid civil servants beholden to government for putting bread on their tables and pounds in their pension pots.  But as far as magistrates are concerned that is a totally different scenario.  On being sworn in the following oath is made by Justices of the Peace:- “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  This undertaking served me well as it has for many thousands over the centuries. It does not seem to stand up to scrutiny within "problem solving" courts either etymologically or practically.  There are three courts available in which  J.P.s can follow that oath; the criminal court which is the basic place of endeavour for all, the youth and the family court, the latter two being optional for those with interest.  In all these decisions have to be made which are generally up or down, left or right, right or wrong although in the family court sometimes the outcomes are less clear cut. By their very proposed title "problem solving courts"  are not to be compared with the existing structure.  They could be described as counselling on steroids and as such it would appear that those presiding over them should be appropriately professionally qualified.  Indeed with drug legislation under constant review as to decriminalisation eg Alaska, Colorado, Oregon and Washington in the USA where cannabis is legal and Portugal where there is wider decriminalisation medical intervention and supervision would seem much more appropriate than training a small coterie of magistrates for what seems a non judicial function. 

DO J.P.s HAVE THE CAJONES?

So we will soon see the back of the most ill thought out regulation involving the courts since I became part of the system.  Questions remain; will those few who have paid the charge be refunded?  I doubt that very much.  Will J.P.s impose the charge for its remaining couple of weeks?  I suspect that many Deputy Justices` Clerks are   in a turmoil realising the questions to be posed by magistrates and their bench chairmen on Monday. Their bosses; the two dozen Justices` Clerks who are hoping to climb the civil service greasy pole, will do nothing to prejudice their own positions.  There is little doubt in my mind that financial penalties will be adjusted by individual benches next week until Christmas Eve to mitigate the effects of this regulation now in its death throes.  The same will not occur in courts where District Judges preside. What a rare opportunity this presents for J.P.s with cajones to show that they really are representatives, not necessarily local, of the greater society and to defy their legal advisors who cannot condone any  decision that might be unlawful and who will make clear notes if a bench defies their advice.  

SPEEDING AT 100+ SHOULD MEAN DISQUALIFICATION

Once again a famous top footballer escapes a driving ban with mitigation that is so flimsy as to be almost an insult to intelligence.  This time it is Yaya Toure whose excuse for speeding at 101MPH was that his Porsche speedometer was designated in KPH and not MPH.  Whatever the arguments over whether footballers are worth £10 million a year anybody who owns and uses a vehicle with a continental specification should have the intelligence to know the equivalent MPH when it matters; eg  30MPH= 48KPH, 70MPH = 112KPH and by that I am not saying this defendant was not intelligent: he would have not reached his supreme position without a natural intelligence. Of course only those in court heard all that was put before the bench but IMHO that bench seems to fallen  hook line and sinker into a position of being in awe of the absentee defendant.  I despair of such thinking.  Without there being an emergency or a similar unforeseen material situation there should rarely be any occasion when a disqualification is not imposed for driving over 100MPH. 

RESPECT

If ever anything has demonstrated the absolute incompetence of Chris Grayling it is this morning`s announcement of the  scrapping on Christmas Eve of the criminal courts charge.  I don`t think that a change of this nature so flawed in its concept has been sent to its demise in such a short period of operation.  Michael Gove......RESPECT

NORTHERN IRELAND IS DIFFERENT!

Magistrates`Courts in Northern Ireland are run by District Judges.  Recent history in that province has seen the death, literally, of at least one J.P. and the institution per se. With that in mind I have reported here from time to time some strange or unusual court decisions there.  However merely to fine a drunk driver who was more than five times over the legal limit and not to have imposed a community penalty never mind a custodial sentence suspended or otherwise is breathtaking [no pun intended]. 

Considering the recent abortion decision perhaps decision makers in Ulster are on the road to the 21st century in their thinking.  But with sentencing as above there is still some way to go.

MUM`S THE WORD

There are  some people, J.P.s and politicians, who, for their own unknown and illogical reasons, still refer to or hanker after local justice for local people. The reality is that this concept can now only be referred to as a historical situation to be equated with transportation to the colonies. It is a dead concept; an outdated concept; a concept no longer with us.  There are however some diehards. I recollect reading a report a few years ago of a bench chairman proudly remarking that he and his colleagues living in the same small town and knowing a defendant enabled them to operate the law more equitably than otherwise would have been the case.  I wonder whether that included perhaps chatting to said individual or others before or after the hearing.

Recently barrister Mohammed Faruk was reprimanded for being over friendly to jurors at Basildon station after a recent trial.  His copy book is now forever blotted.  Unfortunate for him but what about the situation in courts where members of the bench have no private access? Where all court users enter and exit through a single portal.  How many ex colleagues have perhaps uttered a brief word or two in all innocence  to a person prior to or subsequent to a court appearance? With the magistracy being the most politically correct organisation and group of people I have ever encountered I would suggest at all times "mum`s the word".

CURFEWS AND PMQs

It is rare for a decision in a magistrates` court to be the subject of a question to the prime minister during PMQs  but that was the case earlier this week.  Cases such as this occur daily.  

On 11/10/2015 on the topic of curfews  I posted, "The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.



Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.


Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc. "  On 5/11/2015 I followed up on the topic of varying a curfew.


This type of decision often leaves an open goal for lazy reporters and sub editors to score easy headlines and in this case  for an MP to have thirty seconds on PMQs.  But there is an underlying concern that benches are too easily swayed by smooth talking lawyers.  There is no "loophole" in the law.  To remove the option of a variation in a curfew is akin to removing a right of appeal against sentence. The problem as is often the case in such matters is the application of such a right and the ability of J.P.s to deal logically and with dispassion on all that comes before them. 

GOVERNMENT, RACE AND JUSTICE

Everything you ever wanted to know about race and the criminal justice system.