THREE OF A KIND

I am one of the fortunate people who can experience a Christmas New Year period as a time for reflection and relaxation. Having some years ago had quite extensive training in traditional hatha yoga and latterly in transcendental meditation not only can I attempt to control psychological and physiological processes it does not take much effort to allow a certain amount of introspection to enter my consciousness.

Sometime after Christmas after talking with an ex colleague  I was thinking of the significance of a bench split in its decision and its consequences at the close of a trial for sentencing. I would hazard a guess that over the years no more than 10% of the trials on which I  sat led to such a division in the retiring room. That minority was probably equally split between both majority guilty and not guilty. Of course nowhere is it recorded whether the verdict is or is not unanimous. The bench makes a collective decision and that is how it is likely to  remain and that is why we are a bench of three and IMHO a fairer method of judicial fact finding than a single individual however well qualified. However while I was active when it came to the same bench sentencing I noticed that there was and presumably is no set pattern and certainly no guidance from anybody. Some former colleagues who were in the “acquit” minority quite logically, when opining on sentence using the correct structured approach, made clear that their situation led them to a minimum tariff whilst others declined to be involved. There is a third group which in acceptance of the bench decision of guilt undertook the exercise without prejudice and partook in the usual manner.

That period of introspection has led me to the conclusion that there is no right or wrong approach morally, judicially or legally with any of the three situations as outlined above. Others might disagree.

REALITY T.V. COP SHOWS AND THE CUTTING ROOM FLOOR

Fictional television shows about police and policing have been a staple part of the home visual entertainment diet since T.V. became the country`s prime means of information and communication. From “Dixon of Dock Green” over half a century ago through “Z Cars” in the 1960s via “The Bill” and “Prime Suspect” our fascination with the genre is unending. Combine that fascination with the techniques of fly on the wall reporting and we have "Forced Marriage Cops". It follows other similar see it as it happens reportage of police involving motorway patrols, city crime cars, police in helicopters, police in boats, police, police, police. One common thread in all these is the supposed control by the programme makers of the final edit. Whether or not payments are made to whom or for what amounts of cash I am not privy but constabularies and their police authorities have sanctioned this warts and all approach and so must believe it is to their advantage that the public has a supposedly unexpurgated picture of what their police forces must put up with in the course of their often dangerous and unpleasant duties. So what happens when some of the uniformed participants act in such a manner that critics, some in their armchairs some more knowledgeable, believe that their officers behaved unprofessionally? Perhaps those who make cheap programmes involving out takes might find the cutting room floors of the involved production companies a source of rich material.  Whether such images would reach our screens is another matter. 

IT`S NOT WHAT YOU SAY; IT`S WHAT YOU MEAN/SOME PERSONAL HUMOUR

How often in general discussion do we ask for a remark to be repeated because although we heard what was being said we hadn`t actually been listening.  Having sat in court for so many years I find that I have subconsciously perhaps trained myself to listen to everything that`s being said. As I was watching a weather forecast on TV the other night the presenter began by saying, "Most of us will have a wet and windy night." Speaking to my wife for both our sakes I remarked, "Not me I hope."  

TORY ARROGANCE INFLATES JEREMY CORBYN TO AN EMBRYONIC ALEXANDER KERENSKY

It seems irresistible to Justice ministers to laud cherry picked aspects of the American justice systems which offer an excuse for the failure of rehabilitative measures in this country to reduce the prison population.  They are happy to ignore, at least publicly, the binary procedures in the USA where federal, state and county jurisdictions are simultaneously operational.  They also conveniently overlook that many appointed positions in this country are elected positions in America.

The latest idea of those such clever folk at Petty France London SW1 is to charge local authorities prison costs for every one of their  residents put inside.  The minor matter of determining residency of prisoners I suppose is tucked away in some internal briefing note`s footnotes. The fiasco otherwise called the transformation of probation services initiated by the worst Lord Chancellor in living memory reincarnated as the Leader of the Commons, Chris Grayling,  which  played a major part in the continuing high numbers incarcerated and re convicted, is not something we`ll hear too much about from those spinning for Michael Gove.  It takes no insight whatever to realise that wealthier mainly Tory voting boroughs would be less likely to be funding such a scheme than poorer inner city Labour councils who would have their council tax resources put under even greater pressures than currently is the case.

Perhaps the 69 weasels posing as communication personnel at the MOJ have taken the lead from their political masters that with Labour in such disarray anything goes.  Such arrogance currently enveloping the government in many departments must be good news to the Marxist plotters surrounding Jeremy Corbyn.  They might not have a Joseph Stalin in embryonic form but arguably they have an Alexander Kerensky.

PUBLIC PROTECTION?//YET ANOTHER SENTENCING ANOMALY

Yesterday I posted of a sentencing decision by an English lay bench which was IMHO beyond comprehension.  It seems that such decisions are not confined to this side of the Irish Sea.  A District Judge in Northern Ireland dealt with a woman with two previous driving whilst disqualified offences by sentencing her to 220 hours community service and a five year ban for her third similar offence.  His remarks in the report seem in contradiction to the sentence.  The question is why she was not sentenced to custody suspended.  In addition why was she not subjected to the maximum of 300 hours payback. 

Is there a trend to minimising such motoring offences?  Is there pressure from higher sources?  Once again a magistrates` court does not seem to have public protection sufficiently high up in its sentencing decisions.

SENTENCING IN THE PUBLIC INTEREST? YOU MUST BE KIDDING!

Chairman of the bench, Margaret Atkinson, told him: “The reading of breath is one of the highest we’ve seen, putting not just yourself but other members of the public in danger. “However to impose a custodial sentence would have a detrimental impact on your recovery.”

The above were the comments of a bench chairman at Kirklees Magistrates` Court when sentencing a drink driver with a breath reading of 164 microgrammes of alcohol in 100 millilitres of breath. This was more than four-and-a-half times over the legal limit of 35 microgrammes. The offender was sentenced to 250 hours of unpaid work as a direct alternative to custody. He was also banned from driving for three years and must pay £85 costs and £60 victim surcharge. The full report in the Huddersfield Daily Examiner can be read here.

What does this simple episode tell us about the lay magistracy?  Firstly the guidelines for such an offender, even a first time offender, indicate a starting point of 12 weeks custody with a range of a high level community sentence to 26 weeks custody.  The report gives a brief account of the mitigation offered.  It seems completely ridiculous that a custodial sentence was bypassed and even more so that it was not imposed as a sentence of custody suspended.  The bench has forgotten or overlooked its public protection responsibility.  It seems the  offender is a possible victim. He must not have action against him which would have a "detrimental impact on your recovery."” as quoted by the chairman.

It is exactly this sort of we are responsible for the social effects of sentencing thinking that lowers respect for the lay magistracy with the wider public. It is a scandal!

MICHAEL GOVE AT THE COAL FACE

On Monday this week Michael Gove took himself to the judicial coal face. He was an observer at Highbury Corner Magistrates` Court in north London. I wonder if HMCTS had prior notice?  I hope he didn`t limit himself to being a spectator where the District Judge was presiding.

MCKENZIE ARE NOT ALWAYS FRIENDS

I would imagine that any J.P. with ten years on the bench would have had a McKenzie friend before him/her. The following is copied from Wikipedia.

A McKenzie friend assists a litigant in person in a court of law in England and Wales. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v McKenzie. Although in many cases a McKenzie friend may be an actual friend, it is often somebody with knowledge of the area, and the trend is heavily in favour of admitting McKenzie Friends. He or she may be liable for any misleading advice given to the litigant in person. 

My own experiences of such people is mixed.  Some were clearly not up to the task whilst others thought they could be a latter day Cicero.  What I did not realise then was that the McKenzie Friend  was not necessarily a friend or benevolent assistant but could be a paid professional.  There are in fact twenty three such people offering their services in the courts. With the limiting of the availability of legal aid it doesn`t take the mind of a latter day Nostradamus  to predict that demand for such services is likely to increase. Indeed the scenario reminds me of the time when teaching assistants began to be employed in the classrooms of primary schools.  Their duties will be limited. They won`t be actually teaching the children we were told  but will assist in ancillary tasks eg ensuring books are open at correct page, distributing items when ordered to by teacher etc etc.  The introduction of PCSOs, parking wardens inter alia was preceded by similar assurances and we know now that such roles have expanded steadily in order to contain costs when authorities have considered that these lesser educated and lowly paid people could be exploited to undertake their seniors` work.  The results are only too well known in the justice system when non lawyers now prosecute for the CPS and probation staff are struggling to stand still with their workload and outcome figures are not to be trusted.  McKenzie Friends` activities are now under scrutiny by the Law Society.  At one time there were solicitors. Now to join them are legal executives and para legals.  It won`t be long before McKenzie Friends follow the trend of self aggrandisement and become more common in the well of the court.

CROWN COURT JUDGE TO SIT ON SHARIAH COURTS

Jewish religious courts [Beth Din] presided over by learned rabbis have been in operation in this country as in others for as long as Jewish people  have lived there.  They operate without fuss or hindrance in a civil capacity where two opposing parties are in agreement as to its jurisdiction.  Beth Din outcomes  are not  legally binding in England in order that they do not supersede English law but achieve a conclusion by a process rooted in Jewish culture.  They satisfy the small minority of the 250,000 Jewish population which considers itself ultra orthodox; about 16%.  Considering that such communities have large families there can`t be more than about 10,000-15,000 adults who are a source for Beth Din arbitration. With a Muslim population of three million with arguably a much higher proportion being considered conservative than within Christian, Jewish or Hindu denominations Shariah courts have provoked considerable debate as to their status and function in the U.K.  Therefore the recently reported approval of a crown court judge to sit as a judge in Shariah courts is  worth some consideration. The legal system in this country has been developed from Judeo Christian principles over a millennium but its procedures {forgetting legal aid restrictions and recent court charges} emphasise  equality and justice to all from beggar to king and has been a beacon to nations near and far.  When, however, a crown court judge however eminent  is presiding over a religious court the separation of religion and state is blurred.  The Spanish Inquisition and the abuse of Christianity under English monarchs in the 16th and 17th centuries as a reason for judicial execution are thankfully well behind us.  Many British Muslims appear to hold opinions at variance with the majority population with regard to the application of what could be described as medieval attitudes to law breakers whose only crimes are related to their sexuality in one form or another. Is it appropriate that the division between Shariah and English law has conceivably  been blurred by the approval from on high of this  appointment?

ASYLUM, RUNNING,LUNATICS

It seems that whilst Manchester Constabulary is chasing around looking for a man with a cucumber down his lycra shorts [The Justice of the Peace Blog January 5th] its detectives are arsing about and unable to deliver CCTV evidence on time, as instructed,  to the crown court.  Whilst this gross inefficiency merits reporting the underlying problem is nationwide in the lower courts also.  Constabularies are forced to reduce the number of warranted officers and so outsource too many jobs.........it seems at London triple murder this week outsourced personel were unable to dig garden when people went missing owing possibly to lack of funding!  Similar problems exist in the social services and NHS.  Scrapping Trident won`t help but a more efficient tax system for multinationals wouldn`t be a bad idea nor would it do any harm to syphon off more money from banks.

If the lunatics are not yet running the asylum they`re certainly knocking on the door.

J.P.s PRIVATE CONVERSATIONS REPRIMANDED

The last month of the year brought the usual reprimands and sackings of Justices of the Peace from the Judicial Conduct Investigations Office.  Only two J.P.s were dismissed for failing to meet the minimum sitting requirements. This is not exceptional.  Once again a sleepy magistrate was reported to the beaks who issued him with a reprimand. Of slightly more concern is the case of Mr Chrys Perera JP and Mr Shaf Ahmed JP.  This seems to border into intrusion where the powers that be have indicated that in and around our courtrooms is the most political correct area of our country.  It can only be speculation about the content of the reported conversation.  It begs the question as to where do the supposed private and confidential opinions of magistrates justify such  disapproval.  Presumably the offending words were uttered within the confines of the court building but if they were overheard by a clerical court worker in the car park would the two men have still been subject to disciplinary action?  When does political or social positioning become untenable for a magistrate?  Cases like this one and it`s not that unusual, raise considerable unease for the wider implications. The sacking of Mr Jonathan Sandford now a former JP is much more straightforward.  One can only raise an eyebrow or two at his stupidity. 

In my post of 20th July 2015 regarding magistrates brought before the JCIO  I wrote, "In 2012 14 J.P.s were involved.  Of these 6 were removed by reason of being low sitters and therefore not fulfilling their obligations when appointed. 8 were  removed from the magistracy.  Notably there were none who were merely given "advice" as to their conduct or were reprimanded.  Similar numbers are recorded for 2013.  7 were sacked for not meeting the minimum sitting requirements and 3 were removed for other reasons. Once again there were no complaints that resulted in non dismissal decisions.  All that changed in 2014.  There were 40 J.P.s investigated of whom 7 were sacked for low sitting and a similar number was given "advice" as to conduct.  The major change was that 24 were reprimanded over their conduct which seems largely to have been misplaced comments usually within the court or retiring room". 

From the above figures alone there are now two conclusions:- either J.P.s are, in increasing numbers, using language which is deemed unacceptable or there are more J.P.s than ever who are intolerant of language that has been previously deemed as normal.  There is however the get out of jail conclusion that language that has always been acceptable and still is acceptable to the majority is unacceptable to a vociferous minority.  This is of particular interest considering the subject of my post yesterday. Readers of course will draw their own conclusions. 

BEING OFFENSIVE IS NOT ILLEGAL

"Sections 5(1) and 6(4) of the Public Order Act 1986 have been amended by section 57 of the Crime and Courts Act 2013. This amendment removes the word 'insulting' from the two sections with effect from 1 February 2014. The section 5(3) defences to this offence will remain the same. The effect of the amendment is that the "insulting" limb is also removed from the racially or religiously aggravated version of the section 5 Public Order Act offence (i.e. the offence contrary to section 31(1)(c) Crime and Disorder Act 1998)."

The opening paragraph of Section 5 of the Public Order Act as written in Crown Prosecution Service guidelines is as above.  The change was long overdue. The original inclusion of "insulting" was an awful miscalculation if one takes a benevolent view of government or a further attempt to erode free expression if one is of a cynical disposition. There is not a Justice of the Peace in this country who has not racked his/her conscience on S.5 matters brought before them prior to the amendment.  I personally argued against conviction on many such cases in defiance of legal advisors who were too timid to make a legal case against the letter of the law.  I suppose it all goes down to whether in extremis one fights for the letter of the law or its spirit.  I suppose I am a spirit man.

However it was under  section 127(1)(a) and section 127(1)(b) of the Communications Act 2003 that on Monday at Belfast Magistrates` Court a Protestant evangelical preacher was tried before a District Judge  for words uttered to a congregation in May 2014.  The actual sermon can be accessed here on youtube.  There are subtle differences in the media reports of his acquittal.  The Irish Times gives reference to some of the actual remarks made; the BBC does not.  The Belfast Telegraph makes great reference to freedom of speech but also without quoting any actual words of the accused.

There is no doubt in my very humble atheistic  opinion that the spokesmen of supposed representative Muslim organisations in response to recent current events are somewhat circumspect in their remarks rarely making their arguments without reference to their perceived view of their being victims of islamophobia. This is in contrast to much of what is said and published by the Quilliam Foundation.  Perhaps living as a minority in a country with Judeo Christian foundations which is relatively unusual for a large Muslim population is proving difficult for some followers of the Prophet.  It can only be hoped that the next generation will be able to practise their faith but also be able to adapt to what has taken a thousand years for the concept of Britishness to develop from Ancient Britons, Picts, Romans, Angles, Saxons, Jutes, Normans, Huguenots, Irish, Jews and laterally millions of incomers from Asia, Africa and Europe. 

Addendum

UK Criminal Law Blog has a useful legal analysis

LIBIDO RAISES MANHUNT IN MANCHESTER

It is delightful that this, my first post in a new year, concerns Manchester Police who seem to have more controversies per head than even the Met.  There are some human functions which owing to their nervous pathways produce involuntary reactions or those over which there is minimal control.  Vomiting, sneezing with the accompanying blink and coughing come to mind in the former category with the last producing  a reflex to spit;  an offence in a public place in some boroughs.  There is another reflex known to both sexes and experienced by the male of the species.  Especially in teenagers and young men sexual arousal can be without pattern and often without a nearby actual object of desire virtual or real. In a public place does an obvious erection indicate a propensity to commit sexual assault?  The aforementioned constabulary seems to think so. Has the world gone mad?  Perhaps I should rephrase.......has the victim says so, so it must be concept gone beyond the point of no return?  After all,  often it is the so called victim who determines racial or religious aggravation or just simple name calling by those with more common sense.  

Authority in this country is becoming a laughing stock. We are law breakers for the most inane reasons and yet can`t keep track of would be terrorists who would blow us and our way of life away.