J.P.s ARE NOT PARROTS

During my time on the bench I had the enormous benefit of having had as  colleagues four first class District Judges. Each one in his and her own way was a superb communicator, teacher and advisor. One common factor that each of those people emphasised to the bench as a collective and to me personally was that our powers in court were identical to theirs. This certainly boosted my confidence when I became a chairman and I have no reason to think that many colleagues did not have similar experiences.

One aspect of the job that one quickly learned was whilst not necessarily parroting pronouncements like a ventriloquist’s dummy one should be somewhat circumspect in anything one said from the bench whether eg it was the manner in which an informal warning was given about an offender`s future behaviour or an explanation in rather simple terms to somebody whose comprehension was thought to be slightly wanting. It would certainly have been beyond my personal remit to have followed the example of a Deputy District Judge [MC] Bennett at Westminster Magistrates` Court (The Times behind its paywall) who declared from the bench a few years ago, after having found guilty of careless driving a lorry driver whose offending caused very serious injury to a cyclist, that he would be writing to then Mayor Boris Johnson to consider the layout of the accident location to improve safety for cyclists. Or the anonymous District Judge at Portsmouth Magistrates’ Court who voiced his criticism of the closure of Fareham Magistrates` Court. Such statements whilst not often reported do happen from time to time as this from 2012 indicates. In Northern Ireland they have their own way to justice but for a District Judge  to criticise a local M.P. takes a certain amount of chutzpah. There are however times when Big Brother does wade in when the authorities  consider matters have gone too far.  In 2013 District Judge Tim Pattinson was certainly thought to have gone too far at Oxford Magistrates` Court in his remarks re the RSPCA.  Interestingly enough that organisation has been forced to change its prosecution policy as a result of the Oxford case and others. 

It`s my opinion that J.P.s are more likely to be officially castigated for speaking out of turn no matter the accuracy or benevolent intention of any extraneous remarks cf a District Judge.  Be that as it may the day when official pronouncements have to be followed parrot fashion like those of parliamentarians in North Korea would be a very sad day indeed. 

NO JUDGES SO NO TRIALS

Last Thursday 2nd June I posted on the recently completed selection procedure for judges.  It seems that the MOJ might have miscalculated supply and demand.  Whilst to the man on the fabled Clapham omnibus judicial salaries might appear to be an unobtainable  small fortune, to those aspiring beaks who currently inhabit the ranks of the legal profession the numbers are just not enticing enough to make the move from appearing in front of the bench to sitting upon it.  In two regions crown court cases have been postponed owing to the lack of suitably qualified judges; in East Anglia and Kent. 

On all fronts our judicial system seems to have more problems than can be solved. With there no longer being a level legal playing field and equality of legal arms now a part of history perhaps we should allow for trial by combat.

PERVERSE NON PUNISHMENT FOR A HIGH CLASS PERVERT

Amongst the most disturbing of the many high profile criminal cases reported this week is that of Patrick Rock who was convicted of downloading indecent pictures of young pre pubescent girls.  As a retired J.P. my personal experience of such cases is necessarily very limited. They inevitably end up at crown court.  However I do recollect sitting on a few first appearances where barristers for the accused attempted to persuade us not to send to the higher court arguing that the images involved were grade 1.  My thoughts therefore on the Rock case are those of a middle class parent and member of society.

It seems that the judge`s decision to sentence him to the lowest possible outcome; a conditional discharge, was based upon the idea that Rock, being a public figure, would suffer personal, professional and public humiliation by the mere fact of being found guilty.  I find this perverse.  This man did not just operate on the fringes of power; he was an active participant at the very top.   He had previously advised  Michael Howard, when he was Home Secretary,  where he was responsible for developing policy to protect children from sexual abuse on the internet.   Therefore there can be no doubt that he was well aware as to what constituted illegal pictures of children.  That in itself is an aggravating feature of enormous significance.  He has been placed on the sex offenders` register for two years.  

The level of punishment imposed seems to be saying to the public that if you`re an important public figure loss of reputation is a sufficient outcome.  This strikes me as an affront to us all.  Justice must be even handed to the highest and the lowest in society.  When there seems to be deviation from that principle questions need to be asked as to whether the rottenness in our society with regard to children`s social services to which I have previously alluded has now extended under judicial cover to the courtroom.

NUMBER CRUNCHING

A veritable trove of sentencing and criminal statistics has recently been published by the Ministry of Justice.  For those interested in number crunching the tables provide a fascinating insight into what has been happening and the trends over the last 12 months and more.

OPEN SELECTION PUBLISHED BUT NOT FOR J.P.s

Politicians and therefore governments have become obsessed about representation.  100 years ago they couldn`t give a damn.  Selection from a coterie of public schools, aristocracy, landed gentry and the old boy network was a virtual guarantee of appointment to the upper echelons of the military, judiciary and civil service.  All that fell apart in 1914, received a further push during the Ramsay MacDonald, Stanley Baldwin and Neville Chamberlain national governments which held office from 1931 until 1940, was further sidestepped in 1945 and suffered its near death blow under Harold Wilson.  Ever since 1997 actual positive actions have been taken with varying degrees of success to ensure that in all spheres of our society there was equal opportunity for every individual to rise to his/her maximum potential irrespective of race, creed, colour, sexuality and laterally gender.  As a refreshing example  of this rainbow society, earlier this week we learned that the newly appointed Master of the Rolls is Jewish, is openly gay and  is married subsequent to having been in a civil partnership.    And we know all this because the MOJ has today published  the "Judicial selection and recommendations for appointment statistics April 2015 to March 2016".  

On opening the statistical tables one is presented not only with the ethnic backgrounds of the year`s appointees but also their gender and age.  Not much surprise there then?  The surprise is that that  information is published also of the applicants` eligible pool, numbers of applications and those short listed.   But what is not published is the same subdivisions of those appointed as Justices of the Peace.  Gender, age and ethnicity of magistrates per se has been freely available for many years and although the numbers re J.P.s are much higher than for the paid judiciary I would question this omission.  Government officials and senior judicial figures often correctly use the term "judiciary"  in reference to us, their colleagues on the lowest rung of that profession. J.P.s are subject to the same levels of professional and personal conduct as their full time civil service employed colleagues. And despite the realities, government when it suits its arguments, still refers to magistrates` local representative nature in their communities.  Why then has there not been full disclosure of magisterial applicants` details etc in line with the rest?  Is this not just another indication that local justice for local people is no longer relevant with a third of courts closed and with non local District Judges presiding over ever increasing numbers of courtrooms?

A TALE OF CONTEMPT

Another J.P. who blogs with astute observation referred on May 21st to dealing with contempt of court; a subject which has been known to cause  legal wires to buzz.  I`m sure many former colleagues have their own stories. 

My favourite such recollection was after sending somebody down for six weeks I was told, “I`ll get you; you cunt”. The offender was told to say no more or he would be in bigger trouble and to go with the officers. Immediately his lawyer stood up and enquired with half a grin on his face if a written apology would help. He was told if indeed his client could write and the apology fitted the circumstances having it before the bench prior to 1.00pm might save his client additional time inside. At 12.50pm it was presented to us; an unctuous apology in childish handwriting. At 1.50pm preparing for the afternoon sitting in the same courtroom our L/A asked me for the defendant’s apology so that it could be put in the court file. As I was going to keep it as a souvenir I enquired why she wanted it. “ If you`re found with a knife in your back sir, we`ll know who to look for”.

Perhaps we have less dignity to stand upon than our senior colleagues; perhaps we have learned to ignore the mouthings from those who appear before us……does that in any way diminish respect for the law and the legal system in the eyes of the public? If the answer is in the affirmative then we should be less reticent about applying the law of contempt.

PROMOTING CHANGE OR MORE DANGEROUS DOGS ACTS BUT DON`T BLAME US

Transform Justice is a lobby organisation funded philanthropically and run on a tight budget by a former magistrate who left the judiciary many years ago.  Its purpose is:-

"Transform Justice was set up in 2012 by Penelope Gibbs, a former magistrate who had worked (successfully) to reduce child and youth imprisonment in the UK. The charity will help create a better justice system in the UK, a system which is fairer, more open, more humane and more effective. Transform Justice will enhance the system through promoting change – by generating research and evidence to show how the system works and how it could be improved, and by persuading the public to support those changes and practitioners and politicians to make them".

These are laudable aims by any account and are so astutely worded that one would be a fool to simply argue against them.  "Transform Justice will enhance the system through promoting change". The question to be put is what kind of change.  Below are a few quotes on "change". 

Change is the law of life. And those who look only to the past or present are certain to miss the future.

John F. Kennedy (1917-1963) Thirty-fifth President of the USA

You must be the change you wish to see in the world.

Mahatma Gandhi (1869-1948) Preeminent leader of Indian nationalism.

It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change.

Charles Darwin (1809-1882) English Naturalist

Not everything that is faced can be changed, but nothing can be changed until it is faced.

James Baldwin (1924-1987) African-American writer.

To improve is to change; to be perfect is to change often.

Winston Churchill (1874-1965) British politician.

You can't expect to meet the challenges of today with yesterday's tools and expect to be in business tomorrow.

Unknown Source

Progress is impossible without change, and those who cannot change their minds cannot change anything.

George Bernard Shaw (1856-1950) Irish writer.

When it becomes more difficult to suffer than change -- then you will change.

Unknown Source

To exist is to change, to change is to mature, to mature is to go on creating oneself endlessly

Henri Bergson (1859-1941) French philosopher.

When you're finished changing, you're finished.

Benjamin Franklin (1706-1790) American statesman, scientist and philosopher.

Generally speaking those who oppose change are  history`s losers.  It is the quality of change that makes for a better world or a better life.  And so it is with legislation.  The Dangerous Dogs Act  1991 is considered by many to have been a change in the law so ill thought out that it created as many problems (or more) than it solved.  The common term used in such circumstances is the law of unintended consequences.  

Recently  Transform Justice posed the question; "Can we curb our addiction to the short prison sentence?"  Nowhere in the piece is the word magistrate written and this is rather strange.  Nowhere are statistics quoted.  An extract is taken from Sentencing Council`s "Consultation on draft guideline for Imposition of Community & Custodial sentences"..........  "suspended sentences are being imposed as a more severe form of community order where the offending has not crossed the custody threshold."  This is indeed disingenuous and unworthy of the authors and TR.  Within the consultation are listed the clearly defined steps sentencers must employ before the imposition of custody and the basic first hurdle is that custody is the only option its threshold having been breached.  From my own experience it is new J.P.s and the probation officers  who write pre sentence reports who often do not understand this.  I have lost count of the number of times I personally, a single J.P., have told probation after reading a PSR sentencing option which goes from recommending a community order to a suspended custody order that there must be a clear breach of the threshold before that option can have validity.  Speaking from the position of magistrates if they are unaware that Suspended Sentence Orders are being imposed against defined structural decision making, the blame must fall at the feet of their legal advisors and those who design training and/or appraisers` courses.  

On short sentences whether or not suspended there is a clear difference between those imposed at magistrates court or at crown court.  By the very structure of our system they are used with much greater frequency in the former where in 2014 73,993 were imposed [up to 6 months] of which 30,058 (40.6%) were suspended. At crown court there were 9,227 sentences up to 6 months and a total out of all crown court sentences of 22,921 suspended. Of these SSOs no record is available of their length.  Another surprising omission from government statistics is the total number of breaches of SSOs  and their consequences.  To argue against short custodial sentences which are suspended without knowledge of the consequences of their being breached is myopic indeed. 

There are only two consequences of the raising of the minimum custodial sentence to 12 months as some would wish; either all boats in the water would rise on the rising tide or the safety of the public and the concept of punishment per se would be at risk.  The decimation of a national probation service, the unavailability of legal aid,  the disgrace of our prison system, the continual pressure on budget of our whole judicial system including enforcement of all kinds.......police, border agency etc are such that any tinkering with the current processes is liable to have far reaching consequences; some unpredictable.   But what do politicians care?  The next election is their priority and if our legal and judicial system is showing signs of collapse blame the Opposition or the EU or multi national tax evaders or immigrants or benefit scroungers or dangerous dogs but don`t blame us.

JUDICIAL OBSERVATIONS

Within the legal world it is widely known that the numbers of  magistrates have fallen dramatically in the last few years.  This decline has been inevitable.  One does not have to have had the abilities of a Nostradamus or the resources of Channel 4 "Dispatches" to have predicted this radical change to the way in which this and the previous government viewed the institution.   Eight years ago there were just a little under 30,000 active J.P.s; today they number fewer than 20,000. The reasons for the decline are the reduction in cases brought to the lower courts, the closure of about a third  of court buildings and the  resulting difficulties of J.P.s travel arrangements, the deliberate employment of increasing numbers of professional District Judges(M.C.), the skewed age profile of the magistracy and to a lesser extent the resignation of magistrates owing to their opposition to the previous regime`s removal of the level legal playing field for the poorer in our society by the restrictions on legal aid and the imposition of non means tested court charges.   I cannot recollect publication of the numbers of resignations prior to the announcement earlier this week.  It seems that this is going to be a bumper year where J.P.s for whatever reasons have shown two fingers to an appointment which I`m certain they were proud and pleased to have originally accepted. Perhaps the damning verdict of the The Public Accounts Committee (PAC) earlier this week that the criminal justice system is near breaking point is connected to the disillusionment of former colleagues.  When the financial resources to a system are reduced to the bare bones  for functionality there cannot be any surprise when that system collapses under the minimum disturbance to its already failing processes. Those who have been shouting "wolf" for the last decade have been vindicated in their pessimism.  It is hard to see there is a way back for what used to be a the most highly respected justice system in the world.  We are all the poorer individually, nationally and internationally for that. 

But all is not doom and gloom for errant judicial office holders.  According to a statement from the Judicial Conduct Investigations Office (JCIO) instead of being kicked out for actions which might until now have been deemed incompatible  for a  judge or magistrate with expulsion  being the result it seems that a suspended sentence might now be considered the  appropriate sanction.  

JCIO Message:
“Following advice from the Ministry of Justice (MoJ) legal team, we are informing all parties involved with the judicial conduct process of a change in advice regarding the use of suspension as a disciplinary sanction.
The Lord Chancellor’s (LC) and Lord Chief Justice’s (LCJ) disciplinary powers are set out in Section 108 of the Constitutional Reform Act 2005.    Previously, we have operated on the basis that the LCJ can suspend a judicial office holder as a sanction, with the agreement of the LC, as an option for any action that constitutes serious misconduct, but may not warrant removal from judicial office.  This was on the basis of reading 108 5 c) of the Act as a stand alone criteria, giving the LC and LCJ the ability to suspend a judicial office holder for the purpose of maintaining confidence in the judiciary.
However, in light of advice given on an ongoing case, the MoJ legal team have looked at this provision and have raised a concern about how suspension is currently being applied as a sanction.  Their interpretation of the disciplinary powers set out in Section 108, in accordance with the parliamentary counsel’s explanatory notes, is that the suspension can only be issued in a specific set of circumstances.  They have explained that S 108 5) needs to be read as a cumulative set of circumstances and 108 5 c) cannot be relied upon separately to issue suspension as a sanction in any circumstances outside those listed in this section.  The explanatory notes for this section state:
Section 108: Disciplinary Powers

317. Section 108 will form the basis of a disciplinary system in relation to senior judicial office holders in England and Wales and the holders of offices listed in Schedule 14. In accordance with the section the Lord Chancellor may only exercise his statutory powers to remove judicial office holders in accordance with prescribed procedures (which are defined by section 122 as procedures prescribed by the Lord Chief Justice with the agreement of the Lord Chancellor in regulations made under section 115 or rules made under section 117). Following the formal disciplinary process the Lord Chief Justice may formally advise or formally warn or reprimand, a judicial office holder, but only in accordance with prescribed procedures and with the agreement of the Lord Chancellor. As provided in subsection (3) this does not affect the ability of the Lord Chief Justice to speak informally to any judge about any matter of concern, or to issue general advice or warnings to the judiciary.
318. The Lord Chief Justice may also, with the agreement of the Lord Chancellor, suspend a judicial office holder from exercising the functions of his office if the office holder is subject to criminal proceedings; is serving a sentence for a criminal offence; is subject to disciplinary proceedings following a conviction; or if, following a criminal conviction, it has been decided not to remove the judicial office holder from office, but the Lord Chief Justice and Lord Chancellor agree that a period of suspension is required in order to maintain confidence in the judiciary. Senior judges may be suspended during proceedings for an Address in Parliament to remove them from office. Office holders who are listed in Schedule 14 may be suspended during criminal or disciplinary investigations, prior to any conviction.

This advice has no impact on the process for interim suspension pending the outcome of an investigation. 
The MoJ legal will continue looking at this matter and advise us of any implications this may have in going forward.  I will be in touch as soon as we have any more advice.
End of JCIO Message

Perhaps we shall soon have appointed judicial licensing officers to oversee their clients during their period of rehabilitation.   

A LITTLE OFF TOPIC WITH THE E.U.

Down to earth now from the surrealistic event that many holidays are especially those with funny money and unbearably hot temperatures.  Flying over the same area on the very morning when  another plane was blown out of the sky was not at all comfortable.  This blog by its very purpose has touched on political points only when matters of the application of justice and associated considerations have been applicable. This morning after the holiday nights before, I had intended focussing on the school attendance appeal at the high court; a topic on which I assume every J.P. in the country has had experience.  But that was until I read of the E.U. by way of the President of the European Commission Jean-Claude Juncker`s decision to invoke the rule of law mechanism to override the decision of a nation`s parliament.  There will be those who comment that extreme right wing parliamentary decisions have no place in any E.U. country.  But wasn`t the whole European concept to ensure that cataclysmic right wing nationalism of the 1930s could never be repeated?  

Nationalism is part of the bedrock of all nation states.  It could be argued that attempts to suppress such ideologies have been shown to be futile when the authoritarianism that imposed the suppression was weakened. The collapse of the USSR and the fragmentation of   the former Jugoslavia   are just two examples. The resulting conflicts were disastrous.  

Like the steam from a boiling kettle finding an outlet in the spout or the power derived from steam engines large and small being usefully directed the phrase "let off steam" has become a pithy way of describing  excess to be dissipated  as eg the parliamentary assemblies in Scotland and Wales have, so far, allowed their civil societies to function with those for or against full independence being able to join together co-operatively.  

It`s all very well for Mr Junckers to spit fire and brimstone at Poland and Austria but if Marine Le Pen becomes the next French president I doubt she would bend to his tirades. Nationalism is part of the living breathing nation state.  It functions beneath the surface everywhere and is kept under control by democratically elected governments. By attempting to throttle it the E.U. has presided over its biggest increase in popularity  all over Europe since 1945.  For that single reason I will be voting OUT on June 23rd.    

SUN SEA AND SAND

THE DISGRACE OF A MANCHESTER POLICE CHIEF`S APOLOGY

During the height of The Troubles Manchester was the scene of a horrific IRA attack.  Thankfully mainland atrocities perpetrated by adherents to Irish nationalism are historic now and for the foreseeable future.  The situation with Islamist terrorism in the UK has, sadly, not yet peaked and various government departments have made this abundantly clear in their arguments for increased intrusion into electronic data monitoring to be included in the so called snoopers` charter. Therefore when an exercise in police response to a full scale terrorist attack in that city was designed it was patently obvious to all involved that the "terrrorists" would be inspired as were those last year in Paris by their interpretation of Islam....i.e. they would be referred to as Islamists and not Muslims.  In order to provide as much realism as possible to this simulated situation the "terrorists" were instructed to shout the exaltation  widely used in such actual suicide attacks not just in Paris but in Mumbai, Tunisia, Jerusalem, California, Nairobi and elsewhere....... "Allahu Akbar".  If one thought that political correctness itself was approaching or past its sell by date one would have been very wrong.  Twitter activists and others presumably objected to the stereotyping of the attackers as Islamists and have persuaded Manchester Police to apologise.

This I find intolerable.  One tweet was as follows

 CommunitySafetyForum ‎@CSFUK

This sort of thing panders to stereotypes and further divides us. It will increase anti-Muslim hate crime. https://twitter.com/siemaiqbal/status/729940662808907776 …

9:04 AM - 10 May 2016

It flies in the face of logical thought to argue that using a term that is the basis of Islamist terrorist activity as shown by actual terrorists in actual terrorist massacres of innocent people  is likely to further harm community relations. That is palpable nonsense. Harm is done when some Muslims and their sympathisers  fail to denounce those in their midst who would  seek to impose Sharia in this country. For a police chief to apologise in this situation is a disgrace to his uniform and an insult to the citizens of all faiths and none whose safety he has sworn to protect.  

ISLINGTON COUNCIL BLAMES MAGISTRATES FOR CRIME

The relevance of the lay magistracy in the 21st century has been questioned by many legally and not so legally orientated personel and organisations for many years. Indeed towards the end of the last century as a fairly new Justice of the Peace I replied to an article in The Times by a Robert McFarland who had been quoted by a House of Commons Standing Committee discussing "Draft Maximum Number of Stipendiary Magistrates Order 1999" during which and I quote, "The Chairman: Order. We should stick strictly to the subject of the increase of stipendiary magistrates from 50 to 56." 

How times change! But I digress. Amongst other exchanges within the committee on that day was,

" An interesting article appeared in The Times on 9 November 1999, entitled ``Time to lay off lay magistrates''. The article was written by Robert McFarland, who was a member of the Glidewell inquiry into the Crown Prosecution Service. The article presumed, directly and by implication, that the lay magistracy was not democratic or representative, and that it was expensive and ineffective.  

  

My reply to that original article is copied below:- (apologies for magnification but easily read with "magnifier")

All this demonstrates that the lay magistracy has long been considered by many of the supposedly great and good to be an irrelevance to a modern functioning of summary justice. 

An example of such thinking is that of Islington Borough Council in London or rather those responsible for its recently published Scrutiny Committee Report.  Unsuprisingly there was considerable reaction to the Report in local media. And what features in the headline?.......crititicism of the local bench of lay magistrates. When it`s convenient the media often forgets that perhaps 20%-30% of all cases have a District Judge presiding.  Nevertheless on p4 of the Report it can be noted that not a single individual from the local judicial area was invited to give evidence.......not a justices` clerk or his/her deputy, not a bench chairman, not a District Judge.  But take a look again at the headline in the local paper....

"Fears young thieves and drug dealers are getting an easy ride from Islington magistrates"

This form of insideous undermining of magistrates is so common as to be ignored by most.  But like the Chinese water torture so called it can have a destablising and disturbing effect on local justices of the peace.  Of course only Islington Council can know why there was no request for a magistrate or court official to offer evidence or opinion or maybe attendance was rejected by those asked.  Perhaps appropriate people can re-think or if there were no such request make their opinions known to Islington.   

 

NORTHUMBRIA CONSTABULARY`S HOUSE OF CARDS

Last Friday I offered my opinion on what actions should take place to rid all our police forces of the rottenness within.  And let there be no doubt that the whole barrel is rotten.  A few days ago the decades old whisperings about South Yorkshire  police brutality during the miners` strike became audible even to the hard of hearing, political or otherwise.  Now it truly is beginning to resemble Sid James, Kenneth Williams et al and Carry on Constable with the revelations in Northumbria Constabulary of the extra marital internecine goings on involving a chief constable, two of his deputies, his P.A. and her cuckold superintendent husband.  But what brings this truly extraordinary testosterone fuelled tale into focus is the alleged cover up being exposed and as with all cover ups it`s the exposure of such which brings down the house of cards.  

MCKENZIE FRIENDLESS

Earlier this year on 12th January I commented unfavourably on McKenzie Friends. The Law Society Gazette has brought this topic once again to the attention of readers........and about time too. The MOJ, if it had its ear to the ground which apparently it hasn`t,  would have instructed  one of its minions in the judiciary to offer an opinion or even a direction on the subject but it has not.  With availability of legal aid being limited to an increasingly reduced number of defendants no doubt said ministry considers that any group however ill prepared for the task of  representation of alleged offenders is to be welcomed whatever its shortcomings if it is cheap enough and doesn`t affect its budget.  

We have seen this approach so many times it is repetitive to list.  Suffice to say it is a matter of some urgency that those involved are subject to regulation. The readers` comments are as  informative as the article.