CHRISTMAS MEANS "NO"

It has been demonstrated that in the first four or five years of life synaptic connections are made in the brain which direct a child`s behaviour for the future..........in fact this process continues past puberty..........and that if clear limits to behaviour are not made during this period it is virtually impossible to impose them at a later time except by enforcing conscious changes by various therapies to protect themselves and to protect the public. And that includes prison for adults or for youths a young offenders institution.

Just before  Christmas and where families include young children, these few days and those just after the holiday will probably have contained events that will be remembered for years to come such is the capacity of children to retain so much of the sensory input to which they are exposed. In evolutionary terms it seems simple enough; if outcomes are forgotten or impeded mistakes could be repeated or positive actions overlooked so reducing the possibility of successful progress to adulthood. A generation ago social cohesion was assisted by low level authority figures being able to tell robust children that certain actions were forbidden or unacceptable and more often than not a lesson in acceptable behaviour was learnt. When park keepers regularly patrolled the parks, when bus conductors walked the upper deck of the Clapham omnibus, when teachers could keep control by the accurate throwing of a piece of chalk at the child talking at the back of class. Now, owing in a large part to a few very bad and sometimes evil professionals, sadistic policemen, paedeophilic teachers and priests and multi murdering doctors and nurses very often the first time a wayward child is firmly told "no" by somebody in authority, that somebody is a police officer.

Those households which do not enforce reasoned rules and discipline upon their children to immunise them against the effects of "non immunised" children ie their feral untamed peers, face misery. Childrens` bad behaviour is similar to a disease like measles where the "herd" effect of vaccination is paramount in keeping the disease to a minimum level of spread. Currently owing to misguided policies of government over the last thirty years in the fields of law, welfare and education we are in a situation where compulsory "this" or compulsory "that" will have to be employed so that the desirable change in direction can be achieved. Youth offending is perhaps the most depressing part of the Criminal Justice System. To incarcerate teenagers because society and family constraints on bad behaviour have failed is depressing for everyone involved. To avoid this outcome very often the most positive gift a parent can give a child is the meaning of "no".

DIVERTING OFFENDERS FROM THE COURT SYSTEM

We are being informed with unfailing regularity , rain or shine, Tory or Labour that our prisons are overcrowded and something must be done. That something has been virtually automatic release on license when half time arrives and increased use of suspended sentence orders. Currently there are some who posit somewhat controversially that the Sentencing Council itself is responsible for inflation of custodial sentences. An additional shadow which has been looming in the background of this argument for over ten years is a proposed increase in magistrates` courts` sentencing powers to 12 months custody. This could be done almost at the stroke of a pen and should be done ASAP according to regular input from the Magistrates Association with predictable vehement responses in opposition from organisations eg The Howard League. The re-offending rate is a particular cause for concern for everyone and every organisation concerned with criminality.  The probation service is in almost a terminal condition much because of the actions of former Tory Justice Minister Grayling. The fashionable term for current tinkering with the present situation is "restorative justice" which has more merit in its description than its possible future practice. On the other hand it is generally agreed that the great British public considers that the criminal justice system is too soft on sentences. Contrast that with a 101 year old paedophile jailed this week for 13 years for offences committed up to 40 years ago.  Many interesting current statistics from the Prison Reform Trust are available here. Indeed the criminal justice system is bombarded with statistics to such an extent that it takes more than a mere blogger to make any sense of it all.  It is estimated that about 70%  acquisitive and/or violent crime is caused by addiction mainly although not exclusively to drugs and/or alcohol. There is one avenue of escape from all this; a desire and action to divert as many as possible from entering the CJS to begin with and as a corollary to assist those with appropriate history by diversion from the courts system and providing the medical and psychological means of intervention to enable them to return to more or less a simple life cured or at least in control of the problems that have been the cause of their recidivism.  It is sad that such a change in thinking is not even on  the horizon; it is not even over the horizon on the yellow brick road ahead.  

So the argument will continue as surely as Andy Murray hits the ball back and forward with unfailing regularity. People such as this poor soul will appear at every magistrates` court in the country so often as to be recognised by those sitting in judgement. And the same limited choices will be available to them. Those with the power to effect change will continue to make their speeches in and out of parliament and publish their papers on the topic while those howling from the cloisters will rant back and forwards choosing their statistical bases to suit their cause. We must strive to divert  offenders from the court system. And then perhaps we can call ourselves a civilised country.

A JUDGE, A BENCH & A LEGAL ADVISOR

Justices of the Peace are at the bottom of the judicial pecking order.  To be effective they rely on legal advice from a qualified lawyer employed for that purpose by HMCTS. Before any sitting the bench will or should be required to check through the list for that sitting with advice and/or observations from the allocated legal advisor.  That process being done thoroughly should allow as far as possible for the bench to be well aware of any potential awkward, difficult or legally complicated cases about to be presented. In the parlance of a U.S. Secretary of Defence it is a recognition of the known unknowns. Any experienced magistrate can attest to the occasions when these known unknowns enter a grey area where within the law and legal framework of the courts a legal advisor is just that; an advisor where advice given allows for final decision making to be done by the bench provided that it is made within the aforementioned legal framework.  If a bench in its wisdom decides to act against the advice of the L/A it must be prepared for possible consequences. I personally with my colleagues defied clear advice from a L/A during the riots of 2011 when we were told quite unambiguously to send every such connected either way case to the crown court because our powers were insufficient.   We kept one matter and made a pronouncement in open court that we were acting in contradiction of the particular advice from the L/A, herself advised by the Deputy Justices` Clerk as it transpired, and that that would be recorded in her court notes.  She was protected and we were not inhibited from following our oath as we interpreted it.However a recent not too dissimilar case before Coventry Magistrates  led to an unsavoury scenario.

Supplying or offering to supply a controlled drug / Possession of a controlled drug with intent to supply it to another is governed by Misuse of Drugs Act 1971 s.4(3), Misuse of Drugs Act 1971, s.5(3). The sentencing guideline for this offence is a prime example of the labyrinthine tortuosity of the thinking processes of the Sentencing Council. It would have been more honest to provide a real tick box for judges instead of this masquerade of one. But notwithstanding all that it is the judge`s remarks which disturb me. By these remarks, in particular, “Potentially this defendant has been denied a really significant right, and that is the right to have a crown court trial in a case where the magistrates should never have retained jurisdiction.” she has arguably brought the law into contempt by her scathing criticism however justified it might or might not have been. I would argue that she would have been wiser to have refrained from making those withering comments and to have put them in writing to the appropriate authority because it is inconceivable that the bench were acting without the full knowledge of the L/A.  If, however, that were not the case and the bench`s decision had not previously been conveyed to the L/A both it and s/he have questions to answer. My bench`s actions described above, I would opine, would have been appropriate in this case. Perhaps similar statements were indeed made at the magistrates` court. We do not know. There is no record.

Crown Court judges IMHO do occasionally let their mouths go off before their brains are in gear. This is a sad story for all concerned; the defendant, the bench, the L/A and Her Honour.

THE ROLE OF THE MAGISTRACY//REPORT & RESPONSE

The government has just published its response to the recent Justice Committee`s Report on the Role of the Magistracy.  Readers can make up their own minds on these and can decide inter alia whether their conclusions enhance or diminish the concept of an independent local representative judiciary serving its fellow citizens and therefore the likelihood or otherwise of its retaining its unique position in our society. A crit from the Law Society Gazette might assist.

WAS THIS MAGISTRATE A MUPPET?

When I was appointed a chairman I recollected the wise words of a colleague, "Don`t get to love the sound of your own voice".  And how true she was.  

As a bench chairman when you are speaking generally no other voice or interruption is permitted unless perhaps the legal advisor is making a salient point.  When a bench decides to sentence outside the Sentencing Guidelines it is appropriate to make clear reasons for so doing.  These should be logical and significant and directed to the specifics of the offence and/or the offender.  I find the the report of a driving whilst disqualified case at North Wiltshire Magistrates Court on Thursday somewhat disjointed insofar as the chairman`s remarks related to the situation.


"If we followed our sentencing guidelines you would lose your job," she said. "I really want to give you a lecture about being honest with your employer and if you had been honest you might not be here in the first place.
"We are going to go against our guidelines with huge reluctance and we will impose a community order of unpaid work of 98 hours. For driving without insurance we are going to fine you £353 and you must pay £85 in costs and a victim surcharge of £85." 

 The Guideline for this offence is copied below.

Considering he was almost halfway in to his 22 month ban the starting point would appear to be a medium/high level community order.  It can hardly be considered that his ban was "recently imposed" as the bench seems to have concluded because that is the only logical route the bench could have taken to state that, "you would lose your job" with the underlying consideration that that consequence would arise from a custodial sentence suspended or otherwise being imposed.  

My opinion for what it`s worth is that the final disposal of indeed a low level community order negates entirely the the pompous verbosity of the bench chairman.  This apparent unstructured and patronising behaviour is not worthy of a bench chairman and would be another reason for some lawyers to conclude that the word muppet is an accurate designation for my former colleagues.

EXPLANATIONS OR EXCUSES?

Today`s post is all statistics; well mostly. Quarterly court info is available here. Also published today is a  50 page guide to legal aid to supposedly explain the current manner in which the statistics of this apology, for what was once a comprehensive system to offer many defendants the opportunity to have equality of arms in the courtroom, are produced.  And finally a report to explain why happy children in comfortably off loving and well adjusted families who care about their schooling are less likely to offend than others not so fortunate.

IS IMPROVED CAR CONNECTIVITY REDUCING MOBILE PHONE OFFENCES?

It is not unlikely that with increased connectivity as standard equipment  in cars,  using a mobile phone when driving is an offence that will diminish over the next decade unless legislation changes and  remote use is also banned. My son`s three year old Golf has mobile connectivity built in. I had to have installed a commercially available system on my 20 year old Mercedes. Be that as it may there are still offenders who reject a fixed penalty and appropriate penalty points to try their luck in court.  Figures from 2010-2014 are interesting. 

Simple analysis shows that around one fifth of those caught opted for a not guilty plea in court assuming that rarely did somebody go to court to plead guilty. I have no figures for those in that category who might have pleaded special reasons.  

Many organisations; motoring and others complain of the inactivity of police for the apparent reduction in FPNs for use of a mobile phone when driving.  Could it not be as per my opening sentence that improved technology is the real reason that drivers appear to be talking and driving?  We have all heard stories in court of police evidence of sudden movement of mobiles from hand to elsewhere in a vehicle............

REDUCE JAIL OVERCROWDING BY INCREASED SENTENCES

There is much discussion on Twitter and elsewhere on our overcrowded prisons coupled with the sentencing of juveniles.  There is no doubt that reforming of criminal tendencies is best attempted at the earliest stage possible.  Prison exists to deter, punish, protect the public and rehabilitate.  Many are wailing that increases in custodial sentences especially for juveniles are a cause not an effect of overcrowded jails. Perhaps there is another reason which might at first thought be considerd counter intuitive: prison no longer deters because most sentences including those currently criticised for being too long and those proposed eg for manslaughter (in effect) by dangerous driving are imposed at a rate of 50% in jail and 50% on license. Indeed instructions to magistrates are to pronounce such on the 4% of offenders sentenced to immediate custody in their courts. If there were no assumed 50% reduction or a much smaller percentage had to be earned the immediate deterrent effect would be obvious. Thus paradoxically it is not unlikely that a perceived and actual higher period to be served behind bars would lower the prison population by its deterrence value.  Perhaps the nearest analogy is the proven effect that higher tax rates generally reduce the tax take.  I am no economist nor criminologist but in the wake of current opposition party thoughts on tax and judges, whose influence on the Sentencing Council is paramount, imposing ever higher sentences framed by said Council who is to say that they only have all the right answers.

WANT TO BE A MAGISTRATE? THEN AND NOW

When I was appointed J.P. in the 1990s the basic requirements to be considered for the post were:-

ESSENTIAL QUALITIES
There are, however, six key qualities which are regarded as vital if you are to perform
successfully in the role of a magistrate. It doesn’t matter how or where you developed
these qualities. It could be through your current or previous employment, involvement
in community or voluntary activities, public appointments, leisure activities, family life
or academic study. The most important thing is that you can demonstrate these in the
selection process and, if appointed, apply them to the role. They are:
 

° Good character: to have personal integrity and enjoy the respect and trust of others.
° Understanding and communication: to be able to understand documents, relevant facts, follow evidence and communicate effectively.
° Social awareness: to appreciate and accept the rule of law.
° Maturity and sound temperament: to have an awareness and understanding of people and a sense of fairness.
° Sound judgement: to be able to think logically, weigh arguments and reach a sound decision.
° Commitment and reliability: to be committed to serving the community, willing to undergo training and to be in sufficiently good health to undertake your duties on a regular basis.
 

HEALTH AND DISABILITY
 

We will not be able to select you if your health prevents you from carrying out a magistrate’s range of duties. However, applications are welcomed from people with a disability who are able to carry out their duties either unassisted, or with the benefit of certain reasonable adjustments made to court premises or working/sitting arrangements in accordance with section 6 of the Disability Discrimination Act 1995.

NATIONALITY
 

British nationality is not a requirement

AGE

Minimum age is 27 and magistrates must retire at 70. Generally applicants must not be over 55

Current requirements are:-

 Age

You have to be over 18 and under 65.
Magistrates must retire at 70 and are normally expected to serve for at least 5 years.

Health

You need to be able to hear clearly, with or without a hearing aid, to listen to a case.
You also need to be able to sit and concentrate for long periods of time.

Personal qualities

You need to show you’ve got the right personal qualities, eg that you are:

• aware of social issues
• mature, understand people and have a sense of fairness
• reliable and committed to serving the community

You also need to be able to:

• understand documents, follow evidence and communicate effectively
• think logically, weigh up arguments and reach a fair decision

Good character

It’s unlikely you’ll be taken on if you have been:

• found guilty of a serious crime
• found guilty of a number of minor offences
• banned from driving in the past 5 to 10 years
• declared bankrupt

Conflicts of interest

You can’t be a magistrate if you work in one of a small number of jobs where there could be a conflict of interest - eg if you are a police officer.

Time off for magistrate duties

You will need to be in court for at least 13 days, or 26 half-days, a year.
Discuss with your employer how you will balance your work and magistrate duties.

Your employer must, by law, allow you reasonable time off work to serve as a magistrate.

You will get your rota well in advance, so you can give your employer plenty of notice of when you’ll be in court.

Interesting isn`t it that you still don`t have to be British. You can retain your passport from eg Australia or Zambia and sit in judgement in a British Court if the Ministry considers you suitable.  I still haven`t made up my mind whether or not basic current advice is more realistic than that of the 90s