MUSINGS ON THURSDAY

Occasionally a few stories/press releases/incidents occur which, given some imagination, can paint a picture of an organisation far better that a detailed investigation.

Next week the administration department at Telford Magistrates` Court, the only court in Shropshire now operating,  is being moved to Stafford; not earth shattering news except for all the inconvenience for those involved but for a comment from the MOJ.......

"It said a small number of court staff will be relocated elsewhere within the business". That single word indicates so much that is wrong within the MOJ.

The press room at Westminster Magistrates` Court is being closed on the grounds that it`s outlived its usefulness notwithstanding that that court hears some of the most important matters to come before a magistrates` court and is "home" to the Chief Magistrate.  Despite protestations from HMCTS along with many others I fear this is a further indication of government initiating restrictions on the reporting of courts` procedures.  It might be the very thin edge of a wedge but it is a portent for the future; a future which is not very bright. 

Proposed flexible working, an HMCTS euphamism if ever there was, is broadly castigated by the legal profession but with one or two exceptions from senior ranks. More knowledge is often to be gained and just as often ignored when it comes from the troops rather than the generals.

I have remarked often enough that I am not an enthusiastic supporter of Sentencing Guidelines at least in their current proscriptive form.  An example of a judge`s idiosyncratic thought processes might suggest that my opinion has little validity in fact. This judge certainly poses an argument that Guidelines Are Good, Judgement Is Bad.

STILL NO REPLY FROM HCTMS

On Wednesday July 26th I posted the following:-

With increasing concern at the plans of HMCTS to impose extended hours for court sittings Twitter has been a useful pointer.  On Inside HMCTS Blog there is published a series of questions and observations to the organisation including by a couple of crown court judges.  Surprisingly there is not a single word referring to or written by magistrates except an unanswered series of questions I noticed yesterday.  I copy that part below and will do similar when a reply is published. 
Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

No reply is yet published. Check for yourself here again. 

TAIL OF PUBLIC OPINION WAGS DOG OF JUSTICE

The tail is wagging the dog. We`re all familiar with this idiom. Various definitions are as follows with subtle differences amongst them:- 

An item of minor importance dominating a situation. 
A small or unimportant part of something is becoming too important and is controlling the whole thing.
The least important part of a situation has too much influence over the most important part.
A situation in which a large group has to do something to satisfy a small group.

I would suggest that the latest announcement today from the MOJ that a further group of offences has been brought into the category of those where a lenient sentence can be appealed; those which are terror related, reminds us that a situation exists in our sentencing structure which clearly demonstrates the meaning of any of the above definitions.  Until thirty years ago judges  sentenced according to their interpretation of an offender`s culpability, harm caused to victim(s), previous convictions (if any), employment and domestic situation, provocation and any factors brought to their attention by the defence in mitigation such sentences being subject to appeal at a higher court. From 1988 the numbers and types of offences for which there is a basis for appeal to increase the sentence has steadily increased.

I have not previously given this situation much previous thought. Of course the right for an offender to appeal against conviction or sentence being too  severe is a certain safeguard against injustice but is there not an argument that a reverse right for the appeal court to increase a sentence on behalf of an argument by the state (the CPS) an indictment of a sentencer`s error and/or misunderstanding of the law?   In the event of such a position should there not be an inquiry of some sort into the competence of the sentencer; after all if eg a surgeon makes an error of professional judgement resulting in unnecessary problems for a patient or a pilot fails to follow protocols there is usually good reason to ask why.  When that right of appeal is extended to victims I am coming to the conclusion that this is a step too far and is a political act of appeasement rather than inspiring greater confidence in the criminal justice system. The classic example is the continuing support for the reintroduction of capital punishment although not necessarily within its previous guidelines.  A highly reputable 2014 poll is reproduced below although certainly it can be said that there is no clear majority for such a change and no ability for it even to be considered until we have left the EU. But it illustrates a principle of victims being being given a voice on punishment. 

To sum up, as the lawyers would put it,  if judges fail in their professional requirements to sentence according to all the facts in front of them in the view of the state ie they have been too lenient, they should be admonished. Government is at present having it both ways; the judge is at fault professionally in being too lenient but we dare not admonish him/her because there would be such opposition from the judiciary as a whole  that that would be impossible and we must continue to throw the public a bone or two in increased sentences  to retain credibility even although logic disputes this. As a result the tail of public opinion  must continue to wag the dog of justice. 

SENIOR JUDGES SPEAK OUT

Perhaps it`s my imagination but judges` comments in the courtroom seem recently to be directed to the wider audience than that occupying the public gallery.  Those of Sir James Munby about the inability of the NHS to find a secure appropriate institution to treat a young woman considered a suicide risk made headlines in  media from Twitter to TV and many in between. The ramifications of such outspokenness were well illustrated around Article 50.  Indeed the controversy might well have cost the incumbent and incompetent Lord Chancellor her job. My post of 1/12/2016 made the point that the remarks of senior judiciary are not necessarily unwelcome the caveat being that in so doing within our organically evolved and evolving constitution there is no firm guidance where their statements and/or opinions might be encroaching on the territory of others.

Magistrates` courts regulars have been familiar with the increasing numbers of so called McKenzie Friends appearing in court.  A once sincere and honourable way in which those with some limited knowledge and ability assisted a defendant is turning into a situation where non qualified persons take money from those who cannot afford professional qualified defence lawyers to represent them as a direct result of the strict rationing and increasing unavailability of legal aid. Crown courts are now experiencing this phenomenon virtually unheard of ten or fifteen years ago. Senior judiciary are  commenting on this unwelcome trend. 

With inevitable constitutional road blocks on the road ahead to Brexit there must surely be some comment and guidance for senior judiciary on making their opinions public,  if not from on high at least from the Lord Chancellor,  before such road blocks are staring us in the face and tripping us up.

SNAPSHOTS OF SOCIETY WARN OF THE SIRENS

When individual court cases or major malfunctions in NHS or Defence are highlighted in the media the response from officialdom is not unlikely to be words or phrases emphasising that the matter in question was atypical and for x,y and z reasons this department always has the safety of the public or the best interests of society and we have systems to cope etc etc etc.  The failure of such parrot fashion replies and excuses is that we have all been here before; the individual case or incident can be likened to a snapshot which although not giving a running account accurately depicts the vista at a particular time. The awful tragedy at Grenfell Tower is a recent example.  Eighty lives or more could have been saved but for the apparent complete malperformance of many individuals.  There is no doubt that those found guilty of criminal activity will pay dearly with the judiciary given reminder by whispers from on high that examples must be made just as happened after the riots of 2011 although there will never be official admission of such.  Thus this case a couple of weeks ago reported in Court News UK shows more clearly than any statistical analysis just why the great British public has so little faith in government being able to react to the worries and problems affecting so many citizens.  

There must or there should be eminent persons with the appropriate intellectual breadth and experience around but not beholden in any form to government who can spell out to those in Westminster just what reactions are taking place in our society often but not exclusively concerned with immigration, housing shortages and increasing disparities between the have far too much and the just about managing. The failure of policies and quangos operating under the control of the Home Office and MOJ and the inability to grasp that fundamental change must apply to the NHS as everywhere else can no longer be contained.  T.May`s pitiful attempts to explain conservatism as it is practised in SW1 are pitiful. Capitalism unleashed with no reins upon it is as dangerous for our society as Corbyn & Co preaching their brand of socialism like the sirens of old. The paradox is that that the more capitalism is allowed to rampage unhindered eg British Gas in a supposed market which is in name only the more Corbyn and his successors  can advance their cause just as the sirens did for ancient mariners. If that happens we`ll all be on the rocks.

A SMALL SIGH OF RELIEF FROM PROFESSIONALS

My professional life prior to and whilst an active magistrate was as an eyecare professional.  I must have inspected literally tens if not hundreds of thousands of retinae.  Some of these showed patterns of serious ocular or systemic disease and such patients were referred onwards to appropriate specialists. No doubt it was unlikely that I had not missed at least one case which might have caused serious problems for the patient. I will never know.  What I do know is that I retired with an exemplary professional record as do most eyecare professionals. Therefore it was with some soul searching that I first read of the optometrist found guilty last year of gross negligence manslaughter. There but for the grace of God go I. 

Earlier this week the Court of Appeal overturned her conviction. The basic argument for her appeal`s success is reported here in the local newspaper. It seems to me the logic is impeccable.  The parents who lost their child responded with anger; that is their privilege although it does take the form that they were denied their revenge.  My point about all this is that there seems to be implied criticism of the trial judge. It would appear that if he had put to the jury the necessary situation for guilt to be found in the same way as the Court of Appeal it is not unlikely that the jury would have acquitted. And if I repeat my comparison with the Scottish legal system a "not proven" verdict would have been IMHO more than just a possibility.  If my observations are accepted it puts the trial judge in a somewhat similar situation to the optometrist; negligence that requires investigation by the appropriate regulator.  It won`t happen. There will be no public knowledge if any ramifications result for the judge. However for many thousands of professionals a small sigh of relief should be heard loud and clear.

SENTENCING GUIDELINES//ASK THE SCOTTISH PEOPLE

For over ten years sentencers in England & Wales have lived with Sentencing Guidelines. Having been there at the beginning and noting their current manifestation at least as far as magistrates` courts are concerned I am not sorry that according to the MOJ and its rules my time was up a couple of years ago. Indeed I stopped sitting in advance of retirement so as not to have to pronounce on the iniquitous now rescinded Criminal Courts Charge.  The Guidelines in their latest incarnation are a labyrinthine exercise in algorithmic steps leading to a supposedly constant outcome for the circumstances of the offending in every area of the nation rich or poor, town or country, male or female or........oops........best I don`t go there........etc etc. By their very nature and reason for being they have removed almost entirely sentencers` discretion.  Any deviation has to be explained in open court.  Indeed if the present trend continues there will be no need for sentencers at all; it doesn`t take much imagination to foresee that a fully computer controlled algorithmic exercise could take over,  reducing costs and that is the watchword of the MOJ and its partner in crime the Home Office.  Their actions over this period prove that: closing courts, removing legal aid, privatising probation, running down prisons, taking police off the streets, decimating border protection.  I could go on.  Now the people of Scotland are being invited to offer their opinions on what kind of sentencing guidelines they would wish to have in place.  One thing I can guarantee is that they won`t be asked if they want a return to capital punishment even under the most stringent conditions.  My advice to any reading this resident over the border is to take a look at what we have in England & Wales and ask yourself; do you want your representatives on the bench to be hamstrung and for initiative and common sense to be relegated to memories of a bygone era?  You have a wonderful opportunity which we south of the border were not offered. Relish it.  Take it in both hands and offer your opinion.

THE SACKING OF RICHARD PAGE ex J.P. PART 2

"There are so many overlapping, complementary and contradictory  aspects to the apparently simple case of Richard Page that it is my belief that we ain`t heard the half of it yet".  I concluded my post of 18/3/2016 with the preceding sentence. Now the case has taken a further twist; Mr Page, from Kent, is bringing a claim of discrimination, harassment and victimisation against the NHS Trust Development Authority, under the Equality Act 2010. A four-day hearing begins today at Croydon Employment Tribunal.

Background information is available here on Christian Concern.  

THE JEREMIAH JUSTICE OF THE PEACE BLOG

When I was a student the situation re law `n order was on the surface reasonably transparent; you committed an act which for various reasons was considered illegal, somebody called the police and if admitting guilt or found guilty an appropriate punishment would be ordered: simples.  Not any more it is. Councils in liaison with or without police have umpteen powers to enforce restrictions, impose fines, relocate individuals etc all without the orders of a court.  In straightforward language those people who transgress in someway against certain specified norms and who can be wholly innocent of any criminal offence can be subjected to arbritary demands of a council official or police constable.  In most such cases the victimes have not the wherewithall in any worthwhile capacity to resist such orders.  This case is a classic example.  The property does not belong to the council but to a private landlord and no charges have apparently been brought against either of the occupants yet one of them has been evicted.  By its very nature the report is brief but is this really the way our society has developed since the swinging sixties?  Salami slicing of our freedoms is progressing at a frightening pace yet the real issues of today are brushed under the political carpet. For obvious reasons I have more than average knowledge and awareness of what goes on in most aspects of our lives that can even loosely be described as the manifestations of what pass for policies at the MOJ and Home Office. But I ask myself; what is happening within the NHS and associated organisations where I have no special knowledge or within the MOD where aircraft carriers are constructed at billions of pounds over estimates to accommodate planes that don`t perform according to projections, to a railway expansion where those in control deny that the final price will double original numbers and where others insist that its construction is unnecessary and of a governemnt forced into having a referendum which is incompatible with parliamentary democracy the governing party of which chose its least objectionable individual to be our prime minister whose inadequate abilities are now on public display to our collective cost.

Societies do not implode overnight. Blatent anti semitism openly tolerated in the Labour Party is not an instant reacion to Israel`s survival in 1967 or the Entebbe rescue in 1976 both of which were lauded by most people and parties in the West. Drug addiction on its current scale didn`t arise from nowhere.  Private health insurence was unknown for 99% of the population forty years ago.  Nations and their societies are living organic entities; they are subject to continual incremental change.  That process can develop in many directions and each of us can offer some input. That being the case those whom we endow with our votes from time to time have failed us, are failing us and God help us will continue to fail us.  Perhaps I should change the title of this blog to Jeremiah Justice of the Peace.

IS 2 OUT OF 3 A SATISFACTORY MARGIN FOR GUILTY VERDICT IN COURT?

In all the many hundreds of articles, tweets, posts etc on the workings of magistrates` courts rarely is it written or explained that in a bench of three lay magistrates a unanimous decision on guilt or innocence is not required; it is sufficient for only two of the bench of three to be in agreement.  Such a majority verdict is not made public. The court is simply informed of the decision.  This has long struck me as at least inherently less than transparent and at most departing from judicial honesty. The fact that I have never heard comment form senior judiciary is astonishing.  If the public were to be told there would not unlikely be an outcry.  In Scotland`s higher court a simple majority of fifteen jurors is all that is required for a guilty verdict. At all court levels including summary matters a third option is the "not proven" verdict. Wikipedia is a fine reference source. If ever there was an argument and one with which I agree for the Scottish Verdict to be available in England surely it is in the magistrates` court that it should be offered.  JPs are not random jurors taken from the electoral register; they are highly trained people skilled in the forensic analysis of complicated and/or technical argument.  If one third of their number has reasonable doubt on guilt surely that should have significance. When it comes to sentencing the stakes are equally high in such a circumstance.  When in my position as a dissenter I have been asked for my input when exploring the sentencing structure I have often recused myself from proceeding through the maze which the Sentencing Guidelines have made compulsory. If that experience was whilst I was chairman of the bench I limited my input to ensuring that my colleagues had followed correct procedures in line with their perceived reasoning. I know that colleagues took different options in these circumstances.  I also know that many were not bothered at all.  With a bench of two and an intractable collision of opinion obvious difficulties arise.  I have experienced situations where the JP for guilty felt duty bound to go along with his/her not guilty colleague; a course of action which I believe follows judicial oath. Very occasionally a mistrial was declared and the game was replayed.

There are lessons to be learnt and changes to be implemented. I have often wondered why an even number of jurors is selected.  Surely the principle of an odd number as in Scotland even with a more limited majority decision required makes more sense and would obviate the need for mistrial outcomes.  The Law Commission or another appropriate body should undertake a redefining of what makes for a guilty verdict in magistrates` courts and opinion expressed on the 2/3 majority remaining valid and withheld from the public.  

 

THE CPS//QUANTITY INJUSTICES OVER QUALITY JUSTICE

Everybody likes to win whatever the competition. The anodyne statement that "It`s the taking part that counts" is often just an excuse for losers. Organisations of all sizes and complexities will always seek to demonstrate that their performance in one way or another is the best or is improving at such a rate that confidence in its ability to do whatever it`s supposed to do is or has improved. Business, academia, trades, professions etc etc all provide statistics and/or analyses to indicate their success or to provide reasons (excuses) for a poor or unfulfilled performance. Nowhere IMHO is this approach more seriously undertaken than at the MOJ.  It might be my imagination or incompetence but I have the clear impression that there are now fewer statistics published on dealings at magistrates` courts than in years gone by. For sure there are tables on courts` efficiencies and timeliness but I have today found it impossible to source numbers of defendants and convictions on charges of common assault; a summary offence with a maximum sentence of six months custody.  Assault occasioning actual bodily harm is an either way offence with a maximum sentence at crown court of five years custody. Sentencing Guidelines are available here. As all who work in the courts` system will probably know already there is a marked tendency of the CPS to undercharge.  Nowhere is this more apparent than in the aforesaid matter of "assault". Two reasons are responsible; charging common assault in the lower court is very much cheaper than taking it to crown court and secondly the chances of a conviction are greater simply because a "serious" matter charged as a lesser offence will more likely elicit a guilty plea or the facts are more likely to be proved. The result is that hundreds if not thousands of victims are cheated of seeing their assailant getting his just rewards and as a corollary offenders are much more likely to be less limited in their venom and aggression in the full knowledge that if they are caught and convicted the punishments will be relatively minor and certainly not appropriate for the degree of violence employed.  

Paul Gascoyne; Gaza, a former highly rated international footballer with a sorry record of domestic violence and inebriation as an alcoholic leading to severe mental disorders was, last year, the subject of a viscous assault which caused severe injuries. The offender pleaded guilty to common assault. The report is here. My question is whether or not such an assault was far in excess of common assault. Should it have been charged as the more serious and consequential ABH with the possibility of an initial not guilty plea leading to an expensive crown court trial?  I leave it to readers to make their own conclusions but in my opinion this is a truly awful example of my opening sentences of this post. The CPS sacrifices quality justice for quantity injustices.

COURTS` EXTENDED HOURS

With increasing concern at the plans of HMCTS to impose extended hours for court sittings Twitter has been a useful pointer.  On Inside HMCTS Blog there is published a series of questions and observations to the organisation including by a couple of crown court judges.  Surprisingly there is not a single word referring to or written by magistrates except an unanswered series of questions I noticed yesterday.  I copy that part below and will do similar when a reply is published. 

Have you secured sufficient numbers of magistrates to the proposed rota for extended hours? Similarly have you DJs in place. If to my first question the answer is "no" will you attempt to use DJs more often? Have you sufficient of them for your proposed needs? Do you have a division of sittings in mind for JPs and DJs?

PUTTING THE WORLD TO RIGHTS

Put the world to rights; that phrase is often used to describe conversations in the pub where Joe Everyman gives his opinion on what he would do to change the world between downing his pint and opening another packet of crisps.  It is a derogatory way that the elite of this country describe the opinions of the plebs.  There are, however, some situations where the elite have failed us, are failing us and will continue to fail us. Nowhere is this disdain for acting for the common good more apparent than in the panoply of our justice system.  I have posted, perhaps too often, on the failure of government to divert addicts from the criminal justice system to the health services.  The active removal of legal safeguards for defendants in our courts by the withdrawal of legal aid for those most in need is nothing short of a disgrace. The removal similarly of that benefit to parents in the family courts as demonstrated by the tragic matter of baby Charlie whose parents were able to seek justice whatever the outcome only by pro bono work of unselfish lawyers is as clear a demonstration as could be manufactured of the total disregard of the realities of life for most people. It is not unlikely that this case will lead to a review of legal aid provision in the family court where hundreds if not thousands of parents have had to be litigants in person; a situation not to their advantage nor to the courts where time is costed by a team of accountants at HMCTS. 

In the last twenty years begging and vagrancy have become more apparent in larger towns and cities and with the accession of the East European states to the EU and thus to our shores the problem has increased. The Victorians had a simple way of dealing with the down and outs of society 150 years ago; the workhouse where basic provision was made to shelter and feed such unfortunates until such time they could find their feet in a winner takes nearly all society.  The unenlightened attitudes of local councils since the turn of the millennium have been brought into the spotlight by the tragic events at Grenfell Tower. The revelations still to be made will demonstrate the inadequacy of local government.  The unadulterated rottenness of elected and employed individuals exposed in Rochdale and other northern towns when confronted by  Muslim scum whose heinous activities were allowed to prosper by the ineptitude at the best and politically correct tolerance at worst  will long be remembered as a carbuncle on the face of these councils. In Oxford the Labour controlled council has decreed that homeless people "who keep possessions in doorways could face fines of up to £2,500 for being ‘detrimental’ to the area". As magistrates a guiding light on sentencing has always been that offenders should not be set up to fail by the imposition of impossible to fulfil  requirements. The burghers of Oxford are deserving of public disgrace. They should be pilloried and showered with rotten tomatoes. To threaten vagrants with what appears to be a form of locally approved ASBOs the breaching of which will not be able to be funded is a recipe for failure.  This country was made great during the Victorian era in spirit as well as in prosperity.  There is no doubt that a modern form of the workhouse with compulsory attendance under some form of supervision combined with medical assistance to cure a drug habit would be beneficial to all with lives saved, criminality reduced and in the long run financial expenditure reduced. But we are plebs; who cares what we think. It`s just more pub talk putting the world to rights.

PUBLIC DISUNITY//WHY THERESA MAY MUST GO NOW

It seems to this distant observer that a form of mob rule is gradually taking over certain areas or our lives.  On a political level Big Chief Corbyn and his indian braves have asserted that one way to achieve power is by having a 1,000,000 protesters on the streets. This should not be a surprise.  That he is an avowed Marxist who has made no secret of his intentions is clear from this speech in 2012.  As is their historical profile those of similar philosophy have been involved (allegedly) when local groups have had and are having real concerns about decisions affecting their lives made by socially and politically distant often state connected organisations. The issues surrounding the Grenfell fire, genuine and perhaps criminal, are being used to undermine the fabric of the state and it is not unlikely that a few years down the line results of inquiries and prosecutions whatever the results  will be used as stick to beat all authorities however involved.

Actions of police are under the microscope of public opinion at a wholly different level. They used to be literally a law unto themselves. Not a week goes by when that attitude is revealed still to be motivating a not inconsiderable number of police officers. Last year 108 police officers were dismissed for misconduct. The bar for sacking is set very high.  Much of the Policing and Crime Bill`s sections on police discipline became law a few months ago in the corresponding Act.  The amount of criminality within the police is quite shocking for the layman to comprehend the Met Police being the cheerleader.

As a result of public policy by the Home Office led by a certain Mrs T. May police were instructed to reduce "stop & search" and the pursuit of those using vehicles to evade arrest or questioning.  The unintended consequences have been an unholy increase in knife crime and an explosion in criminals evading arrest by using mopeds as getaway vehicles. There is considerable controversy over the numbers within these topics. That controversy is both political and statistical in quantity and quality.

What is not in doubt is the increase in mob behaviour generally when disputed matters go public epitomised by the situation of the baby Charlie and that surrounding areas where permission has been granted for fracking. Decisions by legally authorised public bodies are being challenged by no less than mob rule.  There are many definitions of "mob" but they all have a similar underlying theme of the possibility of violence resulting; "a large or disorderly crowd; especially : one bent on riotous or destructive action". 

One essential requirement for a democratic society to exist or even flourish is the freedom to demonstrate on the streets of our towns and cities and where such peaceful protest is sanctioned by police. Such freedom to protest is itself never far from dispute eg the flying of the flags of a terrorist organisation recently in London where the police did not intervene on the basis that they considered that the non military part of the organisation was indicated on the flags.   

With Brexit negotiations in effect, a left wing take over of Labour in the offing, a Tory Party in disarray, little indication of large numbers of Muslims willing to adapt to a British society and to accept their minority status, pork barrel politics to bribe the DUP and Scots Nats still howling independance, reduced public confidence in our institutions bodes ill for a harmonious future.  All those however loosely described as The Establishment must react to the twitching antennae of public mores and do their utmost to unite where there is currently disunity. Such decisiveness must come from the top. Theresa May must go NOW.

COURT CLOSURES

All you need to know about court closures.

BENCHES ARE NOT HANGERS AND FLOGGERS

There are single issue lobbyists financed often by wealthy individuals whose purpose in life, in addition to their salaries, is to discredit the benefit of short custodial sentences whilst at the same time to manipulate statistics to indicate that such sentences are failing, expensive and no deterrent to offenders. In addition magistrates are often accused of being too ready to sentence recidivists to immediate custody notwithstanding guidelines being followed. This case earlier this week before Swindon magistrates is an example of what really happens at every similar court every day countrywide. Benches go out of their way, sometimes in defiance of guidelines, to avoid sending offenders to immediate custody.  Indeed such decisions often bring unwelcome criticism from members of the public insofar as they are seen to be "too soft".  With the latest report on the utterly appalling conditions in our prisons a prison sentence must be a test of strength, mental and physical, for many in order to have a chance of rehabilitation. The absolute incompetence of successive Justice Secretaries since 2010 with the possible exemption of Michael Gove, has been a prime cause.  Predictable problems with interpreters, legal aid, probation service, prison officers, police have all contributed to the current position with Theresa May`s six years at the Home Office as much a failure as her colleagues` debacle at Petty France. There`s austerity and there`s foolhardiness.

When a population loses confidence in all that comprises a justice system black clouds on the horizon are just a pre cursor to a storm ahead.

DIVERSITY IN THE JUDICIARY

Latest judicial diversity statistics are published today.

ACCUSATIONS OF VERBAL ABUSE CAN BE AN ABUSE OF FREE SPEECH

“Verbal abuse is the use of words to cause harm to the person being spoken to. It is difficult to define and may take many forms. Similarly, the harm caused is often difficult to measure. The most commonly understood form is name-calling. Verbal abuse may consist of shouting, insulting, intimidating, threatening, shaming, demeaning, or derogatory language, among other forms of communication.”

It was brought home to me over twenty years ago in a fairly crowded retail unit in a town with the dubious reputation at the time of being just about the most racist place in England when two rather large tattooed white shaven headed gentlemen about forty years old remonstrated with a group of white teenage boys who were foully verbally abusing a middle aged South Asian man and his wife, that some sort of social self censorship was taking place as to just what was acceptable or unacceptable in a public place. For a few reasons perhaps we have reached a situation where many are simply too afraid of speaking openly; afraid that in effect recourse to s.5 Public Order Act will be taken by a self certificating aggrieved party.

Some years ago I was in the large entrance hall of a general hospital waiting for the return of a relative from a consultation in a room in nearby corridor. My mobile phone rang and almost immediately there was a shout, “Get that off; didn`t you see the sign?” In truth I hadn`t. Almost before I could retrieve it from deep in a pocket that individual behind a nearby desk screamed, “If you don`t put that off now I`ll get security!” By then I had reached the exit. 

A few years ago I was with an elderly relative at her G.P. requesting a copy of recent blood tests which should have been e-mailed to her by the practice. When the practice manager demanded £20 to produce a copy my relative said firmly that that was outrageous and it should not be charged for. Her language was polite and precise but perhaps her volume was a touch raised. The doctor emerged (a locum unknown to my relative) and confirmed she could not have the test results unless she paid but in the circumstances offered a reduced fee of £10.00. With great reluctance I handed over said fee on her behalf and we left with the copy. Two weeks later she was told in writing that she had been removed from the doctor`s list because her language and behaviour and general verbal abusing of him and the staff had put them (there were no patients) in fear of violence. As an aside, efforts by my relative`s nearest and dearest had the G.P. reprimanded and the £10 refunded. The expulsion was cancelled but of course she had since made other arrangements for her medical care. The point remains that by the definition above the perpetrator of any verbal abuse could arguably have been the doctor and his manager.

A few months ago at one of the major supermarkets as I was placing about £180 worth of groceries on the conveyor belt the cashier told me there were no large bags available and began opening bags each just about big enough to place a lettuce. I told him that they were unacceptable and unless he found large bags the goods would remain in the trolley or on the belt and I would go to the competition. He replied that the store had run out of normal sized bags and continued that he would tolerate no abuse from me. He refused to continue. His colleague on the adjoining till suggested he seek some bags. In the end I spoke to a nearby manager who conjured up enough bags to serve my requirements and reminded the cashier of his position.

Four simple anecdotes separated by twenty years but by an eon in public attitudes. Anywhere and everywhere are notices where public and employees converge that have the message that “abuse to staff will not be tolerated” or some such similar wording. “Verbal abuse” is a term that would have been unfamiliar in the swinging sixties. There is remarkably little evidence of its origin but I would venture it arose around the same time as the feminist lobby began to agitate for equal rights in employment etc and became a term commonly used to describe dysfunctional intimate relationships between men and women. Be that as it may the circumscription around many forms of disagreement especially when police are involved under s.5 using the pretext “verbal abuse” is one that magistrates must openly confront. The current trends to stifling free speech are singularly wafer thin but put those slices of self censorship in a bundle and it can be more easily recognised how far from the free speech of the 1950s we have travelled. Magistrates  must administer the law as it stands; not as they might wish it to be but they can and should take a broad look at any individual circumstance.

PROHIBITION UK STYLE

From their very inception I was concerned at the implications of that wonderful, so they said, innovation; the ASBO.  Having to impose such I did my judicial duty but without enthusiasm. ASBO was but the first of many so called exclusion notices. For the last ten years constables have had the authority to issue a written exclusion notice to anyone considered to represent a "risk of disorder", even if they are not drunk or have committed no offence. The aim is to enable the police to stop violence escalating by immediately removing potential troublemakers from the scene. As a matter of interest David Davis, the shadow home secretary at the time,  said the Conservatives would consider backing the proposals but said Labour "has form for making headline-grabbing announcements only to fail to follow them up"; another politician`s words coming back to haunt him.......as if they care; it`s happening all the time. Soon to follow was the CRASBO; criminal anti-social behaviour order.  I sat on the very first hearing in this country where such was brought.  It was a shambles and we threw it out.  Notices can be issued to those whose presence "is likely, in all the circumstances, to cause or contribute to the occurrence or continuance in that locality of alcohol-related crime or disorder". Magistrates' courts are able to issue civil orders banning persistent drunks and binge drinkers from all pubs and clubs in designated areas for up to two years and  operate on a similar basis to Asbos which have been condemned by a European human rights group  These were designated Drinking Banning Orders with criminal sanctions if breached.  Their effect was to displace the offence to another locality or to set up an order for him/her to fail when such orders referred to the whole county or even the whole country. And these orders sometimes without due process don`t stop.  Domestic Violence Protection Notices allow police to exclude a householder from his/her own home on the say so of a senior officer. 

Nationwide it seems there has been a steady increase in begging whether through increased poverty and/or straightened circumstances owing to addiction(s). The problem local authorities have is, of course, what to do about it. Leamington Magistrates Court on behalf of the local council has issued one such vagrant with the ubiquitous CRASBO.  This will solve nothing except that the offender will be before another court sooner or later on a criminal charge for which he will probably be imprisoned.

This little story is typical of so much that this and previous governments do in order to paper over deep problems in our society.  Today`s announcement by the Home Secretary that she seeks to introduce new legislation on banning knives is just another pathetic attempt to remedy what are thought to be intractable problems.  They are not. They require only honesty, money and a sincere wish to get to grip with one of society`s problems.  If that requires authoritarian means so be it I say. 

PS Last month on 21st June I predicted legislation on knives by the new Justice Secretary.  I didn`t think it would come so soon. Seems I had the wrong department in mind but the right idea. 

A NEW MAGISTRATE`S OPINIONS

It would seem that MOJ has decided that more Justices of the Peace need to be appointed. The article in this local newspaper is one of many similar I have read over the last few months.  What does strike me, however, is the quote of a new magistrate when commenting on a decision of custody, "There were long discussions about whether it was the right thing to do, what purpose it would serve and the impact on both the defendant, and of course the wider community and the victim". 

He does not mention Guidelines or public protection except for "impact". I also consider it questionable if "the right thing to do" is part of a structured sentencing exercise.  As far as I am aware the victims` considerations should not inform sentencing. But then having been appointed 20 years ago my attitudes, training and experience might now be considered anti deluvian if I were still active.