BENCH CHAIRMEN SHOULD NOT "FEEL"

Over 2 million disabled blue badge holders have special parking privileges. Fewer than 1000 prosecutions are brought against those who abuse the system by using counterfeit badges or otherwise fraudulently try to play the system. Since prosecutions are the responsibility of local councils and those councils often appear to be more interested in using their reducing resources for other matters that are more profitable many magistrates will not have been involved in such matters. I first posted on this topic earlier this year on 23rd February. A recent case, I suppose because of the rarity and because of the affluence of the offender, caught my attention. 

What strikes me about the case is not reported in the national press; one of my eyes and ears on the ground has informed me of the purported statement of the bench chairman: "We feel that you used the blue badge deliberately. We feel that the offence requires a fine but we have taken into account your early guilty plea".........(my bold)

As a bench chairman for many years I generally did not make pronouncements parrot fashion from the "book" but always made very clear the bench`s reasoning, intentions and any other considerations appropriate to the individual.  Neither I nor any other chairman with whom I sat ever used the phrase we feel or anything similar.  One might say that using those words was just a matter of that chairman`s style.  I would opine that it typifies lack of cogent thought, reasoning, common sense and use of language; factors which should be a requirement for the position.  But then this is the result of trying to train people to be chairmen and allowing them to sit for a minimum of only twenty six half days annually. It has often be said by those wiser than I that leaders are not made, they just are. Chairmen of a bench are leaders; some are capable to lead and others...................

Most professionals whatever their speciality whether it be wood carving, train driving, architectural designing or plastic surgery know well that frequency of performance is essential to retain or upgrade skills. Over twenty years ago when abdominal laparoscopic surgery was in its infancy and I required a double hernia operation I asked my chosen surgeon how many such procedures he had performed and how many had he required to redo: four hundred & three and two were his respective answers. My op went perfectly.  There is no doubt in my mind that trying to teach or train people to be bench chairmen is a difficult task. There is also no doubt that sitting on twenty six half days each year is inadequate for most to attain the required abilities to do the job satisfactorily.  It is not unlikely that poor performances as exemplified by today`s example above and others more blatant will be used as examples by those who desire to reduce JPs` role within the court environment in the not too distant future.Indeed on some social media that point is frequently made.

NO JAIL = NO PUBLIC CONFIDENCE

The current on line edition of the Bath Chronicle has the following on its front page:-

"Michael Stephen Phillips, 50, of Haycombe Drive in Twerton, was given a suspended prison sentence after he admitted assaulting a woman in Stothert Avenue, Bath Riverside. Magistrates noted the following aggravating factors: “domestic violence, nature of injury, sustained assault on a vulnerable victim plus previous conviction against same person”. Phillips was committed to prison for 16 weeks, suspended for 18 months. He must take part in a building better relationships programme for 42 days and a restraining order was made. He was ordered to pay £250 in compensation, a £115 victim surcharge and £85 Crown Prosecution Service costs".

The fact of not imposing immediate custody whatever the personal circumstances of this offender, circumstances which the reporter deemed unnecessary to write up, is nothing short of disgraceful if the public is to have confidence that our judicial system is one in which they can have confidence.   When that confidence is eroded so is a pillar of our democracy.

DAVID LAMMY`S SELF SERVING REVIEW

I must declare that I have never had any respect for David Lammy M.P. IMHO he is a self seeking publicist and will do or say anything regarding supposed bias against individuals who are self describing ethnic minorities. No sooner had the referendum result been announced late June 23rd last year than the morning headlines were David Lammy M.P. arguing for a second one to get the "right" answer. Somehow or another using influence unknown to me he persuaded David Cameron that he should carry out a review of the treatment of aforesaid ethnic minority people within the criminal justice system.  I have written  this blog as a labour of love for over nine years and I don`t intend to burden myself with reading the 108 pages of the review; just the introduction where in addition to a link to the final Report you will notice said gentleman`s picture on the page. That speaks for itself on his underlying personality.   I draw your attention to the following paragraph copied below:- 

Apart from there being no statistical evidence for the above; "more confidence" is purely subjective, in all my years on the bench I detected no bias from white colleagues at any time towards those of ethnic minority status.  Some will say; ah.......but you would have had unconscious bias against black people.  To that I would answer........bollocks.  Now my experiences were not unique.  I will admit that amongst the coterie of 29,000 magistrates as was  there probably was a small minority who might have exposed their inherent discrimination but they would have been swiftly brought to order by their colleagues. 

It is people like Lammy who spread the discord. They forever preach of discrimination where it exists only in the mind of the accuser. It is just another sign of objectivity in the CJS being driven by so called "victims" such a term often in my experience being used by CPS and others prior to conviction when the correct term is "complainant". Similar processes are at work when university chancellors agree with the concept of "safe spaces" for those who fear being offended by opposing ideas.  Truly my fears of approaching 1984 in some previous posts are being realised quicker than I can comment upon them.

SHORT JAIL SENTENCES AND POLITICAL & RELIGIOUS TOLERANCE

Those who forever and a day lobby for short prison sentences to be abolished have recently been able to lift up their eyes and gaze longingly at proposals north of the border to do just that. It is not a foregone conclusion. The protagonists of this policy change seem to be unable to consider that the situation with recidivism is as much to do with the dumbing down of the probation service since 2010 and the collapse of structures within the prison service over decades. How can prison governors fulfil their remit if they have barely enough to feed their charges never mind rehabilitate them? How can probation services do their jobs with political shenanigans in their recent privatisation and reduced funding combined with general uncertainty for those at the sharp end?

Sooner or later one government or another must explain to the great British public that prison services, justice systems, defence requirements must have much more money spent on them; not the euphemism "invested" as Labour politicians continually preach. That money has to come from increased taxation or reductions in the budget of the holy cow NHS.  Governments especially prime ministers are entrusted and enabled to lead we citizens but currently they are sheep being led by the nose. Perhaps that is why Jacob Rees-Mogg has emerged from rank and file Tories as a future PM.  He has shown his backbone by declaring his Catholic faith and consequences of that faith. If they are kept as his private  belief system just as MPs of Muslim, Hindu, Jewish, Jedi or no faith do there is no problem. Similar arguments against him were put to Jack Kennedy in 1960. He declared that the US Constitution would be his guide; not the Pope. The antagonistic sheer nastiness being directed at  Rees-Mogg from the left especially on social media is a disgrace to our values. It is illogical and all right thinking people should reject it.  Oppose him on political grounds but opposition because of his religion is a dangerous intolerant route to take with catastrophic destinations.   

HMCTS INVITES QUESTIONS BUT DOESN`T ANSWER THEM

On 21st July HMCTS initiated an on line question and answer page on proposed pilot schemes to extend the working hours of magistrates` and crown courts. It seems, surprise, surprise that many points made by various contributors remain unanswered.  What an indictment of the senior management of that organisation that offers a sounding board to interested parties and then ignores the responses. 

SALAMI SLICING TO 1984

The army is, according to reports, thousands of men short of its anticipated even lowered capacity.  Two hundred or so years ago at the height of the Napoleonic Wars there was no problem in recruitment for the army or the navy;  admirals sent well armed hard men around the country and press ganged reluctant sailors.  The army was equally robust.  We are constantly informed now that in the 21st century a career for intelligent people is awaiting them in the army, navy or air force and one would have thought that even when recruitment is below expectations feeding from the bottom of our social strata would be conducted with some care. Combine that thought with a bench of magistrates that seems to have abandoned its duty of public protection, a probation service that considers custody an anathema and we have a ridiculous situation of a thief with 25 previous convictions who has broken his early release license being given a conditional discharge. 

This is the reality of those individuals and organisations that are daily propagating the notion that non violent offenders should not be jailed, that custodial sentences of up to six months should be withdrawn in favour of so called "community sentences".  We have all noted what has happened since the closure of dozens of mental health institutions and their inhabitants entrusted to "care in the community".  Every time planning for a new prison is approved the cry goes out that prison doesn`t work in the same way that when motorways are extended or newly built the cry goes out that their very construction will encourage more traffic. 

We are living in very dangerous times.  Every day another incident happens which is undermining our freedom of expression or confidence in those who govern or guide us whether in the universities, the armed forces or parliament where an incompetent prime minister can threaten colleagues` jobs in order to prolong her existence and to hell with what`s best for the country.  We are salami slicing to 1984.

DEATH BY DANGEROUS AND/OR CARELESS DRIVING

DANGEROUS DRIVING:A person drives dangerously when the way they drive falls far below the minimum acceptable standard expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

CARELESS/INCONSIDERATE DRIVING. Road Traffic (NI) Order 1995. 12.- If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

The charge of Causing Death by Dangerous Driving is a much more serious charge than Causing Death by Careless Driving with a maximum penalty of 14 years in prison but its definition differs in only one word: it can be brought when driving 'fell far below the standard expected of a careful and competent driver'.

The above definitions or words very similar are the bases on which the CPS initiates charges.  When death occurs as a result of the lesser charge the maximum punishment is five years imprisonment; a considerable reduction cf the more serious offence.  Although the lesser offence is either way it is highly unlikely that any JP has ever sat on such a charge: as far as I am aware neither I nor any former colleague of mine ever did.  I would opine that my comments to follow are those of a layman with perhaps a smattering of legal knowledge and awareness and those with professional experience might have a field day with their literary rotten tomatoes.

The basis of dangerous driving would appear, from the definition above, to be founded upon a comparison of an offender`s driving ability  with that of a "competent and careful driver".  But how would the definition be interpreted if the offender had inherently demonstrated that he was not at the time a competent and careful driver but of such a standard only that he possessed a valid driving license? That would IMHO lead to a very searching definition of the words "competent and careful" and if it could be shown that the offender did not fulfil that secondary requirement he could not then be subject to an accusation of dangerous driving.  With that in mind I would refer you to this recent case. Going by the report the actions of the offender were far from careless; they were culpably dangerous. Road traffic lawyers might disagree.  In any event I would opine that in this case where the offender pleaded guilty it is not unlikely that when originally presented with the more serious charge he was offered a plea bargain insofar as a guilty plea to careless driving would reduce considerably his expected jail time.  

I would conclude by offering the thought that the definition used for death by dangerous driving is in need of re thinking so that there is less opportunity for aggressive and truly evil drivers to be offered similar plea bargains in future. Manslaughter and murder might be examples where the demarcation line is more clearly drawn and could serve as a basis for putting away deserving offenders for the longer custodial periods they deserve. 

COURT CLOSURES

The closure of hundreds of magistrates courts by the end of this parliament has enraged lawyers and magistrates not unnaturally but little is heard from disinterested 3rd parties. Of course it`s a perfect bandwagon for MPs to latch on to whatever their party but a fat lot of good they do in this regard when the decision is made before the ubiquitous "consultation" is promulgated. However the reporter of Devon Live gives his opinion as a layman on this subject.  It`s worth a look.

IS A ROSE RED AT NIGHT?

Intending philosophy students and others have their favourite examples of simple conundrums.  Two of these are is a rose red at night and does a falling tree make a noise in the forest when nobody is there to hear it.  A similar thinking process seems to be behind the defence of a blind man charged with viewing child porn. As a retired eyecare professional the case has a significance for me but let`s assume his defence is unchallenged and no expert witnesses testify.  How would my reader react if s/he were on the bench?

"MINORITY REPORT" NO LONGER JUST SCI FI

In 2002 Steven Spielberg directed and Tom Cruise starred in the Oscar and BAFTA nominated movie Minority Report.  This is not a film review site but it`s well worth £2.49 from Amazon. I choose to begin this post insofar as the work itself is described as science fiction. Star Trek in 1966 was also described as sci fi and looking at some of its fixtures and fittings it was just sci truth fifty years ahead of its time. The era of actually predicting criminal behaviour is not quite with us........just yet but the era of sanctioning criminal behaviour which has not happened is with us in the here and now. 

Under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences and unconvicted people thought to be at risk of offending can be registered. The Register can be accessed by the Police, National Probation Service and HM Prison Service personnel. It is managed by the National Policing Improvement Agency of the Home Office.  As with so many factors, policies and actions which constitute the outpourings of the MOJ, Home Office and other government departments interfaced with Law `n Order a majority of the population couldn`t care less except for harbouring a complaint when asked, that sentences are not "tough enough".  That is why we have such an expansion of the prison population.  Incidents of dogs killing or injuring young children led to the iniquitous Dangerous Dogs Act 1991. More recently death by careless driving was created in response to public opinion and led the government to use an unpredictable outcome to justify the imposition of custody where none previously existed.  Dangerous cycling might conceivably be on the statute books before the next general election prompted by the recent tragedy in London. Whether or not in such circumstances government ought to follow or lead is a matter of political philosophy. But my problem today is being reconciled to severe limitations on individual liberty where no crime has been committed and where an offender has apparently paid the debt society demands; where the slate has been wiped legally clean. 

Sex is no longer a dirty word as it was pre the Great War.  Sexual offences, however, are very much in the public eye.  They still shock.  Perpetrators of such are still reviled.  But it seems that just as gay people were badly treated before the swinging sixties changed public attitudes and then the law, paedophilia whether caused by physiological and/or anatomical dysfunction in the brain  or is a learnt behaviour, a matter in dispute, sanctions will never be too severe for Mr & Mrs Joe Public.  Should such people be in effect punished before they commit a crime? The 2003 Act specifically allows this and I don`t recollect too much opposition at the time.  In the case of Paul Colin Carter his punishment (or some would say restriction) is extended.  He is not alone in being subjected to control for the possibility of future offending when his tariff has expired. He is not alone insofar as sex is often the basis of such restrictions.  There was the notorious case last year when a man was ordered to tell police 24 hours in advance of his intention to have sexual relations with a woman.  These two cases are not the same; they might not even be considered similar but they are happening because of a legal system which is taking us closer and closer to Steven Spielberg`s and writer Philip K. Dick`s vision of a dystopian future.  Do we really want or need to taken there? 

A LESSON IN CONTEMPT OF COURT

It didn`t happen more than a couple of times when I was active in the middle chair but in the last resort loud mouthed defendants screaming obscenities must face jail time if they persist in their abuse despite being warned of the consequences.  I also believe that many of my colleagues were hesitant to use such powers in the face of court being disrupted by individuals whose mouths were uncontrollable. Others would surreptitiously glance at the legal advisor for assurance or guidance; a sign of increasing lack of confidence IMHO within today`s magistracy encouraged by Deputy Justices Clerks forever mindful of being stamped upon from above. The words and actions of HH Judge Simon James at Canterbury Crown Court earlier this week serve as a perfect example of how such offenders must be handled to preserve the dignity of court procedure.

WHAT KIND OF JUSTICE IS THIS?

Before retirement from the bench from time to time I posted on cases where I was in court the participants and all identifying features obscured of course.  Now I am an ordinary member of the public reading of cases countrywide but with, I hope, some knowledge that Joe Public lacks. For example Mr Public is not aware that currently there is no charge of "domestic violence" per se but the usual charge, common assault by beating, is highly aggravated if the offence could be construed as DV. Indeed the offence as such in certain instances can be used to exclude a possible offender from his.....it`s usually a male.....own property on the say so of a police officer without any interference from a court. Another aggravating circumstance which also applies to many crimes from common assault to murder is premeditation.  I`ll add another aggravating factor which paradoxically is sometimes argued as mitigating by ignorant solicitors; drunkenness. To top it all the vulnerability of the victim must also be considered. Now read the report on this case. 

Both as a retired magistrate and as a member of the public I find the sentence absolutely shocking. Even allowing for a guilty plea it seems the bench did not consider that not only did the combination of offences not reach the custody threshold, they warranted only a minimum community punishment. There will be no official looking into this matter. Nobody on that bench will be admonished. The legal advisor will carry on as previously and every reader of local media and the police officers involved will wonder just what kind of justice is available for scum like this offender. There should be an official complaint so that these J.P.s dispense justice according to society`s requirements even although these requirements are based on a tick box exercise called Sentencing Guidelines. They are all we have.

LEGAL SLEDGE HAMMER TO OFFENSIVE NUT

My weekly inspection of HMCTS` own blog on the topic of extending courts` hours shows that specific questions in relation to magistrates` involvement in this pilot posted on July 25th by "May" have as yet received no comment from HMCTS.  I`ll look again next week.  The original post on HMCTS is copied below:-

May posted on on 25 July 2017

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?

To matters more serious........In my previous life I was an eyecare professional and therefore have a particular interest when legal matters however remotely connected to that activity come to my attention whether in hospital, optical practice or concerning the regulatory authorities of such professions and related bodies. 

The pervading association of racism with many summary and either way offences has become common place over the last twenty years.  Indeed the use of the ubiquitous phrase "hate crime" is like an amoeba or a gigantic ever spreading blob and has kept a myriad of snotty nosed weasels in Petty France hovering over their keyboards at the slightest possibility of widening the net into which  extensions to the law might be possible. 

In some respects the Scottish legal system has unique aspects all of its own. But in the case reported here the principles are quite clear.  It is not a matter of a professional refusing to treat or accept a patient or client owing to racial or ethnic preferences and/or prejudices an act which at the least could give cause for an appropriate regulatory body to consider charges even if the matter didn`t lead to criminal proceedings.  It is a person requiring optical advice or treatment who does not wish to engage in social intercourse with someone of Asian heritage and says as much.  There is no mention in the report of any foul language or aggressive act or words being used such as to put a fear of violence to or upset the equanimity of the "victim".  Of course that is open to speculation.  Only those in court at the time know the full story.  But for the sake of argument accept the report at face value.  Do the actions of the guilty party seem worthy of a guilty plea? Being personally aware of how CPS in England can ramrod cases with little evidence against poorly educated unrepresented defendants into guilty pleas this case leaves me slightly disturbed.  Is this not an incident which perhaps unpleasant did not have to have the full weight of the law behind it.  The fact of there being reports requested before sentencing indicating a punishment in excess of a fine I consider akin to the old story of the nut and the sledge hammer.

GEORGE ORWELL MEETS HUMPTY DUMPTY

MISOGYNY
hatred, dislike, or mistrust of women, or prejudice against women

The above definition or something similar has been around for  hundreds of years.  But in line with the simple fact that language is a living entity, over the last decade or two the meaning of misogyny for some people  has morphed into something rather disturbing. It is being interpreted as being unlawful. 

Melanie Onn M.P. was part of the intake in 2015. Her voting record seems to indicate that there is no underlying philosophy in her opinions apart from being a very obedient member of the cannon fodder  Labour MPs who consistently tow the party line in the lobbies.  She is amongst many who are pursuing actions to force such legal changes as to consider that there should be unlimited progress to control opinion and to prosecute those who choose to be unbound by such restrictions. There is a steady and undeniable current of so called progressive action to outlaw independent thought and to change the definition of "hate".  I have commented upon similar lines in the past...3/4/2017 and 9/8/2017 being the most recent. We, in this country, are not alone in this creeping criminalisation of thought.  In 2012 the then prime minister of Australia offered her new definition of misogyny.  In the USA most readers will be well aware of restrictions on free speech being imposed under the guise of safe space by intellectually  ignorant and sometimes over educated students who have made university bosses fearful of defying the fascistic outpourings of their sensitivities being offended.  Sadly it was yesterday when we heard similar but in typical so called sophisticated middle English phraseology.  This time it was the previously discredited Director of Public Prosecutions who made the news. CPS defines hate crime as follows:-
A hate crime is an offence where the perpetrator is motivated by hostility or shows hostility towards the victim's disability, race, religion, sexual orientation or transgender identity. Undoubtedly misogyny will be construed as hate crime and on line misogyny will be treated as a criminal offence.  My point today is that have we reached a position where Humpty Dumpty as portrayed by Lewis Carroll and George Orwell demonstrate identical thinking processes. The personified egg, a character from a well known nursery rhyme, in the words of Lewis Carroll in Through the Looking Glass says:-    

"I don't know what you mean by 'glory,' " Alice said.
  Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!' "
 "But 'glory' doesn't mean 'a nice knock-down argument'," Alice objected.  
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
 "The question is," said Alice, "whether you can make words mean so many different things."
 "The question is," said Humpty Dumpty, "which is to be master—that's all."

George Orwell is perhaps more familiar to many than Lewis Carroll. He described the way that free thinking is controlled as "Newspeak". Perhaps "1984" is best summed up by the following quotation:-

“Don't you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thought-crime literally impossible, because there will be no words in which to express it. Every concept that can ever be needed will be expressed by exactly one word, with its meaning rigidly defined and all its subsidiary meanings rubbed out and forgotten. . . . The process will still be continuing long after you and I are dead. Every year fewer and fewer words, and the range of consciousness always a little smaller. Even now, of course, there's no reason or excuse for commiting thought-crime. It's merely a question of self-discipline, reality-control. But in the end there won't be any need even for that. . . . Has it ever occurred to you, Winston, that by the year 2050, at the very latest, not a single human being will be alive who could understand such a conversation as we are having now?” 

Is this dystopian vision of the future actually taking place under our very noses; these noses being led by those whom we have elected and appointed to rule our lives? 

PROVEN ANTI SEMITE IN LEGAL PRACTICE

I suppose the legal profession has always had its bad apples. My own experience tells me that they are probably more abundant than generally realised. In times past I would opine that gaining riches from clients by methods at or over the borderline of legality was the inspiration for many.  However with the proliferation of social media and the ability to tell the world in just a few words and/or minutes just what one thinks the boundaries between merely insulting, offensive and downright unlawful have meshed ever more closely.  When professionals beholden to their professional and/or regulatory body stray too close to that boundary they have only themselves to blame for the repercussions.  Such is the case of this solicitor.  I wonder if the firm`s clients would continue to be attracted to their services if they knew his recent history.

MOJ & FAKE NEWS//MILLENIALS

Once again MOJ is telling all who`ll listen by e mail, print media, TV or social media that there are so many new recruits to the prison service that we`ll soon have this problem solved.  Does the MOJ press office with all the little weasels of Petty France spewing out this propaganda really think that those who know even a teeny little bitty of the truth will be taken in by this truly fake news?......Thank you D Trump for this new and much needed addition to our language.  

One part of today`s announcement is available here and full release is linked to Adobe Acrobat. Perhaps before those interested peruse the press release a few minutes looking at the situation in 2009/10 might put the matter in perspective.

For centuries governments have been successful in fooling the people of this country with so many lies that just could not be investigated except by professional researchers with the funds and facilities so to do.....not any more. The Mays and Corbyns plus all the others might try to disguise their versions of the truth but real facts will out. However the damage to government per se is that faith in the institution as we know it is steadily being eroded especially for those generations who might know how to count but have no idea of calculation or little knowledge of history.  

When my then 17 year old son was learning to drive I told him to regard every other driver as deaf, blind or drunk. He might not have been the most obedient teenager but so far so good; he has a clean license.  We elders have much we can teach millenials and others similar who believe in so called "safe spaces", entitlements to be free of being offended and that taxing the "rich" will pay for all their heart`s desires.  We should not be reticent in so doing.   

COURTS` INCREASED WORKING HOURS

There has been much comment within legal circles of the forthcoming "pilot schemes" to increase working hours of crown and magistrates` courts.  Yesterday the Sheffield Star in its report on the project gave the fairest and most comprehensive account of the proposal I have read in the general news media. It`s certainly worth a few minutes reading time.

My weekly inspection of HMCTS` own blog on this topic shows that specific questions in relation to magistrates` involvement in this pilot posted on July 25th by "May" have as yet received no comment from HMCTS.  I`ll look again next week.  The original post is copied below:-

May posted on on 25 July 2017

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?

WITNESSES & DEFENDANTS MUST NOT BE VEILED IN COURT

 

On 6^th October 2010 I posted as follows:-

 “The Judicial Studies Board has recently published in 45 pages “Fairness in Courts and Tribunals: A summary of the Equal Treatment Bench Book”.
Considering this guidance is aimed at judges and magistrates [and others involved in the courts system] much of it is like feeding a grown man….oops……a grown person of either or indeterminate sex…….with a spoon. However where perhaps guidance might be very useful; on the subject of face covering the message is vague. Perhaps that is at it should be. Judges and magistrates must be able to use their discretion. Society expects that discretion to be exercised wisely. The consequences are grave if that facility is found wanting. The relevant paragraphs re the veil are copied below."

For those Muslim women who choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity and the woman’s involvement in the criminal, civil justice, or tribunal system (as advocate, witness, party, member of court staff or legal office-holder) may well have a significant impact on her sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals. This is of particular concern for a system of justice that must be, and must be seen to be, inclusive and representative of the whole community. While there may be a diversity of opinions and debates between Muslims about the nature of dress required, for the judicial system the starting point should be respect for the choice made, and for each woman to decide on the extent and nature of the dress she adopts. Any consideration concerning the wearing of the niqab should therefore be functional and appropriate to the circumstances of the particular case. The primary question is: what is the significance of seeing this woman’s face to the judicial task that must be performed? How does the ability or not to observe her facial expressions impact on the court’s decision-making, given her particular role in the proceedings? A distinction can be made between situations where this may be useful or important (for example, when assessing the evidence of a witness, particularly one whose evidence is in dispute), situations where it is essential (for example, for purposes of identification), and other situations where it may not be of any relevance (for example, for court clerks or ushers or where formal evidence which is not disputed must be given by a witness).

Victims or complainants. It is important that people are not deterred from seeking justice or from getting a fair hearing as a result of exclusion from the court process. Where possible a woman wearing a veil should be permitted to give evidence, either in court in her veil, or with the assistance of screens, video links or, in appropriate cases, by clearing the public gallery if she is happy to remove her veil. The most appropriate course will depend on the issues in the case. As with any consideration of permitted special measures, this is a point on which a decision should ideally be reached after discussion at a case management or preliminary hearing, rather than at a final hearing in open court. A short adjournment should be given to enable the woman concerned to seek guidance.

Witnesses or defendants. Similarly, a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses and may affect the quality of evidence given. The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence. Again, special measures may be available to mitigate the difficulty.

Advocates. The starting point should be that an advocate wearing a full veil should be permitted to appear wearing her veil. The interests of justice will be paramount and you may need to consider whether, in any particular circumstances which arise, the interests of justice are impeded by the fact that the advocate’s face cannot be seen or (if this be so) the advocate cannot be heard clearly.”

On 27th November 2013 I posted 
 
"Should a government lead or should it follow?  I suppose that or a similar question was common in ancient Athens.  On a very basic level governments don`t get elected unless there is the support of a majority.  But after that it seems increasingly that to be a follower is the mantra of the government of the day; excepting perhaps within the law when individual whims are aired to test public opinion.  The Lord Chief Justice is a perfect example of putting a wet finger in the air to test the wind`s direction.  A witness or defendant wearing or not wearing the niqab in court is surely a matter which should be decided at the highest level and the directive applied at courts from the lowest to the similarly highest level.  From J.P. to supreme court judge all would know where the line had been drawn.  Those who chose to defy the ruling whether by refusing to discard such garb in court or by allowing such to be worn  in court would know precisely where they stood.  And so it should be.  The LCJ however has put the matter out to “consultation”.  I call that a cop out."  

In 2016 Lord Neuberger is quoted as stating that women should not be allowed to cover their faces with veils in criminal trials.  

In May this year at Westminster Magistrates` Court before a District Judge two accused women were allowed to appear with one of them having her face totally obscured by a veil; and the other with only her eyes showing (according to the court artist). In view of the huffing and puffing of previous judicial observations this is not a satisfactory state of affairs especially for those J.P.s who preside in the lower court. The nettle must be grasped with firm advice that witnesses and defendants must remove such veils in court.

WHISTLEBLOWERS//WE OWE IT TO EACH OTHER

I would opine that I`m not the only citizen who`s been disrespected by police in this country. Simple examples; being accused at police car pound when collecting it of damaging my own literally brand new car when I accused police of doing it. Being ordered on threat of arrest to stop sounding horn at a wayward pedestrian in slow moving traffic, threatened with arrest for disobeying a police officer whilst being stationary when seating my young child in safety seat outside nursery on double yellow line and other incidents in the past. When such arrogant and thoughtless actions and worse are used by police to intimidate the public especially ethnic minorities relationships will be fraught.  It is current thinking that body worn cameras for police will be to the benefit of both them and the public they are presumed to serve although at this late stage there is still some controversy on that. As an example of the unimaginable myopia and sheer stupidity of some very senior people it has been shown that such body worn cameras are ineffective when armed officers raise their rifles to a firing position and now subsequent to their uselessness when most needed cameras for firearms officers are to be head mounted as they have been for years amongst frontline army. Indeed evidence from such cameras convicted a marine recently for shooting dead a mortally wounded Taliban fighter. 

So simple but so significant!  In how many other scenarios are those very highly placed and no doubt highly paid people responsible for public or private services failing on the job?  With regard to fire safety 80 or more people have been killed in order to find the answer. In crowd control it took 96 killed at Hillsborough for the questions to be asked and we are still awaiting some answers and the focus of culpability. 

Readers with their various specialised knowledge will surely be aware of other failings that are unknown to the general population but are well known to those in positions of control.  Please make your fears known and ensure protections for whistleblowers are enabled. We all owe it to each other.

LANGUAGE IS JUST ANOTHER WORD

Once again the appalling state of court interpreter services is making headlines. The MOJ might laud those services in its annual reports but every failure causes misery, depression, wasted time and costs for all involved.  As usual as with so many other deficiencies emerging within our justice system and the courts in particular this can all be traced to the cost cutting begun by an over eager to please Kenneth Clarke in 2010. One of my earliest comments on interpreter services was  24th August 2013. I copy below an appropriate section.

"This is the same Capita which took over court interpreter services last January just weeks after buying out the minuscule company Applied Language Solutions  which was awarded a contract from Her Majesty`s Courts and Tribunal Service.  This process and who paid whom for how much and in what circumstances has to my knowledge been kept firmly under wraps.  Capita and those senior people at HMCTS and the Justice Ministry responsible for the award of the contract were  castigated by the House of Commons Public Accounts Committee."  

On 1st August 2014 I wrote:-
 
"Enough has been written on the scandal involving Capita plc`s contract with HMCTS to supply interpreter services for the courts to provide future legal historians and others with evidence of how the world`s first and possibly finest and fairest legal system was brought to its knees by this and many other so called austerity requirements which have reduced the Justice budget by 25%. It would not be a big surprise if financial impropriety in Capita`s acquisition of Applied Language Solutions surfaces in a few years. Be that as it may another snippet of interpreter problems has made it to the pages of the Law Society Gazette. Notwithstanding Capita`s inefficiencies the anticipated economies have just not materialised."

On 5th February 2015 I posted on a personal experience directly relevant to the language problem:-


"Sir James Munby, president of the Family Division is not known for mincing his words.  A report in the Law Society Gazette demonstrated his difficulty in preventing his spleen being vented.  As I read the details I recollected an encounter a couple of years ago when,  at a social event,  I found myself in conversation with a court interpreter of   the Czech and Slovakian languages  qualified to standards higher than the highest requirement for the courts. Indeed she had officiated at the United Nations.  Naturally enough I discussed the Applied Language  Solutions/Capita plc situation with her.  She had previously been a freelance interpreter on court lists.  Neither she nor any single one of her few equally qualified colleagues had joined ALS/Capita and had no intention of doing so in the future. But what really showed her attitude to this publicly derided incompetent decision by government re the justice system was that she and the colleagues personally known to her had refused and will continue to refuse emergency requests issued since courts were given the opportunity to revert to previous practice. At her level she has no shortage of work.  Considering Slovakian is one of the most rarely required languages required for interpretation in the courts I am personally aware of Capita`s shortcomings despite the surface gloss of supposed improving performance."

And finally on 7th February this year  I posted on a court experience which has been seared into my memory.

I hope my reader has not been bored by all the above but it is important to recognise the common thread that links what is happening before your very eyes (with apologies to the late & great Arthur Askey) to our criminal justice system. Notwithstanding the myriad statistics showered upon us with unfailing regularity it is failing defendants, witnesses, lawyers, sentencers and all involved.  It is tragic!