DISPLACEMENT ORDERS NEED DISPLACEMENT

Archimedes' principle states that the upward buoyant force that is exerted on a body immersed in a fluid, whether fully or partially submerged, is equal to the weight of the fluid that the body displaces and acts in the upward direction at the centre of mass of the displaced fluid.  The word displacement and its derivatives was for many centuries associated mainly with that fellow Archimedes. Anthropologists also found the term useful in describing ethnic or national groups who have been removed from an area and possibly replaced by others.  It is almost twenty years since the principle of displacement entered the legal domain with the introduction of ASBOs where a civil order made with criminal sanctions if breached could enable miscreants to be banned from any area the court designated.  Various other displacement orders have since been legislated eg Drinking Banning Orders followed ten years ago. Offenders were prohibited from a particular area and were pushed into adjoining towns or counties if they wanted to go to a pub.  Indeed there have been cases where a recidivist was banned from drinking in any public place in England. Such prohibition orders are just an easy way to avoid constructive answers to habitual offenders such answers to consist in varying percentages of deterrence, punishment and rehabilitation all of which are costly in comparison.

The Ministry of Justice and the Home Office has since 2010 cut to the bone the resources necessary for the justice system to function for all of us; law abiding citizens, defendants and witnesses and those who work within the whole system. This recent case is a perfect example. 

COURT TV IS OVERDUE

A literate population in times long past was considered a threat to authority. No clearer example was the advent of the printing press and the subsequent availability of the bible in the English language produced by William Tyndale in 1536A.D. whose efforts cost him his life. The first ever manuscript in English of the bible by John Wycliffe c1380A.D. led to his long dead bones being exhumed and crushed into powder on papal orders. With the advent of at least a rudimentary education for the masses in the middle and late nineteenth century the coming of mass media allowed sometimes lurid accounts of court proceedings to be brought to anybody`s attention for the price of one penny. Indeed court reports were a major feature of local newspapers until the increasing prevalence of a television set in most homes about fifty years ago gradually reduced the impact of the written word so far as news reporting was concerned.

From time to time MPs have debated televising the House of Commons. The first proceedings actually to be televised was the Debate on the Address in November 1989 and the first televised speech was by Ian Gow a Conservative opponent of the experiment. In July 1990 what had been an experiment became a permanent feature and it is now hard to imagine what the reporting of the political world was like without live T.V. from the House of Commons when it consisted of abridged newspaper reports mixed with opinions of newspaper editors and proprietors. Hansard was for the very few. There have been  limited transmissions in Scotland. With the Supreme Court being available live on Sky I hope this is just the beginning.

It is my opinion that those politicians charged with considering the possibilities of live programming of court are of the same mind set as their forebears of fifty years ago; the details might not be the same but the principles most certainly are especially at a time when this government like its predecessor is attempting to limit public access to legal proceedings in the civil courts and is in general under the blanket of reducing costs making life so difficult for defendants in some cases as to be impeding the maxim of innocent until proved guilty. Without doubt there are major areas of concern regarding witnesses but the principle of a public gallery open to all in 60” 3D and surround sound surely is the basis on which this innovation must be allowed to come to fruition however large the gallery.

WHEN IS "EXCEPTIONAL" HARDSHIP REALLY EXCEPTIONAL

Yasmin Qureshi Shadow Minister (Justice)

"Driving ban sentencing needs to be looked at again. Many hon. Members have referred to how the exceptional hardship plea is being used, and suggested that courts and magistrates have been granting it too readily. That clearly needs to be looked at. Maybe there needs to be a change in the sentencing guidelines that magistrates take into account when deciding whether to grant exceptional hardship. That area also needs to be revisited and reviewed". 

I have posted here all too often [for those interested just type the term exceptional hardship into the search box]  that the get out of jail free card that is exceptional hardship indeed appears to be too often accepted by benches. From my experience I suspect that legal advisors are perhaps having too much input into bench sentencing discussions. I recollect that I had to ask a new to our court L/A on her first day who sat without invitation as my colleagues and I were about to begin our deliberations to kindly leave the table and await our decision.  After somewhat heated objections she did as was requested and was more respectful of our independence at future occasions when I was sitting. The shadow minister quoted above yesterday on 20th November perhaps is unaware that this decision is outwith sentencing guidelines but on her general point I do agree. It is scandalous that so many thousands of totters escape their due deserts.  

WHEN A SEX OFFENDER ESCAPES IMMEDIATE CUSTODY

The latest sentencing guidelines on sexual assaults were published after my leaving the bench. Fortunately I did not sit on many such cases because the majority are heard in crown court.  All that I can say is that for any person and a teenage female in particular to be sexually touched by a stranger without consent or to be similarly assaulted against her will must be an awful experience.  The law on all illegal sexual activity has expanded considerably in recent years. The range of offences is listed below.

Most but not all these offences are too serious to be heard in the magistrates court. The report of a recent case at Caernarfon magistrates court fails to mention which actual offence was committed by the offender but was likely to be the offence copied below. The appropriate CPS guideline is also available below.

It appears to this observer that at the very lowest level of culpability or harm this offender has traumatised the victim to such an extent that suspending custody is more of a bench following orders to keep offenders from filling the jails with short sentence prisoners  than simple old fashioned punishment. 

CPS GUIDELINE

SENTENCING GUIDELINE EXTRACT

RANGE OF SEXUAL OFFENCES

DRIVING IN ALICE`S LEGAL WONDERLAND

Imagine you are 15 years old and after much nagging your parent(s) have given in and bought you an electric scooter.  Unsurpassed joy from the child who sets off down the pavement in a quiet suburb only to be spotted by one of the very few police officers still on the beat.  The happy go lucky child is asked to identify himself and to produce his driving license. Calamity upon calamity; the officer on hearing that there is no driving license, takes the name and address of the suspected offender and warns that a summons might follow. So far this is not a particularly pleasant tale but wait; it gets worse.  A 15 year old boy has been given six penalty points for riding a scooter "at speed". The report makes no mention of whether a police car or a beat police officer made the "stop".  No actual speed appears to have been recorded. We all know ignorance of the law is no excuse for breaking it but this boy in order to drive legally when he is 17 or older will have to obtain a driving license at quite some expense and then have said license immediately revoked for six months after which he will have to pass a complete driving test all over again. This is the law Alice would have recognised in Wonderland. 

COURT REPORTING

I have commented here previously and it is well known that there is a dearth of court reporting from the magistrates courts.  There are many reasons put forward for this; social media is a substitute for local reporting, local newspapers are in decline and those still publishing operate with reporting costs limited, new journalists are not well paid and court reports are generally served up by such novices in local press, public interest is lacking etc etc.  So three cheers for Grimsby Live.  I don`t know whether there is a hard copy available to the good burghers of  Grimsby but it is a pleasure for this observer to read local reports.  Other local press barons take note.  

BAKERS AND BARRISTERS

A few weeks ago a Belfast baker won his Supreme Court appeal against the lower courts` decisions that he had no legal right to refuse to bake a cake and decorate it with what he  claimed was a message with which he had fundamental disagreement. A few days ago a female Afghan barrister practising in this country was told by her instructing solicitor that his client did not want her to represent him in court but instead wanted a white male barrister to do the job. It will be interesting to see the future ramifications of this incident. The comments following the report are as interesting as the case itself. 

LOOK BACK IN ANGUISH

Earlier this morning I had reason to revisit the first post published on 19th November 2009 by The Justice of the Peace on a site now long since withdrawn from the internet. On the second anniversary of that first post I posted the following:-

"Exactly two years ago today my first post appeared on this site. It was entitled CAUTION GIVEN AFTER A CONVICTION FOR A SIMILAR OFFENCE. That was 804 posts ago. With approaching seven thousand visitors monthly this blog is still miniscule in its numbers of readers cf the other one. However I thank all who have found my literary meanderings of some interest. This exercise has however provided an avenue of escape for the writer`s frustrations at the underlying decay which is eating away at the foundations of this grand old institution, a decay which has been caused 100% by government`s determination to continue to impede the quality and efficiency of justice available to the common man in order to try and obtain it on the cheap. There are two foundations which a democratic government must provide for its citizens; protection from invasion and a justice system to allow citizens to register their agreements and to resolve their civil disagreements and to protect the them from breaches of the peace which would or could disturb a contented life. All other interventions are secondary.

In the last year or so I have in consultation with my colleagues twice refused to begin a sitting at 10.00am because the non CPS court to which we were allocated had itself not had an usher allocated to it owing to non replacement of the “natural wastage” of employees. For those unfamiliar with the terminology non CPS courts involve prosecutions originating from various prosecuting authorities except the CPS eg local authorities. Inevitably many more lawyers are involved than usual as are the defendants and without an usher chaos reigns. The first such refusal produced an usher in 30 minutes, the second: 20 minutes.

However much courtroom events can be converted into dry statistics I have tried to convey the reality of real people in real situations. The sheer stupidity of some of those who appear before us sometimes takes some believing. During the summer a 25 year old was in court after admitting breach of a community payback requirement. He didn`t take kindly to having a curfew imposed as a punishment in addition to the existing order. He smashed his way out of the non secure dock screaming obscenities and pushed his way out of the courtroom. A swift phone call later he was eventually arrested outside the building having damaged a couple of large flower pots. He was charged with criminal damage and resisting arrest. However on being searched he was found with a wrap of cannabis in each shoe. What kind of individual comes to court with excessive footwear of that nature? Events such as that leave one sceptical of the possibilities of rehabilitation which perhaps ten or fifteen years ago might have had some beneficial effect on him and spared society the clearing up process.

Along with my colleagues I have watched the decline of CPS efficiency and despite the efforts of those in front of us its quality drains away before my eyes. I have experienced the trebling of the numbers of non represented defendants owing to the restrictions imposed upon legal aid. I have seen L.As who admit to having to be more effective in trying to get their overlisted courts through most of the work than ensuring defendants are treated with respect when at 4.00pm they are told their case despite assurances will not go ahead. I know that those self same good people are under the threat of redundancy when their financial outgoings are at their most precarious. I know the outrageous redundancy terms that have been put to our liason officers in the forthcoming re-organisation. I have experienced during the riots being pushed hard from on high to remand in custody; a dictate which with colleagues, I refused. I have noted that Her Majesty`s Courts and Tribunal Service treats J.P.s with disdain or even contempt. I am continually dismayed at the kow towing of the officers of the Magistrates` Association in their dealings with government brought about in part from the lack of a desire for democracy within that organisation. Simple researches for subjects worth discussion have shown that however tough the job of a police officer is the police in general are lions ordered about by donkeys in their great war against a disorderly and often dangerous section of our society. And finally some of the crass and plainly stupid statements from members of government who are making decisions which affect justice in this country lead me to have had my cynicism quotient ratcheted up by a factor of two since this self imposed release of my frustrations began.

Roll on year three. Feel free to inform a friend/colleague of this website. It might assist in easing their frustrations also. I feel a bit better now."

Courts have been described by some as theatre. It is extremely disappointing to admit to myself looking back in anguish as well as anger that much of the above content is still applicable to the situation within magistrates courts; indeed it would not be difficult to argue that the position is measurably dire in comparison to 2011 as above. I dread to predict what the position will be nine years hence considering that it is unlikely that LASPO and its iniquities will be repealed or that funding will be available in sufficient quantities for all the agencies which have historically been contributing to what we call our justice system,

TO BE OR NOT TO BE A TOTTER

I was retired from the bench three and a half years ago and many fundamentals at court have changed since then, some for the better but more for the worse. One aspect of sentencing which was made very clear to my bench more than once was that in the case of motoring offences where the option available was to immediately  disqualify or issue penalty points resulting in an offender being a totter and thus receiving a mandatory six months ban the correct and appropriate procedure was to issue the requisite points and let justice take its course in the immediate disqualification of the miscreant.  I am unaware if this process was advised for my bench only or was laid down nationally.  Not surprisingly I am unaware of current advice given to magistrates. It would appear that at Norwich Magistrates Court discretion was used contrary to the aforementioned advice when I was active.  Perhaps a current court worker could clarify the situation?

PS The court reporter appears to forgotten how to add up.  8 penalty points as reported plus an additional 3 would not have reached the threshold for disqualification which is 12. Notwithstanding the error my post does pose a reasonable question. 

SENTENCING OUTCOMES AT KIRKLEES MAGISTRATES COURT

Results from Kirklees and neighbouring magistrates courts make interesting reading. Some readers might discern a pattern in or between courts` decisions; some might find the sentencing insufficiently severe or unjustifiably less than they would have applied.  The current sentencing guidelines are available here.  Whatever the subjective opinion there is no doubt that political considerations are driving sentencing every bit as much as judicially conceived desirable outcomes. 

A BENCH`S DECISION IS POLITICALLY DESTABILISING

There is one factor in the sentencing procedures that I found was overlooked many times by experienced colleagues and "news" to those recently appointed; namely protection of the public. I take that simple phrase to mean that people should be protected from what could be reasonably be considered as the likelihood of an offender committing future crimes based upon his/her previous record.  The thinking process for sentencers could be similar to that when bail is being considered for an individual who is awaiting trial or a future appearance. It`s not quite looking into a crystal ball but it is still a process where common sense is involved; a requirement no longer required for aspiring magistrates. An example of where it seems that public protection was recently a concept foreign to a lay bench in Lancashire is available here in a comprehensive report. The comments following should not be ignored.  They indicate how out of touch that bench was with their fellow Lancastrians.  Of course those who take the time to comment cannot be assumed to be a representative sample but ignoring such opinions is likely to distance "us" from "them" and that is politically destabilising.   

POLICE REFUSE LOST PROPERTY

Further evidence as if any were needed that the decimation of finances for policing is changing generations` habits of our police being regarded as with us rather than as in many jurisdictions  with them is shown by the recent but little publicised announcement by the Chief Constables` Council that the honest citizen`s instinct to hand in lost valuables at their nearest police station will be rebuffed. This decision is hoped to save £1.5 million annually although how such numbers can be predicted beats me. I suppose time and motion studies can conjure up any number that`s wanted. I am sure that I am not alone when as a child I found a banknote in the street and my parent said we must take it to the police station.  I doubt that many parents would have had such advice in recent times. The police, of course, are spouting the same old story about focusing scarce resources on areas of highest concern to ensure the public are kept safe.  

Breakdown in society does not necessarily come about by riots, marches, terrorism or even political corruption: it occurs when public faith in the administration of the nuts and bolts of our society leads to a feeling of impotence by Tom, Dick and Harriot. It is already happening in policing where attitudes similar to those of black Americans will spread to all areas and all sub groups of our society.  As a Conservative IMHO this is all as a result of unbridled rampaging capitalism being allowed to gorge itself beyond healthy limits.  It has allowed those ignorant of the effects of Marxism to follow a cult leader like the children followed the pied piper.  Just call me JP aka Jeremiah`s Prophesies. 

POLICE & LAW SOCIETY IN JOINT TIRADE AGAINST GOVERNMENT

It seems that the Law Society and senior police officials are getting together to spread the word that  falling numbers of crown court prosecutions are not some statistical accident or an indication that society is becoming more observant of the law. No; the numbers are indicative of fewer police to catch the miscreants in the first place and fewer police to process the cases for the CPS which is not itself directly criticised but as those in the legal world know only too well that organisation having been down sized by more than 10% in funds and  personnel in a decade is not without culpability.  See these press releases of the last few days from Devon,  Lincolnshire, Northamptonshire,  North Wales, and Warwickshire. An obvious PR exercise against austerity but how much did it cost and by whom was it sanctioned?

THIS JUDGE IS A BULLY

I have opined in the past that Justices of the Peace seem to be more harshly treated for alleged transgressions than members of the professional judiciary. The recent case of a judge threatening to jail a 14 year old child if she cried in court whilst her mother was giving evidence is a case in point. HH has been criticised by the Court of Appeal. 

Such flagrant bullying of a minor should not be concluded with just a rap across the legal knuckles. He should be charged with misconduct. If it were a magistrate making those remarks s/he would be on the scrapheap in short order. Whether it is right that part time unpaid lay J.P.s should be dealt with on a different basis from full or part time professional judiciary is another matter to be debated at another time. 

MAGISTRATES` MINIMUM AGE ON TWITTER POLL

I have recently had a dispute on Twitter on the worthiness of young magistrates cf their older counterparts. Whilst a fresh pair of eyes looking at a situation cannot be criticised, as a reason for having a minimum age of 18 it does not hold water. Barely out of school and with, according to latest science, a still not fully developed brain, it is unlikely that at such an age justice can be dispensed with maturity, wisdom and unfettered by personal considerations.  This argument can of course be developed for many more words. The representative of diversity protagonists seem to be virtually unassailable these days  but for those interested I have tweeted a poll on Twitter @bloggingJP on this topic. Whether you agree with me or not make your opinion public anonymously.  

MAGISTRACY BEING KILLED OFF

I am increasingly convinced that the selection process for magistrates is flawed. During my time on the bench it was common knowledge that there were perhaps 5%-10% of colleagues who were not intellectually or otherwise of a standard comparable with the job. Sanctions were rarely applied. Already this month four magistrates have been before the Judicial Conduct Investigations Office.  Of these two have been removed from the magistracy owing to their failure to commit to the minimum number of sittings required and a third for drug possession. The fourth behaved in what only can be described in a crassly ignorant manner not befitting her position and was fortunate IMHO for not suffering the same fate as the other three. 

Altogether this year twelve Justices of the Peace have been removed from the magistracy the majority for failing to sit the minimum meagre requirement of a half day every fortnight; a schedule which does not allow the skills or knowledge necessary to be embodied in a lay magistrate sitting as a winger and is scandalously too little for a chairman to acquire the skills required.  These numbers are not unusual.  Every month JPs are thrown out for their unwillingness to devote the time required; a commitment that every appointments committee must surely emphasise.  So why does it happen?  It is a total waste of time and money to appoint and train somebody who fails at such a predictable hurdle.

Like so much else within the MOJ`s empire  the magistracy I believe is slowly being allowed to whither on the vine.  When it finally is killed off in its traditional form our legal system will be so much the poorer.  

COURT ESCAPES

During my time as an active JP I was not personally in a court from which a defendant had escaped although there were a couple of such episodes in an adjoining courtroom.  In my very early days there usually was a uniformed police officer in the remand court and others in the vicinity as witnesses to one case or another.  That level of security tailed off in the late nineties. Some docks were secure particularly in the remand courts but others presented no barrier to a determined miscreant who might have decided to abscond or do harm to those present. Recently two violent offenders breached what little there was of court security at Worcester Crown Court and Grimsby Crown Court respectively. I am a blogger and not a research statistician. There are no easily obtained statistics on the numbers of individuals who have attempted or actually achieved an escape from court.  The nearest document of significance is listed below.  It is not dated nor does it offer the aforementioned numbers; I would opine that that is deliberate obfuscation by the MOJ; a trait which has become the norm. When the numbers are hidden only the most dedicated will sniff them out.  So just another result from the decimation of police numbers initiated by an incompetent home secretary who is honing her position as the most incompetent prime minister in my lifetime. 

Not being sufficiently techie the link below should enable access of pdf. document.

The Management of Prisoners that present a risk of escape or violence ...

https://www.judiciary.uk/wp.../management_prisoners_risk_escape_violence.pdf

Annex 2 - Management of Prisoners who present a Risk of Escape or. Violence when attending Court - Application to Court for Improving Security. Arrangements .

SHAME ON HIM!

It is extremely risky and perhaps foolhardy to describe the actions of others in life and death situations when sitting safely at a keyboard.  I will take my chances. When people sign up for the armed forces or the fire or police service they know that they are likely to be in some physical danger at some time(s) in their career.  Those who are promoted to leadership roles must have indicated to their superiors that in addition to perhaps exhibiting rare skills of management or expertise that they have not forgotten the basics of the job; ie to run towards the danger whilst the rest of us run from it.  It seems that the acting Commissioner of the Metropolitan Police at the time of the Westminster terrorist attack had forgotten these basics.  SHAME ON HIM! 

LADY WINDEMERE AND LORD DARLINGTON HAD IT CORRECT

It seems that it is not only in the UK where police patrols on motorways are far less common than a decade ago; after having just returned from travelling on autoroutes in Normandy and Brittany the French police appear to be equally absent. Although road casualties in France are far higher than here I felt that the French hare brained, must get there quicker than you attitude has diminished. Indeed I felt confident crossing a road by a zebra crossing that traffic would stop.......and it did. Which brings me to yesterday`s announcement from the Chief Constable of Lincolnshire that he is giving additional discretionary powers to the county`s PCSOs.  Many years ago I posted on creeping practices across many professions of hailing the extra help that "assistants" would give to principals.  The argument went that the employment of such people at relatively low wages would free up time for their senior professionals and would thus be cost effective.  Such briefings always emphasised that the role of the assistants would not impinge that of their professionally qualified superiors. Thus were born CPS prosecuting assistants, teaching assistants, dental assistants, optical assistants, nursing assistants and many others including police community support officers.  Of course it is now acknowledged from government to nursery that what the military term "mission creep" has truly engulfed us when these assistants take on the roles previously withheld from them and for which latterly pseudo qualifications have been required.  And all this is for the single purpose of saving money whatever the cost to society in the longer term. 

Most generally law abiding citizens come into contact with police only for traffic matters.  Police constables having survived intensive scrutiny to be accepted, with their extensive training in the classroom and on the job learn how to handle the sensitive interface between them and the public; whether a firm warning is sufficient right up to the powers of arrest.  My experience in practice and whilst on the bench is that PCSOs lack such judgement.  That`s not surprising considering the low level of academic requirement and a starting salary of £19,500 maximum.  Now these assistant police officers by any other name are being given enhanced powers by a constabulary which Her Majesty`s Inspector of Constabulary concluded was below the "must do better" level of a school report card. 

This is the time we live in when a former home secretary applying the rules of austerity recently agreed with the then 2018 home secretary Amber Rudd that rising crime bears no relationship to the decimation in the numbers of police officers and that government funding had increased.    

Never was the phrase "government that knows the price of everything and the value of nothing" more applicable.........with apologies to Oscar Wilde.

J.P. EN VACANCES EN NORMANDIE

I have a great liking for calvados so for the next week or so I will be in my element at the home of all drinks apple; no doubt I will also sample un demi de cidre in Normandy over the next week or so.