LEGAL MUSINGS ON TUESDAY

From time to time there are little seen news items with a legal flavour which pass largely unnoticed by many but which offer a snapshot view of our justice system by practitioners and offenders.

The furore over BBC licensing allied with cheers from often right wing commentators at the prospect of the license fee being decriminalised usually brings forth noises off from the opposite political dimension and of course the luvvies who, with a few notable exceptions, endorse the "downtrodden" wherever and whenever the opportunities arise.  One interesting fact in all this is that one third of female convictions is for license fee evasion and women accounted for 74% of the 114K offences of this nature last year. One possible explanation is that the door opener to an inspector is the person held liable and it is thought many more women than men are home at those times when an inspector calls. 

In the last decade the number of police traffic patrols has dropped by around 30%. In 2017 insurance companies began accepting in car videos as evidence for claims and courts began accepting them as evidence for prosecutions. In that year 2,612 videos were presented to police of which a third were used as evidence of an offence.  This year it is estimated 32,500  will have been submitted to police. 10% of the third acted upon have led to a court prosecution. 

21% of solicitors are BAME yet according to the Law Society Gazette the Solicitors Regulation Authority confirmed this week that the group made up 26% of individuals reported to the regulator in 2018/19; 32% of those whose cases are taken forward for investigation; and 35% of those whose case concluded at the tribunal. There are obviously many reasons for this apparent statistical imbalance; some political and some not but it seems so many aspects of our society are being driven by similar analyses. The full Gazette article can be accessed here. 

Finally, below for ease of access I have copied an article from Worcester News. In my humble opinion justice was not done on behalf of the victim nor of a society which, sadly, is losing faith in the judiciary to do right by them according to their oath.    

 "A man who reversed over a pedestrian in his car before fleeing the scene has been fined and banned from driving at Worcester Magistrates Court.Thomas Roche appeared before magistrates in Worcester on November 20 charged with causing injuries to the leg and knee of a pedestrian who he reversed over while at a junction in Evesham on November 7 last year.On the day in question, Roche, 25, was reversing at a give way sign in Worcester Road when he hit a pedestrian walking behind him.The pedestrian’s wife shouted at Roche, of Sandleheath Road, Hampshire, to get his attention, but the court heard he carried on, injuring the man’s knee and leg. He then went on to drive away from the scene without stopping to exchange details with the injured pedestrian, also failing to report the incident to the police.Further checks carried out on the vehicle he was driving, an Audi A3, showed Roche was not listed as the named driver on its insurance policy.Roche originally pleaded not guilty to the charges, but changed his plea when he appeared in Worcester, where he was fined a total of £1,020 as well as having six penalty points put on his licence." 

SENTENCING COUNCIL KOWTOWING TO POLITICAL CORRECTNESS

There is no doubt that the subject of racism is around us in ever increasing contexts.  I would hazard a guess that in the public eye racism in sport and in crime ranks of more interest and concern than in other contexts  eg employment or education although like many others I am no expert on sociology or statistics. Although the R word is bandied about it is mostly when discussion about black people takes place. "Asian" has become a euphemism for those mainly of Pakistani origin or heritage. In brief there is well documented history of criminal activity by male members of that social group which has been actively suppressed by law enforcement and associated agencies. The reasons for such "blind eyes" have in recent years been admitted as a fear of accusations of racism.  The knock on effects of such dereliction of duty by the involved agencies are becoming public knowledge almost weekly. The association between the sometimes medieval attitudes of some of those within that group and abhorrent criminal activity  have prompted a more realistic attitude by police and courts. The fear of their being denounced as racist by some Muslim organisations has given way to the view that everyone is equal before the law whatever brickbats might be hurled at them metaphorically and literally. The benefits to the vast majority of perhaps the third generation of immigrants from Pakistan are profound.  They are proudly British and seek to attain the highest levels within society that their abilities allow.  But many black people who comprise around 13% of the population have histories utterly dissimilar from south Asians.  They did not immigrate to these shores seeking a better life. As is common knowledge their ancestors were, over a period of four centuries, torn from their homes in mainly west Africa by European slave traders; Spanish, Portuguese and predominantly British.  The fact that Africans were also involved is neither here nor there. The heritage of those slaves is not some subconscious memory in their descendants; it is active and all consuming as is the collective memory of the Holocaust for many Jews.  Generally comment is one way.  Rarely is it spoken publicly of the enormous and statistically exceptional performance of black sportsmen and women. Athletics provided Jesse Owens in the 1936 Berlin Olympics with the perfect opportunity to prove that Hitler`s nation of so called aryans was inferior to his trained body where his muscles` structures were superiorly adapted to his sports.  And it  continues to this day whether in boxing, athletics and of course in football. At all levels of the game but seen by millions in the Premier League black players form more than a quarter of the clubs` players; twice the proportion of black people in England and Wales. This should be a matter of pride for all but is often overlooked when eg bemoaning the lack of black managers. The current furore over "taking the knee" from both pro and antagonists is a clear example of the distress in which this subject is mired. The politicalisation of Black Lives Matter is significant despite denials. The recent outcry over Millwall supporters is an example of confused thinking. The majority of observers have castigated those involved as racists. That is a popular response but misses the point.  Taking the knee is a political act.  Rejecting that does not demonstrate racism against black people. Those in fascist Italy and nazi Germany who refrained from the salutes associated with the leaders in those countries risked loss of their jobs and much worse. I would venture that there is fear amongst some well meaning footballers being seen to avoid the knee gesture and that is most disturbing for our attitudes as members of a free society. 

The latest example of concern over matters concerning attitudes to BAME offenders has been published by the Sentencing Council. It relies on the Lammy Review with its questionable statistical analysis to insist that sentencers must be pro active in considering that such offenders are not overly penalised.  Contrary opinion can be accessed here. Underlying all the huffing and puffing from the bigwigs is the unsaid accusation that sentencers have been biased in their judgements whether conscious or in the newspeak language of 2020 exhibiting unconscious bias when sentencing black offenders.  This is an insult to all those on the bench; an insult which just might be justified for a few but not the many. Personally I cannot recall a single such an incident during my time on the bench but according to the sociologists pronouncing on this topic I and my colleagues would have been unaware of our deviant behaviour. Would that have been the case when I announced to the court and to two young  black men accused of theft that we accepted their evidence over that of several policemen and that they were free to go. The Sentencing Council`s latest outburst  is on the  approach road to the type of policy introduced by China to correct unacceptable attitudes of some of its population.  The common term of the result of failure to conform being utilised ever more often is known as self censorship. And here is where taking the knee is an example. I look forward to when a team decides to stop this form of compliance and then is castigated as offering succour to racists. At least if that indeed takes place the discussion will be out in the open and not behind closed doors and kowtowing to political correctness. 

INNOCENT UNTIL PROVED GUILTY?

Generally speaking the phrase “innocent until proved guilty” when used after an acquittal is that the defendant walks out of court with, if appropriate, his previous good character remaining unstained. The reality of the situation is that the prosecution had been unable to prove its case beyond reasonable doubt. The Scots since 1728 have had a third verdict of “not proven”. I suppose it could be interpreted crudely as a defendant perhaps being morally guilty but not having had the prosecution prove its case to the required standard. It is a matter of philosophical debate whether that is a preferable scenario to guilty/not guilty. Certainly no other jurisdiction has followed this path. 

Although not logically connected, a change in English law in 2009 could be argued to be having a similar effect of casting doubt on a not guilty verdict. Sections 5 (following conviction) and 5A (following acquittal) of the Protection from Harassment Act allows a restraining order to be made following acquittal. In 2010, the first full year where this legislation was applicable, 647 restraining orders were made on defendants acquitted of charges in a context of domestic violence. Actual numbers of more recent defendants who have been acquitted in court but who have subsequently had a restraining order imposed are not readily available but in 2017 around 2,500 people found not guilty of various offences associated with domestic abuse, stalking etc were subject to this expedient form of legal chastisement. Victim orientated justice? Innocent until proved guilty……………?

MOMENT OF RESPITE

I would imagine that most of us are suffering with "news headlines" fatigue given the seemingly endless story of corona virus and its effects on all of us so I hope that a brief glimpse at the activity of the misbegotten soul in this headline allows a moment or two of respite and a glimpse of depravity almost beyond belief.

CORONA VIRUS: A WONDERLAND OF FINES & FIGURES//ROLL ON EASTER

The inconsistencies associated with lockdown will no doubt be considered by future historians as a primary reason why the fatalities in this country per 100K population are in excess of those in USA where many states have virtually abandoned any attempt to control individuals` and businesses` activities and there has been only a half hearted attempt at control at the federal level. In mid July Boris Johnson was telling us it would be over by Christmas and now of course he has stated that by Easter things should be back to normal. The literally fatal flaws in the epidemiological and political analyses of this epidemic have been followed by a similar mish mash over the issuing and amount of fines by police.  Figures show 20,223 fines were issued for breaches of coronavirus restrictions in England and Wales between March 27 and October 19. More than a half of police forces have not issued a single fine for the non wearing of face masks. Since the pandemic began only 0.01% of the population have been fined for breaking corona virus rules. Between June 15 and September 21 89 fines were issued for breaches of face covering rules on public transport or in shops or similar. Staffordshire Police  had the lowest proportion of fines handed out; 43 amounting to 0.01% of the population whereas between March 23 and September 21 the fine rate was 0.33% in Dyfed-Powys.  This is a staggering disparity in enforcement or perhaps the Welsh are more independent of Westminster regulations  than we thought.  Indeed the overall rate of fines in Wales was  0.08% compared to 0.03% in England. On Friday November 13 the National Police Chiefs` Council told forces to stop issuing super fines to organisers of large gatherings having belatedly realised the injustice of these fines being issued without any knowledge of the offenders` ability to pay. Magistrates Courts benches are unlikely to find those appearing before them facing a £10,000 fine able to pay having taken into account their means. However that advice from NPCC has now changed.  Anyone issued with a fixed penalty notice will now be fully informed of their right to a court hearing so £10,000 fines are now once more available for gross disregard of the regulations on organised crowds.  Apparently only a single fine of £10,000 out of 66 issued has actually been paid. It is widespread public knowledge that there is a backlog of over 400,000 cases at Magistrates Courts and a possible two year delay for trials. We are in a situation even the imagination of Lewis Carroll and his Wonderland could not have envisaged. Roll on Easter. 

J.P.s ON SUPPLEMENTAL LIST

From time to time I have reported here on the goings on at the Judicial Conduct Investigations Office. Generally I`ve considered that in comparison to the decisions meted out to more senior members of the judiciary for their various indiscretions magistrates appear to be less benevolently dealt with. However recently there was the unusual matter of a magistrate on the supplemental list being sanctioned. Upon retirement magistrates are automatically transferred to this list. The do`s and don`ts for those individuals are as follows:-

Magistrates on the supplemental list can use the suffix JP, under the same guidance set out for sitting magistrates.

Magistrates can sign passport applications. They  must either work in (or be retired from) a recognised profession. Justice of the Peace is a recognised profession.

Neither retired magistrates nor those on the supplemental list can sign off statutory declarations.

Magistrate in the Supplemental List may not

Sit in a magistrates’ court to adjudicate on cases

Sign summonses or warrants, including search warrants

Be a member of any committee or any other body as a magistrate

Take part in the election of chairman or deputy chairman of any bench

Attend any formal or business meeting of their former bench

Countersign an application for a shotgun or firearms licence

In addition those on the supplemental list are subject to exactly the same rules of conduct as their colleagues who are active. Nevertheless for such a person to appear before the JCIO is very unusual. One such who has transgressed is  Dr  Nigel  Molden  JP who blotted his copy book by being convicted of careless driving which cost him 6 penalty points. The report is here. Quite frankly I fail to see why any JP on the supplemental list remains so.  The risk of falling foul of the onerous regulations seems to me to be unworthy of having a couple of letters after one`s name.  Then again there are still many who seek appointment to have those very letters after their name. I`ve met a few.  Shame on them. 

HOW EXCEPTIONAL HARDSHIP PLEA IS ABUSED

On November 3rd I posted on exceptional hardship about which I was critical insofar as the leniency offered by many benches when offenders offer mitigation not worth tuppence in order to retain their license. Earlier this month Arsenal footballer Mezut Ozil appeared in court pleading guilty to speeding on a motorway at 97MPH. It is unknown whether he has existing points on his license.  The penalty for his offence is a fine between 25% and 75% of his relative weekly income plus 3 penalty points. However from the brief reports it appears his representative feared that his client might lose his license because he seems to have offered an exceptional hardship defence. Sentencing is due later this month and that seems odd. In my experience the plea and submission of exceptional hardship is itself adjourned to a set date and sentence is pronounced immediately afterwards.  Once again an internationally famous figure appears to have been offered treatment above that for ordinary mortals. A section of the full report I have copied below. Quite frankly if his plea is accepted it will be nothing short of disgraceful.  He can afford a team of chauffeurs for the period of any driving ban. 

"But he said the current coronavirus pandemic meant he would find it very difficult for him and his young daughter to travel on public transport. He added: ‘I travel to work on a daily basis by car and have personal commitments and a very young baby daughter, seven months old.‘In the current climate I would be very much against travelling on public transport with my baby daughter. My wife does not drive and therefore by necessity I will have to undertake the driving to any healthcare appointments for my daughter. ‘I do not suggest that this in any way excuses my driving on the day at all — I fully accept that the speed my vehicle was travelling is wholly unacceptable.”

RICHARD PAGE : THE SAGA GOES ON

No individual magistrate has figured in this blog more than Richard Page ex J.P.  Perhaps when the matter of judiciary and religion is discussed few will have heard of him  and that is shameful because his sacking as a magistrate shames us all;  believers and non believers alike.  In order to appreciate fully the current state of affairs it might be helpful for interested readers to read the posts on the following dates:- 18/3/16, 29/3/16, 13/4/16, 1/8/17, 15/2/18, 1812/18, 7/1/19, 21/6/19 and 19/7/19. For speedier but not chronological access type Richard Page in search box.  Last Tuesday his case reached the Court of Appeal. It is likely that he has expended considerable sums to date on his claim that he was discriminated against in being sacked from his position on the bench for his Christian belief and for no other reason.  He is a  father of three and has fostered five more children.  In 2015 told the BBC, "My responsibility was to do what I considered best for the child and my feeling was therefore that it would be better if it was a man and a woman who were the adopted parents". He was also suspended as a non-executive director of the Kent and Medway NHS and Social Care Partnership Trust. The bottom line is that according to the required process he was sacked because he made his view public without telling officials.  Last December Lord Justice Underhill is quoted as saying, " the removal of a magistrate for making a public statement raises issues of public importance and sensitivity."  That is the official line.  In the last decade ever more numbers of magistrates have made public comments about personal and legal matters in all media.  So the essence of his actions i.e. his reasoning behind his decision making, according to officialdom, had absolutely nothing to do with the matter. He who believes that must also believe that there really are fairies at the bottom of their garden.   Of the dates above I would suggest for further comment the post of 13/4/16 be studied.  I cannot but believe that if it were a Muslim J.P. who was treated similarly there would be outrage from all the usual quarters but for a Christian: silence.  I must conclude as a non believer that the tail of legal wokism  is wagging the brain of the British legal bulldog.  Recent events surrounding the appointment in America of a new judge to the Supreme Court lead me to think that similar is going on beneath the horizon in this country.   The Muslim population of England and Wales is around 4.8%. It is ethnically diverse – 68% Asian (1.83 million of 2.71 million) and 32% non-Asian. 1 in 12 is of White ethnicity (8% of the Muslim population).  Judicial statistics do not require the religion of office holders to be stated; only whether an individual is of Black, Asian and minority ethnic (BAME) origin. Sooner or later this apparent concealment of religion will have to be questioned.  Notwithstanding the verdict in the Appeal Court re Mr Page the influence of religious belief on bench decisions must surely now be questioned.   

EXCEPTIONAL HARDSHIP STILL NOT EXCEPTIONAL

It is often the case that usually law abiding citizens` contacts with police and the laws they enforce is at the wheel of a vehicle. Speeding on motorways used to be among the most common offences but since the decimation of police numbers and the consequent reduction in motorway patrols that number has reached a plateau or in other words many motorway speeders are getting away with it if they can avoid the cameras. Mobile phone use whilst driving in the last decade or so has been rising with increasing penalties for those apprehended. The numbers of those caught driving without insurance has fallen from 208,384 offences in 2007 to 92,343 in 2017. These offences and others attract penalty points and 12 penalty points attract disqualification or so the story goes.  Why is it then that latest enquiries show that 9349 drivers are still legally on the road with 12 or more penalty points on their license?  And the answer is exceptional hardship. At no time during my appointment was any advice on that subject or training by any body or authority given to my bench. Indeed I compiled my own advice sheets on the topic for which very many colleagues requested copies. I don`t propose to go into  the whys whens and wherefores (sic) of this subject. It has been a topic here quite often over the years of this blog. Type those two words in the search box for historical posts.  Readers will notice that I am generally of the opinion that benches have been too easily swayed by highly paid lawyers (they have to make up lost legal aid income somehow) into the acceptance of the exceptional hardship argument which is based on the civil standard.  Indeed put these same two words in Google search and you will find many dozens of legal firms offering their services to those who find themselves one penalty point too many on their license. It is difficult for all but the most eloquent offenders to argue their own case. However all this whilst not quite coming to an end is certainly going to be made more awkward and rightly so for offenders. Every magistrate has listened with patience to exaggerated  if not downright untruthful statements on behalf of these offenders; from the £6,000 salary a month of a managing director who denied or rather whose lawyer on his behalf denied that his client could be equally well served by employing a driver to the self employed businessman for whom I personally with my bench adjourned a case to bring his tax return to court showing, he claimed, he was earning below average wages with a large family to support; lies of course. I often had to educate my junior wingers of various precedents and the requirements needed for an offender to successfully argue a case.  Indeed more than once I had to ask a sympathetic but interfering legal advisor to refrain from putting her sympathetic opinion to us unasked.  It is therefore very welcome  after what the Sunday Times a decade or more ago  described if I remember correctly as the scandal of drivers legally still at the wheel with 12 or more penalty points that this "loophole" is to be tightened.  Drivers` reasons  will no longer be taken on trust even although they will have been sworn in before giving evidence, an outdated requirement in my opinion in a country where half or more people do not believe in an almighty being. Losing employment or caring for a relative are probably the most common reasons given in applications to justify exemption from a ban. After consultation the Sentencing Council has stated that it was "for the offender to prove to the civil standard of proof" that a ban would cause exceptional hardship. The statement added that losing work should be treated as "an inevitable consequence of a ban" and that perjury could result from making a false statement that consequence being a paper tiger insofar as magistrates` courts workings are not officially recorded.  I suppose the best summing up I can make of all this is not before time but not enough.

WHY I WOULD NOT HAVE WANTED TO EXTEND MY BENCH SERVICE TO 75 (CONTINUED)

Given that I have unlimited time to offer my opinions here I am conscious that in order not to burden readers with what amounts to an essay or a newspaper column`s worth of diatribe I try to limit my outpourings to a reasonable length.  To that requirement the post of October 20th was an example. However there are so many other factors surrounding the magistrates courts system that I feel a further explanation is needed that justifies for me at least the title of that previous and this post.

Of  all the changes I witnessed during my tenure that which had greatest effect was the loss of all that was remaining of an "independent" magistracy.  My induction was as the end approached.  Magistrates courts committees were disbanded and in came Her Majesty`s Court Service.  That was an executive agency of the Ministry of Justice (MoJ) and was responsible for the administration of the civil, family and criminal courts in England and Wales. It was created by the amalgamation of the Magistrates' Courts Service and the Court Service as a result of the Unified Courts Administration Programme. It came into being on 1 April 2005, bringing together the Magistrates' Courts Service and the Courts Service into a single organisation. On 1 April 2011 it merged with the Tribunals Service to form Her Majesty's Courts and Tribunals Service.  Over a short period magistrates found themselves bound by decisions over which they had minimal input. Speaking from direct personal knowledge as an example I was on my bench`s rota committee.  We had intimate knowledge of the personnel on our pre amalgamated bench and their various abilities to be available at very short notice. We knew their ethnicities and could endeavour to ensure when possible an appropriately composed bench. We knew those who had considered themselves available all day but had strict timetables for family duties. Our dedicated justices` assistant knew most of us by name and when and where to make contact.  No centrally controlled system was as efficient. During that period the Magistrates Association had a membership well above current levels and was able to be more pro active in our interests than the years since. Individual relationships with the Deputy Justices Clerk were first rate and combined with our District Judges taking on many aspects of our training pro bono we were a very cohesive well educated group. After five years absence of course I can`t compare the current situation but certainly it is hardly likely to be an improvement. Elected Bench Chairmen were once the conduit of bench opinion to the higher ranks of the judiciary.  Sadly that forum is no more.  Instead we have so called government toads otherwise known as leadership magistrates beholden only to the senior members of the judiciary who selected them and for whom they are supposed to "lead" JPs in the "right"  i.e. approved direction whether legally or politically. The "ship" of leadership would seem to be a submarine operating by stealth to torpedo any revisionary attitudes.  Type "leadership magistrates" in the search box for more information. The M.A. has itself been squeezed to the periphery of influence.  By its charitable status it is severely restrained from most activities except education when what is most dearly required is a protective organisation like the BMA to look after its members interests when in conflict with authority e.g. Judicial Conduct Investigations Office or  perhaps offering its members group i.e. reduced cost membership  of BUPA or the RAC.  Indeed the complaints procedure against alleged wrong doing by magistrates seems well documented with ample safeguards in a document of over twenty close typed pages of the rules and processes  to be followed. However the more rules means there are more traps for those enmeshed in a situation over which most have minimal control or a great deal of expense to ensure quality representation. I have personal experience of the machinations brought in circumstances when the status quo is questioned. For all organisations to be successful and efficient there must be trust between the governors and the governed.  Magistrates are the governed and Her Majesty`s Courts and Tribunals Service is the governor and in this situation treats and regards JPs as unpaid employees. It directs and supine justices clerks impose although they of course must do their master`s bidding. With my generation retired or nearing such a point the end of its influence and memory of independent thought and action  is upon us. Soon there will be nobody left to provide an alternative narrative. The ridiculous lowering of the age of appointment to 18 is an example of how those in the senior hierarchy of the Ministry of Justice kowtow to passing influencers irrespective of the logic or the political aspirations of those proposing such changes. One such influencer is the BBC. Last week I cut and pasted a tweet from it.  Below is the "non reply" reply I received when I complained about the blatant misrepresentation re "diversity".    

Dear Mr

Thank you for contacting us about a Tweet on the BBC Radio Manchester Twitter page. We are conscious of the need for Tweets to be worded carefully so as not to mislead readers or give the wrong impression about a story. This is frequently a very difficult decision for our editors, and we appreciate that not all readers will feel we get it right on every occasion. We would like to assure you that we value your feedback on the matter. All complaints are sent to BBC senior management and our online News teams every morning and we’ve included your points in our overnight reports. These reports are among the most widely read sources of feedback in the BBC and ensure that your complaint has been seen quickly, by the right people. This helps inform their decisions about current and future reporting.


Thank you once again for getting in touch.


Kind regards,

Evelyn Hamp




BBC Complaints Team

www.bbc.co.uk/complaints

I hope that my observations last week and above offer just a brief insight why this former magistrate is pleased to be at his keyboard and not in a courts system with almost half a million cases behind schedule most of this delay being due to the near death imposed by a thousand cuts of the MoJ knife since 2010.

WHY I WOULD NOT HAVE WANTED TO EXTEND MY BENCH SERVICE TO 75

Those who spend several of their precious minutes reading this blog obviously have more than an average interest in the law, lawyers, magistrates` affairs and other associated practitioners within all the permutations of what is still known as our justice system.   It would then be no surprise that some or many of you will have read on social media and in myriad local print media that the Ministry of Justice is advertising for magistrates. Ten years ago when there were about 30K magistrates servicing about 300 courts that would have caused headlines in those self same media.  Today with the number of courts literally halved, the number of magistrates has reduced by 57%. In 2013 there were 149 District Judges (MC) and DDJs. Currently there are 207 i.e. about one for every magistrates court; double the ratio as in 2013. In the ads however, applications are requested thus, "If you're aged 18-70 & can offer 14 or more days a year, we want to hear from you! Full training is provided." This ridiculously misleading advertisement has been running more or less unaltered for some months when today the  Bill to amend section 13 of the Courts Act 2003 to change the retirement age for magistrates from 70 to 75; and for connected purposes has yet to pass through all necessary parliamentary stages to be enacted.  And even supposing it does eventually reach the statute book it is a sure bet that nobody will be appointed to the bench at the age of 70. Its purpose is to persuade existing magistrates to remain in office for an additional time to cover the self inflicted shortfall which now exists. Having myself retired somewhat prematurely five years ago some little time prior to the imposition of the Criminal Courts Charge, dreamt up by the most incompetent Lord Chancellor in living memory, because I did not want to be forced to make the appropriate pronouncement enabled by the Charge I have lately pondered whether if I were five years younger five more years, to coin a phrase, would have been welcome. At the time perhaps;  but in the current climate I would have been well satisfied with my seventeen years as a J.P. to retire at 70.  And then I ask myself why.  The answer is that there is now no certainty of every defendant receiving true justice. Identity politics and cultural attitudes fostered in the main by political big wigs and enhanced by self identifying social groupings to advance their own agendas of division and discord, have fostered a doubt in many sectors of the population that the "system" is biased in the courts as in many other aspects of our social system. Governments, especially since 2010, have without a shadow of doubt advanced that impression by their making it increasingly difficult for an average wage earner to have legal representation in a courtroom. They have used a classic military pincer movement on the one hand in depriving the legal profession especially young criminal lawyers of fees worthy of their labour and on the other simultaneously raising the financial threshold of legal aid eligibility to deprive those on low and even median incomes of the right to legal aid. The result is that many, nobody knows just how many, defendants have pleaded guilty to offences to get matters over and done with at minimum cost bearing in mind sentence reduction for early guilty plea. The onset of the single justice procedure in 2015 which my early retirement allowed me to forego is used for adult defendants accused of minor offences that cannot result in a prison sentence such as speeding, driving without insurance, TV license evasion and train fare evasion.  I would not have wanted to be part of such a process.  It is another nail in the coffin of "open" justice. It is conducted by post in a closed office not open to public scrutiny whatever the supposed safeguards the MOJ insists are in place.  And finally in my humble opinion the question of "diversity" on the bench.  For decades the minimum age of magistrates was 27 but in 2004 that was reduced to 18.  At that age it has been shown conclusively that the parts of the brain dealing with logical thinking processes are as yet not fully developed. Indeed until the mid twenties emotional responses are not fully controlled. My observations on this on Twitter were met by abuse. Thankfully as far as I am aware in my own bench the youngest appointees were mid twenties. But that age limit combined with strident but misguided and wholly  wrong cries to increase the diversity of the bench have finally exposed the concept of a political  junior judiciary: a concept we are witnessing right now in the appointment of a new Supreme Court Justice in the USA when politicians and senior judiciary are nodding to themselves that that does not and will not happen here.  How wrong and hypocritical they all are.  For the record the BAME population of the WHOLE UK not just England & Wales where magistrates operate is 13.8% and the ratio of BAME magistrates is 13%. But misinformation is a virus and like a virus it spreads.   The item below was posted on Twitter on October 4th.  The word to note is the very first; an innocuous "Just". Bearing in mind the statistics in my previous sentence the tweet is designed to have an effect known to its author ie to spread discontent amongst said communities and thus to increase disharmony.  It is nothing short of disgraceful for the Magistrates Association to be involved. 

The phrase "to reflect" is a cover for there to be a political aspect to the composition of the bench. This is not something new. When I applied for the bench in the late 90s a question on the application demanded to know for which political party I had voted in the previous general election. I left it blank only to be told shortly afterwards that if I did not answer the question my application would be immediately rejected. I complied. The removal of that question was one of de-politicising the bench which previously had offered the position to former or current mayors or trade union officials in the "buggins turn" attitude to service as a magistrate. We are now in a reversed position. There is an unsaid or unwritten new rule of "quota" for those supposedly unrepresented minorities members of which will not know if they are selected on merit or bridging a supposed deficiency in their race, gender or what have you representation on the bench.


This is just a brief summation of why I would not have extended my time on the bench were it offered now. Perhaps I might be thought of as a reactionary old dinosaur. I most certainly am not but unfortunately age and life experience are of no value to the chattering, self important, socially divisive, politically correct identity politics and practitioners of 2020.

ENFORCED CHANGE FOR JUDICIAL SYSTEM

There is no doubt that many of the great British public can`t believe that magistrates are unpaid volunteers. From their point of view who would want to spend considerable time and obligations for no reward. From Carlisle in the north to Penzance in the west and all points east and south  local print media have recently been pleased to accept paid advertising from the Ministry of Justice in its appeal for applicants to the magistracy. Whether in their desperation to recruit or through sheer incompetence appointments committees charged with recruitment of JPs seem still unable to weed out those for whom sitting on the bench is more a social kudos than one of the most responsible positions a volunteer can undertake.  By far the most common reason for magistrates to be sacked is failing to sit for the minimum number of times for which they have effectively agreed; 13 days annually plus a few days training.  In my opinion such a limited attendance even for a winger is not enough to produce a well trained and rehearsed justice until at least two full years experience has been gained.  In the case of a presiding magistrate it is most certainly inadequate.  However with the current shortage of magistrates and the aging process inevitable even if those age 70 agree to sit another five years which is not a foregone conclusion the quantity and quality of aspirants is wanting.  In 2012 6 JPs were removed from the bench for failure to sit the minimum number of times required. In 2013 and 2014 it was 7. 2017 saw 10 sacked for similar failure and in 2018 it was 9.  Since July this year 6 low sitters have been sacked. With the increased pressure from on high that contrary to the facts the magistracy is lacking in diversity there is bound to be a loosening of standards.  For the record the BAME population of the WHOLE UK not just England & Wales where magistrates operate is 13.8% and the ratio of BAME magistrates is 13%.  

So there is a major problem for the MOJ. Magistrates will never be paid and their age profile is increasing owing to younger people especially in Covid 19 times making financial security number one priority and sacrificing 13 days pay  untenable.  Screaming that the bench doesn`t reflect local diversity [whether it should or not is another question] is becoming a slogan where its inaccuracy is becoming better known as fake news. In 2013 there were 149 District Judges (MC) and DDJs. Currently there are 207 i.e. about one for every magistrates court; double the ratio as in 2013. It would seem that the only way forward with a backlog of magistrates courts cases variously estimated at over 500K  is the recruitment of ever increasing numbers of District Judges(MC) and that will hasten the reduction in court duties of magistrates. 

The current crisis is hastening change at all levels of society in myriad ways.  The judicial system is not and will not be immune to the enforced changes recently instituted, or those to come both predictable and of a more esoteric nature. The institution of the magistracy will be swept along in the same tidal wave. Whether these changes will be to the benefit of Justice and the individual citizen or to the overpowering nature of government remains to be seen.  

ARROGANCE

Perhaps one of, if not the most irritating and resented attributes bestowed upon a person or organisation is:-

ARROGANCE: an attitude of superiority manifested in an overbearing manner or in presumptuous claims or assumptions.

Institutional racism is a phrase that has become common parlance and it is still fiercely debated twenty years after its introduction to the English language. I would contend that institutional arrogance is a term which should be more widely recognised among mainly governmental or quasi governmental organisations notwithstanding that large public and private entities are not immune from the condition. At the very top of my personal list of those to which the epithet should be applied is the police and the Metropolitan Police in particular. Under FOI laws 1343 pieces of evidence have been lost or misplaced since 2013. Of those 1000 were lost last year. In May 2018 the mayor of London attempted to put a gloss over the Met`s lackadaisical approach to this most vital of operations; the securing of evidence in the pursuit of subsequent prosecutions based upon said evidence.  In an organisation with appropriate management processes and a board actively responsible for its oversight those responsible would be held to account and a course of action applied to rectify the situation: not so at Scotland Yard whose spokesperson is reported to have remarked that there was no information on any missing items because the information is not stored in an easily accessible manner. He could just as well have added the computer says no.  That is arrogance. 

In 2015 292 racism complaints were made against  Met Police officers and staff. In 2019 that number had risen to 611. In the last five years there have been 2,825 complaints by 1,659 complainers. Of 2,416 resolved ie cases closed, 2,251 resulted in no further action. In the first half of this year 20 staff at the Met and 165 members of the public made formal complaints.  97% of the latter were were dropped and 53% of the former. A Met spokesman said, " The Met takes all allegations of a racist nature extremely seriously and is clear racism has no place in the organisation."  That is arrogance.

The Met is by far the largest police force in the UK but others have not gone unaffected by a similar attitude.  In Nottingham recently a 17 year old learner driver was caught by an automatic camera as having stopped in a red light area for 14.8 seconds with no oncoming cars or pedestrians present. Of course by the book he had committed an offence but what followed was as typical as can be imagined of a police force behaving like an algorithm with no human input. The driver apparently refused to accept a ticket and took his argument to a magistrates court where he was given an absolute discharge; a legal method of wiping out the whole affair. The full report can be read here but I quote from that report the response from Nottingham Police: "Insp Simon Allen, from Nottinghamshire Police, defended the force's actions over the case, saying there is "no mitigation for learner drivers when committing a traffic offence" and it was the job of officers "to uphold the law".  "The safety of all road users is paramount, which is why the law holds learner drivers equally accountable and they must ensure that they follow the rules of the road," he said."In these cases, drivers have the choice to take a ticket or to go to court as happened here."  That is arrogance.

HOME ABORTION APPEAL FAILS

For obvious reasons this blog has and does post on topics usually associated with magistrates courts, magistrates themselves and associated matters connected with the justice system. Today a little commented upon appeal in regard to the law on abortion was lost by Christian Concern although its underlying motivation was in all likelihood shared with right wing religious communities of other denominations. As a  non religious family man who was overjoyed at the safe delivery of a baby I have also held doubts about late onset abortion where although very unlikely a foetus might survive if given the opportunity there is an understanding that for some women an abortion is the lesser of some or many unhappy outcomes. I feel this post is apposite owing to  this week`s appointment by Donald Trump of a dedicated Catholic woman opposed to abortion to the position of Supreme Court Justice in USA.  The mere fact of her succeeding a fiercely liberal woman in the post at such short notice politically has increased interest in this topic which we in this country have long considered settled for all time.  For those interested the appeal is reported here and a statement subsequently from the Royal College of Obstetricians and Gynaecologists in response is available here. 

MORE EXCUSES FROM HMCTS

Today I am taking the unusual step in copying below a complete page from today`s Law  Society Gazette detailing changes in magistrates courts.  These changes as indicated in the article, as readers will find, are a direct result of Tory governments cutting and slashing funds to our justice system over the last decade. Of course the official statement is that the Covid 19 epidemic has been the cause but nobody remotely concerned with our courts system will echo that because as insiders we know really what has been happening.  The very essence of our summary justice is a bench of three.  I know only too well that if that number is reduced there is too much scope for one opinion to ride roughshod over another especially with an imbalance of experience between the two and or personality profiles which might appear when there is reduced discussion. It will be very inconvenient for witnesses and/or defendants with family arrangements to be in a courtroom at 8.00pm or longer. And finally there seems to be an assumption that lawyers will be unnecessary. All the above criticism will of course be denied.  EXCUSES, EXCUSES, EXCUSES.Need I say more?

"HM Courts & Tribunals Service has revealed that it will introduce evening courts to bring down the backlog of cases in the magistrates’ court.

In a webinar discussing HMCTS’s crime recovery plan yesterday, deputy director Jason Latham said HMCTS was in the ‘final stages’ of identifying how to roll out evening sessions, which would run from 5pm-8pm, Monday to Friday.

Latham said the evening sessions would hear cases requiring minimal involvement from a legal representative.

Saturday courts will also be extended. Earlier this week the Ministry of Justice said magistrates’ courts were seeing the number of outstanding cases fall – dealing with around 21,000 cases a week against a pre-Covid baseline of 33,853. Latham said 90 additional sessions were currently running in the magistrates’ court every Saturday.

To bring down the backlog of Crown court cases, Covid-19 operating hours are being tested at Liverpool, Hull, Stafford, Snaresbrook, Portsmouth and Reading crown courts.

Asked about the potential discriminatory impact of Covid-19 operating hours, Latham said: ‘We recognise this could have different types of impact on different types of users, particularly legal professionals. But it has been designed in a way, by the working group, so that provisions are in place for legal professionals in advance of a listed hearing date to request that it be moved, whether it is because of practical issues or issues such as where they have caring responsibilities.’

Latham added that the Covid-19 operating hours had been ‘designed in a way so people do not have to work longer hours. There is a choice of different sitting patterns available to them’.

Around 360 people tuned into HMCTS’s webinar where officials were also asked about empty courtrooms.

Delivery director Gill Hague said courtrooms might look empty but they were empty for a reason. She said they might be required for jury retiring or jury assembly arrangements, or they might not be being used because social distancing requirements cannot be achieved.

On why HMCTS was regularly sitting benches of two magistrates, not the usual three, attendees were told this was due to being able to maintain social distancing requirements not just in court but also ‘everything back of house’, such as the deliberation room and shared facilities."

MAGISTRATES NEED SUPPORT

Like many other Justices of the Peace when I began sitting in an actual court as a new appointee I was informed of the advantages of joining the Magistrates Association.  For a fairly small outlay I considered it a no brainer. I had in my professional life reached the rarified heights of being on the national council of the professional organisation which looked after the interests of its members including me.  Only later did I discover that the MA according to its charitable status did and does nothing to protect or support the individual member. The two magisterial colleagues, however,  who were our bench`s representatives on the MA council seemed to enjoy their position and persuaded many to attend the occasional lectures sponsored by the organisation. About seven years into my tenure I attended MA headquarters with a couple of colleagues having accepted an invitation to explore ways in which members could use their expertise in their commercial/academic/professional lives to the MA`s advantage.  I offered some suggestions and never heard a word subsequently. Around this time a colleague on another bench began a forum to which all magistrates were invited to participate.  I was an early joiner. Owing to dogma or personality clashes that independent forum was closed and simultaneously a new forum was opened under the auspices of the MA and regulated by volunteer colleagues. It was a well run platform where colleagues who had to be members of MA could vent their spleens as many were happy to do.  I was an early participant in that area also.  After being the recipient of rather unpleasant posts in 2009 I stopped my commenting and began blogging as an anonymous independent JP.  Some two years or so later the MA withdrew this forum. I tell this story to illustrate the MA`s tendency to choose secrecy over openness when there is that choice to answer or avoid criticism. 

It is well known that the number of magistrates has reduced in the last decade from around 30,000 to less than half that number; 13,000 today. Corresponding to this reduction has of course been a rapid drop in membership of the Magistrates Association. Added to this there has been a drop in the percentage of magistrates joining the MA. Latest figures extrapolated from the membership subscriptions filed in the MA accounts indicate that perhaps about a quarter of sitting magistrates have chosen not to become members of the Association. The accounts suggest that the MA`s income from members` subscriptions has fallen from over £926K in 2014 to £472 in 2018/19.   No exact figure can be given because the number of members does not appear to be published. Of course if I have been careless in my research no doubt a comment will be made by those who hold the secret in their grasp. 

Increasing involvement by HMCTS in training and general control of magistrates` activities might be a reason for the missing quartile. MOJ supervision of appointed and unelected so called leadership magistrates is a further indication of the slowly eroding influence of the MA.  Magistrates are sorely in need of a protective and supportive organisation to represent them against the often soul destroying investigations and/or complaints by colleagues, Justices Clerks and the Judicial Conduct Investigations Office where every year dozens of magistrates are struck off for failing their sittings requirements or worse. The need is there but the will is obviously not. 

A relevant post from June 2015 on MA attempts to increase its income is  available here. To provide the MA`s raison d`etre  further information from the horse`s mouth of the MA  can be accessed here. 

BEFORE YOUR VERY EYES

Many interested parties have wondered what has become of so called "leadership magistrates" appointed as the toads of the Ministry of Justice three years ago the T word being used of course in its pejorative form although whether the current incumbents have thick or poisonous skins is beyond my ken. All that is known publicly are their names and regions although that information had to be dragged out of Petty France.  Further details will be found on this site by typing "leadership magistrates" in the search box.  These folk are not representative of magistrates. The only representative JPs are those elected to be chairman of their bench or representatives to the Magistrates Association the latter body annually appearing to lose its credibility to influence the MOJ.  The latest example is that it did not know exactly how many magistrates were currently on the MOJ list.  To be fair the MOJ until very recently did not know either.  It so happens the number was 1,000 less than previously accounted for. It seems that now those MOJ lackeys representative of nobody but themselves and obviously expected to initiate or support MOJ policies has finally been exposed to the public in today`s report in the Law Society Gazette from where I have taken the extract below.

 "A  three-year Strategy for the Magistracy drawn up by the Magistrates Leadership Executive lists six objectives to create a ‘comprehensive and sustainable’ recruitment plan. These include exit interviews for colleagues leaving the magistracy and getting agreement from the ministry to set up a national steering group to raise the national profile of magistrates." [My bold]

Thus a further decline in the once was independent magistracy is taking place, as the war time comedian Arthur Askey used as his catchphrase, before your very eyes. 

POLITICAL TRUST! UNKNOWN BUT NOT UNKNOWABLE PROBLEMS AHEAD

 

A cohesive society exists on trust. Individuals who travel from strangers to friendship or closer can only experience worthwhile relationships when there is mutual trust.  Although there are millions of pages of company and commercial law many, especially small businesses, base their relationships and often their commercial success on trust. It might have been the case that in politics also trust was a given particularly at the higher levels of party politics. We are seeing every day on our television screens and in various media that now trust has completely broken down with the lies of Donald Trump being listed almost daily by fact checkers on CNN. Sad to tell that innocuous virus which doesn`t originate in China but whose origin derives from the hearts of men (men includes women in this analogy) is increasing its infiltration into our daily lives. In this country it has been constrained by ancient rules, procedures and attitudes which I fear are no longer strong enough to withhold the pressures being exerted upon them.  The Ministry of Justice has long been at the forefront of presenting its 😁 smiley face by the hundreds of people employed in a press and PR capacity. Typing "MOJ press office" in the search box on the right hand side of the narrative will reveal a few previous ventures into this topic. However one fact I cannot present is the number actually employed to bring that smiley face to the great British public even when the information barely concealed is dire. Knife crime and so called deterrent sentencing are two of the most high profile subjects of which Justice Secretaries like to take possession, i.e.headlines. Cases outstanding at magistrates courts owing to Convid-19 are estimated at 450K-500K.  Under the horizon this dreadful backlog caused in great part by a decade of mismanagement is being reduced at record speeds by using the single justice procedure where so mush goes through on the nod and totally unreported. Similar circumstances at crown courts are less in quantity but a magnitude greater in quality with life changing events for many if not most participants who are not officers of the court. Knife crime is so much part of daily life for many that I have posted on it many times. As previously by placing those terms in the search box a potted history will become available for those who are interested. Justice secretaries per se do not come out of this well irrespective of the weasel words of cracking down or ramping up which seem to be in vogue.   Today MOJ announces that custodial sentences for emergency workers will be increased to two years custody. In 2018 such sentences were doubled from six months to 12 months at the magistrates court. Like a gambler doubling his bet in attempting to win back his losses the maximum is again doubled. These cases will be heard at crown court. But they will not reduce the crime to which they are attached. There are and were conditions to increase sentences already available to CPS and judges. They were not often applied. At this level of criminality it is the fear of being caught and charged which prevails upon those inclined to take their violent path. That fear has simply dissipated owing to the emasculation of police and policing. The use of so called Nightingale Courts so loudly trumpeted just a few months ago has now been called into question with the impending closure of one such that was opened only a month ago.  Other government departments are open to similar criticism by those who know, over their own loose tongues and press releases where once again every little lie is eroding the trust upon which we allow ourselves to be governed.  Yesterday the current holder of that ancient title Lord Chancellor stated re the controversy over the Agreement reached which enabled Boris Johnson to have number 10 as his home, " Buckland: I'll quit if rule of law broken in 'unacceptable way'. With a Home Secretary in denial but five former prime ministers expressing a restrained sense of incredulity that their successor might be the author of the problem we can finally say that political trust between people and ruler has been eroded beyond a point of redemption and that spells unknown but not unknowable problems ahead for all of us. 

A COURT REPORT IN COVENTRY LIVE BETTER NOT PUBLISHED

Reporting from magistrates courts is by necessity often sparse.  Indeed the public is fortunate that court reporting is still undertaken at all by local print media. The cost for publishers is often an expense ill afforded.  My last court activity was over five years ago but after seventeen years on the bench it takes sometimes only a moment or two for old memories to be revived.  And that is what happened when I read this short report.  Now admittedly there is no detail on the offender`s circumstances, his previous offending (if any) or any other material that might have been offered to the bench in mitigation.  There is no information whether as is usually the case a probation pre sentence report was presented to the bench. We do not even know if he were represented although a duty solicitor must be engaged for an offender at first appearance if there is the possibility of custody. Whether or not this was the case we just don`t know. All in all this was court reporting at the lowest level worthy of the description. What we do know is that he pleaded guilty which allows 10% to 33% discount in the sentence. We know that notwithstanding all the above he received the maximum sentence possible under the circumstance according to law. Therefore we can assume that there was considered by the bench maximum culpability although no harm was apparently caused to anyone leaving aside any fears if his actions were visible to the public.  I fail to see how all the above being considered why his sentence was suspended. This really is an example where the reporter should have stayed in bed.

I have long championed the idea of local magistrates courts being televised live by perhaps local media entrepreneurs.  At least we, the great British public, would be able to see the legal process in action as it actual happens; not a severely truncated version of events which might be considered worse than no printed report at all. 

TELEVISION LICENSE EVASION TO BE DE CRIMINALISED AT LAST

This morning I have felt as if I have visited an aged relative`s house where my memories are of long ago and don`t seem linked to the occasion yet they are because otherwise these memories would not exist; the house and its contents would be viewed as a completely new experience. Today HMCTS has listed tomorrow`s court lists on line and publicly available for all magistrates courts in England and Wales. This is undoubtedly a "shout about it from the rooftops" occasion from an organisation which has trumpeted the benefits of hundreds of millions pounds invested in new technology. It has been a long time coming. A decade ago Camberwell Green court in South London was to be the showpiece of the latest technical advances then available.  It failed miserably.  There is no doubt that Convid-19 has accelerated these latest innovations in a courts system which has systematically been deprived of capital funding these last ten years. Naturally enough I have viewed the listings at my old court.  Having previously as a sitting magistrate had sight only of the lists as having been presented before 10.00am or 2.00pm where full details were listed of offence and defendant these public lists had little meaning save for names, list number and allocated rooms.  It was apparent however that many would be expected to go through with minimum time allocated. As usual with very few exceptions all were listed for 10.00am or 2.00pm. Without an inspection of the public waiting area and I presume its safe social distancing layout most cases are likely to be plea by post or no plea at all. 

There was one aspect of this new listing arrangement which definitely caught my attention. Long before I migrated this blog from its now defunct German owned host to its current host site Blogspot in 2013 I had been an advocate of the decriminalisation of failure to possess a TV license. The earliest that opinion was offered to the ether here was 9th March 2014. In retrospect I was a little optimistic that the soundings from government spokesmen were to have substance.  However there is no doubt now that the whispers then are very soon to be activated loud and clear and the BBC is trembling at its corporate knees at the prospect which, combined with the requirement to take non payers to the county court and for most viewers over 75 to pay full price for their viewing privilege, will leave it financially in very serious trouble. Currently those hauled before the magistrates court for non payment are facing the single justice procedure. I have from afar had principled objections to that procedure since its inception. For further posts on this topic just type the three appropriate words in the search box. Be that as it may that is the system in current use for license evasion. In its new openness HMCTS has published tomorrow`s SJP list for my former court (amongst others). There are listed  nearly 1900 cases of which I estimate over 90% are indeed for the criminal offence of TV license evasion. If my previous experiences are a guide it is unlikely that more than a handful of defendants will attend in person. Almost 130,000 offenders were convicted in England in 2018  the majority of the few jailed being women who make up almost 70 per cent of those prosecuted.  Indeed 30% of all criminal prosecutions against women in 2017 were for evasion of the TV licence. It is not a moment too soon for the government`s decision to be made public and to be implemented ASAP.