MINISTRY OF JUSTICE IS JUST A SHADOW

I doubt there is a single reader of this blog who is unaware of the drastic reduction in legal aid for those attending magistrates courts.  In 2019/20 the criminal legal aid budget in England and Wales was £897 million  compared with £896 million in the previous year. Criminal legal aid peaked in 2003/04 at over £2.6 billion.  Between 2005/06 and the most recent financial year it has fallen by £676 million in real terms. Civil legal aid has also been cut since 2005/06. After peaking at £1.2 billion in 2010/11 it fell to just £651 million by 2015/16. 

Not only does financial strangling of the legal aid availability reduce the numbers of lawyers in court it imposes a higher standard of performance from presiding justices to ensure that justice is done and seen to be done.  It has led to a reduction of the numbers of lawyers financially able to undertake work as duty solicitor.  The biggest cuts were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 but provision has been stripped away for decades. Hourly rates for legal aid haven’t changed in 20 years.  And to counter this appalling lack of resource for those who most need it the weasels in Petty France last week announced that the Ministry of Justice has most generously provided £3.1 million  to a range of regional and local services. This miniscule amount is not to pay for legal aid per se but to various groups and organisations such as advice centres. Once again the MOJ and its overfunded press and PR department is attempting to mislead a public that will not care a figg until they are faced with a court appearance. What was truly the finest justice system in the world is now not even a poor shadow of its former self. Shame on all involved from Tony Blair to Boris Johnson; from Lord Irvine to Robert Buckland.  

TV LICENSE EVASION TO REMAIN A CRIMINAL OFFENCE

Will they? won`t they? push me, pull me to the top of the hill and push me pull me down again.  These remarks seem to be the underlying propelling thrusts of the government`s policy on BBC TV licensing.  Literally for years Tory governments have been hinting that the bloated BBC cannot be reliant on the funding (read taxes)  provided by every household which receives live television broadcasting. This news was greeted      positively by many outside the family of luvvies who derive enormous proportions of their income and wealth from those who are unable to feed their families even with the support of social security payments. More recently the current occupants of political power have hinted strongly that failure to pay the license fee will be decriminalised; ie such charges would be brought through county court and not the magistrates court where currently around 130K such cases are heard annually which works out at about 15 per week per court. Many if not all these alleged offenders` cases are decided through the single justice procedure.    There are about 26 million TV license payers ie about 0.50% of TV viewers` households have been found guilty of evasion. Along with the vast majority of my former colleagues I was none too happy with the situation. Invariably the poorest and/or recently arrived immigrants seemed to form the bulk of offenders although it was not unusual to discover that a subscription TV service was being paid for when the license was not. Those appearing before us were distressed to discover that that they had committed a criminal offence.  License inquiry agents tended to hold the first person to open the front door of a suspected premises to be the person responsible for the offence. 

Most members of the public do not know that they are under no obligation to open the door nor allow entrance to their property to an inquiry agent. I recall a case where that unlucky door opening first person who appeared before me and my colleagues was a visiting American Harvard law graduate who now as a result has a criminal record in the UK.  When my son went to university I advised him not to overlook requiring a license for his flat`s TV and never to open the door to an inquiry agent. 

The BBC having spent over a £1,000,000 on outside lawyers notwithstanding their staff lawyers` wages  argued inter alia that decriminalisation would cut their revenues by £300 million annually.  And to indicate their humanity emphasised that were the offence to be decriminalised county courts cannot take offenders` means into consideration when finding for the plaintiff who in this case would be the BBC. In England in 2018  the majority of the few jailed not for neglecting to pay for a license but for wilful neglect or  culpable refusal to pay the resulting fine were 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. 

But all that flag flying of the last five years or more has gone with the wind. Ministers have decided not to end the criminal prosecution of evaders and this at a time when the only companionship for many home ensconced children as well as adults is their television with its five basic channels plus those free to air. The recent government statement is available here. 

The free marketeers on the extreme right who have championed Brexit and rally against lockdown seem to have lost this one. But so have the government by marching up the hill only to march down again behaving like a simpleton who agrees with the last argument fed to him. So poorer over 75s will still have exemption from the TV tax but not those 65-75 year olds of similar financial status. It is one thing for a government to listen to its citizens but it is another to vacillate over so many of the decisions that must be made. That leads to general calls for decisive action in a myriad of situations.  It is but an early event in the sequence which leads to demands for strong action and inevitably to a strong man to provide leadership to take that strong action.  And we can guess where that leads..........can`t we?

ARE THEY GETTING AWAY WITH IT?

Regular readers will be familiar with my gripes on exceptional hardship.  New readers might want to put those words into the search box for further reading. I have also opined on the pseudo secretive newish process of the single justice procedure. A recent case which has been reported here appears to involve the exceptional hardship defence against driving disqualification. What is not reported is whether or not the offender was represented or whether proof re his application was requested or supplied. Indeed when I was active (before the SJP) exceptional hardship application was usually made at a date announced after the original award of points that put a totter over the top. 

Perhaps somewhere there is information that would clarify in general situations as above. It is too easy to believe that as the "Sun" journalist might write, "Too many offenders are getting away with it."

JUSTICE DOWN A DARK ALLEY

There are so many so called "initiatives" brought about by government departments that only those with intimate knowledge of the associated areas of activity can offer substantive opinions.  The Ministry of Justice with its enormous PR department certainly is not lacking in efforts along those lines. Only since its pilot scheme ended a couple of weeks ago on December 31st has it become public knowledge that a scheme by which offenders without an admission of guilt can avoid prosecution and a possible criminal record by agreeing to such conditions as rehabilitation or paying compensation to "alleged" victims. According to the Policy Evaluation Research Unit just Scotland Yard and West Yorkshire Constabulary had been chosen as pilots. The results must have been truly impressive since within two weeks of the scheme`s ending it has been expanded and  that  apparently placing those chosen offenders into the scheme was justified by "senior police officers" in the now revealed participating eight police forces in England and Wales.  This has to be PR nonsense.  Any such study must require many hundreds of hours of analysis and with the best resources could not have been through all the levels of a rigorous examination mathematically, socially and politically to have become operational unless such examination has been foreshortened or the outcome was politically pre-determined.  Nevertheless in London 175 alleged offenders have been placed on the scheme and 74 in West Yorkshire. Offences include criminal damage and assault for which the maximum sentences are six months custody. There has been to my knowledge no information forthcoming on those cases regarding whether they were eg first offences, subsequent to input from victims or ethnicity of offenders but from reading the above report it would appear that racial bias alleged or otherwise had more than a marginal effect on conclusions. 

A spokesperson from the MOJ has been quoted as follows, "a key feature is that an admission of guilt is not necessary", but added that prosecution was still on the table for those who failed the requirements of their rehabilitation programmes. I make no apology for belonging to a generation that believes justice must not only be done but be seen to be done.  If that makes me an outcast amongst current legal thinkers and practitioners; so be it.  But secret justice lives down a very dark alley.  The deeper it becomes the more dangerous for us all and operated by a government that is amongst the most arbitrary in its decision making for many years it is another pointer of how authoritarianism arrives when least expected despite warnings of its nascent emergence. 

BLEAK PROSPECTS IN THE HOUSE

This is a first post of a new year but unfortunately although not unexpectedly once again we are forced to listen to an aspiring warlord of a home secretary telling us how we are going to be kept so much safer in our daily lives by the actions she is undertaking for our protection. Methinks we have heard it all before.  In the last few days she has pledged to use new stronger powers to deport criminals and deter illegal immigration.  Considering the latter proposal it has been apparent for the last year that this country just does not have the naval facilities to combat the illegal flow across the channel and even if it had what actions could it undertake accepting of course that it is against international law to use force lethal or otherwise to stop such people reaching their desired destination. Prevention is often said to be better than cure but even with willing partners in France and Belgium it is impossible for them to police 50 miles from Ostend to Calais 24 hours daily. Knowing that such illegal traffic is directed by criminals,  authorities in all three countries involved have scarcely made any inroads into arresting and convicting those gangs who, by all accounts, are making millions of pounds from their human cargoes. These usually impoverished people consist of some who are fleeing repression in their homelands of Iran, Syria or Africa and the remainder who seek to improve their economic status by coming to Britain. It has been considered that the numbers of unaccompanied young males is indicative of the latter group. But the official numbers by their very source can provide only a fleeting glimpse into the whole problem analyses of which provide great difficulties for those with vastly more knowledge than I. 

On her other assurance to a public which she presumes to be as spectators at a medieval hanging at Tyburn she has outlined plans to make it easier to remove offenders who are subject to custodial sentences of six months.  On this topic I can opine with some personal knowledge. Current policy imparts any person of 17 years or over who does not have the right of abode who is convicted of an offence is liable to a custodial sentence and recommended for deportation by a court which has the power to sentence him.  The fact that a court has decided not to make a recommendation for deportation does not debar the Secretary of State taking such action on the basis that such an offender is non conducive to the public good.  In May 2006 it was recognised by the Labour government that there was a need to prioritise cases by the level of risk that a person posed to the public for those given a 12 month custodial sentence either in one sentence or as an aggregate of sentences over a five year period. That provision, of course, enabled an offender who received two consecutive six month sentences at a magistrates court; infrequent but not unusual, to be subject to deportation. These and other provisions became law under the terms of the UK Borders Act 2007. I recollect in that year my bench, against the advice of our legal advisor at the time, instigating such a process against an East European who had been convicted and sentenced to be within such provisions. After voluminous correspondence it was rejected.  To reduce the required prison sentence from 12 to 6 months for the sanction of deportation to be available the Home Secretary is behaving with a similar  mindset as Nero throwing Christians to the lions. She is offering what she believes is the public demand to deflect much warranted criticism of her own follies. Thus many offenders convicted of low level drug offences, thousands of motoring offences and common assault  could be on her "deport them" wish list not to mention a multitude of other offences tried summarily at magistrates courts.  Considering her recent outbursts against lawyers and political opponents who offer logical criticism in principle and of the logistics involved there is no doubt in my mind that her proposals will meet short thrift unless the current incompetent and overtaxed prime minister decides to use parliamentary dictatorship and his political capital to force through such measures through the House of Commons. 

This is the state we have reached in this country: an inability for many years to provide enough hospital beds and equipment, a myopic money saving effort involved in the closure of half the country`s magistrates courts with the resultant delays, a transport infrastructure in disrepair to be balanced against the spiralling costs of a new railway which is already outmoded, a population of ever increasing child poverty, a miserable housing situation for a large minority who will never be able to buy their own home and so many other public services not fit for purpose.  One does not have to be a member of the Corbyn cult to realise that something is failing in the way in which we are governed.  And as previously mentioned that time honoured method of diverting public criticism is alive and well in this new year as it has been in every year previously; get rid of the foreigners who are the cause of it all. Italy, Germany, Rwanda, China, USA...........  The numbers, methods and enforcement might vary but the underlying motivation is the same.  I`m an optimist but the prospects are bleak. 

"SLAINTE MHATH" OR FOR THE NON GAELIC SPEAKER "CHEERS" EXCLUDING THE WEE BEASTIES

 Although I hadn`t planned on posting here until after the new year natural curiosity in checking day to day events which might be of interest overcame my reluctance. 

It would appear that, simple as it appears to me having bought, sold and managed various business projects in my previous life, the notion of HMCTS being able to inform its staff that many black and ethnic minority people attending court do so in a professional capacity and not as defendants is beyond its capabilities. In any normal business or professional environment those individuals responsible for that lack of training and of grievously insulting non white attendees would be severely admonished or sacked subsequent of course to so called HR investigation. There is no doubt in my mind that that organisation is no longer fit for purpose irrespective of all the "good news" put out by its inflated task force of weasels in its PR department.  

Sometimes I just fail to understand the leniency of some magistrates when dealing with a case which clearly requires the maximum sentence available for said offence.  Such was the decision recently at Northampton Magistrates Court when a driver in a 40MPH zone was clocked at over 100MPH.  He was given six penalty points when the maximum for said offending is 56 days disqualification. Perhaps, if he already had points on his license, the thinking? process of the bench was the sword of Damacles approach "next time a ban will be inevitable". The short report leaves questions unanswered.  

At the same court on December 21st the chairman of the bench was castigated by commenters apparently echoed by the reporter for very severe words to an offender who had been released from a mental health institution shortly before he had offended. There is no doubt that governments over the last two decades have brought nothing less than havoc to the treatment of those with mental health problems.  As a society we have accepted the predictable results of such incredibly myopic actions. We have actively allowed millions of our fellow citizens to suffer their agonies unchecked until they appear in a courtroom.  My suggestions here and elsewhere that a modern form of workhouse (use search if interested) be established for particularly vulnerable people have been ridiculed. Current treatments and rules for mentally sick and also those with addictions are not fit for purpose. But like legal aid such matters flow beneath the popularity horizon of most of the population until they are personally involved and government is very happy to let that insularity continue until perhaps major events intervene. 

Finally for those wish an insight into current court statistics access here.  

With many of my generation awaiting a message from their GP to be next in line for you know what I will be content to see in my next Hogmanay with a large glass or two of 12 year old Glenlivet. Slàinte Mhath (Pronounced Slanj-a-va)

ROLL ON VACCINATION DAY

 A year ago I posted the following:-

"I suppose "peace on Earth and goodwill towards men" sums up precisely what the world needs most. Unfortunately recent events indicate that that aspiration might never be attained.  However until such time that that enduring phrase is erased from our consciousness and our consciences we can but be hopeful that we might reach an era when its repetition offers some solace to all of us.

I thank all my readers for the precious minutes they have spent to read my simple offerings in 2019 and hope to be back here with some more of the same in January."  

There had been, around that time, the most fleeting of references to a "new flu" type infection in a part of China of which few of us insulated in the west had heard.  Now we are deafened by the continual information being directed towards us by all media.  To my personal astonishment there are still some diehards mostly emanating from the "land of the free, home of the brave" where ridicule is directed at those media with their scientific all too rational reports. From a country where we have had an astonishing display from a petulant president inciting his cultist followers almost to a state of rebellion it would be no surprise if someone somewhere in Alabama or Mississippi announced the second coming of his messiah.  The original such coming took three hundred years for his being to become the established deity by its greatest antagonist.  Communication is now but an instant for all with the advent (no pun intended) of Twitter, Facebook and Instagram. As a contributor to the first of those outlets I am well aware of how even the most cut and dried and sometimes  mundane legal matters can elicit the most venomous of responses. Notwithstanding those, our legal system is being undermined from the very top if that`s not an oxymoron. We have had recently the Attorney General lodging an appeal against the supposed lenient sentences given to the killers of PC Harper. On dismissing that appeal  the senior judges appeared to criticise the attorney general saying that rather than pointing out errors in following sentencing guidelines she argued that the judge should have violated the guidelines. A few days ago the Home Secretary made on line comments about the trial of those involved in the death of 39 immigrants in a sealed lorry container: comments which nearly were the cause of a mistrial. A full report can be read here. 

There has been a history of late of the executive attempting to compromise the legal process of Brexit and parliamentary procedures. The portents for our well being as a society are being threatened by government in its undermining of the legal and justice system and its practitioners on and in front of the bench. The divisions in so many areas encouraged by such organisations as Black Lives Matter and the trend in so many spheres of employment and elsewhere for quota systems to operate are a road to despair. Where does a quota begin and end and are those in any selection content to know that suitability  for a position might or might not have been solely on merit?  The times they are a changin`. Bob Dylan recently sold his library for $300 million. Judas sold Jesus for 30 pieces of silver. We are selling our political souls for a 30 second sound bite.

We can`t vaccinate against authoritarian government tendencies but we can against Covid 19. For those of my generation especially, roll on vaccination day. Have a hale, hearty and endure with fortitude a more lonely Christmas and New Year than expected. BE SAFE.

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.