JUSTICE NOT SEEN TO BE DONE

I would assume that most readers here will be familiar with the phrases; "now you see it now you don`t", "what aboutery" in relation to arguments, "tactical deception" and others similar. Whilst individually they might refer to different scenarios they have a common thread which is to deflect and/or to deceive an opposing party into believing that an action physical, verbal,  or military will be opposite to that expected by the onlooker,  debater or enemy. The Ministry of Justice with its public relations and advertising spending hidden from public view is a master of those aforesaid tactics. 

In the last couple of months media have been bombarded with stories of how throttling is to be made a crime, secret justice in the magistrates courts and that rape complainants [often wrongly written and spoken of as "victims"] will be offered opportunity to give evidence at a distance and /or to a court cleared of the public: all this whilst as a result of the deliberate policies during the last decade of slashing the MOJ budget by eg closing half the country`s magistrates courts and effectively squeezing hundreds of lawyers out of the legal aid system. Despite all the propaganda and announcements of how Covid 19 is being overcome the very basis of our system of justice is at breaking point; not at the top end for Russian oligarchs divorcing avaricious wives or a Supreme Court overruling the Appeal Court on parliamentary process or citizens` rights deprived from a fifteen year old groomed by Islamist fanatics to applaud public beheading of innocents but at the bottom end where 1.5 million cases are brought annually and over 100K trials are held. These diversions which have been flagged for attention by the PR weasels in Petty France consist of focussing on female complainants of abuse and the secrecy of the single justice procedure. 

As usual the Victims` Commissioner and women's groups shout loudest that women are in greater need of legal protection from domestic abuse. The purpose is to make non fatal strangulation (throttling) a stand alone offence with a maximum of five years custody.  By any stretch of the imagination such an act is horrific but an argument put forward for the inadequacy of current legislation is that all too often the accused is charged with common assault; a summary offence for which the maximum penalty is six months custody.  It is argued that the current law is inadequate. Reading  the Sentencing Guideline shows that punishment commensurate with the crime is available but if the CPS do not charge according to the seriousness of the offence and continue to undercharge in order to secure conviction offenders will of course cock a snoop at the law.  Despite the gearing of statistics to highlight their arguments and conveniently forgetting the recent examples of false allegations those same vociferous advocates for change wish to ban attendance in the public gallery when complainants give their evidence in rape trials perhaps the most difficult of offences to prove beyond a reasonable doubt owing to a common mutually pleasurable and legal activity being undermined by one party, usually female, making accusations of force by the other participant.  The watchword of justice being SEEN to be done is conveniently overlooked or considered obsolete. 

Nowhere has justice by stealth crept up on us more steadily than in what`s known as the single justice procedure.  Incredibly this blot on the legal landscape has been endorsed by most magistrates and the Magistrates Association. Originally intended for common offences where custody is not an option eg non payment of TV license, low level motoring offences or non payment of transport fares etc  and personal appearance by the defendant is not required it has developed to a situation where charges such as assault can be laid before a single justice. In the nine months to last September almost 400K  people have been prosecuted of which 70% offered no plea and so were convicted and fined. Since the epidemic thousands of fines have been issued through this process under Coronavirus Act and allied regulations. Hundreds and possibly thousands to be investigated of these cases were wrongly prosecuted.  Those at the sharp end of these injustices were likely to have been at the lower end of the socio economic spectrum. This is justice Chinese style where 99% of cases result in conviction. It has no place in England and at least its format should be reviewed.  But be in no doubt the toads of Petty France have many more avenues to divert critics` prying eyes from what is really happening in our courts.  

WHEN IN ROME? MACCLESFIELD? DO AS THE TURKISH

It is of no great surprise when visual media covering visits of female  royalty or lesser supposed personalities or leaders to middle eastern countries publish images of said visitors dressed in such a manner that we are told they are paying respect to the mores of those host countries.  These outward manifestations of "respect" would often include the wearing of head coverings of a form associated with the Muslim religion and or trousers when that form of dress would be unusual in a western setting.  Most observers would not in any way offer criticism.  For mere mortals visiting such countries following local modesty rules is more than just out of politeness or respect it is an absolute necessity to avoid falling foul of local gendarmerie and a possible jail sentence or forced deportation. For visitors to this country or immigrants the British and especially Londoners are and have always been tolerant to  seeing people attired in all manner of national costumes from the lavish colours of the silk dresses of Nigerians to the burka of Afghans and others.  In similar fashion shisha cafes, almost unknown in Britain 20 years ago, are now commonplace in many towns and cities. Provided they are open in line with current regulations and the substance smoked is only tobacco they provide a new experience for us and a sense of home for the mainly Turkish and middle eastern proprietors and their immigrant countrymen. The essence of British hospitality to newcomers is an expectation that they respect are laws but fearful of accusations of racism many organisations have for too long failed in their duties to call a spade a spade when faced with clear examples of law breaking.  Perhaps the most atrocious of such cases was the cover up of Pakistan heritage men grooming, exploiting, abusing and raping under age girls mainly but not exclusively in northern England. Similar offences by high profile wealthy Arab visitors have been reported for years. Currently a billionaire Arab potentate and friend of the Queen is suspected of causing harm or worse to his daughter. At the lower end of the financial scale there are major concerns that immigrants of Pakistani origin and their families are involved in forced marriage; an offence that was enacted purely as a result of those practices which were common in their countries of origin. The old adage "when in Rome do as the Romans" is particularly applicable to foster harmony between a home population and immigrants.  And that brings me to the disturbing outcome of a case where a few days ago a Turkish chef was cleared of sexual assault of a teenage waitress on the basis of his claim, accepted at Stockport magistrates court, that in his native country it would be considered acceptable behaviour.  A comprehensive court report from World News can be accessed here although the case was widely reported in many other media outlets. 

A case like this will do more to encourage the true racists in this country than all the taking the knee at football matches. Left wing comment has been almost non existent.  Our laws are there to provide justice for all without fear or favour.  In simple terms that means that every case is decided by a single standard. Allowing this defendant to be acquitted is an injustice not only to the complainant but to us all. Thousands who read of this matter will have their faith in our system of justice further eroded. Thousands more will have their hatred for those they consider unwanted  foreigners in this country enhanced. I will conclude by posting below the final few paragraphs of the report. 

A SNAPSHOT OF BRITISH JUSTICE 2021 STYLE

Being retired from any job allows time for some introspection.  As a retired magistrate who has enjoyed sharing his opinions since 2009 this freedom has offered me opportunities to muse on matters of national importance and occasionally to comment [criticise?] on real time happenings at magistrates courts.  Today`s effort is one of those times.

I was active when dedicated domestic violence courses became compulsory for any JP who sat or wished to sit in those courts. I recollect at the time that the providers were heavily dependent on statistics from USA and very much dedicated to male on female violations. I would imagine that such courses have been modified since then.  However a recent case at Grays Magistrates Court caught my eye. As bad a case it is possible to be heard outside the crown court. Indeed from the report it seems it was undercharged resulting in a suspended custodial sentence for the offender.  Readers can access the matter here and it is refreshing to note the detail often omitted these days from the local print media.  In my opinion that offender should have been charged at a higher level where the crown court would pass judgement.  Perhaps pressures on court schedules and Covid -19 have reared their delaying heads. The refusal of compensation defies belief. 

As a Twitter user I have tweeted not so long ago on the public silence of the Magistrates Association concerning its members` court experiences in the light of the pandemic.  Narey a response from it nor the dozens of JPs linked to that outlet. The staff at Highbury Magistrates Court who are in the thick of possible infection are contemplating strike action.  I wish them well. 

Peterborough Magistrates Court was the scene last week where a dangerously drunk driver was sentenced to custody suspended. I am more convinced as the years roll on that sentences of that ilk for offenders such as he are distorting our communal sense of justice to appease left wing activists and the financial restraints of the Ministry of Justice. This particular offender was driving a lethal weapon in such an inebriated state it was akin to conspiracy to murder.  When a population begins to think that criminals can "get away with it" there are social problems ahead. 

On a more positive note to end my rant the user of an illegally transferred Blue Badge recently received her just desserts at Medway Magistrates Court.  For too long these offences were treated too lightly. Justice must be seen to be done and her punishment was just that. 

 Some senior police officers have the foresight, intellect and sensibilities of a mouse. Readers might remember about ten years ago many police forces placed cardboard effigies of a constable   in town centres, supposedly as a deterrent against criminal activity, to a chorus of public derision. It seems that a decade later the top echelons of some police forces are still finding ways to demonstrate their incompetence. A headline today (accessible below) which for me at least sums up so much that is woeful when discussing in general our system of justice from apprehending offenders to their being sentenced. That aforementioned headline was caused by police in Liverpool telling the public by means of large posters that being offensive was illegal. Will they ever learn? 

RETIRED JP STILL BEHOLDEN TO JCIO

 I sat on an inner city bench for seventeen years until enforced retirement allowed me to retain use of the J.P. suffix and automatically relegated me to the "supplemental list" where a very few magisterial functions were still within my authority. The most significant of those  is the authority to countersign  passport applications as  countersignatories must either work in (*or be retired from) a recognised profession and Justice of the Peace is a recognised profession. Those on the supplemental list or retired magistrates cannot:-

 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

Sign off statutory declarations

There is, however, a price to be paid for those who wish to retain the kudos of having those two letters after their name; namely the holder will still be subject to the rules and guidelines to which serving magistrates are subject. Mr Karl McCartney JP MP was first elected at the 2010 general election and represented the constituency until he was defeated by Labour's Karen Lee at the 2017 general election. He was re-elected as a Tory in the 2019 general election and is on the supplemental list. He also exhibits attitudes of an arrogant right wing Tory. In January 2021 the Judicial Conduct Investigations Office issued a formal warning to McCartney for referring to his role as a Magistrate in election material despite having been reprimanded for this previously. This reprimand was "for allowing his judicial status to be referred to on a political leaflet in a way that gave the appearance of seeking to gain advantage which is contrary to guidance that is intended to protect judicial independence and impartiality." In reaching their decision, the JCIO noted that McCartney had previously received a disciplinary sanction for similar behaviour and was unwilling to acknowledge the inappropriateness of his actions. [my bold]

On 29th October 2020 a spokesperson from the Judicial Conduct Investigations Office said:“The  Lord  Chancellor  and  Mrs  Justice  Cheema-Grubb  DBE,  on  behalf  of  the  Lord Chief  Justice,  have  issued  Dr  Nigel  Molden  JP,  a  magistrate  on  the  Supplemental List,[my bold]  with a formal warning following a careless driving conviction and the accrual of six  penalty  points  on  his  driving  licence.  In  considering  this  matter,  the  Lord Chancellor  and  Lord  Chief  Justice noted  his  continuing  denial of  any  wrong  doing and also took into account Dr Molden’s timely disclosure to his Bench Chair, and his otherwise clean driving and disciplinary records."

These are but two recent examples of retired magistrates falling foul of the almighty JCIO.  Considering that many thousand magistrates will retire in the next decade they ought to think carefully at that point when they receive a letter such as the one I received copied below. No request was made by me to join the list.

What that letter and enclosure did not spell out was an option to opt out of joining the supplemental list and the fact that being on it placed upon the retired magistrate exactly the same obligations and guidelines as existed when active on the bench. .  Perhaps my advice to magistrates about to retire is that if you do not want your personal activities to come under the long reach of the JCIO you must ask to be removed.   As for me; I did not give a thought to the supplemental list and its obligations until as a result of a blog post 23/7/2019 I was threatened with a full on investigation.

*

I decided that rather than months of arguing and stress to retain those two letters JP and my right to freedom of expression  I resigned from the supplemental list thus ending the inquiry.  But going back to the second sentence of this post I am still a retired magistrate and I suppose that my signature to sign a passport application on that basis will not lead to a death by a thousand cuts from the London Advisory Conduct Committee or its standard bearer Mrs Featherstonhaugh. 

MAGISTRATES COURTS MUST BECOME MORE INQUISITORIAL

There is no doubt that many previously ignored facets of life in the European Union previously taken for granted are now being compared to life in a supposedly independent UK. Extremists on both sides of the Brexit argument are still raising their voices metaphorically and in real time to offer their opinions many of which are bereft of sensible argument but complete with invective and ever more strident haranguing of the perceived opposition. One aspect central to our collective lives continues to underperform using Covid 19 as a convenient excuse; our criminal justice system. In the week ending 20 September 2020, there were 509,347 cases outstanding in the magistrates' courts   and  at the end of Q3 2020 there were 50,918 outstanding cases at the Crown Court, an increase of 44% on Q3 2019 (35,478 cases). This is the highest level of outstanding cases seen since the end of 2015 and continues the consistent increases seen since Q1 2019.  I have yet to read anywhere of any significant member of the legal profession daring to suggest that judicial systems in continental Europe might offer increased efficiency compared to the concept of common law underlying English law. Perhaps there really is a belief that English is best;  I don`t know but what I do know after watching again many series of the wonderful French series "Spiral" is that the case for magistrates in England taking on a more inquisitorial role is in my humble opinion one that cannot be merely dismissed as unEnglish. 

In France and other jurisdictions where the justice system is inquisitorial as opposed to the adversarial system in the U.K. there is an office of investigating magistrate. And as it says on the tin that person takes an active role in the investigation and court proceedings. Judges and J.P.s take an impartial role in the presentation of a criminal case and its defence. There are, however, occasions in a magistrates` court where intervention is not just allowed but necessary in the interests of justice. Frequent examples which come to mind are where a witness is being badgered by a lawyer prosecuting or defending or where the lawyer is insensitive to a witness`s ability to comprehend a convoluted question whether that lawyer`s insensitivity is by accident or design. The cause for intervention in such cases is relatively simple to make. But matters are never always so straight forward.

Many non Crown Prosecution Service offenders are brought to a magistrates` court. Examples are RSPCA, TV licensing, transport companies [fare dodgers], trading standards [fly tipping, health and safety etc ] , local authorities [council tax defaulters] etc etc

I can recollect a case some years ago when I was sitting on one such prosecution. The prosecutor in her opening told us that her only witness, the investigating official, would read his five page statement and she would be relying on a bundle of over 200 pages as her evidence. We duly heard the official and a brief glance at the bundle showed that in addition to the official`s statement it was divided into three complainants` statements, the defendant’s interview, documents directly connecting the offender with the alleged offences and his various bank accounts over the specified period. Defence council had little upon which he could defend his client during cross examination of the official. His client who was not the sharpest knife in the drawer duly did his best under cross examination which was not approaching a Perry Mason standard. We retired to read the bundle telling those involved that we might have some questions for the defendant.

Much of the material in the bundle was totally unhelpful and unnecessary. We had to hunt for the pearls that the prosecutor had told us would be the basis for her case. We duly did find documents which appeared to link the defendant with the offence. Our concern was that they although they had been exhibited neither lawyer had pin pointed them. We decided that in the interests of justice we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail overruling objections from his counsel. He was found guilty. At the post court review our legal adviser anticipating the tone of the discussion assured us that our inquisitorial approach was, in this particular case, perfectly lawful. He agreed that the prosecutor was failing in her duty when she attempted to rely on a huge bundle without further probing. He added that he would have intervened if we had been overstepping the mark.

With ever increasing numbers of defendants denied legal aid and without the means to employ representation it is my belief that magistrates and District Judges must be allowed discretion to undertake an inquisitorial  role to ensure that a defendant is assured of justice not being denied owing to their  inability or lack of confidence in presenting their opinion in the witness box.  There will be many who will vociferously protest that the level playing field and equality of arms argument must not be questioned but those very terms are now nothing but fond memories. Indeed they are a misrepresentation of the current state of activity in the magistrates courts system. They are an anachronism. Even before my last court sitting almost six years ago it was apparent that many defendants were considering guilty pleas simply because of convenience in getting the matter over with. Pressures for such equivocal pleas have increased greatly since then although I know of no research to prove my point. A most enlightening article on the consideration of early guilty pleas and ancillary information The Supervision of Guilty Pleas by the Court of Appeal of England and Wales – Workable Relationships and Tragic Choices is available here. 

Chairmanship of a magistrates` bench is an art not a science although the drafters of the so called competences required and the resultant appraisals techniques would seem to argue otherwise. J.P.s` awareness of when sensitive questioning of a witness is useful is not in the instruction manual but it is in the interests of justice especially in this era of unrepresented defendants.  The adversarial system can only offer confidence in the concept of justice for all being done and being seen to be done when there is a true equality of arms.  When boxing enthusiasts attend a fight they do not expect a flyweight to be matched with a middleweight.  In the magistrates court where the stakes are sometimes life changing such mismatches are an every day occurrence.  There must be change.   

CHIEFS AND INDIANS: TOO MANY OR TOO FEW?

I was never a management consultant or worked in HR but I was an employer who had at his maximum ten employees for whom I had to provide a safe, secure well organised working environment. Like any employer it was my responsibility to organise these people so that they and the  business put their best endeavours forward for all to prosper.  That included recognising and maximising the best abilities of each person.  Even in such a small workforce the recognition in title and remuneration of outstanding talent was essential. In large national organisations huge departments of specialists are employed to do much the same and none more so than in police forces. To that end the 2020 ratio of serving officers was as below:-

5.39 constables/sergeant

3.33 sergeants/inspector

3.26 inspectors/chief inspector

1.85 chief inspectors/superintendent

2.97 superintendents/chief superintendent

1.36 chief superintendents/chief officer 

These ratios are based on the chart below.

 

Whether or not these numbers are as efficient for purpose as they could or should be is beyond my comprehension but they are fact. In 2013 the figures were as below:-

4.86 constables/sergeant

3.26 sergeants/inspector

3.49 inspectors/chief inspector

2.2 chief inspectors/superintendent

2.24 superintendents/chief superintendent

1.82 chief superintendents/ACPO rank

For previous posts on this topic type "statistics police ranks" in the search box.

IS 99% CONVICTION RATE EVER JUSTIFIED?

It is not uncommon when reading legal reports from China that their conviction rate is around 99%. Most observers will remark that such a conviction rate reeks of a totalitarian system of government where the courts and the legal system are but servants of said government and that as a system of so called justice it fails miserably to reach even the lowest benchmarks regarded as indicative of a system which is free and open for all regardless of rank or position. In other words in plain English defendants are more or less rubber stamped as guilty even in the rare circumstances where they can offer a defence in the real meaning of that word as it applies we hope in this country. At the other end of the outcome scale there is a an apparent never ending complaint in this country that cases of rape are inefficiently investigated by police, undercharged by CPS and too often conclude with findings of not guilty. The question for all involved within the legal system is quite simply what is the "correct" rate of conviction: a rate which reflects the definition we place on guilt having been established beyond reasonable doubt.

There are lawyers who argue that magistrates courts should be presided over only by District Judges (MC) on the basis presumably that their clients would receive a fairer hearing and be less likely to be convicted than by a bench of three magistrates. As an aside those self same lawyers would be aghast if a single crown court judge replaced the jury system of twelve. There are, however, some statistics which make interesting reading regarding summary motoring offences where almost everyone has a vested interest in avoiding conviction and which are generally decided by a magistrates bench. In the 12 months ending June 2020 480,203 defendants were tried against of whom 474,039 were convicted; a rate of 98.7%. A complete extract from the appropriate statistics table is copied above.

An interesting comparison can be made with figures newly released on single justice procedures with speeding charges based upon detection by camera devices for the nine months ended September 2020 during which 68,905 were progressed resulting in 43% pleading guilty. Not guilty pleas were about 1%. Presumably the  remainder chose not to attend although the figures do not make it clear if non attendees were included in the 43% nor the numbers sent for trial of the 1%. My personal assumption is that the outstanding 56% were found guilty by the single justice based upon paper evidence which was unopposed.  

The only conclusion seems to be that a conviction rate of around 99% can be justified as a true reflection of a fair justice system but only in very precise circumstances.  To use a conviction rate alone to further a legal argument without other considerations is unjustified (pun intended). 

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.