ARE MAGISTRATES BEING SELECTED BY ETHNIC QUOTA?

Magistrates courts have been around for well over 600 years. Until 2010 one might have used the term ubiquitous when describing their locations. There were around 330 in England and Wales serving the needs of a population both town and country.  And then came Kenneth Clarke as Lord Chancellor of a newly elected Tory government obsessed with the ramifications of the financial crisis.  In that first year Clarke was proud to be the first cabinet member to announce his department`s contribution to the looming deficit; 23.8% was cut from the following year`s budget of the Ministry of Justice. With like minded thinking at the Home Office the whole paraphernalia of all that contributed to the law making and its enforcement in a civilised country was hacked to pieces over the following decade.  The numbers of police and support workers were pared back  to the extent that none ever appeared except when driving past blue lighted.  Prison officers were decimated with many prisons thrown to outsourcers eg Serco and others who cut so many corners with them and their sub contractors trying to force profits from an ever shrinking capital base.  Probation services and others were catastrophically re-organised in 2015 by undoubtedly the worst most reckless and ignorant Secretary of Justice in memory only to be reconstituted by the same Tory government years later. And so to our courts system.   In the year ending March 2019, 5.3 million crimes were recorded by police in England and Wales compared with 3.9 million in 2011/12. The figures are not directly comparable over time as recording practices change although there has evidently been a rise in recorded crime. Over the same period, the number of prosecutions brought by the Crown Prosecution Service (CPS) fell by 46%.In 2019/20 the total MoJ budget was around 25% lower than in 2010/11.In 2018/19 there were 5,684 full-time equivalent CPS staff in post compared with 8,094 in 2010/11.Between 2010/11 and 2018/19 criminal legal aid expenditure fell by over a third (35%).   As of April 2010 there were 29,270 magistrates, 143 district judges and 151 deputy district judges operating in the roughly 330 magistrates’ courts throughout England & Wales.There are currently 150 magistrates courts served by 12,333 magistrates and 124 District Judges (MC). The loss of magistrates is due to retirement.  Their age profiles were always well known at the MoJ. The effect of their loss was predictable but government assumed an "all would be right on the night" philosophy with the result that over the last year or so coincident with the Covid pandemic which was a fine alibi for mismanagement the MoJ has been frantic in trying to recruit new bodies to warm the benches of our remaining magistrates courts. Almost every county `s local print media has been bombarding  its readers with pleas to apply for appointment to their local bench. Social media companies have also received their fair share of similar advertising revenue. Common aspect of such advertising is that anyone can apply and particular attention will be given to those of an ethnic minority. The committees overseeing applicants operate in secret.  The basic criteria are available here.  The application form is available at the end of this post. Latest judicial diversity statistics are available below. Unfortunately to publish this whole section magnification could not be larger.  Readers might want to use tool available on their own Windows or Mac system. 

 

With a national BAME figure of 13% of the population the figures above do not seem incompatible.  However there is pressure from assorted sources that composition of the bench must reflect local areas` ethnicity head count.  There are some who would argue that that requirement is, to coin a phrase, ill judged. I do not intend to discuss that in this post.  What I will posit is my opposition to appointment by quota.  We have seen recently the furore over the "taking of the knee" and in particular the accusations that those who oppose this act are by their very opinion; racist. In their eyes I too therefore am branded by this abuse owing to my opposition to such a political act by professional sportsmen (and women). Many will be unaware that at the 1936 Olympic Games in Berlin in front of hitler the English football team made the nazi "heil" salute.  There was much opposition at home. 

Despite denials by the Ministry of Justice there is no certainty that magisterial appointments are made without an eye on the diversity statistics. As citizens we should be entitled to know if those who sit upon us in judgement are indeed chosen strictly on merit or not.  This would be beneficial most of all to any member of an ethnic minority applying for position.  To be appointed with the purpose of maintaining or fulfilling a quota and  not necessarily on individual worth would be as insulting to those BAME magistrates as it would be for any of us in such a position.  The MoJ must declare its policy.  

 

 

 

 

 

 

 

 

 

 

 

                   

This document is produced and maintained by:

Magistrates HR

Judicial Office

10^th Floor, Thomas More Building

Royal Courts of Justice

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London

WC2A 2LL

PRE-APPLICATION CHECKLIST Please read ‘Becoming a Magistrate in England and Wales – Candidate Information in full before starting your application.

You must complete the following checklist before submitting your application.  If you do not complete the checklist, your application is liable to be rejected. 

I have read the Candidate Guidance in full.
I have checked to ensure that recruitment is taking place in my area.
I am not in the process of seeking asylum or applying for indefinite leave
I understand that applicants are expected to be living or working in, or reasonably close to, the area in which they wish to serve.
I understand that, if called for interview, I will be required to demonstrate that I have a good knowledge and understanding of social issues in the area I wish to serve.
I understand that magistrates are required to sit for at least 13 full days per year (or 26 half days).  I also understand that I will be required to attend training and occasional meetings after court.  I confirm that I am able to meet this commitment.
I am in employment and have obtained my employer’s agreement to take the necessary time off work if I am appointed.  (Leave blank if not in employment and see below)
I am not in employment.
I have undertaken at least two visits to a magistrates’ court in the twelve months prior to making my application.
The people I intend to nominate as referees have agreed to provide a reference and I understand that if references are not provided by the required date my application will be rejected.

 

 

PRELIMINARY INFORMATION

 

Applicants are expected to be living or working in, or reasonably close to, the area in which they wish to serve. 

 

Please state the name of the advisory committee whose recruitment exercise you are applying for:

Advisory Committee

 

If you have a preference to sit at a particular court (or courts) within the area you are applying to, indicate them below.  Please note that we cannot guarantee to meet your preference(s):

Preferred court(s)

 

How did you initially become aware of the role you are applying for?

 

 

What additional material have you seen that has increased your knowledge of the role? This might be advertisements, pages on the internet etc.

 

Only answer the next question if you are applying for vacancies in Wales.

 

Refer to page 14 of the Guidance for Prospective Applicants.

 

If the area to which you are applying has vacancies for bilingual magistrates, please indicate below if you would like to be considered for those vacancies:

Yes

No

 

All applicants must have visited a magistrates’ court to observe the proceedings, at least twice  before submitting an application.

 

 

Name of magistrates’ court		Date	D       M      Year
Name of magistrates’ court		Date	D       M      Year
Name of magistrates’ court		Date	D       M      Year

 

 

 

 

 

 

 

 

We need to know if you have previously applied to become a magistrate, including any separate applications to sit in the family courts.

 

Have you previously applied to become a magistrate?

Yes

No

 

Have you made an application to sit in the family court?

Yes

No

 

 

 

If you answered yes, please give details of when you made your application, to which advisory committee, and the outcome (if known) of your application.

 

The Magistrates’ Association represents approximately 80% of magistrates in England and Wales. Information about the Magistrates’ Association is available at:  www.magistrates-association.org.uk/

 

If you are appointed, may we pass your details (name, address, date of birth and local justice area) to the Magistrates’ Association, so that they can contact you about the Association?

Yes

No

 

Your details will not be disclosed without your permission and will not be passed to any other organisation.

PERSONAL INFORMATION - This information will be removed prior to applications being assessed

 

                           

Title	Mr	Miss	Ms	Mrs	Dr
	Other (please state)
Surname
Forename(s)
Previous surname (if any)
Date of birth	D       M      Year
Home address (including post code)
Telephone	Home        Work         Mobile
Contact email
Nationality
Country of birth
How many years have you lived in the local area?

 

 

 

 

 

 

 

 

 

EMPLOYMENT HISTORY

 

Certain occupations (including past occupations) may affect your eligibility to serve as a magistrate. 

 

Refer to Appendix C of the Candidate Information. 

 

Please provide full information about your employment status and history:

Employment status	Employed		Self-employed		Retired		Not in paid employment
	Other (please state)
Current occupation (if applicable). Please include job title
Name and address of current employer
Brief description of work
Time with employer
Is the role?	Full Time	Part Time    Hours per week				Fixed Term (end date) D       M      Year

 

Please confirm that you have discussed your intention to apply to become a magistrate with your employer and have their agreement to take the necessary time off work if you are appointed.

 

Please give details of any other occupations in which you have been employed in the last ten years, starting with the most recent:

Occupation	Employer	From	To

 

In limited cases, the occupation of a spouse, partner or close relative may affect your eligibility.

Refer to Candidate Information for further information.

Is your spouse/partner in any form of employment?

Yes (Please state their occupation)
No		Not applicable

Has your spouse, partner or a close relative worked as any of the following - Police Officer, Special Constable, Police Community Support Officer, civilian employee of a police force, Traffic Warden, Crown Prosecution Service or Prison Service employee, or in any other occupation whose work involves attending court?

Yes (see below)

No

Not applicable

 

If you answered yes above, please describe the person’s (or persons’) relationship to you, their occupation, where it is (or was) carried out, and their approximate dates of employment:

  

 

 

 

1.   REFERENCES

 

All applicants must provide the names of three people who have agreed to act as referees.  Please complete Appendix B.

Refer to Candidate Information.

 

 

 

 

 

 

2.   REASONS FOR APPLYING TO BECOME A MAGISTRATE AND PERSONAL QUALITIES

 

Please explain what has motivated you to apply to become a magistrate (maximum 300 words)

 

The six key qualities required of all magistrates are: Good Character; Understanding and Communication; Social Awareness; Maturity and Sound Temperament; Sound Judgement; Commitment and Reliability.

 

Refer to Candidate Information for further information.

 

 

Please provide some examples of how you believe you meet each of the six key qualities.  Please give your most relevant examples.  These could be from past or present employment, from voluntary, community or leisure activities or from other areas of your life 

 

Each key quality example should be a maximum of 300 words.   

 

Good Character (maximum 300 words)

 

Understanding and communication (maximum 300 words)

  

 

Social Awareness (maximum 300 words)

  

     

Maturity and Sound temperament (maximum 300 words)

  

 

Sound Judgement (maximum 300 words)

  

 

Commitment and Reliability (maximum 300 words)

  

 

 

Voluntary work can sometimes provide an eligibility conflict.  Please provide a brief description of any voluntary work you are currently doing or have done in the past:

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONVICTIONS, CAUTIONS AND CIVIL ORDERS

 

Please read the Candidate Information carefully before completing this section.

 

Are you involved in any of the proceedings referred to at Appendix B, Section 1 - ‘Involvement in Current Proceedings’ of the Candidate Information?

 

Yes

No

 

If you answered yes, please provide details below:

  

 

Have you ever been convicted of a criminal offence? (Do not include fixed penalty notices for motoring offences.)

Yes

No

 

If you answered yes, please provide details below. You must disclose all previous convictions irrespective of when they were received.

Offence	Date of Conviction	Name of Court	Sentence or Penalty

 

Have you ever received a Police Caution?

Yes

No

 

If you answered yes, please provide details below. You must disclose all cautions irrespective of when they were received.

Offence	Date of Caution	Conditions Attached to the Caution (if applicable)

 

Have you received any Fixed Penalty Notices (FPN), including for a driving offence, within the last 4 years?

Yes

No

 

If you answered yes, please provide details below:

  

Offence	Date of FPN	Amount of Fine

 

Have you regained your driving licence within the last 4 years following disqualification from driving?

 

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of Disqualification	Date on which licence regained

 

Do you currently have penalty points endorsed on your driving licence (this includes points endorsed as a result of receiving a Fixed Penalty Notice)?

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of Endorsement	Number of Penalty Points

 

Have you received a Penalty Notice for Disorder (PND) within the last 4 years?

Yes

No

 

If you answered yes, please provide details below:

Offence	Date of PND	Amount of Fine

 

Are you subject to any of the civil orders (or an Individual Voluntary Arrangement) which qualify for disclosure under Appendix B, Section 6- ‘Bankruptcy, Individual Voluntary Arrangements and County Court Judgements’?

Yes

No

If you answered yes, please provide details below:

  

 

To the best of your knowledge, has a spouse, partner, close relative or close friend received convictions or cautions which would qualify for disclosure under Appendix D, Section 7 - ‘Spouses, Partners, Close Relatives and Close Friends’?

Yes

No

If you answered yes, please provide details below:

  

 

Excluding any information already provided above, is there anything else in your private or working life, past or present, which could damage your credibility as a magistrate if it became known to the public?

Yes

No

If you answered yes, please provide details below:

  

 

 

DECLARATION

 

The information that I have given in this application is true and complete to the best of my knowledge and belief. I understand that my application is liable to be rejected if I knowingly fail to disclose relevant information. 

(Please sign electronically or by hand).

 

   

Signed:

Date:

 

EXTINCTION REBELLION: ANARCHY FOR THE 21st CENTURY

 

ANARCHY:- 

a state of disorder due to absence or non-recognition of authority or other controlling systems

absence of government and absolute freedom of the individual, regarded as a political ideal

a society being freely constituted without authorities or a governing body. It may also refer to a society or group of people that entirely rejects a set hierarchy. The word Anarchy was first used in English in 1539, meaning "an absence of government".

There is no doubt that the above concept is widely known to most in theory if not in practice.  Where its ideals have been translated into action the results have gone from causing inconvenience to revolution with the murderous results that those activities inevitably cause. 

Extinction Rebellion is just the latest form of direct action by those who believe that they have a god given right to disrupt society in which way they think better furthers their cause. It could be termed in general anarchy 21st century style.  Perhaps older readers will remember the words Greenham Common and what took place there as an example. The case of Imogen May is an example of what in practice is truly anarchy for the 21st century.  Another example which many magistrates have probably experienced is the prosecution of the same offence, non payment of Council Tax, of those who call themselves Freemen on the land.  

From Wikipedia, the free encyclopedia

The freeman-on-the-land (FOTL[2]) movement, also known as the freemen-of-the-land, the freemen movement, or simply freemen, is a loose group of individuals who believe that they are bound by statute laws only if they consent to those laws. They believe that they can therefore declare themselves independent of the government and the rule of law, holding that the only "true" law is their own interpretation of "common law".[3] 

These deluded defendants I suppose compare themselves to historical figures  like Joan of Arc or Wat Tyler a leader of the Peasants` Revolt of 1381 who was killed before the uprising was crushed. They do not have an occupying army to oppose or a sovereign who sanctioned virtually  a slave`s existence for the population under his feudal system.  They see themselves as martyrs to the cause.

Anarchy has always posed a problem for a benign legal system in a democratic society. It is a binary choice between a carrot or a stick; adopting the former to reduce tensions or wielding the power of the state to punish. But we have a government that doesn`t know what its policies are between Monday and Tuesday and whose ministers and spokespersons try to be all things to all people. And so the courts must do their best under the law sometimes risking opprobrium from those who ought to know better.   Perhaps it`s all summed up by the old adage attributed to Abraham Lincoln; "You can fool some of the people all of the time or all of the people some of the time but you can`t fool all of the people all of the time."  For Boris Johnson et al it`s just a matter of time. 

SCANDAL OF SINGLE JUSTICE PROCEDURE IS A BLOT ON THE LEGAL LANDSCAPE

There are few if any independent observers who would not agree that the once highly valued English justice system has been brought into disrepute; in my humble opinion of course. The financial crash of 2008/9 not only brought down institutions it systematically led to a situation where the very consideration that justice was a service to the community in its widest sense was abandoned.  In its place the costs of providing that service became the criteria by which the quality and quantity of that service were evaluated.  The rule of law and principles such as equality, accountability and non-arbitrariness were no longer to stand alone as enabling justice to be upheld as a pillar of a just and democratic society. The old adage that justice should be seen to be done seems but a historical footnote. 

While Civil Rights has been a catch all phrase from all parties to debates on justice, it remains the practical experience of a right that defines its existence and conformity with the ideals of a just society but Rights must be effective, not illusory.  Just this week we have a government which is progressing through Parliament   The Police, Crime, Sentencing and Courts Bill. Of particular concern to many are the increased powers for police to respond to non-violent protests which would expand the circumstances in which police can impose conditions on protests, remove the need to knowingly breach conditions in order to commit an offence and introduce a broad statutory offence of public nuisance with a maximum sentence of 10 years in prison. Against a background of this government`s tendency to take an authoritarian point of view in situations others would have temporised is another change in legal process which has been imposed upon the justice system by diktat; the single justice procedure. 

It is no secret that there two widely held held opinions on the function of the long held positions of lay magistrates` participation in the justice system; many practising lawyers would like that system abolished and for District Judges alone to be in practice judge, jury and sentencer. On costs alone that has been rejected but in principle the second supposedly widely held opinion of governments per se  is that the lay magistracy is the backbone of our courts system  and will continue. Five years ago a major change took place in the manner in which minor non custodial cases were to be handled.  No longer would offences such as non payment of TV licenses or council tax be heard before a bench of three magistrates in open court: instead they would be heard in private by a single JP assisted by a legal advisor. The government public information  publication for the single justice procedure is available here. The historical footnote to which I referred above certainly does not apply with this form of so called justice yet opposition has been muted although the Magistrates Association unusually has in this event offered some criticism.  The number of cases progressed through this procedure is shown below.  It is apparent that the pandemic has reduced the rising trend in those numbers.

Latest statistics are that there are currently 12,333 magistrates serving c150 courts. They must have been successful in their threshold appraisal taken about a year after they have begun sitting.  I am unaware whether undertaking the SJP is a compulsory or voluntary requirement of a magistrate. I retired immediately prior to its introduction and certainly have been opposed to it from the beginning. A major criticism in addition to its being conducted behind closed doors is the behaviour of those presented with a summons to appear in such a "court".  A cause for concern is the numbers of defendants who do not enter a plea by post.  All not guilty pleas are regarded as going to trial. No figures are available for the results of such trials or whether or not the defendants appear.  It should be noted that interrogating Covid-19 offences in 2020 88.52% failed to enter a plea.  As with other "no plea entered" they would have been found guilty. A complete record is below.

To put the above in arithmetical perspective:-

2015    2.38% guilty plea    74.52% no plea entered

2016    3.1%                        71.61%

2017    3.46%                      72.21%

2018    3.45%                      72.26%

2019    2.95%                      71.64%

2020    2.17%                      70.65%

2020

Covid-19 offences    0.57% guilty plea    88.52% no plea entered

The figures for those choosing to put their summons behind the clock on the mantelpiece or with the unpaid bills in a drawer are alarming.  The chances of their appealing the decision or subsequent fine are unlikely owing to a variety of circumstances. Indeed the first time such a matter will have been brought home to them  is liable to be a debt collectors` claim or a foot in the door.  It is inconceivable that those who pushed through this so called procedure did not have advice that the tables above have shown; namely secret justice on the nod will not just garner little respect it will be ignored by those it was designed to ensnare. 

It is nothing short of scandalous that magistrates, the Magistrates Association, notwithstanding belated reservations, and the so called unelected  toads known as leadership magistrates ( use search box for details) have acquiesced in this process.   What we today consider fundamental pillars of justice cannot be taken for granted and must instead be subjected to a continuous process of revitalisation, dialogue, and improvement. Only when this apology for justice is removed from our courts will be re-assured that this government is at least attempting to row back from its apparent proto authoritarian behaviour. 

ADDENDUM 13th July 2021

Further statistics on SJP are available in table below

https://www.theyworkforyou.com/wrans/?id=2021-07-06.28183.h&s=%22magistrates%22#g28183.r0

A NIGHT WATCHMAN?

For those who enjoy the statistics that emanate from the Ministry of Justice I have accessed here current information of the numbers of people employed by HM Courts and Tribunal Service. There are a few closed locations still employing a single individual; perhaps a night watchman if such still exist.   

FOR EVERY PLAN THERE`S SOMETHING TO GO WRONG

This post is short and as sweet as your taste buds allow. Please click here for government`s plan for magistrates courts. 

THE COVID EFFECT ON JURIES, DISTRICT JUDGES AND MAGISTRATES COURTS

I suppose it could be said that a jury system of sorts in England began during the final year of the reign of Henry II in 1189.  A very interesting history of the jury as a legal instrument in England can be accessed here. In Scotland a jury consists of 15 members, believed to be the largest in the world. The system there of three available verdicts is also unique. Apart from the period of World War 2, an English jury of 12 is the norm and until 1967 a unanimous verdict was required.  That was changed when majority verdicts were first introduced by Section 13 Criminal Justice Act of that year. Covid-19 has changed government thinking on the jury per se as it has changed thinking on many aspects of our lives and customs. The pandemic descended upon us when half the country`s Magistrates Courts have been closed since 2010 as part of a 23% cut in funding.  

In the Crown Court there is a backlog of 40,000  trials owing, in addition to restrictions around Covid,  to the government`s refusal to pay for judges to work what can be described as a normal working week. In other words the current scandal of those awaiting trial notwithstanding a backlog of 400,000 cases in the lower court is partly self inflicted. As a result various "temporary" changes to the jury system have been mooted.  In recent days the Lord Chief Justice no less has suggested that juries could be reduced to speed up the trial process.  Whether he meant that smaller juries would require smaller Covid secure rooms in which to deliberate or smaller juries would deliberate more speedily is unknown.  Perhaps he had both outcomes in mind. What is not in doubt is that 1,600 defendants have been remanded in custody for over a year well in excess of the legal custody time limit of six months. However not only are defendants not facing due process within a reasonable time; witnesses and complainants who might be traumatised by their involvement in the alleged events will have to relive their experiences perhaps two years subsequently when their memories are less than clear and their mental health still less than perfect.

Other suggestions to ease the backlog have been suggested. Currently appeals against verdict or sentence at magistrates courts are resolved at the crown court with a judge presiding and two magistrates assisting. That bench construct could be applied at crown court for defendants who have chosen crown court jury trial for an either way offence instead of a summary trial at the magistrates court. The numbers of those electing crown court trial on an either way offence do not appear to be listed on any government statistics.  In addition it is an anomaly in England unlike the rules in Scotland that a defendant on an either way charge can actually choose where to be tried. It is an anomaly that should be abolished even although there would be an anguished outcry from the legal profession perhaps more concerned with reduced fees than lack of choice for their clients.  However many lawyers would be pleased if the numbers of District Judges (MC) were increased from the current 124 and they were to preside over all trials with or without assisting magistrates. 

Notwithstanding all the above there is no doubt that flaws in the justice system overlooked for a decade are coming to the fore. Ancillary services especially policing and immigration control are also being questioned. There are no easy answers to difficult questions but my personal fear is that populism of either or both Left and Right will make increasing inroads into our less than perfect democratic system of governance suggesting that there are indeed simple answers just awaiting application. With our current prime minister and his team of toadies perhaps we are closer to that situation than we would like to believe.  

THE PRICE OF JUSTICE

There cannot be many people with even the slightest interest in our justice system who are unaware that since 2010 the Conservative governments have closed  half the country`s magistrates courts leaving around 150 to serve the needs of about 60 million people. Despite guarantees to anyone interested that the travelling time for many who must attend these courts either as workers or witnesses by public transport would not exceed one hour  the result is that often up to double that time is required.  All this happened because successive governments have lost sight of what courts are for. For centuries they had been a public service whether for medieval land owners and nobles or for the king`s law to be available for all citizens. An interesting brief history is available here.   However subsequent to the financial crisis of 2008 it was decided by the high and mighty who rule over us that such a concept was no longer tenable and courts had to demonstrate their "worth" in £ to the communities they served.  And so the great sell off began. 

There is little doubt that some of the properties many of which occupied prime town centre sites were sold at below market value.  The whole system has been shrouded in a limited availability of facts apart from courts` dates of closure and final selling prices.  Much of the transfer of these courts has been done with a newly formed government agency known as Homes England.  An inquisitive individual associated with the business of property development has sourced an interesting account of how to some extent this agency operates. The document (5 pages) at the end of my post details the acquisition of Stafford Magistrates Court which closed 28/4/2017 and was sold for £435K  7/9/2017.  It is currently being developed as a car park.  

Worksop Magistrates Court was closed 31/3/2016 and sold for £115K 31/10/2016.  That site is currently being redeveloped into 13 flats in an area where the average price for such properties is £103K. It is unlikely that these two developments as well as the hundred plus others similar will have made anything but tidy profits for the professionals involved.  In both  these examples about six months transpired from closure to sale.  Knowing what  problems and unexpected issues arise with any property sales especially commercial property sales involving change of use and planning permission some might posit that discussions with interested parties had been taking place prior to closure of these courts. 

It is beyond any shadow of doubt (to coin a phrase) that this government has put a price on justice. Whilst the NHS is treated totem like as a national treasure justice is becoming a rich person`s vehicle whether in the civil or criminal court. This is shameful. With mounting public borrowing it is unlikely that this or any future chancellor of the exchequer will sanction the real required financial funding for the justice system as a whole or the courts in particular. In practical terms there are and will be more innocent people being found guilty and to a lesser degree more guilty miscreants walking the streets as usual. 

DOCUMENTS

DANCE TO THE TUNE OF EXCEPTIONAL HARDSHIP

It is the British prime minister Benjamin Disraeli who is famously credited with the phrase: "There are three kinds of lies: lies, damned lies and statistics" but the expression has been around almost as long as the word statistics (first coined in 1749 for those wondering). I stumbled recently upon statistics I had never previously considered; the numbers of drivers who escaped disqualification with the totting procedure, having successfully argued "exceptional hardship".  At this point I must make my own position clear when I chaired such a hearing; I was considered "hard" by some of my colleagues but fair by most. I can even recollect a case where the legal advisor who approached us as we were about to return to court with our decision to reject the argument (against her unasked for advisory opinion) making a final effort to allow the argument. Such cases are rare insofar as the bench must argue from its own principles, experience and common sense unfettered by pages of sentencing guidelines. However there is pressure to remove this remaining discretion and substitute the tick box sentencing procedure common to virtually all criminal sentencing. However to return to the statistics; In the decade 1/1/2010 to 31/12/2020 83,581 cases of exceptional hardship were granted to drivers who exceeded their 12 penalty point allowance over three years. In 2010 there were 330 magistrates courts.  There are now about 150.  Assuming a decline over the decade the 8,358 cases annually in those courts equate to 35 per court per year. No wonder magistrates without much time on the bench are taken for suckers by smart talking lawyers. They might sit for years and not hear a single case. But is this then a reason to further reduce what little discretion is left for a bench?  My answer put simply is "no".  Perhaps some training and or distant learning would not go amiss or by entering exceptional hardship in the search box  my own opinions over many years on this site might be of assistance. But to further circumscribe magistrates` options is a further sign if one were needed that for all its verbal support this government like its predecessors over the decade would not be unhappy if District Judges were in total command of the magistrates courts system. After all they, being pension awarded public servants, usually dance to the government tune.  

POLICING AND JUSTICE UK STYLE 2021

Salami slicing is a well trodden phrase used originally to describe the subtle reduction by the very thin slicing  of a piece of  sausage or a large piece of meat.  Of course now that phrase can be applied to many areas of our lives but in the context of government policies it means the subtle reductions in financial support to a public policy.  Nowhere is this more obvious than it  is to our justice system in its widest context. From Kenneth Clarke at the Ministry of Justice in 2010 when he proudly announced that he was the first cabinet minister to announce his department`s budget reduction of 23% until the present time when a compulsive lying prime minister has proudly announced the recruitment of 20,000 police officers which was exactly the number his predecessors over the last decade had sacked, our system of justice has been reduced from a beacon to the wider world to a system not fit for purpose.  Nowhere is this hiring and firing been more apparent than in the policy or non policy of stop and search which has become a totem of those who accuse the Metropolitan Police of racism.  There is no doubt that the Met itself has been under fire for its apparent failure to weed out and actually punish officers for gross misconduct often during stop and search actions. Indeed only six officers have been disciplined since 2014 out of over 5,000 complaints.  But that does nothing to disguise the fact that young black males are the main victims of black perpetrators.  A government with confidence in its own policies would provide not just funds to operate an efficient policing system but would also argue that the facts on knife crime require more than rhetoric which is a recurring feature of every Justice Secretary in living memory. A Freedom of Information answer from Scotland Yard might be of interest. 

There is no doubt that notwithstanding superficial improvements there is systemic failure within the police to investigate and punish their own officers.  That corruption is endemic from top to bottom  has been made front page news today 15th June on the murder of Daniel Morgan.  There is no doubt that the Met needs systemic investigation and also that the Augean Stables of the Home Office including its current boss need a thorough clean out.  Huffing and puffing by the current Home Secretary has to be met by truth, truth more truth and nothing but the truth. At a lower level amongst the hundreds of cases involving serving police officers is that of ex PC Oliver Banfield.  His unlawful actions have been repeated countless times with little punishment for those culpable. 

Sometimes I wonder at the lack of common sense amongst senior police officers.  Such an example is Detective Chief Superintendent Andy Cox the national leader for fatal collision investigations.  He has equated speeding with knife crime. He has said that reckless middle class motorists should not be treated more leniently than youths with weapons. Notwithstanding the fact that badly or recklessly driven vehicles can kill I doubt many drivers start their cars with that possibility at the back of their minds.  For those whose driving is found to be careless or dangerous and/or compounded by alcohol, sanctions have increased in the last decade to punish those responsible. Knife carrying is a statement of intent.  It is both amazing and depressing that such a senior officer can make such a crass remark but what is of more concern is if he can harbour such a public opinion and influence policy what is going on behind the scenes that we might have imposed upon us at some future date.

It is no surprise to all court workers that there is an enormous backlog of cases in our courts.  Obviously the pandemic has exacerbated what was a disgraceful situation where the acronym CJSSS;    Criminal Justice: Simple, Speedy, Summary was introduced in 2007.  In many ways this so called simplification was just a new way of applying rules that were already in place.  The introduction of the controversial Single Justice Procedure in 2015 was also another way to overcome what were considered obstacles to early guilty pleas. There is no doubt that the closing over the last decade of half the country`s magistrates courts has been a major contribution to the current backlog combined with the failure to improve recruitment of new magistrates resulting in an unprecedented advertising blitz to overcome the deficit the result of which has in all probability reduced the intellectual fitness required for decision making.  Currently there are 56,000 cases outstanding in crown court with some timetabled for 2023. 

Amidst all forms of judicial statistics, thinking and programmes there is a complete absence of joined up thinking. Policy therefore seems to belong to those who shout loudest in the required direction of those with the biggest ears.  That is how justice is administered in 21st century England. There is, however, one ray of hope for this writer who has been advocating for a decade that drug users should be put on a medical pathway and not a criminal pathway to rehabilitation and reform.  MP Dr Dan Poulter has lobbied for change. Perhaps he might be pointed to this blog and write workhouse in the search box for my suggestions. 

WHAT NO LEGAL AID REALLY MEANS

More than enough has been written about the scandal of the reducing availability of legal aid.  It`s also a scandal that with all the power they have the legal fraternity has watched over this debacle for over a decade effectively washing their hands while offering platitudes in public. Imagine dear reader that you are faced with a trial at a magistrates court and unable to afford legal representation but the state`s rules insist you cannot be offered legal aid.  At a preliminary hearing this form  (click on first link) will be passed to you by the usher for you to complete. No further comment from me is necessary. 

BELOW THE LEGAL SURFACE

When considering the content of any possible post on this site I assume rightly or wrongly that most readers in addition to an interest in the justice system and all which it encompasses will have at least some knowledge of the law and its application.  I assume also that they will have an interest and at least a layman`s knowledge of statistics insofar as they relate to criminality an example of which would be the offences committed by BAME minorities and their proportion in the population.  However with the limited amount of print media actually producing court reports except in high profile cases from the crown or High Court much criminality or legal opinion goes unreported.  Below I post on some examples of cases which below the legal surface arguably say more about the justice system that much of what is reported from the Old Bailey or the Appeal Court. 

It seems that breast feeding mothers called to jury service can have an exemption for a maximum of twelve months only.  This seems to be an arbitrary time frame considering eg the possibility that after that time the woman might be pregnant again or having physical or mental health problems associated with recent motherhood. The oft stated argument that jurors must represent all factions of the population seems to me an outdated concept for this particular class of juror especially as Her Majesty`s Courts and Tribunal Service has no idea of exactly how a jury works, outside observers being banned from the jury room.  For example if a jury system were to be established from scratch surely it would make sense for there to be an odd number of jurors, currently 12 except in Scotland where there are 15, thus facilitating a first effort decision. In such a scenario would it not be sensible for lesser offences to be tried by a smaller jury eg 7 retaining 11 or 13 for murder, armed robbery etc. In the light of Brexit why are non British citizens still eligible for jury duty?  There are many more questions and studies awaiting answers but until the feeble minds at the MOJ reflect reality and practicality by allowing the appropriately qualified personnel to study and report on juries in action we will never know. 

Like magistrates police officers must be apolitical in their application of the law and when performing their duties in general.  What they say and/or do in the privacy of their own four walls remains although in Scotland with new legislation that is questionable.  However when it comes to alleged misconduct of police officers it seems logic and uniformity of application is sometimes difficult to comprehend. In an unusual case a police officer was not sacked for gross misconduct and her chief constable appealed the decision of the independent tribunal which made that decision. His appeal was dismissed by a judge.  It will be interesting to find out what happens to the officer at a recent march in support of Palestine who vocalised her support for the marchers and their demands. 

Almost without exception every new Justice Secretary vows to undertake action against those who carry knives or sharpened instruments whether or not they are concealed, brandished or used.  Maximum sentences are increased; public statements are made that judges have these increased powers of custody and the MOJ press office churns out the same propaganda it has done for decades. But then the offender appears for sentencing and judges and magistrates spoil the arrangement e.g. at Nottingham Magistrates Court not only was custody suspended but both sentences for carrying a knife were applied concurrently. Unfortunately as is usually the case the report is so short as to make comment mere speculation.  

I retired from the bench five years ago but long before that time I, along with some colleagues, made representation as to why digital methods not excluding text and e mail, could not be used instead of and/or in addition to regular mail when informing all those who had court appointments whether as defendants or witnesses.  With regard to hearings for driving disqualification it seemed a no brainer. This is but a single example of the problem such a simple innovation would help to avoid.   

Courts have historically been built or been converted in town centres for the obvious reason that in previous times up to perhaps 1939 these areas were readily accessible to the majority of people in the area. Not any more they ain`t according to the Tories.  Having secretly decided in 2010 Tory governments have since closed half the country`s magistrates courts working on the basis of their financial worthiness rather than considering the idea of their being a community service. The former court in Stafford is to be a car park.  

Finally there is the sad and sorry case of the disappearance of Madeleine McCann.  As a parent when my son was a toddler or younger and I needed petrol I would carry him into the station when I went to pay; he was never left alone for a a single minute in such or similar circumstances. Unfortunately the McCanns did not apply the same caution that summer evening when they went for dinner in Portugal.  I can only imagine the torture they endure every single day.  However there must come a time when her death is assumed and that it becomes a cold case murder investigation. However it seems that the Metropolitan Police is continuing to pursue the matter with five full time investigating officers. It has been estimated that £12 million has so far been spent on the investigation.  One wonders whether this has been the most suitable allocation for limited resources.  

It seems that unlike the religious devotion to OUR NHS the justice system in all its tarnished glory is considered to be allocated funding where the losses are minimised. So politicians bask in the reflected glory of often foreign billionaires` legal battles in the civil and matrimonial courts whilst the county and magistrates court systems are left to function in a manner which is detrimental to those ordinary people who rely on public funds for justice. 

Readers spotting a case in their local print media which they consider would be of interest to a wider audience are invited to send the link as a comment. 

ADDICTION REHAB AND A FAILED M.O.T.

Yesterday I took my car for its very first MOT.  Three years on from purchase I expected it to sail through the very exacting standards which now apply.  It did.  And the process reminded me of the second car I ever owned; it was 1966 and I presented a recently purchased  rather tatty grey 1960 Vauxhall Victor RWS 192, exactly like the image, to the MOT garage which was almost as run down as the car. To my surprise after the initial inspection the mechanic told me he could not proceed to jack the car up to check the exhaust for robust structure because if he did so the car which was a total rust bucket would almost certainly split down the middle. As a result I sold it for scrap for the then good price of £13. This simple tale is an example of when to cease applying a process when the result is obviously so unobtainable and further efforts would be a waste of time and a danger to all. And so to our government`s policy on illegal drugs. It is the failure in common sight which is conveniently oblivious to those who determine policy. Since this is a blog and not an introduction for a PhD thesis I intend to be brief but for my reader who objects to my point of view perhaps s/he might have a second thought. The principle objection to the decriminalisation of current scheduled narcotics is that it will increase the numbers experimenting with cannabis who will then try cocaine and/or heroin but studies have shown that the majority of people who use marijuana do not go on to use other, "harder" substances.  The other main consideration medically is that although research using longitudinal data from the National Epidemiological Survey on Alcohol and Related Conditions examined associations between marijuana use, mood and anxiety disorders, and substance use disorders after adjusting for various confounding factors, no association between marijuana use and mood and anxiety disorders was found.  However recent research has found that  people who use marijuana and carry a specific variant of the AKT1 gene, which codes for an enzyme that affects dopamine signalling in the striatum, are at increased risk of developing psychosis.  Against the few who are adversely affected the vast majority of smokers bear no harmful consequences except the risk of having a criminal record which can affect their lives in a variety of situations. In 2019/20, there were around 175,000 drug offences recorded by the police in England and Wales. This is 13% higher than 2018/19. Latest statistics indicate that 21% of all crimes were committed by addicts. A couple of years ago The Institute for Social and Economic Research conducted a review of drug-related crime in England and Wales. It made the following findings:

There are a significant number of drug-induced acquisitive (property-related) crimes linked to heroin use...... but there is “no evidence of any drug-induced crime committed by people who use cannabis”.Supplying cannabis “(only) leads to a small volume of crime”.

Each year in the UK drugs cost society £10.7 billion in policing, healthcare and crime, with drug-fuelled theft alone costing £6 billion a year. All magistrates and criminal lawyers are familiar with the pattern of prolific shop lifting to sell goods in order to buy drugs at the street corner. Alcohol is commonly associated with such criminality in addition to cocaine or heroin. It is apparent to all but politicians who appear frozen in time in an alternate universe that current policies are ineffective but they refuse to heed the science unlike currently so we`re told with regard to Covid-19.  Until the decriminalisation or the legal availability of drugs  addicts of hard drugs arrested for law breaking must be diverted at least the first time from a court pathway to a health and rehabilitation pathway under secure lock down conditions medically supervised. Such institutions would be run and managed in a manner not too dissimilar to Broadmoor where a combination of doctors and warders keep offenders under control: the only difference is that there would be no court conviction but perhaps a voluntary agreement by the miscreant to surrender his/her liberty.  This is a radical solution but for parliament continuing to apply a head in the sand approach for fear of upsetting a few objectors is worse than that mechanic who realised in advance that following the recognised process would have wrought damage to personnel in addition to having demolished a vehicle in the most unsuitable circumstances.   

SELECTING MET POLICE COMMISSIONERS

The opportunity to express opinions on matters of significance to legally minded readers is a privilege. On reflection these opinions can be divided into two aspects of our system of justice: the general or macro view and the detailed micro viewpoint illustrated by examples which might or might not be statistically significant for the PhD student of criminology but are illustrative of what I could describe as the common person`s opinion. It is in contact with police that most criminal legal matters begin. When faith in the correct operation of police starts to erode, faith in our society`s ability to function as a cohesive unit also begins to deteriorate. And so to today.

A look at the treetops of the Metropolitan Police and one would expect that an example of probity of the highest order would  exist.  After all, the very highest of government powers through the very highest of the government`s   investigatative organs are employed to ensure that the 16 officers appointed at Chief Constable rank which for the Met includes those of Deputy Assistant Commissioner and above are of exemplary character and ability. At the current time it is public knowledge that the most senior officers to have left prior to their contract end date in recent years is as below: 

Met Police Commissioners are normally appointed for five years under contract. It is well known that there has been pressure on the current Commissioner that she be relieved of her post.  This of course has been denied and the likelihood is that she will see out her contract. The day after Paul Stephenson resigned in 2011 his deputy also resigned. In 2017 the then Deputy Commissioner Sir Craig Mackey was allowed to continue in his post until his contracted retirement in December of that year although he behaved in an apparently  cowardly fashion when a terrorist killed a constable guarding the House of Commons. The case of former Assistant Commissioner Maxine de Brunner is another worrying example of what is going wrong at the country`s biggest police force. Accounts of her behaviour which led to her leaving are available from earlier posts with additional reference here.  Sir Ian Blair resigned his post prematurely owing inter alia to his involvement in the shooting of  Jean Charles de Menezes.  The current Commissioner Cressida Dick was the gold commander in that tragedy. 

A similar history of the premature resignations of Chief and Deputy Chief Constables in county forces would expose the various shortcomings of the selection process. That will be a post for another day.  But not to worry; most retiring Met Commissioners are offered at least a knighthood (damehood) if not a seat in the House of Lords where £300/day for their attendance can top up their generous pensions. 

RESEARCHERS MUST BE ALLOWED INTO THE JURY ROOM

A major "problem" with any justice system is that apart from those who are involved with its functioning and therefore derive their ability to put bread on their family`s table from its continuance, is that the majority of the public who are uninvolved in serious law breaking whether as witness or defendant rarely express any interest in the subject.   Their knowledge of the legal system and its many ramifications in a democratic society are derived from the various media available which now means the sometimes rabid utterings in Twitter or Facebook and the like.  Indeed that is one reason why I have written here not a few times bewailing the lack of old fashioned local newspaper court reporting and the corollary of my wish to see local live TV court reporting. However to return to the reality of today; what some would say is the bedrock of our justice system, the jury, is under severe criticism from both ends of the legal spectrum; judges and victims or their families.  On 27th April I referred to the situation in Northern Ireland where the then current practice as in Great Britain "a jury of one`s peers" could not cope with the incendiary civil disturbances of the Troubles. The problems in England and Wales caused by the current pandemic exacerbated by a decade`s under spending imposed on the Ministry of Justice by successive Tory administrations have led some senior judiciary to contemplate the suspension of jury trials.  Not all lawyers are opposed to the idea or at least are open to a detailed investigation into the possibility of changes to the hallowed jury of 12.   Wikipedia offers a fairly comprehensive but not total understanding of the jury system. The Criminal Justice Act 1967 allowed for the acceptance of majority verdicts. I think it is fair to say that investigations and inquiries into the jury system have been more theoretical and statistical than practical.  No outside observers are allowed into the jury room and jurors are not allowed to comment subsequent to their trial involvement. It would seem that the prime requirement for a juror would be an ability to understand the English language and not just every day language but the more defined language of the legal system and its operatives.  A well recognised authority on this topic and its findings is available here with an emphasis on English language proficiency of those who have immigrated here. It would not seem unreasonable that there should be a check on language ability as a requirement for jury service. It would also seem sensible that a person`s ability to be able to reason and differentiate credibility of evidence of witnesses as essential to wade through the statements given in the witness box where there is always the possibility  of deliberate lying or distortion of the truth.  Finally in this very short opinion piece I would opine that it is inappropriate that a person who is not a British citizen can be selected for jury duty. Surely when we talk of a jury of peers a fellow citizen fits that requirement and a non citizen does not. 

All the above is theory, opinion and history.  The nefarious results of some jury trials are essential reading for most criminal lawyers.  Indeed such an event was the subject of my post 27th April referred to above. However an example of the more serious consequences of a possibility of a jury gone wrong was reported in some detail in long reads today. Of course we will never know why the jury acquitted; speculation is all we have.  However there is one speculation that has probably more credibility than any other: if the case had been heard in Scotland there would have been the possibility of the third verdict, unique in the western world, not proven. There are those south of the border who would be aghast at the very thought of such a decision being available to English juries their argument being that the innocent could be tarred with guilt and the guilty would forever be unable to claim their innocence. Given the case aforementioned above it doesn`t seem unreasonable to state that the true verdict was indeed that the level of proof required for a guilty verdict was lacking and that non proven is a more accurate understanding of what happened in the privacy and secrecy of the jury room.  We will never know. And that is the crux.  The conduct of juries being treated as sacrosanct is no longer tenable.  Selected academic studies must be initiated into this so called bastion of English justice if judge only trials in England are to be a non starter until revolution hits the streets of Westminster. 

THE INCREASING UNPREDICTABILITY OF COURTROOM DECISIONS

Although it might be boring for regular readers to read again of my dismay at the lack of or reduced amount of newsprint analogue or digital  devoted to court reports today`s effort is an attempt to showcase however slightly items that might interest those who are themselves interested in what goes on in our courts. 

As training and common sense (the latter a factor which is frowned upon by the Ministry of Justice owing to the possible discriminatory connotation of the word "common" which might be unequal among some sections of the population) dictate it is at the very least unwise and at the worst most injuducial to criticise in public a fellow member of the bench however junior.  Indeed the chairman of a bench or a District Judge [MC] must not in any public remarks allude to a previous or future court`s decision which was or is likely to have been or to be out of his/her control. It would appear that HH Jason Taylor QC at Swindon Crown Court felt that either those unwritten rules did not apply to him or that the situation was so serious that he had no choice not only to criticise but to heap scorn on a magistrates bench which had taken action at a preceding hearing on the defendant in his honour`s current matter before him.   Magistrates are well aware that  allowing bail with or without conditions is probably the most difficult of all the decisions they must make.  With many amendments over the decades by the MOJ the assumption is that a bench must present cogent reasons why bail should not be granted. Personally I remember my own involvement in granting conditional bail to a defendant charged inter alia with manslaughter.  My colleagues and I were relieved to know he had turned up for his next court hearing without any breaches. It is therefore so unfortunate that we, the public, have no information except the crown court report and no knowledge of what actually transpired earlier. Regular local court TV might have  been helpful; another of my moans and groans. 

The legal goings on in Norther Ireland are literally and paradoxically a law unto themselves. From current cases of alleged murder by army troopers over fifty years ago to abortion rights and more, politics seem far more ingrained in the legal process than in England. Member of the Legislative Assembly as a DUP representative Joanne Bunting was charged last year with four offences resulting from a motoring matter.  Now, over a year later all charges have been dropped. More than meets the eye?  We`ll never know more than this single report I could find. 

If you ever wondered how ongoing unpaid fines of varying amounts from £500 million to well over a  billion pounds at any one time are going to be collected forget it. The system just doesn`t work for so many offenders of supposed limited means. This miscreant at Taunton Magistrates Court was, I presume, kept in the court cells until the end of that day`s business around 5.00pm as punishment after his fines were remitted. Short changed just doesn`t do justice to a broken system. 

With a backlog of over 50,000 cases at crown court and around 400,000 at magistrates court there are sure to be many incidents of disappearing or overlooked disclosure, rushed decision making, justified investigation into Single Justice Procedure and equivocal pleading accepted by unthinking or careless magistrates, the next couple of years could prove very interesting for observers.  In simple terms fairy tales might not always be considered incredible.