LEGAL INITIATIVES? I HAE MA DOOTS

It seems the boys and girls in the MOJ press department in conjunction with their comrades at the Home Office have been hard at work recently on their keyboards.  Like the proverbial monkeys one of whom will re write Hamlet one or two of them seem to have gotten their masters` messages across to a public becoming weary of this government`s final attempts at demonstrating that it is actually doing as well as talking before an expected 2024 general election.  Of all the crass announcements none is more open to question (ridicule?) than the promise that offenders will be forced to wear high visibility jackets whilst undertaking "community payback" within 48 hours of being caught. This is supposedly a new initiative to ensure communities can have more harmonious lives without teenage yobs ruining their tranquillity.  Younger readers might not be aware that the term "community payback"  made its first legal appearance in 2010 when there was a National Probation Service worthy of its name.  It failed in practice owing to the less than rigorous standards applied and a general lack of co-ordination amongst all the required parties involved.  And also BTW that`s when the high vis waistcoats were issued and the ASBO was hailed as the finest new legal initiative to curb anti social behaviour.   There was however one major difference in the application of said community service:- the offenders had been arrested, tried and been sentenced by a magistrates court.  These safeguards were a balance of fair retribution and suitable judicial non custodial remedies.  These new proposals apparently will have an offender paying back to the community within 48 hours of being apprehended such payback to have input from the public.  There is no mention of the legal process as to how this ambition will be achieved.  Inviting said public, i.e. you and I, to have an input on suitable retribution for those offenders will require a representative group of people to sit in judgement and listen to arguments from a prosecutor, probation officer and of course the offender. Indeed that sounds familiar; lets call it a court. I doubt whether similar requests for public opinion on punishment will be made for crimes of multiple or child murder or the murder of a police officer.  I wonder why. 

At a time when there are overwhelming arguments to decriminalise the use of weakest forms at least of cannabis it seems the hangers and floggers in government have persuaded the others to place the use of nitrous oxide as a category C drug offence.  Considering that the toxic results of its use are very rare, especially compared with cannabis, this prohibition is just a high flying kite to that same group as lied to us on Brexit and seeks to ban immigration.  

Littering and graffiti have also come under the heel of impending legal changes.  Until recently my own council required an appointment for anyone seeking to dump rubbish at the major borough refuse collection site.  If that were not an encouragement to fly tip heaven knows what more inducement could be offered.  As with so many proposed rules without sufficient police patrols or underpaid little hitlers employed by councils fly tipping will continue to be a blight on all our landscapes whatever the consequences for those charged. 

Finally a proposal from a case, I believe, originating in my former court, became headline news for magistrates in 2007.  CJSSS Criminal Justice Simple Speedy and Summary was an initiative so important that every magistrate in the country was ordered to sit through a two hour training session so that its guidelines might be implemented as thoroughly as possible.  Like all past and present and future "initiatives" it took off at rocket speed only later to be bogged down due to insufficient prosecutors and fully trained probation officers with some defence lawyers exploiting the possibility of delaying tactics when addressing magistrates too weak to object. "Putting the prosecution to proof" was one of the most common comments I recollect at the time emanating from such sources.

For as long as I can remember the justice system from police, probation, prison to courts has been underfunded to the point of near collapse for the simple reason that a law abiding public just doesn`t care and parsimonious government is skilled at salami slicing budgets of what it considers secondary ministries distant from tomorrow`s headline news.  Those announcements commented upon above and the rest are just continuing the age old practice of  wielding a big judicial stick for a short time then putting it back in the drawer hoping nobody remembers when the election is called. Perhaps this time will be different but "I hae ma doots", said the Highlander when asked a controversial question.  

MAGISTRATES` MARCHED TO THE TOP OF THE CUSTODY HILL AND BACK DOWN AGAIN

A very brief post.........  Last year magistrates courts` sentencing powers were increased to 12 months custody.  This month custodial limit will be reduced to previous 6 months.  This is very strange and without explanation.  The Commons Justice Committee has questioned the motivation behind this action which is reminiscent of that grand old Duke of York

KEEPING SECRETS ON THE BENCH

From my years as a magistrate I think I can safely say that many if not most criminal defence lawyers would like to see the end of the lay bench i.e. they consider that with a single government employee District Judge (Magistrates Court) their client would have a greater chance of acquittal than before a panel of three Justices of the Peace.  As far as I know acquittal rates at magistrates courts are not divided into those before the DJ or lay bench. The relevant numbers are available below.  

As noted above convictions at trial are few in number owing to the vast number of guilty pleas. What is rarely ever commented upon is that there is no requirement for a three person bench to agree a verdict; a majority 2:1 is acceptable but no such statement is allowed to be made public when the verdict is pronounced in open court.  Of course for those acquitted knowledge of majority or unanimous decision is irrelevant; they are free to go but for the convicted offender it is a different matter especially if, as increasingly is the case,  they are without legal representation. It was my personal practice in such cases to tell such an individual of his/her right of appeal to crown court and that the appropriate form was available in the court public office.  Very very rarely if at all when sitting as a winger did I witness any colleague doing likewise.  I can add that this procedure was never addressed at any training session.  This is an anomaly I feel strongly should be addressed.  Whether it is just a historical tradition lost in time or is a continuation of a long standing directive from a distant Lord Chancellor I know not.  I do know, however, that surely it is justifiable for a defendant to know under what conditions guilt or innocence would be established.    

BAD, CARELESS AND DANGEROUS DRIVING

My motorway journeys are generally along the northern or western areas of the M25, M1 to M6 route and the western end of the M4.  These few hundred miles comprise some of the busiest motorways in England and also many miles of smart motorways.  In past years I have experienced a complete electrical failure whilst driving in the "fast" lane necessitating navigating to the hard shoulder with no power steering or brakes.  It was awkward.  I have had my windscreen splintered by an air rifle shot from a bridge.  I have flagged down a police car to report a drunk or ill driver having overtaken me in a frighteningly erratic manner and known the sorrow when my wife`s best friend`s daughter was killed by a drunk, disqualified driver on the M6.  I have experienced the frustrations when apparently every couple of miles or so on a perfectly clear day when traffic is moving normally at or around 70MPH and no roadside construction going on, overhead warning signs indicate a limit of 60 or 50 MPH for no apparent reason.  I have also been very aware of the few if any motorway patrol cars in view on or at the side of the motorway.  Perhaps that is why I have been unable to find statistics on the numbers of traffic police officers or patrols currently operating.  

Government data shows 1,750 people died on UK roads in 2019 – a figure that’s more or less unchanged since 2010.  Of course  the pandemic reduced road volumes in 2020.  But with safer vehicles, enhanced driving tests and arguably safer roads it is disturbing that deaths haven`t reduced.  It is a simple effort to find out everything to do with road and/or motorway policing except the numbers of cars and officers on the road.  What we do know is that c150 offenders were guilty of causing death by dangerous driving. 

 

It is difficult to explain the differences in these two statistics over the last few years. Many unresearched explanations come to mind: vagaries in definitions, jurors` sympathies eg "it could have been me driving", CPS unusually pressing for the more serious charge. An interesting additional fact is that between 2016 and 2020 only c41 offenders in total were sentenced for causing death by driving unlicensed or uninsured. In that same span 21 were sentenced for causing serious injury whilst disqualified.   In 2019-2020 just under 600 lives were lost or damaged through deaths or serious injuries caused by dangerous driving. The offence of causing serious injury by careless driving implemented in the Police, Crime, Sentencing and Courts Act 2022 will add to the CPS`s choice of charge and give lawyers more clients to represent but suspected offenders must firstly be arrested and for that to happen they must be observed or be the subject of substantial suspicion.  

It seems to me that a reliance on cameras recording so many aspects of our daily lives has been used by government to attempt remote policing in our cities and on the roads in compensation for the drastic reduction in police officers since 2010.  Mass recruitment as we are experiencing now will take years for these new officers to gain the experience needed to function to their and our satisfaction.  Perhaps in future individuals will rely on dash cams to reduce their insurance premiums and in dire circumstances to prove their innocence in a traffic incident.  That`s a position arguably similar to Americans keeping their guns under jackets and in their cars. We follow them with some delay in so many aspects of our society and behaviour; why not on the roads to protect ourselves  from suffering unwarranted legal accusations of dangerous or careless driving unless of course we prefer less rather than more evidence of bad driving............

 

For many years arguments have been made to remove custodial powers from magistrates and on t`other hand to increase those custodial sentencing powers from six to twelve months. Last year the hangers and floggers got their way and twelve months custody for either way offences became the maximum.  Seems that is to end and those hangers and floggers will have to rein in their galloping punishment horses and reapply a six month canter.  The complete Amendment can be accessed here.  Section 25 is copied below. No doubt this topic will re appear. 

Amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012

25.—(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012(24) is amended as follows.

(2) In section 143(6) for the words from ““12 months” to “6 months” substitute ““the general limit in a magistrates’ court” is to be read as “6 months”. 

BAD LAW GOOD RESULT OR GOOD LAW BAD RESULT?

Auriol Grey shouted and waved at Celia Ward.  That sentence could be the first line in a novel.  If it were it could be a description of two friends one of whom is trying to  attract the attention of the other.  But it wasn`t the first line in a novel but probably the last words that the latter heard before she was knocked off her bike and killed by a car on 20 October 2020. Auriol Grey was not the driver; she was just a pedestrian using the pavement for its natural purpose, walking, and was fearful of a cyclist approaching her on a collision course.  She was before a jury charged with causing the death of that cyclist.  After a retrial Grey was found guilty of manslaughter.  The judge`s sentencing remarks, the official record apparently still to be published, have been widely reported albeit probably in truncated form.  What we do know is that the offender is 49 and suffers with cerebral palsy.  It seems that in this very sad case the propensity for judges to do all they can to avoid sentences of immediate custody has been ignored or actively avoided.  She has been jailed for three years.  In 2021 50% of prison sentences given to women were for 6 months or less. Women were sent to prison on 4,932 occasions in the year to March 2022 – either on remand or to serve a sentence. In the year to March 2022 there were 1,513 recalls of women to custody. Women serving sentences of less than 12 months account for just under half (44%) of all recalls.  CPS guidance on manslaughter is available here.  I have been unable to source the numbers of women convicted of manslaughter  involving a stranger but excluding those in a domestic context  I would be surprised if  the number reached double figures annually. Whilst acknowledging the offender`s disabilities Judge Sean Enright was quoted as saying, "It does not reduce your understanding of right or wrong." The trial was told that police could not "categorically" state whether the pavement was a shared cycleway. Cambridgeshire County Council subsequently reiterated that and said it would review the location, but in his sentencing remarks Judge Sean Enright said it was a shared cycleway.  It is not difficult to appreciate that the first jury could not agree a verdict. With all that has been written since it is arguable that this jury might have been misdirected by remarks quoted (and others?) above.  What I find incredible is that immediate custody was imposed.  What effect on the offender or wider public has this achieved?  It wreaks of "setting an example".  But an example of what?  Who has not been disturbed or worse by a cyclist riding towards one on the pavement?  I most certainly have on multiple occasions and I too have sworn and waved my arm at that anti social behaviour.  This woman should not be in jail for a moment longer than it takes an appeal for her immediate release to be approved by the Appeal Court on four counts.  

1. Was her conviction safe?
2. Was the custodial outcome appropriate?
3. If 2.  is ratified is the length of custody appropriate?  
4. If 2. is ratified is a suspended sentence appropriate? 

The police as usual are unhelpful and take whatever position fits what their PR advisors advise. After this trial Detective Sergeant Mark Dollard called the case, "difficult and tragic, I am pleased with the verdict and hope it is a stark reminder to all road users to take care and be considerate of each other." Readers will form their own opinion of those remarks.  Personally I need some fresh air. 

ADDENDUM 7th March 2.30pm

This is what the judge told the defendant:

You have been convicted of manslaughter after a re-trial. You gave no evidence at trial one or two. In broad terms, the issue at trial was whether what took place might have been an accident, self-defence or unlawful violence. You were convicted unanimously by the jury.

Most of what took place was captured on camera footage. You were walking on the pavement. You resented the presence of an oncoming cyclist. The footage shows you shouting aggressively and waving your left arm. You do not stop, slow down or move to one side. You are territorial about the pavement and not worried for your own safety. After careful thought, I concluded these actions are not explained by your disabilities.

The court heard evidence from a number of witnesses, and I found William Walker to be reliable and thoughtful. He is a cyclist and driver. He said that you and Mrs Ward appeared to have come to a halt in front of each other and you made a lateral sweeping movement with your left arm which was directed at Mrs Ward. He said “it either made contact or she recoiled and fell”.  She  fell into the busy ring road where she was killed by a passing car driven by Carla Money.

This was, I think, a shared path for cyclists and pedestrians that allowed them to go around the busy ring road. The vital point is this: I am sure you knew cyclists used that path and you were not taken by surprise or in fear for your safety. The path at the point of collision 2.4 metres wide.

I have considered the evidence about eyesight and the CCTV footage and visual impairment was not a factor in this incident.

You and Mrs Ward both welcomed the safety of the pavement. She because she was an elderly cyclist and you because of your disabilities. Consideration for other road users is the lesson of this tragic case. We are all road users, whether as motorists, cyclists or on foot.

I have been referred to the guidelines on unlawful act manslaughter issued by the Sentencing Council and have heard submissions from both parties.

In terms of the guidance, looking at these matters in the round, culpability C is made out, but towards the lower end of the scale.

A starting point of four years seems just, based on my finding that the sweep of your arm was an intentional act but being reckless as to whether harm would be caused.

I reject the submission that this is best framed in terms of category D for reasons I have indicated.

Aggravating factors

The vulnerability of Mrs Ward who was on a bike.

The effect on Mrs Carla Money (in so far as her first statement extends). Her enduring distress is entirely foreseeable.

Matters reducing seriousness and personal mitigation

You offered assistance at the scene, but you were turned away by others.  But, on the other hand,  you then left before police arrived and  went off to do shopping. You were evasive when police traced you and told lies in interview.

You have no convictions or cautions or reprimands. You are 49 years old. This stands to your credit.

Your medical history and significant disabilities would have crushed many but you have endured all that in a commendable way. Until now have demonstrated a  positive lifestyle and I have no doubt that over the years you have endured all kinds of difficulties when going around the town centre which may have made you angry on this occasion. In any event, your prior good character stands to your credit.

Is there a mental disorder bearing on these issues? I do not think so.

As to learning difficulties, there are none. Much was made  in cross examination of what witnesses referred to as a  “childlike face”. In fact you went to a mainstream school and denied in interview having any impairment of intellect. That is not decisive, in my view and I put it to one side. Both experts suggested that the childhood surgery resulted in “a degree of cognitive impairment”.  (In my view, these difficulties do not bear on your understanding of what is right and wrong and what is appropriate or not). I should say that I saw the video your police interviews, I read the character statements detailing your lifestyle. I have also read the  pre-sentence report and medical evidence and have learned as much about you as I can.

Remorse. There has not been a word about remorse from you until the pre-sentence report was prepared, and here there is a reference to remorse which has never been passed on to the Ward family. In this regard I accept your counsel’s explanation that this may be a function of your disabilities and do not hold it against you.

There has been a delay in getting this case to trial. This is a mitigating factor I must take into account in your favour.

I also take into account the particular difficulties, occasioned by your disabilities, that you will face in prison and when you emerge.

Balancing all these considerations, the proper sentence is three years imprisonment.

FURTHER ADDENDUM 8th March 

The Law  as told to the jury by the judge

Burden of proof

The prosecution must prove that the defendant is guilty. She does not have to prove her innocence.

Standard of proof

The prosecution proves the defendant's guilt by making you sure of it. Nothing less than that will do.

Manslaughter

A person commits manslaughter is he/she does an unlawful act that a sane and reasonable person would realise would inevitably expose another person to the risk of some harm ( and that other person dies as a result).

If you concluded that what took place was or may have been an accident, then you will find the defendant not guilty.

If you were sure that what took place was not an accident but found that defendant was or may have been acting in self-defence, then you will find her not guilty.

2

WHAT IS SELF DEFENCE?

In summary

1. A person who thinks she is under threat may use force to defend herself and, as long as she uses reasonable force she will be acting in lawful self-defence.

2. It is for the Crown to prove, that the defendant was not acting in self-defence.

3 It is a two stage test.

Stage 1 – did she feel under threat (subjective)

4. You must first ask did she honestly believe that it was necessary to use force to defend herself? She is not deprived of this defence simply because she was mistaken about the need to use force.

If you are sure that she did not believe it was necessary to use force, then self-defence fails, and the force used would be unlawful.

If she may have believed it was necessary to use force, go on to the second stage.

Stage 2 – reasonable force (objective).

5. You must then decide whether the type and amount of force she used was reasonable. A person who is under threat may react on the spur of the moment and cannot be expected to work out exactly how much force she needs to use and everyone has a degree of latitude in that situation. If the reality is that she used no more force than she instinctively thought necessary, that would be good evidence that the force used was reasonable and therefore lawful.

3

6. If you conclude the defendant was or may have been acting in lawful self-defence you must find her not guilty and that is the end of the case, and you will go no further.

7. However, if she used force out of all proportion to the situation she faced, then the force used would not be reasonable and her actions would be unlawful.

8. If you reject self-defence, it means you have found that she used unlawful force.

You will then ask: would a sane and reasonable person realise that in doing what she did, would inevitably expose another person to the risk of some harm?

If yes, verdict guilty.

If no, verdict not guilty.

4

ROUTE TO VERDICT

(After you have had a full discussion about the issues you will need to make decisions, and if you follow this route to verdict it will help you return a verdict which in accordance with the law)

Q 1 Was what took place or may it have been an accident?

If so, your verdict is not guilty. Go no further.

If not, go to Q2.

Q 2 Did she believe, or may she have believed it was necessary to use force to defend herself?

If not, self-defence fails and you will go straight to Q4.

If yes, go to Q3.

Q3 Was the force that she used reasonable or may it have been reasonable?

If yes, verdict not guilty. Go no further.

If no, self-defence fails. Go to Q4.

Q4 Would a sane and reasonable person realise that doing what she did, would inevitably expose Mrs Ward to some harm?

If yes, verdict guilty. Go no further.

If no, verdict not guilty.

5

THE DEFENDANT’S SILENCE AT TRIAL

The defendant has chosen not to give evidence in support of her defence.

A warning

You must remember that the defendant has a perfect right not to give evidence and to require the prosecution to prove its case. You cannot jump to the conclusion that her silence proves the case against her. It does not. The burden remains on the prosecution to prove its case so that you are sure.

How may the defendant’s silence be relevant to the case?

There is no evidence before you to contradict or undermine the evidence for the prosecution save for what the defendant said in interview. You will appreciate those answers carry less weight than sworn evidence because they were not given on oath and were not tested in cross examination.

What point do the prosecution make?

The prosecution argue that the reason why the defendant has remained silent is that she has no answer to the prosecution case or none that would stand up to examination.

What do you need to be satisfied of before accepting that argument?

You should only act on that argument if you regard the Prosecution case as sufficiently strong to require an answer from her, and you are sure that the only sensible explanation for her silence is her awareness that she has no answer, or none that would bear examination.

6

GOOD CHARACTER

The defendant has no criminal convictions, cautions or reprimands and you have heard evidence about her character from three witnesses.

1 This is a factor which you should take into account when deciding whether you believe what she said in interview.

2. The fact that she is of good character means that she has no known propensity to commit offences and is therefore less likely to have committed this offence.

These are matters to which you should have regard in the defendant's favour.

EXPERT EVIDENCE

Experts are entitled to give their opinion evidence on matters outside the knowledge of lay people.

None of the expert evidence is in dispute and there is no rational basis to depart from it.

But remember, the experts see their part of the case only. You try the case on all the evidence.

UNANIMOUS VERDICT

You must return a unanimous verdict. If you have heard about majority verdicts, put them out of your mind. If there comes a time when I can accept a majority verdict, I will bring you back into court and give you a further direction

 

FURTHER & PROBABLY FINAL ADDENDUM 23rd May 2023

 

Contrary to my expectations the Court of Appeal refused leave to appeal against sentence.  This case is becoming a travesty of much that is wrong with our justice system such as it is still designated.  For comment in greater detail please read my post of the above date which can be speedily accessed here.

OFFENCES AGAINST SOCIETY

 

"It`s only a domestic".  Most people with an interest in the law would fail to recognise that distinctive phrase as having, so the story goes,  its origin in supposed police speak after being called to a home where a female  occupant accused her male co-occupant or "friend" of having assaulted her.  TV crime shows of  the 1950s, 60s or even 70s or modern films depicting events of that era often set the scene with Morris Minor so called panda cars and police  in uniforms fashioned unlike the para combat outfits often seen today. The underlying theme was of male dominance over women; a dominance considered normal.  Indeed it was an attitude prevalent today amongst some religious non Christian minorities. It is not coincidental that the aptly named women`s liberation movement became a mass movement around the 1960s and not just a fringe cult with a penchant for liberating their breasts.  Legislation also followed and continues currently not only to protect women from violent partners but to ensure that any apparent inequalities in society  to the detriment of women are ironed out. In that regard the emphasis has been on rape and the difficulty in securing convictions notwithstanding statistical distortions often produced by those whose political intent outweighs the accuracy of their use of statistics.  Stalking, workplace harassment, indecent exposure, non contact assault and other transgressions have encouraged legislation that offers now a degree of protection to women that their mothers and grandmothers could only dream about. No doubt such direction of legislation will continue in the knowledge that serious violent crime against women is often predictable from lesser events which might be condoned or ignored.  Indeed perhaps we are reaching the region of "overkill" when some are considering even the old fashioned wolf whistle to be a criminal offence. Nevertheless there is a glaring inconsistency in how violence against women or the threat of such is considered by the courts.  

Here I must declare a prejudice. I am totally unsympathetic to sexual predators  and sceptical of the courts` treatment of them.  Firstly when my wife was seven years old walking with a friend one afternoon through a park, as young children were able to do in those long forgotten days of innocence, from about twenty yards distant a middle aged man exposed himself to her.  To this day she can picture exactly his face and would be able to pick him out in a police line up.  Apart from that I have never asked her how she feels now about that incident but it must have deeply traumatised her.  Secondly I am less than impressed with Sentencing Guidelines.  Every year, fewer magistrates and judges, as retirement takes it toll, will remember that sentencers used to use their own well honed constructive sentencing ladder to arrive at a just outcome for offenders.  A decade ago I likened the idea of the Guidelines as a prelude to computerised sentencing.  Most readers will be unaware that as a prelude to its publication in 2004 those of the "great and the good" variety so embedded in the "British way of doing things" studied the sentencing manuals of the State of Michigan USA which used simple algorithms for the sentencing process.  That state now has taken that principle forward so far that in my opinion it will not be long before the computer takes over leaving only refinement to a human being.  

It is approaching seven years since MP Jo Cox was murdered.  Since then in October 2021 David Amess MP was murdered in his constituency office.  Not since the IRA embarked on its murderous campaign against MPs have our parliamentary representatives been under such a real or perceived threat and female MPs most of all.  This week Raymond Batchelor was found guilty to a charge of harassment without violence against the Bishop Auckland MP and her chief of staff Jack Bell.  This pervert was sentenced to custody suspended with the usual ancillary activities and restraining order. Court report is here.  His victim, the youngest MP in this parliament, has announced she will not be standing again as a candidate.  Of course nobody but her immediate family and circle will know how much effect the offender`s actions had on her decision. However much Steven Hood (DJ magistrates court) pontificated it is hard to believe that suspending custody was just on the basis of the evidence.  It is hard to believe that there is no pressure on publicly paid officials to severely limit the numbers of offenders being sent to vastly overcrowded prisons. It is hard to believe that high profile cases are virtually always assigned to those paid judges who will obey dictats from on high rather than magistrates who should be free to follow their consciences and oath rather than their Justices` Clerks` "advice". 

At the Crown Court also the tendency to suspend cases of threatened violence to women seems to be against a true sense of justice. The proportion of suspended sentences in 2021 given for indictable offences increased to 18% from 15% in the previous year. In practice that means that this victim, like so many others threatened with violence by her co-habitee, is unlikely not to fear that actual grievous violence will be directed towards her irrespective of a judge`s order.  

The bench at Cardiff Magistrates Court sentenced an offender who assaulted two women  to five months custody.  Given that six months is the maximum for common assault that is a significant indication of the seriousness with which his offences were considered.  Why then was that sentence suspended?  

Stalking has been shown often to be a prelude to actual violent behaviour.  This stalker was revealed in an excellent newspaper report [but which failed to tell us the actual offence committed] to be a prime candidate to fulfil that statistical prediction by his repeated bizarre behaviour.  He was not even give a custody sentence suspended.  Once again a District Judge (MC), this time  DJ Nina Minhas,  declined an appropriate outcome which I most certainly would not have done.  The offence of stalking has a maximum sentence of six months custody.  The outcome in this case was an offence against society. 

These reports are but the tip of a statistical iceberg.  An aspiring prime minister with an impressive background has pledged  to reduce a public`s fear of violent crime.  If in power he could appoint a Justice Secretary who shares his thinking and makes good the rhetoric with action. 

I TOO HAVE BEEN CANCELLED

Writers of all kinds high and low, full of sense or nonsense and judicial office holders of all kinds appear to be high on the target list of those who operate and/or support what`s now commonly termed cancel culture.  Of the former the person with the highest profile is probably J. K. Rowling because she dared to say what others have feared to publicly admit that there are two sexes and that so called trans women have the potential in some cases to be an actual physical danger to women notwithstanding the fact that in essence they are in opposition to what she and others consider  the fruits of  the women`s liberation movement.  At the opposite end perhaps of this literary spectrum has been the recent announcement by Puffin, publishers of the works of Roald Dhal, a notorious antisemite and world famous author of children`s books, that some of his language is now unfit for young human consumption.  Cloud-Men have become Cloud-People in "James and the Giant Peach". In The Witches, there are no longer any old hags – only old crows. These are just two of the hundreds of changes that have been made to the author’s stories. To the criticism from many quarters the publisher replied by saying that  it had taken such actions so that  (Dahl) “can continue to be enjoyed by all today”.  An extreme result of similar perverted thinking was that the outstanding author Salmon Rushdie had his life almost cancelled by his fanatical Islamist assailant`s dogmatic beliefs. The common factor between Puffin and him was that authors` words must not be heard; they must be muted by killing the author or substituted by what a publisher considers "acceptable".  

The treatment of the judiciary of the words they utter in a professional or private manner, certainly in the case of magistrates, falls within that black to white spectrum where even that phrase itself is regarded by some as suspect.  I have recently commented on the remarks of District Judge (MC) Stephen Leake. We will probably never know if or what "advice" he has been given or if any at all by judicial authorities. This is a classic mirror image of cancel culture insofar as any comment is kept secret and out of the public domain.  Last week Just Stop Oil offenders were praised by District Judge (MC) Wilkinson as he sentenced them.  I, along with some other commentators, have questioned the appropriateness of these remarks.  Once more any official response is cancelled at least to us the public.  Instances as above have been reported in the press; often the local press but old fashioned press reporting is a dying occupation thus denying a wider  public of what they have a right to know. However much as judicial authorities mouth the slogan that magistrates are members of the judiciary their treatment by said authorities is far from equal with their seniors when they are thought to have transgressed.  Unlike their seniors such deviations whether in the courtroom or without are displayed in a public place albeit in an edited form such as has put  Dr Ian Haffenden JP in an unenviable position.  He was not cancelled but put in the spotlight: to every action there is an equal and opposite reaction to quote a rather clever fellow called Isaac Newton. 

To be cancelled has this week become for me something personal.  Yesterday Blogspot, the hosts of this site on which I have commented for 10 years, informed me that a post of 09/04/2019  "MEANS FORM MEANS NOTHING"  had been reported to them as it "was flagged to us for review. We have determined that it violates our guidelines and deleted the post."  I had been cancelled almost four years after publication of the supposedly offending material.  After I objected to this action the post was re-instated.  If any reader agrees with the objector perhaps he/she should delete this address from bookmarks.  

DIVERTING THE BLAME

It seems there is a concerted attempt for the government to put as much distance as possible between the MOJ and the furore created by the entry warrants scandal.  To keep this post short and sharp I have copied below some parliamentary answers to questions raised yesterday.  Please note in particular the link to Ofgem`s Gas and Electricity Codes of Practice for Domestic Suppliers in the first reply. 

Compare that very length document with the Best Practice Guide for magistrates which became standard practice at my court a decade ago. This relied on the magistrate(s) asking the right questions at the right time after the applicant had taken an oath. That Guide was to the point and covered virtually all the grounds to sniff out occasions and individuals where disconnection and PAYG meters were not advisable.  It is accessed in this post of  27/5/2015.   Note a common theme:-  B L A M E is diverted from where it originated.......deep in the bowels of Petty France. 

JUDGES: BACK UP OR BACK OFF ? (GOVERNMENT)

There have been observers from time to time who have opined that the law is or should be above political bickering; that it stands supreme.  A well known adage is worth a thought that there is sometimes  an occasion when  a choice has to be made by judges between the letter of the law or the spirit of the law the latter being an attempt to enact what the law makers intended but failed to make 100% explicit in their legislation as it was passed by an act of parliament.  The balance between lawmakers who create the legislation over which the judges must adjudicate and judges who must interpret and apply the legislation has always been a matter of controversy.  The American constitution whose writers are held by some as demi gods did their best to separate legislative and judicial functions.  Events of late in that country have demonstrated the difficulties involved.  Currently Israel, the only democratic country in the middle east, is having its own moment in the spotlight where a right of centre government is trying to extend its power by eating into what had been assumed since 1948 were powers reserved for the judiciary.  This country is far from immune from the executive`s attempt at similar actions when a private citizen went to the supreme court to overturn the actions by the then prime minister Boris Johnson to prorogue parliament in furtherance of his political objectives subsequent to the 2016 referendum majority decision to leave the European Union.  

In actual courts where most of the public obtain their legal information through the media, whether that is the mass or on line social variety, Sentencing Guidelines are held as an example of a government attempting to overcome judicial decision making by laying out national ground rules which are little short of a box ticking exercise that phrase now itself held in contempt as being an excuse for failure. However that has not been enough.   For over 30 years the Unduly Lenient Sentence (ULS) scheme has helped victims of crime get what some perceive as righteous justice.

The scheme was launched in 1989 following public outcry over a series of controversial sentencing decisions, including the 1986 ‘Ealing vicarage rape’ case where 21-year-old Jill Saward was raped by burglars at her father’s vicarage. The first ULS hearing took place in July 1989. In this case, a man who committed incest on his daughter had his sentence doubled from 3 to 6 years in prison. The scheme has since helped thousands of victims and their families get justice, and in an important hearing last year two of the UK’s most prolific rapists - Joseph McCann and Reynhard Sinaga - had their sentences increased by 10 years, meaning that both offenders should now serve at least 40 years in prison before they can be released. In 2019 alone, 63 offenders had their sentences increased under the scheme – 16 of those were given custodial sentences after avoiding prison time at their original sentencing. Since it launched, the scheme has been expanded 6 times and now includes a range of terror-related offences, all serious sexual offences, threats to kill, child cruelty, people trafficking and modern slavery, and many racially and religiously aggravated offences. Most recently, sexual offences involving an abuse of trust, indecent images offences and domestic abuse offences were added to the scheme.  Commenting on the anniversary, Attorney General, the Rt. Hon. Suella Braverman QC MP said:   For over 30 years, the ULS scheme has helped victims of crime and their loved ones get justice. The scheme includes many more offences now than it did when it was first launched, allowing us to look at more sentences which don’t appear to fit the crime.   In the vast majority of cases, judges get it right, but the scheme is important to ensure that certain cases can be reviewed where there may have been a gross error in the sentencing decision. The ULS scheme allows prosecutors, victims of crime and members of the public to ask for certain Crown Court sentences to be reviewed by the Law Officers if they think the sentence is far too low. Some cases referred to the Court of Appeal can also offer guidance for future sentencing decisions. Anyone can ask for a sentence to be reviewed if they think it is too low, and only one person needs to ask for it to be considered. Further requests do not lend any extra weight as the decision to refer a sentence as too low can only be based on the legal threshold. The Law Officers have 28 days from the date of sentencing to refer a case to the Court of Appeal, so it’s important for them to receive a referral as early as possible in order to properly consider a case.

What happens to the judges who get it wrong?  We do not know.  As with many aspects of the secrecy in the workings of the unwritten British constitution any sanctions are applied behind closed doors. Examples of late are District Judge Stephen Leake who told Medway magistrates court last month that he wanted to jail Fabian Greco for 18 weeks for a violent offence but couldn`t because the prisons were full.  He suspended the sentence for two years because, he said, the courts had been issued with guidance from the government to "relieve the pressure on the prison estates as much as possible" due to a lack of spare capacity. Government sources said his remarks were nonsense.  Whether DJ Leake has been chastised by his superiors we do not know; the cloak of secrecy surrounding such matters is tightly drawn.  However if lowly magistrates dare stray from an imposed straight and narrow path they are held up to public disgrace by the forum AKA the Judicial Conduct Investigations Office. For recent examples  refer to statements  2522  2422   2222  2122   1922  2622

The omarta code of silence from the senior judiciary and His Majesty`s Courts and Tribunal Service over the scandal of mass authorisation of entry warrants forced if necessary with the purpose of installing PAYG energy meters is but the latest proof that there is an almost conspiratorial protection surrounding the biggest of the bigwigs who must have had input into the original decision to approve such policy but the supposed face of local justice, itself now an anachronism, the lay magistrate, can be treated like a peasant subject to the whims of his/her medieval master.   There are, however, the odd occasions when the senior judicial mask slips or appears to slip.  The difficulty is knowing when government prodding and poking has enforced the slip.  Recently the Lord Chief Justice has complained that defendants pleading not guilty are holding up the reduction of the massive backlog in the crown courts itself blamed on Covid 19 but mush self inflicted by government imposed restrictions on the number of courts available to hear cases owing to  that self same government being unable to settle pay disputes with its own judges or self employed barristers, or pay for the courts to be legally complying places of employment.  Paradoxically magistrates have known about defendants offering an equivocal plea of  guilty just to expedite proceedings and reduce their possible financial losses since the introduction of the Criminal Courts Charge in 2015.  In November of that year the House of Commons’ Justice Committee stated, "In many cases it is grossly disproportionate, it fetters judicial discretion, and creates perverse incentives – not only for defendants to plead guilty but for sentencers to reduce awards of compensation and prosecution costs. It appears unlikely to raise the revenue which the Government predicts. It creates a range of serious problems and benefits no one."

Two questions:

Does (should) the judiciary back up government?

Does (should)  the judiciary back off from backing up government?

So the point is does the secrecy surrounding judges, their decisions, their errors, their disciplinary procedures, their relationship with government, their relationship with the public and their colleagues benefit us the man in the street, the person on the Clapham omnibus, Joe Public or Jo Bloggs?  I would venture to opine when marking the judicial report card, "Attempting by obfuscation  to avoid  answering the question as set by the examiners. Must try harder failing which examiners must question the candidates` future in their chosen career". 

A MESS OF JUDICIAL POTAGE

It seems that the entry warrants scandal still has some steam in it.  The Times today features an article on pp2 revealing a letter from Right Honourable Lord Justice Edis Senior Presiding Judge of England and Wales that instructs the granting of such warrants to cease.  See below.

Of course for any thinking reader as I assume my readers are the question that comes to mind is how did this scandal arise in the first place.  The answer to that must be considered in the light of the enormous numbers of cases documented here over the last few weeks posts.  These matters of entry warrants were concentrated over a specific number of magistrates courts as noted here on 17th January.  Only His Majesty`s Courts and Tribunals Service would have this authority to instruct under the term of what I understood when active was THE Justices` Clerk who had delegated control of a number of courts where the on site boss was designated Deputy Justices` Clerk. As a new magistrate myself in 1998 after sitting as a winger a number of times on entry warrants I was horrified that very large bundles of warrants were passed for me to sign without examination. Subsequently I refused to participate in such a pastiche of justice.  My efforts, successful in the end, to change that atrocious practice ensured that all colleagues could participate in a systematic examination of all applicants` payment and social histories of those whose home they wished to enter to install PAYG meters.  Using the search box will open many posts over the last 10 years on this topic.

What dismays me most is the participation of magistrates whose compliance is an indictment of every single one of them.  They swore the judicial oath and when it mattered that it should take precedence over an in house instruction they behaved like sheep letting any conscience they might have had to be overruled by the fear of upsetting authority.  Perhaps now the reality of lay magistrates` subservience to HMCTS and their failure to confront that authority  will hasten the end of a system in which I was proud and honoured to be a participant.  Unknown to most observers in 2018 six magistrates were appointed by the powers that be to be leadership magistrates.  Their names were published here on 17th March 2020.   This is the official line: "There is 1 national leadership magistrate – Duncan Webster – and 6 regional leadership magistrates and 1 for Wales. All had to have been a Bench Chair in the previous 3 years, go through a selection process and have been appointed by the Lord Chief Justice for a period of time."  The names of the 7 magistrates subordinate to Webster are being withheld by the Ministry of Justice.  A Freedom of Information Request has been refused.  Therefore it is reasonable to suppose that with an impotent Magistrates Association held in contempt by many, these 7 appointees are acting as a fifth column on their benches and wider,  to influence policies and report on their colleagues,  taking such information high up the civil service and political ladders.  This insidious action is a danger to us all.  We think that justice (not policy) can be separated from the actions  of government.  That it can stand alone whatever the turmoil in Downing Street and Whitehall.  This seemingly insignificant policy ordered by government until its exposure, is a warning.  When those with judicial authority fail to be counted as defenders of that which they have sworn to uphold even at the lowest judicial level it will be only a matter of time before their senior colleagues are placed in the same or similar position. The problem for society is that unlike lay magistrates who have absolutely no excuses for their scurrilous actions except their own hubris judges have their salaries and future pensions to consider.  Be in no doubt there will always be those who would sell their (judicial) souls for a mess of potage. 

THE INIQUITY OF GRANTING WARRANTS OF ENTRY

Well!  The cat is now out of the bag.  The years old scandal of magistrates granting warrants of entry to the representatives of utility companies to install pay as you go energy meters willy nilly has now become front page news.  Any regular reader on this site will be aware that this carbuncle on the face of justice has been knowingly  ignored by HMCTS, the Magistrates Association and individual magistrates who have complied with a directive either through ignorance, in which case they are unfit for the post, or fear of being counted as rebellious.  Either way they disgrace the ancient title of Justice of the Peace. 

JCIO IS A SECRET CLOAKING DEVICE

Almost daily it seems but in reality probably monthly a supervisory body is found to have allowed bad things to happen in an organisation supposedly under its jurisdiction.  Police, hospitals, children`s services, building authorities and many others whose oversight has been found wonting generally issue a statement of self serving apology and assuring a sceptical public and their political overlords behind the bushes that steps are being taken to ensure that failures will be rectified.  Very occasionally people are removed from their jobs many to resurface months later with a new position and title often with an enhanced salary.  But what of those who appointed the supervisory or disciplinary body which failed in its sole purpose of supervising or disciplining? We, the great British public, just do not know who appoints the appointees.  Insofar as that most secretive of bodies, the Judicial Conduct Investigations Office, is concerned its members are approved by the Lord Chancellor but its workhorses who decide on any case are civil servants.  I posted the organisational chart that shows the staff involved on 18th October 2022  .  By typing in the search box JCIO previous posts on this topic may be read. 

However my reason today for re-visiting this subject is three fold; 
1. The identities of those who decide on the evidence presented by the JCIO whether or not to sanction the judicial office holder under investigation are not available to the public and 
2. Despite apparent clarity on its website the JCIO accepts or rejects without appeal in an arbitrary fashion. 
3. Secrecy is the fallback position of all inquiry.  The statement below from the JCIO website requires no interpretation

Please note: In accordance with Section 139 of the Constitutional Reform Act 2005, information about judicial disciplinary cases which relates to an identified or identifiable individual is confidential and must not be disclosed without lawful authority. This does not apply to formal action taken at the conclusion of the disciplinary process, which is published on the JCIO’s website as per the Lord Chief Justices and Lord Chancellors’ publication policy. Personal data is protected under the UK General Data Protection Regulation and the Data Protection Act 2018

The JCIO is open to complaints including:-

Any action that amounts to misconduct. Some examples include:
    Bullying or harassment, for example of staff, colleagues, litigants, or legal representatives
    Using racist, sexist, or otherwise offensive language
    Loss of temper/rudeness/aggression, for example shouting   
    Misusing judicial status, for example to try to influence another person or organisation for personal     gain
    Misusing social media, for example posting offensive content, or content which could damage public     confidence in judicial impartiality such as remarks about government policy
    Failure to report personal involvement in civil, criminal, or professional disciplinary proceedings
    Delay in issuing a judgment or order (usually considered to be a delay, without a reasonable excuse, of more than three months)
    Falling asleep in court

It is not involved in any of the following:-
    

A judge’s decision or order
    Bias in a judge’s decision-making
    A judge allowing one party to speak for longer than another
    A judge refusing to allow a witness to give evidence or admit certain documents
    A judge appearing to react more favourably to one person’s evidence than another’s
    A judge saying that he or she does not believe a person’s evidence, questioning a person’s credibility  or criticising a person’s actions
    A judge making an error of law or procedure
    A judge expressing opinions about issues related to a case they are hearing
    The amount of costs or damages awarded by a judge
    A judge not reading documents before a hearing
    A judge refusing to transfer a case to a different judge or court
    A judge reserving a case to themselves
    A judge refusing to correspond with a party about a case
    Fraud or any other criminal offence
    Court staff, court bailiffs or the facilities and services provided by courts
    Other bodies such as the Police or Crown Prosecution Service
    Solicitors and Barristers

From the above it is very obvious that any matter in the first group is subjective.  At what stage and by how senior an operative is a decision to proceed with regulatory action is not for public consumption.  Indeed whether or not there has been a complaint about a judicial office holder is itself a closely guarded secret.  An example of late is that of District Judge (MC) Stephen Leake. Rumour mongering and whispers are possibly more rife in the legal fraternity as any other.  This is a natural consequence of a secrecy going back centuries which has still to come to terms with the openness expected from kings downwards.  I posted about DJ Leake 27th December 2022.  Gossip since then in the coffee houses of Chancery Lane tells of a complaint against the judge who has had a meteoric  rise in status being appointed Deputy District Judge (Magistrates’ courts) in 2019, District Judge based at Medway Magistrates’ Court with effect from 1 November 2021and a member of the Sentencing Council since Monday 23 May 2022.  The alleged complaint centred around that widely reported case as above.  Since then further activity in the media reported that the judge`s remarks about being unable to sentence an offender to immediate custody because the prisons were full were refuted by MOJ spokesperson as being in error. Whether or not those remarks constitute reason for complaint we will never know.  Perhaps DJ Leake`s future as a judge of the crown court, high court and supreme court is already written in the stars or anticipated by some unknown propellant which has fired him above his peers with such rapidity. Time will tell all. 

Justice is not justice if it is not seen to be done.  That applies to the judges as much or more than it applies to the judged.  Senior judiciary is afraid to speak out until in receipt of a gold plated pension.  That is understandable or at least was understandable in  previous centuries.  But we are now in an era of instant world wide communication.  The mores of 1953 are unsustainable in 2023 as even King Charles has noted.  The current situation, where at the base of the judicial pyramid lay magistrates sit as a bench of one in secret and the pinnacle where their senior colleagues are subject to a secret protective layer of the invisible cloaking device of the JCIO, the future is not rosy.  We should all be concerned. 

MORE ON THE SINGLE JUSTICE PROCEDURE//A TRAVESTY OF JUSTICE

Try as I might it is impossible for me to ignore the ramifications of the Single Justice Procedure.  Indeed after seven years of operation the iniquity of this secret justice process has finally landed on the desks of respected members of the press.  I wonder if they are also considering whether what happens today in the lower court  will happen tomorrow in the crown court.  In addition to this fly in the face of open justice the sheer itimidatory tactics  of utility companies in applying for warrants of entry is beginning to be noticed by an extended audience.  The written answer from the Minister  copied below is revealing.

It is unlikely that the SJP has been extended to these cases but I would not bet against their being added to the portfolio currently under that umbrella. It is interesting to note that if in its wisdom HMCTS and the local justices clerk decide that a magistrate is required to sit as a SJP that individual has no ability to refuse even if s/he considers the process anything from unfair to reprehensible.  A Freedom of Information request elicited the following statement from the MOJ. "All justices authorised by the Lord Chief Justice to act in the criminal jurisdiction are authorised to act irrespective of the procedure used.  None is entitled to opt out of cases on the basis of procedure."  The question to be asked is just how authoritarian can the MOJ be in relation to the activities in magistrates courts and the corollary is just how many magistrates will allow themselves to be placed in a position to comply or resign.  And of course the so called "representative" of magistrates; the Magistrates Association remains silent that there is compulsion for its unknown number of active members to participate in the SJP.  

In practical terms speeding charges are a major proportion of the cases under SJP.  The table below gives the latest numbers available. 

LAST CHANCE SALOON FOR MAGISTRATES

Regular readers might have noticed that there are two topics which appear to have more than their fair share of space of late in my weekly outpourings: the Single Justice Procedure and warrants of entry for utility companies.  The latter particularly is of personal interest because the criticisms beginning to arise to a wider audience inside and outside parliament have been apparent since I first sat as a winger in 1998.  The arrogance of various chairmen now known as presiding justices in passing a heavy bundle of documents towards me with instructions to sign and the encouragement of clerks now known as legal advisors to "press on" was against my very nature of inquiry and fair play.  However after some years research and persuasion with the assistance of a legal advisor whose ideas of justice were akin to my own my bench adopted the Best Practice Guidance as posted here 27th May 2015.   It appears that this example was not followed elsewhere.  Indeed like so many cover ups by supervisory authorities in this country, whether of errant police officers, bullying health authorities or childcare organisations to name but a few, the MOJ tolerated and in fact encouraged this practice of nodding through warrants of entry to cut power or installing of PAYG meters to those who could least afford the extortionate charges to feed those meters. The iniquity of this policy can be seen in the table below. The anomaly of the numbers refused in 2019 cf 2020  and beyond certainly points to a directive from on high to change whatever policy was previously operating.  In all probability from my own experiences this was likely to have been pressure from the gas and electricity supply industries and their bailiffs. 

YEAR        GRANTED        REFUSED        TOTAL

2019        277,142                1,824                278,966

2020        221,494                43                     221,537

2021        332,277                36                     332,313

2022        367,084                56                     367,140

In the period between July 2021 and December 2022 a total of 536,214 warrants was applied for by energy suppliers.  Of these the vast majority (536,139) were granted while 75 were refused. Assuming that such applications in my experience were held about once a month  simple arithmetic shows that each magistrates court in England and Wales on average processed almost 200 cases each month in that period. If my experience is a guide such courts were held either just prior to the main business of the court for that session or as first business at 10.00am.  In any event to facilitate the inspection of 200 warrants and to question the operatives sent to court in their applications to ensure their compliance with the aforesaid Guide would take a complete session of a court and that would add to the costs.  So once again His Majesty`s Courts and Tribunal Service sacrificed justice for cutting costs. This disgraceful state of affairs might not consume the debating time of our politicians as much as rape prosecutions or barristers` fees but  it has arguably a much greater effect on the poorest members of our society.  The government response is that in order to grant an application to enforce a right of entry a JP must be satisfied that there is a right of entry, admission is reasonably required and the requirements of the Gas Act or Electricity Act have been complied with.  The legislation [according to the government`s interpretation] does not require the energy supplier to demonstrate they are acting as a last resort in seeking a warrant to install a prepayment meter to avoid disconnecting supply. 

Assuming my comments on time involved dealing with the volumes as above it is fair to say that individual magistrates must be held responsible for failing in their duty as per their oath of office:  “I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign King Charles the Third in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  They truly have lost what little independence they have been left with since the turn of the millennium.  They have no body around which they can unite and offer their views on matters affecting them.  Instead they are considered as unpaid employees and when HMCTS says "jump" they not only jump but they offer to jump higher.  Their so called "leadership magistrates" are so enveloped in their abilities in using their tongues to lick unpleasant places that the MOJ keeps their identities secret from their colleagues so that they can act like stooges on any council in Hong Kong, Beijing or Shanghai.  Truly those who connive in this aberration of so called justice are nothing less than  MOJ toadies and the sooner this facade of diversity of local citizens for diversity in local justice is replaced by others with a true sense of duty the better.  This means that advisory committees must be instructed by a new cadre of civil servants who realise that unless changes are made the clamour of the legal profession for lay magistrates` replacement by District Judges (MC) will be unstoppable.  Indeed the magistracy as it has been known since WW2 is now in the last chance saloon. 

ADDENDUM  19th January 2023

On 17th January Mike Freer at the MOJ wrote to Sir Bob Neil re warrants of entry sought by utility companies.  This included the chart below.  The numbers of warrants granted and refused by magistrates courts is very revealing. Those requested at Portsmouth MC numbered 193,394 of which only 10 were refused. The next highest was at Basildon MC where of 61,117 applied for not a single one was refused.  However it must be borne in mind that HMCTS concentrates such activities at specific courts.  That does not explain the enormous differences in the numbers. 

Unfortunately resolution could not be increased