MACRO MICRO AND THE LEGAL ROOST

The word macro describes something that is very large or something that is related to things that are large in size or scope. Macro is also used as a combining form meaning “large” or “great.” The word micro describes something that is very small or something related to things that are small in size or scope.  Both terms are often used in academic studies.  As with many commenters on myriad topics this blogger has, consciously or unconsciously, pontificated from both aspects at any one time.  The more distant the time when being active in the middle chair was laterally almost a weekly occurrence the more perhaps a macro or overview of magistrates courts and their inner workings appeared here. Sometimes reports of actual courts` proceedings or activities can and should bring a sudden state of the here and now into any esoteric commentary.  Three such matters have today caught my attention persuading me to turn from the macro to a micro view of the workings of magistrates courts every day at every court. 

Perhaps the most complicated cases I can recall were those brought by a local authority against those who had ignored or in some other ways had failed to comply with enforcement notices often under under section 179(2) of the Town and Country Planning Act 1990.  I distinctly remember an offender represented by a then QC telling me as the presiding magistrate that the bench would not be capable of understanding his client`s complex arguments and that we should adjourn to a date for the matter to be heard by a District judge(MC).  We gave him a polite response noting his objection and invited the prosecutor to proceed.  In another similar situation the prosecuting solicitor for the local authority presented a bundle he was relying upon and, as he thought helpfully, argued that we need read only some specified two dozen of more than 200 pages. We retired to read the whole bundle.  A further case where the claim was for £22,000 had the offender who had pleaded poverty in his personally delivered mitigation writing a cheque for the full amount on his guilt being established.  There were many offenders who had to be threatened with contempt for refusing or delaying the court`s requirement for audited accounts to be presented by a future court date.  And so it was with interest that I noticed this report by Camden Council in London where justice was certainly seen to be done. 

Fly tipping has, over the decades, slowly crept up the ladder of environmental offending.  Whereas it had been in the post war years an "annoying" offence it`s now on a par with some offences causing bodily harm.  The seriousness of such offending can be gauged by the Sentencing Guidelines.  Once again on a personal level if memory serves correctly my bench fined a sole trader of a fly tipper around £20,000 for what the offender considered just "a few bits and pieces" he`d dumped at the side of a quiet street. It was interesting to note that a fly tipping offender was subject to a six weeks custody order but owing to current politics it was suspended.  With government having given notice that magistrates courts will soon be unable to impose any custodial terms immediate or suspended there is going to be a huge ill considered gap in the justice system.  I suppose when a government in power for 14 years does not provide enough prisons or prison cells to house offenders in a humane manner nor provides sufficient trained staff both in the prison service and probation to oversee sentencing and sentences there is little surprise of chickens coming home to roost.

I cannot recollect having a police officer in the dock throughout my time on the bench although there were not a few who committed perjury from the witness box with a straight face.  On consideration I assume that in today`s world things would be different for colleagues.  The current climate certainly gives one hope that, without prejudice, erring officers are more likely than in past years to face justice for offending. Last week Swansea Magistrates Court saw a serving police officer appear on a charge of sexual assault by penetration.  What is interesting is the statement of Nathan Adams, criminal lawyer at Reeds Solicitors in Cardiff.  It can be found along with a statement by Senior Investigating officer Detective Superintendent Huw Davies here. 

Criminal offending affects real people on both sides of the legal divide. Sometimes the judgements, emotional, theoretical, intellectual and judicial are based, notwithstanding the tome that is the Sentencing Guidelines, at a macro level.  There can be no confidence in a judicial system where consideration at the micro level is overlooked and unfortunately that is what has happened over the last few years and is, in my humble opinion, likely to continue whatever party is ruling that legal roost this time next year.  

JUSTICE IN THE SHADOWS

At the turn of the century if one turned on the TV to watch a police or crime thriller it was almost certainly a work of fiction.  Over the next few years TV executives and writers began exploring the possibilities of a sub genre; mockumentaries and "reality" programming centred around routine police work and true life investigations.  Fast forward to present day and all manner of true crime is reflected on our screens from static traffic cams, motorway patrols to historical investigations of gruesome murders from initial crimes to eventual outcome for offenders.  Perhaps that format has outlived its popularity for some but with an ever expanding supply of visual media to be available for an insatiable viewing public demand must be satisfied.

This blog has long advocated and predicted that live court TV will eventually be sanctioned in this country and probably from magistrates courts locally funded with national control on advertising policy. That is the future but the live televising of a court was initiated  in September 2015   when STV became the first broadcaster to televise a Scottish court case live and in full. Four cameras were used in court one of the Court of Session in Edinburgh to cover a two-day Election Court case involving Alistair Carmichael. Four constituents were seeking to have Carmichael deselected as an MP after he leaked a memo in April to The Daily Telegraph which suggested that Scottish First Minister Nicola Sturgeon had told the French Ambassador she would prefer David Cameron to remain prime minister. 

On July 28th 2022 for the very first time a Crown Court judge`s sentencing remarks were televised live.  Her Honour Judge Sarah Munro QC in sentencing 25 year old Ben Oliver for the manslaughter of his grandfather said, "Time spent in remand would be deducted, resulting in a term of nine years and 63 days.  Once you have served that term, you will be entitled to apply for parole. However, you will not be released by the Parole Board unless they conclude you no longer pose a risk to the public. If you are released, you will remain on licence for the rest of your life."  And the pattern was set.  Since then broadcasters have filmed the sentencing of 33 offenders including Thomas Cashman and Wayne Couzens.  

February 26th was arguably the date on which another legal taboo was breached.  It was the broadcasting by ITV of the first of two hour long episodes concerning the killing of his wife by British Airways pilot Robert Brown.  Some distressing footage was shown including some of  Brown`s police interviews.  He was found not guilty of murder but was sentenced to 24 years custody for his admission of manslaughter. The programme appeared to have been inspired by pressure from the deceased`s mother and friends when they were informed that Brown was due to be released under license having almost served half his sentence.  Pertinent sections were portrayed  by actors from the trial transcript.  Understandably the programmes ended with observations by Brown`s lawyers that he was fairly cleared of murder by the jury according to the evidence and is entitled to fair treatment under the law including eligibility for parole.  The images of the jurors reacting with sorrow or perhaps disbelief at the judge`s remarks presumably based on eye witness accounts when he explained the unusually harsh manslaughter sentence were  certainly designed to show that with some of them there was a realisation that they had reached a perverse verdict.  As is his prerogative the Lord Chancellor blocked his release on license; a very unusual decision.  The matter will now go forward to a hearing of the Parole Board.  It is interesting to note below an extract of  a letter of 1st December 2023

 Letter from the Minister of State for Justice

The Government has also introduced amendments to the proposed reforms of the Parole Board, as well as changes to the creation of the Independent Public Advocate. The Government’s latest proposals reflect the concerns raised by the Chair of the Justice Committee in a letter to the Lord Chancellor on 7 June 2023.

On Parole, the Government’s initial plans would have allowed the Lord Chancellor to “call in” Parole Board decisions to release certain prisoners. The Committee said: “We cannot understand how a Secretary of State sitting in Whitehall can be better placed to make a release decision than the Parole Board which has had the opportunity to hear evidence from the prisoner first-hand.” The Government has now dropped this plan, and instead proposes to introduce a power to allow the Lord Chancellor to refer a certain release decision to the Upper Tribunal or the High Court.

Sentencing for serious criminality is apparently now a major attraction for broadcasters.  When such sentencing seems out of kilter with public perceptions especially in the most awful murder cases and/or bereaved families are particularly articulate or photogenic all pressures to pursue the victims` families` complaints are likely to be met with some sympathy by TV media with half an eye on their ability to attract audiences in this country and abroad.  I would opine that the outcome of the heinous murder of three people last year in Nottingham, when the judge accepting expert evidence that the accused Valdo Calocane would  be detained in a high-security hospital following his sentencing at Nottingham Crown Court, will be high on a list of suitable cases to be considered for in depth TV analysis.  Once again a sentencer`s sentencing remarks have provoked profound dismay within and without the legal fraternity insofar as he remarked that Calocane is likely never to be released, so that he can receive treatment for paranoid schizophrenia – a mental illness that can be “mitigated” with treatment but not cured. Judge Mr Justice Turner added he was satisfied Calocane would not have committed his “appalling” crimes had he not been suffering from the illness."

It is unlikely that the aforesaid decisions by judges have gone unnoticed by the policy wonks at the MOJ however with an impending general election affecting almost everything coming from government sources it will almost certainly be the next government which faces the reality that justice cannot be kept in the shadows from a wider audience for much longer.  The only caveat I can envisage is that by hurriedly exploiting a much tougher law `n order policy Tories would hope that their traditional voters will be less likely to abstain. 

SWEEPING JUSTICE UNDER THE TORY CARPET

 

There are many reasons why some populations can be considered "patriotic" or unified and others less so. Climate change, external threats, political gerrymandering, immigration and in current terms unseen infiltration by aggressive AI from known or unknown sources.  Governments are elected to predict, control and counter where and when possible threats from the above sources and others.  Common to most political regimes are justice systems which vary in quality from totalitarian (virtually non existent and which Russia is a prime example) to "progressive" where excessive zeal has created a virtual free for all which is the basis of the democratic system`s near breakdown in Israel with consequences for all its citizens.  

In between is U.K. where pride in a justice system has been broadcast loud and proud for a century or more.  Not any more: this century has seen belief within and without the legal and associated professions diminish when the ability of many to access the justice system has been deliberately constrained by the imposition of costs for not just those of low income but also for many middle income earners in both criminal and civil courts.  There is however another factor at one time reluctantly accepted as a necessity of government which pervades the justice system; secrecy.  Appointments to the higher ranks of the bar and to the judiciary at all levels were carried out by whispers in cloisters or smoke filled rooms.  Some of the more atrocious activities have had light shone upon them but many remain.  By their very nature they resist exposure but events sometimes cast a fleeting glow on what governments are trying to avoid.

One such event was the verdict and sentencing of three terrorist supporters at a recent march supposedly in sympathy with Gazans and their terrorist overlords Hamas.  Earlier this month a senior district judge (MC) with sentencing options of six months custody allowed the offenders to walk out of court with a conditional discharge, the lowest but one non financial  sentence available to him.  However reporters digging for details, as is their prerogative, discovered that this judge had shown sympathy in social media with those who had accused Israel of terrorism against Palestinians;  similar sympathies of which the trio had been found guilty.  In addition this judge was no ordinary district judge. Tanweer Ikram in 2017was appointed Deputy Senior District Judge (Chief Magistrate).  To add to that Tanweer was appointed to the Judicial Appointments Commission  as a Judicial Commissioner for a term of three years from 14 December 2023.

Now from the viewpoint of that person on the Clapham omnibus comes the  non activity of  those who are supposed to expose questionable or ill advised judicial actions.  None of the bodies which has powers of oversight has chosen to use those powers to determine whether there was bias in Tanweer`s sentencing of those offenders. The Evening Standard has published a fair account of the situation thus far.  It would appear that having been promoted in December those in an oversight role of the judiciary have decided to close ranks fearing ridicule of their protégée. In other words they hope this case of disgraceful judicial bias  will fade away from the public mind to be replaced by positive headlines for a government desperately trying to convince us that it should be re-elected. 

It seems that a political lesson from times long gone have been forgotten; it`s the cover up wot got `em.  In the modern era from Richard Nixon onwards trying to hide scandal under a bush is a sure way to exposure.  Apart perhaps from the military and all that that word entails our justice system still reacts as if it indeed is a law unto itself from dealings with lowly magistrates to those at the top of the tree.  Secrecy is the bedfellow of demagogues and for those aspiring to such exalted position.  I hope we will soon hear more about this discredited judicial office holder.  The Tory carpet cannot have room for much more to be swept under it.  

MUSLIM JUDGES AND THE DEMOCRATIC PARADOX

With a general election on the horizon there is much media comment on how a divided political party is a turn off for voters. But what has faded into the political background is that His Majesty`s Loyal Opposition; the Labour Party, is itself still divided over an apparent acceptance of antisemitism in its ranks depending on who are labelled as such and those who at heart are still Remainers.  Although the issues are not as stark or as many as in USA this country is exhibiting bitter divisions over weekly marches by groups using Palestinian sympathises  as a cloak for hatred of all Jews not just the 7 million residing in Israel.   

The history of nations where there is unreconciled division is ominous.  The French Revolution of 1789 was followed by a disastrous European war until the defeat of Napoleon in 1815.  Subsequent to the American Revolution in 1776 those who were on the side of Great Britain and remained unreconciled to being subjects of the new United States fled to Canada the first use of which as an official name came in 1791 when the Province of Quebec was divided into the colonies of Upper Canada and Lower Canada. In 1841 the two colonies were united under one name; the Province of Canada.  The American Civil War literally almost divided the new nation until the Union success of 1865. Millions were killed in post 1917 Russia following revolutions and the subsequent civil war.  Post the Great War Ireland had its own civil war between unreconciled political parties and unremitting antagonism between fascists and communists was played out in the Spanish Civil War.

Whilst 2024 is not exhibiting the first symptoms of violent disorder in the UK the history of these islands has demonstrated all the signs that have preceded our current state: civil war in the 1400s AKA the Wars of the Roses, actual civil war  1642-51 and the final defeat of the Jacobites and the threat of a Catholic monarch in 1746.  

The social divide over Brexit in 2016 subsequent to the ouvert division in Scotland from the 2014 referendum, the opposition to the Covid 19 shutdown and the increasing threat from Islamist extremists shouting very loudly over the silence of many of their co-religionists is provoking verbal, literal and political opposition verging on violent threats in some quarters.  The failure, apparent or otherwise, of political and police authorities to contain current examples of an unholy trinity of Palestinian sympathisers, marxists and fascists on the streets of London and other cities weekly since October 7th should be provoking anxiety in 10 Downing Street.  The influence on events of the Secretary of State for Justice is an unknown factor.  However when activities of those who seek to force their opinions on others by tactics of obstruction in some way or other the dirty washing on the clothes line of justice is there for all to see. 

One cannot complete a form for many occasions or applications of one sort or another some voluntarily, some essential without it seems ticking boxes to describe all or some of one`s ethnicity, sexuality, gender, skin description, heritage, education etc etc etc. France, officially a Catholic nation, on the other hand has been deaf, dumb and blind to such intrusions on privacy since 1972. Since 2004 there has been a ban in public schools of wearing religious symbols; hijabs, kippa and crucifixes. There is an estimated Muslim population of 7%-9% mainly from 1950s and 60s immigration from Algeria, Morocco and Tunisia. This Muslim minority, increasing annually, is likely to be a large factor in the next French presidential election. 

In the Uk over the last 30 years we have had our own share of Islamist violence.  We also have our own share of Islamist judges and magistrates in our courts, numbers unknown, sitting in judgement on those whose views they might share when it comes to public disorder.  Indeed despite the authorities knowing almost how many hairs are on the heads of magistrates the number of Muslim magistrates is unknown. According to the Office of Judicial Statistics they do not currently publish these figures in their annual Judicial Diversity report.  The Judicial Office who are the data owners have offered the following statement:- 

Magistrates can provide information on their religious affiliations. However, disclosure of this information is optional and therefore Magistrates may choose not to disclose this information. As a result, the information held on the religious affiliations of Magistrates at this time is not of suitable robustness (i.e. the declaration rate is too low) to be published publicly, as doing so may lead to inaccurate and misleading interpretations being made.

And so to last week when Heba Alhayek, 29; Pauline Ankunda, 26; and Noimutu Olayinka Taiwo, 27; were found guilty of a terror offence in the wake of the incident at a pro-Palestinian march in central London a week after Hamas militants entered Israel.  Deputy Senior District Judge Tan Ikram said he had decided their lesson had been “well learned” and he did not intend to punish them sentencing them to effectively a slap on the wrist; a conditional discharge.  This blogger and many legal bigwigs have indicated their outrage and demanded appropriate intervention to make the punishment fit the crime. My point today, belatedly perhaps, is how many sentences on similar offending are being conditioned by magistrates whose public profiles are by far and away below the horizon of public and media scrutiny?  When the scrutiny of Advisory Committees who select magistrates is deep enough to view the proverbial angel on the proverbial pinhead why is religious or non religious affiliation not a compulsory feature for every aspiring Justice of the Peace?  My own opinion is that it`s a case of the three monkeys; the MOJ doesn`t want to hear, see or speak the answers or the numbers for the simple reason they would, perhaps by pressure, have to publish those very numbers and they`re fearful of what these numbers would reveal especially in areas where Muslims constitute a quarter or more of the population. 

Our nation has a history of peaceful protest protected by law.  The political convolutions over the last decade have proved that existing law is strained to breaking point. Almost daily institutions and private and company premises are being invaded with criminal damage caused, lives are being seriously disrupted by obstructive tactics, weekly demonstrations have led to under policed and under contained public disorder and Jewish citizens have undergone record numbers of occasions of direct antisemitism including children at school.  

There comes a time when a democracy must consider apparent undemocratic actions to preserve that very democracy. Such an occasion is described as the Democratic Paradox. Recognising the situation unchanged an early question for the next government is firstly to admit its reality and secondly when or if to apply a remedy and finally to justify and select an appropriate redress.  Failure will be a catastrophe. 

 

IS THIS REALITY?

 It`s now two weeks since I underwent major surgery.  Having had anaesthesia problems as a young man when I underwent elective surgery I was very careful and fortunate enough to be able to select not only my surgeon but also the consultant anaesthetist who worked alongside him.  Whilst the operation was successful I later learned that owing to unforeseen complications chemical anaesthesia was not possible even partially and I underwent full blown gaseous  anaesthesia.  Common sedative agents used during rapid sequence intubation include etomidate, ketamine, and propofol. Commonly used neuromuscular blocking agents are succinylcholine and rocuronium. Certain induction agents and paralytic drugs may be more beneficial than others in certain clinical situations. CW my anaesthetist was long gone when I awoke a surprisingly long time after schedule according to my surgeon. But what I do remember and committed to my diary of these events were my first words to the recovery nurse, " Is this reality?".  Indeed I repeated the same question three times.  I felt like Rip Van Winkle on magic mushrooms.  It was a further day or so into my recovery programme that it dawned on me that when I compare my first experiences of being inside our justice system in 1998 with the current situation I could also remark; "is this reality"?

Of these 26 years 14 were were overseen by Tory governments.  The coalition years will fade into the ether as rightly they should.  That first Conservative Secretary of State for Justice Kenneth Clarke proudly announcing his support for austerity commented that he was the first around the Cabinet table to implement budget cuts; in his manor 23.8%.  Oh how they drooled. Others soon followed with police numbers being reduced by 20,000, prison officer numbers being cut, the probation service being decimated and secret magistrates courts taking on a million + cases annually under the cloaking device AKA as Single Justice Procedure.  Notwithstanding that all this was in the public domain being excused by government rhetoric daily that would have had Cicero cutting his own throat years before  "together with his son, his brother, and his brother's son and all his household, his faction, and his friends" (Appian, Civil Wars, IV.19.1). Cicero was killed on December 7, 43 BC, aged sixty-three, his head and hands (having penned the Philippics) hacked off."  For even the most miserable, incompetent, arrogant Justice Secretary this nation has ever endured Chris (failing) Grayling [2016-19] who took the probation service into penury and disarray  resignation was not even a footnote in his diary.  Throughout 14 years of incompetence half the courts of England and Wales were closed and even with that process which continues the cry of "local justice" and "diversity" scream from the depths of Petty France where woke reigns supreme.  His Majesty`s Courts and Tribunal Service now has the publishing rights for several areas where local court reporting has become part of local history.  So we cannot be certain that what`s being published in local media reflects the reality of court happenings in local areas.  In the last two years magistrates courts` sentencing powers have been increased to 12 months custody from the previous 6 months and reduced again to 6 months.  Notwithstanding those decisions there is current parliamentary process in action to remove custody as an option altogether.  But here`s the rub; owing to the inaction or inability of the Metropolitan Police to curb disorder occurring in so many  so called "marches for Palestine"  in future protesters who climb on to war memorials could face up to three months in jail under new laws put forward by the government. Security minister Tom Tugendhat told MPs people who scaled national monuments could also be fined £1,000.  Apparently the irresistible force of no more jail available to the lower court will meet the immoveable object of a 3 month jail sentence for those guilty of breaching the new proposed legislation.  That means that those cases will be added to the lists of crown courts where some matters are estimated to be heard not sooner than two years from now. 

The unbelievable incompetence of those aforementioned inhabitants of Petty France added to the equally do lally knuckle dragging grunters of the Home Office has resulted in our prisons being unable to accommodate all those who should lawfully, morally and societally be there.  The scandal and it`s nothing less than a scandal, of "suspended sentences " will continue and indeed accelerate.  If there is one factor above the reducing numbers of lawyers undertaking uneconomic legal aid work in and out of the courtroom to the detriment of low income defendants it`s the release of prisoners when they have completed only a half of their supposed well rehearsed and logically deduced sentences whether or not they deserve such beneficial treatment. The list of failings and incompetence goes on but this is a blog post, not a treatise or novella. 

Perhaps my Rip Van Winkle could have met the Sleeping Princess and seen the world through her eyes without a frog in sight.  Perhaps we can elect some politicians who are of A Level quality in place of the GCSE failures who are leading us into penury and misery down almost every political avenue we have to navigate for the next decade.  Perhaps we can be under a general anaesthetic until then and upon awakening wonder in awe; "is this reality"?

NO LONGER SEEN OR HEARD

During my first few years on the bench as a winger it became apparent to me that the chairman, or to use current nomenclature, the presiding  justice fitted clearly into two classes; those competent in dealing with the duty to run the court in both an orderly and lawfully correct fashion  and those who could not.  There was no middle way.  I also noticed that those who failed to meet my expectations failed on both hurdles.  Although from the beginning lay magistrates were and are schooled in the mantra that legal advisors advise on the law it was obvious to this newbie that colleagues who had knowledge skilled themselves in such basic offences considered at magistrates courts e.g. the law on bladed articles  or the criteria of exceptional hardship also seemed to have an inert ability to deal with the efficient direction of the court with regard to ensuring that in the widest possible sense justice was not only done it was seen to be done.  When I became qualified to sit in the middle chair I continued to have on the bench my personal folder of topics carefully annotated to provide instant reference when needed in order that I might stay one step ahead of our legal advisor if possible.  This practice was apparently strictly forbidden but nobody ever told me to my face.  What it did was to allow me to manage the court as efficiently as possible without having to refer to the legal advisor unless I considered it necessary. I would imagine that currently I would be chastised by over zealous and arse licking colleagues seeking brownie points from the Deputy Justices Clerk.  

Having made my position clear as above I read with disdain of the sheer incompetence of a magistrate.  There is a well written but second hand report here of the failure of an unknown magistrate probably based in Wiltshire  to comply with the law relating to a S.45 notice on reporting restrictions the full guidance on which is available here.  Although the magistrate`s name in question would have been published outside the courtroom like so much else in the courts system s/he remains an unknown figure.  

Considering the personnel changes within the magistracy since 2010 it`s not unlikely that many more JPs than expected, with limited experience, have been catapulted into the senior position with fewer capabilities than previously when DJCs could to some extent pick and choose who to promote. The current tick box process as in so many other factors of our society is not the best way to choose a candidate.  

One aspect of this whole episode has come to light and it`s not a pleasant thought as far as this blogger is concerned.  The website reported above Wiltshire 999S  does not feature the report.  It also seems to have been deleted from X [Twitter].  If this is self censorship by a well known news reporter or his bosses it is worrying.  If they have been pressurised by powers that be it is a matter of great concern to those of us who consider that our courts are being subjected to ever increasing government control.  Those who follow current legal events especially the situation re postmasters` scandal will no doubt have their own opinions. 

Finally I have to report that owing to my imminent need for elective surgery this blog will be silent for the next couple of weeks or so. 

SEX ON THE BENCH

 

    

During my time on the bench I had a position on our Rota Committee.  In those days the committee had an overview of each court`s composition produced by an early computerised data base overseen by an experienced court officer and finalised by the bench Rota Committee.  That method followed the guidelines at the time and the oversight my colleagues and I performed ensured that anomalies of any sort were avoided. 

The topic appeared  on the now long defunct forum of the Magistrates` Association insofar as it pertained to the question of whether or not there was guidance on the issue of same sex benches in the adult court or perhaps as one wag put it, “same gender benches”: a comment that perhaps would now produce the wrath of God or the J.C.I.O. upon the "offender". My bench was split about 50/50 on sex………..I will resist a temptation to go slightly off topic…………so mathematically a random approach to the rota which we employed would usually produce MFM or FMF. MMM or FFF was generally the exception. In addition in a highly mixed ethnically diverse area reflected in a correspondingly higher ethnic mix on the bench as a whole race and religion produced more diverse benches than sex alone. As far as I was aware any composition of J.P.s on a bench would effect justice on any matter before it. There was no guidance. The good sense of all ensured it was not required.

PUBLIC DISSENTING OPINION OK FOR SUPREME COURT BUT NOT FOR MAGISTRATES

It would be presumptuous to say that everyone has now at least a passing acquaintance with the Post Office scandal but for those involved in criminal law there are probably subtle signals that what was known by professionals is gradually becoming if not public knowledge then certainly a situation which has been to a lesser extent part of the civil justice system for many years.  

In the magistrates courts where reputations might be at stake miscarriages of justice are unlikely to make headlines.  For the uninitiated a bench is usually composed of three magistrates although currently only two person benches seem to be more frequent in recent years.  To bring a guilty verdict  (on a full bench) a majority must find the prosecution case proved beyond a reasonable doubt but when that is announced in open court there is no acknowledgement that one magistrate might have come to a different conclusion.  Surely then it is logical to consider that the bench as a whole unit had that reasonable doubt.  A single District Judge (MC) has only his or her own conscience  to which to answer.  

My own practice after pronouncing a finding of guilt was to advise the offender of the process of appeal.  When the verdict was split perhaps I put more emphasis on the detailed manner to go about that appeal.  I was unable when I was active and am of the same opinion now as to why a split verdict, at least of guilt, cannot be made publicly.  When crown court judges were allowed to accept majority verdicts of 10:2 in 1967 there was general agreement in parliament and legal circles that it was of benefit to the concept of justice not only being done but being seen to be done.  It seems illogical that the lower court does not follow the example of the higher court. Even the Supreme Court allows for a dissenting opinion.  An interesting essay on this topic can be accessed here.  

Current numbers suggest that there were around 5,000 appeals from magistrates courts to the crown court where a judge sits with two magistrates for a re- hearing.  The percentage rates of success on appeal were 30% for conviction appeals and nearly 68% for sentence appeals. It seems that the MOJ no longer supplies detailed statistics on such appeals.  All this is rather confusing.  The latest verified statistics I can find are below:-

Whatever the actual numbers are the principle of dissent should be applied to magistrates courts.  There is no justifiable reason to oppose that except for the law for the ordinary citizen to be an increasingly tick box exercise which is a lot cheaper for government than the facade that justice is available for all. 

2024 MORE OF THE SAME OR WORSE TO COME?

In this, my first post of a new year, it would be gratifying to have been able to look back on 2023 with the faint hope that  improvements or increased efficiency within the justice system particularly re magistrates courts were just an early sign of better things to expect in 2024.  Alas great expectations remain just that. 

14years ago I mused that magistrates and their powers in their then current form would be on the road to extinction.  That they`re still here, is for some, a disappointment especially amongst the fraternity of criminal lawyers; an ever diminishing band of legal brothers.  Considering the havoc brought about by the musical chairs being played about at Petty France and especially the incompetence of that address`s most abject failure "Failing Grayling"  it might occur to many that we`re fortunate that the magistrates courts system is still functioning at all with half the number of courts cf 2010 and one third the number of magistrates owing to various bad planning decisions or indecisions since then. An example from 2016 on the thinking behind court closures can be read in this paper; Response to the proposal on the provision of court etc

The June 2019 report House of Commons Justice Committee "The role of the magistracy: follow-up"  did not exactly endorse the previous nine years of a cataclysmic mismanagement by the MOJ. 

 Judging by retirements and recruitment figures it seems reasonable to deduce that around one third of magistrates have less than five years experience and that the personal, academic and employment profiles of magistrates have changed considerably since my appointment.  The result is that few benches have many members who were sitting when their courts were semi independent of government and a certain free thinking was the order of the day.  So called post code sentencing lottery by local magistrates has been abandoned for the algorithmic  Sentencing Guidelines which appear to be but a stepping stone to "the computer says "X"  when sentence is determined.  

The last year has seen sentencing maximum of six months increased to 12 months and reduced again to six months.  The next few months will herald another fundamental change when magistrates courts will no longer have the option of any custodial sentence for offenders who appear before them.  I would imagine that District Judges(MC) who increasingly take a greater proportion of what are termed "high profile" cases will have their noses out of joint.  Prison overcrowding and severe court backlogs have meant that the judicial tail is wagging the judicial dog.  In Scotland by comparison with its long established independent justice system Justices of the Peace powers of punishment are limited to 60 days' imprisonment or a fine of up to £2,500 or both.  With such changes in England and Wales unimaginable even a year ago who`s to say that somewhere in the bowels of Petty France locked in a secure cabinet there is not a Green Paper with government thinking on reducing further the punishment levels open to magistrates and reintroducing custodial sentences in the future with the proviso that only salaried District Judges will in future be able to impose them.  

My opinion as written above has not changed; only the time frame has changed. 

LAW AND POLITICS IS LIKE WATER

We have all been led to believe that the British system of trial by jury is a wonderful example of justice being blind and all are equal before the law.  All are blind who continue to believe that.  It was only a century ago that an Appeal Court was incorporated into the system to counter miscarriages of justice and half a century ago that hanging was abolished.  As we are all too aware these modifications  were leisurely in coming into being and were not universally welcomed by vociferous if small minorities.  Miscarriages of justice still occur.  The Criminal Cases Review Commission has published its latest statistics:-   

Referrals and decisions (April 1997 – October 2023)
826 cases referred to appeal courts
803 appeals heard by the courts
566 successful appeals
222 decisions upheld
15 abandoned by applicant

These matters would have been heard originally by a jury in the crown court.  Prior to their retirement to consider their verdict the jury would have been advised that they must come to a verdict based only on the evidence presented to them; a simple enough instruction on the face of it but one in which the words of the judge have in recent cases been stretched to breaking point. The departure from decades of almost total compliance with such judicial direction became aware to the public by “the Colston Four”. In 2020 four defendants  all admitted to taking an active part in removing Edward Colston’s statue and disposing of it in Bristol Harbour as the prosecution had alleged. Their defence to the charge lay in why the statue had been removed.  Colston was a slave trader who invested heavily in his native city. They were cleared of criminal damage. Last month nine climate change protesters were cleared  of causing £500,000 worth of criminal damage to the windows at the headquarters of HSBC bank in London. They were acting under the name of Extinction Rebellion.  Sally Hobson, prosecuting, said: “They accept that on 22 April 2021, they went to the HSBC building armed with hammers and chisels and they also accept that they used those tools to break the windows – they were responsible for the damage. “The value of the damage caused is in the region of £500,000 and additional security measures caused further expenditure so as to ensure damage was not caused again.  “Although the defendants accept they caused the damage, they deny that their actions amount to criminal conduct. Simply put, the damage was caused during a protest and the defendants say that they were lawfully justified in doing what they did.  “We say that whatever the purpose behind them causing the damage there was no lawful excuse for doing so. It was, we say, unlawful conduct outside of a lawful protest.”  Criminal damage is lawful if the defendant believes the owner of the property consents to the damage (as found in section 2 of the Criminal Damage Act 1970).  

There have been other similar cases.  In 1982 Clive Ponting was acquitted of breaching the Official Secrets Act despite admitting to leaking documents relating to the sinking of the Belgrano during the Falklands War. The judge directed the jury that Ponting’s duty lay to the civil service and that he had no viable defence.  In 2007, Toby Olditch and Philip Pritchard were acquitted of sabotaging US bombers at the outset of the Iraq war. The defendants suggested that the bombers would have been used to commit war crimes. 

Lords Devlin and Thomas in 1956 and 2011 respectively agreed that even when the evidence is overwhelmingly to convict, the law does not prevent juries from returning a perverse verdict. The Bar`s code of conduct does not allow a barrister to inform jurors of their right should they so wish to bring in a perverse verdict; it would constitute misconduct.  The logical conclusion is that a defendant in such circumstances in order to follow the examples of Ponting or the Colston four in arguing from that angle would have to be self representing.  That conclusion itself is somewhat paradoxical or Kafkaesque.  

There are some learned professors of law who argue that juries should have the right to hear arguments of perversity and not to be directed that only evidence presented in court should be considered in their coming to a verdict.  From my lowly position as a retired magistrate it`s my view that that argument would lead to not only more perverse verdicts but politically motivated verdicts examples of which are current offences against British companies or subsidiaries of Israeli companies on the pretext that they are acting against Palestinian interests.  

Law and politics are essential to our way of life.  Like water we cannot survive without them in combination but also like water too much can kill us. It`s also the case when the H is separated from the O2 the situation is combustible.  

It`s that time of the year again when a spurious date approximating to the winter solstice was allocated to the birth of a Jewish boy in Bethlehem, a village in Judea an area which is unfortunately less peaceful than it could be.  Nevertheless the message is clear: goodwill to you all and thank you for spending a few of your valuable minutes reading this and perhaps some previous offerings on this site.  

 

CRIMINAL BEHAVIOUR ORDER OR SOCIAL INNOVATION

 "Keep the bastards out of prison". It`s not too difficult to imagine that directive being given from one senior civil servant at the MOJ to his/her assistant. What might be surprising to many is that that conversation would have taken place in 2012 or 2013. By that time the original supposed deterrent to antisocial behaviour was ASBO; antisocial behaviour order beloved by prison governors because it reduced the tendency of having to allow for ever increasing numbers of miscreants being subjected to short custodial sentences in their already crowded prisons.  It was "sold" to magistrates and local councils as a method by which local nuisances both in noise and behaviour by local hooligans which might fall short of actual criminal behaviour could be contained without the high bar of trial and beyond reasonable doubt to prove guilt and local witnesses or council officers being able to submit anonymous statements.  

I suppose all that began with a new Tory government in place not long after the 1979 election. Home Secretary William Whitelaw had announced he was going full steam ahead on a key manifesto promise – the Short Sharp Shock. To a euphoric Tory party conference in October 1979, the urbane and aristocratic Whitelaw told delighted delegates that detention centres for teen lawbreakers would no longer be ‘holiday camps’.  This played on widely believed media stories of young hooligans leading cosseted lives behind bars.  “Life will be conducted at a swift tempo,” he assured the party.  The belief was that a regime of early wake up calls, military drill and manual labour over a three month period would shock young offenders out of a life of crime.  To break even the most determined spirit periods of recreation could be denied and  silence was the general rule with only 30 minutes of chat between prisoners permitted each day.  It wasn`t long before there was a rising disquiet amongst many  in the legal fraternity and pressure groups  that such sentencing did little to improve or deter criminal behaviour at the lowest end.  So in 2013 ASBO begat CRASBO later shortened to CBO or Criminal Behaviour Order. 

On 21/06/2016 I posted of my personal involvement in this historic legislation.  Generally I consider that this form of civil sanction [the breach of which is a criminal offence] is displacement legislation.  "Don`t commit an offence within our boundaries; go elsewhere to offend."  So from pillar to post the offending continues.  Breach of an anti-social behaviour order is triable either way with the maximum sentence for this offence in magistrates’ courts of 6 months’ custody and a maximum 5 years’ custody at the crown court.  

It seems that it`s taken eight years for the message, for what it`s worth, to get through to  Barnsley Council.  The offender in this case had previously been issued with another of these so called orders; a Community Protection Notice.  As far as I am aware the MOJ has no knowledge of the deterrent value of these civil orders.  It has been unable or unwilling to provide numbers of those breaching them and being subsequently convicted as above.  All that can be said, in my humble opinion, is that it reduces the burdens on police and prisons.  Whether or not such orders are another sign of outcomes determined by cost cutting or an innovative process to control low level but aggravating local misbehaviour is as much dependent on political opinion as social innovation. 

I HAVEN`T CHANGED MY OPINION

I have never sat on a jury.  Indeed many decades ago I received my one and only summons for that purpose but I had to request an exemption owing to my professional undertakings.  Now my intellectual and/or physical capacity according to the MOJ renders me unfit for such duties.  I must be content with voicing my opinions here and occasionally elsewhere.  A three person bench of lay magistrates is in effect a mini jury.  Its members have been trained how to consider evidence in a structured fashion supposedly simplified by the introduction of  Sentencing Guidelines introduced over a decade ago to  remove the effects of a perceived post code lottery in outcomes.  In some matters, as I have written previously, it seems only a matter of time until algorithms take over much of the human function but for the present most people`s experience of a court is in a magistrates court and their futures, for better or worse, in the hands of those selected for their apparent abilities to satisfy a selection process written by civil servants in the MOJ. 

Last month Grant Roberts JP was castigated by the Judicial Conduct Investigations Office; his [crime] misdemeanour was improper use of the internet insofar as, "had conducted an independent internet research on the defendant to assist him in reaching a decision." The full statement is available here. From the report a couple of points emerge in addition to the matters of principle which I will address. It would seem that the legal advisor must have been present in the retiring room to hear the then "innocent" admission by Mr Grant. From My earliest days on the bench following the examples set by those senior to me whose abilities impressed me I would request legal advisors to leave the bench in private to discuss any matter which required a decision after of course we had been advised of any facet of the law which was or could be pertinent to the matter in hand. Once I had assumed the middle chair most L/As were content except one newbie who insisted she must be present as she had always been at her previous court. After much reluctance she left us to discuss a post trial decision. She was never to repeat her interloping whilst I was sitting. Of course the situation re Mr Grant might have hinged on an absent L/A being informed by the other winger or the Presiding Justice of his junior colleague`s supposed inadvertent error.

Now let me offer a "what if" scenario which must occur at some if not many post trial decision making sessions. Every person in some form or another has specialist knowledge of something. At my former bench there were people from all backgrounds and occupations from bus driver to jeweller to teacher to builder to health professional etc. each with his/her own specialist knowledge; knowledge that others might need Mr Google to verify. The scenario continues: discussion centres around a witness`s oral statement which a bench member knows categorically is untrue. Does the magistrate inform his colleagues that with his undisputed knowledge the erroneous or lying evidence is false? If s/he does not and is questioned as to why he has come to a conclusion that perhaps is the minority conclusion a misjustice might have occurred. If, on the other hand, he does make his specialist knowledge of the topic a basis for bringing the false testimony to the discussion how different is that [in a particular case] much different from ascertaining a fact from the internet?

At this point I must make my own opinion clear. I remember exactly my own divulgence to my colleagues of a false statement made under oath by a defendant that I knew to be false from my professional expertise. My comment was recognised by my colleagues and adopted into our weighing the evidence. Was my action inappropriate? I did not consider it thus at the time and I haven`t changed my opinion.

CAN JURIES SPURN THE LAW?

A most interesting essay on whether juries can spurn the law in the Law Society Journal by Joshua Rosenberg can be read here.   

In due course I hope to discuss this with relation to magistrates.

SECRECY AT PETTY FRANCE

If there is one factor above many others that serves to distinguish a totalitarian regime from what we loosely term a democratic nation it is openness.  In this country it is exemplified by The Freedom of Information Act  which was passed on 30 November 2000 in the first Labour government under Tony Blair.  However in his memoirs of 2010 with a coalition government now installed he wrote, "“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it. Once I appreciated the full enormity of the blunder, I used to say – more than a little unfairly – to any civil servant who would listen: Where was Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know have allowed us to do such a thing so utterly undermining of sensible government?”

Tony Blair, A Journey, Hutchinson, September 2010

I suppose the underlying motivation for governments of all colours to withhold information from the public is that knowledge is power and the less power to the proles the better.  The judicial system is a prime example of secrecy in power, for power by power.  Magistrates are at the bottom of the pecking order and are supposed to represent a conduit between the professional government financed judiciary and the common folk who are suspected of law breaking.  Despite having a hybrid status of themselves being common folk volunteering their time unpaid they are arguably subjected to higher degrees of the requirement to adhere to strict rules and regulations as to their conduct in court and out. When I was appointed both government and the Magistrates Association took great pride in the old English system of the magistracy with an emphasis on "local justice for local people" notwithstanding the fact that an increasing number of paid District Judges(MC) were being appointed with no concern for their or any  geographical affiliations.  At the receiving end of the system where those accused of transgressions in their judicial or personal activities are judged by the Judicial Conduct and Investigation Office the guilty, until very recently, were identified by name and the bench to which they belonged. That is now no longer the case.  For those for any reason seeking to identify any Justice of the Peace admonished or worse by the JCIO some detective work is now required to identify the miscreant magistrates` localities as their bench is no longer identified. It seems that secrecy rules. The current inquiry into the handling of the Covid epidemic will be studied for years as to whether information withheld within and by government led to unnecessary fatalities. From top to bottom, from Number 10 to the lowliest PPS the order is plausible denial and obfuscation as a backstop. The JCIO gagging order is just another, if minor, worrying sign of a government covering as much of its backside as it can under the realisation that it will not be around much longer to cover its tracks.  

A PIPE DREAM

When learned folk talk or write about "courts" more often or not the reference is to a court at the higher level of our jurisdiction system as opposed to the lower.  A casual observer might opine that that is not surprising; the higher the level of jurisdiction the higher the level of prosecution or dispute when considering civil cases.  For those very reasons tradition has made available a ladder to indicate the legal and/or intellectual prowess of those who keep warm the benches in these superior courts.  We might then surmise that whilst a crown court judge in army terms is a major, a High Court judge is a colonel, an Appeal Court judge a lieutenant general and a judge of the Supreme Court a field marshall.  Where does that leave the district judge and the lay magistrate? I would suggest the former is a sergeant and the latter a corporal who`s considered by his commanding officer to be capable of taking on the rank of sergeant.  Those who appear before the lower court might be thought of as privates  some of whom have disobeyed orders.  They differ from real offenders in that their employer is also their judge and that employer wants to have them back at work as soon as possible whilst simultaneously ensuring that any punishment is seen as a deterrent to others who might err. In the real world the armed forces, to use the vernacular, have skin in the judicial and legal game.  Not so our world.  Those who formulate the criminal justice system are as distant from their final product as can be.  After all Secretaries of Defence, Education, Health are at risk of trauma, children with poor arithmetic or language abilities and suffering poor health.  They all have skin in the game but not judges or magistrates. They don`t fear being removed from office by the electorate; only by failing in a personal or professional capacity.  And with a slight leap in imagination these sentencers are far removed from the results of  application of sentences the design of which is increasingly able to be formulated by AI with little human input.  Indeed a glance through the Sentencing Guidelines for eg assault requires but a modicum of original thought. It can be argued that the outcomes of sentencing exercises depend more on what`s inputted than what`s expected or hoped for as an output. 

Every day at magistrates courts there are examples of  the self imposed limitations in the system.  Indecent exposure and similar offences have been shown to be high risk factors for reoffending at a higher level of indecency or worse. This offender surely needs to be restricted in a secure establishment until his deviant tendencies can be considered cured.  If a positive outcome is unobtainable the public must be protected; their importance and safety outweighs the freedom of such an individual to roam until further convictions. 

Arson is a very serious offence but it is classified as an either way offence meaning it can be tried in the magistrates or crown court the lower court having a maximum sentence of only six months custody.  

In my time on the bench I never sat on such a matter.  Indeed I would suggest that few of my colleagues past or present have but at Kidderminster Magistrates Court such a case was heard.  Apparently considered as a Category 3 offence the offender is still free to continue his daily life.  

When six consecutive four week jail terms are handed out to an offender the seriousness becomes apparent but not so apparent that immediate custody was deemed suitable.  That get out of jail free card was played also by the bench of Kidderminster Magistrates Court in the form of a suspended custodial sentence.  

Finally an offender of no fixed abode requested an immediate prison sentence, a request  with which the court complied. 

It is common knowledge that there has been, is and will officially soon be a directive from the MOJ regarding the availability of custodial sentences for magistrates courts.  As things stand now there is often little or no adequate outcome for many offenders.  Around 3%-4% historically have received immediate custody orders and for those sentenced in the community, a blanket term with no meaning if ever there was one,  a decimated probation service is generally all that is available to attempt rehabilitation by, inter alia, doing good works in the community.  For others there are so called banning orders, courses in anger management, domestic abuse and other therapies.  But in all these cases the offender is free to mix with the population. I have long advocated that an interim form of deprivation of freedom combined with professional therapists and trainers would fulfil that purpose.  In Dickens` time it was  called the workhouse {search box will identify previous posts on that word}  and fulfilled the local needs as were considered then socially beneficial both to the receivers and the public. 

It is common sense and economically very sensible that protection of the public should be combined with remedial therapies to prevent re-offending.  Until there is some fundamental way in which we govern ourselves I am realistic enough to be aware that such innovation will remain a pipe dream. 

IS OPTIMISM ENOUGH TO SEE US THROUGH?

Today 14th November 2023 our Prime Minister in emphasising  that his government was all set for "change" appointed a previous prime minister as Foreign Secretary; a prime minister who had resigned from parliament a few months after the result of  his ill conceived  ineptitude and dismal failure of his "referendum policy".  Perhaps this single appointment sums up all the failings of the last 13 years.  I have a picture in my head of a boy scout on an overnight expedition in self sufficiency being unable  to light a campfire with a simple sparking kit and asks the scoutmaster for a box of matches.   And so it is with magistrates courts.  

For many decades offenders at magistrates courts with few exceptions have been subject to legislation which limited sentencing powers to a maximum of six months custody. The Magistrates Association, a body ignored by increasing numbers of magistrates,  has repeatedly pressed for that limit to be increased although no historic papers on that topic are available on its website which, for non members, is carefully edited to avoid controversy.  But as with many aspects of all our lives the Covid epidemic changed all that. The ruthless pruning of court buildings from 2010  [300 to 150] and the ignoring of the situation in that year when it was predicted that almost half of magistrates would be retired within a decade threw all previous assumptions on prison capacity into turmoil.  There is an old adage, what goes around comes around.  Another that seems suitably appropriate is the Conservative Party`s chickens have come home to roost.  We are now on the 11th Secretary of State for Justice/Lord Chancellor since 2010 proof if it were needed that with the confusion, obfuscation and crass intellectual failings in Petty France  the law `n order banner of the Tory Party is well and truly shredded.  In an attempt to repair that once upon a time headline policy of safeguarding the nation`s streets from crime the delayed realisation that there is simply no prison space remaining and no time before a general election to build more prison accommodation the government has decided to march magistrates courts sentencing powers not just up the sentencing hill and then march them down again but to march them underground.  On 2 May 2022, the Government gave Magistrates the power to impose a sentence of up to 12-months' custody for a single triable either way offence (Section 224(1A) of the Sentencing Act 2020 inserted by section 13(1)(b) of the Judicial Review and Courts Act 2022). {my bold} The government justification for this increased sentencing limit is available here.   The Magistrates Association was quick to respond to the extended sentencing powers of May 2022.  "We advocated for an extension to magistrates’ sentencing powers for more than a decade to help speed up justice for complainants and defendants. It’s anticipated that 1,700 days of crown court time will be freed up every year now that magistrates can hear more cases." 

On 22nd March this year the well respected House of Commons Justice Committee wrote to the then Lord Chancellor.  A week later magistrates courts were marched down again.  The Sentencing Act 2020 (Magistrates' Court Sentencing Powers) (Amendment) Regulations 2023, authorised by Mr Mike Freer, amended section 224(1A)(b) of the Sentencing Act 2020, reducing the maximum sentence for an either way offence from 12 to 6 months. The change came into force on 30 March 2023.  {my underline}  Once again the Magistrates Association responded by saying it (The Magistrates Association)  expressed disappointment about the reversal, cautioned about resignations, and said it would be urging the Government to restore the extended powers as soon as possible.

In 2021 a poll indicated that the public thought that sentences had been shortened but in fact crown court sentences had increased.  Indeed the prison population has increased by 20% in the last 20 years. The inevitable result of this crass mismanagement is that this dying administration has concluded that sentencing reform is a pre requisite for any other reforms to the prison problem. The government is the maker of its own misfortune.  Sentencing reform means promotion of community sentences tough enough to punish, deter and rehabilitate.  This sounds simple enough but requires a reinvigorated probation service already decimated by probably the most incompetent Justice Secretary this country has ever experienced, Chris Grayling.  To that end  we can only hope there is a basis for optimism. 

But for magistrates there is more to come.  Last week the King`s Speech had something interesting within its many bland pronouncements: "To address recent concerns about prison capacity and reoffending, Mr Chalk has stated the government would legislate to introduce a presumption that custodial sentences of less than 12 months would be suspended.[33] Offenders would instead serve their punishment in the community. Mr Chalk said the government did not plan to dispense with short sentences completely because a custodial sentence would remain the appropriate sanction in some circumstances."

So there in brief, we have it.  A justice system in its death throes, its death having been inflicted by a thousand self inflicted cuts.  Were an individual to inflict such mutilation on her/himself or another s/he would be immediately sectioned.  Defence, Health and Education have their own stories of blundering, mindless,  gross and asinine inefficiencies and mismanagement.  For all our futures 😱 is no help. Optimism is part of human nature.  I hope it`s enough to see us through. ☝

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