SERMON ON THE BENCH

A common theme, some might say obsession,  of many of my posts over 13+ years on this site  is secrecy: whether in the police, judiciary, other legal associated professions  or in the judicial supervisory process.  The Judicial Conduct Investigations Office is the organisation tasked with doing what it is says on its lid. However in many aspects it doesn`t perform according to its website where its raison d`etre for its existence is as, " an independent statutory body which supports the Lord Chancellor and Lord Chief Justice in their joint responsibility for judicial discipline. Our statutory remit is to deal with complaints of misconduct . This means how a judge has behaved personally, e.g. making a racist remark, inappropriate use of social media, or falling asleep in court."  The definition of "misconduct", the be all and end all of its function as defined above, in itself seems narrowly drawn. Considering that investigation into magistrates is the largest group by far into which the JCIO involves itself this omission is telling.  In addition there is a caveat insofar as the limits of its authority.  "We cannot accept complaints about a judge’s decision or the way a judge has managed a case". And that is exactly where the secrecy begins.  Compare that with "how a judge has behaved personally, e.g. making a racist remark".  

On 29th September last year  calling themselves environmental protesters a rag band of people blocked Britain`s busiest motorway M25 causing misery and delays for thousands of drivers going about their lawful activities whether of business, pleasure or public duty.  Owing to delays in the court process those arrested for their actions that day only came to court on 12th April this year.  Some of the demonstrators appeared at Crawley Magistrates' Court while others pleaded guilty by post. They appeared before District Judge  Stephen Leake who had been appointed just six months earlier. And during that legal process he made remarks which if they had been made by any presiding magistrate would almost certainly have led to an investigation by that august body to which I have referred above. But my point is that despite widespread media coverage it seems that this arrogant, foolish, irresponsible judge having made possibly the most injudicious judicial remarks of the year will continue to preside over his court with nary a word of official criticism.  Once again I publish below the judicial oath; an oath which must be obvious to the most legalistic mind, has not just been broken but has been torn to shreds by the ego, smugness, imperiousness and haughtiness of this highly paid civil servant in whom the general public must place its trust and in those who appointed him and deemed his actions acceptable. 
“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.”  Perhaps he considered that by finding the offenders guilty his remarks were justifiable.  His comment:- "I have heard your voices. They have inspired me and personally I intend to do what I can to reduce my own impact on the planet"  gives me the impression he regards himself as a preacher to those of us who consider these law breakers as embryonic fascists seeking to impose their opinions on the rest of us by any means they consider necessary. 

He is not only a district judge.  Stephen Leake was appointed to the Sentencing Council on 2nd May 2022. This sermon on the bench was a disgrace to his office.  It is an affront to those whose lives and livings were considered so called collateral damage to the offenders` extremist views but it is also a warning that there have been, will be and currently are judges who will use their positions either for their own aggrandisement or to further the will of the state.  A supervisory office whose activities are shrouded in secrecy  seems to be a compliant accompaniment in all this. 

Of course those remarks by Leake have precipitated glorifying comments of their comrades by self styled anarchists  calling themselves Insulate Britain:those who would align themselves with true heroes of the past who made this nation truly a better more civilised society. This is the country suffering from the effects of a savage war in Ukraine and the results of a political system falling apart.  Others might view the situation as the perfect time for a cultural revolution  British style.  

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. 

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". 

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.