OF COURTS AND CARTOONS

It has been few  weeks since the rumblings  caused by a cartoon featuring Jesus and the Prophet Mohammed worn by students on T shirts at a Freshers` Fair in January.   It has been a week since these rumblings caused an eruption  of protest owing to the aforesaid cartoon being censored before being shown to T.V. audiences in discussion programmes on Ch 4 and BBC2  because the programme hosts described it as possibly causing offence to some viewers.

Last week a defendant in crown court who insisted on wearing a full face veil (her normal garb) were she to give evidence in her own defence,  refused to enter the witness box after being informed by the judge that her evidence could only be presented if the jury could indeed see her face.  She was on trial with her brother.  After deliberating for only twelve hours the jury was unable to reach a verdict.  Both were discharged and shortly afterwards she returned to court to plead guilty.  She is yet to be sentenced.  No further action is to be taken against her brother who also had been charged with witness intimidation.  This case is the most disturbing so far that I can recollect where the veil issue has been fundamental to the judicial process.   The resultant guilty plea followed by the dropping of all charges against the brother co-defendant might be thought by some to open a can of theological,  social and legal worms. 

On 6^th October 2010 I posted as follows:-

 “The Judicial Studies Board has recently published in 45 pages “Fairness in Courts and Tribunals: A summary of the Equal Treatment Bench Book”.
Considering this guidance is aimed at judges and magistrates [and others involved in the courts system] much of it is like feeding a grown man….oops……a grown person of either or indeterminate sex…….with a spoon. However where perhaps guidance might be very useful; on the subject of face covering the message is vague. Perhaps that is at it should be. Judges and magistrates must be able to use their discretion. Society expects that discretion to be exercised wisely. The consequences are grave if that facility is found wanting. The relevant paragraphs re the veil are copied below."

For those Muslim women who choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity and the woman’s involvement in the criminal, civil justice, or tribunal system (as advocate, witness, party, member of court staff or legal office-holder) may well have a significant impact on her sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals. This is of particular concern for a system of justice that must be, and must be seen to be, inclusive and representative of the whole community. While there may be a diversity of opinions and debates between Muslims about the nature of dress required, for the judicial system the starting point should be respect for the choice made, and for each woman to decide on the extent and nature of the dress she adopts. Any consideration concerning the wearing of the niqab should therefore be functional and appropriate to the circumstances of the particular case. The primary question is: what is the significance of seeing this woman’s face to the judicial task that must be performed? How does the ability or not to observe her facial expressions impact on the court’s decision-making, given her particular role in the proceedings? A distinction can be made between situations where this may be useful or important (for example, when assessing the evidence of a witness, particularly one whose evidence is in dispute), situations where it is essential (for example, for purposes of identification), and other situations where it may not be of any relevance (for example, for court clerks or ushers or where formal evidence which is not disputed must be given by a witness).

Victims or complainants. It is important that people are not deterred from seeking justice or from getting a fair hearing as a result of exclusion from the court process. Where possible a woman wearing a veil should be permitted to give evidence, either in court in her veil, or with the assistance of screens, video links or, in appropriate cases, by clearing the public gallery if she is happy to remove her veil. The most appropriate course will depend on the issues in the case. As with any consideration of permitted special measures, this is a point on which a decision should ideally be reached after discussion at a case management or preliminary hearing, rather than at a final hearing in open court. A short adjournment should be given to enable the woman concerned to seek guidance.

Witnesses or defendants. Similarly, a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses and may affect the quality of evidence given. The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence. Again, special measures may be available to mitigate the difficulty.

Advocates. The starting point should be that an advocate wearing a full veil should be permitted to appear wearing her veil. The interests of justice will be paramount and you may need to consider whether, in any particular circumstances which arise, the interests of justice are impeded by the fact that the advocate’s face cannot be seen or (if this be so) the advocate cannot be heard clearly.”

A further ramification of this cartoon controversy is that the Lib Dem parliamentary candidate and devout Moslem Maajid  Nawaz who supported the publication of the drawing has been at the receiving end of death threats and a concerted attempt to oust him as his party`s 2015 general election candidate for   Hampstead and Kilburn.  Until the horrific murder of  Lee Rigby by a self confessed “soldier of Allah”  such threats might have had only little significance for those threatened. That now is not the case.  Statements from police  that returning British Moslems from Syria are liable to face arrest  have probably ramped up the threat level to those of that faith who  speak out against their co-religionists` Saudi sponsored Wahhabism.




The secularism of the country`s legal system is under threat.  Courts offer those whose religious beliefs preclude their taking an oath on a holy book eg Orthodox Jews,  the opportunity to affirm.  I do not think I have ever sat on a case where a witness of Arabic appearance, identity or name ever declined the Koran in preference to affirm even when that witness has given evidence of activity contrary to his faith.  That is perfectly understandable.  Many who swear by the Gita, New Testament or the Hebrew Bible also admit to practices against the tenets of their religion`s founders.  Perhaps the thinking and philosophical processes which initiated the Protestant  Reformation of the early 16^th Century and subsequent divisions  or the breakaway from Orthodox Judaism by reformists in the mid 19^th and 20^th Centuries  have yet to reach sufficient momentum to allow those Moslems of similar inclinations to have the courage and/or will  to follow a similar path. 




For every Justice of the Peace his/her next sitting could be that which delves deep into the way s/he considers that secularism must defeat the type of narrow mindedness which followed the Reformation and killed tens of thousands of Christians across Europe just because their understanding of Jesus Christ and His place in their society was in opposition to that of their fellows who believed in the same saviour.  Colleagues in Leicester found themselves in just that situation in 2010.  There are likely to be other unreported examples.  With the repeal of insulting language as a basis for a s.5 charge I hope that those who might  feel offended in future will come to understand that the country of  Hogarth  and Peter Brookes via Blackadder and TW3 exists in its current form from the very freedoms allowed those purveyors of occasionally offensive social humour.

MEDIA COMMENT BY MAGISTRATES

I have commented more than once of the Senior Presiding Judge`s advice to magistrates that they should not blog.  His advice is also that we J.P.s should be circumspect in our public comments to the media.  Where then does that leave my J.P. colleague Abid Sharif who has made a great deal of noise in the Daily Mail after having had the dreadful experience of having been burgled?   His comments might be echoed by many on or off the Bench but should they have been made?

EXOTIC POLICE CARS OF THE PAST: AND THE PRESENT?

This week sees the return of  the police series based upon the activities of a police inspector whose patch is Northumberland and Durham in the mid 1960s.  There`s nothing better to evoke a past era on screen than the director`s choice of cars of the period; more than any other prop,  well chosen vehicles inform  the viewer immediately that  they are being taken to times past.  George Gently drives a 3 litre Rover  and his sergeant an MGB and laterally a Ford Corsair.  The scenes around the police station have various police Ford Zephyrs parked. 

Over the years police forces have splashed out on various high powered cars for their high performance capabilities.  It is hard to believe now but in 1964 whilst Sergeant Bacchus was tearing up theA1 in his MGB the Metropolitan Police were cruising about in Daimler Darts.  MGAs, MGBs, various Jaguars and assorted Rovers and BMWs have been bought for constabularies up and down the country.  Arguably their excessive costs could be justified by the circumstances of their times.  Cars used by everyone from fugitives to families were progressively becoming faster.  An expanding economy released vast increases in government spending including the modernisation of the police.  Police numbers, until the recent redundancies,  were twice the level of the 72,000 in the 1960s. With spending restricted on all aspects of the law `n order departments it is somewhat surprising, that even supposedly on loan for display only,  a McLaren Spider 12C decked in police livery is the feature of a publicity shoot.  The McLaren Spider 12C has a 3.8 litre twin-turbo engine with 600 brake horsepower, surely enough to make even Jeremy Clarkson quiver. A police spokesman confirmed the car was on loan from McLaren for the motor show and would not be used on the roads.  With previous history to go by what are the odds some bright spark will suggest the car joins its predecessors patrolling on the M1?   

EXCEPTIONAL HARDSHIP SHOULD BE “EXCEPTIONAL”

Drivers who accumulate 12 or more penalty points within any three years are liable to a mandatory disqualification for a minimum of six months. This is a powerful deterrent to repeat offenders. Legislation regarding disqualification for totters allows magistrates not to disqualify or to reduce that period only if they are satisfied having regard to all the circumstances that there are grounds for mitigating the normal consequences of the conviction the most common of which put forward is the potential effect of the disqualification on the offender; namely that exceptional hardship would result.
 
Magistrates should know all about exceptional hardship as it applies to driving disqualification……….or at least their legal advisers ought to know. Practice suggests that the loss of employment by itself is unlikely to satisfy the “exceptional” test. Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospects [per Lord Hope in Brennan-v-McKay].
 
It is important to note that offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within three years of conviction {sec. 35(4)(c) RTOA 1988} It follows that detailed court records must be made of the exact circumstances which justified any finding of exceptional hardship.

However the Sunday Times in an article on this subject a few years ago threw some doubt on those assumptions. As that newspaper is now behind a paywall no link can be given but amongst other things it quoted the following although there was subsequently some dispute as to the statistical analysis employed.:-

31,110 drivers disqualified for reaching 12 points in 2009
11,228 is the number of drivers reaching 12 points not disqualified in 2009

From the above figures more than 26% of drivers accumulating 12 points were allowed to continue driving under the exceptional hardship guidance. From my own experience I find that ratio astonishing. The conclusion on the surface appears to be that misplaced application of the guidance is possibly being applied. Perhaps more formal guidance is required from our lords and masters.
 
Wales-on-Line reported a recent case  where the exceptional hardship argument was successfully applied. The organisation Brake offered its own reflex - action comments as it usually does in controversial road safety matters excoriating the bench with its  vitriol of metaphoric tar and feathers. Spokespersons of HMCTS are well versed in the art of spinning comment often lacking accuracy or knowledge. In the report s/he demonstrated her/his ignorance being quoted as saying, “Magistrates can use their discretion to not enforce a driving ban if doing so would cause exceptional hardship, such as losing a job (my italics) or the ability to care for a dependant. A fine will still be enforced”. It is precisely this error which leads perhaps to misplaced decisions in the retiring room.
 
If possible unemployment alone succeeded as a reason of every exceptional hardship application the deterrent of disqualification from driving would disappear overnight. The motto is that those for whom a driving license is of utmost importance should ensure their driving  behaviour remains within the law.

KEEP YOUR INSULTS SHTOOM UNTIL SUNDAY

Although hardly as world changing as Halley’s prediction that the comet subsequently named after him would return at a pre determined year (although he did not live to see it) last year I posted twice {previous site host}  that s.5 of the Public Order Act would be amended.

1st April 2013
In common with many within and without the legal fraternity I have principled reservations with s.5 of the Public Order Act. The punishment for being convicted is in the scheme of things relatively modest; a maximum fine of £1,000. Convictions can be based on proving words were insulting and likely to cause distress and it is within those boundaries than the controversy lies.

A essay by Philip Johnston for CIVITAS has a lot to offer for a dank and cold Easter Monday to those who feel that this country`s reputation for free speech is gradually being eroded. Leveson has really changed the rules of the game. Abolition of s.5 might just indicate that there are still some who believe in free speech.



4th May 2013
Disregard the admitted drunkenness of the offender and consider the words “a bunch of sheep - shaggers”. Do they constitute an offence under s.5 of the Public Order Act? An English visitor to Wales admitted not to the simple charge of s.5 but the racially aggravated version of such. It is not unlikely that s.5 will soon be abolished. If this case is quoted as an argument for its retention by Welsh people of a delicate nature it will be because they have forgotten the British tradition of the lampoon ....” publicly criticise (someone or something) by using ridicule, irony, or sarcasm”.

This Sunday February 1st “insults” will be removed from the sanction of s.5. Not before time the change means the offence now applies only to “threatening or abusive words or behaviour…likely to cause harassment, alarm or distress”. S. 4A, which relates to the intent to cause harassment will still include ‘insulting’ in its wording.


So readers, keep shtoom on all these sheep shagger comments until Sunday.

FINES @ BAND D & BAND E

Fines are the most common sentence passed at court accounting for around two -  thirds of all sentences handed down by the criminal courts (66.5 per cent in the 12 months ending September 2012). Following the Criminal Justice Act 2003  the lower courts were given the power to impose fines in two higher bands;  Band D (where a fine is imposed as a direct alternative to a community order)  can be up to 300% of relevant weekly income and Band E (as an alternative to a custodial sentence) which can be up to 500 % of relevant weekly income.

 In the 12 months ending September 2012, there were 816,600 fines handed down (99.8 per cent of these being issued at magistrates’ courts), a decrease of 5.2 per cent from the same period a year earlier and the lowest number of fines handed out over the last 11 years. The majority of fines issued in the 12 months ending September 2012 were for summary offences with only 6.6 per cent issued for indictable offences. The fine rate of 66.5 per cent is broadly consistent with that seen in the same period a year earlier  and has declined from a peak of 70.3 per cent in the 12 months ending September 2004. The decline has been due to a decline in prosecutions and subsequent conviction for summary motoring offences – the offence type for which fines are most commonly given. Although courts have been directed that they must consider fining as an alternative to community and custodial penalties  I have been unable to find an analysis of the various fine levels imposed.

For the first time that I can remember my last sitting included a case (motoring) where defence counsel pleaded on her client`s behalf that a financial penalty be employed as a suitable disposal  and not the community penalty indicated by the Sentencing Guidelines such a sentence, if imposed, being a threat to her client`s employment status.  After some discussion we concluded that it was indeed a conclusion with which we concurred.  Accordingly we fined the offender at D level; £300 being paid immediately and the full four figure balance within seven days. 

Official guidance is that these higher fine levels should be paid within 18 months (Band D) and two years (Band E). Personally I consider the timetables too generous for those bands considering the reasoning behind them and in a future similar case were such a plea to be made would explore very very carefully an offender`s stated income where immediate or short delay in payment is not offered.

FORECASTING PRISON POPULATION

The government has, this morning, published its document “Prison Population Projections 2013 – 2019 England and Wales”.  Generally it is a statistical analysis containing in simple English the caveats, but, perhaps, if, depending etc etc etc.  The reasons for such imprecision are of course because the inputs to the final actual numbers of those incarcerated at any future time are almost infinite.  From such bases as licensing hours to the numbers of males born between 1995 and 2001 to the  success or most likely failure  of  Mr    Grayling`s Transformation of Rehabilitation to the government`s efforts to secure convicted EU nationals in their own countries, to an expansion of magistrates` sentencing powers,  to……………..

With a pre determined number of prison places, even at rates admitting of overcrowding, government will tailor the results to suit its circumstances.   One notable admission from the document is inclusion of forecasts made 3, 5 or 7 years ago.  Perhaps such forecasts were so inaccurate that their resurrection would be, at the best interpretation, unfavourable.   

7 FACTS AND 1 OPINION

FACT: It has been raining a lot over most of the country in the last couple of months.

FACT: Rainfall in Colchester December 2013 = 10cms

FACT: Rainfall inColchester January 2014 =  7.75cms

FACT: To undertake the backlog of road maintenance required in the U.K. would cost almost £13 billion.

FACT: Essex County Council HighwayMaintenance is a masterpiece of the policy of “overwhelm by verbiage”.

FACT: s.3 of the Road Traffic Act 1988 has the provision, “if a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.”(my italics)

FACT: A motorist in Colchester  has been charged under the above provision of the Road Traffic Act with splashing schoolchildren by driving through a puddle.

OPINION:What a waste of public funds. 

BIND OVER

As is often the way an inquiry from a friend about a subject that s/he assumes that one knows intimately often demonstrates that even so called experts or professionals like yours truly have a gap in their knowledge. And so it was recently when my old friend Jean telephoned to tell me her son had been bound over for one year in the sum of £100 at the local magistrates` court. After brief preliminaries I made what I hoped was a good excuse and promised to call her back later that day.

It had reminded me of a friend`s case when I was a student. The brief details were that he was in a flat share at university and had been assaulted when an argument over bill sharing had got out of hand. His pride had been injured more than anything else and on the advice of a law student friend had taken out a prosecution against the aggressor. At court he made his case as did his now former flat mate with no other witnesses called. The chairman told him that unless he withdrew the allegation both of them would be bound over. He withdrew the allegation.

In my years on the bench I have not been party to a bind over decision. I have not received any information on such a disposal except that which I sourced myself. It is not in the Guidelines. So reading in the North Devon Journal of a man accused of assault and theft being bound over I thought it might be of interest to colleagues to read the CPS legal guidance.   The Wikipedia entry copied below although not sourced seems fairly comprehensive and is a helpful narrative.

Magistrates can bind over to be of good behaviour or to keep the peace, any person such as a defendant, witness or complainant. This may happen where the case involves violence or the threat of it. Sometimes the prosecution will drop such a charge if the defendant agrees to be bound over in this way. No conviction is recorded if the matter is dealt with like this because such an order is regarded as a civil matter.

A magistrate has power to take measures to prevent a likely breach of the peace and, on evidence produced before him, may require a person, on pain of six months’ imprisonment on refusal, to enter into a recognizance and find sureties either to keep the peace or to be of good behaviour. The procedure is called ‘binding over to keep the peace’ and upon complaint by any person the magistrate may hear the complainant and the defendant and their witnesses, and if he deems fit may make the order.

Binding over is a precautionary measure, to be adopted when there is reasonable ground to anticipate some present or future danger. It is not a conviction or a punishment. It should not be applied for in respect of an act which is past and which is not likely to be repeated and should not be considered to be an alternative measure in those cases where the prosecution have insufficient evidence to substantiate a charge.
Applications to bind a person over may be made in a variety of circumstances e.g. minor assaults inside private premises where there are no truly independent witnesses, continuing domestic disputes, minor cases where it is obvious that both parties are at fault with no other evidence to support either party in their counter-allegations, etc..

The recent  case reported in the North Devon Journal above seems to be a practical example of this disposal although an older case is more explicit.  It is surprising that Google search produced cases in which West Country magistrates are quoted in both examples. 

POLICY IS A PENDULUM

For some reason the minority faction AKA the Lib Dems has been very quiet over the havoc being visited upon the Justice System by the actions of C.Grayling and T. May.  Once again he who presumes himself fuehrer of that party has allied himself with Grayling about what must be done to reduce re-offending by the young.   With yet another missive from the spin doctors at Petty France, London SW1 we are given an insight into their plans:- “Under the plans to transform youth custody, a pioneering Secure College will be built in the East Midlands. The fortified school will provide young offenders with strong discipline, while focusing squarely on rehabilitation and education. The Secure College will have a head teacher or principal at the core of a leadership team made up of educational professionals and offender managers”.  The complete text is here.  I am old enough to remember what was meant by approved school and borstal.  Wikipedia helps out……..

”Approved School is a term formerly used in the United Kingdom for a residential institution to which young people could be sent by a court, usually for committing offences but sometimes because they were deemed to be beyond parental control. It is similar to a reform school in the United States. They were modelled on ordinary boarding schools, from which it was relatively easy to abscond. This set them apart from borstals, a tougher and more enclosed kind of youth prison.

“A borstal was a type of youth detention centre in the United Kingdom.  borstals were run by HM Prison Service and intended to reform seriously delinquent young people.  The word is sometimes used loosely to apply to other kinds of youth institution or reformatory,  such as Approved Schools and Detention Centres. The court sentence was officially called "borstal training". Borstals were originally for offenders under 21, but in the 1930s the age was increased to under 23. The Criminal Justice Act 1982  abolished the borstal system in the UK, introducing youth custody centres instead”.

I`ve always believed that almost every type of government policy is as much dependent on fashion as is haute couture or the car industry etc etc.  They follow the swing of the pendulum; the period is all that varies.

TAKING THE QUEEN`S SHILLING

With the recent government furore over barristers` withdrawal of labour and attempted discrediting of the criminal Bar for its allegedly high incomes still fresh in its memory the Ministry of Justice yesterday trumpeted the appointment of two Queen`sCounsel to the new Public Defender System.  The setting up of this service last year was not accompanied by the usual barrage of press releases and media interviews.  It was indeed a “stealth” operation.  The newly appointed QCs will apparently be on a salary of £125,000 p.a. which seems about the equivalent of a fee income for a QC in chambers of £200,000 - £250,000 and not a lot different from the salary of a District Judge. Previously this lowly and unpaid member of the judiciary  had the impression that when QCs decided to apply for salaried and pensionable appointments it was as judges.  Be that as it may one of the newly appointed Public Defenders,  Gregory Bull QC was  not reticent in his criticism last year of the changes (now being applied) to the Legal Aid system in this country.  Indeed he was scathing in his remarks to Wales on Line which reported in June, “He said many people will be faced with financial ruin in a bid to defend themselves in court and the Criminal Bar as we know it would be “decimated”.  The complete article is available here.

No doubt he will live to regret his candour and be unlikely to repeat such remarks now he is in receipt of the Queen`s shilling.

EVERYTHING BUT THE KITCHEN SINK

On the few occasions when I am sitting in our remand court and on the 60% of those sittings when I am in the middle chair the business of actually running what is still termed a “magistrates` court”  comes alive…..at least for me.  Decision making is usually made with the confirmation of colleagues` opinions.  Having their trust and co-operation goes a very long way to what can only be described as a successful sitting.  Having them prepared with their ipads or equivalents pre programmed is of inestimable assistance. We retired only on one occasion  and that for about three minutes.  Verbal exchange with lawyers of both sides can be revealing.  There are those defence advocates who still behave as if we are, so I have been informed, “Muppets” and who address us in such a form that they consider the result a foregone conclusion or who fail to realise that their references to “Picton” or “Povey”  are cases of which we do indeed have knowledge. There are still occasions when CPS prosecutors consider that their institutional failings are a cover for adjournments.    

My last such sitting had the usual mix of overnight custody cases the most interesting of which was a UK citizen arrested at a nearby airport two days previously having just arrived from a country within the E.U.  She was charged with an indictable only offence allegedly committed two years previously and appeared before us represented by a very eloquent barrister.  His client had been sentenced to a twelve year stretch some fifteen years ago and upon her release had then emigrated to said European state where the weather is kinder to over fifty year old ex villains with or without their ill gotten gains.  We were surprised that within two days of her arrest police and CPS were confident enough to lay a very serious charge on her.   Her counsel did his very best offering everything but  the kitchen sink in acceptable conditions for her to be remanded on bail. Unfortunately they were not enough to allay our fears that she would, given half a chance, abscond.  No doubt a judge at Crown Court has now heard his plea on her behalf.  Sometimes our lack of continuity in a case can be a cause for regret but on the other hand………………….

SUMMARY JUSTICE TRANSFORMED OR BEING SQUEEZED DRY?

Every so often one can read in one local newspaper or another the furore over the imminent closing of a library.  When the closure is of a local hospital`s maternity unit or A & E department the noise of resistance becomes deafening.  Yet about 100 magistrates` courts have been closed since 2012 with never a whisper. The reason for the silence of course is that most people have no contact with the courts system.  It is a place of compulsion in one form or another and not of compassion.  My own opinion has been posted here from time to time.  To date, outside the specialist media,  little has been mentioned of the historic changes already being made and contemplated for the future of the lay magistracy.  There has been virtually no support from the legal profession to counter the increasing numbers of District Judges(M.C.) being appointed.  Considering that probably a majority of D.J.s past, present and future comes from the ranks of solicitors the self serving non opinions of the Law Society are understandable.  Criminal lawyers with diminishing workloads and incomes are fighting like ferrets in a sack for the limited numbers  of Deputy District Judge appointments offered every year.  The Bar, which rushes to the barricades when jury trial is questioned, stays silent when discussion is broached on the ethics of a single professional judge dealing out summary justice.    The general press has virtually ignored this  changing face of summary justice which is being squeezed dry like a lemon.    

Two years ago a former magistrate founded the charity Transform Justice.  Last year it published a thoughtful treatise on the lay magistracy.  For some reason it was ignored until it was picked up yesterday by The Times (behind its paywall). It provides a remarkably lucid and coherent account of where we are as magistrates and how we got there.  It is available here.

SQUIRRELS, THE LAW AND J.P.s

I have in the past posted of the RSPCA and the terrier like manner in which it has harried those who have the temerity to oppose its legal zealots. Its campaign against those who have adapted their fox hunting procedures  to be within the legal requirements imposed upon them are still subject themselves to legal pursuit.  Last year a pensioner pleaded guilty to killing a squirrel, not of the protected red variety but a common grey pest which is related to the rat and almost as destructive,  and subsequent to a pre sentence report presented to court,  magistrates fined the defendant £140 and banned him from trapping squirrels for ten years.  It is unclear whether the case was prosecuted by the organisation which arguably gives the impression that on occasion it cares for animals more than humans or the CPS. Be that as it may the legal question for the bench was the humaneness or otherwise of the animal`s dispatch from this world.

These animals are good for nothing except extermination, fur gloves or roadkill for American survivalists. They do no good at all in suburban gardens. Indeed they destroy plants, flowers and damage other vegetation. They can be dangerous. They invade lofts. If they enter homes seeking food they can terrify babies and toddlers or worse. Even in parks they can be vicious. The standard method of killing them is with a .22 air rifle after trapping. Squirrels have a thick hide and care must be shown in targeting the cranium which is easier said than done. I am indeed concerned about the findings in this case. I must admit to having a vested interest in this topic having suffered  house invasion many years ago by one of those creatures which I eventually dispatched with an air rifle pellet to said cranium.  I am not the first magistrate to be so troubled by this bushy tailed rat.  A  J.P. colleague who lives in Hartlepool  recently had a worse experience than I.

A most authoritative document on this topic is “Review of methods of humane destruction of grey squirrels (Sciurus carolinensis)” published in 2009 by Scottish National Heritage.   If readers have neither the time nor the inclination to read the whole paper turn to para 3.1.2 and read from there.

WHEN I WERE A LAD

Not too long ago I was in conversation with an elderly gentleman who actually began his retelling to me of an old story, “When I were a lad……..” If nothing else it made me realise my grey hairs were of little significance.  But I`ve been doing this job as J.P. for long enough to note that an undercurrent of changes over the last couple of decades has swept many along in its wake without their even noticing.    I am not referring to the changes in legislation which have salami sliced defendants` rights of innocence until proved guilty, increased the risks to individual liberty, procedural changes which some might think have emasculated sentencers`  options and placing victims as the be all and end all around which all else must orbit but to those attitudes and thinking processes which drive us all unseen and unheard until……………

We had had enough down time to consume a three course dinner never mind another cup of coffee when we were asked to hear a late application for special measures.   As is often the case in such scenarios the CPS agent began to relate the facts until she was told by yours truly to first make an application for the matter to be heard out of time.  For a moment her composure slipped as if such a detail were almost a foregone conclusion.  After we had  noted that the case management form dated in September (this was a December sitting) had  not been marked for special measures she told us that the complainant in this non DV assault had informed the officer in the case in October that she wanted screens. The delay in application was for the  simple reason  that the CPS had overlooked the case.  We allowed the application by a majority decision and heard the substantive arguments including defence`s objections and our L/A`s  remarks to consider if witness evidence would be enhanced by screens etc etc after which I consulted my wingers one of whom was awaiting his first appraised sitting  as a chairman.    To my surprise he turned to me and said we should ask our L/A her opinion on what we should conclude.  My reply not surprisingly was that we were the people put here to make that decision; not the clerk.  Unfortunately that was not enough and he persisted to such a degree that I retired the bench from the courtroom.  In the corridor   I made it very clear that I was disturbed that having been a magistrate for over five years he was still unsure of where his responsibilities lay.  Subsequently  special measures were granted.

I have firm memories of my own first five or six years on the bench.  Generally the middle chair`s occupant was a confident,  articulate and when necessary a dominant personality.   My contemporaries  of the period and I were always aware when we were occasionally  listed with chairmen who were bereft of these qualities.    Perhaps modern selection is fundamentally of a different (poorer) structure because I remember in court when I were a lad…………………

LET SLEEPING DOGS LIE

I had first sat with Jane three years previously when she had only been in the job a few weeks.  It was obvious to me then that she would be a first class magistrate.  And so it was a pleasure not long ago to note on the sign in sheet that she and I constituted a two person bench that morning. 

By the time I had poured myself a cup of tea she was already in the retiring room with two copies of our court list.  “I haven`t ever sat in a council tax court,” she said as I sat down.  I expressed my surprise and wondered what the odds against such an omission could be.  Council tax courts (and related business rates courts) are generally greeted by colleagues and me with little anticipation.  99% of the time they are truly a case of rubberstamping applications brought by local councils of liability to pay the tax.   Sitting in such courts can sometimes be frustrating but the legislation allows us virtually no powers to intervene except if there appears to be an abuse of the process or the council fails to show that there is actually  an outstanding amount for which the defendant is indeed liable.  I explained the process in general to Jane and she resigned herself to an uneventful hour ahead.  Our legal advisor appeared and told us that before we could get to the bulk list there was a defendant appearing to contest the liability order for her owing business rates.     Accordingly at 10.00a.m. we entered court.

The defendant was an elderly lady who, we learned, had recently sold her optician`s business;  lock, stock and barrel including the freehold premises which had been vacated some time prior to the sale being completed.  It was around the vacant period that the dispute revolved.  After some forensic analysis by the bench it became apparent that not only did the defendant not owe a penny in business rates; she had actually overpaid by a four figure sum.  In spite of all this the non lawyer representatives of Capita plc, the outsourcing monolith which collects these taxes for councils, gave us looks of astonishment when the pronouncement was made.  It seemed they were unused to losing an application.  At our brief post court review our L/A inquired whether we wanted to report them for contempt.  He had overheard them exchanging derogatory remarks as to our sanity…..”Are they barking mad”?  We decided to let those sleeping dogs lie.   

TREATMENT; NOT PUNISHMENT

We all know that tradition tells us that there are seven deadly sins……no more; no less.   Judeo Christian morality is based upon ten commandments……not nine or eleven and it is a much quoted maxim that there are only seven stories in fiction and that all others are based upon them.  In similar fashion of there being very few basic tenets underlying criminal activity alcohol and/or drug dependence account for around 70% of all crimes committed.  Considering the cost in tax payer pounds and individual misery for those and their families  involved it is  a blight on our society that the most that can be said for government policies is that at least they don`t exacerbate the problem. Every day in every magistrates` court benches are  faced with impoverished and often homeless alcoholics who commit petty theft with or without violence to   achieve their requisite daily level of inebriation.  The probation services offer various alcohol treatment programmes but as is well known abstinence, the only long term  treatment,  requires a willingness on behalf of the  drinker to embrace lifelong sobriety.  Only too often that willingness is lacking and repetitive criminal behaviour does what it says on the lid; it repeats.  A perfect example of society`s impotence in this regard is reported in the Grantham Journal but  every local newspaper features similar stories with unfailing regularity.  And like the proverbial iceberg most crimes with an alcohol input go unreported and undiscovered somewhere in the myriad of government statistics.   

The Mental Health Act allows forced confinement to specialised units for those whose behaviour is a danger to themselves and/or others.  There are many provisions within the legislation to ensure that use of this onerous power is justified.  On appropriate occasions this allows certain offenders to be deviated from the criminal justice system to the NHS.  I am firmly of the opinion that similar provision should be available for those suffering from alcoholism when that affliction brings them, as it so often does, into conflict with law and order.  The initial costs would be but a drop in the ocean compared with the long term savings of pounds and people.