MUSINGS ON THURSDAY

We are all aware of the situation when we contract some disease or illness which requires treatment and rehabilitation over a relatively short period when the problem can be described as acute. However on the scale of discomfort a “permanent” itch, ache or irritation can be equally debilitating. And so it is here today. I am referring to four examples of legal issues which I  have found to be a disturbance to my equilibrium:  Itch, ache or irritation?.....you can judge.



Most offenders are punished by the imposition of a financial penalty. As posted on the Ministry of Justice`s website the numbers are:-



“Fines are the most common sentence passed at court, accounting for around two-thirds of all sentences handed out by the criminal courts (66.5 per cent in the 12 months ending September 2012). The fine rate is consistent with that seen in the same period for the previous year, 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. The latest figure of 816,600 fines represents a decrease of 5. 2 per cent compared to the 12 months ending September 2011, and the lowest number of fines handed out over the last 11 years.”



What an example of the spin doctor`s art of obfuscation by omission. The total amount of unpaid fines is estimated at £2 billion and rising. In addition over £130 million  annually is written off because the state cannot find or squeeze the cash from offenders. Perhaps the Secretary of State instead of pursuing his rehabilitation of offenders by results policy with the decimation of the probation service as a by product or playing hardball with G4S and SERCO he would be more profitably employed in root and branch investigation of the whole process of fines from imposition to collection or otherwise as the case may be.



The ASBO is IMHO a nasty concept; a civil penalty followed by criminal proceedings if breached. It is being consigned to legal history only to be replaced by an even nastier process; the IPNA....injunction to prevent nuisance. Its proponents state that it will be an effective deterrent against ,eg, begging gangs. But just for a moment consider what other aspects of our daily experiences could thus be so construed. The chimes of an ice cream van once or twice daily could be “annoying” for some. A pavement evangelist who is convinced that beans are a sure way to hellfire and damnation could be annoyance. High spirited children, of which I was once one, being children but perhaps rather noisily on a summer`s evening in a middle class estate could conceivably fall foul of a couple of miserable householders. Such is the way our laws are progressing. Easy targets make for easy statistics of success. And a person who should know is the Chief Constable of Derbyshire amongst others.



Paul Ford, the Secretary of Police Federation National Detective Forum, said: “It would help if politicians would stop using crime statistics as the be all and end all of the total success of policing and public safety. It’s misleading. It helps no one. “You can say that crime has gone down one week but not mention that crime went up the two weeks before.”



Former Metropolitan Police detective chief superintendent Peter Barron said the service had to stop having an aversion to crime rates increasing. He added: “It needs to be seen as enhancing the intelligence picture. If a crime isn’t counted, it’s missed completely.” Mr Jenkin ( Chairman of the Public Administration Committee) even apologised to the officers “on behalf of all politicians of all parties”, who he said had “created this atmosphere where targets must be achieved”.



I have blogged in the past that this country is coming to resemble a banana republic of 1970s South America. Public officials with no ability, corruption at high levels in public service, self serving oversight bodies and political policies offered for partisan interests with national betterment a distant second requirement seem to be de rigueur.



« Je conduis habituellement à droite donc ma culpabilité dans cette affaire de conduite imprudente est moindre. » could have been the words of Alexis Fleury of Orleans in the Appeal Court earlier this month. Or in English..........“I usually drive on the right so my culpability in this matter of careless driving is lessened”. And their Lordships agreed with him. Whilst the principle and logic of the decision is immediately comprehended where does it end? If I were a resident of Outer Eurasia where use of a mobile phone whilst driving is not prohibited would that lesson my culpability using one on the Outer Circle? Readers will have their own analogies in mind without much effort.

GUILTY?

Having an enforced two hour lunch break is not usually welcomed by me or most of my colleagues.  As once weekly volunteers we are not in the business of working fewer hours for more pay.  The morning sitting over listed as is the norm with three trials ended for various reasons beyond our control about noon and there being no remand courts at that building since the great amalgamation we had no bail, breach or sentencing crumbs to feed on.  Some colleagues in such situations manage to make an unscheduled visit home, others have been boy scouts and have prepared for such situations by bringing in all the necessaries to do some of their day job.  The rest of us have an early lunch whether pre prepared or taken at a local café and wonder just to what depths the efficiency of our court system can reach. 

And so at 2.00p.m. we entered courtroom 2 with just limited expectations that we  would be able to actually achieve something.  Domestic violence cases are for this J.P. at least somewhat dispiriting.  Having been born into and having a stable family life an insight into some dysfunctional relationships is a required but bleak  experience.  Owing to a variety of seemingly  untenable reasons we were told that there would be a late special measures application for screens. This dilatory attitude of CPS to basic functions has become more frequent.   After a brief huddle we decided to allow the application and subsequently in the interests of justice sanctioned screens to prevent eye contact between alleged victim and her alleged assailant. As is the norm in such matters it was her word against his except we did not hear his.  Although, as we were shown, her statement clearly indicated that she was not going to give evidence against her partner she was called into court being ushered by a woman from witness support her reluctance being quite apparent. She barely managed to repeat the oath and from then her answer to every question from the prosecutor was that she was too drunk to have any memory of the evening in question when the assault was alleged to have taken place.  That included her questioning by the officer who took her statement.  That officer was not listed as a witness but a statement by him was put in evidence but nowhere within it was there mention of the sobriety or otherwise of the complainant.  An application was made that the officer be called.  Unsurprisingly defence objected; this was the fifth listing and at no previous nor on the case management form was any request for the officer`s  presence indicated.  We decided, however,  to allow CPS five minutes  to inquire of his whereabouts.  He was away on holiday.  The predicted application to adjourn and go part heard was received and to which we sustained the inevitable objection.  It took us less than five minutes to decide there was  no case to answer.  The complainant who had placed herself in the public gallery after leaving the witness box  whooped with joy. The defendant smiled broadly.  Considering he had been remanded in custody for the previous seven weeks that expression of relief was probably the most truthful statement we had seen or heard.

Understandably the Crown Prosecution Service`s  legal procedural considerations in DV differ from those where victim and defendant involved are strangers to each other.  There is no doubt in my mind that legal advisors and the prosecution system do not sit as impartially on such cases cf others.  The evidential burden has been reduced as a matter of political purpose perhaps to compensate for the years when such assaults were regularly dismissed by police as merely “domestics”.  My training as a J.P included much supposed statistical analyses from here and abroad  on how DV can and does often escalate from the almost benign to the deadly.  Whilst there might be some substance to all that information in the courtroom we must consider only the evidence presented.  I sometimes have the impression that the CPS is  bringing such cases to court based on there being more than a 50% chance of conviction  except subconsciously they are using the civil standard of probability and not that guilt must be established beyond a reasonable doubt.

PRESCIENT OR WHAT?

It is exactly four years ago that I posted my first thoughts under the headline title of this blog {at its previous site}.  That was almost 600,000 page views ago.  During that month, November 2009, I posted a further five times.  The content of four of them encompassed the excessive and inappropriate use of police cautions, the removal of defendant choice in either way offences, the re-structuring of ACPO and the previous  government`s indication of  its disdain for the magistracy at least in its current format.

It is only now, four years on, that the subject of cautions has become a topic of the general media with a likelihood that at least some form of brake will be put on this activity and that police will be made to apply it only under appropriate conditions as was envisaged in the first place.  But the old story of giving police limited powers and they will take them to extremes has been confirmed time and time again; the Terrorism Act being a case in point. 

LASPO has nibbled at the edges of the principle of either way offences and the pleading that follows.  I am unchanged in my belief that having battered lawyers into revolt over fees the last thing they would now consider would be effectively removing further fee income by fewer cases being heard at the crown court. However the principle is IMHO unassailable; defendants should have no right to choose mode of trial.  No other jurisdiction offers this concept.  And the argument over citizen`s  right to trial by jury has no logic when a single District Judge(MC) can preside over trials at magistrates` courts.

The current government is even more robust than its predecessor in its efforts to reduce the magistracy to a local form of arbitration and/or reconciliation panel. Justices of the Peace who, 20 years ago, more or less  ran their own courts, have increasingly become almost nonentities in the hierarchy within Her Majesty`s Courts and Tribunal Service. Government`s  ambition to have the  magistrates` court entirely under the control of a single District Judge(MC) is now a no brainer.  Of course there are denials all round from all quarters but like global warming it will be upon us the only caveat being that the time scale is open to debate.

And as for ACPO………probably the least said the better.

CONFUSION OF THEIR LEGAL LORDSHIPS

Interrogatively the utterance “are we coming or going” can be considered as being written or said without anger or accusation but substitute “they” for “we” and the phrase takes on a definite meaning of lack of confidence in the activity in question. And thus just as a new chairman is appointed to lead the Sentencing Council with intentions to carry on the prescriptive actions of his predecessor The Lord Chief Justice informs us that he is, in line with the procedures of his political master, putting the subject of wearing the niqab in court to public consultation.


My simple mind finds these two activities by such senior authorities confusing in their juxtaposition. Just what topic should be affected by so called public debate and what should be so heavily ordered as to remove the last remnants of any wriggle room for sentencers? I have my own thoughts on the niqab but I am today interested only in the thought processes of those great and good in the legal world. They all now are eg chanting the mantra of the victim being at the centre of the justice system. Whatever happened to the concept of the state being the impartial arbiter of punishment to fit the crime? Is a victim with no family to be considered a factor in the sentencing of an arsonist cf a mother or brother with a sad victim statement? Because the former has nobody grieving should the offender be dealt with any differently from the other criminal? Stranger upon stranger crime is a two way affair; neither aggressor nor victim is involved with any consideration for anyone else. I presume the theory is that of “outcomes”. This principle it could be argued was laid to rest recently in the matter of the successful appeal in R v Hughes (Appellant). Mr Hughes had been convicted of two offences under the new section 3ZB, namely for causing the death of Mr Dickinson by dangerous driving at time when he was uninsured and without full driving licence  but exonerated from any blame as to his causing the accident..


The matter of the niqab in court should not be one for me or any of my colleagues to make however strongly opinionated we might be; it should be directed by the Lord Chief Justice in the interests of justice. When parliament is extremely unlikely to debate a return of capital punishment to consider that the public should have a collective opinion on wearing of a contentious cultural garb is dangerous for our already precarious regard for the democratic process and equality for all before the law.


It seems coalition government leads to following from behind. Equivocation rarely begets satisfactory results.

TOO LITTLE TOO LATE FOR MAGISTRATES

It would be fair to say that although I have been a member of the Magistrates` Association  since my appointment it did not take me long to become disillusioned with that organisation insofar as its effect on me personally or the magistracy in general.  To be sure it had a bit of an ear to government by there being no other body with similar pretensions. Its hierarchy seemed to be populated by those of a similar outlook to the great and the good of Whitehall with whom there seemed to be the cordiality of a  gentleman’s club.  Perhaps St James was a more fitting address than Fitzroy Place where the incumbents would patiently await,  every new year,  recognition in the form of a gong.  However it is just possible that changing events have prompted changed thinking.

J.P.s` ranks have fallen about 20% in less than a decade and with it the income of the M.A. whose membership is about 80% of those eligible.  The penny seems to have dropped that the current top down structural system of  membership has little attraction for potential members.  I blogged  critically on 25^th October of the debate at the M.A. AGM on the taking of the oath in court. Notwithstanding that example there seems to be the possibility under its new chairman that the organisation has finally woken from its torpor and is confident enough to broach topics previously inconceivable.

Chairman      Richard  Monkhouse has opined that having a criminal record is not necessarily an obstacle to being appointed J.P.  Considering that it is estimated that 30% of men have such a record (including cautions) by the age of 30 his position is one of considering our society as it is and not as a place at the end of a yellow brick road.  Indeed a close and highly respected colleague now approaching retirement was disqualified from driving after a conviction for dangerous driving in his late teens.  This he duly declared on his application for the magistracy over thirty years later and good service was done by all in that he was selected. 

Perhaps Mr Monkhouse is finally beginning to realise that the magistracy is very close to being relegated within a decade to a para legal sideshow.  Perhaps this is a way to make contact with a wider audience than would usually be listening to such a spokesman.  Perhaps he is attempting to invigorate an organisation which has been in stasis for decades.  Whatever his motive for this initiative it is probably too little too late to change the course of government intentions but it is a gallant attempt for all that.  

MINORITY REPORT GUIDELINES

With the inevitable expected problems of the Crown Prosecution Service I find it somewhat uplifting when I am allocated to a non CPS court as was the case recently.  Cases are usually well prepared and advocates capable.  Of course being contracted for the purpose as many are the incentives are clear.  Disregard of planning conditions, appeals against council tax liability orders for businesses and saddest of all; failure to ensure school attendance were just a few of the cases we heard and upon which we adjudicated.  Our guidelines were our common sense and the range within which we determined culpability etc.  Such is the way the Sentencing Council is progressing we and more particularly the higher courts are more or less within a tick box culture where everything is assumed predictable and punished accordingly.   “Minority Report” and consequent disposals are nearer than anyone could have foreseen. 

THE HYPOCRISY OF s.146 (ALCOHOL SALES TO CHILDREN)

I joined our Licensing Committee in 2003/4. I have never been called upon to sit as a licensing magistrate. In 2005 licensing matters were transferred to Local Authorities, via the creation of ‘Licensing Authorities’. Many learned individuals and organisations  counseled against such a transfer. Sadly the Jeremiahs have been proved correct. It is hardly coincidental that problems of excessive alcohol consumption have since then become almost a daily feature of the printed media and a common subject for TV programmers. And this is not mere anecdote. Medical statisticians have their own evidence of the increasingly younger age at which liver disease is appearing in patients. The man from planet Mars sitting in any public gallery of any magistrates` court in England and Wales will quickly be appraised of the relationship between criminal activity and alcohol. So in the usual British way belated political so called initiatives, sticking plaster solutions and some shrewd marketing practice are in the news.

Last year the Police Reform and SocialResponsibility Act 2011 became the law of the land.  As far as selling of alcohol is concerned the following are the two main measures designed to reduce the impact of drunken offending and sales to children.

1. Measures to give communities and local authorities greater control over alcohol licensing to tackle problem premises. They will have new powers to restrict premises from selling alcohol late at night if necessary and be able to clamp down harder on premises which persistently sell to children doubling the fine to £20,000.
2. A stronger local influence on licensing decisions by allowing everyone the option to comment on licensing applications: not just those living close to premises, and ensuring health and policing concerns are considered more widely so that the impact of licensing on crime and disorder or public safety can be taken into account.


To put in perspective the first point above, the average fine imposed under s146 [selling alcohol to children] in 2008 was less than £500. I have been unable to source newer statistics. This is a clear example of the politics of hot air. It rises above the cold air of reality until temperatures are equalised and then falls to earth. The other point is remarkably similar to the considerations that magistrates` licensing committees applied before their powers were removed into the welcoming hands of “representatives of the community”. Guidance on under age sales operated by local authorities revolves around test purchases.  Invariably that involves small off license shops being being visited for purchases by children under the watchful control of trading standards officers.  I have never experienced in court or read of a supermarket being prosecuted.  Either they never arouse suspicion or they are too big to be tackled.


The application of sticking plaster is the proposal to set up “drunk tanks” where those jelly legged apologies for thinking beings can be held in safety whilst they sober up rather than clogging up the custody cells in police stations. The Independent Police ComplaintsCommission (IPCC) has made the remarkable discovery that many people suffer from alcohol and/or mental health problems. I would never have guessed……….On second thoughts an analogy with sticking plaster is inappropriate. A complete bodycast seems apposite. There should be an enquiry into why supposed intelligent people in Westminster and Whitehall can consistently support legislative changes that are so obviously [to the common man from Mars] inappropriate for the situation and/or problem under consideration. Of course we will have to wait for the 3rd coming for that…..nobody will believe the 2nd coming if and when it happens. 

The Lancashire Evening Post has a report which demonstrates all too clearly what is wrong with those whose remit is to uphold the law and demonstrate its strength; police, trading standards officers and CPS who are failing in their duties to apply meaningful sanctions to those who flout this legislation. It is only by fining licensees a meaningful amount and enforcing premises closures that s.146 will be observed.  Until then society is hardly even paying lip service to the notion that there is a prohibition on under age drinking.


And shrewd marketing tactics are never far away from the Coca Cola company. It is not unlikely that its BOGOF will arrive at many pubs in time for Christmas as it did last year. That is “Buy 1, get 1 free” provided it`s for the designated driver and the drink is straight Coke. I suppose every little helps. At least that`s what the Transport Department hopes.

THE LEGALITY OF EMERGENCY BLUE LIGHTS AND SIRENS

Every now and then a little remarked upon case makes its electronic appearance in my office. And one such is this. It reminded me of the time when I had to make an emergency dash to hospital one morning with a relative in a critical condition on the back seat . I made a conscious decision to put my headlights on full beam and this was at a time many years ago before the advent of daylight running lights. I recollect even now carefully running at least two red lights sounding my horn as I did.

We might not be aware of this particular ambulance service but I doubt there is anyone who has not seen a private ambulance with its origin duly notated on its body panels speeding through town to or from an emergency. And we are all aware of the possibility eg of a driver over the limit pleading special reasons including medical emergency to evade disqualification. Perhaps the appeal against a decision based on an apparent variation of special reasons will be televised for us all to view.

BENCH TRAINING AND DEVELOPMENT COMMITTEE AND ITS ELECTION

The Magistracy is trumpeted as being a uniquely English institution allowing local justice to be dispensed by local people. With certain caveats I would agree. The Scottish and Irish versions are not quite the same. Individual benches must follow strict guidelines in performing some duties and are most locally idiosyncratic in others. Individual benches control their own rota, ideally placing mixed sex and ethnic benches where possible. Rota systems are very variable with some benches following outdated local procedures that should have gone out with ladies` compulsory hats and cigarette holders de rigueur in the retiring room whilst others perform this vital function using common sense and the latest soft ware.

One vital aspect of bench representation is the Bench Training and Development Committee. This can be appointed internally or have individuals elected annually. But here`s the b u t....if an elective committee only those attending the annual election meeting can vote. No postal or proxy voting is allowed. At my bench about one third of members turn up....of course not always the same third. To allow change in the voting system or to allow benches to alter their own voting procedures government would have to table a statutory instrument. Perhaps there is an organisation of magistrates which might consider lobbying for this extension of democracy or is that akin to asking the pot to call the kettle black?

CLIMB THE LADDER

Got to grips for the first time with the new format for search warrants.  If truth be told it seems a waste of time.  According to L/A the changes arise from the non compliance of various parties with the previous rules for same.  So, I ask myself, why not insist that all parties;  courts, J.P.s and police follow the previous rules to the letter.  Perhaps that is too simplistic so we spent an unnecessary amount of time combing through the minutiae of the language used.    

We were required to re-open a s.172  matter where the defendant had not had his not guilty by post presented at the last occasion.  As a result he had been  found guilty in absence.     On this occasion we discovered that the service from court to the defendant  included words to the effect that his presence in court was  not required!        So once again the matter was adjourned.  We were told later that there are hundreds of examples of such incompetence piling up owing in the main to there being so few administrative staff after many redundancies and many of those that remain being unfit for the posts they hold.   

The blame of course rests with the Justices Clerks and Chris Grayling.   But I would imagine that they are pre occupied contemplating their clamber up the ladder of civil service and political favour and promotion to be bothered about such minor details. 

NOT MORE LAW//APPLY EXISTING LAW

“Teachers, doctors and social workers who fail to report concerns over suspected cases of child abuse should face criminal charges, one of Britain’s most senior barristers has said”.  That is the opening paragraph quoting the words of Keir Starmer in today`s  Independent.  Keir Starmer was until very recently England`s top prosecutor.  It never ceases to surprise me how often people in powerful positions wait until they`ve moved on before making controversial policy statements.  

The three classes of professionals quoted, one would hope, have the personal and professional integrity in addition to any contract to blow the whistle when events appear to justify it.  I could be described as uninformed on this topic just as most of my fellow citizens are but it would seem that there is a legal framework  already in place which would justify those with responsibility directly or indirectly who shirk, ignore or abuse that responsibility being charged with a criminal offence.  If such terms were part of employment contracts for those who could conceivably bear some responsibility for any malpractice no additional legislation would be required.  In addition if Mr Starmer`s argument leads to legislation it will surely cause more problems than it would solve.  Ever more people would be brought within its net however innocent they were.  The Old Bailey trial which is headline news is an example of where existing legislation albeit applied after far too long a delay shows that further curbs on news media via a Royal Charter are totally unnecessary.  We have enough legislation to detect and punish paedophiles if it were applied efficiently and consistently.  What  we don`t need is a witch hunt.   

CENTRE OF LEGAL EXCELLENCE

Centre of excellence refers to a team, a shared facility or an entity that provides leadership, evangelization, best practices, research, support and/or training for a focus area. “Harley Street”  would be considered such a centre; indeed “London” by extrapolation could be considered a centre of excellence in medicine, associated technology and treatment. Thousands of foreigners annually certainly consider it so. In a similar fashion the term “Silicone Valley” has but one connotation built up over many years.  Add “Hollywood” or “Bollywood” and the meaning is clear.  And for legal expertise all one has to say is Inns of Court.

In this age of instant visual anywhere communication, a facility available only in science fiction when I was a student, face to face inter actions can be reduced, avoided or valued as the case might be.  Internet dating sites are arguably better introductory media than any previously devised but only as a prelude to two people actually being in such proximity to each other than true interchange of personality etc can be made.  The same can be said of any intimate conversation whether between individuals and  family members, friends, medical advisors or let it be said; lawyers.  In all these examples one`s soul is bared to another person and in my humble opinion that cannot be best undertaken on Skype.  The Lord Chief Justice thinks otherwise.

There are many excellent legal firms and chambers north of Watford but as a centre of excellence London with its high prices, extortionate business rents and high incomes per capita is as honey to a bee.  Indeed the major London legal firms have never had it so good.  Hundreds of years of history and human nature cannot be changed   by dictat.    It sounds too much that the great man might have had his ear bent by politicians. 

LIVE T.V. FROM COURT

Kicking and screaming the televising of court proceedings is progressing along  an inevitable path with typical British reluctance.  Almost live T.V. from the Court of Appeal is now a reality.  Caveats are in place so that only  advocates’ arguments, and the judges’ summing up, decision and (in criminal cases) sentencing remarks may be filmed. But this is a beginning. 

At my previous site on 31/01/2013 I blogged of Lord Judge`s concerns on this subject.   Before 2020 commenters will be looking back at the current restrictions and wonder what all the fuss was about as they tune in to their local crown court for full live coverage of the day`s proceedings.

INVESTIGATE POLICE FROM TOP AND BOTTOM OF THE PILE

Disillusionment with policing doesn`t hinge on the result of an investigation whether or not a cabinet minister referred to police in Downing Street as “plebs” and the resulting possibility that he was “fitted up”. Citizens going about their regular activities have their reactions and opinions based upon their own experiences and opinions of police interventions or non interventions.

Within a few days last week three reports served to illustrate much of what is thought to be wrong with police.

Early last week fourteen caravans and cars of a group of French gypsies parked in  the very limited car parking space reserved for staff at the Royal Gwent Hospital.  Eventually some days later  after causing much disruption they moved off.  My point today is to consider what would have happened if a single car driven by eg a hospital visitor had parked in a space reserved for a staff member.  It is not unlikely that after a very brief “due process” it would have been towed.     What kind of message does this non-intervention convey to the thousands of hospital visitors who strive to park legally and at some expense to visit their friends and family?  It brings authority and police into disrespect and deservedly so.

The second report has been four years in the making.  An innocent man was tasered without any due cause and had to undergo those four years waiting for justice to be done to those police officers who had disregarded all guidelines.  There will always be rotten apples in any barrel of police officers but the concern is the difficulty or lethargy in weeding them out.

And finally and perhaps the most offensive of inappropriate police activity; activity which has finally had some light shone upon it not least by the Magistrates` Association. It is the excessive offering of police cautions when offenders should be charged and tried in a court of law.  And when victims of crime are subject to what can only be described as harassment to accept a financial pay off to permit police to administer that caution and avoid the effort to take the case to court one can only despair.

Reform of police, badly overdue, must also be instigated at the bottom of the pile in tandem with investigating activities at the top.

WAR OF WORDS

With the closure programme of magistrates` courts not yet complete the marginal cases are now the subject of bitter dispute with HMCTS using all arguments available whether viable or not to justify closures and the running down of courts` listings. The recriminations being bandied about at Gloucester Magistrates` Courts are typical. This is not the first such case and will not be the last.

NO BLOG TODAY ;MY LUCK HAS GONE AWAY

They say that bad luck comes in threes. Very early this morning  some idiot in a new Porche drove into my wife`s Toyota; a tree felled in the storm crashed through my empty garage where the Toyota had been a short time before and I`m waiting patiently for number three.

A POOR REFLECTION ON THE MAGISTRATES` ASSOCIATION

The Magistrates` Association has had its A.G.M. and surprise, surprise, the world has not stopped spinning. But what was spun by media was one of the two motions for debate about which I posted on 8th October. The motion (“this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison,”) was lost.



I was not present at the meeting but judging by the video report fewer than 100 colleagues attended. Considering that J.P. chairmen in court should be rather capable public speakers the quality of oratory presented was rather poor. The content in general did not address the proposer`s theme that the interests and quality of justice must be the fundamental argument. The motion was defeated on a paltry show of hands and the debate lasted no more than 25 minutes.



This performance was one that did the M.A. and democracy in its widest terms no benefit. A tiny coterie of those entitled to be present was present. A vote amongst those produced a result which has as much significance as a vote for a white Christmas.



One would be hard put to find a clearer demonstration of how non representative the M.A. really is. This should be the last time such matters should be voted upon using the tools and tricks of the red baron union leaders of the 1970s. Future motions for debate should themselves be voted upon by the whole membership on line with a similar substantive vote thereafter.

J.P. RESIGNATIONS AT DUDLEY WOULD BE WELCOMED BY HMCTS

Some of the most powerful unions in the country are no longer those representing the interests of working people in the traditional sense that those millions are not pouring out of factories on a whistle at 5.00p.m. sweat on their brows cigarettes in mouth.  They are organisations like the British Medical Association, The Prison Officers` Association or the Police Federation.  They are tightly controlled and their members have benefitted from their ability to negotiate from strength.  The Magistrates` Association cannot be included in such a group because it represents volunteers and so operates on a shoestring budget each of its 20,000 or so members paying subs of less than £40.   In other respects it has no affinity with other professional unions or associations because it has no brief to represent its members against  employers because we are not employees although the attitude of Her Majesty`s Courts and Tribunal Service is that we are just that;  employees but merely unpaid. So generally speaking with few exceptions magistrates as a group are  not seen and not heard………….except in Dudley.

With the threatened closure of their court the bench has threatened en masse resignations if such action goes ahead. According to my information the Justice Ministry factored in a general J.P. resignation rate of up to 10% as a result of the implementation of court closures.  How many have actually resigned for that reason is unknown and it would be an interesting question for the M.A. to contemplate.  Whilst having great sympathy for my colleagues the paradox is that they would be rubbing their hands in the corridors of Petty France LONDON SW1 at the opportunity to parachute in yet another District Judge(MC) to yet another local justice area.   

Human Rights lawyers and others can huff and puff all day that our Supreme Court should have another tier outside these shores as a final Court of Appeal.  They should stay closer to home and consider the probability that the time is not long away when a single professional judge will be presiding over all matters, including of course trials,  in the magistrates` courts system and not just a minority of cases as is now the position.    What logic then to the continual argument that whatever developments in jurisprudence the totem of trial by jury must be retained……..except when the matter is summary only…………?  

WOULD NIQAB BE ACCEPTABLE ON THE BENCH?

The wearing of the niqab in public places has been a newsworthy subject in the last weeks. In particular there was the decision regarding a witness in a recent case at crown court. I have many female Muslim colleagues and only one have I seen wearing a hijab (Muslim headscarf). A very small minority of those female and apparently Muslim by name lawyers who appear before us wears a hijab. There is absolutely no question as to their right to do so. 

My point today is whether or not Appointment Committees have a policy if faced with an application by a woman who wears a niqab. Would wearing such on the bench be acceptable both to colleagues and to the court and all its users?

CRIMPING CRIMINAL LEGAL AID LEADS TO EMASCULATION OF CRIMINAL LAWYERS AND FEARS OF IMPOTENT JUSTICE

We have long been accustomed to film and T.V. series involving police. Indeed for those old enough Dixon of Dock Green was required viewing in the 1950s. Unsurprisingly antics within the legal profession have long been a theme of the written word and laterally the small screen with often fictional accounts of real mayhem suitably enveloped in a screenwriter’s narrative. As time has moved on reality television has become a staple part of the major channels` output and a major part of that has been the fly on the wall series on many aspects of policing from police patrol to police cell via umpteen scenarios from motorways to town centres.


From Rumpole to Kavanagh QC via Perry Mason and Judge John Deed we have had a surfeit of fictional legal expertise but until last year, as far as I know, reality T.V. had not reached inside a solicitor`s firm. Tuckers holds itself to be the largest legal aid firm in the country. Even without that accolade its turnover is such that the opinions of its senior partner must be worthy of a hearing. And for those who listen his opinion that the future for firms undertaking legally aided work is limited. There are now about 250 magistrates` courts after the decimation in numbers over the last three years. If Franklin Sinclair is right there will be a single firm offering services at most courts. My own bench comprising three former benches sits at two venues and two firms offer well over half the cases I`ve sat on.


Previous governments sanctioned the privatisation of energy companies, the denationalisation of train company BR, steel company British Steel and others including the National Probation Service, the Prison Service and as of last week Royal Mail by the current administration. I believe in capitalism. But in order for capitalism to work there must be strict laws against monopoly supply or attempts to procure such which is the natural target of capitalists. That is where this government is failing and it will fail in its grotesque attempt to emasculate the earnings of mostly poorly remunerated criminal lawyers. There is no doubt that the quality of representation for many defendants will be diminished and for those deemed to be ineligible for legal aid, time and costs for courts endeavouring to see justice done will increase in proportion to the complexity of what government might consider “simple cases”.


I have more faith in the accuracy of Franklin Sinclair`s predictions than any emanating from the Ministry of Justice.