BALANCING THE BOOKS BUT AT WHAT COST

I recollect many years ago when I first visited New York in the 1970s  that one of the many things that surprised me was to find that many of the larger stores had guards armed with very large clubs standing at the entrance and patrolling inside.  It seemed that their presence was less to be a reassurance to shoppers in what was then a city of high criminality  but much more to offer an intimidating  warning to intending felons.  In England on the contrary the only uniformed presence on the streets etc apart from police officers was the traffic warden who was becoming an increasingly common sight on our high streets.  Their patrols whilst unwelcome by many were tolerated in the main owing to public consent and awareness of the  increasing necessity to allow rapid turnover of parking spaces.  

Over the last decade or so the sight of people in a quasi military uniform of black or blue cap and associated jacket and trousers has become a feature of our society.  However with the introduction of Police Community Support Officers with powers as below a turning point was reached in the principle of allowing authority  to cascade down from police to such an extent that joe public and many others had little awareness of where or when that authority could be applied. 

• Power to direct traffic and pedestrians
• Power to confiscate alcohol
• Power to confiscate tobacco from persons under 16
• Power to enter premises to save life and prevent damage to property
• Power to remove abandoned vehicles
• Power to issue fixed penalty notices (for example, cycling on the pavement, dog fouling, littering, graffiti etc.)
• Power to demand a name and address of a person acting in an anti-social manner
• Power to seize vehicles used to cause alarm
• Power to search property in matters relating to terrorism (with a constable)
• Power to search property in matters relating to terrorism (with a constable)
• Power to seize drugs

Traffic PCSOs have extended powers to help keep traffic moving. PCSOs only have powers when they are in uniform. PCSOs must carry a ‘designation card’ that describes their powers. PCSOs do not have a power of arrest but they can require a suspect to remain with them until a police officers arrives.The 'power to remain' can be exercised only in limited circumstances.

With police numbers reduced by 10% over the last five years and budgets cut to the very bone some of those charged with ensuring at least a modicum of security on our streets have scraped the bottom of the barrel by  empowering, currently to a limited extent, employees of G4S.

Outsourcing by government agencies as a policy  in itself has advantages in limited circumstances.  However iniquitous eg  the BBC license fee is,   it would be ridiculous now for that organisation to undertake its collection.  There is also an argument in favour of eg Capita plc to be responsible also for collection of Council Tax.  But the outsourcing of agencies under the control of the Ministry of Justice was a very bad mistake.  The situation in privately (outsourced) prisons and the probation service are glaring examples of what can go wrong with such a policy.  

Of all government responsibilities defence and justice are in a class of their own  They are what others are not: they are the two  indispensable pillars for our society;  the protection of its security and  ensuring the democratic basis on which we can be governed by the rule of laws as enacted by a freely elected parliament. 

This noxious spread of petty hitlers in uniform is to be deplored.  The cost in loss of confidence by a population will never be balanced by notional attempts to balance a Chancellor`s books.

BEGINNING OF THE END

This article in today`s Telegraph is just the beginning of another attack but now there is no doubt IMHO that there is a secret paper in some Whitehall desk with outline of new form of justice at your local District Criminal Court.   Mark my words; the magistracy in its current form, as I have posted here many times, will be history within ten years.

LEGAL AID

Latest legal aid information and statistics  from the Ministry are available here.

PRETTY POLLY EQUALS EXCEPTIONAL HARDSHIP!!!!!!!!!! NOT FOR ME

When Sentencing Guidelines were presented over a decade ago my opinion then was that that was the beginning of the end for the independent magistracy.  Their introduction made a mockery of the very concept of local justice insofar as their implementation was to avoid the very notion of a so called post code lottery.  From Newcastle to Newquay sentencing was reduced to doing a crossword; two across and then three down. In its latest form there is not much  room for J.P.s to exercise original thought, logic and understanding to sentencing.  That is why "exceptional hardship" is one of the very few areas remaining where magisterial discretion and structured processing is still required..........even north of the border.  Having praised Scots law not a few times on this site I am amazed that these northern colleagues have fallen for a story of pretty polly.

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 hardship would result. Section 35{4}(b) of the RTOA 1988 precludes the court from taking into account “hardship, other than exceptional hardship”. There is no strict definition of this term. 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.

 A House of Commons answer of 5/6/07 is useful.

Mr. Sutcliffe: When a driver faces disqualification under the totting-up procedure, the court has very little discretion other than to disqualify, unless they are satisfied that to do so would cause ‘exceptional hardship’.
Whether exceptional hardship would be caused is a matter for the court to decide in each individual case.
The Sentencing Guidelines Council is responsible for magistrates' sentencing guidelines on this issue, and the decisions of the Court of Appeal in any relevant cases will impact on any decisions made.
Mr. Paterson: To ask the Minister of State, Ministry of Justice who is responsible for specifying the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure. [139642]
Mr. Sutcliffe: The Sentencing Guidelines Council are responsible for magistrates' sentencing guidelines, along with guidance provided by Court of Appeal judgements. The Sentencing Advisory Panel recently carried out a consultation paper on magistrates sentencing guidelines and responses will be considered in determining the final guidelines.
Mr. Paterson: To ask the Minister of State, Ministry of Justice whether (a) changes have been made in the last five years to the criteria by which magistrates are required to interpret pleas of exceptional hardship entered by drivers seeking to avoid disqualification from driving under the totting-up procedure and (b) any such changes are proposed in the next six months. [139643]


The case of pretty polly is IMHO a total nonsense. Even having accepted the plea a reduced discretionary period of disqualification should have been imposed.  Those responsible for  allowing him to continue driving should say a prayer that this offender does not cause a major problem whilst doiong so with his license holding 12 points. 

THE RAPIER IS MIGHTIER THAN THE MACHETE

During his time in the post of Lord Chancellor and Secretary of State for Justice Chris Grayling appeared to me [and others?] as simply following orders.  He was a functionary with little original thought behind his actions.   On May 11th I commented on my hope that his successor would be a more suitable occupant of those high offices.  The content of a speech he will deliver later today gives us an insight into how he is going to undertake the tasks and duties which are now in his brief. He appears at least to bring with him a certain philosophy as a Tory intellectual who came from an ordinary Scottish upbringing to high office.  I believe in the light of the circumstances surrounding the delivery of justice which is available to the ordinary citizen Michael Gove will use a rapier  to fascilitate change as opposed to the machete used by his predecessor.

THE KING IS IN THE ALTOGETHER

Of all public services the police perhaps are the most adept at using reality television to put their best size 13 feet forward hoping that by so doing the warts on the rest of their body corporate will be overlooked.  Currently the Metropolitan Police and its Commissioner are telling us on BBC TV what fine fellows they are in often difficult situations.  From street to cell Ch4 had its own production recently and most days we can view some police car or other racing up or down a motorway in its pursuit of menaces to the rest of the country`s drivers going about their lawful business.  That is of course if we forget about the use of a mobile whilst driving.  Now that is truly a danger.  Instead of increasing the number of penalty points on conviction to 5 or 6 the lawmakers are apparently considering  increasing the fine to a level 3 {£1,000}  when it is widely accepted that threat of disqualification is the more effective deterrent to drivers who continue to offend.  So what can we make of the  only conviction so far of a middle lane hogger?  The answer is simple: ensure it gets maximum publicity for what was a completely unnecessary newly created offence.  Driving without due care and attention has been the law for decades.  It can eg constitute eating an apple when driving.  All it takes is a comparison with what would be expected of a reasonably competent driver.  Tailgating was also created as a stand alone offence.   

It`s the king with no clothes all over again.  Where is the little boy to shout that the police are in the altogether?

M.A.....THE TRUTH AND NOTHING BUT THE TRUTH........AGAIN!

Below is copied the weekend press release from the Magistrates Association.

On behalf of the MA, Richard Monkhouse has written to the new Justice Select Committee Chairman, Bob Neill MP, to welcome him to his new post following his election today.
Representatives from the MA often appear before relevant Select Committees in Parliament to give evidence on issues relating to criminal justice policy and the role of magistrates within the justice system as a whole. Earlier this year, the MA was credited with having heavily influenced the Home Affairs Select Committee report into out-of-court disposals. 
About Bob Neill MP
Mr Neill, a barrister, was first elected in 2006 and was elected for a second term as MP for Bromley & Chislehurst in 2010 and again in 2015.  He served as Parliamentary Under Secretary of State at the Department of Communities and Local Government (2010-12), with responsibilities for the Fire Service, Thames Gateway, the Olympics, local government and planning.  In September 2012, he was made Vice Chairman of the Conservative party for Local Government.

Here we go again with the truth and nothing but the truth from the M.A.  What it fails to do is state explicitly that this new person of influence always votes for the government.  Of course many M.P.s for various reasons, some fair and some most foul, always vote in the government lobbies but in this case he voted for all of Chris Graylings changes to the legal aid system; changes which the vast majority of magistrates oppposed.  Such is the person the M.A. will be toadying up to. 

ECONOMIC MEDICAL AND SOCIAL LUNACY IN NOT ENFORCING PROHIBITION ON ALCOHOL SALES TO CHILDREN

Depending on which statistics are perused drugs and alcohol are the root cause of "much", "many", "most" or even "overwhelming" instances of criminality. Leaving aside terminology and applying some old fashioned common sense young people under the influence of alcohol are a common sight on the streets in every village, town and city of this country. Since we`re not living in 19th century Ireland or the mountains of West Virginia we can be sure that the home brewed stuff is not under discussion and with the price of supermarket loss leaders uncle Patrick`s home brewed poteen or cousin Ethan`s moonshine couldn`t compete on price anyway.

One would assume that local councils` enforcement teams would do their utmost to stem the purchase by under 18s of alcohol. After all the same councils have to cope with the results of the drunken behaviour of their tax payers` children. When charges are laid against those who sell drink to juveniles the accused appear at Magistrates` Courts. If they are convicted by pleading guilty or being found guilty after trial they are usually fined. One would expect thousands of such cases to have been prosecuted and millions of pounds of fines to have been levied. After all excessive and early drinking is a major medical problem as well as a problem for the criminal justice system. But one would be mistaken.

A parliamentary answer a year ago by the then Under Secretary of State for Justice  Jeremy Wright  revealed amongst other facts that in 2013 in the whole of England & Wales there were only  128 convictions under s.146.   For the predeeding four years the convictions were:-

2009    331
2010    258
2011     194
2012     182
2013     128


The complete numbers of convictions under the Licensing Act 2003  in England and Wales, from 2009 to 2013 are here.

I think even the most myopic can discern that there is a pattern in these figures which are shocking beyond belief but my own experience bears them out. Every case prosecuted by councils is paid for by Council Tax and topped up by grants from central government as is all local expenditure. Even the mathematically illiterate can appreciate the term "cost effectiveness" even if its underlying premises are numerical gobblygook. Spend eg £1 to stop a drunken youth causing eg £20 of damage to him/hersef, others and the evironment must make sense economically, medically and socially. Oh were it so simple!












                                                                                                

FREEDOM OF INFORMATION STATISTICS

I have  used the Freedom of Information Act four times in the last five years.  Some of the details revealed have been the basis for two posts on this site and two at the previous location.  For that facility along with thousands of others who have made similar applications I have to thank Tony Blair.  Of course the prime minister who was  as much an actor.....the face of New  Labour as he was a politician has since regretted that he initiated that legislation; perhaps the most citizen friendly Act of Parliament for decades.  My old friend the Ministry of Justice has today published statistics on applications under that act........peruse here.

BANKS AND BANKERS//JUSTICE U.S.A. AND NO JUSTICE U.K.

I can recall late last year my colleagues and I had to sentence an offender who was clearly in the category “so serious that custody is the only option”. This chap was where he was for multiple non violent offending. One colleague found it difficult to agree in principle to this disposal because his offending was indeed non violent nor involved any basic dishonesty. Eventually with our third member`s assistance she was brought round to the logical conclusion we had each reached. This attitude to non violent offending is not confined to J.P.s. So called white collar crime attracts more than its fair share of apologists for non custodial sentencing in this country as opposed to America where financial fraud is generally dealt with more severely than here.Over the last decade it has not been uncommon to read that a financier, banker, accountant or similar has been sentenced to many years in prison in the U.S.A.for criminal offences involving $millions of other people`s money i.e. white collar crime. Such criminals in this country actually come to court in this country much less frequently never mind being sentenced to custody.  It seems the same thinking is behind the complaints that all the resources that have been devoted to phone hacking etc are disproportionate and should be concentrated on anti social and violent criminality.  Leveson did indeed release a hysteria virus upon which it could be argued more effort was placed on eradication than a deeper understanding of the requirement for a free press.  

The imprisonment of men of eighty years or more for criminal actions which took place perhaps half their lifetime ago cannot possibly be in the public interest.  It serves only as the whipping post did in medieval times. What is in the public interest is that the Prime Minister should encourage  CPS and associated authorities to apply the law here to the activities of bankers and banks in this country who have been indicted/convicted in America for such crimes as fixing interest rates, laundering drug money and much else and seem to have  escaped  so far from the grasp of such organisations. He must decide soon enough if the Tory Party really has turned away from Theresa May`s description as the nasty party. With the government`s shares in the rescued banks being considered for sale failure to do so with his admittedly slender majority might forfeit the right of his successor a similar opportunity. 

DISPERSAL ORDERS

There`s an old adage that if you give the Devil a finger he`ll take your whole hand.  Never has this been so true as in recent years with the police maquerading quite successfully as Old Nick himself.  All this has of course been orchestrated by the Home Office which seems to run in the same direction at the same speed whosoever is the driver.Drinking Banning Orders or breaches of an ASBO are two early examples but the Regulation of Investigatory Powers Act 2000 truly allowed police, local authorities and others to follow Nick`s example and take the whole arm.  It is to be noted that I have been unable to source updated figures since I last posted on DBOs.  The current furore over the aptly nicknamed snoopers` charter arguably takes the controversy to a new level.  

Dispersal Orders are not on the public`s agenda.  They were introduced late last year.  Unsurprisingly to those acquainted with the police enforcement of their powers at a level which is often at the extreme limits of their authority if not in excess of said authority  it seems that a familiar pattern is being observed.

Salami slicing of actual civil liberties, crying wolf by some libertarians, panic over security leaking and  real terrorist threats  are reducing the concept privacy only to what should be expected in the house`s smallest room. 

THE SUN IS OK FOR SOME

A provocative headline in this week`s "The Lawyer".  I`d bet that few of those hard working souls were primarilly working in the magistrates` courts.  Those folk probably couldn`t afford to take a holiday and yet they were the ones possibly most in need of two weeks ultra violet and a gallon of Stella.

UNDULY LENIENT SENTENCES

I have to admit in my arrogance that I thought I had  been aware of most of the statistics published on disposals for various offences etc. etc.  Some were  difficult to source, some statistics ceased to be collected and some eg assaults in a domestic context or the numbers of unrepresented defendants are not collected.  But the details published yesterday on  unduly lenient sentences were a revelation.  I make no observations but leave that to readers.

MAGISTRATES ASSOCIATION IS NOT FIT FOR PURPOSE

It seems that the Magistrates Association once again is following a path that would probably have had its own members scratching their heads in wonderment had there been so much as a nod as to what was happening on their behalf.  If there is one topic that almost certainly has more agreement amongst J.P.s than any other it is that of the reducing catagories of those defendants at Magistrates` Courts  and participants at others entitled to legal aid.  Indeed that facility is likely to be further reduced by this government`s stated intention to restrict funding for  criminal solicitors who provide most of the service and therefore reduce further how many undertake the work.  So logically it would seem that when the M.A. wished to appoint a Co-Chairman of the All-Party Parliamentary Group for the Magistracy, alongside MA member and Labour peer Lord Ponsonby of Shulbrede it would seek from the newly elected members of the House of Commons a member who would sympathise with this core tenet at least. However in its wisdom it has appointed Lincoln M.P. Karl McCartney J.P.  It would seem that he is one J.P. who  excludes himself from the majority opinion of his colleagues as mentioned above. His voting record shows where his sympathies lie.  My question today is why such a person so out of tune with the the policy of the M.A. such as it is has been asked to fill such a role.  As a matter of futher interest on the M.A.s obfuscation of a website I used its search facility to find "legal aid"; not a single source was found.  This organisation is unfit for pupose and should die its death and be reborn as one fit for its members.

WALES GOES ITS OWN WAY

Many years ago there was a popular T.V. comedy entitled "Never mind the quality, feel the width", featuring the goings on at a tailoring establishment.  That title has entered into the English language as a euphemism for quantity over quality.  The decimation of the numbers of quality warranted police officers over the last few years  is now being countered by efforts to increase  the quantities of lowly qualified PCSOs in Wales  Of course official spin tells a different story.  We`ve been here before.  Assistants to teachers originally hired to assist treachers in preparatory work now "teach" children.  Nursing assistants now undertake basic nursing and more.  Readers will have their own examples.  By all accounts the Labour controlled NHS in Wales is considerable less efficient  than in England. The Welsh can`t complain; it`s called devolution. Perhaps instead of moving the goal posts politicians at all levels will learn one day to tell the public who pay their wages the truth, maybe not the whole truth but certainly nothing but the truth.

COULD J.P.s TAKE DIRECT ACTION FOR JUSTICE?

The camel`s legal back is near to breaking point.  Barristers have made their point by witholding their labour. Criminal solicitors are deciding whether they too need to take action.  All those involved in the daily comings and goings in the magistrates` courts are only too aware of the increasing numbers of unrepresented defendants such people necessitating increasing amounts of court time so that it is certain that justice is being served.  It is true to say that there is a strong possibility that innocent people in court on low level charges are pleading guilty "to get it over with".  The government has no idea of how many defendants are being subject to erroneous results whether for the aforementioned reason or their receiving inadequate assistance to present their cases.  

Of all people Justices of the Peace are the ideal group within the whole legal jungle able to make the point that we are in danger of going beyond the point of no return in our ability as a nation to guarantee justice for all; from the high born to the peasant.  J.P.s are unpaid volunteers usually idealistic in their view of the concept of justice.  Apart from the few who seek appointment purely for their idea of the kudos the appointment might give them in their business life J.P.s  are honourable folk seeking to be of use in the fair treatment of their fellow citizens.  If even a single bench at an extraordinary or  annual meeting proposed for debate "This bench is in favour of non attendance of its members on a designated date within the next three months to express its belief that our ancient concept of equal justice for all is being eroded by government policy" it would make world wide news.  But more importantly it would indicate to the senior judiciary that its junior ranks cannot be intimidated.  It is my opinion that there is no long term future for the magistracy in its current form, i.e. presiding over a courtroom on equal terms with the professional judiciary so there is little to lose. However I live in the real world and my bottom dollar knows there is more chance of hell freezing over. 

THIRD TIME AND STILL LUCKY

I must have sat on hundreds if not thousands of cases of no insurance often coupled with driving not according to a license and/or no MOT.  I cannot recall a single occasion when an offender`s third conviction for no insurance did not result in immediate disqualification.  But then I`m not a District Judge giving her one final chance.

SNOOPERS` CHARTER//EXCUSING THE INEXCUSABLE

I would guess that most readers who are gracious enough to give me an hour of their time when they access this site (25%) and others just passing through are to some degree political animals and their political antenae are likely to be quivering at the event horizon between privacy and security.  The fangs available to the so called snoopers` charter have been called into question by the report of David Anderson QC.  An interesting piece of information in The Times behind its paywall reveals that "Home Secretary Theresa May personally authorised 2,345 interception warrants last year".  That equates to nine every working day.  J.P.s and others will be only too aware of how long it takes to approve or reject a simple search warrant under the latest rules. Reading the information, questioning the applicant and formulating reasons for granting or rejecting such a document rarely takes less than 15 minutes. It is just not credible that Mrs May can personally apply the time and consideration required to adequately assess matters of suspected terrorist or dangerous criminal activity.  Her minions will have made the decisions prior to requesting her signature.  This is reminiscent of the Stasi.  The film "Lives of Others" should be compulsory viewing for D.Cameron and others.  Apparently he and the Whitehall cohort amongst other considerations "are also concerned  about the availability of judges to authorise warrants in the middle of the night in an emergency"...(The Times today 12/6/2015 behind its paywall.)  I have rarely read such  pathetic rubbish even from Whitehall weasels;  people attempting to excuse the inexcusable.

If ever there was a time, convention or no convention, when senior judiciary should be making clear their position this is it. Perhaps they are behind closed doors.  I suppose we will know the results before too long. 

MAN`S BEST FRIEND

Probably not commonly known is the fact that magistrates can impose the death penalty.  Those canines which receive such a penalty most certainly deserve it because dog lovers or not I`m sure most  J.P.s have  in the back of their minds that properly trained and well homed dogs are unlikely to be so dangerous and that humans have been at least partly responsible for such an animal`s unacceptable actions.  The 1991 Act was a dog`s breakfast of legislation and new powers introduced last year should allow more appropriate disposals.  Meanwhile latest figures on prosecutions provided by the government are available here and here.

OBFUSCATION BY ASSOCIATION

I make no apology for returning to criticism of the Magistrates Association.  The Criminal Courts Charge is nothing short of a legal abomination.  It was introduced as part of a philosophy forced  upon  the previous government in its search for financial cuts which left inter alia the NHS "free at the point of service" and overseas aid to remain at 0.7% of GNP.  It introduced the principle already forced upon civil courts of trying to make justice pay for itself overturning a long cherished tradition that alongside defence it is a pillar of a democracy which must only be funded by the state.  The chairman of the M.A. in a letter for members *copied below,  refers obliquely to this charge as to whether it has "negatively effected the administration of the law and justice"  in his quest for members` responses.

Administration (noun)    The process or activity of running a business, organization, etc.

Effect  (verb)    cause (something) to happen; bring about

It would seem therefore that he is asking magistrates to answer a question which is completely "off topic".  The charge  blatantly does not affect administration as above defined; it affects the ability to pay without means testing of those found guilty. Perhaps the question was phrased deliberately in this form to elicit particular forms of reply or perhaps it was phrased thus owing to simple incompetence of the writer.  Either way, apart from the writer`s confusion between affect and effect  it is just another example of obfuscation by the Magistrates Association. 

*