RESPECT

If ever anything has demonstrated the absolute incompetence of Chris Grayling it is this morning`s announcement of the  scrapping on Christmas Eve of the criminal courts charge.  I don`t think that a change of this nature so flawed in its concept has been sent to its demise in such a short period of operation.  Michael Gove......RESPECT

NORTHERN IRELAND IS DIFFERENT!

Magistrates`Courts in Northern Ireland are run by District Judges.  Recent history in that province has seen the death, literally, of at least one J.P. and the institution per se. With that in mind I have reported here from time to time some strange or unusual court decisions there.  However merely to fine a drunk driver who was more than five times over the legal limit and not to have imposed a community penalty never mind a custodial sentence suspended or otherwise is breathtaking [no pun intended]. 

Considering the recent abortion decision perhaps decision makers in Ulster are on the road to the 21st century in their thinking.  But with sentencing as above there is still some way to go.

MUM`S THE WORD

There are  some people, J.P.s and politicians, who, for their own unknown and illogical reasons, still refer to or hanker after local justice for local people. The reality is that this concept can now only be referred to as a historical situation to be equated with transportation to the colonies. It is a dead concept; an outdated concept; a concept no longer with us.  There are however some diehards. I recollect reading a report a few years ago of a bench chairman proudly remarking that he and his colleagues living in the same small town and knowing a defendant enabled them to operate the law more equitably than otherwise would have been the case.  I wonder whether that included perhaps chatting to said individual or others before or after the hearing.

Recently barrister Mohammed Faruk was reprimanded for being over friendly to jurors at Basildon station after a recent trial.  His copy book is now forever blotted.  Unfortunate for him but what about the situation in courts where members of the bench have no private access? Where all court users enter and exit through a single portal.  How many ex colleagues have perhaps uttered a brief word or two in all innocence  to a person prior to or subsequent to a court appearance? With the magistracy being the most politically correct organisation and group of people I have ever encountered I would suggest at all times "mum`s the word".

CURFEWS AND PMQs

It is rare for a decision in a magistrates` court to be the subject of a question to the prime minister during PMQs  but that was the case earlier this week.  Cases such as this occur daily.  

On 11/10/2015 on the topic of curfews  I posted, "The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.



Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.


Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc. "  On 5/11/2015 I followed up on the topic of varying a curfew.


This type of decision often leaves an open goal for lazy reporters and sub editors to score easy headlines and in this case  for an MP to have thirty seconds on PMQs.  But there is an underlying concern that benches are too easily swayed by smooth talking lawyers.  There is no "loophole" in the law.  To remove the option of a variation in a curfew is akin to removing a right of appeal against sentence. The problem as is often the case in such matters is the application of such a right and the ability of J.P.s to deal logically and with dispassion on all that comes before them. 

GOVERNMENT, RACE AND JUSTICE

Everything you ever wanted to know about race and the criminal justice system.

JUSTICE MINISTRY Spending Review 2015

 

      Access here.

                                                     

PUBLISH AND BE NOT DAMNED

Justices of the Peace are notoriously reticent about criticising their own bench and its officers or the magistracy in general.  Even in a closed environment eg the retiring room I had often thought that some colleagues were afraid to speak their minds in case critical comments reached hostile ears.  I had and have some sympathy with this reluctance to be able to speak freely and frankly without fear or favour.  Certainly bench meetings are circumscribed by the agenda, bench chairmen rarely deviating from official policies and the presence of senior civil servants; namely the regional justices` clerk. With recent upheavals and the possibility of more to come in the operation of magistrates` courts and the consequences for witnesses and defendants   I  invite ex colleagues to submit such information and comments to which they would be fearful to have their names attached and they will be published here with anonymity assured the content of course not being abusive or libellous. 

COURTS INQUISITORIAL OR ADVERSARIAL? VICTIMS AND A QUESTION UNASKED

The so called "treatment" of complainants and to a lesser extent witnesses as "victims" within the context of court proceedings especially those in the crown court has been  an increasingly vocal feature of victim orientated  organisations and charities many of which have been founded in the last thirty years. The Leveson Inquiry and the ramifications of the revelations surrounding Savile have accelerated the pressure from those organisations for changes to pre trial and trial procedures themselves.  One such organisation The Criminal Justice Alliance  put forward its own programme of reform earlier this month.  In essence it proposes that a truly victim centric system of justice be imposed upon the current "elaborate, ritualised and – in many respects – archaic system".  Whilst there are few who would deny that there are some aspects of the whole process which lend themselves to reform the concept of a victim orientated justice system is contrary to the historical concept that the state as a disinterested third party dispenses justice equal for all without fear or favour.  This idea along with other social changes instigated by the post war Atlee government gained a concrete base in 1949 by the first legal aid scheme in the Legal Aid and Legal Advice Act 1949 with a focus mainly on divorce and matrimonial problems.  Prior to the cuts initiated by the coalition criminal legal aid accounted for a little over half the total costs.  Those cuts effectively demonstrated that the state was taking a step back from enabling there to be a level playing field where prosecution and accused or plaintiff and defendant could have their cases argued by our adversarial system.  In 2001 victim impact statements were allowed to be read in the crown court but are not taken into consideration when sentencing is decided by the judge.  Although many victims and victim based charities are affronted by this the arguments against such statements are substantial.  Indeed over the last five or so years I had many occasions in which I had to ask prosecutors to temper their language; namely that a CPS witness was to be referred to as a "complainant" during a trial and became a "victim" only  when a guilty verdict was brought against the accused. Occasionally there was an objection that s/he was a victim per se. I rejected such observations.
 

It seems that a fundamental aspect of the whole process has not been put under the microscope; the adversarial system itself.  I have posted here before now that I believe, in the current situation of increasing numbers of unrepresented defendants in magistrates` courts, that the chairman of a lay bench must be prepared to take an increasingly inquisitorial approach enabling the truth to emerge where relying upon inept prosecutors and/or those inarticulate unrepresented defendants  could lead to miscarriages of justice. In like fashion perhaps we need to assess whether the uniquely Anglo Saxon system of crown court  legal jousting would better outcomes for complainants by being replaced by the continental system of an inquisitorial bench.  That question is rarely if ever asked never mind being answered.

JUDICIARY & GOVERNMENT ARE EQUALLY MYOPIC

I had thought that there would be little to mention for a while at least on the criminal courts charge.  I was wrong.  Another judge in the crown court has made public comment.  This just reinforces my post last week about the Lord Chief Justice.  There are about 650 judges (excluding recorders) sitting in our crown courts. I presume they have some sort of representative body.  Where was it when the Ministry of Justice issued its intention to initiate this charge?  Was a decision taken that it would have been unconstitutional to make any reservations known?  Were there any reservations at that time? This whole mess brings the judiciary into disrepute.  It does nothing to uphold confidence in government when we learn today that British built anti submarine planes scrapped before they were commissioned in 2010 are to be replaced by American made aircraft for the very same purpose and that French and Canadian such aircraft last week had to be flown north of northern Scotland searching for a Russian submarine.

CRIMINAL COURTS CHARGE: REQUIEM

For those interested in how our highly respected intelligent and public spirited M.P.s discuss matters of interest and how a mendacious government minister  tries to cover his arse there is no better place to spend five minutes than reading this week`s House of Commons debate on the criminal courts charge and if that isn`t sufficient try reading yesterday`s report of the the Justice Committee of the House of Commons. I think that`s enough until next week.
 

POWER OF WRITTEN WORD

On November 17th I alluded to magistrates` courts reporting in local media.  And as is the way of coincidence two local west country newspapers yesterday  published short reports of of such proceedings which, whilst brief and in one case apparently incomplete, demonstrated the sometimes hard to fathom decisions of two local courts.  It is more than likely that those reading these reports will take more realistic impressions of such things than viewing  any so called expert on T.V.  

LEST THEY BE JUDGED

In my earliest days in the middle chair I can recollect my thoughts at the time of how much respect I had for judges; especially those at the top of the profession.  Their accumulated knowledge and wisdom in addition to the power they exercised appeared to be, from my low level function, quite extraordinary.    But as time went by and my own confidence and knowledge increased that respect began slowly to diminish.  When some of the  judiciary threatened resignation over their pension situation  a further degrading of their position infiltrated my mindset.  In 2012 the Senior Presiding Judge issued so called "guidance" ordering J.P.s not to blog or cease forthwith. My opinion of that "guidance" was blogged on 10/08/2012 at my previous site. It goes without saying but say it I will that my impression of senior judiciary took a further downward turn especially when it transpired he was just blowing inordinate amounts of hot air.  Leveson and his enquiry proposals which threatened then and still do, the freedom of the press was IMHO another judge who seemed to have lost his sense of direction.  Now fast forward to yesterday`s press conference by the Lord Chief Justice.  If ever their was a public indictment of the inadequacy and shallow thinking of a person in his position it was in his own replies to questions about the criminal courts charge. 

CLIVE COLEMAN (BBC):

Can I just ask you specifically about the criminal courts charge? Fifty magistrates at least have resigned already because they consider it to be extremely unjust and unfair. They tell stories about defendants who are making a commercial decision whether to plead guilty or not based on the size of the charge they would have to pay in respect of that decision. The Government are committed to review within three years. The Magistrates Association want that review to take place immediately. They want the charge to become discretionary. It is causing a huge amount of concern. What is your view on that? 

 

 

THE LORD CHIEF JUSTICE:

When the criminal courts charge was mooted, we pointed out that the only sure area where money would be raised would be from those who commit crimes by way of motoring offences, those companies that commit environmental offences and some rich individuals and those who also have substantial means. It was unlikely ever that if anyone was sent to prison he would ever be able to pay it. I think that the reality of what we said at the time has turned out to be correct. The charge, I do not believe, is raising much money and it does seem to me that although in principle it is right that the financial penalties at the end of a case ought to reflect the ability of someone to pay, the whole thing has to be looked together. If I can give you by way of illustration, for example, at the end of a case there is the victim surcharge, the possibility of paying the prosecution’s cost, there is the question of compensation, the question of confiscation. All of these issues need to be considered in the round. We have gone, as quite often happens in the justice system, from adding charge after charge after charge without looking at it in the round and I think it has all got to be looked at in the round. There must be a case for defendants who can pay and others making the contribution but it has got to be looked at in the round.

 

CLIVE COLEMAN:

So it should be means tested. 

 

 

THE LORD CHIEF JUSTICE:

I do not know. I am not saying that. I am saying that you have got to look in the round at all the financial impositions that are imposed and actually come up with a proper solution of how a court should approach it and obviously one of the considerations must be the means to pay. There may be other considerations but I would not want to prejudge a proper look at the whole thing. When something has not gone correctly, I think the best solution is to look at the problem that has arisen and the problem is a much wider one. 

 

A complete transcript is available here.

It appears that the Lord Chief Justice with all his experience, knowledge and supposed wisdom has confessed to his own incompetence in being unable to predict the consequences of the policy or his inability to persuade Whitehall and the minister of their folly.  Nowhere in his reply does he make the point in principle that justice accessible and available for all, irrespective of ability to pay,  for complainants and defendants alike is a pre requesite   for a just and humane society. Indeed he endorses the very opposite.  The assumption must be that he believes in the policy in principle.  That, in my opinion, is a disgrace! 

NORTHERN IRELAND IS STILL A LAW UNTO ITSELF

There is still court reporting of the proceedings in magistrates` courts in England and Wales even when individual reports are often cursory and only statements of outcomes.  This has much to do with the ascendancy of the BBC News website into every local area of the country at the cost of the viability of local press. Newspapers cease production, jobs are lost and often publications become free sheets produced as cheaply as possible seeking income from as much local advertising as is available.  However with absolutely no statistical evidence beyond my own observations an exception to reduced court reporting appears to be  in Northern Ireland a province rural in nature outside Belfast and where sensitivities to "local communities" are still very strong.  Such seems to be the case in a report in the Lurgan Mail. The convicted offender had pleaded guilty to obstruction of a constable and disorderly behaviour. It seems the disorderly behaviour consisted of offensive remarks.  In England such remarks repeated of course in open court would normally be reported verbatim. Justice is open and however offensive the public has and had a right to know the substance of the charge  put to the defendant

In this case the District Judge said the remarks in question had ‘gone beyond the pale’ and they were ‘gross and offensive remarks’ about another community. Certainly Muslim sensitivity can be ruled out. There are only about 4000 Muslims in Ulster and they are mainly professional people unlikely to have been involved.  It seems therefore that the Catholic/Protestant divide is still causing even judges and reporters to censor their language. 

PARIS MASSACRES AND THE ENLIGHTENMENT OF BRITISH MUSLIMS

From time to time over the last decade questions have been raised in various media about the status, effectivity and influence of Sharia law in the U.K. For many observers and members of the Islamic faith the perception of Sharia law is as important as its reality.  It some cases its function has been likened to a Jewish religious court or Beth Din. The difference however is one of quantity over quality.  There are around 263,000 self defining Jews in the U.K. of whom about a quarter consider themselves as "traditional" and 16% as ultra orthodox or charedi. Generally it is those members of the charedi community who make use of a Beth Din.  In contrast to those numbers there are about three million Muslims in the U.K. How many could be described as Islamists is open to conjecture. One thing is certain and that is as a result of the Paris massacres the blandishments of many on the topic will no longer be taken at face value.  When opinions of wannabe jihadists will almost certainly lead to interest by the security services such opinions will necessarily be kept circumspect.  And that is why the actions of a leading Jewish academic Professor Geoffrey Alderman, whose article in the current edition of the Jewish Chronicle should be taken on board by Muslim clerics, who perhaps have been less than forthcoming about the leanings of some of their co-religionists and be an example to follow. 

The cultural freedoms available for over a century to Jews in this country eg schools, kosher slaughter or shechita, circumcision have been used as an argument that Muslims should have the same freedoms.  The difference is that there are twelve times as many Muslims as Jews and that the latter have for two thousand years lived as a minority  in every country of their  residence until the establishment in 1948 of the State of Israel whilst Muslims have usually lived as the majority religion in states where that religion has been practised. In Western Europe they live as a minority religion in countries which are ostensibly Christian in history, morality and outlook. 

Perhaps the weekend`s atrocity will hasten the day when eg progressive Muslims can openly declare their being gay without the opprobrium of their communities or forced marriage will be declared unacceptable for Muslims in a modern western country where the Judeo Christian heritage has managed to evolve into a 21st century basis where neighbours whilst perhaps not in a state of enlightenment can generally still manage to live in peace and harmony.

THE KING`S NEW CLOTHES

When I was a student and for many years after it was possible to become a chartered accountant or lawyer without having graduated with a degree.  State Registered Nurses at that time probably had the highest respect rating of all professionals.  They also managed to achieve their status through hard work on hospital wards combined with six week block attendance for lectures and other forms of academic training. When those three activities (and others) became available only with a university degree who is to say that the quality of their work was superior to those of earlier years?  Since the mantra of "school leavers must go to uni to have worthwhile job prospects"  became required repetition for politicians and commentators of all shades any voice in opposition was considered to be that of a living dinosaur.  The inevitable result of this supposed enlargement of the academic pyramid base has been the devaluing of all levels of educational qualification from GCE via GCSE to first class honours degrees and the division of professionals into various grades with eg nursing auxiliaries undertaking the tasks so called qualified nursing graduates consider beneath them. Graduate teachers now have "assistants" actually teaching and political uproar is heard when suggestions that some expert but non graduate people are perfectly capable of teaching in the public school environment.   The list whilst not endless is considerable. If the College of Policing has its way any aspiring police constable will require a university degree.  I won`t insult readers by repeating the already well rehearsed arguments against this proposal.  So many so called improvements to the quality of our society are driven by "the king has no clothes on; he`s in the altogether........".  Only yesterday Tracy Crouch, Sports Minister was forced to apologise for any offence caused by her comments re poor people and their contracts for Sky T.V.  Where in the public sphere  are little boys of Hans Christian Andersen`s imagination to tell it like it is?

F.O.I. REQUESTS // MORE QUESTIONS THAN ANSWERS

We all know the extreme difficulty in proving a negative such difficulty making an F.O.I. request on the confiscation of weapons and other items seized at Chester Crown and Magistrates` Courts inconclusive.  What sort of people attending  court consider it appropriate to have a knife on their person?  There is no information to suggest that having those weapons constituted the bases of criminal charges being levelled against those involved although it is illegal to carry a knife in public without good reason  unless it’s a knife with a folding blade 3 inches long (7.62 cm) or less, eg a Swiss Army knife. 

As far as cameras confiscated; there is no mention whether the confiscation was for the owners` times in court or permanent deprivation although I tend to think the former rule applied.  With U.K. smart phone possession estimated at 40 million it is highly likely there is considerable surreptitious filming of proceedings going on. All phones should be deposited against a ticket receipt at the entrance to all courts until the time comes when local entrepreneurs are given permission to televise the proceedings to local audiences. Statistics such as these offer as many if not more questions than answers. Perhaps that`s why Grayling wishes to limit F.O.I. requests proving his attitude to the concept of justice and freedom of the individual is as warped now as it has been in the past.

MEANING MORE OR MEANINGLESS?

The House of Commons and its committees are where we expect our law makers to use precise language supposedly to project their precise thinking patterns. The M.P.s participating are taught to be wary of the usage of their linguistic skills or lack thereof so that members can always be described as "honourable".  Sadly such skill is not always demonstrated. 

A recent written question by Dawn Butler M.P. indicates at least on the surface that she does not understand that magistrates as members of the judiciary don`t prosecute:  they are  finders of fact in the courts that bear their name.  It is carelessness like this on a much grander scale which is responsible for so much loosely drafted legislation which the judicial system has to later decipher.   Sometimes meaning more is more meaningless.

COURTING PROBLEMS

I think it is reasonable to assume that less than half the adult population has ever attended a court as defendant or witness.  Of those who have a minority only will have had that experience in a crown court.  Thus any statistics on satisfaction or otherwise with these courts within the justice system are based on a relatively small sample cf eg the NHS.  With that in mind a report published this week  by the Criminal Justice Alliance makes interesting reading.  Whilst much of the content might be considered controversial the recommendation that judges and barristers might discard their artificial headgear certainly meets with my approval. Robes also come in for crticism.  A history of court dress is illuminating but is purely just that; a history.  Language used in court is also of considerable interest to the authors.  A light hearted translation of the commonly used phrases heard in court is available here for readers` amusement.

How far Michael Gove is prepared to resist budget cuts  whilst in charge at Petty France is a moot point.   One thing seems certain and that is that he will be unlikely to risk unnecessary ire from the legal profession purely in the name of modernisation of the courts process.

 

MAGISTRATES THROUGH THE LOOKING GLASS

During my seventeen years on the bench I warned only five defendants or witnesses of the slippery slope of contempt of court on which their mouths or actions were leading them.  In all cases a brief period in the cells was enough for them {or with their advocate`s advice} to see some sense and make verbal or written apology to the court.  Magistrates in Westminster who are used to dealing with high profile cases  apparently released on unconditional bail until next year,  defendants who refused to identify themselves or provide addresses.  Just how did they and presumably their legal advisor allow this to happen?  It seems those defendants have succeeded in making a mockery of the justice system.

Contempt of court is governed by the Contempt of Court Act 1981 s.12.  A magistrates` court has power to deal with any person who wilfully insults the justices, any witnesses before the court, any officer of the court having business before the court either during a sitting or in going to or returning from court.  In addition the Act applies to anyone who wilfully interrupts the proceedings of the court or otherwise misbehaves in court.  IMHO not providing information legally required by the court constitutes contempt.  

This was IMHO  a grave error on the part of the bench and if some legal expert considers differently then we must face ourselves in the looking glass and wonder how we have lost sight of reality and are living in the world of Alice.

HUMAN RIGHTS? TOO MUCH STEAM?

It is cases such as this which cause compassionate law abiding and sometimes God fearing individuals to question whether the law is out of kilter with the thinking of the common folk of this country.  Their opinions have sometimes been held in disdain by highly qualified "human rights " advocates whilst  politically correct socialists and millionaire entertainers have not been averse to branding such opinions with epithets indicating a more direct contempt. 

At the best of times such events are a cause of disquiet: in a period of heightened tensions and a referendum within 18 months such reports are unlikely to provide more light than heat to the debate.