MORE MUSINGS ON TUESDAY

I doubt that any magistrate who made a similar remark as this judge would be exempt from criticism from his/her politically correct colleagues or legal advisor. 

David Cameron`s attempt to further his socially awareness agenda by considering the establishment of a modern version of what used to be called approved schools must have brought tears to the backwoodsmen in his party including former leader Michael (prison works) Howard. 

It seems that the Bench in Cambridgeshire [this blog Friday February 5th] is not alone in using the media to seek new J.P.s.  The Chairman of the North Staffordshire Bench has a gone a step further by exploiting digital technology. His six minute question and answer session available here is to be lauded.  However I find his statement that there is effectively a target to appoint one third of applicants with a maximum number of the latter limited to 75 somewhat optimistic. I would ask readers to consider their own friends, family and work colleagues who have a spectator`s interest in the topic and consider what percentage would be suitable proposals for the bench. Or perhaps the above categories around myself are as unsuitable as I was once told by one who provided a reference. For the record he apologised not long afterwards for being flippant.  

It seems that "England & Wales" is a combination proper noun that upsets some west of Offa`s Dyke.  I can understand that history is a perfectly logical reason for the legal system north of the Tweed to have developed along its own course but the determination of some presumably Welsh speakers not satisfied with everything bilingual to emphasise their differences from their English neighbours defeats me.  Nationalism in prescribed doses is essential for the cohesion of a population...........to a certain extent.  Attempts to subdue it have produced past disasters........USSR, Yugoslavia and to a lesser extent Czechoslovakia to name three just as rampant unbridled nationalism has produced Nazi Germany, Fascist Italy and murderous Rwanda.  That quest for the appropriate dose still eludes us as we will possibly discover on 23rd June and Americans in November. 

FOREIGN CITIZENS ON THE BENCH

Last Friday [the post beneath this one] I posted on the content of the Cambridge Times where it was reported that the local Appointments Committee was seeking to double the number of magistrates in its area by seeking 200 new appointees.  Today the local print media rival the Cambridge News has a report based on the same story except this time the number sought was not mentioned. Whether this was by accident or design of course I do not know. Perhaps my post had been read by a member of that Committee who didn`t enjoy the content.  In any event  there is quoted a member of the Cambridge Bench and presumably also a member of the Appointments Committee describing the type of applicant they were looking for. "We are particularly keen to broaden the diversity of the Bench to reflect our community by encouraging applications from young people, those from Eastern Europe, those from Black and Asian Minority ethnic groups and those with disabilities."  Now diversity and disability by themselves should not be criteria for appointment as per positive discrimination but encouragement for such individuals is to be lauded.  What I find unpalatable is the direct appeal to the East Europeans who have arrived in East Anglia in large numbers.  Whilst many recent immigrants there and elsewhere  aim to make this country their permanent home and become citizens, citizenship is not a requirement to sit on the bench.  Recently a pre requisite of a US President to be born in that country has been the subject of some scrutiny.  If an individual, however capable, is, for any reason   unwilling or unable to become a citizen of this country where s/he will sit in judgement on its inhabitants it is my humble opinion that such a person should not be offered that privilege.

NEW FOR OLD MAGISTRATES

It is a well known fact that Justices of the Peace are hardly spring chickens.  In fact taking the analogy a bit further a large number is but one slippery foot from the slaughter house.  The members of the bench in Cambridgeshire are no exception.  At the last count in April 2015 there were 206 worthy members of whom 126 were aged over 60.  It is not unlikely that in the ten months since then many more will have retired. It seems therefore that approval has been given for the recruitment of 200 additional  civic minded citizens to join the bench.  This seems to be ludicrous.  What business or organisation would wish to double its number of specialists in one fell swoop of recruitment?  No doubt those clever people in the Ministry of Justice who have been so pre occupied in closing courts and decimating the CPS over the last five years were too busy to consider the effects of a rapidly ageing work force.  My opinion and that of most J.P.s is that it takes about five years to consider a magistrate "experienced".  Those 200 initiates will have to be mentored officially and unofficially by a reducing core of "experienced" colleagues in addition to official training from HMCTS.  To quote from Transform Justice`s 2014 Report on magistrates` training; " In 2008/9 HMCTS spent £3.2 million on magistrates’training. In 2013/14 they spent £559,000. When combined with spend by the Judicial College this equates to a reduction in spend from £110 per magistrate in 2008/9, to £26 per magistrate in 2013/14."

The age profile country wide is not a lot different from that in Cambridgeshire.  The lowest aged areas have an average age of 58 and the highest age of J.P.s is in Westminster at 65. 

The inability to recruit  new J.P.s in sufficient numbers to replace those retiring and/or the difficulty in providing the necessary  cash for training will be heralded as yet further justification for the need to appoint perhaps another 400 District Judges to further the professionalisation of the lower courts system and for the the initials J.P. to be little more than a decorative title for those who choose to offer their services for out of court activities.

ALCOHOL SALES TO CHILDREN//WHEN WILL BENCHES TAKE ACTION?

There are occasions when I just despair at the sentencing of lay benches when  the overriding priority of public protection is either not considered, considered and ignored or not part of the judicial sentencing process. Illegal actions against children are rightly given headlines when sentencing in the crown courts seem to bend over backwards in favour of an offender`s rehabilitation over punishment for the offences.  Only rarely do we read of punishments as a deterrent to others.  Perhaps those who have a tendency to abuse children are beyond deterrence.  

Magistrates are unlikely to deal with physical assaults concerning children but when cash strapped local councils and their Trading Standards departments make the very occasional case against sales of alcohol to under age children s.146 Licensing Act 2003 one would expect a bench to take the matter very seriously indeed. And that degree of seriousness; harm and culpability, should be reflected in the sanctions imposed upon offenders. The starting point is a Band B fine which equals one week`s income with a range from Band A {half a week`s income} to Band C which is 150% of weekly income.  Those notional levels are without considering higher culpability and increased harm to victims.  I commented on the topic in general  here in 2013.  The following year I posted on my personal experience of how these matters are treated in Scotland and last June provided some compelling statistics about the inadequacy of enforcement in England & Wales. 

The sentence dished out to this offender in Oldham for a second similar offence is beyond reason.  A Conditional Discharge and no fine even with the provisos as stated  is an indication of just how fearful J.P.s are of taking their powers to the limit within the law.  Alcohol drinking by children is detrimental on a grand scale to their health and social and mental well being without even considering actions undertaken while under the influence.  The members of that bench and probably others need to wake up.  Repeat after me:- PUBLIC PROTECTION TAKES PRECEDENCE OVER EVERY OTHER CONSIDERATION WHEN CHILDREN ARE INVOLVED.

COURT REPORTING AS IT SHOULD BE

From time to time I have been known to be critical of cases reported in various local print media.  I have also commented upon the quality of such reports and the likelihood that there is little prospect of returning to an era where court reports made up a significant proportion of the content of such media along with births, marriages , deaths, and cars for sale.  Just as buses on a rainy day are nowhere to be seen until two or three arrive in tandem two reports today offer a glimpse of court reporting as it was and should be and are a credit to the newspapers concerned.  Whilst there might be room to criticise the outcomes of the cases reported the publications` quoting of pronouncements have allowed their readership a glimpse of how magistrates` courts actually work. So well done to the Ulster Herald and the Swindon Advertiser.

THE DISTRICT JUDGE OVER WORKED AND UNDER VALUED

There was an interesting piece in yesterday`s Law Society Gazette.  A supposedly overworked and under valued District Judge(MC) is taking action against HMCTS to bring a claim citing disability discrimination and whistleblowing under the Employment Rights Act 1996.  The many comments after the article are as interesting as the piece itself.  For my part I have little sympathy with her.  Perhaps she thought the job involved a very hefty salary with none of the downside of being in practice and a juicy pension to boot. Readers can judge for themselves here.

SUPREME COURT PRESIDENT WAS MISUNDERSTOOD!?!?

There was a time long ago when my respect for judges was almost unbounded.  Successive incidents, announcements, actions and inactions  and pronouncements have eroded that respect. The result and conclusions of Lord Levison`s effort to control the freedom of the press were the antithesis of the basis of a free society and gave this blogger at least the impression that the senior judiciary is marching to a popular tune far removed from its original melody. In April last year Lord Neuberger, the President of the Supreme Court no less made headlines which stated unequivocally that a foreign non religious culture should be able to supervent the requirements for impartial secular, non denominational court proceedings in this country.  It seems his lordship`s thinking processes are not to be relied upon. Last week he had a change of mind.  Now some changes of mind are welcome when a situation or a basis for consideration is altered to such a degree that not to alter an opinion is simply foolish. But nothing of fundamental value has changed in the question of whether witnesses in court should be allowed to wear a veil. Nevertheless he has issued a new statement in The Times 30th January (behind its paywall so scanned below)  telling the world that his previous utterings had been "misunderstood".  Misunderstood!  Are we to believe that the President of the Supreme Court could not make his thinking processes clear to mere mortals?  Are we to believe that this man at the top of his profession; a profession which daily decides upon the machinations of those angels dancing on pinheads, could allow himself to be misinterpreted?  There are only two outcomes.  If we believe then confidence in his position is eroded; if we disbelieve confidence in his position is eroded.

REWARD FAILURE

Along with most other legal commentators or observers this blog was highly critical of the previous government`s Justice Secretary, one Chris Grayling AKA currently as the Leader of the House.  I think it is fair to say that few legal big wigs made any great criticism of his activities whist he was in occupation of the woolsack.....at least in public.  He brought nothing less than havoc to the criminal courts, the magistrates` courts in particular, by the imposition of the criminal courts charge last April.  He tore down the national probation service in an effort to substitute  payment by results from outsourcing companies who have predictably and contrary to their original assurances proceeded to reduce the workforce but at a cost in all probability  of reduced effectiveness in what is now a two tier probation system.  He presided over a walk out of barristers who demonstrated outside the very courts in which they were scheduled to appear and who thus prevented proposed cuts to their fees. Against all advice and common sense he introduced curbs on the books which prisoners could have in their cells.  He contracted to a joint venture on their prison system with Saudi Arabia.  All these proposals bar the changes to probation have been rescinded by Michael Gove.   Earlier this week he scrapped proposed changes to the legal aid contracting scheme for lawyers. 

Rarely if ever has there been such a disassociation and repudiation of one cabinet minister`s actions by his successor of the same party. It is beyond belief that he occupies a front bench position in the House of Commons.  It is little wonder that politics and politicians are held in contempt by the general public when such  failure is rewarded.

WEED: NO EVIDENCE SO NO CONVICTION

I support the decriminalisation of drugs for personal use.  Addiction is primarily a medical problem; criminality is a consequence.  Although there are cogent arguments against,  I believe that beginning with reforming the law for cannabis in all its forms would be a desirable thin edge of a very wide wedge.  During my time on the bench that philosophy was enhanced by the many occasions of a lackadaisical police approach to producing evidence in court of the use of the weed for personal use.  Depending on circumstances cannabis for personal use was an easy collar or an unnecessary irritation.  Events recently at Cambridge Magistrates' Court were,  I`m sure, not unfamiliar to any Justice of the Peace.  It is, however,   unlikely that this government has the cojones to bring forward such legislation.  A very substantial parliamentary majority would have to be in place and the political rewards would need to be apparent.  Weed smokers had best still keep their habit behind locked doors and those don`t include car doors on or off the public highway.  

RISK OF SEXUAL HARM NOTICE//MIRTH IN THE MAKING

There`s an ancient proverb that says more or less that if one offers the devil a finger he`ll take the whole hand.  Apply the metaphor to the police and there is a neat congruity.  Domestic violence protection orders are such an example.  On the basis that the "victim" must always be protected from somebody these iniquitous actions can be applied by a police officer of superintendent rank or above. In practice no superintendent is going to attend such an alleged incident in person; s/he will rely upon a report from a constable or even a PCSO.  The consequences for those arrested and subjected to such an order can be life changing.  For further information government guidance is available here and as an example in practice Sussex Police have published this.  The College of Policing has its own text on the topic. 

In the Sexual Offences Act 2003 can be found the following:-(as amended by the

Anti- social Behaviour, Crime and Policing Act 2014)

126Interim RSHOs

(1)This section applies where an application for a risk of sexual harm order (“the main application”) has not been determined.

(2)An application for an order under this section (“an interim risk of sexual harm order”)—

(a)may be made by the complaint by which the main application is made, or

(b)if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

(3)The court may, if it considers it just to do so, make an interim risk of sexual harm order, prohibiting the defendant from doing anything described in the order.

(4)Such an order—

(a)has effect only for a fixed period, specified in the order;

(b)ceases to have effect, if it has not already done so, on the determination of the main application.

(5)The applicant or the defendant may by complaint apply to the court that made the interim risk of sexual harm order for the order to be varied, renewed or discharged.

The law of unintended consequences might apply to the application of this legislation so I wonder if the bright young minds in Petty France foresaw the possibilities that the sublime would  soon turn into the ridiculous if this poorly considered amendment were followed, as it was to be, by police to the extreme.  North Yorkshire Police in their wisdom would appear to have brought a smile and mirth to every sub editor worth his/her salt  with the decision to specify the conditions under which a man inter alia must inform them 24 hours before having sex with a woman. 

Once again this is an example of so called victim orientated law going beyond the bounds of reason. It will take resolve, good sense and strength for a bench to refuse such applications.  I fear that few will be able to withstand the pressures put upon them when the time comes.

 

CRIME AND LACK OF PUNISHMENT

Despite the introduction of sentencing guidelines a decade and a half ago it can probably be said that no two cases are the same and certainly not the outcomes.  Indeed within the same courtroom I have in the past had to remind colleagues that each and every case had to be assessed on its individual circumstances and that there is no such thing as a judicial size fitting all.  It is, however, interesting to note the dissimilarities between two matters where assault was committed using footwear as the weapon.  Firstly the charges were of different magnitude; grievous bodily harm or unlawful wounding and common assault.  The former unprovoked attack  resulted in serious injury and after a guilty plea the offender was sentenced in the crown court to 18 months custody suspended. The latter case before High Peak Magistrates resulted in 10 weeks custody suspended for the assault by a man on his pregnant girlfriend who was approaching her due date when the assault took place.  

The second matter reminded me of a case over which I presided when the male in a relationship dragged his heavily pregnant partner by her hair to the top of the stairs in the house they shared and pushed her down those stairs.  We were astonished at the undercharging by the CPS and had no doubt that he deserved and received our maximum sentence of six months immediate custody.  With the cases reported above only those in court know the full extent of mitigation offered but on the surface it does appear that the crown court judge might have been feeling particularly benevolent that day.  The case in the lower court does IMHO raise more awkward questions.  Did the CPS under charge?  Did the bench feel apprehensive about immediate custody owing to "advice" from the legal advisor?  If a man can strike two or three times the back of a woman`s head with presumably a reinforced work shoe and that woman  is near to giving birth  and still not receive immediate custody just where are we going with crime and punishment?

THREE OF A KIND

I am one of the fortunate people who can experience a Christmas New Year period as a time for reflection and relaxation. Having some years ago had quite extensive training in traditional hatha yoga and latterly in transcendental meditation not only can I attempt to control psychological and physiological processes it does not take much effort to allow a certain amount of introspection to enter my consciousness.

Sometime after Christmas after talking with an ex colleague  I was thinking of the significance of a bench split in its decision and its consequences at the close of a trial for sentencing. I would hazard a guess that over the years no more than 10% of the trials on which I  sat led to such a division in the retiring room. That minority was probably equally split between both majority guilty and not guilty. Of course nowhere is it recorded whether the verdict is or is not unanimous. The bench makes a collective decision and that is how it is likely to  remain and that is why we are a bench of three and IMHO a fairer method of judicial fact finding than a single individual however well qualified. However while I was active when it came to the same bench sentencing I noticed that there was and presumably is no set pattern and certainly no guidance from anybody. Some former colleagues who were in the “acquit” minority quite logically, when opining on sentence using the correct structured approach, made clear that their situation led them to a minimum tariff whilst others declined to be involved. There is a third group which in acceptance of the bench decision of guilt undertook the exercise without prejudice and partook in the usual manner.

That period of introspection has led me to the conclusion that there is no right or wrong approach morally, judicially or legally with any of the three situations as outlined above. Others might disagree.

REALITY T.V. COP SHOWS AND THE CUTTING ROOM FLOOR

Fictional television shows about police and policing have been a staple part of the home visual entertainment diet since T.V. became the country`s prime means of information and communication. From “Dixon of Dock Green” over half a century ago through “Z Cars” in the 1960s via “The Bill” and “Prime Suspect” our fascination with the genre is unending. Combine that fascination with the techniques of fly on the wall reporting and we have "Forced Marriage Cops". It follows other similar see it as it happens reportage of police involving motorway patrols, city crime cars, police in helicopters, police in boats, police, police, police. One common thread in all these is the supposed control by the programme makers of the final edit. Whether or not payments are made to whom or for what amounts of cash I am not privy but constabularies and their police authorities have sanctioned this warts and all approach and so must believe it is to their advantage that the public has a supposedly unexpurgated picture of what their police forces must put up with in the course of their often dangerous and unpleasant duties. So what happens when some of the uniformed participants act in such a manner that critics, some in their armchairs some more knowledgeable, believe that their officers behaved unprofessionally? Perhaps those who make cheap programmes involving out takes might find the cutting room floors of the involved production companies a source of rich material.  Whether such images would reach our screens is another matter.