PROMOTING CHANGE OR MORE DANGEROUS DOGS ACTS BUT DON`T BLAME US

Transform Justice is a lobby organisation funded philanthropically and run on a tight budget by a former magistrate who left the judiciary many years ago.  Its purpose is:-

"Transform Justice was set up in 2012 by Penelope Gibbs, a former magistrate who had worked (successfully) to reduce child and youth imprisonment in the UK. The charity will help create a better justice system in the UK, a system which is fairer, more open, more humane and more effective. Transform Justice will enhance the system through promoting change – by generating research and evidence to show how the system works and how it could be improved, and by persuading the public to support those changes and practitioners and politicians to make them".

These are laudable aims by any account and are so astutely worded that one would be a fool to simply argue against them.  "Transform Justice will enhance the system through promoting change". The question to be put is what kind of change.  Below are a few quotes on "change". 

Change is the law of life. And those who look only to the past or present are certain to miss the future.

John F. Kennedy (1917-1963) Thirty-fifth President of the USA

You must be the change you wish to see in the world.

Mahatma Gandhi (1869-1948) Preeminent leader of Indian nationalism.

It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change.

Charles Darwin (1809-1882) English Naturalist

Not everything that is faced can be changed, but nothing can be changed until it is faced.

James Baldwin (1924-1987) African-American writer.

To improve is to change; to be perfect is to change often.

Winston Churchill (1874-1965) British politician.

You can't expect to meet the challenges of today with yesterday's tools and expect to be in business tomorrow.

Unknown Source

Progress is impossible without change, and those who cannot change their minds cannot change anything.

George Bernard Shaw (1856-1950) Irish writer.

When it becomes more difficult to suffer than change -- then you will change.

Unknown Source

To exist is to change, to change is to mature, to mature is to go on creating oneself endlessly

Henri Bergson (1859-1941) French philosopher.

When you're finished changing, you're finished.

Benjamin Franklin (1706-1790) American statesman, scientist and philosopher.

Generally speaking those who oppose change are  history`s losers.  It is the quality of change that makes for a better world or a better life.  And so it is with legislation.  The Dangerous Dogs Act  1991 is considered by many to have been a change in the law so ill thought out that it created as many problems (or more) than it solved.  The common term used in such circumstances is the law of unintended consequences.  

Recently  Transform Justice posed the question; "Can we curb our addiction to the short prison sentence?"  Nowhere in the piece is the word magistrate written and this is rather strange.  Nowhere are statistics quoted.  An extract is taken from Sentencing Council`s "Consultation on draft guideline for Imposition of Community & Custodial sentences"..........  "suspended sentences are being imposed as a more severe form of community order where the offending has not crossed the custody threshold."  This is indeed disingenuous and unworthy of the authors and TR.  Within the consultation are listed the clearly defined steps sentencers must employ before the imposition of custody and the basic first hurdle is that custody is the only option its threshold having been breached.  From my own experience it is new J.P.s and the probation officers  who write pre sentence reports who often do not understand this.  I have lost count of the number of times I personally, a single J.P., have told probation after reading a PSR sentencing option which goes from recommending a community order to a suspended custody order that there must be a clear breach of the threshold before that option can have validity.  Speaking from the position of magistrates if they are unaware that Suspended Sentence Orders are being imposed against defined structural decision making, the blame must fall at the feet of their legal advisors and those who design training and/or appraisers` courses.  

On short sentences whether or not suspended there is a clear difference between those imposed at magistrates court or at crown court.  By the very structure of our system they are used with much greater frequency in the former where in 2014 73,993 were imposed [up to 6 months] of which 30,058 (40.6%) were suspended. At crown court there were 9,227 sentences up to 6 months and a total out of all crown court sentences of 22,921 suspended. Of these SSOs no record is available of their length.  Another surprising omission from government statistics is the total number of breaches of SSOs  and their consequences.  To argue against short custodial sentences which are suspended without knowledge of the consequences of their being breached is myopic indeed. 

There are only two consequences of the raising of the minimum custodial sentence to 12 months as some would wish; either all boats in the water would rise on the rising tide or the safety of the public and the concept of punishment per se would be at risk.  The decimation of a national probation service, the unavailability of legal aid,  the disgrace of our prison system, the continual pressure on budget of our whole judicial system including enforcement of all kinds.......police, border agency etc are such that any tinkering with the current processes is liable to have far reaching consequences; some unpredictable.   But what do politicians care?  The next election is their priority and if our legal and judicial system is showing signs of collapse blame the Opposition or the EU or multi national tax evaders or immigrants or benefit scroungers or dangerous dogs but don`t blame us.

JUDICIAL OBSERVATIONS

Within the legal world it is widely known that the numbers of  magistrates have fallen dramatically in the last few years.  This decline has been inevitable.  One does not have to have had the abilities of a Nostradamus or the resources of Channel 4 "Dispatches" to have predicted this radical change to the way in which this and the previous government viewed the institution.   Eight years ago there were just a little under 30,000 active J.P.s; today they number fewer than 20,000. The reasons for the decline are the reduction in cases brought to the lower courts, the closure of about a third  of court buildings and the  resulting difficulties of J.P.s travel arrangements, the deliberate employment of increasing numbers of professional District Judges(M.C.), the skewed age profile of the magistracy and to a lesser extent the resignation of magistrates owing to their opposition to the previous regime`s removal of the level legal playing field for the poorer in our society by the restrictions on legal aid and the imposition of non means tested court charges.   I cannot recollect publication of the numbers of resignations prior to the announcement earlier this week.  It seems that this is going to be a bumper year where J.P.s for whatever reasons have shown two fingers to an appointment which I`m certain they were proud and pleased to have originally accepted. Perhaps the damning verdict of the The Public Accounts Committee (PAC) earlier this week that the criminal justice system is near breaking point is connected to the disillusionment of former colleagues.  When the financial resources to a system are reduced to the bare bones  for functionality there cannot be any surprise when that system collapses under the minimum disturbance to its already failing processes. Those who have been shouting "wolf" for the last decade have been vindicated in their pessimism.  It is hard to see there is a way back for what used to be a the most highly respected justice system in the world.  We are all the poorer individually, nationally and internationally for that. 

But all is not doom and gloom for errant judicial office holders.  According to a statement from the Judicial Conduct Investigations Office (JCIO) instead of being kicked out for actions which might until now have been deemed incompatible  for a  judge or magistrate with expulsion  being the result it seems that a suspended sentence might now be considered the  appropriate sanction.  

JCIO Message:
“Following advice from the Ministry of Justice (MoJ) legal team, we are informing all parties involved with the judicial conduct process of a change in advice regarding the use of suspension as a disciplinary sanction.
The Lord Chancellor’s (LC) and Lord Chief Justice’s (LCJ) disciplinary powers are set out in Section 108 of the Constitutional Reform Act 2005.    Previously, we have operated on the basis that the LCJ can suspend a judicial office holder as a sanction, with the agreement of the LC, as an option for any action that constitutes serious misconduct, but may not warrant removal from judicial office.  This was on the basis of reading 108 5 c) of the Act as a stand alone criteria, giving the LC and LCJ the ability to suspend a judicial office holder for the purpose of maintaining confidence in the judiciary.
However, in light of advice given on an ongoing case, the MoJ legal team have looked at this provision and have raised a concern about how suspension is currently being applied as a sanction.  Their interpretation of the disciplinary powers set out in Section 108, in accordance with the parliamentary counsel’s explanatory notes, is that the suspension can only be issued in a specific set of circumstances.  They have explained that S 108 5) needs to be read as a cumulative set of circumstances and 108 5 c) cannot be relied upon separately to issue suspension as a sanction in any circumstances outside those listed in this section.  The explanatory notes for this section state:
Section 108: Disciplinary Powers

317. Section 108 will form the basis of a disciplinary system in relation to senior judicial office holders in England and Wales and the holders of offices listed in Schedule 14. In accordance with the section the Lord Chancellor may only exercise his statutory powers to remove judicial office holders in accordance with prescribed procedures (which are defined by section 122 as procedures prescribed by the Lord Chief Justice with the agreement of the Lord Chancellor in regulations made under section 115 or rules made under section 117). Following the formal disciplinary process the Lord Chief Justice may formally advise or formally warn or reprimand, a judicial office holder, but only in accordance with prescribed procedures and with the agreement of the Lord Chancellor. As provided in subsection (3) this does not affect the ability of the Lord Chief Justice to speak informally to any judge about any matter of concern, or to issue general advice or warnings to the judiciary.
318. The Lord Chief Justice may also, with the agreement of the Lord Chancellor, suspend a judicial office holder from exercising the functions of his office if the office holder is subject to criminal proceedings; is serving a sentence for a criminal offence; is subject to disciplinary proceedings following a conviction; or if, following a criminal conviction, it has been decided not to remove the judicial office holder from office, but the Lord Chief Justice and Lord Chancellor agree that a period of suspension is required in order to maintain confidence in the judiciary. Senior judges may be suspended during proceedings for an Address in Parliament to remove them from office. Office holders who are listed in Schedule 14 may be suspended during criminal or disciplinary investigations, prior to any conviction.

This advice has no impact on the process for interim suspension pending the outcome of an investigation. 
The MoJ legal will continue looking at this matter and advise us of any implications this may have in going forward.  I will be in touch as soon as we have any more advice.
End of JCIO Message

Perhaps we shall soon have appointed judicial licensing officers to oversee their clients during their period of rehabilitation.   

A LITTLE OFF TOPIC WITH THE E.U.

Down to earth now from the surrealistic event that many holidays are especially those with funny money and unbearably hot temperatures.  Flying over the same area on the very morning when  another plane was blown out of the sky was not at all comfortable.  This blog by its very purpose has touched on political points only when matters of the application of justice and associated considerations have been applicable. This morning after the holiday nights before, I had intended focussing on the school attendance appeal at the high court; a topic on which I assume every J.P. in the country has had experience.  But that was until I read of the E.U. by way of the President of the European Commission Jean-Claude Juncker`s decision to invoke the rule of law mechanism to override the decision of a nation`s parliament.  There will be those who comment that extreme right wing parliamentary decisions have no place in any E.U. country.  But wasn`t the whole European concept to ensure that cataclysmic right wing nationalism of the 1930s could never be repeated?  

Nationalism is part of the bedrock of all nation states.  It could be argued that attempts to suppress such ideologies have been shown to be futile when the authoritarianism that imposed the suppression was weakened. The collapse of the USSR and the fragmentation of   the former Jugoslavia   are just two examples. The resulting conflicts were disastrous.  

Like the steam from a boiling kettle finding an outlet in the spout or the power derived from steam engines large and small being usefully directed the phrase "let off steam" has become a pithy way of describing  excess to be dissipated  as eg the parliamentary assemblies in Scotland and Wales have, so far, allowed their civil societies to function with those for or against full independence being able to join together co-operatively.  

It`s all very well for Mr Junckers to spit fire and brimstone at Poland and Austria but if Marine Le Pen becomes the next French president I doubt she would bend to his tirades. Nationalism is part of the living breathing nation state.  It functions beneath the surface everywhere and is kept under control by democratically elected governments. By attempting to throttle it the E.U. has presided over its biggest increase in popularity  all over Europe since 1945.  For that single reason I will be voting OUT on June 23rd.    

SUN SEA AND SAND

THE DISGRACE OF A MANCHESTER POLICE CHIEF`S APOLOGY

During the height of The Troubles Manchester was the scene of a horrific IRA attack.  Thankfully mainland atrocities perpetrated by adherents to Irish nationalism are historic now and for the foreseeable future.  The situation with Islamist terrorism in the UK has, sadly, not yet peaked and various government departments have made this abundantly clear in their arguments for increased intrusion into electronic data monitoring to be included in the so called snoopers` charter. Therefore when an exercise in police response to a full scale terrorist attack in that city was designed it was patently obvious to all involved that the "terrrorists" would be inspired as were those last year in Paris by their interpretation of Islam....i.e. they would be referred to as Islamists and not Muslims.  In order to provide as much realism as possible to this simulated situation the "terrorists" were instructed to shout the exaltation  widely used in such actual suicide attacks not just in Paris but in Mumbai, Tunisia, Jerusalem, California, Nairobi and elsewhere....... "Allahu Akbar".  If one thought that political correctness itself was approaching or past its sell by date one would have been very wrong.  Twitter activists and others presumably objected to the stereotyping of the attackers as Islamists and have persuaded Manchester Police to apologise.

This I find intolerable.  One tweet was as follows

 CommunitySafetyForum ‎@CSFUK

This sort of thing panders to stereotypes and further divides us. It will increase anti-Muslim hate crime. https://twitter.com/siemaiqbal/status/729940662808907776 …

9:04 AM - 10 May 2016

It flies in the face of logical thought to argue that using a term that is the basis of Islamist terrorist activity as shown by actual terrorists in actual terrorist massacres of innocent people  is likely to further harm community relations. That is palpable nonsense. Harm is done when some Muslims and their sympathisers  fail to denounce those in their midst who would  seek to impose Sharia in this country. For a police chief to apologise in this situation is a disgrace to his uniform and an insult to the citizens of all faiths and none whose safety he has sworn to protect.  

ISLINGTON COUNCIL BLAMES MAGISTRATES FOR CRIME

The relevance of the lay magistracy in the 21st century has been questioned by many legally and not so legally orientated personel and organisations for many years. Indeed towards the end of the last century as a fairly new Justice of the Peace I replied to an article in The Times by a Robert McFarland who had been quoted by a House of Commons Standing Committee discussing "Draft Maximum Number of Stipendiary Magistrates Order 1999" during which and I quote, "The Chairman: Order. We should stick strictly to the subject of the increase of stipendiary magistrates from 50 to 56." 

How times change! But I digress. Amongst other exchanges within the committee on that day was,

" An interesting article appeared in The Times on 9 November 1999, entitled ``Time to lay off lay magistrates''. The article was written by Robert McFarland, who was a member of the Glidewell inquiry into the Crown Prosecution Service. The article presumed, directly and by implication, that the lay magistracy was not democratic or representative, and that it was expensive and ineffective.  

  

My reply to that original article is copied below:- (apologies for magnification but easily read with "magnifier")

All this demonstrates that the lay magistracy has long been considered by many of the supposedly great and good to be an irrelevance to a modern functioning of summary justice. 

An example of such thinking is that of Islington Borough Council in London or rather those responsible for its recently published Scrutiny Committee Report.  Unsuprisingly there was considerable reaction to the Report in local media. And what features in the headline?.......crititicism of the local bench of lay magistrates. When it`s convenient the media often forgets that perhaps 20%-30% of all cases have a District Judge presiding.  Nevertheless on p4 of the Report it can be noted that not a single individual from the local judicial area was invited to give evidence.......not a justices` clerk or his/her deputy, not a bench chairman, not a District Judge.  But take a look again at the headline in the local paper....

"Fears young thieves and drug dealers are getting an easy ride from Islington magistrates"

This form of insideous undermining of magistrates is so common as to be ignored by most.  But like the Chinese water torture so called it can have a destablising and disturbing effect on local justices of the peace.  Of course only Islington Council can know why there was no request for a magistrate or court official to offer evidence or opinion or maybe attendance was rejected by those asked.  Perhaps appropriate people can re-think or if there were no such request make their opinions known to Islington.   

 

NORTHUMBRIA CONSTABULARY`S HOUSE OF CARDS

Last Friday I offered my opinion on what actions should take place to rid all our police forces of the rottenness within.  And let there be no doubt that the whole barrel is rotten.  A few days ago the decades old whisperings about South Yorkshire  police brutality during the miners` strike became audible even to the hard of hearing, political or otherwise.  Now it truly is beginning to resemble Sid James, Kenneth Williams et al and Carry on Constable with the revelations in Northumbria Constabulary of the extra marital internecine goings on involving a chief constable, two of his deputies, his P.A. and her cuckold superintendent husband.  But what brings this truly extraordinary testosterone fuelled tale into focus is the alleged cover up being exposed and as with all cover ups it`s the exposure of such which brings down the house of cards.  

MCKENZIE FRIENDLESS

Earlier this year on 12th January I commented unfavourably on McKenzie Friends. The Law Society Gazette has brought this topic once again to the attention of readers........and about time too. The MOJ, if it had its ear to the ground which apparently it hasn`t,  would have instructed  one of its minions in the judiciary to offer an opinion or even a direction on the subject but it has not.  With availability of legal aid being limited to an increasingly reduced number of defendants no doubt said ministry considers that any group however ill prepared for the task of  representation of alleged offenders is to be welcomed whatever its shortcomings if it is cheap enough and doesn`t affect its budget.  

We have seen this approach so many times it is repetitive to list.  Suffice to say it is a matter of some urgency that those involved are subject to regulation. The readers` comments are as  informative as the article.

POLICE NEED CLEANED OUT

My first memory of being involved with the police was when I was about 12 or 13 years old.  Outside the council flat where I was brought up I idly threw a pebble towards a telegraph pole when waiting impatiently for a friend to turn up.  A police motorcyclist happened to ride by at that very moment and when asked I casually admitted to him that I had indeed thrown the pebble.......about the size of an old fashioned shilling.  He took my name and address.  The long and short of this sorry tale is that I appeared with my father some weeks later at the local police station to be given a stern warning from a sergeant about any similar future hooligan conduct.   The next occasion I had imprinted on my mind about police activity was when shortly after becoming professionally qualified and days  after I had bought but couldn`t afford a shiny new red sports convertible I had to collect it from the local police car pound where it had been taken for illegal parking.  There was a deep ten inch scratch along one side.  When showing this to the officer in charge, who would have put fear into Mike Tyson by his size,  after I had paid to collect it he asked me in a most threatening manner, "Are you accusing the police of damaging your car?"  I declined to answer and drove off.  

We have all read about and sympathised with the Hillsborough victims` families.  Some might have been shocked by revelations of the police actions at the scene and the subsequent conspiracy to cover up their failings. And some including this former magistrate will not have been the least surprised.  In just five minutes cruising the web this morning I have noted six articles which are deeply disturbing and revealing about the current state of policing integrity or the lack of  in this country.  These are concerned with senior officers and officials.  For all ranks the figures are truly eye opening. West Midlands Constabulary eg has sacked 40 officers and staff for misconduct over the last four years. An example of the procedures required when disciplinary matters are considered within a police force is provided by these 29 pages from Derbyshire Police. *Yesterday it was reported that a Borough Commander in the Met Police was under investigation for gross misconduct.  At this point of course it is  solely allegation but the definition of gross misconduct is such as to be interesting. It is defined by the Met as, "Gross misconduct is defined as a breach of the standards of professional behaviour so serious that dismissal could be justified."  Just yesterday after the Hillsborough verdict the newly appointed temporary Chief Constable of South Yorkshire Police gave notice of resignation owing to her recent history in Manchester.  Why on earth was she placed in post by the local Police and Crime Commissioner responsible?  Surely her background must have been checked and found wanting and if not the incompetence is breathtaking. And he is not the only PCC to have had questions asked of competence and integrity.  In Hampshire the PCC is facing serious questions also.  Cleveland, the county where its Chief Constable was sacked in 2012, now has its PCC and Police Authority involved in a public dispute relating to matters arising from that dismissal.  Not to be outdone, in Northamptonshire PCC Adam Simmonds is finding it awkward to extricate himself from allegations of illegal leaking of data. 

The recently established College of Policing in its attempt to become a learned professional body such as the General Medical Council or the College of Optometrists has drawn up a working Code of Ethics.  I wonder how long it will be before it is involved in its own controversy?

Over the years there have been public inquiries into many individual actions of police  eg the murder of Stephan Lawrence.  If any other so called profession had a similar history of incompetence, malfeasance and misconduct concerning senior personnel there would have been such outpourings from the great and the good not to mention public pressure that  there would have been established a public inquiry headed by a Lord this or a Lord that into the whole operation of policing in this country encompassing all the strands encountered by the Independent Police Complaints Commission now renamed Office for Police Conduct.  

There has been in recent years a renaming of the Border Agency and Criminal Records Bureau by the Home Office. It is a moot point whether apart from window dressing there has been any worthwhile benefit of such an exercise.  Of one thing there is no doubt.  There is an urgent need to clean out the Augean Stables. 

ADDENDUM 4th May 2016 

* It seems this sorry story has some way to run.

DON`T MENTION YOU`RE A J.P.

When speaking in support of or giving a character reference for an offender it is not unlikely that the supporter would submit his/her name, qualifications and relationship to said offender in order to enhance the magnitude, depth, sincerity and beneficial effect of the words spoken or written.  If that supporter is a magistrate it would be most unwise to mention being such an office holder. 

The Judicial Conduct Investigations Office recently released the following statement:-

 

“Mr John Kavanagh, a magistrate appointed to the Bury and Rochdale Bench,was subject to a conduct investigation. The Lord Chancellor and Mr Justice Leggatt found that Mr Kavanagh had inappropriately signed a character reference for a party to court proceedings using the JP suffix. TheLordChancellor and Mr Justice Leggatt considered that this action amounted to misconduct and have issued Mr Kavanagh with formal advice”.

JUDGE LIFTED CURFEW FOR GLASTONBURY//A PERVERSE DECISION

Magistrates decisions to vary curfews for events such as impending holidays booked or special family functions often incur public criticism for their benevolence. Members of the senior judiciary have, from time to time,  reminded magistrates` benches to be cautious when agreeing to vary the terms of  a curfew order to suit the defendant whatever the reason. At the crown court where there are fewer curfews imposed judges perhaps don`t realise the implications of such decisions.  My experience sitting on appeals at crown court reinforces that impression. However HH Judge Peter Blair QC at Swindon Crown Court decided that an offender`s attendance at Glastonbury justified lifting of a curfew for that purpose.

HH decided that his offence was serious enough to demand a twelve month custody order.  He found, as so often is the case,  that that could be suspended. Surely that was sufficient leniency in such a matter?  One doesn`t need to be a hang and flog `em red faced overweight right wing Tory or  Peter Saunders of abuse victims' charity NAPAC  to find lifting a curfew in such a situation a perverse decision .  One could even be a socially aware blogger.

THE BRITISH SENSE OF FAIR PLAY// DOES IT STILL APPLY TO JUSTICE?

I have read with interest the recently published report by Transform Justice " Unrepresented defendants in the courts : a travesty of justice?"  It certainly is of some interest even although it omits a thorough analysis of the whole undertaking.  In effect it offers a "hearsay" approach which some might say is better than nothing.  Questions asked are certainly of importance for anyone who has concerns that some aspects of the system are failing the true test; to convict the guilty and acquit the innocent which translates or should translate  as " It is far better that 10 guilty men go free than one innocent man is wrongfully convicted". 

The suggestions put forward require changes in basic procedures, the collation of data and some little government expenditure.  Last year I interviewed several of my former colleagues on this self same topic........MAGISTRATES` THOUGHTS ON UNREPRESENTED DEFENDANTS . The questions posed were by and large similar to those of the Transform Justice report.  The answers from the magistrates were carefully considered and perhaps more appropriate conclusions were forthcoming insofar as the required additional cost was insignificant but the improvements for defendants tangible. 

The provision of written material to be sent with the court summons  would, they agreed, be of enormous assistance to those people contemplating self representation.  All the aspects described in the report where knowledge might be lacking could be incorporated in the mailing.  Such documentation could of course be made available on line for minimal cost.  It seems that Transform Justice`s interviewees were unable to think outside the box.

The other innovation my interviewees considered with some favour was more controversial; namely an increased inquisitorial role for magistrates in order to level that ever diminishing equality of arms.  There is no doubt that there is a tendency for government to see an increasing conviction rate as a proud boast of its successful law and order policies.  For that to come at the price of losing our sense of what foreigners used to call "the British sense of fair play" would be a loss for us all. 

HARD CORE OF POLICE WITH NO ETHICS

One of the benefits of our supposedly open society is that scandals involving public bodies or personalities are no longer so easily brushed under the carpet.  From lecherous avoricious senior police officers, drug taking bank chairmen, lying M.P.s, incompetent quango chiefs and paedophilic pediatricians to terrorist sympathising government advisors, and despite Leveson, the shit concealed under layers of   bureaucracy by some organisations is still being revealed to the dismay of those who continue exclaim that corruption levels in this country are minimal cf the rest.  Perhaps Kent Police and its PCC agree and perhaps they`re complacent.  I would hazard an opinion that in every police force there is a hard core of officers who show scant disregard for the ethics of the job they`ve chosen for a career. 

It is hard to find anything satisfactory to observe in this case only to note that it appears that no senior officer is under investigation for either incompetence or involvement.  Once again it is an organisational error.   As far as the lawyer involved in this;  I would hope that s/he is investigated by the appropriate professional authority to determine whether or not her/his hands are snow white. 

ADDENDUM 28th April 2016

In the old days it would have been called "a stitch up".  But this time it failed.  Just another everyday story of police folk.

INTOXIMETER CALIBRATION LEGAL REQUIREMENTS

When considering drink driving cases and a defence lawyer began questioning the accuracy of the intoximeter I was usually reminded by the legal advisor that the bench was obliged to assume that the instrument was correctly serviced and calibrated according to instructions.  I have found nothing on line which dictates the legal requirements of an actual machine`s accuracy and required  frequency of calibration apart from this guide.  This week another famous sportsman is in court on a motoring offence. Danny Cipriani`s lawyer is questioning inter alia the accuracy of the machine used to test his client`s breath alcohol. 'We can't tell by the reference to some of the readings that the machine was reliable.' Prosecutor Katie Weiss contested the application, insisting the court had enough evidence the machine was working properly to continue the case". 

Howard Ribble, chief magistrate; a man not to be trifled with, will give his decision tomorrow.  I am quite surprised at that need for consideration while he makes his own investigation into the defence allegations.  If a bench cannot assume an intoximeter`s accuracy for the purpose of prosecution there will be many offenders considering whether they should spend hard earned cash to consult expert legal opinion.  The CPS will have its own headache  with which to contend.  

ADDENDUM 26th April 2016

The defence application that there was no case to answer has been thrown out..........and quite right too!

EACH ACCORDING TO HIS MEANS EXCEPT MILLIONAIRE FOOTBALLERS

I do think that lay benches when confronted by the wealthiest and highest earning offenders are simply afraid of exercising their lawful powers with respect to financial penalties imposed.  They seem seem unable to grasp that if an offence has a range of fine between two bands or eg a single band B [one week`s wages] that that indicates the level of fine which should be imposed irrespective of the offence.  So an individual earning £500 per week who is guilty of a Level 3 offence [maximum fine permitted £1,000] would be fined £500 with a reduction of one third if s/he had pleaded guilty. On April 18th I referred to the case of a Premier League footballer whose fine was unrelated to his enormous income.

It seems that last week I had missed the case of another such footballer who plays for Leicester City F.C.  He became a totter and was duly disqualified for the statutory six months but once more the financial penalty imposed for the speeding offence which put him over the limit seemed to be totally unrealistic.  He was fined just £200 for the Level 3 offence Band B.  His lawyer was apparently as inept as the bench was cowed. According to the report , "His lawyer Imogen Cox told the court his wage - reported to be around £55,000-a-week - was "above the level for the maximum fine" and said he would be able to pay any fine "within the day".  Why oh why was not the fine imposed which his income demanded; £666 assuming the guilty plea?

I make no apologies for stating that such failure to punish the highest earners to the full financial level allowed by parliament brings the law into disrepute and is a further encouragement for those who claim that lay benches are barely fit for purpose thus furthering the arguments of those who would prefer to see our lower courts presided over by full time civil servant government employed District Judges{M.C.} 

Fined according to means has been the principle that parliament has long applied to our legal system. But the impression is there that the treatment of those on very high incomes is at the cost of a stand still or reduction in the standard of living of the average person. We are in a period of doctors overturning the Hippocratic Oath in preference for increased wages using patient concern as their justification, of austerity being used as the reason for reducing incomes of those most in need, of house prices at such levels as being unaffordable for many, of a government trying to frighten us that in fifteen years we`ll all be £4,300 poorer  and for lay benches to add to a local population`s impression that the the rich get richer and it`s the poor what gets the blame is a sure recipe for a disgruntled population to consider that voting for a thinly disguised Marxist government in 2020 would be no bad thing.

THE LANGUAGE OF JUDGES

The judiciary relies on language.  Such a comment might seem superfluous; don`t we all rely upon it?  Judges especially at the higher levels of their profession must use language as a fencer uses a foil......a delicate yet deadly apparatus to be applied with precision.  

The notorious solicitor advocate, known as Lord Harley etc etc found himself in rather hot water when appearing before HH Judge David Wynn Morgan  in 2014.  As a consequence he took action against the judge whilst action was taken against him by the Solicitors Regulation Authority which has not yet published any decision. Meantime Harley has in turn issued papers against the Solictors Disciplinary Tribunal. 

Last year the original judge involved HH Judge Wynn answered these complaints by Lord Harley before the Judicial Conduct Investigations Office. On 2/7/2015 it published the following:-

"2 July 2015 – His Honour Judge David Wynn Morgan

The Lord Chancellor and the President of the Queen’s Bench Division, on behalf of the Lord Chief Justice, have dismissed complaints against His Honour David Wynn Morgan, a Circuit Judge sitting at Cardiff Crown Court following an investigation into his conduct. The Lord Chancellor and the President of the Queen’s Bench Division found that HHJ Morgan was entitled to challenge the appearance and status as a legal representative of Dr Alan Blacker, also known as Lord Harley and this did not amount to misconduct. HHJ Morgan has been issued with informal advice regarding how to deal with such situations in future. This is not, however, a form of rebuke or disciplinary sanction".

Returning to my opening point about language; the sentences I have highlighted seem puzzling. There has been no rebuke or disciplinary action against him but he has been issued with informal advice.....

Why has this sentence been published unless JCIO indeed intended  to put into the public domain its censure however informal.  If I were His Honour I would not be too pleased at the shades of meaning implied.

ADDENDUM 3rd May 2016

With regard to the notorious so called Lord Harley there has been a further uncomfortable  twist in the tail (tale?) of said lord.  Read the report here.  

THIS BENCH SEEMS TO CONSIDER THAT SOME ARE MORE EQUAL THAN OTHERS

Premiership footballers who appear in court on whatever level of offending must expect the procedings and outcomes to be of public interest.  It might be the case that such intrusion would be much diminshed  if,  as fifty years ago, they were being paid around the average workman`s wage, but when their average  wage is £44,000 weekly media interest is par for the course. Driving offences attract intrusion like no others because the majority of us are drivers and we can relate outcomes to our own incomes. Unlike in Switzerland where exceedingly wealthy individuals flouting traffic regulations eg speeding, can have enormous fines imposed this country has a laudable principle of fines according to means. Driving not in accordance with a license is a Level 3 offence [£1,000 maximum] with 3-6 penalty points imposed with a fine of half a week`s wages.  

Papiss Cisse who plays for Newcastle United  was recently in court where he pleaded  guilty to [I presume] driving not in accordance with a license aggravated by other offences. He was fined £220 and with other fines and costs  left the court £547 poorer not forgetting 4 penalty points.  Perhaps somebody can explain why the bench did not fine him £666 for the offence and increase the number of points handed out.

My time on the bench never involved me in any matter dealing with a multi millionaire sporting personality but had I been I would have sought to make a case for the highest financial penalty to have been imposed within the law and within a structured argument for that decision. For that bench to apparently not to have done so is a matter of regret.  For the many thousands in the local area it will have brought the magistracy into disrepute.  It demonstrates that equality before the law is limited by the appearance of some being more equal than others.

THANKS FOR THE MEMORY//A MEMORABLE SITTING REMEMBERED

From time to time during my "active" years there would be a sitting that was just made to be the subject of a post but owing to pressures of time and other matters never got past the "for future blog?" folder.  The following is one.

I suppose for colleagues who sit the minimum number of times ordered by the Chancellor; a half day every two weeks, many sittings remain in the memory by virtue of their relative rarity. For me and others similar being fairly frequent sitters by virtue of the courts` demands and our availability many such sittings drift away from the conscious mind after a week or two; many but not all. Such was a Friday 13th last year noted in my diary as being certainly unlucky for some who were before us. Our listed trial had completed early and we were feeding off the crumbs of Court 1`s table.First there was Mr A. who was brought in on a warrant having failed to appear for his DV trial the previous day when surprise, surprise he had been found guilty in absence of common assault on Mrs A. Mr A. was no youngster experiencing the pain of early marital difficulty. He was 47, about 5ft 8” and looked extremely capable of delivering a good right hand to anybody who crossed him and that included members of the bench as when he was asked to identify himself he launched into a tirade re recent events. Our L/A whose feistiness sometimes erupts prematurely from her 5ft nothing frame was perhaps a bit premature in threatening him with all manner of judicial retribution but eventually he answered the question as to why he had failed to attend with the bland statement that he had got the dates mixed up and anyway didn`t their honours know that the previous year a jury at Crown Court had taken only ten minutes to find him not guilty of inflicting GBH on his wife. When asked whether he had more to say than getting his dates mixed up he shook his head. He grudgingly agreed also that he had received due notification of the hearing in addition to being in possession of his bail form. He denied that he had heard the previous bench`s warning of “trial in absence” a note of which was in the court file. Our position was made clear by the L/A who told the court that we could re-open the case and set a date for a retrial or proceed to sentence. We decided on the latter course. This pronouncement fanned Mr A`s fuse which had been slowly igniting. His objections became a tirade against all present. The chairman gave a nod to the very efficient usher who called for a security guard just prior to seeing one through the glass door panel going past in the corridor outside. She opened the door to request aid. So far Mr A`s violence was confined to the English language. Our usher returned and whispered to our L/A within our hearing that owing to our courtroom not having a secure dock SERCO would not attend. The chairman said that that was the prime reason why they must attend. Mr A had quietened down for a minute. He probably heard the usher saying that the SERCO person had told her it wasn`t in “the contract”. After a hurried conversation our L/A announced that the court would be transferred to Court 2. For those in the know Court 2 had a secure dock. We retired. Later the usher told us that Mr A had not answered the tannoy and was not in the building. A warrant was issued not backed for bail. 

 And then there was Elijah. He had pleaded guilty to obstructing a police officer in the course of his duty by refusing to be searched for drugs. Strip searched at the police station he had been pharmaceutically clean. He was twenty two years old, handsome with smooth black skin, had a perfect smile of perfect teeth and was athletically built. My female colleague whispered that with looks like that he should have been a film star advertising toothpaste except he wasn`t in Hollywood, he was in court and he had two pages of previous consisting mainly of theft, criminal damage and possession of Class B. He had experienced everything the justice system could offer except imprisonment as an adult. He was asked in simple terms to mitigate although as soon as he began to talk it was apparent he had the intellectual and verbal skills to match his appearance. When he had finished the chairman commented that it was truly ironic that having many convictions for possession he was standing in the dock for refusing to be searched when he had nothing on him. He smiled. He had been in police custody since 2.00am that morning so we deemed his £50 fine served but imposed half the CPS costs plus surcharge. On being told the money was due there and then he replied, “No problem”, smiled a perfect film star smile at my female colleague and was directed to the payment office. I think my colleague was still blushing when we left the building.

UNPAID LITTER FINES & SIMILAR; PRISON OR THE NAUGHTY STEP?

People of a not so certain age when discussing current social mores will sometimes use the phrase, "in my day" to describe changes which in their opinion are for the worse for each of us as individuals and for us all as "society"; the entity for which Maggie T doubted the existence.

Aged relatives who lived through the horrors of World War 2 on active service and the Blitz at home have described to me [and I presume others can claim similar discussions] that if not "law" but certainly "order" was encouraged if not enforced by individuals be they family, neighbours, bus conductors, train guards or park rangers to name a few. Unless there was direct violence or a risk of such, admonishment from such individuals was enough to oil the wheels of public civility and avoid confrontation with most people including rowdy teenagers most of the time. Street tidiness was a job for local authorities and street cleaners were a common sight keeping the environment clean and tidy and also providing low level employment for those who would otherwise be unemployed or unemployable. A clean and tidy neighbourhood has been shown to reduce disorder especially low level disorder which can blight many lives. The "zero tolerance" concept pioneered in New York City is a direct result of this thinking.

The Keep Britain Tidy Campaign began in 1954 as an initiative of the National Federation of Womens` Institutes. Some might remember the iconic posed picture of Margaret Thatcher tidying up in Trafalgar Square. The Litter Act of 1983 consolidated all previous legislation. Prosecutions for littering are brought under section 87 - Offence of Leaving Litter - of the Environmental Protection Act 1990. The offence is:

"A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.” However, a person convicted of this offence could be liable to a maximum fine of £2,500 (a level 4 offence on the standard scale). Current criminal prosecutions are conducted by local councils under the Clean Neighbourhoods and Environment Act 2006.Prison awaits those who refuse to pay the fine or are guilty of culpable neglect in not paying.

And that was why Natasha McCabe who left a refuse bag in the street ended up at Manchester Magistrates` Courts. She had pleaded guilty to failing to pay a Fixed Penalty Notice of £80. In the end her littering cost her a total of £319. 

 

It is indeed a sad reflection on our conduct when the criminal law must be applied to such basic anti social behaviour. Singapore has the reputation of being the world`s cleanest city. In 1992 Corrective Work Orders were introduced as an alternative to fines up to S$1,000 [£500] for littering and offenders were required to wear distinctive clothing whilst cleaning streets for a specified number of hours.

There is a vociferous lobby which would dearly like to do away with short custodial sentences. At a stretch, to coin a phrase, they would relax their opposition for violent offenders being removed from society. But generally even when prison is a last resort for the oft quoted council tax defaulters or similar they refuse to acknowledge the need for the final sanction of loss of liberty.  Those holding such opinions are often “green” in their approach to society`s problems and their attitude to litterers is unforgiving. What then must the courts do to an offender in this regard who refuses or neglects to pay the fine imposed after conviction or in absence for ignoring a fixed penalty notice?  Are those who consider such sentencing inappropriate able to impose their own solution in such cases?  Perhaps they would have him treated as a naughty boy.

  

Without entering into any religious context  the original precept for the individual and society to rub along with minimal friction is to do to others what one would ask them to to do to oneself. And that includes taking one`s rubbish home to dispose of carefully [including cigarette ends]