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. 

IT`S NOT WHAT YOU SAY; IT`S WHAT YOU MEAN/SOME PERSONAL HUMOUR

How often in general discussion do we ask for a remark to be repeated because although we heard what was being said we hadn`t actually been listening.  Having sat in court for so many years I find that I have subconsciously perhaps trained myself to listen to everything that`s being said. As I was watching a weather forecast on TV the other night the presenter began by saying, "Most of us will have a wet and windy night." Speaking to my wife for both our sakes I remarked, "Not me I hope."  

TORY ARROGANCE INFLATES JEREMY CORBYN TO AN EMBRYONIC ALEXANDER KERENSKY

It seems irresistible to Justice ministers to laud cherry picked aspects of the American justice systems which offer an excuse for the failure of rehabilitative measures in this country to reduce the prison population.  They are happy to ignore, at least publicly, the binary procedures in the USA where federal, state and county jurisdictions are simultaneously operational.  They also conveniently overlook that many appointed positions in this country are elected positions in America.

The latest idea of those such clever folk at Petty France London SW1 is to charge local authorities prison costs for every one of their  residents put inside.  The minor matter of determining residency of prisoners I suppose is tucked away in some internal briefing note`s footnotes. The fiasco otherwise called the transformation of probation services initiated by the worst Lord Chancellor in living memory reincarnated as the Leader of the Commons, Chris Grayling,  which  played a major part in the continuing high numbers incarcerated and re convicted, is not something we`ll hear too much about from those spinning for Michael Gove.  It takes no insight whatever to realise that wealthier mainly Tory voting boroughs would be less likely to be funding such a scheme than poorer inner city Labour councils who would have their council tax resources put under even greater pressures than currently is the case.

Perhaps the 69 weasels posing as communication personnel at the MOJ have taken the lead from their political masters that with Labour in such disarray anything goes.  Such arrogance currently enveloping the government in many departments must be good news to the Marxist plotters surrounding Jeremy Corbyn.  They might not have a Joseph Stalin in embryonic form but arguably they have an Alexander Kerensky.

PUBLIC PROTECTION?//YET ANOTHER SENTENCING ANOMALY

Yesterday I posted of a sentencing decision by an English lay bench which was IMHO beyond comprehension.  It seems that such decisions are not confined to this side of the Irish Sea.  A District Judge in Northern Ireland dealt with a woman with two previous driving whilst disqualified offences by sentencing her to 220 hours community service and a five year ban for her third similar offence.  His remarks in the report seem in contradiction to the sentence.  The question is why she was not sentenced to custody suspended.  In addition why was she not subjected to the maximum of 300 hours payback. 

Is there a trend to minimising such motoring offences?  Is there pressure from higher sources?  Once again a magistrates` court does not seem to have public protection sufficiently high up in its sentencing decisions.

SENTENCING IN THE PUBLIC INTEREST? YOU MUST BE KIDDING!

Chairman of the bench, Margaret Atkinson, told him: “The reading of breath is one of the highest we’ve seen, putting not just yourself but other members of the public in danger. “However to impose a custodial sentence would have a detrimental impact on your recovery.”

The above were the comments of a bench chairman at Kirklees Magistrates` Court when sentencing a drink driver with a breath reading of 164 microgrammes of alcohol in 100 millilitres of breath. This was more than four-and-a-half times over the legal limit of 35 microgrammes. The offender was sentenced to 250 hours of unpaid work as a direct alternative to custody. He was also banned from driving for three years and must pay £85 costs and £60 victim surcharge. The full report in the Huddersfield Daily Examiner can be read here.

What does this simple episode tell us about the lay magistracy?  Firstly the guidelines for such an offender, even a first time offender, indicate a starting point of 12 weeks custody with a range of a high level community sentence to 26 weeks custody.  The report gives a brief account of the mitigation offered.  It seems completely ridiculous that a custodial sentence was bypassed and even more so that it was not imposed as a sentence of custody suspended.  The bench has forgotten or overlooked its public protection responsibility.  It seems the  offender is a possible victim. He must not have action against him which would have a "detrimental impact on your recovery."” as quoted by the chairman.

It is exactly this sort of we are responsible for the social effects of sentencing thinking that lowers respect for the lay magistracy with the wider public. It is a scandal!

MICHAEL GOVE AT THE COAL FACE

On Monday this week Michael Gove took himself to the judicial coal face. He was an observer at Highbury Corner Magistrates` Court in north London. I wonder if HMCTS had prior notice?  I hope he didn`t limit himself to being a spectator where the District Judge was presiding.

MCKENZIE ARE NOT ALWAYS FRIENDS

I would imagine that any J.P. with ten years on the bench would have had a McKenzie friend before him/her. The following is copied from Wikipedia.

A McKenzie friend assists a litigant in person in a court of law in England and Wales. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v McKenzie. Although in many cases a McKenzie friend may be an actual friend, it is often somebody with knowledge of the area, and the trend is heavily in favour of admitting McKenzie Friends. He or she may be liable for any misleading advice given to the litigant in person. 

My own experiences of such people is mixed.  Some were clearly not up to the task whilst others thought they could be a latter day Cicero.  What I did not realise then was that the McKenzie Friend  was not necessarily a friend or benevolent assistant but could be a paid professional.  There are in fact twenty three such people offering their services in the courts. With the limiting of the availability of legal aid it doesn`t take the mind of a latter day Nostradamus  to predict that demand for such services is likely to increase. Indeed the scenario reminds me of the time when teaching assistants began to be employed in the classrooms of primary schools.  Their duties will be limited. They won`t be actually teaching the children we were told  but will assist in ancillary tasks eg ensuring books are open at correct page, distributing items when ordered to by teacher etc etc.  The introduction of PCSOs, parking wardens inter alia was preceded by similar assurances and we know now that such roles have expanded steadily in order to contain costs when authorities have considered that these lesser educated and lowly paid people could be exploited to undertake their seniors` work.  The results are only too well known in the justice system when non lawyers now prosecute for the CPS and probation staff are struggling to stand still with their workload and outcome figures are not to be trusted.  McKenzie Friends` activities are now under scrutiny by the Law Society.  At one time there were solicitors. Now to join them are legal executives and para legals.  It won`t be long before McKenzie Friends follow the trend of self aggrandisement and become more common in the well of the court.