JUDGE ONLY TRIALS??

Historians or perhaps pedants will wax loudly that the history of trial by jury in England goes back to Magna Carta in 1215 which I suppose has some basis in fact if one is referring to the trial of lords and nobles of the realm. So: a very brief history....... For the common man or woman no such justice was available; a bench of magistrates consisting mainly of local landowners and/or power brokers was the seat of justice with considerable sentencing options; although the most serious offences of the day were sent to Assize Courts. Up to the middle of the 19th century JPs could sentence offenders to hanging. They could also sentence to transportation to North America and the Caribbean, to whipping and the stocks and to fines. Needless to say these benches consisted  of men only. It was in 1920 in the aftermath to the Great War that women became eligible for juries. The acts of 1825 laid down the following qualifications for jury service. In England and Wales they were  that a juror should possess an income of £10 a year from real estate or rent charge or £20 a year from leasehold of not less than twenty-one years or secondly should be a householder living in premises which were rated no less than £20 a year or in Middlesex and the County of London specifically with a rateable value of not less than £30 a year or thirdly should occupy a house containing no fewer than 15 windows. It wasn`t until 1962 that the property requirement was abolished. There are specific rules where trials without juries are the norm but that fact is of no concern in this instance. This post is concerned with the current situation as it affects trials in the crown court where the normal jury consists of twelve and where in the first instance a unanimous verdict is required reducing to 10/2 if so judicially directed.               

Owing to the current crisis over corona where crown  court trial timetables have disintegrated on top of ever increasing delays  because of court closures and reduced judicial sitting times there is a backlog of 41,000 trals with an estimated five year time period for clearance. This is intolerable.  To expect witnesses to give evidence of events five years in the past is recognised by all involved as ridiculous and a real threat to justice being done and being seen to be done. The lord chief justice Lord Burnett has mooted that trial without jury must be an option when considering how to reduce the backlog.  This idea has had a  mixed response with some QCs for and some against with a similar divide amongst other legal professionals. My opinion for what it`s worth has been made here more than once; to expedite matters a judge of the crown court should be enabled to sit with two chairman  magistrates who have been approved and have experience of sitting with a judge on appeals to the crown court by offenders arguing their conviction at the lower court.  There are those who would argue that the judge would overwhelm those JP assessors but my personal experience negates that apprehension. Many former colleagues as well as myself were and are  impressed with the inquiring and respectful approach of crown court judges when discussing facts of an appeal. As a plaintiff at a tribunal appeal I personally was a plaintiff facing a bench of a high court judge and two unrobed assessors.  If a high court judge can have his/her interpretation of the facts open to discussion so can a crown court judge.  Indeed the finding of fact would be the only task of the JPs; all other processes would of course remain with the judge. 

I cannot for one moment believe that the current delays will be allowed to continue. The MOJ will not relieve the list by allowing magistrates courts to have increased sentencing powers.  It is highly unlikely that some or any either way offences will become summary offences and no either way offences will have the defendants` right to choose removed. So there is a simple choice facing the Lord Chancellor to reduce the stain on justice of delay; judge only trials or judge plus two suitably qualified magistrates.

MAGISTRATES` ETHNICITY

This is a very short FYI  latest statistics table on the gender and ethnicity composition of the magistracy.

EXCEPTIONAL HARDSHIP AND APPROPRIATE RESULT

I`ve reported here on many occasions on the excuse often put forward by those disqualified from driving as totters; an accumulation of 12 points on their driving license; namely "exceptional hardship".  Putting these words into the search box will open many of these past posts for those with time and interest. All too often both before and since my retirement I have been astonished at benches` decisions favouring the offender on many occasions.  However today there is a report in the Gazette and Herald of an appeal in the crown court by an offender whose plea of exceptional hardship was rejected by magistrates at his original hearing a few months ago. The words of the presiding judge flanked by two magistrates are as clear and damning as any similar I have ever read.  His reasoning and those remarks should be essential learning material  for all magistrates.

BACK TO THE FUTURE

The government doesn`t jail people; courts jail people.  Such a simple statement of truth but one which Tory governments seem to consider unimportant and there to be defied.  Today`s headline in TheTimes is so revealing.  

It was only yesterday in a written answer the Lord Chancellor wrote:-

Robert Buckland: ...network for released prisoners or people on community orders. My ambition is to ensure that community sentences are so robust and effective that, when it comes to decision making by judges and *magistrates*, they will be the default choice as opposed to very short sentences that can frankly do more harm than good.

To quote the song, "what a difference a day makes". Just as in 2011 during and after the riots which enveloped many cities the then Tory dominated government issued "orders" to magistrates courts that defendants facing either way charges should be sent to the crown court. Regular readers here might be aware that last Tuesday June 9th I wrote of my own experiences at that time when my two colleagues and I defied such an instruction issued by the Deputy Justices Clerk to the whole bench.  It seems that today in its headlong drive to appear strong and the party of law and order the Lord Chancellor who should know better with his reputation as an honourable man has seemingly bowed to the pressure of yet another Home Secretary with well defined signs of an authoritarian outlook defining her post. All of which leads me back to my opening remarks. There is no doubt that those arrested on charges associated with public disorder will not necessarily have the benefit of legal advice in the police station owing to there being fewer lawyers undertaking such work because of the derisory conditions associated and they themselves being unable to pay for such advice through lack of means and/or knowledge.  I would add that it is a virtual certainty that most if not all such defendants`cases  will be heard before a single district judge and not a bench of magistrates for the simple reason that there will be little likelihood of those paid judges openly defying the "send to crown court orders" and make no mistake they will be "orders" however the instructions are dressed up for private or public consumption.  Taking matters a stage further I doubt that even after a plea or finding of guilt in whatever court that a timetable of 24 hours can be achieved without dreadful harm to the offenders` rights of representation.  To publicise an intention for custody to be the result of this speedy 24 hour so called "justice" is a further travesty of our rapidly declining concept of fairness within our justice system. For the last five years or more, government has repeatedly done all things possible to avoid the prisons being further overwhelmed by prisoner numbers far in excess of what can be coped with without the rights of the inmates being so eroded that it is a disgrace to our once civilised society.  There is also the issue of bail. It is hard to see that that option will be honoured to the clear letter of the law if matters proceed as appears to be the case. As far as actual sentencing is concerned that as in 2011 judges will emphasise that "deterrence" was an issue which accounted for sentences which not just stretched the Sentencing Guidelines but drove a coach and horses through them as justification. 

It must now be obvious to all but the most obtuse that our civil rights as citizens of a country to be ruled by law are being eroded at an ever increasing rate. Of course the hard right "Brexiteer" wing of the Conservative Party in and outside parliament will rejoice and allow our blustering, incompetent and although highly intelligent buffoon of a prime minister to continue unchecked until some of his own discarded high flying M.P.s decide enough is enough. In the meantime the fascist Left will milk the forthcoming riots for all that they`re worth relishing the opportunity for true and heavy violent reaction. Police will be again caught in the crossfire undermanned with their own senior ranks looking backwards as well at what awaits them ahead on the streets.

The feelings of distance by many black people are entirely justified.  The history of policing misconduct is an open wound for them and others but we are in a place now where the prime minister is learning from and following the Donald Trump Playbook.  Real democracy doesn`t disappear in a flash of gunpowder; it is killed by the salami slicing of our liberties. The slicer is well and truly plugged in. 

JUDICIAL DINOSAURS WILL SOON BE EXTINCT

I will be unsurprised if within the next few months we will see more than the expected appeals against guilty outcomes in both magistrates and crown courts based upon a perception of racial discrimination.  No doubt police will face a rising number of such accusations. There are some highly motivated individuals at all levels of society who will use the current unrest to further their political cause. There will be a few honourable people involved but it is unlikely that ultra left wing organisations and their members who flourished under the leadership officially and unofficially of Jeremy Corbyn and his Marxist cohort will allow this opportunity to pass as a pathway to their target of discrediting everything a freely elected although incompetent government has to offer to our democracy.  There is no doubt that there has been and still is a minority of police officers at all levels of seniority who are racist.  The scandals of American policing whilst not being the norm in this country have a similarity insofar as the internal system of governance has not been up to the task of clearing out those officers who have flagrantly abused the system to their own evil advantage.  The level of misconduct that must be breached; "gross" misconduct is often out of step with the reality of the English language.  The secret tribunals closed to scrutiny unlike those for other professions eg medical or legal do not inspire confidence in those over whom the youngest inexperienced officer has such power; we the great British public.  The stain of judicial racial bias has been allowed to grow over the blanket of jurisprudence to such a degree that sentencers including magistrates are instructed to examine their supposed own unconsciously held bias.  All those on the bench must undergo lectures or to use the misappropriated term "workshops" on discrimination within the judicial system and its recognition and elimination.  No doubt there are still a few older judges and magistrates who harbour opinions perhaps stemming from their memory when in many parts of the country there were few black or ethnic minority people and who consider the many millions of BAME British citizens newcomers and not belonging. These judicial dinosaurs will soon be extinct.  

Similar discriminatory thoughts  I`m certain were common when Huguenots arrived in England from oppression in France.  They were French Protestants in the 16th and 17th centuries who followed the teachings of theologian John Calvin. Persecuted by the French Catholic government during a violent period Huguenots fled the country in the 17th century creating Huguenot settlements all over Europe. There are many places of worship, public buildings and residential areas which owe their being as a result of the influx. Perhaps the only worthwhile act of Oliver Cromwell was to allow Jews to return to England from which they had been expelled by Edward I in 1290. Immigration of Irish families after the famines of the 19th century and further influx of Jews at the turn of the 20th century from massacres in eastern Europe and before WW2 have been a wonderful stimulus to the UK economy as was the open door policy to Ugandan Asians from their expulsion by Idi Amin in 1972. A government promise to ease immigration for people of Hong Kong as a result of Chinese threats of direct repression will prove to be a boon for UK business and commerce. Indoctrination of the remaining dinosaurs in the judiciary by the aforesaid means are a waste of time.  The secrecy of proceedings surrounding those who behave so outrageously that comment becomes public is no apparent deterrent to others of similar ilk. However those who do transgress are publicised to such an extent that it discredits the 99% of honourable men and women fulfilling their judicial oath to do justice by all. And that feeds the marxist lobby that the whole system must be brought down and replaced. 

I can honestly reflect that during my time on the bench I heard more unpleasant remarks from black JPs about Jews than derogatory utterings from the white majority about any ethnic group.  Indeed around the time of the riots in 2011 I was chairman in a case of two black males accused of stealing some hifi equipment with three white police officers involved giving eye witness accounts.  I clearly recollect overstepping the "clarify but don`t cross examine" mantra of magistrates` bench limitations of an incompetent prosecutor  to ask further questions of my own which resulted in the obvious innocence of the accused pair.  As they left the court I said to them, "Tell your family and friends that a bench of three white middle aged magistrates found you not guilty despite so called evidence from three white police officers". I hope that they did. 

A BRIEF HISTORY OF TIME; NAMELY 12 MONTHS

Yesterday there was a House of Commons debate during which there was the question noted below on magistrates` sentencing powers:-

This perennial answer to a perennial question prompted me to relook at some of my previous comments on this subject about which I have consistently opined that the Magistrates Association and a few others might cry to the moon for increased sentencing options; namely to 12 months custody, but that cry will be as flotsam on the waves of a balmy ocean. For those interested in this  brief history of time; namely that 12 months, just type "magistrates sentencing powers" in the search box.

Up to the middle of the 19th century JPs could sentence offenders to hanging. They could also sentence to transportation to North America and the Caribbean; to whipping and the stocks and to fines. Imprisonment was used mainly for debtors.  So for some "hangers and floggers" the good old days are far behind but for the most part I believe that a majority of my former colleagues is satisfied with the powers they currently possess.  

CPS FAILINGS "OFFICIAL" READ ALL ABOUT IT

Just a snippet today on a matter that was becoming evident some years ago and therefore within my personal knowledge....just. The sacking......oops......redeployment of CPS prosecutors began a decade ago. It was apparent from then onwards that some of those freelancing prosecutors appearing before us were ill equipped for the job either through personal incompetence or from being poorly briefed insofar as they lacked some or all of the details of the cases allocated to them. In its latest report published this week HM Crown Prosecution Inspectorate (HMCPSI) has made these failings official. Read the report here. 

DRIVING A COACH AND HORSES THROUGH LOCKDOWN LEGISLATION AND THE INCOMPETENCE OF POLICE, CPS AND COURTS

On 6th April I posted "COVID-19 PROSECUTION// THE FINAL CHAPTER".  The case was widely reported.  Provisional data released two weeks ago shows that under lockdown legislation 13,445 FPNs have been recorded by forces in England between March 27 and May 11 while 799 were issued in Wales in the same period – a total of 14,244. National Police Chiefs’ Council (NPCC) chairman Martin Hewitt is now being urged to launch a review of all fixed penalty notices (FPNs) handed out in England and Wales using the regulations. Of the 43 regional police forces in England and Wales, the Metropolitan Police has recorded the highest number of fines with 906, followed by Thames Valley Police with 866, and North Yorkshire with 843. Warwickshire issued the fewest with just 31. How many of these fixed penalty notices have been paid is unknown but it is likely that the 50% reduction for prompt payment will have persuaded a large number to have been settled.  And now the revelation by the Director of Public Prosecutions that "most of the people wrongly charged under the Coronavirus Act were probably not legally represented" has set the cat amongst the pigeons. Providing that the fine is paid within the specified period and the matter is dealt with outside the criminal courts then it will not amount to a conviction.  If, however, it remains unpaid and the matter is brought to the magistrates court where the defendant is convicted a criminal offence will be recorded and will have to be declared when requested by a prospective employer or professional body. 

Like many of the so called regulations and guidance issued by the government since February those responsible for the drafting have many questions to answer; their incompetence having been compounded by the police, the CPS and the courts.  The same tendencies by police currently in America have been seen here albeit on a much reduced scale:- policing by the Stasi playbook. I hope the Home Office with its dire interest in the dispensation of true justice takes note but when the prime minister operates a do as I say policy driving a coach and horses through his own legislation but excludes his most important advisor from that stricture I doubt it. 

JUDICIAL CONDUCT INVESTIGATIONS OFFICE MUST BE REFORMED

A decade or so ago a regular annual check on the judiciary regulatory body website now the Judicial Conduct  Investigations Office would have revealed decisions for about two dozen magistrates whose actions, speech and/or behaviour had fallen foul of the content of one or more of the 20 pages comprising The Judicial Conduct (Magistrates) Rules [available on line as a pdf file].  This year to date nine such JPs have had the ignominy of their case details published on line albeit in a highly abbreviated form. All such cases at the JCIO have the minimum of details published.  Indeed the whole process from initial inquiries to final decision is about as straightforward as the maze at Hampton Court. It is shrouded in secrecy behind the apparent clarity of the 20 pages of directions and procedures to be followed. Of the aforementioned nine, three magistrates were sacked owing to their failure to sit the minimum number of times required; viz. 13 half days annually.  I have always felt little sympathy for such people. They knew what they had signed up for and they could have discussed their time allocation problems with their bench chairman and/or Deputy Justices Clerk.  Of course the simple answer is that they might have signed up for the supposed kudos of being on the bench.   

Austin Molloy has been issued "with a formal warning after he attempted to solicit support from other members of the bench against a fellow magistrate who had made a complaint against him”. Such a bland statement tells us almost nothing.  From my own experiences I know very well the vicious backbiting that takes place in and out of the retiring room. 

Paul Latham received a formal warning when a "disciplinary investigation found that he had failed to inform his bench chairman and justices’ clerk that he was a witness in a case due to be heard on the same bench."  I find this extraordinary. A person supposedly chosen for the bench for inter alia having sound judgement being so foolish as to behave in this fashion seems lucky to be still in post. 

Krishna Patel appears to have been treated very sympathetically. I cannot recollect over the years of having heard of a similar situation but then again the whole process is shrouded in secrecy. She was issued with "formal advice after she failed to meet the minimum sitting requirements for two successive years". (my bold). 

Stuart Merrey was issued a "warning for improperly referring to his judicial status when providing a reference for another individual". This is perhaps of all the recent decisions listed here the one with which I most disagree. Many if not all my readers will at some time  have offered references on behalf of family, friends or colleagues.  The recipient of such references will judge their value depending upon the status in whatever form of the referee and his/her knowledge of the referenced person`s ability to fulfil the envisaged role on offer.  It seems to me perfectly reasonable that a respected JP should use that position on such an occasion in addition to or in place of any other qualifications s/he might have. 

David Senior received "formal advice for an ageist comment he made to a colleague and remarks he made in an email to his bench chairman". Perhaps he didn`t realise that the magistracy is about the most political correct institution in the land.

Howard Tate received a formal warning because  "whilst hearing a case in open court  he had used his personal phone to speak twice to a defendant who had not attended the hearing. He also made comments about his actions to colleagues which were not appropriate in tone". (my bold). As per Paul Latham above such a foolish action belies his appointment as a JP. 

All major professions have disciplinary procedures; most are available for the public to read. Many have the investigative process totally separate from the judicial process. And most allow representation of the accused if s/he so wishes at many or all stages. The JCIO is a star chamber. It is an anachronism in this age of instant and live communication of major institutions.  It is an afront to justice being done and being seen to be done.  It must be reformed.   

ALCOHOL ANKLE TAGGING

It has been variously estimated that around 70% of all crime is alcohol or drug related. Where alcohol has been indirectly related to a violent criminal event and not the principal offence in itself 39% has been the figure estimated.  These numbers are well known to all those involved in the legal system.  Curfews, overnight detentions, fines and occasionally imprisonment have failed to control the problem.  Those alcoholics with means can avail themselves of many medical and pseudo medical practices privately but they are a minority.  Today the government announced its latest initiative to get a grip of this problem; alcohol sensitive tags which measure alcohol in sweat  to be worn around the ankle.  

The results of the two pilots seem too good to be true. It seems to me that the counselling throughout the required period of use and the actions taken when breach is suspected will make or break this scheme. There is no mention in the press release of the probation service whose officers will be at the so called coal face in the supervision of these offenders and who will be responsible for bringing such offenders who breach  to court.  I certainly hope for the best but fear that this innovation will take its place with so many others where implementation has been ineffective for one reason or another. 

TEN YEARS ON//WHAT MAKES A GOOD MAGISTRATE?

Just over ten years ago I posted an item copied below. Readers might wish to add their own ideas of what makes a good magistrate.

BECOME A J.P. WE DON`T NEED TO KNOW IF YOU`RE A FREEMASON 

by TheJusticeofthePeace @ 15. Feb. 2010. – 16:55:52 

A few years ago........about ten or so...........when applying to be appointed as a Justice of the Peace a candidate had to declare which political party had been the recipient of his/her last general election vote, had to demonstrate that "common sense" was a faculty s/he had and could be demonstrated and that he was or was not a Freemason. With the current new advice from the Ministry of Justice the last of those three declarations has been lifted; the others were removed some years ago. So now those who objected to having to demonstrate common sense, owning up to which party they voted for or confirming or denying they were on the square can apply in good conscience to my boss Jack Straw via the Appointments Committee. 

I wonder what changes in the Ministry`s estimate of what makes a good magistrate will be mandatory in 2020? 

"NO SEPARATE PENALTY" MUST BE RE-THOUGHT

Looking back over two decades I can still recollect the feeling of uncertainty as a new magistrate when forced to agree with those more senior than myself at that time that "no separate penalty" was the appropriate sentence for some offenders.  It was just one of the many facets of life on the bench which were not covered in any form of training. If one were truly interested in "getting up to speed" it was a matter of self education. The logic as explained by the Sentencing Council  is copied below,  That logic is fairly applied in many cases where the offenders` are charged with multiple motoring offences the most common combinations being any two or more of driving without due care or speeding combined with a license offence, no M.O.T., using a mobile phone and/or no insurance.  However when dissimilar offences arising from the same "stop" by police are charged together the logic seems in my opinion to be awry. 

Where an offender is to be fined for two or more offences that arose out of the same incident, it will often be appropriate to impose on the most serious offence a fine which reflects the totality of the offending where this can be achieved within the maximum penalty for that offence. ‘No separate penalty’ should be imposed for the other offences.

Where compensation is being ordered, that will need to be attributed to the relevant offence as will any necessary ancillary orders.

Possession of a controlled drug 

Misuse of Drugs Act 1971, s.5(2) 

Effective from: 27 February 2012 

Triable either way

Offence category Starting Point (Applicable to all offenders) Category Range (Applicable to all offenders)
Category 1 (class A) Band C fine Band A fine –                 51 weeks’ custody
Category 2 (class B) Band B fine Discharge –                   26 weeks’ custody

Official figures for police seizures of drugs are copied below- the police are having to face the inevitability that illegal drug use appears to be on an ever increasing scale. 

Class A

•Seizures of Class A drugs increased by 13% between 2017/18 and 2018/19, from 29,090 to32,753 seizures. Cocaine was the most commonly seized Class A drug, with 52% of all Class A seizures involving this substance in 2018/19.

•There were 17,038 seizures of cocaine in 2018/19, up 12% on the previous year (15,250 seizures). The quantity of cocaine seized also increased from 3,338 kilograms in 2017/18 to9,645 kilograms in 2018/19, an increase of 6,307 kg. This is the largest quantity of cocaine seized since recording began in 1973.

•The quantity of ecstasy seized increased from 0.7 million doses in 2017/18 to 2.2 million doses in 2018/19. This was the highest quantity seized since 2006/07 (6.6 million).

•There were 54,070 doses of LSD seized in 2018/19, the highest since 2005 when 1,137,000 doses were recorded, and an increase on the previous year (3,351 doses).

•Seizures of crack by police forces increased by 20%, from 5,443 in 2017/18 to 6,556 in 2018/19,the highest number of seizures since 2008/09. The quantity of crack seized by police forces increased by 73%, from 36 kilograms in 2017/18 to 63 kilograms in 2018/19, the highest amount seized since 2004.

•There were 22 seizures of fentanyl and 8 seizures of fentanyl analogues by police forces and Border Force in 2018/19. 

Crown Court statistics are not totally transparent on class A drug offences as they are often disposed off alongside other serious offences.  However where possession of class A drugs is the principal offence it appears that in England and Wales latest annual figures are 11,610 defendants and a conviction rate of 93%. It seems that there were an additional four and a half thousand offences of a similar nature. 

All the above is background information. Last week  a defendant appeared at Exeter Magistrates' Court where he pleaded guilty to assaulting an emergency worker. His early guilty plea was taken into consideration and he was jailed for 26 weeks and ordered to pay the officer £100 in compensation. In addition,he pleaded guilty to possession of diamorphine - heroin,  possession of cocaine and possession of cannabis. Magistrates ordered no separate penalty for these offences. [my bold].  The original press report can be accessed here. 

The bench of course proceeded directly as per Sentencing Guidelines.  However it is my long held opinion that "no separate penalty" in a case such as described above is a travesty.  More than that it is a disgrace to the concept of justice. The report tells us nothing about this offender`s previous convictions but it is not unlikely that he was not of good character. If class A drug possession was the principal charge at crown court I doubt he would have been treated so lightly. But the rule is if one matter is summary so are those added.  There surely must be a case for a complete re-think by the Sentencing Council on the principle of "no separate penalty". 

CONVID 19 AND A CHANGED SOCIETY

As much as any part of our society affected by Convid 19 I suppose our legal system has come under as much pressure as any but as is not unusual that system and its problems fly under the radar  of many (most?) commentators and most certainly the public it`s there to serve until of course one member of such is caught in its tendrils. The ridiculous behaviour of some chief constables, behaviour which is often unseen or unheard outside police headquarters, in ordering Joe Plod to issue tickets to those appearing to  contravene hastily assembled government guidelines on congregation and/or destination must be considered when this is all over so that those individuals promoted past their competence levels never again sit in places of authority. And those taking and executing those orders with the gusto of the Stasi must also be considered seriously at risk of undermining the confidence we still retain in the police generally.  Failure to do so will reduce for ever the status of the police to enforcers as they are perceived in so many less savoury parts of the so called civilised world. 

On March 24th I wrote; " By all accounts it is just a matter of time before we hear of the first corona virus death in a prison and the possibility of a serious riot in a prison is IMHO more likely than not."  Since then the MOJ press office, usually a volcano of erupting information, has been very quiet on the situation in prisons. As far as I have discovered it had been thought the first death in jail was on 22 March but Brett Moore, 48, died four days earlier at HMP Peterborough. In order to ease the overcrowding in prisons the MOJ announced that thousands of approved prisoners nearing the end of their sentences and not being of any risk to the public would be released before their due date wearing electronic tags.  On April 18th it was announced that six prisoners had been released who were not eligible for the MOJ`s scheme. That brought the scheme to an end.  As of April 24th it seems that there have been 15 confirmed deaths of prisoners with coronavirus in England and Wales - including three at HMP Littlehey.  On April 28th Public Health England said there were 1,783 “possible or probable” cases on top of 304 confirmed Convid 19 infections across jails in England and Wales. It is clear beyond argument that there is a total lack of duty of care in the prison system.  This has been known for many years. Indeed my two visits as an active magistrate to prisons built a century or more ago horrified me. To learn that just a little over £2.00 per prisoner is allocated for three daily meals per inmate does not surprise me. On my latter visit about ten years ago the amount was around 90p. Our treatment of prisoners is a national disgrace and the current pandemic has merely lifted the veil that has encompassed the institution.  Whether it leads to the required remedies is moot. 

It is reckoned by some that a third of males over thirty years of age have a record on the police national computer. The courts system at the best of times since 2010 has struggled to keep pace with the nation`s requirements. Kenneth Clarke as Secretary of State for Justice and Lord Chancellor in the Coalition in 2010 was the first Cabinet member to proudly declare that he had agreed a budget cut of 23%. And from then until now the MOJ has suffered cuts upon cuts but nobody cared because for so many in and out of government it didn`t bother the general population how the justice system operated. The result is courts have been underfunded and forced to ration the numbers of trials at the crown courts.  Government statistics show that the average crown court case takes 525 days to go from offence to completion, up 34% from 392 days in 2010. Currently crown court cases have reduced by about half owing to the virus. There is more than a mere murmur from some high flying lawyers that the jury system could be temporarily suspended to be replaced by single judge only trials. Perhaps if they advocated three judges sitting as in the lower court the idea could fly and even be considered by some as the procedure they would prefer even in future. Most magistrates are self isolating, many of their cases being taken over by District Judges; surely a portent for the future?  The Single Justice Procedure is running wild with up to 60 cases being rubber stamped in a two hour session according to one J.P. who has published his opinions. 

The legal world is facing inexorable change.  It is a given that many small firms of solicitors who rely upon conveyancing will go bust. Larger firms will certainly be shedding staff after the lockdown.  The Bar is grinding to a halt and is no longer a target for young gifted graduates. The state within prisons is unlikely to improve and magistrates are increasingly likely to be replaced for trials at least by District Judges. Convid 19 has truly changed our society for ever and ever: that phrase not to be completed by an "Amen".  

SINGLE JUSTICE PROCEDURE: A J.P.`s ACCOUNT

The Single Justice Procedure was initiated subsequent to my retirement from the bench and so my knowledge of such is necessarily limited.  My initial reaction on learning about this innovation was not exactly one of enthusiastic support.  It seemed that the onus was more on expediency than innocent until proved guilty.  It is therefore quite interesting for me to copy from today`s announcement from the Courts and Tribunals Judiciary of the experience of a magistrate operating the SJP.  One point he makes is quite remarkable insofar as he writes of dealing with 60 matters in his two hour shift whilst acknowledging the juggling and use of two or more on line facilities simultaneously including communication with his legal advisor.  Readers will have their own opinions of the benefits of this method of streamlined justice to those outside the offices of the MOJ in  Petty France; namely the defendants.  

 "Supporting the justice system from home
7 May 2020 |News|COVID-19

As we continue to find out how judicial office holders are adjusting to new ways of working during the Coronavirus pandemic, Ben Yallop, who is a magistrate in North Hampshire, describes his experience of sentencing from home.

Ben writes:

Ben Yallop JP

On 28 April I sat in the Single Justice Procedure (SJP), one of the first few magistrates to do so without being physically present in a court building.

SJP enables a single magistrate to deal with minor criminal offences such as travel fare or TV licence evasion. My experience has been of traffic offences: speeding, no insurance and other similar matters. A notice is sent to the offender who has the chance to enter a plea and, if appropriate, mitigation. Those admitting guilt who indicate their willingness to be dealt with online, and those where no plea is received but where the case can be found proved, are sentenced by a single magistrate working with a Legal Adviser. SJP was introduced about five years ago and is recognised as an effective, proportionate and fair way to deal with a large number of straightforward cases quickly, allowing time to focus on more complex and contested cases.
Working together

Ordinarily, lists are dealt with in a court building although not usually, in my experience, in a courtroom. The magistrate and Legal Advisor work from an iPad and laptop respectively in the retiring room. Following permission from the Senior Presiding Judge for a short period of remote working while government restrictions are in place, the Legal Adviser and I remained in our respective homes, as it happens about 12 miles apart. The Legal Adviser sent me the court list in advance via secure email, and I was able to check it as usual to ensure that I did not know any of those charged personally. He also directed me to relevant Sentencing Council guidelines before we started.

We were face-to-face through our laptops using Skype for Business. To begin I had to confirm that I was alone in the room, that I would not be disturbed and that my ‘Display Screen Equipment’ was appropriately set out. The Legal Adviser had two screens in front of him, one with the HMCTS resulting tool running and one, which he shared with me, displaying whatever evidence and case information I would need to see. I had the court list on a mobile phone and the Legal Adviser on my laptop. I clicked between him and Sentencing Guidelines. It took more technology than usual, and some effort and increased concentration to move between everything.

We were slightly slower than usual but we finished a list of 60 matters in exactly two hours, as hoped. Of course, as normal, some matters could not be dealt with; those pleading not guilty will have to come to court, as will ‘totters’ (those reaching 12 points) for the consideration of disqualification. But it still felt like a decent number to remove from the backlog.

The Legal Advisers, I am told, are pleased to be addressing the build up of traffic cases and to be busy while keeping safe. My experience of remote working in SJP has been that it is not much different, albeit a little slower and a little more demanding. Just two hours was quite tiring, and I would have preferred to be in a court building, but at least we are keeping going in the face of these unprecedented challenges and doing what we can to give drivers clarity on the state of their licence and protecting other road users.

None of this would have been possible without the hard work of many people within the justice system, and, particularly during my stint, a typically excellent Legal Advisor. Sitting as a Magistrate is always a privilege but perhaps never more so than now when so many are working so hard to keep our justice system going.

Ben Yallop JP
North Hampshire"

ANOTHER M.A. TILT AT THE SENTENCING WINDMILL

In today`s Times [behind its paywall]  Magistrates Association chairman John Bache has made yet another request from that organisation that the magistrates courts` limit of six months custody be increased to twelve.  I posted five years ago (copied below) on the arguments made by his predecessor and my opinion at that time.  In general that opinion has not changed but of course the circumstances surrounding the current argument have changed beyond recognition.  Expediency is a common reason for fundamental changes in the way our society is run when the clamour is loud enough but it often takes years for those changes to be revealed as detrimental to our well being in some form or other when what would have been obvious in the situation  had been more carefully considered before the decisions had been taken.  An example which comes to mind was the railway closures in 1963 as a result of The Beeching Report which was adopted by the then government; it resulted in the closure of a third of the rail network and the scrapping of a third of a million freight wagons.  The removal of tram systems in the 1950s and 60s to be replaced by buses was also a failure to consider properly future needs. All the tram systems installed in cities over the last decade have been manufactured abroad.  At this time of crisis it has become known there is no current vaccine production facility in the UK; a failure which the government is hurriedly trying to overcome.  And so it is with the courts system.  On one hand there are those who would temporarily  dispense with juries in crown courts and on the other lobbyists who are seeking to remove magistrates courts custodial powers entirely.  If the wishes of the Magistrates Association were to be granted consider what would be involved.  First of all there are very few offences where the current maximum sentence available is up to 12 months custody; one such is Offences against the Person Act 1861 (s.38) Assault with intent to resist arrest and another is a newly created   offence of  Assaults on Emergency Workers (Offences) Act 2018.  The vast majority of other offences carry maximum sentences of two years or more.  Section 1(2) of the 2018 Act provides that the existing offences of common assault and battery are triable either way and carry a maximum sentence of 12 months’ imprisonment and/or an unlimited fine, where the provisions of section 1(1) are met. Section 1(1) is met where the common assault or battery is committed against an emergency worker acting in the exercise of functions of such a worker. Another totally unlikely manipulation of sentencing to render the M.A.`s pleas even negotiable would be a reduction in the relatively few offences where the current maximum is two years custody. These are mainly offences under various Sexual Offences Acts.  A public reaction to lowering the tariffs to facilitate  summary or either way hearings would be politically unacceptable for a Tory government.  It is often overlooked or unconsidered in this argument over custodial limits that only slightly under 4% of all magistrates courts sentencing results in immediate custody.  The recognised overcrowding of our prisons is unlikely to be reduced by a Ministry of Justice already heavily criticised in this area if it appears to be exacerbating this situation.  

It is my humble opinion that this perenial target for the Magistrates Association is akin to Don Quixote`s windmill.  Whenever a possibility appears, and this time it is Mr Bache`s lance in the spotlight, there is a quick snort and the lance is lowered ready for the charge.  It will fail this time as it has in the past and will in the future. 

4th November 2015

For over a decade there have been arguments, reports and informed suggestions that magistrates should have enhanced sentencing powers; namely that the current maximum of six months custody be doubled.  No other  initiative or  sentencing possibility has been more enthusiastically supported by the Magistrates Association although whether that reflects opinion of magistrates in general is a moot point. It is not difficult to discern the reason for such changes; it has nothing to do with the efficiency or lack thereof of the crown court but everything to do with the lower cost of running magistrates` courts.  These lower costs might be self evident but are very difficult to find in an authoritative published form.  We have figures such as these but  considering that the courts are run by Her Majesty`s Courts and Tribunal Service if one had expected clear and  unambiguous figures in its annual report one would have been disappointed.  114 pages on such topics as climate change and  carbon management plan but the daily cost of running the various courts under its control are nowhere to be found.  IMHO this cannot be an oversight. It is an omission by commission.  Various ratios have been offered historically on the relative costs of crown and magistrates` courts  and from recollection the former costs two to three times the cost of the latter but I am open to correction on the detail. 

These and similar arguments will become increasingly vocal in the near future because the Law Commission has recommended that the lower courts be allowed to sentence for up to twelve months custody.  As expected, Magistrates Association chairman Richard Monkhouse quoted in the Guardian was quick to endorse such a possibility, “Magistrates are trained, ready and able to handle cases with longer sentences – we see this as an opportunity for the government to trust our members to do the job they signed up for.” From the opposite side of the sentencing divide no doubt there will be a response from the Howard League for Penal Reform long opposed to magistrates` courts having any powers at all of custodial sentencing....."The Howard League repeats its objection to the use of short prison sentences, which are ineffective and damaging and believe magistrates’ over-use of custody could be prevented if they were required to remand an individual to the Crown Court for a custodial sentence".

Having been compulsorily retired by HMCTS earlier this year although the impending imposition of the Criminal Courts Charge made me jump from the good ship justice a little earlier than required  I can perhaps  reflect more objectively than sitting J.P.s on this situation.  There is an unhealthy number of them sitting only for the minimum required period demanded by the Ministry; 26 half days annually.  The actual numbers are kept under lock and key by the country`s justices` clerks but from my earlier analysis of all J.P.s  sacked by the   Judicial Conduct Investigations Office about half were for failing to sit for that minimum number of times.  I am informed by my own former colleagues that the number of two person benches is currently as high as it has ever been and that is with a reduced number of courts.  In addition there is virtually widespread agreement that training for magistrates is not as effective  it should be and that change is around the corner.  The appraisal system is not fit for purpose. These  facts alone give cause for concern.  Whilst a winger might just get by sitting for three hours every fortnight for a chairman to be competent and to be seen as being competent such a sitting level is totally inadequate.  However the Ministry is loathe to increase this minimum sitting requirement for chairmen because of the dire and increasing shortage of those eligible for the step up to the middle chair. 

I doubt the legal profession is any too happy about the proposals. Young lawyers of both persuasions are unlikely to offer their services for an increased number of appearances at magistrates` courts where their financial rewards make the junior doctors current pay levels seem to be in the stratosphere. 

The Law Commission`s proposals will IMHO be unlikely to come to fruition and with the impending reversal by Michael Gove over the Criminal Courts Charge likely to lead to mixed headlines he most certainly will not wish to make columns in the broadsheets by allowing magistrates increased sentencing powers at least not in the near future.

MOJ`s CONTEMPT FOR MAGISTRATES

There is no doubt that the MOJ pays only lip service to magistrates, their opinions, their well being, their future.  A clear example is today`s  publication of the latest press release from the weasels in Petty France on the subject of new technology in courts. It includes remarks from a crown court judge, a senior police officer and the chair of the Bar Council. But one would seek in vain a comment from somebody representative of magistrates or indeed a single magistrate him or herself. Such is another indication that the days of the magistrate and his/her current position in our courts system are clearly numbered. 

CIVITAS OPINION ON HUMAN RIGHTS LAW

Today CIVITAS has published its monthly review for April. The section copied below from the review is IMHO essential reading for all those involved in our legal system.  Certainly the views expressed will not be acceptable to many (some) but the issue is one of importance to us all however much we agree or disagree with the conclusion. 

Rebalancing the British Constitution: The future for human rights law
The Human Rights Act 1998 is claimed by its advocates to contain fundamental rights that everyone in the UK is entitled to, by incorporating the rights set out in the European Convention on Human Rights into domestic British law. But as Jim McConalogue writes, its 22-year history now testifies to a lawyer’s charter which disregards the fundamental rights of many people in society and has enabled judicial supremacy to unsettle the UK constitution.

The Act is publicly justified as ‘an integral part’ of the British constitution and yet in practice, it emboldens a judicial supremacy of rights, far removed and insulated from the electorate. Innumerable court cases continue to permit Convention rights of often dangerous individuals – including detained terror offenders – to supersede the rights of all others in society in safeguarding their public safety and national security. The capacity to govern and protect the nation state operates in the face of serious ambiguity because of the Act.

The further continued glaring contradiction between a policy of withdrawing from an EU legal architecture while seeking to enhance a complementing European Convention rights-based system is now inconsistent and for the future, will become unmanageable. The repeal of the Human Rights Act is now well overdue, given its detrimental impact on the UK constitution.

A post-Brexit politics which requires a stronger democratic process in which applicable rights and laws derive from a strongly contested domestic public sphere means ‘rights questions’ can no longer be simply administered by a foreign court, or remain unchallengeable by the public or be left practically unamendable by parliament.

The opportunity to rebalance the constitution, to take back parliamentary democracy and to reverse the judicial supremacy and overreach of the Strasbourg court is viable and achievable. That decision will provide for a rekindling of the power of the executive to govern and protect, while demonstrating a respect for sovereignty and the restoration of a genuine British human rights moral code. The foundation for future rights must lay with society reclaiming democracy and deliberation as the basis for deciding those rights.

WHAT IS THE "SENIOR MAGISTRACY"?

Yesterday the Lord Chancellor made the following statement in reply to a question in the House of Lords,

"I thank the hon. Lady for that question. She will be glad to know that daily work is going on between my officials and Her Majesty’s Courts and Tribunals Service, the senior judiciary and the senior magistracy (my bold)  to make sure that we can progress more cases through both the magistrates and the Crown courts. Of immediate importance are magistrates court hearings: I want to see more of them come forward. We can do a lot of them virtually, and I know that the work being done by my hon. Friend the Minister for Crime and Policing, together with my Department, will help improve the speed of the delivery of these important cases."

My simple point is what is the senior magistracy?  My suspicions are that I know what it is not likely to be and that is the various chairman of the various benches known as the bench chairmen`s forum.  Not likely because these people are elected by their colleagues and the last thing government wants to hear are the opinions of the 15,000 people who are currently appearing in court when requested and able.  It appears that a representative of the Magistrates Association was involved. In all probability this so called discussion with senior magistracy consists in addition with the six magistrates appointed within the last two years by the senior presiding judge himself appointed by the Lord Chancellor. One might comment that if the LC can appoint judges` representatives as being "senior" why not these "leadership" magistrates. The difference is that magistrates are volunteers and not paid civil servants beholden to government for their incomes, career progression and pensions. These leadership toads represent nobody but themselves. We all know in all professions there are those who seek prominence and adulation and stand in line for their gongs at some future time. Such people are not representatives of the rank and file of my former colleagues. It is just another small step in the planned elimination of magistrates from presiding as they do over the vast majority of court sittings in the lower court. Nobody seems to notice and nobody seems to care.  For further posts on "leadership magistrates" type those words into the search box.  

THE MYTH OF OPEN JUSTICE

During the riots of 2011 instructions to me and my colleagues from the Deputy Justices Clerk were that where defendants were facing either way charges they must be sent to the crown court for trial.  I did not observe that order and on at least one occasion my  bench accepted jurisdiction.  With the corona virus trashing so many of our legal, business and social activities the Ministry of Justice after a somewhat inauspicious  beginning is organising the early release of some carefully chosen prisoners.  However it occurred to me as I presume it has occurred to others outside the judiciary that it is not unlikely that similar "advice" as that detailed above to me in 2011 has been whispered to sentencers in the lower court that every attempt should be made to avoid immediate imprisonment of offenders even although only around 3% of offenders suffer immediate custody in that court. These examples from Sheffield seem to be such an indication. Now that some magistrates courts are closed to the public and reporters also experiencing difficulties in accessing proceedings digitally  one thing can be said for certain and that is nobody remotely connected with the MOJ will ever admit to such advice having been given. That is an indication that when it suits government the myth of "open" justice is just that: a myth.

"QUIZ" AND THE SECRET BARRISTER

Owing to current circumstances there is a dearth of interesting cases or controversial events upon which it is worth my commenting or you, dear reader, reading. But what is worth a few minutes, is that for those old enough to have watched the original shows of Who Wants to be a Millionaire 20 years ago and to have watched the ITV three parter "Quiz" based upon the notorious case of the coughing major who was convicted of cheating his way to a £1,000,000, is the comment by the "Secret Barrister" on the court and other legal scenes.   

I must admit to having missed one or two of the points she has made.  I would hope that practising criminal lawyers missed none.