WILL MAGISTRATES WANT TO SIT UNTIL AGE 75?

Perhaps next year magistrates will actually have the opportunity if they so wish to sit until the age of 75.  How many would wish to do so is a moot point.  The parliamentary process that initiated this long considered process is copied below.

 Motion for leave to bring in a Bill (Standing Order No. 23)

2.52 pm
Edward Timpson (Eddisbury) (Con)

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I beg to move,

That leave be given to bring in a Bill to amend section 13 of the Courts Act 2003 to change the retirement age for magistrates from 70 to 75; and for connected purposes.

Magistrates, or justices of the peace, are ordinary people hearing cases in court in their community, and have been a fundamental feature of our judicial system since 1361. They continue to be chosen from people of good character, commitment, social awareness and reliability—those who can communicate effectively and are capable of making sound choices when sitting in judgment on their peers.

I had the pleasure of appearing in front of many magistrates while practising on the then Chester and north Wales circuit as a criminal and family barrister in the late ’90s and the noughties. My rose-tinted spectacles remind me that, more often than not, my clients got the rub of the legal green, but I also had to accept that I and the bench did not always have a meeting of minds—in other words, I lost.

The one constant, however, was the selfless and enduring dedication on display by so many of our fellow citizens to the fair and equitable dispensing of justice. I want to take this opportunity to thank all of them, particularly those who have contacted me about this Bill and shared with me their experiences, for their public service. I should add that their overall number includes at least 10 fellow current Members of Parliament.

However, the constant reliable recruitment and retention of our magistracy across England and Wales is under serious strain. The number of magistrates has decreased dramatically over the last decade or so, from about 30,000 to less than 13,000, with the number actually sitting thought to be substantially lower. That has had a profound impact on the case backlog, which is now up to nearly half a million in the magistrates courts; on delays, and even on the way justice is delivered. For example, during 2017-18 there were benches of just two magistrates, including for some trials, in nearly 40,000 court sessions—15% of the total. Inevitably, the covid-19 pandemic has both exacerbated the problem and catalysed the urgency of action, with recruitment and training on hold.

To illustrate this at a more local level, Paul Brearley JP, chairman of the Greater Manchester branch of the Magistrates Association, provided me with details of how the current chronic shortage of magistrates is affecting what is the largest single bench in England and Wales. At its creation in 2014, the bench size was approximately 1,100. As of 24 June this year, the number stood at 792.

From this figure should be deducted 188 justices who are currently on covid-19-related leave of absence and 47 justices appointed but not yet sworn in, leaving just over 550, or about half of the original number, in active service. During the pandemic, no more justices have been appointed, despite the fact that the retirements have continued—15 since lockdown.​

Sadly, it is the same story across the country, as other examples I have received from the chairs of the West Yorkshire, north-west Wales and Herefordshire benches bear testament, with the latter seeing a fall from 127 magistrates in 2008 to only 47 in 2020, nine of whom are due to retire in the next 18 months. As we emerge from lockdown, the pressure on our court system has never been greater, and with more police officers on our streets and additional resources for the Crown Prosecution Service, we can expect even more cases, requiring even more capacity.

The measures introduced by the Ministry of Justice to tackle the considerable and escalating delays are welcome, including extending court hours and widening the use of technology where appropriate. Yet much of this will still rely on the human resources— otherwise known as people—working in our courts to meet ever-growing demand. That is irrefutable proof that we desperately need more magistrates as quickly as possible. Any judicial restoration also needs to ensure that it delivers as great a diversity as possible, especially regarding age, ethnicity and social status. As the former chair of the Magistrates Association, Malcolm Richardson, has said:

“The magistracy must reflect the community it serves if courts are to be perceived to be procedurally fair, command public confidence and help civic engagement.”

To that end, I was pleased to hear the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), who is sitting on the Front Bench, tell the House only last week that the magistrates recruitment and attraction steering group held its first meeting in February, with a particular focus on increasing diversity, regardless of age.

Despite such laudable and important efforts, recruitment will not, of itself, fix the problem, because the fact remains that nearly 7,500 magistrates—more than half of all current magistrates—will reach the age of 70 in the next decade, and, under current legislation, will be forced to retire. Losing these magistrates at 70 is a triple whammy. First, they are often the most experienced. Secondly, they represent a high proportion of presiding justices—those in the court chairs—in this group. Thirdly, they are likely to be retired from work and so more able to accept extra sittings, including at short notice. Paulette Huntington JP, chair of the West Yorkshire branch, tells me that her magistrates who have retired at age 70 generally tend to be high sitters as they have more time to give, with many clocking up between 50 and 100 sittings per year, and some even more than that due to the volume of work—well over the minimum 26 required. In contrast, it is proving difficult to entice those with work and family commitments to the bench, with fewer employers seemingly content or in a position to sanction regular absences.​

While every effort should continue to be made to boost recruitment, simply replacing retiring magistrates would be a significant challenge, and given current shortages would not, in itself, be sufficient. Indeed, this year the number of magistrates recruited is expected to be less than the number who retire, partly due to the need for rigorous selection, mentoring and support of newly appointed magistrates. It is worth noting, too, that these difficulties apply to all jurisdictions—adult, youth, and family. The senior judiciary, including the Lord Chief Justice, the senior presiding judge and the president of the family division, are all aware of the seriousness of the situation, as are, I know, the Minister and the Lord Chancellor.

It need not be this way. Jurors are now selected up to the age of 75, doubtless to enable justice to be delivered by people with wide experience of life. You may also have noticed, Madam Deputy Speaker, that the head of the Supreme Court is aged 75 and the almost 73-year-old Roy Hodgson seems to be doing a reasonable job at Crystal Palace. So why should magistrates be deemed incompetent simply because they have hit an arbitrary age?

There are other sound, compelling reasons to apply such logic. First, people live longer. The current retirement age of 70 was set in 1968, when life expectancy was just 72, and it is now nearly 81. Secondly, people work longer. Thirdly, people retire later. As they say, 70 is the new 50. To ensure ongoing competency beyond 70, the recognised and recently updated system for appraisal of all magistrates and retained magistrates would need to be extended, but this should not be a block to progress. As John Bache JP, chairman of the Magistrates Association, told me:

“We are rapidly heading for the perfect storm in the magistrates court. The backlog is increasing while the number of magistrates continues to fall, yet we are discarding those magistrates most able and willing to address this crisis”.

I know that my hon. Friend the Minister, on behalf of the Government, is very sympathetic to these arguments and is keen to make progress sooner rather than later, so I urge the Secretary of State, the Lord Chancellor, for whom I have the utmost respect, to grasp this nettle now and give the magistracy the opportunity through this Bill, especially at this vital time of greatest need, to do what it has done for over 650 years, and deliver timely, fair justice for the communities it serves.

Question put and agreed to.

Ordered,

That Edward Timpson, Tracey Crouch, Jeremy Wright, Greg Clarke, Graham Stringer, Andy Carter, David Simmonds, Richard Graham, Karen Bradley, Andrew Jones, Mr Shailesh Vara and Ben Everitt present the Bill.

Edward Timpson accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 11 September and to be printed (Bill 156).
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LATEST SENTENCING GUIDELINE OFF ITS TRACKS

The vast majority of the population is not in any way connected with the justice process from the police officer who used to be on the streets  to the judges of the supreme court and all functionaries in between. That is why successive Tory governments over the last decade have allowed our so called justice system to, using a vintners` term now in common usage, wither on the vine. That phrase defined as; "something being destroyed very gradually, usually because no one does anything to help or support it" perhaps describes our justice system more accurately than in its original meaning. Add to it a systemic reduction in resources available and the culpability of government becomes increasingly apparent. The last decade has also seen our sentencing system codified to such an extent it would have made Napoleon proud.  Having been retired from the bench for over five years my own opinions on the above have almost imperceptibly morphed from a sentencer within the legal orbit to a knowledgeable asteroidal outsider on a possible collision course.  Rightly or wrongly I have always been slightly apprehensive about putting the victim at the centre of the process as has increasingly been happening. It personalises everything when my inner core believes that the singling out of individuals leads to possible inconsistency. But that perception of inconsistency led the Ministry of Justice and senior judiciary to impose upon all sentencers Sentencing Guidelines which paradoxically is having the opposite effect. The situation is like two heavy lorries facing opposite directions and connected by a chain trying to drive away despite the equal and opposite resistance from each other. The Sentencing Guidelines try to eliminate individual perceived prejudices and are becoming more akin to algorithms used by computer programmers and software developers. Indeed I can foresee a time when the human input is removed totally but that is for the future and Hollywood. 

But what has prompted this rant is the latest Guideline  - Effective from 1 October 2020 Sentencing offenders with mental disorders, developmental disorders, or neurological impairments - Effective from 1 October 2020. It can be accessed in full by following the link in the summary  It is a very long document at over 10K words and presumably will be on the desk and on line for courts.  I am in general disturbed by the content. First of all at the length: there is absolutely no way that during discussions on sentencing that the full content will be in the minds of those involved.  I would assume that all would have read it through a number of times before 1st October but its application will be more hit and miss. It makes many generalisations based on "diversity" meaning effects on the mental competences of black and south Asian people. This is a dangerous precedent.  Certainly there is scientific basis for knowing that certain groups are eg susceptible to becoming diabetic.  The current Convid 19 epidemic has demonstrated that some ethnic groups have died in relatively high numbers which are statistically significant but there are also many unanswered questions revolving around predisposition. What will actually happen in a magistrates  court bedevilled by over long adjournments will be that some minorities will in effect be given literally a get out of jail free card and the refusal of such court for that to be accessible will be grounds for an appeal at crown court. Considering the logistics of both Probation and court inspired general medical services, pre sentence reports will be few and far between.  

Why as a society have we come to this situation?  The pre occupation with all that is separate, different or seeking such diversity is the driving force. The homogenous nature of our population culturally and educationally is being stretched to its limit.  This is not a statement to encourage the racists in our midst whose increasing noise has arisen with the failed and miserable existence of Jeremy Corbyn as Labour leader. This self proclaimed so called anti racist initiated the worst excesses of anti Jewish racism seen in this country since pre 1939.  

To achieve a non racist society one does not encourage separation; one encourages unification.  This latest guideline fails on that account as it fails on understanding the practicalities of its proposals on mental health.  

MINISTRY OF JUSTICE SPEECHWRITERS ARE PROTECTING EMERGENCY WORKERS

When I retired over five years ago those found guilty of common assault in theory  faced a maximum sentence of six months.  Most such offenders were sentenced to less than that and served only half the given sentence in prison being released on license  having done half their time.  Those who indeed were the subject of that six month maximum were usually found to be in the highest category of harm and culpability according to the Sentencing Guidelines. Often it was considered that if the victim were a public servant simply doing his/her job whilst being subjected to the assault that aggravating feature fed into the sentencing mix. However a year or so ago I learnt from a former colleague that public servants becoming assault victims in the course of their duties would, according to the government, be given the gratification of knowing that their assailant would be subject to a maximum incarceration of twelve months with the usual caveats of early guilty plea and early release. That of course was dependant of the miscreant being detained in the first place and progressing through the justice system. The thinking of those who have increased the available sentence in the circumstances outlined had to have been that the threat would serve to deter the incipient offender but of course that person would first of all have to be arrested, charged, brought to court and convicted with no certainty that the new maximum sentence was lawful and appropriate and last but not least overturned by appeal. There is of course a consideration that just perhaps the increase was a sop to the weasels in the press department of the Ministry of Justice so that the minister could address parliament and the public that measures were in hand to protect that very same public, notwithstanding the considerable reductions  over the last decade in police on duty, and to begin the first stage i.e.to arrest the offender. It is unlikely that the statisticians will be able to inform us or their masters of any public protection benefit for the increased sentencing powers of the courts. But much of that so called initiative has now been superseded by the announcement earlier this month that those who attack police or other emergency workers will be liable to two years maximum custody; double the existing sentence as above. The Secretary of State for Justice Robert Buckland said, 

"We will continue to do everything in our power to protect police, prison officers, firefighters and paramedics and ensure those who seek to harm them feel the force of the law". 

Since last November about 9,300 offenders have been convicted of assault and 17% were subject to immediate custodial sentences of which only 6% received more than six months.  10% of those convicted received suspended sentences while 69% were subjected to a community punishment, fine or discharge. 

It is becoming ever more apparent to those outside the courts and legal fraternity that it is a political driver rather than an informed, apolitical, supra departmental, multi dimensional  umbrella of knowledge and statistics which is in control of what has been imposed on the Sentencing Council and which in turn determines the outcomes for offences and offenders. In a world where common sense ruled, attention and finance would be thrown at offences committed by those addicted to alcohol and/or drugs who are responsible it is estimated for 70% of violent or acquisitive crime including assaults on emergency workers.  According to a Home Office report in 2017 each year in the UK drugs cost society £10.7 billion in policing, healthcare and crime with drug-fuelled theft alone costing £6 billion a year. Research shows that for every £1 spent on treatment an estimated £2.50 is saved. But it is obvious that the only weapon that this government feels able to weald is deterrence.  Whilst it, for myriad reasons not least of which is the fear of bad publicity, resolutely sets its sights against even the consideration to decriminalise illicit drug use the dealers will continue to prosper and the users will continue to suffer on their downward slope to social, financial and in many cases human oblivion.  Meanwhile emergency workers and the rest of us will be happy in the knowledge that MOJ speechwriters are doing all they can to protect us. 

BLM/ANTISEMITISM AND STOP & SEARCH

The following post comprises government and parliamentary information, public information from the Metropolitan Police and reporting in the Manchester Evening news. 

The last census informed us that in England and Wales 86% were White, 8% were Asian/Asian British and 3% were Black/African/Caribbean/Black British. In London that figure for White falls to 69.7%.  Since 2009, the conviction ratio (the percentage of defendants convicted out of all those prosecuted) for indictable-only or 'either way' offences has increased for all ethnic groups. In 2017, the conviction ratios for Black and Mixed ethnic groups were lowest at 78.7% and 79%. In 2017, the conviction ratio was highest for defendants in the White ethnic group at 85.3%. In 2017 93% of White defendants prosecuted for drug offences were convicted compared with 86.6% of defendants from the Mixed ethnic group. In 2016/17 compared with the White ethnic group stops and searches proportionate to population size were more likely to be carried out on the Black (eight times as likely), Mixed (between two and three times as likely), Asian (just over two times as likely) and Chinese or Other (one and a half as likely) ethnic groups.  Relative to the population, the rates of prosecution for indictable offences for Black and Mixed ethnic groups were four and two times higher than for the White ethnic group. For every 1,000 population members 16 Black and 9 Mixed defendants were prosecuted compared to 4 White defendants. The Relative Rate Index indicates there is a statistically significant disparity in the rates at which defendants from non-White ethnic groups are convicted when compared to White defendants.

According to the Manchester Evening News:- "Figures on the ethnicity of the suspect are not given on a local level, but national figures show that of the white people killed between 2009/10 and 2017/18, 92 percent were thought to have been killed by another white person and just 2 percent by a black person.In comparison, of the black people killed during that time, just over half - at 55 per cent - were killed by another black person, and 33 percent by a white person.This reveals that white-on-white violent crime is much more prevalent than black-on-black violent crime, despite rarely being talked about in the same way. Between 2009/10 and 2017/18, an estimated 373 homicides, including both murder and manslaughter, were committed in Greater Manchester. Of these, 288 victims were white, and 30 were black. When these figures are compared to the population, it means black people were nearly three times as likely as white people to be the victim of homicide.The number of deaths works out as a rate of 35 homicides for every 100,000 black people in Greater Manchester, and 13 for every 100,000 white people."

In May there were 43K instances of stop and search in London. In 2017 that number was about 12K monthly. Between December last year and June the arrest rate was 11% but the Met`s target was 20%.  In May 80% of young black males stopped and searched did not require further action. 

There is no doubt that the unhappy events in America have triggered public anxiety throughout the population but it has also released widespread condemnation of Black Lives Matter UK which recently announced " As Israel moves forward with the annexation of the West Bank, and mainstream British politics is gagged of the right to critique Zionism, and Israel’s settler colonial pursuits, we loudly and clearly stand behind our Palestinian comrades. FREE PALESTINE’.

The submerging of woke marxist antisemitic views within what is supposedly a representative organ to overcome what is described by its supporters as black oppression in the nation which was the first to outlaw the slave trade in 1807 devalues its ethos in the eyes of many who would wish to be supportive. This is a problem which shows no end time. 

NO LONGER JUSTICE FOR THE PAUPER; ONLY THE PRINCE

The Crown Prosecution Service is perhaps the arm of the MOJ which is more exposed to criticism than any other.  In simple terms and by any interpretation it is failing.  There are many arguments to indicate this. Whilst I was active CPS began the use of non lawyers in place of legally qualified personnel. The quality or rather lack of quality of submissions was immediately apparent.  But of course the daily routines in the magistrates courts are rarely of interest to a wider public especially as the number of such courts has halved in a decade and the media are much less inclined to have court reporters in the remaining courts.  All manner of other issues, some mere candy floss from the Home Office which considers upping a sentence will cure the disease, including consideration for "victims"  when they are complainants, false statistics on rape by Left leaning women`s organisation and undoubted grievances of lawyers who are given little consideration and even less remuneration than their position demands. Reductions in those eligible for legal aid have been disastrous for many defendants.  Inefficiencies of the police owing to their numbers being decimated over this same decade have not assisted in pre trial organisation. Indeed some estimates are of a four year waiting time for crown court trials caused by the aggravating delays owing to Covid 19. Latest statistics from the CPS show that in the year 2018/19 convictions after trial were  only  6,468 or 9.3% of a total of 69,713 prosecutions. Whilst I would hope that nobody would wish the numbers in China to be emulated where 99% of all trial defendants are found guilty 9.3% does appear to be rather low. 

This country could once have been proud to wear the mantle of having the finest judicial system in the world where the prince and the pauper could equally achieve justice. Unfortunately now it appears that it is only the prince or the film star or the Russian oligarch who has that attainment and then it is in the civil court not the criminal court.  

JPs SOON ABLE TO RETIRE AT 75

It is now virtually certain that magistrates will shortly be allowed to sit until they retire at 75.  Perhaps some bright spark at MOJ immune from "diversity and ageist" viruses will look again at the youngest age at which they can be appointed and consider that at 18 most human beings have not developed the final brain connections which will see them attain adulthood. And it`s adults that are required to sit in judgement on their fellow citizens. 

18 IS TOO YOUNG TO BE A MAGISTRATE

Amongst many unexpected effects of the Convid 19 crisis the composition of juries in the crown court has come under scrutiny owing to the enormous backlog in trials which some experts are predicting could take four years or more to clear. This has caused some angst at the Ministry of Justice which has been suffering more than many other government departments from the austerity imposed from 2011 resulting in the closure of half the nation`s courts. 

The  jury system in England can be traced back to Henry II in the 12th Century becoming formalised under Magna Carta a century later when it can be said that the magistracy also came into being.  It wasn`t until 1919/1920 in the aftermath to the Great War that women became eligible both for the magistracy and for juries. From 1825 to 1962 a juror was required to own property.  In 1972 the age requirement for jury service was lowered from 21 to 18.   In 1988 the maximum age of jurors was raised from 65 to 70 and in 2016 to 75. In 1995/96 an inquiry undertaken by the Home Affairs Committee, suggested that of 875 new magistrates only 22 per cent were under the age of 40. In 2004 the age requirement for appointment to the magistracy  was reduced from 27 to 18.  In that year there were 22 magistrates under the age of 30.  In 2015 Alex Hyne, aged 18, became the youngest magistrate.  The following year a 19-year-old law student Lucy Tate was appointed. Latest statistics indicate that currently there are 123 magistrates under the age of 30 out of a total of 14,348 in England and Wales.  It`s a widely held view that the number of young magistrates must be increased but there are no statistics on the numbers of each age in this group.  It has been argued over recent years by many scientists including Peter Jones of Cambridge University, that the human brain does not fully mature until the early to mid twenties or even later. The most important brain area to become fully “wired up” in adulthood is the prefrontal cortex — the front portion of the frontal lobe. This area handles many of our higher level cognitive abilities including  planning,  problem solving and decision making. It is also important for cognitive control — the ability to suppress impulses in favour of more appropriate actions.  It is arguable perhaps that the 1972 decision to lower the minimum age for jury duty and the 2004 decision to appoint magistrates from the age of 18 was in ignorance of the cognitive  maturity of those teenagers.

When oblique reference was made in a recent tweet alluding to this argument I was castigated for the mere suggestion that  the lower age level  was too young. Some commenters  insulted my integrity and position as a retired JP. It is a very sad day when Twitter users ranging from QCs to students to new young JPs cannot debate this topic without resorting to insult.   Crowd opinion seeks to block reasoned alternatives and their proponents. Blocking or censoring unwanted opinions is taking our society to a cliff edge most cannot envisage: where democratic freedoms, not least of which free speech, are defined by those with the loudest voice.  J.K. Rowling, creator of Harry Potter, and a philanthropist to many causes was recently subject to hostile abuse because her opinions on trans people “offended” many who considered that their opinion brooked no dissent. Recently, “Father Ted” creator Graham Linehan and right wing provocateur Katie Hopkins were both permanently blocked from Twitter for expressing their views.  

The Referendum opened breaches not only in society but expanded the license of reasoned debate to include harassment, verbal and physical, loudest voice wins and levels of anti-Semitism perhaps not seen since the 1940s.  With the current backlog of crown court trials proposals to have the backlog reduced by enabling a single judge to sit with two magistrates for matters at the lower end of seriousness the issue of age of the latter becomes a topic of some concern. Not many of us would assume a similar level of expertise from an 18 year old vis a vis a 27 year old in any other discipline.  Why do we accept that for the sake of “diversity” an 18 year old is adequately to fulfil  the judicial function of sitting in judgement on his or her fellow citizens having the wisdom so to do?   Perhaps we can learn from the Chinese where the philosophies of Confucius and Mencius prevailed for thousands of years and aging indicates an increase in wisdom.                                                       

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".