A ZOMBIE NATION STATE

Sometimes I ask myself what exactly is a legal system; is it a series of laws? are these laws built from the bottom up (of society)  or the top down (of government)?  Are they meant to lead us or to follow us? Many thinkers more able than I have written millions of words on similar topics.  However we are where we are.  It is in the apparent anomalies of the application or otherwise of our laws where lie more questions than answers. 

Article 7 of the Universal Declaration of Human Rights (UDHR) states: "All are equal before the law and are entitled without any discrimination to equal protection of the law". Thus, everyone must be treated equally under the law regardless of race, gender, colour, ethnicity, religion, disability, or other characteristics, without privilege, discrimination or bias.  What a wonderful sentiment but anyone with the most slender connection to the workings of our legal system knows full well that in practice it ain`t necessarily so.  Power has privilege. Power is the ability to influence and make decisions that impact others. Privilege is advantages and benefits that individuals receive because of social groups they are perceived to be a part of. Privilege can be  a result of systematic targeting and/or marginalisation of another social group. Nowhere is power and privilege more demonstrable than in circumstances surrounding the royal family.  The furore surrounding the cretinous second son of the sovereign over the last couple of years in particular has shown the outside world what power and privilege can effect in the real world. The latest example of the House of Windsor`s claim for privilege was made public earlier this month when Harry of that ilk from his American home threw his rattles out of his pram when denied publicly funded police protection should he visit this country and in particular a service held today to commemorate the life of his grandfather.  Such benevolence was denied and he  remains in the Los Angeles sunshine but court details of proceedings in his action against the Home Office are withheld from public view. I assume that the letter of the law allowed the judge to make a correct decision but was power and/or privilege a mainstay of that legal decision?  Would Joe Blogs of Hackney have had a similar request approved in a court of law?   The judge`s castigation of his QC does little to remove a stench over the whole business.  

Meanwhile in Belfast a situation ignored by many in public life continues to poison the atmosphere and undermine the humanity illustrated in the film recently released of that name. Wrapped up in the blanket of jurisprudence the "will he stand trial or not" saga of an old age pensioner who was part of the British army in the period known as "the troubles"  continues. To any outside observer it is blindingly obvious that the law has little to do with the preceding decisions and the current reversal of the previous one.  The delicate balance between a government seeking to wash its hands of  its and our history at the same time as the fraught state of current relations with Ireland and the E.U. as a result of Brexit is more than just counting the angels on a pinhead but is within the no mans land of the legal tail wagging the political dog or perhaps the other way round depending on the observer`s viewpoint. 

Even with the input of supposedly wise men and women the law can seem to be not only an ass but an ass  having suffered a lobotomy. Illegal immigrants, usually working age males from north Africa or the middle east, have been having their phones confiscated upon arrival and those phones analysed for information.  Considering many of those landing on our shores deliberately or otherwise bring no documentation such investigation seems to be a sensible activity at a time of increased fears of terrorism.  But the law says otherwise.  There is an assumption that those who write our laws and those who sit in parliament to enact those laws do so having explored every detail from the opening word to the final full stop. We are fools to assume such.  The law is man made and man is not flawless. But surely there are better ways of applying resources than currently exist in such matters? 

It is a public conception and one with which I totally agree that police go after an easy collar.  It is one thing to be able to tell a cyclist that having no lights at night and perhaps wearing dark clothing without a high viz reflector is a highway to disaster and another to throw the hard fist of the law into a teenager`s face. And that is exactly what happened in Oldham recently to an 18 year old teenager. That he didn`t appear in court to plead is unsurprising; he is an 18 year old teenager.  Were those magistrates who sentenced him displaying wisdom?  I doubt it.  There was no compassion; they were following "the law".  I rest my case. 

Recent legislation will allow action to be taken by those who block our roads in the name of their "great cause", global warming.  They have used the permissiveness of legislation as weakness just as surely as democratic nations refuse to use undemocratic means to stifle those who would rid us of our democracy and impose fascism upon us.  That is a paradox that is lost to many and unfamiliar to most. But to Sherrilyn Speid it has meant she now has a criminal record and is disqualified from driving. Having personally experienced being held up on the M25 by these fascistic clowns I have nothing but sympathy for Ms Speid.  My first thought is whether or not she had legal representation and the second is whether she was offered a plea on the lesser charge of careless driving.  I hope she has considered the appeal process before it is out of time.  This is just another asinine example of British justice to consider.    

I cannot recollect an occasion when I was faced with a drink driver whose lawyer successfully argued "special reasons" why a mandatory disqualification should not be imposed.  I doubt I am alone.  The bar is exceptionally high. For Jonathan Griffiths at Llanelli Magistrates Court last week it was celebration time; his legal representative  had persuaded the bench that his client had jumped that bar.  Such a decision makes a mockery of the law.  It so clearly demonstrates that all are far from equal in its eyes.  That bench also should be ashamed.

Those who visit this site with some regularity will be aware that there is an organisation, the JCIO, which regulates judicial office holders who are thought to have erred in some way either personally or professionally.  What we don`t have known publicly is what happens when judges sentence so outrageously out of step with Guidelines that an appeal court virtually doubles the existing sentence.   If a surgeon amputates a right leg instead of the left he is likely to have his scalpel locked away for some long time.  Of this judge we can only hope that behind the scenes he is advised to leave his wig in its box until he has satisfied his peers he is fit for duty. 

Whilst we in UK have our legal anomalies in Texas everything is bigger.  They kill each other with increasing ferocity, they divorce so often as only God fearing Christians in the bible belt can do and they execute their murderers with some style.  And now those about to be given the ultimate sanction can have a pastor pray out loud as the needle pierces the skin of the convicted`s arm and touch him in his final moments. Such is the American idea of compassion; so much more endearing now that it has legal oversight. 

And finally in this diatribe over the manner of how the law works to the subject of the mass recruitment drive for more magistrates; a subject broached here more than once.  One would expect that those sitting in judgement over their fellow citizens would be cognisant of the effects of their judgements would have on the individual before them.  That they would have accumulated the wisdom to understand motives, fears, desires, etc that make people behave as they do. One would expect that those judges would be fully rounded experienced people and particularly that their brains would be fully developed.  One might expect those considerations to be uppermost in the fertile minds of those who formulate policies at the Ministry of Justice. One would be disappointed.  Notwithstanding that those inept minds lowered the minimum age for magistrates in 2004 their diversity infected co conspirators at  The University of Manchester are targeting students to apply for the bench.  Why not?  Diversity with a capital D is our driving force.  A country where so many children are virtually illiterate at age 11 that the education budget is still at 2010 levels. Not to worry; Eton, Oxford and Cambridge can still offer some leadership. This is the state we are in: a state where the NHS in some areas are asking men if they are pregnant before the application of certain procedures; where a person with male genitalia can decide that s/he should be known as a woman in all circumstances, where politicians lie to their interviewers caring little that we all know they are lying and that they couldn`t care less, where the law in so many areas is shown to be deficient, where guns have been sacrificed for butter and now we are being offered margarine at just the time we need more guns. The British Empire began bleeding to death in 1947: it is now rotting in its grave prior to its resurrection as a zombie nation state.  

 

UKRAINE SHOWS BRITAIN HAS NO DIRECTION

There comes a time when a retrospective of every nation will show a fundamental change in society, government and other bellwethers.  Historians will offer their own analyses a generation or two subsequently but these observations are of use only as signposts for the future; unfortunately for many reasons they are just an exercise for the authors.  The true indicators of how we conduct ourselves as a nation and where that conduct is leading us are often shrouded in  an  etymological fog. Perhaps the most famous seer through that fog was a master of etymology; Winston Churchill who, for all his faults, realised the folly of British  foreign policy in the 1930s.  In our own time perhaps the most (in)famous speech on society was by Enoch Powell in 1968. He was Member of Parliament (1950–1974), then Ulster Unionist Party (UUP) MP (1974–1987), and was Minister of Health (1960–1963).  His speech was undoubtedly racist but his target was misplaced: god fearing black immigrants from British Caribbean colonies have been a blessing to us all.  What he was unable to predict was the mass inflow of Pakistanis whose societal origins were firmly fixed in the middle ages where what we now term Islamism was a way of  life. Their co-religionists expelled from East Africa who arrived here in 1972 and later and who have given so much benefit to Britain and the British are equally disturbed by what is now a 3 million minority rapidly expanding to such an extent that far Left political trouble makers are in thrall to their demands.   

There is no doubt that capitalism is the best method yet devised to promote the greatest wealth for the greatest number and underlies the democracy we enjoy today. In 2008 the world`s economic system came close to collapse  but not a single banker, and the banks were entirely culpable, has been tried in a court of justice and convicted for mass fraud.  The capitalist system in this country has been allowed to rampage across all aspects of our lives because as the scorpion said to the frog when the latter asked why he had stung him as he was being carried on its back across the river, that is my nature.  Failure to control this behemoth is a current blot on the economic landscape.  P & O is but the latest example. Russian oligarchs and their Chancery Lane enablers have flourished with the assistance of a decade of Tory connivance.  We thankfully escaped having a Marxist antisemite as prime  minister who had the support of so many Labour MPs now demonstrating their enlightenment. Where was their ability to see the folly of their conduct?  

And now perhaps belatedly to what is most concerning; the rise of the Woke. The single essential pillar without which the temple of a democratic society cannot stand is the pillar of Justice. Since 2010 that pillar has been eroded by demands of so called identity politics.  Diversity, transphobia with many manifestations and a failure to appreciate history have infected not just our rulers but those who are supposedly paid to teach and inform those born in this millennium.   Having presided over the halving of the numbers of magistrates courts and the magistrates who serve within them the government is embarked in what can only be described as a crash programme to recruit 4,000 J.P.s  ASAP.  The process of appointment is secret but a second hand way of discovering the bases of what the advisory committees are seeking in this new cohort is best uncovered by  magistrates themselves.  I have chosen some quotes from an article in the Eastern Daily Press.

"Samantha Tisshaw, 46, a company director who became a magistrate in 2017, developed her interest in the law in childhood as her father was a police officer, while her mother was also a Norfolk magistrate. “It would be really nice to see a more diverse bench, particularly younger people,” she said. “What we want is lots of people from lots of walks of life with loads of experiences they can bring.” [my bold]
This lady doesn`t realise the contradiction in what she says. She wants younger people (minimum age of magistrate is 18) with loads of experience. 
She continues "“Most of us sadly will have either experienced crime or have known someone who has been a victim" .  Really?  On what authority is she making that statement? Does this opinion not affect her attitude on the bench?
 "We do see the worst of society but we do see the best too because we get people who come back and say thank you because they’ve been offered the help to turn their life around". [my bold]  Magistrates are not social workers or probation officers. Magistrates are there to apply the law, to determine guilt and if so determined to administer retribution according to law and guidelines. 

A disabled JP:- “Because I’m disabled I bring to it certain experiences of my own. It’s all about having a good mixture." I sat with many disabled colleagues. Not one at any time ever remarked that his/her disability had any effect on doing the job.  It was as indicative of performance as was the colour of a tie or skirt. But it seems that contradictory opinions on "diversity" in any form is the thinking of a dinosaur.  What is forgotten is that the dinosaurs roamed the Earth for hundreds of millions of years. 

Finally from this article a J.P. with many years experience also fails to understand that the bench is not a helper or guide or good Samaritan; " Some people don’t need to be punished, they need to be helped".  It is the form in which justice is administered in this country to over 90% of all offenders. 

These are some quotes from that article in the Eastern Daily Press. 

As a former magistrate I have taken an obvious interest in that aspect of the judicial system but the blatant disinformation in "justice"  is much more widespread.  Gloucester Constabulary and its PR dept. makes much of its intention to recruit more police but failure by the government to readily admit that it was they who chopped over 20K active police officers  nationally since 2010 is as clear a sign that misinformation is not exclusive to points east.  The same can be said of the NHS and failures at every angle of the compass in recruitment. As a point of information it was the aforesaid Enoch Powell as Minister of Health who actively encouraged the immigration of nurses from the British Caribbean colonies to work in NHS hospitals. His name is a beacon to the hypocrisy which is endemic in British political life. 

A statement was published on February 24th  from the Judicial Conduct Investigations Office:-
"The Lord Chief Justice has, with the Lord Chancellor’s agreement, issued His Honour Judge Keith Raynor with formal advice for misconduct. In September 2020, Judge Raynor emailed several people, including a journalist, to allege that he had been subjected to improper pressure by his senior judge over his handling of applications to extend Custody Time Limits. A thorough investigation found no evidence to support this allegation. In deciding on an appropriate sanction, the Lord Chancellor and Lord Chief Justice took into account Judge Raynor’s long and previously unblemished conduct record."   
Although a JP would not be in such a position if that member of the judiciary were a magistrate he would have been sacked for anything approaching a similar action. 

A statement from the JCIO on March 16th is another example of how the legal disciplinary system is literally a law unto itself. 
"The Lord Chief Justice, with the Lord Chancellor’s agreement, has issued Deputy District Judge Christopher McMurtrie with a formal warning for misconduct. Judge McMurtrie conducted a hearing in his car, partly while driving and using his phone in hands-free mode. The judge failed to meet the expectation to avoid conduct which might reduce respect for judicial office. In reaching their decision, they took into consideration that Judge McMurtrie accepted that his decision to proceed with the hearing, after he had to travel unexpectedly for personal reasons, was misguided and he gave assurances as to his future conduct."

Secret disciplinary processes are still the norm in so many aspects of our civil society.  Think of police misconduct, the current  Post Office scandal, Grenville Tower, retirement homes and Covid scandal, hospital baby deaths, children`s protection and many more instances where secrecy in covering up supervisory failure was and is paramount. 

The sheer futility of some matters in the legal system is no better observed than in so called criminal behaviour orders although since the advent over a decade ago of ASBOs such orders on various matters have seriously proliferated as if they had a life of their own. Displacement of offenders is a complete waste of time but it`s an example of simple incompetence of the lawmakers in SW1.  

When a nation has lost confidence in the organisations in which we have placed our belief that wrongs will be righted and errors admitted: when a nation has lost its reason, when up is down and right is left and there is no fixed sight upon which a direction can be travelled that suits the people, these people will disintegrate. And thus underlying so much of our country is identity politics: a creed which is now threatening the very foundations on which we live our lives.  When the opposite is the case; a people who have had democracy and good judgement thrust upon them a national will and cohesion prevail.  Look east at Ukraine and its heroic population as an example where those benefits have arisen from the detachment from the tyranny of the Soviet Union.  

THE INDEPENDENT MAGISTRACY IS A HISTORIC JOKE

"A day in the life: Magistrates reveal what it's like to work in North East courts".  That is the headline in the current edition of "Chronicle Live"; an on line news medium in the North East of England.  The  Ministry of Justice is spending one million pounds over the next few months to seek out and appoint 4,000 new members to the magistracy.  Of course those wise folk in Petty France are loath to concede that they are the very same folk who have been sitting around since 2010 at the very same desks whilst they looked on benignly as their political Tory bosses emasculated the magistracy by failing to appoint a thousand new JPs annually to back fill the age related rapid decline in numbers taking place in front of them.  It seems that there are few news outlets not unhappy about an unexpected source of additional income. 

It is old news that many (most?) criminal lawyers are not supportive of the lay magistracy.  Whether they personally resent being directed in court by a non lawyer or genuinely believe the quality of justice is harmed is an exercise that hasn`t been undertaken. In all the statistics published on the functioning of magistrates courts no analysis has ever been made or attempted to separate the workings of the courts under professional district judges vis a vis JPs.  I doubt that any government would dare to go down that road; whatever the result it would be dynamite for our judicial system.  

And so to the mad race to appoint new magistrates.  Below are some quotes from the article referred to at the beginning of this post.

"She applied with very little understanding of the judiciary system but with training and experience she soon started to pick things up"

"But what you're doing is deciding on the facts of a case and making the decisions. It's a lot like being a member of the jury and anyone can be called up to do that."

"Anyone can do it and they give you full training. Once I did the training I understood why you don't need any qualifications because what you're doing as a magistrate is making a decision and anyone can make a decision, you don't need a qualification for that."

"We do have legal advisors who sit with us. So if there is anything about the law that we don't understand or is particularly complicated, they can break it down for us in a way that is easy to understand."

"The whole judiciary system - the courts, the police and the prison service - aim to have no crime. You have to try and figure out how every individual would be stopped from committing another crime" "You have to look at what the reason is that they commit crime. A lot of crimes are caused because of addiction and you can't condemn addiction, it's a medical thing. If you have people who think they are hopelessly addicted, you can help them."

"After receiving documents about the case she soon realised that she had appeared in court four years earlier for the same offence. Anita said: "I had asked the solicitor back then if I could speak to her and I said to her 'have you looked at yourself in the mirror lately, you're a good looking woman, you've got children, what are you doing with the drugs? I said: 'It is very difficult, but you can get off them and lead a normal life like everyone else.'"When I said that she started to cry. She had her bag with her and she was ready to go to prison again, it was like a revolving door. "When she appeared four years later, it was the same story, she had stolen from a shop to feed a habit. When I asked the solicitor if I could speak to her again I asked her what had happened and if she remembered me. "She said she did and when I asked her what had happened she said she'd done what I said and it wasn't easy. She said 'it was the most difficult thing I've ever done in my life, but I did it'."  "But what had happened is she'd had a baby and she'd suffered postnatal depression and went back to the only thing she knew that made her feel good. We didn't send her to prison, we gave her another chance because she's proved that she could do it. "She promised me then that she would try again and she wouldn't be back, and she hasn't been back. That's just one example of why you've got to think through the individual and see what helps them and therefore helps the community."

Throughout my 17 years on the bench many a time at training sessions or in private discussion I and my colleagues were told that we were not social workers.  We did liaise with the probation service (although that facility declined in my last few years) so that all involved were aware of the level of success or otherwise of the non custodial community sentences imposed on offenders.  It would be interesting to know whether or not that direction, formal or informal, is imparted to new appointees. 

By government fiat in practice if not in terminology magistrates are no longer independent junior members of the judiciary as they once were.  They are now corralled to do the bidding of their government overlords just as the salaried judiciary of district and crown court judges.  In my very humble opinion that is a loss for the democratic functioning of this the very bedrock of justice for the vast majority of offenders.  The imposition of the Single Justice Procedure in 2015 was a stark example: a system of behind closed doors secret justice dispensed to almost half a million offenders annually where even the simplest request under Freedom of Information Act is refused;  "Since its inception what is the annual number of convictions by SJP and what do those convictions represent as percentage of cases presented annually?"

It is not overnight that the justice system in a democratic country suddenly resembles that of Putin`s Russia.  It is a slow salami slicing process with almost imperceptible impediments to what has gone before.  To have compliant individuals on the bench whether in Hong Kong Court of Appeal or in the 160 remaining magistrates courts in awe of those in authority over them is just a short step on the road to government by decree.  The so called independent magistracy is now but a historic joke.....on us the people of England and Wales.  

767 LAYABOUT LORDS

The House of Commons is arguably overloaded with MPs.  Such a statement will have many antagonists who might just have a case to answer.  However there is no doubt that the House of Lords is an anachronism where in the main almost 900 self satisfied has beens are paid £323 to turn up, sign the register and f*** off to their favourite drinking haunts. From time to time they might waste £410 of our tax money to ask pointless questions in their chamber.  It doesn`t occurr to many that perhaps five minutes or less with Mr Google or reference to the appropriate Lords library will elicit their  required information which is generally already in the public domain.  

Step forward Lord Jones; aka Baron Jones whose greatest political achievement was as a parliamentary under-secretary of state for Wales from 1974 to 1979.  He was the Member of Parliament (MP) for East Flintshire from 1970 to 1983. In 1994, Jones was appointed by the Prime Minister as a member of the then new Intelligence and Security Committee, on which he served until 2001 when the Committee was dissolved at that year's general election. Jones retired from the House of Commons and was made a life peer with the title Baron Jones, of Deeside in the County of Clwyd. Such an outstanding career to be appointed to the sinecure he now occupies.  Having become used to spending our tax money yesterday March 10th he asked a written question in the House at a cost of £149 the answer to which any political aware person would have known immediately; 

" To ask Her Majesty's Government what steps they are taking to support the recruitment of more magistrates to the bench?" to which the answer was:-

"Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice
The recruitment of more magistrates is the Government’s top priority for the magistracy. The MoJ is investing £1 million this financial year into a programme of work to improve magistrates’ recruitment. A digitised and more inclusive recruitment process which will improve data collation was launched in January, alongside an inclusive marketing strategy which aims to targets a wider, more diverse audience, attract more applicants and recruit more from under-represented groups. Additionally, we are legislating to increasing the judicial mandatory retirement age to 75. This will retain around 400 judges and 2,000 magistrates more annually, when compared to retaining the current age of 70."

Abolish this talking shop NOW! These has been layabouts have had their day. 

BLAME IS ON OUR OWN DOORSTEPS

There are some very rare occasions when any thinking person, and I include of course all those who give a few minutes of their valuable time to read my jottings, must refuse to sit on the philosophical fence and  declare an opinion on a subject of the utmost gravity.  We are living through such times. I am  not referring solely to the tragedy in Ukraine but to legal circumstances surrounding its ancillary personalities and principles who and which are arguably at the top of the legal tree and the application of justice in what still remains of a society where everyone is equal before the law.  Two examples of the muddled thinking of the senior judiciary and at the top of the Bar have presented themselves in the last six months that prove to me at least that the letter of the law has been positioned as the arbiter of justice as opposed to its spirit. These are the situations recently at the Hong Court of Final Appeal and the Royal Courts of Justice over the last few years where routinely Russian oligarchs and their bottomless treasure chests have been stifling criticism by throwing some of their ill gotten gains at those who represent them.. 

It became apparent to any observer with an ounce of common sense and/or an insight into Chinese  political obfuscation that the agreement on the transfer of Hong Kong to China would last only as long as it suited the Chinese. The changes in China since the 1997 transfer have been apparent to all. The regime under the current dictator has shown that nothing will stand in his way of his securing what he believes to be China`s future as the world`s unassailable military power and that includes the futures of Hong Kong and Taiwan.  The United Kingdom has provided him with the legal fig leaf of the Hong Kong Court of Final Appeal where the most senior British judiciary have presided.  Serving judiciary who function on the Court have their fees paid to the UK Treasury.  Retired senior judiciary presumably negotiate their own fee for services rendered because it seems such information is unknown to Mr Google.  The mealy mouthed kowtowing of the UK to the supine head of government in Hong Kong was published on 27th August last year by the Supreme Court.  This head in sand position so beloved by senior legal minds has been endorsed by a retired member of the Supreme Court on the basis to quote Lyndon Johnson, late US President, "better to have your enemies in the tent pissing out than outside pissing in".  The underlying thinking processes behind such actions, in my humble opinion, seem to be that that they are above government intervention in their opinion of the application of the law.  But if the existing law is untenable, undemocratic, or perhaps badly drafted do those who sit in judgement not consider that they are enablers of anything from injustice to dictatorship?  It would appear not. Supreme rulers of all shades throughout history have always found that the law can be tailored to their requirements and compliant judges can be persuaded to do their bidding brushing aside all valid objections but the converse equally applies: by counting the numbers of angels on a pinhead lawyers can invoke law to suit their sometimes nefarious purposes even when justice is the victim. 

The current situation in Ukraine has opened a nest of previously hidden vipers around Russian oligarchs and their fortunes beckoned here by the curled forefinger of unscrupulous simple minded governments from Tony Blair via David Cameron  to Boris Johnson.  It appears that the last named is striving to avoid for as long as possible the imposition of legislation that would open to public scrutiny the truly obnoxious lengths he has gone to utilise benefit from the laxity with which Russian money was able to ingratiate itself and thus its owners within the innards of the Conservative Party.  And now enter the lawyers.  Following perhaps the example of Lord Pannick QC legal arguments have been loudly voiced at any suggestion that the current legal rights of defence by Russian enablers of Putin be, in their opinion, curtailed insofar as their previous attempts, some successful, in curbing free speech have demonstrated, are anathema to the rule of law.  So conversely to the situation in Hong Kong it is the legal profession (in part) which is opposing government. However to this outsider the enormous financial milch cow of representing these thieves of Russian state assets during and after the time of Boris Yeltsin seems to be the driving force of their supposed shoring up of the legal system against arbitrary government decree.    

It seems that for many lawyers, to quote Dickens, "It was the best of times; it was the worst of times. It was the age of wisdom, it was the age of foolishness."  I would sum up by saying that in some of the upper reaches of the legal fraternity  the rule of the law entrenched becomes secondary to the tool of the claw outstretched.   The law can give and the law can take away. The law is in the end what we make it and the lawmakers sit in London SW1.  If our legal system is becoming but a shadow of its former regal self the blame is on our own doorsteps. 

EXCEPTIONAL HARDSHIP//A LEGAL LOOPHOLE

The term "exceptional hardship" might be thought to have a simple meaning:-

a legal argument that can be submitted to the court to avoid a disqualification from driving when a driver accumulates 12 or more penalty points

is what can be submitted by the defendant as part of a plea in court to retain driving licence after totting up 12 penalty points or more .

the hardship that must be demonstrated must be beyond that endured by a normal person losing their driving licence

exceptional hardship refers to what can be submitted by the driver or defendant as an appeal in court

I remember that when my bench disallowed such a plea it caused more raised eyebrows from legal advisors than almost any other decision.  I often wondered why this was so.  And even now at seven years distant from my last sitting I have no answer.  Is it that unlike when I started driving nearly sixty years ago using a vehicle has now become almost as common as having hot and cold running water or indoor lavatories both of which facilities were not available to many families of that era?  It is such a common offence to come before magistrates courts that I have posted here upon it and the anomalies of such outcomes more than a few times. Some 142,275 drivers between 2017-2021 were banned for exceeding 12 points but 35,569 successfully argued exceptional hardship. Indeed dozens of law firms make their living by advertising their successes in arguing such cases.  It has become a national disgrace with so  much anti motor and anti motoring legislation in being and proposed that this hurdle has been reduced to nothing more than inconvenience for those with eloquence or the means to hire such eloquence that pulls at the presumed heartstrings of a bench which has lost sight of its purpose. Perhaps like central heating and low cost groceries holding a driving license to so many benches is akin to a human right; a right not to be removed under all but the most dire circumstances. From another point of view the actions of benches in accepting so many pleas of exceptional circumstances many of which are undeserved  have brought the whole idea of lay benches into disrepute when seized upon by some of the popular mainstream media. 

Read the short report of a typical case here and ask yourself if this driver truly fell into the category of those with exceptional circumstances when so many senior judges have pronounced that loss of employment does not constitute a valid defence against a banning order as a totter. In reality someone who drives for a living surely has an obligation to drive in the most careful manner to retain that license.  I have no doubt that this scandal has had the eyes of government inspection upon it.  When time and circumstances permit there will certainly be legislation to tighten up what has become an obvious legal loophole.  

MAGISTRATES` COMPLAINTS//A SIMPLE BINARY PROCESS

 

Date: 25 January 2022

STATEMENT FROM THE JUDICIAL CONDUCT

INVESTIGATIONS OFFICE

Lindsay Dalby JP

A spokesperson for the Judicial Conduct Investigations Office said:

"Mrs Justice Cheema-Grubb DBE, on behalf of the Lord Chief Justice and with the agreement of the Lord Chancellor, has issued Lindsay Dalby JP of the Coventry and Warwickshire Bench with formal advice after she was issued a fixed penalty notice for breaching coronavirus restrictions. In making their decision, they took into consideration that the breach while dining in a restaurant was accidental, that she had reported the matter to her bench chair promptly and that she had apologised for her actions."

ENDS

Fact

Following on from my post of February 15th the above named magistrate was just one of those this year who has fallen foul of the scandalous inquisition of the Judicial Conduct Investigations Office. 

Fact

The Ministry of Justice has recently announced that it is inviting recently retired magistrates aged 70-75 who may wish re-apply to the active list of serving magistrates.

Fact 

Retired magistrates are usually by default placed on the Supplemental List of Magistrates upon retirement.

Fact 

Magistrates on the above list are subject to the same disciplinary processes as are applied to those in office. 

Fact

Official guidance on supplemental list is copied below:-

Most magistrates will join the supplemental list when they retire or leave the service before the

age of 70. There is sometimes confusion around what this entails and the powers it allows.

This guide explains the key features.

February 2012

The Magistrates’ Association Guide to The Supplemental List 

Returning to the active list

Being on the supplemental list (and under the age of 70) gives no automatic right to return to the active list. However, depending on the time away from the magistracy and any exceptional

circumstances, an individual could return to sitting without going through the full application and recruitment process. He/she will be interviewed informally by the advisory committee

to assess any training needs and other circumstances. Providing there are no exceptional factors the magistrate could return to sittings.The individual will not need to provide external referees but the magistrate’s previous bench advisory committee will need to provide a reference from the bench chairman.In the end, the decision whether to allow the magistrate back to the active list remains with the advisory committee to which he/she is applying. Obviously this may depend on vacancies on the particular bench.

Retiring magistrates

On reaching the age of 70 a magistrate will normally have their name entered in the supplemental list automatically or be written to and invited to apply. They will usually be

informed in writing and sent details of the rights and duties of being a supplemental list magistrate.

Applying to join the supplemental

list before the age of 70

A magistrate may also apply to move from the active to the supplemental list at any time.This may be for a number of reasons, for instance when personal commitments mean they must take a sabbatical from sittings likely to last longer than leave of absence rules allow (about 18 months depending on circumstances). There is no minimum length of service to be entered in the supplemental list. As a general rule however, the magistrate will have been appraised as competent in the adult court; they should have met the minimum sittings requirement of 13 sitting-days within the past 12 months (except where good reasons apply); and they should not have been subject to disciplinary action for misconduct within the past five years.

All advisory committees have to consider such applications.In the unlikely event that a committee recommends to the Lord Chancellor not to enter a magistrate onto the supplemental list, they must write to the individual giving reasons for their

decision.

The purpose of the supplemental list is 

■

to commend magistrates for good service upon resignation from the active list or retirement; and 

■

to ease the process of return to the active list in situations where magistrates have had to leave the magistracy but wish to return at a later date

What you can do whilst on the supplemental list

If you are on the supplemental list you can still use the suffix JP under the same guidance for sitting magistrates. Essentially this is that the initials may be used on private and business letterheads etc in a similar way to academic or professional qualifications.You should always be alert, however, to how references to your status might reasonably be perceived by other people. Any attempt to misuse the status to gain personal benefit could be regarded 

as misconduct. Magistrates can still witness documents or sign passports, but only

in the same capacity as other members of the public.

What you may not do whilst on the supplemental list

■

sit in a magistrates’ court to adjudicate;

■

sit in a Crown Court on appeals cases;

■

be a member of any committee or any other body as a

magistrate;

■

take part in the election of chair or deputy chair of a bench;

■

attend any formal or business meeting of their former bench;

■

sign any documents in the capacity of JP – ie using the JP suffix.

This will include:

– summonses 

– warrants, including search warrants 

– shotgun licence applications (as a JP) 

– being referee for a rifle licence application (as a JP).

Duties on the supplemental list

Magistrates on the supplemental list must inform the advisory committee secretary for their existing area if they change address. Similarly, advisory committees are encouraged to keep in touch with magistrates on the list.

Complaints 

Supplemental list magistrates are still subject to complaints procedures. (my  bold underline) If a complaint is received about their conduct or behaviour, if appropriate, the advisory committee will investigate it in line with standard complaints rules.

When magistrates are considered to have erred they are subject to a complaints process outlined in perfect detail in a document twenty pages long with apparently every "i" dotted and every "t" crossed. If the matter is concluded that this process has indicated that the magistrate has indeed crossed the threshold of guilt s/he can apply to the Judicial Appointments and Conduct Ombudsman  who will investigate only the actual procedures undertaken.  Thus all the labyrinthine detail of a trade union rule book is applied; with nobody in earshot all the trees in the legal forest which are felled fall in silence. Finally the verdict is subject to the decision of the Judicial Conduct Investigation Office whether or not a sanction is applied such sanction ranging from "advice" to removal from the bench.  There are no published statistics or information on most of this whole process.  Indeed names of members of these organisations are secret.  To add grist to this metaphysical mill there are strict regulations on making public any comments from a local advisory committee.  Suppose a complaint is made to said committee re the behaviour or action of a magistrate: Nobody can make unauthorised disclosure of said complaint under pain of being pursued in the courts under s.139 of the Constitutional Reform Act 2005. 

The MOJ is currently undertaking a country wide advertising programme to persuade 4,000 citizens to become magistrates.  This previously unheard of action is a direct result of the self same MOJ under Tory Party governance since 2010 in failing to recruit annually from that year the appropriate number of magistrates required as the predicted retirement of an ageing cohort was well known to all in authority.  The judgement dealt out to the magistrate at the beginning of this post might or might not have been deserved. The lady in question might feel relieved at being able to continue in post or furious that her actions brought such ignominy.  She might or might not have freely admitted her remorse.  She might or might not have employed legal counsel to assist her.  We will never know. This is just a microcosm of what I term "secret Britain"; a country which loudly proclaims to the world and all who listen that it is a beacon of freedom.  Perhaps in some departments it is but in so many it certainly is not.  The line by line, sentence by sentence, paragraph by paragraph,  clause by clause to investigate the perceived wrong doing of a magistrate makes a trade union`s rule book for a member`s expulsion seem like a simple binary process. 

JUSTICE HENRY VIII STYLE

Justice should not only be done; it should be seen to be done.  One might conclude that in a democratic society that was axiomatic.  One would be wrong. Justice in the courts is not seen to be done if that "justice" is dispensed under the Single Justice Procedure as it has been for over five years for TV license evasion, low level non custodial  traffic offences and other "minor" infringements of the law.  Indeed a public right to know of the sentencing statistics imposed at those secret courts has been refused publication.  This curtain over these processes is in contrast to the situation when most professional and/or disciplinary bodies have opened their  hearings to the public by full publication thus allowing any citizen to inspect the evidence presented and the consequent judgements. Even the police, whilst still not completely open in this regard,  are gradually accepting that misconduct hearings should be no longer held in camera. However when we come to those occasions when members of the full time paid judiciary are thought to be acting "injudicially" inside the courtroom or out there is a tendency for a veil to be drawn over the proceedings unless the behaviour is so atrocious that it cannot be kept from the public eye. But when the volunteer junior judiciary i.e. magistrates are involved in apparent breaches of law, rules or acceptable behaviour we are witnessing a form of justice which would have been consistent with that applied by Henry VIII.   The process is laid out in a document 22 pages long full of detail on when why who where sub clauses but all the public can ascertain is perhaps ten lines or fewer of judgement published by the Judicial Conduct Investigations Office. 

Since the beginning of last year 24 JPs have faced investigation.   (The number investigated and consequently cleared of any wrong doing is unknown and unpublished).  20 of the 24 were charged with failing to meet the minimum number of sittings required; i.e. 26 half days annually. That requirement is emphasised or should be emphasised to every applicant for the magistracy. In this period 15 of the 20 were given a strict warning and the other 5 were removed from office. It is my humble opinion that in the current frantic race to appoint 4,000 new magistrates standards are going not only to slip but be irrevocably reduced in the unseemly rush to secure the placement of ethnic minority  candidates who will, in all probability although officially denied, be  subject to an unwritten policy of positive discrimination. 

There is no doubt in my mind that magistrates are strongly in need of a protective body to protect themselves should they in some manner large or small fall foul of the judicial authorities.  By its very charter the Magistrates Association is unable to fulfil that purpose.  It seems that JPs who might have the drive and ability to pursue such an agenda are more interested in climbing the hierarchical ladder of public recognition so that in later years they might have some more suffixes after their name.   

FROM GIN LANE BY HOGARTH TO PRITI PATEL AT HOME OFFICE

Alcohol has been around almost as long as human civilisation.  Humans invented alcohol many times independently. The oldest booze dates to 7,000 BC in China. Wine was fermented in the Caucasus in 6,000 BC; Sumerians brewed beer in 3,000 BC.  For most people it has been an easy but increasingly expensive method of inducing conviviality and relaxation when partaken in company of others.  It has also been a source of being able to escape the stresses of life ancient and modern.  Hogarth`s cartoon of "Gin Lane" 1751  is still relevant insofar as the wealthy in a population can do their binge drinking often behind closed or private doors and be sent to rehab clinics when their colleagues and/or families consider that their excesses are a danger to themselves and their finances in one form or another. Just as it is the rich wot gets the pleasure and the poor wot gets the blame  it is those low down in the social pecking order who are often before the courts and for them the term rehabilitation is more often than not merely a literary term in a probation report. I have long argued here that addicted habitual offenders should enter a medical pathway and not a legal one unless the level of criminality is such that other factors must be jointly considered.  I have used the term "workhouse" a search of which in the search box will explain for those interested my opinion in detail.  For the record it is widely assessed that alcohol is involved in around 40% of all violent crime.  

However we all know that there is considerable social disturbance which is related to excessive alcohol consumption and that that disturbance often is unrecorded officially but a blot on the lives of all those involved.  Our justice system is not just ill equipped to deal with addicts` criminality; it is demonstrated at almost every magistrates court every day.  This example at a crown court is typical.  Police, probation and prison have been, are and will be expected to "do something" for this person but  know full well all that will be done is to contain her.  It is indeed a disgrace that government allows this legal carbuncle to fester. 

Human beings are imperfect creatures and judges are human beings.  When doctors make decisions which are detrimental to a patient there are avenues of redress often officially impeded for those who survive the unfortunate episode.  For judges there is the shadow of much reduced local court reporting for their sentencing eccentricities to be overlooked but alas for  Judge Timothy Spencer the outcome of this case proved disastrous.  Referred by the Attorney General to the appeal court the offender received a sentence more consistent with his crime. In the hush hush world of judicial investigations it is unlikely we will hear what if any sanction was applied to his honour.  

When a magistrates court disqualifies a driver it is incumbent upon it to make reasonable effort in advance to advise the miscreant of that intended action the reason being obvious; to prevent that offender unknowingly re-offending.  In the matter of stripping a person of his/her citizenship it is obvious to all but the deaf, dumb and blind that that intention be brought to the attention of the intended recipient of being stateless.To that list of exempt parties  should have been added the Home Office the actions of which have been ruled unlawful by the Court of Appeal in the case of a woman known as D4 living in a camp in Syria. Truly this department of government is itself becoming even more of a law unto itself since a previous Home Secretary, Lord Reid, described it in 2006 as "not fit for purpose". 

On the face of it an uninsured driver with 17 penalty points convicted of death by careless driving deserves an immediate custodial sentence even if only for four months. With very limited reporting of this case reasoned criticism is limited but an understanding of the deceased`s family`s incomprehension at apparent leniency is not difficult. 

Sending racist messages over the airwaves is covered by various communication acts but along with readers I have seen much worse on social media.  Work is in progress at the aforementioned Home Office to attend to this discrepancy.  A difficult line between free speech and hate speech needs a King Solomon to adjudicate.  We have Priti Patel. 

THE RICH WOT GETS THE PLEASURE................

Everyone is equal before the law. Sentencing guidelines introduced 2010. Suspended sentences were first introduced in England and Wales by the Criminal Justice Act 1967 but their availability to courts was greatly restricted by the Criminal Justice Act 1991 which required the court to exercise its power to suspend a sentence only where it could be justified by the "exceptional circumstances".  The Criminal Justice Act 2000 saw the introduction of a new Suspended Sentence Order (SSO) overturning the previous restrictions.  All those proceeding statements are  (supposedly) in operation today.  That might be the theory but the practice has long since deviated from the ideals behind the original planners` intentions. Nowhere have those intentions been more abused or fallen into place depending on one`s political and/or social attitudes than in the used of "custody suspended".  I use the term advisedly because that was the manner in which the sentence was devised.  The custody level set by the appropriate guidelines for the offence must have had to be breached and then and only then should the determination be made if  the interests of justice justice could be served by suspending that custodial period.  The sanction provided in law is that breach of the accompanying community service order would allow the custodial sentence to be activated.  In 2019 just under 40,000 suspended sentence orders were made.  In the eyes of many of the public such orders are regarded as a get out of jail free card. In September 2021 a very interesting examination of this subject was published.  My point today is that similar to the explosion in exceptional hardship orders being allowed by magistrates when a driver faces disqualification the SSO has become a tool that the Ministry of Justice hoped and hopes will stabilise or reduce the number of low level offenders in jail.  Clearly there are occasions where its use fulfils that ideal but its almost indiscriminate effect is to provide inequality before the law. I have posted here more than once as to why for example a doctor with 12 penalty points avoids a driving ban and a carpenter doesn`t.  Prior to the introduction of Sentencing Guidelines magistrates were rigorously instructed in structural decision making when deciding sentence.  It allowed free thinking by the bench members to be justified by reason and logic and took offenders` personal and other circumstances into account. If that exercise concluded in a custodial period being appropriate every effort was made to determine whether or not suspension was a suitable option.  The statistics seem to indicate that that ladder of progression has in many cases been overlooked. 

Recently at Workington magistrates court a previous offender was convicted of a  ""serious" public order offence involving threatening behaviour."  By all accounts in the short newspaper report he escaped immediate custody because the court believed his mitigation that his employees` livelihoods would be at risk if he were incarcerated.  Consider the situation if it were one of those employees in the dock under similar circumstances.  We are entitled to assume that s/he would have been subject to immediate imprisonment. Where is equality before the law in this example and countless others of similar nature? The old adage slightly modified perhaps that it`s the rich wot gets the pleasure and the poor wot gets the blame is still around in 2022 England. 

MAGISTERIAL INNOVATIONS OR DIVERSION TACTICS FOR A BELEAGUERED P.M.

It`s been quite a week for the topic of magistrates and the magistracy.  For the last decade or to be more precise since 2010 this government of Tories with a contribution from the Lib Dems, before its leader decided that one million $ per annum from Facebook was a more worthy job than politics, has steadily sold off half the country`s magistrates courts to a present level of 150. It has overseen the deliberate reduction in the number of magistrates from 29,270 in 2009/10 to 12,651 currently.  Perhaps the thinking was that with that 50% reduction in court buildings a similar reduction in magistrates would be commensurate. Of course the MOJ and the cabinet arse lickers who approved this decision forgot to consider that the numbers of offenders  would not co-operate by reducing by half the numbers of offences committed. That same disjointed thinking was not confined to the legal sector. Highways for England proudly announced during this same decade that by converting  the hard shoulder of motorways into a fourth lane more traffic could be accommodated at minimum cost in pounds and travel time.  They overlooked the effect of inefficient control systems to the ultimate cost of 63 fatalities between 2015 and 2019. Personally twice I have had a complete power cut out, electrics, engine, brakes and steering on the A1 M at 70MPH. It is a frightening experience trying to coast safely from the third lane to a safe stop even on the dedicated hard shoulder. 

But I digress.  In a world where philosophy had at least a toe hold on politics the concept of justice would be recognised as a pillar of democracy without which politics descends into divisiveness and barbarism. Although far removed from  modern practice the ancient Greeks of Athens had developed a basic justice system where argument enabled the displacement of vendetta for many who felt subject to grievance.  When the court closure programme was well underway we were told that nobody would be more than one hours travel time by public transport from their nearest remaining court. This was criticised almost immediately as a matter of desire over reason.  Once again those myopic civil servants conveniently overlooked that a bus, tram, train or tube cannot be summoned like an Uber.  In rural areas of Wales and the north and west of England it is fact that for some who attend court the travel time is twice that estimated. But the government did and does view court costs as part of a balance sheet. The notion that justice is there to serve the population as does that holy grail the NHS has either escaped them or has been discarded with intent. The announcement that magistrates courts would have sentencing powers doubled to 12 months custody has sent spasms of uncontrollable hysterics from many of the legal fraternity. Twenty years ago Sir Robin Auld, an appeal court judge, published his report on the future of the magistracy. He recommended a unified three-tier criminal court to replace the separate crown court and magistrates courts. Under the Auld proposals, the defendant would lose the right to decide where the case was tried and the decision would be taken by magistrates. To some extent that is included in the current plan. His suggestion of the creation of a third tier court where a judge and two magistrates would constitute the bench as is the composition of the crown court acting as an appeal court was dismissed by many of the judiciary. As now lawyers in general were none too happy and the report was shelved. The reason presented by the MOJ for increased sentencing powers is supposedly that that innovation will speed up the judicial process by taking some of the backlog from crown courts where that backlog is estimated at 60,000.  An estimated 400,000 cases are outstanding at magistrates courts. Those involved in the courts system are well aware that much of the backlog was caused by the MOJ setting limits on the numbers of days judges could sit and was a self inflicted wound.  There is considerable argument that the proposed sentencing changes will do little to hurry things along. Currently fewer than 4% of cases at magistrates courts result in an immediate custodial sentence. In 2020, magistrates’ courts in England and Wales received 1.13 million cases and disposed of 1.04 million. Of the cases received 74% were for summary offences or breaches which can be resolved in a magistrates’ court without the need for a trial. Most of the remaining cases (258,000 or 23%) were triable-either-way, meaning they could proceed to trial at the Crown court. The conviction rate after trial for either way offences at magistrates courts is 97% but 82% at crown court.  These numbers show clearly why so many lawyers advise their clients to elect trial by jury assuming they  can afford to pay the fees required; the miserable legal aid fees (another reason for the backlog with so many defendants self representing) notwithstanding.  

With regard to the other announcement this week of a recruitment drive to appoint 4,000 magistrates to fill the enormous gap in current numbers this is another belated effort to speed the trial process. The statistics on magistrates` numbers are published regularly. The retirement of thousands over the last decade could have been mitigated if there had been some sensible thinking at Petty France as opposed to cost cutting.  If I were cynical I would suggest that the timing of this drive is just another effort to distract from the woes facing Boris Johnson.  Training of magistrates is carried out mainly by legal clerks.  Dozens if not hundreds of those people would have to be seconded from their court duties or sought from the private sector to induct the new appointees.  It would if carried through mean that a quarter to a third of all magistrates were newbies; rather an unwieldy ratio. With the emphasis in the MOJ press release on that convulsive term "representative" there is no doubt in my opinion that we will have appointments committees instructed to consider BAME candidates as a priority although of course that will never be admitted on pain of death or worse. 

With so many legal big wigs commenting this blogger can only highlight a subject such as this. To sum up; the Magistrates Association is blowing its trumpet over this and many (most) lawyers are moaning and groaning. Unsurprisingly The Howard League is jumping up and down and individual magistrates are continuing their retreat from public comment as usual.  And the latest incumbent at Petty France looks forward to a change of address. 

JURIES AND JURORS

Many dozens if not hundreds of PhDs have been granted and millions of words written on the subject of juries and all that surrounds that ancient concept of a suspected offender`s guilt  being determined by his/her peers.  The whole process once the 12 (15 in Scotland) good men (and women) and true have been escorted to the jury room has been shrouded in secrecy on pain of custodial sentence for those who transgress.  When juries were assembled from a restricted class within the population it could be argued that the variations in knowledge, awareness, education and even religion were minimal.  With the obstacles to jurors` requirements having today been reduced to a bare minimum the aforementioned variations have increased substantially. It is therefore not unrealistic for some jury members to have more knowledge than their fellows of evidence brought before the court.  As an aside when I was active I listened to a defendant explain, as part of his defence, supposed facts about his eye condition at a relevant time during the alleged offence. This went unrebutted by the CPS under cross examination. As an experienced eye care practitioner I knew immediately that he was lying. When considering our verdict  in the retiring room I informed my colleagues of my opinion on his eye condition argument. He was proved guilty.  

My argument then and now is that I contributed to justice being done.  The case for open investigation into how juries are functioning in the age of mass immigration and social media without restraint is needed now more than ever.  Indeed only last week a juror was given a suspended custodial sentence for investigating on the internet certain evidence presented in court. And of course as per my comprehensive post of a week ago on the Colston four who were acquitted of criminal damage, the current establishment view of juries that they and their workings are sacrosanct is as logic based as flat earthers` pre Copernican papacy driven articles of faith. 

I have no doubt that the refusal to investigate the happenings within jury rooms will be overturned if only to refute the arguments of a near future authoritarian regime which proposes to impose judge only trials.  And so this self styled Prometheus looks forward to enjoying lawyers` apoplectic reactions to today`s news that magistrates courts are to have powers to double their current maximum sentence of six months custody for certain limited offences.     

COLSTON STATUE VERDICT//PREDICTIVE OF PROBLEMS YET TO COME

The trial and acquittal of the Colston 4 seems to have divided opinion of commenters along cultural lines; woke-v-conservative: self styled legal eagles who seem to value the letter of the law against those legal observers who value the spirit of that law when it comes into conflict with the letter. 

The action which precipitated the whole sorry affair was the death of a black man murdered by police in the state of Minnesota USA.  Apparently left leaning young white radicals cloaked in the shadow of some home grown black activists who themselves adopted the history of black slavery in America to their own political ends took it upon themselves to cause damage to the statue of an infamous slave trader of the 17th century. This trial could have been conducted in the magistrates court but the defendants opted for jury trial as was of course their right the charge being an either way matter. Whether or not such choice should remain in English law is another (contentious) matter.  The essence of the case rests in the legal definition of criminal damage.

Criminal Damage Act 1971. Section 1(1) provides:

“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
To prove the charge the CPS must succeed in showing:-

The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.

The defendants` defence was based on their having a "lawful excuse" for their actions. For the prosecution to make its case it had to demonstrate that the defence had not succeeded.  I have copied below the judge`s legal directions to the jury. 

LEGAL DIRECTIONS – JUDGE’S HANDOUT

My jobs are:-
To explain to you the law which applies in this case.
I am responsible for decisions about what legal rules you have to follow.
All of my directions about the law, set out in this document, are compulsory for you to follow – you have no choice.  If I get them wrong they can be corrected by an appeal.
To remind you of the core parts of the evidence to help you remember what witnesses have said, but you are the assessors of the evidence, not me.  I will do that after you have heard the closing speeches of the advocates in the case.

Your jobs –
Appoint someone to chair your discussions.  Choose someone in any way you want.  That person should ensure everyone is given the opportunity of expressing their views and everyone listens respectfully to each other.  The person you choose to chair your discussions doesn’t have any special status – you are all equally important – you each have one vote.  When you have made up your minds one of you will need to act as your spokesperson and answer a series of questions from the court clerk to tell us what verdicts you have reached.
Make the necessary decisions about the facts of this case, as a group of the 12 of you together, in order to come to your agreed verdicts of either ‘guilty’ or ‘not guilty’.  Here are some guidelines about how to approach your task
Assess what witnesses have said and assess the other material placed before you so as to decide what facts have been proved.
You are the only judges of the evidence. 
Throughout your discussions as a jury you have to decide on the facts of the case.  That’s not for me, nor anyone else.
Respect each others’ opinions and value the different viewpoints you each bring to the case.
Be fair and give everyone a chance to speak.
It is okay to change your mind.
Listen to one another. 
Do not be afraid to speak up and express your views
Do not let yourself be pressured into changing your opinion, and do not pressure anyone else.
Do not rush into a verdict to save time.  Everyone involved in this case deserves your attention and thoughtful consideration.
Do not under any circumstances make your own inquiries about anything to do with the case (as explained in the handout “Your Legal Responsibilities as a Juror” that you received on the first day of the trial).
If someone is not following the instructions in this document, or refuses to engage, or relies on other information outside of the evidence presented to you then you must let me know by sending me a note straight away.
You can vote on where you have all got to in your views at any stage of your discussions.
You can take votes by raising your hands or by writing it down – that is up to you.
Your verdicts have to be unanimous: 12-0 decisions.  (If the time were to come when I could accept any verdict from you involving fewer votes than 12 in favour of it you must wait until I call you back into court and tell you about it.)

Who has the job of proving the facts of the case?
The Prosecution has brought the case to court, so the Prosecution has the burden of proving its allegations.
A Defendant does not have to prove anything or disprove anything.
How is something ‘proved’?
Something is proved if, and only if, you are sure about it in the light of all of the evidence you have heard on that topic.
If, in the light of all of the evidence on that topic, you are not sure about it, then it hasn’t been proved.

Separate verdicts
There are four Defendants and so there are four verdicts of ‘guilty’ or ‘not guilty’ you have to reach. 
You must examine the evidence in relation to each Defendant – one by one, reaching a separate verdict on each, based upon your analysis of the evidence against each of them. 
Your verdicts may well all be the same, but they might be different.   
It all depends on your view of the evidence against each.
What is it that has to be proved by the Prosecution for ‘Criminal Damage’?
The indictment charges contain a number of separate ingredients, all of which the Prosecution must prove before you can convict a Defendant. 

The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-
1)         D, jointly and together with others
2)         damaged property;
3)         the property belonged to another;
4)         D intended to damage it, or was reckless as to whether it would be  damaged; and
5)         D did not have a lawful excuse for damaging it.
We are going to examine each of those five ingredients in a little more detail:-
The prosecution alleges that the Defendants acted “jointly and together with others”.
The law is that a person may be guilty of a crime either by carrying it out themselves, or, if they intended that the crime should be committed, by deliberately assisting or encouraging or causing it to be committed, even if it is actually carried out by others. 
A Defendant in this case may therefore be guilty, even if they did not personally cause damage to the statue, if they deliberately assisted/encouraged/caused others to damage it by providing ropes or by attaching ropes to the statue, intending to assist others to intentionally or recklessly cause damage to the statue.
Property is “damaged” if it is temporarily or permanently physically harmed.  Whether you are sure there was physical harm to the statue or not (which is a question of fact and degree) is a question for you to decide on the evidence which you have heard. 
Property is to be treated as “belonging” to those who have custody or control of it and to those who have any proprietary right or interest in it.  The Prosecution case is that the statue was maintained by Bristol City Council and held in trust on behalf of the people of Bristol.  The Defendants have not suggested that the statue belonged exclusively to one or more of them – they do not dispute that it “belonged to another”.     
“Intending to damage the statue, or being reckless as to whether it would be damaged.”  ‘Intending’ is a straightforward word which needs no further definition.         
D would have acted ‘recklessly’ as to whether the statue was damaged if D was aware of a risk that damage would occur and it was, in the circumstances known to D, unreasonable to take the risk.  If D was unaware of a risk that damage would occur then D could not have been reckless.          

It is for the Prosecution to disprove that a Defendant had a “lawful excuse” for damaging someone else’s property.
In this case it is being argued that a D had one (or more) lawful excuses. 
You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.
The use of reasonable force to prevent a crime.          
 

A person is to be treated as having a lawful excuse if:-
(1)  they used such force as was reasonable in the circumstances as they believed  them to be      
(2)  in the prevention of a crime.
(3) When they gave evidence you may consider that the Ds were saying they used force to prevent the following crimes:
the public display of indecent matter
the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.
I will explain a little more about each of those three parts of this lawful excuse which is relied upon by the Defendants, but I will do so in reverse order: (3), (2) & then (1), because that will make it easier to understand.
May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?
There is a criminal offence of displaying indecent matter publicly.      
May D have genuinely/honestly believed Bristol City Council was displaying ‘indecent matter’ in public with this statue on the Centre?      
The definition of ‘indecent’ in the Oxford English Dictionary includes: “unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognised standards of propriety and delicacy; highly indelicate…”
There is a criminal offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.      
May D have genuinely/honestly believed that Bristol City Council was committing that crime by displaying an abusive statue, where one or more people were likely to have been caused distress by it? 
The Defence argue that they genuinely/honestly believed that a factual situation existed which amounts to these criminal offences being committed by the Council.    
The Prosecution argues that no criminal offence was being committed at all by the display of this statue – it was neither ‘indecent’ nor ‘abusive’, and you can be sure that the Ds did not genuinely/honestly believe a factual situation existed which would have amounted to these crimes. 
If you decide that D may have genuinely/honestly believed that a factual situation existed which amounts to these criminal offences, you need to go on to examine the following. 

(2)  Were D’s actions carried out in order to prevent what they honestly/genuinely (even if mistakenly) believed to be a crime?      
The Defendants argue that that is what they were doing – their actions were done in order to prevent one or both of those crimes, which they honestly/genuinely believed to be happening.       
The Prosecution argues that they were not trying to achieve that, but instead were trying to force their own agenda because they were frustrated by the lack of progress in the debate about the statue. 
Did D use ‘reasonable’ force to prevent a crime, in the circumstances as they believed them to be?       
It is for you to decide what force was reasonable by your own standards.  It is not what D thinks was reasonable – it’s what you think was reasonable.    
However, the ‘circumstances’ in which force was used are the circumstances as D believed them to be.         
If D only did what they honestly and instinctively thought was necessary to prevent a crime, then that would be strong evidence that reasonable action was taken.         
In the case of the first 3 Defendants, did each of them honestly and instinctively think it was necessary to play a part in pulling down the statue to prevent a crime?     
In the case of the fourth Defendant, did he honestly and instinctively think it was necessary to help roll the statue all the way to Pero’s bridge to prevent a crime?               
The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,
it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.
The Defendants argue that their actions were reasonable because any such processes had failed.
(ii)   Belief in the consent of the owners        
A person is to be treated as having a lawful excuse if he/she honestly believed,
at the time of the acts alleged to constitute the offence,            
that those who the person honestly believed were entitled to consent to the damage,            
would have consented to it,       
if they had known of the damage and its circumstances.          
(It does not matter if the person’s beliefs were justified or not, as long as they were honestly held.)             
Neither Milo Ponsford nor Sage Willoughby have presented evidence that could form the basis of an argument that they had this lawful excuse.    
Rhian Graham and Jake Skuse have given evidence to the effect that they had this lawful excuse for their actions, saying that on 7 June 2020 they honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done.        
The Prosecution argues that there is no way that they could possibly have honestly believed that the people of Bristol would have consented to what they did because they didn’t take any steps to find out.             
If you consider that this lawful excuse applied, or may have applied, in the case of either of those two Defendants, then the Prosecution would have failed to disprove it and you will find that Defendant ‘not guilty’.
(iii)   The final lawful excuse you have to consider concerns all four defendants (and, again, the Prosecution has the burden of disproving it).  However, I am going to deal with it under a separate bold heading:-  
Would convicting D be a disproportionate interference with his/her rights?
Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have.  
Two of those rights are:
the right to freedom of thought and conscience and to manifest one’s beliefs;
the right to freedom of expression, including to hold opinions and impart ideas.
These rights protect not only beliefs, such as anti-racism, and speech itself, but also actions associated with protest.  Even where those actions have more than a minimal impact on the rights of other people, they need not result in a conviction.  It is all a matter of fact and degree.  
Limitations on these rights are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others.
It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.
The Ds will argue that even if you reject all of their other arguments, if you were to convict them it would be a disproportionate interference with them exercising those rights.
You will therefore have to decide if the Prosecution made you sure that convicting them of criminal damage would be a proportionate interference with them exercising those rights.     
Even if you are sure that all the other elements of the crime of criminal damage are made out and that no other lawful excuse applies, you must go on to consider whether it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions.    
Another way of looking at that question is to ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D.
It is your task to make an assessment of where the balance lies, having regard to all the facts in the case.
In considering whether a conviction would be disproportionate for any D, the question for you is not whether you agree with their actions or their aims, nor is it about sympathy or whether you think they are likeable.  Everyone in the country has these rights and we each enjoy identical protection of those rights.  This means that people with whom we fundamentally disagree have exactly the same protection as those with whom we agree.
When examining the facts of this case and deciding whether you are sure it would be proportionate to convict a Defendant, you may wish to consider the following factors.  The list is not intended to be exhaustive and you are not obliged to consider any individual factor if you do not consider it to be helpful in reaching your verdict.  It is also up to you what weight to give the factors you consider helpful.
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was  directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety. 
‘No comment’ interviews
The words of the police ‘caution’ are: “You do not have to say anything.            
But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
As it says, it is a suspect’s right not to answer police questions, but there is also a warning that there might be damaging consequences if they do not mention something when questioned which they later rely on in court. 
Two of the accused – Milo Ponsford and Jake Skuse, declined to answer any police questions.  
When the Prosecution asked Milo Ponsford and Jake Skuse why, they both told you they acted on the basis of advice from a Solicitor’s representative.  
They each acknowledged it was their own choice to decide whether or not to answer the police questions and face any consequences from a decision not to.  They do not accept that the real reason behind their decisions not to answer questions was because they had not yet had time to think up answers which might provide them with the basis of a defence that they might be able to rely upon if they were charged with criminal damage.
They have now given you detailed accounts from the witness box.  I will summarise their evidence in due course, but they were both asked: whether they had any lawful excuse for damaging it.  Both replied “no comment”.  They have now put forward accounts from the witness box, during the course of which they have said they did have lawful excuses for what they did.
Could they have reasonably been expected to set out what lawful excuses they now rely upon to the police when asked about the allegation in their interviews back in 2020?  Why didn’t they answer the questions with the answers they have now given to you in court? 
You must consider their explanations for that.  They have each told you the real reason was because they took the advice they were given by a legal adviser.  If you accept that may have been the real reason behind their decision to remain silent, then take this matter no further, don’t hold it against them.
However, if you are sure that the real reason for keeping silent was that that Defendant didn’t have an answer to those questions and was giving himself time to make-up answers later to support a defence to the allegation, then you are entitled to hold their silence at the police station against them and treat the things they have said from the witness box as having less weight. 
You should only reach that conclusion if the prosecution case was so strong as to call for an answer and you think it is fair and proper to do so.  You must not convict that defendant wholly, or mainly, on the basis of this point – it is just one of the factors which may feature in your assessment of all of the evidence in the case.
Sage Willoughby and Rhian Graham, on the other hand, answered many of the police questions and explained what motivated their actions.  Do not hold it against them that they did not answer some police questions, because those questions have no bearing upon your assessment of whether they are guilty or whether any of the others are guilty.
Expert evidence
In this case you have heard the evidence of Professor Olusoga, who has been called on behalf of Sage Willoughby.  Expert evidence is permitted in a criminal trial to provide you with information and opinion, within the witnesses expertise, which is likely to be outside your knowledge.  You should look at it in its proper perspective – it is just part of the evidence as a whole to which you may have regard on one particular aspect of the case, namely if you think it helps you assess the question of whether displaying a monument of Edward Colston may be indecent or abusive.  You are entitled to have regard to the historical information he has researched and interpreted when coming to your own conclusions.  Bear in mind, however, that if, having given the matter careful consideration, you do not accept any parts of his evidence, or do not think it helps you answer the questions you have to answer, then you do not have to act upon it.  It is for you to decide what evidence you consider relevant, what evidence you accept and what evidence you reject.
The relevance of the first three Defendants having no previous convictions
You should consider this in 2 different ways:
a)    It is relevant to your assessment of their credibility as witnesses.  Someone with previous criminal convictions might be considered less likely to be a truthful witness.  Because they have not got criminal records you should take that into account in considering whether they are therefore more likely to have been truthful to you.
b)    Would someone who has reached their ages without a criminal record have started offending now?  It is relevant to your assessment of them because it may support the argument that they are not the sort of people who have a tendency to be law breakers. 
These are not defences, because obviously no one would otherwise ever be convicted for a first time if they could rely on these two points as an answer to an allegation.  You must take them into account, but it is for you to decide how much weight you give them. 
Comments
The Prosecution and Defence barristers will make comments to you in their speeches, seeking to convince you of the strengths of elements in their cases and weaknesses in the other side’s case. 
If those comments and arguments help you then please take them into account in your own thinking about the evidence, but you have to decide this case on the basis of your assessment of the evidence and not on the basis of anyone else’s. 
It is possible that you may sense that I have a view about some parts of the evidence.  I do not intend to influence your views one way or the other and I don’t intend to do so in this summing-up. You alone are the judges of the facts.
Evidence
What I will do is to pick out what I think may be the most useful and relevant parts of my notes to remind you of the evidence.
Because you are the judges of the evidence, not me, take no notice of any things I remind you about which you think are irrelevant.
Equally, if you remember things which I do not mention, pay attention to what you recall.
Final practical points
Don’t suffer in silence – if you need to be reminded of any of the evidence that has been given (remembering there cannot be any further evidence presented to you), or you need me to explain some part of the law more clearly, just send me a note and I will do what I can to help. 
If some of you need the occasional break for a smoke then arrangements will be made for that.
Take all your papers with you when you go out to decide on your verdicts.  There is no time pressure on you.  If you are still discussing the evidence at around 4:30 and have not reached your verdicts I will have you back into court then and send you home overnight with some further legal directions.  We will then resume again the next morning.

We don`t know which of the available defences to the charge persuaded the jury to acquit.  To this layman the essence of this case is the extent to which a political opinion on the history of of slavery and the representation of that history by the damaged statue succeeded in the legal definitions as outlined by the judge and therefore overcame the barriers erected by the letters of the law. In this respect the spirit of our law that the guilty are punished and the innocent are acquitted has been to say the least somewhat compromised.  Taking that argument one logical step forward what other alleged criminal activity could be undertaken in similar fashion and yet the defendant be found not guilty if a historian is allowed to justify actions based upon events of three hundred years ago? It would appear that those defendants assumed a moral position on the righteousness of their cause of which  we mere mortals are oblivious.  Such fanatics have appeared infrequently justifying their law breaking by similar reasoning but that reasoning has with few exceptions been based on current contemporaneous events.  Delving into events 300 years in the past for their verdict the jury has demonstrated that a dangerous thinking process has infiltrated the very basis of our society. In another recent controversial case recently those who were charged with the blockage of major roads at the costs of £millions were exonerated by the Supreme Court by having a lawful excuse as defined by human rights laws  Ziegler ruling.  The law in this case has lost all meaning. Those who use public demonstrations of outrage are offered pseudo protection by a public in the form of a jury which is afraid of expressing opposition when legislation is expressly designed to draw the line between what is lawful and what is not. 

I would opine that the majority of legal opinion is in agreement with the outcome of this case.  There is almost a universal cry of civil liberty having been preserved against the tyranny of the state.  But the price is a perversion of the law.  The time will come when a right wing activist before the courts will seek to use a similar argument. Then we will see the folly of the liberal legal establishment`s embracing this verdict like it were manna from their liberal progressive heaven. 

For his/her view of these events the "Secret Barrister" published a lengthy opinion on Twitter which I have copied below.

1. What happened in this case?
On 7 June 2020, in the course of a Black Lives Matter protest in Bristol, a monument of 17th-century slave trader Edward Colston was pulled down and thrown into the harbourside. Consequently, four of those involved, Milo Ponsford, Sage Willoughby, Rhian Graham and Jake Skuse were charged with criminal damage.
On 5 January 2022, following a trial at Bristol Crown Court, all four were found not guilty by the jury.
 
2.   What is criminal damage?
Criminal damage is defined in the nattily-titled Criminal Damage Act 1971. Section 1(1) provides:
“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
In a criminal Crown Court trial, the prosecution has to prove the case, by making a jury sure of guilt (what used to be formulated as “beyond reasonable doubt”). A defendant does not have to prove their innocence. For a charge of criminal damage therefore, the prosecution has to prove the following:
The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.
 
3. I thought I read that the defendants all admitted criminal damage?
The defendants all admitted their part in pulling down the statue. It was accepted that Ms Graham and Mr Ponsford had brought ropes to the scene, that Mr Willoughby had climbed the statue to pass ropes around its neck and that Mr Skuse had encouraged the crowd to roll the statue into the harbour and into the water. The prosecution case was that these four defendants were acting together and jointly with others, meaning that the prosecution didn’t have to prove that each defendant personally caused damage to the statue. It was enough if a defendant deliberately assisted or encouraged others to damage it, say by providing ropes to be attached to the statue.
But it is wrong to say – as has been widely misreported – that the Defendants admitted criminal damage. They did not. Looking at our checklist above, while there was no dispute that the statue belonged to another (Bristol City Council held the statue in trust on behalf of the people of Bristol), the other elements of the offence were challenged.
Three of the defendants argued that the Colston statue had in fact not been damaged, defined as “temporarily or permanently physically harmed”; that its value had increased as a result of it having been pulled down, salvaged and restored in a museum. It follows that they did not accept intending to damage the statue or being reckless as to whether it was damaged.
But the key issue, raised by all defendants, relates to that phrase “without lawful excuse”. Because the case for all defendants was that, even if damage had been caused, it was not unlawful. And this is where things get interesting.
 
4. What is a lawful excuse for damaging property?
Section 5 of the Criminal Damage Act 1971 provides examples of what might amount to a ‘lawful excuse’. But it is not exhaustive. There are also a number of cases from the High Court and Court of Appeal which clarify what might and might not amount to a lawful excuse. For instance, damaging property because you believe you are carrying out God’s will is not a lawful excuse. Nor is damaging a wheel clamp after you’ve parked your car in a private car park with a clear warning that your car will be clamped.
In this case, the following lawful excuses were raised, and the judge agreed that they should be left for the jury to decide:
 
i. Reasonable force was used to prevent a crime
It is well-established, both in our common law and in legislation (section 3(1) of the Criminal Law Act 1967, as you ask) that a person is entitled to use reasonable force to prevent the commission of a crime.
All defendants argued that the public display by the council of the Edward Colson statue was itself a crime, or potentially two crimes. First, it was said that displaying the statue amounted to an offence of displaying indecent material contrary to section 1 of the Indecent Displays (Control) Act 1981.
Second, it was said that there was an offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it, contrary to section 5 of the Public Order Act 1986.
It was this element of the case that resulted in expert evidence being given by historian Professor David Olusoga, who detailed the history of Edward Colston, the role that the Royal African Company, of which Colston was CEO, played in enslaving and shipping African people, and of the violence and brutality inflicted by the RAC upon tens of thousands of enslaved people. It was argued by the defence that the public display of a memorial to Colston was therefore both indecent and abusive, such as to render it criminal under the two Acts cited above.
Now when considering this defence, there were three key questions for the jury:
Did the defendants honestly believe that a crime was being committed? (Note that the question is not whether a crime had been committed by displaying the statue, but whether the defendants honestly believed that a crime was being committed)
Were the defendants’ actions in order to prevent one or both of those crimes?
If so, did the defendants’ actions amount to the use of reasonable force, in the circumstances as the defendants perceived them to be?
The prosecution case was ‘no’ to each of these questions. And, as mentioned previously (and as I’ll repeat throughout), the prosecution has the burden of disproving this defence.
 
ii. Owners’ consent
 The second ‘lawful excuse’, which set out in section 5 of the Criminal Damage Act 1971, was raised by two of the defendants, who said that they honestly believed that the statue was owned by the people of Bristol, and that had the people of Bristol known of the circumstances, they would have consented to what was done.
The prosecution case was that the defendants had no such belief, and had taken no steps to consult the people of Bristol.
Again, the burden is on the prosecution to disprove the defence. If there’s any doubt, the defendants are entitled to the benefit. That is the cornerstone of our justice system.
 5. So if the jury were sure that damage was caused and that there was no lawful excuse, they had to convict the defendants, right?
 Not quite. If the jury rejected all of the other defence arguments, there was one final issue for the jury to decide. And, to put it in its simplest terms, it relates to the right to freedom of thought and conscience and the right to freedom of expression.
These rights, the courts have long held, protect not only beliefs – such as anti-racism – but actions associated with protest. Because the alleged damage was caused in the course of a protest, these rights – guaranteed to us all by the European Convention on Human Rights – were engaged in this trial. Now this does not provide a ‘trump card’ – you don’t have an automatic defence to a criminal offence simply because you were acting in according with your beliefs or exercising your right to protest. Limitations on those rights – such as laws preventing criminal damage – are permitted. But, as the Supreme Court recently confirmed, when considering whether a ‘lawful excuse’ exists for potentially criminal acts committed in the exercise of those rights, the courts are required to consider whether convicting the defendants would represent a proportionate interference with the exercising of those rights. In other words, is it necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions?
Answering this question requires the jury to balance the rights of the statue owners not to suffer damage to their property with the rights of the defendants to act according to their beliefs. As the judge directed the jury, everybody in the country enjoys these rights. And the jury were expressly directed that the question is not whether the jury agreed with the defendants’ actions or aims. The same exercise would apply to any defendant, irrespective of how sympathetic (or otherwise) the jury found their cause.
Put even more simply, if the jury were satisfied that the prosecution had made them sure of guilt, they would also need to be sure that a criminal conviction for criminal damage would be proportionate.
In this exercise, the jury were directed to consider the follow (non-exhaustive) list of factors (drawing on the Supreme Court judgment):
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety.
 
 6. So which defence did the jury accept?
 We don’t know, and will never know, because juries are not allowed to disclose details of their deliberations, or to give reasons for their verdicts. All the verdict tells us is that the jury were not sure that the prosecution had proved its case, or alternatively that the jury were sure the case had been proved, but were not sure that it would be proportionate to convict the defendants. And that formulation is key. The defendants did not have to prove that they were acting lawfully; the prosecution had to prove that they were not. That is not a glitch or a technicality: that is the foundation of how our system works.
 
7. Why are so many people so upset?
The trial has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue see the verdict as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case was about, and what the verdicts mean.

The last paragraph above in its own language is, in its meaning, not dissimilar from my own opinions as at the beginning of this post. The difference being that it is of a self publicising eminent  barrister interpreting  the law in all its letters. However the last sentence neatly sums up, as is a barrister`s wont, an opinion disguised as fact. This commenter has no grievance, has not been inflamed by others, and certainly does indeed understand what the verdicts mean. They mean that lawyers and the "progressive" establishment continue to consider that they are morally leading us away from darkness and into the light; that those who are not within this caravan of truth are devaluing the right of juries to bring in verdicts considered as perverse. Re read the preceding paragraph with some slight alterations. 

The trial  vaccination programme has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue to oppose vaccination see the verdict process as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case vaccination was about, and what the verdicts effects mean.

It is almost being suggested by the language used that  opposition to the verdicts is as heretical as eg antivaxers are to the control of Covid-19.  There is no doubt that the near future will see our laws being tested in like manner by those who are aware that although no precedents are created by this case a public is being programmed to support a cause and not those laws enacted for the well being of all our society and not particular sections with which they identify.  This in tandem with the Supreme Court`s decision on Extinction Rebellion is a warning to everyone who senses the rot which is seeping through the mores of our society. More such legal problems are yet to come.