FROM ROE-V-WADE TO NEW MAGISTRATES AND MUCH IN BETWEEN

Generally the most interesting legal news events are covered by national media. By their very nature such events are of but passing interest to many people. Some are centred in distant places or of topics distant in importance to the average reader.  Apart from expressing my own opinions there are always some areas where what goes on in courts can have a real effect on the majority of citizens who have never stepped inside such a building.

Drink driving and speeding are topics which can crop up around any dinner table at any time.  The former offence can be almost as lethal as waving about a sword  or knife in a public place; an activity which depending on the circumstances can lead to a lengthy jail sentence.  Most of us refrain from such activity but driving after just a glass or two of wine or just a pint of cider...........Drinking is a social activity; carrying a bladed article is not.  The offenders here are free to continue their lives but with the alcohol levels they had consumed they are lucky they caused no collateral damage.  Considering that driving subsequent to drinking is a voluntary act I personally consider that the custodial option should be more readily available but of course a prime objective of the MOJ is at a minimum not to increase the numbers of those incarcerated. 

The Guidelines above seemed to be irrelevant to Recorder Penelope Stanistreet-Keen at Derby crown court. If ever an appeal should be lodged to question the leniency of a sentence this is a prime example. Perhaps the local MP should take advice from his colleague in Cheshire. 

The unlamented former Obergruppenführer Jeremy Corbyn is being sued for libel; an unprecedented situation for a major British political party leader.  Senior ranks of the Labour Party have been associated with antisemitism accusations for some years . Indeed last year the television presenter Rachel Riley was awarded £10,000 in damages by a high court judge after suing a former aide to the aforementioned Jeremy Corbyn for libel. In 2018 a recording of Corbyn in 2013 expressing his opinion of Jews is likely to figure in the forthcoming legal proceedings: " “They clearly have two problems. One is that they don’t want to study history, and secondly, having lived in this country for a very long time, probably all their lives, don’t understand English irony.” Considering the many UK Jewish writers of both comedic and non comedic content it will be of amusement to many when and if he is in the witness box. 

It is often said that the mores, habits and opinions of those living in the USA eventually find a new lease of life on this side of the Atlantic. The output of Hollywood post WW2 certainly facilitated the spread of American influence all over western Europe but especially in Britain.  English nationalism was encouraged by the rise and rise of Donald Trump....MEGA. Woke and its apparent subversion of our universities and other institutions in direct contradiction of a nationalistic trend appeared firstly in America.  The Oxford English Dictionary traces the earliest such usage to a 1962 New York Times Magazine article titled "If You're Woke You Dig It" by African-American novelist William Melvin Kelley, describing the appropriation of African American slang by white beatniks.  The earthquake of the USA Supreme Court on Roe v Wade has already sent tremors 3,000 miles in our direction. Those who are involved in the continuing availability of abortion rights in Britain are expressing fears that a gateway might open for hard right Christian fundamentalists to make inroads with parliamentary supporters to change the status quo we have long taken for granted in this country.

Considering that burglary is one of the most awful non violent crimes  and can be tried at the lower levels of harm and culpability in the magistrates court the MOJ in its wisdom has no corresponding statistics.  Perhaps it`s too busy figuring where next to close some more courts.  

Boris Johnson has discovered the opprobrium of the British people for being a law maker who disobeys his own laws.  We expect standards of behaviour from our public servants which are increasingly being dismissed as irrelevant by those caught in webs of deceit of their own making. Police and Crime Commissioner of Nottinghamshire Caroline Henry is a recidivist speedster on the county`s roads.  To her eternal disgrace she has refused to resign.  In this country there used to be some honour within those who were appointed to senior positions in all manner of occupations and quangos. Exiting the scene before being pushed was a little part of what being British stood for; not any more.  The ranks of so many supervisory bodies are replete with those who have been found wonting and yet have been quietly shuffled off to pastures new where their dishonesty and incompetence continue under a change of banner. 

All readers are likely to be aware of the current strike by barristers.  I am fully supportive of their efforts.  Without a continuing flow of juniors justice in our courts will soon be available only to those with the means to fund their own defence.  What I certainly do not agree with is the threat of sanctions upon those withholding their labour that has been voiced by the Lord Chief Justice.  In any legal system there are those who would obey their (pay)master`s voice.  The most heinous example was in nazi Germany and similar kowtowing in China (Hong Kong) and elsewhere is obvious to those who care to keep themselves informed.  The LCJ should shut up. 

And finally within the next four years the MOJ will have decided which 4,000 of 33,580 applicants to the magistracy have been selected.  All I can say is that the 2026 magistracy will not be an independent local system of justice. It will be a random collection of people satisfying self selected "diversity" criteria who will neither want to or be able to question their overlords of HMCTS who will treat them as unpaid employees expected to forget any instincts of independence and to to do as they are instructed upon pain of dismissal. 

JUSTICE GONE WITH THE BIG YELLOW TAXI

Without the rule of law a society cannot exist as such.  The law might be unjust or weighted to suit particular interests or political factions but it must exist in practice or the only law which will be in place will be the law of the jungle.  I suppose as a rough guide a primative legal system emerged in England with the establishment of farming communities about 2000 BC although about 8000 years earlier in the Middle East hunter gatherers began the process of civilisation we know today. A few hundred years before Mosaic law was offered to the children of Israel the Babylonian Hammurabi issued the Code of Hammurabi which he claimed to have received from Shamash the Babylonian god of justice. Unlike earlier Sumerian law codes such as the Code of Ur-Nammu, which had focused on compensating the victim of the crime the Law of Hammurabi was one of the first law codes to place greater emphasis on the physical punishment of the perpetrator. It prescribed specific penalties for each crime and is among the first codes to establish the presumption of innocence. Although its penalties are extremely harsh by modern standards, they were intended to limit what a wronged person was permitted to do in retribution. The Code of Hammurabi and the Law of Moses in the Torah contain numerous similarities. For law in general or laws in particular to be respected by a population they must be simple to accept and understand.  Indeed we are all aware of the old adage attributed to Thomas Jefferson;   “Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended.”  But if simplicity in the eyes of the public is a necessity for "good" law it appears that as society has developed in ways unimaginable just a century ago that simplicity has all but disappeared and those who are charged with administering law and justice from parliament to the court are like sailors of old without a compass and only the stars as a guide. Indeed the changes and complexity of sentencing I personally experienced when active in the magistrates court are but a childhood game of snakes and ladders compared to the current sentencing guidelines at the crown court. 

Recently 21 year old Nathan Fairhurst admitted possession of a bladed article in a public place.  All readers will have heard various Justice Secretaries over the years preaching that such activity must be punished by a custodial sentence. Twenty years ago before sentencing guidelines were mandatory judges (and magistrates too when appropriate) would use a structured sentencing outline  and their own initiative and experience to sentence. Nowadays they must follow Sentencing Guidelines or explain their failure to so do.  The complexity of Guidelines is obvious. It was the US state of Michigan around a decade and a half ago which originated the idea of a formulated almost mathematical chart to aid sentencing.  Current practice in  England would seem now to be antiquated and could be replaced by algorithims as so many other aspects of our society are. 

With Justice Secretaries coming in and going out like commuter trains another common theme is the numbers of foreigners in our jails and the numbers expelled on completion of their sentences.  There are about 10,000 foreign nationals or about 11% of the total prison population. Under Section 32 of the UK Borders Act of 2007, non-EU “foreign criminals” sentenced to 12 months or more in prison are subject to automatic deportation. 4,700 foreign national offenders were removed in the year to March 2020. The number of such returns fell from 6,200 in 2016. Of course there is the ongoing scandal of those who evade deportation after completing their sentence as the chart below idicates. 

So when we read that Palfi Csaba Hungarian hard man will be deported we can only hope and not assume that the order will be carried out. The problem is that nobody cares about justice and the rule of law.  Of course legal bigwigs and government toadies will talk the back legs of donkeys to justify their support for the current legal fashion. Where was all the support for justice locally since 2010?  Now MPs are complaining that around half of all constituencies have no local court.  There was little opposition when the courts were being closed.  Now they wail and bemoan the loss.  

Nobody has said (sung) it better than Joni Mitchell when describing loss of essentials to our life experiences in the first two verses of Big Yellow Taxi

They paved paradise and put up a parking lot
With a pink hotel, a boutique, and a swinging hot spot
Don't it always seem to go
That you don't know what you got 'til it's gone
They paved paradise and put up a parking lot

Oh, bop, bop, bop
Oh, bop, bop, bop

They took all the trees, and put em in a tree museum
And they charged the people a dollar and a half to see them
No, no, no
Don't it always seem to go
That you don't know what you got 'til it's gone
They paved paradise, and put up a parking lot

BANKS -v- CADWALLADR + BBC LOSES LIBEL CASE

"Essentially, the public interest defence means that, even if the meaning of a statement is potentially inaccurate or defamatory, there is an added protection if those statements – whether they concern high-profile policy decisions or the use of public money – speak to matters of high importance, and are published responsibly with an opportunity to comment."  The preceding extract is from Byline Times in which was described the recent legal ordeal of Observer journalist Carole Cadwalladr. As a non lawyer I can only attempt the leaps of imagination of those pinhead angels who can offer a truly authoritative opinion on the legal machinations which must have perplexed many.  My bottom line of this business is that at its root an inaccurate published statement can be considered lawful if circumstances so demand.  However one views the plaintiff`s moral or political position it is in my humble opinion a verdict which would be highly suitable for appeal so that fellow non lawyers might understand the workings of this very important legal precedent.  As a public interest defence is often the means by which whistle blowers stand against the laws promulgated by government against the publication of  government secrets cases of this type should matter to all who are interested in freedom of the press a freedom that this government in particular does not appear to enjoy or readily endorse.  

Whilst on the subject of libel, the matter of Begum -v- BBC was found in favour of Ms Begum a Labour Party councillor in the City of Westminster.  In short she won her case and £30K in damages.  In reality our so called national broadcaster and its employees at varying levels of responsibility were shown as being incompetent. Noting that its logo on TV has followed the almost religious fervour surrounding OUR NHS, the BBC has followed suit and is now trying to convince us that as OUR BBC it should have a similar totemic appeal as part of its opposition to cuts in funds provided by taxing our individual incomes on an annual or monthly basis.   I wonder how much that innovation cost?

DIGGING DEEP FOR JUSTICE

Considering that over a million cases annually are adjudicated annually at 150 magistrates courts very few come to public attention via local news media. Statistically that`s hardly surprising when although conviction rate is 82% so many offences are relatively trivial for us as observers but possibly life changing for those involved. Of course the government issues court statistics like a wedding venue supplies confetti and much like confetti it is the shower overload which provides the spectacle not the individual pieces of snowflake sized white paper.  It is only by digging deeper into individual cases that a true feeling of how justice for the average individual citizen  operates in this country can be ascertained. 

Relatively few defendants at magistrates courts are remanded in custody.  The default guidance is that strict reasons must prevail.  Indeed I cannot remember when a such a remand in my court was any way controversial.  But I do think I can say that personally no such action was taken without a defendant being legally represented if not by a hired lawyer by the duty solicitor.  I understand that that is not necessarily the current situation. The Sentencing Council Guideline is available here. 

"His licence was endorsed with three penalty points for three of the offences."  That sentence is the last line of a report into the case of a motoring multi offender.  It seems the writer needs a refresher in the English language especially when he purports to be a professional communicator. Were three points allocated to each of three offences or were all three offences resulting in a total of three penalty points?  Read the report here. 

For a long time now magistrates courts have been pressurised not to send offenders to immediate custody.  In many cases short prison sentences are a waste of time, energy, money etc and have no bearing on the principles of rehabilitation or deterrence to others. However it appears that there is now almost a blanket acceptance to avoid immediate custody in all but the most heinous matters in the lower court. That is why around only 3% of all cases result in immediate custody. This offender is one of the 97%.   

Common assault can result from a finger tip touching an arm. Police representatives are forever complaining that assaults on officers are not punished with sufficient severity.  For the casual reader of local news media perhaps a false impression results.  Should this defendant have been punished more strictly?  The report is very limited but in their statistics police will add the incident to their book of complaints. 

Meantime the Ministry of Justice has published a new report on media access to courts.  Whether or not this will encourage more local news reporting is a moot point.  I for one will not be holding my breath. 

TRIALS AND TRIBULATIONS

Sometimes this retired magistrate notices a single incident which might be of interest to those who give a few of their valuable minutes to read his opinions. On some occasions a few legal happenings from magistrates courts to the Appeal Court can shine a light on principles underlying the law and/or the legal system. Today is such an occasion. 

Time and time again I have railed against the system allowing dangerous drivers to avoid disqualification.  It is known as the exceptional hardship argument. Use the search box with that input for previous comments.  It seems that dozens of times daily solicitors are making vast fees by persuading muddled headed magistrates of an argument for which no legal definition exists and which relies solely on said solicitors making the bench feel sympathy for the recidivist erring driver who has previously accumulated penalty points.  In this particular case his argument; ""I now work as a delivery driver for ASDA and I am the sole breadwinner in my house because my wife looks after our four children. "Living in the countryside, most of the jobs that are available are ones that you have to drive to so even if I went for a job that wasn't a driving one, it would still be difficult. That would mean that we would lose our home and so I don't know what we would do." is heard time and time again in court. It is a spurious argument .  I won`t repeat now what can be found in those previous posts referred to above. The matter was reported in Lincolnshire Live. 

ASBOs, CRASBOs and their like have become a way of life over the last twenty years for police and councils. They are Civil orders thrown at those where criminal actions cannot or are unwilling to be proved in a magistrates court. They are akin to raising the volume on a TV set when the problem lies in the viewer`s having a hearing problem. I have a personal interest in Criminal Behaviour Orders having sat on the very first such action ever brought in England.  FYI  it was badly drafted and my bench threw it out. The ASBO was but the preliminary of many such so called orders to be promulgated.  Currently Football Banning Orders are in the headlines but this is a typical example.

By the actions of more than a few, MPs are behaving as if the law and shame are not parameters of their behaviour or actions.  Such is the scandal of Claudia Webbe. Now that her custodial sentence has been overturned she does not face a re-selection process.  She can continue with impunity to supposedly represent her constituents. This is just a single and not the worst example of how our society is disintegrating in a morass of political effluent. 

It doesn`t happen often in magistrates courts but I have personally (in agreement with my colleagues of course) intervened in a case and dismissed the charge there being no case to answer.  A recent case in Scotland might be of interest for the principle applied in that decision being reversed.

I would imagine that very few criminal lawyers are in favour of judge only trials.  That in itself is a paradox because one doesn`t hear them complaining of trials presided over by a single District Judge but many are quick to criticise a three person jury comprising JPs. This actor had his nose put out of joint when he was refused a jury trial.  

Having many years ago been personally involved in a case of employee status which ended up in the Appeal Court in front of a high court judge and two assessors this caught my attention. 

I was well ensconced in the middle chair when reference to defendants` bad character was officially introduced in the lower court under strict conditions. This is an interesting case which might provide thoughtful opinions for those who are not too familiar with the nuts and bolts of the requirements for its introduction. 

With the Home Secretary and the Attorney General recently accused of sailing too close to the legal wind in some of their recent comments and commentaries on the law, various legal matters and the legal ramifications of some government actions  Lord Burnett the Lord Chief Justice commented in a speech last night that the Lord Chancellor aka the Secretary of State for Justice must inter alia, ‘In imposing an obligation on the lord chancellor to have regard to defending the independence of the judiciary he is required to be active in support of the judiciary, within government and, if necessary, in public when that independence is threatened or attacked.’  A report is available here.

Many of the preceding observations might by some be considered  of only marginal interest to magistrates although I would of course disagree but a topic that gets down to the  nitty gritty of the state of current and future development of justice at the lower court is the Single Justice Procedure initiated in 2015 supposedly on the basis of how Tesco operates; pile it high and cheap.  Simple non custodial offences are adjudicated upon by a single JP sitting in a private office advised by a legal advisor. Previous posts can be accessed through the search box where a regular reader will not be surprised that I am certainly not in favour with such a system. As if the iniquity of the process is not enough it seems that the know alls at the MOJ are about to squeeze the justice lemon of even more pips by cutting the numbers of legal advisors to a third of the current level i.e. one such advisor will oversee the actions of three so called courts simultaneously.  And so continues the decline of  what was once the finest and fairest justice system in the world.  I suppose it still might be if you`re a Russian oligarch or married to a Premier League multi millionaire. 

CANARIES AND LAVATORIES

The story goes that the indigenous native Americans, pre communist Chinese and many other societies of the last and previous centuries revered the elderly of their populations who were relatively few in number cf modern times for their wisdom.  For many, especially those under 40,  in an age of instant mass information and communication such reverence is but a footnote in history. In some respects no amount of empathy by the young with the elderly can ever truly reveal the changes which age bestows upon us.  

The first time lavatories became a subject for a magistrates diary was 12th March 2010.  When I blogged here 27th October 2016 I was entering upon my last quartile of life or as much of it as I was offered by powers greater than mine. The following year that  basic human requirement denied to many as posted above was excoriated by me yet again as its deprivation led to more court appearances and criminal records. To pee or not to pee has become for so many innocents especially after closing time a question of risking the wrath of the law or the discomfort and embarrassment of pissing themselves.  It`s not just public lavatories being closed that councils are reducing services which are not near the top of their functions considered essential. Council run public dump sites have imposed appointments systems on anyone who has items for disposal.  No more attempts to be customer orientated the Covid pandemic being the temporary excuse which has become universal in so many spheres of our lives.  

Personally I now plan my long distance trips by ensuring as much as I might be held up by delays that I use motorways with their guaranteed 24 hour lavatory facilities such consideration alien to my younger self of even 20 years ago.  On that personnel level a few weeks ago I was in the seaside resort and golfers` paradise of Troon on the Ayrshire coast.  A wonderfully sunny Saturday  warm afternoon had brought thousands from Scotland`s industrial heartlands to the fresh air, wide sandy beach and Italian ice cream parlours for which the town is famous in Scotland.  Despite carefully rationing my liquid intake walking along the promenade I found myself in need of what euphemistically is known as a public convenience.  Eventually there it was; a redbrick building with minimum signage as to its purpose.  However as I entered there was a queue barred by an electronic gate; highly unusual in my experience. The chap in front explained that a credit card was needed to gain entrance to the porcelain lined activities area.  There was no attendant and no cash alternative to access the interior. As the chap ahead of me took out his phone in anticipation hoping that it would suffice in place of a real piece of plastic a relieved man of my own vintage exited the electric gate opening for him.  My fellow in need ahead of me inserted himself through the entrance before the gate could close and I followed doing likewise.  

I am not anally orientated.  With a population living longer in every generation the needs of the body need to be accommodated by those who make the rules realising that at 60+ most [many?] people are very sound in mind, are actually quite wise and require public services as much as teenage addicts or autistic children.  This is a national problem. Yesterday`s Times carried the article below.  

Public urination is usually included in the by-laws of individual local authorities under Section 235 of the Local Government Act 1972. A Penalty Notice for Disorder - PND (Section 5 of Public Order Act 1986) is the likeliest course of action of a police officer who catches someone urinating in public. PNDs are used by officers to deal with low level, anti-social and nuisance behaviour. A fine of £50 or £80 is issued to be payed within 21 days of receipt of the notice. But of course all magistrates have had before them defendants charged with the more serious  Outraging Public Decency (Criminal Justice Act 2003) - prosecution under this act is extremely rare. However a “plainly indecent” act carried out in public in front of two or more people could result in an unlimited fine or prison terms or Indecent Exposure (Sexual Offences Act 2003).  Indecent exposure occurs when a person displays part of themselves in a public place that is considered as being offensive or morally unacceptable. Punishment can range from a fine to a maximum 2 years prison sentence. 

Society doesn`t break down overnight from the impact of an asteroid.  It collapses when a sense of moral order, respect and compassion for all its members is removed, forgotten or overlooked by the forces of power, envy or indifference.  It is an insidious process. It is continuing its inexorable  traverse across so many of our institutions that we ought to be concerned that council refuse dumps and public lavatories are being denied to those who need them. They are but canaries in the coal mine. Who knows what is coming next.  

RED CARD FOR JUDGES

There can`t be anybody who`s not heard of or used the phrase, "there`s one law for them and another for us" the terms "them" and "us" being who the listener wants them to be.  There is also the commonly accepted concept that the more of an object or a commodity one possesses the less value is perceived of a single item of that object or commodity.  An obvious example is money.  £10 to a receiver of social security and other benefits is worth almost literally infinitely more than the self same amount to a multi millionaire.  And what has this to do with what is a magistrate`s blog or perhaps more accurately the thoughts of a retired magistrate?  Confidence in equality before the law and confidence in those who administer the law are fundamental to our democratic well being.

At the last count earlier this year there were 12,651 magistrates in England and Wales whilst there were 3,174 judges of all levels of jurisdiction from county courts to the Supreme Court.  However reading through just a single year of disciplinary cases (2021)  and for any other year the cases against judges are rare and the outcomes relatively mild as opposed to the numbers and outcomes of J.P.s sanctioned.  Statistically there might or might not be simple explanations.  However the latter are usually in the star chamber owing to personal failings of one sort or another.  Judges` failings on the other hand have a direct effect on legal outcomes where an eager media seem regularly to inform us that government law officers; the attorney general or solicitor general have appealed for a serious offender`s sentence to be increased. On the assumption that a sentencing judge has consulted the sentencing guidelines prior to his/her decision pronounced in open court and has had the requisite experience and training to preside on such serious criminality in the crown court I often wonder at what if any level of "sentencing error" do judges have to undergo some form of retraining?  With most other professions disciplinary processes are in the public domain.  When there are attempts to limit public access as in police gross misconduct cases at least media are informed with the consequent publicity itself of imposed secrecy being used to castigate the particular authority involved.  

The rule of law is fundamental to our continuing functioning as a democracy. Parliamentary proceedings where there is even the remotest suggestion of government attempts to stifle or thwart such is broadcast near and far. But against this trend the judiciary seem to be above criticism.  Perhaps the Lord Chancellor and his advisors are fearful that undermining judges and judicial authority with open disciplinary processes would in itself undermine the rule of law.  I would urge them to see a bigger picture.  If judges` errors and human failings are suspect more harm will ensue to the body politic by their being covered up than fair and and open admittance of their happening. In the interests of fair play sometimes the red card must be shown and be shown publicly.    

25 SUGGESTIONS FROM THE JUSTICE GAP

I would  assume that most readers here have noticed in some media or other a convicted felon having his/her jail sentence increased on appeal by the attorney general. Indeed there are a couple of high profile cases currently going through the process right now.  Less media attention is given to those whose legal teams have convinced the court of appeal that the verdicts by which their clients were imprisoned were unsafe. Rape trials and child killers have often made the headlines with the conviction rate of the former being criticised as far too low and sentences of the latter less severe than the common man would deem necessary short of hanging. Whilst no UK government would every admit and perhaps even secretly admire in private whilst deploring in public the Chinese conviction rate of 99% is typical of justice within a dictatorship where opposition of any kind, criminal or otherwise, is seen as political opposition which must be eradicated.  

The Justice Gap, magazine of an independent pressure group, has this week published its 25 areas where changes in the general manner of criminal court appeals should be improved to reduce the numbers of prisoners released on appeal as their convictions being unsafe.  I have my own opinions of where of the 25 it is just a fishing expedition but there is no doubt that a nation which has been proud of its justice system (at least pre 2010) should not be cutting corners for financial or any other reasons in the process of appeal.  Personally in my own small way often to the perplexity of my colleagues I have,  when active, after pronouncing sentence especially after trial, informed the offender of the manner in which an appeal can be made to crown court. With unrepresented offenders, the vast majority, this is a course of action they never knew existed.  

There is no doubt that since the 25 recommendations would incur some cost or other, direct or indirect, few of the proposals will ever be taken up at least by the current government but they should certainly be food for thought if the next occupant of the woolsack is not a Conservative. 

CROWN COURT BACKLOG/MAGISTRATE SHORTAGE// GOVERNMENT SELF CREATED PROBLEMS

The issues of anything to do with magistrates are usually not headline making nor worthy of headline making........until recently.  No judicial voices were heard in the last decade crying out against the two thirds reduction in the numbers of magistrates from 2010 a reduction that was entirely predictable considering the age profile of those in 2010 and a government policy of non recruitment thereafter.  Now there is a headlong drive by the Ministry of Justice to enlist no less than 4,000 new magistrates to join the current cohort of twelve and a half thousand. One doesn`t need to be a Nostradamus to appreciate that within a year or less a quarter of those on the bench will be novices. One unmentioned result of this inexperienced influx will be that legal advisors will hold sway to an unhealthy level of magistrates` decision making. The ability of benches to take an independent view of a situation will be funnelled into the mindset of paid civil servants who should have no business except that of ensuring that benches` processes fall within the law. Their opinions on fact are outwith their raison d`etre. Their opinions on sentencing should be confined to overseeing that a bench follows the lawful structure contained in Sentencing Guidelines.  From my own experiences there is certainly a number of advisors in every court who exceed those boundaries. It takes a strong minded presiding justice to impose the will of a bench when a legal advisor has a mind of his/her own to impose an alternative view.  With 4,000 newbies it is a certainty that the diminished number of old hands on a bench will face increasing pressure from their novice colleagues not to oppose legal advisors when opposition is exactly what is and will be needed from time to time in the future as it always has been in the past. One overlooked fact is certain: professional district judges are not selected on the basis of being  representatives of their area although they preside alone over about a quarter of cases. So there are and have been two forms of magistrates courts; a supposed court of "representatives"  and another of a government paid professional judge selected only for his/her abilities to do the job.  The propagating of "diversity" in the magistracy is a distraction. 

The other headline maker which has many in the legal world finding the discomfort when their knickers are in a twist is the extension enacted this week of magistrates courts` sentencing powers. Offenders agreeing to either way matters being tried at the lower court face the possibility of a twelve month maximum custodial sentence; double the previous limit which has held sway for many decades. The Ministry of Justice as usual with its overpaid coterie of a press and public relations department has been quick out of the blocks with its gung ho press releases the headline of which from its point of view seeks to alter the basis of argument to its own agenda; "Magistrates to help tackle backlog as sentencing powers doubled."  In short the MOJ seeks to imprint on our feeble minds that the backlog of crown court trials will be reduced.  That is rubbish.  In March the House of Commons Committee on Public Accounts reported, with recommendations to government. The Government had two months to respond.  In the Report amongst its conclusions was written, 

"The number of cases in the Crown Court waiting to be resolved has nearly doubled since March 2019, from an all-time low of 33,290 to 59,928 cases in September 2021. Since March 2020 alone, the number of cases waiting longer than a year has increased by more than 340%. The Department’s plan is to reduce the backlog by less than 7,000 cases, to 53,000 by March 2025. We remain unconvinced of the Department’s intentions to reduce waiting times in the Crown Court, given the slow pace of recovery. In January 2022, after we had taken evidence in December, the Department announced that magistrates will be able to hand out longer prison sentences. The Department expects this will reduce the number of cases that magistrates need to send to the Crown Court for sentencing."

Note that the Committee itself does not endorse the MOJ conclusion; it just repeats it. The prime reason for the delays at crown courts was the government`s own decision to reduce the number of judges` sitting days to reduce costs. In addition there has been a known reluctance to appoint the required number of new judges; again cutting costs having been the reason.  There are c120 full time District Judges sitting in magistrates courts and around 160 Deputies. It is estimated, although hard facts are difficult to obtain, that they sit on about a quarter of all the trials at magistrates courts. Thus they will be judge, jury and sentencer all in one; a situation which is likely to exacerbate the rancour of the more libertarian defence advocates. Currently about 4% of all offenders at magistrates courts receive an immediate custodial sentence. It is beyond any shadow of doubt that the numbers of appeals at crown court against sentence will multiply.  This will further take up time of judges and recorders away from their prime purpose. In addition many more defendants will take the opportunity to elect trial at crown court on those either way offences where their lower perceived risk of being found guilty is confirmed by statistics.  

To sum up; apart from some magisterial bigwigs crowing about their new status there is absolutely no requirement or argument to suggest that the increased sentencing powers will do anything to reduce the backlog at crown courts.  It is nothing less than a cynical effort to demonstrate that the "government is doing something" to fix a problem it itself created. 

THE CHOICE IS BINARY

On 12th January I wrote at length on the trial of the Colston 4.  Thus I was pleased to note that the Attorney General whose decisions since taking office have not been above criticism has taken an interest in this case and referred it to the Court of Appeal.  From recent divergences of opinion on the law most notably Boris Johnson`s remarks on the exporting of illegal immigrants to Rwanda that he expects opposition in the courts as to the legality of his proposals a political divide between "woke" lawyers and the rest is becoming apparent.  It is also  apparent that the political divisions opened by the 2016 Referendum, itself an expedient act by David Cameron to hold together the Tory Party, have widened the gulf between our previously held opinions of what we call the Left and Right.  Differences in matters eg sexual orientation and gender have now become standards by which extremists view their world.........not ours but theirs because such individuals apply their self defined formulae to almost any activity or opinion.  Their world is an ugly one in which the choice is binary. You are for me or against me.  

Now I am leaving for a short holiday and so I hope to return here refreshed and wide awake but not woke in a couple of weeks or so. 

LOCAL COUNCILS ENCOURAGE FLY TIPPING

According to the government whether we like it or not restrictions imposed over the last two years to minimise the transmission of Covid 19 have been lifted.  We can all go about our business as we wish taking any precautions we deem helpful (if any at all)  and trusting in our own common sense and vaccinations. Sounds simple but there are some areas of our lives where Covid restrictions have been used to make more inroads into the way we live.  

Magistrates will be well aware of the increase in the numbers appearing before them on charges of fly tipping as are local councils who provide the first line of defence against those despoilers of our highways and byways.   Councils are able to issue on-the-spot fines to fly-tippers of up to £400 and can stop, search and seize vehicles suspected of being used for fly-tipping. Local authorities and the Environment Agency are also able to issue penalties of up to £400 to householders who do not pass their waste to a licensed carrier and whose waste is then found fly-tipped. Fly-tippers can also be prosecuted and taken to court which can lead to a significant fine and/or up to 12 months imprisonment if convicted in a Magistrates' Court or an unlimited fine and/or up to 5 years imprisonment if convicted in a Crown Court. Fly-tipping prosecutions are highly successful with over 98% of prosecutions resulting in a conviction in 2019/20.  

One would think therefore that councils would do all they can to facilitate the needs of their residents by enhancing the efficiencies of their dump sites.  One would be wrong.  The regular 9 or 10 am to 4pm no appointment needed operating hours pre Covid are now history for most if not all councils.  As an example Barnet Council in north London has decreed that 24 hours notice must be given to its major public dump site and an appropriate appointment made in order to use the facility. In addition it`s insisting on Covid imposed rules for those attending. What utter nonsense is this.  The union members on site are all too ready to follow these instructions but what of the population of 330K who are its customers?  Fly tipping is a scourge on our society along with many others but it can be controlled with local councils doing their very best to be council tax payers orientated.  Barnet amongst many others is giving two fingers to those who pay their workers` wages.   

OYEZ, OYEZ, OYEZ

There are millions of court cases annually in this country; a very small number is reported in the national and/or local media and an even smaller number is commented upon in legal publications.  It is therefore hardly surprising that the great British public apart from the third of adult males who have a criminal record has little idea of what constitutes justice.  

The issue of subcontractors working under IR 35 has primarily been an issue for accountants and their clients of whom there are or were millions.  To be or not to be an employee had little effect on those members of the public who perhaps many times removed were beneficiaries of what ostensibly was an arrangement between employer and contractor.  But there was and is a major dividing line at the sharp end of that contractual relationship: what is the result of negligent and/or less than satisfactory working standards of the contractor and harm or loss befalls the customer?  Until recently that position at least as far as dentists was unresolved. Dental practice owners have for many years operated a payment by results system for supposed independent self employed fellow dentists  working on a piecemeal basis.  I suppose the modern term which best describes the situation is zero hour contracts.  If a dentist in such a situation faces a charge of negligence or similar the practice principal has been able to stand aloof from the proceedings and the accused must defend him/herself as well as possible whether or not s/he has appropriate insurance.  That iniquitous situation is no more.  Last week the Court of Appeal finally ruled that the previous legal position was unfit for purpose; a long awaited reform to the benefit of anybody unfortunate enough to be dissatisfied with the quality of care in the dentist`s chair.    

Capital punishment was abolished in 1965.  There has been a not insubstantial minority since then convinced that decision was hasty and the rope should be held in reserve for the most heinous of crimes and their perpetrators.  One such category is the double murderer.  However when a double murderer  is released on license and goes on to commit a third murder hackles rise and it was last week  Lawrence Bierton pleaded guilty and so placed himself in that vary rare club of demons; a triple murderer. He is yet to be sentenced but it is unlikely he will receive anything less than a whole of life custodial order with no possibility of parole.  Should he hang? Would society be better served if that sentence were available? 

This column has previously alluded to the inequality of sentencing seemingly structured into our legal system. In basic terms sentence can vary as a miscreant`s contribution to and place in society.  Some will agree and others not.  But should this pharmacist be sentenced to custody or even custody suspended or not?  Read this report and decide. 

In some many areas of our lives text messages and e mails are ubiquitous.  From notice of deliveries to our or a neighbour`s front door to a confirmation a bank deposit has been received or  payment due the text tells us all but not in court.  This is an anachronism which is years overdue in being brought into the 21st century.  I doubt there is a single magistrate reading these words who has not had the experience of being told by a defendant that s/he had not received a letter from the court.  Sometimes the court will believe such a statement and sometimes not: competent presiding justices doing their job must exercise their interrogative techniques in coming to a decision as happened recently at  Worcester Magistrates Court.

And finally to those amongst us who think the law does not apply to them.........and I am not discussing the goings on at a house in London SW1.  Rather that description is proudly exploited by a group of so called activists who believe that the ends justify the means and juries who cannot or do not see or are  unwilling to face the reality that fascism often begins with such attitudes and terminology. Extinction Rebellion and associated groups sometimes with antisemitic overtones amongst its members have been and are using the law to undermine our society.  When this route is embarked upon there is no knowing where it will end.  In Northern Ireland in 1968 it began with peaceful marches but within a couple of years it travelled the road of car bombs, murder and civil war in all but name.  It is a road to anarchy.  The perennial question for a democratic country like ours is how far do we go to defeat the fascist who will do everything and anything to undermine that democracy.  The paradox is if and when it becomes necessary to employ undemocratic means to save that democracy are these means employed and to what extent?  In Northern Ireland internment without trial became a useful though limited  tool as did a single judge no jury  courts system; the so called Diplock Courts. To prevent our current state being transduced our law makers must be ahead of the game.  I hope they are. As the town crier would call to announce happenings to the people of the village; oyez, oyez, oyez.

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.