ARE THERE SOFT JUDGES AND HARD JUDGES?

American justice generally is not held in too high a regard here but there are exceptions. The concept of a grand jury is alien to our way of deciding whether or not an alleged criminal should be prosecuted. Although originating in England during the Middle Ages, grand juries are only retained in two countries; the United States and Liberia. It is a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify. A grand jury is separate from the courts which do not preside over its functioning. Certainly there is a strong argument that in certain circumstances such a method is at least equal to the British way of managing prosecutions.  It is an extension of the jury principle of common citizens deciding a defender`s fate albeit before a formal trial rather subsequent to it. In addition and at the extreme end of citizen participation American juries in some states have the authority to impose capital punishment of offenders whilst judges are the final arbiters in others. 

It seems that a general overview is that in America the law and its disposals are closer to the ordinary citizen than in the U.K. where there is no public input into decisions to prosecute and the nearest ordinary folk have to sentencing is a victim statement. Indeed as a non lawyer it seems to me that judges have a much greater say in the management of serious criminal offending than their American cousins. That being the case the sanctions on judges who err is, on the surface, propagated by the Judicial Conduct  Investigations Office but my cynical personality holds the opinion that much or more goes on behind closed doors of the judiciary than in front. That being said it has been well known amongst the legal fraternity for centuries that there hard judges and soft judges; those will take the hardest view within the Guidelines and their more sensitive brethren who lean towards a sympathetic view.  With a dearth of print reporting of crown court trials and those that are reported being limited by the space afforded by cost conscious editors to source two trial reports of the same courtroom presided over by the same judge is an interesting exercise.

The date is July 20th and the venue is Sheffield Crown Court where HH Judge Sarah Wright was on the bench. The offence of causing serious injury by dangerous driving is no laughing matter; it can result in 5 years in custody. However HH decided that this offender`s custodial sentence of two years custody be suspended for two years in addition to  240 hours of unpaid work, a rehabilitation requirement and a driving ban.  Only those in attendance or who buy a transcript can truly pass learned comment but on the basis that the other 99.99% of those who might be interested are barred from an opinion is of course rubbish. 

Also on trial in the same court on the same day before the same judge was Ben Oberg who pleaded guilty to controlling and coercive behaviour, common assault and damaging property in Barnsley between August and September, 2020. He too benefited from what seems was Judge Wright`s sympathetic attitude to what many folk on the Clapham Omnibus would consider offending worthy of immediate jail time.  Read the report and decide whether you too have the impression that Mr Oberg is a lucky man to have found himself before a judge who seems in line with the government`s bidding of screaming sentences are not harsh enough but please don`t underrate suspending sentences of custody whilst our jails are almost always near enough full to capacity. 

TV HISTORY IS MADE

This blogger has advocated for many years that the proceedings at courts should and could be shown on live TV.  Today history was made on Sky News when the sentencing remarks in the case of Ben Oliver who killed his grandfather in a frenzied savage attack were broadcast live.  Presumably these historic 20 minutes will be available on the Sky News you tube channel.   

When print and other media court reports are published they are limited by the space or time available. This was real insight into how a major part of the justice system works.  Would that the rest of the system from crime prevention to waiting times to trial were as efficient. 

EMBED APPEALS FROM MAGISTRATES COURTS

Miscarriages of justice is a subject about which the public is generally ignorant or unaware until or unless a prisoner convicted of a serious crime is released from prison with a mention in most news bulletins until the next 24 hour headline takes over.  The system of courts is rather like the system of locks on a canal. Enter the first and reach its maximum level (or depth) of water and proceed onwards until desired level is attained to continue a journey. For the courts, be found guilty at crown court level and appeal to court of appeal. Taking a step back conviction and/or sentence at the magistrates court can be appealed at crown court before a bench of a judge and two magistrates with a sentence there being able to be appealed at the court of appeal. Similar steps are in place for the civil courts. Appeals against decisions in magistrates courts are statistically quite rare since the vast majority of cases are summary only and the costs of appeal would scarcely be worth the effort for those convicted.  Statistics of appeals of this nature are now apparently unavailable with the MOJ using the excessive cost get out to avoid disclosure. The latest figures I can obtain are below.  Please use the magnifying tool for comfort.

The main thrust of  this post is that there is a perception amongst defence lawyers that clients have a better chance of acquittal in either way cases by electing trial by jury. Crown court cases are considerably more expensive than in magistrates courts. With those two factors in mind, earlier this year the MOJ extended magistrates courts` sentencing powers from six to twelve months custody.  In so doing the risks and consequences  of miscarriages of justice have increased.  In addition the MOJ with its well publicised programme of appointing an additional 4,000 magistrates by 2025 adds additional possibilities of miscarriages of justice by those newbies being likely to have inhibitions against opposing more senior colleagues` decisions. My personal choice to ensure justice was available to all was, after pronouncing verdict and sentence to offenders, to explain the crown court appeals procedure. I know that very few of my fellow presiding justice colleagues followed my example. A situation unknown to the general public is that decisions of magistrates courts are not necessarily unanimous but are always described as "the decision of the bench". I would propose that that archaic presentation of verdict is now not fit for purpose. I would further propose that any verdict delivered by majority must be immediately conveyed to the offender as being able to be appealed at crown court. It is of course up to the senior presiding judge to recommend such changes. It will take pressure from the legal profession and other bodies eg Transform Justice for those suggestions to be even heard at the highest levels never mind acted upon. Perhaps by 2050 there might be a hint of compliance. 

INFORMATION WITHHELD

There are two departments of state Health and Justice which seem to be proud to inform those who want to know of all the numbers they gather about all their activities.  Sometimes these are to enlighten us, a largely non numerical public, and sometimes it appears to overwhelm us with so much numerology that the "meat in the pie" is overwhelmed by pastry and gravy.  I would assume  that the mathematicians and statisticians are merely following orders although with a certain amount of cynicism in my genes I would not be at all surprised if at any time in any topic discreet instructions were sent out from Whitehall that a certain end result or indication would be well received by those sitting at the biggest desks. 

It is apparent to anyone remotely interested with our justice system that public announcements from the MOJ often seem more to pander to what it believes is a public desire for ever more severe punishments.  Indeed some announcements of so called changes are totally unnecessary as the Guidelines allow for extreme disposals within existing parameters. Nowhere has this approach had more far reaching effects that the changes to driving offenders dependant upon outcomes. From maximum sentences respectively of two years custody for careless driving to seven for dangerous driving and additions in 2015 to causing serious injury or death  by careless or dangerous driving  ranging from  two years on indictment to life imprisonment.  Apart from the Daily Mail headline pleasing approach by this government there is the philosophical question of why should the outcome of an unintended driving incident drive the sentence.  Many including this writer have experienced momentary lapses in concentration which have not resulted in a legal situation or perhaps could have but did not. However the law is the law is the law which brings me to the knub of this post. Minority Report starring Tom Cruise and directed by Steven Spielberg was a superb film based on the prevention of a criminal event before it happened.  Indeed much of any government`s legal thinking is on the prevention of crime.  Following logically on that premise surely it would be common sense to follow up those drivers who have been subject to disqualification but have persuaded a court by the successful pleading of exceptional hardship or special reasons the former having been posted here previously many times and available by typing those words in the search box. In order to do so a court would have to know those thousands annually who kept their driving licenses by reason of these two appeals. But MOJ does not have this statistical information although courts have it recorded as they have names and addresses recorded.  A freedom of information for this received the following reply:- 

In each of the last five years or for those for which statistics are available how many drivers who have succeeded with applications of "exceptional hardship" in avoiding a totting driving disqualification have gone on to be convicted in the crown court of an imprisonable driving offence especially causing death or serious injury by careless or dangerous driving?

In each of the last five years or for those for which statistics are available how many drivers who have succeeded with applications of SPECIAL REASONS in avoiding a driving disqualification have gone on to be convicted in the crown court of an imprisonable driving offence especially causing death or serious injury by careless or dangerous driving?

Your request has been handled under the FOIA.

I can confirm the MoJ holds all of the information you have requested. However, to provide as the request currently stands would exceed the cost limit set out in the FOIA.

Section 12(1) of the FOIA means a public authority is not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days determining whether the department holds the information, and locating, retrieving and extracting the information.

Information collated centrally by the MoJ does not identify those who were specifically excused a driving disqualification under the mitigating circumstance of ‘exceptional hardship’

We believe that the cost of locating, retrieving and extracting the number of offenders who were excused a driving ban under the mitigating circumstances of exceptional hardship and then matching them to those who had been found guilty of such driving offences in Crown Court would exceed the appropriate limit. Consequently, we are not obliged to comply with your request.

Unfortunately, I am not able to suggest any refinement to your request which will allow it to be responded to within the cost limit. The information you have requested is also exempt from disclosure under section 32 of the FOIA because it is held only by virtue of being contained in a court record. Therefore, even if the scope of your request were reduced to the extent that it would come within the cost limit, section 32 would become engaged and the information would be withheld under that exemption.

Instead of relying upon court hearings of such serious charges and which would necessitate in most cases police witnesses which of course begs the question of all the reduced mobile patrols by police especially on main roads and motorways why does MOJ not devise a method in which the statistics of errant driving have been recorded as escaping disqualification but held as possible future evidence in a possible future case? Currently nobody, police nor MOJ knows if such drivers have a greater than average chance of future careless or dangerous driving.  Prevention is better than cure so they say but not, apparently, when much less than perfect driving is unknown at least to the statisticians. An offender`s driving record i.e. from penalty points to death by dangerous driving is always considered when such matters are serious enough to be sentenced in court but it seems for the future as for the present when the aforementioned appeals have succeeded the court will be none the wiser. 

OFFENCE AS A CRIME // MY DIARY 4/4/2010

 

I doubt many of my readers will have noticed my original diaries from 2009 have been digitalised and are now available at https://amagistratesdiaries.blogspot.com/.  I have today decided for the very first time to publish here the entry for 4th April 2010.  Free from the constraints of HMCTS I can add that the case was heard at my old court and I was the dissenting vote for acquittal. IMHO this case and perhaps others similar was an early example of what is now termed "woke" culture.  It was a miserable prediction of what is becoming increasingly prevalent in all our lives; the criminalisation of "offence".  Indeed there is current controversy reaching even the final stages of the spectacle of the "election" of a new prime minister as to the candidates` views on a bill currently passing through the House of Commons. 

04. Apr. 2010. – 12:57:57

Like millions of others I can enjoy watching John Cleese in Basil Fawlty persona almost as much as his silly walking etc at Messers M. Python.  Indeed one phrase from the sixth episode has stood the test of time and is well remembered today thirty years later, "Don`t mention the war". His goose stepping scene with a finger across his upper lip will be shown in TV clips a hundred years from now as an example of the last throw of the intellectual freedom of the late 20th century because it is extremely doubtful that the inhibited grey suits with their political correctness, who control many visual media diluting writers` and performers` talents, would today sanction such a sketch. If it is thought I am, to coin a phrase, going over the top on this..........going back to that episode of Fawlty Towers I was watching recently, it reminded me of a case two or three years ago.

The defendant of previous good character  was a veteran of World War 2.  He had been charged with using threatening abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to Section V[1] and [6] of the Public Order Act 1986........a "catch all offence". Those whom he had been charged with receiving his "words or behaviour" were two Police Community Support Officers.   He had been arguing with a car driver who, he asserted, had almost hit him on a zebra crossing.  The PCSOs had told the pair of them to desist; the driver drove away and our 80+  year old defendant had then performed a Basil Fawlty Hitler goosestep around the PCSOs to demonstrate in his words their bloody interference.  One member of the bench dissented with the verdict of guilty but guilty he was found.  He was sentenced to a Conditional Discharge for six months and to pay £50 of the £350 costs asked for by the prosecution.

The only conclusion I can draw from this tale and from others of a similar nature is that whilst police officers have discretion, and long might it continue, these ill educated poorly paid apologies for Chinese neighbourhood  wardens [spies], now defunct traffic wardens  or park rangers of my childhood are little better at replacing police officers than repairing a damaged Rolls Royce with filler and expecting it to be as good as new.  It might be cheaper at the time but in the long run the value of the Rolls can never be recovered. And thus the ship of state sails on its being only a matter of time before all the holes below the waterline coalesce and the deluge begins.

ANOTHER LEGAL TORY MISFIT

As if a former Lord Chancellor with a record of incompetence standing for Tory leader and prime minister is not enough another honorary QC with a record of ignorant rants and actions has thrown her virtual hat into the same gladiatorial contest where the last person standing wins all..........I am Sparticus, No! I am Sparticus or parhaps the more recent in  movie terms Maximus Decimus Meridius aka Russell Crowe. 

Elected in 2015 and Suella Braverman was appointed Attorney General by Boris Johnson in 2020 with many on her own side of the House questioning her ability to do the job. What more qualification did she need than being the chairman of the European Research Group from 19 June 2017 to 9 January 2018.  She and what deluded supporters she has mustered must realise is that she has a less than a snowball`s chance in hell of surviving a first round. What she and some other pretenders to the throne are doing is  throwing red meat to the Tory electorate all 200K of them and announcing that Brexit must remain the entry card for aspiring Tory candidates at all levels up from parish councils to number 10. She and her ilk are almost as  poisonous to the Conservative Party as the antisemitic Corbyn was to Labour. 

Here are just three references to the sound and visual nonsense of this candidate. 

THE ILLUSION OF LIZ TRUSS AND CHAMPAGNE ECONOMICS

Conservative MPs are being offered inter alia former and unlamented Lord Chancellor Liz Truss as our next prime minister.  This is extraordinary considering what could only be  described as an eleven month episode 2016/17 Lord Chancellor and Secretary of State for Justice which highlighted her shortcomings and unsuitability to hold any job in the cabinet including her current one. 

Apparently when the post for her successor was advertised (where and when...who knows?) there was a stipulation that the successful candidate would be required to guarantee tenure of four years.  We now know how seriously that was taken........Truss herself had lasted less than a year. One of the post`s requirements is to defend the judiciary; this she famously failed to do.  Indeed she seemed to veer in the opposite direction when in response to their being branded “Enemies of the people” by the Daily Mail because they ruled parliament had to be given a vote on triggering Brexit she remained silent. Lord Thomas the then Lord Chief Justice also attacked Ms Truss for a “complete misunderstanding” of reforms to cross-examination of vulnerable witnesses in rape trials.  She demonstrated her ignorance of law which she had sworn to uphold by planning to raise legal fees payable after death by up to £20,000 even after a parliamentary committee said the increases were unlawful. 

This is but a brief summary of why most legal professionals were glad to see the back of her almost exactly five years ago. Her final Wikipedia entry reads as follows:- " On 10 July 2022, Truss announced her intention to run in the Conservative Party leadership election. She pledged to cut taxes on day one, and said she would "fight the election as a Conservative and govern as a Conservative", adding she would also take "immediate action to help people deal with the cost of living."  Like others trying to be top of the greasy pole she is promising to give with one hand and take away with the other.  What other meaning other than make payments to "help people deal with the cost of living".  Either social benefits are increased by tax rises or the state`s income (taxes) used to fund benefits etc is reduced and increased economic activity is assumed to fund those benefits. The latter is the basis of increasing living standards but it takes time.  She (and others) are advocating the latter being undertaken now.  The champagne effect of trickle down economics from the spending of the very rich to fund the financially deprived as advocated by Ronald Reagan has been shown to be an illusion but like all illusions many are fooled and people fooled like to convince themselves they weren`t.  I hope Tory MPs are wiser than that but I have my doubts. 

PATRIOT OR NATIONALIST?

Outside the legal profession there has been very little discussion on what is arguably [choose adjective(s) to suit your opinion] the most divisive, intrusive, necessary, restrictive, overdue, fascistic, legislation in half a century:- The Police, Crime Sentencing and Courts Act 2022.  The very terms in the act`s title are themselves indicative of its widespread nature.  In years gone by each segment would have been a once in a decade piece of legislation.  However it is changes in our society which have given life to the changes in law which will impinge on the lives of all who live in this country. 

Freedom of assembly and expression have supposedly been hard wired into our unwritten constitution. There are arguments for another time perhaps that that is a myth exploited by successive governments so that the majority can control the vociferous revolutionary minority which exists in this country as it does elsewhere.  Apart from 1939 - 1945 it has largely succeeded. Many, perhaps most of the general public will find it incredible that until 1968 theatre censorship had existed since the sixteenth century and a 1737 Act appointed the Lord Chamberlain as official licenser of plays and regulated restrictions on drama. Little changed regarding the censorship of plays with the passing of the 1843 Theatres Act, which was still in place over 100 years later. Oh! Calcutta! is an avant-garde, risque theatrical revue created by British drama critic Kenneth Tynan. The show consisting of sketches on sex-related topics and full frontal nudity was a smash hit in the West End where I saw it in 1970.  It was a reaction to the artistic freedom offered by the abolition of restrictions and censorship.  Similar changes allowing freedom of expression artistically, politically, individually and en masse were a characteristic of the latter half of the 20th century.  And then at exactly this time came the IRA and murder wholesale, the Vietnam War, the Yom Kippur War.  The fall of the Berlin Wall and the collapse of the Soviet Union followed by a prime minister lying to parliament to allow British troops to be aligned with Americans in the invasion of Iraq further eroded general confidence that what could be termed a British way of life really did exist on a different level from other western nations. Not just different but better: not just better but way better. The tumultuous political events this century have seen so far; a financial crisis followed by austerity,  Scottish nationalism rearing its ugly head,  lies upon lies persuading so many that it`s better pissing in from outside the EU tent than pissing out from inside, a trio of the most incompetent prime ministers in a century and a pandemic which has changed the lives of millions for ever. 

All the above and more have led to the above Act. Prior to its  Royal Assent I sat in an hour long stationary queue on the M25 with thousands of others owing to proto fascists calling themselves activists  attaching themselves to the tarmac obstructing traffic. Some of those have been jailed after blocking roads, disrupting court proceedings and in one case climbing on top of an aeroplane in an attempt to draw attention to the escalating emergency.  Earlier protesters blocked oil refineries.  Members of protest group Insulate Britain spent Christmas serving prison sentences for contempt of court for breaching injunctions banning their road block protests.  Ben Taylor was jailed for six months after telling judges if they freed him he would “go out and block the highway at the earliest opportunity” and would keep doing it until the government acts.  The government has  acted but perhaps not in the way Taylor and his ilk had hoped for.  Their fanaticism bordering on early tactics of  20th century fascists has led to precisely what they perhaps wanted but this country desperately cried out for; authority to ensure the minority cannot rule the majority by a complete disruption of the lives of that majority for political ends.  No doubt so called environmental groups wish to see provocation ensue by the imposition of the Act and sympathisers flocking literally to their banners and barricades. Their desire is anarchy followed by revolution.  The history books are complete with examples. This part of the Act; Part 3 Public Order at least  is required reading for all who can consider themselves a patriot....a person who loves, supports, and defends his or her country and its interests with devotion  but refute the nomenclature nationalist..... a person who strongly identifies with their own nation and vigorously supports its interests, especially to the exclusion or detriment of the interests of other nations.  The difference might seem subtle but it might be the difference between this country being fit for our children and grandchildren or fading into the twilight of history as others have throughout time. 

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.