THE SPIRIT OF THE LAW WHEN COMPUTER SAYS NO

How often have we heard or even used the phrase the world has become (is becoming) a much smaller place?  Financially, socially and politically remove any language differences and those variations between many west European countries are vastly diminished from  what held true in the 1970s & 80s.  Of course the trend to supra national structures particularly the EU has played a major role in that coming together.  For this country the apparent political alignment with the United States in so many ways is contradicted by an equally disparate  approach to social structures and their applications. 

Roe v Wade for many Americans was considered as sacrosanct as the constitution.  It was overturned last June giving the power to decide on abortion rights to 50 states to determine individually. It triggered a wave of change. Abortion bans were brought in, court cases mounted, clinics closed.  As many rejoiced with their fundamental Christian beliefs  apparently ensconced  many are in despair especially those in the lowest economic quartile who will bear the brunt of unwanted babies or death or serious harm from illegal abortions.  Until recently such divisive opinion with equally divisive consequences was alien to this country but not any more.  The case of Carla Foster has reminded many that abortion availability in Britain is also constrained by law.  The sentencing remarks of the trial judge are available here.  What has been of concern to some is that this offender, rightly convicted, was sentenced to immediate custody.  His Honour`s  reasoning is quoted below.

24.For the offence of administering poison with intent to procure a miscarriage, I sentence you to 28 months’ imprisonment. Among the many tragedies in this case is that you did not indicate your guilty plea at the earliest opportunity in the magistrates’ court. Had that been done, the sentence of imprisonment that I am now obliged to pass would in law have been capable of being suspended.

An interesting commentary is available here. The law on abortion and its application is very well explained in this article by Tony Dowson. However as with many facets of the legal system there is the letter of the law and the spirit of the law. The letter of the law is what the law states; the spirit of the law is a social and moral consensus of the interpretation of the letter.  I fear that in some (many?) cases the judiciary,  bound by their contracts of employment and afraid of irritating the hand that feeds them, are loath to consider the spirit.  Punishment, deterrence, public safety and rehabilitation are the constituent parts developed over centuries which underline "the rule of law".  Imprisonment is the last throw of the dice that sentencers are instructed to consider.  Magistrates courts sentence around 4% of offenders to immediate custody.  They are exhorted to reduce such sentences to the bare minimum and to use every expedient to that end.  Some judges in the crown court have openly made that point in their pronouncement that they have been directed not to push the prison population beyond its current limit.  In the Foster case any judicial compassion was thrown overboard in the name of the "Guidelines".  An appeal against sentence is lodged.

Earlier this year on March 7th I commented on another widely reported case where a handicapped woman was sentenced to immediate custody. Aside from the factual inconsistency of the path`s designation this sentence too can be aligned with Foster`s as being of the type where "the computer says no" to custody suspended.  This is a worrying trend.  Is it a misogynistic throwback to earlier times, a fear of  upsetting lords and masters or more worryingly a justice system becoming ever more controlled by the executive with a supine judiciary losing sight of what happens in and to a society when  the spirit of the law is undermined or extinguished? 

DRUGS IN THE WAKE OF CRIME

 A Band C fine at court is150% of relevant weekly income.  The Sentencing Guideline for possession of Class A drugs is copied below.

In February 2020 Dame Carol Black published phase one of her independent review of drugs commissioned by the Government in 2019. Examining the UK's drug market she labelled it as “big business” and estimated its worth at £9.4bn a year.  Governments have refused to consider the decriminalisation of cannabis  never mind Class A drugs. They have refused to acknowledge that a system of licensing specified outlets supplying scientifically formulated narcotic substances is a viable and necessary alternative to the current chaotic situation which enriches criminals, encourages violent offending and kills addicts whose ingestion of such substances cut with various toxins was responsible for the deaths of  1,330 people in Scotland in 2021. 4,859 deaths related to drug poisoning were registered in the same year  in England and Wales. 

The current court situation in England is madness when it comes to punishing drug possession. In this case the arithmetic tells us that the offender had an income of £80: in other words he is a 51 year old living on social security who is likely to have been before the courts previously as few of his age use cocaine as a starter drug. I, along with eminent scientific and medical experts who are far more knowledgeable than I, have long advocated a medical path to rehabilitation.  My preference would be a 21st century workhouse.  [Insert that word in the search box for previous posts on the topic.]

Governments have buried their collective heads in the sand for myriad reasons:- religious, political, medical, social.  Certainly there is a downside insofar as some fatalities will occur as a result but there is a predicted risk of death undertaking almost any human activity from climbing a ladder to crossing the road. Yet individuals accept such risk.  Sooner or later a government will need to govern in the name of the vast majority of those who do not use drugs as well of addicts and experimenters.  The current uncontrolled situation must end even if only to reduce the inevitable violent criminal activity that drug supply leaves in its wake. 

  

BIND OVERS// A REMINDER OF TIMES PAST

A bind over is a power that is available to magistrates but I doubt if more than a handful of JPs have made use of it.  The courts and of course the legislators have been smitten with the myriad of banning orders or similar which have multiplied this century like fruit flies in a jam jar. Binding over orders are a civil disposal available in the Criminal Courts and can, in the right circumstances, provide an effective means of dealing with low-level disorder. In summary, they act as a means of postponing a sentence on conditions.  Although a bind over isn't a criminal conviction  it will show on enhanced DBS checking so for many professionals it would have to be explained to an appropriate authority.  The Justices of the Peace Act 1361 permitted a justice of the peace to bind over people who disturbed the peace to provide recognisance to ensure their future good conduct.  The CPS guidance on bind over is available here. 

My first experience of a bind over was when I did an observation prior to being appointed.  A young man had brought a private prosecution against his flatmate for assault.  The flatmate countered in court with his own accusation of assault. The justice presiding, in what I considered then a very condescending manner,  proceeded to drawl to the plaintiff that unless both parties withdrew their actions they would both be bound over for a year on the  recognisance of a charge of £100 to be paid.  The plaintiff  withdrew the accusation and the matter ended. To this day I am of the opinion that that bench failed to apply the process in accordance with the law.  Others might differ. In my personal experience there was but a single occasion when a bind over was the outcome. Despite researches I can find no statistics  on how often a bind over was the outcome at magistrates courts for 2022 or any other year. 

Today, however, I can report that a bind over was the disposal by magistrates in the Channel Islands.  They might be outside the UK but even then in this case I would opine that this was a very loose application of the suitability of such a sentence. 

Will such legislation last until its 700th year of application to the laws of England?  If pushed I will state that with a government pushing out banning orders like a chicken pushing out eggs it is likely to wither on the vine like so many ancient traditions some admittedly more decoration than functional. Perhaps like the House of Lords its usefulness will be soon a distant reminder of times past.  

AN ERA OF FEAR

Assuming the Presidency at the depth of the Great Depression, Franklin D. Roosevelt helped the American people regain faith in themselves. He brought hope as he promised prompt, vigorous action and asserted in his Inaugural Address, “the only thing we have to fear is fear itself.”  

Fear is a powerful motivator but it can also be crippling. Nowhere is this more apparent than in the fear of being a victim of crime. The reasons for this are so complex that analyses over the years have enabled many academics to write PhD after their names. Undoubtedly the confusion or government obfuscation over crime statistics has a part to play.  The general consensus is that crime has fallen this century but the interpretation of available information is more variable than the weather. However the myriad forms of criminals or criminality recorded or unrecorded by various agencies and institutions vary enormously in their frequency, tendency, locality, ethnicity etc. There are, however, some indisputable facts: this government has elevated the "victim" to the centre of the justice system, an action to which I have voiced my disagreement for many years here and elsewhere.  In addition by deliberate policy (denied by successive office holders at the MOJ) courts have been "advised" to find all alternatives to immediate custody in magistrates courts where once upon a time independent magistrates used their judgement honed over many years to sentence offenders without fear or favour. In 2005 a suspended sentence order was a new outcome available for sentencers.  Its importance [perhaps now overlooked by some] was that before it could be considered the custody threshold had had to be breached. An academic study is available here for more information. The introduction of Sentencing Guidelines around this time and the reducing independence of magistrates served to further the release into the community of those who would in previous years have served a jail sentence. One result is that fear of crime is now more common than ever before. Every day examples of poor judgement by magistrates admittedly under constrictions are reported in what is left of our printed local media. When those convicted of assault by beating in particular, an offence which often is downgraded from actual bodily harm, are escaping an immediate custodial sentence public faith in the justice system and increased fear amongst certain population groups is a not unexpected consequence.  Surprisingly I could not source an authoritative paper on fear of crime after 2017 when this highly academic study was published. However a cursory glance at local media anywhere in this country is highly revealing.  The examples to follow do not exist on their own.  Those responsible for sentencing (or others in court) are the only people who have heard all the evidence but that does not exclude commenters from offering opinions although as I have long predicted one day those proceedings in magistrates courts will be televised live. 

A conditional discharge was the result of this man`s offending. 

At Haverford West Magistrates Court the bench appeared to be in high spirits with their generous dispensations.   So much for the "Sword of Damocles" attitude by some magistrates who believe the threat of custody is enough of a deterrent for many. It isn`t. 

A final example is here of why so many people have little faith in a justice system where it is fact that so many deserving of immediate custody remain at large in the community. Note the final paragraphs re sentencing. 

 "Coe was sentenced to a 12-month community order, during which he must carry out 20 rehabilitation requirement days. He was ordered to pay £150 compensation to the victim and was fined £120 with £85 court costs."

"The offences were committed whilst Coe was serving a conditional discharge for a previous conviction of possessing a Class B drug."

"For breaching the sentence, he was fined an additional £80 and ordered to pay a £114 court surcharge."

"He was also handed a two-year restraining order which prevents him from contacting the victim."

It is at the base of a pyramid that over time  cracks lead to a failure in the whole structure.  Keeping murderers and terrorists in jail for scores of years might hit the headlines.  However being severely assaulted or damaged in other ways leads many innocent people to lose faith in justice and those who purport to protect them. This is highlighted especially when the offenders, supported by spurious sociologists and similar, mock and deride opponents to such thinking as "hangers and floggers". Having a so called victims at the centre of justice  policy helps nobody.  It devalues the principles of a system which should be neutral in balancing the traditional scales of justice.  

When a society is gripped by fear, real or imagined, it paves the way for authoritarian  disguised as protectionist government policies to become acceptable to a population desperate for comfort whether from criminals, immigrants or purported climate change.  This is the era through which we are living right now.  

UK AUTHORITARIANISM: AN EARLY WARNING

Speak to politically minded people in the United States of the separation of powers and they will immediately understand the meaning and significance of that phrase. They will quote from the Constitution; the document which to many of them is more important and significant  than the Holy Bible on which many were brought up and which is quoted  as their moral guiding light.  But it is not unlikely that the same phrase offered to the average citizen of these isles will produce no more than a frown and perhaps a questioning reply of "what"?  I exclude of course readers on this site from that criticism.  The UK lacks a written constitution; a phrase which found much favour during the recent regal festivities. The UK relies on a system of checks and balances to prevent against abuses of power. When the Tudors`, their predecessors` and finally the Stuarts` control of government through the doctrine of the divine right of kings finally ended in 1688 there was gradual constitutional change to representative government where there was at least in theory a separation of powers insofar as a  Parliament, an executive and the courts would each have its own perimeters exercising its powers accordingly. When there is or appears to be an imbalance in the powers of  these three constituents of that basic democratic system  whether in this country or abroad there is a fundamental threat to that democracy.  Such imbalances are currently happening in the United States where the Supreme Court populated by a Republican majority appointed by Donald Trump is in opposition to many states legislatures on the subject of abortion.  Israel, another country with what was supposed to be a fiercely incorruptible democratic system of government, was recently in constitutional turmoil over its supreme court`s overturning of government policies much to the ire of  right wing cabinet members. In all totalitarian states the executive branch has by various means usurped the powers of either or both the other two branches of government. There are those who thought that that sequence of events could never happen here; some are beginning to wonder.  

Justice and our courts have been described as a level playing field where an equality of arms allows the guilty to be punished and the innocent to be absolved.  The institutions to preserve this noble concept have been separated from the executive and appointed personnel have been tasked with ensuring it functions at arms length from the appointers. There are now questions as to how long this concept will continue to be the basis of our justice bedrock owing to the underlying precepts of the Victims and Prisoners Bill. This is  "a  Bill to make provision about victims of criminal conduct and others affected by criminal conduct; about the appointment and functions of individuals to act as independent public advocates for victims of major incidents; about the release of prisoners; about the membership and functions of the Parole Board; to prohibit certain prisoners from forming a marriage or civil partnership; and for connected purposes." (my bold).

Under the proposed legislation ministers would have the power to veto the release of dangerous prisoners repeatedly even if approved by the parole board.  In actual practice this could affect about 600 prison releases annually.  Murderers, rapists and terrorists would have a parole decision to release on license overturned by the executive.  It is not unlikely that such new government powers would be welcomed by the hang `em and flog `em brigade of the Right in and out of parliament.  Indeed some recent releases where dangerous men have committed further heinous crimes  will have reinforced that sentiment. Amongst those voicing their concerns at this worrying increase of ministers` powers are former Tory Secretary of State for Justice David Gaulke and former Tory Prime Minister John Major. 

What would be a positive step and yet allay the concerns of those who consider that sentencing for serious criminality is out of step with public opinion would be that the concept of automatic early release is abandoned.  Page upon page of the Sentencing Guidelines inform sentencers  how to relate all relevant circumstances of the criminal,  the crime, the victim and the law into time to be served.  Indeed that very process is tailor made to become "the computer says no" or similar scenario in the not too distant future.  Let convicts serve their full allotted sentence with early release determined solely by their behaviour in jail and their indications of rehabilitation. But that would require more jails, prison officers and probation staff and so much more money for a system which governments of all shades are parsimonious. 

With the current elective dictatorship of the House of Commons this blogger can only hope that there are still some Tory MPs who have a clear sense of what is best for this nation even if their hopes of re-election are slowly fading.  No doubt the other place will voice its objections.  In August 2019  Boris Johnson provoked a constitutional uproar when he announced plans to shut down parliament for five weeks daring opponents of his Brexit strategy to vote down his government.The government argued that the 2017-19 session was already the longest session of the UK Parliament’s history and that it was entitled to use the Royal Prerogative in this way. It explained that it intended to bring forward a Queen’s Speech to refresh its legislative agenda following the change of Prime Minister in July 2019. The Supreme Court maintained that this long prorogation significantly interfered with the constitutional principles of parliamentary sovereignty and parliamentary accountability. Such an interference required a “reasonable justification”. On the facts the Court concluded the government had not offered any justification for the prorogation’s length, let alone a “reasonable” one and accordingly the decision to prorogue was unlawful. This should provide a salutary lesson that this country is not immune to the surreptitious infiltration of authoritarianism at the highest level of government.  The current matter as outlined above is an early warning.  

ENGLISH JUSTICE HAS LOST ITS SENSE & SENSIBILITY//JUDGES SHOULD HANG THEIR HEADS IN SHAME

I make no apologies for returning to an item the first section of which was posted 7th March with subsequent addendums as the matter progressed.  For those unfamiliar with the case of Rex-v-Auriol Grey look here.  Last week at the Court of Appeal three judges rejected her argument that the sentence was excessive. The sentencing guideline on manslaughter can be read here.  One of the most contentious facts to emerge from the trial was the evidence given by Det Sgt Dollard for the prosecution. Under cross-examination by defence barrister Miranda Moore KC,  he said he did not have any evidence to "categorically" show the path was a shared cycleway.  The Highways Act 1835 prohibits cycling on a footpath which is by the side of a road and set apart for use by pedestrians only. Shared use pavements are not included in the act so if there's a specific cycle lane on a pavement it's legal to ride on it.  I have found no report to confirm the status of the pathway.  Ms Moore KC  argued that the sentencing judge had made findings of fact against evidence, stating it "came as something of a shock" he found the pavement to be a shared cycleway, despite the local council being unable to confirm that. There is no transcript of the appeal yet published but  But Mr Justice Griffiths sitting with Lord Justice William Davis and Judge Neil Flewitt refused to grant permission for Grey to appeal against her sentence concluding it was "not arguably manifestly excessive".  According to reports Mr Justice Griffiths said: "A blameless woman had been killed by the unlawful act of [Grey] with devastating impact upon the family she left behind and upon others including the entirely blameless driver of the car." He told the court the sentence passed "had to mark the gravity of the unlawful killing" while taking into account mitigating factors.  The sentencing judge Sean Enright had "placed very strong emphasis" on Grey's disabilities, he said. He added: "We do not consider that the recent psychology report calls for a greater reduction than was already given in this respect by the judge."

Nothing I have read since my original post has swayed me from my original opinion that the trial verdict was gross misinterpretation of the evidence, that the trial judge failed in his summing up to give full weight to the defence and that the Appeal Court judges have repeated the the folly of their junior colleague. 

But there is a further consideration about what this trial and its outcomes says about English justice.  It seems that government policy is to put victims even closer to the supposed centre of justice with the latest announcement The Victims and Prisoners Bill introduced 29 March 2023.  Justice is or perhaps in current terms was for decades represented as blind. Pressure from interested parties and failings within the police and prosecution services have led to actions by governments over the last two decades to once again achieve that balance which had certainly been out of kilter insofar as rape and other serious offending had been considered.   But like so much legislation in this country it has been slow in formulation and excessive in degree. In the case considered here there was not a single victim; there were two victims.  Whilst the guilty verdict is now closed it is surely the case that we have not heard the last of the outrageous sentence imposed at trial and rubber stamped by an Appeal Court which seems to have lost all sense and sensibility. If Auriol Grey has to wait for her sentence to be half completed next year before her release on parole can be contemplated then there should be hangings: English justice and those administering it should hang their heads in shame

 

ADDENDUM 8th April 2024

 

Rather belatedly I have become aware that on March 19th 2024 the "offender"  Auriol Grey has been given leave to appeal her conviction. Press announcement is available here.

ADDENDUM 8th  May 2024

A successful appeal; her conviction has been overturned and not before time 

THE BRITISH WAY IS BEST; ISN`T IT?

We are living in an age where from the innocuous to the prestigious on line connection is not just a requirement it is an expectation: from communication with His Majesty`s Revenue and Customs Service to many if not most medical services; from banking  to the Scottish Charity Regulator without a customer being on line by a fixed terminal or mobile facility communication is almost intolerable if not impossible.  But then we have the Ministry of Justice.  I was spared the issue of digital only benches by my retirement shortly before their introduction.  In difficult cases of alleged non receipt of court documents by a defendant we interrogated said defendant at length in our attempt to assess the credibility of his/her excuse.  Even in these distant days questions were asked as to why e mail or text communication from court to defendant was categorically not an option.  

Since the lamentous installation of the Single Justice Procedure this head in the sand approach surely must be coming to an end even for the ostriches at Petty France.   Latest figures available show that around  two thirds of those who were summonsed under the SJP did not submit a plea and only 3% pleaded not guilty thus enabling them to proceed to trial at an open court before three real magistrates or a District Judge (MC). Around 30% pleaded guilty. For those charged with speeding as recorded by a camera device about half did not submit a plea. Amongst those was the Archbishop of Canterbury last October.  A brief account of the process is as follows:when a car has been caught speeding either by fixed position safety camera or mobile hand-held device a NIP and Section 172 notice will be mailed to the address the car is registered at within 14 days of the offence being recorded. Reply must be made using the Section 172 notice to notify the authorities who was driving the car at the time of the offence and the fine paid within 28 days. A summons is sent by post to appear in court if these actions are not taken.  This is now usually a SJP court. It seems that the lordly archbishop and/or his staff were not in receipt of the appropriate paper trail.  His subsequent conviction was enacted in a secret court by a single JP aided by a legal advisor. The financial penalty was harsher than it would otherwise have been if he had made the choice, had it been given, of pleading guilty at the earliest opportunity.  For him and others the additional costs were of no hardship but for many with lower incomes such impositions would have and do entail financial sacrifice.  With primary school children increasingly in possession of a smartphone and its use ubiquitous amongst the general population more use of such facility surely must be a priority for such a high volume activity as low level offences?  In 2021, 98 percent of Britons aged between 16 and 24 owned a smartphone as did 69 percent of those over 65 years old.  And yet the MOJ still relies on analogue technology; i.e. a postal service which is deteriorating before our very eyes. 

A cynic might think that the avoidance of e mail and text in such circumstances is a deliberate ploy to ensure the conviction rate at SJP courts is as high as possible but that would not be the British way and we all know the British way is best, isn`t it?

THE BUTTERFLY EFFECT AND THE SHAMEFUL POLICING AT THE CORONATION

It won`t have escaped the notice of most people who don`t live a hermit`s life on a remote uninhabited island off the west coast of Scotland that there were, according to some estimates, 17,000 police on duty in London last Saturday.  For the legally minded the statement on the eve of the main event that "Our tolerance for any disruption, whether through protest or otherwise, will be low. We will deal robustly with anyone intent on undermining this celebration." was a clear warning from the Metropolitan Police that they were intending to exploit to the full their new powers enshrined in the The Public Order Act 2023 (Commencement No.1) Regulations 2023   which had received the Royal Assent a couple of days previously.  It stretches the bounds of credulity to assume the connection between the low key announcement of the new legislation and its intended implementation on the streets of London at the coronation was a coincidence.  

Personally I have taken a passive part in two demonstrations in Trafalgar Square where flags and placards were exhibited.  Police were there to ensure public safety but despite opposing voices the rallies were the epitome of peaceful protest.  I have also been delayed for over an hour on the M25 to my bladder`s consternation by protesters having glued themselves to the tarmac.  If a summary case involving the latter had come before me with appropriate evidence those involved in obstruction on the highway would likely have found the matter proved.  The law is there to be applied.  The coronation arrests were of an entirely different dimension.  To be charitable to the police it seems not unlikely that they just were not adequately trained in the nuances of the new legislation.  It also seems not unlikely IMHO that directions were given from on high that the world wide viewing spectacle must  not be hampered in any way by interference however peaceful which would upset the image of "Glorious Britannia". 

With regard to the event itself and the iniquity the high handed police actions have brought to those charged with projecting Brexit Britain as more than a symbol of power but a leader in combining the best traditions of yore with open arms for the future, there is now a world wide impediment to that former benign image.  Reuters and other highly considered foreign news organisations eg The Washington Post and France 24 have internationalised the crass actions of the police. And so to the reality of further police incompetence or impending governmental authoritarianism depending on an observer`s political take on the subject.  So far we know that 64 people were "detained" for offences including affray and breach of the peace. Four are appearing today at Westminster magistrates court.  Three female safety officers employed by Westminster council to assist any women in distress on the streets of  Soho were arrested "in possession of rape alarms" which, said the police, could frighten the horses: horses which have been trained to ignore ceremonial cannon fire, brass bands and bagpipes and heavy traffic.  Republic, to which I have been a donor, had six members arrested prior to the big event on spurious grounds that they possessed items which could be used as lock on devices.  After fourteen hours in detention they were de arrested and released without charge.  Doubtless we will have more information in the weeks to come about the consequences for the police of their high handedness.  

Public protest and harm to the public caused by said protest is the interface between permitted actions and behaviour on which a free society is constructed and authoritarian rule by the politically powerful.  It would appear that the salami slicing of our individual choices and freedoms under the umbrella of "victims` rights", facial recognition, political nepotism, uncontrolled immigration, failing health care for many, climate change hysteria, a justice system unable to cope with demand and "equality of arms" unavailable to the majority is enveloping us just as surely as woke attitudes in education poison young minds as ignorance seems to be an achievement and history is forgotten.  

The sad outcome of the last few days is that the legislation will not be repealed.  We are all now living under a law which has crossed that threshold from democratic freedoms to be protected to the state which must be the beneficiary of that protection.  All this from a supine parliament, supine because in 2016 the people of this nation were lied to by those they trusted and whose clown of a prime minister, alias the court jester, easily outscored the antisemitic  leader of Her Majesty`s Loyal Opposition to secure a once in a lifetime change in the political order. Truly that 2016 Butterfly Effect has reached unimaginable places with more to come.  

NOT PROVEN SCOTTISH VERDICT SHOULD BE RETAINED

Readers who are familiar with some of my rantings might be aware that I am of the opinion that sooner or later court proceedings will be televised in full and that the Scottish verdict of "not proven" is a unique but worthy inclusion in that which makes the Scottish legal system unique.  Last week the government north of the border proposed changes to the jury system and more controversially that the not proven verdict be scrapped.  Strangely enough I could not find any statistics on the rate of such verdicts. It would appear that rates of acquittal include both not guilty AND not proven outcomes.  Most recent numbers of interest:-

 Of interest are the following statistics:-

Over the last ten years, the most notable declines in conviction rates have been for: Sexual assault, down from 69% in 2011-12 to 66% in 2020-21, although the rate was 2 percentage points higher in 2020-21 compared to the previous year;

Rape and attempted rape, down from 53% in 2011-12 to 51% in 2020-21, although the rate was 8 percentage points higher in 2020-21 compared to the previous year;

As the perceived poor rate of rape convictions seems to have been the driver for this proposed fundamental change in Scots law it is perhaps worthwhile to consider a brief history of why in all the western world not proven  is available to juries who cannot find an offender guilty or not guilty the latter conclusion incorporating  a jury`s belief that beyond a reasonable doubt is too high a hurdle for conviction. 

Scotland’s three-verdict system is a matter of historical accident rather than conscious design. A 17 th -century procedural change meant that juries returned ‘special verdicts’ stating whether individual facts were proven or not proven rather than declaring on the guilt or innocence of the accused which was a matter for the trial judge based on the terms of the special verdict. A 1728 case, the trial of Carnegie of Finhaven, re-established the right of the jury to return a verdict of not guilty, but the language of ‘not proven’ remained and became an alternative form of general verdict in Scots law. The appeal court has consistently dissuaded trial judges from attempting to offer any explanation of the difference between not guilty and not proven when charging juries.  A mock jury study, published by the Scottish Government in 2019, found that even when verdicts of not proven were returned, the meaning or consequence of the verdict was not often understood. "In particular, jurors were not always clear how it differed (if at all) from a not guilty verdict."  More jurors thought that a verdict of not proven should be returned when jurors need to compromise to reach a verdict than believed a not guilty verdict should be used in that situation.  The study found: “Where the not proven verdict was discussed, there was inconsistency in understanding of its meaning and confusion over its effect. Figures released by the Scottish Government demonstrate that over 2015–2020, the not proven verdict accounted for 17.5 per cent of acquittals overall, but 30.5 per cent of all acquittals by juries and 14.7 per cent of all acquittals in summary cases. Recent figures for rape and attempted rape prosecutions indicate a 43% conviction rate and it is for these types of criminality that the pressure has been coming for the system change now being considered." 

In contrast statistics for the fourth quarter by the CPS for England and Wales are as below:-

the volume of suspects being charged for rape this quarter rose from 550 to 643, a 16.9 per cent increase 

overall, a 62.9 per cent increase in the volume of rape prosecutions from 1,557 in 2020-21 to 2,537 in 2021-2022

a 2.4 percentage point reduction in the conviction rate for rape cases from 70.7 per cent to 68.3 per cent.

The crime of rape is itself an enigma.  Homicide e.g. is legal in self defence  but only if that person reasonably believes that the killing was necessary in order to prevent an imminent threat, death, or serious harm to himself or herself.  Sexual intercourse is legal if consensual.  It is almost unique in being an activity where there is a fine margin between its being  legal and illegal. And unlike many other crimes there is rarely a third party witness. And thus it was that Rape Crisis Scotland took up the banner of seeking higher conviction rates for rape. 

But should a legal system in a democratic country be driven by conviction rate as opposed to proving the guilt of the guilty and acquitting the innocent?  After all the conviction rate overall in China is 99%. Although there have been relatively few studies on the conviction rate variables  vis a vis the authoritarian degree of government there are grounds for thinking that dictatorship increases severity and rate of punishment within a legal system.  If truth is the end point of a contested trial is it not more accurate where there is inability for a jury to be satisfied beyond a reasonable doubt or to be sure of guilt to pronounce that uncertainty?  As a presiding magistrate I was advised that the form of words preferred when  announcing the bench`s decision after trial was to say, "we find the case against you proved". Whether that advice was based on tradition or directed by on high I do not know but it also satisfied the truth when it was used in the negative. Perhaps such language tweeking  is required in the higher courts. 

The Scottish National Party is in political turmoil.  Like all such parties it is a nationalist and populist party. It has been rebuffed in its efforts on trans sexual politics.  It is failing its children whose educational standards were some decades ago amongst the best in Europe.  It has the highest number of drug addicts per capita in Europe. It is a failing organisation looking for causes to bolster its electoral appeal.  Interfering with the legal system as proposed is just a diversion from the reality of its political inability to deliver what is wanted by the people of Scotland. 

BIZARRE SENTENCING AND JPs OUT TO PASTURE

After a couple of weeks away from here in some ways it is a pleasure and in others a bizarre revisiting of some strange criminal activities that come before the magistrates courts resulting in some equally illogical sentencing decisions.  Regular readers might have picked up some hints that I am not the greatest supporter of the  principles enshrined in Sentencing Guidelines.  I am also sceptical  of many statements emanating from Petty France home of the Ministry of Justice. A feature which combines these observations is that despite prisons increasingly approaching the point at which their overcrowding is becoming a legal, mental and physical health risk to all those within their walls the MOJ specifically denies instructions to courts to consider their sentencing with those facts in mind.  In simple terms that "guidance" is to use community sentences and/or suspended sentences where possible even when the facts of a case suggest otherwise.

Two recent such examples are a sexual pervert and a teenage yob  who assaulted a police officer.  It is beyond belief that the former is not a danger to society; his record speaks for itself.  Such cases rarely merit much media reporting because local press cannot afford the wages of even young inexperienced journalists who in decades gone by would learn their trade at the local magistrates court.  The actions of the feral youth who committed the heinous assault, an action which should turn the stomach of most of us, were aggravated by his being drunk but that seems to have registered in the sentencing as mitigation by a bench which must have lacked training.  It is absurd insofar as lenient illogical sentencing like those will raise the pressure for magistrates to be replaced by district judges but again one must consider whether this and other benches have been "got at" by their Justices` Clerk on instructions from above to avoid immediate custodial sentences.  An explicit example of the truth behind unduly lenient sentencing is provided in this case.  The report speaks for itself. 

Last month at Leicester Magistrates Court a judge said what I was told never to say; he told an offender of what future action to expect if appearing again in court thus tying the hand of another sentencer.  Such statements in my time on the bench would have been immediately criticised or worse at a post court review.  But of course magistrates courts not being courts of record any sanctions would be behind closed doors.  With a labyrinthine system of investigating alleged poor judicial practice by magistrates and district judges inefficiency and incompetence are bound to pass unnoticed either by a blind eye or poor housekeeping.   

There are currently around 12,500 magistrates of whom 5,492 are > 60; i.e. 44%.  The MOJ is scrambling to appoint another 4,000 ASAP.  Sensible apolitical recruitment practice would be to select the best for the posts available with total disregard for any other factor.  But such practice does not apply.  The MOJ is so sensitive to "diversity" that despite denials it is almost certain that a quota system is in operation using age, sex and ethnic origin in the appointments mix. What is now happening is that in addition to many lawyers` increasing antipathy to the lay magistracy advisory committees are stressing the benefits to employers of their employees becoming magistrates.  The underlying reason for this approach is the loss of working time by employed magistrates which must be suffered by the employer.  In our financially straightened times this is unlikely to find their favour.  It might be intolerable to many but the facts on the ground lead to magistrates being recruited from those financially able to  to bear the burden of volunteering.  With the loss of thousands of experienced old hands in the last decade it is, in my opinion, that the intellectual, self assertive and  independent  qualities which made the magistracy such a fine unique feature of the English justice system  are gone forever.  The result is that the day when Justices of the Peace are led out to pasture is just that little bit closer now than when I retired in 2015. 

ADDENDUM 26th April 2023

For retired JPs who wish to consider reinstatement to the Bench this might be of interest.

LIE BACK AND THINK OF ENGLAND(`S LAWS)

Shortly I am leaving wind and rain in the hope that I will enjoy a week or so where sunshine and perhaps local moonshine will enhance the optimism I am privileged to possess through life`s daily balance sheet of profit and loss.  Earlier today I published on my other site  my previously unpublished [like all the entries]  diary entry of  July 2nd 2010.  In view of current thinking around the topic I also publish it here below.

Until next time............

• ASBOs,DISPERAL ORDERS, DRINK BANNING ORDERS; WHAT NEXT? WHAT USE?

by TheJusticeofthePeace

02. Jul. 2010. – 13:19:01 

I do not sit on the youth bench. It was a conscious decision. I have nothing but admiration for my colleagues who, week in week out, adjudicate on matters involving juveniles who for the most part have been brought up in family circumstances in which only a very positive “nature” would overcome very negative “nurture”. 

Thus my experience of ASBOs is fairly limited as they are used mainly in youth courts. However I find it depressing, especially in the current climate over sentencing, that they are used as a legal “cosh” in a similar manner in which medicaments like Prozac are reputedly used as liquid “coshes” in old age homes to keep senile residents controlled. ASBOs have begat various other “control” orders; Dispersal Orders and Drink Banning Orders being two. Breaches of such orders are criminal offences. 

I would venture to suggest that this progression in excluding, banning, preventing offenders in order to allow the rest of society to live their lives without external disturbance is bound to fail. Young people need to live in properly controlled environments where their immediate family and society around them instil boundaries to their behaviour. That means that teachers must have authority to act as they did fifty years ago and be respected for so doing. They must be allowed to tell their pupils that they are expected to conform to rules and head teachers, governors and the paraphernalia of governance must be so ordered. Rowdiness on public transport must be stopped by giving drivers instructions to deal with the miscreants verbally or by calling police immediately. Confidence in authority must begin at the bottom of the pyramid. 

Some of the reports on ASBOs and Dispersal Orders etc are so obviously vain attempts to rectify two generations of muddled child centred thinking. Rehabilitation must not begin after the offence; it must begin before. 

RETHINK THE COURT OATH?

 

The website Oxford Academic Chapter 1 Abstract 2011 reads as below  (1) (1) Perjury and proof of perjury

Perjury law, which usually applies to courtroom testimony under oath, is briefly described. Critical aspects include the need for both the questioner and the respondent to have a mutual understanding and clarity of the meanings of questions and answers. Questions cannot be ambiguous and defendants, questioners and juries should need to have to speculate or infer meanings. Answers cannot be taken out of context. To prove perjury, the defendant’s testimony must be knowingly false and must conflict with verifiable and known information held by the questioners. Since proof of perjury depends on the language used, linguistic analysis can play an important role by analyzing the separate processes of intelligence gathering and intelligence analysis, which are the keys to whether a prosecution succeeds or fails.

Few will remember an item debated at the Annual General Meeting of the Magistrates` Association in 2013. Such events have historically been a talking shop for the small numbers attending and of little interest to anyone else.  There was a motion for debate:- “That this Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that, if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison.’   There is zero information on the M.A. website for non members to learn if this matter was reported.  My vague recollection as a non member at that time is that it was passed. 

Witnesses in court currently are offered the opportunity to take the oath on an appropriate holy book or to affirm.  The wording of the former is, “I swear by .......... (according to religious belief) that the evidence I shall give shall be the truth the whole truth and nothing but the truth”.  Those who choose to affirm say, "I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth the whole truth and nothing but the truth."  In historical terms oath taking can be traced back to the Book of Genesis.  Virtually all ancient civilisations recognised the taking of an oath as the highest level that an individual could place upon the truthfulness of his words.  The Christian tradition from which current English court practice is derived originated at a time when the population believing in a literal translation of the Bible was in awe of the Church and the divine retribution for lying having taken the Lord`s name in vain.  There were notable exceptions particularly Quakers who to this day will affirm rather than swear.  Similar religious objections to swearing the oath are held by orthodox Jews.  The manner in which a witness is asked to swear or affirm is of some significance.  I often heard a legal advisor say to a witness, “Do you want to swear on your holy book or affirm?”  Other forms of approach are, “ Do you have a religion?”  and variations thereof.   Unless the witness has a belief in divine retribution it seems to me that the oath indeed is superfluous even if it is followed by a warning of the consequences of lying.  From that point of view an affirmation to tell the truth is more realistic.  Over the years I noticed that the majority of police officers declined the oath and affirmed.  I would leave readers to make their own conclusions on that observation.  It is usually the case  that very rarely if ever does a witness who might be considered Muslim or ethnically of Arab heritage decline to swear on the Koran.  It seems that even when such witnesses in their evidence attest to behaviour forbidden by the Koran they have chosen not to affirm.  An interesting situation took place at Liverpool Crown Court in 2015 and is relevant to this day. 

 Believers and non believers rarely change their opinions or reject their beliefs. It is upon the fear of a divine retribution that oaths have existed since the dawn of civilisation. It seems to me that the application of oaths to witness testimony in our courts is as archaic as a belief in the gods living in Mount Olympus.

The number of those in England describing themselves as Christian can cautiously be estimated as 50% + or – 10% depending on definitions. About 10% adhere to other religious denominations and about one third are atheist. If regular church attendance indicates the strength of Christian belief only about 10-15% of so called Christians attend church at least once monthly. In my past experience witnesses with surnames of apparent Pakistani or Arab origin rarely affirmed; they swore on the Holy Koran. When Orthodox Jews were “sworn” generally their decision was to affirm so as not to sully the holy name of Jehovah in such matters; an opposite point of principle from Muslims. They are not questioned as to their choice which could be construed as having a lesser value irrespective of the religious reasons for so doing. Affirmations are therefore generally from the white majority ethnic group. My point is to question the value of the religious oath without the court knowing the depth of religious attachment to the particular faith. Therefore from my point of view the religious Jew and the witness who affirms are being up front about their evidence……..they are telling us quite simply that they will tell the truth. We believe their evidence or we don`t. Those who swear on a holy book as if by rote and with no belief can feel free to lie. They are not constrained by fear of divine retribution. The Liverpool case could be used as an example of the placibo effect. Was not the belief itself that the correct holy book was used for taking the oath not sufficient?

Recent research has postulated that jurors who swear on a bible might be biased in that they are more likely to find a defendant guilty if that person on giving evidence affirms rather than taking the oath on a holy book.  In a case where the balance of evidence might be very narrow there is, according to the study, a real risk that atheists could be in danger of conviction from god believers on the jury.  

There are very few statistics on perjury in English courts.  The very nature of the offence is obviously going to make detection difficult or warrant investigation futile except perhaps in very high profile cases such as this.   It could be argued that when a verdict is delivered which by its conclusion contradicts witnesses` evidence there is a prima facia case of perjury taking place in most trials. We will never know. The threat of court proceedings in the event of a witness having been shown to be a liar  is  99% an empty threat.  In 2010 only three defendants of 37 charged were found guilty of perjury in a magistrates` court and one of those was given a conditional discharge.  That is the real situation of truth telling and lying in the lower court.  The only verifiable statistics I can unearth are below. 

With a charge of perjury virtually non existent in courts` proceedings is it not time to re-think the oath?

  

  

THE PARADOX OF TRUE DEMOCRACY

All those interested in the criminal law in its multifarious forms including, but not exclusively, deterrence, arrest, charging, sentencing, courts, probation, prison, rehabilitation will have reservations about one or more aspects of the system one of which  will be government intervention post sentence.  All sentencers must declare in open court except in exceptional circumstances that an immediate custodial sentence will be within prison walls usually, but not always, for the first half of the stated sentence and the offender will be released on license for the remainder.  For many observers this policy seems at odds with guidelines laid down by the Sentencing Council.   Considering all the stages that judges and magistrates must  consider in a sentencing exercise, an exercise that surely within a decade will be replaced by smart algorithms, finally stating in open court that a decision has been reached after studying "a,b and c to x,y and z" of the offender and the crime "you will be released after serving half that time" seems to make a mockery of the whole process. Whatever the license conditions surely it would be more logical to offer offenders the possibility of release depending on  their behaviour in prison and their state of rehabilitation? The public would also be more likely to believe that the punishment really does fit the crime. Government thinking on sentencing can be gauged from this document and on early release  on this paper published in 2020.  On 7th March I commented on the tragic case of Auriol Grey.  The Times reported a few days ago the MOJ commenting on the sentence and future appeal, "Sentences are determined by independent judges based on the full facts of the case": an arms length comment rather different from the powers this government  has taken to intervene in such matters when it considers worthy of media headlines. 

Sections 35 and 36 of the Criminal Justice Act 1988 empower the Law Officers to apply to the Court of Appeal for leave to refer for review any sentence which:was passed in respect of an offence to which Part IV of the Act applies;
was passed in a proceeding in the Crown Court; and
appears to be unduly lenient.

 

On 8th November 2022 the Court of Appeal issued the following statement:- "If the Court of Appeal agrees that the sentence is unduly lenient then it may increase it. The Court of Appeal will only find a sentence to be unduly lenient where it falls outside the range of sentences which the judge, applying their mind to all the relevant factors, could reasonably consider appropriate."

The Parole Board  was established as an arms length body to oversee the possible early release of  prisoners. It is supposed to be completely independent.  It appears that this government  seeks further control of Parole Board decisions.  We are therefore in a situation where quite correctly the MOJ sets out the parameters under its control and as is right and just in a democratic society assigns certain operational features to be applied and administered by independently appointed people chosen for their supposed abilities in the area under question.  It cannot be right and just for government to change the rules of the game and to have  final control on sentencing by overruling the decisions made by those specifically appointed and trained for such function.  

All parts of the criminal justice system have been systemically underfunded since 2010.  Those squawking 13 year old chickens have now well and truly come home to roost a year or so before a general election where the Tories are hastily trying to inculcate their version of  what became  in 1997 Tony Blair`s successful mantra of 1993; "Tough on crime and tough on the causes of crime."   But in so doing they are destroying that very system.  In the modern era all aspiring authoritarian governments have attempted to take control of the courts by enacting measures through what the late Lord Hailsham, former Conservative Cabinet member, described as the "elective dictatorship of parliament"  during the 1966 general election. ‘Of all the democracies’, Hogg warned, ‘Britain is nearest to an elective dictatorship’.  The following year, Hogg called for a constitutional convention, chaired by ‘some elder statesman of universally respected character’, to restrict these unlimited legislative powers of Parliament. Hogg proposed the establishment of regional parliaments, a British Bill of Rights that limited parliamentary action, the ability of the judiciary to override Acts of Parliament it deemed to be ‘unconstitutional’ or passed without ‘adequate debate’, and fixed-term parliaments. These reforms would ensure that a government which enjoyed the confidence of the House of Commons could be stopped from implementing its agenda whenever judges felt such policies were objectionable. The  solution to elective dictatorship, then, was that ultimate power would be wielded by unelected experts.

Parliaments and judiciary have been in conflict for centuries.  Indeed in Israel at this very moment the argumental essentials of this dissention are being played out on the streets of Tel Aviv and Jerusalem.  Generally those of right wing disposition tend to be supportive of the rights of parliament as the democratically elected government and on the Left of centre the judiciary is seen as the brake on untrammelled power.  It is a paradox that true democracy is most in danger when those two forces are in alignment.  Let the discord continue for all our sakes.  

LEGAL INITIATIVES? I HAE MA DOOTS

It seems the boys and girls in the MOJ press department in conjunction with their comrades at the Home Office have been hard at work recently on their keyboards.  Like the proverbial monkeys one of whom will re write Hamlet one or two of them seem to have gotten their masters` messages across to a public becoming weary of this government`s final attempts at demonstrating that it is actually doing as well as talking before an expected 2024 general election.  Of all the crass announcements none is more open to question (ridicule?) than the promise that offenders will be forced to wear high visibility jackets whilst undertaking "community payback" within 48 hours of being caught. This is supposedly a new initiative to ensure communities can have more harmonious lives without teenage yobs ruining their tranquillity.  Younger readers might not be aware that the term "community payback"  made its first legal appearance in 2010 when there was a National Probation Service worthy of its name.  It failed in practice owing to the less than rigorous standards applied and a general lack of co-ordination amongst all the required parties involved.  And also BTW that`s when the high vis waistcoats were issued and the ASBO was hailed as the finest new legal initiative to curb anti social behaviour.   There was however one major difference in the application of said community service:- the offenders had been arrested, tried and been sentenced by a magistrates court.  These safeguards were a balance of fair retribution and suitable judicial non custodial remedies.  These new proposals apparently will have an offender paying back to the community within 48 hours of being apprehended such payback to have input from the public.  There is no mention of the legal process as to how this ambition will be achieved.  Inviting said public, i.e. you and I, to have an input on suitable retribution for those offenders will require a representative group of people to sit in judgement and listen to arguments from a prosecutor, probation officer and of course the offender. Indeed that sounds familiar; lets call it a court. I doubt whether similar requests for public opinion on punishment will be made for crimes of multiple or child murder or the murder of a police officer.  I wonder why. 

At a time when there are overwhelming arguments to decriminalise the use of weakest forms at least of cannabis it seems the hangers and floggers in government have persuaded the others to place the use of nitrous oxide as a category C drug offence.  Considering that the toxic results of its use are very rare, especially compared with cannabis, this prohibition is just a high flying kite to that same group as lied to us on Brexit and seeks to ban immigration.  

Littering and graffiti have also come under the heel of impending legal changes.  Until recently my own council required an appointment for anyone seeking to dump rubbish at the major borough refuse collection site.  If that were not an encouragement to fly tip heaven knows what more inducement could be offered.  As with so many proposed rules without sufficient police patrols or underpaid little hitlers employed by councils fly tipping will continue to be a blight on all our landscapes whatever the consequences for those charged. 

Finally a proposal from a case, I believe, originating in my former court, became headline news for magistrates in 2007.  CJSSS Criminal Justice Simple Speedy and Summary was an initiative so important that every magistrate in the country was ordered to sit through a two hour training session so that its guidelines might be implemented as thoroughly as possible.  Like all past and present and future "initiatives" it took off at rocket speed only later to be bogged down due to insufficient prosecutors and fully trained probation officers with some defence lawyers exploiting the possibility of delaying tactics when addressing magistrates too weak to object. "Putting the prosecution to proof" was one of the most common comments I recollect at the time emanating from such sources.

For as long as I can remember the justice system from police, probation, prison to courts has been underfunded to the point of near collapse for the simple reason that a law abiding public just doesn`t care and parsimonious government is skilled at salami slicing budgets of what it considers secondary ministries distant from tomorrow`s headline news.  Those announcements commented upon above and the rest are just continuing the age old practice of  wielding a big judicial stick for a short time then putting it back in the drawer hoping nobody remembers when the election is called. Perhaps this time will be different but "I hae ma doots", said the Highlander when asked a controversial question.  

MAGISTRATES` MARCHED TO THE TOP OF THE CUSTODY HILL AND BACK DOWN AGAIN

A very brief post.........  Last year magistrates courts` sentencing powers were increased to 12 months custody.  This month custodial limit will be reduced to previous 6 months.  This is very strange and without explanation.  The Commons Justice Committee has questioned the motivation behind this action which is reminiscent of that grand old Duke of York

KEEPING SECRETS ON THE BENCH

From my years as a magistrate I think I can safely say that many if not most criminal defence lawyers would like to see the end of the lay bench i.e. they consider that with a single government employee District Judge (Magistrates Court) their client would have a greater chance of acquittal than before a panel of three Justices of the Peace.  As far as I know acquittal rates at magistrates courts are not divided into those before the DJ or lay bench. The relevant numbers are available below.  

As noted above convictions at trial are few in number owing to the vast number of guilty pleas. What is rarely ever commented upon is that there is no requirement for a three person bench to agree a verdict; a majority 2:1 is acceptable but no such statement is allowed to be made public when the verdict is pronounced in open court.  Of course for those acquitted knowledge of majority or unanimous decision is irrelevant; they are free to go but for the convicted offender it is a different matter especially if, as increasingly is the case,  they are without legal representation. It was my personal practice in such cases to tell such an individual of his/her right of appeal to crown court and that the appropriate form was available in the court public office.  Very very rarely if at all when sitting as a winger did I witness any colleague doing likewise.  I can add that this procedure was never addressed at any training session.  This is an anomaly I feel strongly should be addressed.  Whether it is just a historical tradition lost in time or is a continuation of a long standing directive from a distant Lord Chancellor I know not.  I do know, however, that surely it is justifiable for a defendant to know under what conditions guilt or innocence would be established.