BIND OVERS// A REMINDER OF TIMES PAST// PART 2

A Bind Over is neither a conviction nor a punishment. It is a preventative measure whereby a person enters into a recognisance before the court (gives a promise) to engage in good behaviour and to keep the peace for a period not exceeding three years. The recognisance is a promise to pay a specified sum of money if the recognisance is breached.  On June 13th I told of my own experience prior to appointment of witnessing a bench exercising its power to threaten a plaintiff to being bound over.  In my opinion this was in retrospect a bench led by an arrogant chairman exceeding its powers. Ever since, the words "bind over" have held an interest for me.  I offer again the CPS guidance on that disposal.  For an apparently simple disposal the underlying conditions prior to and subsequent to its activation are considerable but its use is diminishing annually as the statistics below testify. 

I find this information rather strange.  The obvious question is why.  The situations where, according to the CPS guidance, such a disposal is lawful are as frequent now as in past years and it`s not as if it is costly in financial and professional terms for a bind over to be made as  no input from probation service is necessary nor legal representation for the miscreant.  The next point of interest is that there is no public availability of the effectiveness of the order insofar as its deterrent effect against future criminality.  Therefore nobody knows how many of the above numbered offenders breached their bind overs.  When a sentence appears to be ineffective or rarely used some bright spark in parliament seeking a few minutes in the headlines or a press release from Petty France lays the foundation to repeal such legislation.  Sentencing Guidelines on making bind over orders are quite pithy. My explanation for the virtual disappearance of the sentence is quite simple.  It doesn`t respond easily to a "computer says no" or algorithmic solution.  It is predicated on future risk rather like bail decisions and such decisions demand discussion.  It is a situation for a bench where the justices have to actually think for themselves and not be herded like a flock of sheep in the direction to which the legal advisor is pointing.  These considerations have, over the last two decades, been gradually and silently removed from magistrates` judicial discretion.  Ask any magistrate about binding over and the chances are that s/he will display total ignorance of the disposal. After all with just 318 such decisions in 2022 and 150 courts offering so called local justice each court will have had but two such outcomes the whole year and like local as to justice is a historic anomaly bind overs as to sentencing I`m sure will follow that example. 

KNIFE CRIME SENTENCING; THEORY & PRACTICE

We are expecting a general election next year. As a matter of curiosity I attempted to see a copy of the Conservative Party manifesto for the election of 2010.  A normal search indicated it was not available for public observation.  

Ever since I was appointed J.P. during the last Labour government  I naturally have taken an interest in crime and government statements on how  they are going to crack down on this crime or that offence.  Tony Blair in his first Labour manifesto famously declared, "tough on crime and tough on the causes of crime."  Having been in office for 13 years the Tories are making yet again another effort to convince us they are tackling knife crime.  A new consultation paper on knives has just reached its final submissions date. Since 2010/11, the total number of selected offences involving a knife or sharp instrument has increased by 34% (from around 34,000 to 45,000) and the number of threats to kill using knives or sharp objects has nearly quadrupled (from around 1,400 to 5,500).The recent police recorded crime figures published by the ONS showed a 21% increase in the number of knife and offensive weapon offences recorded from 37,706 in year ending September 2021 to 45,639 in year ending September 2022. We all know that "Lies, damned lies, and statistics" is a phrase describing the persuasive power of statistics to bolster weak arguments but nevertheless it is in the courts that the final link in the chain of promises, manifesto commitments, parliamentary processes and legislation becomes manifest.  I recollect that the case known as Povey became standard approach to sentencing knife crime in magistrates court.  I kept a copy in my personal folder which accompanied me every time I sat.  Indeed my colleagues often requested a copy.  Throughout my appointment there was never a training session on such criminality. All such "advice" was supposed to emanate from our legal advisors.  Such ignorance must be bliss to so many now sitting in judgement on their peers being led by their noses under the control of HMCTS. In practice sentencing on bladed articles and knives seems no more or less than the pot luck of the last century despite all the exhortations and Guidelines. On so many grounds this offender`s sentencing even with the limited report seems a throwback.   This Deputy District Judge perhaps was "under orders" not to increase the prison population although such instructions from on high are always denied.  At the other end of the scale here is a case where logic and compassion seem to have been sacrificed to "the computer says no" attitude possibly encouraged by a legal advisor covering his/her arse.  

I have long looked forward to the time when live TV of magistrates courts to a local population becomes as commonplace as parliamentary TV.  Indeed with the dearth of local news media reporting court activities it has become essential for justice to be seen to be done by a wider public ignorant of its processes until Jo Bloggs has to appear herself.  I can find no statistics on the numbers of litigants in person conducting their own defence at trial in magistrates courts. From my experience the vast majority of defendants pleading guilty are unrepresented except perhaps when expert representation is needed in more serious matters eg driving disqualification or possibility of a custodial sentence  This academic study might be worth a few minutes of JPs` reading time.  

From all accounts there is a public perception that knife crime is out of control and sentencing is inadequate. No doubt until the general election we will hear the same old platitudes familiar to us all [at least those of us with long enough memories] from the days of tram cars and trolley buses whether referring to the Glasgow razor gangs or the Sweeney Todds of the East End : we will reduce knife crime and punish offenders. 

A MOCKERY OF JUSTICE

First there was ASBO and ASBO begat CRASBO and from its loins there came landlord banning orders, drink banning orders, football banning orders et als.  However it must not be overlooked that there are also for one`s delectation  non-molestation orders, occupation orders and restraining orders for those inclined to a soupçon of domestic violence.  These are civil orders the breach of which is a criminal offence triable in the magistrates or crown court where offenders face a custodial sentence.  The numbers of such orders are not public knowledge.  A Freedom of Information Request has been refused on the grounds of costs of retrieving such information.  The standard such response to refuse an application is "I can confirm the MoJ holds all of the information you have requested. However, to provide this 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."  However in view of the vast scope under which such orders can be made it is not unreasonable in my opinion to suggest that the number must run into six figures annually.  The logical next step in considering the efficiency of banning orders, i.e. their effectivity, is again a matter of conjecture owing to the lack of public information of subsequent breaches of orders and the consequent punishment handed out to offenders. 

I cannot help but, drinking from the cup of cynicism, thinking that at the bottom of these law making and sentencing exercises lies but a single objective of reducing costs.  Unless and until the Ministry of Justice publishes actual numbers we will never know.  What we do know and every magistrate and criminal lawyer will know is that the apparatus  of banning orders is so often so ineffective that the law in its inaction makes a mockery of justice per se. Here is just a single example from a single court on a single day last week. 

JUDICIAL DECISION MAKING

With increased reporting of the Court of Appeal and the Supreme Court owing to various government proposals being considered unlawful by some the debates previously of interest only to legal eagles have become if not front page news no longer limited to a few inside columns of the broadsheets.  Indeed major news programmes are not long after social media in joining the reporting.  There has been considerable comment on the Court of Appeal`s decision last week that the government`s proposals to send asylum seekers to Rwanda was unlawful.  That result had been widely predicted but what was of interest was that the decision was by a majority of two to one the dissenter being the Lord Chief Justice.  That, as a secondary point, leads me to question whether the intellectual and legal requirements of members of the Appeal and Supreme Courts are that much different.  Are such eminent practitioners given points in the manner within the military when one star generals must be promoted three times to achieve top billing?  

Judges are also in a Scottish spotlight.  SNP proposals that a single judge should preside over rape trials without a jury have received considerable resistance from within the legal profession and without. Onlookers shouldn`t be surprised.  Nationalist governments throughout history have targeted courts to do their bidding.  Without juries  that target is closer to being achieved.  As in England in certain quarters there is disquiet at [according to those quarters] the low conviction rate in such trials. In addition they also claim that many more under investigation for rape are not brought to trial. Considering that the offence is not an offence and is a consensual decision in private for the vast majority of people it is unsurprising that a high hurdle is necessary for conviction.  Perhaps there is envy of the Republic of China where the conviction rate is 99%. 

When discussing judges and judgements many commentators overlook what constitutes a conviction in magistrates courts.  And well might they overlook.  In the lower court the pronouncement simply is "guilty".  The reasons are explained but whether or not that verdict is reached by all three magistrates or by two to one majority is never spoken publicly.  This is an anomaly I questioned during my own time on the bench and never had a reply worth its weight.  With the advent of majority 10:2 decisions being publicly accepted by judges in England since 1967 the secrecy in magistrates courts is untenable.  Knowing s/he was convicted on a majority verdict would certainly allow a defendant to consider the  possibility of a successful appeal at crown court.  Similarly on an acquittal such a split decision in itself would reflect the court`s lack of certainty in the prosecution case not too dissimilar to the 3rd verdict in Scots law of not proven; a conclusion with which I am in 100% agreement but another questionable change proposed by the nationalist government in Edinburgh. 

The trend by actions of the Ministry of Justice is to secrecy or at least increased difficulty in opening the door to accessible justice; the Single Justice Procedure is an obvious example. Therefore we are extremely unlikely to have any recommendations for change as above. If there were a real body to represent magistrates` opinions perhaps the matter would at least be aired.  As of now JPs are just kowtowing unpaid employees  of HMCTS. 

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?