THE FAILURE OF SUPERVISORY BODIES BODES ILL FOR ALL

Earlier this month Mike Dean a hitherto respected and highly experienced football referee now retired acknowledged that he intentionally overlooked an incident and neglected to use the VAR technology to protect his "mate"during a match between Chelsea and Tottenham Hotspur last season. The new technology was introduced to provide fans and the players with as much information as possible in cases where line of sight decisions proved to be difficult for the on field officials. A decision visible to all spectators live and on TV to overrule the VAR was disgraceful and has brought the whole system into disrepute notwithstanding the financial implications for the clubs involved. The referees` supervisory body will be unlikely to take cognisance of his opinions ever again and fans will have further cause for disgruntlement when a debateable decision goes against their team.

Football is a game and big business but murder is murder and one of the most distressing facts to emerge from the Letby case is the failure of several supervisory bodies and individuals to take action when eminent qualified personnel presented prima facia evidence of malpractice by Letby. But this failure was not an isolated misfortune within the NHS. Between 2005 and 2008 at Stafford Hospital the regulator condemned "appalling" standards of care and reported there had been at least 400 more deaths than expected between 2005 and 2008. It listed a catalogue of failings, including receptionists assessing patients arriving at A&E, a shortage of nurses and senior doctors, and pressure on staff to meet targets. The Alder Hey organs scandal involved the unauthorised removal, retention, and disposal of human tissue, including children’s organs, during the period 1986 to 1996. During this period organs were retained in more than 2,000 pots containing body parts from around 850 infants. These were later uncovered at Alder Hey Children's Hospital, Liverpool, during a public inquiry into the organ retention scandal. In the 1990s at the Bristol Royal Infirmary, babies died at high rates after cardiac surgery. An inquiry found "staff shortages, a lack of leadership, a unit 'simply not up to the task ... an old boy's culture' among doctors, a lax approach to safety, secrecy about doctors' performance and a lack of monitoring by management". The scandal resulted in cardiac surgeons leading efforts to publish more data on the performance of doctors and hospitals. One could say that the cover up of scandal is endemic within the NHS.

Between 1970 and the early 1990s, an estimated 26,800 people in the UK were given contaminated blood transfusions and blood products infected with hepatitis C or HIV. People with haemophilia, a condition that affects the blood's ability to clot, were particularly affected. The then government and those following knew of contaminated plasma long before it admitted it. A minister privately expressed concerns that Aids was being transmitted by contaminated blood products while the government publicly insisted there was no “conclusive evidence”, newly uncovered documents from 1983 show. Once again the cover up is equal to or more sinister than the original disaster.

Perhaps the scandal involving the Post Office is the most revealing of all. Over many years the Post Office, aided by its lawyers, engaged in what looks like a cover-up due to repeatedly failing to disclose what they knew about problems with Horizon across a number of court cases. Hundreds of innocent people lost their livelihoods, their homes and some were imprisoned as a result. Some committed suicide. In April 2021 39 former subpostmasters had their convictions quashed at the Court of Appeal. The court concluded that the Post Office should not have prosecuted them in the first place and found the Post Office’s conduct “an affront to the conscience of the court”. Such comments by the Court of Appeal are damning and rare. The Court of Appeal’s judgment in 2021 built on findings in a High Court case in 2019 where the failings of Horizon were exposed. The judge in that case also found the defence by the Post Office to be aggressive, excessive, misleading, and otherwise unsatisfactory. It included an application to unseat the presiding judge whom the Post Office considered was biased. Even in those High Court proceedings, the Post Office failed to disclose critical information about the problems with Horizon.

In all those matters those charged with the supervision of systems and personnel not only failed in their task but were active in the suppression of evidence which was contradictory to their interpretation of the investigation. And so to the magistracy with its internal supervisory system no different in its structure from those in medicine or football. Secrecy surrounds most complaints both from without the system and within. Individual complaints by magistrates are met with obstruction and obfuscation whatever the rights or rarely the wrongs of the matter. Advisory committees, if matters progress that far, are generally obstructive. Delay in investigation is the norm. Threats are commonplace. Investigations which reach the Judicial Conduct Investigations Office are just the tip of the iceberg. But what is common in all the above instances is the failure of supervision in one form or another. My point today is that the real failure is of those who appoint the supervisors. It has been estimated by those more knowledgeable than I that there are about 10,000 individuals who are this country`s decision makers. They are colloquially known as "the great and the good". A definition might be "worthy, distinguished or important people especially when gathered together." These are the members of interviewing panels for the likes of the General Medical Council and/or its disciplinary committee. These are the people who appoint government commission members. These are the people who appoint members of investigatory committees. These are the people who are responsible for the repeated instances of supervisory failings in so many areas of our lives.

There is no civic duty more important that being a member of a crown court jury. Life and death, innocence or guilt is in the hands of ordinary people with few caveats. 18 is the minimum age; being a British citizen is not a requirement, lack of fluency in the English language is not a bar and even a person with a serious criminal record can be a jury member. It is my opinion that a cadre of ordinary citizens be assembled from which cohorts should be entrusted with the choosing of professional supervisors in various trade and professional areas. Ordinary citizens with ordinary lives, interests and hopes for the future able to sift the often uniform education, backgrounds and aspirations of wannabe supervisors. Certainly the iniquitous results from current practice are now way beyond mere chance. They are a direct result of current system failure. When the cry in so many areas is more "diversity, diversity, divercity" where is it when actually needed? It`s not for more brown, black, tall short, trans this or trans that people. It is to salvage the confidence of British people in their form of government and its tentacles which reach right down to the nitty gritty of all our lives.  The pitifully repeated excuses of who? what? where? when? should no longer be even remotely acceptable. Failure to do so will be a catastrophe: it bodes ill for all of us. 

CURRENT CRIMINAL EVENTS AND INITIATIVES

I

f ever the term "scourge" were used as a noun subsequent to its use to describe the Black Death or the Great Plague  the calamitous addiction of so many in Scotland to narcotic substances would be a good place to start. It is a sad fact that Scotland has the highest number of per capita drug deaths in Europe.  The latest figures show that drug deaths in Scotland fell to 1,051 last year from 1,330 the year before. However, this small reduction in deaths contrasts against fewer than 300 deaths total  in 1996.  It is fair to conclude that this awful statistic is the Scottish government`s biggest failure by design, incompetence  or ignorance since its inception. Having belatedly accepted the situation  there might be just the tiniest chink of  intellectual light at the end of this abysmal social tunnel.  

Decriminalisation is one of those words which brings out the best or the worst in many seasoned observers of drug addiction. For my part I have long been in favour of such a radical change in how society treats a problem which in addition to the misery inflicted on those involved and their families costs the UK £20 billion a year.  Latest  government information for England and Wales is available here.  Drug misuse is estimated to have a total economic and social cost to Scotland alone of £3.5 billion a year.  There are the very loud mouthed Cassandras who refuse to think of this catastrophe without looking through the prism of their fixed and stubborn right wing views which colour their thinking on most political endeavours whether drug addiction, immigration or other headline issues. I am anything but a supporter of Scottish independence in general or the SNP in particular but in this instance I wish the Scottish government nothing but goodwill for grasping this nettle.  

There can be few in this country who have not reacted with horror at the conclusion of the Letby baby killer trial.  That this monster refused to attend court for sentencing is the latest manifestation of arrogance exhibited by some of the most heinous  criminals of this century.  But for leading politicians  to state publicly that Letby should have been dragged if necessary kicking and screaming into the dock to face the sentencing judge is populism at its lowest level.  For those not faced with a whole of life sentence there is certainly an argument that such refusal as a contempt of court would invite an increased sentence but I doubt that in the few cases which would be likely to occur, additional time, e.g. an added year, would be no deterrent to those whose arrogance and possible psychopathy put them in the dock in the first place.  

THE MAGISTRACY//IS THERE A FUTURE?

What is a criminal justice system?  The collection of agencies including, but not limited to, the police, the courts, the Ministry of Justice and the Home Office which are involved in the detection and prevention of crime, the prosecution of people accused of committing crimes, the conviction and sentencing of those found guilty.  What is the purpose of a CJS?  According to various sources it is:-

to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.

to deliver an efficient, effective, accountable and fair justice process for the public.

a set of government institutions and systems that aim to apprehend, prosecute, punish, and rehabilitate criminal offenders.

The website of the Ministry of Justice has the following as its purpose:-"Protect the public from serious offenders and improve the safety and security of our prisons, reduce reoffending and deliver swift access to justice". 

 And the obvious supplementary question is whether these  definitions or aspirations have been, are or ever will be achieved at least by present circumstances. As far as the purpose, operation and performance of magistrates courts, to use an appropriate idiom, the jury is still out.  It seems that there are four driving forces leading to this conclusion; the pursuit of "diversity" as a symbol of  local courts, the mirage of court being local,  the appearance of defendants driven to law breaking by their addictions to drugs and or alcohol and the sheer logical necessity of limiting the numbers sentenced to immediate custody.  All that has changed in the last quarter century. Local justice, when there were indeed courts sufficient in number to allow anyone travelling time of well under an hour from home by public transport to arrive at court is now just a memory. District Judges(MC) are not appointed owing to their local connections.  The pursuit of "diversity"  in the magistracy seems to be the be all and end all.   

The first Jewish magistrate was appointed in 1847. Female magistrates have been appointed since Ada Summers (1861-1944) was the first woman magistrate to sit in court on 31 December 1919, one week after The Sex Disqualification (Removal) Act became law. Although she was not named officially as one of the first seven women magistrates, as Mayor of Stalybridge she became a magistrate ex officio.  Eric Irons on 15 May 1962 made history by becoming the first black Justice of the Peace.  Now a statement of a JP applicant includes his/her religious affiliation if any. Although denials are the common response there can be little doubt that quotas are in the minds of advisory committees when considering whom to appoint as Justices of the Peace. 

300 magistrates courts in 2010 have been halved in number with many rural courts in Wales and the north of England now being up to three hours distant by public transport from their "local communities".  The refusal to acknowledge the benefits to individuals and society of the decriminalisation of drugs, at least cannabis, by offering users a legal supply route to drugs of certified origin and composition is muddle headed and prejudiced.  Considering that  roughly 40% of inmates who are incarcerated for violent offences were under the influence of alcohol during the time of their crime and it also costs the NHS and wider society at least £25 billion a year such  limited thinking affects all of us.  The purposeful refusal to construct sufficient prison accommodation when simultaneously increasing sentences is not careless; it is beyond parody. 

And so what do we have today?  A new magistrate who writes with apparent pride, " I work full time, so I sit the minimum sittings and then pick up additional sittings during my annual leave or on a bank holiday." [my bold].  The most frequent reason for magistrates to be struck off is owing to their being unable and/or unwilling to complete even their minimum sittings. Any senior JP will attest to the fact that real competence, not the nodding through as currently happens, requires many more hours on the bench than 13 days annually.  The obsessions at the Magistrates Association, a unique body which is unable owing to its charter, to actually represent its members, since its appointment of a new CEO, have been that word again diversity and leading the judicial field in its application of woke to all that it can possible encumber. Its latest folly is to ban the use of ‘Policemen’ and ‘Chairmen’ in Woke Language Guide.   Notwithstanding that the M.A. wants to increase the expenses allowances for magistrates.  This is another excessively wordy supposed  investigation which might have some researchers in Petty France looking for this in the archive:  a report two decades ago which has application today.  In essence inter alia it states that if District Judges sat alone without a legal advisor the court costs would be equal to or even less than the costs of using lay benches and there would be greater efficiency with a quicker throughput of cases. 

And so to the reality of what actually happens in a magistrates court.  This month was published The Assaults on Emergency Workers (Offences) Act 2018 policy summary.  This needs to be understood in conjunction with the Sentencing Guideline: Common assault / Racially or religiously aggravated common assault/ Common assault on emergency worker.  The reality is that there is a proliferation of  civil orders being the outcome of many cases brought to the magistrates courts with the breach thereof being the subsequent criminal offence.  It began with ASBOs and has begotten  many offspring this offender being an example of one handed a criminal behaviour order.  Earlier this month some of the legal "great and do good" opined that shoplifters; thieves by any other name, should be spared jail.  I offer only a current example from the thousands of thefts committed weekly courtesy of DorsetLive. 

The Council of Europe states  that to have democratic security a reality, there must be namely: an efficient and independent judiciary, freedom of expression, freedom of assembly and association, the functioning of democratic institutions and inclusive society and democratic citizenship. Readers will have their own opinion whether or not our CJS helps to that end. 

MAGISTRATES: ESTABLISHED 1361// BEST BEFORE 2023

I have remarked in the past about the press and PR department at the Ministry of Justice.  Its output volume in my opinion varies inversely with the quality of the progress being attempted in resurrecting what was once upon a time more than the fairy tale justice department it now is; when news, information and outcomes were true, sincere and to to be considered a great benefit of a society in which we were lucky to live.  Along with many other attributes and qualities of leadership there really was a spark, a light, which allowed Britain to be considered "great".  It wasn`t military or empire; it was we the people and our antecedents over the last century who inherited and nourished to the best of each of our abilities a desire to be our best for our families and for each other. It generally included, with some few exceptions, those we elected to power on all the levels from parish to Downing Street.  There was corruption and malevolence of course but it was recognised, faced down and life went on but not anymore.  The output from government departments was generally informative and consequently trusted by those to whom it was directed:  not anymore.  In May 2023 a Freedom of Information request was made to  the Ministry of Justice (MoJ):

"Utilisation rates averaged 64% across the magistrates courts in 2010. Courtroom

utilisation is the time a courtroom is used, against the hours that a courtroom is

available for use. The Government's aim that year was to increase utilisation of

courtroom time to at least 80%. What is the current utilisation rate?"

That request was refused on the grounds that 

"The Magistrates’ Courts are undergoing a transition to a new data and information system called Common Platform. Each court has a system (either legacy, or Common Platform when transitioned) for viewing the availability of its rooms and reserving them. There are some measures available centrally to show the total number of available court rooms, but at present the detailed records of actual use needed to calculate the utilisation rate sought are not available.

However according to Nick Goodwin CEO of HMCTS in his recent blog:- "Last year, with thanks to HMCTS colleagues, judges and justice partners,  we sat over 100,000 days in the Crown Court and in March 2023 we sat the most days in a single month (10,033) since July 2015. Our internal management information (MI) shows that productivity - sitting days per working days - increased in the second half of the last financial year, to average rates not seen since 2015/16, with November 2022 (443) the highest since November 2016. These are incredible achievements – particularly when you consider the operational volatility of the last 12 months – and I’m very grateful to everyone who has contributed to it."

The reality of court efficiency is indicated by today`s published figures of courts actually in use.  

Humpty Dumpty, that well known wall sitting English egg, is famous for his saying, "words mean what I want them to mean."  Now the government watchword could be stated as,  "we won`t collect statistics that are not of benefit to us".  In similar fashion the MOJ has tied itself up from head to foot in the sacred "D" word Diversity.  Like the RAF where we discovered last week that white would be pilots were refused training contracts on the basis that members  within the D ethnic groups were given preference the MOJ does similar but manages to keep all that information secret about the selection of new magistrates. Those interested in criminal law can hardly have missed the publicity over the last year or so where MOJ advertised at a budget of £1 million for 4,000 new magistrates.  This in itself was a self inflicted wound.  The statistics were crystal clear in 2010.  Thousands of JPs were due to retire over the next decade and beyond.  No attempt was made to replace them on the basis that since the then new government was intending (in private) to close half the magistrates courts JPs` numbers could be allowed to to wither on the JP vine.  The result is that there are now less than half the number cf 2010.  Hence the urgency to recruit in a similar fashion to the desperation to return police numbers  to the 147K in 2010 since more than 20K were lost similarly.  The result of the scramble for JPs is a humiliation for the MOJ. Latest figures show that 1,204 were appointed of whom 147 or 15% were considered "ethnic minority".  A FOI request last year asked inter alia, how many of new appointments of BAME identification considered themselves Muslim on application?  This was refused as was an appeal against that decision....."The response to the original request confirmed the information requested is not held. This is because the local Advisory Committees of Justices of the Peace (ACJP) are separate public authorities for purposes of the FOIA".  Perhaps an investigative journalist would be able with the means available to fish out this information which is likely to be somewhere in the bowels of Petty France.  If diversity is so important there can be no limit to the public knowing absolutely if eg born again Christians, Muslim extremists, Buddhists and others resolutely opposed to imprisonment are being appointed by incompetent Advisory Committees  in their rush for a magical ratio to suit their diversity prejudices.  

There are pressure groups trying to push such an agenda. "Transform Justice" began life a decade ago to do what it said on the tin.  Certainly much change was and is needed but it seems the gallop to a world where if Diversity is not attained all manner of tribulation will descend upon us, is becoming its watchword as Climate Change has become for many. The first couple of paragraphs in its current blog describing its latest initiative, appear to complain of the extent to which applicants to the magistracy must jump through many inquisitorial hoops to prove they are suitable for the post. To actually praise for once the MOJ the application process on line is a model of thoroughness and does seem to offer applicants the initial testing to consider if the position is worth pursuing.   The writer, herself a short serving former magistrate,  seems to be trying to justify positive discrimination in the selection process.  Positive discrimination is unlawful in the UK but positive action isn’t. What this means is that employers [JPs are not considered in law as employees but are treated by HMCTS as if they are unpaid employees] can choose to select candidates from under-represented groups as long as they are as qualified for the role as other applicants. Organisations are not allowed to recruit a person purely on the basis of his or her age, disability, gender, race or religion, regardless of their ability to do the job. This would be committing discrimination under the Equality Act. It is also unlawful to set quotas to recruit or promote a specific number of people with a protected characteristic.  It is highly likely that the RAF broke the law in its pilots` selection process referred to above. 

My post of 25th April 2023 concluded as follows, "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." 

I have no reason to change that opinion.  Indeed recent events have no doubt increased the pressure within the MOJ and from many legal practitioners, notwithstanding the judicial yes men who must hold their peace until retirement, that a lay magistracy no longer gives value for money {cf  salaried civil servants AKA District Judges (MC) if they would function without a clerk}  nor holds the public`s confidence.  I now must agree that the magistracy is not fit for purpose.  England and the legal establishment should come clean with the English public that the days of relying on unpaid volunteers to administer 93% of court cases belong to a bygone age.  Perhaps the top of magistrates` coffin should read "ESTABLISHED 1361 BEST BEFORE 2023"  

SOCIETAL BREAKDOWN//CONSERVATIVE "BLAH" OR OPPOSITION "RHUBARB"

 

Below is the main headline from today`s Times newspaper.  

It is apparent that the press office of the MOJ is gearing up for the forthcoming general election when the hacks therein employed will have to show they`re earning their salt by pushing the same propaganda they have employed for years past when their masters fear  their period of power is slipping ever more rapidly into the control of His Majesty`s Loyal Opposition.  All those involved in the criminal justice system know full well this is a ritual and like any ritual it is symbolic only.  Just as for Catholics the body of Christ offered by the priest is but a wafer the hang `em flog `em headline lacks substance and is but a modern variation of the rune or the entrails of a chicken to be interpreted in any which way it suits the reader. No doubt there will be further similar headlines ranging from abuse of the domestic kind to xenophobic outbursts on what must be done to stop the boats via increased punishments for knife crime and castration for sex offenders.  Plus ça change, plus c'est la même chose.

We are now at the cusp of another football season.  And once again today`s Times provides the subject matter.  

There is little doubt in my opinion that the referees will follow the hard line of their paymasters.  Unlike those above, referees` emoluments and indeed their fitness to officiate will be judged  at almost the speed of light by those who pull the financial strings within professional football.  Whether or not football clubs` and police efficiency in identifying and prosecuting those supporters for whom the beautiful game is just an opportunity to cause havoc and mayhem will bring law `n order back to the terraces is another matter. The figures below for those hooligans who have been subjected to recent football banning orders do not offer high hopes that such disgusting behaviour will be any less in the forthcoming season as in the past.  

Of course when viewing the chart it must be remembered that in the wake of the outbreak of the coronavirus pandemic in March 2020, the Premier League suspended its 2019/20 season on 13 March and it wasn`t until 17 June that once again spectators attended.  Nevertheless an average of only 347 offenders were issued annually with a banning order over those five years.  Delving a little deeper into those numbers, considering that there were approximately 190 Premier League games played and many hundreds of cup and lower league professional matches between 1st January 2018 and 31st December 2022 the total of 1736 banning orders for the period is derisory. 

It takes more than statistics for historians to decide when a society has broken down.  Public disorder and its treatment or curtailment are one disturbing factor but combined with hidden and not so hidden police corruption the signs are there for all to see as is the failure of supervisory bodies in many professions and organisations.   But it is for government to act.  Over the next eighteen months we will find out if it is Conservative blah or Opposition rhubarb which wins the day. 

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