THE PARADOX OF PRESERVING A DEMOCRACY

This blog usually comments on matters relating to the law in general and magistrates in particular.  Occasionally however there are events and/or circumstances that supercede such limitations.  The dreadful events of the last three days constitute such circumstances.  

On 26th November 2021 the Islamist terrorist group Hamas become a proscribed terrorist organisation in the UK in its entirety, following Parliament’s approval of an Order which was laid in Parliament a week previously.  This means that members of Hamas or those who invite support for the group could be jailed for up to 14 years.  That seems simple enough but like so much legal drafting it leaves interpretation to the courts.  On 9th October Sky News broadcast a live interview with the Head of Political and International Relations in Hamas, Dr Basem Naim during which he denied that any Israeli civilians were killed.  According to his perverted thinking all Israeli citizens are military targets.  That interview can be viewed here. I am old enough to remember that during the height of the Troubles in Northern Ireland from October 1988 to September 1994 the British government banned broadcasts of the voices of representatives from Sinn Féin and several Irish republican and loyalist groups on television and radio in the United Kingdom. Margaret Thatcher initiated this ban.  Considering the IRA was close to blowing her up in Brighton her personal feelings must have been disturbed to say the least. Her thinking seems to have been that such people can be seen but not heard.  In not banning images I suppose she considered that she was still allowing freedom of speech; a pillar of our democracy.  It was a foolish compromise and was widely mocked.  Three decades later the security situation is quite different.  9/11 in the USA and 7/7 here have exposed an awful weakness; a weakness and paradox all democratic nations eventually have to face.  Can a democratic society like the UK refrain from using autocratic ways and means to protect that self same democracy from falling to forces of anarchy and terror?  If we have not reached that point we are close to it. The previously mentioned interview was a soundbite for the approval and praise for murdering Jews.  (I write "Jews" and not Israelis.  The murderers knew that many of their victims and hostages were from foreign countries.) That interview should not have been broadcast. 

In our midst we have seen TV footage of screaming fanatical Muslims in Manchester, Liverpool and London not only castigating Israel but repeatedly calling for the elimination of the State of Israel as an entity because calling for a Palestine from the river to the sea means just that: a Palestine occupying all the land from the Jordan River to the Mediterranean Sea.  Looting a kosher restaurant in the high street of Golders Green shows how perilously close these Islamists are to emulating albeit on a very small scale so far the actions of the Nazis in 1938 Germany.  The full force of existing law must be brought to bear on them.  So far Scotland Yard is showing a reluctance to considering that hate crimes are taking place.  The paradox of preserving a democracy by undemocratic means is ever closer.  The history of Paris after 1789 should be compulsory reading for all politicians. 

SHEEP AND THE POLITICIANS WHO CRY WOLF

Notwithstanding the tens of thousands of individuals who are even loosely termed "court workers" the only people remotely interested in what goes on in the magistrates courts are perhaps just a few thousand who work in the mainly print media and of those the majority don`t work for the Daily Mail or The Times or other mass media; they work for the hundreds of local media companies struggling to financially survive against a tsunami of sometimes unregulated competitors on and off line.  Local magistrates  court reporting remains one of the few activities where such businesses provide information services which are usually unobtainable elsewhere.  Having myself, from time to time whilst active as a presiding magistrate, been the subject [albeit with the offender] of such reports I have nothing but admiration for those undertaking this work.  There is still a majority of the British public without their name on the police national computer.  Unless involved academically these law abiding citizens have absolutely no conception of how the law works in the 97% of criminal cases which begin and are concluded in the magistrates courts until, of course, they are themselves accused of offending. The pressure and lobbying organisation Transform Justice has, for that very reason, initiated a court watchers group to inform on such proceedings.  My opinion in that regard is that the project has merit but care should be taken by these folk that reporting on the court is one thing; offering opinion is another and I have noted that sometimes the twain are confused.  Arguably no topic within the legal system is perhaps as significant as sentencing although it`s fair to add that the whole system rather like the concrete used to construct some of the court buildings  has been crumbling from the top for over a decade: 2010 to be precise.  

From time to time I have offered cases where the invisible directive from the MOJ for sentencers to keep out of jail many who should be behind bars borders on political arrogance taking we the public for idiots.  Politicians preach hard guidance and courts apply hand wringing misplaced benevolence.  Below are just a pitiful few recent examples where the sentence does anything but fit the crime.

The dreadful cases of murder and rapes by serving Metropolitan Police officers and others provided a well earned shock to authorities who have shouted loudly that such cases, the tip of a known iceberg, will in future be treated with the severity they deserve.  One such observation was that indecent exposure, an offence which most magistrates have had to listen to, would no longer be treated as a relatively minor offence.  It would be treated as an indication that the offender was on an unstable ladder likely for him to lead to falling further into depravity.  Academic studies have justified this reasoning.  A sex offender denied his guilt until the day of his trial when he admitted indecent exposure to a 14 year old girl. Not only was that cowardly delay likely to have caused even more distress to the child his late guilty plea was of no avail insofar as he was sentenced to virtually the maximum available to the bench; 23 weeks but against all logic it was suspended.  Obviously only those in the courtroom heard all the evidence and mitigation but common sense comments are valid. Those in the local area interested in the topic must be at best confused and at worst  dismayed. The report is available here. 

In Derby a 22 year old drunk driver was guilty of her third such conviction in three years. The Sentencing Guideline for this offence is here.  Not only was she well over the limit she tried to deceive police by pretending she was a passenger in the vehicle; an aggravating circumstance if ever there was one.  She was sentenced to 18 weeks custody which was suspended for two years. In addition she was disqualified from driving for four years and  ordered to pay £199 in financial penalties.   A 100 day alcohol monitoring tag was ordered to be attached and she was required to  attend 25 rehabilitation sessions.  How seriously all that will be monitored by an emasculated probation service we will never know.  But how can we have confidence in our legal system when such a dreadful disregard for the law is treated almost as a misdemeanour.  

Another case at  Southern Derbyshire Magistrates’ Court gives me cause for disquiet.  It seems to me natural justice that when a violent offence is committed against an obviously pregnant woman the law should punish the offender and mitigation if any should be treated with the utmost caution.  When the court was told the same offender, the partner of the victim, was convicted for ABH against her  in November 2022 immediate custody should surely have been the correct sentence.  But no!  The District Judge, to his shame suspended the sentence.  Any right minded person must weep at this blatant observing of those aforementioned invisible guidelines from those who have underfunded prisons and their workforce since 2010.  Such indifference to the public will lead to vigilantism and a further disregard for politicians and their public offerings of nirvana.  The on line report can be read here. 

Knife offending in this country is endemic.  Hardly a day goes by from Cornwall to Cumbria without such an offence taking place.  And still, this government like so many others, is by passing immediate custody  and offering ever improved sentences for offenders as if they were offering new improved washing powder.  

I have taken the opportunity to publish below Proposals 4 & 5 of  "Consultation outcome Government response to consultation and summary of public responses (accessible)
Updated 2 October 2023."

The complete document on knives and bladed articles is available here. 

Proposal 4 - The Criminal Justice System should treat possession in public of prohibited knives and offensive weapons more seriously.

Question 10: Should the Criminal Justice System treat those who carry prohibited knives and offensive weapons in public more seriously?

81. We asked respondents for their views on whether the possession of a prohibited knife in a public place should be treated more seriously. We asked respondents to tick one of the following responses and explain the reasoning for their answer. The provided responses were:

Yes

No

82. There was a total of 2,333 responses to this question.

83. The majority of responses (65%) agreed with this proposal with comments from some respondents talking about the devastating impact knife crime has on lives and communities and that this change will better reflect the severity of the crime.

84. Some respondents, including practitioners working with young people, suggested that this proposal may impact negatively on young people who may carry knives in public for self-defence purposes or because they are coerced into carrying the article.

Government response

85. We note concerns raised in relation to this proposal having the potential to impact on vulnerable people who may be coerced into carrying knives. Similar concerns were raised in relation to proposal 3. The courts will always consider each case individually and will take into account mitigating factors, such as age, lack of maturity and vulnerability.

86. The government is clear that it is unlawful to carry knives for self-defence purposes. The Prevention of Crime Act 1953 makes it an offence to carry offensive weapons in a public place, without lawful authority or reasonable excuse. Carrying a knife is likely to entice knife crime in local communities rather than discourage it and will put young people at risk as a result.

87. The government will ask the Sentencing Council to consider amending sentencing guidelines on possession of bladed articles/offensive weapons to treat possession of a prohibited weapon in public more seriously.

Proposal 5 - A new possession offence of bladed articles with the intention to endanger life or to cause fear of violence.

Question 11: Do you agree with the proposal?

88. We asked respondents whether they thought the government should introduce a new offence of possession of bladed articles with the intention to endanger life or to cause fear of violence. We asked respondents to tick one of the following responses and explain the reasoning for their answer. The provided responses were:

Yes

No

89. There was a total of 2,361 responses to this question.

90. The majority of respondents to this question (64%) agreed with this proposal. Respondents in favour of this proposal argued that current legislation does not recognise the severity of carrying a knife with the intention to cause fear and the increased likelihood of escalation resulting in harm or threat to life. Respondents stressed the need to act before the actual act of threatening another person occurs.

91. Some respondents agreed with the proposal, but they shared their views that they thought it would be difficult to prove that there is an intention for an individual carrying a bladed article to endanger life or cause fear of violence.

92. There were also respondents who were of the view that this is already covered under current legislation; the majority of respondents who provided these comments had selected ‘no’ as their answer to this question.

93. Some respondents, including practitioners working with young people, suggested that this proposal may impact negatively on young people who may carry knives in public for self-defence purposes or because they are coerced into carrying the article.

Government response

94. The government will seek to introduce a separate possession offence of bladed articles with the intention to injure or cause fear of violence with a maximum penalty higher than the current offence of possession of an offensive weapon when parliamentary time allows.

95. We believe that there is a gap in knife legislation between simple knife possession and possession and threatening another person. This proposal mirrors existing firearms legislation that has been effectively implemented by prosecutors. We expect that this proposal will support the police in tackling violence before the actual harm has been done and where there is evidence, for example on social media, of taunting or threatening behaviour.

96. We note concerns raised in relation to this proposal having the potential to impact on vulnerable people who may be coerced into carrying knives. The courts will always consider each case individually and will take into account mitigating factors, such as age, lack of maturity and vulnerability.

97. The government is clear that it is unlawful to carry knives for self-defence purposes. The Prevention of Crime Act 1953 makes it an offence to carry offensive weapons in a public place, without lawful authority or reasonable excuse. Carrying a knife is likely to entice knife crime in local communities rather than discourage it and will put young people at risk as a result.

Governments of all shades, Secretaries of State for Justice and Home Office Ministers have spouted on for decades about what they`ll do about knife crime.  It`s fair to say that very few of the public now take anything they say on the subject except with a large pinch of salt.  The old adage of the boy who cried wolf has survived for centuries owing to the underlying truth, reasoning and logic conveyed by those few words.  What is not immediately flagged up is the effect on a society when a government duly elected operates under that very proverb crying wolf so often that electors finally disregard its words and as a result seek the apparent simplicity of the demagogues who offer manna from a utopian heaven the price of which, unsaid, is the loss of democratic rights.  I am fearful that we are slowly entering that period when the value of almost any political policy promised by government or those who seek government is discounted, disregarded and held as an example of the need by some voters for "strong government".  The lesson is there before us. The point is whether the sheep are listening to the politicians who cry wolf.  

SELECTING GUN CARRYING POLICE OFFICERS

Once again there are headlines about the police.  I suppose in an era when a personality or a member of a subset of a group sneezes the rest of society reaches for a handkerchief.  When recent events follow on almost simultaneously with the publication of the The Baroness Casey Review it`s hardly surprising that many with or without knowledge are offering an opinion on the short lived mutiny amongst the licensed firearm officers of the Metropolitan Police. Some facts are usually the basis of any discussion.  The Police Federation last polled its members in 2018 on the subject of  armed officers.  That is available here.  For previous posts from me on this topic write "armed police" in the search box.  The latest official statistics on firearms use by police is now available.  This subject has always been what could be described as a hot potato.  Interested bodies are only too pleased to throw the topic to others. Too hot to handle might be another apt description.  With police now often seen patrolling not just with a holstered side arm but with sub machine guns many commentators seem to have forgotten that it was only in 2009 that such weapons were authorised for general use e.g. when patrolling at airports, public buildings and the like.  My own recollection of such armed police patrols was on a visit driving through Belfast in 1968. All cross roads in the city centre had a machine pistol armed officer of the Royal Ulster Constabulary on guard close by.  I was shocked then, shortly before the official start to the "Troubles".  Reporting to a sergeant at a Santa Barbara police station some decades ago that my rented car had been stolen I was somewhat shocked when he said to me, "If you see the car don`t go near it.  You might get shot".  He was advising me that police would have information on the vehicle and would be suspicious of anyone attempting to use it.  Such conversations stay with you for a long time. 

A simple fact of which I recently became aware was that armed police do not receive any extra pay over and above their colleagues.  I asked myself then and I ask you, a member of the public like me, why do those individual officers volunteer for a job which involves the possibility both of facing deadly violence and protecting themselves, their fellow officers and us, the public for no financial gain. I would venture one possible answer insofar as they actively want to be involved in precisely such situations where there is the possibility of using deadly force.  All those with a license to carry guns are trained, we must assume, to the highest standards.  The very few times a police weapon is discharged is evidence of that but is it a coincidence that in the last couple of years three high profile cases of serious criminality have been proved against officers licensed to carry firearms on duty. Currently 260 police officers in the Met are due to face misconduct charges and one firearms licensed officer is currently facing a charge of murder.  There are no figures for how many of those 260 are licensed gun carrying officers.   

It is a common comment by amateur psychologists that those who most seek power are those best not to have their desires satisfied.  Official guidance for chief constables on granting of an ordinary firearms license for a member of the public can be found here. I can find no publicly available information on the criteria required and the selection process for granting a license for a police officer to carry a gun on duty. Can it be the case that those who volunteer for no extra pay or promotion and seek to carry guns are those whose applications should be scrutinised in the very finest detail?  And should that whole application  process be publicly available?  After all, if magistrates whose powers include depriving a person of up to six months liberty, are subject to a very onerous open selection process why not gun carrying police officers whose powers include shooting to kill? 

BRAND: A RUINED REPUTATION BUT INNOCENT?

It seems that Times Newspapers and  Channel 4 TV have done an excellent hatchet job on a loud mouthed  comedian, former film personality and currently stand up performer  who apparently makes £millions from telling those who are interested of his promiscuous lifestyle.  But then there are those who remember the fiasco in 2014 when helicopters  swooped over the house of Cliff Richard after accepting statements from Carl Beech compulsive liar and later to be convicted fraudster and paedophile. The BBC said the coverage would cause Sir Cliff "distress" but was "in the public interest," while police called it "intrusive".  The net result was damages for Sir Cliff and others, conviction of Beech and the presentation to parliament of  the Anonymity of Suspects Bill last year.  CPS guidance on such matters is available here. 

And so to Brand.  His accusers i.e. their legal departments, must have burnt the midnight oil as they discussed the merits of going public.  In the few days since his followers of whom there are millions active and passive have focussed their hysterical opinions on the mass media out for blood.  Indeed their reactions are similar to those supporters of the former antisemitic leader of the Labour Party who maintain a sinister cabal i.e. Jews were out to remove him from position.  The similarity of his supporters and Brand`s is that they resemble a cult; a word which first appeared in English in 1617 derived from the French culte, meaning "worship" which in turn originated from the Latin word cultus meaning "care, cultivation, worship".  Until the early 20th century the term usually was associated with religion.  However in recent years other ideologies can be said to have had a cult following bordering on hysteria.  It could, I suppose, be argued that the "Me Too" movement has itself morphed into a cult where any apparent deviation from its self defined recognised tenets of male/female interaction leads to calls for those involved to be sanctioned.  By putting Brand`s name and alleged offending in the headlines his media accusers are doing what individuals have been unable or unwilling to do themselves.  The hidden crimes of Jimmy Savile come to mind: criminality that was known to hundreds including this blogger many years in advance of their being in the public eye was knowingly suppressed by those who had the power to expose him [not this blogger].  The police will investigate if any laws were broken.  Until then his reputation is forever tainted and his income decimated.  The problems will really hit the fan if there are charges made against him.  What then of his being considered innocent until proved guilty?  Is it necessary to be legally guilty before the truth emerges?  

SECRET REVEALED AND SECRET CONCEALED

I have opined previously that the Single Justice Procedure is [to mix metaphors] a noisy scandal in plain sight.  It is only a matter of time before those decorated with 18th century wigs, supposedly still in use to add some anonymity to the users` identities, prick up their ears  to the cacophony around them.  By its very nature the results are secret and far from the public view. However, at DerbyshireLive,  a report has been published which seems to include the results of a SJP; at least that`s what the preamble suggests.

"Every week at Southern Derbyshire Magistrates' Court the cases of drivers who have broken the law on our roads are dealt with. Their offences are usually decided in their absences and the amount of money they are issued to pay in fines, costs and more can stretch into four figures. The following people have had their misdemeanours recently handled by the justice system". (my bold). 
The full report is available here. 

Recently the Oxford Mail reported that " A prolific cycle thief' has been sentenced for a spate of bike thefts in Oxford."  Quoting from that report; "He was sentenced to six months in prison, suspended for two years. Denton was also given a criminal behaviour order with several conditions to reduce the likelihood of him reoffending."  It seems the assumption is that the suspended jail sentence and a CBO is enough to deter this person from committing further criminal behaviour.  The only caveat is that we, the public, have no idea if this "reduce or do not increase the prison population" policy works.  Do such banning orders do what they say on the tin?  A Freedom of Information request on this subject received the following reply from the Ministry of Justice:- 

"For the last five years for which there is information on all or some of the various banning orders available to magistrates courts:-
1. How many offenders have been subject to each type of such orders?
2. Of those offenders above how many subject to such orders have been subsequently convicted of a criminal offence?

Your request has been handled under the FOIA. 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. Where section 12 applies to one part of a request we refuse all of the request under the cost limit as advised by the Information Commissioner’s Office. We believe that the cost of locating, retrieving and extracting the requested information by manually checking through all relevant cases would exceed the appropriate limit. Consequently, we are not obliged to comply with your request."

So the conclusion is that neither police at a local level nor magistrates who are directed to apply such sentences have any idea if they deter offenders from further criminality.  Of course it`s possible that senior police officers and crime commissioners not to mention senior judiciary have not been aware of such statistics. That we never hear so much as whispers on the subject from such high ranking people is uncanny.  Perhaps they have never asked the question because they don`t wish to know the answer which suits the MOJ which doesn`t want to reveal the reality of yet another facet of a broken justice system. 

ANOTHER SCANDAL//A ROCK BOTTOM GOVERNMENT

Perhaps the most dispiriting factor for anyone involved however remotely in what can loosely be described  as the operation of our system of law and order is when a grievous miscarriage of justice is revealed whether originating at the base of the justice pyramid; arrest by police, or within the escalating system that is supposed to prove the guilty guilty and exonerate the innocent.  I suppose a foundation stone of not just our but many justice systems who have followed our example can be encapsulated by the English jurist William Blackstone in his seminal work Commentaries on the Laws of England published in the 1760s. It is better that ten guilty persons escape than that one innocent suffer.  

In the light of current miscarriages of this very justice system it is right to look closely at the organisations which operate like long off or deep cover in cricket as the last ditch organisations against such wrongful convictions. That organisation in England is the Criminal Cases Review Commission.  Its members are not just those who belong in the club of the great and the good; they are approved by the prime minister. A few minutes perusing its website would lead an observer to conclude that each and every avenue of investigation within its parameters is a tribute to the open and diverse society we have been told we have become.  And yet the scandals continue. The case of Andrew Malkinson is currently under investigation.  The Post Office "Horizon" scandal does not shine a favourable light on the organisation.  From the website it writes;" The ‘Post Office Horizon’ scandal is the most widespread miscarriage of justice the CCRC has ever seen. It relates to wrongful prosecutions of former sub-postmasters, managers of counter assistants that were reliant on the flawed computer accounting system ‘Horizon’."

It seems that the CCRC is citing its opinion that it`s vastly underfunded inter alia as a prime reason for its current problems.  To quote once again from its website; "This resulted in people being convicted of (or pleading guilty to) offences they did not commit including theft, fraud and false accounting. Since April 2021 the appeal courts have overturned convictions in more than 80 Post Office Horizon cases. In each of the cases the court decided that it had been unfair to prosecute the individual because there were serious defects in the Post Office’s Horizon computer system. In the last three years, more than 100 unjust convictions or sentences have been overturned following CCRC referrals. The organisation has an annual budget of around £8 million and receives around 1,400 applications per year for its Case Review Managers to carry out thorough investigations into often complex cases. In the last year, 1,424 people applied for the CCRC to review their case and 1,275 cases were completed. In the previous year, 1,198 people applied and 1,183 cases were completed. Indications are that applications are currently set to be 30% higher in the current financial year. In the last reporting year (1 April 2022 to 31 March 2023), 83.7% of cases were completed within 12 months of application being received by the CCRC. In that period, 1,275 case reviews were completed. In the previous year, 1,183 case reviews were completed."   Like so much of the information emanating from the Ministry of Justice reams of selected statistics often fail, whether or not by intent, to give a wholly rounded picture of the reality on the ground. One must ask by what terms is this organisation "successful" in its endeavours?  Latest statistics published today are shown below.

 

Those interested can play around with those numbers and come to their own conclusions.  A simple arithmetical exercise shows that of the 30,516 applications only 220 appeal decisions were upheld i.e. 0.72%.  Helen Pitcher, CCRC Chairman,  in The Times 2nd September 2023 wrote that 105 unjust convictions or sentences since 2020 were overturned after referral to her organisation. She observes that in 2022 1,424 applications were received.  One doesn`t have to be a statistician to come to some very uneasy conclusions from these numbers.  Either our justice system is so well run that there are is little likelihood of a miscarriage or that the whole process is geared to the denial of anything going wrong within it.  Of course there must be the caveat that many of the applications had and have little hope of progress for various reasons.  However there is a single fact that is uncontroversial; namely that since 2010 by design the justice system has been not just underfunded, but has been emasculated at each and every level from police officers on the beat upwards.  Once again as with the NHS it is only when scandals reach the eyes and ears of the public that a government, in office but powerless, takes note. Today`s scandal of the probable long known structural failings in school and public buildings is just another step on the stairway into a dark basement of despair for those whose faith in government competence and democratic politics has reached rock bottom. 

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.