SINGLE JUSTICE PROCEDURE//FAILURE OF THE MOJ AND MAGISTRATES ASSOCIATION

My post today is on a subject upon which I first commented 15th June 2016 and on which my last comment before today was 24th January 2023.  The subject is the Single Justice Procedure. The above comments and others can be viewed by writing Single Justice Procedure in search box.  The background will assist in realising that from the start this supposed "improvement" in dealing with simple summary matters was misconceived from the outset. 

This is a topic which to be fully understood requires perhaps more reading time than a blog post usually demands. Some of the posts revealed by "search" offer viewpoints from a variety of sources.  The Single Justice Procedure (SJP) was introduced by the Criminal Justice and Courts Act 2015 in England and Wales. The procedure was designed to be an accessible, speedy, effective and more efficient means of delivering justice when dealing with the most minor summary offences.  Until recently, with very few exceptions, there has been almost no criticism of the process.  The body that makes few attempts to truly represent its J.P. members; the Magistrates Association has, by and large, been silent on this issue since its inception.  That truly is unsurprising since many of its "guiding lights" see a gong on the horizon as a fitting tribute to toadying to government.  It has also helped that persistent posts by  Tristan Kirk [@kirkkorner] Courts correspondent for the Evening Standard and Penelope Gibbs [@PenelopeGibbs2] and [@transformjust1] have brought this legal anomaly to a wide audience through X.  Belatedly the M.A. have yesterday 25th March issued an opinion which for the sake of simplicity I have copied in full below but the original release is available for those who choose; here. 

The Single Justice Procedure—which handles around 40,000 criminal cases every month—needs reform if it is to be seen as fair and transparent, according to the Magistrates’ Association, the organisation that represents over 12,000 magistrates in England and Wales.

The Magistrates’ Association (MA) today published its new position on the Single Justice Procedure (SJP). This reflects hundreds of its members’ insights into hearing SJP cases over the last eight years since it was introduced and responds to recent interest from the media on the SJP’s impact on defendants, especially vulnerable and elderly people. It also includes 12 recommendations to improve the operation, transparency and fairness of the SJP.

The MA found that many of its members are uncomfortable with the SJP process as it currently works, and a significant proportion feel they do not always get as much time as they need to properly consider each case.

Although training on the SJP for magistrates is available, MA members feel that it is largely focused on how to use the system and does not emphasise that the SJP is a judicial process in which magistrates can exercise their discretion, as they do with cases heard in court.

Mark Beattie JP, National Chair of the Magistrates’ Association, said:

“We believe that the principle of the Single Justice Procedure is good. Every year it spares thousands of defendants the ordeal of having to attend court for minor offences, and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences.

“However, it is not a perfect system. While the vast majority of cases are handled effectively by the SJP, our members—magistrates who decide on SJP cases—have told us about flaws in the way it operates and the harm that this can have on some of society’s most vulnerable people. It is clear to us that reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure.

“This is why we have made a total of 12 recommendations today, to change the Single Justice Procedure and make it fairer, more consistent and more open.”

The Magistrates’ Association’s recommendations include:

Making it a requirement that prosecutors (the agency that is prosecuting someone, for example, TV Licensing or the DVLA) see all pleas and mitigations from defendants before the cases are heard by the magistrate.

Reviewing and improving the training that magistrates receive before they can sit on SJP cases. Training must emphasise the ability of magistrates to use their discretion fully and without reservation, including the ability to refer cases back to the prosecuting authority.

Safeguarding the SJP process so that neither magistrates nor their legal advisors feel any pressure to process cases more quickly than they want to.

The government should make provision for SJP sittings to be observable by accredited journalists.

Boosting transparency by publishing more data on the SJP, such as how many defendants plead guilty, how many make no pleas, and how many ask to come to court, nationally and broken down by region.

Undertaking research on how improvements can be made to the process for the vulnerable, including those with learning difficulties, communication challenges, or who may be less able to engage with the process.

Improving communication, through a review of the paperwork sent to defendants, to make it simpler and easier to understand.

My general comments are that whilst the above points have merit they are too little too late.  Over 3 million cases up to 2020  have gone through the procedure; one of the search revealed posts (6th July 2021) has exact numbers 2015-2020.  Between 1st April 2019 and 30th September 2023, 3,102,392 criminal cases were received into the Single Justice Service, which includes 609,164 receipts through the reformed digital service. Note the name change; a symptom of the MOJ in its various departments when it wishes to demonstrate "improvement".  The Magistrates Association claims that its members have spoken of flaws and where they have been disturbed by outcomes.  Yet for years it has been noticeably reticent about making waves where it should have: Petty France.   From the above the M.A. has perhaps unwittingly revealed its desire not to upset its governors.  Consider, "and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences."  It should not be for magistrates to be considering "use of court time" or "speedier justice".  The delivery of  Justice alone is what they are appointed for.  Managerial concepts are for others since magisterial courts committees were abolished by the MOJ over 20 years ago.  The M.A. refers to "training" which it implies could be improved.  Part of its remit as a charity is to provide training for magistrates. "reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure."

It should be questioned as to why, by this observation, its members [and nowhere near all J.P.s are members] are lacking in the ability or knowledge to function to a higher required standard.  A lack of accountability has been built into the system since its inception.  Those law makers and the M.A. should be answerable for the diliteriness in approving the legislation in the first place.  It was apparent from the start that the SJP was an affront to open justice.  The House of Common debate in which this whole fast forwarding of justice was discussed on 25th March 2014 is available here.  

The Magistrates Association is a registered charity governed by the rules of the Charity Commission for England and Wales on the website of which is written, 

"ROYAL CHARTER OF 12 NOVEMBER 1962 AS AMENDED 1 JANUARY 1971, 9 DECEMBER 1980, FEBRUARY 1995 AND 9 FEBRUARY 2005.

Charitable objects

THE OBJECTS FOR WHICH THE ASSOCIATION IS ESTABLISHED AND INCORPORATED ARE TO PROMOTE THE SOUND ADMINISTRATION OF THE LAW BY THE FOLLOWING MEANS: (A) EDUCATING AND INSTRUCTING MAGISTRATES AND OTHERS IN THE LAW, THE ADMINISTRATION OF JUSTICE, THE TREATMENT OF OFFENDERS AND THE BEST METHODS OF PREVENTING CRIME; AND (B) ISSUING PUBLICATIONS AND PROMOTING CONFERENCES AND DISCUSSIONS ON DEVELOPMENTS IN THE LAW AND THE ADMINISTRATION OF JUSTICE."  {my bold}

It would appear in my humble opinion that the M.A. has failed to live up to its own charitable objects.  

Readers will by now, I hope, have enough information from which they can make their own informed opinions. 

IS THE END NIGH FOR BRITISH JUSTICE?

Many will be no longer fascinated by the recent attempts by China, Japan, India, USA to land unmanned space vehicles on the moon. Perhaps those who were agog at watching live on TV the first time that human beings walked on the moon in July 1969 are now just passive observers to the many sociological and political changes that afflict the planet  and have changed the face of this country as much as any war might have done in decades past.  

With a general election expected before Christmas pollsters will be bombarding the media with the results and opinions of their paymasters on what is likely to influence the electorate in our individual voting decisions.  No doubt previous successes from before the age of Tik Tok  will be rehatched to reach a generation that was in short trousers when Labour ended its 13 year reign in the House of Commons.  “It's the economy stupid” was a phrase coined by James Carville in 1992 when he was advising Bill Clinton in his successful run for the White House.  Like the rotten boroughs of times past, by all accounts an extra £1,000 per annum in the pocket of Mr, Mrs or Ms average earner`s bank account will be enough to buy a vote.  The esoteric notions of foreign policy or mass hysteria over a foreign war are unlikely to be considered worthy of mention in any through the letterbox leaflets.  Unfortunately the deliberate break up of our once admired justice system will be similarly classified; not worthy of debate but arguably in its many forms just as likely to affect our lives as a penny on or off any taxable item.  

We all depend on the police.  Their popularity with the public seems to rise and fall like a child on a trampoline.  On one hand events of the years since the brutal murder of Sarah Everard have exposed that there aren`t just some misbegotten rotten apples but rotten barrels full of misbegotten rotten apples.  But on that other hand it is the police who stand between peace on the streets and anarchy.  When PC Paul Fisher was acquitted of dangerous driving in November last year four years after  he crashed on his way to the scene where Sudesh Amman had stabbed two people  there were some murmurings that he had "got off".  That he was on trial at all for attempting to save innocent lives seemed incongruous to many within and without the policing and legal professions.  His case seems to sum up the push me pull me of Dr Doolittle fame in our attitudes to policing.  

Whilst I was active the persistent shoplifters had a pseudo legal adornment to their propensity to steal; "prolific", the essence of which was that even when an individual case was of low value an offender with a history of dozens or perhaps hundreds of previous convictions was to be treated for the entirety of his convictions thus ensuring that the maximum sentence of six months immediate custody was available as a true reflection of his/her law breaking.  That was the theory but the practice was very different last year.  Recorded offences rose 25% but charges fell.  In the year ending 30/6/23 police recorded 365,164 shoplifting offences but only around 12% of suspects were charged.  In the year before Covid almost 19% of suspects were charged. This decline is just a symptom of failures for more serious matters.  If the government proceeds with its stated intention to remove custodial sentences from the arsenal of disposals at magistrates courts one can expect an exponential rise in theft from shops and an increasing number of stores having security guards  inside and outside their premises as in most large retail premises in America. 

 Knife possession and knife crime have both increased and despite the wooly words of Justice Secretaries since 2010 the proportion of knife offences resulting in a suspended sentence has increased by almost 100% to the end of September 2023 resulting in almost a quarter of such offenders avoiding prison.  Further statistics show that even for repeat knife offenders in the same period 40% were not sentenced to immediate custody despite legislation that instructed judges to do just that.  

Between 2017 and 2021 more than 35,000 of the 142,275 motorists who totted up 12 points avoided being banned due to claiming 'exceptional hardship'. From my own personal knowledge and experience [posted here many times and available using the search box]  magistrates are too quick to offer relief to drivers with 12 or more penalty points.  A Google search shows that hundreds of solicitors are advertising their expertise in arguing successfully for "exceptional hardship".  Their lucrative income stream and magistrates misplaced sympathies must surely come under scrutiny by a future Justice Secretary and be formalised.  

And so to our judges who can be castigated for speaking out of turn but can be incompetent in their sentencing without retribution unless the case is particularly a high profile one attracting photogenic witnesses, available finance or public relations experts and sometimes all three.  In the last 20 years prolific offenders represented nearly half of all convictions; 243,000 people aged over 21 with at least 16 convictions or cautions. In 2022 hyper prolific offenders with 45 or more convictions or cautions offended almost 10,000 times and were subject to non custodial sentences 53% of occasions.  

Hundreds of judicial decisions in sentencing miscreants, which have been made according to the Sentencing Guidelines, have been tossed aside.  Known only to individual judges offenders who should be in jail are walking the streets because the MOJ has instructed the judiciary to use non custodial outcomes because the prison population is at breaking point.  Recent police and judicial decisions regarding the treatment of those who openly spout religious hate in their marches for so called Palestinian freedom from "the river to the sea" are bringing this government to a point of no return in the interface between anarchy and democracy.  Simple but deep philosophical questions on the freedom of judges` sentencing options, jurors` rights to bring in "perverse" verdicts, police interpretations of the law in conflict with parliament`s interpretation of said law, prison governors` and parole boards` decisions in overriding original sentencing decisions and many other policies and decisions below the public horizon are about to be tested. MOJ spending figures show a planned 4.8% cut in operational spending on justice to £10bn in 2024/25 from £10.5bn in 2023/24.  Russian oligarchs, their estranged wives, Arab property developers, disgruntled media stars and others similar might consider London the best place to spend their favoured currency on their favourite high priced KCs but for Josephine Bloggs alighting from the Clapham all electric omnibus needing help on a dark winter night as she walks home the legal future is bleak.  Is the end nigh for British justice? Can somebody help?

MACRO MICRO AND THE LEGAL ROOST

The word macro describes something that is very large or something that is related to things that are large in size or scope. Macro is also used as a combining form meaning “large” or “great.” The word micro describes something that is very small or something related to things that are small in size or scope.  Both terms are often used in academic studies.  As with many commenters on myriad topics this blogger has, consciously or unconsciously, pontificated from both aspects at any one time.  The more distant the time when being active in the middle chair was laterally almost a weekly occurrence the more perhaps a macro or overview of magistrates courts and their inner workings appeared here. Sometimes reports of actual courts` proceedings or activities can and should bring a sudden state of the here and now into any esoteric commentary.  Three such matters have today caught my attention persuading me to turn from the macro to a micro view of the workings of magistrates courts every day at every court. 

Perhaps the most complicated cases I can recall were those brought by a local authority against those who had ignored or in some other ways had failed to comply with enforcement notices often under under section 179(2) of the Town and Country Planning Act 1990.  I distinctly remember an offender represented by a then QC telling me as the presiding magistrate that the bench would not be capable of understanding his client`s complex arguments and that we should adjourn to a date for the matter to be heard by a District judge(MC).  We gave him a polite response noting his objection and invited the prosecutor to proceed.  In another similar situation the prosecuting solicitor for the local authority presented a bundle he was relying upon and, as he thought helpfully, argued that we need read only some specified two dozen of more than 200 pages. We retired to read the whole bundle.  A further case where the claim was for £22,000 had the offender who had pleaded poverty in his personally delivered mitigation writing a cheque for the full amount on his guilt being established.  There were many offenders who had to be threatened with contempt for refusing or delaying the court`s requirement for audited accounts to be presented by a future court date.  And so it was with interest that I noticed this report by Camden Council in London where justice was certainly seen to be done. 

Fly tipping has, over the decades, slowly crept up the ladder of environmental offending.  Whereas it had been in the post war years an "annoying" offence it`s now on a par with some offences causing bodily harm.  The seriousness of such offending can be gauged by the Sentencing Guidelines.  Once again on a personal level if memory serves correctly my bench fined a sole trader of a fly tipper around £20,000 for what the offender considered just "a few bits and pieces" he`d dumped at the side of a quiet street. It was interesting to note that a fly tipping offender was subject to a six weeks custody order but owing to current politics it was suspended.  With government having given notice that magistrates courts will soon be unable to impose any custodial terms immediate or suspended there is going to be a huge ill considered gap in the justice system.  I suppose when a government in power for 14 years does not provide enough prisons or prison cells to house offenders in a humane manner nor provides sufficient trained staff both in the prison service and probation to oversee sentencing and sentences there is little surprise of chickens coming home to roost.

I cannot recollect having a police officer in the dock throughout my time on the bench although there were not a few who committed perjury from the witness box with a straight face.  On consideration I assume that in today`s world things would be different for colleagues.  The current climate certainly gives one hope that, without prejudice, erring officers are more likely than in past years to face justice for offending. Last week Swansea Magistrates Court saw a serving police officer appear on a charge of sexual assault by penetration.  What is interesting is the statement of Nathan Adams, criminal lawyer at Reeds Solicitors in Cardiff.  It can be found along with a statement by Senior Investigating officer Detective Superintendent Huw Davies here. 

Criminal offending affects real people on both sides of the legal divide. Sometimes the judgements, emotional, theoretical, intellectual and judicial are based, notwithstanding the tome that is the Sentencing Guidelines, at a macro level.  There can be no confidence in a judicial system where consideration at the micro level is overlooked and unfortunately that is what has happened over the last few years and is, in my humble opinion, likely to continue whatever party is ruling that legal roost this time next year.  

JUSTICE IN THE SHADOWS

At the turn of the century if one turned on the TV to watch a police or crime thriller it was almost certainly a work of fiction.  Over the next few years TV executives and writers began exploring the possibilities of a sub genre; mockumentaries and "reality" programming centred around routine police work and true life investigations.  Fast forward to present day and all manner of true crime is reflected on our screens from static traffic cams, motorway patrols to historical investigations of gruesome murders from initial crimes to eventual outcome for offenders.  Perhaps that format has outlived its popularity for some but with an ever expanding supply of visual media to be available for an insatiable viewing public demand must be satisfied.

This blog has long advocated and predicted that live court TV will eventually be sanctioned in this country and probably from magistrates courts locally funded with national control on advertising policy. That is the future but the live televising of a court was initiated  in September 2015   when STV became the first broadcaster to televise a Scottish court case live and in full. Four cameras were used in court one of the Court of Session in Edinburgh to cover a two-day Election Court case involving Alistair Carmichael. Four constituents were seeking to have Carmichael deselected as an MP after he leaked a memo in April to The Daily Telegraph which suggested that Scottish First Minister Nicola Sturgeon had told the French Ambassador she would prefer David Cameron to remain prime minister. 

On July 28th 2022 for the very first time a Crown Court judge`s sentencing remarks were televised live.  Her Honour Judge Sarah Munro QC in sentencing 25 year old Ben Oliver for the manslaughter of his grandfather said, "Time spent in remand would be deducted, resulting in a term of nine years and 63 days.  Once you have served that term, you will be entitled to apply for parole. However, you will not be released by the Parole Board unless they conclude you no longer pose a risk to the public. If you are released, you will remain on licence for the rest of your life."  And the pattern was set.  Since then broadcasters have filmed the sentencing of 33 offenders including Thomas Cashman and Wayne Couzens.  

February 26th was arguably the date on which another legal taboo was breached.  It was the broadcasting by ITV of the first of two hour long episodes concerning the killing of his wife by British Airways pilot Robert Brown.  Some distressing footage was shown including some of  Brown`s police interviews.  He was found not guilty of murder but was sentenced to 24 years custody for his admission of manslaughter. The programme appeared to have been inspired by pressure from the deceased`s mother and friends when they were informed that Brown was due to be released under license having almost served half his sentence.  Pertinent sections were portrayed  by actors from the trial transcript.  Understandably the programmes ended with observations by Brown`s lawyers that he was fairly cleared of murder by the jury according to the evidence and is entitled to fair treatment under the law including eligibility for parole.  The images of the jurors reacting with sorrow or perhaps disbelief at the judge`s remarks presumably based on eye witness accounts when he explained the unusually harsh manslaughter sentence were  certainly designed to show that with some of them there was a realisation that they had reached a perverse verdict.  As is his prerogative the Lord Chancellor blocked his release on license; a very unusual decision.  The matter will now go forward to a hearing of the Parole Board.  It is interesting to note below an extract of  a letter of 1st December 2023

 Letter from the Minister of State for Justice

The Government has also introduced amendments to the proposed reforms of the Parole Board, as well as changes to the creation of the Independent Public Advocate. The Government’s latest proposals reflect the concerns raised by the Chair of the Justice Committee in a letter to the Lord Chancellor on 7 June 2023.

On Parole, the Government’s initial plans would have allowed the Lord Chancellor to “call in” Parole Board decisions to release certain prisoners. The Committee said: “We cannot understand how a Secretary of State sitting in Whitehall can be better placed to make a release decision than the Parole Board which has had the opportunity to hear evidence from the prisoner first-hand.” The Government has now dropped this plan, and instead proposes to introduce a power to allow the Lord Chancellor to refer a certain release decision to the Upper Tribunal or the High Court.

Sentencing for serious criminality is apparently now a major attraction for broadcasters.  When such sentencing seems out of kilter with public perceptions especially in the most awful murder cases and/or bereaved families are particularly articulate or photogenic all pressures to pursue the victims` families` complaints are likely to be met with some sympathy by TV media with half an eye on their ability to attract audiences in this country and abroad.  I would opine that the outcome of the heinous murder of three people last year in Nottingham, when the judge accepting expert evidence that the accused Valdo Calocane would  be detained in a high-security hospital following his sentencing at Nottingham Crown Court, will be high on a list of suitable cases to be considered for in depth TV analysis.  Once again a sentencer`s sentencing remarks have provoked profound dismay within and without the legal fraternity insofar as he remarked that Calocane is likely never to be released, so that he can receive treatment for paranoid schizophrenia – a mental illness that can be “mitigated” with treatment but not cured. Judge Mr Justice Turner added he was satisfied Calocane would not have committed his “appalling” crimes had he not been suffering from the illness."

It is unlikely that the aforesaid decisions by judges have gone unnoticed by the policy wonks at the MOJ however with an impending general election affecting almost everything coming from government sources it will almost certainly be the next government which faces the reality that justice cannot be kept in the shadows from a wider audience for much longer.  The only caveat I can envisage is that by hurriedly exploiting a much tougher law `n order policy Tories would hope that their traditional voters will be less likely to abstain. 

SWEEPING JUSTICE UNDER THE TORY CARPET

 

There are many reasons why some populations can be considered "patriotic" or unified and others less so. Climate change, external threats, political gerrymandering, immigration and in current terms unseen infiltration by aggressive AI from known or unknown sources.  Governments are elected to predict, control and counter where and when possible threats from the above sources and others.  Common to most political regimes are justice systems which vary in quality from totalitarian (virtually non existent and which Russia is a prime example) to "progressive" where excessive zeal has created a virtual free for all which is the basis of the democratic system`s near breakdown in Israel with consequences for all its citizens.  

In between is U.K. where pride in a justice system has been broadcast loud and proud for a century or more.  Not any more: this century has seen belief within and without the legal and associated professions diminish when the ability of many to access the justice system has been deliberately constrained by the imposition of costs for not just those of low income but also for many middle income earners in both criminal and civil courts.  There is however another factor at one time reluctantly accepted as a necessity of government which pervades the justice system; secrecy.  Appointments to the higher ranks of the bar and to the judiciary at all levels were carried out by whispers in cloisters or smoke filled rooms.  Some of the more atrocious activities have had light shone upon them but many remain.  By their very nature they resist exposure but events sometimes cast a fleeting glow on what governments are trying to avoid.

One such event was the verdict and sentencing of three terrorist supporters at a recent march supposedly in sympathy with Gazans and their terrorist overlords Hamas.  Earlier this month a senior district judge (MC) with sentencing options of six months custody allowed the offenders to walk out of court with a conditional discharge, the lowest but one non financial  sentence available to him.  However reporters digging for details, as is their prerogative, discovered that this judge had shown sympathy in social media with those who had accused Israel of terrorism against Palestinians;  similar sympathies of which the trio had been found guilty.  In addition this judge was no ordinary district judge. Tanweer Ikram in 2017was appointed Deputy Senior District Judge (Chief Magistrate).  To add to that Tanweer was appointed to the Judicial Appointments Commission  as a Judicial Commissioner for a term of three years from 14 December 2023.

Now from the viewpoint of that person on the Clapham omnibus comes the  non activity of  those who are supposed to expose questionable or ill advised judicial actions.  None of the bodies which has powers of oversight has chosen to use those powers to determine whether there was bias in Tanweer`s sentencing of those offenders. The Evening Standard has published a fair account of the situation thus far.  It would appear that having been promoted in December those in an oversight role of the judiciary have decided to close ranks fearing ridicule of their protégée. In other words they hope this case of disgraceful judicial bias  will fade away from the public mind to be replaced by positive headlines for a government desperately trying to convince us that it should be re-elected. 

It seems that a political lesson from times long gone have been forgotten; it`s the cover up wot got `em.  In the modern era from Richard Nixon onwards trying to hide scandal under a bush is a sure way to exposure.  Apart perhaps from the military and all that that word entails our justice system still reacts as if it indeed is a law unto itself from dealings with lowly magistrates to those at the top of the tree.  Secrecy is the bedfellow of demagogues and for those aspiring to such exalted position.  I hope we will soon hear more about this discredited judicial office holder.  The Tory carpet cannot have room for much more to be swept under it.  

MUSLIM JUDGES AND THE DEMOCRATIC PARADOX

With a general election on the horizon there is much media comment on how a divided political party is a turn off for voters. But what has faded into the political background is that His Majesty`s Loyal Opposition; the Labour Party, is itself still divided over an apparent acceptance of antisemitism in its ranks depending on who are labelled as such and those who at heart are still Remainers.  Although the issues are not as stark or as many as in USA this country is exhibiting bitter divisions over weekly marches by groups using Palestinian sympathises  as a cloak for hatred of all Jews not just the 7 million residing in Israel.   

The history of nations where there is unreconciled division is ominous.  The French Revolution of 1789 was followed by a disastrous European war until the defeat of Napoleon in 1815.  Subsequent to the American Revolution in 1776 those who were on the side of Great Britain and remained unreconciled to being subjects of the new United States fled to Canada the first use of which as an official name came in 1791 when the Province of Quebec was divided into the colonies of Upper Canada and Lower Canada. In 1841 the two colonies were united under one name; the Province of Canada.  The American Civil War literally almost divided the new nation until the Union success of 1865. Millions were killed in post 1917 Russia following revolutions and the subsequent civil war.  Post the Great War Ireland had its own civil war between unreconciled political parties and unremitting antagonism between fascists and communists was played out in the Spanish Civil War.

Whilst 2024 is not exhibiting the first symptoms of violent disorder in the UK the history of these islands has demonstrated all the signs that have preceded our current state: civil war in the 1400s AKA the Wars of the Roses, actual civil war  1642-51 and the final defeat of the Jacobites and the threat of a Catholic monarch in 1746.  

The social divide over Brexit in 2016 subsequent to the ouvert division in Scotland from the 2014 referendum, the opposition to the Covid 19 shutdown and the increasing threat from Islamist extremists shouting very loudly over the silence of many of their co-religionists is provoking verbal, literal and political opposition verging on violent threats in some quarters.  The failure, apparent or otherwise, of political and police authorities to contain current examples of an unholy trinity of Palestinian sympathisers, marxists and fascists on the streets of London and other cities weekly since October 7th should be provoking anxiety in 10 Downing Street.  The influence on events of the Secretary of State for Justice is an unknown factor.  However when activities of those who seek to force their opinions on others by tactics of obstruction in some way or other the dirty washing on the clothes line of justice is there for all to see. 

One cannot complete a form for many occasions or applications of one sort or another some voluntarily, some essential without it seems ticking boxes to describe all or some of one`s ethnicity, sexuality, gender, skin description, heritage, education etc etc etc. France, officially a Catholic nation, on the other hand has been deaf, dumb and blind to such intrusions on privacy since 1972. Since 2004 there has been a ban in public schools of wearing religious symbols; hijabs, kippa and crucifixes. There is an estimated Muslim population of 7%-9% mainly from 1950s and 60s immigration from Algeria, Morocco and Tunisia. This Muslim minority, increasing annually, is likely to be a large factor in the next French presidential election. 

In the Uk over the last 30 years we have had our own share of Islamist violence.  We also have our own share of Islamist judges and magistrates in our courts, numbers unknown, sitting in judgement on those whose views they might share when it comes to public disorder.  Indeed despite the authorities knowing almost how many hairs are on the heads of magistrates the number of Muslim magistrates is unknown. According to the Office of Judicial Statistics they do not currently publish these figures in their annual Judicial Diversity report.  The Judicial Office who are the data owners have offered the following statement:- 

Magistrates can provide information on their religious affiliations. However, disclosure of this information is optional and therefore Magistrates may choose not to disclose this information. As a result, the information held on the religious affiliations of Magistrates at this time is not of suitable robustness (i.e. the declaration rate is too low) to be published publicly, as doing so may lead to inaccurate and misleading interpretations being made.

And so to last week when Heba Alhayek, 29; Pauline Ankunda, 26; and Noimutu Olayinka Taiwo, 27; were found guilty of a terror offence in the wake of the incident at a pro-Palestinian march in central London a week after Hamas militants entered Israel.  Deputy Senior District Judge Tan Ikram said he had decided their lesson had been “well learned” and he did not intend to punish them sentencing them to effectively a slap on the wrist; a conditional discharge.  This blogger and many legal bigwigs have indicated their outrage and demanded appropriate intervention to make the punishment fit the crime. My point today, belatedly perhaps, is how many sentences on similar offending are being conditioned by magistrates whose public profiles are by far and away below the horizon of public and media scrutiny?  When the scrutiny of Advisory Committees who select magistrates is deep enough to view the proverbial angel on the proverbial pinhead why is religious or non religious affiliation not a compulsory feature for every aspiring Justice of the Peace?  My own opinion is that it`s a case of the three monkeys; the MOJ doesn`t want to hear, see or speak the answers or the numbers for the simple reason they would, perhaps by pressure, have to publish those very numbers and they`re fearful of what these numbers would reveal especially in areas where Muslims constitute a quarter or more of the population. 

Our nation has a history of peaceful protest protected by law.  The political convolutions over the last decade have proved that existing law is strained to breaking point. Almost daily institutions and private and company premises are being invaded with criminal damage caused, lives are being seriously disrupted by obstructive tactics, weekly demonstrations have led to under policed and under contained public disorder and Jewish citizens have undergone record numbers of occasions of direct antisemitism including children at school.  

There comes a time when a democracy must consider apparent undemocratic actions to preserve that very democracy. Such an occasion is described as the Democratic Paradox. Recognising the situation unchanged an early question for the next government is firstly to admit its reality and secondly when or if to apply a remedy and finally to justify and select an appropriate redress.  Failure will be a catastrophe. 

 

IS THIS REALITY?

 It`s now two weeks since I underwent major surgery.  Having had anaesthesia problems as a young man when I underwent elective surgery I was very careful and fortunate enough to be able to select not only my surgeon but also the consultant anaesthetist who worked alongside him.  Whilst the operation was successful I later learned that owing to unforeseen complications chemical anaesthesia was not possible even partially and I underwent full blown gaseous  anaesthesia.  Common sedative agents used during rapid sequence intubation include etomidate, ketamine, and propofol. Commonly used neuromuscular blocking agents are succinylcholine and rocuronium. Certain induction agents and paralytic drugs may be more beneficial than others in certain clinical situations. CW my anaesthetist was long gone when I awoke a surprisingly long time after schedule according to my surgeon. But what I do remember and committed to my diary of these events were my first words to the recovery nurse, " Is this reality?".  Indeed I repeated the same question three times.  I felt like Rip Van Winkle on magic mushrooms.  It was a further day or so into my recovery programme that it dawned on me that when I compare my first experiences of being inside our justice system in 1998 with the current situation I could also remark; "is this reality"?

Of these 26 years 14 were were overseen by Tory governments.  The coalition years will fade into the ether as rightly they should.  That first Conservative Secretary of State for Justice Kenneth Clarke proudly announcing his support for austerity commented that he was the first around the Cabinet table to implement budget cuts; in his manor 23.8%.  Oh how they drooled. Others soon followed with police numbers being reduced by 20,000, prison officer numbers being cut, the probation service being decimated and secret magistrates courts taking on a million + cases annually under the cloaking device AKA as Single Justice Procedure.  Notwithstanding that all this was in the public domain being excused by government rhetoric daily that would have had Cicero cutting his own throat years before  "together with his son, his brother, and his brother's son and all his household, his faction, and his friends" (Appian, Civil Wars, IV.19.1). Cicero was killed on December 7, 43 BC, aged sixty-three, his head and hands (having penned the Philippics) hacked off."  For even the most miserable, incompetent, arrogant Justice Secretary this nation has ever endured Chris (failing) Grayling [2016-19] who took the probation service into penury and disarray  resignation was not even a footnote in his diary.  Throughout 14 years of incompetence half the courts of England and Wales were closed and even with that process which continues the cry of "local justice" and "diversity" scream from the depths of Petty France where woke reigns supreme.  His Majesty`s Courts and Tribunal Service now has the publishing rights for several areas where local court reporting has become part of local history.  So we cannot be certain that what`s being published in local media reflects the reality of court happenings in local areas.  In the last two years magistrates courts` sentencing powers have been increased to 12 months custody from the previous 6 months and reduced again to 6 months.  Notwithstanding those decisions there is current parliamentary process in action to remove custody as an option altogether.  But here`s the rub; owing to the inaction or inability of the Metropolitan Police to curb disorder occurring in so many  so called "marches for Palestine"  in future protesters who climb on to war memorials could face up to three months in jail under new laws put forward by the government. Security minister Tom Tugendhat told MPs people who scaled national monuments could also be fined £1,000.  Apparently the irresistible force of no more jail available to the lower court will meet the immoveable object of a 3 month jail sentence for those guilty of breaching the new proposed legislation.  That means that those cases will be added to the lists of crown courts where some matters are estimated to be heard not sooner than two years from now. 

The unbelievable incompetence of those aforementioned inhabitants of Petty France added to the equally do lally knuckle dragging grunters of the Home Office has resulted in our prisons being unable to accommodate all those who should lawfully, morally and societally be there.  The scandal and it`s nothing less than a scandal, of "suspended sentences " will continue and indeed accelerate.  If there is one factor above the reducing numbers of lawyers undertaking uneconomic legal aid work in and out of the courtroom to the detriment of low income defendants it`s the release of prisoners when they have completed only a half of their supposed well rehearsed and logically deduced sentences whether or not they deserve such beneficial treatment. The list of failings and incompetence goes on but this is a blog post, not a treatise or novella. 

Perhaps my Rip Van Winkle could have met the Sleeping Princess and seen the world through her eyes without a frog in sight.  Perhaps we can elect some politicians who are of A Level quality in place of the GCSE failures who are leading us into penury and misery down almost every political avenue we have to navigate for the next decade.  Perhaps we can be under a general anaesthetic until then and upon awakening wonder in awe; "is this reality"?

NO LONGER SEEN OR HEARD

During my first few years on the bench as a winger it became apparent to me that the chairman, or to use current nomenclature, the presiding  justice fitted clearly into two classes; those competent in dealing with the duty to run the court in both an orderly and lawfully correct fashion  and those who could not.  There was no middle way.  I also noticed that those who failed to meet my expectations failed on both hurdles.  Although from the beginning lay magistrates were and are schooled in the mantra that legal advisors advise on the law it was obvious to this newbie that colleagues who had knowledge skilled themselves in such basic offences considered at magistrates courts e.g. the law on bladed articles  or the criteria of exceptional hardship also seemed to have an inert ability to deal with the efficient direction of the court with regard to ensuring that in the widest possible sense justice was not only done it was seen to be done.  When I became qualified to sit in the middle chair I continued to have on the bench my personal folder of topics carefully annotated to provide instant reference when needed in order that I might stay one step ahead of our legal advisor if possible.  This practice was apparently strictly forbidden but nobody ever told me to my face.  What it did was to allow me to manage the court as efficiently as possible without having to refer to the legal advisor unless I considered it necessary. I would imagine that currently I would be chastised by over zealous and arse licking colleagues seeking brownie points from the Deputy Justices Clerk.  

Having made my position clear as above I read with disdain of the sheer incompetence of a magistrate.  There is a well written but second hand report here of the failure of an unknown magistrate probably based in Wiltshire  to comply with the law relating to a S.45 notice on reporting restrictions the full guidance on which is available here.  Although the magistrate`s name in question would have been published outside the courtroom like so much else in the courts system s/he remains an unknown figure.  

Considering the personnel changes within the magistracy since 2010 it`s not unlikely that many more JPs than expected, with limited experience, have been catapulted into the senior position with fewer capabilities than previously when DJCs could to some extent pick and choose who to promote. The current tick box process as in so many other factors of our society is not the best way to choose a candidate.  

One aspect of this whole episode has come to light and it`s not a pleasant thought as far as this blogger is concerned.  The website reported above Wiltshire 999S  does not feature the report.  It also seems to have been deleted from X [Twitter].  If this is self censorship by a well known news reporter or his bosses it is worrying.  If they have been pressurised by powers that be it is a matter of great concern to those of us who consider that our courts are being subjected to ever increasing government control.  Those who follow current legal events especially the situation re postmasters` scandal will no doubt have their own opinions. 

Finally I have to report that owing to my imminent need for elective surgery this blog will be silent for the next couple of weeks or so. 

SEX ON THE BENCH

 

    

During my time on the bench I had a position on our Rota Committee.  In those days the committee had an overview of each court`s composition produced by an early computerised data base overseen by an experienced court officer and finalised by the bench Rota Committee.  That method followed the guidelines at the time and the oversight my colleagues and I performed ensured that anomalies of any sort were avoided. 

The topic appeared  on the now long defunct forum of the Magistrates` Association insofar as it pertained to the question of whether or not there was guidance on the issue of same sex benches in the adult court or perhaps as one wag put it, “same gender benches”: a comment that perhaps would now produce the wrath of God or the J.C.I.O. upon the "offender". My bench was split about 50/50 on sex………..I will resist a temptation to go slightly off topic…………so mathematically a random approach to the rota which we employed would usually produce MFM or FMF. MMM or FFF was generally the exception. In addition in a highly mixed ethnically diverse area reflected in a correspondingly higher ethnic mix on the bench as a whole race and religion produced more diverse benches than sex alone. As far as I was aware any composition of J.P.s on a bench would effect justice on any matter before it. There was no guidance. The good sense of all ensured it was not required.

PUBLIC DISSENTING OPINION OK FOR SUPREME COURT BUT NOT FOR MAGISTRATES

It would be presumptuous to say that everyone has now at least a passing acquaintance with the Post Office scandal but for those involved in criminal law there are probably subtle signals that what was known by professionals is gradually becoming if not public knowledge then certainly a situation which has been to a lesser extent part of the civil justice system for many years.  

In the magistrates courts where reputations might be at stake miscarriages of justice are unlikely to make headlines.  For the uninitiated a bench is usually composed of three magistrates although currently only two person benches seem to be more frequent in recent years.  To bring a guilty verdict  (on a full bench) a majority must find the prosecution case proved beyond a reasonable doubt but when that is announced in open court there is no acknowledgement that one magistrate might have come to a different conclusion.  Surely then it is logical to consider that the bench as a whole unit had that reasonable doubt.  A single District Judge (MC) has only his or her own conscience  to which to answer.  

My own practice after pronouncing a finding of guilt was to advise the offender of the process of appeal.  When the verdict was split perhaps I put more emphasis on the detailed manner to go about that appeal.  I was unable when I was active and am of the same opinion now as to why a split verdict, at least of guilt, cannot be made publicly.  When crown court judges were allowed to accept majority verdicts of 10:2 in 1967 there was general agreement in parliament and legal circles that it was of benefit to the concept of justice not only being done but being seen to be done.  It seems illogical that the lower court does not follow the example of the higher court. Even the Supreme Court allows for a dissenting opinion.  An interesting essay on this topic can be accessed here.  

Current numbers suggest that there were around 5,000 appeals from magistrates courts to the crown court where a judge sits with two magistrates for a re- hearing.  The percentage rates of success on appeal were 30% for conviction appeals and nearly 68% for sentence appeals. It seems that the MOJ no longer supplies detailed statistics on such appeals.  All this is rather confusing.  The latest verified statistics I can find are below:-

Whatever the actual numbers are the principle of dissent should be applied to magistrates courts.  There is no justifiable reason to oppose that except for the law for the ordinary citizen to be an increasingly tick box exercise which is a lot cheaper for government than the facade that justice is available for all. 

2024 MORE OF THE SAME OR WORSE TO COME?

In this, my first post of a new year, it would be gratifying to have been able to look back on 2023 with the faint hope that  improvements or increased efficiency within the justice system particularly re magistrates courts were just an early sign of better things to expect in 2024.  Alas great expectations remain just that. 

14years ago I mused that magistrates and their powers in their then current form would be on the road to extinction.  That they`re still here, is for some, a disappointment especially amongst the fraternity of criminal lawyers; an ever diminishing band of legal brothers.  Considering the havoc brought about by the musical chairs being played about at Petty France and especially the incompetence of that address`s most abject failure "Failing Grayling"  it might occur to many that we`re fortunate that the magistrates courts system is still functioning at all with half the number of courts cf 2010 and one third the number of magistrates owing to various bad planning decisions or indecisions since then. An example from 2016 on the thinking behind court closures can be read in this paper; Response to the proposal on the provision of court etc

The June 2019 report House of Commons Justice Committee "The role of the magistracy: follow-up"  did not exactly endorse the previous nine years of a cataclysmic mismanagement by the MOJ. 

 Judging by retirements and recruitment figures it seems reasonable to deduce that around one third of magistrates have less than five years experience and that the personal, academic and employment profiles of magistrates have changed considerably since my appointment.  The result is that few benches have many members who were sitting when their courts were semi independent of government and a certain free thinking was the order of the day.  So called post code sentencing lottery by local magistrates has been abandoned for the algorithmic  Sentencing Guidelines which appear to be but a stepping stone to "the computer says "X"  when sentence is determined.  

The last year has seen sentencing maximum of six months increased to 12 months and reduced again to six months.  The next few months will herald another fundamental change when magistrates courts will no longer have the option of any custodial sentence for offenders who appear before them.  I would imagine that District Judges(MC) who increasingly take a greater proportion of what are termed "high profile" cases will have their noses out of joint.  Prison overcrowding and severe court backlogs have meant that the judicial tail is wagging the judicial dog.  In Scotland by comparison with its long established independent justice system Justices of the Peace powers of punishment are limited to 60 days' imprisonment or a fine of up to £2,500 or both.  With such changes in England and Wales unimaginable even a year ago who`s to say that somewhere in the bowels of Petty France locked in a secure cabinet there is not a Green Paper with government thinking on reducing further the punishment levels open to magistrates and reintroducing custodial sentences in the future with the proviso that only salaried District Judges will in future be able to impose them.  

My opinion as written above has not changed; only the time frame has changed. 

LAW AND POLITICS IS LIKE WATER

We have all been led to believe that the British system of trial by jury is a wonderful example of justice being blind and all are equal before the law.  All are blind who continue to believe that.  It was only a century ago that an Appeal Court was incorporated into the system to counter miscarriages of justice and half a century ago that hanging was abolished.  As we are all too aware these modifications  were leisurely in coming into being and were not universally welcomed by vociferous if small minorities.  Miscarriages of justice still occur.  The Criminal Cases Review Commission has published its latest statistics:-   

Referrals and decisions (April 1997 – October 2023)
826 cases referred to appeal courts
803 appeals heard by the courts
566 successful appeals
222 decisions upheld
15 abandoned by applicant

These matters would have been heard originally by a jury in the crown court.  Prior to their retirement to consider their verdict the jury would have been advised that they must come to a verdict based only on the evidence presented to them; a simple enough instruction on the face of it but one in which the words of the judge have in recent cases been stretched to breaking point. The departure from decades of almost total compliance with such judicial direction became aware to the public by “the Colston Four”. In 2020 four defendants  all admitted to taking an active part in removing Edward Colston’s statue and disposing of it in Bristol Harbour as the prosecution had alleged. Their defence to the charge lay in why the statue had been removed.  Colston was a slave trader who invested heavily in his native city. They were cleared of criminal damage. Last month nine climate change protesters were cleared  of causing £500,000 worth of criminal damage to the windows at the headquarters of HSBC bank in London. They were acting under the name of Extinction Rebellion.  Sally Hobson, prosecuting, said: “They accept that on 22 April 2021, they went to the HSBC building armed with hammers and chisels and they also accept that they used those tools to break the windows – they were responsible for the damage. “The value of the damage caused is in the region of £500,000 and additional security measures caused further expenditure so as to ensure damage was not caused again.  “Although the defendants accept they caused the damage, they deny that their actions amount to criminal conduct. Simply put, the damage was caused during a protest and the defendants say that they were lawfully justified in doing what they did.  “We say that whatever the purpose behind them causing the damage there was no lawful excuse for doing so. It was, we say, unlawful conduct outside of a lawful protest.”  Criminal damage is lawful if the defendant believes the owner of the property consents to the damage (as found in section 2 of the Criminal Damage Act 1970).  

There have been other similar cases.  In 1982 Clive Ponting was acquitted of breaching the Official Secrets Act despite admitting to leaking documents relating to the sinking of the Belgrano during the Falklands War. The judge directed the jury that Ponting’s duty lay to the civil service and that he had no viable defence.  In 2007, Toby Olditch and Philip Pritchard were acquitted of sabotaging US bombers at the outset of the Iraq war. The defendants suggested that the bombers would have been used to commit war crimes. 

Lords Devlin and Thomas in 1956 and 2011 respectively agreed that even when the evidence is overwhelmingly to convict, the law does not prevent juries from returning a perverse verdict. The Bar`s code of conduct does not allow a barrister to inform jurors of their right should they so wish to bring in a perverse verdict; it would constitute misconduct.  The logical conclusion is that a defendant in such circumstances in order to follow the examples of Ponting or the Colston four in arguing from that angle would have to be self representing.  That conclusion itself is somewhat paradoxical or Kafkaesque.  

There are some learned professors of law who argue that juries should have the right to hear arguments of perversity and not to be directed that only evidence presented in court should be considered in their coming to a verdict.  From my lowly position as a retired magistrate it`s my view that that argument would lead to not only more perverse verdicts but politically motivated verdicts examples of which are current offences against British companies or subsidiaries of Israeli companies on the pretext that they are acting against Palestinian interests.  

Law and politics are essential to our way of life.  Like water we cannot survive without them in combination but also like water too much can kill us. It`s also the case when the H is separated from the O2 the situation is combustible.  

It`s that time of the year again when a spurious date approximating to the winter solstice was allocated to the birth of a Jewish boy in Bethlehem, a village in Judea an area which is unfortunately less peaceful than it could be.  Nevertheless the message is clear: goodwill to you all and thank you for spending a few of your valuable minutes reading this and perhaps some previous offerings on this site.  

 

CRIMINAL BEHAVIOUR ORDER OR SOCIAL INNOVATION

 "Keep the bastards out of prison". It`s not too difficult to imagine that directive being given from one senior civil servant at the MOJ to his/her assistant. What might be surprising to many is that that conversation would have taken place in 2012 or 2013. By that time the original supposed deterrent to antisocial behaviour was ASBO; antisocial behaviour order beloved by prison governors because it reduced the tendency of having to allow for ever increasing numbers of miscreants being subjected to short custodial sentences in their already crowded prisons.  It was "sold" to magistrates and local councils as a method by which local nuisances both in noise and behaviour by local hooligans which might fall short of actual criminal behaviour could be contained without the high bar of trial and beyond reasonable doubt to prove guilt and local witnesses or council officers being able to submit anonymous statements.  

I suppose all that began with a new Tory government in place not long after the 1979 election. Home Secretary William Whitelaw had announced he was going full steam ahead on a key manifesto promise – the Short Sharp Shock. To a euphoric Tory party conference in October 1979, the urbane and aristocratic Whitelaw told delighted delegates that detention centres for teen lawbreakers would no longer be ‘holiday camps’.  This played on widely believed media stories of young hooligans leading cosseted lives behind bars.  “Life will be conducted at a swift tempo,” he assured the party.  The belief was that a regime of early wake up calls, military drill and manual labour over a three month period would shock young offenders out of a life of crime.  To break even the most determined spirit periods of recreation could be denied and  silence was the general rule with only 30 minutes of chat between prisoners permitted each day.  It wasn`t long before there was a rising disquiet amongst many  in the legal fraternity and pressure groups  that such sentencing did little to improve or deter criminal behaviour at the lowest end.  So in 2013 ASBO begat CRASBO later shortened to CBO or Criminal Behaviour Order. 

On 21/06/2016 I posted of my personal involvement in this historic legislation.  Generally I consider that this form of civil sanction [the breach of which is a criminal offence] is displacement legislation.  "Don`t commit an offence within our boundaries; go elsewhere to offend."  So from pillar to post the offending continues.  Breach of an anti-social behaviour order is triable either way with the maximum sentence for this offence in magistrates’ courts of 6 months’ custody and a maximum 5 years’ custody at the crown court.  

It seems that it`s taken eight years for the message, for what it`s worth, to get through to  Barnsley Council.  The offender in this case had previously been issued with another of these so called orders; a Community Protection Notice.  As far as I am aware the MOJ has no knowledge of the deterrent value of these civil orders.  It has been unable or unwilling to provide numbers of those breaching them and being subsequently convicted as above.  All that can be said, in my humble opinion, is that it reduces the burdens on police and prisons.  Whether or not such orders are another sign of outcomes determined by cost cutting or an innovative process to control low level but aggravating local misbehaviour is as much dependent on political opinion as social innovation.