RESPECT

If ever anything has demonstrated the absolute incompetence of Chris Grayling it is this morning`s announcement of the  scrapping on Christmas Eve of the criminal courts charge.  I don`t think that a change of this nature so flawed in its concept has been sent to its demise in such a short period of operation.  Michael Gove......RESPECT

NORTHERN IRELAND IS DIFFERENT!

Magistrates`Courts in Northern Ireland are run by District Judges.  Recent history in that province has seen the death, literally, of at least one J.P. and the institution per se. With that in mind I have reported here from time to time some strange or unusual court decisions there.  However merely to fine a drunk driver who was more than five times over the legal limit and not to have imposed a community penalty never mind a custodial sentence suspended or otherwise is breathtaking [no pun intended]. 

Considering the recent abortion decision perhaps decision makers in Ulster are on the road to the 21st century in their thinking.  But with sentencing as above there is still some way to go.

MUM`S THE WORD

There are  some people, J.P.s and politicians, who, for their own unknown and illogical reasons, still refer to or hanker after local justice for local people. The reality is that this concept can now only be referred to as a historical situation to be equated with transportation to the colonies. It is a dead concept; an outdated concept; a concept no longer with us.  There are however some diehards. I recollect reading a report a few years ago of a bench chairman proudly remarking that he and his colleagues living in the same small town and knowing a defendant enabled them to operate the law more equitably than otherwise would have been the case.  I wonder whether that included perhaps chatting to said individual or others before or after the hearing.

Recently barrister Mohammed Faruk was reprimanded for being over friendly to jurors at Basildon station after a recent trial.  His copy book is now forever blotted.  Unfortunate for him but what about the situation in courts where members of the bench have no private access? Where all court users enter and exit through a single portal.  How many ex colleagues have perhaps uttered a brief word or two in all innocence  to a person prior to or subsequent to a court appearance? With the magistracy being the most politically correct organisation and group of people I have ever encountered I would suggest at all times "mum`s the word".

CURFEWS AND PMQs

It is rare for a decision in a magistrates` court to be the subject of a question to the prime minister during PMQs  but that was the case earlier this week.  Cases such as this occur daily.  

On 11/10/2015 on the topic of curfews  I posted, "The imposition of a curfew with electronic monitoring is considered as a sentence involving loss of liberty. It is described in Sentencing Guidelines to be used, “where the punishment of the offender and/or the need to safeguard the public and prevent re-offending are the most important concerns”. However there is surprisingly little “guidance” on when and to what degree it should be imposed save for the statutory limits; a maximum of 16 hours daily and for not greater than 12 months duration. For sentencers the attractions of such a disposal are that it can be imposed without a pre sentence report or without an offender being legally represented and more significantly it can therefore be imposed immediately after a guilty plea or found guilty after trial. In the terms of CJSSS it is Criminal Justice Simple, Speedy and Summary.



Before such an imposition a court will always consider an offender`s lifestyle eg family obligations, employment requirements, type of residence and any other considerations brought to its attention including perhaps travel arrangements previously made and/or paid for insofar as their possibly having a bearing on the proposed terms. It is a matter of judgement of the court on the weight put upon any objections made. In our current position it is rare indeed for my colleagues and me to be allowed to use our judgement so proscribed are many decisions.


Similar judgements have to be made when an application is made in court for curfew conditions to be altered. I`m sure that most J.P.s have heard , as I have, many tales based on the old adage, “I need to go to a funeral. My grandma has died in Ireland, Poland, Lithuania….etc etc” or anywhere far enough away to require some days and nights away from the registered address. Holidays, pre and post booked, are another reason often cited to alter the curfew. And of course those imposed before and including Christmas and new year will bring pleas of once in a lifetime family re-unions etc. "  On 5/11/2015 I followed up on the topic of varying a curfew.


This type of decision often leaves an open goal for lazy reporters and sub editors to score easy headlines and in this case  for an MP to have thirty seconds on PMQs.  But there is an underlying concern that benches are too easily swayed by smooth talking lawyers.  There is no "loophole" in the law.  To remove the option of a variation in a curfew is akin to removing a right of appeal against sentence. The problem as is often the case in such matters is the application of such a right and the ability of J.P.s to deal logically and with dispassion on all that comes before them. 

GOVERNMENT, RACE AND JUSTICE

Everything you ever wanted to know about race and the criminal justice system.

JUSTICE MINISTRY Spending Review 2015

 

      Access here.

                                                     

PUBLISH AND BE NOT DAMNED

Justices of the Peace are notoriously reticent about criticising their own bench and its officers or the magistracy in general.  Even in a closed environment eg the retiring room I had often thought that some colleagues were afraid to speak their minds in case critical comments reached hostile ears.  I had and have some sympathy with this reluctance to be able to speak freely and frankly without fear or favour.  Certainly bench meetings are circumscribed by the agenda, bench chairmen rarely deviating from official policies and the presence of senior civil servants; namely the regional justices` clerk. With recent upheavals and the possibility of more to come in the operation of magistrates` courts and the consequences for witnesses and defendants   I  invite ex colleagues to submit such information and comments to which they would be fearful to have their names attached and they will be published here with anonymity assured the content of course not being abusive or libellous. 

COURTS INQUISITORIAL OR ADVERSARIAL? VICTIMS AND A QUESTION UNASKED

The so called "treatment" of complainants and to a lesser extent witnesses as "victims" within the context of court proceedings especially those in the crown court has been  an increasingly vocal feature of victim orientated  organisations and charities many of which have been founded in the last thirty years. The Leveson Inquiry and the ramifications of the revelations surrounding Savile have accelerated the pressure from those organisations for changes to pre trial and trial procedures themselves.  One such organisation The Criminal Justice Alliance  put forward its own programme of reform earlier this month.  In essence it proposes that a truly victim centric system of justice be imposed upon the current "elaborate, ritualised and – in many respects – archaic system".  Whilst there are few who would deny that there are some aspects of the whole process which lend themselves to reform the concept of a victim orientated justice system is contrary to the historical concept that the state as a disinterested third party dispenses justice equal for all without fear or favour.  This idea along with other social changes instigated by the post war Atlee government gained a concrete base in 1949 by the first legal aid scheme in the Legal Aid and Legal Advice Act 1949 with a focus mainly on divorce and matrimonial problems.  Prior to the cuts initiated by the coalition criminal legal aid accounted for a little over half the total costs.  Those cuts effectively demonstrated that the state was taking a step back from enabling there to be a level playing field where prosecution and accused or plaintiff and defendant could have their cases argued by our adversarial system.  In 2001 victim impact statements were allowed to be read in the crown court but are not taken into consideration when sentencing is decided by the judge.  Although many victims and victim based charities are affronted by this the arguments against such statements are substantial.  Indeed over the last five or so years I had many occasions in which I had to ask prosecutors to temper their language; namely that a CPS witness was to be referred to as a "complainant" during a trial and became a "victim" only  when a guilty verdict was brought against the accused. Occasionally there was an objection that s/he was a victim per se. I rejected such observations.
 

It seems that a fundamental aspect of the whole process has not been put under the microscope; the adversarial system itself.  I have posted here before now that I believe, in the current situation of increasing numbers of unrepresented defendants in magistrates` courts, that the chairman of a lay bench must be prepared to take an increasingly inquisitorial approach enabling the truth to emerge where relying upon inept prosecutors and/or those inarticulate unrepresented defendants  could lead to miscarriages of justice. In like fashion perhaps we need to assess whether the uniquely Anglo Saxon system of crown court  legal jousting would better outcomes for complainants by being replaced by the continental system of an inquisitorial bench.  That question is rarely if ever asked never mind being answered.

JUDICIARY & GOVERNMENT ARE EQUALLY MYOPIC

I had thought that there would be little to mention for a while at least on the criminal courts charge.  I was wrong.  Another judge in the crown court has made public comment.  This just reinforces my post last week about the Lord Chief Justice.  There are about 650 judges (excluding recorders) sitting in our crown courts. I presume they have some sort of representative body.  Where was it when the Ministry of Justice issued its intention to initiate this charge?  Was a decision taken that it would have been unconstitutional to make any reservations known?  Were there any reservations at that time? This whole mess brings the judiciary into disrepute.  It does nothing to uphold confidence in government when we learn today that British built anti submarine planes scrapped before they were commissioned in 2010 are to be replaced by American made aircraft for the very same purpose and that French and Canadian such aircraft last week had to be flown north of northern Scotland searching for a Russian submarine.

CRIMINAL COURTS CHARGE: REQUIEM

For those interested in how our highly respected intelligent and public spirited M.P.s discuss matters of interest and how a mendacious government minister  tries to cover his arse there is no better place to spend five minutes than reading this week`s House of Commons debate on the criminal courts charge and if that isn`t sufficient try reading yesterday`s report of the the Justice Committee of the House of Commons. I think that`s enough until next week.
 

POWER OF WRITTEN WORD

On November 17th I alluded to magistrates` courts reporting in local media.  And as is the way of coincidence two local west country newspapers yesterday  published short reports of of such proceedings which, whilst brief and in one case apparently incomplete, demonstrated the sometimes hard to fathom decisions of two local courts.  It is more than likely that those reading these reports will take more realistic impressions of such things than viewing  any so called expert on T.V.  

LEST THEY BE JUDGED

In my earliest days in the middle chair I can recollect my thoughts at the time of how much respect I had for judges; especially those at the top of the profession.  Their accumulated knowledge and wisdom in addition to the power they exercised appeared to be, from my low level function, quite extraordinary.    But as time went by and my own confidence and knowledge increased that respect began slowly to diminish.  When some of the  judiciary threatened resignation over their pension situation  a further degrading of their position infiltrated my mindset.  In 2012 the Senior Presiding Judge issued so called "guidance" ordering J.P.s not to blog or cease forthwith. My opinion of that "guidance" was blogged on 10/08/2012 at my previous site. It goes without saying but say it I will that my impression of senior judiciary took a further downward turn especially when it transpired he was just blowing inordinate amounts of hot air.  Leveson and his enquiry proposals which threatened then and still do, the freedom of the press was IMHO another judge who seemed to have lost his sense of direction.  Now fast forward to yesterday`s press conference by the Lord Chief Justice.  If ever their was a public indictment of the inadequacy and shallow thinking of a person in his position it was in his own replies to questions about the criminal courts charge. 

CLIVE COLEMAN (BBC):

Can I just ask you specifically about the criminal courts charge? Fifty magistrates at least have resigned already because they consider it to be extremely unjust and unfair. They tell stories about defendants who are making a commercial decision whether to plead guilty or not based on the size of the charge they would have to pay in respect of that decision. The Government are committed to review within three years. The Magistrates Association want that review to take place immediately. They want the charge to become discretionary. It is causing a huge amount of concern. What is your view on that? 

 

 

THE LORD CHIEF JUSTICE:

When the criminal courts charge was mooted, we pointed out that the only sure area where money would be raised would be from those who commit crimes by way of motoring offences, those companies that commit environmental offences and some rich individuals and those who also have substantial means. It was unlikely ever that if anyone was sent to prison he would ever be able to pay it. I think that the reality of what we said at the time has turned out to be correct. The charge, I do not believe, is raising much money and it does seem to me that although in principle it is right that the financial penalties at the end of a case ought to reflect the ability of someone to pay, the whole thing has to be looked together. If I can give you by way of illustration, for example, at the end of a case there is the victim surcharge, the possibility of paying the prosecution’s cost, there is the question of compensation, the question of confiscation. All of these issues need to be considered in the round. We have gone, as quite often happens in the justice system, from adding charge after charge after charge without looking at it in the round and I think it has all got to be looked at in the round. There must be a case for defendants who can pay and others making the contribution but it has got to be looked at in the round.

 

CLIVE COLEMAN:

So it should be means tested. 

 

 

THE LORD CHIEF JUSTICE:

I do not know. I am not saying that. I am saying that you have got to look in the round at all the financial impositions that are imposed and actually come up with a proper solution of how a court should approach it and obviously one of the considerations must be the means to pay. There may be other considerations but I would not want to prejudge a proper look at the whole thing. When something has not gone correctly, I think the best solution is to look at the problem that has arisen and the problem is a much wider one. 

 

A complete transcript is available here.

It appears that the Lord Chief Justice with all his experience, knowledge and supposed wisdom has confessed to his own incompetence in being unable to predict the consequences of the policy or his inability to persuade Whitehall and the minister of their folly.  Nowhere in his reply does he make the point in principle that justice accessible and available for all, irrespective of ability to pay,  for complainants and defendants alike is a pre requesite   for a just and humane society. Indeed he endorses the very opposite.  The assumption must be that he believes in the policy in principle.  That, in my opinion, is a disgrace! 

NORTHERN IRELAND IS STILL A LAW UNTO ITSELF

There is still court reporting of the proceedings in magistrates` courts in England and Wales even when individual reports are often cursory and only statements of outcomes.  This has much to do with the ascendancy of the BBC News website into every local area of the country at the cost of the viability of local press. Newspapers cease production, jobs are lost and often publications become free sheets produced as cheaply as possible seeking income from as much local advertising as is available.  However with absolutely no statistical evidence beyond my own observations an exception to reduced court reporting appears to be  in Northern Ireland a province rural in nature outside Belfast and where sensitivities to "local communities" are still very strong.  Such seems to be the case in a report in the Lurgan Mail. The convicted offender had pleaded guilty to obstruction of a constable and disorderly behaviour. It seems the disorderly behaviour consisted of offensive remarks.  In England such remarks repeated of course in open court would normally be reported verbatim. Justice is open and however offensive the public has and had a right to know the substance of the charge  put to the defendant

In this case the District Judge said the remarks in question had ‘gone beyond the pale’ and they were ‘gross and offensive remarks’ about another community. Certainly Muslim sensitivity can be ruled out. There are only about 4000 Muslims in Ulster and they are mainly professional people unlikely to have been involved.  It seems therefore that the Catholic/Protestant divide is still causing even judges and reporters to censor their language. 

PARIS MASSACRES AND THE ENLIGHTENMENT OF BRITISH MUSLIMS

From time to time over the last decade questions have been raised in various media about the status, effectivity and influence of Sharia law in the U.K. For many observers and members of the Islamic faith the perception of Sharia law is as important as its reality.  It some cases its function has been likened to a Jewish religious court or Beth Din. The difference however is one of quantity over quality.  There are around 263,000 self defining Jews in the U.K. of whom about a quarter consider themselves as "traditional" and 16% as ultra orthodox or charedi. Generally it is those members of the charedi community who make use of a Beth Din.  In contrast to those numbers there are about three million Muslims in the U.K. How many could be described as Islamists is open to conjecture. One thing is certain and that is as a result of the Paris massacres the blandishments of many on the topic will no longer be taken at face value.  When opinions of wannabe jihadists will almost certainly lead to interest by the security services such opinions will necessarily be kept circumspect.  And that is why the actions of a leading Jewish academic Professor Geoffrey Alderman, whose article in the current edition of the Jewish Chronicle should be taken on board by Muslim clerics, who perhaps have been less than forthcoming about the leanings of some of their co-religionists and be an example to follow. 

The cultural freedoms available for over a century to Jews in this country eg schools, kosher slaughter or shechita, circumcision have been used as an argument that Muslims should have the same freedoms.  The difference is that there are twelve times as many Muslims as Jews and that the latter have for two thousand years lived as a minority  in every country of their  residence until the establishment in 1948 of the State of Israel whilst Muslims have usually lived as the majority religion in states where that religion has been practised. In Western Europe they live as a minority religion in countries which are ostensibly Christian in history, morality and outlook. 

Perhaps the weekend`s atrocity will hasten the day when eg progressive Muslims can openly declare their being gay without the opprobrium of their communities or forced marriage will be declared unacceptable for Muslims in a modern western country where the Judeo Christian heritage has managed to evolve into a 21st century basis where neighbours whilst perhaps not in a state of enlightenment can generally still manage to live in peace and harmony.

THE KING`S NEW CLOTHES

When I was a student and for many years after it was possible to become a chartered accountant or lawyer without having graduated with a degree.  State Registered Nurses at that time probably had the highest respect rating of all professionals.  They also managed to achieve their status through hard work on hospital wards combined with six week block attendance for lectures and other forms of academic training. When those three activities (and others) became available only with a university degree who is to say that the quality of their work was superior to those of earlier years?  Since the mantra of "school leavers must go to uni to have worthwhile job prospects"  became required repetition for politicians and commentators of all shades any voice in opposition was considered to be that of a living dinosaur.  The inevitable result of this supposed enlargement of the academic pyramid base has been the devaluing of all levels of educational qualification from GCE via GCSE to first class honours degrees and the division of professionals into various grades with eg nursing auxiliaries undertaking the tasks so called qualified nursing graduates consider beneath them. Graduate teachers now have "assistants" actually teaching and political uproar is heard when suggestions that some expert but non graduate people are perfectly capable of teaching in the public school environment.   The list whilst not endless is considerable. If the College of Policing has its way any aspiring police constable will require a university degree.  I won`t insult readers by repeating the already well rehearsed arguments against this proposal.  So many so called improvements to the quality of our society are driven by "the king has no clothes on; he`s in the altogether........".  Only yesterday Tracy Crouch, Sports Minister was forced to apologise for any offence caused by her comments re poor people and their contracts for Sky T.V.  Where in the public sphere  are little boys of Hans Christian Andersen`s imagination to tell it like it is?

F.O.I. REQUESTS // MORE QUESTIONS THAN ANSWERS

We all know the extreme difficulty in proving a negative such difficulty making an F.O.I. request on the confiscation of weapons and other items seized at Chester Crown and Magistrates` Courts inconclusive.  What sort of people attending  court consider it appropriate to have a knife on their person?  There is no information to suggest that having those weapons constituted the bases of criminal charges being levelled against those involved although it is illegal to carry a knife in public without good reason  unless it’s a knife with a folding blade 3 inches long (7.62 cm) or less, eg a Swiss Army knife. 

As far as cameras confiscated; there is no mention whether the confiscation was for the owners` times in court or permanent deprivation although I tend to think the former rule applied.  With U.K. smart phone possession estimated at 40 million it is highly likely there is considerable surreptitious filming of proceedings going on. All phones should be deposited against a ticket receipt at the entrance to all courts until the time comes when local entrepreneurs are given permission to televise the proceedings to local audiences. Statistics such as these offer as many if not more questions than answers. Perhaps that`s why Grayling wishes to limit F.O.I. requests proving his attitude to the concept of justice and freedom of the individual is as warped now as it has been in the past.

MEANING MORE OR MEANINGLESS?

The House of Commons and its committees are where we expect our law makers to use precise language supposedly to project their precise thinking patterns. The M.P.s participating are taught to be wary of the usage of their linguistic skills or lack thereof so that members can always be described as "honourable".  Sadly such skill is not always demonstrated. 

A recent written question by Dawn Butler M.P. indicates at least on the surface that she does not understand that magistrates as members of the judiciary don`t prosecute:  they are  finders of fact in the courts that bear their name.  It is carelessness like this on a much grander scale which is responsible for so much loosely drafted legislation which the judicial system has to later decipher.   Sometimes meaning more is more meaningless.

COURTING PROBLEMS

I think it is reasonable to assume that less than half the adult population has ever attended a court as defendant or witness.  Of those who have a minority only will have had that experience in a crown court.  Thus any statistics on satisfaction or otherwise with these courts within the justice system are based on a relatively small sample cf eg the NHS.  With that in mind a report published this week  by the Criminal Justice Alliance makes interesting reading.  Whilst much of the content might be considered controversial the recommendation that judges and barristers might discard their artificial headgear certainly meets with my approval. Robes also come in for crticism.  A history of court dress is illuminating but is purely just that; a history.  Language used in court is also of considerable interest to the authors.  A light hearted translation of the commonly used phrases heard in court is available here for readers` amusement.

How far Michael Gove is prepared to resist budget cuts  whilst in charge at Petty France is a moot point.   One thing seems certain and that is that he will be unlikely to risk unnecessary ire from the legal profession purely in the name of modernisation of the courts process.

 

MAGISTRATES THROUGH THE LOOKING GLASS

During my seventeen years on the bench I warned only five defendants or witnesses of the slippery slope of contempt of court on which their mouths or actions were leading them.  In all cases a brief period in the cells was enough for them {or with their advocate`s advice} to see some sense and make verbal or written apology to the court.  Magistrates in Westminster who are used to dealing with high profile cases  apparently released on unconditional bail until next year,  defendants who refused to identify themselves or provide addresses.  Just how did they and presumably their legal advisor allow this to happen?  It seems those defendants have succeeded in making a mockery of the justice system.

Contempt of court is governed by the Contempt of Court Act 1981 s.12.  A magistrates` court has power to deal with any person who wilfully insults the justices, any witnesses before the court, any officer of the court having business before the court either during a sitting or in going to or returning from court.  In addition the Act applies to anyone who wilfully interrupts the proceedings of the court or otherwise misbehaves in court.  IMHO not providing information legally required by the court constitutes contempt.  

This was IMHO  a grave error on the part of the bench and if some legal expert considers differently then we must face ourselves in the looking glass and wonder how we have lost sight of reality and are living in the world of Alice.

HUMAN RIGHTS? TOO MUCH STEAM?

It is cases such as this which cause compassionate law abiding and sometimes God fearing individuals to question whether the law is out of kilter with the thinking of the common folk of this country.  Their opinions have sometimes been held in disdain by highly qualified "human rights " advocates whilst  politically correct socialists and millionaire entertainers have not been averse to branding such opinions with epithets indicating a more direct contempt. 

At the best of times such events are a cause of disquiet: in a period of heightened tensions and a referendum within 18 months such reports are unlikely to provide more light than heat to the debate.

WHEN IS "PLANNED" TRAVEL A GOOD ENOUGH REASON TO VARY A PERIOD OF CURFEW?

Applications to vary the conditions of a curfew are very common.  Although there are no figures or statistics available they seem to peak in the summer months and in the couple of months before Christmas.  I wonder why..........

The brief report in this case mentions that the offender "had planned the trip to visit his parents, who live in Spain, in March, before he made his first court appearance".  Planned.....in the context of the application this is an interesting word.  He could have planned the trip in his mind years earlier but done nothing to bring the plan to fruition.  In other words I would conclude that he had not purchased a ticket to Spain at the time of the sentencing.  His lawyer using his linguistic ability when making the application said the celebration in Spain had been arranged for a long time. Arranged could be parsed similarly as planned above. Such cases often came before me and are frequent in every magistrates` court.  I would have dismissed this application unless the ticket had been purchased prior to sentencing and if that had been the case it surely would have been mentioned to the sentencing bench which at that time might have allowed a gap in the curfew period to accommodate travel.  

A logical conclusion is that the bench has been soft, perhaps misled by the advocate`s eloquence and brought the law into disrepute by making an allowance where there was no satisfactory reason so to do.  

Some might argue this shows the advantages of local benches for local people dealing out local decisions. The same argument could be used in direct contradiction if another group of three J.P.s in the same courtroom follows my logic and rejects a similar application next month. You pays your money and takes your choice. 

LAW COMMISSION// 12 MONTHS FOR MAGISTRATES

For over a decade there have been arguments, reports and informed suggestions that magistrates should have enhanced sentencing powers; namely that the current maximum of six months custody be doubled.  No other  initiative or  sentencing possibility has been more enthusiastically supported by the Magistrates Association although whether that reflects opinion of magistrates in general is a moot point. It is not difficult to discern the reason for such changes; it has nothing to do with the efficiency or lack thereof of the crown court but everything to do with the lower cost of running magistrates` courts.  These lower costs might be self evident but are very difficult to find in an authoritative published form.  We have figures such as these but  considering that the courts are run by Her Majesty`s Courts and Tribunal Service if one had expected clear and  unambiguous figures in its annual report one would have been disappointed.  114 pages on such topics as climate change and  carbon management plan but the daily cost of running the various courts under its control are nowhere to be found.  IMHO this cannot be an oversight. It is an omission by commission.  Various ratios have been offered historically on the relative costs of crown and magistrates` courts  and from recollection the former costs two to three times the cost of the latter but I am open to correction on the detail. 

These and similar arguments will become increasingly vocal in the near future because the Law Commission has recommended that the lower courts be allowed to sentence for up to twelve months custody.  As expected, Magistrates Association chairman Richard Monkhouse quoted in the Guardian was quick to endorse such a possibility, “Magistrates are trained, ready and able to handle cases with longer sentences – we see this as an opportunity for the government to trust our members to do the job they signed up for.” From the opposite side of the sentencing divide no doubt there will be a response from the Howard League for Penal Reform long opposed to magistrates` courts having any powers at all of custodial sentencing....."The Howard League repeats its objection to the use of short prison sentences, which are ineffective and damaging and believe magistrates’ over-use of custody could be prevented if they were required to remand an individual to the Crown Court for a custodial sentence".

Having been compulsorily retired by HMCTS earlier this year although the impending imposition of the Criminal Courts Charge made me jump from the good ship justice a little earlier than required  I can perhaps  reflect more objectively than sitting J.P.s on this situation.  There is an unhealthy number of them sitting only for the minimum required period demanded by the Ministry; 26 half days annually.  The actual numbers are kept under lock and key by the country`s justices` clerks but from my earlier analysis of all J.P.s  sacked by the   Judicial Conduct Investigations Office about half were for failing to sit for that minimum number of times.  I am informed by my own former colleagues that the number of two person benches is currently as high as it has ever been and that is with a reduced number of courts.  In addition there is virtually widespread agreement that training for magistrates is not as effective  it should be and that change is around the corner.  The appraisal system is not fit for purpose. These  facts alone give cause for concern.  Whilst a winger might just get by sitting for three hours every fortnight for a chairman to be competent and to be seen as being competent such a sitting level is totally inadequate.  However the Ministry is loathe to increase this minimum sitting requirement for chairmen because of the dire and increasing shortage of those eligible for the step up to the middle chair. 

I doubt the legal profession is any too happy about the proposals. Young lawyers of both persuasions are unlikely to offer their services for an increased number of appearances at magistrates` courts where their financial rewards make the junior doctors current pay levels seem to be in the stratosphere. 

The Law Commission`s proposals will IMHO be unlikely to come to fruition and with the impending reversal by Michael Gove over the Criminal Courts Charge likely to lead to mixed headlines he most certainly will not wish to make columns in the broadsheets by allowing magistrates increased sentencing powers at least not in the near future.

SCHOOL ATTENDANCE CASE TO GO TO HIGH COURT

I have commented a couple of times on the regulations concerning parents` responsibility for a child`s attendance at school.  Some of these cases can be quite distressing where the parent or guardian has all but chained a child to the classroom door but still faces the consequences of that child`s failure to answer the register.  Recently there was much publicity over the acquittal of a father from the Isle of Wight when he took his daughter on a family trip during term time.  It seems that the local council intends to spend a great deal of council tax on an appeal at the high court. This intention has itself been a topic for various media; an education website,  BBC and of course local press.  If the case does indeed proceed the result will be of considerable interest to all involved and to a far wider audience outside that southern outpost of the magistracy. 

NASTY PARTY MAN

The well used excuse by those accused of Nazi atrocities was that they were only carrying out orders.  Perhaps in a political sense Chris Grayling will offer similar words one day when he writes his memoirs of the time he presided over the crass and ill judged innovations which marked his tenure  at the Ministry of Justice.  In my opinion  that introspection will not cloud this man`s horizon.  When commenting on the government`s intention to modify the Freedom of Information Act he is quoted as saying, "It is on occasion misused by those who use it effectively as a research tool to generate stories for the media.  That isn`t acceptable."  These remarks were made during business questions.  More than twice this blog has published information it has obtained by application  under the FOI Act.  When the right winger`s bible The Mail onLine is so critical of a senior Tory one wonders why Cameron has allowed this hatchet man to prosper for so long. To borrow from Theresa May`s 2002 description; he is the epitomy of Nasty Party man.

POLICE SCOTLAND//A SCOTTISH PARADOX

It is a very plausible argument that the most basic requirement for a modern unified state is a common language.  Governments, local and national have, until fairly recently, turned this aphorism on its head.  Every G.P.`s surgery, council office, Citizens Advice Bureau etc was buried beneath signs and information leaflets in myriad languages from Arabic to Urdu.  And of course this language apartheid led to many immigrants, especially those no longer in the flush of youth, being disinclined and often unable to pursue any type of social discourse outwith the confines of family and others with their shared native tongue.  Somewhere in the bowels of Whitehall a light went on in the head of some bright young thing whose thought processes were considered essential to his Minister`s rise up the greasy pole. A new policy was born.  All these multi lingual information appendages would be abolished in the hope that a need to learn or improve English language skills would be forced upon all those over school age lacking in that department.  No such ruling was of course applied to this island`s indigenous languages.  The Welsh have long had a bi lingual approach to almost everything and this is how it should be.  The Welsh language is a direct derivative of the language spoken by Boudica  and the pre Roman occupants of these islands.  It is understood and/or spoken to some extent by almost a quarter of the population.  Contrast these figures with the other part of Britain where another localised version of that ancient tongue is still spoken.  The use of Gaelic in Scotland is confined in the main to small geographic areas mainly in the North West Highlands and the Western Isles.  It is spoken by fewer than 60,000 people of a population of five million.  With this information in mind................

Fact: The newly amalgamated policing force north of the border; Police Scotland, is facing a deficit of £25 million.
Fact: The Scottish government is preparing to rebrand Police Scotland bilingually English/Gaelic.

The cynic within me interprets this initiative with the SNP`s determination to eventually elicit by fair means or foul a "YES" in the next referendum irrespective of the price of a barrel of oil.  

The political paradox is that nationalism is on the rise everywhere in Europe brought about   by supposedly very wise but myopic decision makers who were determined to stamp it out by removing the differences between nations; their laws, their borders and their trading decisions.  The Scottish paradox is that those self same nationalists are minded to remain in or gain entry to the European Project. 

MAGISTRATES ASSOCIATION: ITS RAISON D`ÊTRE DIRECT FROM ITS CHIEF EXECUTIVE

This blogger has with few exceptions been very critical of the Magistrates Association and those leading it.  With this in mind I have copied below the speech The Chief Executive recently made to the Reforming Probation and Rehabilitation Services Conference on 22 October 2015.

It is IMHO a well crafted speech with the underlying motive of explaining why the M.A. is taking money from those who will implement some of the proposals here expounded. He makes no bones about castigating critics of such innovation with little attempt to conceal his contempt for their opinion.  I leave it to readers to make their own judgements.


Implementing Changes to Sentencing to Enhance Probation Services


Chris Brace
–
Chief Executive
,
Magistrates’ Association

Further joint working between the courts, the NPS and CRCs to implement changes to sentencing and assessment
Extending the role of the magistrates’ courts in the rehabilitation of offenders
Imposing new measures when offenders breach supervision order

Thank you for inviting me to speak today. I have been asked to talk about changes to sentencing to enhance probation services.Firstly, however, I thought it would be useful to explain what the Magistrates’ Association is and what we do.


The Magistrates’ Association is a charity. It is not a public body and it is not a trade association. It is a charity. It is a charity with a Royal Charter and Bye-laws, which means we have a very strict remit and very strict rules to which we must adhere. We exist to promote the sound administration of the law. That means we discuss how the law is implemented, how it can be done better, the intended and possibly unintended outcomes of the law, whether those outcomes are desirable or undesirable, and what can be done about it. We advocate for change where we think it is necessary, and we talk to, educate, and in certain circumstances attempt to influence those decision-makers who hold the levers of change. We do not comment on what should and should not be the law. We would never discuss whether a particular offence should be decriminalised or whether a particular activity should be criminalised. We would never, within our strict remit, advocate for any particular imposition against offenders to be abolished, but we may highlight perverse outcomes and suggest ways that an imposition may be amended to enable those outcomes to be fairer to those who come before the courts. We always work in the interests of justice. We are a membership charity and have around 19,000 members across England and Wales. The majority are magistrates, many are retired magistrates, and some are interested individuals both inside and outside the justice system. The membership payment is a donation to charity, to support our object of promoting the sound administration of the law. We support our members by informing them about changes to the justice system, to the law, to process and procedure, and we provide sentencing and other exercises to ensure that magistrates keep their skills up to date. We are in the process of developing an extensive continuing professional development offer which will be launched in 2016.



We have 12 full time equivalent staff, but our members do a huge amount of voluntarywork to support us.They make up the board, the policy committees, and the committees of our 59 local groups that cover England and Wales.That’s about 600 people volunteering to keep things running.But our biggest endeavour is our magistrates in the community presentations. Every year our members, on an entirely voluntary basis, give almost 5,000 presentations to about 200,000 people in schools, colleges, universities and community groups to educate their communities about the role of magistrates and the justice system as a whole. That’s about 2,000 magistrates going out in their local communities, voluntarily, because they care, because it is important, and because we believe that’s where reducing offending starts; supporting people to gain an understanding of the justice system, why it exists, why it is important, and what it means to be a good citizen. However, we are often hampered in our work by those who think that judicial independence and  judicial impartiality means that magistrates and, inappropriately but by extension, the Magistrates’ Association should not be working with the other agencies who make up the justice system. Siloed working is far too often not only encouraged, but seen to be essential. That is wrong. There is no two ways about it. How can we see it as a virtue to run a system that is so fragmented that joint working is not only discouraged but sometimes actively prohibited? We must work together. Sentencers must work with the National Probation Service, and not just in court, to discuss the needs of offenders and how our work can support each other. Sentencers must work with the Community Rehabilitation Companies to pool knowledge about what interventions work for different offenders, what don’t, what programmes are available and where, and to discuss how greater flexibility and a wider breadth of innovative programmes can be developed to rehabilitate offenders and reduce reoffending. That shouldn’t be prohibited, it should be seen as an active duty that supports our collective endeavour.


There are those criminal justice campaigners who still bemoan the dawn of the CRCs and who would like to turn back the clock on those changes. Whatever the personal opinion of any of us working within the justice system, we must live in the world as it is now, not as it was in the past. We must work together and openly discuss procedures, process and outcomes with each other, with a view to supporting each other to greater effectiveness and efficiency. If that causes constitutional consternation, then that is fundamentally wrong and structures should be changed to enable that essential work to happen.


The MA Network, an independent subsidiary of the Magistrates’ Association, is delighted to be working with our Founding Affiliates: the Oxford Centre for Criminology, the Probation Institute, the Office of the Victims’ Commissioner, MTC Novo, Working Links and Sodexo. The Network seeks affiliates who are collectively committed to promoting excellence in  the delivery of justice, and supports that endeavour by providing an independent networking hub where different providers and stakeholders in the justice system can come together to pool their knowledge and experience and share good practice, mutually supporting each other to improve their provision to achieve a better experience and better outcomes for all users of the justice system. The Network’s first research project is working directly with women offenders and providers to identify factors which lead women offenders to breach community orders and develop practical recommendations to change practice to reduce breaches. I mention this because we are justifiably proud of this new initiative, and because it embodies the necessity to work together to improve rehabilitation and reduce reoffending. But I also mention it because the criticism the MA has received for setting up this initiative has been hysterical and baseless. Commentators and campaigners who are usually balanced and who also want to see a more effective and reformed justice system, have cried corruption because the Network is seeking paid affiliation from CRCs, and other providers,to develop the capacity to undertake research and promote networking. Somehow the argument conflates the MA Network and the Magistrates’ Association, and then conflates the Magistrates’ Association and magistrates, and cries foul and claims corruption.What a load of nonsense.


If those who wish to see a more effective justice system actively attempt to sabotage  initiatives which seek a more effective justice system, on the basis that it is a legitimate activity for some but not others, then what a sorry mess we are all in.


So, that is how we see the justice system coming together for mutual benefit, to discuss improvements to the breadth and flexibility of provision, how to improve outcomes, and ensure that we do as much as we can to stop the revolving door of offending. Sentencers can support that with more engagement in court, more targeted sentences, pushing for more drug and alcohol review courts, and encouraging more problem solving principles in court. Probation services can support that by providing more programmes with more flexibility, and more options for more intensive programmes when a rehabilitation order has been breached or when someone reoffends and has already been through a drug or alcohol treatment programme. Community options are very limited when someone has already been through a programme once or twice, and with limited options comes an increased likelihood of having to send to custody offenders who may benefit from another chance in the community. An increased set of community options might see lighter touch programmes for those offenders for whom drug and alcohol use is a contributing factor, but where addiction is not the issue. At the other end there could be more intensive, perhaps residential, programmes for those cases where a drug or alcohol treatment requirement has not worked in the first instance. With those options available, there would be a clear progression of support which may initially help to nip in the bud behaviour which will ultimately lead to more prolific offending down the line, and in more severe cases of addiction help to divert offenders away from custody where they have breached a treatment requirement in the past. There are other options that could be extended too, with more flexibility bringing in a wider cohort. For example, we know that incidence of mental health is very high amongst defendants in court, but the mental health treatment requirement is complex to administer and restricted in cases of dual diagnosis. Currently, mental health treatment requirements only feature in 1% of community orders.


From my own experience on the bench, the building better relationships programme for domestic abuse offenders in London is hugely successful. Places are limited, understandably due to funding and capacity, but it is exactly the type of initiative where, if experience and knowledge are shared openly between providers, local innovation could change national practice. To address breaches, technology is likely to play a key role in ensuring compliance in the future.The Probation Institute is investigating how electronic monitoring can be used to support rehabilitative programmes and alcohol and drug tags provide opportunities to ensure compliance with community orders, but these new technologies must be subject to the appropriate control and oversight, their efficacy must be proved, and guidelines must be developed and adhered to, before they become a part of our standard toolkit.


With the continuing funding cuts, the emphasis these days always seems to be on cost, forgetting that the justice system should be investing in a low offending future.It is often forgotten that the justice system is a service that satisfies a public need for justice, rather than a business to be managed at the lowest possible cost. And, it is also often forgotten that if we improve rehabilitation and reduce reoffending, costs will in turn reduce, not only for the justice system but across society. That is not to say that rehabilitation of offenders should be the sole purpose of sentencing. The sentencing guidelines give magistrates five purposes to consider when imposing a sentence. They are the punishment of offenders, the reduction of crime (including deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation.Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the sentencing bench must include a punitive element, i.e. punishment, in all sentences. However, it is clear that at least three, and arguably four, of the purposes of sentencing are met by improving rehabilitation and reducing reoffending, so in these endeavours it is in all our interests to work together.


Finally, a word about victims. I haven’t mentioned victims so far, and victims are often absent from the magistrates’ courts. Victims are unlikely to be present at first hearing, may attend to give evidence at trial, but are for most of the time absent when any sentence is given as well. All too often when the bench asks for a victim personal statement, one hasn’t been taken or it is missing from the court file. Victims must be considered as part of the effort to reduce reoffending, and where victims are willing to undertake a restorative justice conference that option should be explored where appropriate. Restorative justice has good results in terms of reducing reoffending, and also improves victims’ satisfaction with the outcomes of their case. Restorative justice work is ongoing across the country, but may well be an additional string to the bow of probation services and have a real impact, over time, on reducing the incidence of crime.


Thank you.

FIXED PENALTY? PAY UP OR APPEAL BUT DON`T IGNORE

It is an underlying principle of justice being done and being seen to be done that penalties from the most trivial of offences to the most serious must be proportionate.  Indeed a purpose of  sentencing guidelines is that culpability of offender,  harm done to victim or society and an offender`s means excepting of course the criminal courts charge should normally be considered in reaching a sentencing decision.  When it comes to litter, as with parking offences, means of offender are irrelevant in the fixed financial penalties imposed.  Rich and poor must pay the same.  In the case of Havant Borough Council the website makes perfectly clear the "whys and the wherefores" of dropping cigarette ends in the street.  Milton Keynes does not appear to have the same openness with its citizens or those who walk its streets.  One such,  Tiffany Cobb, found out to her cost.

The report fails to say whether the offender attended. I would hazard a guess to say she did. The offence is Level 4 (max. fine £2,500).  I dare say if she doesn`t pay a means court will be her next appearance.  Offenders like this lady who don`t pay are those who make the headlines a year after conviction, "Litter lout sent to prison for 7 days" and get the Howard League joyously  enraged. 

BEING TRANSGENDER IN PRISON

I would suggest that there are few people who do not have at least a modicum of sympathy and/or understanding for individuals now denominated as transgender......  "adjective denoting or relating to a person whose self-identity does not conform unambiguously to conventional notions of male or female gender."   It would seem that the law has not yet caught up with the many anomalies that can be exposed in such circumstances.  Magistrates in Bath, presumably acting on the advice of their legal advisor, sentenced Tara Hudson to a period of custody   in a male prison on the basis that presumably she is registered on her birth certificate as male. What truly awful days and nights await her under Her Majesty`s pleasure  can only be guessed. This is a situation which should be rectified ASAP if not sooner.

SNEEZING COULD BE A DEFENCE IF........

In my years on the bench I have heard the most ludicrous reasons put forward by unrepresented {and occasionally by advocates as per their clients` instructions} defendants as to why this or that motoring offence was not their fault and that the matter should go forward for trial.  And during such trials when the facts were presented one`s credulity was often strained.  I recollect the cab driver accused of using a mobile phone whilst driving telling us that his doctor had suggested that subsequent to his attack of Bells Palsy which caused some facial paralysis .....to the driver; not the doctor.........massaging his cheek with a firm object would be as good as physiotherapy.  He even had medical confirmation of the diagnosis but not the weird self application of this unusual medical advice.  Needless to say his defence was not considered credible.  But there are some occasions when physiological anomalies can be of assistance to a defence of a momentary lapse of concentration.

A phrase often used to describe an experience almost too rapid  to register is "in the blink of an eye".  

Fact: the duration of a  blink is 0.1 to 0.4 seconds or 100 to 400 milliseconds. 
Fact: it is impossible to sneeze without the eyes blinking.   
Fact: at 60MPH a vehicle travels 88 feet per second.  

Therefore a driver at that speed during a sneeze will travel a distance between 9 feet and 36 feet  or over 8 metres with his/her eyes closed. All else being equal it would seem to me that such a defence if appropriate to a situation initiating the charge  is almost irrefutable.Unfortunately for this man such facts were overwhelmed by other considerations.