Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Friday, 28 February 2014

MUSINGS ON FRIDAY



I have previously opined that the very restrictive nature of the Sentencing Guidelines can and does occasionally deprive magistrates from considering from first principles  sentencing on any particular case.  As has been said many times guidelines are just what it says on the tin; 
g u i d e l i n e s and not tramlines and as such can allow for deviations if properly justified.  One area where such original thinking was still possible was sentencing for fly tipping.  For those interested, that freedom of action will end for all such sentencing from July 1st 2014 when new guidelines come into force.  If I remember correctly I have some time ago been involved when colleagues and I fined a company the maximum of £20,000 for an atrocious case of fly tipping.  That maximum will be increased to £50,000.  It seems that for such matters being tried at the crown court size will matter; the more prosperous the company the higher the maximum fine.

It might be my paranoia but it appears that within our justice/law `n order system corruption, or at least those cases in the public domain, has increased considerably from Chief Constables, Police & Crime Commissioners, police officers and legal professionals etc etc   That such alleged white collar  criminals actually working inside court buildings   consider they can go undetected  causes me some surprise.  Of course in this particular matter they, as are all unconvicted defendants, are innocent until proved guilty.

I was no great fan of ASBOs and I`m not that enthusiastic about its offspring CRASBO..…criminal anti social behaviour order.  I am also of the opinion that those women providing sexual services for  men who require such diversions should not be criminalised for so doing.  Indeed they should be offered a protected environment where they can go about their business without disturbing the daily lives of those who  might reasonably be disturbed by their and their customers` presence.  So when I read that colleagues in Walsall have issued a prostitute with a CRASBO and threatened her with the pronouncement, “We are granting this Crasbo but you cannot carry on the way you have been because you could go to prison. You really do have to keep to this.” I do really find some despair creeping into my usually upbeat mood. 

The sad story of the one punch killer was widely reported this week.  The casualness of the assailant subsequent to his actions was quite disgusting.  The attitude of his mother to this sordid crime is most revealing.

Magistrates are well used to overworked and unprepared CPS prosecutors getting their knickers in the proverbial twist but Vanessa Schofield prosecuting earlier this week at Kirklees Magistrates` Court had other things on her  mind, namely her imminent wedding, when she confused two drug cases.  I suppose a woman has to consider carefully how to dress for such an event to the exclusion for a few minutes of her day job. 

Anyone visiting the Camden area of north London at weekends will  no doubt be aware of the street entertainers who are a regular part of that busy scene.  Buskers, for that is how we call them outside the offices of politically correct officialdom, in that borough are taking their objection to compulsory licensing to the High Court.  I wish them well.

Thursday, 27 February 2014

FOLLY AND MYOPIA



Earlier this year on January 2nd  I posted on the publication by the Ministry of Justice  of figures purporting to show the vast amounts of lolly paid to barristers via legal aid.  The figures were a vain attempt by the spin doctors of Petty France to undermine the effect of the then forthcoming walk out of criminal law barristers from the courts of England & Wales on the following Monday.  I do believe the government was truly shocked by this unprecedented action but apparently not shocked enough.

Next Friday March 7th there will be a repeat action by this bewigged group of professionals and true to form Grayling and his minions have published further sets of figures in a further effort to show a largely uninterested public that these fat cat lawyers need taking down a peg or three.  Truly it is a fact that a cornered animal will fight more fiercely to defend its territory or young than at any other time. With Grayling`s plans for transforming the probation service being shown to be an unachievable political mirage and some of those involved doing their best to extricate themselves from involvement notwithstanding the legal profession`s  abhorrence at his attempts to ration judicial review it is worth  noting that one can get odds of 16/1 on his being the next minister to leave the cabinet. 

This Justice Secretary and Lord Chancellor with no background in the law or the legal profession is proving to be the very worst holder in living memory of his honoured office.  What a nation we are becoming.  A pillar of our society is being destroyed by a government that considers that no £ spent or saved is better or worse than any other £:   What folly! What myopia!

Wednesday, 26 February 2014

THE ALL CONQUERING CSA TANK



The Child Support Agency: I can do no better than quote from Wikipedia; “The CSA's function is twofold, encompassing calculation of how much child maintenance is due (based on current legislation  and rules) and collection, enforcement and transferral of the payment from the non-resident parent to the person with care.  For the CSA to become involved in a case, their services must be requested by one of the parents. Legislation also allows children in Scotland  to initiate a case against one or both non-resident parents”.


It was established in 1993 within the Department of Work and Pensions.  Almost from the start it was apparent that those bright sparks deep in the warrens of Whitehall who had drafted the legislation and those whose duties were to implement its management structure had failed to appreciate  the monster they had created.   Quoting again from Wikipedia, “From 25 November 2013 all new applications for child maintenance will be made through the 'Child Maintenance Service' using the new statutory scheme and associated legislation. No new applications will be accepted by the Child Support Agency, although they will continue to administer existing cases”.

 
Until my sitting earlier this week it had been about four or five years since I had last sat in a CSA court.  By contrast for my colleague who has been on the bench for under two years it was his third such sitting; such are the vagaries of our rota system.  We had three appearances who argued against a liability order being granted against them.  Sympathetic as we might have been to their situations and inquisitorial as we could be within the strict limitations of our function we granted these liability orders and the others which were unopposed. 

 
Informal discussion with the CSA representative was not unproductive.  She said that unlike us she was undertaking court work for CSA two or three times a week and to some extent she did expect courts to rubberstamp all her applications.  She did appreciate that she did not have all the documentation to answer all our questions for the simple reason that they would in her opinion have had no relevance to the outcome.  We were told that in the event of a historical case where the child involved was no longer within the eligible age group for support any monies collected would go to the supporting parent only if s/he were on benefits at the time in question.  If that were not so then collected arrears go directly to the Treasury.  As an aside she was unable to deny that having a magistrates` court involved at this stage appeared to be a fig leaf.  Our L/A agreed that in general  at the court stage most of those appearing were in disagreement about their assessment and accepted, if with some reluctance, their liability.  What they disputed were the methodology and calculations employed by CSA to arrive at a final amount owing.  Common sense would seem to  indicate that some form of tribunal with greater powers than a magistrates` court available to investigate individuals` complaints at the final stage would be more transparent than the current format which is in the form of a CSA Conqueror Tank disguised as a CSA bulldozer.

Tuesday, 25 February 2014

ALCOHOL, SMOKING & ABORTION WEAVING STRANGE DESIGNS



Drinking and smoking are rarely out of the news the former activity being involved in perhaps half of all cases heard at magistrates` courts.  I have yet to be involved in a matter of smoking in a restricted environment.  Abortion is a word never previously written in this blog.  However it appears that the British way of muddling through some forms of legislation eg The Dangerous Dogs Act 1991 is with us once again. 

In 2012 there were 729,674 live births in the U.K.  The Court of Appeal is soon to hear a case of a six year old child allegedly damaged by her  mother’s  drinking during her pregnancy.  Foetal Alcohol Syndrome apparently is now involved in 1%  of all births.  This is an enormous number of babies at risk to a greater or lesser extent.  To put that in context: in the early 1960s about 12,000 children worldwide were born with various handicaps including malformed limbs their mothers having used the drug thalidomide during their pregnancy.  Of these births about 2,000 were in this country.  The law is, by all accounts, shortly to be involved with those who smoke in their cars whilst a child is also present.  There are those who consider this a step too far even for the nanny state that we have become.  However, whilst offering no opinion on that, I would draw attention to the fact that the  same legal system allows the abortion of healthy foetuses up to 24 weeks gestation.  I make no comment on the rights or wrongs or whys or wherefores of this legislation.  I would. however, sit this legislation alongside the two previous mentioned situations.  To the alien sitting on a Martian omnibus is it not unusual logic which can allow governments to weave such strange designs?

Monday, 24 February 2014

THAT REPORT AGAIN



The Policy Exchange report on the utilisation of magistrates in police stations has not gone unreported in the media.  This organisation has published many supposedly innovative ideas for the improvement of many systems currently under the umbrella of the Justice Ministry and the Home Office.  Whether one agrees or disagrees with any or many of them with regard to theory or outcomes Policy Exchange does make its voice heard at high levels. 

Police Federation vice chairman is quoted in Police Oracle as follows:- In an interview with PoliceOracle.com, Federation Vice-Chairman Steve White said the move would bring wider aspects of the criminal justice system up-to-date with the Police Service. He added: “The whole tenure of public service is changing. It is time that people catch up with the Police Service. “The criminal justice system and the magistrates' systems are highly inefficient. “We can run a 24/7 service in policing but it is difficult to do that when you are working against a very non 24/7 service. “In terms of swift justice, we would support the idea of being able to deal with cases much more quickly. “We have already had 24/7 courts during the riots and the Olympics and they worked very well. “We have no interest in prolonging justice.”

In the same issue 24th February, national policing lead for out of court disposals Chief Constable Lynne Owens, said that the recruitment of thousands of magistrates to take responsibility for out of court disposals would not be wise.  She added: “The Ministry of Justice’s simple cautions review found that overall these disposals were administered effectively by the police. Therefore, a conclusion that necessitated the recruitment of many thousands of magistrates to take over responsibility for the out of court disposal system would seem unnecessarily bureaucratic.”

To be fair to Richard Monkhouse Chairman of the Magistrates` Association he has been quoted as saying, It would seem a backward and totally inappropriate step for magistrates to deliver justice in police stations”.  However until this organisation faces the reality  that the government`s destination for Justices of the Peace is totally outside the courtroom his efforts on behalf of his members will be as effective as the flood barriers in Somerset.  

Friday, 21 February 2014

LIKE TURKEYS FOR THE SLAUGHTER



“O would some power the giftie gie us to see ourselves as others see us.”  Robbie Burns had the insight of the common man.  The pilots directing the Magistrates` Association are not common men.  They are flying by their instruments and have lost sight of the real horizon.  No better indication is there of this inability to realise they are travelling upside down than their response to a report published a few weeks ago by a right wing pressure group, Policy Exchange. Chairman of Magistrates’ Association Richard Monkhouse said:  ‘This report from Policy Exchange mirrors many of our suggestions and we are pleased to see that there is a wider view that much greater use can and should be made of magistrates.”  And that greater use  is removing much if not all court work from Justices of the Peace who would be replaced by corresponding increases in the numbers of  professional judges sitting alone or perhaps with J.P.s as wingers during trials.  With the financial costs balance of  the latter  cf  voluntary magistrates  in favour of  D.J.s if their legal advisors were  exchanged for low level low paid admin people it`s a no brainer.  British governments are becoming more authoritarian by the decade if legislative changes in all their manifestations challenging individual freedoms  are any guide to the future. Having more (political) control over decisions of the lower courts would be in line with current experience an example of which was when those involved in the 2011 riots were virtually excluded from being tried and sentenced by lay benches and were overwhelmingly presented to courts presided over by District Judges directed to impose exemplorary sentences.  I write from experience having myself presided over such matters after  my colleagues and I expressly ignored our L/A`s advice to refuse jurisdiction and send the case “up”. 

The Policy Exchange paper is available here.  Dealing with some of the points made by its authors my comments are:-

1.10,000 new magistrates placed in out of court situations.
In order to assess the comparative seriousness of  offences presented at police stations considerable experience would be needed.  Considering the current  minimum number of sittings required of a J.P. is 26 half days annually new colleagues take at least two years to get up to speed.  Newly appointed with some training they would be pawns in the hands of police. 

2.Court sittings in the evening and weekends.  
This change would, according to these very clever people at Policy Exchange, encourage younger volunteers to spend evenings and/or weekends away from their families and sit in court.  Of course all the other agencies where people are actually paid money to participate in court proceedings CPS, Police, Victim Support, Admin Staff, Security Personnel,  Defence Advocates etc etc would immediately agree to such innovation and money would be found to allow this.

3. J.P.s retire after 10 years on the job
 It goes almost without saying that those with experience in a highly complex second occupation should be fired at the peak of their powers.

4.”Magistrates’ Association should devise a new training package for 500 or so ‘problem solving’ magistrates and judges, specialising in dealing with people with drug and alcohol addiction”.
 I understand that there are already thousands of such people. They are known as social workers and/or probation officers although this government is rapidly reducing the ranks of the latter profession.

5. The creation of Justice Hubs 
I think “pie in the sky” describes this.

The executive of the M.A. in giving the impression that it has some support for  this nonsense shows that it is not fit for purpose.  Even turkeys don`t applaud the farmer on December 24th. 

Thursday, 20 February 2014

BRING BACK THE WORKHOUSE



I have opined here from time to time of the inadequacy of the criminal justice system when involved with many of the offenders whose lives are ruined by addiction and who are responsible for an estimated 70% of criminal activity.  Great numbers of them, if they have accommodation at all,  are usually housed in conditions where there is no permanence or support to assist their condition.  Mental health services can assist only a small minority of these people.  They spend their welfare money to obtain their drugs of choice and commit petty crime to live the rest of their poverty stricken lifestyles until their next court appearance.  This case reported in the Nottingham Post is repeated in substance many times daily in almost every large town in England.  Therefore is there not an economic and social argument to bring back the workhouse where, under appropriately qualified supervision, such miscreants could be offered basic housing where they could sleep with security and be induced to forgo their daily fix?   The costs would surely be worthwhile considering the unseen and off the balance sheet costs of their being in and out of the criminal justice system until the end of their foreshortened miserable existences.

Wednesday, 19 February 2014

NO RESPECT FROM HMCTS



From time to time my reader might have got the impression that my enthusiasm for this job is on the wane.  Being an astute individual he would be correct.  One of my moans has been the attitude of HMCTS towards us.  This badly managed organisation  considers us  as unpaid employees rather than appointees who are often out of pocket in offering ourselves to what used to be a very worthwhile voluntary position.  An example of this attitude is demonstrated by the fact that if we cancel a sitting it is logged into the system of statistics employed by HMCTS and presumably collated with other information held on us as  individuals.  But if said organisation cancels one (or more)  of our sittings that incident is  not logged.  That information came to me directly from those responsible i.e. the bench support team.  At a recent sitting a relatively new colleague, quite absorbed by a trial on which she had recently sat, told me that when she asked the self same personnel at the bench support office  to be rota`d to sit on the sentencing bench for that offender’s  next appearance she was told quite bluntly that it would be that team which would decide whether or not she could sit and not the J.P.  This decision is extremely disturbing.  In fact it is a bloody disgrace.  I told my colleague that J.P.s have the same authority and powers as a District Judge and at least two of them in the past and our current bench chairman have confirmed to me that within normal parameters of bench composition every effort should be made by a bench support team to accommodate such a request and that the response of the individual concerned was quite inappropriate.  Another example of the instructions which apparently have infected the manner in which admin staff have been told to regard us happened about three  months ago. 

As a chairman, like all my colleagues, I expect about 25%-30% of my rota`d sittings to be as a winger but when I offer “extras” I offer to sit only as a chairman.  One day, however,  having noted in my diary an extra sitting, I received an e mail the day prior informing me that that particular extra sitting would be as a winger.  I told the bench support team person that in that case I declined to sit whereupon she said to me, “I must remind of the rule  that you cannot choose not to sit as a winger if that`s where you are allocated.”  I told her I didn`t need reminding of any rule and that if I offer an extra sitting as a chairman only and that allocation is changed by her team then I am under no obligation to fulfill that sitting; it was a voluntarily offered additional sitting to assist the court.  That was the end of the matter but it seems that conversations like those  could only have happened because instructions have been sent by HMCTS on how relationships with J.P.s must be handled. 

Legal advisors are already in acceptance of an employer which treats them as numbers to be deployed at the whim of that employer and whose status as lawyers has now no significance whatsoever.  They are a workforce whose moral has shrunk to zero.  Increasingly my colleagues are coming to the realisation that they too are held in similar disrespect by HMCTS.

Monday, 17 February 2014

SOME THOUGHTS ON SUSPENDED SENTENCE ORDERS



There is, arguably, a common perception…..misconception?.......that those who commit serious criminal offences  are sentenced too leniently.  In real terms such comments are often related to offenders whose custodial sentence is suspended.  Custody suspended is  a disposal only when the custody threshold has been breached i.e. the offence is so serious that only custody is appropriate and that it is inappropriate to impose a stand alone community order or fine or any other non custodial sentence.  The obvious effect of such a sentence is that it might act as a deterrent against future offending within the period of suspension because the default position in that event would be immediate activation of all or part of the sentence.   I have copied below the relevant section of the original guidance on breaches of a suspended sentence.

C. Breaches 2.2.15 The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings.31 Where there is a further breach within a twelve-month period, breach proceedings must be initiated.32
2.2.16 Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence.33
2.2.17 Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision.
2.2.18 If a court amends the order rather than activating the suspended prison sentence, it must either make the requirements more onerous, or extend the supervision or operational periods (provided that these remain within the limits defined by the Act).34 In such cases, the court must state its reasons for not activating the prison sentence,35 which could include the extent to which the offender has complied with requirements or the facts of the subsequent offence.
2.2.19 If an offender near the end of an operational period (having complied with the requirements imposed) commits another offence, it may be more appropriate to amend the order rather than activate it.
2.2.20 If a new offence committed is of a less serious nature than the offence for which the suspended sentence was passed, it may justify activating the sentence with a reduced term or amending the terms of the order.
2.2.21 It is expected that any activated suspended sentence will be consecutive to the sentence imposed for the new offence.
2.2.22 If the new offence is non-imprisonable, the sentencer should consider whether it is appropriate to activate the suspended sentence at all.


Where the court decides to amend a suspended sentence order rather than activate the custodial sentence, it should give serious consideration to extending the supervision or operational periods (within statutory limits) rather than making the requirements more onerous.

As far as magistrates` courts are concerned some relevant figures for the Y/E September 2012 are that 1,113,388 offenders were sentenced.  Of those 68,942 received custodial sentences of which 23,331 (34%) were suspended.   What I cannot find from the above  figures is the number of those who have breached their suspended sentence orders. 

The problem with SSOs is that there is an underlying prescription within the Ministry of Justice that prison sentences are to be avoided and that such sentences should be reserved for those most likely to be harmful to the citizen going about his lawful business.  However since the riots of 2011 and the ongoing stirring up of fear of terrorism  those whose actions threaten the stability of the state appear also to  be subject to increasingly harsh immediate custodial sentences.   My experience of structured sentencing is that many legal advisors when presented with a bench`s decision of immediate custody will offer “advice” that perhaps there is enough wiggle room to suspend the sentence.  The whole analysis of deciding if an offender having clearly breached the custody threshold should be mitigated to that sentence being suspended is thrown into disarray by sentencing at crown courts.  About 16% of sentences for either way or indictable only offences receive community orders. That includes those offenders who elect trial by jury and those sent there for sentencing from the lower court.

Sensational headlines like this are nothing new.  But there is no doubt the whole process of  a suspended custodial sentence is a very hot potato. We can only chip away to its underlying principles as best as we can in order to use it justly for all involved.  

Friday, 14 February 2014

VALENTINE`S DAY MUSINGS


Of all the recent press releases from the Ministry of Justice perhaps the most heartening was that issued earlier this week reducing the period during which offenders will be required to inform potential employers of their criminal record. Having been an employer for much of my working life I am well aware of the arguments opposing such a change but there is no doubt in my mind that such a proposal can do more for the rehabilitation of offenders than any amount of classroom therapy. With money in their pockets from gainful employment the likelihood of acquisitive criminality by offenders is going to be much reduced.

Crime recording mistakes in Hertfordshire Constabulary are caused by “inexperience, naivety or misunderstanding” of the complex rules rather than “unethical decision-making”,  says the deputy chief constable of that constabulary. My inexperience, naivety or misunderstanding of how police forces conduct their business leads me to believe otherwise.


During lunch time in the summer months in our retiring room I have noticed that some colleagues strip right down to skirt and blouse and occasionally even open a top button or two to allow themselves to cool down......and that`s the men.......but seriously it seems that in Bosnia and Herzegovina more drastic action was taken by a judge suffering from the heat last summer.


County Durham magistrates` courts are in line for a shake up such has affected the administration of summary justice over all of England & Wales since 2011. Courts are being amalgamated and offences centralised by type irrespective of the transport difficulties and costs involved for defendants. For anybody involved in the administration of justice in this country when it`s time to put a cross on the ballot paper next year consideration should be given to the savagery with which access to justice has been curtailed for millions of people by the actions of this government.


It`s a strange world sometimes. Officers from the Police Service of Northern Ireland (PSNI) are to begin the process of re-interviewing witnesses as the force’s criminal investigation into the events of Bloody Sunday gathers pace. During my professional life I was consulted by an ex member of the Parachute Regiment many years after the events of that dark day. In the course of conversation he told me in a quite matter of fact manner of how he and his comrades did indeed shoot un armed marchers when they were so ordered to do. I recollect trying to proceed with the consultation as if he had been remarking on the weather.


The Ministry of Justice has published “Proven Re-offending Statistics  Quarterly Bulletin April 2011 to March 2012, England and Wales”. Those with the patience and fortitude might wish to study the document  bearing in mind that it is with such tables that the ministry will in due course be attempting to show that its incoming payment by results for the rehabilitation of offenders will have been a success.


Greater Manchester Police for many years has had a record of unsavoury administration and unacceptable actions by its officers from top to bottom of its ranks. It seems that problems there, far from being brought under control, are continuing. Quite simply it seems sexist, racist and homophobic attitudes are endemic in that organisation.


Since this is Valentine`s Day my memory goes back to my early teenage years when on my return from school I would look with eager anticipation to see if the postman had delivered any unusually large envelopes with my name hand written on them. I don`t know if I would be pleased or disturbed if similar were delivered later today.

Thursday, 13 February 2014

ONE NATION?????



Until a few years ago the magistracy defined “localcy” as one of its strengths.  All the actions of the Ministry of Justice and its associated agencies are based on redefining the system as “national” whilst perhaps  retaining the original label when it suits their purpose.  Of course local knowledge can be argued to be a strength for the recruitment of individuals to the position of Justice of the Peace.  Strangely or not so strangely those same officials responsible take  no cognisance of that thinking process in the appointment of District Judges(M.C.).  What is undeniable is that the box ticking approach to sentencing has probably still some way to go.  Magistrates and Crown Court Judges are increasingly referring to nationally applied guidelines to minimise their chances of being appealed.  But guidelines apply only as far as the demographics of the areas over which courts operate. 

Disqualification of offending drivers takes place mostly  in magistrates` courts. An interesting study has revealed that Smethwick in the West Midlands has the most disqualified drivers per head in Britain.  160 of its 20,194 drivers (0.8%) were disqualified in 2012.  At the opposite end of the scale Harpenden in Hertfordshire had  only one tenth of that percentage of its drivers banned; 19 of 23,347 drivers (0.08%)  

The demographics of these two towns are also at opposite ends of any measurable scale…….educational and income  levels, occupational status, health outcomes etc etc.  Are we to believe Milleband when he claims   that he`s the flag bearer of one nation politics or does Disraeli`s dictum of one nation Conservatives still hold in the hands of Cameron?

Wednesday, 12 February 2014

A REGULAR OCCURRENCE



I think it was an impatience with the way in which the whole paraphernalia of court and legal processes was stymied by gross inefficiencies intolerable in any properly managed organisation which prompted me some five years ago to put these  frustrations into some form of coherent English  called The Justice of the Peace blog.   Little has changed.  On December 20th last year I posted inter alia that inefficiency within HMCTS was responsible for around 28% of non effective trials in magistrates` courts.  A day`s events a few weeks ago showed that administrative failures within my own court`s administration are the cause of more than merely trials being non effective.

The non CPS morning court was surprisingly smooth running.  Everyone who was listed duly appeared.  The lawyer for the local council was fully prepared with colleagues to back him up.  Defendants` lawyers were in place and ready to go about their duties.  Indeed such was everyone`s  efficiency that we had completed all our business by about 12.15p.m.  There being apparently no further non CPS business we thanked council lawyer for his efficiency and had an early lunch.   Turn the clock forward to 2.00p.m. and unexpectedly two more matters were listed; also non CPS but that afternoon sitting was an altogether different kettle of legal fish. 

Mrs M. was listed to appeal against a noise abatement notice.  There was no sign of said lady nor a representative of the local council the latter having apparently left the building after having appeared before my bench until 12.15p.m.  Further enquiries by our clerk elicited the information that the adjournment notice which ought to have been sent to both parties subsequent to the previous hearing had not been sent. The case was re-listed.  Our second and final matter was one of a defendant`s claim of wasted costs.  Apparently a previous hearing had resulted in a situation where it had been agreed that maladministration by the council  had occurred and the current day`s hearing was to try to come to some agreement between the parties.  The defendant`s solicitors   had been  informed that the case had been listed at our other building that very morning.  Counsel had turned up and presented herself  there on time only to be informed that there had been misinformation by the court office and that the case had now been hurriedly listed in my court at 2.00p.m.  So far so good……..She stood before us at about 2.15p.m.  H o w e v e r…….nobody in that other court building had bothered to contact the same lawyer representing the same council who had been present with a team of four assistants before my own court that morning and who would have been able to delay his departure and do his job had he been made aware of the changed situation. So a simple matter of sorting out wasted costs was compounded by probable further wasted costs only this time against HMCTS.

We enquired of our clerk the likely consequences for those admin staff who had failed miserably in their simple duties.  Unhesitatingly she told us; zero consequences.  And she ought to know.  As she said to us; for her and her colleagues such events are daily occurrences and happen as regularly as the sun rises and sets. 

Plus ça change, plus c'est la même chose.

Monday, 10 February 2014

IS IT ALWAYS WRONG TO BE PREJUDICED AGAINST A WITNESS`S EXPRESSION OF RELIGIOUS FAITH?



We take for granted that defendants will be judged upon the evidence before a court and that any prejudices held by those presiding over that court will be set aside.  And that is generally  how it should be.   Nowhere is this pillar of procedure more important than in the case of culture and religion.  It could  fairly be said that prior to 1939 this was a “Christian country” however that term was defined.  In many ways the 2014 edition of the U.K. is a very distant derivative of its pre war ancestor and the judicial progeny of this era privileged to sit in judgement of their fellow citizens have arguably a more difficult task in facing their own prejudices than their predecessors.    

Census figures show that 176,632 people in England and Wales identify themselves as Jedi Knights, making it the most popular faith in the "Other Religions" category on the 2011 Census and the seventh most popular faith overall. My awareness of this religious group is confined to the understanding that its adherents do not practise their faith in any manner harmful or detrimental to others..  More to the point they don`t believe in human sacrifice or any other tenet which right minded people would find repulsive and against any concept of morality one might care to mention.  But here`s the rub……..where do beliefs, however honestly held, conspire against our concept of a just and humane society and more to the point; where do we place them within our courts system? 

 

If a Mexican appeared before us professing his belief as a descendant of Aztec priests and wishing to swear by his god  Huitzilopochtli with a consequent and stated belief in the removal from a person of his/her living human heart as his best means of eternal salvation would he be asked to affirm?  Would his testimony be regarded as tainted?  Would a self proclaimed Jew hater member of an extreme political party be entitled to the same consideration in the witness box as Joe public if such beliefs were tangential to the matter in hand?  During the recent court case of a Moslem woman who refused to remove her veil the judge was reported to have said that it would be  “"quite wrong" to be prejudiced against a person's expression of religious faith”.     If at a future time eg a self confessed jihadist sympathiser  recently returned from activities in Syria were to find himself in the witness  box would a jury be wrong to be prejudiced because of his beliefs which could or would be described  as an expression of religious faith?  

Friday, 7 February 2014

READING THE RUNES



With an election approaching like a high tide on the Devon coast the legislation flowing from the Ministry of Justice is in danger of overwhelming the defences of the legal profession and others with a vested interest.  Its current occupant Chris Grayling hopes to have  Royal Assent for his  Criminal Justice and Courts Bill before the forthcoming deluge for the Tories in May 2015. With its press office on steroids, the latest changes proposed re J.P.s` responsibilities  are reason enough to harden my convinction that there is a powerful unseen current determined to rid us completely from the courtroom.  He proposes to placate our anticipated  anger at our removal from that arena by ensconcing us as single magistrates  in a back office with no public access to  deal with more than three quarters of a million ‘low-level regulatory cases’, such as TV licence evasion and road tax evasion.  But that is not enough for the weasels advising a Justice Secretary without a legal background.  The bill also allows some summary-only, non-imprisonable offences to be dealt with by a single magistrate supported by a legal adviser out of the courtroom.  These would include:-

alcohol sales offences s.146; sales to children
drunk and disorderly
some football related offences
public order s.5
taxi touting
careless driving
no insurance

It amazes me when many(most?) of our representatives refuse to acknowledge, at least in public, this unspoken agenda being prepared for our redeployment.  The runes are in front of us.  All they require is the minimal skill to read them. 

Thursday, 6 February 2014

AT A MINUTE TO MIDNIGHT// A TALE OF AN UNEXPECTED MORNING



Since January 1st 2012 our work has been divided between two buildings; the larger for trials and video remands and the other with only three courtrooms for remand, sentencing and breach courts.  We also have two full time DJs so much to the disquiet of the whole bench only about 25% of our sittings are located in the rat tat tat bustle of the latter.  As I understand the situation this uneven division of our activities is widespread.  So at a recent sitting when 10.00am arrived and my colleagues and I entered courtroom #5 we expected the usual excuses to explain why this or that trial would  not proceed as expected.  However after some minutes receiving updates on the three trials listed we were asked to retire on the basis that some discussion might expedite matters…….court jargon for expected change of plea.  Accordingly we enjoyed our first coffee of the morning.

Kieran had decided that the last minute view of the film taken by a nearby CCTV system when he had spat in her face made it unlikely that he would survive a trial with his denial intact.  His lengthy list of previous low level criminality was a clear indication that although he was only in his mid twenties he had an alcohol problem out of control…..surprise, surprise…..along with 70% of offenders addiction was the root cause of his anti social behaviour. As the sentencing pronouncement was completed, including the bench`s disgust at his actions which showed his contempt for the officer and her uniform,  he spontaneously requested the opportunity to apologise to her as he recognised her sitting at the back of the court.   This was granted with additional advice for him to take advantage of the alcohol treatment requirement ordered as part of his sentence. 

Without further ado Jamil was summoned from the cells and pleaded guilty to assaulting his father and mother both of whom were over 70 years of age.  The facts were recorded as his having been arrested initially for  assault causing actual bodily harm.  This had been reduced to assault by beating.  After hearing the facts our expressions must have revealed our disquiet at this decision by CPS.  Undercharging on such matters is commonplace.  We then discovered that there was disagreement on the factual basis for this change of plea. Another cup of coffee and we returned to be told of the newly agreed facts on which a guilty plea would be accepted.   He had been on remand so long that his 23 week sentence meant that he would be released after about 10 days inside.   He looked impassive, his lawyer satisfied and his parents resigned as the jailers led him away. 

It seemed only a moment after Jamil exited that Mandy was standing in his place.  She too, on legal advice, had changed her plea on criminal damage and a harassment charge to guilty.  Her history of offending was horrendous.  At 36 years of age she had three pages of previous on the PNC.  About two thirds of her convictions consisted of offences   not dissimilar to those that she had now admitted.  We listened to mitigation and noticed that three offences previously, in August last year,  she had been sentenced at crown court to twenty two  months custody suspended for two years.  Neither the CPS agent nor the defence advocate had referred to this.  We could only assume that everyone, including two previous benches, had ignored or overlooked this “minor” detail.  After some discussion we decided to send her back to crown court for sentencing on all matters including activation of all or part of the suspended sentence.   

So at a metaphorical one  minute to  midnight a morning lacking in all expectation turned out to be one where we were able to put to good use our training in structured sentencing.

Tuesday, 4 February 2014

OF COURTS AND CARTOONS



It has been few  weeks since the rumblings  caused by a cartoon featuring Jesus and the Prophet Mohammed worn by students on T shirts at a Freshers` Fair in January.   It has been a week since these rumblings caused an eruption  of protest owing to the aforesaid cartoon being censored before being shown to T.V. audiences in discussion programmes on Ch 4 and BBC2  because the programme hosts described it as possibly causing offence to some viewers.



Last week a defendant in crown court who insisted on wearing a full face veil (her normal garb) were she to give evidence in her own defence,  refused to enter the witness box after being informed by the judge that her evidence could only be presented if the jury could indeed see her face.  She was on trial with her brother.  After deliberating for only twelve hours the jury was unable to reach a verdict.  Both were discharged and shortly afterwards she returned to court to plead guilty.  She is yet to be sentenced.  No further action is to be taken against her brother who also had been charged with witness intimidation.  This case is the most disturbing so far that I can recollect where the veil issue has been fundamental to the judicial process.   The resultant guilty plea followed by the dropping of all charges against the brother co-defendant might be thought by some to open a can of theological,  social and legal worms. 



On 6th October 2010 I posted as follows:-

 The Judicial Studies Board has recently published in 45 pages “Fairness in Courts and Tribunals: A summary of the Equal Treatment Bench Book”.
Considering this guidance is aimed at judges and magistrates [and others involved in the courts system] much of it is like feeding a grown man….oops……a grown person of either or indeterminate sex…….with a spoon. However where perhaps guidance might be very useful; on the subject of face covering the message is vague. Perhaps that is at it should be. Judges and magistrates must be able to use their discretion. Society expects that discretion to be exercised wisely. The consequences are grave if that facility is found wanting. The relevant paragraphs re the veil are copied below."

For those Muslim women who choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity and the woman’s involvement in the criminal, civil justice, or tribunal system (as advocate, witness, party, member of court staff or legal office-holder) may well have a significant impact on her sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals. This is of particular concern for a system of justice that must be, and must be seen to be, inclusive and representative of the whole community. While there may be a diversity of opinions and debates between Muslims about the nature of dress required, for the judicial system the starting point should be respect for the choice made, and for each woman to decide on the extent and nature of the dress she adopts. Any consideration concerning the wearing of the niqab should therefore be functional and appropriate to the circumstances of the particular case. The primary question is: what is the significance of seeing this woman’s face to the judicial task that must be performed? How does the ability or not to observe her facial expressions impact on the court’s decision-making, given her particular role in the proceedings? A distinction can be made between situations where this may be useful or important (for example, when assessing the evidence of a witness, particularly one whose evidence is in dispute), situations where it is essential (for example, for purposes of identification), and other situations where it may not be of any relevance (for example, for court clerks or ushers or where formal evidence which is not disputed must be given by a witness).

Victims or complainants. It is important that people are not deterred from seeking justice or from getting a fair hearing as a result of exclusion from the court process. Where possible a woman wearing a veil should be permitted to give evidence, either in court in her veil, or with the assistance of screens, video links or, in appropriate cases, by clearing the public gallery if she is happy to remove her veil. The most appropriate course will depend on the issues in the case. As with any consideration of permitted special measures, this is a point on which a decision should ideally be reached after discussion at a case management or preliminary hearing, rather than at a final hearing in open court. A short adjournment should be given to enable the woman concerned to seek guidance.

Witnesses or defendants. Similarly, a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses and may affect the quality of evidence given. The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence. Again, special measures may be available to mitigate the difficulty.

Advocates. The starting point should be that an advocate wearing a full veil should be permitted to appear wearing her veil. The interests of justice will be paramount and you may need to consider whether, in any particular circumstances which arise, the interests of justice are impeded by the fact that the advocate’s face cannot be seen or (if this be so) the advocate cannot be heard clearly.”

A further ramification of this cartoon controversy is that the Lib Dem parliamentary candidate and devout Moslem Maajid  Nawaz who supported the publication of the drawing has been at the receiving end of death threats and a concerted attempt to oust him as his party`s 2015 general election candidate for   Hampstead and Kilburn.  Until the horrific murder of  Lee Rigby by a self confessed “soldier of Allah”  such threats might have had only little significance for those threatened. That now is not the case.  Statements from police  that returning British Moslems from Syria are liable to face arrest  have probably ramped up the threat level to those of that faith who  speak out against their co-religionists` Saudi sponsored Wahhabism.




The secularism of the country`s legal system is under threat.  Courts offer those whose religious beliefs preclude their taking an oath on a holy book eg Orthodox Jews,  the opportunity to affirm.  I do not think I have ever sat on a case where a witness of Arabic appearance, identity or name ever declined the Koran in preference to affirm even when that witness has given evidence of activity contrary to his faith.  That is perfectly understandable.  Many who swear by the Gita, New Testament or the Hebrew Bible also admit to practices against the tenets of their religion`s founders.  Perhaps the thinking and philosophical processes which initiated the Protestant  Reformation of the early 16th Century and subsequent divisions  or the breakaway from Orthodox Judaism by reformists in the mid 19th and 20th Centuries  have yet to reach sufficient momentum to allow those Moslems of similar inclinations to have the courage and/or will  to follow a similar path. 




For every Justice of the Peace his/her next sitting could be that which delves deep into the way s/he considers that secularism must defeat the type of narrow mindedness which followed the Reformation and killed tens of thousands of Christians across Europe just because their understanding of Jesus Christ and His place in their society was in opposition to that of their fellows who believed in the same saviour.  Colleagues in Leicester found themselves in just that situation in 2010.  There are likely to be other unreported examples.  With the repeal of insulting language as a basis for a s.5 charge I hope that those who might  feel offended in future will come to understand that the country of  Hogarth  and Peter Brookes via Blackadder and TW3 exists in its current form from the very freedoms allowed those purveyors of occasionally offensive social humour.