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 If any comment seems submitted just to advertise a website it will not be published.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, 27 November 2015
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.
Thursday, 26 November 2015
Wednesday, 25 November 2015
Tuesday, 24 November 2015
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.
Monday, 23 November 2015
Friday, 20 November 2015
Thursday, 19 November 2015
Wednesday, 18 November 2015
Tuesday, 17 November 2015
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.
Monday, 16 November 2015
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.
Friday, 13 November 2015
Thursday, 12 November 2015
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.
Wednesday, 11 November 2015
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.
Tuesday, 10 November 2015
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.
Monday, 9 November 2015
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.
Friday, 6 November 2015
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.
Thursday, 5 November 2015
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.
Wednesday, 4 November 2015
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.