WAS THIS MAGISTRATE A MUPPET?

When I was appointed a chairman I recollected the wise words of a colleague, "Don`t get to love the sound of your own voice".  And how true she was.  

As a bench chairman when you are speaking generally no other voice or interruption is permitted unless perhaps the legal advisor is making a salient point.  When a bench decides to sentence outside the Sentencing Guidelines it is appropriate to make clear reasons for so doing.  These should be logical and significant and directed to the specifics of the offence and/or the offender.  I find the the report of a driving whilst disqualified case at North Wiltshire Magistrates Court on Thursday somewhat disjointed insofar as the chairman`s remarks related to the situation.


"If we followed our sentencing guidelines you would lose your job," she said. "I really want to give you a lecture about being honest with your employer and if you had been honest you might not be here in the first place.
"We are going to go against our guidelines with huge reluctance and we will impose a community order of unpaid work of 98 hours. For driving without insurance we are going to fine you £353 and you must pay £85 in costs and a victim surcharge of £85." 

 The Guideline for this offence is copied below.

Considering he was almost halfway in to his 22 month ban the starting point would appear to be a medium/high level community order.  It can hardly be considered that his ban was "recently imposed" as the bench seems to have concluded because that is the only logical route the bench could have taken to state that, "you would lose your job" with the underlying consideration that that consequence would arise from a custodial sentence suspended or otherwise being imposed.  

My opinion for what it`s worth is that the final disposal of indeed a low level community order negates entirely the the pompous verbosity of the bench chairman.  This apparent unstructured and patronising behaviour is not worthy of a bench chairman and would be another reason for some lawyers to conclude that the word muppet is an accurate designation for my former colleagues.

EXPLANATIONS OR EXCUSES?

Today`s post is all statistics; well mostly. Quarterly court info is available here. Also published today is a  50 page guide to legal aid to supposedly explain the current manner in which the statistics of this apology, for what was once a comprehensive system to offer many defendants the opportunity to have equality of arms in the courtroom, are produced.  And finally a report to explain why happy children in comfortably off loving and well adjusted families who care about their schooling are less likely to offend than others not so fortunate.

IS IMPROVED CAR CONNECTIVITY REDUCING MOBILE PHONE OFFENCES?

It is not unlikely that with increased connectivity as standard equipment  in cars,  using a mobile phone when driving is an offence that will diminish over the next decade unless legislation changes and  remote use is also banned. My son`s three year old Golf has mobile connectivity built in. I had to have installed a commercially available system on my 20 year old Mercedes. Be that as it may there are still offenders who reject a fixed penalty and appropriate penalty points to try their luck in court.  Figures from 2010-2014 are interesting. 

Simple analysis shows that around one fifth of those caught opted for a not guilty plea in court assuming that rarely did somebody go to court to plead guilty. I have no figures for those in that category who might have pleaded special reasons.  

Many organisations; motoring and others complain of the inactivity of police for the apparent reduction in FPNs for use of a mobile phone when driving.  Could it not be as per my opening sentence that improved technology is the real reason that drivers appear to be talking and driving?  We have all heard stories in court of police evidence of sudden movement of mobiles from hand to elsewhere in a vehicle............

REDUCE JAIL OVERCROWDING BY INCREASED SENTENCES

There is much discussion on Twitter and elsewhere on our overcrowded prisons coupled with the sentencing of juveniles.  There is no doubt that reforming of criminal tendencies is best attempted at the earliest stage possible.  Prison exists to deter, punish, protect the public and rehabilitate.  Many are wailing that increases in custodial sentences especially for juveniles are a cause not an effect of overcrowded jails. Perhaps there is another reason which might at first thought be considerd counter intuitive: prison no longer deters because most sentences including those currently criticised for being too long and those proposed eg for manslaughter (in effect) by dangerous driving are imposed at a rate of 50% in jail and 50% on license. Indeed instructions to magistrates are to pronounce such on the 4% of offenders sentenced to immediate custody in their courts. If there were no assumed 50% reduction or a much smaller percentage had to be earned the immediate deterrent effect would be obvious. Thus paradoxically it is not unlikely that a perceived and actual higher period to be served behind bars would lower the prison population by its deterrence value.  Perhaps the nearest analogy is the proven effect that higher tax rates generally reduce the tax take.  I am no economist nor criminologist but in the wake of current opposition party thoughts on tax and judges, whose influence on the Sentencing Council is paramount, imposing ever higher sentences framed by said Council who is to say that they only have all the right answers.

WANT TO BE A MAGISTRATE? THEN AND NOW

When I was appointed J.P. in the 1990s the basic requirements to be considered for the post were:-

ESSENTIAL QUALITIES
There are, however, six key qualities which are regarded as vital if you are to perform
successfully in the role of a magistrate. It doesn’t matter how or where you developed
these qualities. It could be through your current or previous employment, involvement
in community or voluntary activities, public appointments, leisure activities, family life
or academic study. The most important thing is that you can demonstrate these in the
selection process and, if appointed, apply them to the role. They are:
 

° Good character: to have personal integrity and enjoy the respect and trust of others.
° Understanding and communication: to be able to understand documents, relevant facts, follow evidence and communicate effectively.
° Social awareness: to appreciate and accept the rule of law.
° Maturity and sound temperament: to have an awareness and understanding of people and a sense of fairness.
° Sound judgement: to be able to think logically, weigh arguments and reach a sound decision.
° Commitment and reliability: to be committed to serving the community, willing to undergo training and to be in sufficiently good health to undertake your duties on a regular basis.
 

HEALTH AND DISABILITY
 

We will not be able to select you if your health prevents you from carrying out a magistrate’s range of duties. However, applications are welcomed from people with a disability who are able to carry out their duties either unassisted, or with the benefit of certain reasonable adjustments made to court premises or working/sitting arrangements in accordance with section 6 of the Disability Discrimination Act 1995.

NATIONALITY
 

British nationality is not a requirement

AGE

Minimum age is 27 and magistrates must retire at 70. Generally applicants must not be over 55

Current requirements are:-

 Age

You have to be over 18 and under 65.
Magistrates must retire at 70 and are normally expected to serve for at least 5 years.

Health

You need to be able to hear clearly, with or without a hearing aid, to listen to a case.
You also need to be able to sit and concentrate for long periods of time.

Personal qualities

You need to show you’ve got the right personal qualities, eg that you are:

• aware of social issues
• mature, understand people and have a sense of fairness
• reliable and committed to serving the community

You also need to be able to:

• understand documents, follow evidence and communicate effectively
• think logically, weigh up arguments and reach a fair decision

Good character

It’s unlikely you’ll be taken on if you have been:

• found guilty of a serious crime
• found guilty of a number of minor offences
• banned from driving in the past 5 to 10 years
• declared bankrupt

Conflicts of interest

You can’t be a magistrate if you work in one of a small number of jobs where there could be a conflict of interest - eg if you are a police officer.

Time off for magistrate duties

You will need to be in court for at least 13 days, or 26 half-days, a year.
Discuss with your employer how you will balance your work and magistrate duties.

Your employer must, by law, allow you reasonable time off work to serve as a magistrate.

You will get your rota well in advance, so you can give your employer plenty of notice of when you’ll be in court.

Interesting isn`t it that you still don`t have to be British. You can retain your passport from eg Australia or Zambia and sit in judgement in a British Court if the Ministry considers you suitable.  I still haven`t made up my mind whether or not basic current advice is more realistic than that of the 90s

LATE NIGHT PISS UP IN CHESTER//THE SEQUAL

Local councils are forever juggling services with limited and sometimes reducing amounts of cash. Some have on line forums where tax payers can offer their preferences as to which services can manage with reduced funding.  As such a tax payer I think I might have been removed from the local list after my answers might not have satisfied the pre determined targets. Be that as it may the City of Chester has a knack as I posted October 27th for making itself newsworthy for all the wrong reasons. In order to re-allocate limited cash amounts the city council closed all but five of its public conveniences and agreed with some  local retail businesses that those with bladders at bursting point could relieve themselves on their premises without an obligation to spend even so much as a penny. All well and good but after these shops close in the evening their facilities are unavailable with the remaining council run loos also closed.  The result is as plain as the noses on the faces of the local worthies of that ancient city.  When the pubs and clubs are shut relief beyond belief is obtained in as private a location as public spaces allow and in Chester that is often the ancient walls built to keep out the barbarians. Miscreants sniffed out by the local boys [and girls] in blue were offered an opportunity to tour such places to immunise them against repeating the offence and thus avoid a fine or court appearance.  That remedy seems now to hold no water. Councillors in their wisdom have decided that the walls be coated with a splash back paint to deter such activities. 

Perhaps they should admit defeat taking the lesson of Clochmerle (published in France 1934 and BBC TV 1972) in how not to proceed and provide 24 hour facilities for their fellow citizens instead of the superficial satisfaction of such slippery sanctions. 

MANCHESTER POLICE//A LAW UNTO THEMSELVES

"The complexity of the challenges police officers face means that their leaders need to set the highest standards of integrity, honesty and objectivity if they are to be trusted and respected by the public.  You hold positions of great authority.  You have to sustain public confidence. You hold the police to account and it is up to you to demonstrate by example and live by high ethical standards".

These are some of the words of   Richard Thomas, a Member of the Committee on Standards in Public Life when he spoke earlier this week at the CoPaCC "OPCC Transparency" Quality Mark awards.

Perhaps Greater Manchester Police live in a different world.

KNIFE OFFENDERS INCARCERATED.

There are many who bemoan the increase in numbers being given custodial sentences.For those of us with experience of actually making those decisions they are not made lightly.  Indeed they are often arrived at with a heavy heart. The figures released today on offences associated with knife possession illustrate a problem that does not go away.  Judges and magistrates are faced with protection of the public in addition to consideration of the offender.  The public outcry when such a balance goes wrong and further crimes are committed is not pleasant for those involved in the original decision. Transform Justice and the Howard League eg, both lobbyists beloved of the intelligentsia, would have many such offenders rehabilitated without incarceration: so would we all.  In practical, financial and political terms it ain`t going to happen. Whether that is a welcome or unwelcome conclusion is not for this post.  

 

THE DECLINE OF THE JUSTICE OF THE PEACE

The Magistrates Association cannot answer the question owing to its becoming increasingly irrelevant to Justices of the Peace and consequently supposedly represents around only 80% of a reduced workforce.  That question which has been in the minds of many interested parties was finally answered two days ago by a written parliamentary answer; to wit the numbers of J.P.s who have resigned over the last few years.  The important word is "resigned" because thousands have been compulsorily retired since 2010.  

Oliver Heald The Minister of State, Ministry of Justice

The requested information is provided below. Figures are compiled by financial year.
(a) Since 1^st April 2016 to date, there have been 842 resignations
(b) During the financial year 2015/16, there were 952 resignations
(c) Since 1^st April 2010 to date, there were 8,253 resignations

Latest figures show that in April 2016 there were 17,552 serving magistrates of which 57% were aged 60 and over. Resignations, however, are not retirements.  In 2010 there were 26,970 serving magistrates.  In most business activities so called human resources officers would have immediate responses to such a rapid decline in participation and plans would be in hand to investigate and conclude as to what remedies if any were required in the situation.  My opinion for what it`s worth is that deep in the bowels of Petty France London SW1 such plans are indeed being considered.  Magistrates have resigned in line with the closure of over one third of the magistrates` courts in England and Wales. Increased travelling time for the millions of willing and reluctant participants in court procedures has not held any sway with arguments for retaining local courts especially in rural areas such as North Wales and Cumbria.   But J.P.s have voted with their feet, their cars or on public transport.  They have not been prepared to spend an hour or more travelling each way as members of an enlarged bench to a distant court building. Many do not relish the prospect of being super social workers in the name of rehabilitative justice; a prospect that the MOJ is holding out as an answer to overcrowded prisons. They certainly have found the attitude of HMCTS in treating them as unpaid employees not to their liking.  Indeed the removal of any sense of being independent local Justices dispensing local justice in local courts  whilst attractive perhaps to supercilious lawyers  and greasy pole climbing Justices` Clerks has had much to do with the disillusionment felt by so many of my ex colleagues. 

Sad to say we are seeing the last decade of magistrates` courts as they have developed since the 14th Century with local worthies independent and unpaid, generally ethnically representative of their communities being replaced by courts over which preside single professional judges beholden to the state for their salaries and pensions.

DRIVING OFFENCES//THE TOTALITY PRINCIPLE

Currently the fixed penalty for using a mobile phone whilst driving is 3 penalty points and a £100 fine.  For driving without insurance an offender can be fined up to £5000 in court and be subject to 6-8 penalty points or even a driving disqualification of up to 12 months if there are severe aggravating circumstances. Indeed the penalty for mobile phone use will be increased next year to 6 penalty points and a fine of £200.  When it comes to sentencing offenders for multiple driving offences in actual practice benches are ordered to use the principle of totality.  In effect the most serious offence is the one on which punishment is based and other offences are treated as "aggravating".  The logic of this approach has always defeated me when one offence does not follow from another; i.e. the offences are quite dissimilar.  Using a mobile phone when driving and having no insurance compounded by not having a suitable driving license or MOT fall into this category.  

Today the Scunthorpe Telegraph reported the following case from North Lincolnshire Magistrates` Court:- " SIMONAS MILIAUSKAS , 26, of Frodingham Road, Scunthorpe, pleaded guilty to driving while using a hand-held mobile phone, using a vehicle without insurance and driving otherwise than in accordance with a licence. He was fined a total of £400, ordered to pay a victim surcharge of £40, costs of £85 and his driving record was endorsed with six points."

This is as perfect example of the totality principle as could be imagined. It demonstrates IMHO just why sometimes advice from Justices` Clerks is completely out of touch with reality and why they and their political masters are forever seeking approval from media as I posted yesterday on proposals to increase sentences for the most serious driving offences when they well know that in fact time served by those who will be  caught in this new legal net will be similar to the current situation.

 

PROPOSED INCREASE IN SENTENCING FOR DRIVERS

In 2015, 122 people were sentenced for causing death by dangerous driving, with a further 21 convicted of causing death by careless driving while under the influence. Relevant sentences for driving offences  are as below:-

To quote from The Guardian,

"Dangerous drivers who kill are set to face life sentences under plans put forward by ministers. Those causing death by speeding, street racing or while using a mobile phone will face the same sentences as people charged with manslaughter.
Offenders who cause death by careless driving while under the influence of drink or drugs could also be handed life sentences – an increase on the current 14-year upper limit."

I really cannot perceive any basis for this proposed increase in sentencing except to pander to public opinion which IMHO is based upon ignorance and a desire of some newspapers to whip up that opinion.  

HMCTS HAS A NEW CHIEF

In case some readers haven`t noticed Her Majesty`s Courts and Tribunals Service has a new overlord; Susan Acland-Hood.  In recent tweets methinks the lady is trying too hard to ingratiate herself within her domain. I await similar platitudes for my former colleagues who will require more than soft words to persuade them that HMCTS no longer considers them as unpaid employees with all the respect that entails.

SENIOR JUDGES` PUBLIC COMMENTS

I posted recently on the Lord Chief Justice`s opinion that prison numbers must be reduced by making more use of community sentences.  He is reported as saying he wanted tougher such sentences. What he meant by "tougher" only he knows. I can recollect when the term "community payback" was used and printed on the back of high visibility jackets of offenders sentenced to work in the community.  Anecdotally it became a badge of honour for young villains. How can a probation service totally "transformed" by a previous best forgotten Justice Secretary cope with an increased workload and yet maintain efficiency and competence? 

LCJ has now pronounced on the McKenzie friends issue; a situation brought about directly by the unavailability of legal aid for thousands of defendants in the criminal courts and litigants in the family courts. I last commented on this topic in October. It is generally accepted that at least for the present senior judges should avoid becoming involved in matters political.  But must we always wait until such an individual is retired on his/her substantial pension and feels free to hit the headlines with what might or might not be subject matter long overdue for discussion in the public sphere? Sooner or later especially in the light of controversy over Article 50 judges must be told to shut up or be allowed to comment under agreed strict conditions.  The current noises off when judges skate on political and judicial thin ice are not a healthy way to continue.