HAVE THE LAST 12 YEARS BEEN BENEFICIAL TO LIBERTY?

Since 1997 although many good people disagree we have been subject to a "nanny knows best" basis of much legislation. Several Lord Chancellors and Secretaries of State and three thousand new laws later a supposedly left of centre parliament has allowed the salami approach to reducing freedoms to gather pace. From increased CCTV cameras to restricting the photographing of innocent scenes in central London by amateurs and professionals alike there seems no end to the state`s actions to treat us all as guilty of something until proved otherwise. There is no specific offence of "Domestic Violence"; it is often prosecuted as "Assault by beating" or a more serious charge and the victim`s relationship with the defendant is an aggravating factor. However all magistrates in the last three or four years must have specialist training before sitting on such cases. Training is usually beneficial to the trainee or should be. But much of this training is to acquaint the JP with various statistical analyses that appear to indicate that over thirty assaults would have been likely to have occurred prior to the charge being brought. This, in my opinion, is an attempt to condition the JP to be predisposed to sympathise with the victim and perhaps not to rely purely on the evidence brought to court where of course the standard of proof of guilt is "beyond reasonable doubt". There is no study to my knowledge, although I stand to be corrected, of conviction rates in such cases relative to others of a similar nature previously. Recently made available to the courts to impose are restraining orders even after a " not guilty" outcome in a case of Assault [domestic violence]. It is an abuse of power to keep DNA samples of innocent people. This subject has now reached levels outside the U.K.`s domestic Criminal Justice System. A driver of a four wheeled vehicle in collision with a cyclist riding as though intent on suicide must now prove his innocence. The scandal of "control orders" where the accused is unaware of the charges is still current at the highest levels of the law. There was a recent case of two friends who were police officers in the same force who can`t look after each others children to the mutual advantage of all without breaking recent legislative guidelines. Would it have been conceivable in your wildest dreams twenty years ago that such a descent into authoritarianism would happen here? Anybody who values the liberty of the individual must give thought to whom their vote will go next year. 

DOES DARWINISM APPLY TO A CRIMINAL JUSTICE SYSTEM?

 28. Nov. 2009. – 12:33:21 

It was Charles Darwin one hundred and fifty years ago who postulated that for living things the world is as it is owing to competition. Karl Marx and Adam Smith each had his own take on competition which can be said to have led to Stalin and George Bush respectively. But one does not expect eg the human arm to be in competition with the human leg because for the organism to function to maximum efficiency both limbs have their particular use. Yet as organisations grow, unlike the human body, constituent parts and their masters or mistresses therein continually seek advantage over their perceived competitors in other departments.

Within the armed forces generals, admirals and air marshalls are ever seeking increased funding for their particular service and within each service such exercises in cake dividing are routine. Whether the result is increased or reduced efficiency I am not qualified to comment. Similarly within the NHS various committees are appointed to decide the worth of a human life; whether £1 spent on improved pre natal care is better value than £1 spent on assisting terminally ill patients dying with minimum distress. The outcome for these examples of competition is generally beneficial for most people most of the time.

A free society can function in extremis without armed forces. The people of Luxembourg or San Marino are not noticeably shaking in their boots and suffering sleepless nights because they don`t have troops in their barracks. Whilst there are many possible arguments for and against a state funded system of healthcare it cannot be said that a free society depends upon one or other argument. Indeed this country was a reasonably "free country" before 1948.

The same, however cannot be said of a state without a comprehensive system of laws guaranteeing ownership of property and protection from harm for its citizens. All parts of the system must function together in harmony. A breakdown in one part of the system results in a breakdown in the whole. Competition has no place in a Criminal Justice System. But it is apparent that different parts of this system are competing for the ear of government and the eye of the public judging by what is appearing in the press over recent months. Judges are being accused of supplanting parliament as law makers. Parliament is making laws for the police to use often against advice from libertarians and then making u-turns when these powers are used in a predictable inappropriate manner. Government against advice does not build enough prisons for an escalating lawless minority. The same government encourages by its legislation judges to impose heavier sentences for violent crime. Prison governors on their own initiative release prisoners well before the completion of their sentences without regard to the sentencers. Probation services campaign for all sentences less than twelve months to be substituted by community orders despite validated evidence that magistrates are cautious in the extreme before ordering custody. Jack Straw castigates magistrates for sending too many defendants to Crown Court whilst organising the closure of perhaps 25% of all Magistrates` Courts because of reduced workload caused by the ever increasing use of Fixed Penalty Notices by police officers who are acting as prosecution, judge and jury. And the self same police, according to a report in The Times Nov 27th this time the Met, are blaming an increasing number of dwelling house burglaries on the unsubstantiated myth that Magistrates` Courts are releasing on bail prior to trial or sentence too many prolific offenders. The Met of course has a highly efficient professional PR department. Meanwhile the Magistrates` Association on a tiny budget fights gamely to protect its corner in the face of these assaults on its members. What price a joined up Criminal Justice System......democratic freedom for the citizen? 

DOES THIS GOVERNMENT REALLY WANT TO RETAIN THE OFFICE OF MAGISTRATE?

27. Nov. 2009. – 13:06:39

Over 90% of criminal cases in this country are undertaken from plea to sentence at the Magistrates` Courts. For over 600 years the title Magistrate has been bestowed on members of a community who have been given the authority to sit in judgement over their fellow citizens. With the acceptance of a constitutional monarchy, the reduced and disappearing privileges of the aristocracy and an ever widening franchise magistrates are now appointed from every level of law abiding society, from every religion, from every creed, from every race. That is as it should be in what is still a free democratic society although that description one could argue is hanging on by its fingernails [to mix metaphors.
However with the creation of a unified courts system; Her Majesty`s Court Service, there is a suspicion that the days of the Justice of the Peace might be numbered. Magistrates` Courts are closing in ever increasing numbers and many more are mooted. A recently published document by career civil servant Kevin Pogson "Planning for the future of the magistrates` courts service in London" in conjunction with similar documents containing spurious statistics, "targets" etc seeks to justify the closure within ten years of perhaps a quarter or more of the current court buildings, "Over the next ten years.......should be reduced to a much smaller core estate." "Re-organisation" in cloud cuckoo civil servant land where the volume of verbiage is inversely proportional to the veracity of thought means that in all probability fewer JPs will be needed. After all fewer defendants are being brought before magistrates and more are appearing at Crown Court. Perhaps the ever increasing activities of Police acting, in addition to their primary role, as judge and jury in the issuing of Fixed Penalty Notices have something to do with it? Then we have Jack Straw complaining at the recent AGM of the Magistrates` Association that far too many defendants are being sent to Crown Court for trial..[see previous blog on E/W offences]. Anther anomaly in this Criminal Justice System is the complaint that since the introduction of suspended sentences became available to Magistrates` Courts too many miscreants are being sent to prison. Forget that they end up behind bars because the deterrent effect has failed. And of course we are familiar now with the scandal of prison governors releasing prisoners at their discretion without any notification to anybody.
The cost differences between using about 29000 unpaid JPs [expenses only] and a much much smaller number of £100K p/a District Judges is perhaps beginning to attract the attention of the cost cutters in this Labour inspired economic meltdown. The price for justice would be that a British citizen who currently has a right to be tried by his peers in the form of a Bench of three magistrates would face trial before a single professional judge. JPs who can resign at any time over a point of principle without financial sacrifice would be replaced for ever by professional judges who would forfeit their living if they had to rule on laws over which they profoundly disagreed and consequently resigned. A sad day for justice; a sadder one for democracy! 

ACPO AND PROPOSED POLICE RESTRUCTURING

 23. Nov. 2009. – 12:13:02  

Sir Hugh Orde, president of ACPO wrote recently in The Times with his recommendations for a restructuring of policing. He appears to be taking not unnaturally a top down approach as opposed to giving consideration to the requirements at a local level where the vast majority of the population is not a victim or terrorism or cross border organised crime. He criticises, "people who are claiming to represent communities" who suggest that more police on the beat is what is required by offering ridiculous statistics about a patrolling officer rarely coming across a burglary being committed. In this statement he reveals his apparent indifference to the concern of local communities that above all they want assurances that their properties will not be burgled per se and that officers seen to be patrolling are a deterrent to criminal activity which might impinge upon their desire for a quiet peaceful life. He continues in the same manner when he says that control of police and democratic policies cannot co-exist. This subject is surely worthy of debate rather than an authoritarian denial of its practicability .

The original principles of Robert Peel were that police patrol to prevent crime and disorder and that they must have the public`s approval and willing co-operation.
If Sir Hugh cannot persuade us that he and his colleagues can succeed with prevention as the prime objective they are unlikely to continue to carry the public with them on the other two requirements as is becoming apparent almost weekly.

• IS IT TIME TO SAY GOODBYE TO EITHER WAY OFFENCES?

 

21. Nov. 2009. – 14:18:34

Long before the recent financial debacle which the citizenry of this country will be paying for twenty years from now the government was looking for cost savings wherever it could primarily as a political stick to beat the Tories in a Dutch auction to demonstrate that "Prudence" was the watchword. Of late this belt tightening has more in common with a financial famine where the survival of this country in the political premier league is uncertain.

The Ministry of Justice is certainly more than a bit player in this race to the bottom. Unlike the NHS where most of us have personal experience HMCS impinges upon a minority and a minority by its very being that has little influence the professionals running it the exception. It is only in England Wales.....the Scots and the Irish have more sense.......that within a certain catagory of offences the alleged offender can choose to be tried at the Magistrates` Court or the Crown Court. At the former the bench comprises three highly trained personnel generally representative of the community they serve who give their time for no payment except minimal expenses. The maximum sentence that bench can impose is six months` imprisonment which can be appealed before a judge in the Crown Court where a life term can be the disposal. Thus generally although over 90% of cases are completed at Magistrates` Courts and the most serious at the Crown Court there is an intermediate level of offences; either way offences, in which the defendant can elect to be tried at either venue. At Crown Court the trial will be in front of a jury of twelve.

Recently the Crown prosecution Service has launched a consultation paper on proposed changes in policy with regard to the initiation of a prosecution amongst which is the following, "The changes extend this test to include a requirement asking them to consider whether a prosecution is proportionate (balancing time and cost of prosecution with the seriousness of the offence)". What this means in simple terms is whether prosecuting a case is worth the cost the inference being in my opinion that the costs of a trial are not worth the low level of offending. A recent case demonstrates this. A man was taken to court for stealing a banana worth 25p. It was an either way offence of Theft from a shop. He elected trial by jury at the Crown Court where it took a jury about ten minutes to acquit him. Latest figures show 59,000 people were sentenced at Crown Court for either way offences. Depending on one`s viewpoint many of these offences could be considered as suitable for one court or the other with perhaps the majority at Magistrates` Court especially if the maximum sentence available there were increased to twelve or even twenty four months imprisonment.

Recent statistics on the costs to government of trials at Magistrates` Courts and Crown Court trials are hard to come by but within the last ten years or so it has been guestimated that the latter costs ten times the costs of the former. So by eliminating either way offences we eliminate an enormous expense and in doing so remove an anomaly that has had its day {in court?}

CAUTION GIVEN AFTER A CONVICTION FOR SIMILAR OFFENCE

 

19. Nov. 2009. – 17:48:33

Problems within the criminal justice system generally make the headlines on the relatively limited occasions when a serious mishap occurs. Unlike the NHS where most of us are "customers" the majority of the population has still just managed not to be engaged within the system although the numbers are gradually rising but that`s a tale for another time.

Most caring parents would never dream of giving a very naughty toddler even the mildest slap on the leg or arm for an action which the child could not possibly know was dangerous or in some other way to be avoided. When my own son was three years old and stuck the prongs of a fork into an electric point I grabbed the fork from him and made it clear that action could have been very dangerous and could have hurt him. A few moments later, whilst my back was turned he did it again. I took the fork and lightly slapped his leg whilst repeating the danger warning. I graduated the punishment to suit the circumstance.

Recently when faced with a defendant convicted of criminal damage and considering sentence the list of previous convictions showed he had first been before the courts in 2007 for criminal damage and had been sentenced to a community order. The next and final entry was again for criminal damage less than a year after the first offence. On that occasion he had been cautioned by police! Doesn`t seem right does it? Repeat the offence and the punishment is reduced.

Of course cases like that don`t make headlines but they give such a clear indication of the direction in which the Ministry of Justice and the Police are travelling. And these directions seem to be at right angles to each other. Would it not be better for us all to be travelling in the same direction?

HOW I BEGAN

 

INTRODUCTION  

My latent interest in the law  was perhaps instigated by both a wife and brother who were solicitors  and a father who felt overlooked in his application as a J.P. many years ago.   Having been a professional all my working life by my mid-fifties I felt intellectually and financially able to devote myself to a second career albeit unpaid and part-time. I was appointed a Justice of the Peace in 1998. During my long career as a self employed eye-care professional I learned quickly to communicate with people of all ages and backgrounds. On reflection I`m convinced that facility proved essential to be able to follow to the letter the Judicial Oath: “I do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  With much current criticism of the magistracy over so called diversity that oath alone should be enough to ensure that all those who come before the bench are treated not as black or white, rich or poor but as a subtle shade of grey.  Unfortunately the perception at least does not bear out that ideal.  

 The first few years of this millennium were a time of great change for the magistracy insofar as its flimsy hold on independence was firmly trampled upon by a recently elected government seeking to incorporate under its umbrella the various strands loosely affiliated as our justice system.  This culminated in the formation of a dedicated new department known as the Ministry of Justice.  Further developments led to the magistrates courts and those working within them to be part of yet another amalgamation of departments; Her Majesty`s Courts and Tribunals Service. 

Recent statistics showed that in 2020 there were 13,177 magistrates - though the Ministry of Justice announced that in September 2020  this number had been overestimated by around 1,000 which was an appalling error. Other statistics of note are that currently 56% of JPs are women, 13% are BAME and 82% are aged 50 or over. There are clearly various factors which contribute to these figures though they are too complex to discuss in this short introduction. 

 During my first decade as a JP when I became what is now termed a ‘presiding magistrate’ colleagues seemed to appreciate my independence of mind both on the bench and in the retiring room. Although I never aspired to the loftier heights of ‘Chairman of the Bench’ a couple of small achievements seem worth mentioning here. I reinvented my bench`s approach to the approving of warrants issued by utility companies and I amended the treatment of fare evaders by the local transport systems.  Both areas had been in dire need of a more level playing field for defendants but for one reason or another no one had grappled with them until then. In November 2009 I put a colleague`s suggestions that I could offer my opinions on the workings of the magistrates` courts and a JP`s perspective of the justice system to a much wider audience through writing a diary. Some of these musings, on everything from sentencing procedures to the police and to other matters of legal interest are now reproduced for this diary