CAN THE FRONT LINE STAND A 40% HIT?

 28. Aug. 2010. – 15:19:22 

A few years ago a new class of CPS prosecutor was introduced to the magistrates` court system; the DCW dedicated case worker. That`s “dedicated” as restricted to a specific function as opposed to “dedicated” meaning wholly committed . Upon their introduction CPS assured all who cared to listen that they would be used as the definition specifies for functionary activities within strict limits as laid out by their reviewing lawyer eg bail applications. Now it has been decided that soon they will prosecute trials. 

But to return to bail applications…….a couple of months ago a South African man appeared having been charged that between……2006 and……2010 at…….dishonestly obtaining a pecuniary advantage , namely that you were given the opportunity to earn remuneration in an employment by deception insofar as you falsely represented that you had leave to remain and right to work in the U.K. contrary to sect.16[1] of the Theft Act 1968. This gentleman pleaded Not Guilty and the pertinent facts as we heard them were that he used a false passport and accompanying documents in the alleged offence which involved £100,000 in earnings received during the period in question. When it came to bail the DCW told us that since the defendant had recently married a U.K. citizen and had had a child by her he was not a flight risk and therefore unconditional bail was not opposed. This was of course endorsed by his counsel who covered himself by adding that if we were so minded his client could sign at suitable time[s] at the local police station. In view of the facts we were surprised. We imposed a condition that in addition to signing once a week he surrender his passport which he had with him and that in itself was almost farcical in its application. Our L.A. told us he would have to formally be seen by the jailers in the cells and the passport taken from him there. That procedure was required, according to the L.A., because, in spite of his waving it about, if the passport were not with him he would have had to be taken to prison until it were made available. Five minutes later the defendant re-appeared and the Serco person told us that it wasn`t their job and they wouldn`t do it. The L.A. repeated that she couldn`t take the passport. The Bench then suggested she summon one of the duty police officers. He duly appeared and told us he was not sure it was his job. “It`s the court`s job”, he replied. “Well”, said the chairman,” you`re an officer of the court; take him downstairs, take the passport and give him a clearly written and dated receipt.” The previous case that afternoon had involved an East European complaining inter alia that his passport previously handed into us a year ago on another matter was apparently unavailable and nobody knew anything about it. 

And all this in a typical day when lawyers still conduct trials and 40% cash reductions have yet to hit the front line. When the brown effluent hits the fan heaven help the front line. 

AT THE BEGINNING

This diary was begun in 2010. My reasons for so doing were published here on October 22nd 2021. For those reading this I feel it`s time to publish for only the second time the reasons behind my undertaking this active memory written when I was in a position to be able to act on my own judgements but keeping within the law and the honesty expected of a Justice of the Peace. 

OCTOBER 8TH 2010

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 blog and so was born The Justice of the Peace (Magistrate`s) Blog. 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 exactly as they were published in my original website in 2009/10  the host of which went offline in 2013.  Names and or positions of any persons have been changed when appropriate. 
 

WHEN IS A LAMPOON ILLEGAL?

 27. Aug. 2010. – 11:47:56 

Robert Peel; he who conceived the idea of a police force as we now know it, had as his objective the prevention of breaches of the peace and its natural consequence, the maintenance of public order. I doubt that in the early 19th cent. peeing in public was a criminal offence when the term public decency had yet to be uttered except when the legs of the piano according to legend were left uncovered. 

So it was no surprise to read recently that Wendy Lewis, who desecrated a war memorial by urinating on the Blackpool Cenotaph , was given a 15-week prison sentence, suspended for a year. But what followed was a surprise although in retrospect perhaps not considering my blog of April 4th this year. But of that later.

A supporter of said “lady” is alleged outside the court building to have given a Hitler salute and made with his finger the universally accepted joke Hitler moustache a la John Cleese and Monty Python. For this alleged offence of using threatening words or behaviour to cause harassment, alarm or disorder he will shortly appear before the local bench. I would find this disturbing if when the facts emerge the only behaviour alleged to be threatening were the salute.

Re-enactment aficionados have been widely criticised for the use of nazi and SS death head regalia including swastikas. The opposition to the use of Wehrmacht uniforms has been muted and that is because there is a historical difference between “the ordinary German WW2 soldier” and “nazis” or so we are informed. There is no Holocaust denial legislation here as there is in Germany. The subject can be discussed and the David Irvings of this world can be shown up for what they are; nazi apologists. Be that as it may, in this country there is no law against the lampoon. There is however a legal back passage through which such restrictions are being enforced…the Mohammed cartoon of infamous memory was perhaps the most memorable. On 4th April I blogged that Section V[1] and [6] of the Public Order Act 1986 is being used as a “catch all”. A WW2 veteran was convicted for goose-stepping to indicate his opinion of the actions of Police Community Support Officers. 

That greatest of all clowns a certain Mr C.Chaplin in his film The Great Dictator 1940 lampooned Hitler to perfection and was instrumental in bringing home to a pacifist America just what the evil of Nazism was all about. He did it with humour. 

If the symbolic nature of a Nazi salute as a mark of contempt by a person for [in his opinion] the unreasonable authoritarian actions of a public body or a uniformed officer, is in the process of becoming a public order offence per se let it be shouted loud and long from every police headquarters in England…..seig heil!

J.P.s RULE OK

 26. Aug. 2010. – 17:00:24 

They used to be called [learned]“justices` clerk” but are now known as [learned] legal advisers. They were once known as Magistrates` Courts and still are. “J.P.s rule O.K.”

Advisers advise and magistrates decide or so is the theory. In my time on the bench as winger and chairman I have noted bench chairmen thankfully abrogating everything possible to their legal adviser. As much of the work in open court that could be done by either the chairman or the L.A. was seconded to the L.A. It even extended to the retiring room where many colleagues retiring to consider a verdict would invite the L.A. to join them almost immediately. Most would keep at some physical distance but there were occasions when advice would be offered, in my opinion, inappropriately whether in timing or content. Legal advice of course should always be proffered in court before the bench retires.

I would not echo their honours who usually refer to it as my court but I have always considered that with few exceptions a bench chairman should in a judicial fashion be in command of the court. It follows that a chairman and a L.A. who are confident in each`s ability and authority usually can be seen by a fly on the wall to conduct an efficient flowing courtroom be it remands where there is never enough time to complete a list, a trial or one of the many variations of justice being seen to be done over which we preside. So it is unusual for a bench to overrule its L.A.

Re-reading my post earlier this week on Judge Shorrock`s verbal bollocking from their Lordships for speaking out of turn reminded me of an incident which required this writer also to speak out of turn with the total agreement of his colleagues.

The defendant had been charged with criminal damage the week previously, been remanded in custody and was before us for another bail application. He was unrepresented. His English was poor but adequate. He was Moslem. He was asked by the L.A. to identify himself ……….silence; the request was repeated with the same result. Our L.A. turned to the bench and whispered that according to the file the previous appearance had had the same result. In the circumstances I asked for identity using a closed question…..are you?…..let`s call him Mr. Ali…… He nodded and repeated the gesture with regard to the other identifying questions. Since he was on remand to be tried about three months later I asked if he had spoken to the duty solicitor; no reply….. at which point our L.A. stated that he had refused to see the duty on the previous occasion and also had refused the opportunity to talk to the consultant psychiatrist whose duty day this was. He again did not answer when he was offered the duty solicitor. He was told that if he continued in the same manner he would be in prison until his trial, a longer period than he was likely to be sentenced to if he were found guilty. No response……our L.A. gave us the date and the pronouncement was made of his being remanded in custody until…..but that he would be before us again in twenty eight days. Down he goes to the cells and a moment later our L.A. tells us the trial date must be changed because CPS had just noticed the complainant in the case was on holiday. Notice of trial dates must be made with the defendant present so the call was made to bring him up again. Two minutes later the jailer emerges alone to tell us that it is time for his prayers, he will not come up and that Allah will provide. And this is where we parted company with our L.A. for she told us that we had no option but to go to the cells to pronounce the amended date. After three pairs of eyes, one pair Moslem, one pair Roman Catholic and one pair indeterminate blinked in astonishment we dismissed the suggestion. We told the L.A. to write a notice duly signed by herself to be handed to the defendant. She did not for a minute demur. At the conclusion of the sitting we informed the Deputy Justices` Clerk of our actions and she agreed that our pragmatic approach was perfectly acceptable in the unusual circumstances.

Justices of the Peace are appraised for their competencies every three years or so but an appraisal in my opinion is akin to deconstructing the act of running into its various sections and expecting the resultant description to resemble an active Lynford Christie. It doesn`t. There are some situations for which preparation is useless and where life is the only teacher. Thankfully in the public arena that is a Magistrates` Court they are few and far between. 

ALL`S WELL IN LOVE, WAR & POLITICS

 25. Aug. 2010. – 11:40:42 

Three months on and the new government has a couple of months to gather its thoughts as do the M.P.s whose election arithmetic forms the basis of the coalition. But as well as being cannon fodder for government as were many 1997-2010 this new cohort shows every possibility of thinking for itself and as individual representatives of putting constituents above party interests. And nowhere so early in the game is this being shown than on the contentious subject of court closures led by old time survivor Kenneth Clarke.

There are those on the government payroll who have voiced opposition to the closure of their local court. Ministers Iain Duncan Smith, Andrew Mitchell, Edward Garnier and Ed Davey have all voiced their opposition. This will certainly prove interesting when the final list of courts to be closed is published. M.P.s in general and opposition M.P.s in particular are certainly making hay whilst the sun still shines on this subject. After all they are kicking at an open door. 

It would take big cahones as they say in Spanish for a prospective candidate to support closure of their local court. It`s not surprising that much rubbish is being infiltrated into the “keep them open” argument. 

An example is reported in the Liverpool Daily Post from Maria Eagle, the Garston and Halewood MP. She asserted that victims of domestic violence will suffer by such closures. It is uncontroversial that increasing travelling time to a court hearing will deter a certain number of witnesses from appearing but she has claimed in effect that closing twenty courts where such cases are heard will increase domestic violence. The good lady should do her homework. A “Domestic Violence” court is not a court building where only such matters are dealt with. It is the designation on a given day or days when such cases are heard by court officials who are delegated to that subject in a particular courtroom specially equipped with eg screens, video equipment and protected dock. To put the frighteners on her constituents as she appears to be doing does a disservice to them and herself by jumping on a bandwagon which is rolling along well enough without her input. Miss Eagle as a former Minister in the Ministry of Justice should know better. Although having said that, on 17 May 2009 the Daily Telegraph revealed that she had claimed £3,500 for the refurbishment of the bathroom of her Liverpool home property, then switched her second home designation to a different property just four months later. Miss Eagle showed her feelings for open honest government when according to Wikipedia she voted in favour of legislation which would have kept MPs expense information secret.

All`s well in love, war and politics.

CUSTODY THRESHOLD AT MAGISTRATES` COURTS

 24. Aug. 2010. – 16:12:51 

It is not all that often that the Magistrates` Association`s house magazine “Magistrate” has an article that offers information on an important topic about which I am totally ignorant and as memory serves me has never ever been alluded to in a training session or at any time by a legal adviser when I have been involved in a sentencing bench. 

Such was a colleague`s article entitled “Looking closely at custody” in the current issue. Before continuing it is helpful to know that the sentencing structures at courts were formulated under the Sentencing Guidelines Council in 2004 in order to achieve a certain logical approach to sentencing and to avoid the appearance of “post code sentencing”. That effort has not, in my opinion, been unsuccessful. This organisation in the spirit of the tendency for governments to think up new names for similar structures is now The Sentencing Council. 

Returning to the subject, all sentencers must justify their sentences in open court and explain why custodial sentences especially are the only possible disposal in such cases. It is by such hurdle jumping that relatively few custodial sentences are made at Magistrates` Courts. However the article in question referred to a document published 16/12/2004 by the Sentencing Guidelines Council…..”Overarching Principles: Seriousness”. I had never known of this until opening the magazine. Its content had never ever been mentioned by name in my presence by anybody at any time although the principles are familiar. The important conclusion is that even when all the hurdles have been taken and custody appears to be the only option there should be a final discussion as to whether even a suspended custodial sentence can be avoided even although by a structured approach there is no other sentence but immediate custody which can be justified.  Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable and custody can still be avoided in the light of personal mitigation or where there is a suitable intervention in the community which provides sufficient restriction (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime. For example, a prolific offender who currently could expect a short custodial sentence (which, in advance of custody plus, would have no provision for supervision on release) might more appropriately receive a suitable community sentence.

The SGC as mentioned above has been superseded by the Sentencing Council. In the light of current political pressures I am surprised that this document has not been brought to the attention of magistrates; at least not this one nor his bench