LORD MOSES AND JURIES

by TheJusticeofthePeace @ 26. Nov. 2010. – 08:11:56

It seems that the subject of judges and juries is going to be hotly debated from now on. For what it`s worth [and in the real world that`s not a lot] I`ve written here more than once that the current system of jury trial is an anachronism and fails the interests of justice and the public interest. There is no doubt that there now exists for whatever reasons a body of opinion that the subject should at least be explored and debated and not accepted as a permanent fait accompli.

Lord Justice Moses has entered this debate. He has advocated that trial judges should rule on matters of fact, and juries, instead of weighing all the evidence as at present, should simply be given a list of questions to answer. The short report available here does not do justice to his argument…..excuse the pun…….but I think it is not unreasonable to infer that he is alluding to an inclination that complex argument might be beyond the wit of some jurors. I agree. Members of the legal profession are unlikely to be supportive. They would deny that pecuniary interests serve their opinion. Magistrates at the very bottom of the judicial pecking order are well acquainted with defendants on either way matters selecting jury trial over summary trial; they consider that they are more likely to be acquitted…..a statistic which is open to question. With crown court legal aid rates higher than those at the lower court to dismiss legal pecuniary interest out of hand in court matters would be presumptive in my opinion.

When the decibels in this debate begin to increase lawyers will have to do more than repeat their old mantra of “since Magna Carta, fair trial, judgement of peers, etc etc” and produce real sustainable arguments why the current system cannot be improved for the benefit of defendants and the public in addition to the one unimpeachable mantra, “justice must not only be done, it must be seen to be done”.

DISINTEREST

 

by TheJusticeofthePeace @ 25. Nov. 2010. – 23:47:32

I don`t usually sit at the keyboard at approaching midnight but I make an exception having just watched Question Time on BBC TV where Kenneth Clarke was the senior politician on the panel. The same K. Clarke who as Secretary of State for Justice is soon to pronounce on his plans for the country`s magistrates` courts. Not one question on this or any other matter affecting “justice” was asked when of course as the programme is recorded an hour before kick off and the audience knows who are appearing indicates just how little interest real people have in this subject. Is that good or bad?

ELECTION OF BENCH TRAINING AND DEVELOPMENT COMMITTEE

by TheJusticeofthePeace @ 25. Nov. 2010. – 14:13:44

The Magistracy is trumpeted as being a uniquely English institution allowing local justice to be dispensed by local people. With certain caveats I would agree. The Scottish and Irish versions are not quite the same. Individual benches must follow strict guidelines in performing some duties and are most locally idiosyncratic in others. Individual benches control their own rota, ideally placing mixed sex and ethnic benches where possible. Rota systems are very variable with some benches following outdated local procedures that should have gone out with ladies` compulsory hats and cigarette holders de rigueur in the retiring room whilst others perform this vital function using common sense and the latest soft ware.

One vital aspect of bench representation is the Bench Training and Development Committee. This can be appointed internally or have individuals elected annually. But here`s the b u t………….if an elective committee only those attending the annual election meeting can vote. No postal or proxy voting is allowed. At my bench about one third of members turn up………of course not always the same third. To allow change in the voting system or to allow benches to alter their own voting procedures government would have to table a statutory instrument. Perhaps there is an organisation of magistrates which might consider lobbying for this extension of democracy or is that akin to asking the pot to call the kettle black?

GO ORDERS

 

by TheJusticeofthePeace @ 25. Nov. 2010. – 09:45:38

In various forms domestic violence appears to have occurred as a primary or secondary topic here on more occasions than I had anticipated. Perhaps the subject is occupying in general more column inches or sound bytes [bites?] than other offences dealt with by magistrates. Perhaps its prevalence is owing to the increasingly authoritarian and extra judicial disposals applied for by prosecutors eg restraining orders even where there has been no conviction. Non judicial approaches to unconvicted suspects in alleged domestic violent incidents have today been reinforced by additional police powers when investigating such incidents.

In the three designated pilot areas Greater Manchester, Wiltshire and West Mercia police will be empowered to order a suspect to leave the family home for forty eight hours on the say so of an officer of Superintendent rank. It will be commonly called a go order. After that period, for the order to continue the authority must come from the magistrates` court even if there is still no charge.

The underlying consideration for the “battered wife” is commendable. It is the swing of the legal pendulum in action. When a legal or police attitude to a problem has swung so far from an underlying reality it auto reverses in a totally opposite direction and the process is repeated ad infinitum. A couple of decades ago the police and judicial attitude was minimal interference to possibly violent incidents of a “domestic nature”. That approach was eventually and rightly seen as ignoring the real and sometimes murderous attacks carried out usually by men on their wives or female partners. Now it would appear the boot is metaphorically if not in reality on the other foot…..a police officer`s size 12s. Does this initiative come under the term “due process”? I think not.

UTILISATION RATE, UTILASATION RATE, UTILISATION RATE….REPEAT IT OFTEN ENOUGH AND ALL WILL BE WELL

 

by TheJusticeofthePeace @ 24. Nov. 2010. – 16:07:58

The Justice Department and its ministers are at it again in repeating the mantra oft uttered in the last three months that magistrates` courts` utilisation rates at a current 64% must be increased to 80%. Their thinking seems to be that if all the current workload is squeezed through fewer courts the utilisation rates would somehow increase to the nirvana of 80%. Without going into the principles of eg water pressure through pipes of varying diameters or voltage, current and resistance the ministers are talking nonsense. Returning to the plumbing analogy if low water pressure [low utilisation rate] is caused by poor turbine efficiency at a pumping station no reduction in pipe diameter [increased utilisation rate] is going to improve the amount of water at the tap in the kitchen. Only the pressure will increase; not the amount flowing through.

I have no reason to doubt the figure of 64%. I have many reasons to be sure that court closures will not increase that figure to 80%. The result will be a lengthening of the time taken to process court lists. So many agencies are involved in taking a case to court that to consider court closures can increase efficiency is barking mad. Only structural reform of these agencies and their terms of service will produce results. An example is the much vaunted CJSSS…..criminal justice simple, speedy, summary where all involved CPS, courts and magistrates are all supposed to be well prepared with full knowledge of all cases on the day. A happy slappy slogan was attached by some bright sparks in Whitehall to what should be normal presentation of cases to any remand court in the country. I sat on such a court a couple of weeks ago having been required to arrive a half hour earlier than usual for preparation and the CPS dedicated case worker……..or should that nomenclature now be assistant prosecutor…………….was at her wits end looking for files which had not been given to her, which were incomplete or were ambiguous insofar as notes did not correspond with actions or the court file.

I copy below a parliamentary question and answer of November 23rd which demonstrates this government`s reliance on the holy grail of utilisation.

Alan Beith (Berwick-upon-Tweed, Liberal Democrat)
What steps are Ministers taking to ensure that savings do not simply become higher costs for other Departments or other parts of their own Department, whether in the context of magistrates court closures, which adds to police costs, or changes in the legal aid system that generate demand for expenditure elsewhere? Is there a mechanism for assessing how costs will fall elsewhere?

• Hansard source (Citation: HC Deb, 23 November 2010, c149)

Nick Herbert (Minister of State, Justice; Arundel and South Downs, Conservative)
I agree with my right hon. Friend about the importance of ensuring that what he describes does not happen, but he will know that there is significant under-utilisation of magistrates courts. That is why we have had to take this action in consulting about closure, not least in relation to the Tynedale magistrates court, which is adjacent to his constituency in Northumberland and which is operating at a utilisation rate of only about two thirds.

Once again the alibi of utilisation is brought forth as reason for closure. Bah Humbug!

ADDENDUM 11TH JULY 2025

Freedom of Information Act (FOIA) Request – 230505033

Thank you for your request dated 5th May 2023 in which you asked for the following information from the Ministry of Justice (MoJ):

Utilisation rates averaged 64% across the magistrates courts in 2010. Courtroom utilisation is the time a courtroom is used, against the hours that a courtroom is available for use. The Government's aim that year was to increase utilisation of courtroom time to at least 80%. What is the current utilisation rate?

Your request has been handled under the FOIA.

The information you seek is not held in the form requested.

The Magistrates’ Courts are undergoing a transition to a new data and information system called Common Platform. Each court has a system (either legacy, or Common Platform when transitioned) for viewing the availability of its rooms and reserving them. There are some measures available centrally to show the total number of available court rooms, but at present the detailed records of actual use needed to calculate the utilisation rate you seek are not available.

Appeal Rights

If you are not satisfied with this response, you have the right to request an internal review by responding in writing to one of the addresses below within two months of the date of this response.

data.access@justice.gov.uk

Disclosure Team, Ministry of Justice,

You do have the right to ask the Information Commissioner’s Office (ICO) to investigate any aspect of your complaint. However, please note that the ICO is likely to expect internal complaints procedures to have been exhausted before beginning their investigation.

Yours sincerely

Knowledge and Information Liaison Officer

Finance, Governance and Performance Directorate, His Majesty’s Courts and Tribunals Service (HMCTS

I WILL NOT BE ATTENDING THE BENCH CHRISTMAS PARTY

 

by TheJusticeofthePeace @ 23. Nov. 2010. – 15:31:25

In my other life where I tried hard to make an honest penny I was the one who authorised the finance and generally oversaw the arrangements for the small firm`s ubiquitous Christmas party. So I have no experience whatsoever of the oft derided common or garden office Christmas party except as chauffeur and “talk to me please” accompaniment to my wife at her virtually compulsory appearances at various places of employment around early to mid December.

When I was appointed my bench was a jolly mixing of personalities but when we left the building that was it. It is still a mix of jolly and some not so jolly personalities. But in the last few years there have been Christmas parties from 6.30pm to 8.30pm organised by the “social committee” on the assigned day. I have not attended any. I am not a grumpy; I enjoy good company accompanied by the requisite amount of food and a few ml of the amber liquid. But I generally choose when to avail myself of such occasions and with whom I wish to share the anecdotal evidence of the events of the preceding weeks, months or years that might be of interest. Colleagues who have attended our Christmas parties previously have told me of their general lack of enthusiasm to attend another. I`m not surprised. Most of us drive to court. I don`t drink and drive at all. Some colleagues will have the one drink that will not turn the crystals. With a large bench one`s relationships are usually no more than semi formal with most, an acquaintanceship with some and friendly with a few. I will not be changing my habit of declining the invitation to this year`s event.

THE £COSTS OF BEING A MURDERER

 

by TheJusticeofthePeace @ 22. Nov. 2010. – 16:03:37

Not being a crown court practitioner I am unaware of the legal niceties involved in guilty after trial murder defendants being ordered to pay prosecution costs. I would hazard a guess that for various reasons it rarely happens or perhaps is rarely reported except perhaps in the legal press. 

However a high ranking member of the Saudi Arabian family that rules that land was recently convicted in London of the brutal murder with sexual overtones of his servant. It is reported that he has been given until Jan 17th 2011 to pay the prosecution costs of £63,763 in addition of course to his defence costs. Perhaps that principle should be applied in its totality to other multi millionaire miscreants who fail to be acquitted at crown court. 

THE HARD MEN OF CARLISLE

 

by TheJusticeofthePeace @ 22. Nov. 2010. – 15:24:02

There were interesting goings on recently at Carlisle Crown Court. In an area famous for its history of border fighting from Picts and Romans to the border Reivers and with its male inhabitants considering themselves as hard or harder than their eastern neighbours in Northumberland it seems old habits die hard.

A butch Cumberlander on a DV charge sacked his female solicitor and barrister on the basis that their sex would prejudice their representation and would be against his best interests until persuaded otherwise by the judge [male].

And as if that wasn`t enough to attest to the supposed dominance of the y chromosome in Carlise Crown Court it took ten police cars and up to 25 police officers to control fighting. Unless there is a risk of violence my court has no security officers present in court at all. My sittings at my local Crown Court seem to indicate that a permanent police presence is absent there also. Short term cash savings perhaps but on the other hand………………………………..

COURTS NEWS//CAMBERWELL`S VIRTUALLY NOT SO WELL

 

by TheJusticeofthePeace @ 22. Nov. 2010. – 15:16:37

Virtual Courts are controversial. The principle of having courts in police stations however the arguments are tended is not one that has met universal acclaim. The practice, as argued by proponents, would convince doubters . It has not. It seems the optimistic gloss has become tarnished. The “court” in Camberwell South London is in chaos according to a report in the Law Society Gazette. This observer considers that irrespective of practice the idea of courts ensconced in police stations does not sit well with judicial independence. I therefore look forward to the official announcement that this pilot scheme will not be a basis for future plans. 

LORD PHILLIPS OFFERS SUPPORT TO MAGISTRATES

 

by TheJusticeofthePeace @ 22. Nov. 2010. – 14:21:54

A former Chief Justice of England is a good person to have on one`s side when the opponent is The Secretary of State for Justice. The freedom of the red benches is as good as a dose of sodium pentothal the truth drug not that former LCJs need stimulants to be truthful but the effect of the drug is apparently to reduce inhibitions about talking on a subject even a top secret subject. Good Lord Phillips has mooted that J.P.s be able to sentence for up to twelve months custody. Interesting times are ahead when K.Clarke publishes his proposals for our courts.

NO MORE RUNNERS AT BOW STREET

 

by TheJusticeofthePeace @ 22. Nov. 2010. – 08:48:03

Its square was orange in colour and it could be bought for £180. When I played Monopoly as a child the set of Bow Street, Vine Street and Marlborough Street was my favourite. Why…..I don`t know except I was very rarely beaten when the game ended. Perhaps because that set was neither upmarket Mayfair nor down at heel Old Kent Road it had an appeal as being in the middle of the market. I must remember to tell my analyst that, if ever I feel the need to unburden myself to a total stranger for £squids/hour.

Bow Street Magistrates` Court must be the most well known court name after the Old Bailey. It began dishing out justice to the villains or should that be villeins of London in 1740 and closed its doors in 2006. The enterprising individual who bought it then for c €25 million is reported to have sold it for £28 million in hard cash to an Austrian hotelier. It`s likely its new customers will have more comfortable bed and breakfast than the previous occupants of the building.

LORD JUDGE AND JURIES

 

by TheJusticeofthePeace @ 21. Nov. 2010. – 12:46:16

There has been much attention paid to Lord Judge, Lord Chief Justice and the judiciary`s main man. This is as it should be. And when he comments on the jury system everybody listens and that also is how it should be. But critical comment has been………… pianissimo.

The good lord has explained his discomfort in that jurors might seek further knowledge from outside the courtroom when considering facts pertaining to a case. In other words they might seek to increase their knowledge by the common man`s most accessible source of information……the internet……. which might offer many things but in general terms is an enormous fantasamagorical library with an indexing system easy enough for Joe Blogs to find in seconds eg the Italian musical term for playing softly. But in the good old days only toffs and so called intellectuals had shelves full of books which contained information that was or could be useful for or of interest to them. Of course in those days old or good most such folk declined to serve on juries; they were too busy or considered themselves too important to judge their fellow man. Now that`s all changed and everybody……..or is anybody a better description?……..can be chosen for jury service. And that`s the point. There is no consideration of anybody`s intelligence or ability to follow the performance, to appreciate the hurdle “beyond reasonable doubt”, no test to ascertain the limits of anybody`s understanding of the English language or anybody`s capability of balancing the credibility of witnesses or the facility for anybody to comprehend a judge`s summing up. Truly anybody can be a bit thick but then that`s why we have a jury of twelve people who can be anybody. Of course under current attitudes supposedly handed down from Magna Carta and modified for current times peer review by any other term is what determines a defendant`s guilt or innocence.

In effect the LCJ is complaining that ignorant jurors trying to fulfil their task are seeking knowledge outside the courtroom which others in their group might already possess by virtue of their education, profession, general or specific knowledge or quite simply a higher IQ. Universal jury service is now an outmoded concept and sooner or later a senior member of the judiciary, probably after retirement, will step into the public arena and say so. This is not to say I am advocating judge[s] only courts……I am against the practice of single District Judges acting in trials as both judge and jury. I am suggesting that the concept of juries now constituted is not an 11th commandment notwithstanding the recent paper Are Juries Fair? Another interesting paper taking a wide historical perspective is A Historical and Comparative Perspective on the Common Law Jury . More research should be undertaken into possible variations to ensure that justice is done and seen to be done lest another government with similar authoritarian tendencies as those which lurked in Downing Street from 1997 until May pulls up its drawbridge and judge[s] only trials risk becoming commonplace.

TRAINING OR INDOCTRINATION?

 

by TheJusticeofthePeace @ 20. Nov. 2010. – 12:25:05

There has been recently a mayoral election in the London Borough of Tower Hamlets. This east London area has been the first home for generations of immigrants to England. Huguenots, Irish, Jews, Bengalis and others have, over the centuries, brought the skills, knowledge, labour and vitality necessary for any country to continually re stock its gene pool both metaphorically and physiologically. In an area where once stood dozens of synagogues mosques are the preferred places where monotheistic religion is most widely observed. And naturally enough the majority of a population will gravitate in elections to sympathetic consideration of one of their own. Last month Lutfur Rahman was elected mayor amid what can be graciously described as a certain amount of controversy.

Whether or not this man is a fundamentalist Islamist sympathetically disposed towards peaceful initiatives that others would obtain by more direct action I know not. What is incontrovertible is that this incumbent is no Tory. He is a socialist by any other name and that philosophy if no other will be his underlying driving force. This is democracy. Courts are not democratic. Nobody elects our judges and magistrates. Police are not democratic. The Crown Prosecution Service is not democratic. These individuals and organisations are part of just one pillar holding up a system which allows the voters of Tower Hamlets and elsewhere to put whomsoever they please in the big chair at the head of the table. 

Under the auspices of the borough council is the “Tower Hamlets No Place for Hate Forum”; another organisation selecting a name as if in opposition to an implacable opposite number……..The Whatever Place for Hate.org. Be that as it may the Tower Hamlets lot have persuaded HMCS to provide “training in hate crime awareness” to magistrates at Thames Magistrates` Court. Not being involved in that court I know nothing of the detail but that does not prevent observations on the general principle being applied by HMCS.

The definition of what constitutes hate in the criminal law has expanded steadily in the last twenty years just as the term discrimination has expanded. From a state of affairs in the 1950s where the doors of bed and breakfast establishments in now fashionable Notting Hill could be daubed with crude signs, “No dogs, no Irish, no blacks” to situations where in addition to sexual orientation, race, skin colour, religion, marriage status, a tendency to become pregnant, weight, height, etc could be construed as criminal discrimination “hate” is the word of choice to describe transgressors by those in Tower Hamlets and elsewhere. Elsewhere could be said to include another east London area; Barking or it could include Stoke. Both these areas have the British National Party as a small but not insignificant first choice for voters. The B.N.P. is just the latest in a long line of quasi fascist groups with nazi tendencies which have existed here since before the second world war. But in the unlikely event of this disgusting apology for a political party gaining control of a town or borough council what would be the reaction if an offshoot with its own camouflage of respectability provided a recommendation to its local court for there to be awareness training on the over sympathetic application of discriminatory legislation in the application of the law? 

There is in my opinion no clear demarcation between magistrates` awareness of what constitutes discrimination and what constitutes the application of law in that respect. There are those legally qualified who would opine that the term “bloody foreigner” is enough to add “racially aggravated” to a charge. I disagree. Magistrates who choose to attend such courses as described and act upon the political motivations of those propagating such views should consider very carefully whether or not they can still do justice according to their oath of office.

THE TALE OF CONAN THE DAMAGER

 

by TheJusticeofthePeace @ 19. Nov. 2010. – 05:29:49

Since I was appointed, only when my court sittings have been exceptionally interesting for one reason or another have I kept personal notes of events. Sometimes it`s the typical and sometimes the atypical events which trigger a memory of a sitting that at the time I did not or forgot to note. Earlier this week a witness swore whilst giving evidence. That doesn`t happen often but it was the trigger, which Hercule Poirot might have said, fired the little grey cells. The tale follows.

It was a an apparently simple case of criminal damage and an offence under sect V Public Order Act. Conan {Gender: Masculine Usage: Irish Means "little wolf" or "little hound" from Gaelic cú "wolf, hound" combined with a diminutive suffix. Sir Arthur Conan Doyle was the author who wrote the Sherlock Holmes mystery stories.} was built like Arnold`s first cinematic creation but wasn`t a destroyer although he was a damager having had had a previous conviction for using his spray paint where he shouldn`t have. This time he had been caught in the act by a PCSO and a P.C. He was as expected unrepresented but at about twenty three years old he seemed able to express himself verbally in front of us in his educated Dublin accent as well as he had artistically in front of a wall. He had pleaded guilty [which of course we did not initially know at the time] to the criminal damage previously but denied the sect V.

The PCSO duly gave evidence of taking the spray paint can from Conan`s hand after a bit of resistance and that the accompanying P.C. made the arrest. And then he surprised all except the defendant and the prosecutor by quoting what was said at this stage in the arrest by the P.C. “Hand over the fucking paint to my PCSO or I`ll fucking have you on assault as well you fucking can of shit!” At this point the PCSO told the court that the defendant had started shouting “Gestapo” to attract attention from the few people nearby who had “slowed their steps to watch”. The defendant did not have much to cross examine; he agreed largely with what had been said but asked if the PCSO did not think it reasonable for him to have shouted causing the very minor disturbance considering the words of the P.C. The PCSO did not think it reasonable. On his behalf our legal adviser asked the PCSO if the P.C.`s words were in his [PCSO] statement and received confirmation. P.C. Johnson would not have been selected for Robert Peel`s first force of “Peelers”. He was about five foot five and seemed years from becoming a customer for Gilette. CPS duly took him through the incident including the swearing and [he had recorded his own words in his own notebook] when asked why he had used such language told us that he was concerned for their safety and wanted to emphasis to such a large offender that he, P.C. Johnson, was in charge and he had the power and authority; not an offender the size of a heavyweight boxer. He denied, when questioned, considering both at the time and now on reflection that his swearing could have exacerbated the situation.

After hearing from the defendant who gave the impression he almost considered himself Banksy`s apprentice it took us a short time only to decide that Conan was not guilty of causing harassment alarm or distress by his words or behaviour. He was fined at the level of one week`s wages plus compensation, costs etc for criminal damage with the usual allowance for an early guilty plea. Our pronouncement, included in the court file, made clear mention of what we thought about the diminutive P.C.`s manner when conducting an arrest.

ONE YEAR OLD TODAY

 by TheJusticeofthePeace @ 19. Nov. 2010. – 05:19:12

I began this blog exactly one year ago today. Its inspiration was that a previous literary project unconnected with the law had itself run out of inspiration for me and twitchy fingers had to find another outlet. Having to put fingers to a keyboard in some sort of logical sequence is not quite obsessive compulsive disorder but perhaps runs it close, the sufferers of that condition being psychologically disturbed and those like me being arrogant enough to consider that others might find some pleasure or interest in the words written. That was 365 days and 395 posts ago. It certainly wasn`t in my mind then that I would be doing this for twelve weeks never mind twelve months. The fact that now every day hundreds of visitors come to this site is certainly equivalent to the jockey`s whip for this middle aged hurdler to keep going in the closing furlongs.

DESIGNATED PUBLIC PLACE ORDER

 

by TheJusticeofthePeace @ 17. Nov. 2010. – 18:52:16

It can be taken as said that the rise in alcohol consumption especially by young people is directly related to breaches of the peace the prevention of which was the prime purpose of the first police force. Various measures have been taken in the last ten years or so to curb the habit and the resulting violence. They have generally concentrated on consequences for the individual convicted or suspected of alcohol related criminality or anti social behaviour. In other words the demand side of the equation has been the focus of attention. Control of the supply side; namely sales especially to young people by off license premises large and small, has generally been ineffective. I have posted here previously on this topic 14th July &1st September and commented at other times.

It strikes me that by far the most effective use of the law to reduce this blight on our town and city centres especially at weekends is the Designated Public Place Order (DPPO). The usual penalty for contravention is a Fixed Penalty Notice. A DPPO does not make it a criminal offence to consume alcohol within the designated area, but an offence is committed if an individual refuses to comply with a request to stop drinking by a police officer or refuses a FPN. Provided such areas are clearly signed and notice is given in local media the sanction for a breach is swift and sure; do as instructed ie stop drinking or be arrested and charged with a criminal offence. There is no need to investigate an individual`s history as there is with an ASBO or Drinking Banning Order. It reduces alcohol sales to under age drinkers because they would have to travel in order to quaff their illegally supplied booze provided the area was wide enough; an important consideration to prevent displacement.

London Transport introduced a similar ban some two year ago on buses and tubes. It hasn`t made life a joy on late night transport but according to friends it is certainly less of a jungle. That example should be followed in more town centres.

ASSAULT IN A DOMESTIC CONTEXT…..NOT A PRETTY SIGHT

 

by TheJusticeofthePeace @ 15. Nov. 2010. – 11:13:30

Intimate relationships are just that…….intimate……..definition; closely personal generally of a sexual nature. It took a long time for the law and its various agencies to become involved when these relationships took a violent turn precisely because of the unique circumstances surrounding any accusations of violence associated with that relationship. A glance at Wikipedia offers this information. 

Droit de seigneur, "the lord's right", often conflated with the Latin phrase "Jus primae noctis"), is a term now popularly used to describe an alleged legal right allowing the lord of an estate to take the virginity of his serfs` maiden daughters. Little or no historical evidence has been unearthed from the Middle Ages to support the idea that it ever actually existed.

Since it is accepted that history is written by the victors in any conquest it is not unlikely that all powerful newly ennobled French henchman of the Conqueror would seek to impose their authority in any form they wished. Be that as it may, rape always has been and to a certain extent probably will be a means of imposing male power over women in the most basic of ways. It is and has been used on a massive scale as an instrument of policy eg by the Russians in Berlin April/May 1945; Congo 2010. It is not an offence about which magistrates have any greater knowledge per se than any other lay people except that as for all offenders the accused rapist will face justice first of all in the magistrates` court. However at the lowest level of [usually] male violence against [usually] a female with whom there is or was an intimate relationship magistrates are well versed to comment. Although there is no such designated offence in law it is known as domestic violence or assault in a domestic context. 

For decades the standard police response to accusations of assault perpetrated on a female by her male intimate partner/husband/boyfriend was referred to somewhat disparagingly as a “domestic” and unless resulting in serious injury the offender was rarely taken through the courts. However some four or five years ago the Metropolitan Police in a change of policy announced that even when a complainant withdrew her accusation all cases of suspected domestic assault would be pursued in the normal manner if the evidence were available. This resulted in vastly more offenders being convicted. It also resulted in increased difficulties for prosecutors and courts when complainants withdrew their original statements based on which charges had been laid. Sometimes these withdrawals are taking place on the day of trial. My post on November 11th detailed such a case. At such times emotions including fear, love and hate are such a fateful mix that justice is clearly seen not to have been done.

In the recent case of a mother of four at Mold Crown Court whose husband was accused of raping her, her subsequent statement of withdrawal, whether written or verbal did not prevent the CPS from continuing with the prosecution so she then retracted her accusation saying she had lied and that she had not been raped. As a result her husband who had originally pleaded guilty was discharged and she was jailed for perverting the course of justice. This is or was subject to appeal.

There are those with sharp axes to grind who offer spurious statistics regarding the failure of police and courts to offer justice to rape victims. However the case above described relates in microcosm to what is happening every week in many magistrates` courts throughout the country. When judges and J.P.s have to peep through the bedroom keyhole to deliver justice it is often not a pretty sight.

ADDENDUM 24th Nov 2010

In the above case in which a rape complainant was imprisoned for attempting to pervert the course of justice Lord Judge with two colleagues has ordered her release from jail and reduced her sentence to a two year supervision order with a community requirement. 

EQUAL BEFORE THE LAW BUT APPARANTLY NOT PAUL GASCOIGNE

 

by TheJusticeofthePeace @ 14. Nov. 2010. – 12:01:40

High profile cases at magistrates` courts usually make some sort of news; at a local level in the printed, electronic or T.V. media if not in national news outlets. And these cases are usually presided over by a single District Judge and not a bench of three local J.P.s. This is no accident. It`s as if court managers have no confidence that we can provide high quality justice for those “personalities” whose drink, drugs or driving habits are somehow different from those self same drink, drugs or driving habits of the common man [or woman].

Truly a victim of his own success Paul Gascoigne a footballer in the mould of that late great drunk Georgie Best was bailed to appear for sentencing on Thursday this week having previously pleaded guilty to his umpteenth charge of drink driving at Newcastle Magistrates` Court in front of District Judge Stephan Earl. There is no need here to list the previous criminal history of Gascoigne except to say it is substantial and is much related to his substance abuse. Instead of keeping to an arranged appointment to be interviewed by local probation officers he breached his bail by voluntarily admitting himself [not for the first time] to a private clinic for addicts. The good judge said that the defendant Gascoigne did not deserve to be treated differently from anyone else facing punishment for the same offence and then promptly treated him differently. Instead of having a warrant issued for his arrest and having him brought to Newcastle ASAP he instructed the probation service local to the clinic to interview him for a pre sentence report; an action that Newcastle probation officers were unable to do because the offender had absconded.

In my opinion justice was not served. When high profile individuals are given preferential treatment and preferential treatment was what Gascoigne received notwithstanding denials, further evidence of declining standards in public officialdom is revealed. One well known commentator remarking on the recent decision that the three former M.P.s accused of theft must face trial at Crown Court and not in Parliament was that the public wouldn`t stand for any other decision. It should not require fear of public comment to ensure that everyone in this country is equal before the law.

"P" PLATES CAN P*** OFF

 

by TheJusticeofthePeace @ 13. Nov. 2010. – 12:58:11

One would have thought that a representative body faced with the most radical shake up of its members` practices in a generation…..even in two generations……..would find it logical, expedient and productive to concentrate all its efforts and limited resources to hammer out its message to the public and opinion formers. One would have thought so but when the organisation in question is the Magistrates` Association it appears that logic, expediency and productivity go out of the window.

There are pressing matters and pressing arguments to concentrate minds with regard to the Coalition`s intentions to reduce prisoner numbers, close prisons and divert many thousands of addicted and mentally ill offenders to non existing [at present] community institutions staffed by non existing [at present] personnel paid for with non existing [at present] resources. Thus there are many directions in which the M.A. could be firing its short supply of arrows and still find a useful target. But that would too obvious. Instead, according to a report today in The Telegraph, the M.A. has proposed that newly qualified drivers should be legally required to have on their cars front and back a green P plate to warn other road users of their inexperience. This story for emphasis is subbed as policy of the 28,000 member M.A. I have searched high and low in the impossibly difficult to navigate website of the organisation and found no mention of this policy. One would have thought that a document sent as official policy to Philip Hammond, the Transport Secretary would have at least been noted in the minutes of the latest meeting of the association`s  Road Traffic Committee on 7th October. One would have thought wrongly.

One would have again thought that such a radical proposal from those who represent us, the magistrates who sit in judgement of such matters, would have been discussed with others who might have some input learned from experience. Perhaps the M.A. has had talks with driving school representatives, or those involved in road safety matters, or motoring organisations, or the police and Crown Prosecution Service who would have to detect and prosecute those who flouted this proposed new legislation. From the report we are told the A.A. gives it short shrift.

The A.G.M. of the Magistrates Association takes place later this month. It will be attended by a couple of hundred at most. And that is the way the incumbents prefer to keep its meetings……close confined. The minutes of the last A.G.M. will not be available until the impending get together. That is another way of ensuring minimum criticism. There is no good reason on this Earth for these minutes not being available in advance on the labyrinthine website recently re vamped at a cost of perhaps £50,000. The 2008 minutes have no information of members in attendance. Obviously each would have had to sign in. Why should the names of the attendees not be added on a separate page[s]? At least the numbers attending and voting should be published without web site obstacles which make navigation nothing short of a joke impeding efforts to seek answers. Why is there no facility for distance voting?

When many of an organisation`s functions are carried out in a less than transparent manner errors of judgement will be made and re-made and made again. Irrespective of the soundness or otherwise of the proposal described above to have made it with apparently little or no consultation and been singularly rebuffed by the Minister of the department involved is sheer crassness. I have said it before and I say it again……..in its current form the Magistrates` Association is not fit for purpose!

UNPAID FINES

 

by TheJusticeofthePeace @ 12. Nov. 2010. – 08:12:09

I`ve posted in the past on unpaid fines which currently total around £500 million and rising. Routine pronouncements from the bench when issuing fines, costs etc include stating that a collection order will be made if the fine is not paid according to the agreed schedule. That means that without further formality bailiffs can be given instructions of seizure. All very well in theory but different in practice.

Reality television has made the daily work of bailiffs a half hour series of entertainment. Bailiffs of course work for any contractor who has unpaid sums owing from a customer for services rendered…….from the sale of a car to the supply of a parking space. Unpaid court fines` procedure allows for an offender to be arrested and brought to court to explain his non compliance with the court order. Either of two findings can be made by the court which allow the offender to be imprisoned for his reluctance to part with his/her cash; wilful refusal to pay or culpable negligence to pay. Custody can be up to seven days for an amount unpaid not exceeding £200 to one year for a sum in excess of £10,000. The major problem for the courts is the hoops through which they have to jump to impose a jail sentence.

It was interesting therefore to read a report in This is Cornwall about the police in Truro in conjunction with the local magistrates` court attempting to prise some outstanding fines from the reluctant hands of offenders.

For some people only direct action of this nature with the threat of imprisonment will force payment. With the stated policy of the Coalition to reduce the numbers of prisoners come what may there is absolutely no prospect whatsoever of the fines deficit being reduced……..another story of too much carrot and not enough stick.

VACANT and VACATED

 

by TheJusticeofthePeace @ 11. Nov. 2010. – 12:56:44

A full day`s sitting last month did not seem to hold any surprises when I consulted the court lists at 9.30am. There were two trials to be prosecuted by the CPS scheduled for the morning and one for the afternoon. Apart from extremely simple matters such as no insurance or some non CPS matters very few trials are listed for less than half a day. Having two trials listed that morning each an allegation of assault but one in a domestic context was normal. The official policy it seems is that with a high rate of cracked or non effective trials the only way to improve efficiency is to double list. In blunt terms if everyone appears for both matters one of them is likely to be adjourned or to go part heard…….rough justice for a defendant, his/her lawyer and witnesses if any.

On that day priority was given to the DV case and so from 10.00am after the usual preliminaries and request from the prosecutor to have a very short adjournment with the Officer in the Case we heard a sorry tale of why he could not proceed. At that moment the defendant, a grim faced well built male of twenty seven, seemed unable to suppress the hint of smile. We were told of a history of statements made by the complainant at the scene, repeated at the police station a day later, withdrawn a month after that, the withdrawal itself withdrawn four weeks prior to trial and now a refusal to appear even although she had briefly attended court at 9.30am. The prosecutor announced formally that he was offering no evidence and accordingly we dismissed the case. During a brief recess we were told that a previous bench had found the defendant not guilty of a breach of his bail condition of non contact with the complainant. The strong sweet black Italian coffee didn`t taste as good as usual.

The second case of assault was of the usual kind insofar as there is a “usual” kind. An argument in a pub leads to an altercation outside and the loser gets a bloody nose whilst the defendant is in the dock unrepresented after being refused legal aid on income grounds which means he earns more than about £21K. He was forty four, had dressed for the occasion, well cut suit and white shirt and tie. He seemed to be comfortable in such clothing and judging by his address lived in a smart part of town. I often wonder why those who might have money for cars, holidays and restaurants don`t spend some of it on a lawyer when they are before the court especially when they are of good character. This chap, when the crunch came and he was asked if his plea was still not guilty, decided that at this the third listing he would change his plea.

So by 11.15am our official morning list was over. We did manage to employ ourselves undertaking the Queen`s business until about 12.30pm by taking work from the remand court which is so over burdened by design that without other courts` availability due process would be impossible.

And so at 2.00pm with two new colleagues we said our “Good afternoons” to the few assembled for my third attempt at a trial that day. Arthur Nixon, Nick Arthur or Arthur Nicholas aged 37 was on our list as having assaulted a male and a female, his wife`s brother and the brother`s girl friend six months previously. CPS prosecutor rose to tell us that nobody has appeared. Both the defendant and the wife`s brother were apparently serving time for Her Majesty and the female was not contactable. When enquiry was made as to why all this was not taken into account by the CPS during normal review prior to trial and information conveyed to the court we were not surprised to be told that reduced staff availability had led to a lowering of quality control. He shrugged, our L/A sighed and my two colleagues who had been rostered only for the afternoon moaned audibly when we were told that there was another bench taking remand court`s leftovers. We were released about 2.20pm.

Such is the reality of why a court does not always reach 80% utilisation demanded by the Minister of Justice.

BENEFIT FRAUD: CROWN COURT OR MAGISTRATES` COURT?

 

by TheJusticeofthePeace @ 10. Nov. 2010. – 16:36:23

Benefit Fraud is an either way offence with a maximum sentence at Magistrates` Courts of six months custody and/or £5,000 fine. Tried on indictment under various Acts at the Crown Court the maximum sentence is ten years. Until about a couple of years ago magistrates` benches were usually advised to decline jurisdiction if the sum involved was over £20,000. Indeed as recently as October last year at Hendon Magistrates` Court in London a case was sent to the Crown Court when the sum involved was £35,000. At my own court within that self same period of one year we have been advised by prosecutors on behalf of the Secretary of State that Magistrates can accept cases where up to £60,000 is the alleged sum involved. Our L/As appear to have received similar advice.

It was therefore interesting to read the case of a mother who was sentenced after trial to three months custody [suspended] at Crown Court when the amount obtained was less than £20,000. Not having been there I would hazard a guess that it would seem likely that this defendant elected trial by jury. Defendants take such legal advice for one reason; the belief or hope that they would be more likely to be found not guilty. I do not think they fully consider that if found guilty they might receive a greater sentence than at the lower court. If that were the case and being unaware of all the facts I would stick my neck out and suggest that her sentence was indeed probably more severe than that which would have been handed down at least in my court.

Because two cases are perhaps similar but not the same I suppose it is difficult to analyse the difference in sentences for similar cases in either way offences such as above. I have a vague recollection of reading somewhere that it is thought that in comparisons such as I have described judges do tend to impose heavier sentences than are imposed in Magistrates` Courts. If that were so would defendants follow the maths or would they would they hope for acquittal? And of course the temptation of legal aid at Crown Court might be attractive to some.

SQUATTERS` RIGHTS/ SQUATTERS` WRONGS

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 16:33:57

For anybody who parks a car in a dodgy neighbourhood there is always the underlying fear it could be vandalised or worse……stolen. Vehicle theft is indeed a serious criminal offence. If it were not so considered eg if one had to identify the thief and take out a summons through the civil courts system cars would be disappearing non stop. Fear of discovery and deterrence certainly have a part to play in keeping the lid on any acquisitive criminality.

How different it is when one is considering theft of one`s fixed property; ie house or commercial premises. Landlords know of the possible problems when a property is vacant between lets or for some other reason. And property owner Connan Gupta now knows more than most………..to his cost.

Vacating his house whilst it was being re-furbished he returned to find it occupied by squatters. Squatters might be the accepted term for such people but I prefer the description property thieves indulging in theft of property and, according to the Mail online report, excusing their actions by spouting Marxist rhetoric of the basest kind.

That this is not a criminal offence is a downright scandal. With the prospect of Housing Benefit changes around the corner increasing homelessness the Coalition must rectify this sorry state of affairs ASAP. 

BLOGGERS UNITED IN FREE SPEECH

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 14:14:37

There is democracy within an organisation and there is the appearance of democracy. After having listened to an interview this morning by John Humphries on “Today” with a very senior Chinese government official who when he asserted that there is no single pattern of democracy and that western ideas of such are not the only forms of the Athenian innovation I could not but think of the Magistrates` Association and its version of the “D” word. 

Recent statements have indicated that the M.A. is considering changes in its structure to render it more representative of those it purports to represent. Perhaps it will consider a change along the lines of ridding us of the outmoded branch system and make benches the unit of organisation; a change I have long advocated and which my own branch has soundly ignored without debate. Another innovation would be using cyberspace in its many facets to gather in opinion from a wider constituency. However despite pleadings from Fitzroy Square it cannot and should not try to control individual magistrates from speaking out on their own behalf whether anonymously or not when they make it clear that their opinions are those of themselves as individuals and not representative of anyone or any organisation. The debate in the last few weeks to keep open courts threatened with closure has been led by individual magistrates and judges far more effectively in their local press than by the M.A. pontificating from on high. Of course J.P.s run the risk of drawing fire from the Ministry of Justice or one of its associated bodies if they stray too far into certain areas. From my own experiences of professional bodies negotiating with government departments the negotiators often begin to act, talk and behave like the civil servants with whom they`re dealing to the detriment of the cause they are supposed to be espousing.

The long established magistrate blogger Bystander broadcast on 5 Live last week under his own name in a debate with Louise Casey on the subject of a defendant`s right to choose in either way matters touching on whether all or some E/W matters should be abolished and/or whether the right to choose mode of trial should be abolished for defendants. He made it perfectly clear he was speaking for nobody but himself. No doubt he was selected because of his high public profile. Any reader here will know that I am firmly of the opposing view and that the right to choose is an anachronism which could and should be jettisoned from our trial system with no resulting reduction in the quality of justice from a bench of three cf a jury chosen at random. 

However the M.A. cannot and should not seek to stifle individual opinion. Only when it becomes truly a representative body for Justices of the Peace will individuals consider that there is no need for them to make an individual contribution. Until then………………………… 

LOCAL COURTS AND LOCAL FOIBLES

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 09:27:52

The recent appeal in the case of Bobby Cooper Appellant/Defendant- and -Wrexham Magistrates Court should in my opinion be compulsive or should that be compulsory reading for all J.P.s. The essence of the judgement was that the L/A had overstepped the boundary between his duty of providing legal advice and guidance to his bench and the finding of fact by the bench. The result was that an appeal against verdict was allowed.

Legal advisors like all highly qualified skilled workers practise their profession in their own idiosyncratic manner within the limits of their expertise. Generally speaking I hold them in high regard. They have to cope with many hundreds of individuals from varied backgrounds with whom they might in the fullness of years strike up a working relationship built on mutual respect and understanding. They have to cope in the main with chairmen who talk over much or behave as if they were a latter day Judge Deed. They have to carry along and support those who wish to involve themselves as little as possible in the running of their court and whose ability in the retiring room perhaps leaves something to be desired. And it is in the retiring room that problems can occur.

The appeal mentioned above was last week. But it immediately reminded me of a situation during the winter when the building`s ancient heating system finally died. There were the three of us in a cold retiring room one male and two females my lady colleagues being sensible enough to have worn coats to court that morning and now in the confines of the retiring room they had put them round their shoulders in an attempt to insulate themselves against the low temperature which would have had paid workers in the streets shouting it was against their human rights to work at what seemed like 32*F. We had a guilty plea on a class A possession and were considering her sentence. Maxine was a well spoken mid twenties heroin addict long since fallen from grace who had last been in our presence for the same offence when she had been convicted five months previously. We therefore did not require any further information from probation other than that she had so far been attending all appointments for her six month drug rehabilitation programme contained within a supervision order. My colleagues were of the opinion that a similar new six month DRR would be onerous enough and relatively heavier than the preceding sentence. I maintained that an element of punishment should be incorporated in the sentence eg curfew to indicate that similar repeat offending in such short a time frame was unacceptable. At this point our very able L/A attended having waited the instructed ten minutes requested by our chairman who was now visibly shivering. Our sentencing discussion became quite heated but positions were entrenched and the majority carried the day as it always must.

Later that day when we were alone discussing that sentence the L/A made it quite clear to me that he considered that my colleagues were incorrect insofar as a structured sentencing approach should not have considered that in effect an increased DRR was more onerous and therefore constituted an additional punishment element that I had criticised as being lacking. But, he was quick to point out, it was a lawful disposal and it was not for him to comment further. 

I had occasion last year to ask a newly appointed L/A who casually sat with us as we opened our discussion after a trial and with whom none of us had ever previously officiated to leave us and return when we rang for her. She replied that in her previous post it was commonplace for L/As to sit in at such times and contribute when required or requested. So it appears that in certain circumstances magistrates` courts are still “local” with local practices and local foibles. 

Roll on 2012 when many court amalgamations will have been implemented and I`m sure there will be many more such scenarios of, “that`s the way we`ve been doing this for years”.