The Justice of the Peace [magistrate`s] Blog:

Another very interesting notification from Crimeline. The long established idea of an Englishman`s home being his castle is being threatened by ever more official and quasi official bodies seeking to thwart the ancient right....warrants of entry by utilities companies being an example. The situation as described below gives food for thought.

Carson was subject to pre-charge bail conditions, one of which was not to reside at her home address. The police investigation was in relation to racially aggravated harassment, the complainants being her neighbours.

Carson applied to the magistrates’ court to have the bail restriction removed, but that application was refused. Carson applied to judicially review that decision.

Held: I quite understand how the magistrates came to the view that if the claimant remained at the property there was a risk of further offending: although I have not seen - and indeed they will not have seen - the statements of the [complainants], the summary of the nature of the allegations has all the hallmarks of a classic neighbour dispute and if the complainants' evidence is indeed well founded, there must be a real risk of further offending as long as the two families remain neighbours, regrettable though that is.

Nevertheless it is my firm view that the condition that the claimant cease to reside at [her home address], was disproportionate. I would make the following points.

First, the claimant has not of course been convicted of any offence: she has not even been charged. Because she has not been charged, she has not even seen the evidence against her. That is of course not in itself a reason for not imposing conditions of bail but it is important background.

Secondly, the alleged offences, so far as I understand it consist only of racial abuse and cognate conduct. When I say "only", I do not mean in any way to mitigate the seriousness of offences of that character, particularly if persisted in over a long period. But there is as I understand it no allegation of violence or criminal damage or matters of that nature. I repeat that I do not suggest that the conduct alleged may not be serious but there are inevitably degrees of seriousness and where there is no risk to life or limb, that must also be taken into account in considering the proportionality of the bail condition imposed.

Thirdly, because the claimant has not been charged, the bail conditions will, unless a contrary order is made, remain in place for at least several months. [CPS counsel] has told me that the CPS does not anticipate being in a position to make a decision whether to charge the claimant for between six to eight weeks. If she is indeed charged, it must be a matter of many weeks before the matter can come before the magistrates for trial. I do not know, and - unsurprisingly - nobody is able to tell me what the state of the list is in Ealing Magistrates Court, but if it is like most London magistrates courts, accommodating a trial which might last certainly more than one day, which is characteristic of disputes of this kind, will not come on quickly.

Fourthly, it is a very serious matter to exclude a person from their own home. That would be so even if we were at the stage of sentence and considering some form of restraining order - though of course that is not the stage we are at. I have seen such orders made, and they may well be appropriate in cases of serious and/or repeat offending (and the same result can be sometimes obtained by civil injunctions). But such orders are not lightly to be made. And there are in this case reinforcing features. The effect of the condition is that the claimant will be in practice homeless. Her friend cannot be expected to go on accommodating her for many more weeks. Indeed, I am told on several nights the claimant does not feel able even now to sleep at the home of the friend in question and is in practice sofa surfing with other friends. And there is the problem about caring for her father.

For all those reasons, it seems to me, I repeat, quite disproportionate for the bail condition in question to be maintained.

During my time on the bench I have had the enormous benefit of having had as a colleague three first class District Judges. Each one in his and her own way was a superb communicator, teacher and advisor. One common factor that each of those people emphasised to the bench as a collective and to me personally was that our powers in court were identical to theirs. This certainly boosted my confidence when I became a chairman and I have no reason to think that many colleagues did not have similar experiences.

One aspect of this job that one quickly learns is whilst not necessarily parroting pronouncements like a ventriloquist’s dummy one must be somewhat circumspect in anything one says from the bench whether eg it is the manner in which an informal warning is given about an offender`s future behaviour or an explanation in rather simple terms to somebody whose comprehension might be slightly wanting. It would certainly be beyond my personal remit to follow the example of Deputy District Judge [MC] Bennett at Westminster Magistrates` Court (The Times behind its paywall) who declared from the bench recently, after having found guilty of careless driving a lorry driver whose offending caused very serious injury to a cyclist, that he would be writing to Mayor Boris Johnson to consider the layout of the accident location to improve safety for cyclists.

It would be interesting to know whether my reticence is common or not amongst colleagues. What our legal advisors might say in such circumstances would be another matter indeed.

Dangerous driving is an either way offence and as far as I can recollect I have never sat on such a case. Therefore it was with some surprise that I learned that a professional driver for an emergency service has no greater defence in law than Joe Public if for example his alleged offence was a by product of an urgent need to protect or save life. PC James Holden was prosecuted at Guildford Crown Court for dangerous driving but was acquitted by the jury. The details are reported by BBC.

Considering the great minds of the legal great and good are fixated on so called guidelines to hamstring sentencers to a “I prepared this sentence earlier” mentality where human behaviour is considered as a series of hurdles over which the sentencer has to jump to determine the appropriate punishment this anomaly is odd to say the least. If the situation had not been considered it was a disgraceful oversight. In all likelihood it was not an oversight. It was a deliberate action taken against common sense. Common sense is no longer a required competence for Justices of the Peace as it was when I was appointed. Perhaps it is a facility lacking also in other parts of the criminal justice system or perhaps the lack of a legal defence for blue light situations was a deliberate political act……..

The current “we`re all in it together” mantra from David Cameron and others seems to becoming more a target balloon to be shot down than a political football to be kicked around. Undoubtedly the subject of police “reforms” is one of the biggest if not THE biggest thorn in the side of government. With an Olympic Games just a few weeks away requiring the biggest ever security operation ever seen in peacetime Britain and the election of Police Commissioners due to take place before the year`s end, a Police Federation conference giving the current Home Secretary an experience she`ll never forget, the re-establishment of police prosecutors in magistrates` courts, proposed reduction in police officer numbers of more than 10%, privatisation of some direct to public police services, direct entry to police at superintendent level just some of the policing issues hitting the headlines.

The scandal of private limited companies set up by senior civil servants has been found to be not of just a single individual but a pattern of appointment totally at odds with any notion of what is acceptable for a civil servant. Some might say there lies a similar situation with this country`s senior police officers. A certain well read blogger by name of Inspector Gadget is well known for his disparaging opinion of those to whom he must when needs be doff his cap. There is an interesting report in the Yorkshire Post on the topic of the funding of the Chief Police Officers Staff Association. There is certainly nothing wrong with such people having a trade union to represent them in discussion with employers. The “who pays what for what” argument is well rehearsed. Look however at the representations made by this CPOSA on December 10th last year to Tom Winsor re his Independent Review of Police Officers’ and Staff Remuneration and Conditions. Read at least pp4 & 5 and make up your mind whether there is any mileage in Inspector G`s contempt for his superiors.

Try as I might I cannot find a web site for the Justices` Clerks` Society. I have found it is a private limited company without share capital first registered in 1903 and which has recently been dissolved. In April 2010 the Justices` Clerks` Society issued this notice:- “The Justices' Clerks' Society is pleased to be able to offer membership to all Legal Advisers in the employment of Her Majesty's Court Service. For the current year 2010/11 the Society has agreed that the membership fee be fixed at nil”. Perhaps a reader will offer current information on this apparently phantom organisation.

Recently a document was published under the letterhead “JCS: The professional society for lawyers who advise magistrates” in which was included the following advice;

It is not appropriate for Magistrates to conduct internet (or other research) into cases they are to hear on issues arising within cases or into people involved in cases save to the extent allowed by guidance issued by the Senior Presiding Judge's letter issued June 2011 on Use of Personal Technology in Magistrates’ Courts (attached)1. This applies whether the Magistrate is at court or elsewhere, as to undertake private research could compromise judicial impartiality. Examples of such improper research might include looking at a road junction on “Google Earth” to evaluate evidence on a motoring case or seeking information on the causes of a medical condition to evaluate evidence in care proceedings. Magistrates need to ensure that cases are exclusively decided on the evidence presented to the Court; if local knowledge is used to evaluate this evidence that should be disclosed to the parties.

I take issue with much of the above and in particular to the phrases I have underlined. It is not unlikely that at least one member of a bench of three lay magistrates will have no need to use Google Earth to consider the quality of evidence presented by a witness regarding an incident where such knowledge was relevant. It would be his/her duty to make his concerns if any available to his colleagues when the credibility of the witness is considered. Is this to be subject to some sanction? At a conservative estimate my own bench has 5% - 10% members with medical registration and similar professional experience. Is their knowledge to be by passed in the retiring room under similar circumstances? Currently the Ministry of Justice is still deploying J.P.s as local Justices. In such a position our local knowledge is part and parcel of our being appointed although of course the same cannot be said for District Judges.

As holders of judicial office magistrates decide a case on the facts presented and the credibility of the witnesses attesting to these facts. In order to do so they use their local knowledge and abilities absorbed over a lifetime. If those facilities cannot be employed why are we here? The Justices` Clerks` Society in whatever form it now exists has more to do to shed some light on its own position. We have many more important observers watching our every move and telling us in no uncertain terms where our limits are. IMHO we are more akin to three wise men {for literary style but not political correctness men embrace women in this context} than three monkeys.

With his eschewing of dark pin stripe suits and hand made black leather footwear Kenneth Clarke, with his rotund profile, cigarillo in mouth and distinctive accent of a Nottingham raised grammar school boy as opposed to a former Eton scholar, presents as a man of the common people. Presentation is one thing but the reality is another. He is as far from a populist Tory politician as one can find on the government benches. He is arguably the most experienced politician still in public life. Nothing he does or says is anything but the result of calculation. He slips up but rarely. Therefore his comments a couple of days ago that the media is to blame for the surge in prison population strikes me as a realisation that his position as Secretary of State for Justice is not his unfettered right for the remainder of this parliament.

For a start he misrepresents the facts on the cost of keeping a prisoner behind bars. The exact figures produced by his own Ministry on pp4 here are such that it devalues everything else in his outburst. Of all people he knows that every single sentencer is bound by the Sentencing Council in the determination of sentences. In rare cases where an offender is sentenced outwith the Council`s guidelines explanation must be made in open court. The Times behind its paywall quotes Mr Clarke as believing that the public wanted more people in more prisons with long sentences but also his saying this was a “fairly non-productive avenue”.

At a time when the eurosceptic view of current events is gaining ever more credibility supporters of Mr Clarke, long associated with wanting closer ties to the E.U., must be wondering just how long he can continue to argue policies which go against the natural trend of the party traditionally associated with law `n order.

From time to time we all deal with matters arising from the non payment of fares on public transport. Defendants appear at trial with all manner of defences which are often mitigation. They appear under a variety of bye laws and regulations; they differ in the degree of intent {if any} to evade payment. The case below appealed from City of London Magistrates` Court might be of interest. It is copied from Crimeline website.

Burns v First Capital Connect [2012] EWHC 1305 (Admin)

The appellant, Mr Burns, was convicted by the City of London Magistrates on 22 July 2011 for an offence under Byelaw 18(2) of the Railway Byelaws. Byelaw 18(2) provides as follows:

"A person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person."

This is an appeal by way of case stated. The questions posed by the case were these:

"A. Can a person be guilty of an offence under Byelaw 18 (2) and 24 of the Railway Byelaws if they did not hand over their ticket for inspection and verification of validity and were not asked to do so by an authorised person but where the ticket was found to be invalid because it was an Oyster card with insufficient funds on it?

B. Were the magistrates wrong in law or did they act in excess of their jurisdiction in convicting the appellant of an offence under Bylaws 18(2) and 24 of the Railway Byelaws when they found, (a) that the appellant had not failed to hand over his ticket for information and verification of validity, (b) that the appellant had not been asked to hand over his ticket by an authorised person, and (c) that the appellant had insufficient funds on his Oyster card ticket and it was therefore an invalid ticket?"

The appeal is unopposed. Upon reflection, the respondent has not sought to uphold the decision of the magistrates. The reason is quite straightforward: as is apparent from the wording of the two questions posed by the magistrates, no offences was committed under Byelaw 18(2). In effect, as Mr Fuller has submitted today, the very wording of the question reveals that no offence was, on those facts, capable of being committed under Byelaw 18(2). The appellant had indeed handed over his Oyster card, albeit there were insufficient funds on it. Accordingly, the two questions posed, to which I have already drawn attention, must be answered: in respect of question A: no; and question B: yes. Whatever may have been the appellant's fate, had he been prosecuted under Byelaws 17(1) or 18(1), which focus on valid tickets, those were not the Byelaws under which he was prosecuted. A prosecution under Byelaw 18(2) was, whatever the underlying merits, doomed to fail. It follows that the appeal must be allowed.

Soon after the coalition took office, on 6th July 2010 Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative) told the assembled multitude in Westminster for the very first time that he envisaged the magistrates` courts “utilisation rate” rising from its then 64% to a government target of 80% and that would be achieved inter alia by closing about one third of magistrates` courts. I have posted a few times here that that target will not be achieved……unless of course definitions are changed which is a not uncommon occurrence within governments per se. It has long been my opinion that inefficiencies within all the agencies inputting to a trial {excepting D.J.s and J.P.s of course} will preclude much improvement in the so called utilisation rate unless and until fundamental changes are in place within all these agencies and their relationships with each other. It seems that those pulling the strings behind the scenes i.e. senior civil servants have no idea just what really happens to ensure a trial takes place the first time it is listed.

No better insight into the mindset of such people can be illustrated than in discussion about parachuting outsiders into the police service at the seniority of superintendant rank. The Director General of the Crime and Policing Group at the Home Office is one Stephen Rimmer. He was speaking at a conference organised by the Association of Chief Police Officers; an organisation itself lacking a certain transparency, where he told his audience, “Ministers cannot understand why people get so defensive – they see (direct entry) as a way of enhancing the professionalism of the service”. If this spokesman for the Home Office tells Chief Constables there is no understanding by his masters {and mistress} of his audience`s negative reaction to the proposals we must truly be living in a land divided into the rulers who refuse to believe their ideas need to be questioned and we, the ruled, for whom saying “I told you so” is too little too late after the event.

Most of the Justices of the Peace on my bench have concerns over the increased numbers of Deputy District Judges [MC] being appointed. Such an appointee to my bench combined with the reduced sittings allocated to virtually all of us cf the numbers offered bring this concern to our own front door. The Magistrates` Association makes great efforts to convince us that it too shares our concerns and is working to abrogate the situation. It is interesting therefore to refer to yesterday`s parliamentary answer on this matter concerning the situation in Northumbria.

A new document from the IPCC and ACPO has clarified what the phrase “drunk and incapable” means.:- An individual has consumed alcohol to the point of being unable to either walk unaided or stand unaided or is unaware of their own actions, or unable to fully understand what is said to them.

Could have discovered that in any pub in Glasgow or Liverpool, or Newcastle or Manchester, or Portsmouth or Newport or………The world must now be a better place for that up to date information.

I have commented here more than once that courts` inefficiency is more often than not caused by the failure of one or more of the agencies whose input is vital for a trial to proceed as expected to provide the necessary documents or information to the appropriate personnel at the appropriate time. Therefore it was a pleasant surprise to read an article in Public Service. Co.uk an article by Andrew Morley, former chief executive of the London Criminal Justice Partnership. Considering the coalition has lost sight of the “service” element re County Courts where fees have risen considerably in order to try and make the “service” self financing at the cost of putting a legal remedy out of reach of many people Mr Morley`s view is a refreshing breath of common sense where the prevailing government wind is blowing away much that is reasonable.

Once again this week saw the release of a man from prison having served seven years of a life sentence his conviction being declared unsafe. Much criticism has been attached to police, CPS and his own defence team for his conviction but of course no comment can be made or is known of the jury`s deliberations and the manner in which the evidence was considered. It was reported today in the Bolton News that last week a juror serving at Bolton Crown Court was convicted of smoking cannabis just outside the court building. Just what type of thinking processes could have been going on in the head of that man to commit such an offence in the context of where he was and what he had been summoned to do?

In some quarters it is heresy to question the jury system as it is now constructed. I believe it is an abrogation of responsibility and wilful denial that the legal profession at its highest does not at least consider that it is not in the interests of justice that there is an almost universal right and duty for anybody {with very few exceptions} to sit on a jury. On the one hand we are constantly told of the failing educational standards in basic mathematical concepts and ability in the English language but on the other that there are no minimum standards applicable in the English language for potential jurors.

With increasing safeguards supposedly applied to police investigations and interrogations and criminal procedure rules for those lawyers involved miscarriages of justice on serious charges seem to be occurring with no lesser frequency than ten years ago. The appeals process is terminally long. Surely an investigation into the abilities of jurors to understand and manage sometimes complicated and lengthy presentations is as much a necessity as all other investigations into miscarriages of justice?

It seems police prosecutors will be making a comeback in magistrates` courts. This is a pragmatic approach to over worked CPS resources and is not unreasonable. There is, in the press release, an indication of a mind set about which I take issue. The offence of no insurance is considered with the same degree of seriousness as failing to produce a driving license. It is not unlikely that similar such discrepancies will arise. Having become a Justice of the Peace subsequent to the police having had powers of prosecution handed to the CPS it will be interesting to see with what skill and due process this development manifests itself.

Convictions for offences under s5 Public Order Act 1986 and as amended by Crime and Disorder Act 1998, Section 31 have been fairly constant for a few years and numbered 18,249 in 2009.

"(1) A person is guilty of an offence if he:

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

The guidance for CPS prosecutors is available here. This section 5 offence often can cause considerable soul searching by those who preside over trials subsequent to not guilty pleas at the first listing. Facts might be relatively simple but the interpretation of these facts by the aggrieved party and the bench`s own position on that interpretation can lead to some very interesting discussion in the retiring room.

Last November I commented as did many others on the case of Daniel Harvey –v- the DPP of which the full transcript of the successful Appeal against conviction under s5 is available here. It was erroneously reported that it gave a license to swear at police without fear of retribution. A greater understanding of the decision at the High Court can be had from the following extract:-

“Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment.”

When it comes to deciding if words are considered “insulting” then the problems really begin. We have been insulting each other for ages. From the father of cartoonists, James Gillray, in the late 18th and early 19th century, to Peter Brookes The Times cartoonist, public figures have been lampooned to within an inch of their lives and in a recent case the Danish cartoonist Kurt Westergaard almost lost his life as a result of an attack by a Moslem seeking revenge for what he considered a cartoon insulting the Prophet.

Four years ago a teenager was charged under s5 for holding up a sign which read "Scientology is not a religion, it is a dangerous cult", outside its headquarters in the City of London. City of London Police said it had received complaints and warned the teenager to get rid of the sign as it breached the Public Order Act. The matter did not proceed to court because the CPS declined to prosecute. "Our advice is that it is not abusive or insulting and there is no offensiveness (as opposed to criticism), neither in the idea expressed nor in the mode of expression."

In April 2010 Dale Mcalpine was accused of a public order offence after speaking to a community support officer (PCSO) in Workington, Cumbria. When he was told that the PCSO was gay and that he had said to him, “The Bible says homosexuality is a sin”, he was charged with breaching section 5 of the Public Order Act by allegedly using threatening, abusive or insulting words or behaviour likely to cause harassment, alarm or distress. That case also was dropped by the CPS.

The freedom to insult even to the point of causing distress is an inimitable part of freedom of speech. The launch yesterday of the Reform Section 5 Campaign led by David Davis M.P. deserves the support of all who value free speech over political correctness.

Often where Scottish law leads English law follows. In effect the results of changes in Scottish legislation provide a real laboratory where the sample population is 10% the size of England`s….a mathematically perfect test bed for the larger southern neighbour. The latest example of impending change is the application of minimum price at which alcohol can be sold thus it is to be hoped reducing drunkenness especially amongst young teenagers.

In order to have any understanding of what is proposed a new unit of measurement has been invented; the unit of alcohol which is defined as 10ml of pure alcohol. To calculate the number of units in a drink the formula used is as follows:-
strength {ABV} x  volume (ml)
1000

Eg for a standard (175ml) glass of 12% ABV wine:
12 x 175
1000          = 2.1 units

The Scottish proposal is 50p/unit. The coalition is thinking in terms of 40p/unit and increasing the maximum fine for selling alcohol to under age buyers to a maximum of £20,000. I will not bother rehearsing the arguments here for or against the principle of minimum unit price.

I posted here two years ago on this topic and the situation seen from Downing Street has not been grasped. It seems to be overlooked that there are people called licensees who must oversee the sale of alcohol on their designated premises. One would have thought that with a current maximum fine of £5,000 for under age sales available under s146 Licensing Act 2003 offenders, particularly persistent offenders, would be deterred from the practice. One would have thought wrongly. The law is rarely applied. In England and Wales in 2008 there was a total of 326 fines imposed for this offence. That is about one conviction daily for the whole country for every day the courts are open. Surely the place to curb such sales is at the point of sale…….the off license. Of course that would entail an increase in council personnel making test purchases using the help of young volunteer supposed buyers. Doing this would cost money and probably the recruitment of additional trading standards officers. Considering that at every conviction under s146 full costs are applied for and often granted such an increase in staff is not a one way ticket to necessarily increased costs of employment. There is the intangible saving in criminal and health related costs by the deterrent effect of the imposition for a second similar offence of the current maximum fine on any licensee whose employee usually takes the fall with minimum fine levels related to income…..usually minimum wage. Similarly when a licensee himself is convicted and that is rare situation the fine is related to income declared and is calculated at between half a week`s wages to a maximum of one and a half week`s wages depending on the circumstances of the case.

In conclusion, as with many so called initiatives by government, this idea of minimum unit pricing for alcohol is a smokescreen for the lack of action under current legislation. An amendment to s146 to allow the maximum fine to be imposed on any licensee whose employee or premises is directly connected to under age sales of alcohol for a second time within a fixed period eg five years would nip in the bud the sales of alcohol to children and go a long way to reducing the scourge of drunkenness on our high streets every weekend.

It`s more likely than not that in some newspaper or report there is a daily reference to the apparently lenient treatment handed out to an offender. Being in the privileged position of being able to read the record of a convicted offender on the Police National Computer prior to sentencing one has become used to apparent illogical sentences.

At a sitting not so long ago we had a young man before us having pleaded guilty to possessing a few bags of cannabis. What was surprising was that just under a year previously he had been sentenced to three years for blackmail and was therefore currently out on license. Needless to say we were told that probation had no interest in his latest folly. Perhaps there is a group within the senior judiciary which is pressing for a realistic sentencing regime which will realign sentencing to the reality of actual time likely to be served and in addition place greater controls on prison governors over their authorising early release and then again perhaps not………….

I would imagine that most of us have a doggy story to tell. Perhaps it was about a feral pack in Turkey or India or more likely a childhood experience of terror when an apparently placid animal had a rapid change of temperament in a public park. I last posted here 04/06/2010 on this topic. There is still some truth in the long standing belief that Englishmen treat their dogs better than their wives or children when one confronts the owner of a dog dangerously out of control. The Victorians were the first to legislate against dangerous dogs in 1871. Currently that Act and the more recent Dangerous Dogs Act {1991}, itself hurriedly cobbled together after a series of dog inflicted child deaths, underpin the law in this regard.

Not before time sanctions against irresponsible owners are set to increase on 20/08/2012 when new guidelines from the Sentencing Council become active.

There has been much talk of late in government circles of ending the “one wage fits all” philosophy of paying publicly funded workers from nurses to legal advisors. Of course the ubiquitous “London Weighting” to some extent is this policy in action albeit by another name.

One of the lesser publicised recommendations of the Winsor Report on policing is that experienced officers applying for a transfer from their “training” force to a position in another force should have a transfer fee paid by the new employer to the previous in respect of paying for all or part of his/her previous training costs. Whilst all or some of the Report`s conclusions are ill advised or controversial to say the least this one is a total nonsense. Businesses of whatever nature whether Premier Division football clubs or a chain of hairdressing shops detached from the state’s clutches can offer golden handshakes to whomsoever they think fit which in the minds of the shareholders make good business sense. Publicly funded entities like the police do not have that luxury. It is rather odd that such a proposal saw the light of discussion and was not aborted at conception. Then again having private security companies patrol the public streets must have seemed equally ridiculous twenty years ago.

“Positive discrimination” is a term describing a practice which many find unacceptable. Indeed employers, organisations etc can go to great lengths to deny such a policy exists. But there is one positive thing that can be said about such a policy:- it is honest and transparent. That is certainly not how the latest statement from the Ministry of Justice on the appointment of judges could be described.

There are many reasons why ethnic minority lawyers are not represented in the judiciary to the extent their numbers would warrant. But in seeking diversity Kenneth Clarke seems to be including women who must balance family commitments with work. All this is dressed up in the language of civil service speak………”if two candidates are completely equal in their abilities, a selection can be made on the basis of improving diversity”. Presuming some sort of points system is employed for the final selection…….in itself a phrase with an ignominious history, eg how does a white woman available thirty hours weekly compare with a black man available full time or a blind Asian man with full time availability. The comparisons are endless and the practice odious.

Today I was planning to post about the apparent reducing numbers of sitting days at my court when I noticed a press report that the Crown Court in Stoke on Trent has had its sitting days reduced by 11% for the year 2012/2013. The weasel words of explanation by Her Majesty`s Courts and Tribunal Service in defence of the indefensible are worth at least a cursory glance here.

However the reality of the failing situation in my own courts is a lesson from home. I commented recently that although the newly press ganged people administering our rota had been informed of my inability to undertake emergency sittings owing to my being away I was called a further twice in that period the last occasion being requested to undertake a one and a half day trial. I discovered earlier this week that a colleague had accepted that very same request and on turning up was told that the trial had been vacated a couple of days earlier but work would be found for her. Indeed it was; for just over a half day!

Two days ago I was called around 3.00pm to fill a cancellation the following afternoon at our trial courts venue. Yesterday morning I was phoned to be informed that the trial had been vacated owing to lack of a L/A but that I could fill another cancellation at our other venue. At 12.50pm as I was on my way to that court building that sitting also was cancelled. Our L/As who choose to take industrial action as per their union are responsible people who give due notice to the courts managers. It would seem that that message did not get to our hastily assembled new liaison people. Thus the abrupt change in my sitting arrangements can be explained. Very many colleagues have experienced similar situations in the last few months.

It is a well known axiom that a chain is only as strong as its weakest link. By cutting ruthlessly and thoughtlessly experienced staff to be replaced by well meaning but lower costing administrators and agency staff the short term balance sheet might appear healthy but sooner or later a higher price will be paid but not in pounds and pence.

Using a mobile phone whilst driving:- you`re either a regular offender, detected or otherwise, or else you wish there were more police cars on the roads to remove the complacency with which such people pay no regard to others on the road. I have to admit some prejudice. The child of good friends was killed in a crash involving a mobile phone user.

The current penalty is £60 fine on a Fixed Penalty Notice and three penalty points. In 2009, 126,000 FPNs were issued for this offence, a rise of 8% on 2008. In 2010/2011 there were 171,000. As all J.P.s and motoring lawyers know there are few successful defences when not guilty pleas bring this offence before the magistrates` court. Considering the resultant financial penalties for those convicted in such circumstances it takes a brave or perhaps arrogant individual to make a choice of not guilty notwithstanding deep pockets if represented. With so many very informative web sites offering basic advice on what constitutes “use” with five minutes of research I am forever surprised at the defences presented in such cases.

For a working defendant convicted in a court of using a mobile phone whilst driving the cost of a failed defence can be considerable. Fines are based on income. One could say that is good old Marxism in action; each according to his means. Recently three such offenders in front of my bench had to part with over £400 each in fines and costs after being found guilty after trial and indeed one individual was over £600 poorer as a result of offering an untenable defence. He expressed surprise that he wasn`t fined the FPN level of £60. Their three penalty points were of course an irritation for each of them.

In view of the apparent continuing increase in the illegal use of mobiles it seems unlikely that the proposed increase in FPN to £80 or even £100 will have much deterrent effect. The only sure way to reduce this offence is to increase the penalty points to five.

I had thought that I had left behind my trade unionist and left leaning sympathies when I left university and learned just how difficult it is to earn a living on a self employed basis. Mrs Thatcher and becoming an employer reinforced my changed philosophy. However in the last year finding out at first hand just how much grievance our legal and non legal court staff, CPS and others have had to put up with and the resulting court chaos as a result I am at one with those for whom support of the coalition`s austerity policy is beginning to ebb. It is not just wage stand stills or redundancies per se which disturb me; it is the cack handed and myopic changes which are close to sinking a ship already lacking a ha`pworth of tar. Thus I am in total support of those who will be reducing their collective efforts this Thursday causing severe disruption at my courts and many others.

When a patient is diagnosed with life threatening obesity [read economy on the rocks] he is not put on a diet of bread and water....his calorie intake is properly managed. The coalition expects the justice system to function on just bread and water. It can`t and still live and breathe. Unfortunately the results are [to mix metaphors] below the broadsheet waterline. When they become visible people will wonder how we allowed such a state of affairs to happen.

The government propaganda machine has lost little time in putting forward its plans for magistrates in the 21st century. Hard on the heels of that named report published by the Magistrates` Association and available in yesterday’s post the downgrading of Justices of the Peace to local non judicial functionaries is plain for all to see. I have posted previously that proposed “local neighbourhood panels” are as Greeks bringing equine gifts to Trojans and we are the Trojans. The purpose behind these apparently benign proposals is nothing less than the next stage in the downgrading of magistrates` judicial functions within the judicial system and our eventual replacement in the future by District Judges perhaps sitting with J.P.s on the wings and perhaps not.

Lack of criticism of single District Judges as arbiters of fact in trials has long been an anomaly in the system conveniently overlooked by everybody concerned from the Secretary of State and Lord Chief Justice downwards. The overpowering reason for our being a lay bench is that we are not lawyers and that three people are less likely to be in error over verdicts and sentencing than a single individual, lawyer or not. Therefore it is a complete abrogation of that argument for any J.P. to welcome the possibility of sitting as a single sentencer as is proposed by minister Nick Herbert. Currently a legal advisor will perhaps comment on a bench`s sentencing decision in the retiring room to ensure that the matter has been properly considered. But providing it is lawful the bench is the decision maker. With the proposal of a single J.P. a less than strong and confident sentencing on a guilty plea will be under heavy pressure from his/her L/A if there is the desire [for good reason] to deviate from sentencing guidelines. A three person bench united in its disposal is well equipped to stand firm in its independent conclusion.

I am disturbed that magistrates once again appear to have been rolled over by government. This is a trap plain and simple and the simpletons have fallen in.

Is there any proposal by government that would have headlines in the broadsheets saying, MAGISTRATES OBJECT TO GOVERNMENT PLANS?

It is a pre requisite for a system of justice which has confidence of the people it serves to be open, fair and applied equally to all. When guilt is contested those in judgement must put aside all else except the evidence presented in coming to their verdict. This applies equally to a bench of magistrates as it does to a jury in crown court. It is easy enough to cite jurisdictions where the above appears not to apply. Cases reported even in such countries as United States or Italy where there is ostensibly equality before the law have left questions as to the fairness of proceedings. The report Magistracy in the 21st Century posted here yesterday is still under official wraps but comments have been published by the national press so I have no hesitation in publishing it .

One of the odder topics seen fit for discussion is that which suggests that sentencers should take into account the level of criminality in a certain area. The report states that this, “allows the prosecution to draw the attention of a sentencing bench to the offence pattern in a specific location”, and the “cheap and effective tool” would unlikely be challenged by defence solicitors”. I fail in my simplistic understanding to see that this equates with disposals based on the offence and the offender and the respective harm and culpability.

Among the more esoteric suggestions is the following, “ All courts should be able to refer offenders for help by the appropriate agency as a means of reducing re-offending”. This blog has many times written of the high percentage of total offending caused by alcohol and/or drug addicted persons and the sheer futility of locking them up whether for short or longer sentences. Such people require refuges where their addictions can be faced and managed on the way to being eradicated when and if the addicts themselves wish to go the final hurdle to attempt rehabilitation. Perhaps the Magistrates` Association has a secret deep throat informing it that such places are under construction from a secretly funded government agency.

I will from time to time return to commenting on this document.

The Magistrates` Association has recently published its report “The Magistracy in the 21st Century”. This lengthy investigation into what the public thinks of the current system of lay magistrates` courts and options for the future is a worthy attempt to do what it now appears is the way politics and politicking works in this country and that is to find out what the citizenry thinks it wants and provide for those wants excepting those which are found to be unacceptable……eg membership of the European Union or restoration of capital punishment. For members of the M.A. the report can be accessed on its website. A summary is available here.

I will make only two comments. Much of it was centred on the concept of “local” justice which is to me flying in the face of reality, that reality being that the government is heading in the opposite direction in its restructuring of courts. My second observation is that it is odd that the Association did not wish to complement the report by ascertaining the views of its own members to exactly the same questions as were put to interviewees and presented at public forums.

Political pundits are scratching their heads over Boris Johnson`s defiance of public trends in retaining the London Mayoral for the Tories or George Galloway`s recent election win in Bradford. Perhaps it is down to leadership and personality; words which are not appropriate for most of our politicians or leaders of public organisations.

What a disgrace! All this dressed up in the best propagandist style.

Drink driving is a scourge. It is also, after many years, increasingly seen as an anti social act. As magistrates my colleagues and I have heard all the excuses available to man [and woman] as to why the situation arose. Occasionally an argument against mandatory disqualification; special reasons, will be presented by an offender. Nevertheless in the latest figures apparently available* {2006} 3,412 offenders were sentenced to immediate custody at magistrates` courts for all offences concerning drink and motor vehicles. In the same year 310 offenders were similarly sent to young offender institutions.

Low level blood alcohol levels in excess of the legal limit rarely attract custody for first time offenders. Indeed even those convicted a second time are unlikely to be jailed. But there is a category of drink drivers who are on a special list; they are termed High Risk Offenders and are defined as having had:-

one disqualification for driving, or being in charge of a vehicle, when the level of alcohol in the body is equal to, or more than, 200 milligrams in 100 millilitres of blood; or 87.5 micrograms in 100 millilitres of breath; or 267.5 milligrams in 100 millilitres of urine

two disqualifications within the space of 10 years for exceeding the legal limit or being unfit to drive because of drink

one disqualification for refusing or failing to supply a breath, blood or urine sample for testing

Those in the HRO category have to show a DVLA medical advisor they are fit to drive before they get their driving licence back. That entails having a medical examination with one of DVLA’s appointed doctors in their area.

It was a surprise to discover through Freedom of Information Act that for the years 2009 – 2011 30,209, 29,815 and 26,661 offenders respectively were placed in the HRO category. In 2010 around 54,000 drivers were disqualified for drink driving. A cursory inspection of the figures indicates therefore that more than 50% were considered HROs. Perhaps somebody might offer his/her conclusions?

*Offences relating to motor vehicles England and Wales 2006 Supplementary tables
Ransford Fiti, Dave Perry, Walter Giraud and Margaret Ayres
Office for Criminal Justice Reform

There`s nothing quite like a trip to the Scottish Highlands to view one`s personal world in a new light. The additional hours of daylight cf the amount available to those of us living hundreds of miles further south combined with a night sky free of light pollution serve for me at least to allow a certain tranquillity unavailable elsewhere in the country.

I have previously commented unfavourably on our bench`s new policy {and presumably others too} endorsed by all the usual bigwigs from the Senior Presiding Judge downwards that “low sitters” be given the first opportunity when urgent extra sittings are required owing to unexpected bench vacancies. My point of view is that they [low sitters] are such because for whatever reason they cannot with ease commit to their requirement and therefore are the least likely to be able to sit in an emergency. It is therefore quite logical that “high” sitters like myself have additional available time to fill bench gaps. And that was the position prior to this year……known high sitters were contacted in emergencies. The current procedure is that low sitters are contacted in the first instance when short notice vacancies have to be filled. I told my bench chairman some months ago that this system was bound to fail. Indeed it has proved to be the case with the number of two person benches now a regular feature of my bench. With the voluntary redundancy of three of our four justices` liaison officers and the fourth perhaps facing the end of her employment our bench has been forced to enlist admin staff who have had just a few days on the job training and an unknown number of agency workers to ensure a bench of almost 400 is correctly rota`d and complete on a daily basis. Whilst tramping the glens of Perthshire I had three calls from three different office people to fill emergency vacancies in the following three days despite telling the first caller I was unavailable for ten days and to endorse the appropriate list with the information. Indeed the last caller said and I quote, "We`re in a crisis." So it appears that the powers that be have finally realised that the original direction to offer sittings to the low sitters has failed.

All this inefficiency was perhaps avoidable if those who sit in their Whitehall offices had taken the trouble to talk to us at the coal face and our representatives had signed off their opinions that the courts could not take the options offered without crumbling at the foundations. At the very least there would have been evidence for future chroniclers of the policy of “austerity” that the chaos was foreseen and still entered into just as surely as the Titanic tragedy could have been avoided.