Archive for November, 2012

Having been on our feet for a year, a colleague could tell us the outline of a case, tell us which London Magistrates’ Court it was in and we could guess the verdict with ease. Nowadays, with the merged benches it is impossible to tell. Most Courts have become much more unfamiliar places.

A familiar place for me is Bystander’s blog, I nip in quite regularly to see what’s occurring. A recent post has caused me to develop a strange fascination with the Magistrates’ Association.

Herein the post:

Most interesting are the comments beneath.

In part there would seem to be real vitriol between colleagues. And today, the supposed ‘outing’ of Bystander. Well, I comment not on that. One of the more interesting comments which I read was this:

 However, it doesn’t represent the views of many younger working magistrates of whom I am one. Of the five working magistrates appointed at the same time as myself, none have joined.

To me, the MA looks very parochial and not especially independent. For example, in the Times article earlier this year JF appeared to condone single magistrates sitting alone in police stations (very disapointing).

Associating Magistrates

I had sometimes heard the Magistrates’ Association views expressed on certain things, but I had never looked into it before. On the Magistrates’ Association website you can find their response to a number of public consultations. They’re quite interesting reading.

Their response to ‘Swift and Sure’ justice makes fascinating reading. The first is, who the Magistrates are. In one breath, the Magistrates’ Association are at pains to make it clear that they are part of the independent judiciary. (Students of Dicey might point out that separation of powers means that the independent judiciary ought not have any input in legislative output, but there we are) In the other breath, they’re piling in with the Government to make wholesale reforms of the criminal justice system.

In another breath they are independent, but also part of the community, or champions of victims.

It’s all rather confused.

My biggest concern was reading their response about Victims and Witnesses, the Magistrates’ Association stated:

The CPS evidential test requires that crown prosecutors must be satisfied that there is
enough evidence to provide a “realistic prospect of conviction” against each defendant on
each charge. This part of the test  in our view, does not in many cases, reflect the
seriousness of the harm inflicted upon victim/s which should be covered more fully in the
‘public interest test’.

This took my breath away. How can the Magistrates be considered part of the independent judiciary when they are suggesting that the Crown ought to widen/alter their fundamental test for prosecution?


I think the word efficiency and delay feature more often in a lot of the consultations they answer rather than the word justice. I was surprised to note that in their guide ‘Magistracy In the 21st Century’ – I could find only one reference to the word, ‘Defendant’ and only twice for the word ‘Defence’.

It’s a huge concern that in some parts of the country, conviction rates in the Magistrates’ Court can reach 98%.

If the Magistrates are to focus on being independent members of the judiciary then their focus ought to be on justice. That means, making sure their members are adequately trained to deal with legal questions which arise during the trial. That means, making sure their members adequately reflect the community they serve. That means, that all parties who enter the courtroom receive a fair hearing. But most of all it means convicting the guilty only when the evidence allows and acquitting the innocent no matter how unattractive their behaviour might be.

The war the Magistrates ought to fight is this: making sure that Government initiative and cost cuts don’t jeopardise fairness and justice.



MRS PUTNAM: You think it God’s work you should never lose a child, nor grandchild either, and I bury all but one? There are wheels within wheels in this village, and fires within fires!

Replace Mrs Putnam with Phillip Schofield, he handed David Cameron a list this morning on This Morning and Cameron’s response: “There is a danger, if we’re not careful, that this could turn into a sort of witch-hunt, particularly against people who are gay and I’m worried about the sort of thing you are doing right now – giving me a list of names that you’ve taken off the internet.” Bravo, David Cameron.

Message boards, twitter, facebook are becoming the new finger pointed by the Salem girls and they’re picking on men, several of whom are gay.

I think the danger is real that there will be a witch hunt. And, I applaud the Prime Minister for warning of the risk.

My applause there endeth.

DANFORTH: The pure in heart need no lawyers.

So said Governor Danforth as he presided over the witch-hunt.

My applause ends for  the Government because at present there is a problem. The problem is that in the past we have not properly looked into child abuse claims. And when I say ‘we’, it is all of us because the child abuse has occurred within institutions, those institutions at present being identified as the BBC, various social services and so on. I say, ‘we’, too, because the institutions we employ to consider the abuse claims have failed to consider them properly. It would seem that is true for various police forces and the Crown Prosecution Service.

Here is the problem.

So, the abuse has happened within institutions and there is an institutional failure to detect, prevent and cure (by which I mean remedy) the abuse.

The unfortunate reaction has been this:-

1 x Scotland Yard Inquiry

1 x BBC Documentary

1 x ITV Documentary

3 x BBC investigations

1 x Department of Health investigation

1 x Director of Public Prosecutions Review

1 x National Crime Agency investigation

1 x Judicial led inquiry

Numerous individuals who are pointing the finger with the fervor of Abigail Williams.

PROCTOR: Your justice would freeze beer!

Everytime, one of these reviews, or investigations, or documentaries goes out and starts poking about it should not be seen as getting to the truth. Quite the opposite. Instead, it is trampling over a crime scene. And we all know, when you trample over a crime scene you destroy evidence, taint evidence and it can lead to perverse results.

So back to my original headline problem: the abuse has happened within institutions and there is an institutional failure to detect, prevent and cure (by which I mean remedy) the abuse.

My solution. All current investigations are frozen.


Operation Yewtree is expanded. To beyond Jimmy Saville. Operation Yewtree will investigate any allegation of institutional sex abuse that a party wishes to bring. The Met Police can be supplemented by officers from local police forces. No police officer involved in the case will have been involved in previous investigations which were discontinued/stopped for any reason.

Operation Yewtree’s evidence will then be reviewed. Firstly, by CPS specialist sexual offences prosecutors. Should they find that there is a case to answer then the matter is referred to independent counsel. My suggestion is a small team of around 5 barristers led by a QC. Let those barristers be at the independent bar, let none of them be Treasury Counsel and let them make the decision whether to prosecute individuals independent of the DPP, the AG/SG.  (This avoids the suggestion of bias, avoids the CPS being accused of a cover up, or Treasury Counsel being encouraged/discouraged to prosecute).

Experts investigating, experts prosecuting. All experts with relative independence.

Now as to the institutional failings. Expand the remit of Mrs Justice Macur. She can investigate: the BBC, the Health Service etc etc and their failings. To do so, she’ll need investigators and she’ll need lawyers. So:

Team approach:

Justice, investigate the failings of the police and CPS. Lead lawyer: Actions against the police specialist with, Investigators: IPCC investigators and seconded CPS inspectorate. Lawyers: Independent barrister reviewing charging decisions.

BBC, investigate the failings of the BBC/Media. Lead lawyer: Employment lawyer/whistleblowing expert with, Investigators:  PCC (or whomever replaces them). Lawyers: Independent barrister reviewing employment/disciplinary/child protection decisions.

Health, investigate the failings of health social care providers. Lead lawyer: Childrens lawyers specialist, with, Investigators: Independent social workers, Local Government obudsman investigators. Lawyers: Independent barrister reviewing employment/disciplinary/child protection decisions.

All of whom report to Mrs Justice Macur in an open hearing. All interested parties are entitled to be represented. All evidence given under oath. Mrs Justice Macur has the power to order and require disclosure and summons witnesses.

PROCTOR: I have given you my soul, leave my name

Without proper, centralised investigation people will be accused of being child abusers when they are no such thing. Other people, will walk free of child abuse claims because evidence has been trampled over by amateurs.

Cameron, I applaud you for stopping a witch-hunt. Stop that and instead put something sensible and just in the place of it.


Happy Gunpowder Treason Day.

Thought today was a bank holiday? Once was….

The banter on twitter (twanter if you will) around lunch, was about @Fleetstreetfox and her latest offering in the Daily Mirror:

She asks what you’d do if you found an Afghan War Vet, in the cellars of parliament ready to let it blow? Would you shop him, or would you let him go.

The twanter (I’ll stop using it I promise) was, having said she’d let him blow the brick work (but not the human contents thereof) whether she’d have the fuzz knocking down the door, thumbscrews in back pocket, the rack being reassembled with Ikea-like instructions.

Does @Fleetstreetfox risk being nicked for treason? I’d like to see the local plod try and nick her in Norman French as indeed the Treason Act 1351 originally appeared.

Remember, remember, the fifth of November

Britain has a strange fascination with treason. I wondered why Halloween had never taken hold here as much as in the States, the answer is, it has a state supported rival: Guy Fawkes Night, or correctly Gun Powder Treason Day.

In fairness, today’s state isn’t so keen. But, in history, it got 250 years worth of support from both Church and State.

The celebration of national victory over traitors of the state being something thought worth a national day off.

And of course you could still receive the death penalty for treason as late as 1998!

And today, we still remember that a large plot was overcome and we still burn an effigy of the plot’s leader.

Is it time to throw treason on the bonfire?

You may have seen on TV or at court, criminal barristers carrying about a big red book. It’s called Archbold, effectively it is published once a year and is our criminal law bible.

There is still a chapter on treason, although it hasn’t been terribly long since 2009.

So yes, you can still be prosecuted for alarming the Sovereign…

But I think @Fleetstreetfox is quite safe, there has been no trial for treason since William Joyce in 1945.

Lord Haw Haw’s trial and the subsequent judgment in the House of Lords remains an important moment in English legal history and is still debated today.

Joyce argued he could not be guilty of treason as he owed the British Crown no allegiance, he argued he had no citizenship and so it was for the prosecution to prove that he owed a duty of  allegiance. Lord Porter agreed. Lords Jowitt, Macmillan, Wright and Simonds disagreed, have a British passport, then you owe a duty of allegiance until you renounce the protection of the Crown.

Joyce swung.

A nation can survive its fools, and even the ambitious. But it cannot survive treason from within.

My housemate gets very upset that the likes of Abu Hamza are not tried for treason. Afterall, he has argued for war on British soil and certainly sought the protection of the State.

Nowadays, there’s such a wide statutory regime with regard to terrorism and such like, there is no expectation that treason will be used any time in the near future.

Despite that, it is a particular kind of offending where a person turns against their own community and seeks to destroy it.

But, the difficulty today and that always has been in is this: some of country’s greatest patriots and heroes have been people who have sought to change Government or bring it down. From Wat Tyler to Emmeline Pankhurst.

Borrowing from a man we British called a traitor, “The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries

S0, I think that @fleetstreetfox is safe… and democracy safer when we’re encouraged to challenge and question our leaders.


‘Hang on, so you’ve represented fascists?’


‘But, you’ve also represented that lot up St Pauls?’

‘Occupy, yeah…’

‘Ang on, I’m strugglin’ with this, but you must ‘ate one lot?’

‘I could hate both, wouldn’t matter.’

As we drove  around the back streets of Kensington, the cabbie got even more confused. How on earth could a person represent businesses one week and occupy the next. Or, how could one represent fascists one week and then communists the next.

By the time we got into Marylebone, I came up with the obvious answer and reminded him of the Cab Rank rule. He suddenly sort of got it.


I got myself in another spat about freedom of speech on facebook. In short, chap breaches Special Branch security cordon and shouts no public sector cuts to David Cameron. Scottish Courts get hold of him and stick him with 100 hours community service.

Something which chills me, fine remove him, but you’re effectively punishing him for expressing his opinion in public.

The expression of opinion, freedom of speech, have been live subjects in society for as long as we have had hackney carriages. Hansom cabs were about from 1834 and speaker’s corner existed in one shape or another from 1855.

Both concepts of a paying taxi and freedom of speech have existed since before 1834, they’re both very British concepts.

And it’s strange the sort of conversations you can find yourself getting into in the back of a black cab. Anything from the traffic on the North Circular to the make up of the United Nations Security Council.

Encouraging speech

You cannot have a true democracy if the participants in that document do not feel inclined or able to participate therein.

The BBC are keen to encourage younger people to participate in the political process. Depending on where you read on the BBC website, if you’re between the age of 18 to 26, or 18 to 30 then you are in the target market for ‘Free Speech’ on BBC3.

It’s basically like Question Time with a younger audience, younger panel and a better twitter and online interface.

I’ve been trying to get into it, but I can’t. Maybe I’m a year too old, maybe I just don’t really like the panelists.

Give you an example:

Luciana Berger – 31 year old, member of Labour Co-operative party, MP for Liverpool Wavertree. Would appear to have acquired most attention because she may have been Chuka Umunna’s girlfriend and because she spoke about tweeting during a Parliament Debate. Oh, and there is a recent allegation of ‘cash for questions’ which she refutes, see here:

Fingers crossed not true.

However, at least she’s a young MP, so that is something. And she’s a shadow minister too so she has some relevance.

As too, can Alok Sharma MP have something to say. He’s Vice Chair of the Tories and has had a variety of jobs before coming into politics and is Indian born.

But then…

Michael Heaver, head of UKIP’s online engagement… sigh…

And Stacey Dooley, of ‘Stacey Dooley investigates’… who was given a TV show on BBC 3 having been on a show where she was exposed to what British consumerism does abroad.

The New Statesman sums up my view of the quality of the documentaries she presents:

It all to me feels a little bit, Question Time Press Packers. Or worse, Question Time Yoof.

I don’t think it engages young people in the democratic process or shows much of active participation by younger people in expressing themselves.

However, my problem is all a bit chicken and egg. More widely, the BBC News has a particular age demographic in terms of journalists as do print media. The professions and Parliament have a similar age demographic in terms of those given ‘speaking roles’.

Berger is an exception as are the likes of columnist Owen Jones or self-made man Dominic McVey

Question Time Lite

So, I think I would have rather the BBC 3 not have produced a lite version of Question Time. Rather instead, should have thought of a new format.

Put a camera in a taxi, get Jake Humphrey to do the knowledge and send him out in London to convey younger people around town. There’s a lot to discuss between Piccadilly and Pimlico whilst in traffic.