Archive for the ‘Magistrates’ Category

From a pub in legal London:

‘Why do the police behave better in the Crown Court?’

Puzzled faces.

‘Cos the Magistrates let them get away with anything’

Everyone laughs.

‘May as well still be the Police Courts’

More knowing laughter.

Growing up

There’s a generation of the junior bar who miss one Magistrates’ Court in particular: Bracknell. In reality Bracknell Magistrates was manned by 3 or 4 London Barristers’ Chambers and a couple of big firms of solicitors. It was a pleasure to appear in.

Yes you’d sit on a train for 50 minutes with no loo or refreshment cart.

Yes if you missed the train you’d be hours late.

Yes you had to have lunch at Burger King or Greggs.

But! It was a wonderful magical place – why? Well, the legal advisors, virtually all had been practitioners at some stage and all were fair. And the Magistrates, consider now that this is in the heart of Berkshire, were diverse in both race and gender. They even had some younger JPs. They thought about cases carefully and gave comprehensive reasons for their decisions. They were polite too…

I’ve only ever had one credibility finding made by a Court against a police officer (this means following the case of Guney that it would be disclosed to the defence in every future case that the police officer has told lies whilst under oath) and that was in Bracknell Magistrates Court.

Bracknell was, in my view, a high quality mark.

But there were other extremes, in X Court you knew you would be acquitted, in Y Court you knew you would be convicted, in Z Court you knew your client was going to prison. You ought to be assessing the outcome of a case on the basis of the evidence not the Court.

Learning from mistakes

The closure of Bracknell was absolutely stupid. The Benches have now been split up and mixed up. The Bar assumed that similar closures in London might even things out across London at least, but now things are less predictable.

In honesty I don’t really go very often anymore, but still, people more junior tell you things, or a pupil will call and ask you a question.

The friction between the Bar and the (Magistrates’) Bench is twofold:

1) The way in which barristers are trained. The problem is this, the average barrister goes off for 6 months to the Old Bailey, Southwark, the Court of Appeal, with their, established and respected master who might be as much as 30 years call. They then crash down to the shop floor in the Magistrates and it is a culture shock. It encourages some baby barristers to be arrogant, it turns some into complete cynics who don’t run trials as they believe Magistrates just convict  and some just lose their confidence because of the way in which they’re spoken to and treated.

2) The bizarre. If juries gave their reasons for verdicts then I have no doubt that the doors of the Court of Appeal would never close. But, sometimes, you simply cannot believe what you hear in a Magistrates’ Court:

I give you three personal examples:

a) About 18 months ago, my client didn’t turn up to Court for trial. The Prosecution applied to proceed in absence, I opposed the application. The Bench announced that they proceeded in the Defendant’s absence and found him guilty. This was before they had heard any evidence. Needless to say that conviction didn’t last long.

b) It may harm your defence, if you don’t mention something which you later rely on in Court. 2 years ago, my client was asked a multitude of questions in interview, he answer no comment to a couple of them. When it came to trial, the prosecution didn’t ask the same questions, the Defendant didn’t mention something in trial he hadn’t mentioned previously. The Magistrates came back and found the Defendant guilty. Part of the reason they found him guilty was the Defendant answered no comment to two questions in interview. The Prosecutor and I looked at the legal advisor who didn’t see the problem. I explained the problem, the chair of the Bench was absolutely mortified. Legal advisor told them that his boss had advised that the Defendant would need to appeal to the Crown Court / High Court. The Legal Advisor had read the reasons before they were announced….

c) Credible and consistent. Where this phrase has come from, I do not know. If I find who came up with this phrase I am going to tell them what I think. The worst example of this I had was back toward the start of my career. A youth client was convicted, the reason: ‘The prosecution witnesses have attended this court and been cross-examined so we find them credible and consistent. We did not believe your evidence and so we find you guilty’ – Sorry what?

But I’m not an abolitionist

Actually, if you look at those examples, all three are actually legal errors:

a) Due process/ burden of proof

b) Adverse inference/right to silence

c) Burden and standard of proof / adequacy of reasons.

Magistrates are not legally trained, who is, their legal advisors. If legal advisors are not robust about properly directing Magistrates as to the law then one can hardly blame the Magistrates for the flawed decision.

So what happens if the Crown Court, or the High Court quash a Magistrates’ Court decision on a matter of law? Nothing. The Magistrates are liable for costs if they divert from the Legal Advisor’s advice.

What if the Legal Advisor gives the Magistrates the wrong advice/no advice? Nothing.

Who quality assures Legal Advisors? Other Legal Advisors….

So actually, the first step is to take better quality control of the work  done by legal advisors.

And don’t give in to the argument that we should do away with Magistrates because they are not legally trained. There are plenty of cases where I would always opt for Magistrates over a District Judge – why – because a person is much more likely to get a fair trial from his peers,

Unfairness and the many forms thereof

In a lot of courts, familiarity is the first unfairness, Benches have seen and heard particular prosecutors every day for a number of years, there’s of course a relationship there which amounts to a potential unfairness. To ameliorate that, rotate the prosecutors.

The police court? I certainly don’t think every Magistrate has bias towards the police, far from it. However, again, culturally, there were always certain Courts where one could confidently raise police misconduct issues and others where one couldn’t. That’s probably a training and recruitment issue for the Magistracy.

Diversity. Less than 8% of Magistrates are BME. However, more than 8% of Defendants are from ethnic minorities. And, age! The average age of a magistrate is 57. Over 80% are over 50. It’s again a recipe for unfairness.

Familiarity/Training/Diversity: all of those matters, again, are really a matter for the MoJ to sort out.

What does that leave us with…

A very small minority simply misbehave, that’s really something to do with recruitment and proper scrutiny. I have witnessed comments over the years that make ‘predator’ sound minimal.

“found that he demonstrated an inability to take a dispassionate view of a case.”

“was subject to an investigation following the expression of her personal views whilst sentencing in court and subsequently repeated in a media interview. The investigation found the views expressed in court were inappropriate.”

“made inappropriate comments towards fellow magistrates.”

These are just a few examples of investigative findings from the Office for Judicial Complaints in the law few months against Magistrates. Clearly,  the legal profession and court staff must be encouraged to take this avenue when Magistrates act improperly. As far as I can tell, the legal professions, nor court staff have never been invited to use the Office for Judicial Complaints at all.

Great expectations

The Magistrates are an ancient institution. And one I’m not keen to get rid of. The JP suffix after their names gives a certain degree of respect. But it doesn’t make the Magistracy as a whole respected.

And the present Government has great expectations for the Magistracy, they want them to do more, they want more Defendants to opt to be tried by them.

Simply put, confidence in the Magistracy isn’t going to be improved by simply policing them better. (Although it must be said, quickly dealing with inappropriate behaviour and encouraging it to be reported is important).

Instead, to meet the great expectations the Government has there needs to be:

(a) A more diverse Bench and less of a ‘local Court for local people’ type of outlook (where possible).

(b) More scrutiny of the advice being given by Legal Advisors.

(c) Better training of Magistrates

FTD

Advertisements

So says Francis Bacon

No says the Officer in the Case.

The Officer in the Case is the person in charge of the investigation of a crime in England and Wales. Their duty, in law, is to investigate all reasonable lines of inquiry which may go to a Defendant’s guilt or indeed their innocence.

“Did you Detective follow all reasonable lines of inquiry in this case?”

“Yes.”

I then asked between 25 and 30 questions. Each was an obvious line of inquiry.

“Did you follow X line of inquiry”

No says the Officer in the Case.

“Did you follow Y line of inquiry.”

No says the Officer in the Case.

At my 29th question, Counsel for the Crown had his head in his hands. And the jury were shaking their heads.

“I shall ask again Officer, did you, considering my questions, follow all reasonable lines of inquiry in this case?”

“Yes.”

The case was promptly dismissed for want of evidence. Counsel for the Crown simply shook his head.

If you go down to the Court today you’re in for a big surprise

In localshire Magistrates’ Court, in Court 1 they’re prosecuting 47 people for TV license matters. In Court 2, they’re prosecuting 20 people who have children who refuse to go to school and in Court 3 they’re prosecuting a man for strangling his wife.

Despite the fact he strangled her (and strangulation is a risk sign for escalation of violence), he is being prosecuted for battery. A Crown Court trial is too expensive because his wife might not co-operate.

In Court 4, they’re prosecuting a man for stabbing someone with a glass outside a pub, it’s been charged as battery. A Crown Court trial is too expensive and while a jury might not believe the witnesses (they were all drunk) they should be able to get it home with a Bench of Magistrates.

Unfortunately in Court 4 the trial can’t get up and running. Nobody remembered to book a Barrister. The CPS don’t really prosecute themselves in Localshire Magistrates’ Court anymore as it costs too much to get the staff there. The Defence Counsel sighs, they can’t have a trial anyway, despite four listings, the disclosure they require hasn’t been forthcoming.

Everything by now has come to a grinding halt in Court 2. The Legal Advisor in Court has noticed a large legal issue with one of the prosecutions. The problem is the Defendant was deemed not to be entitled to legal aid and has no lawyer. The lawyer for the Local Authority is baffled, they are usually a litigator in the office, they don’t usually go to Court. Now they have to, the Chief Executive slashed the Counsel budget overnight.

Back in Court 1, the fourth Defendant explains how he can’t afford the TV fee as he lost his job as a supervisor at Localshire Inc. Of the 47 people facing the charge at least 10 will say similar.

In a back office, with formica furniture, the Justices’ Clerk is trying to compose an email to the rest of the Legal Advisors in the area. Her desk is covered with the diktats of the Ministry of Justice and competing guidance from the Justices’ Clerk Society. Her email pings with another crimeline updating with another High Court case about something going wrong in the Magistrates.

She tries to think how to draft the email. The local defence lawyers are having cases stayed for an abuse of process. The CPS are simply not serving things. The CPS are blaming the police. The police are blaming the CPS. Witnesses just don’t turn up to trials, nobody tells them there is a trial. She writes, ‘abuse of process cannot be used to discipline the CPS’, she doesn’t know what else they can do.

She puts disclosure on the ‘Court User Group’ agenda again.

Affirmation – Judicial

“I, ____________ , do solemnly sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ____________ , and I will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will.”

Best of luck chap,

FTD

On my long train journey today I caught up with various blogs and news stories about criminal justice. It’s a habit indulged by the various bits of kit in my court bag which connect to the internet at high speed.

Today’s highlight for me was this http://www.no-offence.org/content.php/178-Guest-blog

Written by a gentleman who described himself as a ‘Change Manager’.  As you’ll see, one of the reasons he concludes that the police are of low morale is because they aware that they aren’t providing a good service.

Respect

The Police Federation talk a lot about respect, they talk about how the Government should respect the police and how the public should do the same.

I actually agree.

However, what I don’t agree with is that respect is something automatic. I am not sure where this mantra came from. It seemed to first appear in schools, you must respect teachers, you must respect each other.

One of the reasons I became a barrister is because of schooling. When I grew up I thought it was unfair how students were treated by certain teachers, or how I was treated. I thought it wrong that I should respect people when they are doing things they shouldn’t do.  The requirement to automatically respect something or someone leads to injustice.

And actually, the criminal justice system has in built into it a lack of ‘blind’ respect. If ‘blind respect’ was to rule supreme then we wouldn’t have trials, we would simply take what the police and witnesses say for granted. We wouldn’t have appeals, we would presume that trial judges got things correct on the first time and there would be no appellate process.

My Recipe for Respect

As said, I do not expect blind respect. In fact I think blind respect is wrong. However, to earn respect, I think all actors (from Usher to Supreme Court Justice) in the Criminal Justice system should sign up to the same:

To admit mistakes are made and that no actor is infallible.

To act with honesty and integrity.

To follow the law (even when you don’t like it)

To be courteous to all involved with the system (from Defendant to Victim to Probation Officer to Parole Board Member etc etc)

To recognise that fairness is the central aim of criminal justice and without it the system cannot be fair at all.

Fairness and courtesy are linked

I think we overlook the link between fairness and courtesy. I personally think that reality police programmes do the police more harm than good. Often, the police are shown acting like law enforcement officials rather than officers of the peace. There’s a dispute, the police go and listen to the victim (clearly a courtesy as well as a duty) then often are seen arresting the complained of person, sticking them in the back of the police car and then start asking them questions about what happened.

It is a courtesy to listen. I know some people simply carry on when Magistrates start whispering to each other on the Bench, assuming they won’t be listened to. I don’t, I stand there in silence until they have finished. My biggest pet hate about the Magistrates’ Court is when Benches announce decisions without even turning to the Defence advocate, it is neither courteous nor is it fair.

I dislike in the Crown Court, colleagues who jump down people’s throats when they go off piste when answering a question. Just stop, ask the question again, and again, until the Judge directs the witness to answer. It has far more effect than being rude to a witness. A jury will prefer your courtesy and note the witness being evasive.

If an argument is being made ad hoc, or extempore, if you’re a Judge or Magistrate allow the advocate to at least set out what their argument is before dismissing it out of hand. Again a courtesy, but it goes to fairness.

If you’re a police officer at Court, don’t simply assume that your time is being wasted and don’t assume that you’re there because the Defence have demanded it.

And, if you’re an Officer In the Case, don’t  tell the defence solicitor to ‘fuck off’ when she asks you a simple question outside Court. (True story…)

Only human

Going back to my recipe for respect, I have to admit, I may sound holier than thou now but I’ve had my fair share of moments. I’ve gone hard on rude witnesses, bickered with disagreeable legal advisors, traded verbal blows with bobbies, argued with the Chair of a Bench or two.

But my default position is polite. And as my Mother says, I shouldn’t rise to it

If all the actors in the criminal justice system received a base line of courtesy then there would be an appearance of fairness. Those who appear to be fair are likely to garner respect. A system where there is an appearance of fairness will attract respect.

A fair criminal justice system deserves respect.

FTD.

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: http://magistratesblog.blogspot.co.uk/2012/11/suffer-little-children.html

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?

Justice

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.

FTD.

 

‘Pretty Boy’ , ‘Lad’ and ‘GQ’ sometimes have to work at weekends. Deals. Doing deals. I don’t really understand what they do, but it involves very angry lawyers sitting in their offices throughout all hours making conference calls and sending emails.

And, I work weekends too. Certainly not so bad as it was, it used to be a Saturday morning of hell in the West London cells with ‘John Bull’ but now that’s only once in a while.

I understand Saturday Court. It makes sense in any urban centre. Saturday Court is supposedly about remand time and making sure that people don’t spend too long in custody without judicial scrutiny.

Reality is,  police stations need to empty out the punters from Friday, before they start the Saturday rush…

 The dreaded pilot scheme

I feel sorry for pilots, every bad idea that the Government comes up with involves their profession in the title.

No doubt some of you will recall the virtual court pilot. I cannot express how much time and effort that wasted. I won’t rant about here – I have no doubt many  of my readers lived through that one.

The latest. ‘Flexible Courts’. That means, more Court hearings in the evening and on Sundays.

Sundays. People work on Sundays, I accept that. My first job was a Sunday job. But for the rest of the week I was doing my GCSEs and A-Levels. I wasn’t doing a Crown Court trial.

Why on earth do we need to open Courts on Sunday?

I was speaking to @LisaCallum on twitter. She’s a solicitor in a ‘pilot’ area. She was saying that locally they could fit the work into four days.

So why turn a Sunday into a Monday?

It’s not because the Government hates legal aid lawyers / criminal defence lawyers (although sometimes I feel that way.) I think there’s an underlying motive and you get a flavour in Bystander’s recent short blog:

http://magistratesblog.blogspot.co.uk/2012/07/slog.html

There’s two things that stand out to me:

They are working us hard these days. Because we have closed several courtrooms more business has to be shoved through the remaining ones.

And then, how,

I asked the DS [read duty solicitor – FTD] if she had advised her client,, and she said yes, but unconvincingly enough for us to retire for  cup of tea while the Clerk made quite sure that the defendant understood what he was doing.

More bodies going through a court room. More slog for the duty solicitor. More slog for the duty solicitor, less client time. Less client time, less advice time. Less advice – less access to justice.

I mean this with no disrespect to Bystander, but he’s a Magistrate! A Magistrate asking a Defendant about running a form of mitigation. That scares me.

But there’s the first saving:

More work in a single Court room means:

  • Less legal advisors.
  • Less Magistrates’ £7.50s
  • Less Duty Solicitors.

And this is what Sunday Court is about! It won’t just be remand, come on.

It’ll do everything.

Open a big Court on Sunday means:

  • Work can be transferred away from quiet rural Courts.
  • Rural Courts can be closed.
  • Legal aid franchises can be rationalised.

And my supporting evidence

The Government has produced this, ‘Swift and Sure Justice’ white paper.

http://www.justice.gov.uk/downloads/publications/policy/moj/swift-and-sure-justice.pdf

Have a gander.

Now you get why I’m suspicious:

More ‘police led prosecutions’ – translate: less CPS lawyers salaries to be paid. No independent scrutiny of charging.

‘Out of Court disposals’ – this is actually, Magistrates, sitting alone, handing out punishments outside of Courts – translate: no Defence lawyers. No legal advisors. No expensive Court buildings. And, no law. No law = no justice.

– ‘Reform of video link hearings’ – translate: less witness expenses. Less jailer expenses. Less access to clients, less ability to judge the demeanour of a witness.

Justice is not that malleable

I object to Sunday Court as it will have a negative effect on my ability to do my job.

However, worse than that it will have a negative effect on the people in the system.

Sunday Court is clearly part of a wider policy to close Court centres.  Court centres are expensive. Summary justice is expensive. The Government doesn’t really care about Summary Justice, it isn’t in the spotlight very much.

The negative effect is this: smaller courts will be closed. Smaller firms who service those courts will be closed (n,b the Government are keen for this as it will help them to push their ‘factory’ legal aid firms doing work on the cheap), people will have to travel further. People who might have a defence will be punished because they have no access to a lawyer and are not judged by a lawyer. Those using the duty solicitor scheme will receive reduced advice. Trials will be at the mercy of video links  and judgment as to demeanour will depend on a person’s ‘television manner.’

That’s not flexible justice. That’s breaking one of Justice’s arms off.

FTD

There can be no doubt that the CPS treat racially aggravated offending very seriously indeed. That has sometimes led me to find myself in trials that I can’t believe have come to Court, not because they’re not serious, but because there’s very little evidence. But the CPS guidance makes it almost always in the public interest to prosecute in such cases.

And, you can see why. Racism is in any form unacceptable. Racism does not have a place in 21st century Britain.

But how do you feel about paying for the prosecution of John Terry.

Let me do something which feels unusual, let me try and put this neutrally:

The everyday trial

Section 5 of the public order act is one of the most simple offences in our criminal law. In fact, it can be dealt with by fixed penalty notice.

The racially aggravated version of the offence cannot be dealt with by fixed penalty notice but remains an offence which:

a) Can only be tried in the magistrates’ court.

b) Can only result in the accused being fined.

Even if you were on a low income you would not be guaranteed legal aid to defend the charge as it not considered to be sufficiently serious in all cases to justify legal aid.

To prosecute this charge you would be prosecuted by either a CPS prosecutor employed directly by government, or by the lowest level of barrister, a Grade 1 prosecuting barrister.

To give you an idea of fees, the defending barrister on legal aid would receive between £75 and £150 for the half-day trial. The prosecution barrister generally is on between £150 to £250 for a day for the CPS. So, again, between about £75 to £125 for that half day trial.

The average trial of this type would be heard by 2 or 3 magistrates (who receive their bus fare and a chocolate biscuit and weak tea) and would probably take half a day of a Magistrates’ Court time.

The Court house itself would be guarded by the contracted security guards.

The celebrity trial

John Terry is being tried in the Westminster Magistrates’ Court. This is the Court where some of the most high profile cases in the country are heard. It is the extradition court, it deals with the cases of public protest and disorder in the capital and deals with the most humble shoplifting from Oxford Street.

The Court has a number of resident, salaried District Judges including the Deputy Senior District Judge and the Senior District Judge.

The John Terry trial is being heard, we are told for five days, by the Senior District Judge, the Chief Magistrate of England and Wales.

He is being prosecuted by Duncan Penny, Duncan Penny has been a barrister for 20 years, he is from the top prosecution set in the country. A set of chambers which advise MI5 / MI6 on policing terrorism.

His fee for the trial will reflect his expertise and his 20 years experience. This is being paid for by the tax payer.

Terry is being defended by George Carter-Stephenson QC, he is a barrister with over 30 years experience and has the magic two letters after his name. Of course, Terry is paying for that expertise.

I add, if Terry is acquitted then the tax payer will be liable to pay for those fees, although probably not in full, they will be required to pay a  signficant part.

The Terry trial has required the deployment of a large police presence.

So…

The cost, in lawyers, court and policing is huge compared to the everyday trial.

If you had the choice? Do you think it’s worth the cost? This is when less and less people receive legal aid, courts are closing, there are less bobbies on the beat, cautions are preferred to prosecutions in a number of cases.

Or, is it worth the money? Is it worth showing all society that footballers are not above the law, that racism will be prosecuted doggedly and that the CPS will deploy the resources necessary to fight this ill.

As I say, I’ve tried to keep this neutral, I’d love to know what you decide.

FTD.

If you follow me on twitter you’ll know I’ve had one of those weeks. There’s a pain in my neck and I’m not entirely sure if it’s from leaning over a computer or sleeping on a train.

When I finally got out tonight I was ready to switch off. So I dialled up ‘Pretty Boy’ – not that he’s inane, but when I phone him I don’t have to talk about crime, criminals, coppers, prisons or anything like that …. the conversation is much more… extra curricular. And, after ‘Pretty Boy’ I was going to call ‘TV Blonde’ – neither answered.

So as I wandered along through the streets of legal London, dragging wheelie bag behind I got thinking.

First, I smiled to myself, a helpful message @MPSWandsworth my local police, they looked into something I had concerns about. And, they’re fans of my blog, I laughed to myself, funny how many police readers I actually have.

Then I looked at twitter as I wandered along. The tweets were quite sad really. Sam Hallam was a happy piece of news in a sense, but sad that justice had taken so long. The Law Society announced what can only be described as a laughable minimum wage for new trainee solicitors and the police continued to talk about Winsor. Meanwhile home affairs correspondents and police commentators were talking about police privatisation. In other feeds human rights heroes, Hugh Southey QC and Mark George QC were talking about the death penalty.

I was shocked to see how many people had retweeted, my simple missive of the day:

‘Cut legal aid, lower advocacy standards, destroy the independent Bar, privatise the police and then #samhallam will be the norm. #legalaid

There is a divinity that shapes our ends, rough-hew them how we will

I had a total selfish moment. Bloody hell I thought, when I signed up for my wig it was meant to be simple, do a job I love, defend people in a fair forum, be paid a decent wage, get silk if I’m good enough, retire, die happy.

Now it hardly seems possible.

And then I thought, look at what I’ve missed,Bushel’s case, Somersett’s case, defending the suffragette, marching with the civil rights campaigners for racial integration here and in the US, busting the corrupt police squads, the Guildford 4, Birmingham 6.

And it’s only going to get worse, hellish vision posited here: http://forthedefence.org/2012/04/14/the-way-were-going-criminal-justice-2025/

I got quite depressed, as if I’d missed my moment to make a difference.

But then, I actually realised that we’re standing at a moment in history. A fundamental change in how we deliver criminal justice in this country. It started slowly under the Labour Government.

So: PCSOs, unqualified prosecutors in the Magistrates’ Courts, cuts to legal aid, erosion of the rules as to hearsay, the right to a jury trial and bad character evidence going before juries. A prison service which was underfunded and actively supplanted by the private sector. The probation service’s culture fundamentally changed virtually overnight. Indeterminate sentences handed out all over.

And nobody really paid attention to the slow drip. People complained about the individual changes, but nobody stepped back and looked at things in the whole.

In that environment, Barry George, Sam Hallam wrongfully convicted, probably with many others. It took what, almost 20 years to get justice for Stephen Lawrence.

Now, because of the economic circumstances, that drip has become a gush.

The police have marched against Winsor.

Court staff have walked out.

I’m going to have to learn four languages as there’s no interpreters left.

Barristers are trying to work out if there’s a right for them to strike.

Judges are complaining about declining standards in prosecutions.

People are worried about declining standards in criminal defence.

Trainee solicitors in legal aid fields are looking at a better living in Tescos.

People are asking whether you get a better service if you pay for your own defence and some lawyers are saying yes.

Naturally, we’re all concerned about our own position. We’ve all been reviewed individually, the Bar had Carter, the police have Winsor, the prison service have endless reviews and the probation service have a new name every other week.

Now, we’re saying there should be a Royal Commission on Policing, there should be advocacy tests for defence barristers, we ask Serco to fill the gap where public services used to.

When we say, we don’t like that, we’re accused of self-interest. And, of course that’s true, we are self-interested to a certain degree. But I hope people who don’t work in the criminal justice system accept this:

We were never in it for the money. If I’d wanted to earn more, I could have sat in the office next to ‘Pretty Boy’ in the city.

We’re vulnerable, why, because we’re in a vocation, our vocation is to secure justice, that I hope is the same for lawyers, coppers, probation officers and the rest…

And that should be our focus.

Hold the line

Has been a popular hash tag of the police in their campaign. A terribly British phrase which conjures a mental picture of other glorious moments in British history.

So rather than fighting individually (with the risk of being accused of self-interest), explaining how the gush will wash away our part of British criminal justice, why don’t we fight together for a single vision.

My Moses Moment

In my view, the ten commandments of British criminal justice are these:

1) The purpose of the criminal justice system is to protect the individual. Be it, to protect individuals from crime, protect individuals from the coercive power of the state, stop individuals from patterns of destructive behaviour and provide their safety through the passage of the system if Defendant, witness or victim.

2) The police, must police by consent. The police are holders of public office and can never be privatised. They must remain independent from Government, prosecutors and the media.

3)  Every person accused of a crime deserves quality legal representation. Quality of defence should not depend on ability to pay or the financial arrangements between legal services providers and the state.

4) Every person accused of a crime deserves to be tried by an independent body of their peers. The Magistracy must be diverse in age, race and gender and reflect their local communities. The Magistracy must be able to perform their function without excessive interference of the state. If accused of a serious, indictable offence, then every person has an absolute right to trial by jury.

5) Children should not be criminalised for trivial offences. Grass roots discipline comes from teachers and parents/carers not from police officers, lawyers and Judges.

6)The mentally ill should not be punishment for offending. Their treatment is from the social welfare element of the state not the imposition of punishment by the criminal justice system.

7)Prison shall be used as a last resort. Effective community punishment should be the preferred method of disposal. Restorative justice should be common place. For those who custody is the only option, they should be held in public owned prisons where their rehabilitation is the main aim. Punishment, be it in the community or in custody, ought never be for profit.

8) The purpose of the probation service is to prevent re-offending. This  is not an actuarial science, instead it is an idiosyncratic process where well funded probation officers aid offenders in re-integrating into society.

9)The Crown Prosecution Service must remain independent. They must make decisions as to prosecutions free from pressures of the police and the executive. Prosecutions should be based on local need and the prosecutor’s code not concerns of the media and/or pressure groups.

10)The Criminal law protects all and applies to all. Nobody will ever be subject to scrutiny by the police or punishment due to their race, age, gender, nationality or sexual preference. Nobody is above the criminal law due to their occupation, office or income. The Criminal law is deaf to the media but is open and accessible so that the public can see that justice is done.

At the bottom of Mount Sinai

I hope we could all be there together. Those above are my ten commandments. I am sure some of yours would be different. But imagine if we could agree them.

What an amazing message that would be to Government and to the public.

If we all held that line together.

Imagine the march, where I stood there wig and gown, next to me was a Magistrate like Bystander, on the other side a cop, or @Chairforce1, maybe some senior members of the judiciary, QCs too and solicitors from the £6 per hour trainee to the big hitting leaders  of major legal aid firms and the prosecutors, probation officers and YOT workers. Marching behind, coppers in their tunics, Occupy protestors with their banners, victim support workers, legal advisors to the magistrates and qualified criminal justice foreign language interpreters.

That’s not just a line. That’s a dam which could stop the gush from washing away 100s of years of British justice.

FTD

Yes, I know. We haven’t seen the Bill yet.

Yes, I know. The Bill will be debated and changed.

Yes, I know. The Bill may not even make it into law.

But,

There’s more to life than Winsor

The Police are worried (and I understand why in part) about Winsor. The Police and the public should be worried about any ‘national’  police force. We are not America, we do not need a supra police agency. Why? Because for the most part the criminal law is the same throughout England and Wales. There is no Federal law and Local law. Also, local police forces already co-operate with each other on ‘cross-jurisdiction’ issues. And, national projects are ably co-ordinated by the Met, i.e Counter Terror and specialist protection, Royal protection and diplomatic protection.

And, remember too that the FBI deal with counter-intelligence matters as well. We have MI5 and special branch. Both are older than the FBI and both have sufficed.

Why re-invent the wheel? SOCA deal with extradition matters and larger pieces of international trafficking/fraud – fine, can’t we just leave at that?

Because the risk is this, there’ll be a drain of resources and talent upward into this national agency. That will have a knock on effect on neighbourhood and rural policing. That was very apparent when I lived in the US. The ‘provincial’  policing departments of sheriffs etc had very poor resources compared to their national counterparts and certainly couldn’t attract the talent.

There are two further temptations:

1) That rural/neighbourhood policing can be filled with cheaper options. So what is the cheaper option? Private companies. How are private companies cheaper? Lower entry levels, lower wages, lower training, lower resources.

2) It’s easier to integrate with European policing structures. And European policing structures forward the ‘European criminal law’ project which several  individuals are pushing. A European criminal law makes me shudder. But that’s for another time…

For my vision of where these type of policies lead us see my post on Criminal Justice in 2025: http://forthedefence.org/2012/04/14/the-way-were-going-criminal-justice-2025/

Summary neighbourhood justice

Summary neighbourhood justice. Hmmm, well that’s what Magistrates do already isn’t it?  They are local people, who sit in a summary court of justice. You see, what the Government don’t want is the court bit. Because the court bit is the expensive part. It involves cell staff, buildings, admin, lawyers … all cost. What are the Magistrates going to be doing above what they are doing already.

This: http://www.telegraph.co.uk/news/uknews/law-and-order/8941499/Minister-signals-summary-justice-role-for-magistrates.html

So, effectively, putting Magistrates in police stations and having them decide whether or not offenders should be punished out of court there and then or they ought to proceed to Court.

No thank  you:

  1. The police / YOT teams have this discretion because they are full time professionals. They know the prevalence of particular crimes in areas and so on. They have the knowledge to make decisions as to the exercise of a discretion. If that discretion is being exercised incorrectly then that is a matter of training, not importing Magistrates. Magistrates do not sit full time. Magistrates do not have the same feel for local offending and offenders as those professionals that work with them.
  2. Magistrates are meant to be members of the judiciary. They are therefore meant to be independent. This initiative renders that  independence open for encroachment.
  3. Magistrates are not lawyers for the most part. Magistrates are advised as to the law by a legal advisor, without this advice there is a risk of Magistrates acting unlawfully.
  4. Peer pressure. How is a bench of Magistrates to feel if they get halfway through a case and there is scant evidence but it has been sent to Court by one of their colleagues. There will be a certain amount of pressure as they will be aware of the decision one of their number has already made.
  5. Punishment, no matter what type, affects the rights of the individual. If the law is punishing somebody that person deserves to have the protection of a legal  professional guiding them and making appropriate representations on their behalf.

Let’s get real: the Government want less cases  going to Court. The Government want the Magistracy to legitimise this. Please don’t.

Drug driving

Apparently drug driving is to be outlawed. Hmmm, I’ve done a number of drug driving trials already. Have I missed a trick? Was it not an offence. Oh wait, section 4(1) of the Road Traffic Act 1988,

 

4 Driving, or being in charge, when under influence of drink or drugs.E+W+S

(1)A person who, when driving or attempting to drive a [F1mechanically propelled vehicle] on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.

? There it is, on the statute book.

I imagine that the Government are going to try and toughen it up, so removing the difficult to prove ‘unfitness’ aspect. Of  course this will mean that the Crown will have to prove the person has been taking drugs. That will of course require expensive equipment. And, because they have learnt nothing from prison law, it means litigation as to the accuracy of the equipment.

Waste-of-time-and-money.

One-for-the-Daily-Mail/Express

Lights, camera, action

Well, all barristers are failed actors so there is no doubt that some will relish the opportunity to appear on screen. This business about demystifying the justice system is utter rubbish. If you’re mystified by the Magistrates’ Court then go and sit in one. If you want to know what goes on in the High Court then you’re welcome to come and visit. Anything else?

There’s nothing mystical about a jury trial. You can watch. Or you can choose not to defer your jury service. They’re not sport/spectacle. They should be allowed to have some dignity. Because I’ll tell you now, if you put a TV camera in a criminal courtroom, then you are putting massive pressure on people, that includes not only lay people like jurors and witnesses, but also Judges and Counsel.

I’ve been in a murder trial in the US where cameras were in the courtroom throughout. It was a circus.

Let’s take a more dignified approach to our justice process please.

They giveth, they taketh away

I was saying just last week how happy I was with some of the provisions of the Protection of Freedoms Act 2012, http://forthedefence.org/2012/05/02/protection-of-freedoms-act-2012-a-quick-guide/ 

The Crime and Courts Bill is not looking as happy a piece of legislation.

Give me liberty or give me death.

Earlier this week I was suggesting that the ConDemNation could afford to be a bit creative and could upset the right wing press.

And this piece of legislation gives me hope that we might see some more liberal legislation (not too much mind). Plus, we may see some restoration of British rights and liberties that were eroded under New Labour.

Samples

The retention of DNA and fingerprints of innocent people was highly controversial. Now the retention of DNA is not a  matter for each individual Chief Constable but laid down in statute.

Sections 1 to 25 of the Protection of Freedoms Act 2012 deals with this.

Some highlights:

  • If the fingerprints or DNA were taken unlawfully then they must be destroyed.
  • The samples must also be destroyed if the person was subject to an unlawful arrest or if the arrest was based on mistaken identity.
  • If somebody is arrested, but not convicted of a ‘qualifying offence’ and their samples are taken, they may  only be retained for 3 years (although this can be extended by a Criminal District Judge – Magistrates do not have this power).
  • Special rules apply to persons convicted once under the age of 18.
  • Voluntarily given samples can only be held until they have ‘fulfilled their purpose (one assumes that large scale voluntarily testing in serial rape/murder cases, destruction of samples upon conviction.)
  • The Secretary of State is to appoint a Commissioner for the Retention and Use of Biometric Material.

Interestingly as well, sections 26 to 28 deal with the retention of biometric data by schools.

Surveillance

Is dealt with by sections 29 to 38. In short, it changes the law with regard to CCTV and the law with regard to intrusive surveillance.

Highlights:

  • There will be a new code of practice for surveillance camera systems. That code will be put before Parliament and the Secretary of State will keep it under continuing review.
  • A  Court when determining an issue can take into account any breach of this code of conduct.
  • And appointment of another Commissioner, a surveillance Camera Commissioner.
  • Greater judicial scrutiny of the disclosure of telecommunications material/surveillance/

Miscellaneous

More I read this, more I realise it’s a wide piece of legalisation indeed, other features include:

  • A change in the law with regard to powers of entry.
  • Reform of the law with regard to car clamping on private land.
  • The Independent Safeguarding Authority is abolished (another quango in place…)
  • Less activities involving children/vulnerable people are to be regulated.
  • Any men with old convictions for ‘homosexual offences’ i.e sexual activity between men/buggery can apply to have the offence deleted and disregarded.
  • Freedom of Information Act is amended, if you ask for data electronically it ought to be given to you in that form so it is easily reproduced.
  • Stop and search in terrorism cases is reformed

New offences

And new offences, one for stalking, one for trafficking people.

So there’s a start. Important stuff, but not ground breaking. And for anyone who fancies an easy life, there’s two new jobs to apply for…

… wonder what the Magistrates will make of the ‘DJ only powers’,

Do you feel your freedoms are protected?

FTD

 

 

This internet thing is terribly clever. I am big brother. I know how many people have been on FTD, what they’ve looked at and when.

I am Theresa May, I know all your secrets. Apart from how you got yourself in the bag and locked it, can’t work that one out.

But anyway, this has led to a new obsession, online people watching. And the one thing I check, everyday, is where the visitors come from. Since I’ve started FTD, I’ve had visitors from all over the cyber world.

Top 5

So, in at number 1: The United Kingdom – no real shock.

Number 2: The United States

3.Australia

4. Canada

5. Cayman Islands

OK, maybe the Cayman Islands is quite surprising. But actually what surprises me most are the countries which follow after the Caymans. India, Bangladesh, Qatar and Zambia is number 6! Ahead of France!

Muse on my musings

Without being too existential… It’s really got me wondering why they come and read at all. The top 5 I get it, especially the US, I quite often write about there, but, Qatar? The Zambia?

Qatar is rich, they have oil. This is about all I know. I now know too they have a people trafficking problem, a slavery problem, allow freedom of religion but not public displays thereof and still stones people.

Zambia has one of the fastest growing economies in the world, knew that. Didn’t know that 70% of people there live below the poverty line. Apparently there is very little representation in the lower criminal courts, legal aid is scant and the poor and women in particular lack mechanisms to access the Courts. Other than that, I can’t find much more about the Court system there. And much less about criminal justice.

India, well I thought I knew quite a lot about there. A billion people, a growing economy, post-colonialism. I didn’t realise there had been attempts to undermine the independence of the judiciary and that arguments as to the appropriateness of the death penalty were still being had and were in the public eye as recently as March of this year.

So an appeal

I wonder then if I can persuade one or more people who visit FTD from those countries to drop me a line and a story. Looking at the top five countries on my visiting list, they’ve all got some clout, their combined clout is quite weighty indeed – so I’d like them to hear and read about things going on in these countries.

And when they write, I think you should consider too, if you’re lucky to live in one of my top 5. What would it be like to have a corrupt police or judiciary? What would it be like if women or the poor couldn’t access the court? What would it be like going to Court without a lawyer and facing punishment. Might sounds fanciful, but, LASPO? Legal Aid cuts? Winsor reforms? It’s possible…

So if you’re a junior junior barrister from Zambia get in touch.

Or  a copper from India.

Or a Magistrate from Qatar.

We need to read all about it.

FTD.