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Archive for August 17th, 2010

I really do apologise to my fellow Scots for taking the name of the real Rabbie in vain…. no… Not Rab C….

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Magistrates call for courts in shopping centres

Guardian: Magistrates Association suggests improvised local courts to deliver summary justice quickly and publicly

It is not often that I am critical of magistrates. In fact, I can’t remember ever posting a critical comment about magistrates. They give of their time.  They play an important (and cheap) part in our Justice system – or what is left of it – but this story does worry me…and prompted a raft of other, unrelated, thoughts as you will see below… and in that spirit…. please contribute your own?

The Guardian reports: “Magistrates want to open courts in shopping centres and empty town hall council chambers to speed up justice and make the punishment of low-level offenders more public.

The Magistrates Association, which represents 28,000 members, is to call on the Ministry of Justice to set up improvised courts in empty shops and unused council rooms to deliver “summary justice that is as speedy and local as possible”.

The proposal comes as the government consults on closing more than 100 magistrates courts to save money. Instead it wants to send offenders to fewer, larger courts.

Her Majesty’s Court Service operates 330 magistrates courts and is concerned that some hear too few cases, many buildings are not fully accessible for disabled court users and do not have secure facilities for prisoners.

But the Magistrates Association is afraid that reducing the number of courts will mean longer journeys to court, which will discourage offenders from turning up, increasing the number of “no-shows” resulting in further delays and extra expense. It also warns the move would slow down justice for a large numbers of cases, such as shoplifting and drink–driving, where offenders have been caught red-handed and will plead guilty, which can normally be handled quickly.

“Petty offenders commit crimes that should be dealt with as quickly as possible and as locally as possible,” said John Howson, the association’s deputy chairman. “Justice should not be hidden away and people should be able to see it in operation. We could have a court in the Westfield shopping centre [a major shopping centre in west London] for instance, so that instead of a shoplifter being taken to a police station and it taking hours to build a file, even if they are going to plead guilty, they could be dealt with far more quickly.”

He said a duty solicitor could be on call at the shopping centre to represent the accused. A key benefit of the proposal would be the deterrent effect on would-be shoplifters witnessing swift justice of those caught out, he said. The magistrates also believe that courts could be set up in council buildings, in empty meeting rooms or council chambers, where simple cases could be heard when there is no need for specialist court architecture to separate defendants and witnesses. Magistrates, who have full-time jobs, could also sit in the evenings.

“We have moved away from the days of courts being about shock and awe,” Howson said. “If other people can see justice being done it may deter others.”

More……

Now I do accept that this, may at first blush, appeal to many – but….. is it the right response? I also accept that it may well be a knee jerk response to CUTS. But that does not mean that we should be swayed by the views of The Magistrates Association, expressed through their deputy chairman. I don’t, myself, want to see people being tried in shopping centres or shopping malls. I am comfortable with the use of old town halls – but I do believe that Justice (as best we define it with changing mores, values,  and political imperatives) should be administered in a building designed for that purpose, be seen as a place of Justice and not be admixed into the ‘community’ in a supermarket or shopping mall.

I also accept that Mr Howson is only trying to be helpful – but my satire is set against the background of very real concerns to criminal and civil justice – cuts in legal aid, cuts in probation, cuts in prison places – for the expediency of a government, which while trying to cut a deficit which may or may not be proven to be necessary, seems to be prepared to ride roughshod over trials and the process of justice.  How this sits with the much lauded – but yet to be implemented – roll back of laws and a new era of civil liberties,   I have no idea.  It does seem to be slightly legalo-schizophrenic?

Perhaps we could, reductio ad absurdum, televise these trials, have a celebrity panel instead of a jury,  and allow the public to vote as they are so fond of doing on X-factor et al? Well, of course, I am taking the argument and analysis to extreme… but I do wonder, reading comments in online Newspapers – and not just The Sun and Mail, but also the broadsheets and on twitter,  when crimes are reported,  if many would be quite happy to see this type of justice?

Do we really want to go back in time to a form of summary justice more suited to a village square at the time of *Bad King John*?

I rather like the idea that it takes time to build a case. While I accept that there are many who would gladly dispense with lawyers and due process when it is *obvious* that the people *nicked* are guilty…. I rather like the idea that lawyers are involved – with the expertise and time to advise people being prosecuted.  I rather like the idea of the ‘presumption of innocence’.  I rather like the idea of due process and rule of law.  I rather like the idea of ‘evidence’. It is what defines us, it is what makes us  ‘human’ and humane. Far better that the guilty get off than the innocent get convicted? Just an idea… but a well documented one and very much part of our heritage…at least in recent years… certainly since World War II!

Thankfully, we abolished the death penalty many years ago. Others, including the first world countries of America (Most states, but not all)  and Japan (and many others),  continue to execute their criminals.  China does it for a surprisingly wide range of offences.  The Iranians and Taliban are quite happy to stone young men and women to death. We have seen this reported in the press recently.  But let us not forget that Singapore and Malaysia – very popular tourist destinations –  also employ the death penalty.  They even do it for possession and trafficking of drugs.  Drugs, they say, are bad for you – so if you have any,  *we will hang you so you can’t do yourself (or others,  if you deal) any more harm*.  But, before you think I am proselytising – I am – I rather suspect that if we had a referendum on the death penalty – it would be voted in by a majority.  The issue of democracy and majority rule and 5 million flies eating shit  – ergo, shit is good to eat –  is a separate blog post.

I like to think of myself at Sainsburys… or even better TESCOLAWS…and the cashier  asking me:  “Would you  like some *cash back*? and then..  *Would you like to buy some ‘out of sell-by date’ vegetables so you  can throw them at the chavs and crims being tried where the bread used to be…just past the fresh fish counter… over there?*.

Forgive me… but after reading about the Taliban and Iranians stoning people, and the good people of Utah, USA, shooting a man to death as part of their *Justice* system… I am not inclined to support people being tried in shopping centres simply because we are a little stretched…cash wise, at the moment.

I thought this comment was astonishing… assuming that it is reported accurately…

He said a duty solicitor could be on call at the shopping centre to represent the accused………… We could have a court in the Westfield shopping centre [a major shopping centre in west London] for instance, so that instead of a shoplifter being taken to a police station and it taking hours to build a file, even if they are going to plead guilty, they could be dealt with far more quickly.”

Look at the wording quoted above from Mr Howson’s exposition:   ‘hours to build a file’...and those truly awful words…. “even if they are going to plead guilty, they could be dealt with far more quickly” worries me. A Duty solicitor to represent the accused?  Duty solicitors do represent people – but not everyone wants a duty solicitor.  They want their own solicitor. Don’t they? By the way… if these people are going to be tried quickly at Tesco – where are they going to held?  In the ‘cold store’ – hung up on meat hooks like sides of beef’?  Absurd imagery I am using, of course.  Absurd idea?

I have, of course, taken this article to extremes… but is it an extreme which awaits us? The real purpose of the blog post is below. In 1985  (I was 32 and still enthusiastic – as I am now) I had  a long conversation in Kuala Lumpur, Malaysia [at The Dog (a club) where I played rugby on the padang as a child]  with a senior and very experienced Malaysian High Court judge; long retired and forgotten, but not by me.  He was depressed and apologised for his mood; explaining that  he had that day  sentenced four drug traffickers to death – adding, that it was highly unlikely their appeals would succeed and they would be hanged within a fairly short time scale according to the process of Malaysian law.  I was brought up as a  child in Malaysia.  I had the pleasure of teaching many thousands of Malaysian lawyers in later life.  I know, from my own experience, that Malaysia (when I was last out there – 2000) has an independent legal profession and enjoys a sophisticated rule of law. It may have changed.  I do not know.


Politics determines the law ( as a base proposition)   in every country – not the judges. The judges, however, see the results of politically inspired law.  The Malaysian High Court judge told me that many Malaysians, and a few foreigners, had died on the rope – but still, there was a serious problem with drugs.  He said that the death penalty did not work – he did not even bother to discuss the philosophical, legalo-ethical and moral issues.  He did not need to.  He knew them,  as did I – and he knew that.

I will never forget him saying to me as we discussed the theory of law:  the value base, the political base – the justification for law … words to the effect…. “When politics determines oppressive or poor  law for popularity or reasons of oppression, we are lost – for  then we are no longer independent judges of law with a conscience, but tools of the state.  The common law of England  shapes part of our law – it gives us flexibility, but not, in matters of the penalty for drugs or other offences.”

I asked him if  he felt that sentencing people to death for drugs was the act of a judge or a tool of the state. His answer was, inevitably,  that judges don’t have to agree with a law to apply it and then told me that he did  not have to deal with such serious issues of the death penalty every day – but  added –  again, I paraphrase: “But what does a judge do when he cannot apply the law of his country because he cannot accept the moral or political value?”. This was a purely philosophical extension – and nothing to do with the laws of any country.  Resign –  was the only answer we could come up with. Today, of course, resignation by a judge on conscience would get tremendous publicity on twitter and the net generally – beyond the damage limitation control of any state.  But, as we all know, with resignation there is often (not always, perhaps) a keen and ambitious – but perhaps less worthy, replacement.

I am all too aware that I have gone from a fairly modest, if bizarre, proposal to have courts in shopping malls, to the death penalty. I have done so for a reason – for they are extremes. I have done so as much for my own views on the way our law and process or system of law is going as yours.  I am still thinking it through – and may not come to a conclusion – that may be beyond me, you and others, but I think it is worth thinking about and debating

Our law is by no means perfect. Our lawyers, police, magistrates, judges, and all the others concerned with the administration of criminal and civil  justice (as opposed to purely private law – land, contract, company et al)  have a  Sisyphian task – the ball they roll up the hill will never get to the top.  There is a danger, with cuts, with reductions in legal aid, essential policing for serious violent crime and many other connected factors, that the ball will not continue to be pushed up the hill, but will roll down to the bottom. The Malaysian judge may have had a point? We have to ensure that our laws are both fair, necessary, and administered to the highest standards – and that, unfortunately, costs money.

Isn’t purple prose and polemic wonderful? I could have tossed in a lot more graphic images from Google.  I don’t need to. Trial by newspaper, trial in a supermarket, trial by twitter, blogs – is that the way forward? –  or trial by the people who do it now on not a great deal of money…and may have to on even less – if they can afford to?

***

As always – I am open to comments…. fire away… but ye, who be without sin, cast the first stone… if you forgive the metaphor…

I am merely exploring thoughts with this post – not prescribing, not doing anything more than trying to express my own, as yet far from finalised thoughts on the matter.  It is, after all, only a blog post.  I welcome your thoughts.

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