Wednesday, 31 August 2011

August: will voices of calm prevail?

* A Northern Viewpoint *
With Addendum 1st September 2011  
Let sense be dumb, let flesh retire; Speak through the earthquake, wind, and fire, O still, small voice of calm! - John Greenleaf Whittier (1807-92) - "The Brewing of Soma"
Writing on the UK Constitutional Law Group blog, Professor Keith Ewing - Professor of Public Law, King's College, London - reflects on the reaction to the disorder which occurred in early August.  Britain's political classes were "gripped by panic" .... the country responded in a "wholly disproportionate manner ..." and there were "grand-standing prosecutors and District Judges."  Professor Ewing's article is well worth reading in full - UK Constitutional Law Group - "The Sound of Silence - Human Rights, the Rule of Law and the Riots."

Eoin McLennan-Murray, president of the Prison Governors’ Association, claimed that magistrates had lost all sense of proportion. “It’s like when you’ve got sharks and there’s blood in the water and it’s a feeding frenzy,” he told The Independent on Sunday. “There’s a sentencing frenzy and we seem to have lost all sight of proportionality.”  This claim was countered by Mr John Thornhill of
the Magistrates' Association who stated that "magistrates" had followed guidelines.  Neither of these statements appeared to notice that the Magistrates' Courts were manned, for most of the "disorder-related" work, by professionally qualified District Judges (Magistrates' Courts) who sit alone.  The use of District Judges on such a scale is rare and may be unprecedented and a decision to take this course of action must have been taken at some "higher level."  In effect, they "took over" the Magistrates' Courts and appeared to be determined to take a tough line with all who appeared before them.

Soon after the disorder petered out, we saw the first guilty pleas coming through the Crown Courts.  These courts also adopted a strong line but this was done in a measured way arguing from sentencing principles set out by Parliament - see Law and Lawyers - "The recent disorder: bail and sentencing."  Whether the sentencing levels set by the Crown Court judiciary will survive in the Court of Appeal may well be seen in due course if suitable appeals arise but it is entirely reasonable to expect, in general terms, that sentencing for (say) a theft will be more severe if the theft is committed as part of widespread disorder.  The key question is how much of an "uplift" in sentencing is appropriate.  Unfortunately, no existing sentencing guidelines - (which are issued by the Sentencing Council) - dealt with this point specifically. 

Emerging from all the political rant was one still small voice of calm: Mr Tariq Jahan who called for calm in Birmingham.  As Professor Ewing wrote in his article -

"In as compelling and noble a commitment to the rule of law as one is ever likely to hear, Mr Jahan was prepared to leave matters to the ordinary forces of the law.   ‘What goes around, comes around’ he was heard to say, in words directed to his son’s killers."

Did the personnel of the State lose their inhibitions and, as Professor Ewing put it, "hunt with the mob?"   Of that, you be the judge.

Also during August, the Deputy Prime Minister Nick Clegg declared that he would refuse to let human rights law be weakened (Guardian 25th August).  The eminent solicitor, Sir Geoffrey Bindman, reminded us that the European Convention on Human Rights was something given by Britain to Europe and not something imposed upon us - The Guardian 29th August.  Even the simplest reading of history shows that our "human rights" are actually hard-fought and were not handed to us by a benevolent government.

In a comprehensive post on UK Human Rights Blog, Melina Padron considered matters as diverse as the statement by Lord Justice Wall relating to the case in which false allegations of child abuse had been made; the Scottish University Fee System (free to all except the English);  Eviction of travellers; the UK riots; Hillsborough (also covered on Law and Lawyers); Hostilities in Libya and some other matters such as whether the Mental Capacity Act 2005 is "too paternalistic."  On the same blog, Hugh Tomlinson QC considers whether filming the Police is a fundamental right.

As events in Libya unfold, stories of atrocities are emerging on an almost daily basis.  One story concerns the alleged recruitment by pro-Gaddafi forces of attractive girls who, it is claimed, were raped by senior officers and also, under duress, ordered to kill captured opponents.  According to an article in The Times (30th August), it seems that one of these women has been captured and that her captors are inclined to believe her story and may even release her.  Would duress provide her with a defence to murder?  In English law, the answer is that it would not: R v Howe [1987] 1 AC 417.  Of course, there are calls for Colonel Gaddafi to be dealt with in some way whether by Libyans or by some international legal process.  Geoffrey Robertson QC argues, in The Guardian 28th August, that Gaddafi should go to the International Criminal Court (ICC) at The Hague.  There is much force in Mr Robertson's argument that tyrants should be subjected to legal process.  However, it is interesting to note that, of the 117 nations which signed up to the ICC, Libya is not among them.  Whether voices of calm will prevail in this situation is highly debatable.

Addendum 1st September 2011:

The use of District Judges on such a scale is rare and may be unprecedented and a decision to take this course of action must have been taken at some "higher level." 

The Times (1st September) carried an article by Frances Gibb - "JPs furious at accusations of conveyor-belt justice."  This notes that most cases against "rioters" were carried out by district judges.  Ministry of Justice statistics show that 70% of those involved in the disturbances were remanded in custody compared with a norm of 10%.  Also. 46% received a custodial sentence compared with 12.3% for "the same offences last year."  It appears that, in London, overnight courts were handled by district judges after Lord Justice Goldring advised that they should do the sittings.  A statement form the judicial press office is reported as stating - "Events were unfolding very rapidly.  Decisions had to be taken quickly."    "In such circumstances, it was easier to organise the deployment of district judges at a national level.  They could sit where needed and at short notice."  Lord Justice Goldring also took the view that the District Judges could "offer greater flexibility and speed" because they could sit without legal advisers and did not need to retire to consider decisions.  DJs also took daytime courts at many places including Manchester.

It is unclear precisely to whom Lord Justice Goldring proffered his views.  There should be greater clarity as to just how the decision to deploy District Judges on this scale was reached.  For example, was there a request from government?

As Frances Gibb points out - one Chief Constable has already asked why such a rapid, robust approach cannot be used all the time and Magistrates have indicated a need to capitalise on the speedier dispensing of justice.

All of this is interesting.  The arguments that District Judges could sit without legal advisers and that they do not need to retire to consider decisions are somewhat misleading.  In many instances they do sit with legal advisers though, no doubt, that could be dispensed with if some form of clerical support were to be offered.  It is also true that they do not need to retire though, in practice, they often do take some time out to consider their decisions.  It is also true that "lay benches" do not always have to retire since the more straightforward decisions can often be taken without doing so.  However, it has to be acknowledged that the pro-DJ  arguments have some validity and one wonders whether they will become used more and more to justify the use of district judges rather than benches.

It is somewhat unfortunate that it is the Magistrates' Association which has risen to the criticisms relating to refusals of bail and harsher sentencing.  The inescapable reality is that it was the district judges who meted out most of bail decisions and sentences.

In 2010, Lord Justice Goldring became Senior Presiding Judge of England and Wales.

Please also see The Magistrates Blog - The (Metaphorical) Jury's still out on this on - 1st September 2011

The Guardian - England riots: more than 1650 suspects brought to court 

Addendum 5th September

Riot jail sentences in Crown Courts up to three times longer than average - The Guardian

Reading the riots - study to examine the causes and effects of August unrest - The Guardian

House of Commons Home Affairs Committee to examine the Policing of large scale disorder


  1. I have spoken to about twenty colleagues in the last week and without exception they are critical of John Thornhill and his inability to have made it perfectly clear that the vast majority of bail remand decisions were made by District Judges[MC]. At a time when government appears to be heading towards a reduced role for magistrates this is most unfortunate but then the Magistrates` Association is not geared to putting the best people in the job owing to its lack of a democratic and representative structure.

  2. Ed (not Bystander)31 August 2011 at 12:12

    Did the personnel of the State lose their inhibitions and "hunt with the mob?"

    No. That's ridiculous.

  3. An informative blog and thanks for the link to Professor Ewing's incisive article. It has been alarming but not wholly unexpected to see the way that magistrates have been stood down in some cases, or their offers to sit for aditional courts declined, in order that DJs (MC) can take over 'their' courts.

    Central London Justce