You are going to have to read this one to the end!
The Senior Presiding Judge for England and Wales has issued new guidance, which you can find on the APCCs website, following TopOfTheCops revelation of his previous decision to ban magistrates from lots of PCC-related activities, and the subsequent efforts of TopOfTheCops readers to negotiate changes.
The original report, which was quickly picked up by national news outlets, criticised the judge for the following directions:-
- Requiring magistrates to resign from the bench on becoming a candidate.
- Preventing magistrates from active participation in the election.
- Preventing magistrates as members of the judiciary from meeting PCC candidates.
- Banning magistrates from Police and Crime Panels
and so TopOfTheCops was the first to demand that the ruling be reconsidered, as reported by the Guardian.
That has now been done, and each of these decisions has been revoked. The implied point that an elected PCC could not be a magistrate has also been downgraded to a question that magistrates must ask themselves – “whether it is possible to hold office as a PCC and a magistrate”, with the prompt that “it is the firm view of the senior judiciary that the two roles are not compatible”. That’s not a direction though, which is quite a capitulation.
The PCC Candidates who have been meeting the judges are expressing their contentment with the final decision, being all nice about it, etc. But let’s face it, the initial direction was a major error by the judge, and needs to be seen in the context of other directions interfering with blogging and the use of social media by magistrates and, I am told, banning magistrates from Community Safety Partnerships. These directions are deeply flawed and should not have been made. They have weakened the position of the senior judiciary.
So, now that we have the climbdown, it is probably the time to tell you about the little bomb in the original post that has been ticking away unnoticed ever since. One word – “leafleting“.
Yes – TopOfTheCops reported “If they just want to participate actively, whatever that means (leafleting?), they should take a leave of absence.”
This has worked its way into the judge’s new guidance:-
“It is not practicable to give detailed guidance on what amounts to ‘active’ campaigning. Magistrates should use their common sense and judgements regarding this. (For example low-level activity, such as delivering leaflets is probably not within the description.)”
Now, transport yourself into another profession whose activity is routinely politically-restricted, such as certain local government officers or Police Authority Staff. Who can now tell them that low-level political activity, such as leafleting, is not OK?
And what about cops? This doesn’t apply perfectly to cops, due to the operation of specific election law that makes it a criminal offence for a police officer to encourage anyone to vote in an election (see s.60 here). But what about the distribution of information which does not encourage people to vote or not? What about material outside the limited formal election period (which we are not yet in)? Can cops leaflet in those circumstances? Does this guidance not have the potential to undermine the other restrictions on officers’ political activity, by categorising some activities as not sufficiently active to count, and thereby providing a ready defence from the country’s most senior judge for low-level political activity?
I realise that the judge’s guidance does not have the status of a ruling on the precise terms of a statute, but that doesn’t stop it from having persuasive force, and opening a can of worms in the process. Cops will want to know why when they are off-duty they should be any less free than a magistrate on a leave of absence. The full ramifications are beyond my legal knowledge to describe in detail, so I’ll content myself with raising the questions.
I shall now retreat to a safe distance.