TopOfTheCops.com

Richard Enderby is a TopOfTheCops reader from Lincolnshire. He gives his perspective here on an issue he would like candidates to address – the relative costs of community sentences and imprisonment. If you would like your perspective on this or another relevant subject considered for publication, drop a line to Editor@TopOfTheCops.com

Candidates for the new Police Commissioner posts must initially be judged by what they say they intend doing in relation to actual policing in their county, and ultimately judged on whether they succeed, or it has been “Rhetoric” to quote the current buzz word. We must not let them detract from that, and saying they support being “Soft on crime” will ensure they do not get my vote.

However many prospective candidates have sidelined us into their views on such things as “Rehabilitation” “Community sentencing” etc, at the expense of policing, partnership working with the Chief Constable,  and supporting their police force where necessary. Although outside their new domain, they are singing the virtues of such “Soft” alternatives, rather than leaning towards “Zero tolerance.” Although a lower level issue zero tolerance on the wearing of seatbelts certainly worked in Lincs.

They are entitled to their opinions, and I trust the voters will take note. Furthermore their mantra usually stresses how much it costs to keep someone in prison. To me the cost is “What it takes” for many criminals and crimes, and it is impossible for them to argue against the fact that when someone is in prison they are hopefully not committing crimes. I would add I am not against rehabilitation in many instances, especially for first offenders – Total rejection would be stupid!

Whilst the cost of keeping someone in prison is important, and is far too expensive in my humble opinion, I have never seen them quoting the cost of keeping criminals out of jail, under some other “Soft sentence.”

There must be a huge cost in administration, bureaucracy, supervision, police time, benefit payments, etc in keeping someone under such schemes as “Community Sentences” – Not forgetting the capital cost of tags, monitoring equipment, etc, together with the cost to their victims, in both cash, stress, fairness, etc. To add to everything else is the so called “Fear factor” of people, many of them old and vulnerable, because they know the criminal is at large in their community.

There must be many more costs that I haven’t even thought of yet….and as we know from recent reports, the success rate is extremely low.

Work needs to be done in accurately quantifying these costs to redress the balance, and people must at least recognise the scales tip both ways.

There is a fair amount of evidence that in the Police and Crime Commissioner election Independents are seen by a decent number of people as a Good Thing.

I’ve never been persuaded that it was enough to just be Independent to be worthy of voters’ support, but a number of candidates offer more than this, and it is to be hoped that this is not lost in the wider point of their not belonging to a political party. But if, as the Government’s attempts to secure successful people to run on a non-partisan basis suggests, Independents are a Good Thing, we should be entitled to ask whether it is possible that we will have too much of them.

Have a look at the TopOfTheCops list of declared Independents. You will see that some areas don’t have any, but that others have whole collections of them, and this is the problem I am seeking to highlight. A portion of the electorate will do a little bit of research before they cast their vote. They may read leaflets from candidates, search the web, watch an item on the television. They may even read this site. But many more will pick up the ballot paper at the polling station or straight off their doormat and will make a decision there and then as to who to support.

The problem at that point is that Independents are just that – described on the ballot paper as Independents and nothing more. They have no other distinguishing features or party descriptions to help voters make their decisions. No party emblems to represent a safe and familiar choice. So where there are a bunch of them on the same ballot paper, they become their own worst enemy. Anyone wanting to vote for an Independent in such circumstances has too much choice in a market seriously far from ‘perfect information’.

True, voters have two votes in this election, so people can lend their first vote to an Independent before having a party as a back-up plan to keep the ‘other lot’ out, but this doesn’t work so well when there are 6 to choose from, because it compromises the chances of any of the Independents to get through to the top two candidates from whom the winner will be picked.

And in some areas the decision is even more problematic. In Gwent you have a choice of a seasoned local ex-Police officer Independent in the form of Chris Wright, and a seasoned local ex-Police officer Independent in the form of Ian Johnston. I’ve met and spoken to both, and they have a lot to differentiate between them, but most voters will not meet or speak to even one of them, and so may struggle to choose. ‘Independent’ lacks a Unique Selling Point.

In some ways it would be helpful if Independents could cluster into groups with a similar set of skills or policies to offer, and if this could be represented on the ballot paper. Ironically, some would call this a political party, and legally that might be the requirement, but I think it harsh to treat this as an Either/Or thing. My own view is that one of the main things people value is that Independents are some of the people clearly not beholden to a political party, but it’s also fair to recognise that the Kevin Hurleys of this world are not the same as the Mervyn Barretts, and it would be helpful to have a way of distinguishing between them that did not require the average voter to follow this election as closely as you who are reading this are currently doing.

If I recall election law properly I remember coming across the phrase “groups of Independents”, but I don’t know if they have the same flexibility as parties on the description part of the ballot paper. I think, however, that they should.

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.

After yesterday's publication of the list of candidates who had declared they had no reason to be worried about a criminal record keeping them out of the race, there have been a few more entries.

The first is a surprise to some – Alan Charles, who has been reinstated as Labour candidate for Derbyshire after receiving advice that his teenage conditional discharge 47 years ago didn't count as a conviction after all. TopOfTheCops readers won't be surprised at this – it's what we told you last Friday when he announced he was standing down. In fact, it's what I emailed him when I heard, though I still haven't had a response. So, no actual declaration to me, but I'm going to count his reinstatement as a declaration, given that he's clearly aware of the law, has checked his compliance, and now thinks he can stand.

He blames the Tory government, which I've questionned. Let's be clear, the Home Office hasn't covered itself in glory on this one, but I still contend that a basic thing to do before applying for a job is to see whether you are qualified, and any brushes with the law should be considered, not least for political reasons. Some folk in Derbyshire are no doubt wondering why they haven't yet been told what Mr Charles's 12 month conditional discharge is for, and why this detail has been kept from them.

Another curiosity was the group of Independent candidates who, refusing to pay the price of a stamp, took a letter to Downing Street complaining about the lack of a mailshot for candidates in the PCC election. I'm with them on the issue, though my preference was for inclusion of Candidate Statements in the booklet from the Electoral Commission which will be going through every door anyway. What I don't understand is why the protest is being made now, in August, when the Olympics has finally left the news and the media get desperate for stories, but more importantly when it's too late to change the arrangements. It would have been better to protest on say 13 March, 5 months ago, when TopOfTheCops first published a view on this issue, supporting concerns already expressed by the Electoral Commission. Perhaps some of the candidates did object then, but by giving us this piece of political theatre yesterday, when the only point is the publicity it secures, it raises the question of whether the new politics is any different from the old politics – a triumph of style over substance.

The demo revealed one new candidate – ex-cop Kevin Hurley, standing as an Independent in Surrey, who immediately provided reassurances on his eligibility to stand, and therefore joins our list. For people like me he looks like he will be fun.

Other new members of the list of candidates who have declared their relative innocence are:-

Kent – Independent Dai Liyanage

Leicestershire – Independent Suleman Nagdi

Surrey – Independent Peter Williams

Warwickshire – Conservative Fraser Pithie

West Midlands – Independent Cath Hannon

So that's 40 candidates who have made a declaration now.

Recent withdrawals from the PCC elections flow from an increased appreciation of the strict nature of the rules on how previous convictions, including otherwise 'spent' convictions and those incurred as a juvenile, can disqualify a person from standing. Those withdrawals have also raised doubt as to who is able to stand, especially as they have exposed weaknesses in the selection procedures of both Labour and the Conservatives.

Today on TopOfTheCops we reveal which candidates have declared that they have looked at the rules on previous convictions and still believe themselves to be qualified to stand.

And that means we also identify the others – over in our Candidates' Section.

On Thursday, TopOfTheCops revealed exclusively to the world how one of Britain's most senior judges had decided to do what Parliament had not, and ban magistrates from standing as Police and Crime Commissioners.

TopOfTheCops readers in the press began to share the story so that within a day most of the major papers were carrying it.

TopOfTheCops readers at the Local Government Association criticised the direction as nonsensical.

TopOfTheCops readers who are standing for PCC positions banded together across parties to write a letter of protest to the judge, backed by legal advice sought by Lincolnshire Independent candidate Mervyn Barrett.

And the judge backed down.

Because some magistrates had declared their candidacy before the direction was made he “would not press” them to resign – just take a leave of absence during the campaign.

More needs to be done. The signatories to the letter will meet the judge on Wednesday to press for more. It's likely they will press for the ban on magistrates serving on Police and Crime Panels to be lifted. Perhaps magistrates should be allowed to do the normal campaigning behaviour of party activists. Whether any will press for successfully elected PCCs to remain on the bench remains to be seen. My own view is that the separation of powers can be taken too far. A morning once a fortnight seeing local crime from a magistrate's perspective may be a very useful experience for a PCC.

Maybe there will be a bit of 'no decision about us without us' in response to the lack of consultation before this edict.

So this was a tiny victory for TopOfTheCops readers, and a lot remains to be changed. But while it was a tiny victory, it was also an important precedent. Having overstepped the mark, a senior judge found himself answering to press and public, almost precisely the fear that motivates the judiciary around judicial independence.

Ironically the judge who said that magistrates, holding judicial office, should not meet PCC candidates, will now be meeting PCC candidates himself.

Nowhere is it written that PCCs have such powers to change a judicial ruling, still less the people who are merely candidates for the post, but here we see the beginnings of officials bowing to influence rather than formal powers, and this to people who don't yet have the mandate of millions behind them

Just imagine what it will be like when they are the real thing.