IDENTICAL BUT NOT THE SAME

During my time on the bench I had the enormous benefit of having had as a colleague four first class District Judges. Each one in his and her own way was a superb communicator, teacher and advisor. One common factor that each of those people emphasised to the bench as a collective and to me personally was that our powers in court were identical to theirs. This certainly boosted my confidence when I became a chairman and I have no reason to think that many colleagues did not have similar experiences.

One aspect of the job that one quickly learned was whilst not necessarily parroting pronouncements like a ventriloquist’s dummy one must be somewhat circumspect in anything one said from the bench whether eg it was the manner in which an informal warning was given about an offender`s future behaviour or an explanation in rather simple terms to somebody whose comprehension might have been slightly wanting. It would certainly have been beyond my personal remit to have followed the example of Deputy District Judge [MC] Bennett at Westminster Magistrates` Court (The Times behind its paywall) who declared from the bench a few years ago after having found guilty of careless driving a lorry driver whose offending caused very serious injury to a cyclist, that he would be writing to Mayor Boris Johnson to consider the layout of the accident location to improve safety for cyclists.

It would be interesting to know whether my reticence was common or not amongst colleagues. What legal advisors might have said in such circumstances would have been another matter indeed. In the light of court changes commented upon here recently it will become necessary IMHO for chairmen to be more forthright in handling certain court situations.  They must have confidence in their ability to determine which such situations require intervention and those when the advice would be to zip it! 

PROVED BEYOND REASONABLE DOUBT BY 2:1

A relaxed stay at home Bank Holiday weekend is not usually a time for profound or even not so profound thoughts but then end of season all to play for football matches are not the time for the glaring deficiencies in the game to be so rudely demonstrated. There were no debates over did it cross the line or did it not; this season cameras have seen to that. But there were debateable decisions on fouls which would and could have been beyond doubt if only the referee had had the cojones to stop play for a minute and consult a TV set on the touchline. One might say that FIFA rules do not allow for such confirmation but one day if a referee were to take such an action prior to making a decision nobody but nobody would fault him. 

And so it was that I considered the doubt that exists in juries and magistrates` benches. I can recollect sitting on the wing at a DV trial with the Bench Chairman of a joining amalgamating bench in the chair. We were split as to the defendant`s guilt. The chairman made his pronouncement which ended, “and we find the case proved beyond reasonable doubt”. Can a split bench truly justify such a verdict? Logic suggests otherwise.

Juries in Scotland differ from those south of the border in three major respects:-
1. There are three possible decisions; guilty, not guilty or not proven
2. There is an odd number of jurors…..15
3. A simple majority verdict carries the day
In England under the Juries Act 1974, a majority verdict (10 out of 12) is permitted in some circumstances. A bench of magistrates seems to be empowered with the worst of both worlds. A majority of 2:1 is not exactly overwhelming considering the “jurors” are well versed and trained in structured decision making with regard to an assessment of the facts agreed or in dispute. That majority decision cannot logically or sensibly indicate guilt beyond reasonable doubt if a third of the bench holds such doubt.

Currently no indication is given in open magistrates` court if a decision is split. English law could be aligned with that of the Scots and “Not Proven” be offered as an alternative to “Not Guilty”. Or if that were too radical surely justice would be best served if a split guilty finding led automatically to an appeal before a Judge and two Justices of the Peace at Crown Court? But on thinking about it, it is a near certaintity that this new government [or any other] would not consider justice has a priority over costs.

GOVE`S EAR

A first major test for the new Justice Secretary is looming ahead and it is the criminal bar which has fired the first salvo in  the opening skirmish in what could be termed the war for Gove`s ear the objective being a faint hope that he will listen to the objections to proposals bequeathed to him by his unloved predecessor.  

There is no doubt that the tightening of the legal aid provisions has probably already led to miscarriages of justice such miscarriages being in the lower courts.  I would opine that it is only a matter of time before more judges in the crown courts will make their opinions known.  

GAME SET AND MATCH FOR THE SCOTTISH VERDICT

As an active Justice of the Peace I was asked, as are many others, to consider sitting in the family court.  I rejected the approaches on the basis that I preferred to sit in the judgement of adults who might or might not have committed criminal acts. I preferred to exercise my limited abilities where any error on my part would be balanced by the views of two colleagues and failing that by a judge and two colleagues in crown court. Thinking in a similar format I have occasionally pondered how a split bench of three justices could deliver a verdict of guilty beyond reasonable doubt or to use the recognised parlance; proved beyond reasonable doubt. But that`s a post for another time. And that leads me to consider the details published this morning of the verdict last year at Liverpool Crown Court of Martin Thomas who was found not guilty of  grievous bodily harm with intent against his baby daughter.  He was named this week by Mr Justice Peter Jackson at the family division of the High Court as indeed being responsible for the baby`s injuries. Susan Jacklin QC,  chairwoman of the Family Law Bar Association was quoted in comments on the original verdict, 'The jury did not say that he did not do it — they said: “We are not satisfied he did it on the burden of the proof”.’  In other words the jury found the case against him not proven and this is not the first and won`t be the last time such verdicts leave unanswered questions.

Game set and match for the Scottish verdict!

IT IS STILL A MAGISTRATES` COURT

When I was appointed to the bench the use of screens to prevent a witness being seen by a defendant was not at all common the reason being that since ancient times a defendant has had the right to face his/her accuser. The recent history of such special measures can be found here.  Subsequently their use became more frequent.  Indeed when the case is listed as being in a domestic context the application is part of the protocol on behalf of the complainant and sometimes other witnesses.   It takes a strong bench to refuse such an application and reasons must be given.  It has been my personal experience that perhaps in the last two or three years screens are being applied for even in non domestic cases when the defendant and complainant are not known to each other.  With my colleagues` agreement I have often rejected such applications.  Such was the case at Dolgellau Magistrates Court.  In line with opinions previously expressed here I am much in favour of lay justices taking more control of courtroom procedures even when risking criticism from the legal advisor providing of course that a proposed course of action or inaction can be argued as justified by the circumstances even contrary to the opinion of said advisor. After all it is still a magistrates` court..........at least for now.

SHOCKING BUT UNSURPRISING

Along with most of us I was shocked at the conclusion of the case of the Philippines so called nurse who was convicted of murder earlier this week.  What was almost as troubling was the complacency of the head of the Nursing and Midwifery Council which is charged with regulating those entitled to registration with said body when questioned about procedures of verification. The whole process has admittedly been tightened since the individual in this case arrived in England.  Nevertheless this sad story is just another case of a regulatory body failing in its duty of public protection.  It seems blindingly obvious that there are failures in the whole process from the drafting of basic objectives and regulations for such bodies, selection of appointees to senior posts and the overseeing by supervisory authorities.  In no sphere is this more apparent than with the police. I came across this information which some say gives cause for concern. An example which, along with Scotland Yard`s denial of a keystone cops approach to the Hatton Garden heist, should bring tears instead of smiles to readers, was revealed recently when the almost laughable failures at Cumbria police caused a trial to be abandoned. In view of the history of senior officers of that force the problems of supervision seem endemic in the way we run public organisations.  Verdicts as above brought in courts should not come as surprising.

TRANSFORMING SUMMARY JUSTICE

As far as the magistrates` courts` system it is unlikely that many associated with its workings would consider the Crown Prosecution Service  the most efficient part of that system.  The reasons are many.  Underfunding and the consequent staff reduction of lawyers and clerical staff since 2010 are much to blame.  But also at fault is the internal management system which as part of the civil service would not be tolerated in a well run business.  Of course the organisation is not in being to make a profit and relies upon other incentives to produce the most from the people it employs.  In this regard it fails.  Not unnaturally the MOJ relies on numbers to put its own spin on procedures and outcomes.  A sentence with petard and hoist comes to mind.  I quote below from my post of 20/12/2013:-

“The first three quarters of this year showed there were 117,582 trials of which 52,783 were effective; ie 45%. What is equally interesting is that of the 20,467 ineffective trials (disregarding cracked and vacated trials) tardiness by the CPS or the inability of it to get its witnesses to court was responsible for 5,782 [28%] of those. In 281 instances the CPS prosecutor was engaged in another court and could not proceed with the listed trial.  Ineffective trials as a result of maladministration within the courts system, ie responsibility of HMCTS, numbered  5,733 [28%]   Annotated problems with defence lawyers and/or their clients were responsible for 5,374 ineffective trials.  Of course it must be borne in mind that the “defence” figures are an amalgam of hundreds of disparate organisations none being a monolith like the CPS with a central administration.  Similar percentage figures for the whole of 2011 when the coalition had its feet firmly under the justice table were:-“

Effective trials                                                            44%

Tardiness of CPS as above                                          28%

Maladministration by HMCTS                                    29%

It seems that the CPS is embarking upon yet another initative; Transforming Summary Justice.  It is highly unlikely that the in depth views of those on the bench who will have to apply the intended procedures have been consulted and it is very unlikely that had they been consulted approbation would have been given.

With the increasing numbers of litigants in person appearing before magistrates this so called initiative is probably going to lead to more miscarriages of justices; miscarriages of justice which don`t for obvious reasons make the headlines.  Make no mistake justice for  poor, illiterate, addicted and mentally challenged defendants in this country is being increasingly withheld.  With legal advisors being beholden to their employer, the same employer to which the CPS must kowtow , it is now all the more important for the magistrate chairman of bench to be much more proactive in dealing with those defendants.  S/he must assume the mentality of a continental magistrate in being inquisitorial in his/her approach.  The level playing field is now a concept for legal historians. Equality of arms is now merely a wish for bygone days.  While there is still a Justice of the Peace presiding over a trial there is still the possibility of real justice in the aforementioned circumstances.  I am afraid that I do not have the confidence that all District Judges will approach such events    in a similar manner.

TOO OLD AT 70

So by a few laughs and poems in a courtroom two former colleagues forced to retire as I was last month  managed to obtain some headlines in local news media........good for them.  There are many ways to skin a cat as the story goes.  I can reveal that currently the  Equality & Human Rights Commission is studying this very problem and I will be reporting just as soon as there is a whisper emanating from that organisation.