Posts Tagged ‘Diversity’

From a pub in legal London:

‘Why do the police behave better in the Crown Court?’

Puzzled faces.

‘Cos the Magistrates let them get away with anything’

Everyone laughs.

‘May as well still be the Police Courts’

More knowing laughter.

Growing up

There’s a generation of the junior bar who miss one Magistrates’ Court in particular: Bracknell. In reality Bracknell Magistrates was manned by 3 or 4 London Barristers’ Chambers and a couple of big firms of solicitors. It was a pleasure to appear in.

Yes you’d sit on a train for 50 minutes with no loo or refreshment cart.

Yes if you missed the train you’d be hours late.

Yes you had to have lunch at Burger King or Greggs.

But! It was a wonderful magical place – why? Well, the legal advisors, virtually all had been practitioners at some stage and all were fair. And the Magistrates, consider now that this is in the heart of Berkshire, were diverse in both race and gender. They even had some younger JPs. They thought about cases carefully and gave comprehensive reasons for their decisions. They were polite too…

I’ve only ever had one credibility finding made by a Court against a police officer (this means following the case of Guney that it would be disclosed to the defence in every future case that the police officer has told lies whilst under oath) and that was in Bracknell Magistrates Court.

Bracknell was, in my view, a high quality mark.

But there were other extremes, in X Court you knew you would be acquitted, in Y Court you knew you would be convicted, in Z Court you knew your client was going to prison. You ought to be assessing the outcome of a case on the basis of the evidence not the Court.

Learning from mistakes

The closure of Bracknell was absolutely stupid. The Benches have now been split up and mixed up. The Bar assumed that similar closures in London might even things out across London at least, but now things are less predictable.

In honesty I don’t really go very often anymore, but still, people more junior tell you things, or a pupil will call and ask you a question.

The friction between the Bar and the (Magistrates’) Bench is twofold:

1) The way in which barristers are trained. The problem is this, the average barrister goes off for 6 months to the Old Bailey, Southwark, the Court of Appeal, with their, established and respected master who might be as much as 30 years call. They then crash down to the shop floor in the Magistrates and it is a culture shock. It encourages some baby barristers to be arrogant, it turns some into complete cynics who don’t run trials as they believe Magistrates just convict  and some just lose their confidence because of the way in which they’re spoken to and treated.

2) The bizarre. If juries gave their reasons for verdicts then I have no doubt that the doors of the Court of Appeal would never close. But, sometimes, you simply cannot believe what you hear in a Magistrates’ Court:

I give you three personal examples:

a) About 18 months ago, my client didn’t turn up to Court for trial. The Prosecution applied to proceed in absence, I opposed the application. The Bench announced that they proceeded in the Defendant’s absence and found him guilty. This was before they had heard any evidence. Needless to say that conviction didn’t last long.

b) It may harm your defence, if you don’t mention something which you later rely on in Court. 2 years ago, my client was asked a multitude of questions in interview, he answer no comment to a couple of them. When it came to trial, the prosecution didn’t ask the same questions, the Defendant didn’t mention something in trial he hadn’t mentioned previously. The Magistrates came back and found the Defendant guilty. Part of the reason they found him guilty was the Defendant answered no comment to two questions in interview. The Prosecutor and I looked at the legal advisor who didn’t see the problem. I explained the problem, the chair of the Bench was absolutely mortified. Legal advisor told them that his boss had advised that the Defendant would need to appeal to the Crown Court / High Court. The Legal Advisor had read the reasons before they were announced….

c) Credible and consistent. Where this phrase has come from, I do not know. If I find who came up with this phrase I am going to tell them what I think. The worst example of this I had was back toward the start of my career. A youth client was convicted, the reason: ‘The prosecution witnesses have attended this court and been cross-examined so we find them credible and consistent. We did not believe your evidence and so we find you guilty’ – Sorry what?

But I’m not an abolitionist

Actually, if you look at those examples, all three are actually legal errors:

a) Due process/ burden of proof

b) Adverse inference/right to silence

c) Burden and standard of proof / adequacy of reasons.

Magistrates are not legally trained, who is, their legal advisors. If legal advisors are not robust about properly directing Magistrates as to the law then one can hardly blame the Magistrates for the flawed decision.

So what happens if the Crown Court, or the High Court quash a Magistrates’ Court decision on a matter of law? Nothing. The Magistrates are liable for costs if they divert from the Legal Advisor’s advice.

What if the Legal Advisor gives the Magistrates the wrong advice/no advice? Nothing.

Who quality assures Legal Advisors? Other Legal Advisors….

So actually, the first step is to take better quality control of the work  done by legal advisors.

And don’t give in to the argument that we should do away with Magistrates because they are not legally trained. There are plenty of cases where I would always opt for Magistrates over a District Judge – why – because a person is much more likely to get a fair trial from his peers,

Unfairness and the many forms thereof

In a lot of courts, familiarity is the first unfairness, Benches have seen and heard particular prosecutors every day for a number of years, there’s of course a relationship there which amounts to a potential unfairness. To ameliorate that, rotate the prosecutors.

The police court? I certainly don’t think every Magistrate has bias towards the police, far from it. However, again, culturally, there were always certain Courts where one could confidently raise police misconduct issues and others where one couldn’t. That’s probably a training and recruitment issue for the Magistracy.

Diversity. Less than 8% of Magistrates are BME. However, more than 8% of Defendants are from ethnic minorities. And, age! The average age of a magistrate is 57. Over 80% are over 50. It’s again a recipe for unfairness.

Familiarity/Training/Diversity: all of those matters, again, are really a matter for the MoJ to sort out.

What does that leave us with…

A very small minority simply misbehave, that’s really something to do with recruitment and proper scrutiny. I have witnessed comments over the years that make ‘predator’ sound minimal.

“found that he demonstrated an inability to take a dispassionate view of a case.”

“was subject to an investigation following the expression of her personal views whilst sentencing in court and subsequently repeated in a media interview. The investigation found the views expressed in court were inappropriate.”

“made inappropriate comments towards fellow magistrates.”

These are just a few examples of investigative findings from the Office for Judicial Complaints in the law few months against Magistrates. Clearly,  the legal profession and court staff must be encouraged to take this avenue when Magistrates act improperly. As far as I can tell, the legal professions, nor court staff have never been invited to use the Office for Judicial Complaints at all.

Great expectations

The Magistrates are an ancient institution. And one I’m not keen to get rid of. The JP suffix after their names gives a certain degree of respect. But it doesn’t make the Magistracy as a whole respected.

And the present Government has great expectations for the Magistracy, they want them to do more, they want more Defendants to opt to be tried by them.

Simply put, confidence in the Magistracy isn’t going to be improved by simply policing them better. (Although it must be said, quickly dealing with inappropriate behaviour and encouraging it to be reported is important).

Instead, to meet the great expectations the Government has there needs to be:

(a) A more diverse Bench and less of a ‘local Court for local people’ type of outlook (where possible).

(b) More scrutiny of the advice being given by Legal Advisors.

(c) Better training of Magistrates

FTD

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In the late 90s, a black barrister appeared on television. She turned up to the chambers in Kavanagh QC and was instantly confused as an asylum seeker by the chambers stick-in-the-mud Jeremy Aldermartin.

Good old John Thaw took her under his wing and she won out over her plummy white male pupil rival. Of course, she faced racism on the way.

I think that was 1995.

It’s now 2013 – we’re still talking about diversity at the Bar.

In May of this year the Guardian commented, they said the traditions of the Bar were suited to those who were public schooled. The dinners made students from other backgrounds feel out of place. Dinners to me were easy. I went to state school.

Dinners for me were easy for three reasons: 1) I’m gregarious like most criminal barristers are; 2) for the big ones I often sat with ‘Silk Cut’ who would introduce me to the big names; 3) I’d been to Oxford so I’d done the sit next to intimidating figures I didn’t really want to.

Friends of mine who had been to other universities (privately educated before or not) – found it a bit more difficult. But nobody senior at the Bar ever talked down to them or were rude. In fact, they were incredibly welcoming.

So we can keep the dinner dates.

Pick a colour

In terms of diversity, there were 12000 self-employed barristers, of those, 1000 considered themselves as being from a BME background. What’s that? About 8%?

2001 census, the UK population was 92% white.

I don’t think colour is a problem.

One thing I do wonder about is how ethnic diversity is distributed across the Bar. There are senior black and asian barristers at the Criminal/Immigration/Public Law Bar.  The legal aid bit – what about in the commercial/chancery/admiralty sets?

Where were you schooled

I took another Barrister as a date to a party. One of my mate’s girlfriends who was a bit of a toff deployed her opening gambit: what do you do etc. Fair enough. Then, ‘Oxbridge I assume?’ to which the date replied ‘yes’ and toff approved, by the end of the evening she’d established where she’d gone to school and what her parents did.

Cringing yet?

It’s in the news this week. Firstly, the Sunday Times announces that public schooled barristers are disproportionately represented at the Bar and then the Etonian-son-of-a-judge pupil barrister was given a slap on the wrists for possession of drugs.

The Barrister presence on twitter is beginning to twinge and stir.

Why are the public schooled over represented at the Bar?

I think it’s simple. Public school applicants still do better at exams because of the personal attention and quality of education they receive. They are as a result able to access the best universities. And, the Bar wants to recruit the best from the best universities.

And so it should be.

The problem is, people still worry that the Bar is nepotistic. Won’t lie to you, I’ve seen an example of it. But that’s only one example in a much wider pool of entrants.

At the Legal Aid Bar it seems unnatural that nepotism would exist. It’s our job to represent all, I can’t see who ‘Daddy is’ really helping with that, nor where you did your GCSEs.

But for the ‘private bar’ – I don’t really know.

The real problem

The heart of the Bar identity problem as I see it, is that we don’t want to be seen as Jeremy Aldermartin/Clive Reader types. We want to be seen as being open to all who merit entry.  And that’s good as far as I’m concerned.

But, we’ve got a problem with recruitment. The problem is, we don’t know what image we’re recruiting in. Who do chambers want?

We want to be an elite profession but not elitist.

(So, do we fight the Oxbridge/Russell bias?)

We want to be an international profession but maintaining British standards.

(Do we prefer home grown, or try and bring in non-British nationals?)

We want to be service all parts of the community but want to be paid properly for it.

(We want to attract people from all sectors of society, but how do we pay for poorer entrants to train?)

We want to provide a service based on standards but is commercially viable.

(Do we choose candidates who are the best as bringing in the business or doing the work?)

Want to be traditional but yet progressive.

(Some of our traditions are linked to some of the most noble of our values but they may turn off entrants from diverse backgrounds)

We want to (in the most part) remain self-employed but want to support people from non traditional backgrounds

(Self-employment assists our independence but how do we support single Mums/Fathers or Carers who want to enter the profession)

Magic wand

I don’t think we can wave a magic wand, such as targets as to recruitment or such like. It won’t solve the problem. The Bar won’t change until it knows what it is in 2012.

If you’re thinking about the Bar though, I can assure you, we’re not all public schooled, Oxbridge educated, British white men.

FTD

The last six days have seen the Metropolitan Police under attack, from the media, from Parliament and from their own brass. The reason? Racism. Or allegations thereof.

The BBC especially have put their extra special shocked faces on. But, how on earth can there be racism in the Met post the Macpherson report? This is 2012, nobody is racist anymore.

Toss. British society has racist elements. Police officers are recruited from British society. As such, there’s always the risk you’re recruiting a racist. It goes in everything, football, the Arts, on university campuses, in bars at the Bar.

Racism was not fixed over night with Macpherson and it’s stupid to pretend otherwise.

I’ve always imagined that the Prison Service and the British Military were more susceptible to racism than the police for a variety of reasons. But, both of those have accepted that racism was a problem and have taken steps to stamp it out.

If one makes an allegation of racism in a prison or in a military institution they receive specialist investigation. Although I have no doubt there are still failings in both institutions, I think they’re certainly more honest to themselves.

And they have to be, they don’t have the scrutiny of the public. People can’t spot what they’re upto on the streets, or overhear things. The army isn’t on the streets of London and the Prison Service don’t deal with road traffic incidents.

Being a public service which are truly in the public eye, we are to blame for continued police racism. And some of us are more to blame than others.

Defence lawyers

The criminal justice system is one of the biggest forms of scrutiny that the police face. Much more so than the complaints system or the civil/administrative court.

And on the most part it is for the defence to scrutinise what the police have done in a particular case. When I defend, I’m dogged, particularly when there have been avenues of investigation which haven’t been properly investigated. As too will I take points when evidence has obtained in less than proper circumstances.

But like a lot of other briefs, there’s a line of defence which makes me shudder. ‘They were racist.’ There’s been many a client who has said it to me. And once said and once part of the defence it’s my job to follow that instruction.

That doesn’t mean though that it’ll necessarily even be mentioned in Court. Why? Well sometimes it may not even be relevant. Other times we may advise our clients not to raise it.

Why on earth would you not raise a police officer being racist? One problem is the BBC effect. There has been a degree of post-Macpherson social conditioning that racism is a completely shocking thing and never happens, despite the fact is completely contrary to the reality of wider society.

And it requires a lot of bravery to bring racism into a case, for two further reasons:

The Magistrates

Of my Crown Court trials, racism only has ever come into one, and that wasn’t police racism.

Racism is often a Magistrates’ Court type of issue. A police officer was racist to me so I pushed them away from me. I swore at the officer as they used inappropriate words. I restrained the officer as they acted in a way which offended my religion and so on.

But one of the reasons we have to be so careful about ‘racism’ based defences, it because of the forum. I do not know a single black District Judge. It is incredibly rare that there is a black magistrate on a trial bench.

Does it matter? Yes, of course it matters, the point of magistrates is shared experience. If a section of the community is completely under represented then the Magistracy cannot access that element of shared experience. And I’m sorry to say but in London, being exposed to racist police officers is part of the shared experience of many minorities.

So why do we have to advise our clients not to raise a ‘racism’ defence? Because the Magistrates who hear the cases lack experience of the cultural reality of racism and therefore are less likely to believe defences which have a racial aspect.

And you have to think what type of person the Magistracy attracts. Some Magistrates are incredibly fair, in particular, the author of http://magistratesblog.blogspot.co.uk/ Bystander. I am told (as I don’t know who he is) that I came before him a lot as a second six pupil, and if it’s who I think it is, he is incredibly fair indeed, he really took the oath to heart.

But others, some Magistrates are people who want to maintain order in their communities, their proclivity will always be to believe the police. And I’m sorry to say, but Magistrates are still too old, white and middle class (even some who match that description are some of my favourites!).

So defence lawyers can be blamed for police racism.

Magistrates can be blamed for it too.

And so can the draftsman.

Bad character

Within the eyes of the law, being racist is reprehensible behaviour. So if you accuse a police officer of being so, you risk all of your character going in under the bad character provisions.

This means?

If your client has previous convictions and he gets you, his brief, to accuse the cop of being racist, the convictions are likely to go before the magistrates/jury.

And that will always be a killer.

So we can’t blame entirely the police themselves for the racism that remains.

Society still has racist elements.

Defence lawyers will not expose racism as it is not necessarily in their tactical interest.

Until Magistrates are more diverse, racism will not be explored in the Courts. And until bad character rules are reformed, nobody who has been in trouble before can afford to make the accusation.

You can’t entirely blame the Met themselves for racism, when the system is set up in such a way it allows it to thrive.

FTD