Posts Tagged ‘OJC’

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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