It was all going so well.
I was in my first week in Seattle (see my previous blogs on the Two Fingers To 50 Tour). I was feeling chilled. I’d forgotten that I was 50. My daily apoplexies in the face of the destruction of the criminal justice system which had once been the envy of the world had subsided. Surely nothing could possibly go wrong?
Then, as I was surfing the news in a Seattle coffee shop, I idly flicked through the Times Law section and chanced upon the headline Senior Judges Back Tougher Magistrates: see the full article here (unfortunately, behind the Murdoch paywall). In the words of Lloyd Bridges in Airplane!, looks like I picked the wrong week to quit sniffing glue.
The piece, by Frances Gibb, basically sets out a plan to raise the maximum sentencing powers of magistrates from six to 12 months. (Whose plan this is, Government or judiciary, isn’t quite clear, though since the experience of those practising in the criminal courts is sadly that the two are increasingly indivisible, it may not matter much.) Presumably this means the maximum sentence for a single ‘either way’ offence, since the magistrates already had the power to sentence to up to 12 months if dealing with two or more ‘either way’ offences the last time I looked. Still, you get the idea.
Incidentally, this ‘plan’ is something which has actually been on the statute books for some years, but never previously implemented. I’m suspicious about why now, and what else this will lead to.
The Times piece went on to suggest that this increase in magistrates’ court powers would remove thousands of cases from jury trial, “senior judges have said”. Those “senior judges” have not been named, and perhaps with good reason, since if the article is correct they seem to have forgotten that an accused person has the right to choose to be tried at the Crown Court, no matter how much the magistrates might want to retain jurisdiction. The article mentions that the move “could prevent 10,000 cases a year reaching the Crown Court”.
For those of you not familiar with the term, an ‘either way’ offence is one which could either have a trial in the magistrates’ court or the Crown court, depending on several factors: namely whether the magistrates’ decide that their sentencing powers would be sufficient in the event of a conviction at trial, and, importantly, whether the Defendant chooses to have his/her trial in the magistrates’ court or ‘elects’ to go for trial at the Crown Court. There is an important consideration here: anecdotally, if you have a trial in the magistrates’ court you are up to one-third more likely to be convicted at that trial than if you have a trial in front of a jury at the Crown Court. All practitioners know this, and it is a lie to suggest otherwise.
Like all criminal barristers, I used to go to the magistrates’ court when I started out. If you are tried in the magistrates’ court, unless your trial is listed in front of a District Judge you are basically being judged by non-lawyer members of the public who choose to sit on the bench regularly (unlike a jury who are chosen at random and are compelled to do their two weeks’ service). These magistrates are likely to be a particular sort of person. They are citizens who have volunteered to sit in judgment on other citizens.
A person with multiple piercings who used to live on an anarcho punk convoy and listen to Crass on a daily basis is unlikely to have (i) volunteered to be a magistrate or (ii) be accepted as one. My own experience has taught me that lay magistrates are generally conservative with both a small and a large C, and that the magistrates’ courts did not used to be known as the ‘police courts’ for nothing. (The image below is of course not of any magistrates’ court…)
Not so long ago I was persuaded to take a privately paying common assault trial at a large London magistrates’ court. It was an allegation of domestic violence, a ruckus between my client and his then (now ex) wife. The sort of thing the magistrates’ court takes very seriously and deals with daily. Common assault, so no opportunity to choose to be tried by a jury. The defence case was, as is often the position, that the ex wife was making it up maliciously as part of the marriage break-up fallout.
There were no witnesses as to the alleged assault, other than my client and his ex wife. Both gave evidence, the ex wife now reluctantly. At the end of the case, the bench retired to consider the evidence. You’d expect, obviously, that they would direct themselves – or be directed by the justices’ clerk – as to the usual things like the burden and standard of proof, before delivering their reasons for their verdict. Which was, of course, guilty, as around 90% of verdicts are in the magistrates’ court, apparently. The reasons took me aback, though: “We find the complainant credible because she is the complainant, and therefore we find the Defendant guilty.”
WTAF? Appeal subsequently allowed in the Crown Court.
On another occasion, longer ago but still memorable, I conducted another common assault trial, this time in a well known London youth court. Two events stood out: the first, the ludicrous situation of the same magistrates hearing a bad character application when they then insisted on continuing with the trial rather than recusing themselves, the second when the bench adjourned the case for almost an hour whilst their clerk was instructed to “find the law” which prevented me from calling a Defence witness when my client had not given evidence. Of course, this was a complete waste of time as there is no such law. Verdict: guilty. Appeal subsequently allowed in the Crown Court.
So when I think about having to conduct another magistrates’ court trial:
Now, you might be asking yourselves why I’m so exercised about this. Surely not all magistrates’ court trials are conducted by a lay bench? Don’t District Judges also do trials?
District Judges are professionally legally qualified and are almost certain to have actually conducted advocacy and dealt with clients in court as either barristers or solicitors before becoming DJs. This is light years away from whatever training or experience lay magistrates have had. There’s just no comparison.
If you are Dr Fox, you might be fortunate enough to be tried by the Chief Magistrate (the top District Judge) sitting with two other magistrates (see the report of the trial here), but most non-celebrity Defendants won’t be that lucky. From my own experience, District Judges don’t tend to conduct many trials in the magistrates’ court, instead being kept for all those long lists of case management hearings and guilty pleas which now need to be sentenced on the same day under whatever Speedy Summary Justice initiative is holding sway this week: this is because they can and do get through the work at about four times the speed of a lay bench.
District Judges also reputedly earn around £100k per annum. So if you were thinking that the desired increase in the number of trials being ‘prevented’ from going to the Crown Court would be matched by an increase in the number of DJs to deal with them, you can probably forget that one (lay benches aren’t paid).
But surely if you don’t want to be tried by a bench of magistrates, then you just elect for Crown Court trial if you can? Well, what concerns me, and other lawyers, is where this apparent drive to ‘prevent’ these 10,000 cases from going to the Crown Court is headed.
What if the Government want to prevent even more cases from getting to a jury trial?
It’s only a short step, and after all, you’ll never get to your 10,000 cases target if people have a choice, right? The natural progression would be the complete removal of the right of election in respect of certain offences.
This could see, for example, Defendants accused of a single offence of theft (maximum sentence: seven years), assault occasioning actual bodily harm (maximum sentence: five years), affray (maximum sentence: three years) or dangerous driving (maximum sentence: two years) deprived of the right to choose to be tried by a jury of their peers. The magistrates would simply have to decide that, if convicted, the Defendant would receive a sentence of 12 months’ imprisonment or less. And Bob’s your teapot. No choice. None of that ‘jury of your peers’ kerfuffle for you.
Say you’re a doctor who’s been accused of shoplifting, or a teacher said to have committed an offence of sexual touching over clothing – hand on bottom on the Tube, or something like that – or a police officer facing a charge of assaulting a prisoner. You vehemently deny the offence, and if convicted not only will you be facing whatever sentence would be appropriate under the applicable guidelines, but your career will almost certainly be over. Your very existence is hanging in the balance. Who would you rather be tried by: a group of 12 ordinary people coming to their jury duty with fresh eyes, being directed on the law by an experienced judge who decides points of law in the jury’s absence but can’t get involved with any discussion or decision on the facts? Or by a bench of volunteers who’ve seen this sort of thing day in day out, and are probably used to the same prosecutors – or perhaps even the same police witnesses – appearing in front of them?
I think you know the answer to that one.
And ask yourselves this: if an MP, or a police officer, or a journalist, was accused of a crime, and they had the choice of being tried by a jury or in the magistrates’ court, which one do you reckon they would choose?
I think you know the answer to that one too.
Lumme, I need another holiday. And I haven’t even finished this one yet.
I’m going to leave the country.
Just when I thought there was going to be a respite from whatever madness the criminal justice system could coin this week (by embarking on the Two Fingers To 50 Tour, of which more later), my escape plans have been foiled. The Sentencing Council have been at it again.
The Sentencing Council, for those of you not in the know, is not (as it perhaps sounds) a group of 17th century Puritans with a thirst for blood and revenge who gather together every Michaelmas in an underground bunker to assess whether a suspected witch should face the ducking stool or be burned at the stake. Though the way they go on, some might say they may as well be.
No, this Sentencing Council is a body described as “promoting greater consistency in sentencing, whilst maintaining the independence of the judiciary”. It goes on to say, somewhat oxymoronically, that “the primary role of the Council is to issue guidelines on sentencing which the court must follow unless it is in the interests of justice not to do so“. Which some might say goes a considerable distance to not just fettering but strangling the independence of the judiciary when it comes to sentencing. I couldn’t possibly comment.
So who gets to be a member of the Sentencing Council? I wondered this when I read about their latest loudly trumpeted edict earlier in the week: the consultation on reduction in sentence for a guilty plea (see the link to the consultation here). The current members of the Sentencing Council look, gulp, pretty eminent. There’s the current Lord Chief Justice, the current DPP, a couple of pretty senior Crown Court judges, a Lord and a Lady Justice, a senior bod from probation (or what’s left of it after the MOJ dismantled it last year) and a Chief Constable, among others. The sort of people who’d enjoy chewing you up and spitting you out if you appeared in front of them. So how is that this consultation is, well, a little bit bobbins?
Maybe I’m being thick, but ever since I’ve been a barrister Defendants have received a reduction in sentence if they plead guilty. For most of that time, for Crown Court cases it’s been pretty much ‘one third off if you plead guilty at the preliminary hearing, a quarter off if you plead guilty at the PCMH, then diminishing rapidly towards the day of trial, where if you plead guilty on the day of trial you’d get a maximum of 10% discount’. Everyone – lawyers and Defendants – knew where they stood.
So when news stories appeared this week reporting the contents of the consultation (such as the BBC story here), there was initially surprise amongst us criminal lawyers: the headlines seemed to suggest that Defendants who pleaded guilty at an early stage would get a one-third discount off their sentences. Surely that’s already happening anyway? In which case, what’s the point of the ‘consultation’?
But read more closely and you see where the real news story is. It’s not the case that any Defendant pleading guilty at, say, the magistrates’ court will now get a bigger discount than they would have done previously. No, the real story here is the vastly diminishing discounts for those who plead guilty at a later stage, having initially pleaded not guilty. Those pleading at the new PTPH hearings (which doesn’t actually stand for Pressure To Plead Hearings, much as that seems the appropriate translation) will now apparently only receive a maximum of 20% discount, down from the current ‘rate’ of maximum 25%.
Apparently, the SC stated in the press release accompanying news of the ‘consultation’ that the new guidelines provided a “much tighter framework” and “much less scope for offenders to ‘play the system’ and still receive the maximum discount”. There are several things wrong with that statement, not least that it gives the appearance of the ‘consultation’ already being a done deal, no matter what responses might be received from interested parties who might actually have to work to this system.
The first point is that it can’t be a coincidence that this ‘consultation’ comes hot on the heels of the introduction nationwide of the Better Case Management system – the supposed ‘digital working revolution’ which is meant to streamline proceedings in both magistrates’ and Crown courts and has, anecdotally, led to some farcical scenes in courts up and down the country due to equipment failures, judges/counsel/court staff not being able to operate the case gateway, wifi dropping out at crucial times, etc.
One fact which is obvious to those of us working in the Crown courts is that the system appears to have given the CPS carte blanche to only serve a fraction of the case papers (and no unused materials) by the time the case reaches PTPH stage, which is now supposed to be the first hearing in the Crown court. But here’s the rub: under the latest Sentencing Council edict, the PTPH will be the stage at which any discount for pleading guilty will start its dramatic downward slide.
If you’re charged with an indictable only offence, the most serious offences there are, you’d better be ready to plead guilty and get weighed off that day, otherwise the reductions in credit start there. No matter that your lawyer hasn’t been able to access the papers on the digital system, or that the CPS have arbitrarily decided (because it’s they who get to decide what’s required) that all they need to disclose at this stage is a case summary – written by the police officer investigating the allegations, not by a lawyer, and in my experience almost invariably (a) biased, (b) inadequate, (c) inaccurate and (d) NOT EVIDENCE – and a couple of statements which don’t include the crucial ones from, say, the complainant or other key witnesses.
If you’re facing an either way matter, on which the magistrates can take a plea (and will put pressure on your client to enter one), very often you will be given a copy of the case summary AND NOTHING ELSE. And be expected to advise your client on the basis of that. IT’S NOT EVIDENCE!
The all too frequent battle cry of too many judges across the country these days is, “Well, your client knows if he/she is guilty.” There are two problems with that approach.
Firstly, very often the client may not know if they are guilty or not. Many offences have complicated technical elements, all of which have to be proved before you’re guilty of that offence. Would you know straight away if you or a friend or relative were guilty of a s18 causing grievous bodily harm with intent if charged with it? What if you were defending yourself? Would you know if the level of force you used to do so was reasonable? What if you had struck out first in anticipation of being attacked? Would you know whether you were allowed to do that or if that offered you a valid defence? Would you be aware of the legal definition of what constitutes grievous bodily harm?
It’s not so easy, is it?
Secondly, the client may know if they’re guilty. But unless they tell their solicitor or barrister that they’re guilty, their lawyer probably won’t.
And that’s a problem, because we have an obligation to advise the client on the strength of the evidence against them, in order to assist them before they enter a plea – especially important now that the Sentencing Council have stuck their oar in and are by their own admission seeking to ‘encourage’ more early guilty pleas. In the brave new world of the digital case management systems, where all you’ve potentially got to go on is a case summary written by a plod with an angle when you’re expected to advise on what could be extremely serious matters, are lawyers going to be able to properly discharge their professional duties? In many cases, I suspect not.
Actually, there’s another one. Thirdly: somewhere down the line, the powers that be seem to have forgotten that it’s for the Prosecution to prove their case. Which ought to mean an obligation to serve all the evidence on which the decision to charge was based, before expecting people to plead guilty. Or has the burden of proof been swapped to the Defendant without me noticing? (In the current climate, I suppose anything’s possible…) Apart from anything else, it feels fundamentally unfair.
I’d be interested to know exactly when the members of the Sentencing Council last had to advise a client in a criminal case. Several of them have plainly never done so, the rest I suspect some time ago. Clearly, this issue has never occurred to them.
And in times when lawyers can be sued for giving negligent advice, I know what many people will be saying to their clients: “I have insufficient information to be able to advise you fully and therefore, unless you insist on pleading guilty, my advice would have to be to plead not guilty at this stage, though you must understand that if you subsequently change your plea your credit for that plea will be diminished blah blah blah…”
And what will be the likely result? My betting is more people will plead not guilty than ever. If the situation feels like it’s unfair, people will dig their heels in until the scales are balanced. Show me the evidence. And of course, that’s exactly the opposite of the situation the Sentencing Council wanted to create.
So, I’ve officially Left The Country.
(For more on the Two Fingers To 50 Tour, I hope you’ll keep reading this blog…)
I really thought that my next blog would be about some other iniquity in the criminal justice system, which the current Government is busily dismantling before the eyes of those who work in it. I never thought that instead, I would be writing about the shockingly premature death of a man whose band made what was, for me, one of the most important and influential albums of the 1990s.
2016 has so far been a pretty bad year for rock deaths. But when the news of the death of Jon Bunch, frontman of seminal post hardcore outfit Sense Field, appeared in my Facebook newsfeed a week ago, it genuinely knocked the breath out of me.
Most regular readers of my blog are probably unfamiliar with Sense Field. They are not a band who ever sold a huge amount of records, certainly not in the UK, and they didn’t play massive stadium gigs or have their songs used in TV trailers or ads for major corporates. But what they did, when they released the Killed For Less LP back in 1994, was kick-start the whole ’emo’ genre which came later in that decade and influence a whole slew of bands who became much more famous than them and then sold records by the gazillions.
Killed For Less was a massively important LP in my life for a number of reasons. I still remember the first time I heard it, 1994, in Kerrang!’s scruffy Carnaby Street offices, sitting at my old, chipped, overloaded desk when I was the Reviews Editor. The LP was on Revelation Records, so it was always going to get my attention as I was already a big fan of their catalogue (check it out here), but this was something different. From the opening bars of track 1, Today And Tomorrow, I was hooked.
This sounded nothing like the unpolished melodic hardcore tones of Jon Bunch’s previous outfit, Reason To Believe, who I also liked. This had some massive production, Bunch’s soaring vocals laying out stories of love, loss and looking up at the stars from down in the gutter. Soon the LP was rarely off the K! stereo, much to the horror of some of the more traditional metallers on the team. That year, Killed For Less saw me through two disastrous relationships and some of the most chaotic but exciting days in Kerrang!’s history. I wore out my first copy of the CD and had to purloin another, plus went through several cassette versions in my car stereo. And over the years, it’s a record I’ve returned to again and again, even after I left the music business behind.
I was fortunate to see Sense Field live several times. I didn’t know Jon Bunch personally, though, so can’t really put my finger on why his untimely death felt like such a personal blow. Maybe because the news made me put on Killed For Less immediately, taking me right back into that day in the office when I first played it, back to that seminal year of 1994, making me realise how much time had passed and how much has been lost or forgotten in those years in between.
In all the reports about Jon Bunch’s death (the reasons for which are still unclear), one thing is obvious: how much he was liked and respected by others. He was still making music, having gone from Sense Field (who should have been massive, but never were) to fronting emo rockers Further Seems Forever for a brief time. At the time of his death, he was fronting a new project, Lucky Scars, whose most recent video can be seen here.
I probably can’t put it better than Walter Schreifels has on his Facebook page – see link here – and Walter did know Jon Bunch personally. But as not all singers in rock bands are rich and leave a pot of cash for their families if/when they die, I wanted to publicise the fund which has been set up for Bunch’s young son: see here. I’ve donated, to repay in some small way the many hours I’ve spent enjoying the music Jon Bunch made.
Hopefully you can enjoy some of that too with the link here (sadly no proper video available), and perhaps understand what made me fall in love with the Killed For Less LP so irrevocably all those years ago.