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.