Tag Archives: judges

Trussed Up

“We do not have a written constitution, but that is not to say the Government are not subject to constitutional law. A written constitution provides a degree of certainty but can also produce unintended consequences, such as the right for many Americans to carry assault weapons. As we do not have a written constitution we need the very best legal minds to rule on whether a Government has acted lawfully. Those legal minds are appointed to the judiciary. 

“When the recent litigation in connection to the EU Referendum and the decision to leave the EU began, the Government did not suggest that the matter being brought before the Court was something that was outside the jurisdiction of the Court. Nor did the Government suggest that any of the Judges who heard the matter should have been excluded from hearing the case due to their personal connections to any organisation. 

“The litigation was about the mechanism being utilized by the Government in order to invoke Article 50. It expressly and clearly did not involve the question as to whether we should or should not leave the Union. It was about whether the method that the Government sought to use was constitutional or unconstitutional. Whilst the Government do not agree that the ruling of the Court is correct and intend to appeal it, the Government do not view the decision of the Court as something which has in anyway subverted, negated or reversed the result of the Referendum. No matter what the result in the Supreme Court, the Government still intend to carry out the result of the Referendum. Brexit will still take place. 

“Essential to democracy and a free nation is the freedom of the Press. Where the Press disagrees with the ruling of a Court it is vital that the Press have the freedom to do so. But they also have a responsibility to report these matters in a way which assists the public’s understanding of the matter. Headlines that describe Judges as being “Enemies of the People” could not be further from the truth and are irresponsible. The fine, independent Judiciary that serve this nation are part of the machinery which protect each and every one of us. They protect our rights. They are part of the process which means that democracy and liberty continues to flourish in our nation.”

These are my words. Four paragraphs that took me ten minutes to write on a Sunday morning. I have done so to make the job of our Lord Chancellor really easy. She is completely free to borrow some, all or any of the words and sentiments expressed above. It is a really easy thing for her to do, which is unusual, because duties are often onerous to carry out. And this is her duty. Her duty to protect the rule of law. Her duty to inform the public (and many of her ill informed colleagues at Westminster) about the reality of the “Brexit” litigation. 

Her actual statement is breathtaking in its lack of comment on the furore that followed the judgment. The Lord Chancellor has displayed more passion in her promotion of the cheese industry than she manages to invoke in her defence of a vital aspect of our democratic society. 

There is only one judicial officeholder who should lose their job over the “Brexit” litigation. And that is one Mary Elizabeth Truss. 

One Wheel on My Waggon

“Tell me why, I don’t like Mondays?” implored Bob Geldof and his rats.

The unlikely answer is because he and the rats were barristers from Boomtown Chambers. They had come to hate Mondays because they knew that Mondays were the embodiment of the problems that beset the criminal justice system.

I know how they feel. Recent Mondays have not been kind to me. Not that how my Mondays pan out really matters in the grand scheme of things. The problem is that recent Mondays have been rather unkind to victims, witnesses and defendants. I would go so far as to say they have been cruel to (and I am now going to use a phrase so beloved by our politicians) ordinary, decent people. 

Let us make like Marty McFly and do a little time travel. Hop aboard the Delorean that is my diary for the last month. The first Monday of the month had me scheduled to prosecute a drug trial. This is a little humblebrag, this was not a couple of street deals, this was a delivery of wholesale amounts of drugs. There was a hiccup in the week before the trial when it turned out my opponent was over running in his current trial and we all agreed that the trial could go back a day to the Tuesday. The Court demanded that the case be listed before a Judge for this application so along we all trooped for the Judge and the Listing Officer to confer and announce that the Court could accommodate the case if it was pushed back by a day. 

So the calendar ticked round to Monday. 5pm on Monday to be precise. That was when the call came – case pulled from the list for lack of court time. 

The call was so late that the CPS were not able to react to it. All the officers were at court the following day, including one officer that had travelled from London. So I had quite an audience to watch me mention the case and refix the trial for March 2017. 

“Hush your moaning,” I hear you say, “this is one of life’s little blows. Roll with the punches.”

The following Monday found me boarding a train at an hour which usually finds me in bed. I rattled through some spectacular English scenery. I rolled into a different city, grateful for the fact that my bag contained only iPads and laptops rather than all the files usually needed for a three week fraud. Later in the day I reversed my journey having popped into court for a grand total of about five minutes. Our Judge was part heard with his trial from the previous week for the whole of the Monday. And, so it turned out, quite a bit of the Tuesday too. 

This one is, I admit, a personal moan. This does not impact on ordinary, decent people just odd, indecent people like me. As every barrister will know no jury sworn on the Monday meant no significant fee paid for the day. In fact my fee did not cover my train fare. 

As it happened that trial went short for other reasons. Fear not, dear reader, I had a trial in my diary for the next Monday so the mortgage was still going to be paid. Can you see what is coming? My trial on the Monday did not happen. Listing pulled it on the Friday evening. Which was a bit of a sickener for me, but probably even worse for the witness who was due to travel to court in the North West from the South East coast. 

It would, would it not, be incredible bad luck for a fourth Monday on the trot to go wrong? So this Monday was to see me once again in a far flung court to conduct a trial. I was going to be accompanied by two other members of my chambers on a bit of a chambers outing to co-defend. And I suppose that, at least, made the job of the Listing Officer a tad easier on the Friday evening, as he only had one set of chambers to call and say that the trial had been put back by a day. 

So yesterday saw three members of my chambers, all self-employed people, sitting idle. Being idle allowed the three of us plenty of time to share our thoughts via text and email when our clerk was told that the case was not going to be heard on Tuesday either and we had now been pushed back to the Wednesday. So the three of us are at a loose end today too, like a barristerial version of Last of the Summer Wine. 

This is not just a case of lunaediesophobia. Cases get pulled every day of the week. And it isn’t just me. The third Monday in this little trot of bad luck saw four trials pulled in the same court centre. So what is causing this?

On one of the rare recent days when I actually went to court and did a case I found myself in a room in the court building. In that room was one of those trolley things that people use to transport great piles of files and boxes into the building. The trolley had a sign attached to it that read “Do Not Use. Flat Tyre.” Underneath the prohibition on use was the fact that the fault had been reported to the necessary authorities……in October 2015. And there it was, tyre still flat and not fit for its intended use. 

But perfect as a metaphor for the criminal justice system. We are running on a flat tyre. 

Due to my recent experiences of cases being delayed, pulled or evaporating I have been keeping a keener eye on the lists of recent times. And I have noticed a plethora of lists that look like this….

….or this……

This is replicated across the nation. I went through the lists for court centres that I know. On Monday mornings you will see Court Centres that have eight courtrooms are only using three of them. Buildings that could accommodate ten Judges have five sitting. Large cities will have five courtrooms occupied and nine sitting vacant, whilst having three floating trials. 

This is not a case for closing these buildings. The fact is that we have more than enough work to fill them and perhaps reduce the delay from offence to trial that can often be two years. The answer lies not in allowing defendants to plead to speeding cases online, that is not going to allow the sex case to be heard any earlier. It is not the answer to allow vulnerable victims to be cross-examined early in the proceedings, that is just going to clog up more courtrooms. 

The answer is more Judges. The problem lies in the fact that Courts suffer a lack of full time Judges and are not allowed to fill the gaps by utilising Recorders (part time Judges) with sufficient advanced planning. Judges have told me in open court that the reason why cases are not being reached is because, as is shown in the list for “Court 1” above, a Recorder has not been allocated. What is happening is that an email will wing its way around potential Recorders with only a few days of notice. So often the email will be seeking Recorders to sit a whole week, or two weeks or even three weeks, with less than a week’s notice. It is no surprise when there are no takers. One would expect Recorders to be amongst the busier members of the professions. And their diaries only collapse at the last minute, when their trial is pulled because no one else has answered the call to sit at such short notice. 

I would hazard a guess that every senior criminal judge knows that the delays in the CJS are nothing short of a scandal. I would like to think that they know they have the accommodation capacity to deal with more cases. I am confident that they know with the deployment of more part time Judges more trials could start every single Monday of every single month. Instead of banging the drum for pleading guilty when we do not know the nature of the evidence, the senior judiciary should be looking at the evidence of the lists and banging the drum for more resources that would allow better forward planning. When one cannot get a case into the courtroom, it is nothing short of embarrassing to see the championing of a mobile video link van. 

Like the trolley with the flat tyre that was reported nearly a year ago, nothing will happen unless someone takes responsibility for change. That is not something I can do, it is not something the CBA can do. It is something only achievable by those who can use their independence from humdrum politics to make the case that the system is failing society. It takes the people at the very top to be honest about the problems we face and to be realistic about the solutions. It takes advocacy on behalf of a system that is central to our society, advocacy which is conducted without fear or favour. Advocacy that is conducted by those who are entrusted with the privilege of ensuring that justice is done within our courtrooms.  

The Four Retired Judges Sketch

With profuse apologies to Monty Python for this shameless hijacking of the Four Yorkshiremen Sketch. Please note that the Judges in this sketch are not from any particular county. I should also apologise to the many completely enlightened members of the modern Judiciary and practitioners at the senior end of both professions. Let us not slip back to old ways. The views expressed in this are not my views, nor are they meant to represent the views of any living person. This is one of my hamfisted attempts at satire, designed to show why the Bar and the Judiciary should not be complacent about diversity. If you find that the views expressed correspond with your own or one of the characters reminds you of yourself then that is entirely a coincidence and I apologise. That apology would not be to you but on your behalf…..

Four Judges sit together at the end of a convivial evening in the Old Bailey, a retirement home for the Judiciary in Eastbourne. Heavy crystal glasses are gripped in ageing hands. 

Judge This QC: Ahhh….very passable, this, very passable.

Judge That: Nothing like a good glass of Chateau de Chassilier wine, hey Gideon?

Judge Them: You’re right there Jocelyn.

Judge Yourself QC: Who would have thought thirty years ago we’d all be sitting here drinking Chateau de Chassillier wine, all of us former “Top Judges”……

Judge This QC: Aye, in them days it were only our fathers who were the Judges.

Judge That: Not top Judges mind…..

Judge Them: No, no. Not top Judges, remember that Maximillian’s father was only a District Registrar….

Judge Yourself QC: That’s right Gideon, but it’s never held me back, never held me back. And of course so unlike your father who was, I believe, described by the News of the World as a “Top Judge”

Judge This QC: Aye “Top Judge in Drink Drive and GoGo Dancer” scandal…..

Judge That:  As I recall it “Top Judge in Russian Spy GoGo Dancer” scandal…..

Judge Them: Yes, yes. And as you all know, he was cleared by the top man at the Ministry.

Judge Yourself QC: Ah yes, the report by Bernard Howe-Relates.

Judge This QC: Top fellow was Bernard.

Judge That: That’s right Peregrine, dear Bernie was a top fellow and wonderful cricketer, used to play with my father in the Old Garfordians…..

Judge Them: Yes, dear old Bernie, or Uncle Bumblepot as I used to affectionately call my Godfather….

Judge Yourself QC: Now when we started out it was hard to make your way.

Judge This QC: That’s right. Hard to make your way with so much to live up to.

Judge That: Nothing like the pressure to achieve more than your father.

Judge Them: Certainly not when you father was head of chambers….

Judge Yourself QC: And his father before him…..

Judge This QC: As your pupilmaster was always reminding you…..

Judge That: Ah yes, mine always said to me “Jocelyn” he would say “I always knew from our days rooming together at Haserthwicke College that your father was going places”…..

Judge Them: My pupil master constantly reminded me that he only let my father marry his sister because he could tell he was cut out for the job……

Judge Yourself QC:  But it wasn’t just the family pressure….

Judge This QC: No, it certainly was not. On my first day in chambers my father’s clerk pointed out to me that every chap from my college who had joined chambers had taken Silk….

Judge That: Mine said every fellow from my college had taken Silk and gone on the Bench….

Judge Them: The High Court Bench….

Judge Yourself QC: My clerk said everyone from my college and my school was in the Court of Appeal…..

Judge This QC: My Clerk told me you could put together a passable Old Boys Rugger XV from Attorneys-General that had been to my alma mater and reasonable Second XV from their fags who went on to be Solictor-General….

Judge That: On my first day in pupillage the clerk told me that there was a seven man House of Lords giving judgement that day who had all gone to my prep school…..

Judge Them: Now that’s pressure…..

Judge Yourself QC: Oh yes. Tell that to your average boy from a Secondary Modern and he wouldn’t recognise such pressure…..

Judge This QC: And then the slog to get work once you were in.

Judge That: Oh yes, you couldn’t rely on your LinkedIn profile…

Judge Them: Absolutely. Nor could you just sit there and await instructions from solicitors who went to the same college as you.

Judge Yourself QC: Exactly. Chaps from my college didn’t go into trade…..

Judge This QC: Precisely. It was endless hours on the golf course…

Judge That: Yes, and it didn’t stop on the course, in the Clubhouse too.

Judge Them: Half a pale ale with the Senior Partner of a firm….

Judge Yourself QC: Now those were the hard yards the youngsters of today don’t see.

Judge This QC: That’s why you did not see many lady Judges of our vintage….

Judge That: They couldn’t be in the clubhouse and in the kitchen making supper.

Judge Them: And those hips. The female hips are not conducive to a good golf swing….

Judge Yourself QC: …..not conducive……

Judge This QC: …..and anyway, lasses taking up pupillage was a waste of thirty Guineas…..

Judge That: A real waste.

Judge Them: Why waste thirty guineas on a pupillage when you were only going to pop off and have some babies within a few years?

Judge Yourself QC: Much better to spend it on a new dress or some pretty shoes!

Judge This QC: Wise words, Peregrine, wise words.

Judge That: And the Courtroom and the Robing Rooms, well, they are like the trenches, no place for a lady.

 Judge Them: No, I wouldn’t want a daughter of mine to see or hear the things that go on.

 Judge Yourself QC: In that situation men can only cope by being more of a man…

 Judge This QC: Aye, it’s the heat of the battle……

Judge That: …..the eye of the storm….

Judge Them: ……no place for shrinking violets……

Judge Yourself QC: …….or sensitive souls.

Judge This QC: If the occasional rum thing gets said, it’s a coping mechanism…

 Judge That: …..gallows humour…..

Judge Them: Nothing more than letting off steam…..

Judge Yourself QC: Like the Rugger changing room, no place for the fairer sex.

Judge This QC: Absolutely, if you can’t stand the heat, get out of the kitchen…..

Judge That: …..popping back to the kitchen…..

Judge Them:
…..the real kitchen rather than the metaphorical kitchen…..

Judge Yourself QC: ….. and leave the job to the right sort.

Judge This QC: Try telling that to the young people of today and they will not listen, they will not listen. It’s all “don’t be so all un-PC”…..

Judge That: It’s not un-PC if it’s true…..

 Judge Them: Look at the Lord Chancellor, no longer needs to be a lawyer but has always been a man.

 Judge Yourself QC: And a man that went to the right sort of university at that….shows what’s important, shows what’s important.

 All: Yes, yes.

That Was The Year That Was

This is the time of year for nostalgia. Channel Four will show top 100 hundred countdowns of all sorts of nonsense as presented by Jonathan Ross with Gail Porter giving us her views. BBC 1 reviews the year from Sports Personalities to the Breakfast Sofa.

So I have indulged in a little retrospective and read again three blogs from the last eighteen months or so. These are not blogs that I have written. These are blogs that really mean something.

The first that I invite you to read (you can find it here) is entitled Life at the Thin Edge of the Wedge and details the struggles of the most junior in the profession. It details the stresses and the strains. It gives the perfect antidote to the fatcat myth. It shows why remuneration is wrapped up with the future. It shows why diversity is under threat.

The next I suggest you read is by the wife of a barrister. It shows that the struggles can last beyond the first years. It shows that the cuts are impacting on the whole profession. It demonstrates that there is no room for further cuts. You can read the post here. A direct plea to Chris Grayling that fell on deaf ears.

The final post I suggest you read or read again is a visceral account of what has happened in the life of one junior criminal barrister. We can only hope that they have successfully transferred out of crime and have found greater financial security and peace of mind.

Now I invite you to read these posts not out of a sense of nostalgia. I ask you this question – has the position described by any of them improved in the last 12 months?

The answer is – not if they have stayed doing crime.

Yes we have managed to dodge the latest round of cuts. Yes we managed to give the Government a bloody nose. Yet have things improved?

Not one bit.

Most public service remuneration is struggling to keep apace with inflation. Criminal fees are the asthmatic kid with a club foot who comes last in every running race where inflation crests the finishing tape far ahead of him. (Before anyone complains, I am the asthmatic kid with a club foot who has never won a sprint race in his life).

Year on year the remuneration for criminal cases becomes worth less and less in real terms. Meanwhile the work expected from those undertaking criminal cases increases with every practice direction, knee jerk and window dressing initiative.

If you are someone who relies upon criminal legal aid for their income you should make 2015 the year we take the fight onwards. The fight for remuneration equal to and commensurate with the work and responsibility involved.

And if you are someone who cares about justice for victims, about access to justice for the man/woman in the street and if you care about a state becoming increasingly powerful as the individual becomes weaker then the fight has never been more important than it is now.

In a time when the “apolitical” stance of sections of the judiciary makes them appear more puppets than sentinels it is the role…. no, let me correct that…. it is the responsibility of the professions to oppose every destructive change and policy with every weapon we have. Intellect. Integrity. Persuasion. Action.

Avoiding the Cracks

Disturbing news reaches me from Aylesbury. Now there is a phrase that I have never had cause to use before. I apologise to Aylesbury if I have the location incorrect.

The news is this – in a Crown Court, believed to be Aylesbury, counsel and/or solicitors for both sides are being told that they have to attend an additional hearing, held on the last Tuesday of every month, in order to explain why their trial cracked on the day.

My blood boils.

We are used to seeing newspaper reports about out of touch Judges. That is something that always made me laugh as the Judiciary will experience more of all strata in society than most. Yet this practice demonstrates just how out of touch some criminal Judges are with the day to day realities of criminal law.

The very last thing Counsel need is yet another hearing for which they do not get paid. The very last thing Counsel needs is another commitment in their diary to juggle. The very last thing Counsel needs is to be treated like an errant schoolchild who has to explain themselves in the Head’s office.

I have cracked more trials than I have fought. If I had not, if I had fought every trial that I have cracked, I would have a diary of work from now until the day I retire (albeit that day is probably sometime when I have passed my 80th birthday).

The administration must know that the only reason why the system has not yet ground to a halt is because trials crack. A cracked trial means that tomorrow’s trial has a chance of a home. I have had more Judges thank me for cracking a trial than I have ever had thank me for running one.

The simple truth is that the opposite of a cracked trial is not an early guilty plea. It is a trial. I have sat opposite enough clients in 21 years to know that the moment of trial is the most fertile ground for advice to be tendered. You will have given the same advice months early. Yet the penny only drops at that moment.

Or you have clients that know the score. They make the decisions. They will weigh up the gamble of being able to extract something from the CPS or the prospect that a witness will not attend and decide they want to wait and see.

And when you are dealing with someone who is sufficiently chaotic that they sell drugs, decision making is not often high in their skill set. When you represent someone who would rather do an extra six months for a Bail Act Offence because they do not want to miss this Christmas and thereby guarantee they will spend next Christmas behind bars, all the talk about diminishing credit will not feature highly on their list of priorities.

I am afraid that a lack of resources for both the police and the CPS means that the full picture is only available to the advocate by the day of trial, if you are lucky. It is only then that justice can properly be served, justice to both sides. Many cases have no lawyer attached to them before this point. They languish, untouched on a shelf. It is only at the point of trial that someone is available to make the necessary decisions and will only latterly have had the information upon which to make them. That is the reality.

That politicians pretend or refuse to acknowledge this is one thing, for the Judiciary to do so beggars belief.

If you eradicate the cracked trial there is only one consequence – we are going to need a bigger court (the eagle-eyed amongst you will have spotted that I have used that Jaws based joke previously, cut me some slack, I am recycling). Get rid of the cracked trial and you are going to have to be prepared for waiting times for trial to be double what they are now. And presently that can be a long time.

I hope the news from Aylesbury is wrong. I hope that such a scheme does not exist. I hope that those caught up in it do all they can to demonstrate the folly of it.

I have always resented filling in the cracked and ineffective trial form. Have always wondered why it is not accompanied with a “Why did this trial not crack?” form. Well from this moment on I am not completing them. Let the Government gather their statistics however they chose. I am not paid to do so. I will rely upon the Judiciary to tell them the realities and not to pander to some imagined picture of the criminal justice landscape.

HHJ Switzerland

The next day of action looms large. Barristers and solicitors across the nation will refuse to attend court in an attempt to cause the Government to think again about their catastrophic changes to Legal Aid. I pause to remind you that this is not just about the swingeing cuts to lawyers’ fees although they will damage the provision of justice in this country for many reasons. It is about the overall damage that is being done; the restrictions on access to the courts, restrictions on the availability of Legal Aid and the damage to the ability of the individual to withstand the power of the state.

If you think about it for a moment it must be something pretty massive to cause Barristers not to attend court. We are a conservative profession. We wear dark sober suits, we work within courts that sometimes dress in Elizabethan garb and for many we are the very definition of the Establishment. So it is indicative of the strength of feeling, the opposition to these changes, that lawyers will walk out. Cases, even part heard trials, will be in court with no advocates in attendance.

What is the judicial response to all this? Well the way it has been portrayed to me from more than one source is that the Judiciary must remain neutral in all of this. Their constitutional position is to not take sides between the Government and the legal profession. There is a part of me that can understand that, part of me that is left puzzled. If this was just a pay dispute then that would require judicial neutrality. But this is not just about the lawyers asking for a pay rise. This is cuts to the provision of legal services below the irreducible minimum that is required to provide quality, experienced advocates in the most serious of cases. That is exactly the sort of issue that the Judiciary should have a view about. Are we right or are we wrong? Is there a noticeable drain of talent and experience in the courtrooms over which they preside? If you were to ask a fair minded member of the public if they wanted to know the views of the Judiciary I would expect them to be very enthusiastic to hear their response.

What about judicial neutrality to the day of action? I can understand that the Judiciary may not be able to openly condone and support the choice many of us feel forced to make. However neutrality over this course of action is not the same as simply ignoring it. The fact of the matter is the courts know which cases will be effected or could very easily find out. It seems odd that the administration choose not to react to it. If a pipe burst and floods the building, cancelling the following day’s sitting does not pass judgment on the pipework. It is just a consequence of events. When the court staff go on strike the Judges do not come in early, fill the water jugs, turn on the lights and we all carry on regardless in the absence of ushers and court clerks.

On 7th March we choose to exercise our right to protest. The court know this. Why drag jurors, witnesses and defendants to court when nothing will happen? I would suggest it is extreme folly for any Judge to insist on a case carrying on with parties unrepresented through no fault of their own. That is not neutrality. That is ignoring the reality of the situation.

It would appear that Leeds has come up with a way forward which can be found here. This way has not ignored it. However the prospect that a Judge will ask an unrepresented defendant whether they are guilty or not guilty before even the service of papers is an exercise of “carrying on regardless” which is breathtaking. With the greatest of respect, the modern Judiciary should not be so far detached from the realities of life so as to visit that injustice on a defendant. I am also afraid that the assistance and advocate gives in the passing of sentence is not simply the question of whether or not a defendant goes to custody.

So the Judiciary can remain neutral if they must. But that position should not be at the cost of common sense. Remove cases from the list. Close courts for the day. If it is really necessary to treat the whole episode in the way that a Victorian parent may treat a child then adjourn the cases on the day. However the Judiciary are under a duty to ensure that justice is done. Justice in the cases before them that day, justice in the cases that come next week, next month, next year. Justice may be blind but it is not without a sense of right.

Dear Damian

Dear Damian,

August is traditionally seen as the silly season in the news cycle so it was a perfect time for you to launch your policy concerning magistrates and making the criminal justice system more efficient. By that I mean such a vital policy should not be lost under the morass of other policy announcements, rather than it fitting nicely alongside stories concerning Katie Price or that nice chap with the hair in One Direction.

So my friend, you have identified one of essential problems at the heart of the criminal justice. It is important that magistrates “are routinely dealing with serious and complex cases, within their powers, rather than committing them to the Crown Court for sentencing” and that you find a way of “unclogging magistrates’ courts, for example, by dealing with the 500,000 or so simple road traffic offences out of the traditional process, freeing-up time for magistrates in courtrooms to deal with more serious offences”. Serious and complex cases are exactly what the magistrates is for, not for dealing with cases where someone is prosecuted by the state for driving matters – I mean that is virtually just an exercise in revenue raising by administrative act so should not have that whole “burden and standard of proof” thing anyway. You speak of these hearings being dealt with by a single magistrate in an office. Too right. No need for decisions that can lead to fines, points on driving licences, economic impacts on the individual’s ability to get jobs and insurance and decisions that may ultimately lead to a driving ban to be taken under public scrutiny in open court at the heart of the community. That’s not what the lay bench are for at all.

This is why your policy announcement rises above the normal silly season fare. You are restructuring the whole criminal justice system as we know it. You envisage a magistrates’ court that “routinely deals with serious and complex cases”. The Consolidated Criminal Procedure Rules currently advise magistrates “where cases involve complex questions of fact or difficult questions of laws….. the court should consider committal for trial”. So your policy signifies changes to be made that are far reaching and fundamental. No wonder you would want them to knock Simon Cowell’s love life off the front page. This is not something to try to sneak in under the radar.

In your press release announcing your brave new world you draw the attention of the press to the comparative costs of dealing with a case in the magistrates and the Crown Court. Can I suggest a simple way forward? Get some of those vans. You know, the “immigrant go home” vans? They have proved a bit controversial so get them repainted with the slogan “your worship, accept jurisdiction” and drive them in the vicinity of all magistrate courts. Magistrates have to realise they are volunteers, unlike those expensive Circuit Judge types. They are the very definition of the Big Society. And that means not committing people for sentence is cheap. Bloody cheap. I know that the Consolidated Criminal Procedure Rules state “the court should never make its decision [whether to commit] on the grounds of convenience or expedition” but it doesn’t hurt if we hammer it home to the bench that it is cheaper. The CCPR doesn’t say they can’t base the decision on costs. They probably should not say in open court but no harm giving them a nudge in the right direction is it?

One of the things that you point out is that in 4 out of 10 cases that are committed to the Crown Court for sentence the defendant receives a sentence that is less than the maximum available to the magistrates who committed him/her for sentence. So only 6 in every 10 get more than 6 months in custody when they have been committed save for pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. This is what I like to call the 666 factor (it’s an omen, Damian, an omen).

So we have the situation where a magistrate will often take the decision that they would have passed a higher sentence than is ultimately imposed by the troublesome full time, legally qualified judiciary. Not just an isolated incident but in just under half of all the cases committed. I even understand that, not infrequently, the Crown Court judge will impose a community order in cases where the Magistrates thought their powers insufficient. There are only two answers. One is to up the maximum sentence available to the magistrates. I see in your speech you dangle that tantalisingly before them. But what is much better is just to get them to rein it in a little bit. Have them think “well I would hammer them, but if I just knock a few weeks off I can squeeze it under our maximum and keep him away from that namby-pamby bleeding heart liberal soft arsed Judge and save loads of money in the process”. So we save costs and probably get a nice jump in the prison numbers. Lots of lovely short term prisoners who have little access to rehabilitative work in custody just banged up for hours on end playing Playstation. Get them in custody and get them out again to get them back in again. It is devilishly good.

Admittedly most of those defendants will probably elect to use their automatic right to appeal that sentence to the Crown Court. So the cost saving may be subsumed in to another part of the budget. But I am sure you have a plan for that. Like take away the automatic right to appeal (the devil is in the detail, Damian). It may not be justice but (to quote Franklin Sinclair) it’s not your job to care about justice. Well technically it is, but let’s not quibble over job titles.

Keep up the good work. Perhaps with all the money you are looking to save in streamlining the system you could put some money back in to fees?….. Only joking!!

Yours admiringly,

The Gardener

PS my favourite Kylie song was always “Better the Devil You Know”.

PPS it may interest you to know that if you Google “Damian Green” one of Google’s suggested search terms is “Damian Green Fiddle”. Was a little worried it was going to be one of those tricky expenses misunderstandings like your boss Chris “Split the Bill” Grayling but turns out there is a violinist called Damian Green. Funny.