Tag Archives: magistrates

Auto Pilot

The Court of His Honour Judge Parr-Teeline QC in the Crown/Magistrates’/Civil Justice/Family Court sitting at the  Georgraphical Area known as “The North”. It is 8:32 am on day 1,735 of the Flexible Operating Hours pilot scheme. There is the customary knock on the door and all stand for the Judge. All, that is, bar one advocate who has his head on the desk and is snoring loudly. 

HHJ P-T QC: (coughs loudly) Mr Van-Winkle…ahem….(louder) MR VAN-WINKLE

Mr Van-Winkle wakes with a start and leaps to his feet. He pulls his gown tight around his body in a defensive cloak. 

MR V-W: Very sorry Your Honour, I was involved in a sentence in Her Honour Judge Worker’s evening shift court last night and it hardly seemed worth heading home so I got my head down here. Seemed a more efficient way of deploying the Court Estate. 

HHJ P-T QC: No problem, Mr Van-Winkle, but perhaps….just….(the Judge points to his own wig)

Van-Winkle’s hand feels the top of his head where he discovers a Victorian style night cap. He quickly whips it off and replaces it with his wig. The Judge now addresses the Court Clerk.

HHJ P-T QC: Right, can we have the defendants into the dock please. 

The Court Clerk stands and speaks loudly enough for everyone to hear. 

CC: I am sorry Your Honour, they haven’t been produced. Apparently the van bringing them here set off at 5.30 this morning but had to drop off at two other local courts and pick up from the overnight midnight remand court. I am told they won’t be here until 2.30 this afternoon. 

HHJ P-T QC: I am sorry, you said “local courts”. How on earth can it take until 2.30 to get here from two other local courts?

CC: Well, since the FOH pilot has been running, coincidentally one or two buildings have been mothballed. The nearest court to here is 100 miles away. 

HHJ P-T QC: Right, well, we will just have to put this case back to 2.30 and we will deal with it then. 

CC: I am sorry Your Honour, but this afternoon this courtroom is being used by His Honour Judge Tardy for day 12 of a 3 day burglary trial. They lost 8 days due to counsel drafting formal admissions and having conferences. They used to do it over lunch, but of course there isn’t a short adjournment any more. Only long ones. 

HHJ P-T QC: So I can’t sit in this courtroom at a time to accommodate an entirely predictable but unforeseen hiccup?

CC: No

HHJ P-T QC: That’s not very “flexible” is it? (becoming somewhat exasperated) We will just have to sit in Court 2…

CC: Ah. Again, a problem I am afraid. Court 2 is the Parking Dispute Hub between 1.15 and 2.30. Then it is sitting as the Tribunal of All Things between 2.30 and 3.30, is hosting a children’s tea party between 3.30 and 4.15 and then is sitting as a Magistrates’ Court until 7pm. Then it becomes the Wizengamot. Harry Potter is in trouble again. 

HHJ P-T QC: But this is still the Crown Court, right? Where we do Crown Court cases? Criminal cases? That do not always start and finish on time? 

CC: If Your Honour wants to look at it from a purely jurisdictional silo point of view….

HHJ P-T QC: A what?

CC: A jurisdictional silo point of view….

HHJ P-T QC: Yes, yes, yes. I heard what you said. But what does it mean?

CC: I dunno. I read it somewhere. You’re the Judge. You are meant to know what it means. 

HHJ P-T QC: I think you may need to lay off watching those old episodes of The Office…Anyway, let’s see if I can make some progress with just counsel. Who is for the first defendant?

(The Courtroom is in silence, apart from the faint sound of heavy breathing as Mr Van-Winkle has nodded off again)

CC: Now I can help you there. Counsel for the first defendant is Miss Life-Balance. Or it was. We have been informed that she has had to leave the Bar because it became impossible to find child care that fitted around the uncertain hours so it is now Mr Tether.

HHJ P-T QC: And where is Mr Tether?

CC: He emailed the Court this morning. If I can just read the email to Your Honour….

The Court Clerk bends down and begins to read from his computer screen

CC: Yes he emailed to say that the only train he could get that arrived on time for court left his hometown at 4.45 in the morning and involved three changes. He says that if you think he is staying overnight for a mention for which he doesn’t get paid then you’ve got another fuc….well, another thing coming. He then goes on to say that he couldn’t do anything anyway as they only found out that the case was listed at this time late last night because he was in the Mags until 8pm. Then there is some more swearing. A bit more swearing. Then he explains that, having got up at the crack of effing dawn to get the effing train, in fact it was effing-well late and he missed one of the connections so now won’t be here on time, despite having not slept and that if this causes a problem you can go….swing….. yes “swing” probably covers it. May not do justice to his full phrase, but you get the gist. There is then a whole paragraph about why the trains are delayed and swears quite a lot around the name “Chris Grayling” and repeats the phrase “what do you expect if you put him in charge of anything”….

HHJ P-T QC: ….that much the Court can take judicial notice of…..

CC: ….and he finishes with a plea that no matter what, could Your Honour refrain from ordering any more skeleton arguments because he has a 9.30 morning videolink hearing tomorrow, followed by a 4.30 videolink in the afternoon and a floating trial the rest of the week that he thinks may float either in the morning or the afternoon, not that he “effin cares any more” because “it doesn’t make a difference what I think as I am the bottom of the pile and no one listens” before he signs off “Up Yours, Enda Tether”. 

HHJ P-T QC: There is nothing else for it but to adjourn this hearing until next week. I myself am not sitting but…

(The Court Clerk rises to interrupt)

CC: Just one small problem for next week….

HHJ P-T QC: What is it? Is the Star Chamber sitting in this courtroom? Are they judging Crufts in here? Is the court needed to accommodate the Supreme Court? Are we hosting the Salem Witch Trials?

CC: No Your Honour, the courtroom is free to hear Crown Court cases….

HHJ P-T QC: What’s the problem then?

CC: With Your Honour being on holiday we haven’t got any sitting days left in the budget…so although we have plenty of space in the building…we don’t have a Judge…..

HHJ P-T QC: (bellows) OH FOR FUC…..

(At this point the transcript becomes unintelligible as Mr Van-Winkle emitted a loud snore. Mr Tether is believed to still be somewhere on the Rail Network. Miss Life-Balance now has a job where she is treated with respect and consideration. This is a new sensation for her.)

Co-efficiency of Inefficiency 

I have now been a barrister for twenty-two years. That is a frightening thing to see committed to writing. It is probably in my Top Three Worst Things To See In Writing alongside “Jaime is bald” and “you will never fulfill your dream of playing cricket for England”. The only comfort I have is that one of those things is not true. 

Another comfort is that, in my twenty-two years as a bald, non-Test playing lawyer, I have never had to attend a Saturday court. For the uninitiated, the Magistrates’ Court sits on a Saturday morning to deal with those locked up in the previous 24 hours or so. The time limits that apply to the post arrest detention of suspects means the legal system cannot have a full weekend off. 

So the courts sit, local justice applies and Bench, lawyers and staff give up their Saturdays to run a little corner of the justice system whilst the rest of us watch James Martin chat to Ken Hom. 

I am told there has been a recent efficiency drive. That efficiency drive could be otherwise stylised as a “cutback”. Cutback is another word for “austerity mad bit of madness”.  When I first wrote that sentence I finished it with the word “bollocks” but, on reflection, “madness” is more becoming of a bald, middle-aged, jurisprudential, right hand batsman, like myself. 

This austerity mad bit of bollocks, sorry, madness, means that each of the local courts no longer sit on a Saturday. Only one does. So last Saturday only Manchester sat, as opposed to Manchester and Bolton. So Bolton cases went to Manchester. 

As luck would have it, I have been instructed in a Bolton case that appeared in Manchester Saturday court last weekend and was sent to Bolton Crown Court for this forthcoming Monday. And so that is what I am booked to do on Monday, go to Bolton and do his prelim. 

Anyone that has ever tried to move a prelim to coincide with the availability of counsel will know that, once the Magistrates have sent the case, the date is set in stone. Particularly with a defendant in custody. It is something to do with the remand order. So if Manchester Mags send a case to Bolton Crown Court for this Monday, it happens this Monday. 

Or not. 

Because, at the moment, it ain’t happening Monday. Because the papers have not travelled the ten and a half miles from Manchester to Bolton in the week since the case appeared in the Mags. Because that means the case isn’t listed. And because the case is not listed, as my clerk discovered this evening, I am not working on Monday. 

This never happened when cases appeared in the court local to the Crown Court. But let us not allow efficiencies get in the way of efficiency. This is, yet again, an illustration of how cuts, in fact, slash. Yes money has been saved by not opening one building for half a day. But the efficient working of the system has been slashed by the Freddie Kruger-esque hand of an austerity mad Lord Chancellor. 

And I am not in court on Monday because of it. Nor can I guarantee that I will be available to do the prelim when finally the papers arrive at the Crown Court. And will I be able to put the case back to when I can? Oh no, because that would be inefficient. 

Oh well, at least there is still the outside chance I can play cricket for England. 

The Trial Tax

Parliament has dissolved and most lawyers are grateful to see the back of this administration. We all live in fear of what faces us come 8th May. But even to the last moment this Government produced a kick in the Crown Jewels of the Criminal Justice System. 

You can be forgiven if the Criminal Court Charge snuck up on you. The Lord Chancellor just squeezed it out in the dying days of this session of Parliament. For the legal geeks amongst you (collective noun is a “langhorn of lawyers”) the Criminal Court Charge was created by Section 54 of the Criminal Justice and Courts Act 2015 which was commenced by statutory instrument No 778 that was laid on 19th March and brings the section into force as of 13th April 2015. 

Hot on its heels came SI No. 796 which gave us the full, terrible detail of the Charge itself. Likewise that was laid on 19th March. And the upshot of that is the figures being charged are not the subject of debate before the House. 

It would be difficult to pick the lowest moment of this Lord Chancellor’s dreadful reign. This is a serious contender. Let us make no bones about this – the Charges that he has elected to introduce amount to a tax on the right to trial. Where Thatcher had the poll tax, Cameron and Grayling have the Trial Tax. 

This piece of political, and I have searched long and hard for the right words for this but can do no better than, this piece of political bollocks (sorry Mum) is anti-democratic, discriminatory, unfair and utter….err….bollocks. 

Why anti-democratic? Well it is patently designed to force people to plead guilty based upon their ability to pay. A guilty plea in the mags will set you back £150 or £180. A trial will set you back £520 or £1,000, if you lose. So the advice given will deal with sentence, prospects of success and then the price comparison. “But I haven’t got a grand,” the client might say, “so I can’t risk it, I’m innocent but I just can’t afford it if I lose. I am going to have to plead.” Your good character is priceless, but unless you have MasterCard, the price of defending it is prohibitively expensive. 

Is this just scaremongering by me, a bleeding heart lawyer bathed in self-interest? No. This is the view of Richard Monkhouse, Chair of the Magistrates’ Association. That is the Magistrates’ Association. MAGISTRATES. Not exactly a well known hot bed of bleeding heart liberals. 

So that is the State, imposing a financial burden that may cause innocent people to plead guilty based upon their wealth. Terrifying. 

How on earth can I suggest that it is discriminatory? Well this is going to hit hard working people who want to get on a damn site more than the old lag who knows all the court staff by first name. Most recidivist offenders do not think through the consequences, most are not put off offending by the prospect of going to prison and most will not pay a penny of their Criminal Court Charges that will mount and mount. That’s why the Government estimate that by 2020 there will be one billion pounds of unpaid charges. 

So who will pay it? It will be paid by hard working people who want to get on. Are you a plumber caught speeding? Going too fast for a fixed penalty? That will be £150 on top of your fine, your points and the Prosecution costs. Are you a fifty five year old accountant involved in a dispute with your neighbour where tempers get frayed and you find yourself charged with using threatening or abusive words? Fight a trial to clear your name and lose? That’ll be £520. On top of your legal fees, because there is no way this Government will provide you with legal aid. And because these people are otherwise hard working, decent people, they will obey the order of the court and pay the price. So it is a Trial Tax that will fall heaviest on previously well behaved members of society. 

Unfair, you hear me cry. What’s it got to do with fairness? Everything. Absolutely everything. The justice system has to represent the best that society can be in terms of representing fairness. It has to represent better values than the values of those it often seeks to punish. And automatic, mandatory impositions of financial burdens without any consideration of ability to pay just offends against fairness. 

But it is not just that. It is so arbitrary. It is so wrong that the same has to be imposed, no matter what the circumstances. So old lady who reverses her car and injures a cyclist gets prosecuted for due care. Her trial takes 45 minutes. She loses. £520. So old lag is drunk and disorderly, struggles with the police officers on arrest and then damages the cell he is put in. His trial runs into a second day. He loses. £520. 

And it goes on. ABH trial in the magistrates that last two hours? £1,000. Murder trial in the Crown Court that lasts two MONTHS….. £1,200. That is 39 and 1/2 days extra court days for the bargain price of £200. And the murderer is likely to qualify for the provisions that allow the charge to be remitted after two years because (1) his earning capacity is somewhat reduced and (2) he may not pick up any further convictions whilst in prison. 

How about the unfairness to the man who, after trial by jury, is acquitted of the indictable only offence and only convicted of the either way alternative? An alternative he may well have been prepared to plead to in the Magistates. Any discretion there? No. None. He pays £1,200 for the privilege of being largely vindicated. 

And what of the false accuser? Should they not pay for their use of the court system upon acquittal? Or even just the witness that does not turn up so the case gets dropped. The witness that calls the police out, gives a statement and then just can’t be bothered. Why on earth should they not pay?

If all of the above does not satisfy you that it is utter bollocks then also consider this. The court charge will be creating potentially preferential debts that will impact upon confiscation proceedings. There is no provision for how the hearings to determine whether to remit the charge will work. Who is going to pay for that? How much is it going to cost to record, monitor and pursue the charges that have been imposed?  What is the Lord Chancellor even trying to achieve?

That last bit is easy. Just before the election he is trying to look tough. He is trying to say “look at me, making criminals pay.” It is utter political bollocks. His own department states that by 2020 it could raise £135 million annually but they will be owed £1 billion by that time. Even he does not believe the first bit. If he did, he would not have to cut legal aid further would he?

This is an ambitious politician using the justice system as his political plaything. Lots has been made of having a non-lawyer as Lord Chancellor. Lots is made as to whether Labour or Conservatives are to blame for that. But this is what you get when you allow politicians to play with basic concepts of justice. This is the result of this abhorrent Lord Chancellor caring not one jot for the precious system he swore to protect. 

I don’t know how any lawyer, of any discipline, of any political persuasion, could step inside a polling booth and put an X against any politician who does not decry this false Lord Chancellor. I do not know how any lawyer could vote for someone from the same political stable as the nakedly ambitious and wickedly reckless political animal that is Chris Grayling. 

I do not care who you eventually vote for. Just make sure it is a vote that consigns this Government to Opposition and then do everything you can to lobby the new administration to undo the damage done by this spiteful regime. Starting with the Trial Tax. 

 

Three Little Anecdotes

One of the many allegations levelled at those who oppose the Government’s proposals on Legal Aid is that our evidence is purely anecdotal. The Government like statistics. Unless they do not like the statistics, in which case they become anomalies.

This is not anecdotal evidence. I simply want to tell you a story. My story begins with a caveat. This is not intended as a criticism of the Lay Magistracy, their court clerks or the CPS. It is not a criticism of those involved.

Once upon a time I had a pupil. Now that pupil is all grown up. Her practice accelerated, overtaking that of her pupil master. Her last two cases were far more serious than anything I had ever been entrusted to prosecute. One of them was more serious than any of us are ever asked to prosecute. I say her last two cases because sadly, and I hope temporarily, she is no longer in full time practice. But that is another story. The last thing I say about that here is if the authorities do not believe that there is a drain of young talent away from the criminal Bar I can put you in touch with a number if Judges and you can ask them about the fact that my pupil is not in their courtrooms any more.

As I say, I digressed. One day I was not in court and pupil was nearing the end of her first six. I suggested that we went to the magistrates to watch a traffic court as I anticipated that prosecuting as an agent may well occupy her early months. We took our seat at the back of court, the only people in the public gallery.

We saw three cases. Just three. The court was being prosecuted by an associate prosecutor. For those who do not know what that means they are not fully qualified lawyers. They are often able, often very experienced, but not legally qualified. They are not extensively trained. Therefore they are cheap. The magistrates sat as a trio of lay members. The Court Clerk was the only person legally qualified in the room in an official capacity.

The first case was called on. An Asian gentleman answered the call. He was not represented. As the court began its process it immediately became apparent that the defendant did not speak English. The court clerk, quite sensibly, told the bench that the case would have to adjourned to provide an interpreter. With the leave of the bench the clerk took the defendant outside try to explain to him what was happening. The magistrates remained on the bench. The Chair announced to the room (at this stage only the prosecutor, my pupil and I remained) “if they don’t speak English, how do they expect to drive in this country?” I must confess that is an anecdote and one which reflects badly on one person.

The next case was also called on. A typical magistrates case. A man had been stopped by the police and issued with a notice to produce his licence, insurance and MOT to the police station within a certain time. The documents had not been produced. The person named on the form was then summonsed to appear at court. Often it is claimed by the person summonsed that someone else has given their details to the police.

The defendant who came in to court for this case was, by my estimate, about five foot tall. He had a bushy black moustache and wiry, explosive grey hair. He was comfortably in his fifties. He was also an Italian who did not speak sufficient English for the purposes of explaining his case. He was not represented. It was obvious he was saying it was not him driving that day. Again the court clerk suggested an adjournment to obtain an interpreter. Again she left the court to explain to him. I held my breath as to what the chairwoman was about to say….

Fortunately the prosecutor spoke this time. She explained to the court that the adjournment may also prove useful. The officer who had spoken to the driver had helpfully written a description on the back of the police copy of the notice. It transpired that the driver was not wearing a top on the day he was stopped. Part of the description revealed that the driver had a distinctive mole on his chest. The prosecutor suggested that in the period of the adjournment the officer could visit the defendant and check whether he had such a mole. A sensible suggestion. To prove her point the prosecutor then read out the description “Male, white, 20-25 years old, short black hair, 6’2″ tall. Shirtless. Distinctive mole on chest.”

My head sank again. My pupil looked at me to make sure she was not the only one to have thought the case could and should have ended there and then. Even if, by sheer coincidence, our little Italian friend had a mole on his chest he was not the man stopped by the police.

The next case to be heard was a case of no insurance. A lady came in to court. The prosecutor explained the case to the court. This defendant was unrepresented but did speak English. She began to explain the circumstances by which it transpired she had allowed her insurance to lapse. Quite correctly the court clerk explained to both the bench and the defendant that this did not amount to a defence or special reasons. Special reasons are reasons of a particular type that would stop the court having to impose penalty points on the driving licence of the offender.

It transpired that the lady already had points on her licence. The minimum points for the offence of no insurance would lead to her being banned under the totting up provisions. This was explained to the defendant. She was asked if she had anything to say by way of mitigation. She began to cry. She began to explain some of her personal circumstances. I will not rehearse them here. They were truly deserving of sympathy. However they were not special reasons and were did not amount to exceptional hardship. Undoubtedly some tragic things had happened in her life. They clearly had an impact upon the chairwoman of the Bench as, unprompted and without consulting her colleagues, she suddenly announced “it’s alright Tracey, we’ll find special reasons.” Despite this being wholly outwith of the law and the procedure, the magistrates duly found special reasons and Tracey kept her driving licence.

Now people may say that they are glad “common sense” prevailed and Tracey got to keep her licence. I did not leave the court room feeling that any great injustice had been done. What I was left with was the feeling that I was witnessing cut price justice. Society had deemed that driving matters did not require the expense that having lawyers on both sides of the case could bring. However I also witnessed the fact that underinvestment can cause undue delay and cost (little Italian man should have been acquitted there and then). I also saw that it was too easy for the magistrates to apply the law as they saw it, rather than as it actually is.

The reason why I tell these stories now are because our system is being developed in a way that such cut price justice is being introduced to deal with more and more cases. What began as an insidious creep is now a full scale gallop. What I witnessed that day was not adequate. I fear that the rush to the bottom being encouraged by the Government is going to spread such inadequacies right the way through the justice system.

I know that these are only anecdotes. I know that they would be dismissed by The Lord Chancellor. I will have to remember that the next time that I am asked to prosecute a case based only on eye witness accounts. “Anecdotal,” I’ll say, “No Evidence Offered.” If The Lord Chancellor would prefer statistics then I can say to him that 3 out of 3 cases I witnessed that day suffered due to the lack of proper funding. I have no doubt, and the Bar Council’s survey demonstrated, that the public want a properly funded criminal justice system. The public, this nation deserves a justice system which is better than adequate. It is the responsibility of the Government to provide it. Even in times of austerity.

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