The Secret Barrister

by The Secret Barrister

  Quite the most unpleasant cases that we have to decide are those where the evidence is a direct conflict between a police officer and a member of the public. My principle in such cases has always been to believe the evidence of the police officer, and therefore we find the case proved.19

  Don’t assume that the bias operates solely against the Kyles of our society. The angriest defendants I’ve seen at the magistrates’ courts have been those of impeccable reputation from comfortable backgrounds who are charged with an offence based on the word of a police officer. Assaulting a police constable during a neighbourhood dispute by allegedly jabbing a finger in the officer’s face, for instance. Or being accused of driving while using a mobile phone. They turn their heads, eyes wide in burning disbelief as the magistrates unquestioningly accept the hesitant officer’s account, and reject the evidence of the defendant and his two witnesses.

  ‘But . . . that police officer lied!’ they splutter, purple-faced as they leave the courtroom. The family join in: ‘How can the magistrates not see that?’ And the defence lawyer can only nod as they fill out the appeal form. ‘I know.’

  Maybe the disparity in conviction rates is attributable to jury fallibility. They are less case-hardened than magistrates and DJs, ingrained cynicism at the ‘usual defences’ having not set in. They are perhaps overly cautious at branding someone with a criminal conviction. Perhaps even gullible. I have seen some ludicrous acquittals by juries. More than once have I enjoyed the post-trial scorn of the acquitted client whom I have advised throughout will almost certainly be convicted, or skulked out of court in shame having lost the unlosable prosecution.

  But my fear is that it goes deeper. It is rooted in a recruitment and training system which not only continues to embed a lack of diversity, but permits a quality of decision-making which is too often inconsistent, irrational and, at times, plainly unlawful.

  Let’s start with the latter, as it is on its face the least justifiable dimension of the magistrates’ court. In twenty-first-century criminal litigation where liberty is on the line, matters of law, not just fact, are decided by volunteers armed with absolutely no formal legal knowledge or training.

  The most complex legal principles and judgments, handed down by Lords, Ladies and Justices of Appeal over scores of pages ruminating on the most technical nuances of the application or meaning of the law, which will often have been argued before the Court of Appeal or Supreme Court (or its predecessor the House of Lords) over many days by the finest Queen’s Counsel in the realm, and whose ambiguities and intricacies form the subject of ferocious academic debate among the most learned legal scholars, are interpreted and applied by, using the term as neutrally as possible, amateurs. People who fancy a go. All the decisions taken in Crown Court proceedings by experienced judges – such as applications for bail, applications to adjourn hearings to obtain evidence, applications to admit or to exclude certain evidence (e.g. hearsay or previous convictions), applications to have prosecutions ‘stayed’ (struck out) for abusing the process of the court, submissions of no case to answer and sentencing convicted defendants – magistrates can try their hand at the lot. Although particularly complex legal applications and argument will, wherever possible, be shoved under the beak of a District Judge, if none is available, or if a point of law arises mid-trial, magistrates get to roll up their sleeves and make rulings of law carrying exactly the same force and weight as DJs.

  It’s easy to understand why tension is reported between mags and DJs, arising in part out of magisterial umbrage at DJs being ‘allocated the best work’ and perceived as ‘more highly rated’.20 In order to become a District Judge, you need to have amassed a law degree, a postgraduate legal qualification, vocational training, at least five years’ legal practice as a solicitor or barrister, plus usually two years of sitting as a deputy (part-time) District Judge. This adds up to at least ten to twelve years of experience in the law, which is vital; magistrates’ court law and procedure is rammed full of quirks and technicalities – many of which, incidentally, don’t apply in the Crown Court – and DJs are often drawn from the shrewdest, sharpest solicitors familiar with obscure legal technicalities that baffle day-tripper barristers visiting the magistrates’ court. The application process for DJs is protracted and punishing, comprising an examination paper traversing the darkest, most technically fiendish plains of criminal law and procedure; a panel interview, where an experienced judge will mercilessly scrutinize your powers of critical reasoning, logic, deduction and legal analysis; and a role play simulating a courtroom environment to assess your temperament, judgment and ability to cope with the chaos of the unexpected. You will also require professional references attesting to how splendid a lawyer you are. Experienced solicitors and barristers often have to go through the process multiple times, over many years, before they are deemed ready to exercise the judicial responsibilities that accompany the office.

  To become a magistrate, exercising the same powers in criminal cases, you need to fill in a form, attend an interview, demonstrate that you’ve done some charity work and show willing to sit for thirteen days a year. If you make it through the interview, you receive eighteen hours’ ‘induction and core training’, during which the rudiments of magistrates’ court procedure and the art of judging are explained, and then after three visits to watch a mags’ court in action, you’re away. Your performance will be appraised once every three years, and this appraisal is limited to a single day’s observation, often by someone you know. This was unsurprisingly condemned by the House of Commons Justice Committee in 2016 as ‘inadequate’, and by magistrates themselves as ‘woeful’ and ‘unfit for purpose’.21 Continued ‘essential training’ applies once you’ve started sitting, albeit a minimum of only six hours every three years, and its quality is reportedly dubious. As budgets are shorn, the spending by the Judicial College on magistrates’ training decreased from £110 per magistrate in 2008/9 to £36 in 201522 (as contrasted to £629 per District Judge). One magistrate told charity Transform Justice in 2014: ‘As somebody who has been involved in education all her life, I am truly shocked by the lack of professional training in what should be a professional role.’23

  The theoretical supplement to the legal anaemia on the bench is the magistrates’ legal advisor, although this is only a recent, twenty-first-century development. Each local justice area has a justices’ clerk, a qualified and experienced solicitor or barrister with responsibility for providing legal advice, support and training to magistrates. Their powers are delegated to ‘assistant justices’ clerks’ or ‘legal advisors’, one of whom sits in each courtroom and provides legal advice to the magistrates. The legal advisor must be a qualified solicitor or barrister (although they do not need to have actually practised), and has various delegated powers of case management that they can exercise on the magistrates’ behalf. Good legal advisors effectively run the courtroom. If you inveigle yourself into their good graces, they can make your day a lot easier, and shepherd the magistrates towards a sensible way of operating. But their powers are ultimately only advisory. By contrast, in the Crown Court legal decisions are made by the judge, and the jury is told it has to accept the judge’s directions as to how the law applies. In the mags, JPs can – and often do – disregard or misunderstand the entreaties of their learned colleagues with abandon. I’ve lost count of the times I’ve locked eyes with a legal advisor and watched their eyebrows ascend to the heavens as a magistrate reads out a decision wildly ignoring the legal advice patiently explained to them just moments before.

  In Kyle’s court, for example, on just one morning we enjoy a parade of errors. The first trial on my list is prosecuting a man, John, who was stopped on the street late at night carrying a baseball bat, and has been charged with possessing an offensive weapon in a public place. His defence is that the bat was being carried only to scare off some youths who had been causing trouble outside his home. In law, a baseball bat only qualifies as an ‘offensive weapon’ if the holde
r intends to use it to cause injury – using it to scare is not enough. But one of the magistrates thinks he knows otherwise, and tries to persuade John’s solicitor that John should be pleading guilty as ‘that’s definitely not a defence’. Fortunately, the solicitor and I stand our ground until the legal advisor checks the law, realizes the error and reins the magistrate in. But had John been unrepresented – as many people in the magistrates are due to severe restrictions on legal aid – a guilty plea might well have been extorted from him. He could have gone to prison for something that was simply not a crime.

  At the other extreme, an unrepresented defendant attends and pleads guilty to a motoring offence. The legal advisor looks at the form that the defendant has filled out and wrongly muses that he may in fact have a defence in law. It falls on me to point out that the defence he is thinking of was repealed by Parliament over a year ago.

  Another trial later in the day involves an assault on a girl in a nightclub. At the start of the trial, the defence solicitor applies to adduce evidence of, and question the complainant about, a caution that she was given for theft years ago. The legal test for introducing ‘bad character evidence’ of a complainant is stringent: the court must be satisfied either that it is important explanatory evidence, without which the court would find it impossible or difficult to understand other evidence in the case; or the evidence must have substantial probative value in relation to a matter which is of substantial importance in the context of the case. In other words, the evidence has to be especially relevant and especially important. The rationale is obvious – witnesses should not be cross-examined about matters having nothing to do with the instant allegation where there is minimal or no relevance. As I tell the magistrates, an aged caution for shoplifting falls several miles short of either of these tests. Nevertheless, as the bench huddle together to deliberate, an audible failed sotto voce leaks: ‘It sounds interesting.’ Thus, the carefully crafted legal criteria are supplanted by human curiosity, and the poor girl spends half an hour being wrongly and unnecessarily humiliated under cross-examination by a bullish defence solicitor.

  And today is not unusual. It reflects, I’m afraid, common experience of the magistrates’ court. On another day, when I’m prosecuting a trial, one of the wingers on the bench interrupts three questions into my opponent’s cross-examination. ‘That,’ he says sternly, ‘was a leading question.’ The defence solicitor and I look at each other, and then to the legal advisor, who very gently reminds the magistrate that cross-examination is, since time immemorial, a series of leading questions. On a separate occasion, a defendant who turns up five minutes late to his trial due to rail delays is, entirely unlawfully, refused entry to the courtroom, forced to sit outside as he is convicted in his absence.

  Magistrates would say that they are entitled to better service from their legal advisors or the lawyers in court. They may further point out that such errors in law as do occur can, if they lead to wrongful convictions or acquittals, be appealed to the High Court, and that statistically very few cases are successfully appealed. But the latter point overlooks that a route of appeal is only meaningful if you are aware of it; many unrepresented defendants are not even aware of the errors, let alone the means of redress. Often, because of the way in which cases are rushed through – which we shall turn to shortly – errors are missed by the lawyers too.

  And while it is no doubt right that legal advisors, solicitors and barristers will on occasion be responsible for magistrates wandering off the beaten legal path, often they receive the right advice, but fail to apply it. And I understand – law is complicated. But that is the point. Like science or medicine, a comprehensive grounding in law is not something that you can absorb on a crash course. Many magistrates are talented and brilliant people in their individual fields; a friend once told me in chambers that after he had sat bemoaning the ineptness of his mags while they were out deliberating, the legal advisor had taken him aside and told him that the chair of the bench was a neurosurgeon, admonishing, ‘Bet you feel pretty silly now.’ But that misses the point. No doubt that gentleman’s next patient would find little comfort in looking up on the operating table to see me brandishing a scalpel and cooing, ‘It’s fine, I’m a barrister. But I’ve done a weekend residential in Troon and there’s a junior doctor in the corner whose advice I might listen to.’

  The comparison, although flippant, bears consideration. In what other area of public life do we allow amateurs to carry out the functions of qualified and regulated professionals? No one sensibly suggests that we keep education cheap by using volunteer teachers. We don’t allow have-a-go anaesthetists working in PFI hospitals, the cost of which has been helpfully suppressed by contracting DIY architects and someone who read the ‘Engineering’ page on Wikipedia.

  But when it comes to criminal justice, we are happy to subcontract laypeople to perform a strictly legal function. What is more, experience suggests that the filtering and training process places insufficient emphasis on broader, but equally vital, skills of logical and critical reasoning.

  Officially, the criteria that the Local Advisory Committees – the body of magistrates responsible for recruiting magistrates – are supposed to apply are listed as ‘good character; commitment and reliability; social awareness; sound judgement; understanding and communication; maturity and sound temperament’. But there is no critical reasoning test, as is now common in most professional or managerial job applications, and those who have been through the process have commented that there is a fixation on how much ‘voluntary work in the community’ you’ve done. A criminal solicitor colleague who applied was rejected on the grounds that, due to her eighty-hour professional workload, she had not done enough ‘non-legal voluntary work’ in her non-existent free time.

  Inevitably, when you have a recruitment system which prizes whether you ran a tombola over your capacity for legal analysis and critical thinking, you will end up with a disproportionate number of successful candidates whose ability to make correct inferences, recognize assumptions, make deductions, come to conclusions and interpret and evaluate arguments is lacking, to say the least.

  It’s an accepted, trite fact of criminal practice – if you spend a day before a lay bench, you will come away with a sack full of logical fallacies, streams of consciousness and contortions of rationality with which to regale your colleagues in chambers that evening.

  Which brings us back to Kyle, who is eventually bundled in to my court to be dealt with. He pleads guilty to a charge of being carried in a vehicle taken without consent, and after I briefly outline the facts to the bench, Kyle’s solicitor stands to mitigate. The submissions are frank: Kyle wants to go to prison. He has tried his best on his existing community order, but has fallen short. He doesn’t feel he has the discipline to cooperate with probation and do unpaid work. He’s the broken product of a broken society for whom there is no hope. He invites the court to send him to a Young Offender Institution.

  The screaming subtext to those in the know is that, to Kyle, sitting around listlessly with his mates in a YOI for a few weeks appears far less onerous than dragging himself out of bed and getting the bus to the Probation Office to meet his supervisor twice a week for the next six months. The immediate horror of first-time prison would disabuse him of this, but having never tasted custody before, Kyle is sure that it’s a doddle.

  The magistrates, though, seemingly cottoning on to Kyle’s masterplan, are not so quick to dismiss Kyle’s pessimism in his own capabilities. ‘Listen here,’ the chair of the bench addresses Kyle directly, ‘we don’t want to lock you up. You’re a young lad with a bad past, but we’ve read a lot about you in your previous probation reports, and we think you’ve got prospects. You’re bright. You’re intuitive. If you put the same level of commitment into bettering yourself as you do relieving motor vehicles of their satnavs, you could make something of your life. So we’re going to ask you – please Kyle, say you’ll accept Probation’s help, do the unpaid work and we
’ll let this community order continue.’

  Kyle is unpersuaded. He responds in person. ‘I can’t do it.’ Not just won’t – can’t. It’s beyond him.

  ‘Nonsense, young man. Your probation officer in this report says . . . in fact, can we get the officer to court?’ A relay of messages to the court Probation Office confirms that Kyle’s supervisor can get here within the hour. The case is stood down for us to crack on with another trial. An hour later, the probation officer is in the witness box, joining hands with the mags as they all vainly coax Kyle into agreeing to do the work. But to no avail.

  The mags are not to be defeated. Thinking on their feet, they yank out the big guns. Is your mum with you at court today, Kyle? Of course she isn’t. The parents of the Kyles of this world never are. But could she get here, if we stood the case down for another hour?

  Two hours later, Kyle’s mother arrives in her pyjama bottoms. She is swiftly commandeered by the bench for their cause, and joins the chorus of pleas to her recalcitrant son. You’re a good boy at heart. Don’t be like your dad and your brothers. Make something of yourself. Come on, Kyle, they evangelize. We believe in you. We believe. We. Believe.

  At 6 p.m., some four hours after the hearing started, Kyle’s resolve slips. A ‘maybe’ quickly tumbles into a ‘yes’, and, to general astonishment, this truculent bulldog of a youth appears to transform into the scared, weeping, bruised child that the bench had seen hiding deep inside. ‘I do want help,’ he sobs. ‘I don’t want to spend my life in and out of prison. You’re right, mum. You’re right, your majesty [the best distortion of a magistrate’s honorific that I’ve ever heard]. I’ll do it. I’ll do the work.’