The bench smile at each other. They smile at Kyle. Kyle smiles at mum, who smiles at the probation officer, who smiles at the solicitor. Had I a dancing partner, I’d smile at them too. This is what summary justice is about. Rolling up sleeves, solving problems and improving lives. ‘We have to formally “retire” to consider our decision,’ the chair winks at Kyle with a grandfatherly twinkle, ‘and we’ll be back in a moment.’
I still do not know, all these years later, what happened in that retiring room. Nor do any of us in court, least of all the incredulous legal advisor who had to get the chair to repeat twice what he was saying. But they return stony-faced and send Kyle down for nine weeks.
This was a particularly incomprehensible decision with which few magistrates reading would agree, which is why Kyle’s case has stuck with me through a myriad of the merely semi-bizarre. But a much bigger, recurring problem relates to the most basic fundament of the criminal trial – the burden and standard of proof. The prosecution must prove their case (burden of proof) beyond reasonable doubt (standard of proof). They must make the fact-finders sure of guilt. Juries are directed that anything less than sure means they must acquit. This is hammered home remorselessly in every criminal trial, by every advocate and every judge; in every speech, in every summing up. Its centrality and pervasiveness cannot be overemphasized. If you think the defendant might have done it, the defence barrister hams it up for the jury, he’s not guilty. If you think he probably did it, he’s not guilty. If you’re almost sure he did it, he’s not guilty. Only sure will suffice for a guilty verdict, ladies and gentlemen.
Magistrates, unlike juries, are required to give reasons for their verdicts. And these reasons are instructive in observing how the magistrates’ cogs are whirring as they grapple with this straightforward, unassailable principle of British justice.
The standard formulation you hear intoned by the chair upon a guilty verdict, which for its ubiquity I can only assume is instilled at gunpoint during training, is the classic: ‘We preferred the evidence of the prosecution witness[es] to the evidence of the defendant.’
This I have never liked, ‘preferring’ being to my mind some distance short of ‘being sure of’. But its vagueness at least disguises the cognitive rot that might be lying beneath. Unlike this candid descent into tautology: ‘We preferred the evidence of the complainant, because she is the complainant.’
Or this departure from orthodoxy, from a friend’s trial: ‘We weren’t sure whether to believe the defendant or the complainant. We find the defendant guilty.’
And, my personal favourite, which I took home with me from the heart of rural Wales and will treasure forever: ‘Well, we’ve had a think about it, and we reckon you probably did it. You did, didn’t you? Go on. No? Well we think you did.’
The quality of magistrates’ court justice cannot, however, be attributed solely to the figures on the bench. They are but three of many players on a stage without director, script or functioning sound and light, blindly dancing to an increasingly shrill imperative that they must process more cases, more quickly, with far fewer resources. Between 2010 and 2016, the politically unimportant Ministry of Justice was required to implement budget cuts of over one third, the hardest-cut department second only to the Department of Work and Pensions.24 As it slashed court staff and closed magistrates’ courts with gay abandon – reducing the number of magistrates’ courts from 330 to around 15025 – the only clear route through has been to stack cases even higher, and sell ’em even cheaper. Court listing officers cram trials into the list with apparent disregard for the immutability of time and space, and with what can be most charitably characterized as dazzling optimism as to the speed of the magistrates. Because every decision has to be taken collectively by the three magistrates, the most straightforward, which a judge would make on the spot – such as calculating a fine using the Sentencing Guidelines – is subject to the same protracted choreography; the mags listen politely to the counsel of their legal advisor, rise, shuffle out to their retiring room, enjoy a cuppa, summon the legal advisor to remind them of what they’ve already heard, discuss their decision, summon the legal advisor to remind them how to fill in the relevant form and shuffle back into court any time between ten minutes and two hours later to hand down their decree. In 2011, an MoJ-commissioned report found that District Judges get through cases an average of 43 per cent quicker than lay benches; in the field, the discrepancy often feels much greater.26
It is not uncommon for trial lists to therefore contain twice or even three times as much work as can physically be accomplished, leaving only three possible conclusions. Some trials will ‘naturally’ resolve, through late guilty pleas or prosecutions collapsing for want of evidence/witness problems. The bulk of the remainder will be hurried through at breakneck speed, often regardless of whether the parties are ready. And those that simply can’t be accommodated before the security staff go home to bed (I’ve been at magistrates’ courts until 9 p.m. waiting for verdicts) will be adjourned, the witnesses sent home and commanded to return some months into the future, when the lottery starts afresh. If a trial goes part-heard – if it is started but not completed in a single day – it will be adjourned to resume not on the next day, as happens with Crown Court trials, but on the next day convenient to the magistrates and the court. Rather than insist that their assumed public function requires mags, like juries, judges and lawyers, to work around their personal or professional commitments, a lengthy diarising process ensues in which the court identifies a suitable date to reconvene. This date can be weeks, if not months, into the future, by which time basic science tells us that memories of the evidence heard on that first day will have faded or been corrupted.
The overloading of court lists contributes to the way in which many summary trials are prosecuted, as evidenced by my day with Kyle and the dreaded ‘prosecution list’. This staple of the baby barrister diet involves being instructed by the CPS as an agent to prosecute their magistrates’ caseload (which is usually handled by in-house staff) when they are short on numbers, or where they spot an iceberg looming in a case and wish to affix a non-CPS face to the bow as the ship dips beneath the waves. For reasons I have never understood, and can only attribute to resourcing, the files are only delivered to the agent on the night before or the morning of the big day. Whether on paper (as when I first started) or emailed (as now), they are guaranteed to be incomplete, disordered and missing the latest vital information, such as the letter sent a month ago by the defence solicitors informing the CPS that the defendant will be changing his plea to guilty, or the last-minute case review from a CPS lawyer decreeing that the case should be terminated. Now, a couple of badly prepared trials, you have a hope of rescuing. But if listing have shoved seven of the little bastards in your courtroom, that is seven lots of incomplete, incomprehensible and disordered bundles of evidence (at anything up to 200 pages each) that you have to re-order, interpret and somehow prepare for trial.
And those seven will not be your lot; once at court, cases will be swapped between courtrooms without notice, and unplanned hearings – such as a youth who has been arrested that morning for breaching the terms of his bail, or the sentence hearing that the CPS advocate can’t do because they work condensed hours and have to leave early – will be dropped on you throughout the day. The magistrates’ court is the accident and emergency department of criminal justice: any moment, a problem will walk through the door and the prosecutor will have to deal with it blind. Much prosecuting in the magistrates’ court takes the form of someone getting to their feet and presenting a case they have never set eyes on before. The Director of Public Prosecutions rejected this claim when it was put to her by the House of Commons Justice Select Committee, stating that it had not been her experience,27 but I can promise you that it happens every single day.
And while in the Crown Court we barristers commonly boast about our ability to rapidly master the facts of a spontaneously apparating case, and pulling an al
l-nighter to prepare a late-returned trial is standard fare, the notion of preparing seven at the drop of a hat – interposed with half a dozen impromptu hearings like Kyle’s – would confound even the more senior in our number. Yet for those baby juniors learning their trade in the lower courts, it’s entirely unexceptional. And, it goes without saying, dangerous.
You’ve been punched outside your house when confronting an irksome street punk? Got a black eye and soreness? That’s assault by beating and suitable for magistrates’ trial. That’s one of the seven cases which, if it’s in my prosecution list, I’ll receive at, if I’m lucky, a few hours’ notice, and to which I might get to devote a whole fifteen minutes’ reading, preparing and sorting for trial. How confident are you that I’ll know the ins and outs of the proceedings that have dominated your personal and professional life for the last year? Are you happy that, in between my relay of phone calls to faceless, office-based CPS lawyers and police officers to track down the missing evidence in my other six trials, I’ll have crafted the exquisite cross-examination required to shred the credibility of that lying defendant who alleges that you hit him first? Are you satisfied that, while I’m darting to and from the witness suite and the courtroom, juggling the questions and demands of the fifteen witnesses who have attended and chasing the half-dozen who haven’t, I’ll have ensured that all the witness statements volunteered by you, your family and your neighbours have found their way into my brief, and have not been misfiled or lost by the police? As I glance through my list of seven trials, and mentally note the headlines – a youth court trial for sexual assault involving child witnesses; a burglary where the defendant is in custody; an affray with three defendants that has already had two aborted trial dates; a careless driving trial with a heavily pregnant witness who has just announced that she has to leave at lunch to pick up her son from nursery – where do you think your case is going to rank in importance in my list? And where do you think it is going to rank in the corresponding defence solicitor’s trial list of one? In my best Dirty Harry voice, I invite you to ask yourself one question.
And if the trial is not properly prepared, if key witnesses haven’t been warned to attend or vital evidence hasn’t been properly obtained, don’t think for one moment that the court is going to happily grant the opportunity to put it in order. The past few years have overseen a procession of well-meaning initiatives with comforting management-speak titles – ‘Criminal Justice: Simply, Speedy, Summary’; ‘Stop Delaying Justice’; ‘Transforming Summary Justice’; ‘Better Case Management’ – aimed at streamlining summary justice. The emphasis, magistrates have been commanded from on high, is on reducing the number of unnecessary hearings and ‘doing it right first time’. No more sluttishly adjourning trials simply because one of the sides bats their eyelashes at you. Firm and robust judicial case management at the first appearance, and cultivating a culture of individual responsibility for cases in which both sides adhere to the Criminal Procedure Rules, should mean that a legitimate request for an adjournment on the day of trial is a rare bird.
No issue can be taken with that ethos. But the predicted output is false; the reasons for cases requiring additional hearings and parties seeking adjournments will not and cannot all be judicially managed away. Much of the cause, on the prosecution side, is resource-led. Evidence is often not served and disclosure not made because the CPS is hideously under-staffed after shedding a third of its staff.28 Witnesses sometimes don’t turn up for trial because the Witness Care Unit has given them the wrong date, or because they notified the CPS months ago that they would be out of the country on the week of the trial. Or, most frequently, because of the inherent chaos and complexity of the lives of most of the damaged protagonists and antagonists in criminal cases: the twisted dynamics exerted in violent relationships that make securing the attendance of the victim a messy, difficult task; the defendant’s exhausted benefits meaning he can’t afford the bus to court – essentially the near-impossibility of imposing order on the fucked up, timeless existences of society’s most disordered. These are complexities that you don’t solve by drilling magistrates to simply refuse adjournments.
For me as a baby prosecutor, the most difficult cases in this regard were always allegations of domestic violence. You’d open up the file to read a history of a battered, vulnerable woman making weekly 999 calls, none of which made it as far as a formal complaint until now. Having summoned the courage to provide a witness statement to the police, her nerve would then falter on the day of trial and, at the suspected behest of her brutish beloved, she would disappear underground. Domestic abusers know this routine; they bank on it by holding on to a not guilty plea until trial. If she shows up, they’ll throw their hand in and admit guilt; if not, they’ll rely on the court losing patience with the prosecution and kicking the case out. Sometimes I’d find that magistrates would permit the prosecution a chance to track the complainant down, but many times that single failure would signal game over. The ‘no adjournments’ ethos was stretched to absurd cruelty in a case in late 2017, in which a District Judge hearing a sexual assault trial was informed that five members of the complainant’s family had been killed overnight in an accident and the complainant was, unsurprisingly, unable to attend court. The prosecution application to adjourn was refused.29
And it by no means only affects the prosecution; defendants often suffer worse. I have lost count of the times that material that we had been demanding from the prosecution for months was insolently dropped on me on the morning of trial: giant, four-inch-thick chunks of potentially crucial medical records or mobile phone data. I’d beg the magistrates for an adjournment so that I could properly take instructions from my client on this late disclosure, entirely the fault of the prosecution. Invariably the response was an offer of ‘fifteen minutes, and then we’re starting the trial’. Once I was drafted in to defend a man of good character accused of harassing an alleged love rival after the solicitor defending collapsed minutes before the trial was due to start. Faced with a thick bundle of evidence I had never read, and a non-English speaking client I had never met, I applied in these exceptional circumstances to adjourn the trial to another date. ‘You have fifteen minutes,’ the chair tutted, as if the defendant was somehow to blame for his solicitor’s incapacitation. Fortunately, after three long days of evidence, the man was acquitted, but others are not so lucky.
The bottom line is that there may well be fewer, quicker hearings. There may well be fewer adjourned trials. But to my mind, what is happening in these courts is not justice. It is not, as the Criminal Procedure Rules proudly proclaim to be their ‘overriding objective’, acquitting the innocent and convicting the guilty. It’s getting numbers through the door and out again, as inexpensively and swiftly as possible. It’s roulette framed as justice, where if the case does go the right way, its debt is to fate; occurring not because of the build of the system but in spite of it. And it is in these conditions that 94 per cent of our criminal justice is taking place.
Troublingly, far from asking whether it is right, in a modern, twenty-first-century democracy, to invest the unrivalled power to determine law, facts and sentence in unqualified, unrepresentative volunteers – to make lay magistrates judge, jury and executioner – and to embed a bargain basement retail model of summary justice, the establishment is planning a future where magistrates play an even greater role.
The mission creep is being achieved in three ways. Firstly, more either-way cases are being blocked from being tried in the Crown Court. Magistrates are now encouraged by official allocation guidelines to keep hold of more either-way offences, by deeming as suitable for summary trial serious cases that they previously would have sent to the Crown Court.30 The second arm of the pincer, if Sir Brian Leveson’s 2015 Review of Efficiency in Criminal Proceedings is implemented in full, will be that defendants lose the historic right to elect jury trial; the decision as to trial venue will be solely the court’s. To cope with the increase in the volume of ser
ious cases that would now be kept in the magistrates’ courts, the bottom end of summary justice – criminal offences including rail fare evasion, motoring offences and fly-tipping – is being squeezed out of the courtroom and onto the internet. Defendants will log in to an automated system, view the evidence against them and click to plead guilty and generate their ‘sentence’.31 Justice, and a criminal conviction, will be served not just behind closed courtroom doors but behind closed bedroom doors, without any public scrutiny or independent judicial oversight at all. The ‘Single Justice Procedure’, whereby magistrates can now sit alone in private to deal with minor uncontested matters, is a new development with strong echoes of the eighteenth-century Petty Sessions convened in JPs’ living rooms.
Secondly, and complementarily, magistrates’ powers of sentence will be doubled to twelve months’ imprisonment for a single offence. This change has been lying dormant on the statute book for fifteen years,32 just waiting for an obliging government to accede to magistrates’ pleas to bring it into force. When it does, an avalanche of either-way cases will suddenly be capable of being tried by magistrates, who will duly exercise their powers to send more people to prison for longer.
Thirdly, the right to appeal the decisions of magistrates is under threat. Presently, in all magistrates’ cases there is an automatic right of appeal to the Crown Court, where a defendant’s trial and/or sentence will be heard anew by a Crown Court judge sitting with two magistrates. Where the ground of appeal is solely a question of law, such as whether evidence was correctly admitted or whether a legal test was correctly interpreted, there is also an alternative route of appeal to the High Court, but this is only meaningful if you understand the law, or have access to someone who does. Many defendants in the magistrates’ courts do not qualify for legal representation, and the automatic right to a rehearing at the Crown Court is vital for those defendants, who may not appreciate that they have a legally nuanced ground of appeal. In the Crown Court, I have prosecuted many appeals from the magistrates’ court against unrepresented defendants, and have lost count of the number of cases where there has been a conviction that is completely wrong in law, or completely wrong on the evidence, the fact of which only emerges upon close inspection of the papers. The automatic right of appeal to a professional Crown Court judge is the last bulwark against the anarchy of the a-professional lower courts. But the Leveson Review would have it removed.
The Secret Barrister Page 8
