Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




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Thursday, 3 September 2015

THE INQUISITORIAL MAGISTRATE

In France and other jurisdictions where the justice system is inquisitorial as opposed to the adversarial system in the U.K. there is an office of investigating magistrate. And as it says on the tin that person takes an active role in the investigation and court proceedings. Judges and J.P.s take an impartial role in the presentation of a criminal case and its defence. There are, however, occasions in a magistrates` court where intervention is not just allowed but necessary in the interests of justice. Frequent examples which come to mind are where a witness is being badgered by a lawyer prosecuting or defending or where the lawyer is insensitive to a witness`s abilty to comprehend a convoluted question whether that lawyer`s insensitivity is by accident or design. The cause for intervention in such cases is relatively simple to make. But matters are never always so straight forward.
Many non Crown Prosecution Service offenders are brought to a magistrates` court. Examples are RSPCA, TV licensing, transport companies [fare dodgers], trading standards [fly tipping, health and safety etc ] , local authorities [council tax defaulters] etc etc

I can recollect a case some years ago when I was sitting on one such prosecution. The prosecutor in her opening told us that her only witness, the investigating official, would read his five page statement and she would be relying on a bundle of over 200 pages as her evidence. We duly heard the official and a brief glance at the bundle showed that in addition to the official`s statement it was divided into three complainants` statements, the defendant’s interview, documents directly connecting the offender with the alleged offences and his various bank accounts over the specified period. Defence council had little upon which he could defend his client during cross examination of the official. His client who was not the sharpest knife in the drawer duly did his best under cross examination which was not approaching a Perry Mason standard. We retired to read the bundle telling those involved that we might have some questions for the defendant.

Much of the material in the bundle was totally unhelpful and unnecessary. We had to hunt for the pearls that the prosecutor had told us would be the basis for her case. We duly did find documents which appeared to link the defendant with the offence. Our concern was that they although they had been exhibited neither lawyer had pin pointed them. We decided that in the interests of justice we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail overruling objections from his counsel. He was found guilty. At the post court review our legal adviser anticipating the tone of the discussion assured us that our inquisitorial approach was, in this particular case, perfectly lawful. He agreed that the prosecutor was failing in her duty when she attempted to rely on a huge bundle without further probing. He added that he would have intervened if we had been overstepping the mark.

Chairmanship of a magistrates` bench is an art not a science although the drafters of the so called competences required and the resultant appraisals techniques would seem to argue otherwise. J.P.s` awareness of when sensitive questioning of a witness is useful is not in the instruction manual but it is in the interests of justice especially in an era of unrepresented defendants when there is no longer a level playing field.

1 comment:

  1. From the information given, it looks like the Bench went very seriously adrift in the case described here. With the bundle constituting most of the prosecution case, it’s inexplicable that the Bench should not have read it before hearing the defence case. In any event, it retired to read the bundle after the defence case (including cross examination by the prosecutor) was concluded save only for questions from the Bench. At the end of the retirement the position was “we could not adjudicate without further knowledge and more answers. Thus we questioned the defendant in detail . . .". In other words, the evidence from both sides having been put in, the Bench did not have sufficient evidence to convict. It should have acquitted. It is not for the Bench then to enter the arena and fish for further evidence to prop up a poor prosecution – which it seems to have done. Back to basics: in a trial it is for the prosecution to prove the case and for the parties to adduce the evidence, and to cross examine the evidence, that the Bench is to consider. Questions by the Bench are to be asked only for clarification to ensure they have correctly understood the evidence that has already been given to them – NOT to seek further evidence. Hence it's not surprising the defence advocate objected, though it’s a pity he/she didn't advise the defendant not to answer the Bench's unlawful questions.

    Poor show. Ironic that in the same post “a level playing field” gets a mention. Though a very useful warning, if this can be done to someone with a lawyer, of how much greater is the risk for your “unrepresented defendants”.

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