JUDICIAL DECISION MAKING

With increased reporting of the Court of Appeal and the Supreme Court owing to various government proposals being considered unlawful by some the debates previously of interest only to legal eagles have become if not front page news no longer limited to a few inside columns of the broadsheets.  Indeed major news programmes are not long after social media in joining the reporting.  There has been considerable comment on the Court of Appeal`s decision last week that the government`s proposals to send asylum seekers to Rwanda was unlawful.  That result had been widely predicted but what was of interest was that the decision was by a majority of two to one the dissenter being the Lord Chief Justice.  That, as a secondary point, leads me to question whether the intellectual and legal requirements of members of the Appeal and Supreme Courts are that much different.  Are such eminent practitioners given points in the manner within the military when one star generals must be promoted three times to achieve top billing?  

Judges are also in a Scottish spotlight.  SNP proposals that a single judge should preside over rape trials without a jury have received considerable resistance from within the legal profession and without. Onlookers shouldn`t be surprised.  Nationalist governments throughout history have targeted courts to do their bidding.  Without juries  that target is closer to being achieved.  As in England in certain quarters there is disquiet at [according to those quarters] the low conviction rate in such trials. In addition they also claim that many more under investigation for rape are not brought to trial. Considering that the offence is not an offence and is a consensual decision in private for the vast majority of people it is unsurprising that a high hurdle is necessary for conviction.  Perhaps there is envy of the Republic of China where the conviction rate is 99%. 

When discussing judges and judgements many commentators overlook what constitutes a conviction in magistrates courts.  And well might they overlook.  In the lower court the pronouncement simply is "guilty".  The reasons are explained but whether or not that verdict is reached by all three magistrates or by two to one majority is never spoken publicly.  This is an anomaly I questioned during my own time on the bench and never had a reply worth its weight.  With the advent of majority 10:2 decisions being publicly accepted by judges in England since 1967 the secrecy in magistrates courts is untenable.  Knowing s/he was convicted on a majority verdict would certainly allow a defendant to consider the  possibility of a successful appeal at crown court.  Similarly on an acquittal such a split decision in itself would reflect the court`s lack of certainty in the prosecution case not too dissimilar to the 3rd verdict in Scots law of not proven; a conclusion with which I am in 100% agreement but another questionable change proposed by the nationalist government in Edinburgh. 

The trend by actions of the Ministry of Justice is to secrecy or at least increased difficulty in opening the door to accessible justice; the Single Justice Procedure is an obvious example. Therefore we are extremely unlikely to have any recommendations for change as above. If there were a real body to represent magistrates` opinions perhaps the matter would at least be aired.  As of now JPs are just kowtowing unpaid employees  of HMCTS.