DIRECT ACCESS

Last week for the first time sitting across from me and my colleagues was a barrister who described his firm as “Direct Access”. Neither our L/A nor either of my colleagues was familiar with the designation. He proceeded to explain that he was present on a one time only basis on behalf of his client.  There was some contentious  legal argument which was hardly unusual but what was unusual was his vociferous and at times downright rude manner to the court.  His method of making his case was to try and shout louder than our L/A .  It took a great deal of self control from the bench to make it perfectly clear to him that as opposed to the L/A`s position when giving the bench “advice” which the bench can follow or not as the case might be when she gives an interpretation of the law the bench is obliged to follow that instruction.  Eventually he sat down muttering under his breath.  His behaviour provoked a few minutes discussion during the post court review.

And now earlier this week my colleagues and I find another barrister presenting his client`s argument that he is unable to offer a plea on his first appearance owing to disagreements over disclosure and in his opinion the requirement that the CPS should pay the translation and transcription costs of documentary evidence which he claimed would be necessary for his client to be able to successfully defend a charge of assault.  The debate was relatively uncomplicated but once again the manner in which it was presented by the barrister,  whilst not quite bordering some might have said  on contempt, was delivered in  such  furious outbursts and language which had no place in a court of law. 

At the post court review I described to our L/A the previous experience of the week prior.  He was as baffled as we  were by the aggression shown.  Perhaps in our neck of the woods chambers have decided to go all out no holds barred for this new business opportunity leaving no prisoners in their wake.  Perhaps they consider a bench of three lay magistrates might be easily intimidated.  I would say,”Think Again!”

SHINE A LIGHT

This blogger usually reports facts, incidents, experiences, is known to criticise organisations and occasionally offers opinions.  I write this post to ask a question in the hope that my reader can offer an answer, the more authoritative the better. 

On February 6^th I posted inter alia that our L/A advised (told) us that if a defendant`s lawyer considered that his/her client required an interpreter the bench had no authority to intervene to make its own inquiry of whether that was indeed the case.  When our court has a four month delay in fixing dates for DV matters owing to the need to have screens (available only in three courtrooms) and the case in question had taken about six months from the first complaint  the bench had concerns that any further delay might encourage the defendant to influence the complainant despite strict bail conditions. We were effectively silenced.  Earlier this week I mentioned his colleague`s advice as above to another of our legal advisors.  He was surprised.  According to his reading of a situation of that ilk a bench is perfectly entitled to question a potential witness or defendant (as I have done on previous occasions) to make its decision as to his/her competence to understand sufficient English language to be able to follow the occasional legalise used in court.   So, dear reader, if you can shine some light on this matter I would be most grateful.

JURY TRIALS//WHEAT AND CHAFF

The first ever post of this blog  had as its subject the practice of police applying excessive cautions to those admitting similar offences. The next post was entitled "Is it time to say goodbye to either way offences”. I`m pleased to note that there has been some movement on the former disposal and J.P.s now have an input in the situation. In addition some common sense has prevailed in the matter of either way offences and a defendant`s right to choose jury trial.

I have no great respect for those M.P.s of whatever shade who have been in control of our justice system since Jack Straw left the office of Secretary of State. He had the intellect and consistency which demanded respect even if there were thought a lack of consensus around some of his policies. So when Damien Green, former Minister of State for Policing and Criminal Justice addressed the subject of either way offences I read with interest. Conservative MP  Nick de Bois, a member of the Commons justice select committee, has warned against removing the right to a jury trial. "However attractive such a move might seem to magistrates it does challenge one of our most basic rights – to be judged by our peers.”

Around 80% of all trials are dealt with by magistrates and only one in five goes before a jury at a crown court. Two or three years ago the former director of campaign organisation Justice was quoted as saying  "We would stand by the right to choose and that's because it's still the best mechanism we have for ensuring a fair trial.”

These statements indicate the lack of clear logical thinking on the part of those with a vested interest in retaining the status quo. Nick de Bois M.P. seems to imply that trial by a single professional District Judge (MC) is being judged "by our peers”. Perhaps District Judges have not just split personalities; they have multiple personalities....well at least three to equate with a bench of three lay magistrates. Sad to say I have rarely heard a criminal lawyer able to argue logically in defence of jury trial and simultaneously justify trial by a single judge except for the most unusual circumstances eg difficult legal argument or points of law or a trial of some days` length.  Restrictions on research into the workings of juries and their manner of reaching a verdict do not assist serious inquiry.  Revelations such as recently made by a jury foreman persuade me and should persuade others that researchers should be admitted to jury rooms to provide a basis for future discussion. 

In order to qualify for jury service today, a person must be: 

• Between the ages of 18 and 70 years old
• Registered to vote on the government electoral register
• A registered citizen in the United Kingdom, the Channel Islands or the Isle of Man for at least 5years since their thirteenth birthday  

And a person must not be: 

• A mentally disordered person, or,
• Disqualified from jury service for a particular reason

When members of juries do not even have to demonstrate competence in the English language  considering recent rates of immigration something is far wrong.

There were 407,913 criminal cases completed in magistrates' courts and 34,098 completed in the Crown Court in the third quarter of 2012.  Even allowing for the time difference these figures  show very clearly that we Justices of the Peace are more than competent at distinguishing the innocent wheat from the guilty chaff.