Thursday, 18 June 2020

Jury Trial Must Stay Awhile

Desperate times call for desperate measures and desperate men make desperate decisions. If you had told me at the start of the year that there was a very real prospect that by the end of the year we would see jury trial facing an existential threat I would have thought you were crazy. You may think I am crazy envisaging such a melodramatic outcome but the fact is that jury trial is in greater jeopardy now than in my entire time in practice, than in my entire life in fact.

A backlog (created and sanctioned long before Covid) is overwhelming the Crown Court and completely stifling the proper administration of justice. There is no solution on the table. The trickle of trials that are now resuming with difficult and space consuming social distancing measures won't touch the sides. The vast majority of criminal lawyers are sitting at home with no incomes waiting for salvation or oblivion.

And so, astonishingly, we are confronted with the possibility of abandoning juries in Either Way cases (for non-lawyers these are criminal offences that are too serious to be tried only in the magistrates court but are not so serious that they can only be tried by a jury). They can be tried by magistrates or by a jury and the defendant can choose which, assuming the magistrates have not decided the case is too serious to be tried by them.

Burglary, dangerous driving, shoplifting are the sorts of cases that fall into this category. So too is sexual assault. They are not just victimless crimes and they are cases which can carry life changing consequences for victims and defendants. There is always a debate to be had as to whether every single one of these offences should provide a defendant an unfettered choice to be tried by a jury. Now is not the time for that debate.

For a criminal barrister to have to sit down and set out why he believes jury trial is important is as extraordinary an idea as a football fan having to explain what the game means to him. But it seems plain to me that if there is any chance of this being read by anyone indifferent to the concept of jury trial or even hostile to it that I must.

Jury trial is not perfect. It is expensive. It is bureaucratic and administratively cumbersome. It interferes in people's lives. It introduces complete amateurs into the courtroom. It's a lottery. It provides no reasons and no reasoning. It's susceptible to undue influence. It requires a jury summoning bureau, a jury lounge, jury retiring rooms, jury boxes, jury oaths, jury bailiffs, jury expenses.

Jurors get sick, they don't turn up, they're late, they Google things, they fall out, they develop passions for barristers in the case (!), they use ouija boards (!!), they ask what 'sure' means, they bring irrelevant prejudices to bear, they fall asleep. All of these things happen but only rarely and, thankfully, usually only very rarely.

Instead the vast majority of the time they answer their summons, they arrive punctually, they take their oaths and they take them solemnly, they listen intently, they take the defendant's case as seriously as if it were their own, they give both sides a fair hearing, they abide by the judge's directions of law, they retire determined to reach a just outcome, they give and take in the jury room and they bring to bear their life experiences and their common sense and they reach a verdict based on the evidence and only the evidence. 

Then they go home, get on with their lives and almost certainly never come back.

In my opinion there is nothing more important about jury trial than the completing of it. The criminal courts are strange and sad places. Those that make their living there quickly become inured to that. The endless conveyor belt of wrongdoing and wretchedness can become, after so much time, a background noise, the individuals swallowed up by the great maw of the system. One of the hardest things to maintain as a barrister is the energy and will to treat every case as if it was your first. That is the only way to ensure that justice is done but it's exhausting and debilitating.

And so to judges. Some are excellent, some good, some middling, some indifferent and some terrible. Just like people are. On a good day a bad judge can be good and on a bad day a good judge can be bad. The bald fact remains that, as a whole, and despite some significant progress the judiciary does not look and sound like a lot of the population of England and Wales. You may think that does not matter, I think it does. The main difference between judges and juries other than that the judges are expected to know the law is the judges do have to come back. Every single day. And every single day they hear the same old excuses and a lot of the time they are just excuses but sometimes they are not.

What judges do not have to do (other than appeals from the magistrates court) is decide the facts. That enables them to focus on the law, making sure that the defendant gets a fair trial, and communicating to the jury what the law means and how to apply it to the case being tried. That is why trial by jury is actually a misnomer as it is trial by judge and a jury and while it is not a perfect system there is not, in my opinion, a fairer way of dispensing justice in criminal cases.

In normal times the proposed partial abandonment of jury trial would prompt howls of outrage from the legal professions and in the media too. Indeed at the start of lockdown the Scots tentatively floated such a course of action and it was immediately shot down. We are not now at the start of lockdown and, ominously, there has not been the outcry I would have expected and hoped for.

Here is a short list of reasons why I think abolishing jury trial in Either Way would be a dangerous mistake:

1. It will be proposed as a temporary measure. Lawyers work on precedent. Nothing can happen until it has happened and when it has happened it will always happen. When the MoJ calculate the savings on space, time and money the game will be up.

2. Judges (and magistrates sitting with them if that is what gets introduced) will need to provide reasoned verdicts. This means murders and rapes will not have reasoned verdicts but shoplifting trials will. Over time this discrepancy will grow into a vexatious distinction casting doubt on the legitimacy of juries' bald thumbs up or thumbs down in indictable only cases.

3. If juries conclude the law is an ass they are free to vote with their feet. Judges do not have that freedom.

4. If a jury, notwithstanding the decent likelihood of a group of 12 thrashing out a sensible outcome, actually ends up being no good they are disbanded at the end of the trial and pose no ongoing threat to justice. If a judge is no good or becomes no good justice is imperilled as long as that judge sits and if you've ever looked up how to sack a judge that is likely to be a very long time.

5. Justice by the citizen is justice for the citizen.

6. The Daily Mail has never published photographs of a jury with 'Enemies of the People' as a headline nor would it ever dare do so.

7. Justice requires the application of life experience to facts and circumstances and 12 lives' experiences is a lot better than 1.

8. Juries are the last bulwark against tyranny. They are the ultimate insurance policy.

If there was literally no alternative to trial by judge alone then, of course, it would be better than nothing. However there is an alternative that cries out for piloting and that is virtual trial (as I wrote here, it has been modelled and worked well and the time has come to give it an opportunity to prove its worth in real cases. The criticism that it renders the jury mere spectators is irreconcilable with the fact that evidence is already received often by live link and, in some courts, by pre-recorded cross-examination.

Desperation can quickly lead to disaster if a moment is not taken to consider what in fact are the options and I am certain that abandoning juries should be the option of last resort.

Friday, 12 June 2020

Video Thrilled The Criminal Bar?

Except that definitely does not seem to be the case. The usual place barristers gossip is the robing room but these days if you want to test the view of the Bar on virtual hearings it has to be via WhatsApp, Zoom and social media. Video hearings have attracted mixed reviews. Some are overjoyed that pointless travel is no longer required. Video hearings seem to be much shorter than in-court proceedings. We all occupy the same screen space in a video hearing. The downside is that the main platform hitherto is the virtually defunct Skype for Business. There are numerous technical glitches causing people to be invisible or inaudible or both.

A major cause for concern is defendant participation. Taking instructions is either impossible or extremely unsatisfactory, especially for defendants in custody. But the biggest issue is that no number of video case progression hearings will bring about the resolution of a contested case. To be a criminal barrister in 2020 feels like being a footballer endlessly on the training ground, an actor perpetually stuck in the rehearsal room or a pilot confined to the airfield.

It was widely commented that however difficult the commencement of lockdown would be emerging from it would be hugely more problematic and one only has to look at schools to see how true that is. But the harsh fact of the matter is that the Criminal Justice System stopped at the end of March and its resumption at the moment is entirely notional. A tiny handful of trials slowly occurring in courts observing strict social distancing. Given the case backlog now running to about 40,000 cases this is like bailing out a sinking ship with a thimble.

My expectation, shared by many I'm sure, is that Boris Johnson will imminently and arbitrarily announce that 1 metre's distance will suffice for distancing. That may or may not have a dramatic effect on the number of court rooms that can open. But even if it does there has to be a Plan B quickly devised and put into action. I enquired on Twitter towards the start of lockdown whether anyone had made an FOI request for the MoJ's pandemic planning. Not their response planning to Covid but their permanent contingency plan for any pandemic. I'm not at all convinced that such a plan existed, I certainly haven't seen any published plan.

The 'Plan Bs', it seems to me, are as follows:

1. Judge only trial (or variation with magistrates, recorders or pair of jurors)
2. Judge and jury trial but with reduced juries (most likely of 7)
3. Off site trials
4. Virtual trials

None of those options enjoy anything like universal support. Judge only trial is particularly contentious within the legal profession because of battle hardening but also a real danger once juries are gone they may not come back. Creating a panel may slightly reduce that risk but there is always the danger that in retirement the judge holds sway especially if sitting with recorders looking one day for a permanent job. I am not for a second casting aspersions on the judiciary, I have no doubt that the vast majority of judges would make excellent tribunals of fact. But we have trial by judge AND jury for a reason.

Reducing jury numbers may marginally alleviate the distancing issue but again it is hardly likely to enable any major denting of that unfathomably large number of trials awaiting resolution. There are also real concerns that the smaller a jury gets the greater the danger of a ouija board style miscarriage of justice.

My personal preference is for the use of off-site court facilities. Frankly I'm amazed they were not part of any pre-Covid contingency planning and even since the advent of Covid I do not understand why venues have not been identified and converted nationwide already. With an agonising lack of urgency it appears that the process is now underway but it seems probable that it will be many weeks if not months before any of these venues are up and running.

And so to virtual trials. The instinctive and immediate response of the profession seems to have been: No, Nein, Non. Indeed, at the start of lockdown, I would have counted myself among their number. I was aware that the excellent charity Justice was carrying out some kind of research project but it struck me as being of only potentially academic interest. Having endured the noises off or just noise off of Skype for Business hearings it seemed to me absurd to think it would be possible to conduct a jury trial relying on the internet connections of 12 random members of the public in their homes.

To my discredit I did not follow the project particularly carefully. However I was recently urged to look again and in particular was tipped off that a virtual mock trial would be conducted on 12 June but with the jury convened together in a remote location. I watched various parts of that trial via a live streaming virtual public gallery and...I was surprised...and impressed.

Here's what impressed:

1. On a level - with all parties sharing the same screen space there is not the indignity of the dock for the defendant.

2. Demeanour - some barristers swear by the importance of assessing demeanour in open court. The reality is that on the screen it is possible to assess a witness' demeanour much more closely than in a large court room. Furthermore it is possible to scrutinise the demeanour of individual jurors without that dreadful gaping at the jury that some barristers are prone to.

3. No paper - documents are shown digitally on the screen and the jury have a digital jury bundle in retirement so no more photocopying and collapsing lever arch files.

4. Public scrutiny - those watching from the public gallery see the same documents as the jury and the parties which makes for much more meaningful observation.

5. No time wasting - if the jury need to leave for legal argument their camera is turned off so there is no trooping in and out of court. 

6. Home sweet home - counsel and indeed the judge can participate from home as potentially can the witnesses and the defendant.

Here are the drawbacks:

1. Instructions - obviously if defence counsel and the defendant are in different locations then the taking of instructions is impeded. Although if the defendant is in custody that could be obviated by all cameras (and recording!) being turned off to allow private consultation. If the defendant is on bail then a virtual trial will require them to be in a place with a good enough connection and an ability to give instructions. Potentially defence counsel could participate in the trial with the defendant from the solicitors' office or from chambers.

2. Screen strain - we are all dismally familiar with how exhausting a prolonged Zoom session can be. There is no avoiding the fact that staring at a screen for prolonged periods is wearing, this is especially so when viewing something as important as court proceedings. However unlike Zoom in court only one person should be speaking at a time so there should not be so much exhaustion caused by over-talking. Regular breaks would obviously be required.

3. Jury location and staffing - juries will still need to be convened and locations identified for that with the requisite facilities and staffing, although this would be hugely less expensive and problematic than trying to find adequate places to conduct the whole trial.

4. Technology - obviously it's got to work and obviously it's got to work all the time. There is no avoiding the fact that if this is not got right this will be a disastrous innovation.

5. Secondary recording - there needs to be a public gallery and it needs to function in such a way that the trial is not being recorded on mobile phones. The solution to this is to have supervised remote locations at which trial observers are able to log into a particular trial having surrendered any recording devices with the parties alerted to their presence.

6. Court control - it is undoubtedly the case that a judge sitting on their eyrie gets almost literally a bird's eye view of what is going on in court. If something happens it can be dealt with immediately and in the room. There is obviously a question as to what happens in a virtual trial once a defendant is convicted and they are far from the cells.

7. Type of case - in reality virtual trials are likely only to be appropriate for single handed cases, probably either way only. I am definitely of the view that they should only occur on the defendant's election and there is a chance that take up may be low. Accordingly virtual trial would be no panacea but I'm of the view that we should give the concept a real chance.

What is clear to me is that doing nothing is not an option. If we sit at home waiting for business as usual we will find there is no business and no usual. Times of great turmoil always have been and always will be catalysts for great change. If we really care about justice it is incumbent upon us to get it done, not at any cost obviously, but a virtual trial is better than none at all. Imagine at the start of lockdown resolving that if you could not see your parents or grandchildren in person that you would not see them at all. That would be cutting off your nose to spite your face and it would damage your relationship. We are no use to anybody sitting and waiting.

Even if you abhor just the thought of abandoning the court room I urge you to take the time to read what Justice are doing and it may cause you to think again:

If this works it will work forever and there is the prospect, in the future, of a genuinely speedy and streamlined Criminal Justice System.

Wednesday, 13 May 2020

Justice Calls Family Enthralls

I've never been handcuffed. An unsurprising statement from a barrister you might think but more than you may guess have seen the back seat of a police car. Often people fight violently when being arrested but very often they go quietly. I've often wondered what it must feel like experiencing that immediate loss of liberty. The first time, as for many things, must be frightening and unknown but I can easily imagine how quickly 'here we go again' sets in. The sensible thing, no doubt, is to surrender. The state has taken over and you'll have to navigate the river as best you can rather than perish trying to swim against the tide.

Lockdown is not, in important and obvious respects, the same as being locked up but it is nonetheless the case, for the vast majority of people, that their liberty has been constrained in a way they will never have known before. In my case I have had the good fortune of experiencing this with my wife and children. 

It is often said of the early years that they go so fast and it has been an unexpected bounty for me that I have been able to be present all the time for these days, weeks and months with my children. But sometimes serving the sentence is not the hard part, the hard part is release and the obvious question: What now?

I am both fortunate and unfortunate in my profession. Being self-employed I am not eligible for furlough I also, however, fall outside the government's scheme to assist the self-employed. Lockdown has essentially rendered me unemployed BUT barring total cataclysm my job is not going anywhere. The administration of justice is part of the key work of society even if contempt and indifference has often felt like its reward.

Practice as a barrister is to live your life to a constant drum beat. That drum beat represents the pressure of your caseload. Sometimes it's a gentle tapping on the snare, other times it's a relentless pounding on the bass drum keeping you awake half the night or worse. The thing is it never stops but since March it has. And suddenly there was bird song and breathing and children's laughter.

The announcement of the resumption of jury trials represents a liberation from lockdown. It is extremely unclear at the moment whether this will be a meaningful return to work in the near future or months of a trickle of carefully selected cases. There are literally thousands of cases and victims, witnesses and defendants waiting to see their day in court.

It is going to be essential that the courts have careful regard to listing cases in such a way that barristers with caring responsibilities can make themselves available. The courts may also have to hope that barristers who have been fully present in their family's lives, often for the first time, want to make themselves available.

Wednesday, 6 May 2020

Barred from the Bar - strait is the gate and narrow the way to pupillage

The Bar is not for everyone and not everyone is for the Bar. Ostensibly it should be heartening that there is such a profusion of candidates for pupillage but sometimes when I see the metaphorical queue round the block I feel like one of those soldiers in a war movie trudging dead eyed from the front line past springy recruits straight out of basic training.

It is a grim reality of many mini-pupillages at the Criminal Bar that as much time is spent in warning off as in pointing the way. A useful maxim for any barrister, as for anyone wanting to walk through life with clear eyes, is cui bono. In the case of the BPTC providers the answer is simple: they do. Every year they recruit vastly more students than will ever win pupillages.

For many of those students it's not just that they aren't in the race they aren't even in the stadium. And whose job is it to tell them that? The answer is it's ours. In the sift. When there are 100 applications per place there are going to be many, many disappointed people. A proper chambers will have a marking scheme (I am very much in favour of that scheme being made available to applicants) and a proper chambers should be ready to provide a rejected candidate with the result of that scheme. 

But nobody can or should expect fully fleshed career advice from that exercise. The barristers marking those applications are doing it for free in whatever time they can carve out of their practices and their domestic lives. Applying for pupillage is a very stressful experience which, at the time, may well be the most stressful experience of a candidate's life. However its stresses are but a fraction of those that bear down on you in the cells of the Old Bailey advising a client looking at decades in prison or prosecuting a multi-handed case against Silks on the war-path.

When you apply to join a criminal chambers imagine you are looking to step on board a ship in a storm from which the last lifeboats were cut away some time ago. The interview panel sitting opposite you is not screaming in your face because they've been weathering that storm for a long time and because they are professionals and because the ship isn't going anywhere without new crew. But don't be fooled by the languid elegance of the Inns of Court or anything you've ever seen on television. The Criminal Bar was in crisis BEFORE Covid turned up, God knows what it's going to look like in the aftermath.

Learning to overcome the sting of rejection in applying for pupillage is in fact a key learning experience for practice where every day someone is telling you in public that you are wrong on the facts, wrong on the law and where every case has a loser. Few boast about this on their chambers websites or in public but many barristers and judges endured multiple refusals on their way to practice. It took me three attempts to obtain a tenancy.

However saying it's a tough job for tough people is no answer. Resilience can be learnt, it can be taught and it can be fostered. Likewise nobody is immune from mental health setbacks and suffering a bout of mental illness is no disqualification from the job at all. Indeed it is likely to make for a more empathetic practitioner given the family circumstances of so many of our clients.

If you think a chambers that has rejected you is falling short don't be shy about saying so. However think carefully whether the solution is expensive and difficult or free and easy. If the former there's your answer if the latter perhaps, in missing out, you didn't miss out after all.

Wednesday, 22 April 2020

Demand a New Normal - Sort Out England's Courts

When I started as a barrister, in the 21st century, I along with the other newbies received a pep talk on dress and appearance. Except this wasn't a pep talk it was the 10 Commandments. Highlights were that pupil barristers were only allowed to wear white shirts, if we wore trousers with belt loops we had to wear a belt (that is if we HAD to wear trousers with belt loops), waistcoats were essential with double breasted jackets a just about tolerable alternative and, most firmly of all, we were never, ever, ever to be seen public without the collar on our shirt.

Barristers wear expensive and uncomfortable starched wing collars in court that attach to their shirts with collar studs. In the robing room off comes soft collar and tie and on goes the stiff collar and bands. If you ever see a man on public transport wearing a suit and shirt with no collar that is a barrister (although one that would have been drummed out of my first chambers). When I started there were still barristers that wore stiff collars even out of court. These cost at least £2.50 to have specially laundered and starched and should be changed every day. Over a tenner a week just to keep your collar clean.

Appearance mattered because justice is a solemn business, it's why we have clung onto the wigs all these years. Appearance also matters because as a barrister you are your shop window. When the client sees you, when the judge sees you, when the jury sees you they are all making a judgement. Can I rely on this person?

Justice in lockdown is basically on ice. The planes are still taking off but with no jury trials taking place there is nowhere for them to land. Instead there are Skype for Business hearings in which the judges are still in full court dress but, mercifully, advocates are required only to be suited rather than sitting in their kitchen in their wig. It's a month since I went to court and a month since I saw a court building.

My memories are not happy ones. The Crown Courts of England & Wales, certainly the ones I frequent, are in an absolutely shocking state. Leaking roofs, cracked tiles, worn linoleum, collapsing seating, stained carpeting, deranged central heating, sadistic air conditioning, out of order lifts, broken toilets. The list of their deficiencies goes on and on and on.

After witnessing their degradation over years and years I have, to a wearying extent, become inured to how shameful it all looks. However, I often wonder how it must look to jurors, witnesses and even the defendants seeing it all for the first time. If this is what the building looks like what on earth can be the quality of what takes place inside it?

If the last few weeks have taught us anything it is that without proper funding the National Health Service can not, in fact, provide a service. To say that shortcomings brought about by years of austerity have been laid bare is like saying a streaker at Twickenham is a little underdressed. This is just as true for the Criminal Justice System. 

When jury trials eventually resume even the most hardened barrister will be seeing these buildings with fresh eyes and it will not be a welcome remembrance. We have to ask ourselves, when it comes to English justice, whether people should be judging a book by its cover.

Friday, 6 March 2020

Corona Caught to Crown Court - Sick Criminals?

It is surely only a matter of days before the various ministries start to reveal their contingency planning for the full viral onslaught and, ominously, probably only a short period thereafter before they start having to implement them. The sacrifice of sporting events, concerts and museum trips is bound to be something we will all literally have to (hope to) live with.

Other ministries have an entirely different prospect on their hands. We can only imagine how the NHS is going to cope. Justice will not be the first thought or concern of most but one confirmed or even suspected case in a court centre is likely to see court proceedings come shuddering to a halt. It may only be a few weeks before the entire criminal justice system is in a state of total paralysis.

Only time will tell what crime in a time of Corona will look like. But something you may not have given a moment's though to is whether Corona could be a crime. In 2018 at Brighton Crown Court Darryl Rowe was given a life sentence for deliberately trying to infect 10 men with HIV. It is a crime to deliberately infect someone with a fatal or life limiting disease. It is, also, a crime to do so recklessly and that should give everybody pause for thought.

I often link to the CPS website in providing user friendly guides to the criminal law in practice. However the Terrence Higgins Trust has an unimprovable guide to how the law applies to those who have HIV and choose not to divulge their status or take the necessary precautions. Have a read of this website:

Now replace HIV with Coronavirus and you can see how receiving a diagnosis might impose legal obligations upon you that may not even have considered. You may want to self-isolate before the law forces you into isolation for up to 5 years.

Postscript: I am very much obliged to Claire Bradley who has informed me via Twitter that there is already secondary legislation in force that creates an offence in relation to isolation: Interestingly the maximum sentence is a fine!

Thursday, 16 January 2020

The revealing lens - Let the cameras in

With the exception of members of the Royal Family few people in society have more cause to distrust the media than Her Majesty's Judges. Convention means that they have historically been obligated to ascribe to the Queen's famous maxim 'Never complain never explain.' This has applied however absurd or inflammatory have been the attacks on them. If, for example, our judges are really 'enemies of the people' one reasonably wonders who on earth their friends are.

So it is that numerous of my learned friends have reacted with groans and dismay to the news that the cameras have finally breached the citadel of the Crown Court. The media are jumping for joy the lawyers are slumped in disbelief that anyone could be so naive as to have allowed this.

At least that seems to be the party line. The Bar Council publicly has welcomed the innovation but much in the same way as John Profumo would have welcomed the editor of The Mirror into his home.

Generally I find myself in keeping with fellow members of the Bar but on this issue I seem to be in a minority. My thinking is that this is, on balance, a positive development. The pitfalls, of course, are obvious:

1. Why expose judges to television scrutiny, it could be dangerous to their safety?
2. Why expose judges to television scrutiny just for sentencing, it provides a partial and incomplete story?
3. What nefarious use could be made of the television footage online?
4. How obvious is it that there will be wilful or inadvertent misinterpretation of judges' sentencing remarks?
5. TV is a circus and the Crown Court is not entertainment.
6. What better things to spend the money on - Legal Aid, police, the CPS, Probation, Prisons, the Courts.
7. How complete will the coverage of cases be?

I'm sure there are others that I am too slow to think of but while it is the default setting of the criminal barrister to assume the worst of everything let's try and think of the advantages:

1. We've not done this before so assuming ill will come of it is just that, an assumption and barristers should not deal in assumptions;
2. The media already wilfully misrepresents the judiciary and its decisions at every turn how can showing judges actually speaking in court make that worse;
3. The criminal justice system is crying out for public attention particularly with regard to explaining itself and more exposure provides a potential platform for that;
4. The public gallery is a quaint throwback to the 19th century. With the exception of a tiny number of cases the public do not come, they do not see, they do not hear and they do not know;
5. A handful of cases will actually have the cameras in;
6. Having the cameras in or the possibility of them may encourage judges routinely to reduce their sentencing remarks to writing which may diminish the number of sentencing mistakes and sentences that need to be appealed;
7. I assume the cost of this will not be borne by HMCTS so expenditure on televising hearings is not money that would otherwise be spent on the CJS;
8. Cameras in the Court of Appeal have not brought about the end of the world;
9. TV has now encroached on almost every single part of life imaginable: sex; death; surgery; royalty; schools. It seems almost absurd for the courts to insist that they should be impervious to this.

Let justice be seen to be done - we have nothing to fear.