One of the many allegations levelled at those who oppose the Government’s proposals on Legal Aid is that our evidence is purely anecdotal. The Government like statistics. Unless they do not like the statistics, in which case they become anomalies.
My story begins with a caveat. This is not intended as a criticism of the Lay Magistracy, their court clerks or the Crown Prosecution Service. It is not a criticism of those involved.
One day, half a dozen years ago, I suggested to my pupil that we went to the magistrates to watch a traffic court. We took our seat at the back of court, the only people in the public gallery.
We saw three cases. The court was being prosecuted by an associate prosecutor. They are often able, often very experienced, but not legally qualified. They are not extensively trained. Therefore they are cheap. The magistrates sat as a trio of lay members. The Court Clerk was the only person legally qualified in the room in an official capacity.
The first case was called on. An Asian gentleman answered the call. He was not represented. As the court began its process it immediately became apparent that the defendant did not speak English. The court clerk, quite sensibly, told the bench that the case would have to adjourned to provide an interpreter. With the leave of the bench the clerk took the defendant outside try to explain to him what was happening. The magistrates remained on the bench. The Chair announced to the room (at this stage only the prosecutor, my pupil and I remained) “if they don’t speak English, how do they expect to drive in this country?” I must confess that is an anecdote and one which reflects badly on one person.
The next case was called on. A typical magistrates case. A man had been stopped by the police and issued with a notice to produce his licence, insurance and MOT to the police station within a certain time. The documents had not been produced. The person named on the form was then summonsed to appear at court. Often it is claimed by the person summonsed that someone else has given their details to the police.
The defendant who came in to court for this case was, by my estimate, about five foot tall. He had a bushy black moustache and wiry, explosive grey hair. He was comfortably in his fifties. He was also an Italian who did not speak sufficient English for the purposes of explaining his case. He was not represented. It was obvious he was saying it was not him driving that day. Again the court clerk suggested an adjournment to obtain an interpreter. Again she left the court to explain to him. I held my breath as to what the chairwoman was about to say….
Fortunately the prosecutor spoke this time. She explained to the court that the adjournment may also prove useful. The officer who had spoken to the driver had helpfully written a description on the back of the police copy of the notice. It transpired that the driver was not wearing a top on the day he was stopped. Part of the description revealed that the driver had a distinctive mole on his chest. The prosecutor suggested that in the period of the adjournment the officer could visit the defendant and check whether he had such a mole. A sensible suggestion. To prove her point the prosecutor then read out the description “Male, white, 20-25 years old, short black hair, 6’2″ tall. Shirtless. Distinctive mole on chest.”
My head sank again. My pupil looked at me to make sure she was not the only one to have thought the case could and should have ended there and then. Even if, by sheer coincidence, our little Italian friend had a mole on his chest he was not the man stopped by the police.
The next case to be heard was a case of no insurance. A lady came in to court. The prosecutor explained the case to the court. This defendant was unrepresented but did speak English. She began to explain the circumstances by which it transpired she had allowed her insurance to lapse. Quite correctly the court clerk explained to both the bench and the defendant that this did not amount to a defence or special reasons. Special reasons are reasons of a particular type that would stop the court having to impose penalty points on the driving licence of the offender.
It transpired that the lady already had points on her licence. The minimum points for the offence of no insurance would lead to her being banned under the totting up provisions. This was explained to the defendant. She was asked if she had anything to say by way of mitigation. She began to cry. She began to explain some of her personal circumstances. I will not rehearse them here. They were truly deserving of sympathy. However they were not special reasons and were did not amount to exceptional hardship. Undoubtedly some tragic things had happened in her life. They clearly had an impact upon the chairwoman of the Bench as, unprompted and without consulting her colleagues, she suddenly announced “it’s alright Tracey, we’ll find special reasons.” Despite this being wholly outwith of the law and the procedure, the magistrates duly found special reasons and Tracey kept her driving licence.
Now people may say that they are glad 'common sense' prevailed and Tracey got to keep her licence. I did not leave the court room feeling that any great injustice had been done. What I was left with was the feeling that I was witnessing cut-price justice. Society had deemed that driving matters did not require the expense that having lawyers on both sides of the case could bring. However I also witnessed the fact that underinvestment can cause undue delay and cost (little Italian man should have been acquitted there and then). I also saw that it was too easy for the magistrates to apply the law as they saw it, rather than as it actually is.
The reason why I tell these stories now is because our system is being developed in a way that such cut-price justice is being introduced to deal with more and more cases. What began as an insidious creep is now a full scale gallop. What I witnessed that day was not adequate. I fear that the rush to the bottom being encouraged by the Government is going to spread such inadequacies right the way through the justice system.
I know that these are only anecdotes. I know that they would be dismissed by The Lord Chancellor, Chris Grayling. I will have to remember that the next time that I am asked to prosecute a case based only on eye witness accounts. “Anecdotal,” I’ll say, “No Evidence Offered.” If The Lord Chancellor would prefer statistics then I can say to him that 3 out of 3 cases I witnessed that day suffered due to the lack of proper funding. I have no doubt, and the Bar Council’s survey demonstrated, that the public want a properly funded criminal justice system. The public, this nation, deserves a justice system which is better than adequate. It is the responsibility of the Government to provide it. Even in times of austerity.
This article is drawn from Jaime Hamilton's blog.
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