Monday Message 24.10.16
Francis FitzGibbon QC
Kalisher Trust & Lecture
The CBA’s annual Old Bailey winter lecture season began on 18 October, with the Kalisher memorial lecture. This year, the Attorney General, Jeremy Wright QC MP, gave the lecture. His theme was The Changing Nature of the Criminal Justice System. The A-G revealed himself as a fan of restorative justice, which is an underdeveloped part of our criminal justice system. His audience included the senior Old Bailey judiciary and Lord Judge, who has dedicated all the proceeds from his newly published collection of essays, The Safest Shield, to the Kalisher Trust.
For those who don’t know about the Kalisher Trust, now in its 20th year – it supports young criminal advocates with scholarships, internships, training and the annual essay prize, which was won this year by: Nicholas Murphy, 25 Bedford Row (1st);
Jamie Scott Citadel Chambers, Birmingham (2nd); and Nicholas Hall, 2 Hare Court (3rd). These are people we will hear more of.
The work the Trust does is really valuable and it deserves our support. If you or your Chambers don’t already support it, please think about doing so.
MPs’ Report on Magistrates Court
The House of Commons Justice Committee has published its report on the Magistrates Court. It makes for gloomy reading. Among other things, it finds widespread low morale among Magistrates, and says they need better training and appraisals, as well greater diversity in their recruitment. The MPs have made a number of policy proposals, of which the biggest take-away is to increase sentencing powers to 12 months imprisonment per offence, with a maximum of 15 months for multiple offences (by bringing Section 154 of the Criminal Justice Act 2003 into force).
At the same time the Administrative Court decided a case called Hottak (available only in summary, on Westlaw, so what follows may need revising). A Magistrates Court refused to adjourn the case when the CPS served a complainant’s Achieving Best Evidence video interview on the day of trial, without a transcript. There was no transcript. Inadmissible parts could not be edited. There was no bad character application. The recording was shown to the Court in full. The Magistrates allowed the defendant two hours to give his instructions. The Administrative Court were satisfied they had not acted in a Wednesbury-unreasonable way. No injustice was done to Hottak.
The case neatly illustrates what happens when a failure by the CPS combines with the Courts’ policy of refusing adjournments – in the name of efficiency. It seems to me that in these circumstances to give the Magistrates – under-trained and under-resourced, suffering from low morale, taking on more work, and being exposed to failures by other agencies – greater sentencing powers, is a recipe for more real-world injustice. Add to that the deplorable state of the prisons and the questionable value of short sentences, and the proposal looks potentially dangerous.
The MPs also believe that ‘problem-solving courts’ should be developed – in which Magistrates take on long-term, personal, supervisory role of offenders. To do so will require the abandonment of many silos, and a major rethink of the roles of magistrates and the probation service. In a Drugs Court, the Bench (the Bench, not the legal adviser) must not only understand drugs law, but have empathy for the offender, and unusually good communication skills to get to the heart of the matter with the offender. They must also have proper training. That would take a massive commitment.
Citizens’ Advice: Witness Service for Defence Witness
Citizens Advice would like their service for defence witnesses to be better known and more widely used.
R v Mitchell
This is an important new Supreme Court decision on bad character evidence: in short, where propensity is to be proved by a number of incidents that did not lead to a conviction, the individual incidents do not need to be proved to the criminal standard. What needs to be proved to that standard is the existence of the propensity.
Women’s Silk Application Support Group
The CBA is setting up a panel to advise and support women who are applying for Silk, or are thinking of doing so, or have done. Please contact Angela Rafferty QC or Aaron Dolan for more information.
A memorial service for Ian Glen QC will be held at Lincoln’s Inn Chapel, on 27 October, at 5.00pm, followed by a reception at Gray’s Inn.
A Service of Thanksgiving for the life of David Howker QC will be held at Temple Church on 7 November, at 5.30pm, followed by a reception at Daly’s Wine Bar, 210 Strand, London WC2R 1AP .
Kate Mallison’s memorial service will be held at Temple Church on 10 November, at 5.30pm, followed by a reception at Daly’s.
The Monday Message
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