Hold The Line

Would the people who employed illegal immigrants ask for digital ID? If you think that, then you probably also think that if drugs and prostitution were legalised, then all the dealers and the pimps would adhere to health and safety regulations while registering for VAT.

The requirement to produce digital ID to work was its only selling point, and even that was unconvincing. There is now no point to it even in the Government’s own terms. Away with it. Away with even any partial exemption of MI5, MI6 or GCHQ from the Hillsborough Law’s duty of candour. And away with the attack on trial by jury, and on the automatic right of appeal from the Magistrates’ Court.

Fresh from her confirmation that the Government would be making that attack that even if there no Crown Court backlog, Sarah Sackman has confirmed that it would be retrospective, taking away the right to jury trial of defendants who had already elected for it. As to the latest briefed changes, Joanna Hardy-Susskind tweets:

There are press reports today that the jury trial restrictions will be ‘watered down’ by adding two magistrates to the single judge. A panel of three. One judge. Two magistrates. Here’s why it’s not watered down, why it’s no compromise, and why we should hold the line.

First, magistrates are lay people who have volunteered to decide criminal cases. They are given some training but they are not legally qualified judges. This means the relevant legal provisions and legal tests will need explaining to them. Just like a jury.

Second, if they are to play a meaningful role in the verdict then there will need to be time allocated to deliberation. Three people will need to discuss which evidence they accept, which evidence they do not, apply it to the legal test(s). And decide. Deciding takes time. Whether it’s 3 people or 12 people. It’s not 1 person. And so the argument that has been ventilated recently that a judge alone will be much quicker (presumably because they’d be hilariously deliberating with themselves) has gone.

The new ‘bench’ court, we’ve been told, will give reasons. How exciting. A written ruling about what the panel of three found. Have you ever tried to write a document at work by committee? How long did it take for everyone to agree? Was it quick? Or was it a slow death?

And what happens with a panel of three when the case overruns? Which - and I cannot stress this enough - it often will. Well. You get the diaries out. Except. Magistrates aren’t full time. They’re volunteering. When can they & the barristers & the judge all next meet? It might be weeks. If you’re lucky. It’s more likely to be months. If anyone has the time or inclination then ask an employment barrister how long it takes them to get a panel of three back together for the reunion tour after an adjournment?

And if the panel of three do spend time deliberating & do spend time drafting reasons and do go part-heard and do meet again and do convict - when is the sentencing going to be? Presumably the Magistrates need to come back for that? Get the diaries out again? Another few months? This will be administrative carnage. Mark my words. Utter carnage.

But - you may reasonably ask me - Joanna, I saw you on the news and heard you on the radio saying judges don’t represent the society they serve and so surely - surely - Magistrates are like jurors? Well. No. Magistrates are unlike jurors in two ways. First, jurors are randomly selected for a duty and Magistrates volunteer for a role. For whatever reason their diversity does not reflect society in the way random jurors pulled from the electoral register do. For example, age. The figures below, frankly, speak for themselves. Do you know how many defendants are under 50 years old? Do you know how many are aged under 29? A lot. I mean. A lot. Juries file into court and there are young and old faces from across society.

Second, Magistrates are not hearing their first burglary trial. Not hearing their first assault trial. This is not their first pub fight, theft, fraud or exposure. All of the arguments that apply to judges deciding alone - that they are at risk of becoming case hardened - apply.

And so, what these ‘watered down’ proposals are actually doing is adding back in time but losing the strength of a jury. 3 voices. Not 12. And 3 voices without the strength of those in a jury box. It’s the worst of both worlds, it won’t save much time, & it’s no compromise. On the merits, these reported proposals are getting worse, not better. Hold the line.