Trial and Error

When we sit on a trial, especially one that takes a few hours to hear, the whole pace of our work slows right down. Rather than the rapid-fire business of the remand court, when we might deal with 100 items of business in a day, or an afternoon spent sentencing cases that have had reports prepared, we have a chance to hear the whole of a case, from the prosecution’s opening statement to verdict and, if guilty, sentence.

When I first started hearing trials I was struck by the gentle unfolding of the story – after the prosecutor introduces the case everything looks straightforward, and then, one by one, the witnesses come forward, each with his or her piece of the jigsaw. What seems clear at the outset begins to take on unexpected nuances and angles. People tell us what they saw (or at least what they think they saw) and we take account of the way they give their evidence, and how they respond to cross-examination, that powerful tool that sometimes, with one question, snaps the light on in my head, and I can see: “Yes, that’s what happened”.

We are trained to consider evidence in a structured way, and we start by paring the case down to the agreed and the disputed facts. The agreed matters need not detain us, so we look at the crucial facts that will determine whether the Crown will prove its case. Where particular aspects of the law are involved the parties and our legal adviser will have given their opinions and advice in open court before we retire. We might be addressed on case law, on the elements of the offence, or on underlying principles such as the vital need to treat identification evidence with great caution. If I am part of a seasoned bench we might interrupt at the first mention of R v Turnbull, saying “We are familiar with the guidance in Turnbull, but if you wish to refresh our memory further, please do so”. Some advocates cannot take the hint, so our cup of tea, so essential to considering evidence, will have to wait a few more minutes.

Our task is to consider whether the Crown has proved its case Beyond Reasonable Doubt. That is not the same as deciding what really happened though. It is impossible to avoid forming your own idea of the true story, but we must keep that entirely separate from our verdict. The best place for it is in the post-court debrief between the bench and clerk.

A long time ago we heard a not-guilty plea to drink-driving. The defendant’s demeanour, not to mention his tie and the badge on his blazer, made it obvious that he was a former police officer. He was now employed as head of security at a large local business. The canteen lady had been found in possession of a part-used packet of bacon, and he had been sent for. Police were called. The two PCs who attended tried to persuade him not to press charges – the value of the stolen bacon was only a pound or two, and the lady would inevitably lose her job. He was adamant, quoting management orders, and the lady was duly arrested and taken to the police station. A couple of hours later the officers called from the station asking our man to go down to make a statement. He went about an hour later, made the statement, and spent a few minutes chatting about the old days when he had been in The Job. During the genial conversation it transpired that our former Sergeant had been to the Blue Lamp Club (the police sports and social club) earlier and had met a few old pals. He also casually mentioned that he had used the Old Pals’ Act to park in the Police Station car park.

Out of the blue, one of the PCs produced a breathalyser and asked him to take a breath test. He thought that it was a joke at first but he soon found out that it wasn’t. He failed, and was arrested and charged, which is how he ended up in court.

After the trial was over, we were sure that the full story was that the two young PCs had had quite enough of the old Sergeant’s patronising manner, and they were very unhappy about his pressing charges against the canteen lady. So they decided to teach him a lesson, on the basis that those who play everything by the book had better be careful to stay the right side of the law themselves.

The final twist in the tale is that we acquitted him. Once the officers formed a reasonable suspicion that he had been driving and that he had consumed alcohol, they had a duty under PACE to caution him before asking any further questions, and they didn’t. That made the arrest invalid, so off he went.

It’s better than the telly when that sort of thing happens.