Tuesday, September 02, 2008

Trials and Tribulations

My court is not, fortunately, one of those suffering a major drop in business due to the proliferation of cautions and other out-of-court 'justice'. Our Family and Youth panels (neither of which I am involved with) are loaded with business, and many of the cases they deal with take two or more days; some family cases are listed for four or five. In the usual run of things this would be a natural for a District Judge, because it can be difficult to assemble a lay bench of three for that many days, but at the moment there are more multi-day cases listed than there are DJs to hear them.
Those of us who sit in the adult court are currently seeing a lot of Domestic Violence trials, which are usually charged as Common Assault. This prevents the defendants from electing jury trial, saving a lot of money, and keeping things relatively simple. The judges prefer it that way too.
Once the prosecution and the defence have had their go, we might be addressed by the clerk to remind us of the elements of the offence, and the standard of proof, then we troop outside to consider our verdict. We use a simple structure. Firstly, identify and agree the legal issue - what has to be proved. Then we consider the agreed facts, and put those to one side. Then to the disputed facts; we look at the evidence and discuss any points that are clearly made out, and any anomalies. In DV cases there is usually little more to go on than two conflicting stories, because the only two people who know what really happened are (alleged) victim and defendant. Evidence of injury may be helpful, especially if it is in the form of a doctor's report. Police photographs taken at the scene can also help, but are frequently of lousy quality. It is not possible to age a bruise from its colour, even though we all know how they tend to go blue, brown, yellow and fade. Unfortunately this occurs at different rates in different people, so it is evidentially useless. DV victims sometimes appear to be minimising or confusing their evidence, which might be because they had second thoughts once tempers had cooled and drink had worn off, to find the CPS refusing to drop the case despite a withdrawal statement. I recall one such where the victim appeared on a witness summons, and told us that she heard lover boy battering at the front door, finally went to answer it, and woke up in the kitchen with her back to the fridge, and the beginnings of a black eye. She didn't remember any more than that. Not Guilty then - no evidence of an assault.
So after looking at the evidence the Chairman will take his colleagues' views, then ask if the Crown has proved its case beyond reasonable doubt. Whatever the answer, we agree and write down our reasons (about a third of a side of A4 is plenty). Then we go back in and tell them what we have decided. If it's guilty, there will probably be a three week adjournment to prepare reports with a view to IDAP or some other community penalty. After a trial I am a strong believer in the principle that at least one of the convicting bench should sit on the sentence. In some areas clerks try to discourage this, but there is a real danger that the report writer will come up with something that doesn't reflect the reality of the evidence that we heard.

No comments:

Post a Comment

Posts are pre-moderated. Please bear with us if this takes a little time, but the number of bores and obsessives was getting out of hand, as were the fake comments advertising rubbish.