Frustrations of Being a Magistrate: Episode 1: Ineffective Trials

Whenever a defendant denies the charge against them a trial is needed to determine whether or not they did commit the offence in question.

I really enjoy trials. It must be my inner Inspector Morse. I find it satisfying following the evidence and weighing up the arguments on either side.

That being the case, it is frustrating that so many trials go off at the very last moment. These are referred to as ineffective trials and it is are regrettable fact that they regularly outnumber effective trials.

Based on my observations there are two frustrating causes of ineffective trials - over-listing and cracking.

Over-listing:

The most recent Criminal Court Statistics Quarterly indicates that one-third of all ineffective trials at the Magistrates' Court arise due to administrative errors. In my neck of the woods over-listing seems a particular problem.

Just like airlines deliberately over-sell flights, so court administrators deliberately over-list trials. They do this in the realisation that half the trials listed on any particular day won't go ahead. This invariably results in the situation where there are four two-hour trials ready to go, with four sets of advocates and witnesses poised ready for action, but there is only time for two of them to actually go ahead.

The witnesses for the two trials that cannot now go ahead are surplus to requirements so are sent away, having probably already waited around for 2 or 3 hours, with a kindly word for their public spiritedness and in the hope that they will return when their trial is relisted six weeks further down the line. Of course some of them won't bother to return, having wasted their time on the first occasion.

Cracked trials:

Trials are also ineffective when they crack. Cracked trials are those listed to go ahead on a particular day, which don't go ahead due to a last minute action on the part of the prosecution or defence. Cracked trials account for another third of ineffective trials at the Magistrates' Court.

In my experience cracked trials usually arise in two situations:

• When a key prosecution witness fails to attend: This means the prosecution is unable to offer sufficient evidence to prove its case. In these circumstances the court will usually call the case on, but the prosecutor will immediately rise to their feet and formally offer no evidence. This results in the court dismissing the charge against the defendant.
• When the defendant changes their plea to guilty on the day of trial: Having had considerable time for reflection, the defendant might plead to the original charge or an alternative (invariably lesser) charge offered by the prosecution.

I find the non-attendance of prosecution witnesses particularly irksome when the witnesses in question are police officers or staff. Two such historical cases spring to mind, which still niggle at me despite the passage of time.

In the first case a defendant was charged with using his mobile phone whilst driving. The trial had been listed on a previous occasion, but had been adjourned in the interests of justice when the CPS failed to realise that the police officer witness was on leave that day. Come the second trial the CPS prosecutor reported that the police officer witness was again unavailable as he was on a rest day. The prosecutor then shamelessly asked for a further adjournment, despite the unrepresented defendant being present and ready to contest the charge for a second time.

The legal advisor asked the defendant his thoughts on a further adjournment. The defendant was clearly bemused by the situation, but adamant that he wanted to get matters dealt with once and for all. There was no way that we were going to entertain the idea of a further adjournment, so the prosecutor sheepishly acknowledged that he could offer no evidence. The charge was duly dismissed.

I seem to recall that we were all fizzing at the CPS's lacklustre performance that day, but the chairman somehow resisted the urge to tear a strip off the prosecutor.

The second case involved the theft of a lawnmower. The prosecution case hinged entirely on the account of a PCSO, who claimed to have witnessed the defendant removing the lawnmower from a residential garden. The PCSO had had previous dealings with the defendant, so was confident of his identity.

Come the day of trial the prosecutor rose and informed us that the PCSO was unavailable, as he was on a rest day. The defence advocate responded that it was entirely the CPS's fault that the PCSO hadn't been correctly warned and his rest days had been muddled up. He pointed out that had the defendant failed to appear, the CPS would have happily ploughed on with the trial regardless and probably laid Bail Act charges to boot. To compound matters, the police had been dragging their heels and the offence was already a year old by the time it got to trial.

Given the circumstances, we were minded to agree with the defence perspective. The prosecutor could offer no evidence, so the charge was dismissed. I dread to think the opinion the owner of the lawnmower will have formed of the justice system.

In the case of trials cracking with a change of plea, in the twenty-first century it is ludicrous that last minute horse trading happens on the day of trial. By that stage both parties have had ample time to mull over the evidence and consider their respective positions. There is absolutely no need to drag witnesses many miles to court, build up their apprehensions about standing in the box and then send them away unused. I'm sure nearly every change of plea, bar those of unrepresented defendants, could be dealt with administratively in advance of the trial date.

This may well become a regular series, so stay tuned for further frustrations of being a Magistrate in the future!