Split Bench: A Difference of Opinion

The Magistrates' Court can perform its full function with a Bench of only two Magistrates.

However, the preference is always for a Bench of three Magistrates, as is normal practice, so that a consensus can be reached on every decision. I should say that by convention the Bench speaks as one, even if one of the Magistrates disagrees with the others. The Presiding Justice makes pronouncements based on the decisions of the Bench, even if those differ from their personal views.

Benches of two are pretty rare in post-covid times, but they do occasionally happen if a Magistrate cancels at short notice or fails to attend court as expected.

As every Magistrate has an equal say in any decision taken by the Bench, a decision cannot be made if a Bench of two are in disagreement.

This is a very unusual situation. There has only been one occasion where I have sat on a Bench of two and been unable to agree with my colleague. In today's article I am going to explain how the situation arose and what we did to overcome it.

I was sitting in the daily remand court on a Bench of two. Appearing in custody was a man who had been arrested on suspicion of wounding with intent. This is a very serious offence and one that can only be dealt with at the Crown Court.

Very briefly, the allegation was that the defendant had used a weapon to attack another man during an altercation in the street.

It was an unprovoked attack, which happened when the defendant was out socialising that evening. The defendant had a few too many drinks and became a bit lairy, which resulted in the victim approaching to have a word. 

According to the Crown, the defendant had then assaulted the victim. It was a nasty assault, involving a weapon. The victim sustained life changing injuries, which we were shown photographs of.

We were in no doubt that if convicted the defendant would face a lengthy custodial sentence.

The defendant denied the offence, so we had to decide whether or not to grant bail until his next hearing at the Crown Court. The Crown made an application to have him remanded in custody, on the basis that if granted bail there were substantial grounds to believe he would commit further offences. The Crown also expressed concern that he might interfere with prosecution witnesses.

The defendant's solicitor was of the opinion that bail could be granted with suitable conditions. He highlighted that the defendant was not local to the area where the alleged assault had taken place and had no reason to return there.

He also highlighted that his client, who was not heavily convicted, had been out of trouble for several years and there was nothing to suggest he would interfere with witnesses or commit further offences if granted bail.

The defendant was also arrested on the basis of what I'll describe as "equivocal identification" several days after the alleged assault. At that time the Crown didn't have particularly strong evidence linking him to the alleged assault.

Having considered the circumstances I was minded to grant conditional bail. My colleague, however, had the opposite view.

My view was that conditions could be imposed that would mitigate the concerns of the Crown. I also didn't consider the Crown had very strong grounds for the concerns it had raised. My colleague, however, was of the view that the defendant was potentially very dangerous - too dangerous to be out in the community.

After fifteen minutes of discussion we were no further forward, so we informed the Legal Advisor that we would need a Bench of three to reconsider the matter.

Later that day another Bench aligned with my view, granting the defendant bail with conditions. However, the Crown immediately announced its intention to appeal the bail decision.

Two days later at the Crown Court the Circuit Judge considering the matter agreed with the Magistrates' Court decision to grant bail with conditions.

I felt somewhat vindicated at that decision.

As I've mentioned several times before, bail is undoubtedly one of the most difficult decisions the court has to make. Difficult as it is, there is a clear process for determining whether or not to grant bail.

We apply the legislation against the prevailing circumstances and sometimes arrive at a decision we might not like, but is the legally correct one.