Wednesday, February 24, 2010

A lay bench or a DJ?

The Bystander blog, written by an anonymous magistrate, has a readership to envy. However, the comments section will quite often degenerate into serious discussion and legal analysis, neither of which have any place on the Internet. On a recent post, an apparent colleague held forth thusly:

"...Most prosecutors breathe a huge sigh when a bench wanders into court. Id rather a DJ any day. At least the work gets done quickly and by applying it to the sentencing guidelines instead of a bunch of middle class volunteers trying to square a round hole into their concept of justice...."

So, do prosecutors prefer a lay bench or a DJ? Well, in a typically lawyer-like fashion, the answer is, "it depends".


If I haven't had time to read the files (perish the thought), then a lay bench known for a fondness of tea and biscuits is a blessing. I have time to read, and they may occasionally have to retire to consider a decision when a DJ wouldn't have to do so.

External events can also have a motivating effect. An extremely popular London and Western Circuit DJ has, for example, been known to speed proceedings along to such an extent that the afternoon session of the final day of the fifth test was enjoyed in full. By those of us who have time for such fripperies, and didn't have to scurry back to the office, that is.

As HMCS continues its drive for efficiency, or "churning", as I rather disparagingly call it, such matters will continue to be important, and speed will continue to be the "benchmark". But what about the quality of justice?

Quality of justice

That is such an ephemeral notion that regrettably, a little discussion is unavoidable. Acquitting the guilty and condemning the innocent, the Lord detests them both (Pr XVII.XV). That is the nub of the problem. Short of the very highest court, before which, we are told, we each make but one appearance, the best we can do is to examine the evidence with rigour and a scrupulous lack of bias.

I have been reading Souvenirs from the Crown Court, a book by Andre Gide about his jury duty. The jurors at the turn of the last century were regularly voting to convict people they felt were guilty of something, if not this particular crime. Such practices, I hope, are rare today.

I have, thus far, been extremely lucky in my career, and have rarely encountered a bench which has given me cause to stop the drinks trolley on the train home. Occasionally decisions don't go your way, and you're convinced they're wrong, but that's the point -- it's their decision that counts. I will add that it's basically a waste of type stereotyping a lay bench; the diversity is astonishing. I have appeared before a Harvey St consultant, a director, and an unemployed single mother, all on the same bench.

Slightly more often, however, I have had reason to believe that one or both of the wingers are, let's say, a little sharper than the chair. Experience has taught me that it's not sensible to say "Look, just ask your wingers, Sir, they've got it already, and I'm about to miss the fast train back to town."

That said, the quality of decisions is very high. I rarely encounter decisions that I think are wrong, and I rarely encounter wild departures from the sentencing guidelines -- DJs are more prone to that, if anything.


I relish a good legal argument with an interventionist DJ who clearly thinks I'm wrong. I love winning such arguments even more, even if that seldom happens. Such pace and to-and-fro legal debate is rare (but not unheard of) with a lay bench. For a long list or a juicy trial, you can't beat a good lay bench. They are well-trained, sensible, unvaryingly polite, usually quite jovial, and I have almost always enjoyed appearing before lay benches. They have a healthy dose of cynicism where required (namely, when the prosecutor is making legal submissions), and usually grasp the human aspect of the case very quickly.

So, in summary, it depends.

The future?
I find it quite sad that the government seems so intent upon eradicating lay benches entirely. For me, a sensible way forward would be to extend their sentencing powers to two years, keep more work out of the Crown Court, which is by far the more expensive way of doing things, and have more lay benches doing trials.

More racism

That poor Commander Ali Dizaei is, as predicted very recently, having a torrid time in one of Her Majesty's less comfortable hostelries.

The only surprise is that it took someone this long to attack him, and that it wasn't more serious. In fairness, he was sentenced to custody, not to having his lights punched out, and having the contents of a slop bucket chucked over his head.

Not that my local DJ doesn't look like he's fantasising about being able to impose such a sentence...

How long before Dizaei accuses the prison of racism?

Monday, February 22, 2010


Firstly, I will declare my interests. I am white man, who saves his black Wine Gums for last, uses black ink on white paper, prefers white meat when Christmas comes round, and who would not describe himself as a racist. But then again, who would? Even the BNP are now accepting non-white members.

A little while ago now, a Ms Halima Aziz was awarded £600,000 in compensation. She arrived at court in the days following September 11th 2001, and made a remark to the security guard about Osama Bin Laden. A scuffle of some sort broke out between two groups of youths at the court, of differing minorities, who were, as I understand it, present to answer charges relating to the Oldham race riots. Ms Aziz was accused of starting what was described as a 'riot', and was suspended.

As a result of the way the CPS treated her, she was awarded £600,000. The award was in relation to racial discrimination. Including costs, that little shambles cost you and I, the humble taxpayers, more than a million quid. We all have an interest in that sort of thing not happening again.

Now, the CPS is again being accused of racism.

Lewisham CPS is the borough with the dubious distinction of having received a little bit of a kicking in the most recent inspection by Her Majesty's Crown Prosecution Service Inspectorate. The CPS, by way of Gary Dolby, the Borough Crown Prosecutor in charge of Lewisham, issued a press release.

To my mind, the Independent article simply doesn't ring true. For example, Ms Riley alleges that the management "undermined her when she was in court prosecuting cases". Management never get within undermining distance of a court room, so that bit at least, has got to be rubbish.

So, it's clearly a troubled borough. But is it a racist borough? Mr Ebuzoeme and Ms Riley clearly think so. A few anonymous phone calls to my equally anonymous sources have established that the two individuals are both off on long-term sick leave, so I can't probe any further into the detail of their complaint.

Before we delve any further into the murky and perhaps racist world of the CPS, I will become serious for a moment, and say that I sincerely hope that neither of my colleagues are suffering from anything serious, and that they are both able to return to being effective front-line prosecutors in the near future. Their colleagues could do with the help, it seems.

Anyway, curiosity, other than being that which killed the cat, is a character trait that any lawyer would do well to cultivate. It struck me as odd that these two individuals would consent to the Independent publishing their full names and place of work, plenty enough to obtain very personal information, e.g. home address, number of children (on the electoral roll, for some reason), company directorships, etc. etc.

So, I decided to see what their full names could get me. I started with the most useful of research tools, Google.

Tycia Riley's name appears only on French and Belgian sites, in relation to the terrible murders of Bonomo and Ferez. It is reported that she was the lawyer who dealt with the initial remand hearing for Nigel Farmer.

Mr Ebuzoeme's name appears more often. In the Nineties, he stood trial for an affray. There is nothing at all unusual about that. There are plenty of prosecutors with convictions, so a prosecutor who has previously been acquitted is a bit of a non-story.

It seems, from my rapid Googling, that there was a wider context of an employment dispute. Given today's article in the Independent, I was curious. The CPS has a good policy about complaint handling, and investigators are appointed from senior management in other offices to ensure impartiality. The spokeswoman to whom the Independent spoke was clearly adamant that the claims were spurious and / or had been dismissed by internal investigation.

I wanted to know, does Mr Ebuzoeme have a history of spurious complaints, as the CPS seems to imply? Were there previous racism complaints? Does that make any difference to how I should view my employer? Was he just the victim of racism on two occasions in his life (unfortunately, not an uncommon occurrence)? Can I, as a white man, expect a promotion over my non-white colleagues? Or at least nicer biscuits?

More googling, and it turns out that Mr Ebuzoeme, during his academic studies in the Nineties, was involved in student politics. He was elected to a sabbatical office by a London university, and then dismissed. A complaint was made and proceedings brought. Almost ten years later, preliminary matters were still rumbling on in the House of Lords, which was hearing an appeal against various striking out orders from lower jurisdictions. Their Lordships directed that the matter be given a full hearing.

It received a full hearing in 2003, some two years after the Independent says Mr Ebuzoeme joined the CPS. I found the judgment of the Employment Appeal Tribunal here, on Bailii, a wonderful and free legal resource. It makes interesting reading.

The decision of the Employment Tribunal was said by the EAT to be "unassailable" (paragraph 88). Neither tribunal found that there was any discrimination, and rejected the evidence given by Mr Ebuzoeme in respect of alleged racism by members of the university. In particular, a Mr McCormack, a South African gentleman, was accused of having "...a background in the South African Army or Police or in the administration of the apartheid system in South Africa. These allegations were rejected by the Employment Tribunal which found on the contrary that he was firmly anti-apartheid."

Mr Ebuzoeme, then, has previously made allegations of racism. The Employment Tribunal rejected them, and the EAT upheld that decision. He represented himself as far as the House of Lords, in an area of law not his own. That takes some courage, as appearing before higher courts is a nerve-wracking experience. He now accuses the CPS of seriously racist behaviour, far beyond that which was previously alleged; going as far as actual segregation of lawyers by colour.

Which is it? Is he a vexatious litigant, relentlessly pursuing spurious claims of racism? Or is the CPS an institutionally racist organisation, within which he has suffered, in the 21st century, segregation? Only time will tell, and I look forward to the Employment Tribunal's decision in the latest matter.

And at a million quid a pop, the taxpayer should care, too.

Monday, February 8, 2010

Commander Dizaei

It seems that a particularly odious bully, who was abusing his position of trust, has received his just desserts. Four years might not seem a long time, but for a man of good character, two years in prison, of whatever category, are going to be distinctly unpleasant. For a policeman, it's going to be even worse.

He'll certainly lose weight, let's put it that way. Maybe he'll be joined by some MPs in due course?

On a side note, can anyone guess in which county a practising coroner has a conviction for perverting the course of justice?

Friday, February 5, 2010

HP Sauce

Well, well, well. I have to say, I am slightly surprised by the outcome of the expenses scandal. The high-profile stuff doesn't come anywhere near me, obviously, so I know nothing of the details, but I fully expected the usual flannel; "not enough evidence for realistic prospect of conviction, blah blah blah".

Anyway, here we are, three MPs and a peer have been charged. They are to be served with a summons to the City of Westminster Magistrates' Court, which is of course their local. It's on Horseferry Road, a short walk from the Sovereign's Entrance (although I strongly doubt they'll be walking there).

The magistrates will send the matter to the Crown Court, as it is triable on indictment only (I am open to correction on this last point, as I don't have my Archbold at hand, and am guessing at the mode of trial.) There will, I imagine, be no indication of plea, and all four men will have jury trials in due course.

Section 17 of the Theft Act 1968 makes it an offence to furnish information for any purpose, produce or make use of any account, or any such record or document, which to that person's knowledge is or may be misleading, false or deceptive in a material particular. This must be done dishonestly, with a view to gain for himself or another, or with intent to cause loss to another.

"Dishonesty" is according to widely prevailing standards, basically. It's called the Ghosh test, named for the reported case of the same name, funnily enough, and is pronounced with a long 'o', like a frightfully posh person saying "gosh".

The standard is that of "ordinary decent people". The phrase used to be "man on the top deck of the Clapham Omnibus", but I suppose times have changed, and such people may be more likely to relieve you of your wallet than be honest. In any event, if an act is dishonest by that standard, it is only dishonest in the Ghosh sense if the accused must have realised that what he was doing was dishonest. Then, and only then, may the jury convict.

It's not a simple definition, and as you can see, the right 'honorable' gentlemen concerned have a certain amount of wiggle room.

My learned readers will note that I haven't discussed the destruction of records part of the offence. That was a deliberate decision, based solely on a wildly uninformed guess that the facts weren't anything like that. So there.