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.
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.