MONUMENTAL INCOMPETENCE

I am told that judges, lawyers and staff in the family courts may have to cut corners and exceed time limits because of the high volume of work, and by all accounts, it is a malaise spreading throughout the entire court system.

My recent experiences of the court service do not auger well, and whilst it is easy to blame ‘high volume of work’, much is down to incompetence. In addition, the increasing involvement of the litigant in person is a factor. If you make litigation ‘user friendly’ then you can hardly complain if litigants in person use it.

In the civil and family courts, legal aid is not readily available, a commendable attempt no doubt to keep costs to manageable proportions, so the litigant in person has little help beyond their local Citizens Advice Bureau and a handful of self-professed experts down at the Bull and Bush public house, where they know everything. Tempting though it is for judges to throw their arms up in disgust and dump the whole case in the rubbish bin, this is unlikely to find favour with the powers that be.

These and more are challenges to the court system, but the challenges arise primarily from monumental incompetence.  I realise that when I contact a court, either by email or phone, I am told in advance that court staff are not legally qualified and therefore cannot offer legal advice.  Fair enough, but invariably the purpose of my contact is simply a request for a progress report and an update, not unreasonable in the circumstances.  If I send an email, I get a computer generated reply which reads: “Thank you for your email which has been received by the court. We will reply as soon as possible,” but they don’t.  In one case, I sent 8 emails, all receiving the same computer generated reply, and nothing else.  I was subsequently criticised by a judge who reviewed my case and told me that the court staff were under considerable pressure and I should stop pestering them!  Unhelpful in the extreme, and if this is the prevailing attitude, what hope of reform?  Finally, in sheer frustration, I made an official complaint to the Ministry of Justice, which at least generated a prompt reply from the clerk to the court’s bankruptcy division.  As my case had absolutely nothing to do with bankruptcy, the reply was well intentioned if wide of the mark.

In June 1996 the Rt Hon Lord Woolf published a review of the civil justice system. His findings were that the civil justice system was too slow, too costly and too complex. As a result of this review legislation was made for the introduction of rules of court to be called the Civil Procedure Rules (CPR). The rules are to be made with a view to securing that the civil justice system is accessible fair and efficient, and the rules are both simple and simply expressed.  Sadly, they failed on both counts, and as they say, the road to hell is paved with good intentions.


After 3 years of navel gazing, the CPR came into force on 26 April 1999, and are now the bible of the civil law.  But what Lord Wolff and his committee didn’t envisage is that these Rules would take on a life of their own, to be analysed and gnawed over ad nauseam. 

I remember the good old days when judges decided cases not on the niceties of legal semantics but on good old fashioned common sense. I remember one judge in particular who denied Counsel access to law books on the basis that he was the law in his court, and that was that.  His view may have been extreme, but he was rarely appealed and there was little or no backlog of cases waiting for his determination.

We need judges to lead, not follow.  We need judges with imagination and the confidence to make decisions.  We need judges who are not afraid  of their own shadow.  And above all, we need judges with a mind of their own and not simply the mouthpiece of the civil service.  If the civil service want to remain monumentally incompetent, let them do so, but not on our time.

SEE THE HAPPY MORON

I remember reading a ditty the other day: “See the happy moron, he doesn’t give a damn, I wish I were a moron, My God perhaps I am,” and my thoughts turned immediately to trial by jury, that perennial hoary chestnut.

It has reared its ugly head again following a speech from Lord Judge, the Lord Chief Justice of England and Wales, where he warned that the jury system is threatened by the internet generation, who no longer get their information by listening to people speaking. As evidence of this, he cited his grandchildren as being ‘switched off’, presumably when he rose to address them over the breakfast table.

Now I don’t know what Lord Judge did in a former life to earn an honest crust, but he’s been away from the coalface since 1988, when he was first appointed a High Court Judge, so I wonder why, after all these years, he feels qualified to pontificate. I suspect it may have something to do with the need to be seen to say something, anything, to underscore his recent elevation.

On any view, these pearls of wisdom are anything but, and tackle the problem from the wrong end. The mischief is compounded by a spokesperson from the Bar Council, that antediluvian body supposedly representing the interests of barristers, who condoned the demise of “florid and colourful advocacy” in favour of the multimedia as adjuncts and tools to help the advocate make his case in the most effective way. Absolute garbage!

A little basic research would not come amiss. The reason why juries ‘switch off’ is because barristers have lost the art of advocacy, and have replaced it with prolixity. Trials have become longer and, inevitably, more boring, as advocates fail to distinguish between relevance and irrelevance, so they throw in the lot, and expect the jury to do their work for them.

The art of cross examination has been dead for many years, and final speeches would test the patience of a saint in style and content. The all comers record was a final speech lasting a full week. That’s twenty five hours! At least that particular advocate was disbarred, not because of his final speech I hasten to add, and he’s now practising his unique brand of advocacy beyond these shores. My style of advocacy could indeed be described as “florid and colourful,” I’ve never regretted it, and though I say so myself, nor have the juries I’ve addressed. I do a fair amount of public speaking, and as I rise to my feet, I remember the advice I was given when I first started out:

“A good speech should be like a woman’s dress. Long enough to cover the essentials, and short enough to be interesting.”

Arguably my most effective speech to the jury came at the end of a three week trial, delivered entirely in verse, and lasting all of eight minutes.

Go into any crown court in the land, and odds on you’ll hear boring monotonous repetition. And this is not confined to the advocates. Trial judges are equally to blame, and the likes of Lord Judge and the Court of Appeal must bear their share of responsibility. Trial judges must be far more proactive in regulating the proceedings, stamping down on prolixity and concentrating on the main issues. They are most at fault when it comes to summing up the case to the long suffering jury. Time and again, like incompetent advocates, they simply repeat the evidence, almost verbatim, throwing in the lot and expecting the jury to do their work for them and sort the wheat from the chaff.

Juries listen daily to the spoken word, usually in front of the television, and successful television producers are well practised in the art of presenting information in an interesting and digestible form, concentrating on the main issues and dispensing with verbiage. That’s what advocates should learn, so it’s back to the drawing board.

The new breed of ‘advocate’, coming as they do from the ranks of solicitors with no training in the art, and no feel for it, are the main culprits, but the Bar is not beyond reproach. Pupillage is intended to give embryonic barristers a taste of advocacy outside the lecture hall, but gifted advocates are rapidly becoming a dying breed.

I’m in favour of giving juries greater control over the proceedings. When they’ve heard enough, and they’re bored rigid, they should have an X Factor buzzer which they can press and bring the lamentable performance to an end. Now that’s what I call using the multimedia as effective “adjuncts and tools” in the trial process.

LITTLE CHILDREN

Against my better judgment, my daughter persuaded me to watch a film entitled Little Children the other night. It starred the morose Kate Winslett, bucking for another Oscar and rapidly turning into the poor man’s Meryl Streep, together with an utterly forgettable supporting cast.

Basically, it’s a film set in Little Town America, where prejudices are as hard as granite, and into their midst is released a paedophile convicted of indecent exposure towards a minor, so hardly the crime of the century. LTA is on red alert, exacerbated by a self styled vigilante, who patrols the streets handing out leaflets and shouting from the rooftops. The film ends with the paedophile’s mother dying whilst trying to protect him from this concerted campaign of vilification, and he committing a gross act of self mutilation in the town park. All very gory and not suitable for family viewing.

I suppose the author’s message was that the paedophile was never given a chance to integrate into life in LTA, and was persecuted out of all proportion to his crime and the threat he might have posed. The oxygen of publicity all but suffocated him.

Which brings me seamlessly on to the modest reforms announced by the Ministry of Justice last year, and due to come into effect on the 27th April. In short, family courts are to be opened to the public, and by that, I mean the media, as the public, for the most part, are not remotely interested in watching dirty linen being washed in the full glare of publicity. But the ‘crusaders’ in favour of open courts have been told that judges will have the right to prevent reporting in certain cases, and to exclude the public and the media if they deem it necessary in the interests of justice.

The Times newspaper was at the forefront of this crusade, giving an inordinate amount of coverage to the views of one Camilla Cavendish, about whom I know nothing. The received wisdom from The Times commentators is that these reforms are likely to be still born if judges have their way, and CC and her camp followers have climbed back into the pulpit.

The Media, by definition, report the sensational and especially the prurient for mass consumption. If it isn’t sensational, they make it so, as this sells copies. But the Media are also slow to correct factual errors, witness their correction columns buried in the inside pages, where brevity is their watchword. Give a dog a bad name and hang it can so easily become reality, and where families are concerned, where raw emotions are never far from the surface, and with children being used as bargaining chips in bitter disputes between parents, the oxygen of publicity can indeed be suffocating.

Leave aside the real risk that with the media present, the truth will be concealed, or at least glossed over, how can families at war be helped if they are looking over their shoulders all the time, watching some news hound scribbling away, knowing that their every word may be reported and distorted?

In these days of global communications and hot press wires, Darren and Sharon squabbling over Kylie and Wayne can make for good headlines, especially if there are allegations of abuse, with all the trimmings. A quiet day in Fleet Street can turn a routine family case into a multimedia circus and do untold damage.

Finally, it is worth remembering that family cases often involve several hearings, especially if custody of the children is in issue. There will be reports from Social Services, Court appointed officers, the children will have their own guardian, possibly paediatricians, psychologists and psychiatrists, to ensure that no stone is left unturned in the best interests of the children. And the likelihood is that the media will become bored after the parties’ opening position statements, and so, several months later when the case concludes, the media will have exhausted their feeding frenzy and moved on. And what remains? Graphic headlines pillorying one party or another will never be corrected, and those pilloried will have to live with the stigma that was patently untrue and never of their making.

So I applaud the restrictions placed on open access to family courts. Presumably the media will have the same rights to challenge an exclusion order or a reporting restriction as they do routinely under the Contempt of Court Act 1984. It should be all about fairness. There is no room in the family courts for sensationalism, and long may it remain.

THE WISDOM OF AGE

The Supreme Court of England and Wales is soon to open its doors for business. It replaces the House of Lords sitting in its judicial capacity, and will translate a few hundred metres across Parliament Square to Middlesex Guildhall, one of the few remaining buildings close to the seat of government not already commandeered by Members of Parliament for their wives, mistresses, children and assorted acolytes feeding from the public purse.

I once had an outing before the House of Lords Appellate Committee, many years ago when I was a callow youth, and I was given the ‘dead man’s’ slot of 2 pm. There was therefore a somnolent air pervading the proceedings, and whilst their lordships listened courteously, if not attentively, they remained unpersuaded.

I suppose it was the normal reaction of callow youth, but I was struck by the fact that the combined ages of the ‘gang of five’ must have exceeded four hundred. However, I accepted then, as I do now, that with age comes gravitas, wisdom and a wealth of experience, and so long as they have all their marbles, I see no reason why age alone should disqualify their lordships from sitting in loco judiciaris. Some of my heroes went on and on. Lord Denning retired aged 83, and some of his best judgments were delivered in his seventies. My all time favourite was Lord ‘Wee Jimmy’ Reid, who was made a law lord in 1948 and retired in 1974, at the ripe old age of 84.

More recently, I appeared before a pimply youth sitting as a Recorder, the first rung of the ladder to judicial advancement. He looked about eighteen, but I suppose he was older, and I thought to myself, what on earth do you know about life? He had no gravitas or wealth of experience, and simply followed the Judicial Studies Board idiot guide for pimply youths, never once looking up from the text. His judgment was unappealable, as he followed the text to the letter of the law, but he had no feel for the job, and my client, a good thirty years his senior, was singularly unimpressed. He was not alone.

The pimply youth is symptomatic of where we are going wrong, as the government tries to square the circle. They want all judges to retire at the age of 70 to cut back on pension provisions, but they also want their pound of flesh, namely a good twenty five years in the job, so more and more of my colleagues in both branches of the profession are being appointed as full time judges in their forties. This means that they must plant their feet on the first rung no later than their fortieth year, if not earlier.

When I first came to the Bar, judges were appointed after a full and varied life at the adversarial coalface, and often in their sixties, so they brought to their appointment a wealth of experience, and above all, respect for their high office. That respect is draining away.

Medical science is allowing us to live longer and in good health, well into our seventies and eighties, and it would be a great shame indeed if we did not harness the wisdom of age in a discipline where public confidence and respect in the law go hand in hand. A mandatory retirement age of 70 is absurd, as it casts aside the most talented judges who are still at the height of their powers.

TWELVE HONEST MEN AND TRUE

In one form or another, trial by jury has been with us for the best part of 800 years, although its metamorphosis into the present system is more a phenomenon of the past fifty years.

Today’s jury is drawn from both sexes, or all three if you include the ‘undeclared,’ the property qualification fell by the wayside some years ago, literacy is irrelevant, as it has been since the introduction of comprehensive education, the age qualification has been lowered to eighteen, and now, perish the thought, those traditionally excluded from jury service, such as judges and lawyers, have been brought on board. Can you imagine anything worse than a gaggle of lawyers pretending to be laymen?!?

The recent transatlantic airline bomb plot trial has led to a number of critical comments about the jury system. You will remember that after months of evidence trotted out to prove, beyond a reasonable doubt, that the ‘British’ Muslims accused of the plot were as guilty as sin, the jury failed to agree on the main allegation, and there is now talk of a retrial.

There are three possible explanations for the jury’s failure to convict. Either they were bored rigid, or catatonically stupid, or, perish the thought, the prosecution failed to discharge the required burden and standard of proof, or all three. Take your pick!

I have always thought it the height of arrogance for the prosecution to blame the jury for failing to convict, and as we are not privy to their deliberations, it is pure speculation of the worst kind. But when considering trial by jury, consider for a moment how it works, or doesn’t work, depending on your perspective.

The twelve are chosen at random, and there is now no right of peremptory challenge. You get what you’re given, warts and all, which, on any view, is absurd. To quote just one example, how can it be right, at the beginning of a complicated fraud trial, to have illiterate jurors on the panel? The American system of jury vetting is far better and fairer. As far as humanly possible, under their system, you get the twelve best suited to return the right verdict. As both the prosecution and the defence have equal input in the vetting process, it works fairly for both parties as well as the interests of justice.

Speaking of being bored rigid, especially in a long trial, I also question the need for the judge to sum up the facts as well as directing the jury on the law. They will have heard final speeches from the prosecution and the defence, and all the relevant issues will be placed before them, ad nauseam, so why go through it all over again? The judges should keep out of the evidential arena.

In the bad old days, when prosecution minded judges expected juries, who were there simply as window dressing, to do as they were told, there were a number of high profile miscarriages, the most notable of which remains the conviction and execution of Derek Bentley back in 1953. Lord Goddard, the trial judge, entered the evidential arena with all guns blazing, and was roundly criticised in the Court of Appeal some 45 years later, and rightly so, but too little too late.

Trials are getting longer and longer, although fewer and fewer able barristers are willing to conduct them at today’s knock down prices. A belt and braces approach routinely adopted by the prosecution leads to prolixity, which is counter productive, bearing in mind that the attention span of the average juror is in the region of ten minutes.

So is there a strong case for keeping trial by jury as we have it? Are these twelve honest men and true the bedrock of a civilised society and the bulwark against executive interference? I have my doubts. Judges, sitting with lay assessors where needed, are far better qualified to get at the truth, so long as they give detailed and reasoned judgments for their findings, as happens in the Court of Appeal. Conversely, juries are never required to give their reasons in support of their verdict.

With the abolition of trial by jury, potentially long trials will shorten dramatically, thereby saving the hard pressed taxpayer a fortune. So the choice is clear. Either embrace the American system of trial by jury, or abolish it as unworkable and unreliable.