TOO MUCH PRE TRIAL ARGUMENT

 

by TheJusticeofthePeace @ 06. Nov. 2010. – 12:10:57

"Let`s Get on With It" was the title of the best training session I`ve ever attended. It was conducted by our District Judge some years ago prior to my becoming a chairman and as the title suggests its theme was to ensure that any sitting produced maximum progress in the matter before the bench. Adjournments were to be considered a last resort. As a newbie J.P. over a decade ago with little experience and the expectation that the occupants of the middle chair were fonts of all knowledge, at least knowledge in excess of mine, I was surprised how often the bench led by the chairman was swayed by unconvincing legal argument to adjourn whether from CPS or defence. Another aspect of the training session was the insistence by our DJ that we each had powers identical to his. Now this statement of our position had been mentioned at various times after I had been appointed but without any great emphasis the result being that after the training session I felt liberated and that awareness has assisted my ability as an approved chairman. It has also allowed me to answer various lawyers whose respect for the bench seemed perhaps lower than it might have been by using a phrase I heard as a winger from an elder and much esteemed colleague, "This is a Magistrates` court and the bench will decide, Mr [Ms]....."

Early this year Dave, a nineteen year old, was on trial accused of assaulting by beating an 87 year old pensioner. In particular the complainant had lost a tooth during the alleged assault. Police officers, complainant and defendant were present. Prior to his plea the CPS prosecutor made an application to adduce a statement from the complainant`s dentist taken a day after the alleged assault in which he described the injuries examined after the incident and in a separate paragraph also wrote his opinion of the likely cause. On being questioned by the bench he made it quite clear that he could not proceed without the full statement. Both lawyers agreed that this latter paragraph was extremely prejudicial to the defence. Although the incident had taken place five months previously the dentist`s statement had been served on the defence only eight days before the trial and returned to the CPS on the seventh day; tardy but within the rules. 

Not surprisingly defence counsel wanted the dentist to be summonsed to be cross examined on his second paragraph; his opinion as to cause of injuries. The prosecutor was adamant that without the complete statement being exhibited his case could not continue. At this late date of course he could not be called so defence applied for an adjournment and for the trial to be vacated. CPS objected and wished to go ahead even part heard. With "Let`s get on with it" in mind we retired to discuss. We returned having decided to reject the application to adjourn and to disallow the statement`s being adduced. There was silence in court for a full sixty seconds while the lawyers conferred in hushed tones. A joint application was made for a further ten minutes adjournment. At this point a cup of hot strong sweet Italian black coffee could be tasted from twenty yards distance and we retired. 

On our return we were told that the CPS contrary to their previous position would now be able to proceed without the damning opinion of the second paragraph. Unsurprisingly defence counsel made a further application to adjourn. Being all experienced magistrates [a comment damning with faint praise akin to "with greatest respect" often used by lawyers in a condescending fashion to we mere J.P.s] we had discussed this possible turn of events in the retiring room between our sips of coffee. 

Our legal advisor to whom we had conveyed our thoughts five minutes earlier sat rigidly facing the parties as our reply was made. "This bench in the interests of justice cannot now adjudicate. Although we are well aware that we can disregard much of what has been told us there is no escaping that knowledge of the admitted damning opinion in the dentist`s statement could give rise to possible prejudice and regrettably the bench must adjourn this trial to another date and another bench. The Genie is out of the bottle. If the parties had earlier agreed their position that the dentist`s statement could have been appropriately redacted the case would have gone ahead." The prosecutor`s head slumped. 

"Let`s get on with it" is like a car`s accelerator; it needs to be pressed to allow progress but without a brake calamity [or an appeal] is just around the corner.