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August 2, 2019 - June 26, 2020
Questions in cross-examination should strictly only be aimed at eliciting facts, not providing an opportunity for the advocate to comment.
powers of correction intended to punish, deter, protect and rehabilitate.
That defendants, victims and, ultimately, society are being failed daily by an entrenched disregard for fundamental principles of fairness. That we are moving from a criminal justice system to simply a criminal system.
the job also requires the skills of a social worker, relationship counsellor, arm-twister, hostage negotiator, named driver, bus fare-provider, accountant, suicide-watchman, coffee supplier, surrogate parent and, on one memorable occasion, whatever the official term is for someone tasked with breaking the news to a prisoner that his girlfriend has been diagnosed with gonorrhoea.
Simply put, if enough people don’t believe the state to be capable of dispensing justice, they may start to dispense it themselves.
the current state of our criminal justice system should terrify us.
abolition of the death penalty in 1965.
Gavels have never been used in English and Welsh courtrooms.
signing of Magna Carta at Runnymede on 15 June 1215
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
The prosecution witnesses go first. The prosecution advocate examines the witness ‘in-chief’, asking the witness open questions to elicit their evidence, before the defence cross-examine the witness through a series of short closed questions designed to undermine the prosecution case and lead the witness to the desired answer.
Oral evidence is assumed to be intrinsically superior to written evidence.
Helena Normanton smashed the glass ceiling in 1922)
In 1791, in a trial at the Old Bailey, celebrity barrister du jour William Garrow sternly told the judge that ‘every man is presumed to be innocent until proved guilty’. This was the first formal articulation of what would, in 1935, be described by the Court of Appeal as ‘the golden thread’ running through the web of English criminal law22 – the presumption of innocence, and the burden of proof.
Our overriding duty is to the court.
The least serious ‘summary only’ offences – motoring offences, common assault, minor public disorder – can only5 be tried in the magistrates’ court.
‘I do want help,’ he sobs. ‘I don’t want to spend my life in and out of prison. You’re right, mum. You’re right, your majesty [the best distortion of a magistrate’s honorific that I’ve ever heard]. I’ll do it. I’ll do the work.’
Rolling up sleeves, solving problems and improving lives.
The prosecution must prove their case (burden of proof) beyond reasonable doubt (standard of proof).
Why is ours the only legal system in the world that empowers volunteers to send their fellow citizens to prison?
to the intensity, the quality, of his joy at winning his freedom, and I understood.
He only attended trial, though, because he was brought in a van. From prison. Where he was a serving prisoner. Because, two weeks after being granted bail, liberated from the moderating influence of the departed Jade, Rio got high on a cocktail of ecstasy, crack and vodka. He took a kitchen knife to the local pub, and plunged it thirty times into the chest, throat and back of a random punter. He was, by the time of his adjourned rape trial, serving life for murder. As Matthew said, every decision affecting liberty matters. Life-changing consequences follow.
this is the government deliberately breaking your legs, and telling you that you must go private, but that they will only contribute NHS rates. Or, otherwise, you feel free to treat yourself. See how that works for you, pal.
My pupilmaster would often say that prosecuting is constructive and defending is destructive,
‘to elicit answers to matters of fact’.
Keep questions short and closed. Give the witness minimal room for manoeuvre or free-form speech. You want a yes or no answer. Don’t ask a question if you don’t already know what answer you’re going to get. The theoretically perfect cross-examination is a series of short questions, the final of which forces the witness to give only one answer – the answer you, the advocate, desire.
enough damage has been done to the prosecution case in cross-examination for the jury not to be sure of guilt. Of course they’ll think he’s possibly or probably guilty. But if the prosecution witnesses have been poor, it is possible to persuade a jury that, even without the defendant’s account on oath, they cannot be sure beyond reasonable doubt that he is guilty.
And that verdict and its obnoxious unknowability, although satisfactory for our client, didn’t get to the truth of what had taken place over the last twenty years.
But the pendulum, for so long jammed against the interests of victims, swung violently to the other extreme.
does it really offend the object of justice to withhold this information from a jury? Or does it ensure fairness by making sure his guilt isn’t determined by prejudicial, irrelevant details unrelated to the evidence?
truth-seeking, in the way that advocates of inquisitorialism envision it, is not – and should not – be the purpose of criminal justice systems in any event.
special mention must go to a defendant at Chelmsford Crown Court in August 2016, who, upon receiving his eighteen-month sentence for racist abuse, told Judge Patricia Lynch QC that she was ‘a bit of a cunt’. Her Honour’s reply – ‘You are a bit of a cunt yourself’ – was a little naughty, but also, in many ways, everything that could be said.2
what the judge had for breakfast may influence your sentence.
the odds of imprisonment for offenders self-reporting as black, Asian and Chinese or other were higher than for offenders from self-reported white backgrounds (53 per cent, 55 per cent and 81 per cent higher respectively).
How do you persuade him to put down his arms, cut his associations and gamble his life on a rigged roulette wheel for the prize of a law-abiding suburban existence that he thinks people like him can never win?
It is clear that the only thing that their incarceration will do is satisfy our need for punishment, when so much more is required.
Something that never fails to surprise me in this job is the capacity of human beings to hurt each other, in particular those they either claim to love or barely know.
46 per cent of all prisoners re-offend within a year of leaving prison.
It is far more comforting to focus on celebrating the police rounding up the bad guys than to dwell on the occasions where the wrong person suffers.
