The Facts are for You. A Diversion by Nigel Pascoe

……
Two men sit side by side in a Crown Court jury waiting room

M1 First week?

M2 Second.

M1. Right. (pause) How was it?

M2 Not bad. Two trials and two very different Judges.

M1 Really?

M2 Could hardly be more so. Judge Manning, old school. Full of cricketing expressions and always smiling. We loved him.

Judge two, Frost, good name for him, very different – academic and dry as dust. All the time, he seemed to be reading from a Judge’s manual and he never smiled once.

M1 Convict?

M2 Judge Manning yes, twenty minutes flat. Not that he influenced us. Though he did say – ..you may think the defendant seemed to be on a sticky wicket in cross examination. Which of course he was. But with Judge Frost we were hopelessly stuck. He had to discharge us.

M1 So why was that then?

M2 To be honest, I don’t think half of them knew what he wanted us to do.

M1 But isn’t that the point? We decide the facts. At least that’s what it said on the jury video.

M2 Yes but we were always looking for a hint, just something to point us in the right direction.

M1 Oh. Ok.

M2 And it never came. Totally fair –

M1 Yeah

M2 But bloodless. Hope we don’t get him again. Give me Manning every time. And I hate cricket.

Enter Daisy Wilkins, slowly. An elderly, very indiscreet chatty usher

Grief, me feet are killing me. Either of you two second week?

M2. Me

Daisy. Seen the video?

M2. Yes. Twenty minutes ago.

Daisy That’s a relief. If I see that once more, I’ll pop me clogs, I really will.

M1. Which Judge do you think we’ll have, Daisy?

Daisy. Well Court 3 has got the floater. So my bet is Country Life.

M1. Who?

Daisy That’s what we call Judge Manning. Behind ‘is back of course. Though he probably knows it. Lovely man. One year at the Christmas party he kissed me under the mistletoe. Naughty bugger. (She cackles loudly at the memory)

M1 Who is the other one, the one with the straight face?

Daisy. You mean Judge Frost?

M1 Yes

Daisy Now he’ s a strange one. Very proper, but some of my younger lady ushers are a bit uncomfortable with him.

M2 Why is that, then?

Daisy. Well, it’s the way he looks at them. Or bits of them, if you know what I mean. Eyes ’em up, so to speak. And then there was that funny business with the photographs.

M1. What was that about, Daisy?

Daisy. We had this case about a swimming instructor for a formation dancing team, who liked photography. Dirty old man. The exhibits went missing, till they were discovered in the Judge’s briefcase.

M1 What’s wrong with that? He could have been preparing his summing up.

Daisy. Yes, dear, but it wasn’t his case!

Loudspeaker

Will all remaining jurors go with the usher to Court 3

Daisy. That’s Country Life. Come on, then. Off we go.

Lights down and then up on Court 3

His Honour Judge Manning in chair behind table. The two jurors sit sideways as if part of the jury.

Judge Manning

Now Ladies and gentlemen. Just a few words of wisdom before start of play.

The bowling starts usually at 10.30 and we knock off for lunch at one. Afternoon play begins at 2.15 and stumps drawn at about 4.30. That is if the weather holds and we don’t run out of witnesses. Otherwise it’s pads off and an early bath, what!

Now that’s where you lot have got to be very careful not to drop the ball. When you get home, some friendly soul is quite likely to say – well darling, how was your day and has he done it, that sort of thing.

And you are going to say to them – the old Judge said mum’s the word. Can’t say a word about it. Umpire’ decision is final. Get the picture? Good.

Now just one for thing. Berner-Lee’s thingamy. – what is it?

Oh yes, the Inter Net. During this case, don’t touch it with a barge pole.

By which I mean – no after-play research at close of play. Not that this case is up there on the inter net – I’ve no reason to suppose so at all. But once jurors start to do their own research, goodness knows where it would finish. Well, in your case it would be about six months. So be warned. We will play this case by the rules and may the best side win.

Excuse me. I have just got a note from the Clerk of the Court.
It seems as if I have been asked to sit tomorrow as a spare leg in the Court of Appeal. Great honour and all that for a humble Circuit Judge, but what it means is that I am going to have to transfer this case lock, stock and barrel to Judge Frost in Court 4.

I am very sorry. Never mind, he is a very interesting man, if a tad less keen on cricket that I am. Still I am sure you will cope with each other admirably.

Rises and bows

(Stage whisper to Usher)

Daisy, tell that young lady in the front row to wear something a little less exciting. Judge Frost might keel over.

Lights down and up. Scene as before but Judge Frost is sitting. He is distinctly creepy and increasingly wound up about sex…

HHJ Frost

Usher, will you please close the blinds. Thank you. The sun affects my hay fever.

M1 to M2 And who knows what else!

Judge. Now members of the jury, I want to give you a few words of explanation of the circumstances which bring you and I together. You from the highways and byways of rural England. Me from the dreaming spires of academia. And yet we meet on equal if completely different terms.

As you will appreciate, I am the Judge in this case. My brother Manning would call me the umpire, but I prefer the the slightly longer title of independent arbiter in the cause of truth. Truth which I hasten to add, depends on proof. More of that when I come to sum up the case.

You, however, decide the facts. That is your jurisdiction where I shall not tread, interpret or risk exploration. Putting it shortly, if the case is not entirely clear, you must bear your fate with equanimity. For I shall not be in that principality holding your hand. Or any other part of your collective anatomy.

One final matter which I need to put with a degree of delicacy and circumspection. This case has a sexual component to it. In fact, the whole case is riddled with sex! And sex can be a disturbing intrusion into our otherwise ordered lives. Burrowing into our self consciousness. Animating our dreams. Yes, sex is a very dangerous animal!

So my advice to you is not to becomes obsessed by it.
Or let it overwhelm your emotions. Or basic instincts. Just let the evidence roll past you and preserve your inner tranquillity. If you can.

But let no one think this will become a sexual maelstrom of such a character as would disturb the even tenor of justice. Were it to become so, there is no knowing what effect it might have on us.

And that includes me.

So without further words I will invite Prosecuting counsel to draw to your attention the salient and rather sexual facts which bring it in front of me. And of course, in front of you too. Yes, Mr Maddison.

Counsel. Members of the jury. In this case I appear to prosecute and my learned friend Mr Murgatroyd appears for the money. By which I mean the defendant, whom you will be pleased to hear will not be costing the state a single penny in the conduct of his defence.

No,according to my learned friend, he merely sold another picture from the walls of his Knightsbridge gallery.

Now this is a serious allegation of a sexual nature and I will leave the learned Judge to tell you all how you should approach such a delicate matter as sex in court…

Judge Frost (interrupting and plainly over-excited at the mere mention of sex)

With huge restraint, members of the jury. You must not let that hideous creature run roughshod through your veins and prejudice you against the defendant in any way whatsoever…

Lights Down and Up

Daisy is sitting on stage alone in the Judge’ s chair.
She is writing a letter to her sister Doris

So that’s what happened, dear. They parked the ambulance at the back of the court and gave him a little injection. Twenty eight days down the clinic and Frostie will be right as rain. And the case has gone back to Country Life.

You will never guess where I am. Siting up on His Nibs chair after they’ve all gone ‘ome for the night to their duck pate and beef on the bone. Well, Doris that’s how the other half live, innit?

Light fade and up on Judge Manning

As I was saying, members of the jury, before rain stopped play, you will be pleased to hear that Judge Frost is feeling much better. Mind you, I blame counsel. All that adjectival diarrhoea was bound to upset my brother Judge. The way to approach sexual matters is really very simple. Just play a straight bat. All there is to it.

Now where was I? Oh yes, the complainant Tracey told us that at that point, the defendant put his hands where no decent Englishman has any right to go. Or should I say, go without consent. I mean, really!

And that is the case for the prosecution..

CURTAIN

This is the second of three plays under the general title of Trial by Jury.

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Back to the coal face and where we belong. First, praise where praise is due. Circuit leaders and the leadership of the CBA together created a unity which has galvanized the criminal bar. They deserve to be congratulated. Any disagreements on tactics should not or a moment sour that achievement. Further, with the active support of the new Chairman of the Bar, that cohesion has moved well outside criminal practitioners. One Bar indeed. It is a very fine achievement and even those disappointed or hurt about the resolution can share in it. Second, the needs not to crow or abuse. The result may wound our solicitors who are still bitter and angry. But real unity has been built and we can still support their cause using every democratic means open to us. Indeed we must continue to do so. Nor should we casually abuse the Lord Chancellor. He is still in post and we must still work with him. And cynical hatred is very destructive. But the real fruit of today’s announcement is the opportunity for constructive reform. This is the point seized on by the Chairman of the Bar and of the CBA and they are both right to flag it up. We need to identify, articulate and promote very specific fee injustices which cry out to be addressed. So the next joint initiative by the Circuits and the CBA should be to draw up a joint list after consultation of essential reform issues, particularly so far as they affect the future of our young practitioners. Today we also need to recognize good judgment. If we had rejected this offer, we would have continued on a destructive path to near anarchy – which is not the route of responsible professionals with a duty of care. Today good judgment prevailed. Our Leaders have made the right call, done the right thing and they should be followed. But if at night, you have a glass in your hand, stroke the dog, kiss your beloved and look forward to another day in court, that is as it should be. This profession has stepped back from disaster. Just in time. Nigel Pascoe QC.

PS. The CBA has reacted quickly to provide a vote. I hope that anger or worse, disguised political militancy will not trump reason and pragmatism.
Read the way Frances Gibb reports this in the Times. It really is an extraordinary development, even if it is unwise for us to call it a victory.

Second, I am fairly sure the majority of Western Circuiteers will breathe a huge sigh of relief and do all they can to support their solicitors. I strongly suspect that will be repeated on most circuits.

Third, we must not be complacent but seize the chance now to plan very specific reforms, as I have argued for some time.

Fourth, there is a very clear distinction between honest honorable passionate disagreement shown eg in one letter of resignation and offensive personal attacks. It is amazing that anyone needs to say this about fellow barristers. But perhaps it is an indication that we all need to calm down and remember how we make our names – by reason and persuasion.
Nigel Pascoe

Stalemate. Well so it seems at present. The CBA openly consulting the criminal bar on the next steps, whilst one Minister’s door is said to be always open to the same constituency. But no breakthrough, let alone resolution. All of which raises the future timetable up to the election. Look at it dispassionately from both sides. First then the ability of the criminal bar to stay united and increasingly strapped for a period of over a year. Let me assume a continuation of no returns and a refusal to accept the new rates when they come on stream. I will not factor in Direct Action to the point of closing the system down, because I refuse to accept that as a profession we could be so bloody stupid or irresponsible. But the other two factors are powerful enough in their own right and might well be in play for over a year. Now the hard question is whether we could afford it. My best guess is that we might seek to do so for up to 8 months maximum from today. After that, putting food on the table will predominate all other considerations. Others would see that as an overestimate. In any event, that leaves a bitter and angry profession for some months up to the election, disinclined to tick a Conservative or Liberal box when it comes. Now look at the MOJ, as part of course of a Government already predicting cuts beyond the next election. In the short term, by which I mean up to six months, they hold most of the cards. They can dig in their heels, refuge to budge from the final offer, so bringing the cuts on stream exactly as promised. But at some point probably before that six months and certainly within a year, a huge and cataclysmic public reaction will hit them. The Courts will still be operating but at a rate so diminished as to be risible. Long delays will be public knowledge and victims of very serious crimes will be further months from Justice. At which point The Times will thunder and The Mail shriek – get your act together and start talking. Regular readers will know what comes next. Why not start the process NOW? Now before insane militancy totally distorts the picture and men have lost their reason. Nigel Pascoe QC .

Post Script. One peace initiative would be for the CBA to pick a calm sensible criminal silk with a completely open brief to approach the LC or Minister directly to consider amelioration of the present position. Specifically such an individual could discuss a number of specific present injustices and how they could be addressed by further negotiation.

A second initiative could be taken by The Lord Chancellor without prejudice to his present position. After consulting with the LCJ, he could invite a well respected retired Judge to consult both sides of the profession
1) to address specific injustices
2) to consider the viability of specific alternative reforms to allow future amelioration of decided cuts.

Or he could appoint a small committee of three, eg retired Judge, senior Solicitor and distinguished lay member for the same purpose.

Further the Council of Circuit Judges could consider a careful statement of the effect on the running of the Courts of the policy of No Returns. Such a statement without taking sides could contribute to the resolution of the present position.

If you were in government, what would you do? The court system for which you are responsible is slowly grinding down. Despite widespread calls for further discussions, you have decided as a matter of policy that your cuts must stand. After all, you are a spending minister with a joint cabinet responsibility for the public purse in a less than perfect economic recovery. Doing nothing is not an option. Steps have to be taken to make it plain that barristers are only one part of the court users and they cannot be permitted to bring the whole system to a juddering halt. This was the question which exercised me most as I read the excellent tweets of the Bar Council meeting on Saturday. Very plainly we have strong leadership, unity and the deepest concerns being expressed. I happen to think that the AG is one of the most honourable and decent men politicians in the country. I have heard him several times face up to his profession with elegance and candour. He is deeply respected by many criminal lawyers who are nevertheless appalled by the policies of the MOJ. So what he was saying was plainly worth close analysis. It seems to me velvet glove stuff, but nevertheless there must be some contingency plans if increasingly courts are interrupted. I cannot see that it would be possible to expand dramatically a state defence service in the short term. But a series of short term contracts would be possible. It would be provocative, but it would be met by the argument that when direct action seeks to undermine the rule of law it is going too far. The veiled reference to one case one fee troubled me. That would be provocative as well. Yet it seems to me reasonable to assume that there must be some steps in the offing to be unveiled if this dispute continues. So I hope that the possibility for constructive negotiations is being actively considered by the Lord Chancellor when the AG faithfully reports back to him the level of anger at the criminal bar. At the risk of the obvious, ultimately there has to be a settlement. In saying that, I utterly reject a degree of direct action which would seek to close the system down completely. I still support the system of no returns but I see increasingly that a very fine judgement has to be taken before this dispute gets completely out of hand. Nigel Pascoe QC

What Price peace now? After a very well attended day of action and the CBA in the Monday message putting out clear-cut feelers for settlement, which I support. Well I suppose it depends on the extent to which the message is influencing opinion formers and the indirect pressure that may be putting on the MOJ. Instead of accelerated further action, here are a few ideas which may move the process forward. 1. Chambers videos. It is relatively easy to put a short video up on your Chambers website. I have experimented with an iPad. Well how about a few of our very able young barristers telling shortly how it is? A single case, money lost, financial pressures. No doubt it would have to be overseen by chambers but it need not be at all extreme. Multiply that by videos on every website from heads of chambers or senior members. I’m certainly going to have a go myself. 2. Collating newspaper articles. We now have a series of excellent comment pieces right across the political spectrum and largely by non-lawyers. We need to collect them into a single blog or website. Better still reprint with permission in a Bar Council publication. Volunteer required. 3. Selecting the best of the blogs. There are some brilliant pieces being written. They need to be brought together and whilst that is being done by the CBA, I would visualise a mechanism for wider distribution, again perhaps under the auspices of the Bar Council. 5. Local radio. This is happening very successfully but I think we could seek to build even closer contacts. That means harvesting our existing contacts and even volunteering to come on air when a new issue arises. 6. Local papers. A well written letter will be carried. Anyone could do this. 7. Your MP if you haven’t canvassed them already. All these ideas are simply meant to pursue the democratic process without damage to our obligations. They go to a single end. The time to talk. Nigel Pascoe QC