Sunday, 3 April 2011

Mob rule - is it all that far away?

One of the fundamental principles of English Law is the presumption of innocence.  We do not declare a person guilty of any crime - however heinous the crime - until guilt is proved by admissible evidence adduced before a properly constituted court which, for serious offences, normally requires a jury trial.  What then were certain individuals thinking about in Swindon this week?  See BBC Report 28th March - "Sian O'Callaghan's accused remanded in custody."

Christopher Halliwell has been charged with the murder of Sian O'Callaghan.  On 28th March, he appeared before magistrates sitting at Swindon and was duly "sent" for trial under the provisions of the Crime and Disorder Act 1998 s.51.  Such hearings are now a mere formality.  No bail application may be made to magistrates in a murder case.  On 30th March he appeared before the Crown Court but no application for bail was made.  He will next appear in the Crown Court on 8th April but this hearing will be via a video link.

Naturally enough, emotions can run
very high in these cases but those people who attacked the Police van at Swindon Magistrates' Court and who abused him from the court's public gallery demonstrated little respect for the legal process in which, let it be said again, Mr Halliwell remains innocent until proven guilty.

Sian's father conducted himself with great dignity as he made his public statement.

Is there a real practical need for any hearing before Magistrates in a murder case?  Their historical role of acting as examining justices in relation to all offences triable only by the Crown Court has been swept away.  For such offences, the Magistrates have to send the case "forthwith" to the Crown Court.  When the charge is murder (but not other indictable-only offences), they may not consider bail.  In relation to offences triable "either-way" the Magistrates' Courts have retained jurisdiction and "committal proceedings" continue to take place.

Further comment about the growing disrespect for the judicial process appears in an article in the Law Society Gazette of 31st March 2011 - "Conduct unbecoming in our courts" - by District Judge Paul Mildred.  The learned judge writes that it is time to bring back respect for the judiciary.  His experience as a district judge shows that, unless those in the front line of the justice system are shown the respect due to the office they hold, then the very system of justice itself is diminished.  "Judges have been the subject of physical attacks in court, attacks on their homes, verbal abuse in public places and deeply offensive abuse in writing, sometimes in postcards sent to the court and open for all to see."

It is time that the authorities started to take these matters very seriously indeed.  If that requires action to be taken against people who acted out of "raw emotion" then so be it.  The need to uphold the system of justice is of paramount importance.

An historical aside:  At the Salisbury Assize of 1631 a report tells us that a prisoner who had just been convicted of a felony "threw a brickbat" at the judge which "narrowly missed."  It appears that, for doing this, an indictment was immediately drawn up and the prisoner's right hand was cut of and fastened to the gibbet on which he was then immediately hanged. 
Attacks on Judges etc:  See  Attack at the Old Bailey on Judge Ann Goddard in 2001;  Judge John Doel in 2002; and in 2002 the attack in the High Court on Pitchford J.  The Court of Appeal decision in Russell [2006] EWCA Crim 470 is instructive.  During the summing up of the case the defendant attacked the judge (His Honour Judge Stokes).  The judge retired, discussed the security arrangements with the officer in the case who had given evidence, and then returned to continue with the trial.  An application to discharge the jury was refused.  An appeal was lodged on the basis that the trial was unfair as the judge would have been biased since he had been attacked.  (A further point in the appeal related to the discussion with the security officer).  The appeal was dismissed.  The Court of Appeal stated:  "Those who attack a judge, jury or other officer of the court in the course of their duties, particularly in the court room, can expect very long sentences measured in years; it is a further aggravating feature if the object of the attack is an attempt to frustrate the process of trial by judge and jury."  Clearly, defendants cannot be allowed to get away with terminating their trials through such conduct.  The Court stated - "No fair minded observer would conclude that continuing with the trial was unfair or perceived to be unfair in such circumstances."


  1. Attacking the police van is hardly new, although that's the first recent example I can recall.
    And what's the alternative to a Magistrates hearing? It's cheaper than having a Crown Court one. And nobody wants the police having the power to remand people, do they?

  2. It is indeed serious when respect for judges and the justice system is abused. But IMHO part of the blame lies within the justice body. A justice system exists to preclude "feud", "vendetta", "vigilantism" etc etc. The state has taken over the punishment of the guilty. When their learned justices and their political masters appear to be counting angels on pinheads... forgive the epithet...the common man on the Clapham omnibus could be forgiven for thinking that that the legal system has forgotten him and his worries. The convoluted judicial processes eg of the ECHR are lost on him. The apparent changes in the guidelines for assault or some drugs associated offending can leave him feeling that the law is not for him or his family. There are of course n-1 examples of a similar nature. The term "populist" has been dragged into contempt and perhaps rightly so but when the legislature legislates without consideration for a poplulation which is IQ 100 cf its masters at IQ 125+ a time comes when change is required.

  3. @ Conor - the defendant appeared before the Magistrates Court on Monday 28th March which, as I point out in my post, has no other function than to send him for trial. He next appears in Crown Court on Wednesday 30th March before a judge. There are two hearings here where one would suffice. The appearance before Magistrates is not as cheap as one suspects given the transportation costs and so on and is, given their lack of powers, a waste of time and money. With some proper organisation he could have gone straight to Crown Court where the judge has full powers to deal with all aspects.

    @ Justice of the Peace - this is not a case where the justice system has forgotten the "common man on the Clapham omnibus." Due process of law is being followed and people are not respecting that system. Had the baying crowd got hold of the accused what do you think they might have done to him?

  4. Obiter J it is prcisely because "the baying crowd" have felt disassociated from the system that they reacted the way they did.

  5. Too many times have I seen judges too scared to use their 'contempt in the face of the court' powers retreat from the bench leaving me, the usher and a security guard (who usually says he is not insured to intervene) to deal with some violent litigant. I recall Hastings County Court where the DDJ thought it best that he rose to allow the ranting lunatic to calm down - we waited 2 hours for the police to arrive, leaving the litigant locked in the court room ripping up the furniture. We never saw the judge again notwithstanding a police request that he use his powers. Judges should use their contempt powers and do so quickly and firmly. In civil courts where there is no bailiff, there should be a hotline to the local police to ensure swift action. The JSB should issue sound and strong guidance.

  6. Justiceofthepeace-
    The particular disassociation felt by a mob outside a hearing is an emotional one that the justice system can't deal with.

    Otherwise I'm somewhat nervous about your caricature of the man 'on the Clapham omnibus' as a fool who doesn't care for the niceties of justice and is unable to understand them. I see no reason to think that the majority of people are like that.

  7. I agree with A Barrister in London re sound and strong guidance. However, I think we need a root and branch overhaul of (a) contempt powers and (b) court security. It is no use having strong contempt powers if they cannot be enforced because of lack of court security or because court security lacks powers and have to call in the Police.

    Such court security as exists is now provided by private security firms. The formal powers (e.g. to arrest) of their personnel are certainly not the same as the powers of a Police Constable.

    I would urge the MoJ to get on to this matter and ensure that adequate powers are available together with the ability to use those powers. This backing is essential for not only the judiciary but also everyone who has legitimate reason to use the courts/tribunals.

    As for some of the behaviour seen outside Swindon Magistrates' Court, arrests should have been made. A line has to be drawn somewhere and it is no use arguing that these people are "disassociated" from the system. Frankly, some simply wished to avenge the death of Sian O'Callaghan and they simply do not care about due process of law.

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