Judicial collision part 12

Not every judicial collision works out badly. Sometimes things can work out better as a result of a disagreement with the judge than they would have done had no disagreement occurred.

Many years ago an experienced criminal barrister was pursuing an appeal to the Crown Court from the magistrates court. This was an appeal against sentence. His client had been convicted at the magistrates court of two offences of driving whilst disqualified, the second of which was whilst he was on bail for the first offence (which is thus likely to be viewed seriously). He had been sentenced to 3 months imprisonment on each offence, the sentences to be consecutive. (The maximum sentence could theoretically have been a total of 12 months). Bail had been refused pending appeal, and so by the time that the appeal came on he had already been in prison for a few weeks.

An appeal against sentence would be heard by a Crown Court judge and two magistrates. This would be by way of a rehearing. This meant that the court started afresh. It could be that they would give a more lenient sentence. However it was also possible that they could pass a harsher sentence.

When you appeal you do not know which judge you will get. The judge who was hearing this particular appeal we will call Judge J. He was known to be someone who could be robust on sentencing, and someone who was likely to be distinctly unamused by a defendant committing exactly the same offence again whilst on bail for an earlier offence (which in itself involved in ignoring an order of the court, namely disqualification). Defence counsel told counsel prosecuting the appeal that he thought there was a risk that the judge would increase the sentence, and so he was going to persuade the defendant that he should abandon his appeal.

It was obvious from the expression on defence counsel's face when he came back from the cells and indicated to prosecuting counsel that he was ready to go ahead and would be abandoning the appeal, that the defendant had not been very happy about this course but had ultimately been persuaded to take his advice. The case was called on. The judge and magistrates came into court. Defence counsel stood up and said that he wanted to abandon the appeal. "You only have a right to abandon the appeal if the appeal is abandoned three days before the date set for the hearing." said Judge J. "After that it is up to the court whether you abandon the appeal or not. The court might want to pass a higher sentence, but in any event it is a matter for the court. Now that the defendant is here why should we allow you to abandon the appeal?".

A lively exchange of views followed. In the end, and having consulted with the magistrates, Judge J indicated that the application to abandon the appeal was refused. Judge J turned to prosecuting counsel. "Please open the appeal." he asked.

When prosecuting counsel had opened the facts Judge J turned to both magistrates, first one, then the other, and then turned to face defence counsel. Defence counsel looked prepared for a torrid time. "Mr X" said Judge J. "We are always being told that the prisons are full and that if we can avoid sending someone to prison we should, and that if we send someone to prison, we should send them for the minimum period possible. It is difficult to see how one can do that with some types of offender, but in the case of your client he has now served a few weeks in prison and hopefully that will be sufficient to show him the error of his ways. If we vary the appeal to allow his immediate release now, is there anything you want to say?". "No" was the unsurprising response. "Very well then we allow the appeal, the defendant can be discharged and released from custody.".

Although this was a very good result, defence counsel saw the downside. "How on earth am I going to explain this to the client, when having spent 25 minutes persuading him that Judge J would increase his sentence, Judge J then does not allow the appeal to be abandoned and set him free." Pausing he then added "I wouldn't be surprised if Judge J worked out that I had said that he was a stiff sentencer and is probably laughing in his room now thinking of my discomfort at talking to the client". Whether that was true or not we will never know, but it was obvious the defence counsel had his suspicions.