Judicial Collision part 8

Having heard some of the tales regarding the judge who has been referred to over the past couple of weeks, you would probably think that it was not possible that there could be an even worse case. You would be wrong.

The barrister concerned was undertaking a defence of charges of assault occasioning actual bodily harm on two police officers. The real issue in the case was whether the defendant had gone "over the top" in self defence. The police officers were not in uniform, and had originally grabbed the defendant in error supposing he was someone else. He did not realise they were police officers, and so had lashed out. However he had probably thrown more blows than some might say were necessary to defend himself. That is sometimes a marginal call however, particularly because it was two against one as far as he could see. He had not been in trouble before, and it was accepted by the prosecution that he was not involved in the original trouble which caused the police officers to approach him, and that he had no reason to know or believe that they were police officers.

This was a long time ago. In those days you could go to the judge for "an indication". That was an indication that if the defendant pleaded what type of sentence he or she would receive. The usual scenario was that a defendant would want to know if he or she would go to prison if pleading guilty. If the defence was regarded as a "runner" (i.e. one that had some prospect for success) whether a defendant was going to be sent to prison if convicted was likely to be crucial in deciding on the plea. Since a plea of guilty could attract a reduction of up to one third of any sentence, those with a very poor defence might well consider that it was better to plead guilty whether they were going to prison or not. However in some cases the decision was not so clear-cut. A case where it is a question of whether self defence has been carried too far is a particularly difficult one to judge, because one does not know how the jury will view it. It is not as straightforward from the point of view of considering plea as "did you burgle this property". Since it is a judgment call on fact it is not certain how a jury will view it and hence makes it even more difficult to decide what the appropriate plea should be.

The defendant indicated that he wanted to fight the case if there was any chance of immediate imprisonment, but if he would definitely not go to prison he was prepared to plead guilty. Defence counsel decided that this was a case where he should go and see the judge in order to obtain an indication if possible. He went before the judge referred to in the last two weeks' articles. The judge said to him "This is a man of good character. He started by acting in self defence. He didn't know they were police officers. If you plead guilty today I will not be sending him to prison.". Defence counsel reported back to the defendant, who consequently entered a guilty plea. This would still mean that a suspended sentence of imprisonment could have been passed, together with possibly a fine and costs in favour of the prosecution, but no sentence that involved him going straight to prison. Since the defendant did not intend to get into any more trouble, he was less bothered about a suspended sentence.

When it came to passing sentence the judge said: "This is a man of good character. He started by acting in self defence. He didn't know they were police officers. ". So far he was following the script exactly as he had stated. He then added however, "On the other hand there is far too much violence on the streets nowadays. These were police officers, and self defence or not you can't go over the top. I'm sending him to prison for six months.".

To say that the client was apoplectic when the barrister visited him in the cells would be a massive understatement. He had only pleaded on the basis of a guarantee that he would not be sent to prison, and here he was getting ready to be collected to be taken off to some dismal jail. He was not happy. A conversation with his barrister got somewhat heated, although the barrister entirely understood why his client was, in his phrase "climbing the walls".

Off to prison the defendant went. He was only there about 48 hours because they managed to get him bail pending appeal (although not off the original judge). The grounds of appeal were many, including various attacks on the conduct of the judge. Before commencing the case defence counsel noted that virtually all of the list that day seemed to be appeals from this particular judge. Before the appeal started, counsel for the defendant (now the appellant) was asked whether if the sentence was varied to one that meant that the time served was the only punishment so that there was no suspended sentence no fine and no costs awarded in favour of the prosecution, would the appellant be minded to pursue the other grounds of appeal (namely judicial misconduct). After a little bit of to-ing and fro-ing, counsel accepted that that would be a satisfactory result.

When describing this particular individual has probably the worst judge who has ever appeared in this jurisdiction, I think you can safely be said that he was the only judge before whom something like this could ever have happened.