Acting for an Alderman of the City of Leeds, stopped by the police when driving erratically home from a civic reception, a police sergeant gave the following evidence: ‘We overtook the car, and switched on our “police-stop” light. I walked back to the car. The defendant – who I see and now identify in court – was in the driving seat, alone. I opened the driver’s door. There was a powerful smell of alcohol. I said to him, “I am a sergeant of police, will you please get out of your car, sir?” The defendant smiled at me: “Why, sergeant, is there another party?”’
Acting for a youngster who had been stopped one night by a police officer in Birkenhead because his car was showing no tail lights, this was a PC’s evidence: ‘I asked the defendant to come with me to the back of his car. He did so. I pointed out that there were no illuminated lights. The defendant gave the boot of his car a hard kick, whereupon the lights came on. He then smiled at me, and said “There we are, officer, all’s well that ends well, eh?”
‘“Very good, sir,” I replied. “Perhaps you will now give your windscreen a similar kick and it will then display a valid tax disc.”’
On my side of the Pennines, vehicle rear lights also featured before Wetherby Magistrates’ Court. The police had followed a truck for some two miles. It displayed no tail lights. They stopped the truck, took the driver – my client – to the back of it, and pointed out the offence. The defendant scratched his head and said, ‘Lights be buggered. Where’s my bloody trailer?’
A witness before the Bradford bench: ‘I drove along the M602, heading for the centre of Bradford. I lost my way, and at the end of the motorway I saw a man walking his dog and asked him if he knew the Bradford turn-off. “Know it?” he replied. “I bloody do. I’ve been married to her for thirty years.”’
An important factor in some instances is for the court to know whether the witness before them is giving his or her testimony freely or under compulsion. Hence this exchange in York Magistrates’ Court between prosecuting solicitor and witness:
‘Is your appearance here today due to a witness summons?’
‘No, I’m very sorry. I was late this morning and I didn’t have time to shave.’
I must acknowledge with sadness that the room for joyous experiences like those is almost certainly no longer to be found before a bench of lay magistrates. The ethos has changed. There is an increasing emphasis on professionalism in the training of those who sit. It is no longer enough for a legally qualified clerk to advise the bench on matters of law; the bench must now be inherently ‘judicial’ in doing the job. There are also complex legislative restraints on their powers, for example regarding juvenile offenders.
In my own experience, this has deterred many who might otherwise have sought appointment – and caused some who have sat for many years – to quit. Common sense, maturity and worldly experience were in my day the criteria for appointment and continued fitness for office. Nowadays, it seems to me that a Justice of the Peace is treated as though he or she had a legal education and background. But they are not so equipped, and I dare to suggest that it is their ‘lay’ status that gives them the qualities that should matter. Since the huge majority of offences in our country are disposed of before magistrates’ courts, those who visit them (under compulsion or otherwise) should be encouraged to find a community between themselves and those who sit in judgement on the less serious offences that form the calendar. Ordinary folk should be dealt with at this level by other ordinary folk. It makes for a less resentful, and therefore less divisive and better-ordered society.
Well, those were happy days, and a vital part of the learning curve of any aspiring advocate. I look back on them with gratitude and huge affection. But they soon fell away as I began to gain a toehold at Quarter Sessions and even sometimes at Assizes, when visiting High Court Judges sat for periods of some weeks in all the major cities on my circuit. This period of my life contained two events that came as a great relief to me.
The first was that the Homicide Act of 1957 marked the beginning of the end for capital punishment in this country. By 1965, hanging as a form of punishment was abandoned, and in 1969 it was abolished. The burden of defending someone who faced the death penalty if convicted fell only upon Queen’s Counsel, and I was and still am eternally grateful that I never had to bear that dreadful responsibility. I remember talking to some who had the traumatic experience of going down to the cells after the judge had put on the black cap, and saying a literal goodbye to their client.
I ought also to acknowledge that for a judge presiding over a murder trial, the duty imposed on him to pass sentence following a conviction must for many – if not all – have proved an equally fearful burden. The defendant, surrounded (and often physically supported) in the dock by prison officers, was confronted by the judge, who wore a black silk square placed on his wig. The High Sheriff and his chaplain (both robed) were alongside. The judge was then enjoined to address the defendant in these archaic terms, which were only slightly modified in 1947:
[Name], you have been convicted of the crime of murder. You will be taken hence to a lawful prison, and thence to a place of execution and there be hanged by the neck until you are dead. Thereafter, your body be buried within the precincts of the prison. May the Lord have mercy upon your soul.
The chaplain endorsed this incantation with an ‘Amen’.
It is difficult for me to imagine the pressure that participation in this macabre ritual must have imposed on all those involved. In at least one instance of which I am aware a very distinguished QC (Gerald Gardiner – later Lord Chancellor under a Labour administration) declined appointment to the High Court for fear that he would be called upon to pass the death sentence.
I must say something more about capital punishment, not least because in these most troubled times, where acts of terrorism are our constant companions, it would be remarkable if there were not a groundswell of public opinion in favour of restoring the death penalty. I do not share that view. My approach is founded both upon pragmatic considerations, born of a lifetime in the law, and upon a strongly held personal conviction. As to the former, I offer the following.
First, there is the well-rehearsed risk of a miscarriage of justice – and one that is beyond repair. However rare such cases may be, I find it impossible to reconcile myself even to one such instance.
By way of notable example, many will still recall the case of Regina v Craig and Bentley, tried before Lord Goddard, Chief Justice, at the Central Criminal Court in 1952. It may be an extreme example, but I remind myself of the aphorism that ‘hard cases make bad law’. Christopher Craig was sixteen years old; Derek Bentley was a mentally retarded nineteen-year-old, an epileptic with a reading age of four who had been adjudged unfit for military service due to mental retardation. Both burgled a warehouse. Craig had a loaded pistol. (Significantly, Bentley was carrying a knife supplied to him by Craig, but never produced it at any stage.) The pair were confronted by a number of policemen on the rooftop of the building, one of whom urged Craig to hand over his weapon. The evidence that was obviously accepted by the jury was that at about this juncture Bentley shouted to his accomplice, ‘Let him have it, Chris.’ Craig fired the pistol, and killed one of the police officers, PC Miles.
Both youths were charged with and convicted of murder, on the basis of joint enterprise. The law, however, was that nobody under eighteen could be hanged for a capital crime. So it was that Craig was sentenced to life imprisonment (and was released after serving ten years). Despite the jury’s plea for leniency, the Home Secretary declined to intervene. Nineteen-year-old Bentley (who did not fire the shot) was hanged. What did ‘Let him have it, Chris’ mean? Did it mean ‘shoot’, or did it mean ‘Do as the bobby says, and hand over the gun’? On this nuance of language, Bentley went to the scaffold.
After a campaign led by Bentley’s sister for nigh on half a century, in 1995 Bentley