The Council of Circuit Judges (COCJ) is effectively the trade union representing the 652 Crown Court judges in England and Wales. The Council has become a body with a very public profile, responding to the many consultations put out by government. It accepts that judges should not make political statements, nor comment on individual cases, but can and do contribute to better understanding of how the law operates and should operate. So when the Council condemn government plans for new sentencing guidelines as “unnecessary, costly and unwelcome” and likely to lead to injustice it comes as a fresh blow to the controversial and embattled Coroners and Justice Bill which is now passing through Parliament.

Jack Straw’s catch-all bill has made these columns twice before (see “Civil Liberties” and “Partial defences to murder”). This point of attack is aimed at Chapter 1, clause 100 et seq, which, according to the COCJ, would mean that the discretion of the sentencing judge would be severely limited by “mandatory guidelines which the court must follow or apply in reaching the sentencing decision”. The Sentencing Guidelines Council and the Sentencing Advisory Panel are to be abolished, to be replaced by the Sentencing Council for England and Wales, a body of 14 appointed jointly by the Lord Chancellor and the Lord Chief Justice. This Council must prepare sentencing guidelines which every court must follow in sentencing an offender. The bill has passed through the Commons but has yet to go through the Lords.

In a hard hitting statement issued last week, the COCJ said that “We do not believe that the introduction of mandatory Guidelines will facilitate the just and proper sentencing of offenders. We consider that the imposition of mandatory Guidelines may result in injustice to both offenders and victims in individual cases”. The judges accuse the Government of departing from recommendations made by a working group set up under Lord Justice Gage in 2007 to consider a mandatory sentencing framework. Its report called the idea “unsuitable and unacceptable in England and Wales”. Jack Straw, the Justice Secretary, has sought to defuse the issue, insisting that he was not introducing mandatory sentencing guidelines. He said that he had moved a series of amendments to underpin judicial discretion. The bill was intended to ensure greater consistency in sentencing, which would be in the interests of justice and, primarily, of the public.

The COCJ is unimpressed “even taking account of the government amendments”. It concludes damningly “We do not consider these sentencing proposals to have any benefit. The proposals are not sought by the judiciary or any other criminal justice group”. The full text of the COCJ statement can be found at

http://www.judiciary.gov.uk/about_judiciary/governance_judiciary/cocj/statements.htm

It is always an event when the Lord Chief Justice reveals his views on the judicial system and so it was when the new holder of the office, Lord Judge of Draycote, addressed the University of Hertfordshire on 4 November. The title of his speech was “The Criminal Justice system in England and Wales – time for change?” and the full text can be found at http://www.judiciary.gov.uk/docs/speeches/lcj-speech-uni-hertfordshire-041108.pdf

Among many aspects considered was the relationship between the internet and the jury system. Lord Judge’s concerns are twofold. Firstly the availability of the internet to jurors. At the outset of a trial, judges direct the jury not to look at the internet in connection with the trial. They must reach their verdict only on the basis of what they hear in the courtroom. But, inevitably, from time to time an individual juror will disregard the direction and make his own private enquiries. Lord Judge referred specifically to a recent case when a juror went online using a Blackberry during a rape case, causing the conviction to be quashed. And he is not just concerned with today, “but the technology which will be available to our successors in, say, 2020 or 2025. I cannot begin to imagine the extent of the changes which lie ahead.”

His second concern is the extent to which internet culture is inimical to the traditional jury system. “Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system. Witness speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.” He described how the young get much information from the internet, how they consult and refer to it. “They are not listening. They are reading.” The potential problem he identifies is whether, learning as they do in this way, they will be accustomed to listening for prolonged periods. “What will happen to our oral tradition? Should it, will it, be forced to change?”

Writing in “The Guardian” Marcel Berlins wonders if the jury system can survive the internet. Accepting the validity of Lord Judge’s observations, he points out that although members of the internet generation are currently in the minority of today’s juries, progress is relentless, and it will not be long before they start to dominate them. He poses the question “what can be done to convey the evidence during a trial in a more palatable way, without destroying the essence of the jury system?”

Neither he nor the Lord Chief Justice (“I do not have solutions”) come up with answers.

Ask returning holiday makers how things went and they usually respond in superlatives. It is only later that you hear about the airport delays or poor food or upset stomachs or ghastly weather or other matters which reduce the holiday experience to, like most things in life, no more than reasonably satisfying.

Now there is a new potential nightmare to haunt the post holiday period. Under plans approved in principle by the European Parliament, British citizens could be convicted in their absence by foreign courts for such offences as traffic trangressions, theft, shoplifting or fraud, up to assault or murder. The proposals would allow citizens to be extradited automatically under fast-track procedures at the request of another EU country on the basis of a decision by the foreign court.
In Britain it is only in the most exceptional cases that trials take place in absentia, but such trials are more common in other EU countries. The new provisions are not a case of the perfidious European Parliament trampling unbidden on the British justice system. Britain was one of seven countries (since you ask, Slovenia, France, the Czech Republic, Sweden, Slovakia and Germany were the others) who sponsored a raft of proposals, including in absentia judgements, “on the mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States”. According to the Ministry of Justice the reform meets “an important and pressing need, namely to ensure that requests for the execution of European Arrest Warrants provide the necessary guarantees for citizens who have been sentenced abroad in their absence”. Last week the European Parliament approved the proposals by a thumping 609 to 60 majority, and the matter now goes forward for ratification by the European Council.

The decision has met with widespread opposition. Philip Bradbourn MEP, Conservative justice and home affairs spokesman in the European Parliament, warned that the decision “goes against one of the most fundamental cornerstones of British justice – that the accused has a right to defend himself at trial.” Nigel Farage, leader of the UK Independence Party, said the plan removed basic rights long enshrined in British law. “If we’re accused we must be able to know who accused us”. Pieter Cleppe, of pressure group Open Europe, said that “this proposal could open the door to serious miscarriages of justice”. The European Criminal Bar Association is strongly of the view that “in absentia judgements are by their very nature a violation of the fundamental rights of the accused”. And, in typically trenchant manner, Tim Worstall trumpets that this is “absolute bloody madness… Magna Carta did indeed die in vain.”

So you have been warned. Anyone for Brighton next year?