No position to judge

Criminal trials have been big news in the last few weeks; allegations of murder or attempted murder have been tried in that most vexed area of human tragedy, the participation in the death of a loved one in extreme circumstances: mothers and children at their wits end and wishing life's end. How on earth can we judge? The other fraught area of homicide is the killing of an abusive partner '“ the years of violence and terror that culminate in a moment of anguished violence: was it self-defence or provocation, or plain old murder? And then, on top of that, we have the dreadful Doncaster case where the dark pit of human kind has been reopened and we just hang our heads in shame and disbelief.

Much disapprobation has been heaped on many in all of these circumstances. The trial judge who has passed the sentence on one mother of a minimum term of nine years is in trouble. The trial judge who passed the minimum term of five years on the Doncaster boys is in trouble '“ mainly because nobody actually bothers to understand what the judge's sentence really means. And then the prosecution in Sussex are criticised for proceeding in the trial against another mother when a plea had already been tendered of guilty to assisting suicide. 'Where are the differences?' everybody shouts. 'Too much!' and: 'Not enough,' scream the papers and the vox-pops. 'What were they thinking of?' comes the yell from another quarter.

As usual, in the same way that apparently everybody saw the banking disaster coming but mysteriously said and did nothing about it at the time (and like everybody saw the dot-com bubble and the South Sea bubble and the tulip bubble before them, no doubt) everybody is an expert except the poor old judge and the poor old professionals. Yet again, by some trick of fate, the real legal experts have sadly ended up with jobs in the media, or on the radio, or driving cabs and serving in bars or styling hair, while the numpties who are good for nothing but daytime television and the shopping channel have ended up being given horse-hair hats and a lot of hard decisions to make for which they are plainly intellectually ill-equipped.

The point is that, as usual, we do not know half of it. We are very unlikely to be privy to the whole of the evidence in any of the cases. We do not know what the reports say when it comes to sentence, and what the evidence is when it comes to a trial. What is interesting, however, is that we do know what the judges said about these things.

In the Lewes case, where the defendant was acquitted of attempted murder, Mr Justice Bean asked the prosecution whether the public interest was engaged in a prosecution for attempted murder, as did the senior judge too, apparently.

Going round the back

This is, perhaps '“ or should be '“ significant. In the far off days when I was starting out, judges had no hesitation in 'expressing a view'. It was no problem, normally, to 'go round the back' with the prosecution to try to get an indication of sentence were the defendant to plead guilty. We can do this now, but it is all done in open court '“ which is obviously preferable. But, on top of that, judges were also capable of expressing a view even when they had not been asked to. I can remember on more than one occasion being 'invited' into the judge's chambers with my opponent, whereupon over a cup of tea and a biscuit the judge would growl at prosecuting counsel about the obvious deficiencies in the case. Once I was even threatened with the local press being given some choice judicial interventions to report if the case was not discontinued there and then, his Honour having formed '“ and articulated over a rich tea '“ a rather damning view of the veracity of the young police officer's 'eye witness' evidence. After a degree of wriggling, we eventually did the decent thing.

Now in some ways those were bad ways. It is not, after all, the judge's function to act as some sort of executive in terms of prosecuting discretion. Her job is to apply the law and preside over a fair trial, and sentence lawfully and appropriately if there is a conviction. The danger in the old days was that leaning on the prosecution might be seen to be not just to do with the merits of the case, but also to do with the merits of the judge's social life.

However, there is a place for the discrete and clear judicial intervention. After all, the judge has a view of how she may wish to sentence pretty well from the outset. The judge will have considerable experience where, in such circumstances, the public interest lies. The judge does have a good feel for a good case properly brought (the majority) and the bad case indifferently brought. Some cases are poor cases at the outset and they do not get any better. We have the jury, a few days later and several thousands of pounds down the line, who will, hopefully, apply the cold bucket of common sense that the prosecuting authorities have been lacking.

But it can be a lot better '“ and in no way undermines the integrity of the system '“ if in open court an experienced judge expresses a view as to whether the public interest really requires a trial, particularly when there has already been a guilty plea that reflects the act. Some crimes are perfectly properly indicted according to an exam on the criminal law, but are not properly indicted '“ or at least tried '“ when one takes into account the living element of the law, and overlooks mercy, judgement and morality.

I know nothing about the Lewes case, so I do not criticise. But it is interesting that two experienced judges expressed a view. I hope that we are not in a situation where nobody will ever listen and take heed of a judge's observations '“ without force or authority as they are, because, you know, sometimes they just might know what they are talking about.