You call this justice? On yer bike

Since this blog was ill-advisedly conceived 10 months ago, I have directed a handful of pot shots towards a variety of people. The media – the Metro and the BBC are notable recidivists in poor legal reporting – MPs, magistrates, the CPS, the Ministry of Justice, and more recently, albeit a fight not of my picking, a former England cricket captain.

But I have, by and large, held back from launching one of my petulant dead-sheep-savagings upon other barristers. Mostly because – and I prepare myself for charges of naïve realism here (H/T @barristerblogger) – I tend to find that most barristers, even those with whom I disagree, avoid publicly making bad points.

It’s sort of drilled into you as a baby barrister. When you first slap on your brilliantine wig and grandma-ironed robes to fight for that first ferret-faced shoplifter fidgeting forlornly in the dock, you (by which I mean “I”) may not be great at putting forward good arguments, but you can at least perfect the virtue of not saying anything to make things worse. The art of avoiding, to quote the late Lord Denning, making a wally of yourself, is one practised with diligence by most lawyers online.

Arise Martin Porter Q.C.

Mr Porter has today written a piece in The Guardian entitled: “Dangerous drivers should not be allowed to choose trial by jury.” Lest there be any suggestion that a sensible contemplation has been twisted by mischievous sub-editors, the text is loyal to the headline, as Mr Porter, having cursorily acknowledged in the opening line that “Trial by a jury of your peers when accused of a serious crime is a bedrock of the English legal system”, goes on to explain why defendants accused of “either-way” driving offences – i.e. cases that can either be heard in the magistrates’ court or the Crown Court, entitling a defendant to choose a jury trial –  such as dangerous driving, should have this bedrock of English justice stripped away.

The reason, he writes, is that Crown Court juries more often acquit defendants charged with driving offences than do magistrates. And forcing all motoring defendants to be tried by magistrates, he submits, “would make justice more likely”. By which he means “there will be more convictions”. One and the same for Mr Porter, perhaps, but not an equivalence I’ve heard many other criminal lawyers draw. Generally, we tend to be a bit fussy about things such as evidence, the burden of proof, of the prosecution proving its case, of innocent people not going to prison etc. The old dusty favourites.

But anyway, such a change would offer, he suggests, greater security for other road users. In particular cyclists.

Mr Porter is himself a cyclist. I mention it because the article doesn’t, but he styles himself as “the cycling silk”, as per his blog: www.thecyclingsilk.blogspot.co.uk

He also doesn’t find room to mention that he recently brought a private prosecution for dangerous driving against a motorist in the Crown Court, and lost. The motorist, a driving instructor, had allegedly speedily overtaken Mr Porter on his bike, and Mr Porter brought the weight of his legal expertise to bear upon the driver and pursued a prosecution that the police deemed unworthy. Incidentally, and you may have seen this on the news, in spite of losing the case, Mr Porter is seeking £22,000 of public money to pay his costs in bringing this unsuccessful prosecution.

I should also point out that, while his legal specialities are numerous and undoubtedly impressive, crime is not listed among them. He is not, it seems, a regular attender at the Crown or magistrates’ courts.

I raise these minor background details just in case the article appears to be trying to give the impression of being a temperate, objective legal analysis by a leading criminal lawyer.

Because it’s not.

It’s a winding, whinging, 700-word foot stomp of an unsuccessful litigant with a grievance against motorists, shouting, Queen of Hearts-stylee, “Off with their petrolheads”.

A very cross Q.C.

It’s difficult to know where to start with the argument itself, because it’s rare that an argument by a lawyer is advanced with such a casual disregard for the evidence. Perhaps let’s begin with some of the “facts” upon which Mr Porter relies:

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“Juries have a poorer record [than magistrates] of convicting drivers, especially if the victim is a cyclist or a pedestrian”

You are more likely to be acquitted by a jury than by magistrates, it’s true. Juries tend to be less cynical than world-weary magistrates and Judges, and may quite properly give defendants, as they are required by law to do, the benefit of any doubt. But that pertains to all offences. There is no evidence advanced to suggest that driving offences are a special category.

“Often these juries acquit after less than an hour of deliberation, even when the evidence against the driver seems very strong.”

Certainly the jury in Mr Porter’s case acquitted the driver quickly – after 20 minutes, it is reported. But how he substantiates this general point is beyond me. The length of deliberation means, as a criminal lawyer would tell Mr Porter, very little in most cases. It certainly doesn’t indicate that the jury haven’t considered the evidence properly. And how he purports to know the strength of the evidence in these unspecified cases in which he was not involved is unclear.

“Juries have greater empathy and compassion for motoring defendants. “There but for the grace of God go I.””

The evidence for this is absent. But the logic appears to be that juries should be removed from the very type of allegation that juries were designed to adjudicate – the kind of deliberation to which each juror can probably contribute extensive, daily, practical experience from their own lives, and apply shared and common standards to assess whether a criminal offence has been committed by a fellow citizen.

“Far fewer jurors are likely to identify with a victim on a bicycle”

This is submitted on the basis that there are more drivers than cyclists. By the same logic, given that most of the population have never been killed, juries should be taken off murder trials.

“Juries have little understanding of the sentence likely to be imposed. They may therefore acquit out of fear that a conviction would yield a disproportionate sentence.”

There is again no evidence cited to support this supposition. But in any case, as any criminal lawyer knows, juries are never told about the likely sentence. Barristers are explicitly prohibited from even mentioning the likely outcome to a jury. If the jury ask, the judge will tell them to put it out of their minds.

“Juries are expensive, and Crown Court delays are slow. This has repercussions, as there is evidence that certainty and speed of punishment are important factors in deterring crime than the severity of the punishment.”

Although it is not cited, evidence indeed exists to support the proposition that certainty and speed of punishment are greater deterrents than its severity. But what is not clear is why this argument applies any more to driving offences than any other offence.

“There is a considerable temptation on the part of prosecutors to undercharge to avoid a jury trial due to expense and the likelihood of a low sentence in any event.”

In the absence of evidence, one can only presume that this assertion is based on Mr Porter’s extensive professional experience of prosecuting for the CPS in that broad criminal practice he’s too modest to mention on his website.

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Having thus conclusively established that a “culture of undercharging and overly sympathetic juries” exists, he concludes – and here we reach the gravamen of the situation – that it is this that deters people from cycling. He finally bellows the rallying call of the intellectually exhausted: “We Must Do Something.”

That “something” is to create a particular class of justice for a particular class of defendant against whom Mr Porter has a particularly sharp axe to grind. It’s a leaf out of Michael Vaughan’s book – justice means the outcome that conforms to my prejudices. It’s the last thing one would expect from anyone remotely acquainted with the justice system.

The unintended consequence of Mr Porter’s proposal, of course, is that it would have the effect of limiting the sentences in driving cases – which he appears to complain are already too low – to 6 months’ imprisonment, the maximum powers of the magistrates’ court. Quite how that makes things any safer for cyclists, God alone knows.

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UPDATE: Mr Porter has been in touch to point out some inaccuracies, which I am happy to correct. This post originally stated that the CPS would not prosecute the matter that Mr Porter pursued as a private prosecution. This, Mr Porter says, is incorrect. The police refused to refer the case to the CPS as they deemed it unworthy of prosecuting, having concluded that there was no realistic prospect of a conviction and/or that a prosecution was not in the public interest. Mr Porter has also indicated that the fees he is seeking to recover from the taxpayer for his unsuccessful prosecution are “nothing like £25,000”, as originally reported. The figure requested by his prosecuting barrister in open court was £22,714.