Marshalling: My Experience

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Marshalling:  My Experience

 

Originally published by Lawyer-2B.

BPTC graduate Richard Murtagh recently spent a week shadowing judges at the Old Bailey. In this five-part series, he recounts his experience.

 

MONDAY

For forty years, budding lawyers-to-be have been drawing inspiration from the classic TV series Rumpole of the Bailey (written by John Mortimer QC), which gives a flavour of the Central Criminal Court — also known as London’s Old Bailey.

More recently, the period drama Garrow’s Law tells the true story of William Garrow: a young barrister at the Old Bailey who championed adversarial justice. And each day, newspapers report details of the most wicked crimes to be tried at that place. In short, for both lawyers and law students, the Old Bailey is a stage like no other.

Those who wish to see for themselves can turn up and watch from the public gallery. However, Inns of Court members wanting to get closer to the action may spend a week ‘marshalling’ — that is, sitting next to a judge on the bench.

I’m fortunate to have spent a week as a marshal after applying to my Inn (Middle Temple) for the placement. I shadowed three different judges in a range of cases.

For other prospective marshals, if staying in London is difficult, you could ask to sit for a single day, or at a court nearer to your home.

Emerging from St Paul’s Tube Station on Monday, I felt a rush of excitement… and panic. This was no ordinary day! Within the hour, I could be sat before counsel, defendants, defendants’ family, witnesses, the press and the public. Surely, it wouldn’t be as easy as just “follow the judge” would it? But it was that easy — once the initial nerves had passed.

I observed the first day of a racial harassment trial, in which an MP had been the target of an abusive online campaign. The MP was called to give oral testimony against the defendant. The prosecution needed to show harassment according to the statutory definition. Hence, the MP was shown the various publications and asked to describe their impact.

On cross-examination, the defence sought to undermine this testimony. It was put to the MP that they had deliberately searched for the websites in question, and on finding them, felt angered as opposed to harassed. It was suggested that the MP had interpreted the publications as racist, when in fact, they were “a poor attempt at satire.” The MP disagreed, stating: “There’s a line between free speech and hate speech, and he [the defendant] clearly crossed it.”

I did not get to reflect on matters with the judge in chambers (as I would with other judges in the days to come), although I was allowed to view the offensive exhibits as the prosecution introduced them.

Also, being so close to the action, I could observe the demeanour of both witness and defendant as the uncomfortable prosecution evidence was brought to light, then tested by the defence on cross. Such a perspective would not have been possible from the public gallery.

So, I gained unique insight into a cutting-edge case.

Not bad for my first day!

 

TUESDAY

While my first day as an Old Bailey marshal was spent quietly observing, Tuesday marked the start of lively interaction with the judges.

Question… If you run a business, and you fail to pay tax for five years, does it follow that you have acted dishonestly? This was an issue before the judge I sat with today.

The defendant was charged with tax evasion. However, his barrister made an application to dismiss the charge before trial. It was stated that evidence of dishonesty is required, yet the prosecution were simply relying on the fact that no tax had been paid to date. Counsel for the defence argued that many people fail to pay bills on time, but that’s not to say they are all dishonest. Counsel further argued that his client could now pay the tax (with interest), plus a hefty civil fine; hence, criminal prosecution was unnecessary. The judge retired to consider the application, and as her marshal, I joined her in chambers.

We discussed the issue at length. The judge seemed unimpressed by counsel’s submissions, chiefly because if the defendant had been “run over by a bus” then HM Revenue & Customs would probably have lost out on the large sum owing. Also, tax liability is in a different league to one’s ordinary bills. The judge invited my thoughts. I played Devil’s Advocate, arguing that without hard evidence of deceit, there was no distinction between crimes of dishonesty and crimes of ‘strict liability’ e.g. driving without insurance, whereby honesty is irrelevant; the absence of insurance automatically spells guilt. Applying this logic, why would Parliament have used the word ‘dishonest’ if failure to pay one’s tax on time were enough to establish evasion?

The judge took the point, but reminded me that the defendant had fallen five years behind with his tax; an awkward fact from which a jury might infer dishonesty. So, we returned to court where the application to dismiss was denied. The question of dishonesty would be left to a jury at trial.

A number of other applications (in different cases) were made before the judge, and each led to further discussion in private. Our discourse was stimulating and inspiring.

What tips can I share with prospective marshals?

  • Bring a notepad. As my experience shows, it’s possible to have fun, debating trial issues with the judge… but only if you’re taking notes in court. Too much happens to store the details in your head. Even if your judge isn’t the talkative type, you’ll find that taking notes keeps you alert. It’s not all thrills and spills! This leads to my next tip.
  • Get a good night’s sleep. As a marshal, you’ll be sitting next to the judge, so all eyes in court will be on you. This isn’t a mini-pupillage; you won’t get away with daydreaming through dull moments. It’s all relevant to the judge… meaning it’s all relevant to you!

More tomorrow, when I’ll get to see part of a murder trial.

 

WEDNESDAY

Today was my third day as an Old Bailey marshal.

I’m forming a rapport with court staff and security. We trade banter at the entrance and in the corridors. It’s surprising how fast a sense of routine kicks in even at a place whose regular business is murder. Speaking of which…

I arrived expecting to sit on a murder trial. I was disappointed to find that the trial was concluded nine days earlier; all that remained was for the jury to return its verdict. However, I needn’t have worried. This turned out to be the most tense, interesting and insightful part of the week. To be honest, these events took place over three full days, slotted between other matters. But for continuity’s sake, I’m packing it all into Wednesday.

The judge began by explaining the case history and allowing me to read the notes from his summing-up. The defendant stood accused of killing another man. The options for the jury were murder, manslaughter or “not guilty.” Murder requires proof of intent to kill or cause really serious injury. Manslaughter is the default option where such intent is missing.

The judge told me about a note sent by the jury two days ago. It indicated that the 12 jurors had reached a deadlock:  “not guilty” was unlikely at this point, but so was a unanimous verdict. The judge feared having to declare a hung jury, which would mean having to retry the case at great cost to the taxpayer.

The jury bailiff informed the judge that another note was available. The judge read the note in open court, with the defendant and counsel present. It confirmed there was no movement on the voting numbers, nor was there likely to be. After submissions from counsel, the 12 jurors were called into court and the judge directed that a verdict of 11–1 was now acceptable.

Hours passed. A further note was received. No progress had been made, nor was any likely. In court, the judge directed that 10–2 was now acceptable. Eventually, a final note stressed that the jurors were unlikely to reach agreement at all.

In chambers, the judge explained the dilemma. Clearly, the jury did not believe this defendant to be innocent and was split between murder and manslaughter. No juror was willing to budge. In such a case, a judge may withdraw murder from the jury, leaving manslaughter as the only option. But this is risky. For example, what if a stubborn majority favour murder and refuse to convict on the lesser charge somehow believing this to be “giving in” to the minority view? In that event, the judge will have forced a hung jury. On the other hand, it seemed from the jury’s notes in this case that a hung jury was inevitable.

Fortunately, prosecuting counsel made an application to withdraw murder from the jury, thus sparing His Honour such a difficult decision. A unanimous verdict on manslaughter was then returned within minutes. The trial was over.

On leaving for the day, I had to pass by the Jury Room. I noticed the door open and the bailiff tidying up. At a glance, I saw reams of notepaper littering the table, wastepaper bins brimming over and photographs pinned to walls. Undoubtedly, this room had played host to some intense debate.

So, today I bore witness to the diligence of British jurors. I also came to appreciate the subtle demands upon every trial judge. Aspiring barristers wishing to do the same should apply through their Inn. Aspiring solicitors could write to the Court Manager direct.

More tomorrow, when I’ll get to see part of a terrorism trial.

 

THURSDAY

Today was my fourth day as an Old Bailey marshal.

In the morning, the judge and I heard an ex parte (one-sided) application in chambers for the right to access bank records of a suspected money launderer. On the face of it, such secretive applications may seem unfair, since the other party is denied a chance to respond. However, the logic of applying without notice is to avoid giving suspects time to dispose of illegal funds.

The judge then took me on a short tour of the old Edwardian building. The highlight was our visit to Court Two, in which many a notorious killer has faced justice. I was told that convicted wife dismemberer “Doctor Crippen” was tried here; not Court One (the favourite) as many people assume. Being on the older side of the building, Court Two is harsher and draughtier than the modern, more comfortable courtrooms I’ve been marshalling in. It even smells different: a faint whiff of tobacco wafts up from the cells below.

In the afternoon, I joined another judge on a case of attempting to supply terrorists abroad. The defendant was a British aid worker accused of abusing his charitable role. Being above the fray, I could enjoy seeing the advocates (and their different styles) at work.

I was provided a copy of the prosecution bundle containing over a hundred pages of text messages between the defendant and persons abroad.

Counsel for the defence was slow and meticulous. I admit finding his approach a bit painstaking, although I fully appreciate what he was doing: laying the groundwork for an innocence speech backed by small-but-crucial details, no doubt. As his client’s account was elicited, I skimmed the pages of texts. Suddenly, one word leapt out at me… ‘ballistics.’ It was contained in a text to the defendant; a request for “ballistics software” among food and such items. To my mind, this looked out of place and needed explaining, yet no explanation was given by the defendant in his testimony. However, the unusual text had not escaped the prosecutor’s notice, who went straight for the jugular on cross.

“Have you ever seen or heard the word ‘ballistics’ sir?”

[I think so]

“Can you tell us what it means?”

[I can’t]

The prosecutor made him read the text aloud. “You’re an intelligent man, yet you’re saying you haven’t the slightest idea what ‘ballistics’ relates to?”

[I think it relates to the military]

“Why would anyone text you to ask for an item relating to the military?”

[I don’t know]

“Didn’t this text strike you as odd?”

[I can’t recall]

… and so on. I thought this looked bad for the defendant. Then again, he may be innocent, but understandably reluctant to discuss ‘ballistics’ in a terrorism trial.

I feel that marshalling is giving me a judicial perspective. I’m grateful to Middle Temple for this rare opportunity, and would encourage other aspiring advocates to apply for the same. Contact your Inn or a Court Manager directly.

More tomorrow.

 

FRIDAY

Today was my fifth (and final) day as an Old Bailey marshal.

Question… Suppose you’re charged with murder. You deny this, but plead “guilty” to unlawful possession of the knife used by you to kill the (unarmed) victim.

In such a case, should you be allowed to rely on self-defence, i.e. claiming that you only used the knife to protect yourself? This was my question to the judge in chambers.

Our day commenced with jury selection in a murder trial due to start next week. However, before the potential jurors were brought in, defence counsel indicated that her client wished to plead “guilty” to unlawful possession of the knife he used. The judge accepted his plea, but reserved sentencing until after the trial. Counsel then indicated that her client would be relying on self-defence.

In my mind, this presented a dilemma. Self-defence is a complete defence meaning that if the jury accepts it, the defendant cannot be found guilty of murder. This would also mean that the defendant had acted reasonably (that is, lawfully). And yet, how could that be so when he shouldn’t have been carrying the knife, let alone using it?

The judge called this a pertinent question, but confirmed that such a defendant may invoke self-defence. The issue is not whether it’s reasonable to carry a knife, but whether it was reasonable for this particular defendant (who wrongly carried a knife) to use his knife against this particular victim in these particular circumstances.

For instance, if it turned out that the victim and the defendant were mortal enemies from rival gangs, a jury might think it reasonable to “fight fire with fire” in the event of a sudden, unexpected confrontation between these men on the street. But much would depend on the facts brought out at trial.

In a separate pre-trial hearing, counsel for the defence applied for an order compelling the release of medical records. The defendant was charged with fracturing his daughter’s skull due to dangerous driving; yet, the prosecution had served no evidence of her injuries to date. The defendant is prevented from seeing his daughter, so is unable to confirm the severity of her injuries for himself. Counsel indicated the possibility of a Newton Hearing, in which the defendant might be willing to plead guilty, but on different facts to those alleged.

I then rejoined yesterday’s trial (attempting to supply terrorists) for the remainder of the day. And that was that. My memorable week at the Old Bailey was through.

To sum up in judicial fashion, my best experiences were:

  • seeing an MP cross-examined on Monday;
  • playing Devil’s Advocate with the judge on Tuesday;
  • glimpsing behind the scenes of a murder trial on Wednesday;
  • seeing a prosecutor go for the throat on Thursday;
  • debating the ethics of self-defence on Friday.

Overall, I’d say marshalling is a perfect compliment to one’s mini-pupillages. Apply to be a marshal in the field of law you hope to practise. Your Inn or local Court Manager can help.

Best of luck!

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