The Magistrates Court. Distinguish between lay Magistrates and District Judges (Crime). Treat the former as your parents treated their great Aunts and Uncles. Speak loudly and clearly. Use lots of ‘Sirs’ and (especially) ‘Ma’ams’. Try and keep it gender appropriate, although this is secondary. Men in blazers and women in pearls should attract a double helping. Frequent references to ‘the community’ are helpful. It is not necessary to define the term, so using it should pose few problems. Remember that lay Magistrates devoutly believe that they are an essential component of democratising justice, so never indicate that they are slow, footling, stupid or inexpert. And remember that most of them do actually know what they are doing, certainly when compared to a baby barrister.
District Judges (Crime). Keep it very, very short. These are strong contenders for the most overworked Judge award. Once you have appeared before them a few times you should be able to keep it to ‘submission number 3 Sir’ (this is the one where he is remorseful and addressing his drug problem with the help of his devoted grandmother who he has only clubbed once and even then he left some money in her purse). Although it is possible to indicate that you will continue mitigating until you get your desired result this may not work and – even if it does – there will be a pay back later. Otherwise, dress smartly and be punctual.
The Crown Court. Know your Judge. Nowhere else are the vagaries of human nature so important. In an ideal world you would put your case succinctly and clearly and courteously point out to the Judge why you were right, with the Judge accepting your position even if not agreeing with it. Alas, mankind was expelled from Eden – using a procedure plainly in breach of the ECHR given that no plea was taken; that, even with a cut-throat mitigation, no representation was permitted; and that the use of exile as a punishment clearly meets the criterion of cruel and unusual. Accordingly, you may find that your carefully crafted submission serves only to provide time for the Judge to check his watch, practice picking up and putting down his pen and indulge in a little restful sighing out loud.
Although there is a belief that the Circuit Bench has fewer ‘characters’ than it once did (it certainly has fewer outright eccentrics – the Judge who whistled throughout submissions, stopping only to bark ‘name that tune’, comes to mind), peccadilloes come in all shapes and sizes.The sulky, the silently brooding, the frankly prosecution minded, the pernickety, the self-important, the bored and the delightful are all represented. Let’s face it, even if there are twice as many delightful as of any other type, your average Court Centre of 8 Courts is going to give you a 6 – 2 chance of trouble ahead.
So, always be courteous. If you must indicate to the jury that your point has been unfairly rejected make it relatively subtle – I have heard someone say, when the jury returned to Court after the ruling, ‘Mr X, I was asking you about a threat to kill you if you gave evidence. Well, now for something completely different’ – but I don’t recommend it. Learn the ways of saying ‘as your honour pleases’ which are as close to outright insubordination as it is possible to get (whether you use them or not is up to you). Preface criticism with the words, ‘Your Honour, with notable fairness, said x’ – after all, if it isn’t fair you are unlikely to receive correction. Remember that every case has a winner and a loser. So treat triumph and disaster just the same – preferably not by screaming, punching the air and pumping your arm.
Finally, when they meet you later some Judges cannot resist asking you how you think they did. A neutral answer which defers further questioning is essential if you do not wish to end up telling them precisely how many mistakes they made and how little discernment was demonstrated. Try, ‘Judge, your summing up was a masterly attempt to ensure that justice was done, as you saw it’. Normally, by the time the implications of the remark are fully comprehended you can be far enough away to forestall further conversation.
The County Court. There are two types of County Court Judge/Registrar. The Specialist Judges/Registrars are essentially High Court Judges/Masters on a lower salary, for which the trade off is a lack of endless committee meetings and an ability to list your own work. We will deal with them later.
The general County Court Judge/Registrar is a jack of all trades. They are probably the master of some, but you may not know whether you are addressing the Grand Wizard 8th Degree with the Purple Plume of Perspicacity, or the Apprentice with the Brownish Bodkin of Boredom. It is your job to tell them the law. What you need is a method to ensure you are neither lecturing the one who knows more than you, nor leaving unturned a stone that the one who knows less than you would not recognise if you went up to him with it on a plate and said ‘this is a stone’. Given that in order to do this you also have to know the law, you can see why people say this job isn’t easy.
Approaches vary. You can probably rule out asserting that Donahue v Stevenson established that drowning snails in ginger beer was causing unnecessary suffering to an animal and then, when (if) challenged saying, ‘just testing’. Equally, starting with the assertion that the doctrine of lost modern grant fills in the lacuna caused by the gap in the evidence of use of the land between 1189 and 20 years ago might be a bit much – even if it is preceded by the words ‘As Your Honour will doubtless recall’. By and large the way forward is to be able to talk like an expert if required, but to start from the cautious basis that you are talking to a moderately bright teenager who is actually listening rather than BBMing their mates about the wicked time they had last night.
You then need to deal with the facts whilst remembering that there is no jury. Don’t worry too much about that. Most of them will remind you of it (usually accompanied by a heavy sigh) if they think you are addressing them as if they were capable of being swayed by a) sympathy; b) your oratorical skills; c) the witty way in which you are skimming over the obvious gap in your case. Keep it pithy. Remember that they have to give reasons for their decisions so give them some.
Next – the High Court in its various divisions and the Appellate Courts.