The Wicked Magistrate SIR CARLETON ALLEN, Q.C.
LTHOUGH I have the misfortune to differ from Mr. Gordon Wilkins in almost everything he has written , recently in these columns about • The Wicked Motorist,' 1:1,8_aanielessly plagiarise his title, and I join him in deploring everlasting hunt for the scapegoat for our road slaughter. Lae real culprit, of course, is The Wicked Wheel, but as it is 111ewhat difficult to trace the inventor of that human scourge, :le are nowadays offered a rich variety of villains—the motorist, :te Pedestrian, the cyclist, the rolling English drunkard and we rolling English road. Mr. Wilkins himself, by the way, seems to have found a new one in the commercial driver. pelt% perhaps the most popular scapegoat of all, from Shakes- re onwards, is Master Robert Shallow, that perennial butt 19110, nitwit though he is, somehow manages to dispose of about Per cent, of criminal offences, including the huge number `vattnitted on our roads. T▪ he favourite charge against him is that he is too soft- aearted and soft-headed towards sinning motorists on the 1:vtibnciPle that dog does not eat dog. Or shall we say that Cen a traffic offender is before him, it is mot deep calling beto dee- p but Shallow calling unto Shallow ? In my belief, Sd Upon fairly long experience, there is very little justice wis allegation. It is true that many, perhaps most, magis- 4ates are motorists, but they represent the average, and the erage owner-driver, having himself suffered from the tb'n°rity of road-thugs, is just as hostile to them as the send- pulpiteer. Far from feeling sympathy with tePublic menace, a magistrate who wishes to preserve a judicial ofalper•of mind often has to restrain his indignation at some ,the cases which come before him. tr,,'„,t is right that he should do so, for he must not judge a:Lae or any other offences by emotion, as Press and public Often apt to do. It is his duty to adjudge culpability, and ot"ls the penalty of the machine age that with regard to fast- a °viing vehicles (and indeed many other machines and gadgets) ight degree of blameworthiness may produce wholly dis- Purtionate consequences; whereas, conversely, gross law- tas, tss may often, by sheer luck, escape doing damage. This of `‘ Of distinguishing between the cause and the consequences er, an accident is extremely difficult, not least because the ve"urts have to discriminate carefully (since the penalties are tivrY, different) between three degrees of culpability—compara- ear e'Y trifling negligence or inadvertence (driving "without due an,ie and attention "), sheer recklessness (dangerous driving), les', if a death has been caused, that flagrant degree of reek- which is necessary to support a charge of manslaughter. distinction is drawn by no legal ` yardstick ' but by • i• deration of the circumstances of each case, and the "t7 culty of drawing these fine lines must be experienced to appreciated. ais Ail this is not to deny that penalties are often inadequate, drPeo 11Y with regard to the growing number of offences of 23en driving. It is obviously wrong that in 1952, out of 233r Persons convicted of driving 'under the influence,' only '1,,f Were sent to prison, while a mere 640 were disqualified 117 more than the statutory 12 months. There is substance in \'_er criticism that Magistrates do not make sufficient use of the vse effective penalty of disqualification, and that they take vveuh.lenient 'a view of certain offences, such as unroadworthy offmeles and, especially dangerous driving. For this latter It 1C there is seldom any real excuse or extenuation, and uric:11'4.'1Y deserves a stern disqualification, which, however, eh," er existing law is not automatic except upon a second or .usequent conviction. .The not st, matters decidedly call for judicial valour,' but it is nut a. lwaYs as easy as it may seem for an individual bench of tetrates to adopt 6 policy of consistent severity. Consis- neY. indeed, is certainly not to be found even in the higher criminal courts, where judges in passing sentence notoriously differ in the views which they take of different offences. Much more unattainable is uniformity in some 800 magisterial courts ----exclusive of the 13 Metropolitan courts in London and the 15 stipendiary courts elsewhere—manned (and womaned) by some 16,000 lay justices sitting in places all over the country with widely differing conditions of traffic. Even the same bench of magistrates, in populous centres with frequent petty sessions, is differently constituted on different days of the week. Each court, and each permutation of it, is its own master and no authority in, the land has power to dictate its policy or discretion.
Again, magisterial jurisdiction is not exclusive. For certain serious traffic offences, notably dangerous and drunken driving, the defendant has the option of being dealt with summarily or by jury-trial. If he is well-advised, he will choose the latter, even though he risks a heavier sentence in the higher court. Despite the claims made by many eminent lawyers for the infallibility of the British jury, the verdicts returned in road traffic cases are often difficult to understand—though, as I shall mention, they are not always as perverse as they seem.
Nor is petty sessional jurisdiction final. An appeal, by way of a complete re-hearing, on fact or law or sentence, or on all three, lies to Quarter Sessions, Which may consist of' an Appeal Committee or, in some 80 boroughs 'throughout, the country, of a Recorder. A single barrister (or sometimes his deputy pro hac vice) is doubtless far more learned in the law than lay justices, but he is not necessarily a better authority on fact or on sentence than a bench of magistrates. It is the discouraging experience of many petty sessional courts that an offender who has, for good cause, received an exemplary sentence stands at least a fifty-fifty chance of having his punish- ment reduced on appeal.
The greatest problem of all is evidence, .which, as every lawyer knows, is more conflicting in running-down cases than in any other branch of the law. The reason is not usually deliberate perjury (though there is enough of that), but the well-known fact that a momentary and unexpected happening, as an accident usually is, makes extraordinarily different impressions on different minds. The variations between quite honest witnesses are sometimes almost incredible. There are very few accidents in which the fault is wholly on one side and in which some doubt does not remain. If the doubt is substantial, then the prosecution has not established its case and acquittal must follow. It is probably this perplexity of evidence—easily canvassed by any competent counsel—which accounts for some of the surprising verdicts of juries, rather than a sneaking fellow- feeling, which is often alleged, for delinquent motorists. The difficulty is specially acute in charges of alcoholic behaviour. There is often a discrepancy between the evidence or the constable who arrested the erratic, malt-reeking driver and the police surgeon who examined him perhaps an hour or more later, when he had partly pulled himself together. Nobody is satisfied with the routine medical tests, which, however, purport to be ` scientific ' as against the merely impressionistic police evidence, and the British Medical Association has recently cast chilling doubt upon them—even, indeed, upon the blood- test which is said to be so efficacious in Scandinavian'countries.. It must always be remembered that the. offence in law is not merely intoxication, but intoxication to the point of incapacity, and it is small, wonder, therefore, that 'reasonable doubt often triumphs.
That, too, is the means of escape of the half-drunken devil- may-care,- who is not 'incapable' but thinks himself only too. capable, and is all the more dangerouS on that account; and' the law of evidence provides him with a further I immunity.' Frequently the prosecution has to choose between a charge of drunken or of dangerous driving. If it elects the former, then alcoholic incapacity must be proved beyond doubt; if the latter, then (according to the better opinion) evidence of 'drink taken' is inadmissible, as being irrelevant to the actual charge and merely prejudicial. Everybody in court may suspect the real cause of the misbehaviour, but a court cannot convict on suspicion and in road traffic law, as in the code of the Sergeant- Major, "a man is either drunk or sober."
"The Shallows and Silences of Real Life," as F. W. Maitland once called them, are fallible mortals, and it has not been my purpose to excuse their errors, but merely to suggest that they are not quite such scapegoats, nor even goats, as they are sometimes represented in the unprofitable contest of recriminations.
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