Early Mornings and How to Avoid Them

Among many ghastly proposals to modernise the justice system, perhaps the silliest has been the idea that courts should sit longer hours. The idea, I suppose, is that time spent by a judge not sitting is time wasted.

Nothing could be further from the truth. The best judges are most reluctant to judge at all. They know that if they stay in their rooms quietly engaged in non legal pursuits, counsel will usually be able greatly to reduce the length of the sitting day, if not to dispense with any need to sit at all.

The worst judges sit the longest hours. Invariably they like to start at 10 o’clock if not earlier. There are five judicial types in particular who have a tendency towards this deplorable practice.

The Resident Judge

The Resident Judge is by nature unusually hard working. Having spent most of his life working harder than ordinary people he simply cannot understand that he is exceptional.

He arrives at court at 7.30, having read all the case papers the previous evening. He completes his daily inspection of the Court’s facilities by 8.30 and then becomes frustrated if he cannot start issuing Local Practice Directions immediately, or as he would prefer to put it: “forthwith.”

Pity the visiting counsel who are ignorant of Local Direction Paragraph 14 (2) “Early Service of Defence Statements.” Anyone who appears in his Court for any reason at all without duplicate signed Defence Statements will be required to return with a fully compliant DCS and a written explanation at 4.30.

The Recorder in a Hurry

In character a younger, keener version of the Resident Judge. You once beat her in a moot, the nadir of a career which has since soared in a way that yours, annoyingly, has not.

The Local Boy Made Good

Having mysteriously chosen to live in Louth, he gives the impression of finding it distasteful to have anything to do with anyone who prefers to live elsewhere. Hence the local bar is afforded every advantage over those who have to travel an hour or two to get to court. Not the least of those advantages is a 09.45 start.

The No-Nonsense-Common-Sense-Judge

NNCS Judges do not particularly care what time they sit. Instead they use 10 o’clock starts to show that they are NNCS Judges living in the real world, like Judge Deed. They want everyone to contrast their attitude to work with the idleness of all other members of the legal profession in general and counsel in the instant case in particular.

The NNCS judge raises the issue without warning in front of the jury:

Ladies and Gentlemen, we really must make up for lost time, I should like to sit tomorrow at 10 o’clock, unless that is going to cause anyone any difficulties?”

The jury always agree that it will cause them no difficulties. It is then all but impossible to stand up and say that actually, starting half an hour early, merely to demonstrate how much common-sense the judge possesses, is actually rather silly.

The Hand-Wringing Victim of Targets

This judge sits at 10 o’clock with apparent regret and lets you know that he is only doing so because of some obscure Ministry of Justice target. He is in many ways the worst of the lot: either dishonest because no such target exists or, if it does, weak enough to try to meet it.

How does one counter these judges?

One of my most vivid court-room memories is of an immensely learned, experienced, somewhat venerable and above all persuasive Queen’s Counsel, successfully heading off a 10 o’clock start in a Portsmouth case. Ordinarily, he explained, he would be only too happy to start at 10.00, or even 09.30. Unfortunately however he could not do so in this case because the early train to Portsmouth was “too disgusting.” The judge backed down immediately: putting such a distinguished man through a disgusting train journey was clearly out of the question.

This is not, however, an argument that would carry much force from a wet-behind-the-ears young whipper-snapper. After all, most of us travel almost everywhere on disgusting trains, eating disgusting railway food and in many cases thinking disgusting thoughts. That is so after 10 o’clock every bit as much as before.

All that one can do with The Resident Judge is to hint at something about cutting witness waiting times. That may work once or twice, but it will not stand up to the rigorous statistical analyis that The Resident Judge will apply to the problem at 7 o’clock the next morning.

The Recorder in a Hurry will be unctuously polite if you object to a 10 o’clock start. She may even agree with you. Unfortunately when the clock reaches 4.15 she will insist that “in fairness to the witness” the evidence should all be completed in one day, so she ends up sitting till after 5 p.m.

The Local Boy Made Good will sneer dismissively at any request to sit at 10.30. When he was at the bar he thought nothing of catching the 04.30 stopping service from Goole to Wolverhampton and he is certainly not going to grant you any special favours. If you wish to practise in the Immingham Crown Court, then you should jolly well come and live in Immingham. If you won’t do that you will find when you arrive at court that the case has been moved to Scunthorpe, 35 miles and a £60 taxi-fare away. If you still object after that you will find yourself part-heard in Skegness. In November.

The technique with the No Nonsense Common-Sense Judge is to ask – preferably in front of the jury – whether he would be prepared to sit at half past nine. If this submission is put persuasively the NNCS judge will say:

What you may not appreciate, Mr Scott, but I most certainly do, is that most members of the jury have families to look after and children to get to school. Isn’t that right members of the jury? You have also given no thought at all to the very hard-working court staff. Would 11 o’clock be too early, members of the jury?”

The Hand Wringing Victim of Targets is so weak and contemptible that you can and should ignore him altogether. Have a good breakfast. If challenged, refer him to an EU directive on working hours.

(A slightly amended version of this article was originally published in Counsel Magazine)

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

3 thoughts on “Early Mornings and How to Avoid Them”

  1. Like it. A certain judicial personage in Liverpool whom I had better not name once fixed a hearing for 9.30 a.m. Counsel protested that he and I (both London-based) would have to come down the night before.

    “Excellent” came the answer “we need the business in this city” and recommended a hotel.

  2. Fascinating. What would you make of a judge deciding to hear a judicial review application – at 7:00 a.m – on a Monday morning – and throwing it out – whilst refusing to declare his conflicts of interest?

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