Judges can’t just make up the law: the Linford decree won’t last long

Wild rocky coves. Crashing surf. Drunken public schoolboys. There is nothing quite like Cornwall in August.

And where better to base yourself than a place the drunken Etonians largely avoid: the pretty city of Truro, with its cathedral, the beautiful estuary of the River Fal, and on the site of the ruined Norman castle, its RIBA award-winning Crown Court?

The Court – in fact a combined Crown, County and Family Court Centre – was opened in 1988, and listed in 2018. Not many lawyers, I suppose, have visited Truro for work purposes. My only trip was many years ago to conduct a bitter partnership dispute. Since neither myself nor my opponent nor the unfortunate judge was entirely at ease with this difficult and rather obscure corner of the law, we settled the case on what seemed to us all an equitable basis. I remember nothing more of the case, but I do remember the building itself.

I can’t do better than the official listing, which describes the “low slung and diffuse” exterior, appearing to emerge organically from the contours of its hillside site. The external walls are of light grey roughcast render in the Cornish manner, with plinths of dark brown bricks and dark brown brick and moulded pre-cast concrete cornices or coping stones.”

Unlike most modern court buildings, the interior is light and cheerful, as one would expect from the same architects who built Tate St Ives:

The building is of two storeys arranged in a compact, asymmetrical plan …. Steps down from the entrance lead to a circulation concourse which encircles a central rotunda to the west and which is open to an enclosed courtyard to the east. The rotunda doubles as a circulation hub and waiting space, and has stairs to the upper level and access to adjoining consultation rooms. To the west are three staggered court rooms: large and small crown courts and a dual-purpose court. Each has separate circulation arrangements for judiciary, jury, defendants and public, and the dual-purpose court is served by a smaller rotunda.”

What is not to like? you may ask; and the answer is very little, even if attending court is seldom a very pleasant experience for most of its customers. At least in Truro as you wait for your case to be called on you can circulate around the central rotunda, noting as you go the skirting rails of chamfered brick,” or looking up to the ceiling where you will note the “raised drum, carried on columns, lit by bands of sand-blasted glass bricks and a lantern set into the apex of the conical roof.”

If you are a judge, it is even better:

The judge’s chambers and jury retiring rooms are situated to the west with views over Victoria Gardens (and, for the former, access to a judges’ garden).”

It’s a little tough on the jurors to deny them their own garden, but it’s very nice for the judges. I’ve seen their garden: it is cleverly landscaped around the ruined castle walls; a tranquil spot for Truro’s finest legal minds to re-read Sir Nathaniel Lindley’s masterful exposition of the laws of partnership or, for the less academically inclined, to google the sentencing guidelines for malicious wounding.

So you would have thought that with such facilities all would be well in one of the loveliest courts in one of England’s loveliest cities.

It is not. Apparently there are no judges available to sit in Truro for the week after next. It seems more likely that this is to do with the Ministry of Justice trying to save money than with judges being unwilling to go to Truro in August, but whatever the reason it is obviously very unfortunate.

On Thursday the Resident Judge, HHJ Robert Linford, who is also the top judge at Plymouth Crown Court – where he sits in a strikingly horrible building, with no garden, just a view over a street recently uglified by the felling of 110 perfectly good trees issued an angry decree from the Truro bench. It was picked up by the superb Crimeline.co.uk:

I am telling everyone that ANY defendant attending for trial in front of me at Truro or Plymouth who pleads guilty will (if there is an application for a report or other adjournment for sentence), save in utterly exceptional circumstances, be remanded in custody pending sentence. In my view they forfeit their right to bail as they are guilty of obstructing the course of justice. Pleading guilty late is delaying justice and thereby obstructing it.”

His motive – to reduce the number of trials that “crack” on the day of trial – was no doubt well-meant. Apparently in the last two weeks twelve trials have been listed in the Crown Court in Truro, but none of them actually took place because – according to the judge – the defendants pleaded guilty on the day of the trial, or shortly beforehand.

That does seem an unusually high level of cracked trials, albeit from a small sample, but Judge Linford’s “solution” is so extraordinary that it leaves one thinking that before issuing such promulgations perhaps he should take a little time out to chill in the judges’ garden. Judicial bigwig in Devon and Cornwall he may be, and he is of course perfectly entitled to use capital letters freely in his edicts. But he is not entitled to change the law.

The law about granting bail is contained in the Bail Act 1976, and it could hardly be clearer. To quote the authoritative Archbold on Criminal Pleading, Evidence and Practice (2023) Edition:

Bail must be granted by a court to a person accused of an offence, or remanded after conviction for inquiries or a report, or brought before the court for breach of a requirement of a community order, if none of the exceptions specified in Sch.1 applies.”

This “right” to bail does not extend to absolutely everyone: alleged murderers and some alleged rapists are excluded, and Schedule 1 contains various other exceptions. Judges need not grant bail, for example, if there is a substantial risk that the defendant will not attend court for sentence, commit further offences, interfere with witnesses and so on. But unless any of these specific exceptions apply judges have no discretion: they must grant bail. The exceptions do not include “pleading guilty late.” The judge’s view that by doing so they “forfeit their right to bail” is, with the greatest of respect, legal nonsense. His view that they are “guilty of obstructing the course of justice” is also nonsense; and it would still be nonsense even if such a crime existed, which it does not.

Should the judge continue with his madcap scheme he will, I hope and expect, very quickly be put in his place by a higher court which will remind him that as a judge his first duty is to enforce the law, not to invent spurious reasons for filling up the prisons for those he deems guilty of time-wasting.

Late guilty pleas are indeed an administrative problem that the courts have wrestled with, with limited success, for years, if not decades.

The main incentive to plead guilty is that, generally, the earlier a defendant pleads guilty the lighter his sentence will be. It is a powerful incentive, but it is not always effective.

In the real world things are rarely as straightforward and rational as administrators and resident judges would like them to be. Liberty today is often felt to be more valuable than a shorter prison sentence tomorrow.

Moreover, it takes two to tango, and there are two sides – and with multi-handed cases more than two sides – to every case. Some defendants can be properly criticised for not immediately admitting their guilt; but sometimes prosecutors too can be criticised for refusing to compromise at an early stage. The pressure of an imminent trial tends to induce greater flexibility on both sides.

And many Crown Court defendants – in Truro and Plymouth or anyhere else – do not deserve, and won’t receive, an immediate custodial sentence after pleading guilty. If they don’t deserve a prison sentence for the actual crime that they have committed they certainly don’t deserve a prison sentence because they may take longer than they should to admit it. We don’t yet – except in Truro and Plymouth this August – punish people for being inconvenient.

Most cases, certainly most of those with which Barristerblogger has become familiar with over the years, are not so  serious that imprisonment is a foregone conclusion upon conviction.

Take Jason, a hard-working builder with no previous convictions. One Friday night he and his mate Ben got involved in a pub fight. Ben was well out of order: he kicked a bouncer in the head, causing serious injuries. Ben pleaded guilty and received a well-deserved prison sentence.

But Jason too had been violent. In the general commotion he threw at least one punch at Alan, which was partially captured on the pub CCTV. Alan got a nasty cut below his eye, possibly from Jason’s ring, and a painful and bleeding nose. He went to A&E where a nasal fracture was suspected, but in the end the X-ray was inconclusive.

Jason is charged with wounding. He admits causing the injuries but thinks he was acting in self-defence, and elects trial by jury. On the morning of the trial he looks again at the CCTV, which – whilst not conclusive – doesn’t seem to help him as much as he thought it did when he looked at it earlier. There is something about a trial due to start at 10.30 that concentrates the mind.

While Jason is studying the CCTV with his barrister, the prosecution advocate, who hasn’t been involved in the case until today, is studying it too. His reaction is the mirror opposite of Jason’s. He thinks the CCTV gives some support to the defence. The case isn’t quite as strong as it looked on the papers. Whilst only part of the incident is captured on the CCTV, Jason can only be seen throwing one punch, and Alan’s body language immediately beforehand was visibly aggressive. It’s not hard to imagine a jury accepting that Jason acted in anticipatory self-defence.

So a compromise is discussed: Jason grudgingly concedes he was out of order, albeit not “well out of order.” He will admit the slightly less serious offence of ABH, but will do so on a basis agreed with the prosecution; that he threw just one punch. In exchange the prosecution will drop the wounding charge. He may only get a token amount knocked off his sentence for pleading guilty, because his plea is entered so late, but on the other hand the prosecution has shifted a bit and conceded some important points in his favour. Alan, by the way, is more than happy with this arrangement: he won’t have to give evidence and his status as a victim is undisputed.

The sentencing guidelines for ABH suggest a sentence of around 36 weeks imprisonment. The injuries are pretty standard for an ABH, but Jason’s “lesser role in group activity” will slot him neatly into the “medium” level for culpability. Even so, with a good pre-sentence report, and bearing in mind his good character there is a very good chance of a suspended sentence, perhaps with a couple of hundred hours unpaid work. But that can’t happen without a pre-sentence report. I’m not familiar with the waiting times for PSRs in Truro, but in other parts of the country delays of 6 weeks or more are commonplace.

In virtually every other court in the jurisdiction Jason would be given bail for that 6 weeks, albeit with the warning that that was no indication of what the ultimate sentence will be. Whether or not the sentence was suspended would depend to some extent on the contents of the pre-sentence report.

In Truro or Plymouth, now, he is to be punished anyway simply for compromising. He will be remanded in custody for 6 weeks. That is a headache for the prison service with the prisons full to capacity, but let’s leave that on one side. They will cram him into a cell somewhere. It will not be anything like the “cellular rooms … borrowing natural light with windows of glass blocks, some of which incorporate the crests of Cornish towns,” which helped Truro Crown Court achieve its II* listing, and even if it were that would would be little consolation while he thinks of his life disintegrating around him as a result of his Linford remand. 

In all probability Jason will lose his job. He will certainly lose 6 weeks income, which will probably cause him, and his partner and their children, huge financial problems. His home could be at risk. At the end of it he may receive a suspended sentence, but even that’s a bit less likely now that he’s unemployed and possibly homeless.

Assuming he wants to stay out of prison, what would Jason’s rational choice be on the day of trial?

He can plead guilty, knowing for certain that if he, or the judge, asks for a pre-sentence report he will be remanded in custody for several weeks.

Or he can continue to contest the case, knowing that at best he might be acquitted, but even if he is convicted he will still be better off for having fought the case because he won’t be remanded in custody to await his sentence.

He would be a fool, in such circumstances, to plead guilty.

So Judge Linford will get his trial, and at least one court in Truro will be unable to take any other cases for a few days. Instead of dealing with 12 cases in a fortnight the court will deal with a fraction of that number.

It’s obviously unlawful, it’s absurdly unfair, it will impose a pointless burden on the prison service and it will increase rather than decrease the backlog of cases waiting to be heard.

The Linford decree will surely be rescinded within a week or two.

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

12 thoughts on “Judges can’t just make up the law: the Linford decree won’t last long”

  1. He is also forgetting that (while frustrating) guilty on the day at least avoids witnesses having to take the stand and go though what might have been a very traumatic experience again. Very good article.

  2. But there is no right to bail post-conviction, or after a plea of guilty, see Bail Act 1976 S4(2).

    Doesn’t make the policy any less of a bad idea, or potentially unlawful.

    1. S.4 (4)
      “(4)This section also applies to a person who has been convicted of an offence and whose case is adjourned by the court for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence.”

  3. I think Cornwall may require extra prison space for Judge Linford’s plan. I can think of a travelling circus which has a spare barge, now sitting empty in Portland. It’s a tad expensive. I gather it’ll house up to 500 at a cost of c£18m per annum. On the other hand, after reading your eloquent piece, he may be inclined to accept the option of a 12 month Disney cruise for 500 lags at just £15.25m (figs by Private Eye). Either way, applications from HHJ Linford may be made to Braverman & Jenrick, c/o The Home Office.

    1. But if he directs defendants to be detained on the barge, Judge Linford might be at risk of committing an offence contrary to the Health and Safety at Work etc Act 1974, having regard to the legionnaires disease identified in the water supply on board!

  4. As Matthew’ article robustly asserts, the policy/practice of Judge Linford must surely be declared unlawful in the same way that the contrary approach to the problem of inadequate resourcing of the courts taken by Judge Raynor at Woolwich Crown Court, by refusing a Crown application to extend a custody time limit, was overturned by the Queen’s Bench Divisional Court in R (DPP) v Crown Court at Woolwich [2020] EWHC 3243 (Admin); [2012] 1 WLR 938.
    Paragraph 51 of the judgment of the court (Lord Burnett of Maldon CJ and Holroyde LJ) is worth drawing to Judge Linford’s attention:
    “We have mentioned that the judge identified a series of factors which might have been taken. On none of them did the judge ask for evidence. They included using police stations and military facilities, special constables, more external space (including cinemas), re-opening closed courts, introducing a reliable testing procedure for those working in courts and a reliable track and trace system, both of the last implicitly criticising the wider governmental response to the pandemic. But in all these suggestions the judge gave no opportunity for the legal and practical implications of what he was proposing to be considered by the parties before him. Unsurprisingly, Ms Hewison explains in her statement why some are not feasible, others impractical or not preferable to the options being pursued.”

  5. “Judges can’t just make up the law”

    That’s a terribly Brexity thing to say. Euro judges seem to have no compunction about making up laws. And the Supreme Court of the USA has spent decades doing little else.

  6. To a non-legal observer, this is shocking. I’d be interested to hear any more informed readers’ views on his sentencing practice and general approach to defendants – are either of these aligned with his approach here? Does anybody think this might be an empty threat or is he really willing to imprison defendants who are no harm to the community and – for the sake of argument – have pleaded guilty to relatively minor crimes?

  7. Bob L is a good bloke who is clearly fed up with the local bar taking the proverbial…
    On the other hand, he is also speaking out of turn.
    My solution is to give the defendants bail and lock up their counsel.

  8. Apologies for being late to this party, I’m blaming Matthew as he posts infrequently and I forget about the blog after a while.
    As a contrarian I think I’m with the judge on this one. I assume that many people across the legal system both for the prosecution and defence have invested time, effort and resources bringing the case to trial only for Johnny Crim to fess up on the day. Thus the scarce resources that you frequently bemoan have been wasted. If I couldn’t deny bail I would be inclined to sentence to the maximum.
    Your defence speech on behalf of Jason was very touching. In short he thought he was in the clear until his right cross was caught in glorious technicolour. Maybe not going out, getting into a fight and getting arrested might also not put his job, family and house at risk Matthew ?
    It seems to me Judges have always made law. You only have to look at the findings and ridiculous justification for decisions from ECHR, Uk Supreme Court etc which can only be regarded as “mission creep”.

  9. In the USA, I understand that one can plead “no contest”. This means that one neither admits nor denies the charge, but consents to be convicted of it and sentenced as though one had pleaded guilty. I put it to Matthew that that is what Jason is trying to do, to all practical intents and purposes.

    I’m curious. Was Matthew’s courageous prediction fulfilled: “The Linford decree will surely be rescinded within a week or two.”

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