Friday, November 13, 2015

Henry Litton on Six Basic Rules to Avoid Mindless Parroting

“Psittacosis” is a viral disease of parrots. This gives rise to the condition called “psittacism”: mindless parroting.  This, alas, seems to have infected some in the magistracies and district courts.
      Pick up a Finding of some of the magistrates, or Reasons for Verdict of a District Judge, and you would find mindless parroting: “I remind myself that the burden of proof is on the prosecution, that the defendant is not required to prove anything, that the prosecution has to prove the case beyond a reasonable doubt ... ”, or “The court in R v Ghosh said … and in R v Turnbull said that …”, formulaic verbiage which does nothing to resolve the issues and what Lord Roskill once remarked to counsel (not me) in the course of a hearing in the Privy Council as “words used by trial judges who think that would make their judgment appeal-proof”.
      If magistrates and District Judges can be prevailed upon to simply cut out all the verbiage, this would immediately make their findings much shorter – and, hopefully, more focussed on the real issues.
      If there is one formula for reform in the trial courts, I would say that adherence to SIX BASIC RULES would go a long way to doing that:
RULE 1  First define the issues.  It can be as simple as “This is a charge under s. 49 of the Road Traffic Ordinance namely, unlawfully tampering with a vehicle". 
RULE 2  Look first at the facts as would a common man. Then resolve the issues as a judge. This, after all, is how the criminal process in the common law first evolved. The jury was the sole judge of facts, the trial judge the sole judge of law. The jury would not have heard of R v Turnbull or R v Ghosh
RULE 3  Junk the verbiage. No judge in a criminal case needs remind himself that the burden of proof lies on the prosecution. The question is not whether the judge remembers the basic rule, but whether he in fact applied it. This is seen in the way he resolves the issues – not in the parroting of empty formulae. 
RULE 4  Judge the issues, not the personalities. The most honest man in the world is capable of dishonesty; the most cowardly can rise to heroism. Normally, once the scene is set and the inherent probabilities laid bare, the case resolves itself. Subjective evaluation such as whether a witness is an “honest person” and whether his demeanour is “candid” or “shifty” should have no place in a court of law. Take the man sweating in the witness box: Is he under the pressure of lies, or is he striving to tell the truth? Or is he just hot? Or not well? 
RULE 5  Apply the law.  Do not “discuss” it. I do not know why, in the past decade or so, trial judges (including the High Court) thought that, in giving judgment, they somehow needed to “discuss” the law. In most cases, the law is straightforward. All that is required is to apply the law. In the course of so-called discussion, often the judge loses sight of the real issues. 
RULE 6  Be brief. So often a magistrate tells you what PW1 said, what PW9 related, but does not say what his findings are, relevant to the issues. Recitation of the testimony of witnesses is not a finding of fact.
If trial courts would simply apply these six basic rules, the rational basis of the common law would become apparent and people would not shake their heads in bewilderment, wondering what the law is all about. It is a highly dangerous state of affairs, cutting away at the foundation of the Rule of Law.  Written by Henry Litton, Honorary Professor.

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