BPTC graduate Richard Murtagh recently spent a week shadowing a judge at the Old Bailey. In this final part of a five-part series, he recounts his experience. Read Part One here.
Today was my fifth (and final) day as an Old Bailey marshal.
Question: Suppose you’re charged with murder. You deny this, but plead “guilty” to unlawful possession of the knife used by you to kill the (unarmed) victim.
In such a case, should you be allowed to rely on self-defence, i.e. claiming that you only used the knife to protect yourself?
This was my question to the judge in chambers.
Our day commenced with jury selection in a murder trial due to start next week. However, before the potential jurors were brought in, defence counsel indicated that her client wished to plead “guilty” to unlawful possession of the knife he used. The judge accepted his plea, but reserved sentencing until after the trial. Counsel then indicated that her client would be relying on self-defence.
In my mind, this presented a dilemma. Self-defence is a complete defence – meaning that if the jury accepts it, the defendant cannot be found guilty of murder. This would also mean that the defendant had acted reasonably (that is, lawfully). And yet, how could that be so when he shouldn’t have been carrying the knife, let alone using it?
The judge called this a pertinent question, but confirmed that such a defendant may invoke self-defence. The issue is not whether it’s reasonable to carry a knife, but whether it was reasonable for this particular defendant (who wrongly carried a knife) to use his knife against this particular victim in these particular circumstances.
For instance, if it turned out that the victim and the defendant were mortal enemies from rival gangs, a jury might think it reasonable to “fight fire with fire” in the event of a sudden, unexpected confrontation between these men on the street. But much would depend on the facts brought out at trial.
In a separate pre-trial hearing, counsel for the defence applied for an order compelling the release of medical records. The defendant was charged with fracturing his daughter’s skull due to dangerous driving; yet, the prosecution had served no evidence of her injuries to date. The defendant is prevented from seeing his daughter, so is unable to confirm the severity of her injuries for himself. Counsel indicated the possibility of a Newton Hearing, in which the defendant might be willing to plead guilty, but on different facts to those alleged.
I then rejoined yesterday’s trial (attempting to supply terrorists) for the remainder of the day. And that was that. My memorable week at the Old Bailey was through.
To sum up in judicial fashion, my best experiences were:
- seeing an MP cross-examined on Monday;
- playing Devil’s Advocate with the judge on Tuesday;
- glimpsing behind the scenes of a murder trial on Wednesday;
- seeing a prosecutor go for the throat on Thursday;
- debating the ethics of self-defence on Friday.
Overall, I’d say marshalling is a perfect compliment to one’s mini-pupillages. Apply to be a marshal in the field of law you hope to practise. Your Inn or local Court Manager can help.
Best of luck!
