A Fair Trial in the Magistrates Court?
This blog has been updated following an earlier draft published here on LCCSA website.
This is an ongoing issue, and the blog will be updated. (Comments, examples of injustices arising from managerialism or links to related articles are welcome and can be incorporated -email firstname.lastname@example.org)
A “Legal Advice Note” issued to Magistrates in June 2016 (extracts below, and in full Here) casts doubt on whether a citizen accused of a criminal case can secure a fair hearing in the Magistrates Court.
Practitioners in Criminal Law have become used to a fast pace of legislative changes and Judicial Policy, along with the incorporation of Criminal Procedure Rules, “Speedy Summary Justice”, “Transforming Summary Justice” and more.
Some have raised concerns that the cumulative effect has reversed the burden of proof.
Most carry on nonetheless representing the best interests of their clients to the best of their ability within an adversarial system. On occasion, to do so requires more time, and it may be necessary on the first hearing of a case to ask for an adjournment.
In seeking an adjournment, the lawyer (at least in legal aid cases) has no financial advantage. Cases at the Magistrates Court are paid as a fixed fee, with no increment for travel or the inevitable waiting time. it follows that a lawyer seeking an adjournment is likely to be doing so in the interests of justice rather than financial gain. Reasons can include;-
-To obtain proper disclosure of evidence, in order to properly advice on plea (see eg the protocol devised by CLSA to highlight this frequent difficulty)
-To seek a referral back to the police to receive a “caution” rather than prosecution, particularly in the Youth Court
-To make representations to the Prosecution, where those cannot be made or considered on the day (eg if an “agent” or “Associate” prosecutor is at Court without authority to respond)
-To obtain a psychiatric assessment for a client with apparent mental health issues who may not be able to provide instructions.
How are such apparently reasonable requests to be approached by the bench or District Judge?
The answers are set out in this guidance (circulated to magistrates) and some extracts of which I include here:-
LEGAL ADVICE NOTICE
Date: June, 2016
Issued to: Magistrates, District Judges (Magistrates’ Courts), Legal Advisers and Court Associates
Issued by: HM Courts Service Justices’ Clerk
Subject: Case Management Good Practice – Legal Advice Note
Always take plea at the first hearing
Rule 3.9(2)(b) Criminal Procedure Rules 2015 requires the court to take the defendant’s plea at the first hearing.
The following are not good reasons not to take plea:
I should have got a caution: this is no basis for not taking plea. See Legal Advice Note 3 of 2014. The decision in R (F) v CPS and the Chief Constable of Merseyside (2004) 168 JP 93, emphasises that if a reprimand, warning, or caution is offered at the police station but the suspect declines to make any admissions at that time, they are not entitled to rethink their position once charged and require the matter to be returned to the police station for diversion. Neither the CPS nor the police are bound to act in that way. This means that it is inappropriate to adjourn an adult or youth offender for consideration of a caution where that youth or adult did not make a clear admission of the offence at the police station. The court should proceed to sentence. Defence advocates will sometimes urge the court to adjourn but such requests such be refused where the youth or adult defendant failed to make a clear admission at the police station whereby a caution could then be considered.
The defendant has mental health problems and a psychiatric report is needed before plea can be taken: this is not normally a basis for not taking plea. There is no fitness to plead procedure in the magistrates’ court. The court must follow the statutory procedure set out in s11 Powers of Criminal Courts (Sentencing) Act 2000 or in s37(3) Mental Health Act 1983. Seek the advice of your legal adviser.
For defence to make representations to the CPS: any representations should be made at the first hearing and the prosecutor can decide on them. In any event plea should be taken. If a NG plea is entered then a trial should be fixed but with a review hearing before the trial if the representations might make a material difference to whether the trial proceeds or not.
Because the IDPC is not adequate: Initial disclosure of the prosecution case (IDPC for short) is governing by the Criminal Procedure Rules. The relevant rule is Rule 8.3
“Rule 3.9(2)(b) Criminal Procedure Rules 2015 requires the court to take the defendant’s plea at the first hearing”.
That is in fact only part of rule 3.9(2)b which in its entirety reads:-
“At every hearing the Court must, where relevant, (b) take the defendant’s plea, or if no plea can be taken find out find out whether the defendant is likely to plead guilty or not guilty”
You may think that this is not exactly the same as the wording of the Advice Note.
As for the remainder of the “advice”, none of this is new, but it may shock some to see set out in such stark terms the modern Judicial approach at the Magistrates Court.
–If you represent a youth of good character who was unrepresented or poorly advised at the police station,who made no comment but is now admitting the offence- well, bad luck, plead guilty and they will have a conviction.
-If your client is impaired with mental illness but appears on a day when the Court Duty Psychiatrist is not present, well never mind.
-If you cannot get a decision on representations about a plea on limited basis or to a lesser offence, don’t bother asking for an adjournment, plead Not Guilty, spend half an hour completing a case-management form, set down for trial and take up half a day of Court time, and hope for a Prosecutor who may review somewhere pre-trial.
-And if your disclosure is inadequate, and you wish to cite the CLSA protocol or Law Society Guidance, or act in accordance with your professional duty, remember your client “must know whether they are guilty or not”, and the “credit” for pleading guilty will disappear to be replaced with a punishment for seeking to do the case properly in what is still an adversarial system with a supposed presumption of innocence.
Do these rules and practice notes actually help with the professed aim of convicting the guilty and acquitting the innocent, or only the first half of that ambition?
The LCCSA and others believe things have gone too far in tipping the scales of justice against the right of a defendant to a fair trial.
The burden of proof is under attack, managerialism and bureaucracy appear to be prized above justice, with the emphasis on “cracked trial rates” , adjournment statistics and “guilty plea rate”.
The LCCSA, with CLSA, CBA and The Law Society, raised these issues at a meeting with the Senior Presiding Judge, DPP and Chief Magistrate. Consideration was given to amendments to the CPR, which were later modified as a result of our representations.
The Legal Advice Note was circulated to Magistrates in Kent. We know it has been forwarded to at least some regions of London, although unclear if adopted. I am grateful to Andrew Keogh for this clarification of the status of this advice:-
The status of the advice is to be found in ss 28(4) and (5) Courts Act 2003: (4)The functions of a justices’ clerk include giving advice to any or all of the justices of the peace to whom he is clerk about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.
(5)The powers of a justices’ clerk include, at any time when he thinks he should do so, bringing to the attention of any or all of the justices of the peace to whom he is clerk any point of law (including procedure and practice) that is or may be involved in any question so arising.
The LCCSA believe that Judges and Magistrates, if relying on or considering Legal Advice Notes, should state so in open Court, providing a copy and an opportunity to respond. Open Justice requires transparency.