Tag Archives: Magistrates Court

The Magistrates Court- Managerialism vs Justice

 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 gregfoxsmith@msn.com)

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 

There is a long section within the advice note on disclosure – see the full note for detail)

MY COMMENTARY

The Legal Advice Note includes :-

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?

Action

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.

Notes

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.

Community Advice at Highbury Corner Magistrates Court

Community Advice offered in Court

A new court-based Advice Service at Highbury Court is most welcome!

 See also this blog by Joanne Thomas

The Magistrates Court is not somewhere people associate with receiving advice, other than the occasional finger-wagging lecture from a Justice of the Peace, usually warning of the consequences of not complying with their instructions. Yet the vast majority of people who pass through their doors are clearly in need of advice and help in tackling the kinds of problem that brought them to Court in the first place.

Homelessness, mental health, unemployment, poverty, debt, alcoholism, drug addiction, illiteracy, overcrowded accomodation, domestic violence, the Courts often see some of the poorest and most vulnerable members of our society.

Of course the Probation service can sometimes help, but are suffering from funding restraints as well as outsourcing, and  Community Orders are increasingly targetted at punishment rather than rehabilitaion.

Often solicitors defending at these Courts try to plug the gap in the lack of advice available, but apart from constraints on time and money have to be careful not to blur the professional boundary between lawyer and client, as well as acknowledging that we are not trained counsellors or social workers, lacking the resources and knowledge to advice on the areas that need addressing outside the immediacy of legal representation. Often lawyers do not even know where to direct clients who need help in other areas.

All this has changed with this exciting project at Highbury Corner Magistrates Court.From January of this year, the project has been offering help and advice from a small room accessed from the same waiting area as the Courtrooms on the first floor. And as there is plenty of waiting at Court, there is time for the people who desperately need help and advice to talk about their problems and receive practical help and guidance.

Last week I popped in to see how they were getting on. I was impressed by the set-up and those running it, but more so by the verifiable results they could demonstrate, and the numerous cases they could describe showing practical examples of problem-solving for clients.

The community Advice is run by Royal Courts of Justice Advice Bureau incorporating Islington Citizens Advice. It follows a longer running pilot project in Plymouth. Since opening they have helped hundreds of court users with issues such as homelessness, debts, housing, family, mental health, benefits, alcohol and drug related issues.

I met Jess, a volunteer (working there one day a week) and Ross, the co-ordinator for the project who told me:- 

We work with people who are using the court and their families to give advice and help them to find out about and access support services in the community. We also provide immediate help with practical issues and offer emotional support. We are independent of the judicial process. We operate independently from other agencies in the court. The service is delivered primarily by a team of 10 volunteers and one paid staff (co-ordinator) and focuses mainly on those who are not working with probation, though we are open to all” .

Ross provided numerous case studies. I attach an edited version of one below. 

I later spoke to Joanne Thomas from the Centre for Justice Innovation who proudly told me the Advice Service at Highbury was “doing an incedible job”. Joanne has previously written about the project here.

Conclusion

For too long the criminal justice system has been used to punish criminal acts, without addressing the causes of crime, even where the perpetrators are crying out for help. Judges, like lawyers, are not social workers, and have to uphold the law. But if we are to avoid the “revolving door” syndrome, and break the cycle of recidivism, then taking an opportunity to tackle root causes with practical help, is not only humane and just, it is likely to prove a cost-effective way to reduce crime 

Case Study

Paul (not his real name) was 35 years old and homeless when he attended court because of drug offences. He had a large number of previous convictions and his relationship had broken down. He was suffering severe financial hardship, receiving no income and owing money to a number of people on top of the court fines he had just received. He was also suffering from drug and alcohol dependence that was affecting his mental health. In addition, he had lost his birth certificate and wanted help to apply for a CSCS card.

Paul was empowered to make his own decisions about what to do, assisted in applying for jobseekers allowance, and referred him to a number of services for his mental health, drug and alcohol use and homelessness. He was also guided on applying for his CSCS card and birth certificate as well as helped to access support for his debts.

There were Follow up appointments. He is now in receipt of jobseekers allowance and is managing to pay his priority debt (his court fines) as well as sorting out his other debts. He has received his CSCS card and is looking for work in construction, and has received his birth certificate. He is also receiving counselling for his mental health.