The London Criminal Courts Solicitors' Association
Friday, March 02, 2012Author: Gwyn Morgan @ 12:13:02 PM
John Fassenfelt is the chairman of the Magistrates’ Association. He he answers questions for the LCCSA's "The London Advocate".
Q: With reference to “Stop Delaying Justice!”, how would you apportion blame for delay between prosecution and defence and how often would you say that delay is caused by parties other than lawyers?
A: I think everyone is working as hard as they can. So I think “blame” is the wrong word; “responsibility” is perhaps the word and I think it rests more with the courts service, the Crown Prosecution Service and the police. I think we’ve all had problems with legal aid being reduced so we’ve had more unrepresented defendants, which of course means that everything takes a longer time.
A lot of the recent changes have focused on processes and not on the individuals who work those processes. Sadly, one of the results of the recent financial cuts to the HMCTS (Her Majesty’s Courts and Tribunals Service) budget, for example, is the loss of some of their most experienced staff.
Q: The Magistrates’ Association was involved in the conception of “Stop Delaying Justice!” Why was there no consultation with lawyers before the initiative was launched?
A: The original impetus was to say to magistrates, “You need to get hold of this case management process; you have the power, you’ve got to look at how you use it.” There was consultation at the top between the CPS, the Justices’ Clerks’ Society, and HMCTS but it didn’t go out to solicitors. It’s not intended as a process to hit solicitors, it’s a process of getting things agreed and understood at an early stage – where it’s possible.
Q: Are you are aware that some lawyers have described the training DVD as “insulting”?
A: There was no intention to insult solicitors, who are a crucial part of the system, both CPS and defence. We are the decision-makers in court but it is very much a team effort. We can’t move forward without CPS and defence solicitors moving forward with us. If it has offended, I apologise on behalf of the association: it was never intended to offend. I think there are lessons to be learned perhaps, for us. Next time we produce an initiative like that, there should be greater consultation.
Q: Do some magistrates believe that defence solicitors have any incentive to apply for unnecessary adjournments when they are paid a fixed fee per case?
A: I would think that the majority of magistrates don’t know how solicitors are paid. If I asked my bench, I would say that 60% would not know how much solicitors are paid. There’s a learning process there for us, perhaps. Solicitors – particularly those appearing in a local court – are held in high esteem.
Q: If a defendant is guilty, should he plead guilty? How do you feel about the idea that the prosecution is obliged to prove its case?
A: If the defendant knows he’s guilty, he should plead guilty. If he feels he’s not guilty, if he does not know the law or if he feels he has not transgressed the law, then it would be up to CPS to prove that he’s guilty in the eyes of the law. It is said that magistrates are more likely to believe police evidence. I don’t think they are, personally. I’ve never seen an example of magistrates saying, “The police say that, so it must be right.” Magistrates are wise enough, they’ve seen enough police evidence to balance it with the evidence of witnesses and defendants.
Q: Do you have any concerns that a court which insists on pressing ahead when evidence is not available (as to the exact injury sustained, for example) might be about to do an injustice?
A: I think it’s the magistrate’s responsibility to question, particularly about injuries because the level of injury affects the sentence and also compensation. It’s incumbent on the magistrate to ask, for example, “Did he go to hospital? Is he still in pain?” And, if you feel you can’t sentence and need more facts, you have to have an adjournment.
Obviously, we try and administer law as quickly as possible but we are there to administer justice. With all this guidance we’ve been given, whether it’s sentencing guidelines or “Stop Delaying Justice!”, we can’t lose sight of that. To administer justice, we may need an adjournment.
Q: Are there any reasons why “Stop Delaying Justice!” will be more successful than previous initiatives, eg CJSSS?
A: I think it will be more successful. With CJSSS, the people who were responsible for the delay, really the Crown and the police, have found ways round it: they bail defendants and don’t actually charge them till the latest possible moment. “Stop Delaying Justice!” is more of a cultural change for magistrates.
Q: The Magistrates’ Association has been concerned about the “unnecessary criminalisation of our young people”. How does this sit with some of the sentences handed down following the riots in the summer?
A: I don’t have any concerns. I have every confidence in my colleagues, lay magistrates and district judges, making the right decisions. Some of them have been appealed and the Lord Chief Justice has considered the appeals and I have every confidence in the decisions that have been made.
We need to work harder with a number of agencies to lessen the criminalisation of young people but the riots have nothing to do with that aim.
Q: The Times has reported that there will be fewer jury trials and more work for magistrates. Do you welcome this?
A: We are pushing hard for our powers to be extended so that we can pass sentences of 12 months’ imprisonment. This would free up some of the work that goes to the Crown Court. There is a cost aspect and it would also give victims and witnesses going to the Crown Court a much shorter period until their trial comes to fruition.
We recently passed a motion saying that eitherway theft cases, under the value of £500, should stay in the magistrates’ courts (with a right of appeal of the election decision to a Crown Court judge). Our argument is based on our experience of having people come into court who have stolen a Mars bar, a can of lager, or – more likely – a side of beef, who are prolific offenders and they opt for Crown Court trial. There are a lot more serious cases than theft of under £500 that we deal with already, for example, assaulting a police constable.
Q: Are there any other sorts of cases which you feel should be before the magistrates’ courts?
A: We have concerns about the other end of the scale: the out-of-court disposals. There is no monitoring and no transparency here. An offer is made to an individual in the police station; words are used such as, “Do you want to go to court with this?” And often the individual doesn’t realise that the impact of an out-of-court disposal can be tremendous: it can be quoted in a job reference or you can’t get into the USA. You can’t be certain that an individual who has been given a caution has received legal advice. We’re pushing government hard to bring in some kind of scrutiny. We are concerned about multiple PNDs (penalty notices for disorder). The association agrees that, for a one-off act, say the individual who is in the street, drunk, on his 40th birthday and says something rude to the police, these are fine. But the perpetual drunk, who is going out every Friday, should be brought to court.
In my own community in Kent, 50% of recorded violent crime is dealt with by the police without reference to the court. Does the community really want violent crime being dealt with in that way? I think we may be giving the police too much power and asking them to be sentencers.
Q: How can there be an extension to magistrates’ courts’ jurisdiction in the light of the court closure programme?
A: HMCTS says there will be sufficient capacity; but will it be in the right places? We have objected to the closing of court-houses, particularly in rural areas. In my own part of Kent, where the only courts are now in Medway and Maidstone, the individual, whether victim, witness or defendant – or magistrate, or solicitor – has to travel much further. Defendants don’t move to Medway or Maidstone to commit their crime: they’re still doing it in Sittingbourne!
Q: What is the value of the Magistrates’ Association’s work?
A: It supports the magistracy, through training and development, and with information. And we represent the views of the magistracy to other stakeholders. We can also offer practical knowledge: 27,000 magistrates have different jobs and a tremendous range of experience – from the electricity linesman to the A&E consultant. Above everything else, we are independent, we are not funded by government in any way.
Q: You were elected chair in November. What challenges lie ahead for you?
A: I want to make this a more business-like organisation, (though it is a charity) bearing in mind that numbers of magistrates are going down. So, for example, we feel that our “Magistrates in the Community” programme could be funded through charitable trusts – particularly the extension of it.
Traditionally, we’ve educated the public about the justice system but focused on groups which are easy to get to, such as the Women’s Institute or children in school. We need to move to groups such as ethnic minorities and those between 18 and 24.
We are trying to move from being reactive to being proactive. With Sainsbury’s Trust, we’ve been running “Magistrates in the 21st Century”, asking communities, urban and rural, to look at what they feel the magistracy should be in the future. We shall be launching the results this Spring. We want to get more business into the magistrates’ courts and magistrates should be more assertive in court and question adjournments and ineffective trials.
Outside court, we should be less compliant with that people are telling us to do. We should constructively criticise. A recent example would be our strong response to the Legal Services Commission consultation on reducing the number of justices’ clerks.
Q: What is your profession and personal background? Do you have any time for other things in your life?
A: I’m retired. I used to be a human resources manager with the London borough of Bexley.
I’ve been a magistrate for 20 years. I was born in the East End of London and lived in Hornchurch till I got married and then moved to Kent. I’ve got two grown-up children and three grandchildren. I’m a governor to the local academy trust which covers about 3,000 pupils in Sittingbourne.
When I find time, I play some golf.