The Magistrates Court- Managerialism vs Justice
A Fair Trial in the Magistrates Court?
A "Legal Advice Note" issued to Magistrates this month (below) casts doubt on whether a citizen accused of a criminal case can secure a fair hearing in the Magistrates Court, and is illustrative of changes which cumulatively may have, without public debate, reversed the burden of proof.
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 and the interests of justice to the best of their ability. 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 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 seeking an adjournment is likely to be 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, for administering of 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The answers are set out in this guidance (unpublished, but circulated to magistrates):-
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 legal aid to be obtained: this is not a good reason not to take plea. The clear advice from the Senior Presiding Judge and the Chief Magistrate is that plea should be taken even if legal aid has not been sorted out.
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 which states:
Initial details of the prosecution case must include—
(a) where, immediately before the first hearing in the magistrates’ court, the defendant was in police custody for the offence charged—
(i) a summary of the circumstances of the offence, and
(ii) the defendant’s criminal record, if any;
(b) where paragraph (a) does not apply—
(i) a summary of the circumstances of the offence,
(ii) any account given by the defendant in interview, whether contained in that summary or in another document,
(iii) any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
(iv) the defendant’s criminal record, if any, and
(v) any available statement of the effect of the offence on a victim, a victim’s family or others.
This is further supplement by the Criminal Practice Direction issued by the Lord Chief Justice which says as paragraph 3A.12
3A.12 Where the defendant has been released on bail after being charged, and where the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, then it is essential that the initial details of the prosecution case that are provided for that first hearing are sufficient to assist the court, in order to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be heard in the magistrates’ court or the Crown Court). In these circumstances, unless there is good reason not to do so, the prosecution should make available the following material in advance of the first hearing in the magistrates’ court:
(a) A summary of the circumstances of the offence(s) including a summary of any account given by the defendant in interview;
(b) Statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report;
(c) Details of witness availability, as far as they are known at that hearing;
(d) Defendant’s criminal record;
(e) Victim Personal Statements if provided;
(f) An indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant;
(g) Any information as to special measures, bad character or hearsay etc.
Paragraph 3A.14 goes on to say that nothing in the above paragraph shall preclude the court from taking a plea pursuant to CrimPR 3.9(2)(b) at the first hearing and for the court to case manage as far as practicable under Part 3 CrimPR.
Where a case has been listed in an NGAP court, the prosecution should have complied with its duty to provide enough information to satisfy CPR 8.3(b) and PD 3A.12.
The defence advocate must make it clear as to why they are unable to take their clients instructions and advise as to plea based on what the CPS has provided and complete the Preparation for Trial Form.
If there is a failure of the Crown that can be immediately remedied by the service of further evidence in that Court session then the case should be put back to allow this to happen.
If the Crown argue that they have complied with their obligations under the CPR and PD and have good reason not to have the information to serve as identified in PD 3A.12, then it is for the Defence to demonstrate to the Court that they have not, i.e. that it is impossible without the missing information to advise on plea or case manage.
If the Defence then apply for an adjournment, apply the relevant case law on when and when not adjourn the case.
If the case is adjourned, advise the defaulting party that the issue of costs of the wasted hearing will be considered at the conclusion of the proceedings.
Make the necessary directions for the service of the missing material in preparation for the next hearing.
If the Court refuses to adjourn the case then the Defendant must enter his/her plea.
If the defence ask for a note to be made on the court file to the effect as suggested in the CLAS protocol, the court should refuse to do so if it has decided that the CPS have complied with their obligations under the Rules in that sufficient information has been provided in the IDPC according to law to advise as to plea.
The Chairman should remind the defendant that credit for a guilty plea will reduce thereafter.
GAP/Virtual Remand Court
Where a case has been listed in a GAP court or is a first time custody case the prosecution should have complied with its duty to provide enough information to satisfy CPR 8.3(a). This is normally restricted to a summary of the case and of any interview.
The defence advocate has a duty to make it clear as to why they are unable to take their clients instructions and advise as to plea. If the CPS have complied with CPR8.3(a) it would be hard to see a situation where a plea could not be taken and either the Court move to sentence or adjourn to a case management hearing after 28 days as per TSJ if the defendant pleads NG.
If the Court has not adjourned the proceedings at the request of the defence, then no note should be made on the Court file to preserve the maximum discount for an early guilty plea if the court is satisfied that the obligations set out in CPR8.3(a) have been met and the Defendant should have been able to enter their plea.
Notes about preserved discounts for guilty pleas
The only time that a note to preserve the Defendant’s credit could be made on the Court file is where all parties to the proceedings agree that a key piece of evidence has not been made available, that would be outside the defendants knowledge and a not guilty plea has been entered.
If the complaint of the defence is because of a poorly prepared case summary by the police, then in order to assist the Court in discharging its burden under the CPR then this will need to be escalated within in the management level of the police by e-mailing Julia.Harman@kent.pnn.police.uk. Legal advisers and court associates are asked to e-mail examples of poor IDPC to Julia Harman who will investigate and report back.
If sitting on a trial then the following case law guidance is helpful:
A prosecution witness is missing and the defendant is denied the opportunity to cross-examine that witness: this is not a reason not to get on with the trial. See Al-Kazzaz v DPP  EWHC 3016 Admin in which the main prosecution witness failed to attend but the trial was able to proceed because another witness attended who had witnessed the assault. The defendant can draw to the court’s attention the absence of the main witness. What may or may not have come out of cross-examination of the missing witness was speculation and did not deprive the defendant of a fair trial.
CCTV evidence is missing: where live evidence can be given the absence of CCTV evidence does not deprive the defendant of a fair trial. What is on CCTV may be wholly speculative and the trial can and should proceed on the available evidence (DPP v Spalluto  EWHC 2211 (Admin) and DPP v Petrie  EWHC 48 (Admin) – both cases in which CCTV evidence of the custody suite in which breath specimens were taken was missing but the High Court ruled that trials relating to the breath test procedure should still take place on the basis of evidence from the officers who took the breath samples and of the defendant and without the need to see the CCTV evidence).
The Legal Advice Note above states :-
"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 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, now admitting the offence- well, bad luck, plead guilty and have a conviction.
-If your client is unwell 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 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 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 are prized above justice, with the emphasis on "cracked trial rates" , adjournment statistics and "guilty plea rate".
We will be holding a symposium with interested parties, to highlight these issues and call for changes to restore the presumption of innocence and a fair hearing that includes protecting the rights of the accused. (Check LCCSA website for detail)
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.
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.
(thanks to Andrew Keogh for helping with that!)
The LCCSA believe that Judges and Magistrates should, if relying on or considering Legal Advice Notes, state so in open Court, providing a copy and an opportunity to respond. Open Justice requires transparency.
Greg Foxsmith, President, LCCSA 23 June 2016