Saturday, 18 September 2010

Magistrates Powers

The Magistrates' Association represents over 28,000 Justices of the Peace who serve in the Magistrates' Courts in England and Wales.  The U.K. is very unique in the extent to which non-lawyers participate in the criminal justice system and the late Lord Bingham of Cornhill referred to the magistracy as"a democratic jewel beyond price".  The Association has recently expressed views on a number of topics: 

Making sure community orders work - on this, the association is absolutely right.  They argue that community orders can be a very effective alternative to a short term custodial sentence if they are robust, effectively planned, properly managed and supervised.   Unpaid work provides visible evidence that an offender is making retribution and affording benefit to the local community for their offending behaviour.  The bold and underlined words are my emphasis but, unless those conditions are met then there can be no public confidence in this form of sentencing.  In particular, this form of sentencing is "labour intensive" in the sense that offenders have to be managed by people who are appropriately skilled and trained.  (Interestingly, a new blog looks at Probation work - see here).  On 16th September, ITV's Tonight programme took a seriously critical look at what actually happens on some community sentences and the findings are disturbing.

Magistrates Association astonished at unpaid fines total - In July 2010, the Audit Commission reported that £1.3 billion was owing in unpaid court orders for confiscation, compensation, fines and costs.  As the association points out - "Criminals will rejoice that they can retain the proceeds of their offending behaviour despite court orders".  Yet again, we see government pressuring the courts to use the fine as a sentence but there is a serious need to consider how the various powers to enforce fines actually operate.  Magistrates' Courts are unable to commit a defaulter to prison unless (a) there is "wilful refusal or culpable neglect" to pay and (b) all other methods of enforcement have been considered.  

Cases sent to Crown Court - The Association is pressing government to implement Criminal Justice Act 2003 s.154 which would increase the maximum sentence available in a Magistrates' Court to 12 months imprisonment.  This echoes concerns expressed by Lord Justice Leveson (Chairman of the Sentencing Council) that some 18-20,000 cases a year are sentenced in the Crown Court but the offender receives no more than could have been handed down by the magistrates.  In part, this statistic arises from the fact that legal aid has been more readily available in the Crown Court than in magistrates though Crown Court Means Testing has now been introduced. 

The Association goes on to make a number of "recommendations" including one that the government should examine the rights of defendants to elect jury trial for either-way offences.  This is a controversial topic and, in making the suggestion, the association does not appear to consider the basic and highly important rights of the citizen which include a right to trial by jury for certain cases.  In the past, there have been various attempts by Ministers to whittle down the right to trial by jury and they have been rejected - usually in the House of Lords.   Do either the economic climate or sectional interests such as those of magistrates trump the democratic rights of the citizen to jury trial in those cases where a person's good name is at stake?

On the topic of greater sentencing powers see Solicitor's Journal.

Addendum - 19th September: "Former soldiers could make community service tougher for offenders" - The Guardian.  It appears that 3 private companies have been approved by the Ministry of Justice to tender for "community service" programmes.  Also, it appears that "privatisation" of some 10 prisons is being considered.

Addendum - 23rd September: "Magistrates in doubt as summary justice rises" - Telegraph 21st September.


  1. Do either the economic climate or sectional interests such as those of magistrates trump the democratic rights of the citizen to jury trial in those cases where a person's good name is at stake?

    I would comment that magistrates being volunteers do not have "sectional interests" in the accepted use of that phrase where it really means monetary interest. Many people of previous "good character" face summary trial before magistrates where their good name is at risk if found guilty albeit of low level offending. Thus a line has already been drawn. I have consistently argued that allowing a defendant to choose mode of trial is an anachronism found only in English law and the abolition of which poses no threat to justice. It is for the courts to set mode of trial. The sooner this change is effected the better.

  2. Thanks to Justice of the Peace for the above. Obviously, I readily accept that volunteer JPs do not have any financial interest. However, I think that as a body of people (represented by the MA) they have a clear interest in keeping as many courts open as possible and in increasing the powers available to them.

    When it comes to considering such proposals a lot of factors need to be considered. For example, it would not be right to move cases from the Crown Court to magistrates unless the issue of legal aid in magistrates' courts is revisited. Unless this were done, there would be massive numbers of people having to represent themselves before an essentially "lay" tribunal and in that there would be a clear danger to the future of the magistracy.

    [Of course, they might try to adopt the Auld Report idea of a court with a District Judge Chairman and 2 JPs but please remember that the Auld Report also recommended that the JPs would be "sent out" if law was to be discussed and also the defendant would be able to elect for trial by the judge alone. Judges are not (generally speaking) at all keen on sitting with JPs and would the JPs like to be sent out because clever counsel had introduced a bit of law?].

    Also, case preparation by prosecutors would have to improve markedly if more cases were to be retained by magistrates. At present, case preparation for magistrates' courts is often of a rather cursory nature with a prosecutor picking up the file on the day of trial.

    I do not think that allowing a defendant to elect for trial by a jury of his peers is anachronistic at all. It is a fundamental right which English law has developed and has treasured over many years. The fact that this right is found only in English law should not matter since it is with our rights and freedoms that we should be really concerned. Especially over the last 30 years or so, our rights have been steadily whittled away and I ask why should we, as citizens, be advocating further reductions?

    Having said all of the above, I suspect that the day is coming when Parliament will cut further into the right to jury trial - e.g. for theft cases under £5000 in value (as advocated by the Magistrates' Association). Cost/Expense will be used as a reason and it is notable that it is often the elected House which has been the keenest to go for non-jury trials.

  3. I am intrigued at the lack of a level playing field. £100 unpaid fine in Northern Ireland equals one week in custody. In England far less. Surely with political cases the desire for martrydom and publicity militates against fines?

  4. It may seem paradoxical but I am encouraged by the thought that private companies may take over unpaid work sentences, yet worried that they may take over prisons.

    It has been said of unpaid work sentences that convicts must not do any work that would otherwise be done by a paid worker. This is surely wrong. Aside from being economically illiterate (an example of the "lump of labour" fallacy), it ensures that whatever work they do will be useless and worthless, for if it were worthwhile it would otherwise be done anyway. And if they are doing worthless work, they are paying nobody back.

    On Prisons: The best schools are where the teachers enforce strict adherence to their will. The worst are where the pupils do. So it is with all institutions - the right people must be in charge.

    The easiest - and cheapest - way to run a prison, is as a wildlife park. Let the prisoners run it. It is also the worst way for the prisoners, for justice, and for society.

  5. Ed (not Bystander)19 September 2010 at 22:04

    So many words. I bet you could have managed to express the same ideas with far fewer.

  6. @ Ed(not Bystander) - perhaps!

    @ Ron Broxted - there is a similar scale used by the English courts but the magistrates are constrained by case law to the effect that they cannot commit a person for non-payment unless all non-custodial options have at least been considered. To reach this stage can, unfortunately, take many months.

    @ Ben - interesting observations. It seems that there are several problems in finding suitable work for those sentenced to an "unpaid work" requirement. The kind of work projects they get seem to be very limited in nature.

  7. Does a Crown Court judge have the power to decide, irrespective of the defendant's or the magistrates' wishes, that an "either or" offence should be reserved to him for judgement? I am in this position at the moment, as a defendant, and the trouble is that there is a history between me and the judge in question. The Appeal Court has previously quashed an order he made against me, saying that he had "no power to act in the way that he did", and in an interview in the local newspaper, he has expressed frustration that his sentencing powers do not allow him to deal more severely with cases like mine. My solicitor is of the opinion that he has taken the matter out of the magistrates' hands. Can he do that?

  8. For either-way cases, "Mode of Trial" (or "allocation" as it now tends to be known) is done in the Magistrates' Court. The Magistrates decide whether they are willing to accept the case. If they decide not to accept the case then it goes to Crown Court. If they decide to accept it then the defendant might still elect for trial in the Crown Court. The Crown Court has no jurisdiction over a case until it gets to the Crown Court. The process of getting the case there was known as "committal" but, recently, cases are simply "sent" there once the magistrates have refused to try it (or the defendant elects for trial there). See the Ministry of Justice announcement on this.

    The foregoing is general information. The blog does not give legal advice. For that you need to see a lawyer who is well versed in criminal law. However, be careful about switching solicitors since it might affect legal aid.