Saturday, 22 August 2015

Magistrates under attack !

"The Secret Barrister" makes out a case for the abolition of "lay magistrates" - Why this 70p Mars Bar shows we should abolish magistrates  In this post I offer brief comment only.

The author points to the case of Louisa Sewell:

Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

The author rightly condemns
the Criminal Court Charge and this blog has also done so and continues to do so.  It is an iniquitous charge imposed regardless of the defendant's ability to pay and there is some evidence that it has resulted in the resignations of a number of magistrates.  It would have to be ordered against a church mouse!  Matters such as the fine, costs and "victim surcharge" (properly called a "surcharge") are not mandatory and the means of the defendant must be given due weight.  There are also alternative ways of dealing with minor offending such as this.  For example, a conditional discharge could have been imposed thereby avoiding the fine.  However, we do not know the record (if any) of this particular defendant and that has also to be taken into account when sentencing.

The article goes on to name the Chairman of the particular court before which Sewell appeared.  Whether that Chairman (or his Bench) were offered the chance to comment is unclear.  I suspect not.  The author observes that the Chairman may be - " ... of the same disposition and temperament as some of the magistrates in front of whom I have had the professional misfortune to appear.  I cannot rule out the possibility he is a closed-minded, self-righteous, vindictive and gonad-grindingly pig-thick cockwomble whose incapacity for compassion or deductive reasoning represents a regrettable blight on the institution of summary justice."  There is more!

The solution, in the author's opinion, would be to replace lay magistrates with Judges.  Over the last 10 years or so there has certainly been a growth in District Judge (Magistrates' Courts) appointments and many lay magistrates have long suspected an agenda to professionalise the Magistrates' Court judiciary.  This has usually been denied by successive governments.  (Each DJ has a salary in excess of £100k pa).  Apart from their lack of professional legal qualification, an argument put by the author for their replacement is that "they are entirely unrepresentative of those in respect of whom they sit in judgment, in age, social background, culture, ethnicity and class."  An interesting observation!  If the lay magistracy is unrepresentative then how would a bench of judges recruited from solicitors and barristers be any more representative?  As diversity in the legal profession currently stands, if anything it would be markedly less so.

One could go with further criticisms of the article.  I won't.  Lay magistrates are advised on law and practice by their legal advisers.  Almost everything a Magistrates' Court does can be appealed (usually to the Crown Court) though there are obviously cost implications to that.  There are also complaint mechanisms.  The magistracy handles thousands of very minor cases every year and, to be fair, it does so fairly, responsibly and sensibly in the vast majority of cases.  Perhaps THE main problem in the Magistrates' Courts is the lack of legal aid since BOTH a means test and interests of justice test have to be met in order to qualify.  Wouldn't improved legal representation make things better?  I venture to think so.

The learned author promises to write more.  I await it with interest but, with the greatest respect, I would like to see a fair and reasoned case put forward without the use of unnecessary invective.

Finally, since anecdotal evidence seems to be admissible, I can recall that solicitors tried to manoeuvre their cases to get them before the lay benches in  order to avoid a certain somewhat draconian Stipendiary Magistrate.  They knew that the said "Stipe" was much more likely to bang up their client.

Link added 30th August:

Transform Justice 26th August - How did the criminal court charge get through Parliament?

Criminal Law and Justice - Costs payable by convicted defendant

The order for settlement of monetary orders is Compensation, Surcharge ("Victim"), Fines, Prosecution costs and Court Charge.
 


!! Pay the Court Fee or Else !!


5 comments:

  1. Good piece of writing! This blog reveals the information about the court… thank you for sharing this with us…

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  2. Magistrates have no discretion about the surcharge.

    "In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat."

    It being submitted doesn't make it fact. What other evidence was there: what about criminal antecedents, did she have a record for shoplifting which would argue against the mitigation? Not enough info to decide. However, all things considered, the fine is text book application of the law - which magistrates and DJs have to apply.

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  3. Astonishing level of ignorance displayed by The Secret Barrister. Somewhat depressing but the great thing about the internet is that it allows comment from the ill- and well-informed so that we can see some of the range of competences and intelligence that makes up our society.

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  4. One could run with assist reactions of the article. I won't. Lay judges are prompted on law and practice by their lawful counselors. Essay Help Nearly everything a Magistrates' Court cans be advanced (generally to the Crown Court) however there are clearly fetched ramifications to that. There are additionally dissension components. The magistracy handles a huge number of exceptionally minor cases each year and, to be reasonable,

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