If there is one positive to be derived from the Criminal Courts Charge (about which see here), it is that the creeping media attention is starting to shine a low-wattage torch on the grubby underside of the criminal justice system – the magistrates’ courts.
Enormous credit must be extended to Frances Crook and colleagues at the Howard League for Penal Reform for their just and righteous campaign against the Criminal Courts Charge, Chris Grayling’s final stinking dump on the criminal justice system before Mr Cameron mercifully took him out of service and put him out to what one hopes is his final political pasture before a deserved finale at the glue factory.
By retweeting local media reportage of cases where this new mandatory financial penalty has been imposed upon the very poorest in society to cruel and perverse effect, the Howard League has piqued social media interest, and one reported case, and one injudicious judicial comment in particular, has found its way into the Twitter crosshairs.
On 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.
What caught the eye, however, was this reported remark attributed to the chairman of the bench, who said: “We do not readily accept you go into a shop to steal just for being hungry.”
Read that again. And once more, please.
Now let’s get a few things clear. The Halesowen News does not report the full context of those sentencing remarks. It may be that the Defendant had resiled from that feature of her mitigation, allowing the magistrates to readily dismiss it. It may be that, in accordance with the Court of Appeal authority of R v Newton Cr.App.R. 13, having doubts as to the veracity of the defendant’s account the magistrates invited her to give evidence on oath, and, she having either done so unimpressively or having refused, the bench felt able to safely reject her explanation.
But, if they are of the same disposition and temperament as some of the magistrates in front of whom I have appeared, I cannot rule out the possibility that they instantly rejected a prima facie plausible strand of mitigation because the colour didn’t fit into the limited spectrum cast by the dispersive prism of privilege through which they view the world.
There is no doubt that there are some good magistrates. But those who volunteer with open minds and honourable intentions are, in my experience, stymied by colleagues whose collective common faults can be reeled off rote by any solicitor or barrister who has spent an afternoon holding back tears of frustration before a lay bench.
They are slow. They will take an hour to deal with a hearing that will take a professional District Judge a couple of minutes. They are entirely unrepresentative of those in respect of whom they sit in judgment, in age, social background, culture, ethnicity and class. They are predisposed to accepting prosecution – in particular police officers’ – evidence, where juries tend to analyse with a greater, deserved degree of scepticism. They will variously misunderstand, misapply or ignore basic principles of law, such as the presumption of innocence. The decree of the Queen of Hearts presiding over the trial of the stolen tarts – “Sentence first – verdict afterwards” – acts as the adopted motto of much magistrates’ court justice.
I could go on. In future posts I will. Because to those outside the system, the dictum of the Mars Bar magistrates probably strikes as an anomaly. Whereas those inside the system know that such sentiments are expressed, distilled and formulated into sentences of up to a year in prison every single day, in every magistrates’ court in the land. 95% of criminal cases are dealt with by the magistrates’ court, by volunteers with no legal qualification and an invariably skewed perspective on social matters. And I can say without hesitation that the gravest instances of injustice I have witnessed in my career have all occurred at the hands of lay benches.
The problem, in my humble view, is not the magistrates in this case. The problem is a system that allows people to self-select as arbiters of justice, when justice would be far better served by increasing the number of professional District Judges sitting in the magistrates’ courts. None of the above would have happened with a District Judge. And I would bet £328.75 that a DJ would have dealt with Louisa Sewell with at least a smidgen of humanity.
Such a true, accurate and worrying account……Thank you for continuing to bring the dire straits of the English and Welsh criminal justice system to people’s attention.
Thank you for reading.
And I shall continue to do so with interest!!
I have recently found that a suspended sentence given to me many years ago when a young vulnerable man, according to the memorandum was in fact a fabrication. The shadow of this thing has caused me great distress in my life and having rang the court very recently about this, they simply said the event was only civil not to worry as if nothing was wrong. If a person does not have the intelligence, devotion or aptitude for the law they should not involve themselves in the application of the same. As my old history teacher said, even those who’ve been to Eton care about their grammar, but I suspect the average magistrate believes The Daily Mail is a newspaper. By the time these people have been advised by the clerk, wouldn’t it be easier to just have a rota of lawyers putting in a couple of hours a week to show their commitment? And leave the self-righteous magisterial plebs to spend their time going round the national trust buildings as so many mock lords and ladies confused by gentle manners.
No doubt sad but true recorded comments. But an extension of democracy is required, rather than abolition. Election of all those sitting in judgement on others is surely much more of an advance. Why is there no discussion of electing magistrates and judges? And all the pisspoor mags quoted are sorely in need of training – none of this would have been tolerated on my former bench (Haringey) – and is down to pig ignorance or deliberate flouting of whatever was taught to these miserable excuses for JPs. Issuing homilies, indeed!
Please no elections for Judges. I’m an expat living in the U.S. and see the impact that this has. You think magistrates are bad? You should try and get a fair hearing from an elected Judge around the time of re-election! They pander to the masses and avoid at all costs any chance of being seen as lenient on “criminals”.
I agree with David Mc – electing judges and magistrates can only lead to a race to the populist bottom. The independence of the judiciary is a constitutional treasure – subjecting judicial decisions to the whims of the popular press (which is what would inevitably happen) will worse, rather than improve, outcomes in criminal cases, in my view. Thank you for your comments though.
Having discussed with my client the evidence of several police officers, he said “but they are lying!”
I shall not, until Alzheimer’s strikes, forget the look of incredulous outrage on the face of a lay magistrate I had the dubious honour of defending for a motoring offence. A second six pupil, I despaired whenever I appeared before a lay bench.
Here was one magistrate who, on the receiving end for once, was utterly floored to discover that police officers are no more truthful than any other witness. I solemnly told him that, in my experience, the magistrates would accept their evidence as gospel truth … There was an awkward silence after that.
I was right.
Indeed. If there were a way to put all magistrates through the criminal process as defendants, the conviction rate once they returned to the bench would fall through the floor.
I am considering becoming a magistrate should I not bother? According to this they are all blinkered bigoted old people with no common sense, or is it that the Stipendury magistrate, as the one who directs his colleagues, is ultimately responsible?
As long as there is a magistracy, the system needs good magistrates. If you have an interest in justice and an open, enquiring, sceptical mind, I would encourage you to apply – just be prepared for some of your colleagues to fit the stereotype I paint. A stipendiary magistrate is the former name for a District Judge – a legally-qualified judge who exercises the same powers as magistrates, but sits alone. When magistrates sit, there are ordinarily three, with the most experienced acting as “chair of the bench”, acting as spokesperson but carrying no greater weight in the decision-making process.
Hope that helps.
Blimey. After nearly twenty years of trying desperately hard to always bring my humanity and humility to court maybe I should just give it all up? Would Justice really be best served by appointing another load of predominately white, male, privileged lawyers? Every part of the CJS is flawed but I guess it is easy to bung 20000 individuals into one amorphous lump and blame them for systemic problems? Hey Ho.
I’m afraid I am firmly of the belief that justice would be better served by increasing the number of District Judges, yes. The alternative would be a wholesale change to the procedures by which magistrates are appointed, trained and performance-monitored. For every magistrate bringing humanity and humility, there are (I would estimate) at least two bringing a paucity of reasoning and unjustifiable decision-making, indicative of either a lack of training or a wilful disregard towards it. DJs are not a panacea – they are admittedly even less representative of wider society and many are prone to caprice – but, as I say in the article, extensive experience of magistrates, District Judges, juries, Circuit Judges, High Court Judges and Lord Justices of Appeal leaves me with the firm opinion that the most inexplicable, perverse and unjust decisions are overwhelmingly made by magistrates. I don’t say that magistrates are the cause of all problems in the CJS – far from it – but the way in which many approach their role causes significant problems for justice in the lower courts. Other lawyers may vehemently disagree with this view – although so far there seems to be a fair degree of assent among the comments here and on social media. I have every respect for magistrates who treat their function with diligence and sensitivity, but the problem appears to me that such voices of moderation and reason are marginalised in many decisions.
My personal favourite: outside bench trying a commercial burglary, lapped up the evidence of police officer who had “identified” the def from cctv. When cracks appeared the chair interrupted with a few “did you in fact mean to say” clarifications. At the end he thanked the officer very much, apologised for the “ordeal” of court and added (wait for it) “we have to give these people the chance to prove themselves innocent”. When reluctantly accepting to stop the trial, he added “I’ve been a mag for 13 years” to which the Clerk muttered “that’s what worries me”
Astonishing. Yet also, tragically, entirely not so.
Every profession has members who can relate a horror story of their own or a related profession. Most sensible listeners or readers will accept such stories for what they are; atypical accounts often by malinformed bigots with their own prejudices. Above is published such an example.
‘Malinformed bigots’ – really??
I rather fear that your immediate resorting to ad hominem attacks rather than grappling with the substance of the argument lends support to my thesis that calm reasoning is generally lacking in the magistracy.
While I, too, had fun and games in various Mags Court before I packed in the criminal law, if you want to see other examples of injustice hie thee to an immigration tribunal. There you will see the laws of evidence turned on their heads, and “Presenting Officers” offend the most basic legal principles, and “First Tier Tribunal Judges” excuse the poor old Home Office for royally cocking it all up AGAIN.
I honestly fear that, in many sectors of law, we are heading towards a more and more immigrant-nasty system. “Bloody foreigners” isn’t *yet* a defence in the High Court to a claim for unfair detention……