Why this 75p Mars bar shows we should abolish magistrates

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.

Delicious £328.75-y goodness

Delicious £328.75-y goodness

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.