Policing the Magistrates

Posted: 29/08/2013 in Magistrates
Tags: , ,

From a pub in legal London:

‘Why do the police behave better in the Crown Court?’

Puzzled faces.

‘Cos the Magistrates let them get away with anything’

Everyone laughs.

‘May as well still be the Police Courts’

More knowing laughter.

Growing up

There’s a generation of the junior bar who miss one Magistrates’ Court in particular: Bracknell. In reality Bracknell Magistrates was manned by 3 or 4 London Barristers’ Chambers and a couple of big firms of solicitors. It was a pleasure to appear in.

Yes you’d sit on a train for 50 minutes with no loo or refreshment cart.

Yes if you missed the train you’d be hours late.

Yes you had to have lunch at Burger King or Greggs.

But! It was a wonderful magical place – why? Well, the legal advisors, virtually all had been practitioners at some stage and all were fair. And the Magistrates, consider now that this is in the heart of Berkshire, were diverse in both race and gender. They even had some younger JPs. They thought about cases carefully and gave comprehensive reasons for their decisions. They were polite too…

I’ve only ever had one credibility finding made by a Court against a police officer (this means following the case of Guney that it would be disclosed to the defence in every future case that the police officer has told lies whilst under oath) and that was in Bracknell Magistrates Court.

Bracknell was, in my view, a high quality mark.

But there were other extremes, in X Court you knew you would be acquitted, in Y Court you knew you would be convicted, in Z Court you knew your client was going to prison. You ought to be assessing the outcome of a case on the basis of the evidence not the Court.

Learning from mistakes

The closure of Bracknell was absolutely stupid. The Benches have now been split up and mixed up. The Bar assumed that similar closures in London might even things out across London at least, but now things are less predictable.

In honesty I don’t really go very often anymore, but still, people more junior tell you things, or a pupil will call and ask you a question.

The friction between the Bar and the (Magistrates’) Bench is twofold:

1) The way in which barristers are trained. The problem is this, the average barrister goes off for 6 months to the Old Bailey, Southwark, the Court of Appeal, with their, established and respected master who might be as much as 30 years call. They then crash down to the shop floor in the Magistrates and it is a culture shock. It encourages some baby barristers to be arrogant, it turns some into complete cynics who don’t run trials as they believe Magistrates just convict  and some just lose their confidence because of the way in which they’re spoken to and treated.

2) The bizarre. If juries gave their reasons for verdicts then I have no doubt that the doors of the Court of Appeal would never close. But, sometimes, you simply cannot believe what you hear in a Magistrates’ Court:

I give you three personal examples:

a) About 18 months ago, my client didn’t turn up to Court for trial. The Prosecution applied to proceed in absence, I opposed the application. The Bench announced that they proceeded in the Defendant’s absence and found him guilty. This was before they had heard any evidence. Needless to say that conviction didn’t last long.

b) It may harm your defence, if you don’t mention something which you later rely on in Court. 2 years ago, my client was asked a multitude of questions in interview, he answer no comment to a couple of them. When it came to trial, the prosecution didn’t ask the same questions, the Defendant didn’t mention something in trial he hadn’t mentioned previously. The Magistrates came back and found the Defendant guilty. Part of the reason they found him guilty was the Defendant answered no comment to two questions in interview. The Prosecutor and I looked at the legal advisor who didn’t see the problem. I explained the problem, the chair of the Bench was absolutely mortified. Legal advisor told them that his boss had advised that the Defendant would need to appeal to the Crown Court / High Court. The Legal Advisor had read the reasons before they were announced….

c) Credible and consistent. Where this phrase has come from, I do not know. If I find who came up with this phrase I am going to tell them what I think. The worst example of this I had was back toward the start of my career. A youth client was convicted, the reason: ‘The prosecution witnesses have attended this court and been cross-examined so we find them credible and consistent. We did not believe your evidence and so we find you guilty’ – Sorry what?

But I’m not an abolitionist

Actually, if you look at those examples, all three are actually legal errors:

a) Due process/ burden of proof

b) Adverse inference/right to silence

c) Burden and standard of proof / adequacy of reasons.

Magistrates are not legally trained, who is, their legal advisors. If legal advisors are not robust about properly directing Magistrates as to the law then one can hardly blame the Magistrates for the flawed decision.

So what happens if the Crown Court, or the High Court quash a Magistrates’ Court decision on a matter of law? Nothing. The Magistrates are liable for costs if they divert from the Legal Advisor’s advice.

What if the Legal Advisor gives the Magistrates the wrong advice/no advice? Nothing.

Who quality assures Legal Advisors? Other Legal Advisors….

So actually, the first step is to take better quality control of the work  done by legal advisors.

And don’t give in to the argument that we should do away with Magistrates because they are not legally trained. There are plenty of cases where I would always opt for Magistrates over a District Judge – why – because a person is much more likely to get a fair trial from his peers,

Unfairness and the many forms thereof

In a lot of courts, familiarity is the first unfairness, Benches have seen and heard particular prosecutors every day for a number of years, there’s of course a relationship there which amounts to a potential unfairness. To ameliorate that, rotate the prosecutors.

The police court? I certainly don’t think every Magistrate has bias towards the police, far from it. However, again, culturally, there were always certain Courts where one could confidently raise police misconduct issues and others where one couldn’t. That’s probably a training and recruitment issue for the Magistracy.

Diversity. Less than 8% of Magistrates are BME. However, more than 8% of Defendants are from ethnic minorities. And, age! The average age of a magistrate is 57. Over 80% are over 50. It’s again a recipe for unfairness.

Familiarity/Training/Diversity: all of those matters, again, are really a matter for the MoJ to sort out.

What does that leave us with…

A very small minority simply misbehave, that’s really something to do with recruitment and proper scrutiny. I have witnessed comments over the years that make ‘predator’ sound minimal.

“found that he demonstrated an inability to take a dispassionate view of a case.”

“was subject to an investigation following the expression of her personal views whilst sentencing in court and subsequently repeated in a media interview. The investigation found the views expressed in court were inappropriate.”

“made inappropriate comments towards fellow magistrates.”

These are just a few examples of investigative findings from the Office for Judicial Complaints in the law few months against Magistrates. Clearly,  the legal profession and court staff must be encouraged to take this avenue when Magistrates act improperly. As far as I can tell, the legal professions, nor court staff have never been invited to use the Office for Judicial Complaints at all.

Great expectations

The Magistrates are an ancient institution. And one I’m not keen to get rid of. The JP suffix after their names gives a certain degree of respect. But it doesn’t make the Magistracy as a whole respected.

And the present Government has great expectations for the Magistracy, they want them to do more, they want more Defendants to opt to be tried by them.

Simply put, confidence in the Magistracy isn’t going to be improved by simply policing them better. (Although it must be said, quickly dealing with inappropriate behaviour and encouraging it to be reported is important).

Instead, to meet the great expectations the Government has there needs to be:

(a) A more diverse Bench and less of a ‘local Court for local people’ type of outlook (where possible).

(b) More scrutiny of the advice being given by Legal Advisors.

(c) Better training of Magistrates

FTD

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Comments
  1. An interesting post but apart from statistics on J.P.s` ages just opinion; your opinion. Mine differs as I`m sure do many others. . Considering there are only about 13,000 appeals annually to Crown Court from Mag Courts and fewer than half succeed speaks volumes.

  2. Yes… just my opinion.

    I’m surprised you say yours differs, so:

    1) You don’t think the Bench should be more diverse?

    2) You don’t think it’s inappropriate that you’re allowed to build relationships with prosecutors who appear before you everyday?

    3) You don’t think legal advisors should be subject to external scrutiny?

    OK…. just my opinion.

    • 1. 10% BME, 50% female,4% with disability..age is skewed towards >50 for simple economic reasons
      2.What relationships? None whatsoever in my experience or those of my close colleagues
      3.Performance is regulated at least as high as any criminal lawyer in practice. HMCTS is a hard taskmaster

  3. Dadtaxi says:

    Might I present an experience from the other side of the safety Glass?

    I was before three of your esteemed colleagues. I wont get into details other than to mention this was my first experience in 50 years, so the rules and procedures were a bit hazy, to say the least.

    Whilst a witness was giving evidence I thought my solicitor had missed a crucial point. I waited till I thought he had just finished then stood up and asked if i could could speak to my solicitor.

    Up till then I thought that her glares in my direction were just my paranoia at finding myself in the dock

    The lady magistrate literally screeched ‘Noooooooo’ at me, much to my shock and the evident shock of the gentlemen sitting either side of her, let alone the clerk whose head whipped around to look at her.

    She obviously realized her mistake as she immediately relented on my solicitor asking if she was preventing taking advice from his client.

    Even I, with my years of experience consisting of ‘The Bill’ and ‘Juliet Bravo’ knew that she had allowed her prejudices to overwhelm her legal balance. I cannot tell you how much I was shaking with fear that this prejudice would overwhelm any defense that I may present.

    I cannot but wonder with that level of incompetence ( i cannot think of a better word) demonstrating her lack of maturity and level headiness, (let alone knowledge of the law) how she continued being a magistrate

  4. NorthernJP says:

    One should make a complaint if one feels badly treated in court. If no one complains, then it will be difficult to remove people like the lady mentioned (and removed or at least re-educated she should be). There appear to me as many complaints, proportionately, about the behaviour of the professional judiciary – most of the ones I have heard are never made official complaints. Perhaps because this is more career-limiting for lawyers than whinging about magistrates.

    As for magistrates being representative – my understanding is that magistrates are supposed to be representative of the local community as a whole, not one particular group. If the profile of people being prosecuted is disproportionate to their proportion in the population I don’t see that this has anything to do with the magistracy, although it does raise a number of other questions.

    As for training; until recently there was a great deal of training available, this has diminished enormously over the last couple of years. There is hardly any ongoing developmental training now. Thre is also virtually no recruitment of magistrates. In my own bench, over the next two years or so a significant number of magistrates will retire. This will result in the loss of an enormous pool of experience which will be missed, perhaps not immediately but in the gap created if and when new recruitment commences.

    • Dadtaxi says:

      One should make a complaint if one feels badly treated in court.

    • Dadtaxi says:

      ‘One should make a complaint if one feels badly treated in court.’

      What about those semi/professional people in court. Where does that responsibility lie, rather than leaving it to the accused ‘well he would complain wouldn’t he’

      • NorthernJP says:

        Anyone should complain if they feel wrongly treated, whether they are brick layers, solicitors or surgeons, or if they see inappropriate behaviour directed to others in court.

        I can tell you with confidence complaints are treated seriously and followed up. If it is about behaviour then magistrates and judges may be disciplined,and are, where appropriate. If it’s about the decisions made, there is an appeals process.

        I’m not sure what else you suggest there should be.

    • Dadtaxi says:

      Sorry, didnt want to get in to a lengthy post/debate, but i think you missed my point.

      When I spoke about ‘those semi/professional people in court’ I meant the Clark, the other magistrates sitting there, the solicitors in attendance and, (not being a court familiar person), anyone else that could having a role in the court process other than the accused. The accused may well be seen to have an ulterior motive ( i.e. deflect/interrupt the court process).

      Whereas those ‘officers of the court’ ( hope ive got that right) should be seen to have a more unbiased or neutral viewpoint and be proactively upholding those standards when observed falling short, rather than waiting for a lay person to complain.

      And it may only be my one limited experience talking, but i didn’t see any one of those ‘court officers’ rushing to offer me a complaint form, or telling me they had complained on my behalf

      • There is an interesting point here as to whether other lawyers have a duty to people in Court. You see in the Crown Court what happens once in a while is in a busy list there’ll be a nutty point of law, if the two Counsel on their hind legs don’t know the answer, then the Circuit Judge sitting will expect other Counsel in Court to offer advice.

        In the Mags it is quite different, a couple of times I’ve been glared at by legal advisors in that situation for whispering the answer.

        Should we complain about the way in which clients/people other than our own are treated? I don’t know, I hadn’t thought about that – but I’m now going to…

      • Dadtaxi says:

        ‘I hadn’t thought about that – but I’m now going to’

        Then my job here is done

        (Swish of cloak, dramatic exit stage left)

      • NorthernJP says:

        Ah ok. I don’t know how well you know the process but complaints about conduct and behaviour in court would not usually be dealt with by the same magistrates in court, unless the behaviour being complained about was disrupting the process. A matter for trial or sentence would normally simply be dealt with and any complaints about the process, behaviour of court officers or an appeal would be heard by disinterested persons at a later date.

        It is not unheard of for solicitors to raise complaints about other court officers nor for legal advisors (as the court clerks are usually referred to) to raise concerns about magistrates or district judges, probation officers or other court users and vice versa.

        If your not often in court, I’m not sure why you would expect see this process in operation, in my experience (nearly fifteen years) it is rarely needed. On the other hand I am in court regularly and see what happens behind the scenes. Magistrates and legal advisers are definitely disciplined from time to time for unacceptable behaviour or poor performance. I don’t know about district judges.

        If you have specific questions I am happy to try to answer them from a magistrate’s perspective. The reason I responded was because you seemed to be making assumptions that I know are not correct. We’re all learning aren’t we? 🙂

  5. captaincinders says:

    Re: Adverse inference/right to silence.
    I was at a recent magistrate trial (as an MOP) where the accused had maintained the right to silence at the initial police interview (on the advice of his solicitor ‘cos he had not been given any disclosure nor what the charge was). The Police never followed up with a re-interview.

    At the end of the trial, on being asked to remind the Magistrates the Law on adverse inference, the legal advisor (clerk?) basically said that recent High Court rulings meant that he had no idea how to advise the Magistrates what they could/could not infer.

    Apart from being a bit gobsmacked at that, I thought that if the the legal advisor could not advise on inference, the chief magistrate should have decided that therefore no inference could be taken. But no, The Chief Magistrate basically replied that “it didn’t matter as they all knew what it meant anyway”. Just from the body language, it was obvious that she meant that she was being free reign to infer that whoever keeps silent is a guity as hell.

    Again, just from the body language, it was obvious that it was the other two magistrates who held out for a not guilty vedict. The look of utter distaste on the Chief Magistrate’s face as she read out the verdict was just priceless.

  6. Bill Ryan says:

    Magistrates are important and should be subject to scrutiny as should the powerful legal advisers.

    I think there are many occasions where the reasons for a conviction are suspect or worse. I can’t comment too much in regards to what is happening right now but I had plenty of experience in the 90s. It could be very frustrating but a real challenge to try to overcome these perceived prejudices. Perhaps the prejudices of the legal adviser as well as the magistrates

    Back in the day I had quite a few successes which involved magistrates disbelieving Police evidence. Most memorable to me was an Assault PC in a Police Station in Croydon with 4 or 5 police officers giving evidence.

    I did have a line which I developed and maybe this was appealing to the Magistrates but I can only guess.

    I would say to them that they are the people who have the job of policing the Police as they see the vast majority of cases where Police evidence is properly tested and if they do their job diligently they will help ensure that the Police are kept honest and reliable etc., which is an important thing for all of us.

    • NorthernJP says:

      The are subject to scrutiny and assessment and there is an appeals process.

      • Dadtaxi says:

        Firstly, i hope Im posting in order, cos this site is a little tricky

        However

        ‘Magistrates and legal advisers are definitely disciplined from time to time for unacceptable behavior or poor performance.’

        As i mentioned before i didn’t see any of the court officials rushing to explain the above event at my trial, let alone to excuse it. It may only seem minor to you, but it caused devastating worry and concern to me at the time

        Is the defendant/s informed of these complaints, even if he/she/they wasn’t the one who actually raised the complaint?. Or is it a case of post trial ‘you’ve been found guilty/not guilty, so its not your problem any more’?

  7. NorthernJP says:

    It is the job of the defence advocate to test the Police’s evidence, not the court.

    • NorthernJP says:

      It is possible that a complaint has been made by one of the magistrates, the legal adviser or someone else. There is no way you would know this and it definitely happens from time to time when there is a serious issue. I know of magistrates who have been removed from the list of approved court chairman for similar failures. It may be that the chairman ‘received counsel’ from their colleagues and/or legal adviser in the post-court debriefing, if it occurred. There is no way you would know this either.

      As you had a solicitor I would have thought he/she would have advised you on the correct procedure to make a complaint or appeal the decision. As you were represented, it would be unusual for the legal advisor to offer you advice on how to make a complaint or an appeal unless you asked.

      • NorthernJP says:

        I agree it is dreadful behaviour.

      • Dadtaxi says:

        ‘l unless you asked.’

        and that’s my point exactly, what ever happened to duty of care by all those officer[s] of the court? who I assume would know the legal/court system/ procedures/standards Immeasurably better than a defendant ( certainly true for myself)

        I simply cannot accept that just waiting for a defendant** to complain, is what the legal/judicial/court system of this country should be comfortable with.

        ‘There is no way you would know this either.’

        and how would i know if their actions/attitudes may have prejudiced my case, let alone informing any others that they have sat on? I may only know my law/procedures from Juliet Bravo/The Bill, and that’s my point as well. How could i ( or others) even know to appeal ( not in my case thankfully) without knowing this and spending thousands on a solicitor and/or on an appeal.

        **and im not even gonna get into the new legal aid rules which will result millions of defendants having to try to defend themselves without the benefit of a solicitor. I present for your consideration ‘http://magistratesblog.blogspot.co.uk/2013/08/the-bottom-line.html’

  8. NorthernJP says:

    As you were legally represented the primary duty of care in this matter would I expect, be with your solicitor. You were a represented defendant. I think it might be highly irregular for another advocate to ‘barge in’ when a defendant is represented by another solicitor. I have never heard of that happening but the blog author may know better. I have definitely never seen it happen in court.

    As for a complaint being made; I mentioned that may have happened already, but as you didn’t make a complaint no one would know your view and I can’t see why they would contact you about it unless they did. Many defendants are, rightly or wrongly, unhappy about their experience in court for many different reasons – some of them fair, many not. The recipients of a complaint would act on the evidence given by the person(s) complaining. Did you ask your solicitor how to make a complaint?

    Your solicitor would know whether the actions of the bench may have prejudiced your hearing. Most solicitors I have seen are very aware of this type of issue and would pick up on it immediately, particularly if the desired outcome wasn’t achieved. Did you ask your solicitor?

    As I mentioned earlier, your solicitor ought to have explained how or whether you had a basis to appeal (If you were acquitted there will have been no need).The court would assume he/she advised you correctly. The court would only offer that kind of support (ie on appeals or complaints) to an unrepresented defendant usually.

    Members of the judiciary are ordinary people. They have their prejudices and biases like anyone else, so do juries. Magistrates in particular usually sit as a bench of three and I am sure magistrates demonstrating prejudice in the retiring room would be brought to heel or, if serious enough, reported. I have seen this happen too. The bottom line is, if, for whatever reason one doesn’t like the verdict or sentence, one can appeal

    I don’t think I can add anymore. Sorry you felt treated badly – it’s disappointing to hear. It’s not usual in my experience, whether you’re guilty or not. If you think you can do better why not apply to join the bench?

    @forthedefence – I’m surprised you felt your help wasn’t welcome on a legal issue. In my experience it is always welcomed when dealing with a thorny legal point. I guess it depends how you did it – offering the court advice would usually be welcome, hissing uninvited comments across the court wouldn’t usually be so warmly received. Maybe the legal advisor didn’t like you 🙂

    On a couple of occasions I have seen advocates offer confident advice that turned out to be wrong. Usually if there is a doubt, we retire and the legal advisor discusses it openly or goes to consult colleagues or the head of legal services.

    • Dadtaxi says:

      ‘highly irregular for another advocate to ‘barge in’ when a defendant is represented by another solicitor.’

      ever known it to happen when not represented?

      and if ‘no’, then again that’s exactly my point about duty of care

      ( and even though i was represented, why was my solicitor not ‘approached’ as part of the ‘duty of care’ to consult me as to making a formal complaint? )

      to quote terry Pratchett ‘But it is possible, after a while, to develop certain dangerous habits of thought. One is that, while all important enterprises need careful organization, it is the organization that needs organizing, rather than the enterprise’

      or in other words as i commented on another blog ‘At what point was Justice, rather than Judicial procedure, expected to raise its ugly head and be noticed’;

      • NorthernJP says:

        The short answer is ‘yes’. Where appropriate I have seen a solicitor help an unrepresented defendant, though I would add it has rarely been necessary. Legal advisers do it as a matter of course in my experience. Most of the solicitors I see are professional, humane people who understand the importance of the work they do. It often seems to me a thankless task. I don’t think your unfortunate experience is typical, thankfully.

  9. NorthernJP says:

    I ought to have mentioned that I have seen solicitors help each other on occasion too, and legal advisers do it regularly. I don’t think my experience is atypical. I would be surprised if a solicitor wasn’t aware of the procedure for making a complaint – why yours didn’t I have no idea, perhaps you could ask him/her?

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