Tim Ambler: Are the Magistrates’ Courts Fair?
Civitas, 17 July 2020
A guest post by Tim Ambler . . .
Magistrates’ courts, as the anonymous “Secret Barrister”[i] and others so clearly describe, are not fair to victims and witnesses. Delays, slow justice being no justice, imbalance and police reliability cause the problems but primary culpability lies with parliament, not the police nor the courts. The government expects much the same workload but has cut police by 14% between 2010 and 2019,[ii] and though district judges have taken up some of the slack, the number of magistrates halved from 2010/1 to 14,348 in 2018/9.[iii] Worse still, members of parliament call for more and longer sentences, and less legal aid, with little idea of the consequences. 3,600 new criminal offences were created in the decade to 2008.[iv]
The dislike of the current procedure is evidenced by 45% of defendants and witnesses saying they would not take part again.[v] If government wants to “put victims first”, as they so often claim, it needs to do one of two things: massively raise the provided resource, and there will not be a lot of spare cash post-pandemic, or streamline the procedure. This paper concludes with a way that could be done.
In 2018/9, the Met Police Commissioner reported that crime detection rates had reached a new low, 8% overall (3.8% for sexual offences; 5.4% criminal damage and arson; 6% theft).[vi] One might imagine that has freed up plenty of court time but not as much as might be expected. The Crown Prosecution Service (CPS) 2018/9 annual report shows magistrates’ court cases prosecuted in the three years to 2018/9 fell from 499,816 to 425,098 (p.20) and represent 88% of their cases.[vii] Courts are still over-loaded with modern concerns, such as hate crimes and domestic violence, in other words where the alleged perpetrators are easy to identify. Whether the public as a whole want attention switched from the traditional to these latter crimes is not known.
The rate of convictions dropped slightly in 2018/9 to 5.4% but guilty pleas remained steady at about 78%. Recognising the time wasted preparing cases where the defendants only plead guilty when the cases get to court, the Sentencing Council 2017 guidelines provided a reduction of the likely penalty, up to one third, for an early guilty plea.[viii] The reduction seems not to have worked. With such a low conviction rate the prosecution will likely muff its case. Witnesses fail to turn up, papers are not produced on time etc. And the “early” guilty plea discount is available only when the case first gets to court when the preparatory work has been done. Furthermore, those cases are still considered by magistrates in order to hear mitigation[ix] and give sentences.
The times between the alleged crime, being charged and then appearing in the magistrates’ court are 323 and 34 days respectively.[x] The court does not take just a few hours as one might image but, due to postponements, an average of nine days. If it goes on to the Crown Court, that’s another 119 day delay on average. 19% of 2018 cases were shifted to different days and 29% of “ineffective trials” were due to court administration.[xi] “At the end of December 2018, there were 293,000 outstanding cases [73 days] in magistrates’ courts”.
The imbalance issue is more straightforward. Legal aid cutbacks mean that more people are defending themselves. That pits a citizen knowing little of the law against, very likely, a professional barrister and a lawyer from the CPS. A legal aid defence lawyer will not be hugely motivated by the fee. If defendants hires their own lawyers, the recoverable costs, if acquitted, are capped at legal aid rates. If one knows perfectly well one is not entitled to legal aid, and therefore does not apply for it, one will not get a penny in costs: “Finally, to be able to receive defence costs, the defendant must have applied for legal aid, and then be determined to be ineligible to receive it.”[xii] How fair is that? And the final imbalance, according to the Secret Barrister, is “prosecution bias”. It would be hardly surprising if, faced by equally plausible accounts, magistrates will be more likely to believe the police version, backed by a contemporaneous notebook, rather than the defendant’s.
The CPS was created in 1986 by Lord Patrick Mayhew, then Solicitor General, replacing prosecution by the county or independent solicitors or by the police themselves. The ostensible reasons given were to improve performance and professionalism but the real reason was to stop the police stitching up those they wished to prosecute.[xiii] The average (FTE) number of CPS staff in 2018/9 was 5,584 at a cost of £304M, both roughly the same as the year before (p.57). The total cost of the CPS was £504M, slightly down from the year before (p.69). This is an expensive way of keeping the police honest and we do not know how it compares with the cost of outside lawyers. The CPS mostly make the decisions to charge and to bring cases to court whereas the previous local lawyers were advisory.
The unintended consequences are the additional bureaucracy, the inefficiencies of files missing or delivered late and mutual recrimination when things go wrong. The errors may be accidental, such as forgetting to hand over evidence helpful to the defendant, or forgetting to do so in good time, all the way through to deliberate stitching up.
The over-loading of the police and the CPS is illusory. It takes no longer to deal with something immediately than doing so in two weeks’ time. Indeed because, as Professor Parkinson pointed out, work will fill any vacuum, it probably takes less time. Police numbers have indeed dropped but in 1995 the CPS dealt with about three times as many magistrates’ court cases with about the same staffing, 6,000 of whom one third were lawyers.[xiv] We know that the police and the CPS, shuffling papers and responsibilities between them, are to blame for the year it takes for the accused to get to court but we do not know how much of that time is spent on detection and how much time on preparing the case once the defendant is identified. Whatever it is, it is too long and allows error and malfeasance to creep in.
The solution to these problems needs to cut the delays and reduce the (78%) guilty pleas clogging up the courts and the bureaucratic involvement of the CPS in magistrates’ courts whilst taking care of its raison d’ȇtre. The one presented here is consistent with the Leveson 2015 review which called for the process to begin much sooner, i.e. the legal interaction being at the point of charge.[xv]
On the first working day after charging, four people (and an interpreter if needed) should meet: the accused, the police officer leading the case and two “assessors”, one from the CPS and the accused’s solicitor, being the local “duty” solicitor unless another is preferred. The assessors’ role would be to consider the charge sheet, the witness statements and the defendant’s version and assess what the penalty in the magistrates’ court would most likely be, according to Sentencing Council guidelines, and from which one third would be deducted if a guilty plea was promptly recorded. They would not consider guilt or otherwise. The recorded proceedings would include the dates of the alleged crime and of the identification of the defendant as the most likely suspect. Copies would be available to both sides. If more than one defendant, the same procedure would be needed for each one.
On the next working day, the defendant’s solicitor would be responsible for recording with the court, police and other assessor, the defendant’s decision to plead guilty or not, and in the latter case, whether a defence lawyer will be engaged. In the case of a guilty plea, the assessed discounted penalty would become fixed and the case would only go to court for rubber-stamping by one magistrate. Otherwise, the case would proceed to court with copies of the charge sheet, assessors’ comments and recorded proceedings.
Where defendants are acquitted, their legal fees would be fully refunded by the CPS.
If the case gets to court, the defendant could plead not guilty, guilty (with no discount) or “stitch up”. If the last is chosen, the case would be adjourned for a senior CPS lawyer to investigate and report back. If the police, accidentally or deliberately, have failed to act properly, the case should be dismissed. If there is no evidence of that but it appears to have been a reasonable presumption by the defendant, the case would proceed as if the plea had been not guilty. If the “stitch up” claim was entirely without merit, another 20% could be added to the penalty at the magistrates’ discretion.
In determining guilt, magistrates should take into account the elapsed time between first identifying the defendant as the most likely suspect and being charged: the longer they have taken, the less likely a conviction would be safe. The police need to be incentivised to get a move on.
The forces marshalled in court should be balanced which in most cases would mean no defence or prosecution legal teams. The lead police officer would prosecute as they successfully did for over 100 years. Immediately following the decision to plead not guilty, the CPS assessor would provide the lead police officer and the defendant with an aide memoire listing the further evidence required and the weaknesses in the prosecution case as it appeared at the time of the charge meeting. If the defendant opts for a single, legal representative, then the Crown would be entitled to do likewise.
The relevant merits of District Judges and Justices of the Peace have long been contested. The former get through 43% more cases per day[xvi] but they are expensive and JPs are not paid. The recommendations above would bring about a massive reduction in the size of the CPS budget, perhaps 50%, since most of their work is in magistrates’ courts. Many of the redundant senior CPS lawyers would make excellent district judges. But saving money is not the objective here; improving the fairness of magistrates’ courts is.
[i] The Secret Barrister, 2018, Stories of the Law and How It’s Broken, Picador.
[ii] House of Commons Library Briefing Paper SN-00634, 4 March 2020
[xiii] Private correspondence with Lord Mayhew, 2003.