MAGISTRATES` THOUGHTS ON UNREPRESENTED DEFENDANTS

It is generally accepted that magistrates` courts came into being in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace. The title Justice of the Peace (J.P.) first appeared in 1361, in the reign of Edward III. As the office was unpaid only those with independent wealth could be appointed.  Until the turn of this century applicants had to declare their political affiliation before their applications would be considered. Prior to 2003 there was a great deal of truly local control of individual magistrates` courts.

With major changes in society since 1997; reduction in crime, increase in out of court disposals, mass immigration, increases in legislation and governments` increasing desire to exercise control,  units of governance increased in size eg many smaller London boroughs were abolished and absorbed into larger entities with populations the size of cities such as Bristol.  Courts were no exception to this big is best philosophy.   With the formation of Her Majesty`s Courts and Tribunals Service in 2011 central government has overall control of the whole courts` process. 

The last fifteen years have seen a gradual erosion of the powers of magistrates` benches over their members and behind the scenes court processes.  Her Majesty`s Courts and Tribunal Service has arguably created powers for itself not envisaged by those who set these changes in motion.  Whilst the number of J.P.s has fallen by almost a third over this period of falling numbers of cases coming to court  the same period has seen the number of full time District Judges sitting alone  rising from below 100 to 139 assisted by 154 part time Deputy District Judges.  The numbers of District Judges (and D.D.J.s)  have increased as a direct result of government policies. It is reasonable to ask oneself why.  It cannot be purely on cost although if their having a qualified legal clerk for assistance were abolished the cost difference would be a close run thing allowing for J.P.s expenses.   It cannot be that increasing court time is required.  The last decade has seen the number of lay magistrates reduced from c30,000 to c 23,000. The only logical conclusion is that by having the lower courts under the control of salaried civil servants they become more amenable to central control.  Those more expert than I in the manipulation of statistics have suggested that converting the Deputies to full time D.J.s would enable a government to remove the lay Justice of the Peace from the criminal court altogether replacing him/her with a single arbiter of law, fact finding and sentencing  thus allowing  full -  on control of the total courts process by civil servants beholden to government for their stipend.   It is virtually beyond argument that this is indeed what happened after the riots of 2011.  I personally experienced pressure from senior officials to send where lawful a  related matter at that time to crown court as District Judges were instructed to do notwithstanding whether or not it had passed the required seriousness test.  My colleagues and I at the time declined such pressure. 

There is no doubt that in their quest to pursue the concept of restorative justice,  the proliferation of out of court disposals, the pressure to reduce custodial sentencing and the virtual balancing of costs between J.P.s and an arguably  more efficient and cost effective professional judiciary there are politicians all too willing to heed the voices of pressure groups to remove the lay magistracy from the courtrooms of England and Wales.   Recent legislative changes, by the coalition and the current government, have seen the resignation of perhaps thirty J.P.s........statistics are impossible to find.  Imposition of taxes unrelated to income termed “victim surcharge” on convicted offenders in addition to costs, fines, community requirements and custodial sentences were greeted with dismay by most of my ex colleagues.  Recently announced additional such taxation known as the Criminal Court Charge will almost certainly accelerate the philosophical distance between magistrates and government leading  inevitably to more resignations especially from the most senior cohort of J.P.s.

In the light of the aforementioned history current pressures on the magistracy are beginning to take a new form; namely is it time for its abolition?  Whilst there are few who would raise their head above the parapet to put their case the alleged poor quality of training received by magistrates is being used as a convenient stick with which to beat them.  The Howard League for Penal Reform and Transform Justice are just two of the pressure groups seeking major changes to the training programmes currently offered to J.P.s.  However in any discussion on magistrates` own opinions of  their activities and competence within the courts in which they sit there is a dearth of knowledge.  The Magistrates Association is held in such low esteem that its efforts to canvass opinion can be virtually discounted.  For that reason I decided to canvass opinions held by members of my former bench myself on the vexed and troubling subject of unrepresented defendants whose presence in court has been brought into the spotlight by the reducing availability of legal aid.    For my sample I chose colleagues I knew to be forthright and logical in their thinking and with at least five years experience.  Their number did not exceed ten.  This information gathering exercise is not meant to be a statistical analysis of the thought processes of some J.P.s; it is merely the gathering together and assembly of opinion during friendly conversation with former colleagues. The following is an account of their views. 

Considering unrepresented defendants it was apparent that care must be taken to distinguish between two very different stages of the justice system; namely first appearances at magistrates` court and at trial for a summary or either way offence.  There did not seem to be more such appearances at first listings than prior to the activation of the new process of anticipated guilty or not guilty pleas although there was some dissent amongst interviewees.  Those unrepresented were generally in such a position through lack of means, unawareness of seriousness and/or ignorance of proceedings.  Those factors were no different now than they had always been. The turmoil over legal aid contracts had not so far had any detrimental effect on the availability of representation at remand courts. Defendants, it was considered, still enjoyed the benefit of legal advice from a duty solicitor if they took advantage of that facility.  However what came through loud and clear was the awareness that defendants might  feel pressurised to plead guilty at this early stage.  Most  interviewees were of the opinion that before any sitting, written information should be handed to each defendant by the usher explaining  procedures and in particular the consequences of entering an anticipated plea whatever its nature.   One dissenter suggested that those offering an early guilty anticipated plea could be formally processed at the police station by video link from the court.   All were concerned by the recently imposed Courts Charge.  The financial burden by its imposition without means testing on those found guilty after trial gave rise to a fear  that additional equivocal guilty pleas might be offered and it was incumbent upon  bench chairmen to be prepared to question the validity of any such plea where that might arise.  For either way offences and defendants eschewing legal assistance it was vital that bench chairmen be able to assist legal advisors in ensuring understanding of the consequences of any decision.   It was agreed that for motoring offences representation was not the norm unless a conviction meant the offender had become a totter.  It was thought that some unrepresented defendants do not realise the consequences of some motoring offences eg driving without due care or s.172 failure to provide identification of driver.  There was support for sending information of the maximum penalty for a guilty plea or being found guilty of such offences along with the court summons.  There was agreement that generally  the quality of CPS representation was questionable.  With many being agents with no authority to “take a view” when multiple charges were involved outcomes could differ from defendant to defendant apparently unfairly.  It was pointed out by a chairman that no training has been offered to bench chairmen in preparation for a probable increase in unrepresented defendants and the consequences for all within the system.

My interviews regarding trials of unrepresented defendants produced broad agreement.  There was an expectation of increased time being required especially if the non representation had not been endorsed on the preparation for trial form.  There was with only a single dissenter a belief that the bench chairman will inevitably need to become more inquisitorial there being in those circumstances no more a level playing field.  Previous practice has been that the bench was limited in its questioning of a witness to “seeking clarification” of a topic previously given in evidence.  It was felt now that that limitation with litigants in person was not conducive to justice being done and being seen to be done.  The message seemed to be that seeking the truth had to be a priority where without equality of arms there was risk of miscarriage of justice.  Most of the interviewees told me there was not 100% confidence in legal advisors being able to assist those defendants to a satisfactory level.      A very experienced chairman suggested that the Courts Charge could be reduced for unrepresented defendants convicted after trial.

There were some topics where there was general agreement.  Defendants should be provided with suitable explanatory literature with the summons and upon entry to the courthouse prior to their appearance in the courtroom.  Additional time must be allocated at trial.  Benches must be on their guard against possible miscarriages of justice and be prepared to take a more inquisitorial attitude to witnesses than has hitherto been allowed by legal advisors whose own performances were thought to be variable.  Indeed there was a majority view that increasing numbers of unrepresented defendants  could fundamentally alter the centuries old tradition of “equality of arms” or the “level playing field” so beloved by proponents of the English adversarial tradition of justice.  It therefore might be concluded that the old approach of a bench`s questioning of a witness by first stating, “Just to clarify a point Mr X..........” and hesitating to tread new ground might slowly give way to the opening of a new topic.  Those with that opinion felt getting at the truth in such circumstances justified the change of approach.  A minority was equally strong in its opposition to such changes.

My personal opinion for what it`s worth is that the provision of literature,  sent with summons and supplied  at remand courts, that explains procedures and consequences of plea and allocation is long overdue.  In the foreseeable future with anticipated increases in litigants in person it would be criminal not to so do.    Magistrates must guard against possible miscarriages of justice by omission and if that requires a more inquisitorial approach so be it.  

This kind of research into the workings of magistrates` benches is long overdue. I look forward to an independent review of what does go on in the retiring room.