Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




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Tuesday, 20 December 2016

A JUDGE, A BENCH & A LEGAL ADVISOR

Justices of the Peace are at the bottom of the judicial pecking order.  To be effective they rely on legal advice from a qualified lawyer employed for that purpose by HMCTS. Before any sitting the bench will or should be required to check through the list for that sitting with advice and/or observations from the allocated legal advisor.  That process being done thoroughly should allow as far as possible for the bench to be well aware of any potential awkward, difficult or legally complicated cases about to be presented. In the parlance of a U.S. Secretary of Defence it is a recognition of the known unknowns. Any experienced magistrate can attest to the occasions when these known unknowns enter a grey area where within the law and legal framework of the courts a legal advisor is just that; an advisor where advice given allows for final decision making to be done by the bench provided that it is made within the aforementioned legal framework.  If a bench in its wisdom decides to act against the advice of the L/A it must be prepared for possible consequences. I personally with my colleagues defied clear advice from a L/A during the riots of 2011 when we were told quite unambiguously to send every such connected either way case to the crown court because our powers were insufficient.   We kept one matter and made a pronouncement in open court that we were acting in contradiction of the particular advice from the L/A, herself advised by the Deputy Justices` Clerk as it transpired, and that that would be recorded in her court notes.  She was protected and we were not inhibited from following our oath as we interpreted it.However a recent not too dissimilar case before Coventry Magistrates  led to an unsavoury scenario.

Supplying or offering to supply a controlled drug / Possession of a controlled drug with intent to supply it to another is governed by Misuse of Drugs Act 1971 s.4(3), Misuse of Drugs Act 1971, s.5(3). The sentencing guideline for this offence is a prime example of the labyrinthine tortuosity of the thinking processes of the Sentencing Council. It would have been more honest to provide a real tick box for judges instead of this masquerade of one. But notwithstanding all that it is the judge`s remarks which disturb me. By these remarks, in particular, “Potentially this defendant has been denied a really significant right, and that is the right to have a crown court trial in a case where the magistrates should never have retained jurisdiction.” she has arguably brought the law into contempt by her scathing criticism however justified it might or might not have been. I would argue that she would have been wiser to have refrained from making those withering comments and to have put them in writing to the appropriate authority because it is inconceivable that the bench were acting without the full knowledge of the L/A.  If, however, that were not the case and the bench`s decision had not previously been conveyed to the L/A both it and s/he have questions to answer. My bench`s actions described above, I would opine, would have been appropriate in this case. Perhaps similar statements were indeed made at the magistrates` court. We do not know. There is no record.

Crown Court judges IMHO do occasionally let their mouths go off before their brains are in gear. This is a sad story for all concerned; the defendant, the bench, the L/A and Her Honour.

7 comments:

  1. Surely even if the magistrates were accepting jurisdiction, then the defendant still had the right to elect trial by jury himself. Clearly he didn't elect. I don't understand the judges comment that he had been denied his right to a Crown Court trial.

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    1. Yes! A very pertinent observation........that makes the judge`s comments even more unacceptable.

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    2. Her Honour is famously a part-time judge. Perhaps she should have taken some legal advice of her own from a professional before making such a bizarre assertion.

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  2. He didn't elect CC trial {why would he?} and if represented defence couldn't believe their luck. Denied his 'right' to a CC trial! Plenty of defendants are 'denied' CC trial if the matter is not either way. Criminal damage is a good example. Does seem that the bench went their own sweet way after good advice from LA. Herhonners don't like having their hands tied and it will be interesting to follow this over the months.

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  3. The Bench seem to have correctly followed current advice to keep matters which are straighforward, even if somewhat beyond their maximum sentence (don't know where 3-4 years for such a small amount came from), and commit for sentence. They were right IMHO, the Judge was not.

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    1. Actually, in the course of making a fool of herself, about the only thing the judge did get right was the sentencing starting point (i.e. 4 years 6 months for significant role, category 3 - quantity not applicable for street dealing). Which does make the magistrates’ decision something of an outlier under the Allocation Guideline even for an apparently straightforward case like this. However, there is no possibility of judicial review. The magistrates’ decision caused no injustice. The defendant still would have been offered a crown court trial. It would have been his decision to be tried in the magistrates’ court. If he then disagreed with being found guilty, he had the right to appeal to the crown court. As he didn’t appeal, when he appeared before the judge it would seem that he accepted that he was guilty and liable to be sentenced. Instead of which, out of extraordinary ignorance of the law, the judge has wasted public money and people’s time by unnecessarily ordering an adjournment and a pointless investigation. And has damaged respect for the justice system by publicly criticising fellow members of the judiciary. Let’s hope someone has a word!

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  4. Thank you Sub Rosa for correcting my error (Anon 22/12/16) and for an informative post which I fully agree with.
    Two further points occur to me. Firstly, until benches get more experience of these sort of decisions (they have to consider what they believe the actually sentence range will be rather than simply too much for us) which are outside their main experience, outlier decisions will be made. I do think that even if the bench had announced their decision to keep the case without letting the legal advisor know first, that officer would almost certainly have stood and made further representations and ask the bench to think again. One could even argue that it would be their duty to do so if they felt the decision was manifestly wrong. All of which suggests the decision must have appeared sensible at the time and unchallengable now in any case as we were not present and have only very little information to go on.

    Secondly, there is little doubt in my mind that if a lay chairman had made such remarks about a judicial colleague in court it would probably be the last time they spoke as a chair - and probably act as a magistrate.

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