SINGLE JUSTICE PROCEDURE//FAILURE OF THE MOJ AND MAGISTRATES ASSOCIATION

My post today is on a subject upon which I first commented 15th June 2016 and on which my last comment before today was 24th January 2023.  The subject is the Single Justice Procedure. The above comments and others can be viewed by writing Single Justice Procedure in search box.  The background will assist in realising that from the start this supposed "improvement" in dealing with simple summary matters was misconceived from the outset. 

This is a topic which to be fully understood requires perhaps more reading time than a blog post usually demands. Some of the posts revealed by "search" offer viewpoints from a variety of sources.  The Single Justice Procedure (SJP) was introduced by the Criminal Justice and Courts Act 2015 in England and Wales. The procedure was designed to be an accessible, speedy, effective and more efficient means of delivering justice when dealing with the most minor summary offences.  Until recently, with very few exceptions, there has been almost no criticism of the process.  The body that makes few attempts to truly represent its J.P. members; the Magistrates Association has, by and large, been silent on this issue since its inception.  That truly is unsurprising since many of its "guiding lights" see a gong on the horizon as a fitting tribute to toadying to government.  It has also helped that persistent posts by  Tristan Kirk [@kirkkorner] Courts correspondent for the Evening Standard and Penelope Gibbs [@PenelopeGibbs2] and [@transformjust1] have brought this legal anomaly to a wide audience through X.  Belatedly the M.A. have yesterday 25th March issued an opinion which for the sake of simplicity I have copied in full below but the original release is available for those who choose; here. 

The Single Justice Procedure—which handles around 40,000 criminal cases every month—needs reform if it is to be seen as fair and transparent, according to the Magistrates’ Association, the organisation that represents over 12,000 magistrates in England and Wales.

The Magistrates’ Association (MA) today published its new position on the Single Justice Procedure (SJP). This reflects hundreds of its members’ insights into hearing SJP cases over the last eight years since it was introduced and responds to recent interest from the media on the SJP’s impact on defendants, especially vulnerable and elderly people. It also includes 12 recommendations to improve the operation, transparency and fairness of the SJP.

The MA found that many of its members are uncomfortable with the SJP process as it currently works, and a significant proportion feel they do not always get as much time as they need to properly consider each case.

Although training on the SJP for magistrates is available, MA members feel that it is largely focused on how to use the system and does not emphasise that the SJP is a judicial process in which magistrates can exercise their discretion, as they do with cases heard in court.

Mark Beattie JP, National Chair of the Magistrates’ Association, said:

“We believe that the principle of the Single Justice Procedure is good. Every year it spares thousands of defendants the ordeal of having to attend court for minor offences, and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences.

“However, it is not a perfect system. While the vast majority of cases are handled effectively by the SJP, our members—magistrates who decide on SJP cases—have told us about flaws in the way it operates and the harm that this can have on some of society’s most vulnerable people. It is clear to us that reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure.

“This is why we have made a total of 12 recommendations today, to change the Single Justice Procedure and make it fairer, more consistent and more open.”

The Magistrates’ Association’s recommendations include:

Making it a requirement that prosecutors (the agency that is prosecuting someone, for example, TV Licensing or the DVLA) see all pleas and mitigations from defendants before the cases are heard by the magistrate.

Reviewing and improving the training that magistrates receive before they can sit on SJP cases. Training must emphasise the ability of magistrates to use their discretion fully and without reservation, including the ability to refer cases back to the prosecuting authority.

Safeguarding the SJP process so that neither magistrates nor their legal advisors feel any pressure to process cases more quickly than they want to.

The government should make provision for SJP sittings to be observable by accredited journalists.

Boosting transparency by publishing more data on the SJP, such as how many defendants plead guilty, how many make no pleas, and how many ask to come to court, nationally and broken down by region.

Undertaking research on how improvements can be made to the process for the vulnerable, including those with learning difficulties, communication challenges, or who may be less able to engage with the process.

Improving communication, through a review of the paperwork sent to defendants, to make it simpler and easier to understand.

My general comments are that whilst the above points have merit they are too little too late.  Over 3 million cases up to 2020  have gone through the procedure; one of the search revealed posts (6th July 2021) has exact numbers 2015-2020.  Between 1st April 2019 and 30th September 2023, 3,102,392 criminal cases were received into the Single Justice Service, which includes 609,164 receipts through the reformed digital service. Note the name change; a symptom of the MOJ in its various departments when it wishes to demonstrate "improvement".  The Magistrates Association claims that its members have spoken of flaws and where they have been disturbed by outcomes.  Yet for years it has been noticeably reticent about making waves where it should have: Petty France.   From the above the M.A. has perhaps unwittingly revealed its desire not to upset its governors.  Consider, "and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences."  It should not be for magistrates to be considering "use of court time" or "speedier justice".  The delivery of  Justice alone is what they are appointed for.  Managerial concepts are for others since magisterial courts committees were abolished by the MOJ over 20 years ago.  The M.A. refers to "training" which it implies could be improved.  Part of its remit as a charity is to provide training for magistrates. "reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure."

It should be questioned as to why, by this observation, its members [and nowhere near all J.P.s are members] are lacking in the ability or knowledge to function to a higher required standard.  A lack of accountability has been built into the system since its inception.  Those law makers and the M.A. should be answerable for the diliteriness in approving the legislation in the first place.  It was apparent from the start that the SJP was an affront to open justice.  The House of Common debate in which this whole fast forwarding of justice was discussed on 25th March 2014 is available here.  

The Magistrates Association is a registered charity governed by the rules of the Charity Commission for England and Wales on the website of which is written, 

"ROYAL CHARTER OF 12 NOVEMBER 1962 AS AMENDED 1 JANUARY 1971, 9 DECEMBER 1980, FEBRUARY 1995 AND 9 FEBRUARY 2005.

Charitable objects

THE OBJECTS FOR WHICH THE ASSOCIATION IS ESTABLISHED AND INCORPORATED ARE TO PROMOTE THE SOUND ADMINISTRATION OF THE LAW BY THE FOLLOWING MEANS: (A) EDUCATING AND INSTRUCTING MAGISTRATES AND OTHERS IN THE LAW, THE ADMINISTRATION OF JUSTICE, THE TREATMENT OF OFFENDERS AND THE BEST METHODS OF PREVENTING CRIME; AND (B) ISSUING PUBLICATIONS AND PROMOTING CONFERENCES AND DISCUSSIONS ON DEVELOPMENTS IN THE LAW AND THE ADMINISTRATION OF JUSTICE."  {my bold}

It would appear in my humble opinion that the M.A. has failed to live up to its own charitable objects.  

Readers will by now, I hope, have enough information from which they can make their own informed opinions. 

IS THE END NIGH FOR BRITISH JUSTICE?

Many will be no longer fascinated by the recent attempts by China, Japan, India, USA to land unmanned space vehicles on the moon. Perhaps those who were agog at watching live on TV the first time that human beings walked on the moon in July 1969 are now just passive observers to the many sociological and political changes that afflict the planet  and have changed the face of this country as much as any war might have done in decades past.  

With a general election expected before Christmas pollsters will be bombarding the media with the results and opinions of their paymasters on what is likely to influence the electorate in our individual voting decisions.  No doubt previous successes from before the age of Tik Tok  will be rehatched to reach a generation that was in short trousers when Labour ended its 13 year reign in the House of Commons.  “It's the economy stupid” was a phrase coined by James Carville in 1992 when he was advising Bill Clinton in his successful run for the White House.  Like the rotten boroughs of times past, by all accounts an extra £1,000 per annum in the pocket of Mr, Mrs or Ms average earner`s bank account will be enough to buy a vote.  The esoteric notions of foreign policy or mass hysteria over a foreign war are unlikely to be considered worthy of mention in any through the letterbox leaflets.  Unfortunately the deliberate break up of our once admired justice system will be similarly classified; not worthy of debate but arguably in its many forms just as likely to affect our lives as a penny on or off any taxable item.  

We all depend on the police.  Their popularity with the public seems to rise and fall like a child on a trampoline.  On one hand events of the years since the brutal murder of Sarah Everard have exposed that there aren`t just some misbegotten rotten apples but rotten barrels full of misbegotten rotten apples.  But on that other hand it is the police who stand between peace on the streets and anarchy.  When PC Paul Fisher was acquitted of dangerous driving in November last year four years after  he crashed on his way to the scene where Sudesh Amman had stabbed two people  there were some murmurings that he had "got off".  That he was on trial at all for attempting to save innocent lives seemed incongruous to many within and without the policing and legal professions.  His case seems to sum up the push me pull me of Dr Doolittle fame in our attitudes to policing.  

Whilst I was active the persistent shoplifters had a pseudo legal adornment to their propensity to steal; "prolific", the essence of which was that even when an individual case was of low value an offender with a history of dozens or perhaps hundreds of previous convictions was to be treated for the entirety of his convictions thus ensuring that the maximum sentence of six months immediate custody was available as a true reflection of his/her law breaking.  That was the theory but the practice was very different last year.  Recorded offences rose 25% but charges fell.  In the year ending 30/6/23 police recorded 365,164 shoplifting offences but only around 12% of suspects were charged.  In the year before Covid almost 19% of suspects were charged. This decline is just a symptom of failures for more serious matters.  If the government proceeds with its stated intention to remove custodial sentences from the arsenal of disposals at magistrates courts one can expect an exponential rise in theft from shops and an increasing number of stores having security guards  inside and outside their premises as in most large retail premises in America. 

 Knife possession and knife crime have both increased and despite the wooly words of Justice Secretaries since 2010 the proportion of knife offences resulting in a suspended sentence has increased by almost 100% to the end of September 2023 resulting in almost a quarter of such offenders avoiding prison.  Further statistics show that even for repeat knife offenders in the same period 40% were not sentenced to immediate custody despite legislation that instructed judges to do just that.  

Between 2017 and 2021 more than 35,000 of the 142,275 motorists who totted up 12 points avoided being banned due to claiming 'exceptional hardship'. From my own personal knowledge and experience [posted here many times and available using the search box]  magistrates are too quick to offer relief to drivers with 12 or more penalty points.  A Google search shows that hundreds of solicitors are advertising their expertise in arguing successfully for "exceptional hardship".  Their lucrative income stream and magistrates misplaced sympathies must surely come under scrutiny by a future Justice Secretary and be formalised.  

And so to our judges who can be castigated for speaking out of turn but can be incompetent in their sentencing without retribution unless the case is particularly a high profile one attracting photogenic witnesses, available finance or public relations experts and sometimes all three.  In the last 20 years prolific offenders represented nearly half of all convictions; 243,000 people aged over 21 with at least 16 convictions or cautions. In 2022 hyper prolific offenders with 45 or more convictions or cautions offended almost 10,000 times and were subject to non custodial sentences 53% of occasions.  

Hundreds of judicial decisions in sentencing miscreants, which have been made according to the Sentencing Guidelines, have been tossed aside.  Known only to individual judges offenders who should be in jail are walking the streets because the MOJ has instructed the judiciary to use non custodial outcomes because the prison population is at breaking point.  Recent police and judicial decisions regarding the treatment of those who openly spout religious hate in their marches for so called Palestinian freedom from "the river to the sea" are bringing this government to a point of no return in the interface between anarchy and democracy.  Simple but deep philosophical questions on the freedom of judges` sentencing options, jurors` rights to bring in "perverse" verdicts, police interpretations of the law in conflict with parliament`s interpretation of said law, prison governors` and parole boards` decisions in overriding original sentencing decisions and many other policies and decisions below the public horizon are about to be tested. MOJ spending figures show a planned 4.8% cut in operational spending on justice to £10bn in 2024/25 from £10.5bn in 2023/24.  Russian oligarchs, their estranged wives, Arab property developers, disgruntled media stars and others similar might consider London the best place to spend their favoured currency on their favourite high priced KCs but for Josephine Bloggs alighting from the Clapham all electric omnibus needing help on a dark winter night as she walks home the legal future is bleak.  Is the end nigh for British justice? Can somebody help?

MACRO MICRO AND THE LEGAL ROOST

The word macro describes something that is very large or something that is related to things that are large in size or scope. Macro is also used as a combining form meaning “large” or “great.” The word micro describes something that is very small or something related to things that are small in size or scope.  Both terms are often used in academic studies.  As with many commenters on myriad topics this blogger has, consciously or unconsciously, pontificated from both aspects at any one time.  The more distant the time when being active in the middle chair was laterally almost a weekly occurrence the more perhaps a macro or overview of magistrates courts and their inner workings appeared here. Sometimes reports of actual courts` proceedings or activities can and should bring a sudden state of the here and now into any esoteric commentary.  Three such matters have today caught my attention persuading me to turn from the macro to a micro view of the workings of magistrates courts every day at every court. 

Perhaps the most complicated cases I can recall were those brought by a local authority against those who had ignored or in some other ways had failed to comply with enforcement notices often under under section 179(2) of the Town and Country Planning Act 1990.  I distinctly remember an offender represented by a then QC telling me as the presiding magistrate that the bench would not be capable of understanding his client`s complex arguments and that we should adjourn to a date for the matter to be heard by a District judge(MC).  We gave him a polite response noting his objection and invited the prosecutor to proceed.  In another similar situation the prosecuting solicitor for the local authority presented a bundle he was relying upon and, as he thought helpfully, argued that we need read only some specified two dozen of more than 200 pages. We retired to read the whole bundle.  A further case where the claim was for £22,000 had the offender who had pleaded poverty in his personally delivered mitigation writing a cheque for the full amount on his guilt being established.  There were many offenders who had to be threatened with contempt for refusing or delaying the court`s requirement for audited accounts to be presented by a future court date.  And so it was with interest that I noticed this report by Camden Council in London where justice was certainly seen to be done. 

Fly tipping has, over the decades, slowly crept up the ladder of environmental offending.  Whereas it had been in the post war years an "annoying" offence it`s now on a par with some offences causing bodily harm.  The seriousness of such offending can be gauged by the Sentencing Guidelines.  Once again on a personal level if memory serves correctly my bench fined a sole trader of a fly tipper around £20,000 for what the offender considered just "a few bits and pieces" he`d dumped at the side of a quiet street. It was interesting to note that a fly tipping offender was subject to a six weeks custody order but owing to current politics it was suspended.  With government having given notice that magistrates courts will soon be unable to impose any custodial terms immediate or suspended there is going to be a huge ill considered gap in the justice system.  I suppose when a government in power for 14 years does not provide enough prisons or prison cells to house offenders in a humane manner nor provides sufficient trained staff both in the prison service and probation to oversee sentencing and sentences there is little surprise of chickens coming home to roost.

I cannot recollect having a police officer in the dock throughout my time on the bench although there were not a few who committed perjury from the witness box with a straight face.  On consideration I assume that in today`s world things would be different for colleagues.  The current climate certainly gives one hope that, without prejudice, erring officers are more likely than in past years to face justice for offending. Last week Swansea Magistrates Court saw a serving police officer appear on a charge of sexual assault by penetration.  What is interesting is the statement of Nathan Adams, criminal lawyer at Reeds Solicitors in Cardiff.  It can be found along with a statement by Senior Investigating officer Detective Superintendent Huw Davies here. 

Criminal offending affects real people on both sides of the legal divide. Sometimes the judgements, emotional, theoretical, intellectual and judicial are based, notwithstanding the tome that is the Sentencing Guidelines, at a macro level.  There can be no confidence in a judicial system where consideration at the micro level is overlooked and unfortunately that is what has happened over the last few years and is, in my humble opinion, likely to continue whatever party is ruling that legal roost this time next year.  

JUSTICE IN THE SHADOWS

At the turn of the century if one turned on the TV to watch a police or crime thriller it was almost certainly a work of fiction.  Over the next few years TV executives and writers began exploring the possibilities of a sub genre; mockumentaries and "reality" programming centred around routine police work and true life investigations.  Fast forward to present day and all manner of true crime is reflected on our screens from static traffic cams, motorway patrols to historical investigations of gruesome murders from initial crimes to eventual outcome for offenders.  Perhaps that format has outlived its popularity for some but with an ever expanding supply of visual media to be available for an insatiable viewing public demand must be satisfied.

This blog has long advocated and predicted that live court TV will eventually be sanctioned in this country and probably from magistrates courts locally funded with national control on advertising policy. That is the future but the live televising of a court was initiated  in September 2015   when STV became the first broadcaster to televise a Scottish court case live and in full. Four cameras were used in court one of the Court of Session in Edinburgh to cover a two-day Election Court case involving Alistair Carmichael. Four constituents were seeking to have Carmichael deselected as an MP after he leaked a memo in April to The Daily Telegraph which suggested that Scottish First Minister Nicola Sturgeon had told the French Ambassador she would prefer David Cameron to remain prime minister. 

On July 28th 2022 for the very first time a Crown Court judge`s sentencing remarks were televised live.  Her Honour Judge Sarah Munro QC in sentencing 25 year old Ben Oliver for the manslaughter of his grandfather said, "Time spent in remand would be deducted, resulting in a term of nine years and 63 days.  Once you have served that term, you will be entitled to apply for parole. However, you will not be released by the Parole Board unless they conclude you no longer pose a risk to the public. If you are released, you will remain on licence for the rest of your life."  And the pattern was set.  Since then broadcasters have filmed the sentencing of 33 offenders including Thomas Cashman and Wayne Couzens.  

February 26th was arguably the date on which another legal taboo was breached.  It was the broadcasting by ITV of the first of two hour long episodes concerning the killing of his wife by British Airways pilot Robert Brown.  Some distressing footage was shown including some of  Brown`s police interviews.  He was found not guilty of murder but was sentenced to 24 years custody for his admission of manslaughter. The programme appeared to have been inspired by pressure from the deceased`s mother and friends when they were informed that Brown was due to be released under license having almost served half his sentence.  Pertinent sections were portrayed  by actors from the trial transcript.  Understandably the programmes ended with observations by Brown`s lawyers that he was fairly cleared of murder by the jury according to the evidence and is entitled to fair treatment under the law including eligibility for parole.  The images of the jurors reacting with sorrow or perhaps disbelief at the judge`s remarks presumably based on eye witness accounts when he explained the unusually harsh manslaughter sentence were  certainly designed to show that with some of them there was a realisation that they had reached a perverse verdict.  As is his prerogative the Lord Chancellor blocked his release on license; a very unusual decision.  The matter will now go forward to a hearing of the Parole Board.  It is interesting to note below an extract of  a letter of 1st December 2023

 Letter from the Minister of State for Justice

The Government has also introduced amendments to the proposed reforms of the Parole Board, as well as changes to the creation of the Independent Public Advocate. The Government’s latest proposals reflect the concerns raised by the Chair of the Justice Committee in a letter to the Lord Chancellor on 7 June 2023.

On Parole, the Government’s initial plans would have allowed the Lord Chancellor to “call in” Parole Board decisions to release certain prisoners. The Committee said: “We cannot understand how a Secretary of State sitting in Whitehall can be better placed to make a release decision than the Parole Board which has had the opportunity to hear evidence from the prisoner first-hand.” The Government has now dropped this plan, and instead proposes to introduce a power to allow the Lord Chancellor to refer a certain release decision to the Upper Tribunal or the High Court.

Sentencing for serious criminality is apparently now a major attraction for broadcasters.  When such sentencing seems out of kilter with public perceptions especially in the most awful murder cases and/or bereaved families are particularly articulate or photogenic all pressures to pursue the victims` families` complaints are likely to be met with some sympathy by TV media with half an eye on their ability to attract audiences in this country and abroad.  I would opine that the outcome of the heinous murder of three people last year in Nottingham, when the judge accepting expert evidence that the accused Valdo Calocane would  be detained in a high-security hospital following his sentencing at Nottingham Crown Court, will be high on a list of suitable cases to be considered for in depth TV analysis.  Once again a sentencer`s sentencing remarks have provoked profound dismay within and without the legal fraternity insofar as he remarked that Calocane is likely never to be released, so that he can receive treatment for paranoid schizophrenia – a mental illness that can be “mitigated” with treatment but not cured. Judge Mr Justice Turner added he was satisfied Calocane would not have committed his “appalling” crimes had he not been suffering from the illness."

It is unlikely that the aforesaid decisions by judges have gone unnoticed by the policy wonks at the MOJ however with an impending general election affecting almost everything coming from government sources it will almost certainly be the next government which faces the reality that justice cannot be kept in the shadows from a wider audience for much longer.  The only caveat I can envisage is that by hurriedly exploiting a much tougher law `n order policy Tories would hope that their traditional voters will be less likely to abstain.