Magistrates make me mad

If you find yourself accused of a criminal offence you may be asked to chose whether you would like to be tried in the magistrates' court or the Crown Court.  Frequently, your solicitor will advise you to select trial by jury.  There are a few reasons for this but the most common that I've heard is that solicitors consider jury trials to be fairer for a variety of reasons.  Now, magistrates, particularly lay magistrates (that is non-lawyer magistrates) hate this advice because they consider themselves to be jolly decent chaps who are as fair as the next man.

Today I came across a magistrate who reminded me why solicitors so often think of trial by jury as fairer than trial by magistrate.

I was appearing in a court for a defendant who had been convicted at trial of burglary and was being sentenced by a lay bench.  The allegation is simple that the defendant went into a shop that had already been broken into and intended to steal - not that a theft actually took place because no theft occurred, bizarrely.

The chairwoman used the sentencing hearing to make some breathtakingly stupid comments that highlighted her lack of knowledge about practically every aspect of her job as a magistrate sitting in a criminal court.

First, she told the defendant, "you went into the shop and came back out... you should have been told you were guilty of burglary".  The defendant was then asked directly why they hadn't pleaded guilty immediately.  The answer was because, "I didn't steal anything or intend to steal anything".  The chairwoman told the defendant that just going into the shop was sufficient to prove guilt to a burglary charge.  The Theft Act 1968 says this:
"(1) A person is guilty of burglary if—
        (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
        (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm F1... therein, and of doing unlawful damage to the building or anything therein."
As you can see, far more is required that just going into a building as a trespasser... the prosecution must prove some level of intention at the very least.  So, the chair of the bench does not understand what she must decide happened if she is to convict somebody.  At least today she was only sentencing.

The chair of this panel of magistrates clearly does not understand what must be decided in a fairly common and uncomplicated offence.  Yet, she sits in judgment on people accused of just these offences.

The chairwoman also chose to inform my client that had a guilty plea been entered at the earliest opportunity then the defendant would have avoided a criminal record.  This is simply wrong.  To me this is such a fundamental error that I honest never even considered that somebody would make such a mistake.  It's like being a car driver and thinking that the red light means go.

I want to make this crystal clear.  If you plead guilty then you have a criminal conviction and thus a criminal record just the same as if you are convicted after trial.  Again, this magistrate has completely misunderstood one of the most basic principles of the court process.  This is not a minor error.  If she were to tell this to a unrepresented defendant (of whom there are many thanks to the recent cuts in legal aid) at the time he or she enter his plea then there is a serious risk that a defendant would plead guilty thinking they would avoid a conviction!  Given that the court legal adviser allowed the magistrate to carry on without correcting her at any point only serves to increase my concern on this matter.

Finally, she criticised me for not forcing the defendant to plead guilty earlier in the case.  Again, the chair was making a fundamental error in her understanding of the role of those involved in the criminal justice system.  Marcus Tullius Cicero the Roman Consul and lawyer may have promised tribunals that his client would provide 20-years of army service without consulting his client but in our justice system the lawyer is expected to take instructions from the client and act according to those instructions.  While strong advice to plead guilty is given regularly in appropriate circumstances, it is not my job (or anybody elses) to twist the arm of defendants into entering guilty pleas when they protest their innocence.  I found the criticism particularly irksome given that the magistrate has no idea what advice I gave or what instructions I received and should have known that I could not reveal my advice to the court in any event.

This particular magistrate has managed to become a chair - that is to say she is a senior magistrate who leads the debate among the panel and who speaks on behalf of the bench - despite apparently failing to understand some of the most basic principles of her job.

Here's a good tip for you if you ever find yourself facing a criminal allegation.  Get a solicitor and tell him you want to discuss the venue for your trial.  A decent solicitor will know the local benches both in the magistrates and Crown Courts.  Many courts have excellent magistrates some, clearly, have terrible benches.  A solicitor should know his local benches and will be able to give you good advice on where you should have your trial.

Comments

  1. One wonders about the quality of the Legal Adviser as well! In my experience, LA's are not normally slow at coming forward and either having a quiet word in the ear of the chairperson, or just administering a firm but fair rebuke 'for clarification.'

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  2. scary. most of the la's i see daily would not have let that happen. but 'most' - not 'all' alas!

    as counsel, i am often asked what the benches are like in this court. even in courts where i appear most often (maybe 2-3 times a week) i would be unable to give a sensible answer. equally, for certain cases in the mags i would rather have a dj but for others prefer a bench. and of course at westminster i might as well go home and prepare my mitigation in readiness for sentence.

    at the very least, i regard the mags as haphazard. i reckon i can generally survive a bad chair or a bad la, but both is fatal. and a weak chair you can sometimes talk round (or baffle) but a dj will generally plough on (whether right or wrong) regardless. mind you at least they wouldn't say you don't get a record if you plead.

    i would be less worried about being told you should have forced your client to plead - comments like that from the bench just make me certain i am doing my job properly. and to be fair to chairs as a whole, i often get precisely the opposite kind of comment, sometimes openly approving but in any event the kind of nod that shows they know exactly what the situation was and are aware you acted properly and in your client's best interests.

    the more i do it, the better my tribunals seem to get. (except westminster of course)

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  3. The conduct of the chairwoman as described surely calls for a complaint to the Lord Chancellor.

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  4. This account is certainly disturbing. However I am not too surprised. I have sat as a winger cringing at remarks of the person in the middle chair. To put it very bluntly the appraisal system allows too many incompetents to become chairmen. I put the blame on the officials who have devised the ludicrous requirements to be met in the appraisal system. An example if similar requisites were to be applied to the act of walking would be......"stand still, lift leading leg to 30* from vertical slightly bending knee simultaneously leaning forward and swinging opposing arm in the same direction to 30*. When first foot has hit the ground repeat with opposite limbs....." Believe me that is exactly the way in which competences for JP chairmen are constructed. It is to be hoped that some of us can do the job a little better than your example.

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    1. Well,why do you not complain? Someone might actually listen to what you say because they damn well don't listen to us - the defence

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  5. I don't know whether it's just the local bench here, by which I also mean the DJ's sitting locally, but I don't know a single criminal solicitor locally who would consent to being tried in a magistrates' court if given the choice. But then if you are of good character a jury will give a fairer crack of the whip than a bench, IMHO.

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    1. In fact we didn't consent to be tried by the mags. This was a youth court. Defendant had turned 18 and we made three applications to have the case moved from the youth court into the adult court where mode of trial could be reopened and Def could have elected (as the Def wanted) a trial before a jury.

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  6. It is to be hoped that some of us can do the job a little better than your example.

    don't worry, jp, while chairs i have been in front of certainly vary in competence, i have never had a bench as bad as that described in the post. and universally they strike me as trying to be fair.
    (except westminster)

    but belly, my colleagues at the junior criminal bar would certainly agree re electing. every time i get a trial of an either way offence in the mags i say 'who on earth advised this client...'? i feel like victor meldrew.

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  7. The worst feature of this case is the conduct of the legal adviser (formerly "clerk" - an still, officially, associate clerk). A good LA would have intervened.

    a) You should raise a complaint by writing to the Clerk to the Justices since:

    i) the Magistrate does not merit to be an "Approved Chairman"; and

    ii) the Legal Adviser ought to have intervened and corrected these obvious and basic errors of law.

    Magistrates are subject to "appraisal" these days and have to be appraised every 3rd year. Hence, it is vital that this matter is drawn to the attention of the local Training and Development Committee.

    You are spot on when you say that you cannot reveal the advice you have given your client. Legal professional privilege applies.

    As things stand, I entertain no doubt that the days of the lay magistracy are numbered. This is a pity since the alternative will not be trial by jury. It will be trial by District Judge alone and then, I suspect, we will see both the conviction rate soar and a marked increase in use of imprisonment. DJs are judge, jury and sentencer rolled into one and are far far more "case-hardened" than magistrates.

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  8. I discussed Burglary in relation to shops on my blog last October:

    http://obiterj.blogspot.com/2011/10/burglary-sentencing.html#more

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  9. I agree totally with ObiterJ. You should have lodged a complaint as this behaviour is reflects badly on the Criminal Justice system. All so called 'homily' should be agreed beforehand with their colleagues. When on the few occasions I have heard remarks not agreed they have been stupid and ill thought out. Chairmen have a pronouncement guide for all offences etc. Guess what - it's for pronouncements! It doesn't contain homily either.

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    1. I think that "homily" is best avoided all together. Sentencing remarks ought to be confined to the offence and matters such as the facts (as agreed or found by the court), aggravating and mitigating factors and offender mitigation - e.g. previous good character. I have heard far too many homilies which strayed too far and which were actually inaccurate statements about the offender. Quite a few of those came from professional judges!!

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    2. Complaint made to the Office for Judicial Complaints and copied to Bench Chairman.

      I took a week to consider making a complaint. I was brought up not to complain about judges and to just get on with it. But after some serious thought on the topic I felt it was time to make my first ever formal complaint.

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  10. I agree with all of the above!

    I also had to endure an incompetent "Defence Brief" the other day. Leading questions, a running commentary on his witness's evidence etc. Also the whole panoply of competence of CPS prosecutors. You had a bad Chair, bad Legal Advisor, it should not happen. Complain. If this happened every day to every advocate it would be scandalous, but although competence is too variable I do not believe it sinks to this level very often. The alternative of trial by DJ has got to be worse?

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    1. I sat through a trial the other day as an observer while waiting for my own case to be called on.

      The prosecutor was first rate. But, the defence solicitor didn't seem to know any of the basics of cross-examination and most alarmingly when she gave her long boring closing speech it was quickly clear that she had literally been trying a different case! Crown had withdrawn a charge and substituted it for another based on the same incident but a part of it that happened a few minutes later. Defence closed basing her arguments (and XX) entirely on the withdrawn charge! The chairwoman of the bench and prosecutor both pointed it out to her at pretty much the same moment. Unsurprisingly her client was convicted.

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    2. Also, I agree that it very rarely sinks to that particularly poor level. I quite like appearing before benches (although sometimes you lot can be soooo slow I want to cry) but this was a whole new level.

      The impression I got was that both the chair and the legal advisor were in foul moods and something about how they acted suggested there may have been some disagreement between them earlier.

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    3. Now that my Bench has merged with a number of others I find myself sitting with unfamiliar Legal Advisors. Although seamless would be boastful I believe that previously I had a very good working partnership with all the Legal Advisors on my Bench. I knew how they worked and they knew me. We were each able to adapt to each others' way of working in order to deal with the day's work professionally and fairly speedily.

      I hope to achieve the same on the new Bench, but this takes time. My sittings are down and I do not think I have yet met, let alone sat with all the Legal Advisors. Some I have met do not seem to be of quite the same calibre as others.

      It is as painful to us as it is to you!

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  11. And you were surprised at this turn of events?

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  12. Oh dear, this reflects badly on us, and I tend to agree that I've winged with almost equally dismal Chairs. Do complain; the rest of us will be grateful, honest!

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  13. I recently sat a case where the magistrate continually nodded off during the hearing. They then submitted a guilty verdict in the face of clear and obvious evidence to the contrary.

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  14. Was this a first offence? I just wondered if the Chair was implying that a Guilty plea would have meant the case went for a Referral Order thereby avoiding a 'criminal record'. Just a thought and it sounds like she was wrong on the elements required for burglary anyway.

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  15. I have been sent to trial and found guilty of an assault. The crown prosecution was laughable, the the crown witnesses were quite clearly lying and admitted discussing the case before trial, even travelled to court in the same taxi. Deespite this and the clerk of the court stating that if there was any doupt I should be found not guilty. Well of course I was found Guilty another tick in the box for british justice.

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