Tuesday, 17 September 2019

Frustrations of Being a Magistrate: Episode 1: Ineffective Trials

Whenever a defendant denies the charge against them a trial is needed to determine whether or not they did commit the offence in question.

I really enjoy trials. It must be my inner Inspector Morse. I find it satisfying following the evidence and weighing up the arguments on either side.

That being the case, it is frustrating that so many trials go off at the very last moment. These are referred to as ineffective trials and it is are regrettable fact that they regularly outnumber effective trials.

Based on my observations there are two frustrating causes of ineffective trials - over-listing and cracking.

The most recent Criminal Court Statistics Quarterly indicates that one-third of all ineffective trials at the Magistrates' Court arise due to administrative errors. In my neck of the woods over-listing seems a particular problem.

Just like airlines deliberately over-sell flights, so court administrators deliberately over-list trials. They do this in the realisation that half the trials listed on any particular day won't go ahead. This invariably results in the situation where there are four two-hour trials ready to go, with four sets of advocates and witnesses poised ready for action, but there is only time for two of them to actually go ahead.

The witnesses for the two trials that cannot now go ahead are surplus to requirements so are sent away, having probably already waited around for 2 or 3 hours, with a kindly word for their public spiritedness and in the hope that they will return when their trial is relisted six weeks further down the line. Of course some of them won't bother to return, having wasted their time on the first occasion.

Cracked trials:
Trials are also ineffective when they crack. Cracked trials are those listed to go ahead on a particular day, which don't go ahead due to a last minute action on the part of the prosecution or defence. Cracked trials account for another third of ineffective trials at the Magistrates' Court.

In my experience cracked trials usually arise in two situations:
  • When a key prosecution witness fails to attend: This means the prosecution is unable to offer sufficient evidence to prove its case. In these circumstances the court will usually call the case on, but the prosecutor will immediately rise to their feet and formally offer no evidence. This results in the court dismissing the charge against the defendant.
  • When the defendant changes their plea to guilty on the day of trial: Having had considerable time for reflection, the defendant might plead to the original charge or an alternative (invariably lesser) charge offered by the prosecution.
I find the non-attendance of prosecution witnesses particularly irksome when the witnesses in question are police officers or staff. Two such historical cases spring to mind, which still niggle at me despite the passage of time.

In the first case a defendant was charged with using his mobile phone whilst driving. The trial had been listed on a previous occasion, but had been adjourned in the interests of justice when the CPS failed to realise that the police officer witness was on leave that day. Come the second trial the CPS prosecutor reported that the police officer witness was again unavailable as he was on a rest day. The prosecutor then shamelessly asked for a further adjournment, despite the unrepresented defendant being present and ready to contest the charge for a second time.

The legal advisor asked the defendant his thoughts on a further adjournment. The defendant was clearly bemused by the situation, but adamant that he wanted to get matters dealt with once and for all. There was no way that we were going to entertain the idea of a further adjournment, so the prosecutor sheepishly acknowledged that he could offer no evidence. The charge was duly dismissed.

I seem to recall that we were all fizzing at the CPS's lacklustre performance that day, but the chairman somehow resisted the urge to tear a strip off the prosecutor.

The second case involved the theft of a lawnmower. The prosecution case hinged entirely on the account of a PCSO, who claimed to have witnessed the defendant removing the lawnmower from a residential garden. The PCSO had had previous dealings with the defendant, so was confident of his identity.

Come the day of trial the prosecutor rose and informed us that the PCSO was unavailable, as he was on a rest day. The defence advocate responded that it was entirely the CPS's fault that the PCSO hadn't been correctly warned and his rest days had been muddled up. He pointed out that had the defendant failed to appear, the CPS would have happily ploughed on with the trial regardless and probably laid Bail Act charges to boot. To compound matters, the police had been dragging their heels and the offence was already a year old by the time it got to trial.

Given the circumstances, we were minded to agree with the defence perspective. The prosecutor could offer no evidence, so the charge was dismissed. I dread to think the opinion the owner of the lawnmower will have formed of the justice system.

In the case of trials cracking with a change of plea, in the twenty-first century it is ludicrous that last minute horse trading happens on the day of trial. By that stage both parties have had ample time to mull over the evidence and consider their respective positions. There is absolutely no need to drag witnesses many miles to court, build up their apprehensions about standing in the box and then send them away unused. I'm sure nearly every change of plea, bar those of unrepresented defendants, could be dealt with administratively in advance of the trial date.

This may well become a regular series, so stay tuned for further frustrations of being a Magistrate in the future!

Sunday, 15 September 2019

Newton Hearings

Occasionally a defendant admits they have committed an offence, but on a different basis to the facts put by the prosecution.

A Newton hearing is needed to determine the facts if the defence and prosecution version of events are at odds with each other and the sentence imposed would be materially different if the court accepted one version of events in favour of the other.

Perhaps this is best illustrated by reference to an example.

Suppose a defendant has admitted a charge of common assault, but denies the prosecution version of events.

The prosecution version:
The victim in the case, who was stood talking to a man outside a city centre gay bar, was repeatedly punched about the head and upper body in an attack lasting around one minute. The defendant, who has a previous conviction for a homophobic assault from a year earlier, deliberately targeted the victim on the basis of his presumed sexual orientation. It was an unprovoked assault and the victim sustained a black eye and bruising to his chest as a result. The victim had popped outside the bar to have a cigarette on the pavement and was passing the time of day with another smoker.

The defence version:
The defendant, who is not local to the area of the offence, just happened to be passing the bar when he heard the victim shout something in his direction and stick his fingers up. The defendant, who was in a poor frame of mind having received bad news earlier that day, saw red and lashed out at the victim. He admits hitting the victim around the head and upper body, but denies it lasted for more than a few seconds. He claims to have landed only a couple of blows, but accepts the injuries the victim sustained as a result of the assault. As he was not local to the area, the defendant claims he had no idea the offence took place outside a gay bar. That being the case, he had no idea that the victim might be gay.

Referring to the Sentencing Guidelines, it would appear that prosecution version of events would suggest a category 1 offence (greater harm, higher culpability).

Arguably the offence is one of greater harm because the bench might consider one minute, in the context of the offence, to be quite a sustained period of time when punches are raining down on the victim. The offence is one of higher culpability if the bench accepts the prosecution claim that it was motivated by the victim's presumed sexual orientation.

The defence version of events would suggest a category 2 offence at most (greater harm, lower culpability).

The bench might still be inclined to consider the offence a repeated assault, given the defendant's admission that he landed more than one blow on the victim. If the bench accepts the defence account that it was a chance encounter, with some provocation, no premeditation and no homophobic element then it would likely consider it a lower culpability offence.

If the bench sentences on the basis of a category 1 offence then all options, up to including custody, are available to it. If it sentences on the basis of a category 2 offence then it is likely to fall within the community band.

Such a material difference in sentencing outcomes would suggest the need for a Newton hearing to determine which of the differing accounts should be considered for sentencing.

Saturday, 14 September 2019

Neglectful Northumberland Dog Breeder Jailed

A neglectful dog breeder has been jailed after RSPCA inspectors found dozens of animals at her home in a terrible state.

Lynn Stoker, 62, of Raw House Farm, Byrness, Northumberland had vehemently denied the commission of sixteen offences under the Animal Welfare Act 2006, but was convicted at trial on 15th August 2019. The maximum penalty for these summary offences is 26 weeks in custody and/or an unlimited fine.

Stoker was convicted of eleven offences contrary to section 4 of the Act (causing or allowing the unnecessary suffering of an animal) and five offences contrary to section 9 of the Act (failing to ensure the welfare of an animal).

During the trial District Judge Bernard Begley, sitting at South East Northumberland Magistrates' Court in Bedlington, heard that Stoker bred far more dogs than she was able to sell, house or address the welfare needs of.

Stoker initially sought the help of the RSPCA in rehoming some of her animals, but when relations turned sour the animal welfare charity obtained a warrant under section 23 of the Act allowing them to enter Raw House Farm and gather evidence against her.

The court heard that inspectors found 113 dogs, two cats and three tortoises at the isolated property. Many of he dogs were packed into overcrowded cages, the floors of which were soaked in urine. Three dogs had fractured jaws, as a result of severe dental disease and having been crammed so tightly into cages. Many had chronic health problems, which had gone untreated for months or even years. There was also insufficient clean drinking water.

Prosecutor Stewart Haywood told the court that many of the animals were "at an advanced stage of suffering".

He added that Stoker had failed to co-operate with RSPCA, accusing the charity of a "conspiracy" to remove her dogs and sell them on at a profit for themselves.

Throughout the trial Stoker, who had been a dog breeder for 25 years, denied that any of the animals were in bad health at the time they were seized by the RSPCA. She maintained that she had a strict daily regime of looking after the needs of the animals.

At last Thursday's sentencing hearing Paul Blanchard, mitigating, told Judge Begley: "It's fair to say circumstances had got beyond my client.

"She has the traits of a hoarder, which is a personality disorder. This wasn't a deliberate act, it's a reckless act.

"She was not dealing with matters as she could have done, she closed her eyes to the reality of the situation."

Judge Begley, passing sentence, said: "The report I've read shows a repetition of the assertions made by you during the trial of a lack of any fault, the conspiracy of others and, somewhat predictably, not a shred of remorse.

He added: "I really can't find any redeeming features in your case."

Stoker was sentenced to 21 weeks immediate custody.

She was ordered to pay £50,000 towards the RSPCA's prosecution costs and an order was made banning her from breeding or keeping animals for at least 15 years.

Monday, 9 September 2019

Magistrates' Allowances and Expenses

Magistrates volunteer their time to perform their judicial duties, but the system recognises that they should not be left out of pocket for doing so.

To that end they are able to claim several different types of allowance to cover any expenses incurred as a direct result of their duties as a Magistrate.

There are three main types of allowance payable:
  • Financial Loss Allowance;
  • Travelling Allowance (which includes Motor Vehicle Allowance);
  • Subsistence Allowance.
These can be claimed whenever a Magistrate attends a qualifying judicial duty.

You can view the current rates of these allowances here.

Qualifying judicial duties:
The following count as qualifying judicial duties, for which allowances are payable:
  • Sittings in the Magistrates' Court;
  • Training sessions and training courses;
  • Attendance at meetings necessary for the proper function of the Bench;
  • Attendance at formal committees to which Magistrates are elected or requested to attend as part of their judicial duties;
  • Attendance of the Chairman of the Bench (or nominated Magistrates) at functions in a formal or official capacity, including pastoral visits;
  • Attendance at meetings with other agencies or institutions, as approved by the Chairman of the Bench or HMCTS;
  • Attending special occasions (e.g. the swearing in of new Magistrates, the attestation of police officers), as approved by the Chairman of the Bench or HMCTS;
  • Attending the service and opening of the legal year;
  • Making telephone calls, postage, faxing, printing and photocopying in connection with judicial duties.
Financial Loss Allowance:
Financial Loss Allowance is payable when a Magistrate provides evidence as part of the annual declaration process that they personally have incurred additional costs or experienced loss of earnings as a result of performing their judicial duties.

The maximum amount that can be claimed by self-employed Magistrates is greater than for those in employment. This is because self-employed Magistrates are responsible for paying their own income tax, whereas those in employment have had income tax deducted at source.

Travelling Allowance:
Travelling Allowance is payable when a Magistrate has incurred additional costs travelling to perform their judicial duties.

Travelling Allowance includes the following:
  • Motor Vehicle Allowance: This is to reimburse the Magistrate for the costs incurred using their private motor vehicle (or motorcycle) for travelling from either their home or work address to their place of judicial duty. The amount that can be claimed is based on the engine capacity of the vehicle and the mileage travelled. An additional amount can be claimed for up to a maximum of four passengers, who would have been entitled to claim the allowance in their own right. Tolls and parking fees (if there is no HMCTS parking provision) can also be claimed.
  • Public Transport Allowance: This is to reimburse the Magistrate for the costs incurred using public transport for travelling from either their home or work address to their place of judicial duty. Magistrates can claim the lowest standard class fare available at the time of travel.
  • Taxi Allowance: In exceptional circumstances, in a case of urgency or when no public transport is reasonably available, a Magistrate may claim for the reimbursement of taxi fares and a reasonable gratuity.
  • Bicycle Allowance: Magistrates can claim a fixed rate when using a bicycle for conveyance between their home or work address and place of judicial duty.
  • Air Travel Allowance: Magistrates may claim the cost of any air fares incurred as a result of performing their judicial duties. The amount that may be claimed is the lesser of either the actual expenditure incurred or the lowest standard rate fare available. Magistrates should seek approval prior to booking a flight.
HMCTS requires that copies of tickets and receipts are retained for audit purposes for a period of 3 years.

Subsistence Allowance:
Subsistence Allowance is payable when a Magistrate has personally incurred expense on subsistence for the purposes of enabling them to perform their judicial duties. The allowance is paid at a fixed rate based on the length of time a Magistrate is absent from their home or place of work, irrespective of the actual amount spent on subsistence.

The attendance of Magistrates and duration of their judicial duties is verified using the online Magistrates' Rota application and local records.

There is normally no need for the Magistrate to retain or submit receipts for subsistence, as it can be reasonably assumed that subsistence expenses would be incurred for all but the briefest of judicial duties.

Claiming Allowances:
Magistrates are encouraged to submit their claims on a regular basis. These can either be in paper or electronic format via their eJudiciary email account. The Judicial Expenses Account Number (JEAN) is now obsolete. Magistrates are now uniquely identified by their eJudiciary email address.

Payment of Allowances:
Payments are now processed on a weekly basis, so no-one should have to wait longer than 10 or so days for payment (assuming their claim was in order). Payment is made by BACS to a UK bank or building society account.