Back to School: Magistrates in the Community Visit

It was my absolute pleasure to return to school for a recent Magistrates in the Community visit.

One of my friends is a teacher at the aforementioned school and every year she has the job of getting its Magistrates' Court Mock Trial Competition team whipped into shape. She asked if I would mind visiting one day and I was more than happy to oblige, having checked beforehand with my Bench Chair and Senior Legal Manager (People).

Every year the Citizenship Foundation runs the Magistrates' Court Mock Trial Competition for school pupils aged 12 to 14. There is also a Bar Mock Trial Competition aimed at 15 to 18 year olds. There are regional heats across England and Wales, with the teams being whittled down to an eventual winner.

In the school I visited, the pupils taking part in the competition are 12 and 13 year olds. Over the last few months they have been getting to grips with a fictional case study involving a defendant accused of harassment. My brief was to answer any questions they had about the Magistrates' Court in general and the structure of a trial in particular.

I began by explaining a little bit about the role of the Magistrates' Court, how it was organised and the types of cases it deals with. The audience nodded intently, so I get the impression my friend had done a good job of setting the scene.

I then answered questions along the lines of "have you had any celebrities in court?", "what was the most memorable case you dealt with?", "if you get a speeding ticket will that show on your criminal record?", "where does all the fine money go to?" and that sort of thing.

One of the girls put forward a very good question: "What do you think when you read about cases you have dealt with in the newspaper?". I replied that I am sometimes disappointed that cases are reported with a particular slant instead of giving a complete and balanced picture. I also said that I avoid the comments at the bottom of these articles like the plague!

The inevitable question then arose: "So how many people end up getting sent to prison?". I could see the audience was shocked when I replied "very few". I went on to explain that prison was only an option for certain offences and that it was reserved for those cases that were very, very serious or where all else had failed.

Following up on that question, my friend asked me: "So don't you feel under any pressure to send people to prison? Aren't you concerned about the public perception that the system is a bit soft?". I replied that the court's sentencing decisions are informed by guidelines and the circumstances before it. They are not informed by political or public opinion. For all prison serves as a punishment and deterrent, it does not always address the wider purposes of sentencing - particularly when the sentences imposed by the Magistrates' Court tend to be quite short anyway.

The actual competition would usually be held in a real Magistrates' Court, but apparently it is going to be done via Microsoft Teams this year. This is a bit of a shame, because the competitors always like a bit of a look behind the scenes in the courtroom.

I really enjoyed my visit and appreciated the receptiveness of the audience. I wish them to best of success in the competition.

Creepy Newcastle Stalker Intercepted Neighbours' Mail and Photographed them Sunbathing

A Newcastle man conducted a year-long stalking campaign against his neighbours.

David Whinham, 45, of Victoria Square, Sandyford, Newcastle, admitted one charge of stalking when he appeared at Newcastle Magistrates' Court last week.

Stalking is an offence under section 2A of the Protection from Harassment Act 1997. It has a maximum penalty of 26 weeks' custody on summary conviction. The legislation describes the elements of the offence and gives some examples of conduct that might amount to stalking, although it is ultimately a decision for the court.

The court heard that the offence took place between August 2020 and August 2021.

Whinham, a keen photographer, regularly took images of his neighbours going about their daily routines. He also made a number of unfounded, malicious allegations against them.

James Long, prosecuting, outlined the circumstances: "Both parties live in a multi-storey block of flats, which is managed by Places for People.

"Since August 2020, [the complainants] have suffered a period of substantial harassment from this defendant and another. There are various strands to it.

"The defendant has, principally, been making unfounded complaints to their landlords and the police about alleged behaviour and noise coming from the complainants' flat, all of which were found to be without merit.

"[The complainants] had 27 visits from the police at all times of the day and night. In all the times police attended, nothing untoward has been found.

"For example, there were complaints made that the complainants were singing on a karaoke machine - they don't have a karaoke machine."

The court heard that Whinham had also intercepted and opened the couple's mail and made false allegations to financial companies that had impacted on the male complainant's PIP claim.

Mr Long continued: "The defendant has also been taking photos of the complainants for no reason when they were sunbathing or walking hand-in-hand down the street.

"It's apparent this has had a significant impact on the complainants, which is why it has been charged as stalking."

The complainants said that they were "worried, stressed and anxious", felt they couldn't live their normal life and were sick of constantly walking on eggshells.

In a victim personal statement, the male complainant said: "I have been diagnosed with severe stress and anxiety and put on medication, all because of what we have been put through."

Tim Gregory, mitigating, said that in his client's opinion not all of the complaints to the police were fictitious.

He said: "There was some genuineness about his approach at first, he just took it too far.

"The main allegation against Mr Whinham was the interception of the post.

"Lockdown didn't help and he felt trapped in his accommodation and had time on his hands."

District Judge Zoe Passfield, sentencing, said: "You opened someone else's post and your actions have had a serious effect on the complainants over the period of a year."

Whinham was made subject to a 12 month community order, although the requirements have not been reported by the Newcastle Chronicle.

He was also ordered to pay £100 compensation to each complainant, £95 surcharge and £85 towards prosecution costs.

There is also mention of a 12 month restraining order.

Cheshire Thief Loses His Driving Licence

A Cheshire man has been banned from the roads after stealing £500 from the seller of a television set.

Edward Stokes, 20, of Kettell Avenue, Crewe, admitted at charge of theft when he appeared at Chester Magistrates' Court via videolink on Friday, 21st January 2022.

Theft is an either way offence contrary to section 1 of the Theft Act 1968. The maximum penalty for theft is 7 years in custody. We have previously written an article on the legalities surrounding theft.

District Judge Nick Sanders heard that Stokes had responded to an advert placed on Facebook Marketplace by Chester man Callum Barlow.

Stokes got in touch with Mr Barlow to arrange the purchase of a 55-inch Hisense Smart TV. Giving the false name of "Sam Cox", Stokes agreed to pay £500 for the TV and arranged to collect it from Mr Barlow's home address on Wednesday, 17th February 2021.

On that day Stokes arrived in a Ford Transit with another man. Mr Barlow confirmed his banking details and Stokes purported to send the £500 payment by bank transfer. He showed Mr Barlow an image on his mobile phone that appeared to confirm that the funds had been transferred.

Mr Barlow had earlier obtained the mobile phone number of Stokes and checked that it worked, just in case there were any problems with the transaction.

Later on Mr Barlow noticed that the funds had not actually been received in his bank account. He sent two text messages to Stokes to chase up the payment, but he received no response.

A few days later, on 27th February 2021, Mr Barlow reported the matter to the police. A police officer successfully contacted "Sam Cox" by mobile phone. Investigations revealed Stokes' true identity and he was subsequently identified by Mr Barlow.

Stuart Flood, mitigating, highlighted that his client had entered a timely guilty plea. Mr Flood said that his client had since disposed of the TV set and did not know where it was.

DJ Sanders, sentencing, said: "It was a nasty thing to do. People like to trust other people when they put things on Facebook Marketplace, or eBay."

Stokes was sentenced to 12 month community order with 16 weeks' electronically monitored curfew requirement.

He was also ordered to pay £500 compensation to Mr Barlow.

Exercising the court's powers under section 163 of the Sentencing Act 2020, the Judge also imposed a 6 month driving disqualification.

Under this very useful (but rarely used) legislation the court can impose a driving disqualification on an offender convicted of any other offence.

Stokes was a man with no previous convictions, but this offence was particularly scheming and dishonest. There was also a degree of planning and attempts by Stokes to cover his tracks. There is little doubt DJ Sanders shares that opinion given the sentence imposed.

Traffic Cone Prank Lands Powys Man in Court

A Powys man ended up in court after police took umbrage at a prank with a traffic cone.

Cameron Townsend, 22, of Lon Derw, Newtown, admitted a charge of criminal damage when he appeared at Welshpool Magistrates' Court last week.

Criminal damage is an offence under section 1(1) of the Criminal Damage Act 1971. Criminal damage below £5,000 is a summary offence, with a maximum penalty of 3 months' custody and/or a fine at level 4. We have previously written a guide to the offence of criminal damage, which some readers may find of interest.

Magistrates heard that the offence took place on Wednesday, 18th August 2021, when Townsend placed a traffic cone on top of a police car parked outside Newtown Police Station.

Owain Jones, mitigating, said: "I don't know why an Adult Community Resolution was not given by the police. His phone had been taken by the police for an investigation. I hope that wasn't the reason why. He was convicted for communication with police, again with his protest.

"I would ask in light of that you consider an absolute discharge."

Townsend is currently subject to an 18 month community order in relation to a communications offence. Probation officer Julian Davies described his compliance with the order as "faultless".

Presiding Justice Cynthia McVey praised Townsend for his engagement with the order.

Sentencing, she said: "Although you are guilty, we do not think you need to be punished further because of your behaviour. However, a record of this conviction will be on your criminal record."

Mrs McVey added: "Probation can make a difference to your life, and its looks like it's going way."

No award for compensation was made, as no cost was given for making good the damage to the police car in question.

Oh dear. Another one of these cases where a bit of police discretion and common sense might have been more appropriate given the circumstances.

Increase in Magistrates' Court Sentencing Powers

The Government has announced plans to increase the sentencing powers of the Magistrates' Court.

Section 154 of the Criminal Justice Act 2003 provides for the ordinary maximum custodial sentence that could be imposed by the Magistrates' Court to be increased to 12 months for a single either way offence. Despite the passage of time, that particular aspect of the legislation has never been commenced.

The Lord Chancellor and Secretary of State for Justice, The Rt. Hon. Dominic Raab MP, has decided that now is the time to activate that particular provision, which can be done under his hand via a commencement order.

Before going any further, I should say that I personally am totally indifferent to the idea of greater sentencing powers. What the court has never had, it can never miss.

In my experience, the court imposes immediate custodial sentences very infrequently - and so it should, with custody being reserved for those offences that are "so serious" no other sentence is appropriate.

I forget the exact figure, but fewer than 5 percent of all cases before the court result in immediate custody. Of those that do, the overwhelming majority receive sentences far shorter than the 26 weeks available anyway. That being the case I do not expect the Magistrates' Court to be sending swathes of offenders to prison all of a sudden.

Of course the new powers will be a useful tool for sentencing those offenders right on the cusp having their case sent to the Crown Court for disposal, which is the Justice Secretary's main rationale for the decision - having the Magistrates' Court dispose of more cases, so that the workload of the Crown Court is eased slightly. It would also be fair to say that summary trial is far cheaper and speedier for all concerned, notwithstanding concerns in some quarters about the quality of justice delivered in the Magistrates' Court.

Announcing the decision, the Justice Secretary said: "This important measure will provide vital additional capacity to drive down the backlog of cases in the Crown Courts over the coming years.

"Together with the Nightingale Courts, digital hearings and unlimited sitting days, we will deliver swifter and more effective justice as we build back a stronger, safer and fairer society after the pandemic."

The Magistrates' Association has been campaigning for an increase in sentencing powers for many years. According to the MA around 40 percent of cases sent to the Crown Court for sentencing, result in a sentence being imposed that was within the powers of the Magistrates' Court in the first instance.

Bev Higgs, Chair of the MA, said: "We have been campaigning for years for Magistrates' sentencing powers to be extended to 12 months for single offences, so we are delighted with the Lord Chancellor's announcement today. It is absolutely the right time to re-align where cases are heard to ensure a safe, effective, and efficient justice system and this demonstrates great confidence in the Magistracy.

"Magistrates have been integral in keeping the justice system functioning during the Covid-19 pandemic and, by enabling them to hear more serious offences, this new provision will mean they can contribute to easing the pressure on the Crown Courts.

"I know our members and colleagues will take up this new level of responsibility with pride, professionalism, and integrity and will - as always - strive to deliver the highest quality of justice in their courts."

In its recent report "The Role of the Magistracy", the House of Commons Justice Committee echoed calls for an increase in the sentencing powers of the Magistrates' Court.

The report said: "We consider that short custodial sentences are less effective than community sentences, but in cases where custody is unavoidable we consider that Magistrates should have the power to impose custodial sentences of up to 12 months in cases that would otherwise be sent to the Crown Court for sentencing.

"As part of its review of sentencing, the Government should implement this measure, subject to establishing a positive evidential basis for doing this from a suitable modelling exercise on the effects of such a step."

The Lord Chief Justice, Lord Burnett of Maldon, has today sent an email to Magistrates' Court judiciary and staff saying the following: "Appropriate training will be provided to Magistrates and their Legal Advisers and to DJ(MCs) in advance of the commencement date.

"That training will be designed to ensure that those exercising, and advising on the exercise of those powers, are familiar with the relevant sentencing principles and guidelines to ensure that there is no sentencing inflation when compared with the current practice of the Crown Court."

Newcastle Driver in Police Pursuit Three Weeks After Disqualification for Dangerous Driving

A Newcastle man was involved in a police pursuit three weeks after being disqualified for dangerous driving.

Billy Galbraith, 29, of Ainslie Place, Blakelaw, admitted charges of dangerous driving, failing to stop for a police constable, driving whilst disqualified and driving without insurance when he appeared in custody at North Tyneside Magistrates' Court on Tuesday, 11th January 2022.

Dangerous driving is an offence under section 2 of the Road Traffic Act 1988. It has a maximum penalty of 2 years' custody and/or an unlimited fine on conviction on indictment; 6 months' custody and/or an unlimited fine on summary conviction.

The court heard that the unemployed father of two had been convicted of another offence of dangerous driving only a few weeks earlier.

In relation to the offence at hand, Galbraith was involved in a police pursuit through the streets of Newcastle on the evening of Sunday, 9th January 2022.

Sue Baker, prosecuting, outlined the circumstances: "He went through a red light and travelled between 40 mph and 50 mph in a built-up residential area, veering on to the pavement, and eventually crashing into a fence," Mrs Baker continued.

"He then ran off from the police but he's located hiding under a parked car.

"It's a relatively short pursuit but it's dark, in a residential area and he's gone through a red light. It involves driving on at least three roads.

"Mr Galbraith has also only just been convicted on dangerous driving and he's on a community order."

Jack Lovell, mitigating, said that his client had driven to seek supplies for family members who were isolating due to covid-19.

Mr Lovell added: "There was an unrelated incident taking place nearby and police saw Mr Galbraith in the car.

"They followed him and he panicked. He suffers with his mental health. He suffers with depression."

Having heard the facts, District Judge Kate Meek was of the opinion that the appropriate sentence for Galbraith's offences exceeded the powers available to the Magistrates' Court.

She said: "On 12th December 2021, you were convicted on dangerous driving and you were disqualified from driving.

"You, less than three weeks later, were driving while disqualified and driving dangerously and that dangerous driving arises out of your attempt to evade detection and arrest.

"There's no plausible or good reason as to why you were driving. I'm satisfied, if you wanted to drive again, you would.

"I'm satisfied there's a significant risk, if granted bail, you would re-offend and that presents a risk to the public."

Galbraith was remanded in custody until his sentencing hearing at Newcastle Crown Court on Tuesday, 8th February 2022.

I have to say that "collecting supplies for family members" is a pretty lame excuse for driving whilst disqualified, when the city is covered with bus routes and a supermarket is never more than a 15 minute walk away.

Lincolnshire Drink Driver Swerves Prison Despite Blowing Five Times the Limit

A Lincolnshire white van man has narrowly avoided a stint behind bars after being caught behind the wheel when almost five times the drink drive limit.

Lee James Ebbutt, 47, of Eastwood Road, Boston, admitted driving a motor vehicle when the amount of alcohol in his breath exceeded the prescribed limit when he appeared at York Magistrates' Court on Thursday, 6th January 2022.

This is an offence contrary to section 5(1) of the Road Traffic Act 1988 and has a maximum penalty of 26 weeks' custody and/or a fine at level 5 (unlimited) on summary conviction.

An excerpt from the relevant sentencing guideline appears below.

Magistrates heard that Ebbutt was driving his white Peugeot Boxer van on the A64 at Bilbrough, North Yorkshire, on Friday, 10th December 2021.

Several members of the public contacted the police to report concerns about the manner in which the vehicle was being driven.

The van was said to be swerving dangerously across the carriageway and at one point making contact with the central reservation. Concerned drivers put their hazard lights on to warn approaching traffic.

Officers intercepted the vehicle at a set of traffic lights. They approached and spoke to Ebbutt, who had an open bottle of whiskey resting on the passenger seat. He also had great difficulty getting out of the van and walking.

Suspecting Ebbutt was under the influence of alcohol, officers performed a roadside breath test. Ebbutt failed that test and was arrested and taken to York's Fulford Road Police Station, where he provided an evidential specimen containing 169 microgrammes of alcohol in 100 millilitres of breath - almost five times the prescribed limit of 35 microgrammes.

Unfortunately there does not appear to be any coverage of Ebbutt's version of events - in particular how he found himself of being in the position of driving when he was clearly unfit to do so. There are two sides to every story and it's a shame the local press has omitted that detail.

Having considered matters carefully, Magistrates were of the opinion that the offence was so serious that only a custodial sentence was appropriate. However, having listened to the circumstances of Ebbutt's situation, they decided a suspended sentence could be imposed.

Ebbutt was sentenced to 16 weeks' custody suspended for 18 months, with the requirements that he undertakes 20 days' rehabilitation activity and 200 hours' unpaid work.

He was also disqualified from driving for 3 years and ordered to pay £85 towards prosecution costs and £128 surcharge.

I think it's safe to assume that there must have been some compelling mitigation on Ebbutt's part, but sadly we don't know what it was.

Speaking after Ebbutt's conviction, North Yorkshire Police's Sgt Andy Morton said: "Those who get behind the wheel after drinking not only pose a severe risk to themselves, but endanger the lives of many other road users too.

"We would like to thank the fast acting members of the public who spotted Ebbutt, called the police and effectively set up a rolling roadblock to protect other drivers.

"If you see a vehicle you think could be being driven by someone under the influence of alcohol, or see someone about to drive after drinking, please call us on 999."

Newport Councillor Convicted of Kerb Crawling

A Newport councillor has been convicted of kerb crawling.

Christopher Paul Evans, 56, of Tregwilym Road, Rogerstone, Newport, admitted one charge of soliciting the sexual services of a prostitute when he appeared at Newport Magistrates' Court on Thursday, 6th January 2022.

Soliciting the sexual services of a prostitute is an offence under section 51A of the Sexual Offences Act 2003. The maximum penalty for this offence is a fine at level 3 (currently £1,000) on summary conviction.

Magistrates heard how "a moment of madness" has already cost Evans his job and will likely cost him his position on Newport City Council.

The offence took place on the night of Saturday, 22nd May 2021, when Evans was found in the company of the woman next to the Asda store in Pill.

A police officer had been chasing another man when he approached Evans' car.

Natasha Roberts, prosecuting, outlined the circumstances: "The officer was chasing after the man on foot.

"He entered West Market Street and continued to look for the man.

"When the officer was in the middle of the road, the defendant's (Evans') car passed him and pulled up on the side of the junction.

"The officer walked up to the vehicle to check if the wanted male had been seen by the driver.

"He recognised the driver as a local councillor, having been in meetings with him."

When asked why he was in the company of the woman, Evans said he was helping her as part of his role with the Wallich homelessness charity.

However, subsequent enquiries with the charity revealed that Evans had no such role. The woman later told police that Evans had been a "punter".

Rod Young, mitigating, said his client had described events as "a moment of madness".

"The defendant is a respected member of the community," Mr Young continued.

"He has helped prostitutes and the homeless in the Pill area which ironically is how he was known to the officer."

Mr Young added: "He concedes her services were discussed but there was no sexual relations between them and no money changed hands.

"If he were not a well-known face, he wouldn't be here today.

"If he had gone through with it, we will never know.

"He has lost his job as a senior advertising manager with Newsquest and is resigned to losing his position as a councillor."

The solicitor said that Evans had received many messages of support from members of the local community. He has been claiming Universal Credit since losing his job around two months ago.

"The defendant's mental health has suffered and he was close to a breakdown," said Mr Young.

"He's a man who has never behaved in this way before."

Shijil Miah, Presiding Justice, told Evans he had been be right admit the offence and "not waste court time".

Evans was handed a 12 month conditional discharge and ordered to pay £85 towards prosecution costs and £22 surcharge.

The Role of the Magistrates' Court Legal Advisor

For the Magistrates' Court to be correctly constituted the bench must include either a District Judge (Magistrates' Court) or at least two Magistrates.

As most Magistrates do not have any professional legal qualifications, it is a mandatory requirement that they sit with a professionally qualified Legal Advisor.

District Judges, as professionally qualified lawyers in their own right, are not required to sit with a Legal Advisor, although they sometimes do owing to local circumstances. The most common arrangement is for a District Judge to sit with a Court Associate, who has an administrative rather than an advisory role (and is paid half as much as a Legal Advisor). The Legal Advisor or Court Associate sits at a desk immediate in front of the bench.

In today's article we are going to explore the role of the Legal Advisor. The Legal Advisor is referred to in legislation as an Assistant to the Justices' Clerk. They are still informally referred to as the Clerk, particularly by longer standing Magistrates. The Legal Advisor is usually addressed in court by their title and name - e.g. Mr Brown or Mrs Smith. They are probably a very familiar face to the Magistrates and advocates present in court.

Just as the name suggests, the Legal Advisor is there to advise the Magistrates on points of law and procedure. They advise the Magistrates on the options that are legally available to them, but it is not the Legal Advisor's job to be making the decisions of the court in terms of verdict or sentencing. As one of my regular Legal Advisors often says: "I am here to give you advice, but it says Magistrates' Court above the door!"

That said, the Justices' Clerk (now called the Head of Legal Operations in HMCTS jargon) can grant Legal Advisors delegated authority that allows them to perform certain functions of the court by themself. A full list of these functions can be seen in the schedule of The Justices' Clerks Rules 2005.

The full duties of the Legal Advisor are outlined in The Criminal Procedure Rules. As a brief guide, the Legal Advisor would usually be responsible for:

• Giving the court legal and procedural advice. In the courtroom this advice is always given aloud, so that all parties can hear what is being said. If advice is given out of the courtroom - say in the retiring room - the Legal Advisor will always make sure the parties know any advice that has been given.
• Putting the charges to a defendant and taking a plea.
• Recording decisions made by the court and reasons for them.
• Assisting the court in the formulation of the reasons for its decision. The decision is entirely a matter for the Magistrates, but their reasons have to be clearly announced. Having heard the Magistrates' opinion, the Legal Advisor can advise on the wording etc.
• Drawing the court's attention to the allegation made against a defendant, the evidence that is agreed and the evidence that is in dispute between the parties.
• Recording the substance (not verbatim) of any oral evidence or representations made to the court.
• Providing assistance to unrepresented defendants.
• Assisting the court with robust and efficient case management.
• Listing cases before the court for subsequent hearings (e.g. after adjournment, for trial, for the purposes of case management).
• In the absence of the usher, administering the oath or affirmation to witnesses giving oral evidence to the court.
• Operating the equipment needed for the court to work remotely via videolink or telephone.
• When undertaking Single Justice Procedure work, ensuring that the court is aware of the full circumstances of the offence as outlined by the prosecution and any representations by the defendant.

The Legal Advisor has a professional advisory role, which is distinct from the decision making role of the Magistrates. The Magistrates are expected to carefully listen to and act upon the advice given by the Legal Advisor. They leave themselves wide open to criticism, disciplinary and legal repercussions if they do not.

In all but the most routine of circumstances (e.g. sentencing someone for being drunk and disorderly), it is always a good idea for the Magistrates to check the legality of their decisions with the Legal Advisor before they are announced in court. This reduces the possibility of any embarrassing mistakes being made.

I cannot speak highly enough about the Legal Advisors that I work with. They are exceptionally knowledgeable and expert in Magisterial law. They perform their duties cheerily, efficiently and with the utmost professionalism.

As the calendar has just rolled into 2022, let me take the opportunity to wish everyone a very happy, healthy and successful new year.