Memorandum submitted by the Magistrates'
Association
EVIDENCE TO JUSTICE SELECT COMMITTEE INQUIRY
ON THE WORK OF THE CPS
The Magistrates' Association represents some
28,000 magistrates sitting throughout England and Wales.
Magistrates encounter CPS prosecutors whenever
they are sitting in a criminal court. There are three types of
prosecutors, salaried CPS lawyers, salaried associate prosecutors
(formerly known as designated case workers), and agency staff
who may be Counsel.
We welcome the opportunity to contribute to
the Justice Committee inquiry and wish to comment on the following
matters:
— Prosecutors as sentencers.
— The effect of any upturn in crime during
a recession.
ASSOCIATE PROSECUTORS
The Association has met with CPS staff to discuss
the pilot programmes currently underway whereby Associate Prosecutors
may take responsibility for conducting trials in non custodial
matters. We await the results. Although not enthusiastic about
the extension of the powers granted to Associate Prosecutors during
2008 following the passage of the Criminal Justice & Immigration
Act, the Association welcomes the need for professional registration
through ILEX and the setting of minimum standards of fitness that
will result. With adequate training and selection, Associate Prosecutors
should be able to provide a satisfactory level of service to the
courts in their role as prosecutors as some have already been
doing for many years in their former role as dedicated case workers.
However, we remain anxious about the deployment
of Associate Prosecutors in the smaller courthouses where they
may not always be able to provide a full service to the court,
particularly if unexpected matters arise, such as prisoners in
custody. We are also concerned that if legal advisers are withdrawn
from courts where District Judges (MC) are presiding there would
be no fully qualified lawyer present in the courtroom in the event
of a defendant being unrepresented.
USE OF
AGENCY STAFF
Our members generally report few issues with
salaried prosecutors, although magistrates often report that agency
staff, including counsel, have not been briefed in sufficient
time to allow a trial to commence on time. This wastes both court
time and that of defence advocates if the prosecution requests
an initial adjournment. However, it can also lead to situations
where the matter is decided without the trial proceeding. Those
of our members who sit in the smaller courthouses that are closer
to their communities often find there is no other work that can
be transferred into the court that the agency staff can undertake,
thus wasting court time. Although the use of agency staff has
been declining we have heard of some recent increases in their
use. If this is for budgetary reasons, such as a freeze on filling
vacancies, then this can be a short-sighted policy, and the Committee
may wish to investigate whether our concerns are justified.
PROSECUTORS AS
SENTENCERS
With the introduction of Conditional Cautions,
the CPS has taken on the role of sentencers. Whilst the Association
accepts the use of fixed penalty and penalty notices for disorder
or minor offences, where all who accept them receive the same
punishment, it has always believed that where a choice of sentence
has to be made, that is a judicial decision and not one that should
be reserved to an arm of the executive. To do so fundamentally
blurs the boundary between the role of the courts and the role
of the prosecutor in our adversarial system of justice. Conditional
Cautions are an example of the triumph of pragmatism over principle.
A court conducts its matters in the open where justice can be
seen to be done by victims, witnesses and the public, as opposed
to a Conditional Caution which is NOT administered in public.
In addition there is no appeal mechanism. We have been told that
38% of those that fail to comply with the conditions of a Conditional
Caution are not then taken to court and the matter is just dropped.
This means that although the offence might be recorded as one
that has been brought to justice, the offender remains unpunished.
We note that disquiet about Conditional Cautions was expressed
by one of your academic witnesses in the oral evidence session
of the 20th January. He suggested the change had largely occurred
unnoticed: magistrates have noticed and we have opposed it for
the reasons given above.
UNDERCHARGING
Although this is difficult to detect, our members
have been highlighting examples of cases brought into court where
the magistrates felt the matter had been undercharged. In one
area it has been reported that it is the POA s4 and s5 charges
and s39 /s47 assaults which give the most cause for concern in
undercharging. The charging criteria for s39 are wide and it might
be helpful if they were more fully known. Some examples of perceived
undercharging are included in the attached paper. We do not know
whether this represents a back door attempt to introduce a plea
bargaining system into our courts or whether these are isolated
examples from inexperienced prosecutors. We note that the CPS
maintains a high level of success in its prosecutions. During
October 2008, their overall success rate nationally was 86.5%
of prosecutions: for our courts, the percentage in some offence
groups such as motoring offences was higher at 90% and 93% for
theft and handling offences.
THE EFFECT
OF ANY
UPTURN IN
CRIME DURING
A RECESSION
We note from a partial analysis of prosecutions
that in some areas the CPS was recording an increase in the number
of defendants prosecuted during October 2008 (the latest month
for which data has been published) when compared with October
2007. In the Metropolitan and City area of London, the number
of defendants prosecuted in October 2007 was 11,646 compared with
13,100 in October 2008. Even allowing for trials with multiple
defendants and differing lengths of trials and number of guilty
pleas, this almost certainly represents an upturn in work. We
are anxious that, if crime increases during the current recession,
the provision of speedy justice in our courts gained through the
introduction of CJSSS (Criminal Justice Simple Speedy Summary)
and the Persistent Young Offender project are not eroded due to
a shortage of funds for prosecutors. In passing, we would note
that it is not only funding for prosecutors that will be needed
if there is an upturn in crime, HMCS who operate the courts and
the legal aid budget are also likely to be affected, as is the
NOMS budget.
CONCLUSION
The CPS generally conduct cases in a professional
manner in our courts and individual prosecutors have taken on
board the changes brought about by CJSSS. We are aware that they
may more frequently be confronted by unrepresented defendants
and that in those circumstances they do their best to assist the
smooth running of the court. We do wish to ensure that, if crime
increases during the recession, the CPS are adequately funded
to cope with any extra work without affecting the gains resulting
from CJSSS.
February 2009
APPENDIX 1
EVIDENCE SESSION OF COMMITTEE 20 JANUARY
2009
The following question was asked of a witness:
Q32 Mr Tyrie: You are a recorder. Is it not
correct that generally recorders process these cases much faster
than magistrates? Certainly, the figures for London support that.
But the appeal rate and successful overturning of recorders' decisions
is lower.
Nicola Padfield: I think you are talking about
district judges' magistrates court, in old language the stipendiary
magistrates. The stipes definitely have the reputation you say.
I am a recorder and a recorder is a part-time circuit judge in
the crown court and is a rather different animal, if I may put
it that way.
Q33 Mr Tyrie: But the point I make stands, does
it not? On the whole, the amateurs end up making more mistakes
than the professionals?
Nicola Padfield: I would need to look that up
to know whether that is correct. Certainly, the district judges'
courts tend to be much faster. Whether or not there are fewer
appeals I cannot tell you off the top of my head.
NOTE FOR
COMMITTEE
Justices of the Peace are amateurs only in respect
of the fact that they are not paid. They receive considerable
training for their role in court and probably sentence more cases
that any other level of the judiciary, including District Judges
(Magistrates' Courts) who often sit on trials lasting several
days. It is not unusual for a bench of three magistrates to sentence
15-20 cases within a three hour period. Remarkably few appeals
from Magistrates' Courts take place in the Crown Court and the
breakdown between those from decisions of magistrates and DJs(MC)
is not published. The Committee could ask the Ministry of Justice
if it collects the figures.
APPENDIX 2
EXAMPLES OF UNDERCHARGING FROM MAGISTRATES
ON NON-METROPOLITAN BENCHES ACROSS THE COUNTRY
1. A two-day trial where the defendant was
charged with three counts of harassment (without violence) S.2
over a six-month period. The three charges were against three
different people—the grandparents and mother of the defendant's
girlfriend.
It was clear to us that at least two of the
charges should have been S 4.
The grandparents, mature, solid citizens, were
clearly terrified of the defendant and his behaviour to them and
their family over a long period. The grandfather slept in his
clothes, their house has been fortified with alarms and the post
box blocked up so nothing could be put through it.
Examples of defendant's behaviour, which have
to be put in context of two days of evidence of his behaviour:
(a) He had rung them in Spain to ask the grandfather
if he had a petrol can. They came home to find a bedroom window
broken and a petrol can in their garden. The defendant's gloves
were found in the road but no evidence was offered by the CPS
as to any link between the defendant and the can. It turned out
that there had been an incident while they were away with the
mother taking her daughter and grandchildren away from the home
as they were scared of the defendant. Was this his reaction to
this?
(b) In a separate incident the granddaughter
was taken for safety by the mother to a flat in Stevenage. I can't
remember all the ins and outs of it now, however it ended up with
the grandparents coming to pick them up and the defendant arriving
at approximately the same time. The defendant threatened the grandparents
and mother with language that to us would have put the bench in
fear of violence had it happened to us.
The situation was so bad that in the long run
the grandfather left home and his marriage of 50-ish years. The
grandparents are now reconciled but they no longer see their granddaughter
or great grandchildren as the defendant has banned it.
This was a very serious case with a defendant
who I felt was a truly evil manipulative man. Unfortunately as
he was charged with S.2 it was summary only we could not give
him more than six months and he had been on remand for approximately
11 weeks. We tried to get him on a probation order but he couldn't
be bothered to turn up for the report (even though he was in prison
and probation had booked the video link) so we had no choice than
to give him custody. As he had been on remand for such a long
time he effectively got approx an additional two weeks in custody
for his offences and for putting three people through the hell
of a trial.
2. In a television programme where a cameraman
accompanies police on the beat, a motorway patrol gave a "warning"
on three separate occasions when they stopped vehicles travelling
at over 100 mph.
On one of the occasions the officer told the
young woman (who had only just passed her test) recorded travelling
at 103 mph that if he sent her to the magistrates court she would
lose her licence and perhaps be sent to prison, but as he did
not feel that appropriate he would just give her a warning on
this occasion.
In a similar programme, one patrol officer gave
a fixed penalty of £60 and three points to a driver recorded
travelling at 68 mph in a 40 mph zone.
In others I have seen clear cases of persons
guilty of GBH (with photographic evidence) being released without
charge and persons being in possession of class A drugs being
issued with a "street caution".
I watch a number of these programmes and what
the police dole out to offenders is nothing short of alarming,
making a mockery of our judicial system and of our Sentencing
Guidelines which are provided primarily to ensure fairness and
equality throughout the country.
3. It is my perception that under-charging
is standard practice in my county. In fact it is very rare to
see charges of ABH and my guess is that they are reserved for
cases where injury is sufficiently serious to require hospital
treatment, ie broken bones. It is extremely common to see photographs
of bruises, scratches etc in cases of Common Assault and I have
asked legal advisers why the higher charge has not been brought.
4. Just last week a public order offence
which was contested became the lesser one (S.4 to S.5)—it
was spitting at a policeman and resisting. I have seen a number
of these occur in the courtroom, it is the norm.
5. I sat in the Crown Court with Judge X
on an appeal against sentence for two accounts of common assault.
The defendant had pleaded guilty in the lower court to two charges
of common assault and given six months custody. He appealed saying
he did not get any discount for his guilty plea. At the time,
the lower court had been given the advice that as there were two
charges they could give two lots of six months custody so they
had in fact given him a discount. However, the law had changed
and now for this summary only offence, you can only give a maximum
of six months custody irrespective of how many charges are bought
on the same day. This particular case was quite appalling. A young,
fit guy had gone round to his Grandmother's flat and intimidated
and assaulted her. He had tipped her off a sofa on to the floor
bruising her face. The next day he had returned to her flat this
time with his father (ie her son) and this time the two of them
had assaulted and intimidated her again tipping her off the sofa
and bruising her. This was a most appalling crime with many aggravating
features not least of all it being domestic violence on a vulnerable
person. In terms of level of seriousness the Judge, myself and
the other magistrate were adamant that it deserved a year's imprisonment
with a reduction for guilty plea. We were then totally appalled
to find that we could a) only give a total of six month's custody
even though there were two charges and b) we were obliged to give
a discount off the six months for the guilty plea. His appeal
was allowed and six months was reduced to four months.
I am not only frustrated by the law as it stands
but by the CPS as well. I expect it was a plea bargain (though
I do not know that for a fact but it was the opinion of the judge
as well at the time). So by agreeing to plead guilty to the lesser
charge he saves the public purse. But in a case like this is that
justice? I certainly do not think so. Surely each case of common
assault should carry a maximum six months custody. Especially
where a higher charge could have been bought, as in this case
as the victim was injured as a result of the assault and ABH would
have been made out.
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