A couple of weeks ago, I went to my local court (in which I have never sat as a magistrate) as a McKenzie Friend..
An old friend of mine was arrested over Christmas and charged with drink-driving. So far, so bad, and he was anxious to plead guilty straight away, and take his punishment and ban. I went along just to be certain that he understood what was going on, and had the weird experience of standing next to him in the armoured-glass dock. The front of house court staff were very helpful and polite, and not at all fazed by my presence. The seats were hard but the coffee machine worked, and the ushers were on the ball, introducing the Duty Solicitor, who was also friendly and informative. The bench listened carefully to what my friend had to say, and he came across as sincere and frank. After he had said his piece (guilty plea, apologies, and so on) the bench went into a huddle and called up the legal adviser.
What the bench was considering was whether the circumstances of the offence might have allowed a Special Reasons argument. I could see their thought process, and then the chairman went on to explain the situation clearly. They put the case back, to allow time to consider, so in a quiet moment when the bench was out we approached the Clerk and said that we would like to give Special Reasons a run. We were give a date six weeks hence in another town, and my friend was bailed to then.
I can't go into any detail at this stage, but the bottom line is that the defendant has little to lose (apart from costs) and a lot to gain if he escapes a ban.
When booking the new date, the clerk checked that I understood the issues, which I did. The CPS prosecutor gave me a sideways look and said that one of his colleagues had recognised me from my home court, so yes I probably did understand..
Let's see how we get on.
it can be fascinating to be 'on the other side' as it were. A few years ago, I represented a family member on a driving without due care matter. As I happen to be a solicitor I was able to do the full advocacy although again it was a guilty plea for someone with an unblemished record for over 50 years!! I explained the likely penalty based on the sentencing guidlelines and was (I'm happy to say) spot on with the bench decision!! The case had of course been moved from my 'home court' where it should have been heard and the relative was grateful for my stunning advocacy (!!!). Having said that, it was my car that had been crashed!!!
ReplyDeleteGood on you.
ReplyDeleteIt seems to me far too many experienced drivers throw their hands up in a "It's a fair cop Gov! You got me bang to rights" attitude who would benefit from the judicial equivalent of a stern finger wagging. Those who managed to keep driving (with or without judicial approval) seem to get away with sticking up 2 fingers to the bench.
I'm surprised that the duty solicitor didn't suggest running a special reasons argument. There was a coffee machine available to the great unwashed? Not in my usual court house there isn't.
ReplyDeleteSince most JPs are still mentally acute when they retire at 70, perhaps their accumulated skills could be useful as Mckenzie Friends. There are some paid ones around but I can't imagine why one would pay an MF and not a solicitor for advice beforehand.
ReplyDeleteDon't know of any volunteer organisations than arrange this - perhaps there should be.
I have come across only one McKenzie friend in my 10-year career as a JP, and she supported the defendant well enough for the Prosecutor to decide to review the charges; we put it back and later that day the CPS withdrew them.
ReplyDeleteWhilst writing, there was a lot of huffing and puffing by 'The Times' on Monday (below) about changes 'this week' to allocation after Lord Leveson's report on reducing the number of cases being sent up to the Crown Court. I was in court the same day, and was told by our friendly legal adviser that it was unlikely to be effected until there had been magistrates' training, hopefully sometime this year...
TRIAL BY JURY SWITCHES TO MAGISTRATES
Frances Gibb, Legal Editor
Some 70,000 criminal cases that go to jury trial each year will be tried by magistrates under reforms taking effect from this week.
Efficiency reforms urge magistrates to keep trials for theft, assaults, burglary, and some driving offences in their courts unless there are exceptional reasons such as complexity.
The move was recommended by Sir Brian Leveson in his review of criminal proceedings and is expected to lead to swifter justice.
Sir Brian, president of the High Court’s Queen bench division, noted that jurors give up their time and are often concerned that it is wasted by trivial cases where the sum in question is “far exceeded by the cost to the public purse.”
The reform was adopted in the recent trial of Neil Fox, the disc jockey, who was cleared of ten charges of indecent and sexual assault against women and girls between 1988 and 2014. Howard Riddle, the chief magistrate, said that he was prepared to try the case rather than send it to the crown court.
Four fifths of trials that go up to the crown court but could be heard by magistrates involve sums below £200. The Magistrates’ Association estimates that it would save £30 million a year if even half the cases that go to jury trial were tried by them.
Training? What training? We already deal with venue in a whole host of cases. More training in this area we don't need.
DeleteTotally overlooks the fact that defendants choice overrides the bench's decision. But then there is a public outcry when anyone suggests removing the right to jury trial for minor offences.
DeleteI can't understand why, with your experience, you didn't advise your friend that he could make a case for Special Reasons! Had you done so, the case could surely have gone ahead that day.
ReplyDeleteNot that day, no. An adjournment would be inevitable, as witnesses and evidence would need to be sorted out.
DeleteNo doubt you knew in advance of the date of the hearing, so there would have been time to organise a defence of special reasons. Even a stand-down might have been sufficient instead of wasted court time.
DeleteOn the subject of "TRIAL BY JURY SWITCHES TO MAGISTRATES" the reform was a long time coming. I recall an editorial in The Magistrate 20 years ago arguing the case for making Theft cases below a certain value Summary only
ReplyDeleteArmoured-glass dock? Excuse me for the diversion, but can anyone explain the necessity? When were they introduced?
ReplyDeleteWe've had them in our two main Courtrooms for about 10 years. I think there were a few too many 'runners'. It was probably the easiest place from which a prisoner intent on escaping could make a dash. Glass was probably seen as less intimidating than bars.
DeleteIn my neck of the woods, we generally only have defendants who are produced already in custody in the glass dock. Others (the vast majority) sit at the back row of 3 benches otherwise used by advocates.
We would certainly not have put Bystander and his pal into the 'fishtank'. There are rights and wrongs to both approaches I suppose.
If a defendant is produced in custody it would be nice to think that they aren't likely to leg it from the court room. Being in an armoured glass dock should see to that.
DeleteFurther to Iudix Loci’s comment about use of the dock, the guidance from the Justices’ Clerks’ Society is clear – “Defendants appearing on bail or in answer to a summons should be placed outside the dock unless there is an appreciable risk of them causing disruption or becoming violent”. Bystander has kept quiet about the misbehaviour that led the court to believe he and his chum needed to be put in the dock, but I think we should be told.
DeleteThere seems to be a halfway house of putting defs in the secure dock but leaving the door open so they are not strictly speaking prisoners.
DeleteTo me, the glass does seem like a bit of a barrier to communication and 9 out of 10 defs are not in any danger of losing their liberty so seating them on the lawyer bench US style seems reasonable.
I did attend a High Court case with an unrepresented def and he just sat himself on the QCs' bench with various junior barristers for other defs behind him. No one said anything about it. Durng the case there was talk of "sequestration" of the defs by the government QC so loss of liberty was possible. The docks were used by the press.
I get it. People who turn up voluntarily at court, legging it? Or are you lawyers who are so useless that you can't spot a runner?
ReplyDeleteThere are other careers for crap lawyers.
The fact that someone turns up voluntarily at court, or more likely is doing so as they will be in breach of bail if they don't, doesn't mean that they are not going to be sent down. Far better they are in a secure dock when given a prison sentence than sitting in a court room and considering doing a runner. In my court the lawyers sit in front of the open dock so are in no position to spot a would be runner and the bench, even if it thinks someone will do a runner is in no position to stop them.
ReplyDeleteSo is the take-home message that a well-qualified Mackenzie friend will get a better deal for a defendant than one without such help ? Isn't that the thin end of the wedge of something ?
ReplyDeleteNot at all. An unrepresented defendant is inevitably at a disadvantage. A decent lawyer is the best bet, but a Mackenzie Friend is better than nothing. In this case my friend did well for himself by being frank and honest, leading, I suspect, the bench to think about Special Reasons. Subject to finances, the SR hearing will see my man represented by a competent lawyer.
DeleteFinances....competent lawyer...etc. The law is therefore not just ?
DeleteIt has often been said that British justice is like the Ritz Hotel - open to all.
DeleteWell I, for one, have been denied entrance to the Ritz. I was walking through Mayfair late one evening with a friend when said friend decided he needed to use a loo. We went into the Ritz and I, suited and booted, was invited to use the facilities but my friend had no jacket or tie. The reception staff offered to supply a jacket and tie so he could come in but he refused to put them on, so admission was denied. (I suppose strictly speaking he was denied not me.) We went in the pub next door.
DeleteThe Ritz is probably the last hotel in London which actually enforces a dress code.
Ahhh... we have a strategy for custodial impositions where the defendant is not in the 'fishtank' that which I won't go into here!
ReplyDeleteI am slightly surprised that your Justices' Clerk agreed to your doing this, given the explicit guidance from the Senior Presiding Judge that neither serving nor retired magistrates should act as McKenzie type friends. See JO Circular AC (04) 2015 of 26 February 2015 | JO Circulars | Magistrates, which states as follows:
ReplyDeleteBoth active and retired magistrates should not assist litigants in person in a Mackenzie Friend type capacity.
Of course. The establishment doesn't want to help those it judges. After all, that might lead to justice...
DeleteI didn't ask him. As for the SPJ's guidance, it entirely slipped my notice.
DeleteThis is something which an alert Justices' Clerk should have brought to the attention of the bench - we can't be expected to pick up every directive or pronouncement from the Powers That Be, we are not fulltime justices spending every second of the day poring over legislation.
DeleteSame goes for new sentencing guidelines, a raft of which come into effect on February 1st (particularly Theft and Health & Safety) about which we have yet to have any official notification. Many justices have iPads and similar devices, but equally many do not, and our bench was told last year that new guidelines will no longer be issued on paper, and also that we cannot charge expenses for paper and ink cartridges, but instead should ask our JC's office to print and mail them to us if requested. As the new guidelines amount to 87 colour pages, I last week requested such, only to be told that it was no longer office policy to do that. So do I spend £20 of my own money printing the sets (with a lot more to come this year), or do I lean over to peer at a colleague's tablet? More erosion of our ability to dispense justice.
Anon 27Jan16 22:18. While respecting your anonymity, I think that you should give us some honest hint of your background. reading this makes you sound like a government sycophant. Are you, in fact, a government employee whose role is partly to counter, some of the (shall we say) unorthodox (or some would say rightly and independently thinking) views amongst the magistracy ?
DeleteI am no government or ministry flunky, of that I can assure you!
DeleteI agree with many of the comments made, especially those regarding a blanket ban and the tight to a fair hearing, but also those who say that in Bystander's shoes they would have checked it out with their Legal Management Team (the Clerk or her/his designated deputy). But this Guidance isn't actually as easy to find as all that, not least because McKenzie is misspelt as Mackenzie, so a thematic search would not have thrown it up on the Judicial Intranet. Secondly, the Guidance in question was designed primarily for retiring magistrates, and on most benches was not therefore distributed to serving magistrates. Since this exchange, Clerks have been encouraged to bring it to their benches' attention...
It is moreover a pretty telling example of how the cracks are really showing at the level of Magistrates HR.
I for one, have not seen the JO Circular referred to and therefore do not consider myself bound by it.
ReplyDeleteI wonder whether Biscuit would accept the same excuse from a Defendant 'I have not seen this new under which I am being prosecuted, so I do not consider myself bound by it'.
ReplyDeleteI do not think this is an entirely unfair analogy. We all know that ignorance of the law is no defence, and I would have thought that a similar principle applied to judicial office-holders. Don't you have at least constructive knowledge of whatever edicts are issued?
I'm inclined to agree with you. Ignorance is no excuse. A diligent and conscientious magistrate would have no difficulty in finding this information. You would of course have to have a reason for looking for that specific directive but surely being asked to act as a McKenzie Friend should have been the catalyst to make some basic enquiries?
DeleteWell it was news to me. Our Clerk is spread mighty thin these days.
ReplyDeleteThe restriction on active magistrates serving as Mackenzie Friends has some justification, but it is difficult to see the restriction on retired magistrates being justified if the magistrate is not at his or her home court. In fact, The Senior Presider's guidance might conflict with the right to a fair hearing/trial. Generally speaking, an unrepresented litigant can choose any Friend. If objections are raised by the Judge/Magistrate or by others involved in the proceedings to the particular Friend chosen, then there has to be a hearing of those objections. The onus and burden falls to the objector to demonstrate that that particular Friend will in some way prevent/interfer with fair proceedings. It is difficult to reconcile the blanket nature of the ban on retired magistrates, with the specific requirements for objections to be raised in particular cases. I think the Senior Presider has overstepped his authority.
ReplyDeleteIt's also news for me
ReplyDelete