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December 22, 2021

Does the defendant in the magistrates’ court get a fair hearing?

The Bellamy review of criminal legal aid doesn’t pull its punches. It paints a picture of a complicated system of paying lawyers, with many perverse incentives and little opportunity for work to be properly rewarded. Most of the report is about fees and how they could be improved. But woven in are criticisms of the whole system and the many barriers to defending clients.

Sir Christopher Bellamy recommends a considerable increase in fees for magistrates’ court work, particularly for junior barristers who get paid tiny sums to do difficult work – eg £50 for a junior barrister to defend someone for their first court appearance in London, which may involve trying to prevent them being remanded/sentenced to prison. He is also critical of the quality of justice delivered in the magistrates’ court and some of the issues he cites may not be resolved by higher pay. He points particularly to problems in preparation, or rather lack of pre-court preparation for cases.

For defendants who have been remanded in custody by the police and are transported to court the next working day there will always be pressure on the defence to get enough information to advise their client. The lawyer arrives in court when the doors open and needs to track down the prosecution papers, absorb them, develop a relationship with a client they may never have met before and advise them on plea in minutes. They may be chided if they are not ready for their slot in court. But there should be no need to have the same rushed process for those who have been bailed and given a set court date. There are often weeks between arrest and charge, and at least three weeks between charge and the first court date. Plenty of time for the defence (if appointed) to contact the prosecution (the CPS), get the evidence against their client and prepare for the first magistrates’ court appearance, including advising on whether to plead guilty or not guilty.

Instead, according to the review, many of these cases follow a similar pattern to police remand cases, with the defence arriving at court unprepared, through no fault of their own. The problem starts in police custody, where lawyers seek all the evidence about their client’s case before interview, so they can advise them how to approach it. Without good disclosure, a defence representative may well advise their client to go “no comment”. If lawyers had better pre-interview disclosure, police interview time would not be wasted and more suspects would be in line to be diverted from prosecution.

The government wants defence lawyers to engage more with police after their clients have left police custody, before potential charge. They have even offered a fee for pre-charge defence engagement. Unfortunately this initiative has fallen flat on its face since defence lawyers say they can’t embark on engaging with the police pre-charge without assessing whether it would be in their client’s interest, and that assessment is not funded.

Defence are funded to prepare for the first appearance of their client in the magistrate’s court. But they don’t do this if neither side knows who to contact. “The exchange early on of simple contact details, whether by phone or email, between the parties, seems for whatever reason somewhat difficult to achieve…The Review is told that it is often difficult to have an informed discussion with a responsible person at the CPS until very late in the process, and that this is hardly ever possible before the first hearing in the Magistrates’ Court”. This is a crazy system, but it is also risks defendants’ rights to a fair hearing.

“Whatever the root causes, however, the evidence to the Review is that at the first hearing in the Magistrates’ Court, many cases are taken “on the hoof” with the defence representatives trying to absorb what may be quite complex facts and take instructions from the client, with very little time to do so, while the client, who has not previously seen the evidence either, is under pressure to decide on a plea at that first hearing in order to earn the maximum credit. Adjournments the Review understands are rarely granted. From the criminal legal aid point of view, it is an inefficient use of public funds for taxpayers’ money to be spent coping with these kinds of difficulties and the defendant, guilty or innocent, is surely entitled to better treatment by the system”.

Even when at court, there are disclosure problems – Lord Bellamy cites evidence from the London Criminal Solicitors’ Association that lawyers are handed 50 page bundles on the day and, even then, evidence is often missing. He concludes: “Whatever the pressures, a defendant is entitled in my view to reasonable treatment by the CJS. When it comes in particular to the question of what discount a defendant is entitled to receive on sentence, and whether they could reasonably have been expected to plead, or indicate an intention to plead, guilty in the Magistrates’ Court, and if so to what offence, I would respectfully hope that the often chaotic conditions described by respondents to the Review are fully taken into account by the sentencing Court. In my personal view, it would be highly regrettable if the underfunding and other difficulties of the CJS were to lead inadvertently or indirectly to a weakening of the golden thread of the common law, that it is for the prosecution to prove its case. To my mind at least a defendant is entitled to know the evidence relied on and have time to consider it before they can be reasonably expected to decide on plea”.

Sir Chistopher’s assessment of respect for defendants’ rights is pretty bleak. But there are three issues not really dealt with in the (excellent) report which already do or could make this situation worse

  • Unrepresented defendants. There are many not particularly well-off people who are not eligible for legal aid in the magistrates’ court. Or some who are just too chaotic to access it. All that Sir Christopher says about disclosure is exponentially worse for those who don’t have a lawyer. They are not allowed access to digital case files and hardly ever get papers in advance from the prosecution. They also don’t have an understanding of the law to guide them how to plead. My remedy would be to make all defendants in the magistrates’ court eligible for free legal advice, as in police custody.
  • Remote hearings. Sir Christopher only mentions these in relation to the efficiency of lawyer’s time. Evidence from my own observations and from reading all the research on first hearings in the magistrates’ court, strongly suggests that all the shortcomings mentioned in the review are exacerbated if the defendant and/or lawyer is on a video link. It is more difficult for them to communicate with their lawyer and extremely difficult to engage with disclosure material such as CCTV.
  • Online pleas. The government is legislating for defendants, unrepresented or represented, to enter guilty/not guilty pleas online. Clearly lawyers will want full disclosure before they advise a client on an online plea, but the present chaotic approach suggests that this will not happen. So pleas may be entered online without full information or, alternatively, the whole entering plea process will be beset with delays.

I hope the Ministry of Justice heeds Sir Christopher’s warnings both about miserly legal aid fees and the threats to defendant’s rights from broader system issues.

 

 

 

 

 

 

 

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