Monday, July 04, 2011

Magistrates Courts: if you plead not guilty you will be!

I've been attending a couple of magistrate's court hearings in England as press observer for contested speeding charges. Mobile speed cameras operated by rogue police officers are the British equivalent of third world countries' police road checks extracting bribes. They're about generating revenue rather than enhancing road safety. In a letter to a local newspaper an outraged motorist recently compared the police speed enforcement action to that of cowboy clampers who immobilise cars on allegedly private land in order to cash in on a hefty release fee.

Modern laser speed detection guns do not provide a print-out of recorded speed. They display a speed figure to the operator and the charge of speeding relies entirely on a single police officer's claim or memory. It is therefore easily open to abuse. Most motorists will not contest speeding charges in the knowledge that magistrates courts rarely find against the word of a police officer. However, there are cases where the police officer operating the equipment makes such major blunders or has such blatant disregard for established procedure that challenging the charge in court appears reasonable. My observations of a number of such cases reveal more about the courts than the police and lead me to the conclusion that in the interest of both justice and reducing public expenditure we might as well do away with magistrates courts altogether.

Whilst more serious offences are tried by a judge and jury in the county court, magistrates or justices of the peace deal with "summary" or petty offences. Magistrates are lay people, drawn mostly from the upper middle classes, with no formal legal training whatsoever. In passing judgment they rely on the legal advice of the clerk to the Justices, and given the magistrates' lack of legal knowledge and experience, these court clerks in a way "own" the court. So instead of keeping up pretences and running the whole show of theatre justice, offenders might as well present before a court clerk in an administrative office to be told their sentence. As there is an automatic right of appeal against the decisions of magistrates courts, not much would change. Contested changes would go to the county court and for the rest the tax payer would be saved considerable sums of money.

My experience of numerous cases is that the clerk always sides with the prosecution, and the magistrates always side with the clerk. There are very few notable exceptions to this rule. Knowing this, the police act with impunity. I have witnessed the very same officer stating under oath in the same magistrates court the exact opposite to what he stated under oath in a case a few weeks prior, in other words, he lied under oath, but even if the defendant had knowledge of the previous case, he would be prevented by the clerk from raising his concern as it would not be "relevant" to the case. The above reference is to a police officer stating when questioned under oath about the code of practice issued by the Association of Chief Police Officers of England and Wales (ACPO) regarding police conduct during speed enforcement action that he had never heard of it. In a subsequent trial the same officer stated with regard to a speed enforcement action at an earlier date that he was fully aware of those guidelines and had observed them throughout. This was an officer who had taken readings of traffic from the opposite side of the road, then jumping out into the road to stop cars on double yellow lines - so much for road safety through speed enforcement action!

Those guidelines contain recommendations for police officers to follow when carrying out road enforcement checks, e.g. that they must wear high-visibility clothing, on which side of the road they must be positioned to take a reading, that they must form a prior opinion of a vehicle speeding (i.e. no fishing operations by taking a continuous reading of oncoming traffic in the hope some motorists might eventually exceed the speed limit), the necessary checks to be carried out on the equipment before and after use, and that if there was any doubt in relation to any of those procedures not having been followed properly, then a prosecution should not be brought. It appears the guidelines were issued in an attempt to placate the public who has long taken the cynical view that speed enforcement by the police is a money-making exercise. However, unless an officer can be held accountable in court for following this code of practice mandated by his superiors, it is hardly worth the paper it is written on and thus a rather pointless waste of tax payers' money. I requested clarification from the ACPO's press office as to the degree to which the guidelines were binding on individual police officers, but they chose not to reply, confirming my suspicion that the guidelines were more of a public relations exercise than serious advice to police officers on the road.

Almost all officers' witness statements I have seen as well as their competence certificates contain a reference to the ACPO guidelines in accordance with which training was received and devices were allegedly operated. It should therefore be only right that a defendant be allowed to question officers on their adherence to those guidelines, yet I sat in a magistrates court hearing in Milton Keynes where the prosecution claimed that since these were only guidelines and, furthermore, they were currently under review, they were not relevant, after which the clerk in a hysterical voice told the defendant off for asking any questions relating to those guidelines, shouting at him as if he was a little school boy that "you were already told that these guidelines are not relevant to your case". The same clerk, who hardly opened her mouth when the prosecution spoke, also constantly interrupted the defendant during his questioning of witnesses. Frequently she would demand: "What is the relevance of this question?", thus making it near impossible to conduct an effective cross examination. For if you were to try to catch a witness out to show that he was either lying or his memory was defective, then having first to explain why you were asking a question and with what purpose ruins the exercise. Imagine the following explanation: "I am asking the officer about the timing of the check he carried out because I want to show that what he says contradicts the evidence given by his colleague earlier who gave a different time. So officer, are you still sure you carried out the check at 14.20 hours?". Being forwarned, the officer is likely going to avoid getting himself into a pickle.

A magistrate's court hearing starts with a plea of guilty or not guilty. The expectation is that you plead guilty. If you plead not guilty, the clerk will give you a long lecture that it could cost you a lot more money in court costs if you do so. So from the outset the case is about how much justice you can afford, not whether you committed an offence or not. In the past, a defendant had the right to a "duty solicitor" who would represent him or her free of charge. This provision has been axed and remains available only for offences which carry a prison sentence. In any case, a duty solicitor would normally go through the motions only and not stick his neck out for a client except that he might negotiate a lighter sentence at the end. Since the outcome of a case at the magistrates court is a foregone conclusion, it makes little sense for a defendant to hire an expensive private solicitor; that cost is best deferred for the appeals stage. Inevitably, when pleading not guilty, people rely on defending themselves. This is when they are at the mercy of the court clerk.

One should normally expect that the court try to assist a "defendant in person" who is a lay person not versed in the law. After all, the purpose of the proceedings ought to be to arrive at the truth. Not so in magistrates courts, it seems. Defendants in person are routinely intimidated and gagged by the clerk to the justices who wants to get the hearing over with as speedily as possible. In some rare cases a magistrates court hearing is presided over by a District Judge, and I have witnessed a judge tell the over-confident clerk to shut up. Of course, a proper judge knows the law and can opt to ignore advice or guidance offered by a clerk. Lay magistrates, on the other hand, lack the competence and confidence to do so and are thus at the clerk's mercy who runs the court as his or her personal fiefdom.

Motorists are well aware that short of giving up to drive they are an easy target for government tax collectors. There road taxes and fuel taxes, the cost of car insurance as well as parking fees and congestion charges, and all of those tend to go up regularly year after year. Since the tax income goes into central government coffers, local partnerships composed of local councils, local police forces and other agencies are regularly using speed checks as a means to complement income at a local level. If this is the intention it would be a lot easier to simply add a speed levy on all motorists using certain roads or use road tolls, like they do in France, instead of criminalising the motorist. The effectiveness of speed limits as a means of road safety is doubtful in any case. German motorways without speed limit are no less safe than British ones, but they are a lot less clogged up because you don't find cars hugging the overtaking lane at 70 mph. Speed limits are sensible at certain dangerous stretches of road, but their overuse for monetary purposes means that they are generally ignored, having the opposite effect on safety. Drivers who know where speed cameras are (and there is equipment on sale which superimposes those locations on GPS navigation systems) will temporarily slow down before and speed up after that location. Those who notice the cameras late will brake suddenly, endangering traffic behind them.

As for magistrate's courts, they are a total waste of time. Given that they are neither willing nor able to challenge police authority, no matter how little regard an officer might have for the law he is meant to enforce and uphold, they become "Kafka" courts where the outcome is almost predetermined and procedure, not justice, is the main objective. Instead, both police misconduct and miscarriages of justice are encouraged. In the interest of justice, and for the benefit of the public purse, the magistrates court system in England and Wales ought to be abolished.

2 Comments:

At 7 August 2011 at 09:55, Anonymous Anonymous said...

Interesting. In the USA, it always pays to show up for a hearing on a speeding ticket, as (1) you can negotiate a dismissal "upon payment of court costs," without a formal offense, and (2) the police often do not show up.

 
At 11 November 2011 at 19:49, Anonymous Anonymous said...

Appealing a Mag Ct decision/penalty is not an experience I'd like to repeat: I'd been driving through a town some 40 odd miles away for the first time ever and was done for over 30mph (36 according to Madam Gatso). Assuming (I'm over 60) that strangers are "given the benefit of the doubt/a chance" I attended (the I think it was a Crown Ct but I didn't see a jury) and after a long lunch recession was glowered at by the almost purple faced "beak" and smacked with another £200 costs. As part of my plea was that I was on benefits that was about 5weeks money for me but probably about what the "beak's" lunch had cost.
Quinten Hogg MP (50years ago) said the English justice was "the best that money could buy" he wasn't wrong now and he's even less wronger now!!

 

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