Monday, June 20, 2005

Advice To Magistrates

Court Clerks in the Magistrates Courts are uniquely placed to advise the Court on issues of law. If lay Magistrates are sitting the Clerk will often advise the Magistrates on what their powers are. Today I appeared in front of a lay bench dealing with a routine guilty plea to a fairly low level of benefit fraud summonsed under s. 111A of the Social Security and Administration Act 1992.

I stood mitigating on behalf of my Client suggesting that the facts and mitigation involved in his case put it within the realms of a community punishment. As I uttered the words, "...guidance from the Court of Appeal suggests this is a case suitable for a community penalty..." the Court Clerk nodded his head. When the Magistrates agreed with me that a pre-sentence report was required they adjourned the case. The Court Clerk then spoke out saying to the Magistrates, "Are you adjourning keeping all of your sentencing options open including a committal to the Crown Court?" Having heard the Learned Clerk speak the Chairperson replied, "Yes, and we are keeping all of our sentencing options open including a committal to the Crown Court".

If the Clerk agreed with me on the point that the case was always going to be sentenced to a community penalty why did he bother to speak out at the end?


Anonymous said...

Forgive my ignorance, (not being a lawyer or anything) I don't know exactly what a pre-sentence report is and how it fits in the process.

That aside, from reading your account, it merely suggests to me that the magistrates have (quite properly IMHO) not yet decided on the type of sentence and are now going to look at the pre-sentence report before making a decision. Whilst they appear to favour your arguments, the're not going to commit one way or another until they have the full facts.

I think it would be silly of them to exclude sentencing options, then read the pre-sentence report and then decide that the appropriate sentence was one they had excluded.

Gavin said...

A pre-sentence report is an independent report produced by the Probation Service after interviewing a Defendant. The report recommends a sentence to the Court based on the information gleaned during the interview.

The Magistrates are quite entitled to leave their sentencing options open until the next hearing, but the point I was making was that it was the Court Clerk who has prompted them to leave the harshest sentencing options open when he had already agreed with me that the case was never going to get above the community penalty threshold.

Anonymous said...

It's difficult reading an account of what has been said, and then trying to reach a conclusion as to what is meant, (obviously intonation etc cannot be reproduced in a written account).

I presume the clerk has to keep a record and if so, is it not possible that the clerk was merely seeking clarification for their record?

If so, could it also be that the chair, perhaps surprised by the question, thought best to give the easiest answer that in no way binds them, and simply say that they were still keeping all options open?

As I said above, I am no lawyer and am not familiar with the court processes, if the clerk was seeking clarification then perhaps they could have worded it differently, but equally could it not simply be a request for clarification?

Gavin said...

The Clerk was not seeking clarification, he was quite clearly meddling with the situation - it is the meddling that inspired me to rant on about this topic.

Bystander said...

Magistrates where I sit are strongly advised to leave all options open just in case something comes out of the woodwork to make the offence more serious. It does happen, albeit not too often. In the same way the Resident Judge at the Crown Court to which we commit asks us not to grant bail pending appeal, as refusing the appeal and re-incarcerating the defendant looks rather like cat-and-mouse. said...

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