Those with an interest in Open Justice will be pleased that HMCTS have started to publish Magistrates Lists online and today (Sept 1st) is the first day that the public has been able to remotely access the list by visiting courtserve.net
Almost every criminal case passes through the Magistrates Courts either being dealt with here or sent up to the Crown Courts. Despite their importance there is almost no reporting of the proceedings by media.
In 2018 research was done by Journalism Students at Bristol University whereby they sat in every courtroom over a week at Bristol Magistrates court. It was only on the third day that a reporter was first spotted, and more than 200 cases went entirely unreported. When you consider there are over 300 Magistrates Courts in the UK that’s quite a number of cases not brought to the public attention.
An article about the experiment by Phil Chamberlain of thejusticegap entitled “‘Justice is not being seen to be done – and we’re all the poorer for it’” explains that some cases were in fact mentioned by the media but merely repeated basic information provided by the CPS.
Phil writes in much better prose than I could hope to achieve: “The nuance of the justice system is lost in this simple ‘who has been found guilty’ approach. A huge slice of public life is passing unreported and uncontested.”
Having checked the list the night before I find myself sitting in Court 5 at Stratford Magistrates before Presiding Justice Mr Hunter JP and one associate to observe a couple of trials that are due to take place today.
The morning trial concerned some alleged shoplifting from a B&Q store in Chingford…
The court is told on July 14th 2020 CCTV showed someone (alleged to the be the defendant) cutting through some netting surrounding the outside area of the Chingford B&Q Store. The individual is seen climbing through the hole and down some racking. They then proceed to collect several hundred pounds of power tools and equipment before passing it through the netting to an accomplice on the other side.
The shoplifter is described as having short hair, slim and wearing a hoodie – attributes that Ms Peck for the defence submits could describe even the advocates that work in this very building.
Four days later on the 18th the only witness in this case a Ms KI tells the court she is on duty within the security office at B&Q. She can see someone on the CCTV system entering in through the same hole and climbing down the racking again.
She triggers a “Code 100” which causes a number of staff to descend to the outside area and presumably apprehend the defendant – (although I must admit I don’t recall his method of detention being discussed or if it was it didn’t make it into my notes).
This time we hear CCTV shows the person as wearing a Grey T-Shirt. Ms KI tells the court that in her mind she is sure they are the same person but when pressed admits she “cannot be 100% sure”.
In summing up the courts decision Presiding Justice Mr Hunter simply explains that if the only witness could not be 100% sure then neither could a jury and so the case is dismissed. “In plain English – you got away with it!” Mr Hunter JP explains to the defendant.
Quite a simple conclusion to a simple case you might think. This hearing took an entire morning as the procedural elements that led up to that moment was quite extensive.
Before the trial started the defence submitted a request under Section 78 of the Police and Criminal Evidence Act 1984. This section is titled “Exclusion of unfair evidence“ and states in Part 1:
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The defence submitted that the court could not rely on KI’s submissions as she had not seen the actual incident in person only via the CCTV – her evidence should not be admitted.
The justices concluded that this would be a fair trial and the defendant would suffer no prejudice. Application 78 denied.
Next up was an abuse of process application: It is common ground between the parties that the Police had a duty of care to collect the CCTV footage as evidence, but they failed to do so. The CCTV was integral to the case the defence submitted and proceeding without it would be an abuse of process.
The courts legal advisor protested that the court had not been put on notice for this and the Abuse of Process application should have been in a Skeleton Argument. The court considers this defect and gives the defence 20 minutes to furnish an application and send it out to the parties.
During those 20 minutes Mr Hunter JP checked in with the defendant who may not have fully appreciated the complex legal arguments being drafted at that time explaining “I assume you’ve been briefed – the lawyers need time to catch up”.
The 20 minutes flies by and before we know it the defence is explaining that there were “serious failings by the police” and the existence of the CCTV would have been known at the time of the arrest. As a result, the defence have no way to challenge the evidence that “has not and cannot be seen”.
Opposing the application, the prosecution submit that allowing the application should be a remedy of last resort. They submit that there was a witness who saw the CCTV and can be cross-examined on that. The court can also take into account the lack of CCTV. The crown maintains a fair trial is possible and the high burden to stay the case has not been met.
The Magistrates retire to consider the application. When they return, they explain they don’t find there will be an abuse of process. They explain that any evidence can be challenged, and any weight assessed. They consider the defendant will not be prejudiced and the rule of law and the administration of justice will not be affected.
It is at that moment that the trial can begin with the prosecution opening their case. After the Crown has concluded their evidence Ms Peck for the defence pulls one last legal trick out the bag – a so-called ‘half time submission’ of no case to answer.
The leading case law for this submission is “R v Galbraith” and Lord Lane established two limbs:
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.
Of course, as the Magistrates ruled – if the only witness could not be 100% sure then neither could a jury and so the case is dismissed.
All-in-all quite a roller coaster ride through quite a wide spectrum of complicated procedure.
After lunch we have another case – a young man who is alleged to have carried a bladed weapon. He has failed to obtain representation despite some effort and so his case is adjourned.
My final task of the day to complete my report was to obtain the name of the Presiding Magistrate – an annoyingly simple matter that took 15 minutes for court staff to return an answer.
Mouse in the Court 