A magistrate writes: It’s time for a rethink on unrepresented defendants

Magistrates are trained not to intervene in cases, but with growing numbers of unrepresented defendants, is it time for an urgent rethink of the training given to the lay bench?

silhouetteI was appointed to my local bench over 25 years ago. My selection process took four years which gave those deciding my destiny ample time to consider whether I had any common sense, knew anything about anything, had a murky past and whether I might find my potential colleagues’ humour funny. It also gave the Justices’ Clerk ample time to put together a comprehensive, 25-hour, training programme.

This included a review of the legal structure in England, basics of magistrates’ courts procedure and etiquette, granting bail and, in those days, unit fines as a backbone of sentencing. A major training point was the standard of proof a case had to reach. Above all, we were told never to ask any more questions of the solicitors representing the Crown or the defendant than were necessary to provide essential clarification of a point made by a witness when telling their story. Ideally, we should ask none.

After a while I applied to become a day chairman and attended a thorough weekend training programme, with lots of role play focused mainly on behavior in court (by the public, defendants, advocates and my colleagues) and how to manage and cope with disagreement between advocates and in the retiring room. Everything was based on the principle that lawyers act for both sides and act efficiently and effectively in their clients’ best interests. One of the most important points was how to prevent active involvement in the case. The aim was to leave everything to the advocates and if absolutely necessary – and only then – to the clerk.

Optional refresher training and ad-hoc courses on public speaking for those chairing courts was available. Then came the era of ‘mandatory training’ but with no discernible sanction. Human Rights Act and more recently changed bail and allocation training came into this category. Lay justices attend if they have both the time and the interest, but not otherwise.

The modern court process requires active case management, plea warnings whether defendants are represented or (more commonly) not. Case management is now an integral and essential part of trial planning and conduct and it is increasingly essential that the bench interferes to ensure court time is not wasted and defendants are able to gain maximum credit for a guilty plea. Alas, magistrates are not trained to do this in a constructive manner, rather to leave this to legal advisors. If that is the intended way forward, then why have a bench sitting on case management of NGAP (not guilty anticipated plea) courts at all?

In today’s magistrate courts’ climate, an increasing number of defendants are unrepresented and they – almost universally – don’t know how to prepare their case, how to cross-examine nor advance their own cause, let alone mitigate constructively. Logical flow is frequently absent and half the information the bench requires to make a sound decision is missing. The obvious approach is for the justices to become ‘investigating magistrates’ and ask the relevant questions, in a sensible order to enable the proper decision and outcome.

We are not trained to do this. New magistrates learn about court procedure (when to stand and bow, who speaks first, who’s who and so on). The training is generally didactic with limited opportunity to practice or role-play. Drummed into them is the requirement not to interfere. The legal advisor has a duty to help – but not too much.

The unrepresented defendant, therefore, relies on the personal experience and confidence of the chairman to intervene to the extent they think appropriate and necessary, ever mindful of the need not to advocate. Meanwhile the legal advisor balances their administrative role with the support they should give to the defendant and shudders inwardly lest the chair asks something they shouldn’t, invalidating the proceedings and causing a bureaucratic mess to be sorted out.

So what might modern training include? The legal structure and process are of course important. Magistrates sitting in court should look as if they know what they are doing, whether appointed the previous day or in the last century. An understanding of basic entitlements (liberty, assumption of innocence, the right to a fair trial) and that ‘the interests of justice’ test is not the same as ‘the wishes of the defendant or their aggressive solicitor’.

It would be helpful if all magistrates understood the real role of the legal advisor and their part in case management, keeping order, interrogating and supporting witnesses and most importantly, advising on practice and procedure.

You can a read a report by Transform Justice on the experience of unrepresented defendants in the criminal courts here

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