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29 March 2024

Housekeeping Note

Please note that Magistrates' Blog has resumed normal service across on my original blog here: https://magistrates.blogspot.com

The content here at Magistrates' Law and Procedure will be retained for archive purposes.

Many thanks to all readers for taking the time to visit and read my musings. Your continued support is very much appreciated.

- Magistrates' Blogger

28 March 2024

Concern About the Use of Artificial Intelligence by Single Justice Procedure Defendants

The Magistrates' Association (MA) has expressed concern about the use of artificial intelligence by Single Justice Procedure (SJP) defendants.

In a message to members Mark Beattie JP, MA National Chairman, said: "The use of AI in the justice system is coming faster than I had expected.

"Most noticeably in single justice courts where defendants are using ChatGPT to help them with their mitigation when they enter a plea online.

"Pop over to ChatGPT and ask it 'Help mitigate a fare evasion' fine for an example of how it is being used."

Apparently MA members have noticed striking similarities in the mitigation of multiple defendants. When ChatGPT was consulted for its opinion, it came out with something very similar again.

The MA is concerned that defendants could just be churning out any old gobbledegook, some of which might originate from overseas jurisdictions.

Of course the defendants concerned could just be avid readers of the publicly available Sentencing Council Magistrates' Court Sentencing Guidelines.

When appearing in person before the court the onus is on every defendant to provide honest mitigation - indeed failure to do so could constitute an offence in its own right.

However, with a remote system like SJP there isn't the same opportunity to corroborate the information provided. As the MA rightly highlights, this could further undermine public confidence in the system.

The Government has now indicated, albeit tentatively, that it might take a closer look at the SJP system. That's some positive news, anyway.

26 March 2024

Magistrates' Association Calls for Improvements to Single Justice Procedure

The Magistrates' Association (MA) has called for improvements to the Single Justice Procedure (SJP).

As a result of growing concerns the MA, which has around 12,000 mainly magistrate members, issued a position statement yesterday.

Whilst broadly supportive of the role of the SJP in alleviating backlogs and minimising delays to more serious cases before the Magistrates' Court, the MA has made twelve recommendations to improve public confidence in the system.

They are:

1. It becomes a requirement that prosecutors see all pleas and mitigations before the cases are heard by the magistrate. This would give the prosecutor the opportunity to see and read the mitigation and to withdraw the case if they then believe it is no longer in the public interest to pursue it.

2. SJP training should be formalised and specific to the process. It must emphasise the ability of magistrates to use their discretion fully and without reservation (including the ability to refer cases back to the prosecuting authority), and that the speed of dealing with cases is up to the magistrate rather than the legal adviser.

3. There must be a review of both SJP training provided to legal advisers and of wider policies surrounding SJP, to ensure that they do not unwittingly put magistrates under any pressure to complete a certain number of SJP cases within a certain amount of time.

4. To sit alone on SJP cases, magistrates should have passed their threshold appraisal and sat for one additional year in the adult criminal court, to ensure that they have a high level of experience and confidence.

5. The government should make provision for SJP sittings to be observable by accredited journalists.

6. The Transparency Working Group recently set up by the Lady Chief Justice should include SJP in its considerations.

7. Journalists should be able to see short explanations from magistrates where the magistrate has deviated from sentencing guidelines. This will in turn help the public to understand why a particular decision has been made. It also aligns with the duty to give reasons in open court. While this will inevitably slow down the process, it is an important safeguard.

8. HM Courts and Tribunals Service (HMCTS) and the Ministry of Justice should publish more data on SJP, such as how many defendants plead guilty, how many make no pleas, how many ask to come to court, and how many subsequently attend, nationally and broken down by region. These could provide an indirect measure of defendant engagement with the process and could be scrutinised by the media and the public.

9. That further research is undertaken on how improvements can be made to the process for those with learning difficulties, communication challenges, or any groups who may be less able to engage with the process.

10. HMCTS should work with prosecuting agencies to review the paperwork sent to defendants, to make it simpler and easier to understand. It should seek a Crystal Mark from the Plain English Campaign for the documents.

11. That consideration be given to a link between HMRC payroll or benefits data and SJP removing the need for a 'Means Form' to be submitted by the defendant.

12. We would like to see a concerted effort to publicise the importance of responding to official court letters. This must also make the rights of the defendant clear, for example, that they can opt out of the SJP and ask for their case to be heard in open court.

Mark Beattie JP, National Chair of the MA, said: "We believe that the principle of the Single Justice Procedure is good. Every year it spares thousands of defendants the ordeal of having to attend court for minor offences, and it allows for more efficient use of court time, which means speedier justice and a focus on more serious offences.

"However, it is not a perfect system. While the vast majority of cases are handled effectively by the SJP, our members - magistrates who decide on SJP cases - have told us about flaws in the way it operates and the harm that this can have on some of society’s most vulnerable people. It is clear to us that reform, as well as additional investment in training and transparency, is needed, to restore public confidence in the Single Justice Procedure."

In recent months there has been considerable media criticism of the SJP. Evening Standard courts correspondent, Tristan Kirk, has been at the forefront of exposing what many would perceive as serious, systemic failings with the SJP in its current guise.

The Government, it would appear, are lukewarm at the idea of amending SJP, with Minister Lord Bellamy KC recently stating: "At present, the Government has no plans to amend the SJP process."

Responding to the twelve recommendations, a Ministry of Justice spokesman said: "Only uncontested and non-imprisonable offences are dealt with under the Single Justice Procedure - magistrates are always assisted by a legally qualified adviser, defendants can choose to go to court if they want to, and the details of their case are published to provide transparency.

"We have noted the Magistrates' Association's report and will carefully consider its recommendations."

24 March 2024

Fines as an Alternative to Community Orders

The Sentencing Council's Magistrates' Court Sentencing Guidelines are a useful reference point when sentencing offenders before the court.

The theory behind the guidelines is that an offender should be sentenced in a very similar way, whether the matter is dealt with at Berwick-upon-Tweed Magistrates' Court, Truro Magistrates' Court or anywhere in between.

The guidelines recognise that in some circumstances it might be appropriate to sentence an offender to a fine as an alternative to a community order. In its guidance on the imposition of community and custodial sentences, the Sentencing Council notes "a Band D fine may be an alternative to a community order".

Fines are by far the most common sentence imposed by the Magistrates' Court. They are entirely punitive in nature. Community orders are much broader in scope. They also include a punitive element, but their main purpose is to change offender behaviour and prevent reoffending. This involves the offender working closely with the Probation Service for a period of up to 3 years.

In today's article I am going to give an example of where a fine might be imposed as an alternative to a community order.

Considering the very common case of an offender convicted of an offence under section 5(1) of the Road Traffic Act 1988 - namely that they drove a motor vehicle, in a public place, after consuming so much alcohol that the proportion of it in their body (usually their breath) exceeded the prescribed limit (35 microgrammes in 100 millilitres of breath).

In sentencing this offence the starting point is determined by the proportion of alcohol in the offender's body, as shown in the following table.

Referring to the table, an offence involving 100 microgrammes of alcohol in 100 millilitres of breath would have a starting point of a medium level community order. The court would then consider any aggravating or mitigating circumstances. These would be factored into the sentence by adjustment from the starting point, but staying within the same range. In this example the outcome after adjustment would still be some sort of community order.

By this stage it is apparent that the threshold for a community order has been passed, but the court needs to give final consideration as to whether or not it is necessary to impose such an order. Would the offender benefit from working with the Probation Service? Can the Probation Service address any underlying causes of the offence? Will making the order do anything to change the offender's behaviour and prevent them from reoffending?

If the answer to any of those three questions is "no", then even though the offence is commensurate with a community order it is probably more appropriate to impose a fine instead.

This might be the case for an offender of previous good character, who commits a one-off offence, for which they are suitably remorseful, who has a stable and supportive personal life and who has no underlying medical, mental health or substance abuse issues.

Suppose an offender of previous good character had recognised that drinking to excess was a key factor in their offence. If they were already taking active steps to address their drinking the court may well take the view that a community order was unnecessary.