Crime Team Newsletter - First Edition
Welcome to the first edition of the 33 Bedford Row Crime Team Newsletter. Whilst it has not been business as usual in terms of jury trials it has been a busy time for us all getting used to the new ways of working and collaborating.
This month’s inaugural edition comprises contributions from:
Nigel Edwards Q.C. [along with his junior George Hazel-Owram and instructing solicitor Eric Watson of Watson Woodhouse Solicitors] – on Diminished Responsibility and Disposals under the Mental Health Act 1983;
Daniel Walker - on Suspended Sentences and COVID 19;
Jennifer Brenton- on Coronavirus: Making the Case for Proper Scrutiny; and
Ravinder Saimbhi - providing a lighter insight into the practical changes of the working “remote” lives of those practising at the Criminal Bar.
Our brilliant 1st junior clerk Jamie Smurthwaite has also added some words regarding how the clerks team are adapting to the new working practices and making them work for us all.
We are also excited to announce that over the coming months we will be launching our regular webinar programme. Details will be provided allowing you to sign up and watch live or at some other convenient time.
Best wishes to you all.
Head of Crime Team
Diminished Responsibility and Disposals under the Mental Health Act 1983
Nigel Edwards QC leading George Hazel-Owram, instructed by Eric Watson of Watson Woodhouse Solicitors, recently defended a man charged with the horrific murder of his mother.
The Defendant suffered from paranoid schizophrenia and, before and at the time of the murder, believed he was dead and had returned to earth to live.
Despite medication being prescribed he had failed to adhere to the regiment of daily tablet taking and he went on to stab his mother multiple times, including through and excising the eye ball, causing her death. His reason for killing her was said to be so she could come back to be with him and live forever.
After consideration of three psychiatric reports the Prosecution, unsurprisingly accepted a plea to be manslaughter by reason of diminished responsibility.
A difficult sentencing exercise?
The key issue for the sentencing court was whether the defendant should have been made the subject of an order pursuant to sections 37 and 41 of the Mental Health Act 1983 or whether he should have received an indeterminate sentence, in this case a sentence of life imprisonment, combined with a hospital and limitation direction order made under section 45A of the Mental Health Act 1983.
Was the failure to self-medicate deliberate or part of his condition?
What was the Defendants overall culpability? and
What in the public interest was the best disposal available?
This article addresses the differences between the two and considers the approach the sentencing court may adopt, or can be persuaded so to take.
The issues here must always be considered on a case by case basis and are always specific and peculiar to the individual offender, the circumstances as they pertain at the time of sentence and those likely to be extant going forward.
Hospital and Restriction Orders
Section 37 of the Mental Health Act 1983 deals with the powers of the court to make a hospital order when certain conditions are satisfied.
Section 41 of the Mental Health Act 1983 deals with the powers of the court to make a restriction order again provided certain conditions are satisfied.
When a hospital order is made in accordance with section 37, the court cannot also impose a sentence of imprisonment, or impose a fine, or impose a community order. A hospital order lapses after six months but can be renewed for a further six months and then at yearly intervals. The renewals are made in instances where the responsible medical officer considers further detention necessary for the protection of the public or in the interests of the patient’s own health and safety.
Only the Crown Court can make a restriction order and such an order can only be imposed together with a hospital order made under section 37. A restriction order would almost certainly be imposed for an unlimited period. A restriction order does not lapse and require renewal like a hospital order.
When a hospital order and a restriction order are imposed, in accordance with sections 37 and 41, the responsible medical officer and the hospital manager are unable to discharge the offender without the consent of the Secretary of State or the First Tier Tribunal.
Hospital and Limitation Direction Orders
Hospital and limitation direction orders, commonly known as a hybrid order, can be made in accordance with section 45A and 45B of the Mental Health Act 1983.
Such an order is imposed in cases where the sentencing court hears evidence that the offender is suffering from a mental disorder and thus a hospital order is deemed appropriate but in addition, in the event that the offender completes a period of treatment in hospital and is no longer deemed to be suffering from a mental disorder, the offender is transferred to prison to serve the remainder of the sentence. A hospital and limitation direction order would thus be imposed alongside a sentence of imprisonment.
Such a sentence appears most often to be imposed where the sentencing court concludes that the offender has a greater degree of responsibility or culpability for the offence. A commonly cited example, of an instance where the offender has a greater degree of responsibility for the offence, is the situation where an offender is suffering from a mental disorder but has voluntarily stopped taking his required medication leading to a relapse and the commission of the offence.
The release regime, for those offenders who are made the subject of a section 45A order, differs depending on the penal element of the sentence, namely whether the offender is serving a determinate or indeterminate sentence of imprisonment.
Where the offender is serving a determinate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender’s mental health improves to the point where the offender is deemed no longer to require treatment in hospital, the Secretary of State will remit the offender to prison to serve the remainder of his sentence provided that the automatic release date has not passed.
The section 45A order would not have effect as soon as the offender was returned to prison. The offender would then be released from prison at the time he was due for automatic release.
Where the offender is serving a determinate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender is still suffering from a mental disorder at the point he would be due for automatic release, then the offender will remain in hospital and he will be treated as though he was the subject of an unrestricted hospital order. His discharge from hospital would then be a matter for those treating him and not the Secretary of State.
Where the offender is serving an indeterminate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender’s mental health improves and the offender is no longer deemed to require treatment in hospital and the offender has not served the minimum term of his sentence, then the Secretary of State will remit the offender to prison. The section 45A order would no longer have effect when the offender is transferred to prison.
The offender would then have to serve the remainder of the minimum term and be considered for release by the Parole Board.
Where the offender is serving an indeterminate sentence of imprisonment and the offender is made the subject of a section 45A order, in situations where the offender is still suffering from a mental disorder at the point he would have served his minimum term, then he will remain in hospital.
When he is deemed to be fit for release then he may be conditionally discharged by a Tribunal and the Secretary of State, although it is more likely that the offender would be referred to the Parole Board for consideration of his release. Supervision post release in such cases will always be subject to review and monitoring.
The Manslaughter Definitive Guideline
The Sentencing Council have issued the Manslaughter Definitive Guideline.
Page 21 of the Guideline sets out the section which deals with manslaughter by virtue of diminished responsibility.
The Guideline outlines the following eleven step approach to determining sentence:
(i) Assessing the degree of responsibility retained by the offender.
(ii) Determine the appropriate starting point and category range.
(iii) Consider the issue of dangerousness.
(iv) Consider mental health disposals.
(v) Consider any other factors which would warrant an adjustment to sentence.
(vi) Consider assistance to the prosecution.
(vii) Credit for plea.
(ix) Compensation and ancillary orders.
(x) The duty to give reasons and explain the sentence.
(xi) Consideration for time spent on bail.
R v Edwards  4 WLR 64 CA
In Edwards the Court of Appeal specifically considered the approach to sentencing offenders who were suffering from mental disorders.
Three of the appellants in that case were appealing against life sentences imposed in conjunction with a section 45A order. Those appellants submitted that a hospital order combined with a restriction order, in accordance with sections 37 and 41, was the appropriate sentence.
The defence submitted that the post release regime under a hospital order, involving supervision by medical experts, rather than the post release regime following release from prison under the probation service, was the appropriate disposal in the case of Edwards.
The Court of Appeal heard evidence given de bene esse from the doctor treating the appellant.
The following is an extract from the judgment in Edwards:
'In addition to providing the update Dr Dodge was asked to comment on the difference between post-release supervision regimes under section 45A and sections 37/41. He said there was little experience of the way in which the Probation Service would supervise licence conditions under section 45A.
Whilst it might be possible to impose conditions relating to attending medical appointments and co-operating with medical care after a section 45A release, in his view, there would be a difference in the level of supervision available under a section 37/41 release; there would be more frequent conduct and such supervision would be by medical professionals rather than a probation officer.’
In the case of the appellant Edwards, the Court came to the conclusion that a penal element to the sentence had been required in that case and thus a life sentence with a section 45A order and a limitation direction could not be criticised. In this respect the appeal was not successful. However, the Court did reduce the length of the minimum term and to that extent the appeal was allowed.
The Court of Appeal gave guidance at paragraph 34 on the general principles to be adopted in cases of this nature:
(i) The first step is to consider whether a hospital order may be appropriate.
(ii) If so, the judge should then consider all his sentencing options including a section 45A order.
(iii) In deciding the most suitable disposal the judge should remind him or herself of the importance of the penal element in a sentence.
(iv) To decide whether a penal element to the sentence is necessary the judge should assess (as best he or she can) the offender’s culpability and the harm caused by the offence. The fact that an offender would not have committed the offence but for their mental illness does not necessarily relieve them of all responsibility for their actions.
(v) A failure to take prescribed medication is not necessarily a culpable omission; it may be attributable in whole or in part to the offender’s mental illness.
(vi) If the judge decides to impose a hospital order under sections 37/41 he or she must explain why a penal element is not appropriate.
(vii) The regimes on release of an offender on licence from a section 45A order and for an offender subject to section 37/41 orders are different but the latter do not necessarily offer a greater protection to the public, as may have been assumed in R v Ahmed. Each case turns on its own facts.
(viii) If an offender wishes to call fresh psychiatric evidence in his appeal against sentence to support a challenge to a hospital order, a finding of dangerousness, or a section 45A order he or she should lodge a section 23 application. If the evidence is the same as was called before the sentencing judge the court is unlikely to receive it.
In the present case the issue for the sentencing judge was the same as in Edwards. The court had to determine whether a hospital order combined with a restriction order under sections 37 and 41 was the appropriate disposal as opposed to whether a sentence of life imprisonment combined with a section 45A order should be imposed.
The Prosecution submitted that the defendant had a higher degree of responsibility due to the fact he had voluntarily discontinued taking his medication which resulted in him suffering from a relapse.
The three consultant psychiatrists differed from the Crown and all recommended a disposal under sections 37 and 41.
Expert evidence is essential
It cannot be stressed sufficiently the importance of calling evidence from the expert psychiatrists to deal with all of the issues as they may pertain to any given defendant on an individual basis as set out above. This is important as the Court of Appeal will be unwilling to hear evidence on appeal that could and should have been called at the original sentencing hearing.
In our case the psychiatric evidence was crucial to determining sentence for two reasons.
Firstly, the expert gave evidence on whether the defendant’s decision to discontinue his medication would have been conscious or not conscious. This was an important issue which would determine the culpability/responsibility of the defendant. The defendant had a long history of suffering from paranoid schizophrenia. The expert explained that the answer to this question was not clear cut. One of the main problems in managing schizophrenic patients in the long term is keeping them on their anti-psychotic medication. It is very common for them to discontinue medication due to them having a lack of insight into their mental illness. That discontinuance can then result in a relapse. The expert explained that on the one hand you could say the discontinuance of the medication was a characteristic of the mental disorder and that poor compliance with medication was linked with the mental illness but, on the other hand, the patient does have a degree of control. However, the expert explained that his preferred opinion for the discontinuance of the medication was to see it as part of the mental illness. The medication and what he was being told to do was evil.
Secondly, the most significant and important part of the expert’s evidence related to the appropriate disposal and specifically the release regimes under section 37/41 and section 45A. The expert explained that in a section 37/41 case if the defendant was released by the Home Office or a mental health review tribunal then he would be conditionally discharged. The terms of the conditional discharge would vary but would have two mandatory conditions which include the fact that the defendant would have to be followed up by a responsible clinician and social worker and that he would be liable to be recalled to hospital if his mental health deteriorates. Many other conditions can be imposed and in this case a routine condition would be that the defendant continues his medication. Conditions of residence can also be imposed. The expert explained that there was a high level of supervision under the watch of mental health professionals. If the defendant was released after a prison sentence following a section 45A order, the supervision would be by the Probation Service and the defendant would be liable to be recalled to prison.
The expert categorically stated that in a case dealing with major mental illness the most appropriate way of protecting the public would be an order under sections 37 and 41. The expert formed this view because the post-supervision was by a consultant psychiatrist and a social worker. The expert described this as double supervision. The expert explained that these would probably be the people who had dealt with the defendant in hospital and so would be much more tuned into the risk of discontinuance of medication and be aware of signs of relapse.
The expert evidence also referred to the benefits of a section 37/41 order to the defendant’s own mental and physical health. One of the experts expressed concerns about the impact prison would have on the defendant’s health and this was viewed as another reason for a section 37/41 order been the appropriate disposal. This is an easy factor to forget and is an important part of the decision-making progress.
Following consideration of the three expert reports, and particularly after hearing live evidence from one consultant psychiatrist, the Learned Judge viewed the appropriate disposal as a hospital order under section 37 combined with a restriction order under section 41.
The Learned Judge remarked that the defendant’s level of culpability in this case was low and that the decision not to take the medication was more linked to the defendant’s mental illness than a conscious decision.
A significant feature to be considered in many cases of this type is what is likely to happen to a defendant once he or she had served their sentence.
The reality for many in most parts of the country is that the provision of mental health services upon release from any sentence is limited or even none existent. NHS Trusts and the Probation Services have limited resources and provide only those services they have to, or alternatively are able to fund and choose to.
Release from a determinate sentence where a S45A order has been imposed places no requirements for either mental health services or the Probation to put in place any provision for post release follow up. The reality is, as far as we are aware or have been advised, this is rarely provided. In any event there is no duty or power to do so or for the court to order the same. In relation to indeterminate sentences this will of course be a matter for the Home Office and the conditions imposed upon the order for release.
The benefit of S37 and S41 orders is that upon release, if that ever comes, the offender will monitored, as best can be provided, and may be subject to their being returned to the hospital environment subject to the breach of discharge conditions as set out above.
In seeking to persuade the court what may be the most appropriate sentence or disposal going forward one must be careful to weigh up the advice and opinion provided by the experts and at the same time closely consider what is in the best interests not only the lay client, but in our respectful view the best interests of public safety.
Nigel Edwards QC, George Hazel-Owram and Eric Watson
Suspended Sentences and COVID-19
On the 30th of April 2020, the Court of Appeal (Criminal Division) passed judgment in the case of R v Manning (Christopher)  4 WLR 77;  EWCA Crim 592.
In considering the judgment, this article will focus on the points of principle emanating from that ruling and the wider impact on all sentencing exercises that are taking place during the current COVID-19 health pandemic.
The Court of Appeal were tasked with deciding a case referred to them as an unduly lenient sentence under section 36 of the Criminal Justice Act 1988.
On the 24th of February 2020, the Defendant was sentenced for four counts of Sexual Activity with a Child (contrary to section 9(1) of the Sexual Offences Act 2003) and for one count of Causing or Inciting a Child to Engage in Sexual Activity (contrary to section 10(1) of the Sexual Offences Act 2003). He was sentenced to an overall sentence of 12 months’ imprisonment suspended for 24 months with a 9 month electronically tagged curfew and a 30-day Rehabilitation Activity Requirement. A Restraining Order was imposed for 5 years, alongside a seven-year Sexual Harm Prevention Order. Compensation in the sum of £7,500 was ordered.
Arguments were advanced before the Court of Appeal primarily on where the matters fell within the Sentencing Guidelines. The detrimental impact of the offending on the Victim was evident. This was balanced against what was known about the Defendant. It was common ground that the 47-year-old lived with his parents, was of previous good character, was in employment and had been described by psychiatrists as ‘naïve and immature’. The Court were also aware that he had been engaging positively with the Probation Service since the sentence was imposed and had paid the Compensation Order in full within 14 days of it being ordered.
The Court of Appeal allowed the application, in part, and found the original sentence imposed to be unduly lenient. The original sentence was substituted for a sentence of 24 months imprisonment suspended for 24 months with the same conditions attached as before. Crucially, therefore, the sentence remained suspended.
Principle and Guidance
When passing judgment on the application the Court dealt with matters of general principle. Further, the Court provided guidance to sentencing courts, particularly when sentencing during the COVID-19 pandemic. The Court stated at paragraphs 41 and 42:
41. We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the COVID-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19
42. Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. Moreover, sentencers can and should also bear in mind the Reduction in Sentence Guideline. That makes clear that a guilty plea may result in a different type of sentence or enable a Magistrates’ Court to retain jurisdiction, rather than committing for sentence.
In deciding whether to suspend a custodial sentence the courts are guided by the Sentencing Council’s Imposition of Community and Custodial Sentences guidelines which highlight the following factors as relevant when considering whether to suspend a custodial sentence: (a) Realistic prospect of rehabilitation; (b) Strong personal mitigation; and (c) Immediate custody will result in significant harmful impact upon others.
Whilst the impact of an immediate prison sentence on a Defendant has always been a factor for the sentencing court to consider, paragraph 41 of this judgment brings the need to consider the prison conditions a Defendant sent to immediate custody will face to the forefront. This judgment makes it plain that when considering the issue of a suspended sentence during the COVID-19 health crisis that conditions and regime in prison should be key considerations when deciding whether or not to suspend the sentence.
In addition, the judgment at paragraph 42 also guides courts to consider that if immediate custody is the only option in a particular case the length of that immediate sentence should take account of the fact that current prison conditions and regimes make the imposed sentence more onerous. It is therefore a proper factor to consider when calculating the length of any immediate prison sentence.
The points of principle that emanate from the judgment in this case and the clear statement that current prison conditions are a proper factor to consider on the issue of whether a sentence should be suspended and, if not, on how long that sentence should be provides a strong basis for all pleas in mitigation during the COVID-19 crisis.
Coronavirus Offences: Making the Case for Proper Scrutiny in the Magistrates Courts
At 1pm on 26th March 2020, The Coronavirus Act 2020 (“the Act”) and The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”), came into force.
In very brief summary:
- The Act, via Section 51 and Schedule 21, confers far-reaching powers on the police and other public health officers to issue directions, instructions, requirements or restrictions to any person suspected of being infected with Covid-19. It is an offence for that person to fail to comply without reasonable excuse. The powers vary slightly between England, Scotland and Wales. All offences created by the Act are summary-only and punishable by a maximum level 3 fine.
- The Regulations provide substantial restrictions on businesses operating, on the movement of individuals and on any type of gathering. There are equivalent, but subtly different, Regulations for Scotland and for Wales. Again, the offences are summary-only and punishable by a fine.
There was little doubt in the legal community that this Act and these Regulations, so extensive in their nature and compiled under pressure of time with so little scrutiny (it is notable that the Regulations were laid before Parliament at 2.30pm that day, an hour and a half after becoming law) would be a recipe for disaster. To compound the situation the Government, through the medium of the daily press conferences, issued “guidance” or (as the Health Secretary referred to it) “instructions” which bore little resemblance to the law which had been brought into force.
Widespread confusion inevitably followed. Public parks were closed by well-meaning local authorities only to be swiftly directed by the Government to open again. Derbyshire Police chased dog walkers around the Peak District with drones. Cambridgeshire police threatened to check supermarket customers’ shopping trolleys for “non-essential” items. South Yorkshire police apologised after forbidding a family from using its own front garden. There was a twitter storm, media coverage and increasing public outcry.
However, we were to be reassured that, ultimately, these offences lay in the exclusive jurisdiction of the Magistrates’ Courts. Any charge arising from these new laws (whether via unpaid fixed penalty notice or arrest) would come before the local Magistrates’ Court to be dealt with lawfully and fairly. The wrongs would be caught and corrected.
Then came the first prosecution under the new coronavirus laws; the case of Marie Dinou. And it went spectacularly and unforgivably wrong. For those who are not familiar with the case, a precis:
Ms Dinou was apprehended by British Transport Police for loitering at Newcastle Central Station on Saturday 28th March 2020. She was arrested under the Act after she refused to speak to officers, to give her name, or explain her reason for being away from her home. She was brought to North Tyneside Magistrates’ Court on Monday 30th March, having spent nearly 72 hours in custody.
On Friday 3rd April, The Times reported that, at this hearing, she had been “found guilty” under the Act and fined. It was pointed out that as there was no suspicion that Ms Dinou had been infected therefore there was no case whatsoever against her under the Act.
The next day The Times reported more revelations about the case over and above the wrongful conviction of Ms Dinou.
Ms Dinou had been brought to court in custody, she had not uttered a word for days and did not speak in the dock. She appeared before a District Judge and it was suggested that she should be seen by a Mental Health officer regarding her capacity to take part in the proceedings. The District Judge refused, determined that she was simply “being obstructive”, sent her back down to the cells and then proceeded to hear the case in her absence. She found the case proved and then sentenced Ms Dinou, about whom the court had no financial information, to a fine of £660 – a sentence which was “aggravated because it was committed under the current conditions”.
Everything which could possibly have gone wrong in this case, did. Ms Dinou should not have been arrested and held in custody for an offence which she did not commit. She should have been seen by a mental health officer before the hearing proceeded. She should not have been sent back down to the cells while the case against her went ahead. The case should not have proceeded in her absence when she had been removed from the court room by the Judge for, essentially, being too silent. Her sentence should not have been aggravated by “the current circumstances” as the offence existed only in those circumstances.
There was a plethora of error, but one saving grace. As the first prosecution under the new coronavirus laws, the case garnered media attention. Through the perseverance of Fariha Karim, she was able to obtain information about the case and expose it publicly. This led to the British Transport Police, through the CPS, relisting the case under Section 142 of the Magistrates’ Courts Act 1981 and the conviction being set aside.
At this point the media, and the public, had their antennae up. On 14th April 2020, The Guardian reported that a 21 year-old man had been prosecuted under the Act and fined by Wimbledon Magistrates’ Court, but there was no suspicion that he had been infected so the offence did not apply. Conviction set aside. On 28th April 2020, The Times reported the prosecution of Lewis Brown at Oxford Magistrates’ Court, who was sentenced to £100 fine for an offence which only applied in Wales. Conviction set aside.
The CPS then undertook to review all completed prosecutions under the Act and the Regulations. On 15th May 2020, the CPS announced the result. There were 44 cases under the Act and every single one had been incorrectly charged. 31 cases had, by hook or by crook, been identified as incorrect before reaching the conviction and sentencing stage. These were withdrawn. 13 cases had been less fortunate and had therefore been returned to the court of error for the convictions to be set aside. Max Hill QC, Director of Public Prosecutions, acknowledged that in most of these cases the Defendant would not have had legal representation. As fine-only and summary-only offences, legal aid would be unlikely.
The CPS have now undertaken to review all outstanding prosecutions under the Act and the Regulations. These include the case of a 15 year-old boy, currently bailed, for offences under the Regulations which apply only to persons aged over-18. They further include the prosecution under the Regulations of Sultan Monsour, a homeless man, who appeared at Westminster Magistrates’ Court on Monday 11th May 2020 for an offence of “being outside the place where [he] was living, namely no fixed address”.
In the absence of legal representation, the justice achieved and awaited in these cases is the accomplishment of the press. But the Coronavirus cases should not be seen as injustices existing only in these unprecedented circumstances. Consider the mistakes in the case of Ms Dinou. These are not particular to the Act under which she was charged. What these cases have exposed is the risks of unrepresented Defendants being dealt with by a court behind closed doors. What they show is the importance of scrutiny in our justice system.
And so to scrutiny. A common misconception is that the Magistrates’ Courts are not courts of record. All Courts in England, with the exception of lower tribunals, are courts of record. The misconception exists because the way in which the public and the press can access records of Magistrates’ Court cases is so restrictive and onerous as to essentially equate with no records being made at all.
Under Rule 5.4 of the Criminal Procedure Rules, the Magistrates’ Courts and Crown Courts have the same obligations as to the matters which are to be recorded. These include; the charges or indictment, the identities of the parties and their representatives, any decision and reasons. The distinction between Magistrates’ Courts and Crown Courts comes at Rule 5.5 which only requires recording and transcription in the Crown Courts. However Rule 5.5 is not the reason why there is such a stark difference in the transparency and scrutiny of Crown Court versus Magistrates’ Court cases.
I spoke with Tristan Kirk, who is the Courts Correspondent for the London Evening Standard. He told me that, due to timing and costs considerations, it is extremely rare for a reporter to apply for the transcript (made under Rule 5.5) of a Crown Court hearing. However, the access to the records (made under Rule 5.4) is significantly more reliable and straightforward in the Crown Court. The court offices are more responsive, the records are more forthcoming, any issues with press access can be referred immediately to a Judge for a decision. Even more importantly, the lists appear publicly and are accessible to all on Court Serve and the press can be given access to certain documents from the Digital Case System. For remote cases, the reporter can identify the hearing and email the court to be given access via skype. In the event that a hearing is missed, the reporter may email the court for the result and/or for certain documents on the Digital Case system, such as the Indictment and Case Summary.
Contrast this with the position in the Magistrates’ Courts. The Magistrates’ Courts are obliged to notify the press of the list of cases and charges for the next day. This list is not published and unfortunately this duty is often overlooked. Even when lists are sent, they do not include custody cases – which are often the cases of the highest degree of public interest. If the reporter is able to identify a case, they may attend the court and ask to be given access to the public gallery. The Magistrates’ Courts are operating different regimes to comply with social distancing, and so this request may be declined. At first appearances, the Magistrates or District Judge will have been provided with the Case Summary in advance and very little may therefore be said in court, other than submissions on bail or venue. It is then up to the Reporter to persuade the prosecution advocate to provide them with a copy of the Case Summary, often they say no. In the event that the Reporter has been unable to attend the hearing or access the information they require, they can apply to the Court to provide certain information under CPR Rule 5.8. This application needs to be heard by the Bench who dealt with the case. It often therefore takes a long time to be heard, at which point the ability to effectively report has passed.
Now is the moment for change. As social distancing prevails, the scrutiny by the press of Magistrates’ Courts proceedings is even more limited. The press have demonstrated their importance to the justice system by reporting cases such as that of Ms Dinou. In the absence of fair and proper representation of every Defendant in the Magistrates Courts, there must beproper scrutiny.
It is not difficult to see how this could be done. At present, papers for First Appearances are emailed to advocates via CJSM. Switch this to a Digital Case System and allow press access to certain of those documents. Cases now are listed with time markings in the Magistrates Courts; publish these on Court Serve and update them in the morning to add Custody Cases. Streamline press applications for information under CPR Rule 5.8 to require that they be answered within one working day by a resident District Judge, by telephone hearing when necessary.
We are at a stage where the Government are speaking of “flexible working hours” and 24-hour courts for protestors. Commentators are turning their attention to solutions to the Crown Court backlog, many of which involve the Magistrates. Criminal Justice needs to take place quickly and in an environment of social distancing and remote hearings. The risks are at their highest, the ability to mitigate these risks is at its most straightforward.
Musings from my Lockdown Life
My last ‘live’ day in court was 20th March 2020. It seems like such a long time ago. I remember stepping out of the CFC onto High Holborn which was already starting to look eerily quiet as the UK was lurching slowly but surely into the current public health crisis and the following week, into lockdown.
Having been speculating that this was going to be an inevitable course for weeks prior, I ambled into the bookshop next door and bought a stack of paperbacks which I was convinced I would be able to plough through over the lockdown which I was sure was going to happen.
And indeed, it did. Lockdown life initially was alarming, anxiety inducing and probably not introduced as quickly as it might have been but eventually, a week or so later the announcement was made, and we bunkered down. The children’s schools had closed. My daughter, aged 11 in her first year of high school and my son, 6 years old and in primary. We’ll all be at home; the courts had closed, and the sun was out. The husband was starting a new job and was going to be working from home anyway. It’ll be just fine, we thought.
All of a sudden, our old routines were thrown out of the window and a new pattern emerged. The children pulled out of their structure of school, adopting a ‘relaxed’ approach given that the Easter holidays were imminent, and I wondered what was going to happen with work in those early days. Fortunately, chambers was well ahead of the curve and brilliantly managed but I would still wake up in a cold sweat anxious that my career was in ribbons!
My aspirations of catching up on volumes of CPD and my novels rapidly disintegrated in the face of a relentless and never-ending round of cooking, cleaning, laundry and entertaining the children. In between that cycle, I managed to spend some time catching up on ‘casework admin’ – drafting defence statements and skeleton arguments, advices on evidence and responding to applications. The realisation of quite how much unpaid work we really do in our jobs was all the starker with no hearings in sight and no idea of when jury trials may recommence and with them, an income.
Several weeks followed of uncertainty and the family settled into a new routine. Suddenly all meals – breakfast, lunch and dinner were eaten together. Actual conversations took place and for the first time the benefits of an enforced break gave us the chance to step off that hamster wheel of days in court followed by rushed interactions with each other before evenings of prep ready to start all over again the next day. It was hard work but a delight in equal measure and a timely reminder of the important things in life.
A month in, as the courts started to get to grips with the mammoth task ahead, they finally starting to list mentions and shorter hearings by telephone and then video. The CVP which had been being developed was expedited and, in the meantime, Skype for Business and Zoom became our new way of interacting and working.
At the same time home schooling started in earnest. All of a sudden, the daily responsibilities extended to include the multiple classes by Zoom, form times, English and Maths. Daily homework tasks set with deadlines. Not more deadlines! The lack of enthusiasm from my youngest was palpable and the addition of these extra daily commitments was often at odds with the timings and requirements of attending and managing court video hearings. But we tackled each day one at a time, trying to maintain good humour and pragmatism in the pursuit of getting through each day without the wheels coming off. Dialling in for the 10 o’clock mention with a smart jacket on top of sweaty joggers and pumps immediately after the daily morning Jo Wicks workout with the children and a quick ‘form time’ session by Zoom became the norm.
The mute button on skype has never been more essential than when the constant stream of knocks at the bedroom door would start. “Mummy, I’m hungry!”, “Mummy, I need a poo!!!!”, “Mummy, come and tell *** off, she BREATHED in my space”, and so on. My courtroom poker face skills were tested to their outer limits on screen with an occasional pause of the video to try and restore order before coming back in having taken deep breaths and mentally counting to 10.
The sign on the bedroom door ‘Court in Session. Do not disturb’ just wasn’t having the desired result. The day I failed to realise I hadn’t locked the door behind me was a classic moment of horror as my son skipped into the frame in his pants, singing at the top of his voice and taking huge delight in his appearance on video. I’m starting counselling after lockdown!
Eventually, the message hit its mark and my son realised that the magic of the Do Not Disturb sign meant that if Mummy’s ‘in court’, all bets are off and watching non-stop WWE wrestling videos on YouTube and playing on the Xbox for more hours a week than the average full time worker was quite possible. With the added joy of unhindered access to the fridge and the snack cupboard, sometimes things got so quiet that I would have to keep popping downstairs to check that no-one had left the building.
Fast forward to mid-June and the gears have shifted once again. My son has returned to (socially distanced) school and we’re still waiting for news on when Crown Court trials will resume. Slowly but surely plans are afoot for re-opening court centres in new socially distanced ways. One way systems through the building with one entrance and a different exit, talk of discarding robes and wigs to avoid the need for robing rooms and the conundrum of how we’re ever going to make a real dent in the huge backlogs which were already clogging up the Crown Courts long before the COVID crisis.
Mentions and Case Management hearings are coming in more and more often with carefully worded enquiries by Judges about the prospect for movement in cases that have already been in the system since last year and are now looking at trials potentially not before next. The CPS seem to be taking more considered decisions on whether certain cases really are in the public interest to pursue rather than the previous gung-ho approach of just leaving it to the jury. Despite best efforts though, the backlogs when trials do eventually start again in any volume are going to be even greater. For those of us at the criminal bar who can make it through this seeming financial purgatory, there will, I hope, be an abundance of work. I look forward, as I’m sure we all do, to getting back to the cut and thrust of it, getting back to the camaraderie of the Bar. Seeing our opponents, being able to actually read the Judge and most importantly, being able to speak with our clients face to face and advance their cases. Go back to doing the job we love.
But I hope we will be able to hang on to some of the lessons of the Lockdown of 2020. The importance of spending time with our loved ones. Putting our work life into perspective. Taking the time to take care of our physical and emotional selves. Keeping a balance to work and play. In lockdown I have done some things I never would have had time for. I joined a virtual choir and recorded a video. I have taken part in more (virtual) meetings with friends and colleagues in chambers than I ever might have managed in real life. I have attended seminars and listened to lectures I would have ended up missing because of work commitments. I have lost over a stone. I have reversed my diabetes. There have been many challenges but there have been benefits in equal measure. I hope we can all hold on to these as we enter the new normal, whatever that may be.
In case you’re wondering, I never did manage to pick up even one of my new paperbacks. I hope I will get around to them one day soon!
From the Clerks' Room
I hope everyone is keeping safe and well.
I hope that moving forward we can continue to be more tech friendly when it comes to court work. Lockdown has proven that the courts, on occasions, can rely on telephone hearings/video links for mention hearings that do not require Counsel’s physical presence. I think we can all agree that there is a lot of positives to be gained from it.
I look forward to getting back to the office and seeing you all sooner rather than later!