Tag Archives: Magistrates’ Court

Head of Mormon Church summonsed to court, accused of fraud

Image from The Telegraph/Getty 2009

Image from The Telegraph/Getty 2009

The Telegraph and Times amongst others report today that the head of the Mormon Church, Thomas Monson, has been summonsed to appear before Westminster Magistrates’ Court accused of fraud (6 February 2014). The Telegraph called the summons signed by District Judge Elizabeth Roscoe, ‘one of the most unusual documents ever issued by a British court.’

Tom Phillips, a former member of the Church of Jesus Christ of Latter-day Saints, laid the information before the magistrates’ court alleging that by promoting the teachings of the Mormon church that may be untrue, Mr Monson commits fraud. The allegation of fraud relies on making the claims enumerated for gain. As the court is seized of this matter, I shall say no more. The ethics of a criminal court adjudicating on moral or religious issues is considered by Frank Cranmer on his Law & Religion blog, here.

Readers may wonder how this even came about. Some have expressed surprise, but without commenting further the Judicial Office has confirmed the authenticity of the summons.

The law

Prosecutions in England and Wales are usually brought either by the police or the Crown Prosecution Service, and increasingly by the RSPCA. The police will often arrest and charge, but prior to 2006 minor offences were ‘non-arrestable’. For instance, a person alleged to have committed a common assault or littering would have had to be summonsed to appear before the court. In a similar way, private individuals, such as Mr Phillips or you or I, can commence a prosecution in the magistrates’ court by laying an information. If the offence alleged is an either way offence, it may end up before a judge and jury in the Crown Court. An indictable offence will always end up before the Crown Court. It is unusual for a serious offence such as fraud to be commenced by way of summons, but that is because alleged fraudsters are usually arrested by the police and charged, and released on bail to appear before the court.

Anyone who has been prosecuted for speeding or using their mobile phone whilst driving will be familiar with the process of being summonsed to court. A summons is simply a way of compelling a person to attend the court so that the charge can be put to them. It all starts with an information. The information will be considered by a legal advisor (or ‘clerk’ in old money) or by a magistrate. The presumption is that a summons will be issued, subject to satisfying the following conditions:

  1. the information alleges an actual (as opposed to made up) offence – such as fraud
  2. the information was served within time
  3. that the court has jurisdiction to hear the matter
  4. that the complainant has authority to prosecute (not an issue in this case)

The Telegraph reported,

Malcolm Adcock, the church’s public affairs director for Europe, said: “The Church occasionally receives documents like this that seek to draw attention to an individual’s personal grievance or embarrass church leaders. These bizarre allegations fit into that category.”

But Mr Phillips said: “The head of the Mormon Church has been summoned to a court to answer allegations of fraud – I don’t think a judge at Westminster Magistrates’ Court would sign off on ‘bizarre allegations’ – I certainly hope they never would. This has been a very serious matter that has been looked at in extreme detail.”

Well, yes and no. Issuing a summons is a judicial function (R v Brentford Justices ex parte Catlin [1975] QB 455). The court must not ‘sign off on’ and issue a summons that would amount to an abuse of the court’s process (R (Mayor of Newham) v Stratford Magistrates’ Court [2004] EWHC 2506 (Admin)) or is simply vexatious. There is no requirement that the judge must think about the content of the summons beyond the above four points (R (Sykes) v Clerk to Bradford Justices [1999] EWHC Admin 24). We simply don’t know whether DJ Roscoe considered the strength of the allegation prior to issuing the summons.

Can he go to prison?

Whether Mr Monson answers his summons is a matter for him – The Times reports that he has ‘no plans to attend’. Clearly he knows about the summons, so it must have been served. If he does not attend court, the court may issue a warrant for his arrest under Section 1 of the Magistrates’ Courts Act 1980. In this respect he is no different position to that which anyone who receives a summons for an imprisonable offence. Were a warrant to be issued for non-attendance, in practice it would wait for Mr Monson to come into the UK, and he would be arrested probably at an airport on the way into the UK.

What might happen?

Finally, it’s possible that the Director of Public Prosecutions (i.e.: the CPS) could take over the prosecution, if she considers there are ‘substantial reasons in the public interest for not pursuing a prosecution privately commenced.’ (Raymond v Attorney-General [1982] QB 839). So, whether this prosecution will get much further is far from certain. Which perhaps brings us full circle to the question of whether it is in the public interest to being the machinery of the criminal justice system to bear in a case such as this.

Guest post, written by Jon Mack, barrister, Blackfriars Chambers

A view from…the Magistrates’ Court dock

My view from the Magistrates’ Court dock by Tracey McMahon

mags court

My purgatory was to last for nine months. A week after I was interviewed by the police, I received a phone call from the PC who had interviewed me. She requested that I sign a form authorising the police to make further enquiries. If this turned out as I had relayed the story in my statement, then there would be what is known as, an NFA (No further action) I arranged to go into the police station the following week to sign the form.

Here’s the thing. As any conscious offender will tell you, I use the word ‘conscious’ for a reason. This is because I was now beginning to wrestle with my conscience. One of the allegations was false, of this there was no doubt. (It’s a long shot asking people to believe me, I mean come on – I’m a criminal right?)  The other allegation was true. I made sure the sand was keeping my ears warm for sure. I was planning my wedding and nothing was going to stop that, least of all a criminal charge.   Here’s a picture of my rings. Beautiful eh?

 tracey pt2

After signing the form at the police station, life moved on and as I watched my phone each and every day and shook every time it rang, I began to relax as the weeks went by and I heard nothing from the police.

On the 27th August, I was hanging out the laundry as the postman walked into the garden and handed me that day’s mail. I saw this envelope and it was then, call it a sixth sense, I knew what was inside the envelope. The Crown Prosecution Service was charging me. I was summonsed to appear before the local Magistrates’ Court to answer the charges put before me. I had never been formally arrested. There’s no need for that in today’s modern-day provision of ‘services’

On the 18th October at 9.30am I entered the Magistrates’ Court and went through the scanner while the court security guard had a quick poke through my handbag. I had at this point instructed a solicitor and told him prior to the court hearing I was pleading Not Guilty. If I pleaded Guilty to one charge, he would attempt to get the false allegation dropped. I wasn’t having that, I wanted it my way and I set about my own investigation. It was at this point for the first time I was to see the transcription of my police interview. I was handed the paper work and I couldn’t believe what I was faced with. Now, I don’t know what the criterion is for entering the police service these days, but I’d expect them to at least be able to write. Or even worse, if an administrator had written up my interview then he or she deserves to be fired on grounds of gross misconduct. This document to my knowledge was to be placed before a jury of my peers and was my defence. It looked like I didn’t give a shit, that I didn’t care and where I’d answered “yes” during the interview, it had been written “yeah” It was frankly an appalling display of our mother tongue. The prosecution’s evidence against me was even harder to understand. Their photocopier had clearly run out of ink and their girl Friday must have copied that on a Friday afternoon at 4:58pm and couldn’t be arsed to do it all again. It was a piece of paper which presented nothing. Even my solicitor had the grace to be a little bit embarrassed as I looked at him in horror before I launched into a diatribe of how shit we are in the UK at teaching our secondary school children their own language and was it any wonder that the rest of Europe laughed at our inability to speak and write our own language never mind theirs.

As I was seated in the court waiting area, I watched those around me. It was like watching an episode of Shameless (incidentally, the TV show Shameless was based on a sink estate where I grew up and was the very town in which I was sitting in the Magistrates court of) as people with various colours of track suits sailed past me dragging children with snotty noses behind them. There were mothers, fathers, grannies, brothers and sisters with members of their family who were ‘up’ for ‘stuff’ I’ve never seen as much snot in my whole life and I’ve cried buckets. I vowed next time I was in there I would be taking a box of tissues to wipe brats’ disgusting noses. Likely I’d get a clout or a profanity edged comment thrown at me, but its snot. I hate the stuff.

I asked the woman next to me if she would like a coffee. The coffee was 30p per plastic cup of shit. Whoever passes that off as coffee should be reported to Trading Standards. She looked terrified and I could tell she was on her own. She then broke down in tears as she told me her whole sorry tale of why she was there. I still speak with that lady today. I have helped her with her CV, written cover letters for her and she is now working for a pharmaceutical company and was given a conditional discharge for her crime. Oddly enough, which we laugh about now, she thought I was her solicitor.

Finally, my snot-induced nightmare was to come to an end. I was called through to Court No. 1. I know that Court No. 1 is serious business. I was told amongst the snot. Comments such as “You’re obviously in the shit if you’re in that court” and “the press are always in there”.  Well, the press were. I’m a scriber; I know when someone’s writing in a hurry. We were told to rise as the three Magistrates entered the room. Everyone else sat down, so did I. Moments later I was asked to stand as my name was read out and I answered the charges which were put to me.  I remember listening as the Prosecutor read out the charges. I was then asked to enter my plea. I spoke calmly but clearly. Not Guilty.  This was my Plea Hearing.  The Magistrates’ bench consisted of two females who were separated by the male in the middle; it was all frightfully proper. I remember looking at the three Magistrates and thinking these people are, for the next few minutes, going to decide what was going to happen to me in the next few moments. The Prosecution had applied for conditional bail. Now, I’m not a lawyer, but the charges were from 2011 and it was October 2012, I’d turned up. Any person who was not devoid of any intelligence could clearly see that I was hardly a flight risk. Equally, the chances of me contacting my victim were slim. Had I been in the business of contacting him, trust me, I’d have been standing there answering a charge of murder. My immediate thought was that they were going to put a tag on my ankle. Still, it was winter so at least no person would see it. My solicitor won the argument and I was granted unconditional bail. The Prosecutor was clearly new and very young. She stumbled with her words a little. I felt for her. I couldn’t help it. I wanted to go up to her and say “you’ll be fine” Odd thought process, given the scenario.

Finally, a date was set for a committal hearing. In six weeks I was summoned to go through it all again.  We all stood up again as the Magistrates left the court room. I have visions of them going into their little room at the back and commenting “She doesn’t look the type” and the other two shaking their heads, acquiescing. I’d heard stories in the waiting room among my “new friends” about Magistrates’ comments. One lad sticks in my mind, “I was told last time that if I was brought before the bench again, I’d be going down” he claimed. I was expecting a huge bollocking, don’t ask me why. I don’t know. Not the case, I was treated with impassion and as far as I am concerned, that’s absolutely okay.

It was to be another six months before I appeared at Crown Court. I had my committal hearing (yes more snot and I did take the tissues. I also managed to leave with my face intact)

I can write with humour about the situation but there is nothing more humbling than being charged with a criminal offence. It was a humbling experience when I came face to face with people I’d likely have crossed the street to avoid previously. We all had something in common. We had been charged with a crime. It’s so hard to define my true feelings. It was the day my life began to unravel. I draw again on people in my life who have pulled me back from brinkmanship so many times. “If you cannot feel Tracey, you must hurt” That hurt started, like a pressure cooker with the lid on. Round and round in my head I went. Turmoil and torment were simmering nicely under the lid. I met myself again. Everything I had pushed away deep in the very core of my mind began to rise and catch up with the cold, hard, impassionate woman that stared back at me every morning. That’s what lying did to me. I justified my lies with never having to feel the guilt.

Guilt is a killer. It twisted me, it changed my moral compass and drove me to hurt the people I love. With the same impassion I’d been shown by the Magistrates’ that day, I lied to myself, to my fiancé, to my defence team and I was to continue lying… for six months.

Those lies were to cost me everything. Home. Fiancé.  Friends. Father.B rother. The final knife I stuck into myself and twisted incessantly, I’d lost the chance to rebuild anything with my children.

I’ve been in a “system” since being a child. Back in 1977, I’d stood in a county court as a nine-year old, explaining in only the way a nine-year old can, how my mother was neglecting me. I watched my parents rip chunks out of each other over me.  Of course, that wouldn’t happen today. Then 25 years later I was to stand in a front of a Family Law Judge fighting for my children.  I’m pretty used to “systems” I’ve been in the High Court with a Family Law barrister. I’m a system slut in all honesty. I’ve been around the “systems” of the UK for the majority of my life.

Now, I was in the Criminal Justice System.

By Tracey McMahon

About the author: Tracey McMahon is a 45 year, copy writer/transcriber/translator. She has been convicted of a criminal offence and is currently serving her sentence.

A view from… the Magistrates’ Court bench: The appointment and role of a JP

My view from the Bench

By Beaky JP

 First a little introduction. I am a Magistrate with nearly 20 years’ experience on the Bench. I am an Approved Chairman and an appraiser of other Magistrates. In my day job, and somewhat unusually for a Justice of the Peace, I also happen to be a qualified and practising Solicitor in the City of London. This little musing is intended to cast a little spotlight on what it’s like to be a JP in the 21st Century. I hope to dispel some myths and correct a few misconceptions. Any cases that may be referred to will be completely anonymous and certain facts changed if they are so unique as to allow any sort of identification. While I may comment at times on the Criminal Justice System, I will say nothing that might bring the Magistracy into disrepute. It is an office under the Crown and over 630 years old in the making…it is something Britain should be very proud of. Now read on…

The role of the Magistrate has been very much in the news recently. There are changes afoot in the Criminal Justice System and articles in the national Press and on Social Media and in particular some of the comments of the great British Public, have illustrated just how much ignorance there is out there about just what a JP does. So in this first of an occasional series, I’m going to try to explain who JPs are, how we get appointed and what happens when we are.

Appointment Process

The traditional image of a JP is a crusty old Colonel or Grande Dame in large hat and gloves whose appointment came about masonic like by a gentle tap on the shoulder by someone equally grand and a few whispers in the right place. WRONG. Today’s JP can be anyone – the youngest appointee was 18 and retirement is compulsory at 70. There are no secret discussions; application is by a long and detailed form available from the Ministry of Justice website followed by interview by a panel of 3 members of a Local Advisory Committee comprising both serving magistrates and non magistrates. A recommendation is then made to the Lord Chancellor after CRB checks, and hey presto, about a year after initial application, you may make it onto your local bench. The Advisory Committee members have themselves been specially appointed (after application and interview) and trained for the role. The system is transparent albeit sometimes long and drawn out to ensure that only candidates with the necessary skills and qualities (and stamina!!) make it through.

Pay

Zilch, nada, not a bean!! JPs are volunteers and certainly aren’t in it for the money!! It’s fascinating when sometimes I have visited schools and colleges to talk about the work of the Magistracy and the very first question often asked is ‘What do you get paid then?’ The looks of disbelief on the faces of the kids are a thing to behold, if a little disappointing to be honest. The concept of ‘volunteering’ is a bit alien to some of the little dears. We ARE entitled to some travelling expenses and a small subsistence allowance (Just over £7 which just about covers a sandwich and a cup of coffee for what can be an 8 hour day). Self-employed colleagues can claim what is called a Financial Loss Allowance up to a maximum of around £130 a day but recently the MoJ has moved the goalposts making it far more difficult for the FLA to be claimed.  The loss has to be ACTUAL and provable and for many self-employed, this is simply not possible. How can a small shopkeeper for example prove that a customer didn’t come into his shop because he was in court instead of behind the counter? How can I as a professional lawyer prove that I lost client time when I can (and do) make it up at midnight and on the weekends despite this being unsocial hours which I would rather spend with my family?

 The knock on effect of this may be to discourage ordinary working people from applying or continuing as JPs and this cannot be in anyone’s interest, least of all the CJS. I’m not sure anyone has actually explained that to the MoJ!

Training

Once appointed, the really hard work starts. Newly appointed JP’s must observe in at least 2 different court houses, and undertake extensive training before they are allowed to actually sit on the bench. While they are not expected to be experts in the law – a legally qualified clerk provides that bit of the equation – they DO need to understand a significant degree of legal procedure and practice. They are the arbiters of law and fact at the end of the day and detailed structured decision making processes must be followed in order to ‘do the job’ properly. Sentencing Guidelines are provided to all JPs and again must be adhered to,  to try to ensure consistency in approach to cases throughout the land. Of course there are slight variations in sentencing – they are guidelines not tramlines and no two cases (or defendants and their circumstances) are exactly the same. Nevertheless, in studies of sentencing practice since the Guidelines were introduced, a far more consistent approach has been identified.

Initial sittings of new magistrates are mentored by a more experienced JP. Every new magistrate has an individual mentor assigned to them. The mentor has been specially trained for the role and provides both information and a shoulder to cry on for the first year or so. Reports on these sittings are prepared and submitted to a Bench Training and Development Committee, at the end of which, a formal Appraisal is carried out. Based on set competencies, criteria and behaviours which need to be demonstrated, specially trained Appraisers vet the newbie and prepare a ‘Threshold Appraisal’ report for the BTDC. Only if the BTDC consider the JP competent are they passed to continue. Failure at this stage will probably lead to additional training and support until a further appraisal is held.

 Every magistrate, no matter how long they may have been on the bench is appraised at least once every 3 years and the competencies demonstrated. Training is a continuous process. Every time a new piece of legislation concerning the courts – whether procedural or a significant new criminal offence – training is provided. Sometimes it is provided by the Judicial College – kind of like School for Judges – and sometimes by the local court staff themselves.

 So, just as a final word, please remember that it is extremely irritating for many Magistrates when they hear comments – often I’m sorry to say by young baby barristers – patronisingly suggest to a bench they can’t be expected to understand the esoteric but ‘extremely important’ point they are trying to make. While very naughty of me I have been known to reply that yes, with only 25 years as a solicitor under my belt, I really struggle with the concept of shop theft, please carry on and enlighten me. Strangely, they tend to move on rather quickly after that!!

Prosecutions by PC Plod

Another day another seemingly radical cost-saving endeavour thought up by the government.

Recent news is that the Attorney General Dominic Grieve QC is advocating a new role for police officers. In short, they’re going to be turned into Magistrates’ Court prosecutors! His suggestion is that police officers should prosecute summary criminal matters. At present, these cases are prosecuted by members of the Crown Prosecution Service or instructed counsel. The idea is designed to free-up the overworked CPS prosecutors from the simple and mundane non-contested matters.

Presumably these police officers will be legally educated, trained and will have undergone the requisite training contract or pupillage to allow them rights of audience in our courts? Erm, no. Presumably they will be independent prosecutors, constantly bearing in mind their overriding duty to the court rather than their colleagues at the police station? Hhhmmm…you can see the potential difficulties there.

At present if independent counsel is briefed to prosecute a “list” of matters in the Magistrates’ Court, they will be authorised to present the case but have no authority to make decisions. If, for example, none of the prosecution witnesses attend court, we, as experienced barristers, cannot take the decision to offer no evidence on our own volition, but have to telephone the CPS to take instructions. Invariably we will speak to an administrative assistant who will have had no prior dealings with the matter. They will ask for our advice, we will advise and they will then instruct us to follow our advice! So what will happen when PC Plod prosecutes? PC Plod having no legal qualifications, no court experience and no appropriate training! Am I the only one thinking this isn’t going to work?!

The Guardian reports on the matter here.

The Magistrates’ Court – The First Appearance

Almost all cases start in the Magistrates’ Court, no matter what the seriousness.

A first appearance in the Magistrates’ Court will be the first opportunity a defendant has to make representations to the court.  It’s very important to attend hearings promptly as if your case is called on the court may proceed in your absence.

It’s always advisable to seek legal advice and representation.  Nothing in this blog should be construed as legal advice, a solicitor or direct-access barrister will be able to advise you on what to do when faced with a prosecution.  It is possible to contact the court and ask for a list of local solicitors firms.  Some firms offer free initial advice.  If you are unemployed or on a low income you may be eligible for legal aid.  Your solicitor will fill in legal aid forms with you and submit these to the Legal Services Commission, who will then decide whether you are eligible for free representation, whether you have to financially contribute to that representation, or whether you are not eligible for legal aid.

Ensure you arrive at court at least 30 minutes before your hearing.  Magistrates’ Courts generally open at 9am and hearings start at 10am and 2pm.  If you haven’t sought legal advice or representation, ask to see the duty solicitor.  They will normally be able to represent you at the first hearing, for free.

Not guilty plea

If you plead not guilty the case will proceed to ‘mode of trial’.  Some offences can only be tried in the Magistrates’ Court (‘summary only’ offences).  More serious offences can be tried either in the Magistrates’ Court or at the Crown Court in front of a judge and jury (‘either-way’ offences).  Very serious cases may only be tried in the Crown Court (‘indictable only’ offences).

Mode of trial

If the offence is an either-way matter, the prosecutor will advise the court which venue is more suitable.  You or your representative will be asked to comment.  You may choose to be tried at the Crown Court even if the prosecutor and the court feel the Magistrates’ Court is the more suitable venue.  If your trial is to be heard in the Magistrates’ Court a trial date will be fixed.  For Crown Court cases, you will be informed of the next hearing date, which will either be a committal in the Magistrates’ Court (where the case papers are formally submitted in preparation for trial) or a Plea and Case Management Hearing in the Crown Court (where the formalities of the trial, such as witnesses and time estimates, are discussed).

Guilty plea

If you plead guilty, the court may proceed to sentence.  In either-way cases the Mode of Trial provisions described above apply, albeit the court will be determining ‘mode of sentence’.  If the offence is deemed serious, the Magistrates’ Court may send you to be sentenced in the Crown Court.  If, on the other hand, the Magistrates’ Court feel their sentencing powers are sufficient, you will be sentenced in the Magistrates’ Court.  The court may ask for reports to be made on you.  If this happens, you will then see probation to discuss the circumstances around the offence.  This may either be on the same day or a different day.  At a later hearing, the prosecutor will relay the facts of the case, probation will give a written or oral ‘Pre-Sentence Report’ and the court will sentence you.

Indictable-only offences

The most serious offences can only be tried or sentenced in the Crown Court.  These cases will be ‘sent’ to the Crown Court.