Magistrates: Knowledge of previous convictions

Criminal Law Review

Volumn 1996, Issue 12, 1996, Pages 851-862

  Wasik, Martin ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 3042918806     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (67)

1. Stone's Justices' Manual, (128th ed., 1996), paras 1-39 to 1-45.
2. Ewing [1983] 2 All E.R. 645 at 649. See n.9, below.
3. [1976] 1 All E.R. 241 at 244. See also South Worcestershire Justices, ex p. Lilley [1995] 1 W.L.R. 1595, per Rose L.J. at 1598: "[J]udges, unlike lay justices, are lawyers who have had many years of training in the art, if art it be, of excluding from their consideration irrelevant and inadmissible material."
4. M. Stone and I. McLean, Fact-Finding for Magistrates (1990) at p.1.
5. For discussion of the procedural and evidential problems which arise where trial is by judge alone (in the Diplock Courts in Northern Ireland) see J. Jackson and S. Doran, Judge Without Jury (1995).
6. See Law Commission Consultation Paper No. 141. Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, 1996, App. C (the LSE Jury Research) and App. D (the Oxford Study).
7. Law Commission (1996), paras. 7.2-7.20, referring throughout to "juries and magistrates" but relying upon research directed solely to the former group.
8. See J. R. Spencer, "Jurors' right to know", The Times, August 13, 1992; Schofield J., "Should juries know of a defendant's convictions?" (1992) 142 New L.J. 1499.
9. See J. R. Spencer, "Jurors' right to know", The Times, August 13, 1992; Schofield J., "Should juries know of a defendant's convictions?" (1992) 142 New L.J. 1499.
10. According to O'Connor L.J. in Ewing [1983] 2 All E.R. 645, at 649: "Should the judge have available the antecedents of a defendant who is of bad character? We consider that, in the interests of a fair trial, it is desirable that the judge should know that the defendant is of bad character so that he can, if necessary, fire a warning shot should it seem that cross-examination of Crown witnesses is following a course that will let the defendant's character in. There are other cases where, for example, it is absolutely necessary for the judge to know where the Crown seeks to lead similar fact evidence. The judge must, in order to determine the issue, know much more than will go to the jury in the event of the evidence being rejected."
11. Johnson [1972] Crim.L.R. 180 and commentary. In Harris [1951] 1 K.B. 107, where the defendant's character was in issue, it was held by the Court of Criminal Appeal that the conviction had to be quashed where the jury had been informed, incorrectly, that the defendant had two previous convictions whereas in fact he only had one.
12. Johnson [1972] Crim.L.R. 180 and commentary. In Harris [1951] 1 K.B. 107, where the defendant's character was in issue, it was held by the Court of Criminal Appeal that the conviction had to be quashed where the jury had been informed, incorrectly, that the defendant had two previous convictions whereas in fact he only had one.
13. Points of law should be raised only in open court, so that they can be challenged by counsel where appropriate. If the magistrates are in difficulties the clerk may assist them: Guildford Justices, ex p. Hartung, The Times, January 20, 1981. The clerk should not retire with the justices as a matter of routine, and do so only if invited: East Kerrier Justices, ex p. Mundy [1952] 2 Q.B. 719, Birmingham Justices, ex p. Ahmed [1995] Crim.L.R. 503. Neither the clerk nor the magistrates should assume the role of advocate, though the clerk may assist an unrepresented defendant: Sims v. Moore [1970] 3 All E.R. 1.
14. Justices of the Peace Act 1979, s.16.
15. Grimsby Quarter Sessions, ex p. Fuller [1955] 3 All E.R. 300. Certiorari was granted where the defendant's antecedents had been shown to the recorder during the trial. It was observed by the Divisional Court that "nothing should be placed before an appeal court which could not be placed before a jury".
16. See Jackson and Doran (1955), at p.27 and at pp.240-250.
17. Magistrates Courts Act 1980, s.42(1), Bail Act 1976, Sched. 1.
18. [1990] 1 W.L.R. 438. It was suggested that the judge was prejudiced by holding shares in a bank, at one branch of which the defendant was found to have carried out a robbery.
19. [1993] A.C. 646.
20. An exception is Birmingham Justices, ex p. Robinson (1986) 150 J.P. 1 (facts set out in the text, below).
21. See the comments of Devlin L.J. in Barnsley Licensing JJ., ex p. Barnsley and District Licensed Victuallers' Association [1960] 2 Q.B. 167 at 187.
22. In Gough [1993] A.C. 646 the House of Lords noted that for many years the test applied for bias in respect of magistrates had involved asking whether an "impartial observer" or "reasonable man" would reasonably suspect bias, whilst in respect of juries reference to these standards had not been required, the simpler test of "real danger" of bias being used. The House held that although the two tests would generally produce the same result, it was indefensible to have different tests, and that henceforth the "real danger" test should be used in cases involving either juries or magistrates.
23. Blyth Valley Juvenile Court, ex p. S (1987) 151 J.P. 805.
24. If there is any doubt whether a magistrate can sit on an appeal where he has been involved in any way with the case below, the fact should be mentioned from the start, so that submissions can be made: Bristol Crown Court, ex p. Cooper [1989] 1 W.L.R. 878.
25. An exceptional case is Sandwich Justices, ex p. Berry (1981) 74 Cr.App.R. 132, where there were six separate sets of charges brought against the defendant for driving offences relating to six different days. An application for these charges to be heard by six different benches was rejected, and the matters were heard seriatim by the same bench, the defendant being convicted on some and acquitted on others. The Divisional Court held that the justices had exercised their discretion reasonably.
26. [1983] 1 W.L.R. 119.
27. See n.20.
28. An example is Weston-Super-Mare, ex p. Shaw [1987] Q.B. 640 where, although it was established that the lay justices knew of matters outstanding against the defendant, they had applied to themselves the correct test of bias, and the conviction was upheld.
29. (1972) 136 J.P.N. 80; a.k.a. McElligott, ex p. Gallagher and Seal [1972] Crim.L.R. 332.
30. (1988) 152 J.P. 511.
31. A relevant factor in the case was that the clerk had been asked in advance by the defence to arrange for the defendant to be dealt with by magistrates who did not know him. This had not been done, the clerk having thought mistakenly that the request was for the case to be heard by a neighbouring bench.
32. Byles, ex p. Hollidge (1912) 108 L.T. 270, Birmingham Justices, ex p. Robinson (1986) 150 J.P. 1, per Tudor Evans J. at p.3.
33. By J. Vennard, "The outcome of contested trials" in D. Moxon (ed.), Managing Criminal Justice, Home Office Research and Planning Unit (1985) 126 at p.137. See also P. Murphy and D. Barnard, Evidence and Advocacy (4th ed.), 1994, p.193: "Naturally, magistrates need little experience to realise the significance of a discreet silence about previous character".
34. By J. Vennard, "The outcome of contested trials" in D. Moxon (ed.), Managing Criminal Justice, Home Office Research and Planning Unit (1985) 126 at p.137. See also P. Murphy and D. Barnard, Evidence and Advocacy (4th ed.), 1994, p.193: "Naturally, magistrates need little experience to realise the significance of a discreet silence about previous character".
35. See, for a range of examples in respect of trials on indictment R. Munday, "Irregular disclosure of evidence of bad character" [1990] Crim.L.R. 92.
36. This occurred in the Crown Court trial of Boyes [1991] Crim.L.R. 717 where, as the judge concluded his summing up in a rape trial, the complainant's mother shouted from the public gallery "When is it going to come out about the other five girls he has attacked?" The Court of Appeal quashed the resulting conviction.
37. (1911) 75 J.P. 364. Compare South Holderness Justices, exp. Bonner [1964] Crim.L.R. 537 where the justices were "taken by surprise" by the prosecutor asking questions of the defendant which revealed a previous court appearance on a similar charge. The conviction was quashed.
38. (1986) 150 J.P. 1. See further J. N. Spencer, "Knowledge by the magistrates of the defendant's bad character" (1986) 150 J.P.N. 307.
39. Selvey v. D.P.P. [1970] A.C. 304, per Lord Pearce at 360.
40. Stanton [1994] Crim.L.R. 834.
41. [1978] 1 All E.R. 555 at 559.
42. According to the Law Commission (1966), this branch of the law "has given rise to unending litigation" (p.2). One of the Commission's stated objectives for reform is to render the law "easy for magistrates to understand and apply" (p.3).
43. Practice Direction [1981] 1 W.L.R. 1161.
44. Jones v. Nicks [1977] R.T.R. 72.
45. C. Hampton, Criminal Procedure, 1982, at pp.346 and 350. According to P. J. Rowe and S. J. Knapp, Evidence and Procedure in the Magistrates' Court (2nd ed., 1985), at p.60: "The rules of evidence which apply in trials on indictment have equal application in the magistrates' court, with the necessary modifications to take account of the fact that the magistrate combines the functions both of the judge and of the jury".
46. C. Hampton, Criminal Procedure, 1982, at pp.346 and 350. According to P. J. Rowe and S. J. Knapp, Evidence and Procedure in the Magistrates' Court (2nd ed., 1985), at p.60: "The rules of evidence which apply in trials on indictment have equal application in the magistrates' court, with the necessary modifications to take account of the fact that the magistrate combines the functions both of the judge and of the jury".
47. Blackstone's Criminal Practice, D.18.3. The prosecution should provide the defence with details of the previous convictions, if any, of the prosecution witnesses: Knightsbridge Crown Court, ex p. Goonatilleke [1986] 1 Q.B. 1.
48. See M. McConville, J. Hodgson, L. Bridges and A. Pavlovic, Standing Accused (1994), Chap. 9.
49. ibid., p.225. See also D. McBarnet, Conviction (1983).
50. ibid., p.225. See also D. McBarnet, Conviction (1983).
51. Murphy and Barnard (1994), at p.13.
52. [1979] 2 All E.R. 1222 at 1234; see also Conway v. Hotten [1987] 2 All E.R. 212 at 217. Occasionally, magistrates may have to decide that evidence is inadmissible, where earlier they had decided that it was admissible: Watson [1980] 2 All E.R. 293.
53. Murphy and Barnard (1994), at pp.12-13.
54. In Groves v. Redbart [1975] Crim.L.R. 158 the defence made a submission on the evidence which was accepted by the justices, and they dismissed the information. The law relied upon by the justices was incorrect, running contrary to a well-known earlier authority, and the prosecution appeal by case stated to the Divisional Court was allowed. The court said that had the prosecution case been flawed the justices would have heard evidence which they should not have heard, and their proper course would then have been to remit the entire matter to a different bench.
55. [1968] 3 All E.R. 225; 132 J.P. 526.
56. At p.225 (emphasis added).
57. Although this cannot be taken for granted. Murphy and Barnard (1994), at p.90, refer to the defendant "who will not tell even his own advocate the truth about his character, or who cannot remember all the painful details".
58. McConville et al. (1994).
59. Vennard (1985) found that for triable-either-way offences 57 per cent of defendants were acquitted at Crown Court while the figure for magistrates' courts was 30 per cent, but she comments (at p.142) that the comparison "necessarily over-simplifies the evidential basis of verdicts and leaves unanswered a variety of questions concerning the competence of the two tribunals at arriving at just verdicts".
60. Vennard (1985) at pp.144-145.
61. McConville et al. (1994) at p.217; Vennard (1985) at p.145.
62. Liverpool Juvenile Court, ex p. R. [1988] Q.B. 1.
63. Bromley Magistrates Court, ex p. Smith [1995] 1 W.L.R. 944; South Worcestershire Justices, ex p. Lilley [1995] 1 W.L.R. 1595.
64. See, further, the Editorial at (1995) 159 J.P.N. 429.
65. Britzman [1983] 1 W.L.R. 350, per Lawton L.J., at 353. So, of course, it is essential that clerks receive appropriate training. For some expressions of doubt on this see A. J. Turner, "Sentencing in the magistrates' court" in C. Munro and M. Wasik (eds), Sentencing, Judicial Discretion and Training, 1992, 193 at pp.198-199.
66. Britzman [1983] 1 W.L.R. 350, per Lawton L.J., at 353. So, of course, it is essential that clerks receive appropriate training. For some expressions of doubt on this see A. J. Turner, "Sentencing in the magistrates' court" in C. Munro and M. Wasik (eds), Sentencing, Judicial Discretion and Training, 1992, 193 at pp.198-199.
67. Another is that the clerk, sitting below and in front of the justices in court, would have to be careful that the magistrates did not glimpse the clerk's copy of the antecedents.