It’s never too late to prevent miscarriages of justice

Unfortunately it takes media pressure to get attention to miscarriages of justice. National media reporting over many years culminating in the ITV series “Mr Bates vs the Post Office” forced the hand of the government in dealing with compensation for victims of wrongful prosecutions. Meanwhile a regional journalist – Tristan Kirk, courts reporter for the Evening Standard – has singlehandedly drawn attention to another very different miscarriage of justice, the Single Justice Procedure (SJP). This is the system used to prosecute the lowest level of crimes – non payment of TV licence, having the wrong tube ticket, not having up to date car tax etc. The defendant receives a prosecution notice in the post and is expected to plead guilty or not guilty either by filling in a paper or online form. If they plead guilty, or if they don’t plead at all, they are convicted in a closed court by a magistrate sitting alone. People can theoretically ask for an open court hearing even if they are pleading guilty, but the prosecution notice doesn’t make this clear. 

The single justice procedure came in in 2015 (enacted in Criminal Justice and Courts Act) and has increased in use since. It was brought in to reduce costs and, ostensibly, to make the criminal justice process more convenient for defendants pleading guilty. 62% of magistrate court cases are now SJP. All the prosecutors who use the SJP are public sector bodies like the police, rail companies, or local authorities. The Crown Prosecution Service (CPS) doesn’t use the SJP. Tristan has recently started publishing excerpts from the forms defendants fill in. The mitigation entered suggests that some convictions are totally inappropriate – a 78-year-old with dementia fined for not having car insurance when she was in a care home, a 33-year-old handed a £781 legal bill after accidentally failing to pay £4 to the DVLA and an 85-year-old woman prosecuted for not paying car insurance after suffering a broken neck and admission to a care home.

Tristan Kirk and I have ploughed a slightly lonely furrow, campaigning against the injustice of the SJP. The charity Appeal did fantastic work campaigning on behalf of women prosecuted for not having a TV licence. Kirsty Brimelow KC and Adam Wagner defended people who were landed with very disproportionate SJP fines for Covid offences. But that was about it. The band of allies is now growing exponentially. National news journalists such as Charles Hymas of the Telegraph have made the story the front page. MPs such as Wayne David and Eddie Hughes have begun asking questions. And we’ve now been joined by the Magistrates’ Association who’ve come out with pretty strong criticism.

The Magistrates’ Association recently surveyed their members (though yet to publish the full findings) and in response have made twelve good recommendations aimed at improving magistrates’ practice and making it easier for defendants to participate. And then this week the Lord Chancellor answered concerns from Andy Carter MP that some SJP prosecutions may not be in the public interest. Alex Chalk said “fairness is non-negotiable, so it is critical that every person who comes before the courts, whether via the SJP or an open court, gets that fairness…Everyone accepts that the SJP works well and is a useful addition. We just need to see whether it ought to be refined in the interests of promoting transparency.” I don’t agree that the SJP works well, but at least the government is willing to say it might need “refining”.

The two key problems that need to be resolved are:

1. Prosecutors don’t have the information they need to judge whether they are prosecuting “in the public interest”. This is a key plank of the CPS test for prosecution, but it relies on having information about the vulnerability of the defendant. SJP prosecutors have no information about those they are prosecuting and don’t ask for it. So information on vulnerability is only being revealed to magistrates in the mitigating remarks on the form the defendant fills in. Undoing a prosecution because it should never have been launched is a very messy process. Prosecutors could, as the Magistrates’ Association suggests, read the mitigation before a case gets in front of the JP, but surely it would be better not to force a defendant to fill in an “admission of guilt” form if they are going to have their prosecution withdrawn? Better that the prosecutor find out about the suspect before pressing the prosecute button.
2. People accused of SJP offences don’t respond to the prosecution notice, so most don’t fill in the form anyway. The majority of all those prosecuted do not plead guilty or not guilty. No one knows why not, though the prosecution notices are sent by post so may not even be received. Also defendants may not understand the form or may be too mentally unwell to cope with it. So the moving stories of mitigation uncovered by Tristan Kirk may be just the tip of the iceberg. Those who don’t fill in the form might have even more serious problems. Which is why the SJP prosecutors need to find more about the circumstances of everyone they want to prosecute, not just those who fill in the forms.

Reform of the SJP has until recently moved at a snail’s pace. Let’s hope this is the start of a sprint to right its many wrongs.