Old Bailey Solicitors

Representing yourself in the Magistrates’ Court

Representing yourself in the Magistrates’ Court

Rod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.

This is a short article designed to help people who are representing themselves in the Magistrates’ Court. It is not aimed at advocates – they get their own training.

People representing themselves has become more common in the last few years – some people are not eligible for legal aid and either cannot or do not want to afford a lawyer while others feel the matter is relatively simple and they won’t require the assistance of one.

You might think I would always recommend you instruct a solicitor and there are certainly circumstances when you should – but in many cases there’s no reason why you shouldn’t be able to make a good job of it with a little help.

This article is designed to provide you with some knowledge, skills and structure so that the whole business of going to court is not so daunting and it covers a number of topics:

  • Entering pleas and sentencing options for the court
  • A basic plea in  mitigation
  • Potential pitfalls in sentencing

I will start with the structure of the magistrates’ court and some procedure. If you’ve got to go to the Magistrates’ court then you’ve either been charged in a police station or you’ve received a postal requisition. You will be facing an allegation and the paperwork will specify what piece of law makes it an offence.

The best thing to do at this stage is to go on to the CPS website and find out a little more about it. It’s a great resource – it will tell you what has to be proved and what sentence it carries.

Offences fall into 3 broad categories.

Summary only which includes most motoring offences, minor assaults and some public disorder.

Indictable only (such as murder, robbery or rape: for these you definitely need a lawyer)

Either Way (these include thefts, burglaries, drugs offences and more serious motoring offences such as dangerous driving: these vary in their gravity).

Except in the more serious and largest cases – the Magistrates are going to expect to make some progress.  They will want to know what your plea is. I deal with that later in the article but if you are in any doubt as to your plea – you need to speak to a lawyer.

In many cases you will be eligible for some free help from the duty solicitor at court. Take it if you can.

In broad terms – people who plead Not Guilty need to have a trial and people who plead Guilty need to be sentenced.

Some cases can be dealt with at the first hearing if a guilty plea is entered:

  • Minor road traffic offences
  • Being drunk & disorderly
  • Minor thefts – provided you do not have significant previous convictions.
  • Minor public disorder offences.

If the court is going to deal with your case at that first hearing you need to be ready for it. Later in the article I’ll show you how to deal with a simple plea in mitigation.

When going to court:

  • Turn up in good time.
  • Tell the usher you have arrived and ask if there are any papers in your case you can have.
  • Ask to be introduced to the prosecutor and when you meet them, be polite and explain you are on your own. If you are well prepared and civil they will be pleased to help you but remember they are not there to represent your interests.
  • Be polite to the court staff – you’d be amazed how many professional advocates forget that.

If you are charged with a summary only offence then the court will want to know whether you are pleading guilty or not at the first hearing. The same is true of either way offences although the procedure is a little different.

First of all – how do you know which type of offence you are charged with?

Take a look at your charge or summons and then – on the internet – check out the Crown Prosecution Service website. It is a fantastic resource and lists all the common offences, what the prosecution need to prove in respect of them, the maximum sentence and in some cases sentencing guidelines.

It may be that you face a number of offences and some of them are “summary only” whilst the others are “either way”. This is common with driving offences for example. You may be charged with dangerous driving, which “either way” and can be dealt with in the crown court, as well as driving whilst disqualified, driving with no insurance and with excess alcohol – all of which are summary only.

Where this happens, the most serious or lead offence dictates the pace. The “either way offence” can go to the crown court and the “summary-only” matters will follow it.

You now need to know the procedure for the first hearing so that you can begin to prepare.

For “summary only matters”, the court will ask how you plead to each of the charges you face. If you plead not guilty there will have to be a trial and the court will want to make directions so that the case is prepared properly. I will deal with this later in the article.

If you plead guilty then the court will want to sentence you. That may be possible on the day – either because no report is required from probation or because the probation officer can do a short form report immediately. Of course – you will want to be prepared for this and again I deal with sentencing below. If the case requires a fuller report from probation then your case may be adjourned for three or four weeks for it to be completed. You will need to return to court and present your plea in mitigation then.

For “either-way offences”, the process is a little different from “summary-only” matters. Your first hearing will be what is known as an “allocation hearing”

The clerk will ask you whether you intend to:

  • Enter a guilty plea
  • Indicate a “not guilty” plea
  • Decline to indicate a plea at this stage.

If you enter a guilty plea then the magistrates will sentence you as they would for a summary only offence – unless they feel their powers of sentence are insufficient. Importing drugs is an either way offence for example – and rarely would a magistrates ever have sufficient sentencing power. In these circumstances they can send your case for sentence to the crown court.

If you indicate a not guilty plea – or decline to indicate a plea – then the court will need to decide whether to try your case in the magistrates’ court or send it to the crown court. Both prosecution and defence can make representations about this. If the magistrates accept jurisdiction of the case you still have the option to elect a trial by jury and you will be asked where you would like the case heard.

To be quite frank, if you are entering a not guilty plea – and certainly if the case is likely to go to the crown court – you should seek the advice of a solicitor.

That will depend entirely on the circumstances of your particular case, the evidence you face and what you say in response to the charge. If you are in any doubt as to the appropriate plea – get some advice – either from the duty solicitor at court or by finding a lawyer yourself.

Again – take a look at the Crown Prosecution Service website. Look at what the prosecution need to prove and consider what you did in the light of that. This will help you decide on the plea you wish to enter and the likely penalty if convicted. It is true that the courts give credit for a guilty plea – that is to say they reduce the penalty – they do this because it saves time and resources, it means witnesses don’t have to come to court and it demonstrates a willingness to take responsibility. However, you should only plead guilty if you ARE guilty. You should not do so simply to get the case over with or to seek a lighter sentence.

This section is designed to help you with a plea in mitigation. You are unlikely to deliver it as well as a competent advocate but you shouldn’t worry about that. The court does not expect you to be a brilliant orator and will give you some leeway. However, it helps to have:

  • Good structure
  • Good content

There is no reason why you cannot do this with a little help and remember that you have one advantage over the advocate: you are saying this on your own behalf and you have an opportunity to impress the court with your sincerity.

Don’t forget that you’ve done a bad thing – you are pleading guilty to, and accepting responsibility for committing a crime. This is your opportunity to admit what you have done wrong and make apology to all concerned. You would be surprised how effective a heartfelt apology can be.

Probably the best starting point is to understand the process the court has to go through when sentencing someone. Once you understand their structure you can build your own along similar lines. This is the general order for the court:

  • Find out what the maximum sentence is.
  • See if there is a sentencing guideline issued by the sentencing counsel.
  • Assess the culpability of the offender.
  • Assess the harm caused by the offence.
  • Work out what category the case should be in and note the range of sentence available.
  • Consider any aggravating or mitigating features in the guideline.
  • Adjust the starting point for this particular offence.
  • Take account of any personal mitigation.
  • Apply the appropriate discount for any guilty plea.

Now – a word or two about guidelines. The Sentencing Counsel has issued guidance for many offences but not all. If you go to their website you will find guidelines for Assaults, thefts, burglaries, sexual offending, frauds and the like. If there is no guideline then go back to the Crown Prosecution Website which you will find helpful.

The court will not expect you to conduct argument about which category a case should be in but it is as well to familiarise yourself with the likely starting point. Let us take the assault guideline by way of example.

In the harm section, regard will be had to the level of injury caused or the vulnerability of the victim. In the culpability category the court will take account of a significant degree of premeditation.

A lack of previous offending would mitigate the position whilst a record of relevant or similar convictions would aggravate it.

With this information you should be fairly well informed before you get to court but you can see immediately that the court has a technical job in sentence. You must understand that but you want to develop a plea in mitigation – the purpose of which is to present your position in a favourable light. This is NOT the same thing as trying to evade responsibility for what you’ve done.

Probably the best thing you can do when doing your own mitigation is to begin with an apology. A genuine apology can be really disarming:

“I’m really embarrassed to be here. I’ve felt bad ever since it happened and I just want to say sorry. Nothing like this has happened to me before and I want to do the right thing.”

If you can start in positive fashion you will engage the court and get them onside. Unless there is some disagreement with the prosecutor about the sentencing category there’s no need to mention that side of it at all. The prosecutor has a duty to assist the court with the appropriate guideline – you can focus elsewhere.

Having made your apology, set out in a few words why the incident came about. If you have done something out of the ordinary, the chances are that there were a particular set of circumstances that led to it. Examples might include:

  • Pressures at home
  • Financial worries
  • The responsibility of looking after others.
  • Bereavement
  • Some traumatic event.

These are not necessarily excuses but they do place your offending in context. Not only that, courts are often persuaded by these examples and all advocacy, whether done by a professional or by people in person, is about persuading people.

You could then move on to a short explanation of why it will not happen again. What has changed? Have you sought counselling? Have you stopped drinking or found employment? There may be any number of positive changes you have made to your life to make sure the same thing doesn’t happen again – make a short list and be ready with them.

You may also wish to tell them what your plans are. Tell the court of any support you have and of your future prospects. Perhaps you are about to start a college course or a new job. If you have placed these things in jeopardy through your actions, don’t be afraid to mention it. The court has a duty to sentence you appropriately but will understand if you have already suffered as a result of your behaviour.

Finally – if you have any character references, get a few copies and hand them in. It is polite to have spares for the prosecutor. References can give a more rounded view of your character and you would be as well to hand them in before you start. It can help get the court onside before you even stand up.

There are two obvious areas where sentencing can become more difficult.

The first category involves what we call a basis of plea. Sometimes a defendant acknowledges that they have committed an offence and wishes to plead guilty but still disagrees with the prosecution about precisely what happened.

Let us take the example of a simple assault. The victim says that you punched him three times to the head and you say that there was just a single blow. Now, whether that is a significant difference with depend on the circumstances of the case but some are far starker.

Let us say that the victim claims you kicked them on the ground twice and you maintain is was a single punch. You may still enter a guilty plea provided you accept what you did was an assault but there will remain quite a difference between the two sides as to what happened.

One of the responsibilities of the court is to ensure that you are sentenced on a correct basis. Where the difference between the two sides is not so great then the court may proceed to sentence on your version. However, if the court feels that the difference between the two sides is so significant that it would make a material difference to the sentence passed, then the court must resolve the dispute.

If this happens the court may require what we call a trial of issue or a Newton hearing. This is similar to a normal trial and may involve both sides giving evidence. It is time consuming, requires the attendance of witnesses and can lead to a loss of credit for the plea you have entered.

This is not to say that you should accept an account of the crime with which you do not agree but it is important that you understand the potential consequences of asserting an alternative basis for the plea. You would be well advised in these circumstances to take professional advice.

The second category of pitfalls in sentence involves ancillary orders. In addition to general powers of sentence, the court can impose other orders for certain offences and in some circumstances it is obligatory. These include

  • Disqualification from driving
  • Restraining orders for violent or harassment offences.
  • Sexual Harm Prevention Orders for certain sexual offences.
  • Forfeiture and destruction orders.
  • Football Banning Orders.
  • Criminal Behaviour Orders.

If you speak to the prosecutor before sentence you may find out whether they plan to apply for such an order. Either way, it is as well to research the offence with which you have been charged to see whether the court has the power to order one. To be forewarned is to be forearmed.

Rod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.

Rod Hayler Old Bailey Solicitors

Rod Hayler

Solicitor - Managing Director

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