One person was prosecuted for selecting a 16-25 age railcard discount when they had a 26-30 railcard, even though the price for the tickets was the same. Photo / 123RF
Nearly half of all convictions in England and Wales are being decided in secret by a single magistrate without the defendant appearing in court or having any legal representation, a new report has revealed.
Out of a total of 1.5 million convictions handed down last year, some 772,580 were issued by magistrates behind closed doors under a system designed to speed up justice and clear the backlog of cases left by the Covid-19 pandemic.
The number of such prosecutions has doubled since their introduction in 2015 under the Single Justice Procedure (SJP) where a volunteer magistrate sits alone with an on-call legal adviser to pass judgment on as many as 100 cases a day. They now account for two thirds of all magistrates’ cases.
At least 110 different crimes can be prosecuted under the SJP system, from speeding and out-of-date MOTs to failing to get your child to attend school and littering.
However, the majority (73%) of those accused do not plead guilty or not guilty, double the rate of 38% in open magistrates’ hearings, according to an investigation by Transform Justice, a charity that campaigns for fair justice.
Most defendants do not enter any plea partly because prosecution forms are sent by post with no proof of receipt required. This means they can end up at the wrong address, get lost or be dismissed as junk mail, according to the report.
“People are given three weeks to fill in the prosecution form and are not sent a reminder. Those who do not respond to the prosecution notice are nearly always judged as guilty and sentenced in their absence,” said Transform Justice.
“This means most people convicted under the SJP have not pleaded and may not even know or understand they have been prosecuted.
“Many SJP cases are reopened by defendants who say they never received the prosecution notice and only knew about it when they got a letter saying they had been convicted.”
Most SJP offences are “strict liability”, which means prosecutors do not have to prove the defendant intended to commit the offence, nor whether the prosecution is in the public interest. “‘I made a mistake’ is not a valid legal defence,” said the report.
As a result, people have been fined for minor errors. One person was prosecuted for selecting a 16-25 age railcard discount when they had a 26-30 railcard, even though the price for the tickets was the same.
Transform Justice said that the way many of the prosecution forms were structured meant any mitigating factors a defendant might want to put forward, such as any disabilities, could be missed or ignored.
“The greatest injustice of the SJP is that it facilitates convicting people for mistakes, and for errors made due to illness or disability.
“We are prosecuting people at an industrial scale, often without any evidence they intended to commit a crime, with few safeguards,” said Penelope Gibbs, director of Transform Justice.
“There is nothing wrong with some crimes being strict liability (where no intention needs to be proved), but to do so using an inaccessible, untransparent system is surely unfair.”
Organisations that can prosecute using SJP include police, DVLA, local councils, the BBC and train companies but unlike the Crown Prosecution Service (CPS), there is no requirement to conduct a test of whether a prosecution is in the public interest.
An investigation by the Office for Road and Rail (ORR) found four train operating companies (TOCs) had no formal test for deciding whether to prosecute in the public interest and it was “unclear” if there was a test in other TOCs.
It found some SJP prosecutors had no legal qualifications. The majority of TOCs “appear not to require any formal qualifications or accreditation for their prosecution staff, relying instead on various combinations of on-the-job training and in-house or externally delivered training,” said the ORR.
Some prosecutors had as little as five days’ training.
“Where TOCs provided information on the length of internal training, this varied considerably – from five days to three months,” said the ORR.
In one case, Sarah Hodgson, a rail passenger, challenged her fare evasion charge. Magistrates found the case so weak they asked why the rail company went ahead with the prosecution.
Its legal representative said: “I’m just representative of them and my instruction is to proceed. I’m not an expert in railways laws.”
An SJP conviction is a criminal conviction but defendants can only avoid a criminal record if they pay the fine.
The average SJP fine is £284 ($640) but can be as low as £40 or as high as £10,000 for the worst Covid offences. They can also be ramped up by prosecuting authorities adding on legal costs.
The SJP procedure has been successfully challenged after a campaign led by Christian Waters, who won a landmark ruling that the SJP had been wrongly used for 74,000 prosecutions for alleged fare evasion, leading to the convictions being quashed.
As a result of that case and campaigns by Transform Justice, the Government is considering how to improve scrutiny of prosecutors. Gibbs said there needed to be “more reform and fast” to end the “systemic injustice”.
A Ministry of Justice spokesman said: “The Government recently consulted on the Single Justice Procedure and regulation of private prosecutors to review what more can be done to support vulnerable defendants, and we will respond in due course.
“The decision to prosecute cases under the Single Justice Procedure is made by the prosecuting authority, and only uncontested and non-imprisonable offences are eligible.”