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Secret criminal trials in urgent need of reform

Charlotte Threipland of APPEAL questions the fairness of the single justice procedure used for more than half a million low level offences a year.

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Unjust TV licensing prosecutions

This is a guest post by Charlotte Threipland, Comms and Policy Lead, at the law practice and charity APPEAL

The single justice procedure

What’s more important – bureaucratic efficiency or fairness and justice? Policies from the British government over the last 10 years would strongly suggest the former. One incarnation of this which is in the news at the moment is the single justice procedure. Many are unaware that a large bulk of low-level criminal cases (in the nine months up to September 2020 there were 400,000 of them) are dealt with by one magistrate sitting in private. The defendant is normally absent and data suggests many do not even know they have been charged: a staggering 71% of people don’t respond to the charge letter that is sent by mail.

We do not know why this is – are there vulnerabilities at play that mean they can’t engage, are people putting their heads in the sand, or is the letter even reaching people? Ola, one of the women we represent for failure to pay a TV license fee, did not receive her letter because it was sent to an old address. Whatever the reason, those that don’t respond are assumed guilty and face fines and costs amounting to hundreds of pounds and a criminal record.

As well as the non-payment of the TV licence fee, the process deals with low level offences such as certain breaches of the coronavirus regulations, truancy and driving offences. Although it is reserved for non-imprisonable offences, the reality is that defendants who begin their cases in this way can and do end up committed to prison when fines go unpaid. 

At APPEAL, the law practice and charity that I work for, we have been researching injustices relating to TV Licensing prosecutions – from the gender disproportionality to the lack of oversight of its prosecutors – and have met and represented dozens of women going through the process. We have found that the offence disproportionately targets women – Ministry of Justice figures show that 75% of all prosecutions for TV licence fee evasion were against women in 2020, despite women only accounting for about half of licence holders.

Lack of transparency

We have also discovered how opaque the system is. Even where a defendant does actively engage in the process, being outside the scope of legal aid, the vast majority do not receive independent legal advice. They cannot therefore effectively scrutinise the case against them. With compelling incentives to plead guilty – including offers of a 33% discount on the fine and a promise to have the whole saga behind you within minutes – the temptation to do so, even if there is in fact a weak case against you, is high.

This was corroborated by our investigations. Amy, one woman we met, was determined she was innocent and would plead not guilty. Yet after a meeting with the prosecutor, who highlighted the costs implications, Amy decided it was not worth the risk and she would admit to a crime that she did not believe she had committed.

Coronavirus prosecutions

Journalist Tristan Kirk has revealed a number of prosecutions relating to coronavirus offences that appear to have incorrectly applied the law – convicting people of offences that, for example, do not exist or that apply to a different jurisdiction. It is likely that the unlawful prosecutions discovered are a small fraction of those that exist.

Public information not available

At APPPEAL we have repeatedly been denied access to documents requested under the Freedom of Information Act relating to TV licensing investigations involving vulnerable defendants. The TV Licensing’s functions are largely contracted out to private company Capita, which is immune from such requests. Capita – a major provider of outsourced services to the public sector – also has a poor track record. Most recently, they were criticised for their involvement in the Windrush scandal and a quick look at their Wikipedia page provides plenty of other examples of scandals they have allegedly been involved in. This only serves to heighten our concerns.

The wrongful convictions of hundreds of sub-postmasters and sub-postmistresses in the recent Post Office scandal demonstrates what can happen when the victim also plays the role of prosecutor, as happens in TV licensing cases. Although not strictly private prosecutions, they are litigated by ‘court presenters’ who are hired by Capita, need not be legally qualified and are subject to very little scrutiny – much less than Crown Prosecution Service. If we want to avoid another miscarriage of justice catastrophe – potentially on the same level as that seen by the Post Office scandal – we need reform, and we need it fast.

The recently published inquiry into Daniel Morgan, which reveals Met police corruption and cover-ups at a systemic level, shows just how important transparency and accountability is to prevent injustice. It is for these reasons that APPEAL signed an open letter to the Justice Secretary Robert Buckland earlier this month, demanding reform to the single justice process.

Unsurprisingly, justice doesn’t come cheap. In a time of national crisis where household finances have become precarious for many, these are the sort of low-level offences and fines that can tip a family over the edge. For their sake, we can’t afford to get it wrong.

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