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S. 142 Magistrates' Courts Act

PostPosted: Sat Dec 09, 2017 11:26 am
by SyntaxTerror
Personally, I believe that s.142 of the MCA has been abused by the courts. The "Interests of Justice" test has been very narrowly interpreted so that it's ONLY now used as a slip rule. When I was doing my law studies 11 years ago, I looked into this section of the MCA and couldn't find a single case where it had been successful used by an applicant. The courts had neutered it so much that it had been rendered obsolete.

You would think that the HRA would have some effect on it. The "Interests of justice" test should include correcting Human Rights abuses and failures of due process that occurred during the original trial - or so you would think. It would be of particular importance when dealing with vulnerable defendants who are more likely to suffer human rights abuses, especially when you consider that there is currently no fitness to plead test in a Magistrates Court.

I just find it a little disingenuous that the appeals form under Criminal Procedure Rule 37 now tells appellants that it may be possible to make an application under s.142. We know that's bollocks. :roll:

The problem, IIRC, stems from an early judgment where the court decided that they could simply ignore the word "example". That's like gun nuts in the US ignoring the word "militia" in the second amendment. So s.142 is the UK's second amendment.

Re: S. 142 Magistrates' Courts Act

PostPosted: Sat Dec 09, 2017 1:53 pm
by atticus
What does s 142 of the Magistrates Courts (?) Act say? In what way is it being abused?

Re: S. 142 Magistrates' Courts Act

PostPosted: Sat Dec 09, 2017 6:37 pm
by SyntaxTerror
It's all at the top of the section. Specifically subsection 1.

142 Power of magistrates’ court to re-open cases to rectify mistakes etc.

(1) A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.

The two important parts here are "rectify mistakes etc" and "in the interests of justice". A few years ago (2009, I think) there was a reported case where an application under s.142 was successful but only because the judge in that case effectively said to his colleagues, "f*** you". His words were to the effect that the important part of this section was the "interests of justice", that it can't just be restricted to act as a slip rule and that courts shouldn't consider their own inconvenience when making a determination under this section. Unfortunately, this case was quickly forgotten and every other case I'm aware of since has been considered the same way as they always have.

The original wording of s.142 included the words "for example, to rectify mistakes". This is now effectively in the heading.

Unfortunately this is a case of judicial corruption, where the judiciary has decided to take it upon themselves to effectively reword an Act of Parliament. My point, however, is that the fact that it's been so narrowly interpreted that Magistrates' Courts in particular will not look into any applications unless they fall under the definition of a mistake by the magistrates in the original trial. Whether the court missed something, or there was a failure of someone's Article 6 rights that only came to light later, is immaterial. They won't touch it. This means that people have to turn to the crown courts, which has its own difficulties - not least the fact that there are fewer crown courts than there are magistrates courts. So cases that a local magistrates court could and should be dealing with sometimes have to be heard many miles away, which leads more vulnerable people to just not bother.

Re: S. 142 Magistrates' Courts Act

PostPosted: Sun Dec 10, 2017 10:13 am
by atticus
In your researches, have you found any decisions of the Court of Appeal or House of Lords/Supreme Court in which the section has been considered?

Re: S. 142 Magistrates' Courts Act

PostPosted: Tue Dec 12, 2017 2:20 pm
by dls
ST, you are asserting something which, frankly, I do not think you can know. The decisions of Magistrates courts are not generally reported. The use and rejection of such an argument is not going to be shown in any way whoch would allow the sort of conclusion you reach. It is an argument whch I suspect is very rarely used, and would only be used as a last ditch attempt - when all proper defences have failed.

How would you gather evidence of such a policy as you suggest? If you went and sat in a magistrates court and listened and wrote down all the cases, I doubt that you would hear such an application if you went every day for six months.

The power is very clearly a discretionary power. It is a power which they can use if the circumstances suggest to them that they might want to. The section does _not_ impose a duty on them to use that power.

Where a defendant makes such an argument, and fails, he may appeal. At a divisional level such a case would be reportable, and the arguments made and recorded and a guiding judgment given. If some mistake has been made, then the usualroute of challenge would be an appeal.