Our Reference: 71894

Freedom of Information Request Dear

Date: September 2011

You asked for the following information from the Ministry of Justice (MoJ): I am submitting this freedom of information request to ask, please, for the release/publication of the communication/advice sent out last week by a senior clerk in the HMCTS London area to magistrates' clerks across the city advising magistrates that they may disregard normal sentencing guidelines in the context of the riots and consider participation in the riots as an aggravating factor in any offence. Your request has been handled under the Freedom of Information Act 2000 (FOIA). I can confirm that the department holds information that you have asked for, and I am pleased to provide this to you. In providing this information we wanted to provide some context around the role of the Justices Clerk (who provided the guidance) and their relationship with Her Majestys Courts and Tribunals Service (HMCTS). Sentencing is a matter for the independent judiciary and, under the Criminal Procedure Rules, Justices' Clerks and legal advisers in magistrates' courts have a responsibility to give advice to magistrates on sentencing guidelines. Section 29 of the Courts Act 20031 makes it clear that Justices Clerks and their Assistant Clerks
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Independence

(1)A justices' clerk exercising (a)a function exercisable by one or more justices of the peace, (b)a function specified in section 28(4) or (5) (advice on matters of law, including procedure and practice), or (c)a function as a member of the Criminal Procedure Rule Committee or the Family Procedure Rule Committee, is not subject to the direction of the Lord Chancellor or any other person. (2)An assistant clerk who is exercising any such function is not subject to the direction of any person other than a justices' clerk.

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(known as legal advisers) are acting independently of Government in the advice that they give to magistrates. HMCTS is not involved in any guidance Justices Clerks choose to give to magistrates as this guidance is given whilst acting in a quasijudicial capacity. The information you have asked for falls into this category of guidance and was therefore issued independently and jointly by the Justices Clerks for London and without recourse to HMCTS. It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the Justices Clerks on any guidance prior to its issue. In deciding to release this information we carefully considered whether exemptions under section 42 of the FOI Act (Legal Professional Privilege) and section 31 (Law Enforcement) applied. We believe they would apply to any guidance issued by a Justices Clerk in their role as the adviser to the magistracy on matters of law, practice and procedure, but on this occasion we have decided that the public interest in these exceptional circumstances means it is appropriate to release this information. When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:

We agree there is significant public interest in the independence and transparency of sentencing guidance. In general we feel this is met by the sentencing guidelines which are already public and also the information discussed in open court, as occurred in this case. We agree that disclosure of the information would ensure that the public were reassured that it did not contain any direction regarding type or length of sentencing and was entirely appropriate. However the communication was sent independently of the administrative functions of Her Majestys Courts and Tribunals Service. It was sent by a Justices Clerk in their quasi-judicial capacity. In performing this role Justices Clerks are independent of Government see Section 29 Courts Act 2003. As a result the information is legally privileged and there is strong public interest in withholding this type of information. Should discussions between judges/Justices Clerks/legal advisers be open as a matter of course then it would considerably undermine the concept of legal privilege. It would also constrain the ability for frank discussion which would be to the detriment of the administration of justice. Sentencing is a matter for the judiciary. Advice on sentencing remains fully open to the public as advice on sentencing is offered to magistrates in open court.

The reason why we are disclosing this information is that, despite the cogent reasons against disclosure, we believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the Government has inappropriately issued any directions as to the types of sentences which should be handed down. The publication of this information is a response to those specific circumstances and has been made following careful consideration. We would expect any future requests for guidance issued by a Justices Clerk to be subject to the same test, and release in this instance should not be taken as providing any confirmation that the same decision will be made in the future. The information you have asked for is advice sent by the Justices Clerks to their legal advisers in London. There were two emails in scope of your request. The text of the first email was incorrectly transcribed and as a result there are some words

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missing/ incorrect. When this became apparent a correcting email was sent in which the Justice Clerk who wrote it acknowledged that the previous email appeared confusing. The text from both emails is provided below: First email Dear all, I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible. The Sentencing Guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbance/looting. When the guidelines were written, nothing like this was envisaged. Most defendants accused of looting have been charged with commercial burglary. We also have a number of people who have been charged with handling the proceeds of looting. The general advice from the higher judiciary is that we will not be criticised if we return these however [This is a transcription error as there are words missing]. If in doubt, commit to the crown court. I will be sending a further communication regarding youth cases later today. Many are jointly charged with adults, but youths appearing alone, very few will meet the grave curve [crime] test. Second email Apologies for the fact that the email below, sent yesterday is confusing and frankly incoherent! The intention was that you should advise magistrates to commit to the Crown Court cases of commercial burglary or handling the proceeds of commercial burglary, or violent disorder arising from the recent disturbances. There is a general acceptance that what occurred earlier this week is not covered by the Sentencing Guidelines and it will be very much the exception that such cases are sentenced in the Magistrates Court. My reading of the various reports that I have sent over the last few days is that virtually all cases are being committed for trial or sentence in any event. Hopefully, before too much longer we may get some guideline cases. I trust this answers your request. We will also publish this response on the Ministry of Justice (MoJ) disclosure log, which can be found on the MoJ website. You can also find more information by reading the full text of the Act (available at http://www.legislation.gov.uk/ukpga/2000/36/contents) and further guidance http://www.justice.gov.uk/guidance/freedom-of-information.htm. You have the right to appeal our decision if you think it is incorrect. Details can be found in the How to Appeal section attached at the end of this letter. Yours sincerely

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