Lessons for open justice from the Marie Dinou case

Marie Dinou, the woman from York convicted of a non-existent coronavirus offence after being found “loitering between platforms” at Newcastle railway station was lucky to be charged with something newsworthy. Had hers been a mundane motoring charge it is highly unlikely that anyone would have spotted that her treatment by the police and the justice system was stupid, incompetent and unlawful.

Thanks largely to the press (The Times’s Fariha Karim and The Independent’s Lizzie Dearden deserve special mention) and Doughty Street’s Kirsty Brimelow QC, who was amongst the first to denounce the prosecution as misconceived, her conviction is to be reversed by application of S.142 of the Magistrates Courts Act 1980. This useful piece of legislation allows a Magistrates Court to reverse a conviction “if it appears to be in the interests of justice to do so.”

British Transport Police now concede they made a mistake in arresting and charging Ms Dinou, but their attitude immediately after her conviction was very different. Keen to let the world know that they had achieved the first railway arrest under the new Coronavirus legislation, they had issued one of those self-congratulatory press releases that prosecutors are apt to release, albeit they are normally reserved for the convictions of murderers, serial rapists and elderly ladies who have too many cats. Appropriately enough it was dated April 1^st.

Ms Dinou’s alleged offence (according to the Court record) was that she:

Failed to provide British Transport Police officers with [her] identity or reasons for [her] journey. Contrary to paragraph 23 (1) (a) and (2) of Schedule 21 to the Coronavirus Act 2020.

Failed to comply with a requirement imposed under Schedule 21 of the Coronavirus Act 2020.”

Nowhere in the 102 sections and 29 schedules of the Coronavirus Act are police officers given any power to demand that anyone provides their identity, or the reasons for their travel. Nor, for that matter, is such a power contained in the Health Protection (Coronavirus Restriction) Regulations, which contains the “lockdown” laws to which we have all been subject over the last two weeks.

Instead, Schedule 21 of the Coronavirus Act, under which the police purported to act, gives powers to police officers to detain “potentially infectious” people for testing and medical assessment, normally under the direction of – or at least in consultation with – Public Health Officers. The underlying premise of the Act which may have seemed realistic at the time it was passed in March but now seems rather quaint, is that testing for Covid-19 could then be promptly carried out and any infectious person could be identified, tested and treated.

In any event, Ms Dinou was taken to the Police Station where her identity and address was established, and she was charged with the non-existent offence. No attempt appears to have been made to have her assessed by a Public Health Officer. And of course by bringing her into the police station they were ensuring that she did not go home, and if she had been infectious (there is in fact no reason to suppose she was) she would have posed a threat to others, and if others were infectious they would have posed a threat to her.

Ms Dinou, it must be conceded, did not make things particularly easy for herself. Perhaps she was breaking the “lock-down” rules by leaving her home without reasonable excuse. Perhaps she did have a reasonable excuse. We shall never know because from the moment she was first spoken to at Newcastle Railway Station until the conclusion of her court hearing she did not utter a word to anybody. Despite the belief of the police officers, it is not unlawful to refuse to speak to a police officer. Some might think that her silence over two days in the police cells and in court might suggest a possible mental health condition, but we do not know whether that was the case.

Fortunately, despite the wide powers given to police officers in recent weeks we do not live in a police state. We have an independent judiciary. Expertly drawn charges are brought, Police actions are carefully scrutinised in court, and nobody can be convicted except on the sworn evidence of witnesses tested by cross-examination in open court.

It seems that such principles are breaking down, at least in the North Tyne Magistrates Court.

When Ms Dinou appeared, no doubt feeling a bit tired and dishevelled after two nights in the cells, she remained silent. She would not even speak to the duty solicitor. As a result she was unrepresented when her case was called on.

Until a few centuries ago, a refusal to enter a plea might result in one of the most terrible legal procedures ever devised by the common law: the peine forte et dure. It is described by Blackstone:

“THE English judgment of penance for standing mute is as follows: that the prisoner shall be remanded to the prison from whence he come; and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he can bear, and more; that he shall have no sustenance, save only, on the first day, three morsels of the worst bread ; and, on the second day, three draughts of standing water, that shall be nearest to the prison door; and in this situation this shall be alternately his daily diet, till he dies ….”

Today there is a more humane procedure for deciding if a defendant is “fit to plead,” albeit in the Magistrates Court exactly what that procedure is remains rather obscure.

What actually happened to Ms Dinou is that when she declined to identify herself, or to enter a plea, she was simply sent to the cells by the District Judge. Whether the cells at the North Tyne Magistrates court are “low dark chambers” of the sort that Blackstone had in mind does not matter very much since the purpose of banishing Ms Dinou from court was not to press her into entering a plea, but simply to get her out of the courtroom to carry on with her “trial” without her silent but inconvenient presence interfering with the proceedings.

According to the official record of the hearing (quoted by the Independent’s excellent home affairs correspondent Lizzie Dearden):

“Defendant refuses to identify herself, sent back to cells and proved in absence.”

In other words, the District Judge – on the basis of the papers alone – decided that she was fit to plead, that the untested written statements proved her guilt, that she had no defence, and that she was guilty beyond reasonable doubt and must pay a hefty fine, all for a non-existent offence.

There is now what is known as the “single justice procedure” under which certain minor cases can lawfully be tried in a defendant’s absence if they fail to enter a plea. The fairness of the procedure is pretty dubious at the best of times as Penelope Gibbs, amongst others, has been saying, largely in vain, for some time. But fair or not, it is certainly not available unless the defendant has been served with the appropriate papers and given 21 days to respond, and it was certainly not available here.

Goodness only knows what lawful procedure this DJ thought she was following, but it was not dignified by even vestigial shreds of fairness. District Judges of course can make mistakes, and no doubt this one was working under great pressure. Even so, it is concerning, to put it politely, that the judge thought she could entirely ignore so many principles of natural justice in a criminal case. One could put it less politely: to dignify this farrago as a kangaroo court would be unfair to marsupial jurisprudence.

District Judges are legally qualified. The competition to become one is considerable. One justification for employing them – apart from the undeniable fact that they tend to get through their case lists more quickly – is that they are less likely than unqualified magistrates are to get the law wrong.

Much of the commentary on the case has been critical of the police, and plenty of that is justified. On the other hand it is hard not to have a little sympathy towards BTP officers, especially junior ones, who are expected to interpret complex legislation introduced a few days or weeks earlier, and to do so, almost certainly, with inadequate training.

Had the case been brought by the Crown Prosecution Service it would be right to criticise them, but in fact this was a summary only charge in which the CPS did not need to have any involvement. (I am sure that had the CPS selected the charge, the BTP would have said so once it became clear that they had messed up, but they did not).

Making every allowance for the pressures of work it is impossible to avoid the conclusion that the District Judge made a mess of this case.

She failed to spot that the charge sheet disclosed no offence known to law.

Worse still, the procedure she adopted in court appears to have been grotesquely unfair. She had no way of knowing whether Ms Dinou was fit to plead, if she understood the charge (which is unlikely since neither the Judge herself nor any of the other participants did) or if she had any defence to it. The case could easily have been adjourned to allow a little more time. It is highly unusual for any contested case to be heard in its entirety on its first appearance in court, and by declining to enter a plea Ms Dinou ensured that the case was contested. The Judge’s decision to rush the trial to its disastrous conclusion is very hard to understand. One can only hope that she has now learnt her lesson.

There are other lessons to be learned.

When courts are dealing with new legislation and novel charges lawyers and the police are particularly likely to make mistakes. They need to make a conscious effort to check and double-check. Whilst it might be naive to assume that involving the CPS will prevent all problems, police forces would be wise to do so when dealing with new or unusual summary offences even when it may not be strictly required.

And there is also a vital lesson about the importance of open justice. Although this case was heard in a court which was technically open to the public, its “openness” was purely nominal. The coronavirus movement restrictions make public access to the courts illegal for all practical purposes, and difficult even for journalists, so that most courts are sitting in virtual secrecy. Had the British Transport Police not crowed about its victory on April Fool’s day it is highly unlikely that anybody would ever have heard of Ms Dinou, or the rank incompetence of the BTP and the North Tyneside Magistrates Court. One shudders to think of how many other acts of petty sessional injustices have passed, and will pass, unreported and unnoticed while coronavirus restrictions are rendering the courts inaccessible to both the general public and the press.