Freemen on the Land –Guidance on the Management of Proceedings - OFFICIAL RESPONSE TO FMOTL
1 Introduction
1.1 Individuals who describe themselves as “Freemen on the Land” have begun with increasing frequency to appear before the courts. These appearances may be in connection with civil proceedings (such as the recovery of unpaid council tax), family proceedings or criminal prosecutions. At such appearances the individual may assert that the court does not have jurisdiction (possibly describing the court as a “commercial” court) and claiming the primacy of their understanding of common law. In this they may argue that statute law may only apply with consent; a consent which they do not give.
1.2 Individuals describing themselves as “Freemen on the Land” may also appear as supporters of other associations (for example the British Constitution Group).
1.3 It is neither necessary nor appropriate to examine their arguments in any detail to identify that their rejection of statute law as without merit. However, though they may not accept the jurisdiction of our courts, the courts must both ensure that an individual’s right to a fair trial is protected and the integrity of the judicial system is maintained. This may however be difficult as “Freemen” may undertake direct action which disrupts judicial proceedings .
2 Actions before Hearing
2.1 Courts are generally made aware of those proceedings which involve “Freemen”; either because the applicant/prosecutor identifies the respondent/defendant as a “Freeman” or because the individual in correspondence in advance of a hearing (frequently e-mails correspondence without a postal address) asks questions either about or challenging the court’s jurisdiction . When so aware it is suggested that the following preparatory actions be taken:
(i) the Justices/District Judge be briefed ;(ii) Court Security Officers be alerted and reminded of their responsibility to facilitate the hearing of proceedings and of their powers under sections 52 to 56 Courts Act 2003; and(iii) the Police be contacted to confirm incident control plan, if there is an indication of disruptive action.
2.2 There is evidence from web-site postings of those present at “Freemen” protests, recording proceedings in circumstances which may breach section 41 Criminal Justice Act 1925 (prohibition on taking photographs in court) or section 9 Contempt of Court Act 1981 (use of tape recorders). Court Security Officers may use the powers in section 54 Courts Act 2003 to seize and detain devices which could be used to record (audio or video recordings) proceedings in court. Such devices would include mobile phones which have increasingly sophisticated recording capabilities.
2.3 As is noted above “Freemen” may seek to engage court staff in correspondence. It is suggested that correspondence is acknowledged and responses are limited to factual issues and that there is no debate in the correspondence on the merits of the arguments advanced by “Freemen”. It is also suggested that because of the nature of e-mail correspondence, including the inability to identify the correspondent’s address or identity, it is suggested that court staff should use recorded delivery postal correspondence for such communication (enabling the court to be satisfied that the address for correspondences is the address used for process (summons, adjournment notices etc.). In some cases the volume of e-mail correspondence has been large as to fill mail boxes; though it is possible to ask that certain e-mail address be blocked, it is suggested that the better course is to send an acknowledgement, indicating that there will be no substantive response by electronic means (explaining that e-mail, correspondence does not establish the identity or location of correspondents).
3 Management of the Hearing
3.1 In managing the hearing the Magistrates (or District Judge) and Legal Adviser need to work in partnership to ensure that all individuals have an opportunity of being heard but also that that they cannot use the court process to either advance political arguments or to disrupt proceedings. Any challenge to the jurisdiction of the court from a party should be identified at the start of the proceedings. To assist management of the case the court should consider making directions either under Rule 3.10 Criminal Procedure Rules 2010 or Rule 3A Magistrates’ Courts Rules 1981 requiring the parties to identify the issues in dispute and for the court to set a timetable for proceedings.
3.2 At court hearings Freemen (or their supporters) have brought mobile recording equipment into courts. In any case where such equipment is seen the user should be challenged and security staff directed to seize the equipment. Following the issue of the Lord Chief Justices’ Interim Practice Guidance on the use of live text-based forms of communication (issued on 20th December 2010) Freeman may make application to keep equipment which would support text communication (e.g. communication about the proceedings by Twitter). When dealing with any application Magistrates should be reminded that there is a total prohibition on the taking of photographs (including moving images) and that sound recording is only permissible with the consent of the court.
3.3 In some cases “Freemen” having attended court, have nonetheless declined to give their names or refused to acknowledge conventional naming styles (e.g. a Freeman may not accept that he is John Doe but may accept that he is “John of the Family Doe”). It is suggested that courts should use the style of name that an individual has adopted. So that if an individual attends court and will not identify him or herself as named in the charge or summons, but will accept that he or she is “John or Jane of the Family Doe”, it is open to a court to determine that this individual is the defendant/respondent in the proceedings. If however, the court is not satisfied that the individual present is the person against whom proceedings have been commenced, it should deal with the matter as if there had been no appearance. In criminal proceedings, the court shall proceed to deal with the matter unless to do so is contrary to the interests of justice . Whilst for proceedings on complaint the court has a power to proceed in the respondent’s absence when satisfied that adequate notice has been given .
3.4 In Freeman cases individuals (possibly including the defendant or respondent) may describe themselves as the agent or the lay representative of an absent defendant or respondent. The court should be clear that agents or lay representatives have no status before the court. They cannot be treated as an advocate, nor can an “agent or lay representative” represent an absent party to proceedings (section 122 Magistrates Courts Act provides that an absent party is deemed to not to be absent when represented by a “legal representative” this would not include an agent or lay representative). Such an individual may act as a McKenzie friend, assisting the Freeman to represent him or herself. However, for there to be a McKenzie friend the party being “befriended” must be present in court. If a Freeman is allowed to act as a McKenzie friend, he/she should be confined to that role, assisting but not acting as an advocate.
3.5 There have been incidents where Freemen have interrupted or disrupted a court; such conduct can constitute an offence of contempt and be dealt with under section 12 of the Contempt of Court Act 1980 . On 4 April 2011 the provisions in the Consolidated Criminal Practice Direction dealing with contempt were superseded by Rule 62 Criminal Procedure Rules 2010. The new Rule 62 was introduced by The Criminal procedure (Amendment No 2) Rules 2010 – SI 2010 No. 3026; section 2 of Rule 62 deals with Contempt of Court by obstruction, disruption, etc.
3.6 Rule 62.5 applies where the court observes or someone reports to the court a contravention of -• Section 97 (4) of the Magistrates’ Courts Act (refusing to give evidence)• Section 12 of the Contempt of Court Act 1981 (insulting or interrupting the Court)• Contravention of Section 9 of the Contempt of Court Act (Without the Courts permission recording proceedings, etc)• Any other conduct which the court can deal with as, or as if it were a criminal contempt.
3.7 When dealing with such conduct, unless the respondent’s behaviour makes it impracticable, the court has a responsibility to explain:
• the specific conduct that is in question, • that the court can impose imprisonment or a fine for such conduct, • that, where relevant, the court has the power to order immediate temporary detention, and• that the respondent may explain the conduct, may apologise and may take legal advice.
3.8 Having given the required explanations the court must allow the respondent a reasonable opportunity to reflect, to take advice and explain. The court may then (a) take no action, (b) enquire into the conduct immediately, or (c) postpone that enquiry to later the same day. The procedure to be followed at an immediate or postponed enquiry is set out in Rule 62.8. This requires that the court again explain what is alleged, explains what procedure will be followed, and asks the respondent if he/she admits the conduct (when the court need not receive evidence). If the respondent does not admit the conduct the court will hear evidence and representation. The court is required to make a written record of its findings following the enquiry. The court that conducts an enquiry need not include the same member or members of the court that observed the conduct, but may do so unless this would be unfair to the respondent. Before Magistrates who observed the conduct deal with an enquiry they should specifically consider whether their presence be unfair to the respondent and record their decision in the court register.
3.8 Because of the risk of disorder arrangements should be put in place to summon the police (if not present at the hearing). In the event of disorder, individuals may be arrested and either prosecuted or brought before the court for an application that they be bound over to keep the peace. On an application that a person be bound over arrangements should be put in place to enable the court to hear evidence at the first hearing and for the defendant to have access to legal advice. In the event that the court decides that an order is necessary and a defendant refuses to enter into a recognisance, the expectation would be of committal to custody in accordance with Section 115 (3) Magistrates’ Courts Act 1980. In such cases it is good practice, that an individual is committed be given the opportunity to appeal, including being provided with a draft notice of appeal to complete. Once any notice of appeal is lodged the court would be entitled to consider the grant of bail.
4 Conclusion
4.1 Courts need to ensure that when dealing with Freemen or other protest groups they maintain their focus on proper procedure and the protection of individual rights, including the rights of other court users. This will require courtesy, patience, precision and rigour in the management of the court.The Justices’ Clerks SocietyOctober 2011— Steve James.
