The Commissioner’s Response to the Justice Committee Inquiry – The Role of the Magistracy
31st January 2016
Vera Baird QC’s response to the Justice Committee Inquiry about The Role of the Magistracy.
magistracy
magistracy
1. What should the role of the magistracy be in the criminal justice system, especially in the wake of a falling workload? Is the right balance struck between the use of magistrates and the use of district judges? Should any changes be made to the powers and responsibilities of the magistracy?
The key characteristic of magistrates, upon which we should build, is that they are lay volunteers, representing the community in which they live. Although community is a wider concept now and absolute localisation has dispersed through recent enlargement to petty sessional areas court, this is still their role and is extremely important. The magistrates’ reputation as a trusted and impartial representative of the community is also important for
Belief in the justice system, as is the fact that they sit in threes and so inject a democratic quality into the work of determining cases.
In court their primary role should be fact-finding by analogy with the role of the jury in the crown court. Subject, like juries, to legal advice delivered in open court, they return verdicts as to guilt of no guilt, judging the accused person as his peers, an important principle of our justice system
In sentencing at the levels at which they do this, they can similarly be legitimate as representatives of the community being affected by local crime and anti social behaviour and are subject to strict guidelines. Increasing their sentencing powers to 12 months has been in consideration for a long time. There was concern that this might increase sentences so that savings from not sending cases for trial or committing for sentence to the Crown Court would be lost by the extra costs of imprisonment. The latest evidence suggests that this concern remains. [1] This is less a decision of principle – since they can impose custody anyway – and more about a business case. Sentencing guidelines are increasingly complex and seeking in-court advice on their application may be necessary sometimes.
Their new role of sitting as single justices to deal, in public, with uncontested low-level offences is a considerable service to the community offering speedy outcomes for those involved together with increased economy and efficiency the to the courts system.
However, the magistrates’ traditional court role is likely to continue to diminish. Court workloads are falling and what is almost a parallel system of diversion from the police station, out of court disposals and restorative justice is growing. Additionally there is increasing appreciation of the potential effectiveness of specialist problem-solving courts such as drug courts, mental health courts, special domestic violence courts, which recognises the importance of tackling often complex issues underlying criminality which may not be positively affected by the ordinary criminal process. A key element of those courts is judicial review and monitoring of the defendant on a frequent and regular basis which level of personal supervision cannot be achieved through a lay magistracy sitting from time to time voluntarily.
In addition, District Judges are significantly quicker in dealing with the work of the courts across all case categories and seem, being legally qualified, to be more suitable to do complex cases or those requiring consecutive days of sitting which can be impractical for volunteers.[2] They do not cost significantly more, since magistrates are entitled to loss of earnings and travel costs, and savings could probably be made by replacing court legal advisers with less qualified associates to administer DJ courts. (There seems to be evidence that lay magistrates rely heavily on legal advisers not only in court but behind the scenes which is a worrying finding since all legal advices should be given in court so that as with the crown court, it can be heard and if necessary, challenged by the parties.)[3]DJS are also more effective case managers, able to make decisions on their own and totally familiar with rules of practice and procedure. I am aware that a then petty sessional division was unable to match the Blair Government’s commitment to halve the time between offence and sentence for young offenders several years until deep analysis made clear that the lack of effective case management was to blame. The appointment of DJs had been resisted long after they were in place in most urban areas, two were appointed and the problem ended shortly afterwards. However there is much, less anecdotal evidence to the same effect. Although, DJs lack the local, lay, ‘independent’ characteristics for which magistrates are prized it seems inevitable that there should be a mixture of them with lay magistrates in every area to provide the best combination of their differing skills. It seems important to develop clear and strong listing policies in order to achieve the right mix. For instance lay magistracy would be less satisfying for volunteers and their key characteristics would be wasted if they were ousted from trying cases in the interests of saving time by using DJS for all of those.
The lay nature of magistrates with their training in dealing with the public, their authority from the court role and their experience of administering justice being their strengths, they should be invited to develop their role to include broader work in keeping communities safe, preventing crime and delivering justice for the broader benefit of the community and working in partnership with other agencies with these aims.
A key role for magistrates could be in eliding the work of the courts and that of other agencies in to a holistic system. There are clear dangers from the emergence of two separate local justice systems, one court based and the other diversionary/OOCD/restorative. Diversion is not structured at all and is little more than police and local agency recognition of the vulnerability of particular categories of offender such as military veterans or women with complex issues and that they will be better served by sending them for specialist support. This is capable of being a random process, perhaps unfair to categories of offender whose support groups are not such effective lobbyists for diversion as others. OOCDs not structured in a systematic matrix one with another, either targeting particular categories of accused person or offering a hierarchy/ succession process. They are subject only to guidelines on individual disposals. There is partial oversight through dip-sampling panels who test compliance with those guidelines (In Northumbria the panel includes representatives of all the criminal justice agencies including magistrates and samples contentious cases selected by a panel members in rotation) but this level of scrutiny is far from a systematic overview of OOCDs as a whole. There seems to be little consideration in decision-making of how OOCDs do/do not or should play into an individual’s criminal record and into the vetting and barring arena. There seems to be little to no information exchange with the Courts. The private nature of an OOCD compared to the public nature of a court appearance presents further issues about fairness and legitimacy.
Restorative Justice is now developing quite effectively through the allocation of local funding to PCCs specifically to encourage it, after many years of being recognised as having potential but not being prioritised. It can be alternative to or additional to court process and although, where it succeeds it can be beneficial to victim and defendant in ways the courts cannot achieve, it seems necessary to ensure that this too is incorporated into an organised system of court and non-court justice so as to avoid similar risks of unfairness or preference
The issue of these emerging alternatives to the magistrates’ court process should not be seen as a territorial issue or a demarcation dispute between the courts system and those who support diversion/RJ/OOCDs. It is about the right penalty/disposal for each case and there is much evidence that involving defendants in court proceedings is in itself criminogenic and therefore every argument for the correct use of a system of OOCDs whilst preserving the much valued traditional magistrates courts jurisdiction for appropriate offending. The dangers and the potential frictions this situation offers can largely be overcome if magistrates become key players in promoting effective and fair out of court disposals and integrating them into a holistic system of in and out of court Community Justice.
A way forward could be offered by MoJ piloting various means of achieving this engagement and integration, in selected areas. PCCs who have a statutory responsibility to engage with CJ agencies to promote an efficient and effective criminal justice system as well as responsibilities for police, community safety and victims services could be funded to draw together local agencies to work out policy with the MoJ and mechanisms with the local agencies, with magistrates at the centre of the process.The MoJ would need to take a stance that this integration was, in fact, long overdue, and the separate and differential operation of all these diverse disposals a potential source of grievance and loss of faith in the fairness of local justice. There may of may not be a need to extend magistrates powers to accommodate this new role; their willingness to volunteer would be the primary requirement.
2. How have court closures affected the work of the magistracy? How will further court closures affect this?
Since 2010 courts have been closing in order to bring great cost efficiency to the Magistracy. These closures formed part of 2 major reforms in the Court Reform Programme. It is further estimated that an additional 57 magistrates courts, 19 county courts, 2 crown courts, 4 tribunal hearing centres and 9 combined courts will close. To some extent this has driven a modernisation agenda within the magistracy leading to some inevitable changes including the potential for, as much of the rest of the public sector are doing, sharing premises with other public sector organisations. Given the work currently underway for shared premises amongst the blue light services and across local authorities and health administration it seems inevitable that there should be fewer dedicated court buildings which are relatively under used and that courts should share suitable premises wth other agencies. Care should be taken with suggestions that courts/magistrates should be located in police stations. The tendency of police culture is to absorb and dominate those with whom it works and the courts neutrality needs to be protected both from this as a reality and as a perception.. Other potentially beneficial changes that may have been influenced by court closures include:
- Better sharing of good practice as a result of magistrates travelling to other courts. Where they have previously worked in their own petty sessional areas with the same colleagues, they are now working with other magistrates in different areas with difference skills and experiences, providing a new opportunity for sharing experience.
- An opportunity to drive the agenda on improved use of technology, through the emerging common platform, using resources more efficiently through greater use of,for example remote television links for hearing evidence from witnesses ranging from vulnerable and intimidated complainant’s to busy police officers in police stations, both perhaps needing more modern buildings, less need for a central location and all creating potentially speedier justice.
3. Is the current method and rate of recruitment for magistrates adequate? How could the role be made more appealing? How could diversity be improved?
This issue has been of concern for many years, in 2005 Lord Falconer commissioned a national recruitment strategy. The strategy aimed to highlight the importance of the work of magistrates and draw together the experience of the advisory committees and thus targeting professionals in a co-ordinated manner. Despite a number of recommendations we still have a situation where diversity statistics for England and Wales, March 2013 (HMCTS data) show that we do have a proportionate number of males and females serving as Magistrates. However the situation remains where over half of serving magistrates are 60 years old or over with over 90% of the Magistrates described as white.
The current statistics indicate that the method and rate of recruitment is not working effectively and there are a number of options I could suggest to improve diversity and make the role more appealing which could be considered:-
- Recruitment should take a co-ordinated approach and be targeted at groups:-
- Age
- Race
- Gender
- Sexuality
- Disability
If these groups are targeted it will allow for a more diverse approach to delivering justice and will ensure a more varied set of views are delivered when approaching sentencing options.
- Changing sitting patterns to evenings and weekends to allow people with employment/caring/study or other responsibilities to fit in around their current life.
- Allowing Magistrates to provide their availability to the courts including the time scale they are able to sit.
- Providing more information to employers about the potential benefits of having a magistrate working within their organisation, e.g. employees bringing back skills learnt as part of their role. Thus increasing the numbers that will allow employees the flexibility to carry out the role.
- The complementary introduction of a 10 year tenure might assist to bring renewal of personnel, requiring regular waves of recruitment adapting to time and place and change. If the out of court roles proposed above were to be implemented a wider range of people may be attracted to what would become a more visible, hands-on and community-focussed role Future recruitment of magistrates does need to be targeted, dynamic and continuous if it is to absorb the social changes within our communities so that, for example, magistrates sentence their peers based with knowledge of relevant contemporary issues.
This is related to Implementing the proposal that government has made that a third of a Magistrates duties should be spent in their local communities. People who are already active within their local communities may find this appealing and feel that they also have something to offer the magistracy broadening range of skills that applicants may have.
4. Is the level of training and continuous development and support for magistrates adequate? How could it be improved?
As Police and Crime Commissioners have a statutory duty to work with partners to reduce crime and improve public confidence in criminal justice agencies there is potentially scope for the development of a closer working relationship with the Magistrates Association to develop and support the reforms and strengthen local justice outcomes.
The current level of training is governed by the Magistrates Association and it could be strengthened with a multi-disciplinary approach involving partners from the Criminal Justice arena. An example of this is in Northumbria where the Office of Police and Crime Commissioner recently offered the Coercive Control training that we delivered to over 3,500 police officers and staff and also to the local CPS office. An enhanced role for the Police and Crime Commissioners would facilitate this type of joined up working and whilst there are separate roles for organisations where we can learn together within the CJS to make the service more innovative and joined up this can be facilitated. Training for magistrates in Specialist Domestic Violence Courts will improve protection and justice for victims of violence and abuse. Only too often do we see perpetrators of domestic abuse been bailed to fictitious addresses with no controls in place who go on to cause significant harm to partners or ex-partners. Improving the magistrate’s knowledge will provide them with a greater insight into the manipulative behaviour often adopted by perpetrators.
On a day to day basis a more flexible approach to training could be adopted. Training magistrates via distance learning would allow for a wider array of training to be delivered and as magistrates could access training at a time convenient them more variety of training could be delivered.
Training should also provide other specialisms to ensure Magistrates are able to serve justice across the range of courts designed to target particular offence such as Traffic Offences Courts or Youth Courts.
We need to enhance magistrates understanding of mental health in the courts. . This would create fair justice and appropriate sentencing for those who have mental health illnesses. Often we see individuals before their peers for offences that were committed, quite possibly, as a result of a decline in their mental health. Magistrates with specialist knowledge and training to sentence appropriate disposals would work to improve diversity amongst an, often, segregated group.
If a new role in Community Justice could work more effectively the magistrates training portfolio could broaden to include training for that role
The current appraisal system could be better used.Magistrates could be monitored and appraised using a targeted performance based approached.
5. Should magistrate’ sentencing powers be altered in any way and, if so, how? How would such a change affect the efficiency of the criminal courts and the criminal justice system as a whole?
New sentencing powers could be allocated to Magistrates in line with the transforming rehabilitation agenda. The Government are to impose a minimum of 12 month community supervision to all people leaving prison following serving a custodial sentence. Altering Magistrates powers to work alongside these reforms might help to tackle stubbornly high reoffending rates. Proposing that Magistrates have the power to impose ‘short sharp’ sentences to custody who breaches the supervision period could act as a further deterrent to re offending.
The changes in the Criminal Justice and Courts Bill will work to allow a single magistrate the same powers as a traditional court to impose punishment to summary and non-imprisonable offences. This process will protect the defendants’ rights to a fair and public hearing but create further efficiencies within the Magistracy freeing up Magistrates to deliver Community Justice.
Magistrate’s powers could be further altered to allow their Community engagement work to include the resettlement of offenders. Magistrates becoming involved in partnership work to produce effective plans for successful reintegration into communities could work to further enhance their role and create a more effective Magistracy.
6. What will be the impact on the administration of the courts and on the numbers and career structure of magistrates of current and proposed reforms to the magistracy?
The suggested reforms will encourage the preservation of the Magistracy and enhance the principles of local justice. The reforms will work to further the career structure of those who sit as Magistrates providing them with an opportunity to engage in meaningful rehabilitation work that is directed at those offenders who reside within their local communities. It should build a new system for local justice that will be more efficient, effective and transparent.
FOOTNOTE: The pilot North Liverpool Community Justice Centre was assessed to have been unsuccessful[4] in particular in that it did bring a statistically significant reduction in reoffending rates overall nor for any particular types of offender and offenders appear to have been more likely to breach orders imposed there. A second look at these research findings notes that the assessment of re-offending covered only a period of one year from sentence[5]not sufficient for realistic rehabilitation of people with complex and long term problems as the courts caseload contained. For instance 42.9% of its caseload was drug offences compared with 3.3% as a national average caseload[6] It reduced the number of hearings per case. (2.2 compare to 2.7 as a national average) through centralised professional judicial management[7] and
‘Interviews with the staff and offenders found respondents were generally positive about their experiences in the court and that they felt the problem-solving approach could have a positive impact on improving compliance with court orders and reducing re-offending’
‘It could be argued that the NLCJC could be having an effect on the wider crime rates in the area due to its preventative work of through a deterrent effect’[8]
Crime rates in the area it served fell between 2004/5 and 2009/10 ti a greater degree over that period than across England and Wales more generally and to a greater degree than in the rest of the City of Liverpool in the same period.[9]
The local reputation and community integration sought by the pilot did not materialise, according to the research but enhancing the involvement of lay magistrates in such problem -solving courts, even if they are unable to supervise sentences could improve that aspect. This kind of court should not be disregarded totally.
[1] The Strengths and skills of the judiciary in the magistrates court: Ipsos Mori and MoJ 2011
[2] The Strengths and Skills of the Judiciary in the Magistrates Court Ipsos Mori and MOJ Nov 2011 P40 table 4.1
[3] ibid P 25
[4] North Liverpool Community Justice Centre:analysis of reoffending rates and efficiency of court processes MoJ 2012
[5] ibid ps 8 and 9
[6] ibid p ii
[7] ibid p ii
[8] ibid p17
[9] ibid p17
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