Remaking the Magistracy: the role and potential of magistrates in the criminal justice system

Remaking the Magistracy The Role and Potential of Magistrates in the Criminal Justice System

Gregor Donaldson

Edited by Blair Gibbs

With a foreword by Professor Nick Hardwick and an introduction by Nick Herbert MP

The Project for Modern Democracy

October 2019

Contents

Acknowledgments

Foreword - Professor Nick Hardwick

Introduction - The Rt Hon Nick Herbert CBE MP

Executive Summary

1. The concept of a magistrate: origins, purpose and value 2. Challenges facing magistrates in today’s justice system 3. How the world has changed around them 4. The performance question 5. What needs fixing with today’s magistracy?

6. What do we need magistrates to do and to be?

7. New Zealand: a new magistracy model 8. A remodelled magistracy for the twenty-first century 9. Conclusion and recommendations

Glossary

Appendix 1: Analysis of Magistrates’ Court sentencing data Appendix II: Qualitative field research locations Appendix III: Biographies

Bibliography

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The Project for Modern Democracy We are an independent, non-party think tank set up in 2014 by Nick Herbert MP to promote more efficient government and good citizenship. Our formal aims are: the promotion of efficient government; the advancement of education to inform and contribute to overall public knowledge on issues of government, public administration and public service delivery; and the promotion of civic responsibility and good citizenship for the public benefit.

Our first project, GovernUp, was set up in 2014 to promote more effective and efficient government, with better economic and social outcomes for the British public. We have since broadened our research areas with new projects covering international development, global LGBT rights and citizenship, housing and planning, economic policy, and justice and security issues.

This report was authored by Gregor Donaldson, edited by Blair Gibbs and completed in July 2019.

Website: www.p4md.org Twitter: @project4md 50 Broadway | London | SW1H 0RG Registered charity no. 1154924 Company limited by guarantee in England and Wales no. 8472163

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Acknowledgements The author would like to sincerely thank all who kindly gave their time and contributions to this project, whether during the tentative exploratory stages, throughout the United Kingdom during field research and interviews, or for commenting on any of the various iterations of this report. I am especially grateful to all of the magistrates - both those currently serving and those who have retired - who agreed to be interviewed for this report and for speaking with such candour and intelligence about their experience of serving their communities and the English and Welsh criminal justice system. I would like to highlight the contribution of those magistrates who attended a focus group discussion in London to discuss our tentative findings and proposed policy solutions. I am also very grateful to the numerous other people I met in court buildings across the United Kingdom who eagerly offered their time, experience and wisdom, to my considerable benefit.

Special thanks are due to Tom Silva from the Hadley Trust; Penelope Gibbs from Transform Justice; Nick Hardwick, now of Royal Holloway University; Martin Tunstall at the London Mayor’s Office for Policing and Crime (MOPAC) and Jon Collins at the Magistrates Association, for their support and critical perspective. I would also like to thank Jack Cattell and his team at Get the Data for their help in crunching a decade’s worth of court sentencing data. I am especially grateful to Tom, Martin, Penelope and Nick for their comments on earlier drafts of this report. Finally, I would like to thank my colleagues at The Project for Modern Democracy, The Rt Hon Nick Herbert CBE MP and his parliamentary staff for their intelligent and considered discussion of many of the ideas expressed in this report.

This project was made possible thanks to the generosity of the Hadley Trust, a registered charitable foundation in England.

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Foreword Professor Nick Hardwick

If you had to choose a visual image of the justice system I suspect it is likely to be a bewigged judge in red robes looking down on the court below where prosecution and defence barristers battle it out and the defendant looks on anxiously from the dock.

Yet as this important report reminds us, it is lay magistrates that make up 83 per cent of the judicial community in England and Wales and deal with over 90 per cent of criminal cases as well as a range of other matters. And it is estimated that the rate of guilty pleas in magistrates’ courts is around 80 per cent.

So a much more representative image of the justice system would be three volunteers, still predominantly white, middle class and middle-aged, under resourced and under supported, grappling with the chaos and dysfunctionality that forms the bulk of the diet of today’s justice system.

Despite the problems this report identifies, it is careful to value the dedication and care that most magistrates bring to their work, it recognises the value of the historic tradition of justice dispensed by members of the community it serves - and it describes how the magistracy is absolutely central to dealing with the key issues facing the justice system today. No useful discussion could be had about the use of short sentences for instance, how they are used and what if anything should replace them, without a proper understanding of how and why magistrates use them today.

It is therefore of real concern that an important theme of this report is how little we know about the magistracy. We should not reduce any assessment of the magistracy to a crude set of metrics but we should know their comparative costs, have some transparent means of

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understanding the quality and consistency of their work, and understand where they fit in the perceptions of other parts of the justice system and the wider public.

Nevertheless, using the limited evidence base that exists and drawing on original research and case studies from the UK and elsewhere enables the report authors to make some bold suggestions for reform. These need debate and development but the central thrust of a reformed magistracy, better trained and supported, with its historic community base strengthened and reinvigorated, and magistrates liberated to solve problems and respond to community concerns is a genuinely exciting set of ideas. The structural suggestion of a smaller cadre of professional community magistrates dealing with the most complex cases and a larger group of lay neighbourhood magistrates dealing with a wider range of issues is particularly interesting. For my part, a key issue for these proposals is how the undoubted case for reform can be balanced with the need to maintain judicial independence.

I hope this report gets the discussion it deserves. It deals with an issue that is central to wider reform of the criminal justice system. It is a great example of how we can build on the strengths of our historic institutions and adapt them to meet contemporary concerns. I look forward to the debate.

Professor Nick Hardwick Former Chair of the Parole Board for England & Wales

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Executive Summary Project Purpose This project – part of the Project for Modern Democracy’s Justice and Security Programme – is the first policy report for at least five years to focus exclusively on the magistracy. It is designed to correct an ongoing blindspot in the debate about criminal justice and responses to offending in England and Wales.

This is despite almost a decade that has been defined by significant programmes of change and fiscally-driven modernisation to our court system. Despite this and the central role they still play in the administration of the criminal justice system in England and Wales, there has been a paucity of strategic thinking around the magistracy for an even longer period, both within and beyond government.

This project was undertaken in order to address this oversight by assessing the current status and performance of the magistracy, exploring the challenges facing today’s magistrates – including how they fit within today’s justice system and wider social changes – and by considering examples of best practice and alternative models at home and abroad that might offer inspiration to policy makers and a more sustainable future to magistrates themselves.

This report covers the history and purpose of the lay magistracy as an institution, frames the policy discussion by examining four key purported strengths of the model, assesses whether the magistracy as currently constituted is realising these strengths, explores some examples of best practice and areas where reform is needed, and makes the case for adapting the lay magistracy model in England and Wales in line with reforms in New Zealand.

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Main Findings The principle of lay adjudication by a bench of volunteers still has significant value, and is defined by four key purported strengths, including: that magistrates act as a surrogate jury; that they provide a link between the court and the community it serves; that they may offer fairer, less case-hardened decision-making; and that they inject some ‘common sense’ into a complex, bureaucratic and professionalised criminal justice system. Some of these attributes are not all being realised by today’s cohort of magistrates, but each of them gives the institution a particular strength over a salaried full-time judiciary, and justifies why it should be retained.

The debate about the role, remit and effectiveness of magistrates has a clear and challenging backdrop. Relatively recent changes to public service provision since 2010 - in particular, sizeable budget reductions, sweeping (and unprecedented) consolidation of the court estate, new technology, and changes to courtroom procedure - have all combined to change both the delivery of criminal justice by various agencies, and presented new challenges with respect to caseloads and judicial role.

This report finds that internal, fiscally-driven changes affecting magistrates (and many others within the justice system) have occurred alongside major external and longer-term social and demographic trends that have changed the nature of crime, the caseload in magistrates' courts, and therefore the skills and role we need Justices of the Peace to have and to perform.

Other findings about magistrates' courts include: ·

A falling caseload and smaller proportion of either-way cases, reflecting a changing crime and caseload mix in magistrates' courts

·

The project was able to use detailed sentencing data giving offence type and outcome by court area between 2007-2017, to conduct analysis of sentencing behaviour. This revealed large variability in sentencing disposals between areas, with some magistrates' courts using custody nearly 12 times as frequently in similar neighbouring counties.

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·

The same data allowed for comparison of Crown Courts with magistrates' courts and the variance between predicted and actual sentencing outcomes based on similar offenders.

This analysis indicates that magistrates' courts appeared to be more responsive to community concerns about rising knife crime and began sentencing more offenders to custody some time before the same pattern was seen in Crown Courts among similar cases.

·

There is an inexcusable dearth of good quality data to know as much as policy-makers should about how magistrates behave, how efficient they are, and whether their sentencing role and courtroom conduct delivers good outcomes for society and for defendants.

In the interests of having a fair and effective justice system, the research identified several areas where the current magistracy and how they operate needs fixing. Fixes were required to address the most important following issues:

·

​Declining numbers of magistrates.​ Without a major nationwide recruitment effort

in the near future, 4,225 magistrates (or 29.5 per cent of today’s total) will stop sitting in the next five years, representing a steep decline. ·

​Demographic cliff edge​. Years of limited recruitment and the lack of fixed tenure

which has led to this ageing cohort of magistrates now presents a demographic ‘cliff edge’ in light of compulsory retirement ages in the next five years. This has intensified a long-standing problem that magistrates are presently drawn from an overly narrow segment of society, undermining their representativeness – less than 5 per cent of magistrates are under the age of 40, and 41.7 per cent are over the age of 60. ·

​Weakened community links locally​. Court closures have left magistrates feeling like

their connection to their local community is being severed, and as travel times increase and sitting courts become more remote from where magistrates live, the voluntary ask and the sense of contributing to ‘local’ justice is weakened – there is now one magistrate for every 3,916 people compared to 1,856 in 2002, an increase of 111 per cent.

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·

​Underinvestment in skills and training​. Unlike salaried judges, their lay status and

voluntary commitment make them participants, rather than leaders, within a system that is increasingly geared for full-time, paid professionals who can navigate the ever-changing corpus of legislation, new laws, and changing public service provision – training resources to upskill magistrates to adjust to this has been cut rather than increased, and is now inadequate to ensure expertise in the handling of a more complex caseload – in 2014, annual spend fell to just £26 per JP, down by 76 per cent since 2008, with no significant increase since 2014.

Courtroom observation and discussions with members of the judiciary at all levels for this report allowed us to identify what was needed from magistrates and what constituted best practice, given their powers and the limits of a non-professional role.

Some of the most promising models of judicial supervision are variations of the problem-solving philosophy that is predicated on the principle of accountability and demonstrated by proactive judicial leadership and sustained engagement with defendants. And courts are more effective when they have judicial leadership that holds others to account, whether they be defendants, CJS agencies, or other court staff and users.

The current lay magistracy in England and Wales is not an institution that empowers individual magistrates to take a clear leadership role in court or enables them to hold others to account.

They often do not have the training or the tools to exercise this vital function, and do not sit often enough to gain experience or to exercise ongoing oversight of cases and supervision of sentenced offenders.

Our research involved several case studies that provide lessons for England and Wales.

Highlights include:

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● Scotland​: Multiple training providers for magistrates with a greater emphasis on ongoing specialised skills and knowledge acquisition. ● Northern Ireland​: Greater judicial continuity to ensure more effective case management and that magistrates can better hold other court actors to account during trials and hearings. ● Northampton (Youth Magistrates)​: Judicial monitoring to improve recidivism and reoffending outcomes, and to better hold outside agencies to account for their contribution to sentence delivery. ● New Zealand​: A hybrid model where a small tier of part-time paid so-called ‘Community Magistrates’ operates, bringing more professionalism to lower-tier courts, allowing a stronger problem-solving capacity, without sacrificing local links.

All of these examples demonstrate that judicial office holders at this level can be highly effective when they played to their strengths, and have both the licence and the capacity to adopt a community-focused and local leadership role.

These case studies reinforce the argument that, for magistrates to be effective, they should focus on those roles – like problem-solving, sentence supervision, and community and wider justice system engagement – that reflect their unique value as representatives of the community; roles that are harder for salaried judges to adopt, and also roles that are not practically achievable through the current lay magistracy model, where unpaid JPs sit so infrequently and do not have adequate training.

In order to inject fresh thinking into the reform debate, the research further explored the Common Law jurisdictional example of New Zealand. This involved an examination of New Zealand’s court system and the reforms undertaken there. On a field visit in February 2019 and through meetings and dialogue with the Justice Ministry, politicians, judges, agency officials and magistrates, this project was able to identify the key elements of their new model and consider its potential value and application in the UK context.

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The comparative research into the Community Magistrate reform in New Zealand, had several key findings, including: ● There is a distinctive and valuable middle role​ that sits between the larger pool of unpaid, lay magistrates, and the full-time, professional judiciary, where a new tier of lay adjudicator might reside; ● Representation can be improved if a role is created that is more appealing​ to some people and, since it is remunerated, is easier for under-represented groups to consider devoting their time to; ● Upskilling a smaller tier of paid magistrates is easier to achieve​, and through more sustained training and court experience allows for them to be granted wider sentencing powers; ● A magistracy that sits frequently changes what that judicial role can achieve - making the case review role and problem-solving dimension much more attainable than it is with existing magistrates.

Policy recommendations In synthesising the present challenges and the necessary fixes, alongside considering best practice and the inspiration provided by a reform in another comparable jurisdiction, this report sets out a proposal for the future of the magistracy in England and Wales that both addresses current shortcomings, and enables the institution to fulfil its potential.

The report concludes that it is necessary for the Government to reinvest in magistrates though the most important investment they can make is reform – by creating and and piloting a new cohort of paid part-time magistrates who sit more frequently and are more representative of the community.

This report proposes a system-wide reform to create a new hybrid, two-tier magistracy, as a development of the current model. Two distinct roles – Neighbourhood Magistrates, alongside a smaller number of newly created (and remunerated) Community Magistrates – would make

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up this new judicial tier, each with distinct and complementary roles entailing separate powers, obligations and skills.

Community Magistrates would be able to develop the problem-solving justice agenda, and exploit their new paid position and more regular sittings to lead new therapeutic court approaches, and supervise sentences closely. Meanwhile Neighbourhood Magistrates would be given a broader community safety remit, including repatriating responsibility for alcohol licensing decisions, and be liberated to perform some of their functions outside of traditional court buildings.

A pilot of this proposed reform would explore how well it worked in the English context and should be conducted as a joint venture to build upon the justice devolution agenda with Greater Manchester. A whole modernisation agenda can be built around this flagship reform, revitalising the wider magistracy and remaking their role in the justice system - introducing new accountability mechanisms, wider-ranging problem-solving and review powers, greater transparency, and a more localised model of recruitment and governance involving PCCs.

The project also identified a series of additional measures to improve the magistracy and 14 policy recommendations to ensure that the vital civic institution of the magistracy becomes more valued, more effective, and ultimately more sustainable.

Our policy recommendations are divided into five themes:

The magistracy must be recognised and retained as an institution, but reformed.

Allowing the magistracy to be reduced to a rump by limited, erratic recruitment and natural attrition, whilst simultaneously doing nothing to invest in it to make it more professional and competent, or to make it more representative, is not a sustainable position. Magistrates need and deserve the focused attention of civil servants to devise a strategy that is informed by meaningful public consultation.

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1.​ ​A comprehensive strategy to secure the future of the magistracy is now needed​.

2. HMCTS must ensure JP numbers are adequate to meet demand and to have capacity to handle caseloads with full benches, and to avoid delays.

The Government must answer the known unknowns and commit to gathering more and better data about the magistracy, to share with the wider judicial family.

As part of an exercise to develop a comprehensive strategy for the magistracy, the Ministry of Justice and Her Majesty’s Courts & Tribunals Service must invest in new data requirements for the courts system to capture meaningful information that is currently missing.

3. The MoJ must invest resources in new national data collection methodology about the magistracy and how they behave.

4.​ ​Transparency moves initiated by the MoJ in 2016 should be revived and expanded so court data and information on the magistracy is routinely published.

5.​ ​The judiciary, HMCTS and the Magistrates’ Association should

collaborate to build a more detailed picture of who magistrates are, how they work, and what they think about their role.

Invest in the current asset and address shortcomings around recruitment, training and competency. ​A reform agenda should also be accompanied by steps to strengthen the

current ranks of the magistracy, with a focus on addressing the legitimate concerns around the level and quality of training, as well as how to improve recruitment, and upskill those who are appointed.

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6.​ ​Magistrates have a role in the MoJ’s devolution agenda and instead of

more centralisation, reforms should go with the grain of criminal justice devolution - starting with localising the recruitment of magistrates to PCCs. 7.​ ​Invest more in training magistrates to build competency and credibility.

8.​ ​Reinvigorate outreach, selection and training processes for all tiers of the magistracy.

Evolve towards a hybrid community justice model that is more nimble and diverse, with a more professional magistracy. ​The commitment and personal contribution of

today’s serving magistrates should be recognised formally by the government. However, one unique strength of the magistracy is its ability to be representative, and it cannot become more representative unless the current population of JPs is refreshed. This can be achieved in two separate but complementary ways:

9.​ ​Introduce tenure for magistrates, so that they must reapply every three years, to avoid stagnation and to create opportunities for regular recruitment of more first-time JPs. 10.​ ​Introduce a pilot of a new tier of paid, part-time magistrates, recruited for their abilities, diverse life experience and representativeness.

Grant the magistracy a wider role in community safety and some extended powers, combined with a new accountability agenda​. The current role of traditional JPs in the criminal justice system has retrenched too far. In order to become a fulfilling role, and to reverse the trend to curtail their authority, any comprehensive strategy should develop areas where magistrates can play an enhanced role, or even repatriate to JPs some of the powers they historically exercised.

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11.​ ​Liberate community magistrates to problem-solve with greater

discretion to supervise sentences, conduct progress reviews, and apply novel disposals like electronic monitoring.

12.​ ​Reallocate the alcohol licensing function from local authorities back to magistrates.

13.​ ​Encourage magistrates to embed themselves in the wider criminal justice ecosystem.

14.​ ​Develop a new agenda of judicial accountability by trialing a new tool to allow court users to provide anonymous feedback on magistracy performance akin to the system used in Colorado.

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Introduction The Rt Hon Nick Herbert CBE MP

This report is about a vital, and peculiarly English, institution – the lay magistracy. Consisting of unpaid, untrained volunteers, the magistracy has been a feature of criminal justice for centuries, though the model has largely died out in other jurisdictions. And unlike many English legal traditions that have gradually been relegated to ceremonial or fringe functions, the magistrate remains a key instrument in the administration of justice, involved to some degree in almost every criminal case, and directly responsible for overseeing in excess of 90 per cent of cases in the court system in 2018. It is inexplicable, therefore, that policy makers, academics and legislators have shown so little interest in the magistracy for so long.

In contrast to policing or prisons, the topic of the lower-tier criminal courts – and the thousands of magistrates who dispense justice within them – has not attracted anywhere near the same level of political attention or public debate, and very few dedicated pieces of academic research. Justices of the Peace (JPs) in England are simultaneously irreplaceable in the day to day operation of the justice system, and yet overlooked and marginalised in discussion of how that system is performing and how it might need to change. Perhaps because of the longevity of the lay magistracy as an institution, and because they volunteer and are thus not organised as a professional lobby, their advocates have been less influential, and their interests and perspectives have been easily dismissed. Senior figures in the legal and political realms have tended to take their role and presence for granted. This report is a counterweight to that tendency.

Our research has evaluated the magistracy according to the strengths that such a system is purported to represent, and considers how magistrates operate in lower-tier courts in some comparable jurisdictions. This report then explores how the magistracy might be upskilled and remodelled to meet the needs of the system today, given modern social expectations and crime

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demands, which largely dictate the job that JPs are asked to do in presiding over cases in the courtroom.

The magistracy is a vital institution because of where it sits, and when it acts. Magistrates play a pivotal role at the outset of the formal justice system, at almost all first hearings and for bail applications, and for the majority of cases. Their actions touch so many defendants and dictate the life course of so many offenders, many of whom will continue to have contact with the justice system for years. The role of magistrates and their performance is therefore a route into a wider policy discussion about what makes for a fair and effective justice system, and the ‘community justice’ principles that can help make it so.

Debates about criminal justice in a unitary and highly centralised polity like England and Wales tend to gravitate to a policy discussion about what new laws might achieve (and the merits or otherwise of legislation), or what top-down structural changes might be needed to make the system more effective, or less inefficient. In media and penal reform circles there is also a common debate about the effectiveness of certain court disposals, and whether new technological tools to address offending might be needed, along with a recurring interest in the rehabilitative potential that charities and civic groups offer that might lie beyond the traditional justice system.

While the reform debate in some policy areas takes the key practitioners and human agents at the front end into account as a matter of course, this is not always true for the court system.

Despite there being large numbers of them in every county of England and Wales, and in contrast to other front line criminal justice practitioners like the police, very little attention is paid to the conduct, working conditions or accountability frameworks of magistrates.

The current discussion about the effectiveness of short prison sentences is a case in point.

Those who have argued that short custodial sentences are over-used focus on the outcomes i.e. that they do not reduce reoffending rates, but often ignored the opinions of those who

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choose to impose custody when they already have the power as sentencers to use alternatives.

Because of the volume of cases in the lower-tier courts, magistrates, not judges, are largely responsible for the use of short prison sentences – a power that most lay judicial office holders do not have in many jurisdictions anymore – and yet the policy options now being considered by the Secretary of State and Lord Chancellor to restrict their use, or legislate for a presumption against custody for England and Wales seem divorced from any analysis of how and why magistrates decide to sentence offenders to short spells in custody.1 Understanding those motives would suggest that the problem stems from the community sentencing regime, not short custodial terms ​per se​, though there may still be grounds for curtailing the power to sentence for very short periods, such as more than two weeks but less than six months, for example.

Scotland’s experience will be instructive2 and may not be as clear cut as reformers might expect.3 But without good comparative data and historical trend analysis, it is hard to know if English courts are over-reliant on short term prison sentences, and if so, which courts and which magistrates, because the picture is not uniform. Major data challenges persist, but new analysis for this report suggests that use varies considerably across the country and has been declining in the last decade, with the custody rate being below what would be expected given the caseload coming before the courts. In addition, it reaffirms previous analysis by Crest Advisory that has shown a decade-long reduction in the use of non-custodial sentences (excluding suspended sentences).4 To justify reform, therefore, policy-makers ought to use data and evidence to explain why short prison sentences are a pressing problem now, and how the needs that are met by short prison sentences currently (including community respite, incapacitation, and possibly a degree of deterrence) will be met adequately in alternative ways ​BBC News, ‘Ministers consider ending jail terms of six months or less’, 12 January 2019. Accessed at: https://www.bbc.co.uk/news/uk-46847162 2 ​Scottish Government, ‘Reducing ineffective short prison terms’, 17 May 2019. Accessed at: https://www.gov.scot/news/reducing-ineffective-short-prison-terms/ 3 ​BBC News, ‘Restrictions on short jail terms has limited re-offending impact’, 8 May 2019. Accessed at: https://www.bbc.com/news/uk-scotland-48200365 4 ​du Mont, S; Redgrave, Harvey; (2017) W ​ here did it all go wrong? A study into the use of community sentences in England and Wales​, Crest Advisory: London 1

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when those options are eliminated, based both on what magistrates say they need, and what the interests of justice demands.

Structural reforms to the system that have impacted magistrates often share the characteristic that they are conceived and promoted as a fix for a downstream problem affecting other agencies and would defer or shunt some cost elsewhere in the system, without addressing the human behaviour that lies at the root of the issue. In the last decade, when it has been proposed that magistrates be granted increased sentencing powers – from 6 to 12 months custody – it was driven by a desire to relieve caseload pressure on Crown Court judges, and to avoid trial costs for the wider court system, and not as a way of upskilling the magistracy or empowering them to take charge of more complex and interesting cases. In any event, such proposals have not yet been adopted, but what they represented was a preoccupation with structural or legal reform to deliver efficiency, and a wilful blind spot around the human decision-makers in the system and how the reform might affect them.

In other ways, magistrates have been kept at the fringes of justice policy-making. A joint judiciary and Ministry of Justice policy initiative to revive a problem-solving court agenda in 2015-16 examined the legal and structural issues that would need addressing to allow a therapeutic approach to be expanded and trailed robustly in English and Welsh courts.

Regrettably, the judge-led working group decided to focus any trial design on the Crown Court and to ignore magistrates and the role that they might play in any problem-solving renaissance.

One of the hurdles was planning a problem-solving role for a judge who would not be sitting often enough to enable routine supervision, but this was a function of how magistrates traditionally work, not a reason why such a scheme would inevitably fail. If invited to sit more regularly in order to be part of such a pilot, it is very likely that the magistracy would have had many applicants. In any event, with a changed political agenda, the initiative did not translate into actual pilots in five courts and so these issues were not explored or addressed through trial design and implementation. The exclusion of magistrates, however, is telling.

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There are many thorny issues in the justice system today that warrant close examination of how magistrates perform and how their role might be adapted to meet new demands. In many important debates - over best to handle low-level offending, how to improve the court experience, how to reduce the use of prison, or how to enhance community supervision of offenders - magistrates are critical. Often the role of the magistracy is downplayed because policy-makers are not prepared to reimagine it without contemplating its abolition. The purported weaknesses of JPs are not all integral to the lay magistracy concept, and many could be addressed if we were prepared to reshape the role, as some other countries have done.

The role of a magistrate has evolved in other Common Law jurisdictions such as New Zealand that started out with the same model, adapted it, and arguably improved as a result. Reform efforts could and should take inspiration from how the magistracy model has evolved elsewhere.

Another recurring problem is that innovation in the justice system is critical, and yet it often by-passes the magistracy. Policy-makers are prone to seeing innovation as an external factor driven by new technologies, rather than as part of an agenda to empower established decision-makers to be nimbler and more creative. Where new technology to prevent crime is seen as a way to enhance the role of the court system, it is usually about the operational frontline staff, and rarely the magistrates who may actually need to buy into it. In the pilot of transdermal tags as part of the Alcohol Abstinence Monitoring Requirement (AAMR) in London, officials at the Mayor’s Office for Policing And Crime (MOPAC) attributed the success to the local teams working closely with magistrates in the pilot courts who became familiar with the technology, chose to use it, and over time became advocates for the approach . It was not because the senior judiciary adopted and promoted it, with the notable exception of Nicholas Crichton who was an enthusiastic proponent.5 AAMR was a rare example of magistrates being engaged early in the delivery of an innovative pilot. However well the technology itself performs in addressing offender behaviour, and it seems to be much more

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https://www.london.gov.uk/sites/default/files/aamr_summary_report.pdf 20

effective at ensuring offender compliance than any other type of community supervision,6 future such schemes will flounder elsewhere unless magistrates are persuaded of the benefits.

This report warns that the ongoing neglect of the magistracy is unsustainable. Even though case volumes are down compared to a decade ago, the number of sitting JPs has also dropped significantly in little more than a decade. As crime demands become more complex and as public and political expectations of the justice system increase, it is not credible to reform the system with no reference to the magistrates who handle most of the cases. Policy-makers need to devise a strategy that pays close attention to how magistrates can be supported to deliver better outcomes, and where their time and energies can best be directed, rather than marginalising them or ignoring the impact their decisions have on so many offenders and wider agencies.

Equally, the future health of the magistracy cannot become a numbers game or depend upon a campaign to convince politicians to spend hundreds of millions of pounds from a cash-strapped justice system reopening local courts. Even if that were affordable, it is not likely to happen because the need is no longer there. The caseload and demand picture in the wider justice system has changed radically since the time when a dedicated magistrates' court building in a small community like Cromer in North Norfolk was a well-used and necessary asset with a busy court list​.7 ​Instead, magistrates and their representative groups should engage in a serious effort to reimagine their role for the modern context in which they operate, including accepting that certain features of the criminal justice system in England that existed until the last decade of the twentieth century are not coming back.

At a time when crime is rising again and austerity measures have stretched criminal justice services thin, this report seeks to empower and revitalise the magistracy to meet the challenge, 6

https://www.london.gov.uk/sites/default/files/aamr_final.pdf The Cromer magistrates' court was closed after seventy years in 2011 in the first round of the Coalition Government’s court estate consolidation programme: Hurrel, Alex ‘Sad farewell as Cromer Magistrates’ Court closes its doors’, ​Eastern Daily Press​ 31 March 2011. Accessed at: https://www.edp24.co.uk/news/crime/sad-farewell-as-cromer-magistrates-court-closes-its-doors-1-847915 7

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rather than find new ways and new arguments to marginalise or circumvent them. Our research offers a fair summary of magistrates’ strengths and weaknesses and outlines some reform options that would reshape and retool the magistracy for the modern demands they face. It is designed to offer constructive and evidence-based proposals that the new Prime Minister and Lord Chancellor could take up as part of a much-needed plan for the future of the magistracy and the justice system as a whole. Unless and until there is such a comprehensive strategy for this vital institution, the debate about how to improve criminal justice will continue to suffer from a major blind spot.

For me, this project is unfinished business. I have always believed in the lay magistracy as an important institution, and in my brief spell as Minister for Policing and Criminal Justice I proposed reforms “to reclaim summary justice for the community, with magistrates at the centre”.8 Encountering considerable internal resistance, it was only after the Prime Minister’s direct interest following the riots of summer 2011 that I was able to publish a White Paper on ‘Swift and Sure Justice’ the following year.9 I left government soon afterwards and regrettably the agenda stalled.

We all want a fair, effective and efficient justice system, but in order to have that, we must decide what we want magistrates to be, and to do, and then have a strategy. This research and the recommendations provide a route map towards a strategy for the future of the magistracy.

The new Government will show us if it has the appetite for reform.

​Reclaiming Summary Justice​ - speech to the National Council of the Magistrates’ Association, 8 December 2011 ​https://www.nickherbert.com/speeches/2018/1/22/reclaiming-summary-justice 8

​Swift and Sure Justice: The Government’s plans for reform of the criminal justice system,​ White Paper, 13 July 2012 ​https://www.gov.uk/government/news/swift-and-sure-criminal-justice 9

22

1. Concept of a magistrate: origins, purpose and value

Lay magistrates: key facts.

Magistrates are volunteers in the English and Welsh criminal, family and youth court. They are aged between 18 and 70, and in the adult criminal court, they consider cases that come before them as panels of three. While all have equal decision-making powers, only the chairperson will speak in court and preside over proceedings.

Magistrates can impose a sentence of up to six months imprisonment in the adult criminal court, or 12 months in total. They can also impose fines, as well as a range of community sentences.

Though they are not expected to possess any formal legal qualifications, magistrates are required to demonstrate the six following characteristics: good character; commitment and reliability; social awareness; sound judgement; understanding and communication; maturity and sound judgement.

As a voluntary workforce, magistrates are expected to sit for a minimum of 26 half days each year, though the most recent Directions for Advisory Committees published by the Lord Chancellor states that the average number of sittings for magistrates per annum should be between 17 and 23 days per year.

As of September 2018, there were 14,312 serving magistrates out of approximately 18,000 members of the judiciary in total in courts in England and Wales.

There is a long-standing tradition in English and Welsh legal history of involving lay people - those who do not possess any legal qualifications - in the legal decision-making process in criminal and other courts in England and Wales. A key vessel for this tradition has been the lay magistracy. With roots stretching back to a proclamation issued by Richard I’s Justiciar and Archbishop of Canterbury in 1195, the lay magistracy may seem like a permanent feature in the history of the legal system justice in England and Wales. Their role was first formalised in the Justices of the Peace Act of 1361, though the precise parameters of the role have varied 10

considerably.

10

Its historical longevity is testament to the ability of English and Welsh legal

Sir Thomas Skyrme. (1983) T ​ he​ ​Changing​ I​ mage of the Magistracy​, Palgrave Macmillan: London, p.1 23

institutions to recast themselves according to the political and social demands of the day while maintaining their essential strengths. Lay involvement in criminal justice is not unique to England and Wales, but, compared to other Common Law jurisdictions, a model where a volunteer workforce handles in excess of 90 per cent of criminal cases brought to court is anomalous.

The role of the magistrate has changed considerably across its long history, as has the typical background of those serving as magistrates. Some of their historical responsibilities have long since fallen by the wayside, and today the demands are largely predictable and consistent.

Previously, all magistrates begin their career in the adult criminal court, though they could apply to volunteer in the youth court after two years. Now direct applications to the family court are permitted. While the crimes they deal with in the criminal court might not necessarily be serious in nature, the types of offence often have widespread and debilitating effects on communities; for example, alcohol-related disorder or vandalism and pollution. Once appointed, magistrates undertake mandatory training and are supported in court by a legal adviser to guide them on procedural points and questions of law.

Purported strengths

Through a series of interviews with serving and retired magistrates, policymakers and an extensive review of the surrounding literature on magistrates and lay adjudication, four key purported strengths were identified:

● magistrates are a surrogate jury; ● magistrates are a link between the court and the community it serves; ● magistrate decision-making is fairer; and ● magistrates inject some ‘common sense’ into the criminal justice system.

A ‘surrogate jury’: ​The role of magistrates in a court is often compared to that of a jury in a Crown Court and are seen as the embodiment of the principle of judgement by ones’ peers.

The core principle of the lay magistracy, according to the Magistrates’ Association, is that 24

‘justice is participatory within the community it serves, rather than something which is simply done to the community’. It is an argument typically deployed to defend the lack of compulsory advanced legal training or legal qualifications for magistrates. Magistrates participate as volunteers in delivering justice and as such, ‘should rightfully be seen as sacred to our system as 11

trial by jury’.

There are stark and consequential differences between the courtroom role of

magistrates and juries. Both decide on the guilt or innocence of a defendant, but only magistrates direct court proceedings and decide upon a sentence. The quality that both share is a deliberative approach to decision-making. In the view of this report, this quality is vital in an open, adversarial justice system and should be preserved and – where possible – expanded.

A community link:​ Magistrates and other advocates for lay adjudication stated that the magistracy ensures that justice is local, and ensures that the attitudes and opinions of the community are represented in court. Magistrates are supposed to be an effective human link between the courts and the communities the court serves. This report assesses the strength of this link and offers concrete policy solutions for strengthening it.

‘Fairer’ decision-making:​ Advocates for lay adjudication often remark that magistrates are ‘fairer’, or less ‘case-hardened’, with the underlying assumption that routine exposure to offending behaviour makes adjudicators less sympathetic to an individual defendant. Whilst being interviewed on the BBC Radio 4 ‘Law in Action’ programme, the then chairman of the Magistrate’s Association Richard Monkhouse defended magistrates on the grounds that they sit less frequently, and so ‘are not so case-hardened and … treat those that come in front of us as 12

individuals.’

This report assesses whether or not magistrates are really ‘fairer’ than District

Judges and what evidence exists of case-hardening, before analysing why a sense of fairness for defendants is important, and sketches a potential role for magistrates in ensuring defendants feel they have been treated fairly.

11

12

Magistrates Association (2016) response to the Ministry of Justice consultation ​The role of the magistracy​, p.16 BBC Radio, ​Law in Action​: A ​ day in the life of a Magistrate. F​ irst broadcast on 26 February 2015.

25

Common sense:​ The magistracy’s ‘common sense’ was repeatedly identified as a key strength in focus groups and interviews for this project. This was not understood as being at odds with legal knowledge or judicial decision-making, but instead was understood to mean that magistrates retain decision-making autonomy and discretion.

A unique role

Fundamental changes to the court estate and the delivery of justice in England and Wales mean that two purported strengths of the magistracy - effectively communicating legal instructions and processes in non-expert language and their common sense, or being a human voice in an increasingly automated legal system - will be ever-more vital and worth preserving or extending.

While it may not be representative, magistrates are not lawyers, nor are they legally trained, and they should, in theory, illuminate the murkier corners of the legal system for other non-experts. In 1948, the Royal Commission on the Justices of the Peace articulated the value of the lay magistrate as emphasising ‘the fact that the principles of the common law, and even the language of statutes, ought to be…comprehensible by any intelligent person without specialised training. Its continuance prevents the growth of a suspicion in the ordinary man’s mind that the law is a mystery which must be left to a professional caste and has little in common with justice as the layman understands it’.

The magistracy is a democratic presence in the legal system. They might not be demographically representative, but their job is to represent us – people who are not lawyers – in the criminal justice system. It is their job to be a human presence at the point of the delivery of justice, and to help translate often incomprehensible and seemingly arbitrary pronouncements and the associated legal and bureaucratic jargon. To do this, effective communication is key.

The value of magistrates 26

For the uninitiated, the court system in England and Wales can be an intimidating and confusing place. For example, almost all the young adult defendants interviewed by the Centre for Justice Innovation expressed confusion about what was happening to them during their court 13

experience and expressed frustration that their voices were not listened to adequately.

This

sense of confusion and lack of understanding was not limited to defendants: 73 per cent of respondents to a survey carried out by Hodge Jones & Allen in 2015 believed that ordinary people have little understanding of how the legal system works, while 81 per cent regarded the legal system to be intimidating to the general public. This view was reiterated by legal professionals, 87 per cent of whom also believed this to be the case.14 Magistrates are perhaps better placed than anyone else to ensure effective communication between the defendant and other court users, to ensure procedures and outcomes are understood by all, and to strengthen perceptions of procedural fairness in the process. But on the basis of the evidence above, much remains to be done. An incomprehensible court system, or inscrutable court judgements are not just problems for offenders. Victims and communities are also disadvantaged if the criminal justice system is inscrutable and sentences seem confusing and arbitrary.

Research into perceptions of fairness and trust in the criminal justice system carried out in 2013 found that most variation in public trust in the criminal justice system is caused by individual-level factors, and not the characteristics of the areas in which people live.15 When defendants perceive their treatment to be fair, they are more likely to accept the decisions of the court, comply with court-imposed sanctions, and obey the law in the future.

16

As the

Ministry of Justice noted:

13

14

15

16

Thomas, J., and Ely, C (2018),​ CJI Briefing: The Voices of Young Adult Defendants​, Centre for Justice Innovation: London Allen, P., (2015) ​Unjust Kingdom: UK Perceptions of the Legal and Justice System. Innovation in Law Report 2015,​ Hodge Jones & Allen: London​,’ ​p.8 Hough, M; Bradford, B; Jackson, J; Roberts, J. (2013) ​Attitudes to Sentencing and Trust in Justice: Exploring Trends from the Crime Survey for England and Wales​. Ministry of Justice Analytical Series; London p.41 Tyler, T, and Huo, Y., (2002) Trust in the Law: encouraging public cooperation with the police and courts, Russell Sage Foundation: New York 27

‘​Fair and respectful handling of people, treating them with dignity, and listening to what they

have to say, all emerge as significant predictors of legitimacy, and thus preparedness to cooperate with legal authorities and comply with the law. In other words, procedural fairness may not only be valued in its own right, but it may actually be a precondition for an effective 17

justice system​.’

Race, sex, and socioeconomic status also affect perceptions of fairness, but they do so indirectly.18 Feeling like they have had the chance to present their arguments, that they have been listened to, and have had their views considered by the authorities is a crucial element in those involved in the court system believing they have been treated fairly.

19 ​

​ ​The benefits of

ensuring procedural fairness percolate throughout society. The sense of having been treated fairly and respectfully throughout a judicial process has been linked to a variety of law-related behaviours, including immediate decision acceptance or rejection; decision adherence over time; rule-breaking behaviour; well-being and recovery; and cooperation with the police, courts, and even school officials.20

Procedural fairness is especially important in the context of magistrates’ courts, where the offences dealt with are typically less grave but committed more frequently. The importance of ensuring procedural fairness becomes especially pronounced in the context of less-serious, high-volume criminal behaviour. Few offenders enter court of their own accord, and research has demonstrated that procedural justice matters more when the authorities have imposed themselves on a person, rather than when contact with the authorities has been freely chosen.

21

17

18

19 20

21

Furthermore, for many offenders, their appearance in court will not be their first. Repeated

Hough, M; Bradford, B; Jackson, J; Roberts, J. (2013) ​Attitudes to Sentencing and Trust in Justice: Exploring Trends from the Crime Survey for England and Wales Frazer Somjen, M. (2006) The Impact of the Community Court Model on Defendant Perceptions of Fairnes: A Case Study at the Red Hook Community Justice Center, Center for Court Innovation: New York p.27 Tyler, T. (1990) ​Why people obey the law​ Yale University Press: London, p.163 Tyler, T., (2014) ‘How do the courts create popular legitimacy? The role of establishing the truth, punishing justly, and/or acting through just procedures’ ​Faculty Scholarship Series​, Paper 4991, Tyler, T. (2005) ​Procedural Justice​ Volume 1 Ashgate: Aldershot 28

encounters with the court system lead people to focus even more attention on the quality of 22

treatment they receive when evaluating those authorities.

Magistrates have a clear role in ensuring procedural fairness in dealing with less serious offending and in communicating in plain English to help demystify the whole process, especially the verdict and the sentence. The judiciary are especially important figures in predicting overall perceptions of court fairness, given their role in directing court business and communicating with the defendant, and because they are especially powerful and salient symbols of the law.

23

Procedural justice boils down to personal perceptions and relations. It is about how officials – those in positions of responsibility and trust – treat individuals, and if they do so in a respectful fashion. Finally, procedural justice perhaps has greater salience for those appearing in magistrates’ courts: trust in justice is most needed in socially and economically marginalised communities, where offending and victimisation overlap. Clear communication has a significant effect on defendants’ overall perceptions of the court’s fairness, more so than respectful and helpful treatment from court staff – though these are significant in their own right.

Magistrates function as a democratic presence in the criminal justice system in another way.

When we think of democratic accountability, we tend to think of the ability to remove someone from office. Magistrates provide a different sort of accountability. They ensure that the criminal justice process itself is on trial. While magistrates consulted for this report disputed the extent to which they embodied local justice or were fairer than their professional counterparts, there was near-unanimity in their belief that the magistracy constituted a human voice, or the voice of common sense, in a bureaucratic and alienating legal system. Common sense for magistrates was the ability to recognise an unfair outcome or an unrecognised but consequential failure on the part of another agency or individual, or a plan that would and could push back against it.

22

23

Tyler, T, and Huo, Y., (2002) ​Trust in the Law: encouraging public cooperation with the police and courts​, p.196 Frazer Somjen, M. (2006) T ​ he Impact of the Community Court Model on Defendant Perceptions of Fairnes: A Case Study at the Red Hook Community Justice Center​. p.25 29

30

2. Challenges facing magistrates in today’s justice system

Senior tribunals judge Sir Ernest Ryder noted in March 2016 that austerity ‘provides the spur to 24

rethink our approach from first principles’. It is unlikely, as Lord Bingham famously remarked, that a system designed from first principles for dealing with lower-tier offending and the bulk of criminal court caseload in the UK today would look like the system of lay adjudication we currently have in place. But our efforts to outline a strategy for the magistracy should also be tempered by pragmatism. In searching for answers, we should be cognisant of tradition and history, and recognise that the magistracy, like the English Common Law system, is adaptable, and it can - to some degree - recast itself according to new intellectual developments and new social and political challenges. We should also take account of the ways in which crime, the courts, and public service provision more generally have shifted in recent years, and take lessons from other common law jurisdictions.

This project seeks to paint a picture of how magistrates operate today, and to capture some of the system challenges, issues and complaints that magistrates themselves have raised about their role and their position.

Grounds for complaint

Several complaints came up repeatedly in discussion with serving and retired magistrates, or other stakeholders in the justice system when asked to consider the role played by JPs in the criminal courts (family and civil justice was not our focus). These included:

● Training of magistrates is infrequent and inadequate for their role; ● Irregularity of sittings, combined with the burden of greater travel distances;

24

Ryder, E Sir. ‘The modernisation of access to justice in times of austerity’, ​5th​​ Annual Ryder Lecture 31

● Diminishing local justice ​–​ access to a local court and the status it affords as a local symbol of justice;

● Limitations of current sentencing approach ​–​ the effectiveness or otherwise of what is available, rather than guidelines acting as a constraint;

● A retreat from the community ​–​ a reduction in numbers but also a diminution of status;

● A lack of a problem-solving role, or wider ambit for public safety ​–​ no feedback on cases and no ongoing role;

● Magistrates no longer self-governing ​–​ a feeling of less independence and of a take-over by the centre.

These issues were not identified and prioritised based upon any reliable or representative survey of current magistrates, as this was not possible during this project, but several are complaints that are familiar to criminal justice policy-makers. They will be given due consideration in later chapters, and are factored into the final suite of policy recommendations.

How they work today

Magistrates make up just over 83 per cent of the judicial community and deal with over 90 per cent of criminal cases, as well as a range of civil matters. Whereas a jury in a crown court trial is only responsible for deciding on the guilt or innocence of a defendant, the role of the magistrate in the criminal court is considerably broader. As well as deciding on guilt, a bench will also decide on an appropriate sentence, albeit by making reference to sentencing guidelines and case law to assist them, as well as being guided by the court legal adviser. Magistrates also undertake a variety of other duties in court that have legal and administrative aspects beyond the simple deliberation of facts, such as summary case management.

25

In fact, given the kinds of crimes and offenders that appear in magistrates’ courts, resolving questions of innocence or guilt forms a relatively small part of the court business of magistrates.

Instead, the bulk of the work of magistrates is deciding on an appropriate sentence, something 25

Welsh, L., (2013) ‘Are magistrates’ courts really a “law-free zone”? Participant observation and specialist use of language’, ​Papers from the British Criminology Conference​, pp.3-16 32

that the prevalence of guilty pleas and guilty verdicts in magistrates' courts attest to. The wider variety of powers available to magistrates may even be seen to make sentencing just as complex a task as that undertaken by Crown Court judges, where the gravity of the offence is more likely to lead to a custodial sentence. Magistrates will have fines and a variety of community 26

sentences and rehabilitative requirements as well the custodial option. ​The rate of guilty pleas in magistrates' courts was estimated by Jane Donoghue to be around 80 per cent, though it is worth noting that there are no consistent practices for the recording of pleas or of a host of 27

other informative data points in magistrates’ courts. ​The conviction rate in magistrates' courts 28

for summary non-motoring offences has been in excess of 97 per cent for the last ten years.

Resolving questions of fact and deciding on guilt or innocence forms a small, though very important, part of what magistrates do each day.

A survival assessment

Almost as venerable as the magistracy itself is the longstanding tradition in English legal

commentary to predict the looming end of lay adjudication. From the 1888 Local Government Act, to the 2001 Auld Review of the Criminal Court, any significant change in the duties of magistrates has been accompanied by complaints and predictions of imminent obsolescence.

Today is another such juncture in the history of the magistracy, as the Ministry of Justice and HM Courts and Tribunals Service (HMCTS) implements a series of court reforms which started in 2016 and have been described by the Public Accounts Committee as ‘hugely ambitious and 29

on a scale which has never been attempted anywhere before’. ​The Justice Select Committee’s 2016 report T ​ he Role of the Magistracy​ noted that the reforms had brought about a

‘fundamental restructuring of the courts estates and a range of initiatives to modernise the 26

27

28

29

Davies, M. ‘A new training initiative for the lay magistracy in England and Wales – a further step towards professionalisation?’ I​ nternational Journal of the Legal Profession​, 12(1). Pp.93-119, p.107 Donoghue, J.(2014)​ Transforming Criminal Justice: Problem Solving Courts and Court Specialisation​, Oxford: Routledge, p.48 ​ Ministry of Justice (2018) Table Q3.1: Overview of defendants dealt with at magistrates’ court and Crown Courts by offence type in C ​ riminal Justice System Statistics Quarterly: September 2017​, Ministry of Justice: London.

Committee of Public Accounts, ​Transforming Courts and Tribunals​, 20 July 2018, HC 976, p.3 33

criminal justice system’. This, alongside a ‘marked reduction in magistrates’ courts business had 30

‘combined to impose significant changes on the context in which magistrates now operate.’

The slew of recent changes to the court system in England and Wales, combined with reductions in training, has resulted in a dispirited magistracy. Many of the magistrates interviewed for the purposes of this report felt that they had been at best neglected, and at worst intentionally marginalised, as a result of these changes. The recent follow-up to the 2016 Justice Committee report were left with a similar impression. In a 2018 survey of members of the Magistrates’ Association, the membership organisation for magistrates in England and Wales, over 40 per cent of the 2745 magistrates who responded reported feeling undervalued.

31

Low morale leads to a less engaged and interested magistracy, and this feeling is worrisome.

There are also concerning internal problems for the magistracy: declining numbers, erratic and slow recruitment, low levels of public awareness and an ageing volunteer workforce now means that the magistracy is in an unavoidable demographic trap. Key threats to the long-term survival of the magistracy will be outlined in more detail below.

A reduced role

Magistrates are not sitting as regularly, and over the years many of their traditional administrative responsibilities have been cleaved off, such as the decision to make local councils responsible for allocating alcohol licences, or anti-social behaviour injunctions becoming a civil matter. Since 2012, there has been a continuing reduction in the number of magistrates, reducing from 25,155 in April 2012 to 15,003 in April 2018, or approximately 40 per cent in the same period.

30 31

​Justice Committee (2016), ​The Role of the Magistracy​, HC 165​, p​ .6 ​Magistrates’ Association (2019), Magistrate Survey Results 2019.

34

The chart above shows the steep decline in magistrate numbers over the last decade and a half.

Though there has been a marked decline in workforce numbers for District Judges and judges working in the Crown Court (namely Recorders and Circuit Judges), this trend is most pronounced for magistrates.32 The sharpest fall in magistrate numbers took place over the previous ten years, and although during this time District Judge and Deputy District Judge numbers also fell slightly, they did not do so nearly as dramatically as their lay counterparts.

This would imply that District Judges and Deputy District Judges are now processing a greater proportion of all court cases than they would have done in the past.

As well as there being fewer magistrates and fewer magistrates' courts, the courts that remain open are seeing a significant decline in their caseload. Against a backdrop of financial and operational pressure to improve the administration of the English and Welsh justice system, Her Majesty’s Courts and Tribunals Service (HMCTS) embarked upon an ambitious and radical reform programme that will fundamentally recast how justice is delivered. This process will not

32

Source for data: Judicial Diversity Statistics 2004-2018.

35

be reversed, and is set to continue: by March 2023, HMCTS expects that 2.4 million cases per year will be dealt with outside physical courtrooms across criminal, family and civil courts and 33

tribunals. In 2016-17, 499,816 cases were handled in magistrates’ courts, down to 453,071 in 2017-18, a decrease of 9.4 per cent. Since 2012-13, the caseload in magistrates’ courts has reduced by 36 per cent overall, compared to 18.7 per cent in the Crown Court.

34

Youth

courts have seen a particularly steep decline in the case numbers: there were 40,000 children dealt with in the criminal courts in 2015, a 69 per cent reduction from 2007.35

Furthermore, the 2015 Criminal Justice and Courts Act means that a single magistrate can now preside over ‘regulatory’ cases that previously would have required a bench of three. While the Ministry of Justice did not publish their predictions of the impact this legislation would have on the workload of magistrates, or the number of magistrates required nationally, it did predict that this move would result in savings of around £11.6 million each year.36 The Government attributed the ‘significant reduction in the number of magistrates’ over the last decade ‘to changes in workload’, rather than to any ‘difficulties with recruitment’, suggesting an intentional strategy to run down the asset of the magistracy, along with the admission that annual resignation and retirement rates have remained relatively consistent: the overall reduction stems from a ‘reduced need for new magistrates’.37

Yet the divergent rates of change to magistrate numbers and caseload volume since 2012 show that magistrate numbers have declined at a faster rate than the total volume of cases entering the magistrate courts.38

Committee of Public Accounts, ​Transforming Courts and Tribunals​, 20 July 2018, HC 976, p.4 McGinty, K (2018) ​HM Crown Prosecution Service Inspectorate Annual Report, 2017-18​, p.7 35 Taylor, Charlie; ​Review of the Youth Justice System in England and Wales, D ​ ecember 2016. p.27 36 ​Ministry of Justice (2015), ​Criminal Justice and Courts Act 2015: Overarching Impact Assessment​.

37 ​Ministry of Justice (2016) ​Government Response to the Justice Committee’s Sixth Report of Session 2016-17: The Role of the Magistracy​, Ministry of Justice: London, p.9 38 ​Source: HM Courts and Tribunals Service Annual Reports and Accounts, various years; Courts and Tribunals Judiciary, Judicial Diversity Statistics, various years.

33 34

36

Year

Magistrates Caseload

Annual workforce change

Annual change in case volume

2012/13

23,401

1,563,831 ..

..

2013/14

21,626

1,549,445

-8%

-1%

2014/15

19,634

1,604,386

-16%

3%

2015/16

17,552

1,576,331

-25%

1%

2016/17

16,129

1,539,916

-31%

-2%

2017/18

15,003

1,482,357

-36%

-5%

The decline in magistrate numbers and in the number of required sittings has not been nationally uniform, however, nor has it been uniform across the three courts in which magistrates sit: the Ministry of Justice has noted that in some local justice areas there are ‘insufficient family magistrates to deal with the workload’.39 In some areas, it is a struggle to allocate the required three magistrates to preside over a court session, whereas in others, magistrates are struggling to sit for the required number of sessions each year, particularly on the youth court bench. There is no clear picture as yet as to how many times such an arrangement occurs, but it has happened ‘far too often’, according to Lady Justice Macur, with ‘very unfortunate consequences’.40 Sitting as a bench of two also seriously undermines one of the key strengths of the lay magistracy: deliberative decision-making.

Slow recruitment and infrequent sittings also raise serious questions about the ability of magistrates to accrue the necessary levels of experience to deliver justice effectively, to be promoted to a bench chair position, or just to be comfortable and confident in their courtroom role. In their evidence presented to the House of Commons Justice Committee, the North East Bench Chairs Forum observed that ‘experienced magistrates are losing confidence in their ability, in particular, to chair busy remand, NGAP (no anticipated guilty plea) and GAP (anticipated guilty plea) courts because the lack of court sittings which they feel has reduced 41 ​

their competence and confidence’.

Charlie Taylor’s review of the youth justice system also

​Ministry of Justice (2016) ​Government Response to the Justice Committee’s Sixth Report of Session 2016-17: The Role of the Magistracy​, Ministry of Justice: London p.8​.

40 Justice Committee, Oral evidence: the role of the magistracy - follow up, HC 1654, 12 February 2019.

41 ​Justice Committee (2016), ​The Role of the Magistracy​, HC 165 39

37

raised similar concerns about declining case volumes being detrimental for magistrates’ skills retention and development. Given that the future business strategy of the Ministry of Justice and HMCTS is predicated on a substantial reduction in the number of cases entering the court system, it is likely that concerns about meeting a sufficient number of sittings will not be allayed.

Infrequent sitting and an entirely volunteer workforce also present a barrier to inculcating reform or timely procedural or technological changes. The minimum number of sittings for a magistrate over a year totals thirteen-and-a-half days, or just under three working weeks. Many of the magistrates interviewed for this report expressed a sense of ‘shell-shock’ at the rapid pace of reforms. Even minor changes, such as the introduction of official email addresses for members of the magistracy were, it was suggested, a spur for some older magistrates to retire early: the largest numbers of resignations, rather than retirements, appeared to be at the time of the introduction of digital working.42

Less frequent sittings hamper the ability of magistrates to accrue the necessary experience for more senior roles, including for positions on recruitment panels and as assessors. There is also a widespread professional assumption that much of the necessary skills acquisition for magistrates is done ‘on the job’. Anecdotal evidence from magistrates and other court users would suggest that even now, people are being promoted to the position of bench chair who would have previously not been considered. Whilst some training has traditionally been delivered to magistrates by the Judicial College via magistrates’ legal advisers, this has decreased significantly in recent years. Spending has decreased from £110 per magistrate in 2008/9, to 43

£26 per magistrate in 2013/14 - an almost tokenistic amount.

Wingers, those JPs who sit

alongside a bench chair, receive three and a half days of formal training before they start sitting, which was dismissed as ‘a joke’ by one serving magistrate. The 2018 survey conducted by the Magistrates Association revealed the impact of the paucity of magistrate training: 58 per cent of those who responded to the survey had not had any IT training in the previous two years, and a

42 43

​Justice Committee, Oral Evidence: the role of the magistracy - follow up. HC 1654, 12 February 2019 ​Gibbs, P (2014), F​ it for purpose: do magistrates get the training and development they need? ​Transform Justice: London, p.10 38

third of magistrates questioned believed that the training they received was inadequate for the demands of the role.44

Demographic balance

As previously explained, the demographic profile of the magistracy is not representative of the national norm on a number of measures, and quite possibly never has been. Perhaps the most glaring and immediately consequential divergence from national averages today is age. As of September 2018, only 4.6 per cent of magistrates in England and Wales were under the age of 40. Of the 14,312 magistrates sitting as of 7 September 2018, only 100 were aged 29 or under.

This is not a recent shift: the average age of magistrates has remained just under 60 for the past 45

6 years.

But the age profile is becoming less evenly distributed. In 1999, only a third of 46

magistrates were in their 60s, and a quarter were under 50 years old.

Today over half of

magistrates are over sixty years old, and even this cohort is proportionally skewed towards 47 ​

those over 65 years in age.

One described their local bench as ‘very golf club...[it] feels like a

retirement activity for middle class residents’. This impression was backed up by the results of the 2018 survey of Magistrates Association members, where 50 per cent of survey respondents reported not being in employment, nor seeking work.48

As a factor of established trends around criminal propensity, the cohort of defendants appearing in the magistrates' court accused of an offence is disproportionately young. This creates a stark disparity between them and those who sit on the bench to judge them. It is unreasonable to presume that age alone makes it harder for a JP or any judge to rule on a case fairly or to consider properly the mitigating factors arising from juvenile attitudes and influences, but it is not unrealistic to suppose that a 65-year-old magistrate might have more difficulty trying to relate to the circumstances of a 20-year-old defendant, and the world from which they come. Unconscious biases are difficult to gauge and track, but they affect every type ​Magistrates Association, M ​ agistracy Survey Results​, p.3 Ministry of Justice (2017) J​ udicial Diversity Statistics 2017​, p.12 46 Gibbs, P (2014) M ​ agistrates: representatives of the people?​, Transform Justice: London. p.13 47 FOI request 48 Magistrates’ Association, ​Magistrates Survey Results​, p.56 44 45

39

of decision-maker and apply to age, in both directions, as well as other factors such as race. The current pool of magistrates is now so skewed towards the older population that it could be perceived as an inbuilt bias in the system against young people, by disadvantaging defendants who are statistically more likely than not to have their case judged by a magistrate who is thirty or even forty years their senior.

The practical consequences of the ageing demographic and the fixed retirement age mean that compulsory retirement looms at 70 for nearly thirty per cent of currently serving magistrates.

Sources at the Magistrates’ Association were certain that there is not a sufficient number of magistrates on regional recruitment waiting lists to replace those who are set to retire in the next five years. At present, the magistracy is edging towards a demographic cliff edge.

There are a number of possible reasons for this. Court business falls in normal work hours, and many magistrates currently serving felt that employers do too little to allow their staff to volunteer. It is also unclear how effective many of the measures typically suggested to address these demographic concerns would be. Raising the age of compulsory retirement to 75, though a popular suggestion among magistrates as it would retain the skills of those currently serving and align it with the newly increased age limit for jurors, would only serve to kick the demographic can further down the road, widening the generational gulf between those compelled to appear in court and those who freely volunteer without addressing the fundamental drivers of the imbalance.49 Additionally, in their response to the Justice Committee’s report on the role of the magistracy, the Government dismissed calls for increasing magistrate numbers, stating that there is ‘currently no business need for the additional judicial capacity that would be created’ by raising the retirement age.50

Traditional efforts to boost numbers would mean reaching traditional candidates. Recruitment efforts to address other demographic imbalances such as the lack of racial diversity among the magistracy have been undertaken in the past, with varying degrees of success. The most recent 49 50

Ames, J; Gibb, F, ‘Let us stay to 75, magistrates urge amid recruitment crisis’. T ​ he Times​, 9 January 2019 ​ Ministry of Justice, ​Government Response to the Justice Committee’s Sixth Report of Session​, p.8 40

lasted from 2003 until 2007, but there was no significant change in the proportion and numbers of non-white magistrates from 2004 until 2013.

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Though a new cohort of 50-something

retirees may relieve immediate pressures, such an approach to recruitment and outreach does not constitute a viable long-term strategy.

Community footprint

Lord Falconer described magistrates as being ‘often the vital link between the court and community, as magistrates are drawn from the local area and are able to bring a wide range of 52

experience and understanding of local issues’. ​The importance of local justice for the 53

magistracy was also noted in the Justice Committee’s 2016 report, ​The role of the magistracy​.

Two major consolidations of the court estate have been implemented since 2010: the Court Reform Programme (2010-2014) and the HMCTS Reform Project. By November 2017, the number of magistrates’ courts had been reduced to 160, from 323 in 2010. The closure of an additional seven magistrates' courts was announced on 24 July 2018 following a public consultation by the Ministry of Justice.

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52 53

All-Party Parliamentary Group on Women in the Penal System (2018) S​ entencers and sentencing: exploring knowledge, agency and sentencing women to prison​, London: The Howard League​ p​ .7 Falconer, C. (2006) ‘Doing Law Differently’, Department for Constitutional Affairs: London, ​ ​p.6 Justice Committee, ​The Role of the Magistracy​, HC 165, p.19 41

However, the number of magistrates per magistrate court building has remained relatively consistent between 2010 and 2017, as the size of the court estate and the magistrate workforce was reduced. In 2010, there were approximately 89 magistrates per magistrate court or combined court centre building, and today there are approximately 93 magistrates per magistrate court or combined court centre building.

Magistrates were ‘noticeably quiet’ about the impact of court closures, according to ex-National Chairman Malcolm Richardson, for fear of being criticised for being self-interested.

But individual protests did occur, and many of the magistrates interviewed for this report lamented the closures and complained of having to travel much greater distances to attend court or other magistracy committee meetings, particularly those serving in more rural parts of the country.54 One long-serving magistrate in a major metropolitan area who had witnessed a series of bench mergers and court closures described the changes as very much ‘for the worse … we don’t have local justice any more and magistrates are regarded as members of the

54

BBC News Online, ‘Magistrate quits over Carmarthen court closure’, 12 February 2016 42

judiciary in name only’. Access to justice for defendants, victims and witnesses was also identified as a problem arising from court closures, particularly for those relying on public transport, the provision of which – like the court estate – has been rolled back, particularly in 55

rural areas.

Fewer magistrates and a growing population in England and Wales mean that the number of UK citizens per magistrate has more than doubled since 2007. Currently there is only one full bench of three magistrates for approximately twelve thousand people, whereas a decade ago there were around 5800 people per full bench of magistrates.

Centralisation

55

​Adisa, O. Dr (2018), A ​ ccess to Justice: Assessing the impact of the Magistrates’ Court Closures in Suffolk University of Suffolk: Ipswich; and Committee of Public Accounts, ​Transforming Courts and Tribunals​, 20 July 2018, HC 976, p.12 43

Of course, court closures and increasing centralisation have been a consistent feature of 56

summary justice in Britain for decades.

Magistrates’ courts now exist as part of a centralised

bureaucracy. While recent court closures precipitated by economic and financial pressures certainly attracted considerable ire and consternation in some quarters, the corresponding reduction in scope and significance of magistrates’ work was the continuation of a long-standing trend since before even the Auld Review and the 2003 Courts Act that dramatically enlarged 57

the Lord Chancellor’s supervisory role for magistrates’ courts.

magistrates' courts had previously been administered under the 1949 Justices of the Peace Act, where magistrate court committees (MCC) for each administrative county and certain non-county boroughs shouldered the administrative burden of the court system. This was in keeping with the longstanding involvement of magistrates in local public administration alongside their judicial duties. This changed in 1971, when the Courts Act was passed. While better remembered today for abolishing the Assizes and establishing the Crown Court, the Act also radically centralised court administration as the Lord Chancellor’s Department grew into a fully-fledged government department with 10,000 civil servants running a full-time court service.

The power and number of local committees were steadily reduced throughout the 1990s.

First, on 1 April 1992, the Lord Chancellor assumed responsibility for the administration of the magistrates’ courts. The Police and Magistrates’ Courts Act 1994 amalgamated some MCCs, established the Magistrates’ Court Service Inspectorate, and gave the Lord Chancellor the power to combine MCC areas and to direct MCCs as to their standards of performance. The Magistrates’ Court Service Inspectorate was subsequently abolished, with some powers distributed among the three remaining criminal justice system inspectorates. Other changes were afoot. Members of MCCs were now selected not as representatives of individual benches within a given area, but for the contribution they could make to the task of efficient administration of their courts. The relationship between magistrates and their legal adviser also 56

57

Donoghue, J (2014). ‘Reforming the role of the magistrates: implications for summary justice in England’, ​The Modern Law Review​, Volume: 77, Issue: 6, pp.928 - 963, p.944 Dadomo, C. and Bell, B. (2006) ‘magistrates' courts and the 2003 reforms of the criminal justice system’ European Journal of Crime, Criminal Law and Criminal Justice​, 14(4). pp.339-365 44

changed in this period. Alongside the bench and area amalgamations, a move was made to confine a number of benches within individual MCC areas to a single justices’ clerk, today known as legal advisers. Whitehall’s inroads into the management of the court estate reached its apogee with the 2003 Courts Act, which laid the legal foundations for the subsequent Unified Courts Administration Programme. This established a single national agency solely responsible for the delivery of court services, and on 31 March 2005, responsibility for the existing 42 MCCs and Court Service passed to Her Majesty’s Courts Service (HMCS), later Her Majesty’s Courts and Tribunals Service (HMCTS). Despite the hope that the new agency would ‘deliver decentralised management and local accountability within a national framework’, magistrates found that their new role in the administration of the courts was merely consultative: financial power and accountability was assigned to the new centralised agency and the newly created court boards that were supposed to ensure local accountability were abolished just five years after they first met.58

Coinciding with the consolidation and centralisation of the court estate were a series of statutory changes to the role of the Justices’ Clerk wherein they assumed courtroom responsibilities that had traditionally belonged to magistrates, resulting in a blurring of advisory 59

and judicial roles. ​ Following the enactment of the 2003 Courts Act, which brought Magistrates’ Courts Committees under the control of the Civil Service, Justices’ Clerks’ powers were expanded to include functions such as the issuing of arrest warrants and the discharging of the accused where the prosecution offers no evidence. Legal advisers act as information gatekeepers in magistrates’ courts, and typically engage much more closely with relevant case files than magistrates do. Legal advisers hold the court folder and will also have access to any digital file components, whereas magistrates will only have the charge sheet and a list of any 60

previous convictions.

​Gibbs, P (2013), ​Managing magistrates’ courts — has central control reduced local accountability?​, Transform Justice: London pp.7-9​.

59 Donoghue, J (2014). ‘Reforming the role of the magistrates: implications for summary justice in England’, ​The Modern Law Review​, Volume: 77, Issue: 6, pp.928 - 963 p.942 60 Crowther, T; Lepanjuuri, K; Paskell, C; Bennett, C; Wood, M (2016)​ Investigation of Sentencing Data in Magistrates’ Courts​ Sentencing Council: London, p.21 58

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External engagement

What are the consequences of this creeping centralisation for magistrate performance?

Malcolm Richardson, former chairman of the Magistrates Association, stated that ‘any form of independence or executive power by magistrates of magistrates and their courts was delivered its death sentence by the creation of Her Majesty’s Courts Service (now known as HMCTS), the demise of Justices’ Clerks as independent office holders, and the integration of the magistracy into the ‘judicial family’. Magistrates have long been seen as a bridge between local communities and the court system. But recent research has suggested that magistrates are actively discouraged from engaging more widely in the criminal justice system in the name of judicial independence, and are arguably held to a higher standard than other branches of the 61

judiciary in this regard.

This was reinforced in interviews conducted for the purposes of this

report. One magistrate claimed that her legal adviser was ‘particularly terrified of us talking to the police’, to the extent where a scheme at their court for new Police Officers or Police Community Support Officers to learn basic court procedure was deemed potentially inappropriate and was suspended. Another magistrate stated they were ‘restricted too much’, and described the attitude of HMCTS as ‘paranoid’.

Magistrates defer questions about the appropriateness of any potential wider engagement to their adviser, and many of the magistrates interviewed for this report suggested that their legal advisers often tended to err on the side of caution and consistently advised against efforts to engage. One magistrate, when asked to describe the relationship between the bench and their legal advisers, said that ‘we are really tied up with that’. Her diagnosis, however, was that the problem stemmed from a fundamental agnosticism on the part of HMCTS, the Ministry of Justice, and the magistracy itself about what lay adjudication brought to the criminal justice system: ‘if there was a better consensus on who we are and what we do, people would be more comfortable engaging more widely.’ Another magistrate reported that he had been 61

Gibbs, P ‘Are magistrates less independent than paid judges’, p.4;​ a​ nd Silverleaf, N ‘The magistracy and the “uniformed” judiciary: double standards?’, both in ​Transform Justice: Rethinking Judicial Independence​, Gibbs, P and Rogers, M (eds) (2017), Transform Justice: London 46

warned by his legal adviser that it could be inappropriate for him to attend the local probation panel meeting, even if he only attended as a non-voting observer, and that it would be similarly inappropriate for him to meet his local Police and Crime Commissioner. In both cases, the magistrate did so anyway and was not officially sanctioned: he saw those meetings and discussions as entirely within his remit, and in no way something that undermined his impartiality or independence.

In the most recent directions from the Lord Chancellor, magistrates are granted a great deal of discretion, though with a nod to the importance of the approval of their legal adviser. It was noted that magistrates may ‘observe rehabilitation courses for drink-drive offenders or similar schemes’’, or even sit on the management board for such schemes ‘subject to advice from their justices’ clerk’. In fact, it was also noted that ‘it was not a problem’ that those magistrates ‘who are county or district councillors will probably have had some input into the planning of crime and disorder strategies’. Magistrates are also permitted to serve on Government steering groups, again ‘with the benefit of advice from the justices’ clerk’.62 In reality, the extent to which the advice of legal advisors can be disregarded is not clear.

Malcolm Richardson, former chairman of the Magistrates Association, in a LinkedIn comment in February 2019 identified the demise of Justices’ Clerks as independent office holders as one of three factors that effectively ended the independence of the lay magistracy. The role of Legal Advisers – once known as Justices’ Clerks – has been ‘subtly changed...over time’ and now have ‘no independence (except in the giving of advice in individual cases) and they are now administrative managers’.63 One regional bench chair interviewed expressed similar concerns about what he described as:

‘​ the drive towards training legal advisers more and more, and magistrates less and less,

particularly bench chairs...I have a fear that – whether by design or fault – that there’s too much 62 63

L​ ord Chancellor’s Directions for Advisory Committees on Justices of the Peace, Part 2, p​ aragraph 2.32 - 2.36 Malcolm Richardson’s LinkedIn Post can be accessed here: https://www.linkedin.com/feed/update/urn:li:article:9082333854112869179?commentUrn=urn%3Ali%3Acomme nt%3A%28article%3A9082333854112869179%2C6504384172335857664%29 47

being invested in the legal adviser, and them approaching a quasi-district judge role, and the magistrates being a rubber stamp’​.

While the independence and impartiality of legal advisers in court is supposedly assured, some magistrates have begun questioning the extent to which this is true. One bench chair interviewed emphasised the importance of being​ ‘cognisant of the change that took place when

legal advisers stopped being independent and became civil servants...overtime, policy – HMCTS policy – [has] become more difficult to distinguish from legal advice...more often their powers are being used in line with policy, and not with the interests of justice’​. This issue was also raised at a focus group with serving magistrates held in October 2018. One magistrate was concerned that ​‘legal advisers often have dictates from up high about practice and procedure

that they don’t let us know about’.

Interviews undertaken by the Ministry of Justice with various professional court users in 2013 revealed that some believed the necessary presence of a legal adviser in court to be a 64

comparative weakness of a lay model of adjudication.

Some interview subjects went even

further, claiming that a bench was only as good as the legal adviser who supported it. The research also revealed that legal advisers used the opportunity presented by magistrates 65

retiring to confer privately to correct the bench regarding any errors or issues. ​One ex-magistrate even suggested during an interview that some legal advisers would delay the bench’s return from deliberation, so they could ‘sort out’ the business of the court without the distraction of the panel’s input.

The overly cautious approach of legal advisers has had serious consequences for the delivery of justice, particularly when it comes to ensuring that magistrates understand relevant local services, public order concerns, or any new trends in policing or crime that have yet to begin filtering through to courtrooms. The All-Party Parliamentary Group on Women in the Penal

64

65

Ames, A. Szyndler, R. Burston, K, Phillips, R; Keith, J; Gaunt, R; Davies,S; Mottram, C; (2011)​ The strengths and skills of the Judiciary in the Magistrates’ courts​, Ministry of Justice Research Series 9/11: London​. ​p.24 Ibid, p.24 48

System recently suggested that the magistracy has a culture of ‘regarding information about local services as something that should be supplied to sentencers, rather than proactively sought’.66 Local recruitment does not go far enough to assure that this important knowledge is attained, particularly now in the wake of court closures, merged benches and expanded local justice areas.

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All-Party Parliamentary Group on Women in the Penal System (2018) S​ entencers and sentencing: exploring knowledge, agency and sentencing women to prison 49

3.

What needs fixing with today’s magistracy?

The known unknowns

The research for this report uncovered a number of critical areas where there was an obvious or repeated question for which no ready answer was available, principally because the research, or the data were not available. The most important known unknowns are summed up by the following questions:

Are magistrates good value for money? ​Cost data exist for the annual expenses claimed and training spent on serving magistrates, but cost-effectiveness is another matter. There is

no updated estimate of the relative cost of a bench of JPs vs. District Judges, for example. Set against this, there is not even any consensus on what outcomes could and should be used to determine if this cost presents value for money. The National Audit Office has never been asked to examine the question.

How well do magistrates perform their courtroom role? ​Systematic monitoring of JPs in court has not been conducted, and court user surveys have focused on witness and victim satisfaction and not on the opinions of court users about magistrate behaviour.

Do magistrates tend to sentence proportionately and/or consistently and/or in line with guidelines? ​ There is no granular data on the sentencing behaviour of JPs and the data that is published obscures the issue by tracking sentencing outcomes by offence type linked to courts and criminal justice areas only. It is also unclear as to how effective magistrates’ sentences actually are in achieving outcomes

50

Do the public value the concept of and/or support the continuation of a lay magistracy? ​ There is no recent public attitude data on confidence in or understanding of the JP role in the criminal justice system.

What do judges think of magistrates and how would they like the magistracy to operate?​ There is no published research on attitudes of judges to the magistracy, although this does not mean that the judicial office may not have surveyed judges to ascertain their view.

The data deficit The dearth of good quality data relating to the magistracy and how they perform is an ongoing handicap to the development of robust policy-making, and it was already highlighted in the Lammy Review in 2016 as an impediment to understanding the true picture of racial disparity.67 This compounds the problems of a lack of transparency around magistrates as it relates to their selection and conduct in court.

As previously mentioned, a longstanding criticism of the lay magistracy has been its lack of representativeness. Judicial diversity monitoring statistics have helped to reveal the progress that has been made on this measure, and what remains to be done. But when we try to understand not just who magistrates are, but what they do, our picture of magistrate performance has some important unknowns.

Magistrate courts were once largely self-governing and administered locally, and were funded indirectly by central government and directly from the local authority. Information-gathering and record-keeping was done on paper, and records were stored in local court areas. Despite

Lammy, D. (2017) ​The Lammy Review: an independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System​, Lammy Review: London, pp.11-14 67

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such recent innovations in the courts as digital data platforms, standardised reporting practices, and a centralised administration system, significant gaps remain.

Information that is critical to an assessment of magistrates’ performance is not collected at all, and some is only collated locally. Other information may be routinely monitored but at an insufficiently granular level. For example, the Ministry of Justice does not retain data on whether or not a disposal at a magistrate court was administered by a District Judge or by a bench of magistrates, erecting a significant barrier for any policymaker seeking to compare magistrates with District Judges directly. Ministry of Justice research was published in 2013 on the comparative financial cost and efficiency of magistrates and District Judges. It demonstrated that District Judges typically transact business more quickly, but at greater cost in strict financial terms. However, the research also recognised its own limitations and did not - or could not - analyse numerous other useful factors, such as disposal costs, wider criminal justice system costs, or quality of decision-making.68

For example, resolving whether or not magistrates are less case-hardened than District Judges is currently impossible based on statistical outcomes. First, whether a case is overseen by a District Judge or a bench of lay magistrates is not recorded, so no direct comparison of their sentencing practices can be made. Secondly, even if such data were available, there is considerable variation in case allocation practices for magistrates and District Judges between local justice areas, courts, and even courtrooms. This has fuelled a longstanding anxiety amongst some magistrates that DJs are being given an ever-increasing proportion of the interesting or more complex cases, but such an assertion is not possible to confirm by data analysis. All these factors make it difficult to compare collective sentencing outcomes meaningfully, though some wider trends between Crown and magistrates' courts are discernable (see below).

​Ames, A. Szyndler, R. Burston, K, Phillips, R; Keith, J; Gaunt, R; Davies,S; Mottram, C; (2011) ​The strengths and skills of the Judiciary in the Magistrates’ courts​, Ministry of Justice Research Series 9/11: London 68

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It is a result of general lack of policy interest in how to improve the magistracy - compared to the emphasis on better understanding the prisoner population, for example - that there has been no investment in creating a richer picture of the socio-economic background of magistrates and applicants for the role. Although technically possible with more court activity being digitised, the lack of a project or standard process to capture the performance of magistrates properly in respect of sentencing is especially striking - particularly in the context of sustained interest by the criminal justice sector in the treatment of offenders and the use of custody.

Fixing this will require new national data collection methodology that can quickly be applied to current systems that clearly disaggregates the sentencing and case timeliness data collected about magistrates' courts, so the activity of District Judges can finally be separated from that of JPs sitting in the same court. Once that is known, a plethora of research initiatives and analysis are possible that will shed light on the performance question around magistrates and what impact they have on the wider criminal justice system.

Transparency in recruitment

The lack of transparency around the magistracy is not just a consequence of not having the data. The actual process for recruiting and selecting future JPs is also archaic and almost entirely out of public view. Vacancies were promoted by local advisory committees through a variety of means: the informal ‘tap on the shoulder’; through circulating vacancy notices to local organisations such as working men’s clubs; and in some areas local committees were more energetic, for instance by leafleting all households.

Today, an aspiring magistrate would signal their interest in the role by emailing the secretary of their local advisory committee, an HMCTS official, who would then send the aspiring magistrate a copy of an application form to complete, which is now available online. The form is a 17-page word document that cannot be filled online, and the guidance on filling out the form runs to a

53

length of 34 pages. Aspiring magistrates are also expected to have visited a magistrates’ court at least twice for the purposes of observation in the twelve months before submitting their form. However, if the magistrate wishes to apply for the family court, as observation is not permitted, they are only required to have researched the three websites referenced in the candidate information. The aspiring magistrate would then face the prospect of a seemingly interminable wait for their local area committee to open the recruitment procedure, which may only be once in two years, and is to no set timetable. Once this happens, due to the resulting deluge of applications once the window is opened, many area committees cap the number of applications that they will even consider, leading to accusations of a ‘first past the post’ approach to recruitment, with one legal commentator likening the process to ‘winning a holiday on teletext’.69 This approach presents obvious problems for widening access to a more diverse array of candidates. People in full-time employment may not have the time to drop everything to chase such a narrow window. The Lord Chancellor’s instructions do suggest that advisory committees ‘consider operating a system for contacting speculative applicants on initiation of recruitment’, but this is not compulsory.70

The local advisory committee is tasked with recruiting a number of magistrates each year as directed by HMCTS, and is supported by HMCTS administrative staff, namely a secretary. The number of magistrates required is determined by senior judiciary and senior HMCTS officials.

Presiding Judges and Delivery Directors in each region undertake a single annual judicial resource exercise which also considers the deployment and recruitment requirements of District Judges. Recruitment plans ‘take account of the District Judge (MC) sitting days, together with resignations, retirements and transfers’ to ensure that there is a ‘single assessment of the recruitment requirements for all the Judiciary in the Magistrates’ Courts’.71 However, given the disproportionate decline in magistrate numbers compared to District Judges, questions arise about the precise calculations at play in the assessment.

​BBC News, ‘Magistrates recruited on “first come first serve” basis’, 7 September 2018. ​Ministry of Justice, Lord Chancellor’s Directions, Part Three.

71 Ministry of Justice, Lord Chancellor’s Directions, Appendix 1A: HMCTS parameters for recruitment activity = Activity Based Costing Model 69 70

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The panel is comprised of the advisory committee Chair (or their nominee); two advisory committee members, at least one of whom must be a non-magistrate; and an independent panel member, who should be a member from a different advisory committee. Two panel members undertake the first ‘sift’ of applications, though the Lord Chancellor’s Directions do suggest that ‘sift panels...be as diverse as possible, recognising that advisory committees are reliant on the availability of members to participate in sifting’. Applicants are assessed on six key competencies, and must receive a ‘demonstrated’ for ‘good character’ and for ‘commitment and reliability’ to be invited to interview. If an application falls at this sift, no feedback is available.

Advisory committees are advised by the Lord Chancellor to interview an average of three candidates for each vacancy, but are granted some discretion to set the ratio locally. The first interview is general in purpose and content, focusing first on the ‘good character and background’ question before discussing more general topics, like a some criminal or family issues agreed by the panel members such as the impact of drugs on crime or society.

If the candidate performs well, they are invited to a second interview, which may be anywhere up to 15 working days after the first, and is intended to assess ‘judicial aptitude’. For the adult criminal court, judicial aptitude is assessed by presenting candidates with a list of ten or so offences, from which the candidate will be asked to rank the four most serious in order of their perceived degree of seriousness. The other exercise is a case-study focusing on a fictionalised offence being considered by the bench for sentencing. These exercises are provided centrally.

The internalised process of sifting and selecting applicants has inherent weaknesses, including the risk that a closed forum of decision-makers is more likely to be biased against applicants with non-conventional career backgrounds and life experience, and more inclined to favour applicants who look and behave more like the existing occupants of the role. In a cohort which already has a diversity challenge, those decisions can serve to entrench the lack of representation, especially when not influenced or guided by local oversight or a transparent and accountable selection process. The lack of any published information giving detailed criteria against which applicants for the role are evaluated is remarkable given the power that

55

magistrates can wield when they take up their roles. The absence of feedback to unsuccessful applicants and those who are not appointed following short-listing and interviews is also poor practice, and makes the whole exercise appear more secretive, informal and ad hoc than it ought to be.

Of the people?

Though it is true that the magistracy is one of the more diverse sections of the judiciary in England and Wales, this largely misses the point. Other branches of the judiciary do not stake their claim to legitimacy on the grounds of broader, democratic participation, on community representativeness, or through the common sense deliberative decision-making of ‘ordinary’ people. Representation also has a different order of importance for lay people, whose primary justification for involvement is not accountability and expertise, but may be their representativeness and non-elite status.

Criticisms of the magistracy have long been couched in the arguments around diversity and representativeness. Geoffrey Robertson QC, in his evidence to the House of Commons Home Affairs Committee in 1995 described the magistracy as: ‘ladies and gentlemen bountiful, politically imbalanced, unrepresentative of ethnic minority groups and women, who slow down 72

the system and cost a fortune’. Lord Justice Auld expressed similar doubts, though in a considerably more charitable way, when he stated in his 2001 review that the magistracy was ‘not a true reflection of the population nationally or communities locally’, and that ‘urgent steps 73

must be taken to remove its largely unrepresentative nature’.

The magistracy is

unrepresentative on a number of measures, and all should be addressed, but some are more immediately consequential than others.

72

73

Barrister, S (2018), ​The Secret Barrister: Stories of the Law and how it’s broken​, Kindle Edition, location 801/5640 Auld, Sir R,. (2001) ​Review of the Criminal Courts of England and Wales: Report​, The Stationary Office: London, p.119 56

The magistracy has a slight gender imbalance, though they are the only branch of the judiciary (and even the wider criminal bar) where a majority of members are women: around 55 per 75

cent.74 However, people with disabilities are significantly underrepresented in the magistracy.

Discussions about the representativeness of the magistracy have typically focused on race. Lack of BAME representation in the magistracy has improved over the last twenty years, yet despite some attempts by New Labour to improve diversity in the magistracy, the issue was never fully 76

addressed.

The most recent figures published by the Lord Chief Justice on judicial diversity

revealed that 12 per cent of magistrates were from BAME backgrounds, which does not depart 77

dramatically from the British population.

The last census revealed that 86 per cent of people

in England and Wales are white.78 However, though the magistracy may be broadly representative of the population on a nationally aggregated level, this does not mean that local benches reflect the diversity of the particular community they serve. For example, whilst London’s magistracy may be some of the most ethnically diverse benches in the country, they 79

fail to reflect the ethnic diversity of London’s population. Magistrates have noted that local benches might fail to reflect the size and importance of some local ethnic communities, like the Turkish or Cypriot communities in North London, or the Somali community in Cardiff.80

Perceived racial imbalances is not only worrying for claims of the representativeness of the magistracy. BAME defendants in magistrates’ courts plead ‘not guilty’ and opt for a trial in the Crown Court system at a higher rate than the rest of the population. The recent Lammy Review suggested that this was because many BAME defendants had more confidence in the 81

fairness of juries than the fairness of magistrates' courts. When Jack Straw proposed ending Ministry of Justice, J​ udicial Diversity Statistics 2018 Taylor, H, A ​ report into the Magistracy and Disability – Survey and Research Findings. C ​ entre for Disability Studies: Leeds,​ ​p.17 76 Gibbs, P, ​Magistrates: Representatives of the people?​, Transform Justice: London, p.10 77 Ministry of Justice, J​ udicial Diversity Statistics 2018 78 ​White, E (2012), E​ thnicity and National Identity in England and Wales: 2011​, Office of National Statistics: London 79 Gibbs, P, ​Magistrates: Representatives of the people?​, Transform Justice: London, p.14 80 Ibid, pp.14-15 81 Lammy, D. (2017) T ​ he Lammy Review: an independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System​, Lammy Review: London, p.26 74 75

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‘either-way’ defendants’ right to a Crown Court trial, Courtenay Griffiths of the Society of Black Lawyers said that ‘black lawyers see magistrates' courts as police courts’.82 However, addressing the lack of ethnic diversity among the magistracy would only be a partial solution, and one that could mask less obvious causes of distrust or alienation from the criminal justice system: there is little evidence to suggest that judicial diversity improves the outcomes for 83

BAME defendants, though it has a role in raising trust.

The voluntary nature of the role – an ostensibly egalitarian gesture – erects a number of barriers to broader participation. Voting intention of magistrates was once recorded as a proxy measure for class or professional background, but this is no longer monitored. Some research has been carried out on the socio-economic background of magistrates. A Home Office study published in 2001 described the magistracy as being ‘overwhelmingly’ drawn from professional and managerial ranks, to the extent that the social composition of the lay and 84

stipendiary magistracy (now known as District Judges) was thought not to be very different.

Twelve years later, this was still very much the case, and, given the glacial rate of magistrate 85

turnover, it is likely the case today, if not more so.

As one critical magistrate interviewed

anonymously for the purposes of this report said, ‘it’s the same type of people as legal professionals – it already fails on the main purpose’.

Frayed community links

Magistrates face a difficult task if we charge them with bringing the views of the local community to bear on their courtroom practice. Public awareness about all aspects of criminal sentencing is poor. Little is known about the statutory framework of sentencing, the nature of sentencing in England and Wales, the range of sentencing options available to either magistrates or Crown Court judges, or actual sentencing practices. Given the complexity of sentencing,

82 83

84 85

BBC News, ‘Jury plans prompt criticism’, 19 May 1999.

Bowen, P. B ​ uilding Trust: how our courts can improve the criminal court experience for Black, Asian and Minority Ethnic defendants​, Centre for Justice Innovation: London, p.17 Morgan, R and Russell, N (2000) T ​ he Judiciary in the Magistrates’ Courts, H ​ ome Office: London​ p​ .viii Hansard Deb, 1 February 2013, c368W 58

this is understandable, but still regrettable. Public levels of confidence in the ability of the courts across a number of outcomes – punitiveness, offender rehabilitation and reducing reoffending – is also markedly lower than public confidence in nearly all other components of 86

the criminal justice system, and lower than the overall ‘global’ measure.

If magistrates do indeed represent judgement by one’s peers, are the public fully aware of what their peers do on their behalf in court? Despite their long-standing role in dispensing justice in England and Wales, there has been little research into public attitudes towards the magistracy.

Morgan and Russell’s 2000 assessment found that members of the public dramatically underestimated the proportion of all criminal cases handled by magistrates: the average 87

estimate was 55 per cent while the figure has long been in excess of 90 per cent.

Furthermore, a sizeable minority of members of the public surveyed believed that magistrates were qualified lawyers. An earlier study conducted in 2001 revealed that one third of members 88

of the public surveyed believed that magistrates were remunerated. The 2012 study found that only 40 per cent of participants correctly identified the status of magistrates as unpaid 89

members of the public.

However, low levels of public interest or awareness should not be read as disinterest or disapproval of lay participation. When pressed on whether they thought magistrates shared their views, two-thirds of those surveyed believed magistrates shared their views, whilst over four fifths of the sample held the view that magistrates ‘definitely’ or ‘probably’ share the same values as them. Approval of lay adjudication amongst test participants in the 2001 study – which was already high with only 20 per cent believing it to be probably or definitely not a good

86

87

88 89

Hough, M; Bradford, B; Jackson, J; Roberts, J. (2013) A ​ ttitudes to Sentencing and Trust in Justice: Exploring Trends from the Crime Survey for England and Wales​. Ministry of Justice Analytical Series; London. p.32 Hough, M; Jackson, J; Roberts, J; Gerber, M (2012); ‘Public opinion towards the lay magistracy and the Sentencing Council guidelines: the effects of information on attitudes’ T ​ he British Journal of Criminology Volume 52, Issue 6 pp.1072-1091, p.1074 Ibid Ibid, p.1079 59

idea – increased to 87 per cent when more information about the qualifications required to be a magistrate was provided.90

Isolation from the wider justice system

More worrisome was the erosion of the connection between magistrates and other stakeholders in the criminal justice system. When asked about the impact of sentencing guidelines on how she and her colleagues perform, one magistrate serving in a rural part of England noted that although she didn’t think she or her fellow magistrates ever felt ‘constricted by sentencing guidelines’, they were often frustrated by situations where:

‘You have an impregnable offence...and probation can’t come up with anything sensible…this can be the result of some fairly restrictive rules on unpaid work [but] the biggest frustration is when you don’t want to send them to prison, and then probation comes back and says “fine them”, and you know that’s not a useful option’​.

Many magistrates expressed concern that they do not know enough about local probation service provision, or about a given defendant in their court, and that this was driving changes in sentencing practices. Many magistrates interviewed expressed frustration with other magistrates and with other court users – particularly probation and Community Rehabilitation Companies – at what they saw as a lack of discretion in sentencing outcomes. One North London magistrate described current sentencing options as:

‘​[So] limited…magistrates don’t have the options before us but it’s so beyond the

magistrates…people don’t seem really interested in knowing what are effective outcomes’​.

Demanding that magistrates engage with local probation service providers of their own accord is unrealistic, especially in light of training cuts and growing fear of being censured by their legal

90

Ibid., p.1082 60

advisers. But as we expect magistrates to reflect local public safety concerns in their sentences, they should have a strong grasp of what punitive and restorative sentencing options are available locally. A 2017 survey of magistrates revealed that over a third of magistrates felt that training had not adequately prepared them for dealing with community sentences and their 91

requirements.

This undermines the confidence of sentencers in all options, but particularly in options including Rehabilitation Activity Requirements (RARs). Currently, the court cannot specify how many days an offender must serve on a RAR, only a maximum number of days. Nor can the court set what the offender must do as part of the RAR, and can only recommend that particular identified needs be addressed. While this was introduced to facilitate innovation by CRCs to address offending by granting them greater flexibility in deciding what should constitute a requirement, it can greatly reduce the information available to a court when deciding on an appropriate sentence. The court needs to have a reasonable idea of what a given sentence is supposed to achieve, and how, in order to determine whether a given disposal meets the purposes of sentencing. The lack of input has negatively impinged on magistrate confidence in RARs: while a large majority of those magistrates surveyed by the Magistrates Association in 2015 and 2016 did not believe the shift to RARs was affecting outcomes, many expected that it would do in the future, and lack of information was the most frequently cited factor by those 92

who believed there had been or would be a change in sentencing decisions.

There have also been changes to the quality and quantity of information about defendants provided to magistrates in the courtroom by probation services. The most striking example of this has been the changes to the provision of pre-sentence reports (PSRs). Magistrates are expected to obtain a PSR before passing any community sentence other than an unpaid work requirement, or any custodial sentence ‘unless the court considers a report to be unnecessary’.

91

92

du Mont, S; Redgrave, Harvey; (2017) W ​ here did it all go wrong? A study into the use of community sentences in England and Wales​, Crest Advisory: London, p.7 Magistrates Association (2018) response to the Ministry of Justice consultation ​Strengthening Probation, Building Confidence​, p.17 61

93

In testifying before the justice committee, John Bache suggested while chair of the youth

courts committee of the Magistrates Association that one of the major factors in determining whether custody is used today is the quality of the PSR: if the courts trust its quality, they are likely to follow its suggestion for alternatives to custody.

94

Against a backdrop of the declining

use of community sentences, there has been a dramatic 22 per cent decrease in the total volume of PSRs, and a greater proportion of custodial and community sentences are now being made without the advice of a new PSR.

95

A greater emphasis on speed has resulted in an

increasing proportion of PSRs being delivered orally, rather than in writing, with a much swifter turnaround. HM Inspectorate of Probation found that although oral reports were ‘generally sufficient for the purposes of sentencing and well regarded by sentencers,’ they could also 96

‘present problems for the safe and effective planning of a community sentence’.

Short format

written reports were found to be less satisfactory: only 71 per cent of reports analysed by the Probation Inspectorate were deemed to be of sufficient quality to assist in the sentencing 97

process.

These changes have happened around magistrates but they directly impinge on the

ability of magistrates to exercise their discretion and to decide the right disposal in a given case.

The May 2015 review of probation by HM Inspectorate of Probation identified two significant problems: a lack of feedback to probation service providers from court staff about court decisions, and a failure on the part of CRC officers to make sufficient effort to re-engage the 98

individual and encourage them to continue engagement in a third of cases.

A number of

magistrates have also reported that Community Rehabilitation Companies (CRCs) have returned offenders to court in order to ask to extend an order just before it ends to allow

93

94

95

96

97 98

Sentencing Council (2017) Imposition of Community and Custodial Sentences: Definitive Guideline Sentencing Council: London p.6 Muir, R., (2014) ​Everyday Justice: Mobilising the power of victims, communities and public services to reduce crime​. Institute for Public Policy Research: London, p.32 Whitehead, S., (2018) T ​ he Changing Use of pre-sentence reports​ The Centre for Justice Innovation: London p.3 Ryan, M. (2017) The work of probation services in courts. Her Majesty’s Inspectorate of Probation: London, p.23 Ibid, p.25 HM Inspectorate of Probation (2016)​ Transforming Rehabilitation, Early Implementation Five​, Her Majesty’s Inspectorate of Probation, p.20 62

99

requirements (such as unpaid work) to be completed. Magistrates have also expressed concerns that CRC offender managers may not have any experience or understanding of the court process, or of sentencing practices in particular.

100

Legislation currently prevents CRC

staff from having direct contact with the courts in relation to sentencing specific cases, and it is the National Probation Service which provides all advice in court. This means that offender managers may not appreciate or be fully aware of the purpose of a given component of a community sentence or a post-release supervisory regime, and this may have a deleterious effect on enforcement measures taken.

This is arguably symptomatic of a wider trend: the deterioration of the relationship between the courts and probation services. Strained by reforms such as the cleaving of probation service provision between Community Rehabilitation Companies and the National Probation service, as well as court timeliness targets and closures hampering the delivery of high-quality sentencing advice, the relationship between sentencers and probation service providers needs to be reinvigorated. Sentencers are all too often operating in the dark: they have limited ways of assessing the effectiveness or appropriateness of non-custodial sentencing options, and their judicial discretion is diminished as a result.

Dealing with unrepresented defendants in person

While data on the precise numbers of self-representing defendants are not formally recorded in magistrates’ courts, civil, family and Crown Courts have seen increases in the number of 101

defendants appearing without a lawyer.

Many of the sitting magistrates interviewed for this

report said they had noticed an increase, while a Buzzfeed News survey of magistrates reported that the number of people appearing in court without a lawyer had risen by a quarter in three years, and that 30 per cent of all criminal defendants they saw at their last session had no 99

100 101

Magistrates Association (2018) response to Ministry of Justice consultation S​trengthening probation, building confidence​, p.3 Ibid p.8 Grimwood, G (2016) ‘Litigants in person: the rise of the self-represented litigants in civil and family cases’ House of Commons Library Briefing Paper ​Number 07113; and Ministry of Justice (2017) C ​ riminal Court statistics quarterly, England and Wales, January to March 2017.

63

102

lawyer, up from 24 per cent in 2014.

An overwhelming majority of those magistrates

consulted believed that self-representing defendants compromised the efficiency of courtroom processes and compromised the quality of justice delivered by the court.

Why is this trend important for the future of the magistracy? If the number of self-representing defendants continues to rise, it will become increasingly important that magistrates can effectively communicate courtroom instructions in plain English. The increasing number of self-representing defendants also puts a greater emphasis on magistrates’ court-craft and case management skills. It is also arguably another factor that lends further weight to the deliberative justice principle that is practiced by a bench of three JPs, instead of the decision-making of a single DJ.

The introduction of the Transforming Summary Justice initiative in 2015 also places a greater onus for effective case management on magistrates, particularly for first hearings of contested cases allocated to not guilty anticipated plea (NGAP) courts. While backlogs in the court system had reduced,

103

it is not clear if magistrates typically possess the training or confidence

to control court business proactively by challenging delays or non-compliance with court directions. Evidence submitted to the Justice Select Committee was divided as to whether magistrates had acquired the necessary skills for this role: Oxfordshire Magistrates’ Bench believed ‘more extensive and ongoing training’ was required to deal effectively with case 104

management and allocation.

It was also suggested by the Crown Prosecution Service (CPS)

that a panel of specially-trained ‘case management’ magistrates be set up to ensure that case management in NGAP courts is robust as possible.

102

103 104

Dugan, Emily,, ‘This man had to face drugs charges with no lawyer because he couldn’t afford one’, ​Buzzfeed News​, 15 December 2017 National Audit Office (2016), Efficiency in the Criminal Justice System, House of Commons: London Justice Committee (2016), ​The Role of the Magistracy​, HC 165, p.15 64

4. How the world has changed around them

There are some broad secular trends that will place an increasing onus on the ability of magistrates to communicate effectively and to be the truculent human voice in an increasingly automated and digitised criminal justice system. The values that underpin the magistracy have historic roots, but the principles that justify lay adjudication must also make sense in the context of the modern world. Before exploring how we might better realise these values, it is worth exploring another story of dramatic change beyond the court estate: the nature of crime in the UK.

The changing crime picture First, changing patterns of offending, detection and prosecution in England and Wales has been of significant consequence for magistrates’ courts case volumes and for offenders. Britain is a safer place than it was 20 years ago. Overall, there are fewer crimes than in 1995, when crime volumes peaked, and there has been a particularly steep decline in traditionally high-volume crimes such as burglary and car theft.

105

Between March 2011 and March 2018, recorded crime 106

– excluding fraud and computer misuse – decreased by 36 per cent.

There are many reasons

for this general decline. With increased reporting rates, and the improvement in the ability of police to detect and prosecute more serious and complex crime has resulted in a corresponding reduction in the speed at which some kinds of cases are prosecuted in the criminal courts. The Lord Chief Justice concluded in his 2017 annual report that ‘it appears that the reduction in the number of cases is counterbalanced by the increase in complexity and length’.

105

106

107

107

Backlogs in the Crown Court increased by 34 per cent between March 2013 and

Muir, R. (2017), ‘What’s happening to crime? A guide for journalists and presidents’ The Police Foundation Blog​.

Morse, A., (2018) F​ inancial Sustainability of police forces in England and Wales 2018​ National Audit Office: London, p.12 Burnett, I., (2017) T ​ he Lord Chief Justice’s Report 2017​ (Judicial Office: London) p.17 65

September 2015, and cases are taking longer overall to progress through the system, with 108

particular pressure points at the pre-trial stage.

Complex fraud cases, historical sexual offences, cyber-crime (including social media harassment) and domestic abuse all present unique prosecutorial challenges and generate enormous evidential burdens. There has also been a proliferation in the number of criminal offences.

From 1997 until 2007, more than 3,000 new criminal and regulatory offences were added to the statute book. As Lord Sumption noted in 2013, a wide range of acts which a century ago would have been regarded as casual misfortunes or governed only by principles of courtesy are now actionable torts: popular expectations of law are ‘by historical standards exceptionally 109

high’.

Furthermore, a significant number of the new offences created over the last thirty

years are strict liability matters, which are usually confined to summary-only proceedings, and 110

are easier to prove than offences requiring ​mens rea​.

Changing social norms have also changed the nature of demand on the criminal justice system.

There has also been an increase in the number of domestic abuse cases entering the magistrates' court. Domestic abuse was for many years either little known or not regarded as a public matter, and it only gained greater prominence when Jo Richardson MP gained Government backing for a Private Members’ Bill to give the right to apply to the family court 111

for protective orders.

These cases present unique demands for witness services, 112

prosecution and evidence gathering, and courtroom practices.

Traditionally, cases like shoplifting, street violence and disorder, and public nuisance were the types of less serious offending that characterised the magistrates’ court workload. These offences are still prevalent, since they have not been driven down by technological shifts in the

108 109 110

111 112

National Audit Office (2016), ​Efficiency in the Criminal Justice System​, House of Commons: London​,​ p.14 Lord Sumption, T ​ he Limits of the Law, A ​ zlan Shah Lecture, 20 November 2013, Welsh, L., (2013) ‘Are magistrates’ courts really a “law-free zone”? Participant observation and specialist use of language’, ​Papers from the British Criminology Conference,​ pp.3-16. p.12 Hansard 13.2.76 (vol 905 .857-900) Domestic Violence Bill National Audit Office (2016),​ Efficiency in the Criminal Justice System​, House of Commons: London, p.12 66

same way as vehicle theft or household burglary, but they now reach the courts less frequently.

Changes in policing practice, such as the implementation and subsequent expansion in the late 1990s of formal police-led diversion and other out-of-court-disposals have alleviated pressures on magistrates’ courts, but the magistrates' court system still functions as a punitive backstop: it remains responsible for the eventual enforcement of penalty notices that go unpaid. Though formal police-led diversion has declined over the past ten years, the mid-2000s saw an expansion so dramatic that one criminal justice commentator referred to it as an ‘explosion’.113

Between 2007-2017, the number of defendants proceeded against in magistrates' court has declined from 1,732,506 to 1,392,139, or a decline of 19.6 per cent. The number of either-way offences tried in the magistrates' court over this period fell by 32.9 per cent, from 369,884 cases in 2007 to 248,106 cases in 2017.114

​Allen, R, (2017) ​Less is More - the case for dealing with offences out of court​, Transform Justice: London, p.10 Ministry of Justice (2016)​, Criminal Justice System Statistics publication: Magistrates Pivot table Analytical Tool for England and Wales December 2007 to December 2017​ Ministry of Justice: London. Accessed at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/524338/magistrate s_-court-data-tool.xlsx 113 114

67

The graphs above illustrate the changes in the sorts of offences being resolved in the magistrate court system. As the total volume of offences appearing in the magistrate court system has declined, summary case volumes have remained relatively consistent, and make up a slightly larger proportion of the work done by magistrates, while the numbers of either-way offences being handled by magistrates has declined.

The decline in summary defendants appearing in the magistrates’ court system is a reflection of both falling volume crime rates and changes in police activity (and detection rates), plus a general shift in where certain offences and offenders are dealt with in the system: a greater proportion of low level offenders do not come before a magistrate and are therefore handled beyond any effective judicial oversight, unless and until their offending escalates. If you subtract the types of cases that magistrates no longer preside over and exclude the volume traffic cases now being processed outside open court through fixed penalty notices and the Single Justice Procedure (e.g. fare evasion, traffic violations, or non-payment of utilities), the types of cases that are left are more complex and arguably more serious than those which a magistrate might have routinely seen twenty years ago.

68

This picture is reinforced by the data that show that whilst total crime levels have fallen, a small group of prolific offenders has become responsible for an increasing proportion of crime. The proportion of prolific offenders in the criminal justice system has increased steadily since 2007: where once it had been around 3 to 5 per cent, by 2016 they accounted for 25 per cent of all 115 ​

offenders.

In the year ending June 2018, 37 per cent of the offending population had 15 or

more previous convictions, representing an increase of 7 per cent since 2011. In 2017, 60,000 cautions or convictions for minor offences were given to people who had offended 11 or more 116

times.

These individuals had a total of 1.8 million previous convictions, or up to that many

occasions where the response of the criminal justice system failed to prevent future offending.

Problems of repeated and prolific offending are especially acute among prisoners serving sentences of less than 12 months: in 2011, 47 per cent of the prison population serving such a 117

sentence had 15 or more previous convictions or cautions.

In 2016 the National Audit

Office conservatively estimated the annual cost of reoffending to society in England and Wales in 2016 to be between £7.4 billion and £10.7 billion.

118

Dealing with offenders of this sort

requires a more engaged approach that takes better account of their needs and aims to address them through a sentence that combines effective and proportionate punitive components with equally effective rehabilitative components that are available locally.

Prolific offenders also tend to begin offending at a young age. On average, a prolific offender has received five cautions and non-custodial convictions before their first custodial sentence.

However, advances in criminology, neuroscience and psychology have demonstrated that risk-seeking criminal behaviour is strongly linked to age, and typically declines rapidly once the offender reaches their mid-to-late twenties, including amongst those who had hitherto been 119

persistent offenders.

115

116 117

118 119

There is a broad consensus that effective early action by the police and

Ministry of Justice (2017), ​Prolific Offenders – Characteristics of Prolific Offenders​, Ministry of Justice: London​, p.2 Ministry of Justice (2018), ‘Offending History Data Tool: Previous offence statistics’ Ministry of Justice, (2013) ​Updated Impact Assessment for the Offender Rehabilitation Bill​ Ministry of Justice: London, p.5 National Audit Office (2016), ​Transforming Rehabilitation​, House of Commons: London, p.12 Justice Committee (2016), ​The Treatment of Young Adults in the Criminal Justice System​, HC 169, p.8 69

sentencers in the youth court or the adult criminal court can be vital in steering individuals away from a cycle of recidivism, and approximately 85 per cent of repeat offenders desist from offending by age 28. The onus for sentencing these offenders also falls heavily on magistrates. A higher proportion of prolific and highly prolific offenders (defined by the Ministry of Justice as those with 50 or more previous cautions or convictions) are charged with theft offences, public order offences, and miscellaneous crimes against society when compared to non-prolific offenders, offences that are more likely to be resolved in the magistrates’ courts than acts of violence against the person, sexual offences, or even drug offences where a larger proportion of 120

non-prolific offenders are responsible.

Despite the cost they incur on victims and society, it is therefore wrong to assume that prolific offenders are usually handled by Crown Court judges in response to an offending pattern of escalating severity. In reality many will come before magistrates repeatedly before they first see a judge, and the magistrates' court is where most prolific offenders will have their view formed of the justice system. As this cohort forms an ever-greater proportion of all offenders dealt with by the criminal justice system, it is essential that magistrates have the power, skills and knowledge to deal with them more effectively.

Implications of the changing crime mix for the judiciary

With the exception of the 2003 Courts Act that unified the governance and created Her Majesty’s Courts Service (the fore-runner to HMCTS), the English and Welsh judicial structure has not been comprehensively reformed since the assizes and quarter sessions were replaced with the permanent Crown Court system in 1972. In contrast, the picture of crime in the UK is very different to that of forty years ago.

The system that emerged after the 1971 Act was a marked improvement on the backlogged and inefficient courts that it replaced, but it was fit for a different age. The network of around

120

Ministry of Justice (2018) ‘Prolific Offenders experimental statistics’ in ​Criminal Justice System Statistics Quarterly: June 2018​. Ministry of Justice: London, table 2.

70

90 Crown Courts and several hundred magistrates' courts (the former petty sessions), comprised a system that was suited to a period when a smaller number of the most serious cases warranted a salaried, professional judge and a jury, but the vast majority of criminal cases were heard either by stipendiary magistrates or justices of the peace, of whom there were a far greater number. Tensions have become apparent as this judicial structure continued largely unchanged into the twenty-first century, with the exception of the stipendiary magistrates’ becoming District Judges in 2000.

The structural problem that has emerged results from a combination of falling case volumes (a long-term trend) and a changing crime mix (a more recent phenomenon), such that there is substantially less work for magistrates at the lower end, too much work for Crown Court judges at the top end, and an under-utilised middle tier of district judges. Against a backdrop of sustained reductions in volume crime combined with the growth of police-led diversion schemes over a twenty year period - especially for young offenders as part of a move to reduce first time entrants and move away from targets on offences brought to justice from 2008 - this ongoing expansion and promotion of out-of-court disposals has seen the volume of business at the low end of the courts system decline markedly (itself a rational justification for estate consolidation, as courtrooms sat empty).

In parallel, there has been a rise in the last decade in the reporting of the most serious offences (notably rape and sexual assault, both contemporary and historic), and a near concomitant rise in the number of such crimes feeding through into indictable cases, with a shortfall in the number of judges able to hear them. In addition, triable either-way offences have also not declined significantly, with issues like domestic abuse, hate crime, knife crime and fraud becoming more prevalent – an area in which a skilled middle-tier of judiciary would be best placed to handle such cases, but which has not been expanded in line with the demand.

Together, these various factors have conspired to create a mismatch between court capacity, supply of judges, and judicial capability.

Picking up the slack 71

Some magistrates have argued that with additional training, and extra recruitment of JPs, the burden of either-way offences on the backlogged Crown Court could be addressed by doubling their custodial sentencing powers from 6 to 12 months. This proposal is in fact a provision already on the statute book (Criminal Justice Act 2003, Sec.154) and has even featured in previous policy platforms of both of the main political parties, but has never been implemented.

It was dropped by the former Labour Government in 2006121 and never resurrected under the subsequent Coalition or Conservative Governments after 2010, even though the former Lord Chief Justice, Lord Thomas, did call for it as recently as 2017122 as Crown Court backlogs from serious cases continued to grow.

Because of their lack of legal training, voluntary commitment and infrequent sittings, traditional JPs – even if they were expanded in number – are not the right judicial actor to take on more serious cases. Furthermore, while increasing their sentencing powers could keep a proportion of cases from going to the Crown Court, it would not address the other shortcomings of untrained lay magistrates being tasked with judging a more complex and serious mix of cases.

Even if it were shown that the sentencing practice of JPs did not result in a higher use of imprisonment for offenders whom they would then be able to sentence themselves, the context makes the proposition unattractive – benches of three but sometimes two, sentencing defendants in open court but without media and without a transcript record of proceedings (like the Crown Court), and with a slow appeals process. Short custodial sentences of under six months can sometimes be justified, but granting magistrates, or separately just District Judges, the ability to impose a longer sentence of up to 24 months (12 months served in prison, less time spent on remand) would be a serious deprivation of liberty that warrants a professionally trained judicial decision-maker presiding over the case. No other Common Law jurisdiction grants lay magistrates such extensive custodial sentencing powers.

121 122

​‘Reid suspends plans to increase magistrates’ sentencing powers’ T ​ he Guardian​, 3 August 2006.

Gibb, F., ‘Toughen sentencing powers of magistrates, says law chief’, T ​ he Times​, 19 September 2017.

72

This idea would take the English and Welsh judicial model even further away from what comparable countries practice (with many untrained volunteers with even greater powers to incarcerate) and would go against the modern trend for greater professional accountability and transparency in the legal system. Penal reform groups oppose the move because they fear the efficiencies from avoiding trial costs would be cancelled out by the expense associated with magistrates over-using their new powers to send offenders to prison at a higher rate, without any evidence that this would actually take place. When it has been floated, the proposal is usually justified by an efficiency agenda, but until now it has been rejected because of assumptions about how magistrates would behave that risked eroding any anticipated savings. A putative plan to trial the idea in a defined geographic area in 2016, with the support of the Lord Chief Justice and the Secretary of State at the time, was subsequently shelved, and there seems to be no current appetite to revisit the plan.

Even though there would still be merit in trialling the approach, the agenda would need to be broadened to consider what a successful pilot would mean for wider roll-out and what the implications would be for the role of the magistracy. A rational alternative that has been floated was for DJs - rather than all magistrates - to be granted these powers in a time-limited pilot, or in a given geographic area, as a precursor to utilising them more, and to inform plans to expand the number of District Judges across the system.

Magistrates have long suspected that running down the number of JPs has been pursued, or at least allowed to happen, as part of a premeditated plan to shift more work to District Judges, and to grow their numbers over the long-term. However, if this has been the intention of the senior judiciary and Ministry of Justice policy-makers, the objective has not been achieved - numbers of District Judges have remained largely flat for more than a decade and recruitment of DJs has not been a priority.

Are District Judges an alternative?

73

Though it has never been policy, expanding the middle-tier of the judiciary to provide more District Judge capacity has frequently been mooted as a possible solution to the caseload imbalance. Given that DJs are salaried and trained, they avoid some of the criticisms of their lay counterparts when it comes to sentencing powers, and they provide a more dependable and rostered resource against which to plan future judicial and court capacity.

Critics of the magistracy often suggest that District Judges should supplant their lay counterparts entirely, on the grounds of efficiency and professionalism. However, much would be lost if District Judges were to replace magistrates. There are good reasons why this should not, and would not happen. In fact, while superficially attractive, this move has both practical, fiscal and constitutional drawbacks.

District Judges

District Judges (DJs) serve an important role in our criminal justice system. They are salaried members of the judiciary who hear cases in magistrates’ courts. They have the authority to sit at any magistrates’ court in England and Wales. Their main jurisdiction lies in the adult criminal court, though many sit in the Youth Court. District Judges are also expected to sit in the Single-Family Court and to undertake prison adjudications. In addition, some DJs can hear cases under the Extradition Act and can deal with matters under the Terrorism Act 2000 and the Fugitive Offenders Acts.

District Judges were initially introduced in London as a means of ensuring greater efficiency in some of the busiest lower-tier magistrate courts in the country, and were first known as stipendiary magistrates. They achieved this, but at substantially greater financial cost: the current annual salary for a District Judge is £110,335.

123

Furthermore, in the wake of the

case of ​O’Brien v Ministry of Justice,​ the cost of pensions for Deputy District Judges and

123

Ministry of Justice (2018), ​Ministry of Justice Judicial Salaries from 1 April 2018​, Ministry of Justice: London 74

District Judges will be even greater. Currently, there are just over 400 District Judges serving, and this number has not changed significantly in the last decade.

While DJs have a distinct and valuable role in our criminal justice system, there are compelling reasons why we should be increasingly concerned about judicial decisions emanating from a single individual. With declining local reporting in all courts across the country, but particularly in our lower courts, justice in the criminal court is increasingly being dispensed out of public 124

view.

Empty press galleries mean that justice in England and Wales is not being seen to be

done, and as such, accountability is arguably eroded. As a result, the public is denied an insight into how the justice system operates and how judicial decisions are reached. For each case, a bench of magistrates is reaching a judgment. And even though they must consider sentencing governed by the same guidelines and are under no more scrutiny than a District Judge, they are nonetheless reaching that decision collectively. In a court system where proceedings have become less transparent, that attribute is an advantage.

There are other more prosaic reasons why District Judges could not simply replace the work of magistrates outright. First, given that the British judiciary is currently experiencing an ‘unprecedented’ recruitment crisis ‘at all levels and across all jurisdictions’, according to the Lord Chief Justice, the prospect of even finding enough District Judges to do the work of 14,312 magistrates seems somewhat unrealistic. The last Judicial Appointments Commission exercise to recruit District Judges identified 69 immediate vacancies and 41 future vacancies. In fact, 23 future vacancies were converted to immediate vacancies during the course of the selection exercise. Secondly, having a District Judge undertake some of the work that magistrates currently do at no cost is not an especially efficient use of salaried judicial manpower.

124

Press Association, ‘Top lawyer warns that decline of court reporters means “justice operates unseen and unheard by the public”’​ Press Gazette​, 4 May 2017.

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Being professionally trained, experienced in the courtroom and sitting full-time, DJs are more efficient at processing caseloads than a typical bench of three JPs - though good data to quantify this are still not yet available. Nevertheless, there is no clear consensus on the comparative cost-effectiveness of District Judges compared to magistrates overall: the cost advantage of 125

magistrates is only unambiguous when only financial costs are factored in to any model.

Setting aside value-for-money, it is clear that the policy would have a large upfront price tag.

As an example, we estimate that a single District Judge, sitting alone and for a minimum of 215 days a year (based on the annual courts timetable), is equivalent to the work undertaken by 32 unpaid magistrates sitting for the recommended number of​ s​ ittings of 20 per year.126 All else being equal, including courtroom productivity, it would require the recruitment of 469 new

District Judges to handle the work currently undertaken by magistrates, more than doubling the pay bill of DJs to over £50.6 million annually, even before including the cost of recruitment, training and pensions for the additional DJs.

With the current cost pressures on the whole criminal justice system, that level of additional funding is simply not available, and the outcomes in improved efficiency that an expansion in District Judges by this amount would achieve, even if it could be accomplished, would be unlikely to justify that level of investment.

Despite recent declines, the cohort of JPs are simply too important in the workings of the court system to be replaced entirely by judges, and there is no realistic alternative scenario for handling the volume of cases that magistrates process. Assuming it would take many years to shift comprehensively away from the magistracy system, to replace even half of them with paid

Ames, A. Szyndler, R. Burston, K, Phillips, R; Keith, J; Gaunt, R; Davies,S; Mottram, C; (2011) The strengths and skills of the Judiciary in the Magistrates’ courts, M ​ inistry of Justice Research Series 9/11 M ​ inistry of Justice: London.

126 ​The Lord Chancellors’s Directions for Advisory Committees state that the average attendance figure for magistrates should be between 17 and 23 days per year. We have taken 20 days as the singular recommended number of sittings per annum.

125

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District Judges as an alternative scenario would not be affordable in the short-term and may not even be justified economically in the long-term.

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5. The performance question

Our picture of how magistrates collectively and individually perform is constrained by a lack of granularity in the court data, and is therefore incomplete. However, despite the hurdles to forming any statistical picture of how magistrates perform in court, analysis of Ministry of Justice data relating to the lower-tier courts is possible, and it does reveal some surprising insights into Magistrate Court sentencing outcomes. This is outlined in more detail in Appendix II.

Similarly, qualitative assessment is constrained because formal review mechanisms for magistrates are limited and carried out ‘in-house’. Review processes for magistrates is also disjointed and infrequent, with poor feedback mechanisms linking assessment outcomes to their ongoing skills development.

Previously, all magistrates would be subject to a review once every three years, but now wingers are reviewed every four, whilst chairs are reviewed every two. However, the format of the review remains the same. An appointed reviewing magistrate sits in court with a checklist form, and marks whether or not the magistrate under review has successfully met certain performance criteria. The form only lists the assessment criteria, and the assessor input is limited to ticking one of two boxes next to each criterion: satisfactory or unsatisfactory.

The completed form is then sent to the bench review committee, and if there are sufficient ‘satisfactory’ ticks, then no further action is taken.

If a magistrate is deemed incompetent by the committee after examining their respective form, they are informed about this, and then they are submitted to another appraisal. If they fail again, then the review committee contacts the Judicial Conduct Investigations Office (JCIO), who investigate the performance of the magistrate and can offer an official warning or remove the underperforming magistrate. In 2017-2018, 21 magistrates were sanctioned by the JCIO,

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with 11 being removed from office, or 0.07 per cent of the total.127 However, all of these dismissals were for failing to meet the minimum number of sittings, or for serious misconduct, not for underperformance following a review. One magistrate lamented that some of her colleagues ‘seem to not have grasped basic principles no matter how many years [they’ve] been doing it – if you’re a winger you can let things slide. Nobody tests you; nobody would know if you didn’t know basic principles.’ While the performance of most magistrates might appear to be satisfactory, as attested to by the relative paucity of referrals of magistrates to the Judicial Conduct Investigations Office, the current system still lacks nuance and fails to identify areas for improvement, or the ability to link these areas to any training curriculum. Of course, occasions where a disciplinary process has been instigated is not an especially effective metric for performance management. But this is a reflection of the absence of any other more suitable measure and of the crudeness of current magistrate review processes.

As previously mentioned, magistrates have a crucial role to play in ensuring perceptions of procedural fairness for court users, and that the communication skills of magistrates are key to fulfilling this purported strength. One North London magistrate interviewed anonymously for this report agreed that magistrates have ‘a huge role to play in public confidence in the courts’, but that frequently the communication skills of the bench chair is poor, and the defendant is left with little or no idea of the outcome of their case. This perception was borne out both in the testimony of other magistrates in interviews and in court observation. One magistrate interviewed said that ‘the competencies that are being looked for [in magistrates] don’t include engagement skills.’. In many courtrooms observed for this research, bench chairs would speak in hushed tones, failed to make eye contact with the defendant when addressing them, and directed most of their interventions in court to the legal adviser. Another stated that ‘​in my

court … far too often someone will not understand what’s happening to them and they are really distressed about it...there’s no one to say how the system works or what is happening...even people who’ve been in and out of the system seem to have some problem understanding it​.’ This impression was confirmed by the results of a 2010 survey of remand ​Judicial Conduct Investigations Office (2018)​ JCIO Annual Report 2017-2018​, Judicial Conduct Investigations Office: London, p.9 127

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prisoners. It revealed that after their hearings came to a close, only 73 per cent of remand prisoners interviewed knew where they were being taken when they left court. This fell to 60 128

per cent for the third of those remand prisoners who had not been in prison before.

Given

the heightened importance of procedural justice for achieving better outcomes, ensuring effective communication skills should form a key part of any new strategy for the recruitment, selection, training, and review of magistrates.

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HM Inspectorate of Prison (2012)​ Remand prisoners: a thematic review H ​ MIP: London, p.44 80

6.

What do we need magistrates to do and to be?

Without exception, every magistrate consulted for this report has emphasised the seriousness with which they take their position and the gravity of their powers. But the real challenge is not around motivation or commitment, but about capacity and capability. A magistrate's greatest strength is their ability to hold other people to account, whether they be defendants, institutions, court users, or even one another as they deliberate on the outcome for a case.

They should also strengthen links between the community they represent and the criminal justice system that they are working in, strengthening pre-existing links and establishing new ones wherever possible. Just as the proximity of the physical infrastructure of the court estate to a given community is not sufficient to ensure the delivery of local justice, just because magistrates are recruited locally does not mean they are able to bring local knowledge to bear in the courtroom effectively.

To do this, magistrates need to be representative, well-trained problem-solvers. In addition, the links between magistrates and the communities they serve need to be entrenched. Just as the proximity of the physical infrastructure of the court estate to a particular community is not sufficient to ensure the delivery of local justice, the fact that magistrates are recruited locally does not ensure that the views, knowledge and beliefs of local communities are brought to bear in how magistrates perform in the court room.

What follows are case studies highlighting some of the different paths the magistracy has followed elsewhere in the United Kingdom.

Northampton Youth Rehabilitation Orders: A more engaged magistracy?

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“​It’s back to this thing about calling people to account. It’s about people. We’ll offer a point of

view: we are observers – but we are vocal observers. All the authority comes from what Youth Offending Services already has, we just make it more real​.”

Granting magistrates greater supervisory powers has been trialled in Northamptonshire, with 129

some success.

Central to this success have been four factors: a specially selected group of

youth magistrates, enhanced training, judicial continuity, and a willingness on the part of these magistrates to flex their judicial muscles and embrace a proactive, problem-solving culture. Youth courts – in which specially trained magistrates talk directly to the child and their parents and use simpler language appropriate to comprehension levels and which are less formal in nature and layout – are more attuned to the demands of procedural fairness.

The initiative began when Dominic Goble JP, then chair of the Northamptonshire Youth panel, became interested in gauging the effectiveness of sentences meted out by his court: ‘​People who

pass sentences on other people care about what they do. They put a lot of time and effort into making sure that sentence is what is needed for the offence and what is needed for the offender.

If my sentence is going to do the job, you want to see less people coming to the courts, you want them to be as effective as possible​.’

Following discussions with the head of Youth Offending Services (YOS) in Northamptonshire, Dominic began to question how often sentences for youth offenders were ended early for good progress: ‘​Early revocation should be a motivator. If you do well, you should be congratulated,

get your bonus, and get off your order early...I said [to YOS] “ask your caseworkers to tell the kids to get on with it and achieve.” It changed the mindset of the way the orders were being done, on the part of YOTs.​’

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Ward, J; Warkel, K (2015) ​Northampton Youth Offending Service Review Panel Evaluation​ Centre for Social and Criminological Research: London 82

When children ended their sentence early, Dominic wished to congratulate them on their progress, but sought a less formal mechanism for doing so than disrupting the child’s work or education for them to come to court. Through a series of conversations with legal advisers, youth offending teams, and social services, the Northamptonshire Youth bench began undertaking informal review sessions alongside youth offenders, youth offending teams, and other relevant stakeholders such as educators and employers, to cajole and encourage children on court orders to stick to them. Underpinning the approach of the Northamptonshire bench was an assumption that it would be necessary to draw together wider services for children and young people to frame a cohesive response to some of their problems, so as to stabilise their situations 130​

to allow offending behaviour work to take place.

Dominic described the review process as a

means of quality assurance for magistrates and youth offending teams as much as it was for encouraging the children: ‘​I firmly believe that when I pass a sentence, it remains my sentence,

because if it doesn’t work where does it end up? Back in court. It’s our order, so we should have judicial oversight…so the people carrying out our sentences have got to be held to account​.’

The Northampton approach aims to ensure judicial consistency in the allocation of the presiding magistrates, or at least the bench chair, for cases deemed suitable for ongoing court monitoring wherever possible. The proposed national model that emerged from the approach taken by the Northamptonshire youth bench recommended enhanced training for magistrates ‘committed...to the task’ that included topics such as ‘enhanced engagement skills, communication needs, and some knowledge of local agencies and services.’131 Local Youth Offending teams were identified as well placed to provide such training, given their multi-disciplinary nature, and because this would also encourage shared commitment to the process from the magistracy and the local 132

authority.

130

131 132

Northamptonshire Youth Offending Service, P ​ roposed Model for the National Implementation of Court Reviews of Youth Rehabilitation Orders, p​ .4 Ibid, p.7 Ibid, p.7 83

In contrast to other problem-solving approaches where judicial authorities can alter the conditions of the original sentence to reflect offender behaviour, Northamptonshire Courts are not empowered to amend Youth Rehabilitation Orders. Instead, if the reviewing court determines that an amendment is necessary, the YOT case manager applies to have the case listed at the next available Youth Court hearing for amendment. The powers of the court are limited to three responsibilities with regard to YROs: receiving an intervention plan from the Youth Offending Team; reviewing the YOT Intervention plan with the engagement of all interested parties; and overseeing the delivery of the YOT Intervention Plan. Though their actual powers are limited, especially in light of the fact that their statutory powers stipulated in Section 37 of the Children Act have not all been enacted, the involvement of the magistracy has reverberated throughout the system of delivery for court orders for young offenders. As Dominic Goble argued, formal powers are often not necessary: ‘​We don’t necessarily have

sanction, but we can call people to account for what they have or haven’t done….no we don’t fine them, or imprison them, or birch them, we just ask them to explain themselves...There’s something about the judiciary – when something’s done under that banner, it has an impact.

There’s definitely a formality to it, even though we are casually dressed and in the YOS office. In the early days, even the YOS caseworkers felt it, and managers recognised it was quality assurance mechanisms for his caseworker​.’

At the first review, the presiding magistrates secure commitment from the child and from all relevant agencies to engage fully with the plan, and encourage the child and their family to engage with the plan through, praise, encouragement and clear directions. In subsequent reviews, the magistrates ensure all parties are updated on any new developments and that responses are considered; review progress against objectives, revising and setting new objectives where needed, or offering help in identifying or overcoming barriers to progress; and providing ongoing motivation for the child to engage.

The approach taken by the Northamptonshire youth court bench was also a recognition of the changing demands on the youth justice system. Youth offending has declined, and with it the

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business of the youth court. As a result, the Northamptonshire youth justice bench is now considerably smaller than it once was: a 48-strong bench has shrunk to a bench of ten. Managing youth magistrate numbers was a ‘balancing act’, where the need for scheduling flexibility had to be held against having too many magistrates and too little work between them to meet the minimum sittings requirement.

The most important conclusions from reviewing the Northampton Youth Court approach are as follows: ● The core strengths of magistrates can be put to use in non-court settings to considerable effectiveness ● A degree of judicial continuity is key if magistrates are to assume supervisory functions ● Magistrates should be given specialised training for such roles ● Magistrates can be as effective at holding statutory agencies or public bodies to account as they can at holding offenders to account

Scotland: training partnerships and training beyond the courtroom

Historically, magistrates have had a marginal role in the dispensing of criminal justice when compared to their English and Welsh counterparts, yet they still oversee around a third of 133

criminal cases in Scotland.

Whilst Scotland has retained some lay involvement in the criminal

court, their sentencing powers have diminished with successive reforms, particularly following the 2016 Justices of the Peace order. Rather than forming a bench of three they sit alone, accompanied by a legal adviser, and oversee minor offences, even compared to magistrates' courts in England. Their sentencing powers reflect this, and are limited to a custodial sentence of up to 60 days or a £2500 fine, though the Scottish Government’s presumption against custodial sentences shorter than six months in length means that their custodial powers are rarely used.

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Justice Directorate (2018) C ​ riminal Proceedings in Scotland 2016-17​, Scottish Government: Edinburgh p.17 85

There are three key lessons when examining Scotland’s lay judiciary. First, despite the diminished sentencing powers of magistrates in Scotland, there is still considerable interest in the role.

Secondly, reforms in Scotland demonstrate the comparative inadequacy of training for magistrates in England and Wales, in terms of regularity, relevance and cohesiveness. Finally, Scotland’s more stringent review process for magistrates goes far beyond the English and Welsh model, and is also woven into ongoing training and professional development.

In Glasgow, JPs are joined on the bench by their legal adviser. In other courts such as Edinburgh and Dumfries, this is not the case. In some sheriffdoms, the role of legal adviser is not distinct from that of a clerk, and they are expected to perform administrative and logistical duties in court as well as dispensing legal advice to the JP. Glasgow has historically been an especially busy sheriffdom, and the separation of court clerk and legal adviser roles reflected this. Similarly, in the same way as London’s historically higher case volume prompted the creation of the position of the stipendiary magistrate (now known as a district judge), in Glasgow, a professional judge known as a summary magistrate also sits in magistrates' courts.

The coming in to force in November 2016 of the Justices of the Peace (Training and Appraisal) (Scotland) Order 2016, which laid out the annual training requirements of JPs, was followed by the publishing of a national training curriculum. The 2016 Statutory Instrument requires that each year, JPs undertake at least 12 hours of training. Of this 12 hours, at least half each year is to be JTAC training; and every three years, at least six hours should be Judicial Institute training.

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The Judicial College, the equivalent body in England and Wales, delivered only 29 courses 135

directly in 2016-17, and only 472 senior magistrates and legal advisers attended.

Initial training and ongoing professional development for JPs in Scotland is the responsibility of each Sheriffdom’s JTAC, or Justices’ Training and Appraisal Committee. This body must develop and deliver an annual programme of training based on the national curriculum, and on other

134 135

Scottish Government (2016) T ​ he Justices of the Peace (Training and Appraisal) (Scotland) Order 2016​, p.2 Judicial College (2017) ​Judicial College Activities Report 2016-2017​, Judicial College: London p.5 86

learning and development activities the JTAC identified. The sheriffdom JTAC is comprised of between five and eight JPs, a sheriff or summary sheriff, and the Sheriffdom Legal Advisor, and must present their prospective annual training programme for approval by a national body, which also provides learning materials for curriculum-stipulated learning objectives and compulsory 136

trainings at the Judicial Institute.

However, it is the JTAC which ensures that training reflects

the needs of magistrates and that local trends in court business are taken into account.

The curriculum published by the Judicial Office for Scotland details a number of fields of knowledge, practical and analytical skills, and values or attitudes that JPs in Scotland are expected to display a full grasp of in the courtroom when appraised, and sheriffdom-level JTACs are expected to structure their training accordingly.

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Strikingly, the sort of ‘community’ knowledge

that is considered a given in England is explicitly listed as a learning objective entitled ‘Community justice arrangements’ and ‘Third party organisations’. Despite – or perhaps because of – their more limited sentencing powers, and the less serious business that appears in their courtrooms, other court users in Scotland still recognised the unique contribution of a lay magistracy. This was in contrast to other English and Welsh court users, many of whom could at times be scathing of magistrates’ training and general standards of courtroom practice. A legal adviser stated that JPS have ‘​got a better handle on what is and isn’t acceptable behaviour. With Sheriffs, there’s no

societal pressure on them, they don’t ask “how do I justify this [to the community]” and are more offender-focused​’.

In the Sheriffdom of Glasgow and Strathkelvin, 18 hours of official training was provided over 2018 by a variety of court users and other statutory and voluntary actors in the criminal justice system. Training session topics included updates on the law and procedure regarding vulnerable witnesses and the use of special measures, delivered by two sheriffs; sheriff briefings on the law around new types of cases being introduced to the JP courts, including benefit fraud, domestic abuse, and S38 aggravations; and sentencing exercises with legal advisers and representatives

136 137

Scottish Government (2016) T ​ he Justices of the Peace (Training and Appraisal) (Scotland) Order 2016​ , p.1 Judicial Institute (2017),​ National Curriculum for Justices of the Peace​, Judiciary of Scotland: Edinburgh.

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from the Scottish Sentencing Council. Training was also delivered by charitable organisations with specialised expertise in the needs of particularly vulnerable victim groups, such as ASSIST, an advocacy group supporting victims of domestic abuse. Training could also be provided by organisations providing alternative sentencing options, such as Turning Point Scotland’s 218 Service, which provides alternatives to custody for women in the criminal justice system, or ISM Psychological Service’s drink-driving rehabilitation scheme.

In Glasgow it was these training sessions that JPs were especially enthusiastic about. A Legal Adviser interviewed in Glasgow said that the JTAC had been ‘​ encouraging them [the JPs] to visit

projects like the 218 project...we suggested they all spend a day there and nearly all of them have taken it up...we had a really good uptake with that​’. One JP in Glasgow said that their visit to the 218 Service proved especially valuable, particularly getting the chance to speak to two women offenders involved in the scheme who had seen their children taken in to care when they had previously been given custodial sentences. The JP was reminded of the considerable powers at her disposal, and felt it ‘important’ that she was frequently reminded that any decision she made that could have a ‘wider impact ... beyond the offender’.

While JPs in Scotland have an obligatory 12 hours of training a year, many in Glasgow said they do more. One described the available training in her Sheriffdom as ‘an enormous menu’, where you can ‘decide what interests you’. There is significant variety in the provision of training: variety in subject and learning objectives, variety of provider, and – crucially, if widening access to the magistracy is something we wish to take seriously – variety in timing. Some trainings were held in the evenings, in courts, and lasted as little as two hours, whereas others, such as an intensive domestic abuse training session, last all day and involve facilitators from Police Scotland, Victim and Witness Support Services, and prosecutors. Some, such as the visit to the 218 service, were repeated throughout the year. Like other parts of the UK, Glasgow runs a mentoring scheme for newly recruited JPs, and all of those JPs interviewed who were part of the most recent intake attested to its value.

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The compulsory training requirement is for all magistrates as part of a programme of continued professional development. As part of their induction, newly recruited JPs participate in four additional training evenings in the courts, as well as a two-day course at the Judicial Institute in Edinburgh. They are also subject to a six-month review, which also involves a catch-up training session, and gives justices the opportunity to discuss with the court legal adviser what they would like to learn more about. This discussion feeds in to future iterations of the training programme.

While compelling offenders to attend such community programmes is beyond the sentencing powers of the JP (though not sheriffs), JPs in Glasgow remarked that ‘we could make a reference’ to them, as ‘we’re supposed to be aware of what goes on in the wider community, and we are aware, so we would be amiss not to flag them in court’. Another JP in Glasgow remarked that ‘the disappointing thing for us [is that ] we don’t have that disposal [ie. social service community disposals] as an option.’ But the fact that JPs in Glasgow were willing to proactively find out more about alternative custody options, had faith in their rehabilitative ability, and were willing to suggest that offenders at least explore some rehabilitative services, even if they could not be compelled to attend.

While the Criminal Justice and Licensing (Scotland) Act (CJLSA) 2010 allows for all courts to order progress reviews for any offenders on a Community Payback Order, JPS can only impose the following elements as part of any order: an offender supervision requirement; a compensation requirement; an unpaid work or other activity requirement; residence requirements; or a 138

conduct requirement.

Only Sheriffs can impose mental health or substance abuse treatment

requirements. Given the importance of both judicial continuity and sentence review in problem-solving justice approaches, it is both appropriate and unsurprising that such approaches 139

have largely been undertaken under the auspices of individual sheriffs.

138 139

Scottish Government (2010) C ​ riminal Justice and Licensing (Scotland) Act 2010​, p.16 Whitehead, S., ( 2017)​ Problem solving courts in Scotland: New Developments​, Centre for Justice Innovation: London and; Eunson, J; Murray, L; McIvor, G; Malloch, M; Graham, H. (2018) ‘Review of the Aberdeen Problem Solving Approach’ S​ cottish Government Crime and Justice Research Findings​, Scottish Government Social Research: Edinburgh, p.10 89

The most important conclusions from reviewing the reforms to the lay magistracy in Scotland are as follows: ● Despite having their sentencing powers diminished, there is still considerable public interest in volunteering for the role of magistrate ● There is a statutory requirement for JPs in Scotland to undertake at least 12 hours of training each year. This training is also provided by a variety of different bodies, and there is a national curriculum outlining discrete learning objectives. ● Training for magistrates can - and should - be delivered not just by their legal adviser, or another court system representative, but by a variety of court users and other statutory and voluntary stakeholders in the criminal justice system. ● Training sessions should be offered at a variety of times. Some training sessions in Scotland for magistrates were held in the evenings, others at weekends, in stark contrast to HMCTS-run training schemes. ● Review processes for new magistrates in Scotland kick in after six months. It involves a catch-up training session where magistrates can shape their future diet of training options according to their interests or aspects of their performance they wish to improve.

Northern Ireland: judicial continuity

Northern Ireland does not have any lay involvement in decision making in criminal courts.

Historically, Justices of the Peace failed to establish themselves as a necessary component of dispensing criminal justice or social control, and the fraught political and religious community relations in the latter half of the twentieth century precluded greater community representation in the criminal courts. In fact, during the troubles, significant efforts were made by the Northern Irish judiciary to recede from public view as much as possible. In Northern Ireland, the tradition of the professionally qualified resident magistrate is a

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long-standing and deep rooted one. magistrates' courts still process a similarly large percentage of all cases as in England, and are responsible for trying offences of a purely summary nature and ‘either way’ offences.140 The minimum qualification for employment is seven years standing as a solicitor or barrister.141 Where lay people do adjudicate in a courtroom, their role is limited in comparison to England and Wales. Where lay people do sit on the bench in family and youth courts, they are accompanied by a professional magistrate. The Department of Justice also requires that the lay magistracy should be broadly representative of the community it serves, in terms of age, gender, community background, ethnic origin and disability.142

Court observation in Belfast was testament to the importance of the broader responsibilities of overseeing court proceedings, such as case allocation and management, holding other court users to account, and communicating clearly and effectively, While judicial continuity is of unquestionable importance for problem-solving justice approaches and holding individual offenders to account, judicial continuity is also important for the more quotidian matters of holding police, prosecution service, defence solicitors and others to account in relation to case scheduling. Much of the morning’s proceedings were dedicated to requests to postpone cases, questions about the production of evidence or witnesses in court, and explanations for missing paperwork. In one example, the Judge admonished the prosecution service for inadequate case preparation when after several appearances in her court they had failed to produce the necessary paperwork, even unconditionally discharging one case after it appeared before her for a sixth time. Regular sittings granted the judge familiarity with cases that were progressing at a glacial rate, with defendants who repeatedly failed to appear for court proceedings, and with representatives from local police and social services, who she knew by name and reputation. In one such case, the Judge sent a repeated no-show to the

​Doran, S and Glenn, R. (2000) L​ ay Involvement in Adjudication​, (TSO: Belfast) p.24 ​Ibid​.

142 ​Judicial Studies Board - Northern Ireland (2017), Lay Magistrates’ Handbook Lord Chief Justice’s Office: London), p.4; 140 141

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substance misuse court, as she felt it was better equipped to deal with that particular defendant.

The most important conclusions from reviewing the reforms to the lay magistracy in Northern Ireland are as follows: ● Effective time management in the criminal court system is not just the result of effective case scheduling: behaviour within the courtroom and during trial proceedings is also essential. ● Judicial continuity means that a judicial figure can better hold other court users to account for lateness or unnecessary delays, be they particular defendants, or stakeholders from other government agencies.

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7.

New Zealand’s new magistracy model

The best policy-making is able to draw inspiration from other places to inform how to reform and modernise public services. This is more difficult in the criminal justice domain because the delivery of services is not just a question of economics, incentives, and models of public administration, and international examples cannot be lifted wholesale from their native legal context and importantly what agents in that system have the licence and authority to do.

However, in recent years some overseas examples of justice innovation have successfully been transplanted from other jurisdictions and developed in the English context, including court-ordered sobriety schemes, problem-solving courts (to a degree), and restorative justice models.

The themes identified in this research - including changing crime and court caseloads, fiscal pressures, and goals to improve justice outcomes and reduce inefficiency - are common across many countries. Moreover those countries that offer the most relevant comparison are common law jurisdictions that share fundamental principles of how courts and the judiciary operate. In one such example - New Zealand - the jurisdiction not only mirrors the constitutional arrangements of the UK, but has a justice system built upon imported British colonial foundations. What makes the magistracy parallel especially valuable is that New Zealand underwent a significant reform to their lay judiciary in the last two decades, but retained many existing features. By modernising the role, the New Zealand government sought to address many of the same issues identified during this research, and their solution - now well established - and that whole experience, provides inspiration for future reforms that might be adopted in England and Wales.

Reforming Magistrates: New Zealand

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Criminal Justice in New Zealand As a parliamentary democracy with a Common Law tradition and independent judiciary, New Zealand is an analogous jurisdiction to the United Kingdom. Their justice system has common roots, and some of the challenges they are confronting are distinct, but relatable.

With a population under 5 million spread across a large and predominantly rural island setting, New Zealand is a comparatively safe country, with below average rates of homicide and violence. According to the United Nations Office on Drugs & Crime, since 2005, the intentional homicide rate has remained below 1.6 per 100,000 people, in line with rates in the United Kingdom and France, below those of Australia and Canada, and roughly a fifth to a quarter the rate of homicide in the United States.143 However, there are concentrated crime problems around youth gangs, trafficking and organised crime groups in some places.

The custodial population in New Zealand is high, at 214 per 100,000 (against an OECD average of 142), and the over-representation of ethnic minorities and Maori in the justice system is stark – making up 51 per cent of the prison population and 41 per cent of convicted adults, despite being only 16 per cent of the total New Zealand population. Following increased penalties and stricter bail rules, the prison population doubled in twenty years (to c.10-11,000 prisoners). However, in the last year, the population has declined. A majority (60 per cent) of New Zealand’s prisoners are reconvicted within two years of release. The country has a national police force, and no independent prosecution function.144

Under the current government, a major nationwide consultation on reforming the criminal justice system to reorientate it towards prevention and victims and away from punishment and prison has been conducted, called ‘Safe and Effective Justice’, though a suite of policies have not yet been set out or implemented.

The Criminal Courts

​UN Office on Drug and Crime’s International Homicide Statistics database ​New Zealand Government (2019), ‘About this work’. Accessed at: https://www.safeandeffectivejustice.govt.nz/about-this-work/ 143 144

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Courts in New Zealand are organised across three tiers, with a High Court and Court of Appeal above the lower-tier district courts. The creation of the district court system followed a Royal Commission in 1980 and grew out of the magistrates' courts system which had remained unreformed since 1893. Stipendiary magistrates remained a feature of the New Zealand system until 1980, before those roles became salaried district court judges. In 2017 the district courts were unified into a single jurisdiction (which hears civil, family and criminal cases).145

All New Zealand magistrates, also known as Justices of the Peace, sit in the district court, alongside district court judges, and in many areas, the amalgamation of the courts went alongside estate consolidation with fewer, larger courthouses over the last two decades.

There are now 58 district courts and hearing centres across the country, and they process approximately 125,000 criminal (non-jury) cases annually. The more serious criminal cases are heard with a jury, but these number around 3,000 cases per year, and the most serious are heard in the High Court. Only defendants charged with a category 3 offence are eligible to elect for jury trial.

Official court statistics show a similar trend as in England, with courts seeing a shift to more serious offence caseloads, with a national 4 per cent decline in new (adult) business coming into the district court in 2017/18 compared to the previous year, but a 3 per cent increase in new business (and an 8 per cent increase year-on-year in active caseload) for serious cases involving a jury trial.146

For mainstream criminal cases, the New Zealand Police are the prosecuting authority, and trained sergeants present the Crown’s case before magistrates (and judges), sometimes supported by outside counsel. As such, magistrates in New Zealand have a closer relationship

145 146

Courts of New Zealand, ‘History of the court system’.

District Court of New Zealand (2018) A ​ nnual Report 2018 95

with the police, and get to know the officers who service their court, and present the prosecution evidence (as opposed to simply offering witness testimony).

The Magistracy New Zealand, along with other parts of the former British Empire, had a criminal justice tradition derived from the English model, where a judicial hierarchy included a tier of magistrates who would hear the majority of criminal cases that were not felonies (indictable crimes). There were similar setups in Australia and Canada with stipendiary (paid) magistrates, but both those countries phased out a volunteer magistracy as part of law reforms in the twentieth century and now have lower-tier courts with salaried judges processing cases.

New Zealand also adopted the English model however they have kept lay JPs alongside a series of wider reforms to the courts which reserved custodial powers to judges. The Justice of the Peace role in New Zealand was and is in most cases, administrative (acting as notaries or official witnesses), however a number of ‘judicial JPs’ had a role in criminal courts. In more recent years, New Zealand has reformed their lower-tier judiciary and reimagined the lay adjudication model to reduce the number of judicial JPs (the closest parallel to the English or Welsh magistrate) and to create a new type of community magistrate.

Today New Zealand has approximately 200 judicial JPs – down from over 700 two decades ago – who are unpaid, untrained volunteers. They hear all minor cases in the district court and have limited sentencing powers – they can impose fines and some driving penalties (such as a licence disqualification), however they cannot sentence to imprisonment (but can remand to custody pending appearance before a judge). Judicial JPs also conduct some preliminary hearings and bail applications and also provide weekend coverage for busier courts in urban areas like Auckland, by being rostered to sit on Saturdays.

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Sentencing powers for magistrates in New Zealand are more restricted than England and Wales, with judicial JPs unable to sentence to imprisonment. Community Magistrates can hear cases with a potential maximum penalty of three months imprisonment, but even in these cases, they refer convicted offenders to the district court for custodial sentencing. In another respect, magistrates have more sentencing discretion, because New Zealand does not have standardised sentencing guidelines for courts. Convictions and sentences can be appealed to district court judges, and this process is quick (unlike in England).

The advent of Community Magistrates In the late 1990s, the proposal for a new breed of magistrate – a ‘Community Magistrate’ – was introduced. The original legislation, and the consultation that led to its adoption, reflected a debate that is very familiar in England. Namely, there was a need to ensure better community involvement and representation in the justice system, and an operational need to relieve pressure on the paid judiciary so their skills and time could be devoted to more serious and complex cases. The Bill was introduced in 1997 and scrutinised by the relevant parliamentary committee, with many stakeholders unconvinced that it was the best way to achieve the stated aims.147

This led to Community Magistrates being trialled in 1999, and without significant political opposition, they became a permanent feature of the judicial system in 2000. They were expanded to Auckland in 2009 and then Christchurch in 2016. An evaluation of the Christchurch scheme is due to be published in 2019.

How Community Magistrates are appointed, trained and remunerated All Community Magistrates re now appointed under sections 11A to 11H of the District Courts Act 1947 (and Part 3 of the District Court Act 2016 from 1 March 2017). This legislation sets out who is eligible, and how community magistrates are governed and remunerated.148 New Zealand Parliamentary Counsel Office (1998) ​Community Magistrates Bill​. New Zealand Government: Wellington.

148 ​District Court of New Zealand (2018) A ​ nnual Report 2018 147

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The selection process for community magistrates is rigorous. In one round, there was around 400 applicants at the beginning of a three week assessment process, and a minority of these were selected for interview. Only 12 applicants passed interview and of these, 8 were ultimately appointed to the role, or a 2 per cent selection and appointment rate.

The recruitment process created a short-list of highly capable prospective community magistrates, who then embarked on a three month training period involving judicial observation, and a concentrated period of two weeks of formal classroom instruction. Once appointed, community magistrates have refresher training, and at least two full days training annually, plus they attend judges conferences for briefing on new laws and practice rules.

Remuneration for Community Magistrates is set at a level that reflects the time commitment they must devote to the role, and the additional responsibility they hold beyond a JP. Like regular JPs, they can claim travel expenses, but their time in court is also paid for, based on a pay rate determined by legislation. Pay rates for Community Magistrates are capped per sitting day, and were uprated in 2017. They now equal $57 per hour, and no more than $455 per day, in addition to travel expenses.149 In comparison the minimum hourly wage by law in New Zealand in 2019 is $17.70.

A Community Magistrate sitting for the full 8 hours per sitting and 2 days per week on average, for 40 weeks per year (accounting for court vacations and other absences) would be entitled to $36,400 per annum, plus travel expenses. This makes the remuneration of the Community Magistrate role above-average pay for a part time position. As a result, the pay arrangement attracts more applicants who are able to consider a part time role alongside care-giver and other obligations, but could not do so if it were entirely unpaid like a traditional voluntary JP position. It also provides the courts more flexibility, as Community Magistrates can be rostered to sit on Saturdays, public holidays and outside of traditional

New Zealand Parliamentary Counsel Office (1998) ​Community Magistrates (Remuneration and Allowances) Order 1998​, New Zealand Government: Wellington 149

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court hours, for example before 10am and after 4pm, if that is required to clear that day’s list.

How Community Magistrates work Like District Judges in England, they sit alone, but have support from judicial clerks. They are recruited, trained and rostered by the Chief District Court Judge (unlike JPs), and they sit frequently – at least 10 sitting days per month, or 2-3 days per week on average.

As Community magistrates sit alone, they are expected to handle cases efficiently – processing up to 65 cases per sitting day (capped at this level, but in practice often fewer than 50), and sit until 6pm if required to hear all cases. Community magistrates have the power to postpone sentencing, or stay proceedings, to allow a defendant to undertake rehabilitative measures and demonstrate engagement.

At present, there are 18 community magistrates currently serving in 9 areas across New Zealand, but concentrated in the busier list courts in the urban areas.

Several Community Magistrates were reappointed in 2018 for a further two-year term, and in September and October 2018, six new Community Magistrates were appointed for the first time, indicating an ongoing political commitment to the model under the current Labour Government and the Justice Minister Andrew Little.150 According to the Ministry of Justice, in 2016/17, Community Magistrates dealt with approximately 9.5 per cent of criminal cases that would otherwise have had to be dealt with by a District Court Judge.

Where new pilots of community magistrates have started, they have been justified as a way of speeding up the system, and freeing up full-time district court judges for more serious cases.

In 2016, new community magistrates were appointed in Christchurch to handle category 2 cases, while conventional JPs went on hearing category 1 cases and bail applications.

Category 1 offences are those punishable with a maximum penalty of a fine or a

150

​New Zealand Gazette​, ‘Magistrates Appointed’. 2 October 2019.

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community-based sentence. Category 2 offences are punishable by a term of imprisonment of less than two years. Southern Region Executive Judge, Judge Paul Kellar, commented: “​ A

key aim in the introduction of Community Magistrates to the Christchurch District Court is to reduce the amount of time people have to wait for their cases to be heard…. Their appointment will also mean that District Court judges have more time to deal with the more serious cases.”151

The remunerated position has attracted a different type of applicant. Given the small numbers, it is not possible to conclude that on its own, it has delivered a step-change in diversity, or a more representative judicial cohort. However, the scheme continues to be defended by the New Zealand government on the grounds that it has attracted a diverse range of people, and provides a valuable resource to support a more efficient justice system than could be delivered by JPs alone.

Furthermore, an evaluation of the Community Magistrate pilot in 2000 found that: •

the representation of women and Maori in the judiciary had increased;

•

it was unclear whether Community Magistrates relieved workload pressure in the

pilot courts; •

the use of Community Magistrates had allowed District Court Judges to focus on

dealing with the more serious criminal cases.

Judges were able to hear and dispose of more complex matters in less time in the pilot courts. Community Magistrates also consistently disposed of cases at an earlier stage compared with courts that did not have Community Magistrates.

Role

151

Judicial Justices of the Peace (JP)

Community Magistrate (CM)

​New Zealand Law Society (2016) ‘Community Magistrates join Christchurch District Court’.

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Established

1840s

1998

200-250 active (2019)

18 (2019)

Adequate education standard;

Relevant qualifications and

Genuine desire to serve the

experience;

community;

Personal integrity, impartiality

Respected as persons of good

and good judgement;

sense, character and integrity

Effective communication skills;

Number

Qualifications

Connection to the community; Awareness of diversity Exclusions

Criminal Record Checks;

Criminal Record Checks;

Bankruptcy;

Bankruptcy;

Practising Lawyers;

Practising Lawyers

Selection

JPs are able to serve upon

Assessment centre;

process

completion of all required

Interviewed by the Secretary of

training;

Justice (civil servant), the Chief Community Magistrate, the Chief District Court Judge, and the President of the New Zealand Law Society

Appointment

All JPs are nominated by

Direct application and

Members of Parliament and

post-selection, appointed by the

appointed by the

Governor-General on the

Governor-General on the

advice of the Minister of Justice

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recommendation of the Minister of Justice Training

Training run by the Royal

Training approved by the Chief

Federation of Justice of the

District Court Judge and

Peace Associations

formerly carried out by the Institute of Judicial Studies

Remuneration

Frequency

Unremunerated – travel

Remunerated up to $455 per

expenses only

sitting day, plus travel expenses

Infrequent sittings, few times a

Weekly (1-3 days per week

month on average

when court in session)

Source: Ministry of Justice, New Zealand

The most important conclusions from reviewing the New Zealand reforms are as follows:

● There is a distinctive and valuable role that sits between the larger pool of unpaid, lay magistrates, and the full-time, professional judiciary, where a new tier of lay adjudicator might sit; ● Introducing a paid magistracy model can be done while also maintaining the majority of JPs as unpaid volunteers, and a hybrid model finds a suitable role for each category; ● Representation can be improved if you create a role that is more appealing to some people and as it is remunerated, it is easier for under-represented groups to consider devoting their time to;

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● A separate tier of paid magistrates is an asset that can be invested in with more training and judicial support, to supplement the extra experience they derive from sitting much more regularly; ● Upskilling this much smaller tier of magistrates through more sustained training and court experience allows for them to be granted wider sentencing powers; ● A magistracy organised around two tiers creates a more flexible pool of resource to deploy as caseloads shift over time and to help manage courtroom demand; ● Creating a paid tier of magistrates who sit regularly provides JPs who wish to commit more time, with a route to progress in the role, and helps to capture and develop the skills and experience already in the magistracy; ● A magistracy that sits frequently (80-100 or more days a year) changes what that judicial role can achieve - making the case review role and problem-solving dimension much more attainable than it is with existing JPs.

There are also disadvantages to the New Zealand model. These include the over-reliance on a single Community Magistrate who is more experienced in the role given their sitting schedule, but who remains nonetheless legally unqualified (though many current CMs have a legal background). There is also an upfront cost to the CM system which involves generous part-time pay rates, in addition to the travel expenses that ordinary JPs can also claim.

However, in cost terms they remain significantly cheaper than salaried District Court judges.

The New Zealand model vests more authority in a single Community Magistrate, without the deliberative justice element of a bench of two or three magistrates, which is the major drawback to the English and Welsh system of District Judges, albeit with DJs, this is balanced by their training and legal competency.

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8.

A remodelled magistracy for the twenty-first century

Magistrate courts were once the first ‘port of call’ in the criminal justice system. This is no longer the case. Street-level diversions, out-of-court disposals, and a shrinking court estate mean that magistrates and courts have partially receded from view. Instead, as the physical infrastructure has retreated from many county towns and suburban districts, so too have magistrates. This need not be the case. A vision for the future of the magistracy could choose to place magistrates back at the heart of a community’s response to criminal and anti-social behaviour, if the role could be reimagined.

It is not in the long-term interests of the justice system to run down the asset such that only the current population of JPs are retained, and allowed to leave of their own accord or age out.

One strength of the magistracy is its ability to be representative, but without new recruits, the current cohort will only become more unrepresentative in the next five years than it already is.

If there is no strategic ambition (or ‘business case’ need) for a larger magistracy, and if rates of retention and churn do not change, then the current population needs to be refreshed. This can be achieved in two separate but complimentary ways – first, introducing fixed tenure for all current and future magistrates, requiring them to reapply for the role every 3 years (but not limiting how many times they can reapply for the role); and secondly, by creating a new tier of paid part-time magistrates designed to be better trained, with broader powers, justified by being more representative and more efficient.

Refreshing the ranks A big barrier to attracting new talent into the ranks of the magistracy is the limited openings that arise for new recruitment. If the reduction in demand for JPs continues to justify such limited recruitment, it will be very challenging to achieve a significant improvement in the representativeness of the magistracy overall, or to address the current demographic imbalance in the age and class profile.

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A system of tenure should be introduced to require all serving magistrates to reapply for the position after a fixed period, which would generate more openings through natural, unforced retirements. It would not be appropriate to curtail the service that magistrates provide by limiting how long they can serve for, but a tenured appointment for a period of 3-5 years, (subject to consultation), and renewable, would introduce a decision-point that would need proactive commitment from JPs to go on sitting. By itself, the tenure requirement would help catalyse more JPs to retire earlier and to create more openings for new recruits, assuming other factors remain equal.

A two-tier magistracy model

To ensure its continued survival, to increase its effectiveness in formal court proceedings, and to extend the range of resolution mechanisms and disposals it currently oversees, a reimagined magistracy should see it retained, but bifurcated into two separate but complementary tiers: community magistrates and neighbourhood magistrates.

The first tier of community magistrates would be professionalised, drawing on the experience of reforms to lay adjudication in New Zealand. ​ ​This tier would take on greater responsibility in case listings, diversion to specialised courtrooms, and would remain in the physical courtroom

and under the partial direction of HMCTS. As a new model it would also be recruited, selected and trained centrally, with the involvement of the full-time judiciary. Drawing on the example of New Zealand, current magistrates would not be ‘grandfathered’ into this role, but would instead be able, should they wish, to apply for what would be a more time-consuming position, though it would be one that is properly remunerated.

By professionalising and formalising the role, but retaining the ‘lay’ condition that these people would be of a diverse background, and respected in their community, but would not be lawyers nor require substantial legal training, community magistrates have the potential to be more representative of the population at large. Paying magistrates for the first time would

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fundamentally alter the proposition as a part-time civic commitment, and should dramatically widen the pool of potential applicants.

If we accept that many magistrates currently feel disempowered and neglected, does creating a two-tier system risk entrenching those feelings? Perhaps. But this was not the case in Scotland, where a reduction in the formal powers of magistrates and justices of the peace did not result in a corresponding reduction in interest in the role. Over half of magistrates surveyed in 2018 as part of the Magistrates’ Association poll identified ‘making a difference/giving something back to the local community’ as the primary driver for them deciding to become a magistrate, and this potential configuration of the role still presents such an opportunity.

New expectations and new roles

One possible way to improving the courtroom experience for defendants, and so enhancing the perceived legitimacy of any resulting court order, is increasing the use of community prosecution strategies such as problem-solving justice, specialised courts, and restorative 152 ​

justice.

magistrates' courts as currently constituted are poorly equipped to achieve problem

solving goals. This is not for lack of competence on the part of magistrates but because attempts to implement more problem-solving approaches have been done centrally, resulting in the expansion of responsibilities in the absence of the necessary training for the bench and 153

other members of the court team.

Both tiers would be encouraged to review community orders by enacting Section 178 of the Criminal Justice Act 2003. This would allow sentencers to attach a requirement for review by a judicial office holder to a community order. Doing so would ensure that community sentences are more effective through judicial monitoring, whilst also allowing magistrates to learn more about available community options, thus increasing confidence in community options. The

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Bowen, P. ​Building Trust: how our courts can improve the criminal court experience for Black, Asian and Minority Ethnic defendants​, Centre for Justice Innovation: London​, p.25 ​Donoghue, J.(2014)​ Transforming Criminal Justice: Problem Solving Courts and Court Specialisation​, p.136 106

more substantial nature of this role would necessitate making all aspects of magistrate recruitment and training more transparent and more rigorous.

Testimony from magistrates who had been involved in problem-solving pilots and the wider theoretical literature on problem solving justice point to the importance of judicial continuity in problem-solving approaches. One magistrate stated it would be ‘utterly impossible’ for scheduling or rota purposes to get magistrates to carry out ongoing offender reviews. Both nationally and internationally, there has been increased recognition of the value of sentencer supervision by a judicial figure, particularly with regards to sentence compliance and offender recidivism. The importance of sentencer supervision and judicial continuity has been noted both by academics and by practitioner themselves, particularly when dealing effectively with offenders with entrenched drug and substance abuse problems. Previous attempts to incorporate a problem-solving justice approach in the lower tier courts in the UK have stumbled on the voluntary, part-time nature of the magistrates’ role. This is not to say that individual magistrates could not be enthusiastic about the approach, or could not even champion the cause of problem-solving justice, but simply that the challenges of of case listing and scheduling magistrates to ensure judicial continuity are considerable, even within specialised courts with smaller cohorts of offenders, and would increase exponentially were that cohort to grow.

Community Magistrates for England and Wales

Drawing on the example of New Zealand, community magistrates would have a substantially more rigorous application, selection and training process. By making this tier of magistrates a part-time, fully remunerated position, the role would attract people from a wider range of backgrounds than the current volunteer model. If Community Magistrates were to sit on average 10 days per month, and were remunerated at a similar rate to New Zealand (capped at £200 per day), this would cost £24,000 annually per position, excluding overhead costs or what is returned to the Treasury through tax or National Insurance contributions. Though not all Community Magistrates would sit this frequently, the expectation would be that most would,

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and they would be rostered accordingly. Such a position would equate to an annual pro rata salary of £52,000, and would make it a very attractive position, such that it could undoubtedly attract a large number of well qualified applicants. An illustrative parallel can be drawn between community magistrates and Parole Panel Board members, who are paid lay figures, but we entrust them to make decisions of the greatest significance at a similarly critical moment in an offender’s life. It is inconsistent and unjustified to pay those lay figures who make release decisions, but not those who make the decision to incarcerate in the first place.

By professionalising this upper tier, it might overcome some of the criticisms that have been levelled at the magistracy about their lack of representativeness, and shortcomings in terms of their court-room competency. Traditional barriers to entry and increased responsibility in the magistracy have revolved around the fact that the role entails a significant commitment of time during the working week, and hence forgoing other income. By making the job financially rewarding, we hope to attract a wider, more representative segment of society, though one that is no less well suited for the particular demands of being a magistrate.

Attracting a large number of applicants was an important strength of the New Zealand model, and the success of any pilot would similarly be predicated on garnering a substantial number of applications. The experience in New Zealand suggests the level of interest will be high. From this pool of applicants, a similarly exhaustive sifting process would be necessary - best administered by the Ministry of Justice with judicial input, rather than through traditional HMCTS recruitment processes. Additionally, the views and opinions of local people could be incorporated into the recruitment process by forming community panels to advise on the appointment of Community Magistrates. This triage would ensure that this new judicial tier would be motivated, efficient, and capable of taking on the more demanding expectations of the community magistrate role. For example, in New Zealand, there is a three-week assessment centre for sifting applicants and the same should apply in any English model.

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This smaller cohort of magistrates would also allow more effective targeting of scarce resources allocated for training, and they would also sit much more regularly than magistrates do currently. In contrast to sitting for a day or two a month, paid Community Magistrates would be expected to sit for a day or two every week. In doing so, community magistrates would become more adept at case allocation and triage, and would be able to ensure that cases that could be effectively addressed outside of a courtroom actually are. With more complex, time-consuming cases, community magistrates sitting regularly would be better placed to hold other court users – police, prosecution, and probation – to account for any delays or failures to produce evidence in a timely fashion. Furthermore, their consistent presence in the courtroom would also allow for the provision of ongoing judicial monitoring and the identification and oversight of certain offenders who would benefit from problem-solving judicial approaches.

Drug and alcohol courts and other problem-solving approaches hinge on the ability of those sentencing to periodically review offenders’ progress, and if community magistrates are encouraged to take ownership of their sentences in this way, a proliferation of locally inspired problem-solving judicial approaches is possible.

The lack of frequency and the churn at a local level made the problem-solving court pilots - envisaged and designed by the MoJ in 2015 though never implemented - an impractical proposition for JPs, even though the working group acknowledged that the problem-solving philosophy had great potential among the types of offenders that magistrates typically see. A Community Magistrate sitting for one or two days every week the court was in session would be present enough of the time to be able to adopt this innovative approach for the first time in a magistrates' court setting.

Piloting Community Magistrates

The recent experience of probation reforms with Transforming Rehabilitation and the failure of Community Rehabilitation Companies is a reminder of why ‘big bang’ implementation is rarely a good approach. However, along with avoiding top-down imposition, it is almost as

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important to make sure that new policies are also piloted properly when done at a smaller scale, because poor pilot design can undermine the case for wider adoption in future.

The problem-solving court pilot with the North Liverpool Community Justice Centre (NLCJC) is a warning: any pilot of Community Magistrates should have local ownership and funding, evaluation built in from the outset, and local political support. The experience of the NLCJC - which did not have the former, and only had the latter by the time central government had already concluded that it no longer wanted to support the model - is a lesson in how not to pilot justice innovation if system transformation is the goal.

Greater Manchester offers fertile ground to trial a Community Magistrate model akin to New Zealand’s. In Manchester, it is the Mayor who has the PCC responsibility for policing and crime, and so would be able to better align court and sentencing practice with local service provision. A Memorandum of Understanding agreed with the Ministry of Justice in 2016 commits to further devolution of criminal justice responsibilities to the elected Mayor and the Greater Manchester Combined Authority, later strengthened by the signing of a second memorandum of understanding in May 2019 on the question of justice devolution.

In Manchester, there are currently 850 magistrates, covering five courthouses: Bolton, Manchester, Stockport, Tameside and Wigan. Assuming that 85 community magistrates sitting for ten full days each month, or two and a half days per week, would be able to handle an equivalent caseload to that currently being processed by volunteer magistrates, a pilot cohort of 42 remunerated community magistrates would be able to handle approximately half of the current magistrate court caseload.

Following an initial pilot in Manchester, and to inform ongoing evaluation, the MoJ should invite other Police & Crime Commissioners to bid to pilot Community Magistrates in their area. Rather than a top-down, centrally-funded pilot, these should involve local resources and collaboration, to explore how the model should work and adapt it in response to lessons

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learned. The lessons from the MOPAC sobriety pilot in London (2013-17) require any Community Magistrate pilot to involve the local judiciary from an early stage.

Rather than a radical restructuring of the magistracy, the introduction of Community Magistrates would be an evolution of the role to create a new position where more of the strengths that underpin the lay magistracy can be realised. A two-tier magistracy would not be without challenges, but the model could be expanded slowly and adapted to meet local needs. If successful, the pilot of Community Magistrates should expand, with at least a small group of CMs in every court area. A Community Magistrate would eventually be, in effect, a paid bench chair, and able to exercise wider powers than just JPs as a bench currently have. However as part of any pilot, the viability of Community Magistrates sitting alone should be evaluated, rather than made integral to the reform.

In New Zealand, two decades after legislation was passed to create the role, Community Magistrates still make up less than 10 per cent of the magistracy cohort, however their schedule means they absorb a disproportionate amount of the JP caseload. Over a five year period, a steady roll-out of the Community Magistrate model might necessitate fewer magistrates overall, and it would logically increase to become a larger contingent than the c.400 District Judges who currently serve, however they would remain the smaller part of the wider magistracy family. There would still be an ongoing need for many thousands of traditional magistrates, whose role should be reimagined to become ‘Neighbourhood Magistrates’, and refreshed accordingly.

Neighbourhood Magistrates

To respect the historic origins and strength of the magistracy as a link to local communities in an age when that can no longer be realised through their role in a local courthouse, a new

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agenda for the majority of magistrates is needed that restores their local connection and gives them a wider, more community-focused and engaged role.

We propose that the second tier would comprise ‘neighbourhood magistrates’. These would be liberated from HMCTS and also from the traditional courtroom. They would remain volunteers, and would continue to serve as wingers in magistrate court proceedings, but would take on a wider range of duties where their key strengths would be of considerable value. Their governance should be localised, with the necessary recruitment and training role being undertaken by local offices of Police and Crime Commissioners.

Devolving the budget and commissioning responsibility for neighbourhood magistrates to PCCs provides the greatest opportunity for magistrates to involve themselves in a wide range of judicial activities beyond the courtroom, and better bridge the gap between community services and custody which currently makes effective resettlement so rare. The role of neighbourhood magistrates should be to keep communities safe, to prevent crime and deliver justice, and work in partnership with other agencies to achieve these aims.

By assuming responsibility for the recruitment and training of neighbourhood magistrates, PCCs would be able to achieve a number of outcomes: ● Protection of frontline policing and court resources: by enabling greater use of judicially-sanctioned diversion and other out-of-court mediation or arbitration mechanisms. ● Enhance early protection and prevention: by making magistrates accountable for the rehabilitative effectiveness of the sentences they pass. ● Adopt multi-agency approaches and respond better to complex needs: by encouraging neighbourhood magistrates to be better acquainted with local support services, and allowing neighbourhood magistrates to hold these same service providers to account when attempting to deal with complex needs.

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● Put victims first: by involving neighbourhood magistrates in efforts to incorporate aspects of restitution, community mediation and restorative justice, such as facilitating victim awareness sessions to ensure a strong victim focus.

Some may baulk at the prospect of JPs falling under the responsibility of Police and Crime Commissioners. But we believe that as well as providing magistrates with a better connection to local services, community concerns and crime trends, PCCs could rekindle the independence of the magistracy from an overbearing bureaucratic centre. Malcolm Richardson, former chairman of the Magistrates Association, stated that ‘any form of independence or executive power by magistrates of magistrates and their courts was delivered its death sentence by the creation of HMCS, the demise of Justices’ Clerks as independent office holders, and the integration of the magistracy into the ‘judicial family’. By taking on a more prominent role in out-of-court adjudications, neighbourhood magistrates would be freed from the physical and bureaucratic manacles of HMCTS, while also reasserting their fundamentally different role from other members of the ‘judicial family’.

Wider responsibilities

The substantial growth in the use pre-trial diversion has been a source of some concern for criminal justice professionals owing to their inconsistent use and piecemeal and erratic implementation.

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Handling many offences out of court is entirely apt, but there is a role for

magistrates in providing some level of oversight. There are a variety of alternative dispute resolution mechanisms that neighbourhood magistrates could be involved in beyond the courtroom. By taking a more visible role in dispute resolution outside of court, the magistracy will ensure that it continues to play a visible role in the delivery of justice even as traditional court infrastructure recedes from view. Furthermore, by involving themselves in a wider range of activities – many of which may fall outside of traditional court opening hours – many of the barriers to wider participation in the magistracy, particularly for young people who may have work commitments, would also diminish. Some of these are explored in more detail below.

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CJJI Exercising Discretion: the gateway to justice (2011), p4 113

Community sentence oversight:​ Given their core strengths, magistrates would be well-suited to assuming a greater role in overseeing the effective delivery of community-based sentences, holding both the probation service provider and offender to account to ensure the best possible outcome is reached. To do this effectively, they would require in-depth knowledge of the offender, of available community sentencing options, and of other relevant social services to address vulnerabilities such as substance abuse or a lack of work-ready skills.

As well as improving outcomes for the rehabilitative components of community sentences, a more present and involved neighbourhood magistracy rooted in the local community, dispensing justice from locations other than a courtroom could also improve punitive outcomes. Compulsory work components could be linked by neighbourhood magistrates to the very community that the offender’s behaviour impacted. Rather than, say, picking litter or working in a charity shop far away from where the offence may have been committed, an offender could work restoring a local community garden in the village where they had vandalised a bus shelter. For justice to be done, it must be seen to be done, and such a highly visible, highly localised display would do much to restore wider public faith in the value of community sentencing and remind them that they are by no means a ‘soft’ option.

Breach hearings:​ As a result of the 2014 Offender Management Act, there is now a more onerous supervisory role for the criminal justice system in supervising lower tier offenders on release from custody, yet the current recall system for breaches was described as an ‘inflexible barrier to sustained progress under supervision’.

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In April 2018, there were 5,999 licence

recalls, an 11 per cent increase compared with the same period in 2017. The most common reason for offenders being recalled in the same period was non-compliance, with 71 per cent of recalls listing non-compliance as one of the reasons for recall.

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Magistrates could help the

recall system become more nuanced, proportionate and graduated by helping to establish if further sanctions by the criminal justice system – including recall, if necessary – are necessary or appropriate where breaches occur. Drug use, alcohol, and residency failures are also 155 156

Criminal Justice Alliance, ​Strengthening probation, building confidence, ​September 2018, p.2 MoJ, Offender Management Statistics Bulletin Quarterly, England and Wales, Apri to June 2018. p.9 114

statistically significant reasons for recalling ex-offenders. A reinvigorated magistracy, with better understanding of local service provision, empowered to intervene in recall decisions, would be well placed to intervene in cases where the breach is for similar reasons that drove an offender’s index offence, and more effectively address that problematic behaviour in the community, rather than in custody. Judicial monitoring for those on licence could potentially cut both ways: The Justice Inspectorate’s review of probation in May 2015 identified a lack of feedback to probation service providers from court staff about court decisions, and a failure on the part of CRC officers to make sufficient effort to re-engage the individual and encourage them to continue engagement in a third of cases as two significant problems.

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Better

connections between local magistrates and probation service providers would allow magistrates to confront both of these issues by ensuring effective communication of sentencing decisions to probation providers.

Oversight of police-led diversion: ​Neighbourhood magistrates could also take on a more substantial role in eliding the work of the court and law enforcement systems, namely the

police. The increased use of police-led diversion led the Probation Inspectorate in 2011 to voice concerns about the quality of decision making, variations in practice, and the types of offences being dealt with in this way. They found that in one-third of cases sampled, the disposal selected did not meet the standards set out in existing guidelines.158 Similar concerns have been subsequently voiced by many others. More than two years ago, one PCC warned of the ‘clear dangers from the emergence of two separate local justice systems, one court-based and the other diversionary’, where diversion lacks any overarching structure, and is ‘little more than police and local agency recognition of the vulnerability of particular categories of 159

offenders’.

Integrating magistrates more formally and fully into the scrutiny and supervision

of police-led diversion would ensure consistency and alleviate potential friction or territorial disputes between the court system and advocates for diversion. PCCs already have a statutory 157

158 159

HM Inspectorate of Probation (2016) ​Transforming Rehabilitation, Early Implementation Five​, Her Majesty’s Inspectorate of Probation, p.20 ​Home Affairs Committee (2014), ​Out-of-Court Disposals: Fourteenth Report of Session 2014-15​, HC 799, p.5 Baird, Vera (2016), Northumbria Police and Crime Commissioner’s response to the House of Commons Justice Committee’s inquiry 115

duty to engage with criminal justice agencies, as well as responsibility for police, community safety and victim services, and so are well placed to better integrate these actors to oversee non-court disposals, with neighbourhood magistrates at the centre of such efforts.

At present, the involvement of the magistracy in scrutinising the use of out of court disposals is minimal, and their powers to effect change is minimal. Scrutiny is entirely retrospective, and does not involve magistrates ‘endorsing, rescinding, or otherwise changing individual out of court disposals in any way’. Instead, magistrates are only called upon to offer ‘generalised feedback’ to police forces, after reflecting on a selection of anonymised cases with other criminal justice system practitioners, including representatives from probation, the Crown Prosecution Service, and Youth Offending teams.

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The scrutiny panels are bodies set up and

administered by police forces, and there is considerable variety in the role of magistrates across each force. For example, seven police forces in England and Wales have only one magistrate involved in scrutinising out of court disposals (OOCDs), whereas Cheshire has 16 over four different panels.

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The precise composition of scrutiny panels varies from force area to force

area, with some made entirely of magistrates and others, like Thames Valley Police Scrutiny Panel, taking a multi-agency approach involving police evidential review officers, Youth Offending Team members, police custody staff, and magistrates.

This somewhat toothless approach is justified on the grounds of maintaining the impartiality of the judiciary, but a more rigorous supervisory regime of out of court disposals by community magistrates is arguably necessary: the police, as members of the executive, should not have 162

responsibility for processes of accountability and oversight.

There are also notable concerns

about the proper use by police of out of court disposals. The Justice Inspectorate’s review of police crime recording practices audited a selection of out of court disposals. Over a fifth of

160

161

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Gross, Lord Justice (2013), ‘Guidance for Magistrates involved in the scrutiny of out of court disposals’ Judicial Office: London FOI Act request. The police areas with only one magistrate involved in scrutiny panels are: Bedfordshire, Cleveland, Durham, Dyfed, Hertfordshire, Norfolk, and Suffolk.

N Padfield, R. Morgan, and M Maguire, ‘Out of court, out of sight? Criminal sanctions and non-judicial decision making’ in ​The Oxford Handbook of Criminology, p.9 ​ 55 116

offenders who should have a received a more severe sanction for their crimes did not, and that a third of offenders did not have the implications of accepting the punishment explained to 163

them.

Review panels have emerged nationally on an ad-hoc basis, just as the use of out of 164

court disposals themselves have.

Given the significant consequences that can arise from even

a simple caution, there is an urgent and obvious need for traditional magistrate skills: effective communication, common sense judgement, and the ability to mediate different agencies and individuals with divergent opinions and objectives.

Enhanced oversight by magistrates could serve two functions. First, randomised case reviews of out of court disposals by magistrates could be used to identify broader trends and issues in their use, and also help propagate standard approaches amongst police forces to ensure greater national consistency. Secondly, magistrates could also assume a regulatory or review role for specific cases: at present, the only review mechanism available is a complaint to the Independent Office for Police Conduct, the particular police force that issues the disposal, or for the individual to initiate judicial review proceedings. However, these routes are costly and high risk, and of limited accessibility.

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An expanded role for magistrates could help overcome

these hurdles, and mean a more consistent approach.

Neighbourhood justice panels​: Originally set up in Chard and Ilminster in Somerset in 2005 following the closure of the local courthouse, neighbourhood justice panels were a means of working within local communities using restorative justice approaches to address problem behaviour and low level offending, while also seeking to repair the social and personal harm caused. They involve the victim, perpetrator and any wider community interest in agreeing the details of a restorative justice outcome, and typically deal with non-criminal activity like anti-social behaviour and neighbour disputes. Many of the behaviours tackled in NJPs involve young people involved in anti-social behaviour, and the hope was that early, semi-formal 163

164

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HMIC (2014) ​Crime-recording: making the victim count. The final report of an inspection of crime data integrity in police forces in England and Wales​ HMIC: London Donoghue, J (2014). ‘Reforming the role of the magistrates: implications for summary justice in England’, ​The Modern Law Review​, Volume: 77, Issue: 6, pp.928 - 963 p.950 Ibid,​ p​ .949 117

interventions could prevent these behaviours escalating over time. NJPS are also typically faster than the formal criminal justice system, with a typical offence to punishment timeline of two or three weeks, compared to five months. Resolutions included unpaid work; an apology; repairing damaged public property; financial reparation; and support provision.

An MoJ process evaluation of NJPs published in 2014 found that ‘the recruitment, training and retention of high-calibre volunteers was felt to underpin successful NJP delivery...by NJP coordinators, referral agencies and strategic staff’.

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Many of the skills and motivations

required for an effective NJP volunteer are strikingly similar to those possessed by magistrates: a desire to ‘give something back’ to the community; commitment to the volunteer role; listening skills; patience; confidence; and empathy. The involvement of magistrates in NJPs would be an ideal forum for them to deploy these skills, and would grant an important oversight function to ensure the process is an appropriate disposal in the first place, and fair when it is used.

Licensing decisions​: Many of the proposed responsibilities thus far are relatively new innovations in the criminal justice system. This one is not. The long and storied history of the lay magistracy offers as much inspiration as the insights of behavioural psychology or innovations in policing tactics. The 2003 Licensing Act, when implemented in 2005, significantly overhauled the conditions under which alcohol is sold in the UK. As well as removing statutory restrictions on opening hours, and introduced ‘licensing objectives’ and ‘responsible authorities’ as key components of the new regime, the act also gave responsibility for licensing decision-making to local councils, where it had previously fallen under the purview of local magistrates.

As far back as the 1904 Licensing Act, magistrates were empowered to reduce pub numbers in their local area with legal force, albeit with the intensely disputed caveat that licensees be compensated for their loss of earnings. The socially deleterious effects of alcohol are 166

Turley, C; Kerr, J; Kenny, T; Simpson, I; Keeble, J (2014) ‘Process evaluation of the Neighbourhood justice panels’ ​Ministry of Justice Analytical Series. M ​ inistry of Justice: London, p.12 118

undisputed, as are the links to violence and other forms of anti-social behaviour.

Neighbourhood magistrates should reassume responsibility for licensing decisions: whether to issue warnings, provide support, review licenses, attach new conditions or even revoke licenses entirely. Local authorities also have a financial disincentive against closures in the form of business rates, whereas magistrates do not.

Furthermore, given their involvement in a host of other criminal justice forums, magistrates would be aware of precisely which venues or vendors of alcohol are proving worrisome. As one British licensing lawyer stated, licensing decisions exist in a ‘unique and interesting [legal] apparatus...Government can take high-level policy approaches: licensing boards by their nature and the legal system within which they operate must consider the fine detail and the local 167

issues’.

If a licensing decision is disputed, it is is resolved in the local magistrates' court, and

the 2003 act also provides powers for a magistrates' court in a particular area to make an order requiring premises at or near a place of disorder, or expected disorder, to be closed for a 168

period not exceeding 24 hours.

So magistrates – or magistrates' courts - already function as

the punitive backstop and appeal mechanism for alcohol licensing. Furthermore, the 2011 Police Reform and Social Responsibility Act introduced the power for government to localise fees. But this was never implemented. Licensing fees could be localised to the level of neighbourhood magistrates, rather than councils.

A new hybrid model

As crime has changed, and case volumes in magistrates' courts have declined, there is both the need and the opportunity to develop a new magistracy model that compliments the traditional one. By 2025, the lowest tier of judicial adjudication should have evolved to become a hybrid model, where District Judges and Community Magistrates sit in courts, and have broadly similar powers to sentence offenders, while a larger pool of unpaid JPs (or Neighbourhood

167 168

McGowan, S (2015) ‘Licensing: Public Health Evidence and Causality’, ​Stephen McGowan’s Licensing Blawg ​Hansard: HC Debate (2004) Vol 418 cc842 – 3W. 119

Magistrates) handle more minor cases, and sit in both courts and in new community settings outside of traditional courtrooms.

If Community Magistrates can attain a better degree of representation, they will have proven their worth and strengthened the argument for lay participation in our justice system. And by being better trained, and by being paid and sitting frequently, they should become a more reliable and competent judicial actor. This should justify Community Magistrates being entrusted with wider responsibilities, including retaining their custodial sentencing powers, potentially having these extended (but not doing the same for JPs), and being empowered to take a problem-solving approach by being granted new powers to review offenders’ progress on orders, in addition to recovering some older duties, including licensing decisions, to enable them to contribute to the wider mission of improving community safety.

District Judge

Community Magistrate

Neighbourhood Magistrate

Professional status

Full-time

Part-time

Infrequent volunteer

Location

Traditional court

Traditional court

Court and community-based

Remuneration

Salaried member of the judiciary

Paid at capped daily rate plus travel expenses

Unpaid: travel expenses only

Role in court

Unchanged

Equivalent to District Equivalent to winger Judge / Bench Chair

Offences dealt with

Full gamut of cases appearing in Magistrates’ Court

‘Either way’ offences; more serious or complex magistrate court offences

Sanctions available

Custodial sentences; Custodial sentences suspended sentences; (up to 12 months);

Non-criminal behaviour; early intervention; judicial review of offenders’ summary-only offences Community orders; fines; restorative

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fines; community orders

suspended sentences; justice sentencing fines; community options; deferred orders prosecution (where available)

Review sentences?

Yes

Yes

No

Judicial monitoring

Yes

Yes

No

Scheduling responsibilities

Yes

No

No

Role in licensing decisions

No

Yes

No

A two-tiered magistracy, alongside the established system of District Judges, would together provide the wider courts system with more flexibility and operational resilience if the advent of Community Magistrates was rolled out nationwide. In the response to the August Riots in 2011, it was sitting magistrates and District Judges who provided an immediate and sustained boost to court capacity to try and sentence defendants much more quickly than normal.

As a paid resource, it would be more feasible to draw on Community Magistrates to sit for longer when required - as happens in New Zealand - to avoid cases being adjourned or not being heard on the day. There might also be merit in using Community Magistrates on weekends in busier metropolitan areas where overnight detentions from Friday and Saturday nights otherwise create a caseload backlog for magistrates and agencies on Mondays.

magistrates' courts sitting on Sundays in Kent was proposed by the Police & Crime Commissioner in 2015 and ran as a pilot in Medway for 8 weeks in 2016.169 It cost more for lawyers and court staff to work unsocial hours but demonstrated some appetite to use the magistracy in a flexible way to relieve wider pressure on the court system. If a standing resource of Community Magistrates could be deployed in this way, it would deliver swifter justice and indirectly benefit witnesses and victims.

169

​Legal Aid Agency (2016), K ​ ent Sunday Court Pilot: Operation Guidance​ Ministry of Justice: London 121

New Accountability Mechanisms

A persistent complaint about magistrates is that they are less accountable for their performance and conduct than salaried judges. This observation is fair but it flows from the nature of the court system and the appeals procedure. One of the reasons why scrutiny of magistrates is difficult is because their courtroom behaviour is not recorded. Unlike all Crown Court cases where transcripts capture what the judge and counsel say, there is no record of proceedings in magistrates' courts - only the verdict and the sentencing outcome. This further compounds the problem of inadequate data collection at a local level and makes it difficult to hold JPs accountable.

In response to shifting societal norms that expose many authority figures in many professions to a closer degree of scrutiny, it is unremarkable that new initiatives are emerging aimed at making judges more accountable. This is a challenge to established judicial practice. The conventional view, that underpins the Common Law tradition itself - is that judges, save for rare cases of misconduct, or blatant bias during a trial - are held to account solely through the process of appeals, where their own rulings, and the reasoning behind them, can be challenged by other courts, and overturned. This provision is an established feature of the magistrates' court, but the process is a slow, legal safety net, designed to correct miscarriages of justice. It is not an accountability mechanism for magistrates.

Any person can appeal their conviction or sentence by a magistrate, provided they do so within 21 days. However the hearing in Crown Court to consider the appeal follows months later - with a commitment to notify the appellant within 80 days when their hearing will take place (which could be weeks after that). And the outcome does not have consequences for the original magistrate. Given the lack of feedback that JPs receive, it is not even assured that the same magistrate will be aware that his or her decision on a case they heard earlier that month was subsequently - several months later - overturned or amended on appeal.

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And aside from case-specific criminal appeals, there is also no mechanism in the English and Welsh criminal justice system - other than formal conduct complaints - for the public, and those in the system (as either parties to a case, or as agents) to give feedback on how magistrates have performed. The inadequacy of this mechanism has been well documented.170 And yet it is central to the legitimacy of the magistrate that they have a direct link with the community, and to some degree represent them, and it should therefore be highly relevant what members of that community think of them. As accepted throughout the judiciary, there is much more to being an effective judge than having a record of having a low number of your cases appealed successfully. The way judges conduct themselves in court, their communication skills, their empathy and insight, and their treatment of witnesses, victims and jurors are all part of a rounded assessment of good judicial conduct.

Judges are held to a high standard and have their behaviour recorded in open court, but even then, the views of many important participants are not captured or used as any kind of assessment of the judge’s overall abilities. And for magistrates, as lay volunteers, even though they are under less scrutiny, arguably more prone to procedural or legal mistakes, and operating with less training, the current system offers no means by which their general performance in the wider sense can be gauged. In any group of 14,312 individuals performing the same role, standards of behaviour will vary widely. Given the limited training now invested in the magistracy, the means for self-improvement, and the ability for the magistracy as a cohort to level up, by identifying and sharing good practice and mentoring new JPs to attain the highest standard is simply not there. All that exists is legal advisors in court who act as a check on the magistrate’s performance when it comes to applying the law and taking proper account of the sentencing guidelines. This leaves the question of what distinguishes someone as a good or bad magistrate to be answered largely in a subjective and anecdotal way.

The judicial tradition in the United States developed down a different, democratic path, with certain judges across various jurisdictions, standing for election. This model is not politically Gibbs, P (2018), ‘Bad apples or sign of systemic problems? The rudeness of judges’, Transform Justice: online blogpost.

170

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viable in England and no major political party has ever recommended it. Nonetheless, even if voting itself is not under consideration, the ability of the public to rate or ‘score’ the judicial performance of those who take such critical decisions over the life and liberty of individuals in a given community is one that now exists in parts of the United States.

Rather than merely ensuring that magistrates meet a minimal level of competency, review proceedings should be continuous, and should feed into the future training priorities of magistrates. Input into the review of magistrates should be broadened to include court staff, lawyers, victims, and even defendants, so magistrates are made aware of ways in which they communicate need improvement. This style of 360-degree review is common in other public sector roles, such as NHS doctors seeking feedback from colleagues and patients, and is also used in other legal systems. One possible model is the Colorado Office of Judicial Performance Evaluation, which combines court observation and self-evaluation with survey results garnered from a wide range of court users. Judges are assessed on skills such as case management, application and knowledge of the law, communication skills, demeanour, bias and diligence.

Colorado Commission on Judicial Performance

In 1966, Colorado voters passed a constitutional amendment that abolished partisan elections for state court judges and established a new merit selection system for the nomination, appointment and retention of state court judges. Commissions on Judicial Performance were created in 1988 by the Colorado Assembly for the purposes of providing voters with fair, responsible and constructive evaluations of judges and justices seeking retention. The results of the commission can also help the same judges and justices to improve their professional skills as judicial officers. The commission does not investigate complaints against a judge, and there is a separate body for judicial disciplinary matters: the commission is only concerned with judicial performance.

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The Commission prepares a narrative that includes the recommendation to voters on the retention of a given judge. To evaluate the overall performance of a judge, commissions are required to use the following information: ● Information from observing the judge in the courtroom ● Information furnished by the judge in a self-evaluation ● Review of individual judge statistics ● Results from surveys sent to persons who have had sufficient experience with a judge: lawyers, jurors, litigants, law enforcement personnel, court employees, probation employees, social services staff, victims of crime, and other judges and justices.

There are two different surveys used to evaluate Colorado judges. One is for the legal professionals who have appeared before or been affected by a particular judge, and the other is for the non-legally trained court users who have appeared before or been affected by a judge. However, both assess judges across a common set of measures, including ‘demeanour’, ‘fairness’, their ability to communicate effectively, diligence, application of the law, case management, and survey users are also given open-ended prompts. Completed surveys are anonymised and compiled into a composite report that is supplied to the commission. Survey results and completed narratives for those judges standing for retention are published online at: ​http://www.coloradojudicialperformance.gov/review.cfm

A 2008 survey of Colorado judges and their opinions of the Judicial Performance Evaluation (JPE) programme found that most judges felt that the programme had been beneficial to their professional development. Over 85 per cent of trial judges and 50 per cent of appellate judges said that the programme had been either ‘significantly beneficial’ or ‘somewhat beneficial’ to their professional development.171

​Institute for the Advancement of the American Legal System (2008) T ​ he Bench speaks on judicial performance evaluation: a survey of colorado judges​. IAALS: University of Denver, p.1 171

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One of the implications arising from remaking the magistracy is how to make the institution more accountable, especially when it might be entrusted with wider responsibilities, and also cost taxpayers more by having a new part-time but paid tier. It is a challenge to justify hard metrics of accountability for a civic volunteer that is giving up their time for free and sits infrequently, but for Community Magistrates as we propose, who are paid by taxpayers and who sit in court regularly, the case for subjecting them to some form of performance assessment is stronger. Particularly in an era when the justice system at a courtroom level is not well covered by local media in the vast majority of cases, and especially because Community Magistrates would still not be legally qualified, and would be presiding over more important and serious cases, and in courts where no transcript or audio record existed.

Based on models like that used in Colorado, the Ministry of Justice should devise a mechanism for individual magistrates, beginning with Community Magistrates if they are piloted, to have their general performance evaluated by the public, legal professionals, and court users, and the results published. This assessment should be a mix of objective factors and subjective evaluation informed by the views of all participants who volunteer their feedback, including defendants and agency staff, and delivered in such a way as to protect anonymity, and to demonstrate which magistrates are meeting the required standard. Those JPs that are subject themselves to such a process and who demonstrate positive feedback and good performance, would have a powerful new justification for why they are both representative of the community, and accountable to it, in a way that salaried judges are not.

When practicable, the ongoing performance of all magistrates should be scrutinised, but instead of relying solely on a closed complaints and conduct process, the accountability should flow from a new system of court user feedback and online ratings that are published and linked to individual JPs. A carefully selected range of scores and feedback should be collated and published which can be used as a proxy to inform the public about how Community Magistrates are performing. Respecting privacy and the interests of justice, and ensuring steps are taken to avoid malicious attempts to game or distort the results, it should still be possible to allow feedback that captures the views of a diverse range of court users including witnesses, police, 126

CPS and other agencies, defendants, and victims of crime. How Community Magistrates perform in the eyes of those who rely on them to be fair, efficient, effective and neutral, is a powerful determinant of whether or not such a model can gain support, and ultimately be extended.

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9. Conclusion & Recommendations

This research has examined the current state of the magistracy in England, and considered the arguments that support lay adjudication, as well as exploring best practice and some possible comparative models. In doing so, we have sought to provide a fair assessment of strengths and weaknesses, and identified the gaps in knowledge that need addressing by policy-makers. Based on what we know, and the evidence considered during this project, our conclusion is clear: there is a future for the lay magistracy but not in its current formation. Given the scale of change within the justice system and the courts themselves, combined with the accelerating pace of technological and societal change outside, the future of the magistracy cannot be assured unless there is investment, reform, and innovation to properly capture the strengths of this judicial tradition that have been lost or eroded.

It is important to acknowledge the impact of decisions taken to date, and of how the world has changed around them, which has made the work of JPs more difficult, and the voluntary commitment more onerous. However it is also equally important that magistrates themselves acknowledge where their strengths lay, the reasons for past decisions, and the changes that are unlikely to be revisited by any future government. What is needed now is a focus on the future and the magistracy’s place within that, and a clear commitment from government to engage magistrates fully in that discussion through a properly conducted consultation, leading to a national strategy.

Today’s magistrates are generous and civic-minded people who are volunteering to fulfil a role that has real societal value. Without their efforts and their dedication, the court system could not function and victims would be denied justice. That does not mean that as an institution, the magistracy can survive simply by being shown more respect, and nor does it mean it is a role that does not need to be reimagined. This report concludes that magistrates need better training and other powers to discharge that role effectively. And in some areas, it argues that

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there may be a better way to achieve the principles of a lay magistracy, and the goals that justice demands, by creating a new type of magistrate. But what cannot continue is the benign neglect of 14,312 judicial office holders who disposed of over 1.5 million court cases in 2017.

That is too big a footprint on a vital public service to be politically neglected any longer.

Main recommendations

It is necessary for the Government to reinvest in magistrates – but not to reinflate their numbers, and not to recruit in the conventional way. Additional funds are needed for training, and in parts of the country, extra funding to plug gaps to ensure benches sit with a full complement. However the most important investment the government can make is in reform – by creating and piloting a new tier of paid part-time magistrates who sit more frequently, and are more representative of the community. Around this flagship reform can be built a whole modernisation agenda for revitalising the wider magistracy and remaking their role in the justice system - including introducing new accountability mechanisms, wider-ranging problem-solving and review powers, greater transparency, and a more localised model of recruitment and governance involving PCCs. Those steps would form the basis of an important new strategy for the magistracy that is now desperately needed, and long overdue.

The following 14 policy proposals across five themes comprise the main recommendations of this report:

The magistracy must be recognised and retained as an institution, but reformed.

The civic commitment, dedication and personal investment of magistrates should be recognised formally by the government and by PCCs.​ ​Allowing the magistracy to be reduced to a rump by limited, erratic recruitment and natural attrition, whilst simultaneously doing nothing to invest in it to make it more professional and competent, or to make it more representative, is not a sustainable position now, or for the long-term. That is a probable forecast unless action is taken. What that action should amount to in policy terms is up for discussion, but the

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definition of the problem should not be in dispute. We have shown how replacing the magistracy by expanding the number of salaried full-time District Judges is both impractical and unaffordable, but it is also unwarranted. What is needed is a reform agenda to create a new type of magistracy better suited to the modern world. As crime has changed, and case volumes in magistrates' courts have declined, there is now both the need and the opportunity to develop a strategy for the future, and for a new magistracy model that compliments the traditional one. As Penelope Gibbs has argued, such a review was promised in 2013 and never materialised, and cannot be left to the senior judiciary to wrestle with internally when and if they are so minded to do so.172 The magistracy needs and deserves the focused attention of civil servants to devise a strategy that is informed by meaningful public consultation.

1. A comprehensive strategy to secure the future of the magistracy is now needed​. The Government must acknowledge both the issues affecting the magistracy as the system is reformed around them, and the pressing need to have a policy and plan in place for the future. Only Ministers can set out a strategy for the future of the magistracy and the Ministry of Justice should undertake a public consultation to inform this work in 2019 and seek input from the judiciary, criminal justice stakeholders, and other departments. The strategy must define the role that we need magistrates to play in the modern justice system and the steps needed to deliver against those objectives. It should clearly delineate the role of the magistrate both in and outside of court, and where new community-based adjudication roles for JPs might be developed. It should be clear on how new magistrates will be recruited, trained and governed in future, and the limits of the role of the magistracy as a volunteer workforce in a professionalised justice system that is becoming more automated, less local and more centralised. Such a strategy cannot command support unless it involves systematic engagement with serving magistrates, justice agencies, and elected Police & Crime Commissioners.

2. HMCTS must ensure JP numbers are adequate to meet demand and to have capacity to handle caseloads with full benches, and to avoid delays. ​The decline

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​Gibbs, P (2019), ‘The future of the magistracy - who should take control?’, Transform Justice: online blogpost 130

of the magistracy is real, but it is not a numbers game. The number of magistrates has been in long-term decline for more than a decade, and may continue to decline even further. However their health and viability as a civic institution is not and should not be determined by the metric of whether there are more JPs in post to hear cases in 2025 than there are now. Two aspects of the numbers question do represent a more fundamental problem - bench coverage and sitting capacity. For the first, it is incumbent on HMCTS to ensure that projections of future demand are accurate and that magistrates' courts almost always have full complements of three JPs comprising a bench. Occasions when magistrates must sit as a bench of two are undesirable and should be a rare exception - they risk disadvantaging the defendant, and are inimical to the principle that the magistracy ought to exemplify: deliberative justice by one’s peers.

Data on panel composition should also be collected so it can be monitored and shortfalls in JP numbers are not reliant on anecdotal feedback via judicial networks. The second issue is related, insofar as any shortfall in available JPs can lead to case adjournments and delayed justice in a system that is experiencing an increase in delays.

Whatever role is envisaged for the magistracy in the criminal justice system in future, and even in a scenario where other players absorbed a greater share of the court workload (be they District Judges, or new Community Magistrates), the roster of available JPs should always be maintained at a level that does not impede swift justice.

Areas of the country that currently have a shortfall of JPs are likely to be suffering from undue delays and on-the-day adjournments. Recruitment should always ensure case volumes can be handled efficiently.

The government must answer the known unknowns and commit to gathering more and better data about the magistracy, to share with the wider judicial family.

As part of an exercise to develop a comprehensive strategy for the magistracy, the Ministry of Justice and Her Majesty’s Courts & Tribunals Service must invest in new data requirements for the courts system to capture meaningful information that is currently missing.

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3. The MoJ must invest resources in new national data collection methodology about the magistracy and how they behave. ​This initiative must clearly

disaggregate the sentencing and case timeliness data collected about magistrates' courts, so the activity of District Judges can finally be separated from that of JPs sitting in the same court. Richer data should enable the MoJ to do deeper analysis of sentencing practice and to begin to evaluate the financial and operational impact of judiciary decision-making, as a precursor to sharing this information with magistrates and judges so they can understand how their own sentencing practice relates to that of their peers.

Special attention should be paid to creating a richer picture of the socio-economic background of magistrates and applicants for the JP role, and also the imperative to properly capture the performance of magistrates in respect of sentencing and remand.

4. Transparency moves initiated by the MoJ in 2016 should be revived and expanded so court data and information on the magistracy is routinely published.​ The Ministry of Justice should revive the Crown Court Information Tool173 which was first published in 2016, and expand the platform to capture more data, as well as including relevant data for the magistracy, localised and (where necessary) anonymised. The ambition of the Ministry of Justice in 2015-16 to lead the way with open data and the work of the Data, Evidence and Science Board should be recaptured with a new commitment to make public all available data on the magistracy on the grounds that this cohort of volunteers is a community asset that serves the interests of justice in the name of local people, and as a rule, information about them should therefore be shared with the public.

5. The judiciary, HMCTS and the Magistrates’ Association should collaborate to build a more detailed picture of who magistrates are, how they work, and what they think about their role. ​The recruitment process should track a wide

range of social markers, like education level, professional background, or even council tax band to help to address long-standing questions of balance, and accusations of middle class bias in the magistracy. Furthermore, the Ministry of Justice should conduct

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Available at: ​https://www.judiciary.uk/crown-court-information/ 132

an annual attitude survey of magistrates that is weighted and robust, to better understand their attitude towards caseload, courtroom and justice policy matters. The Crown Court Sentencing Survey is a model that should be considered for a representative sample of magistrates to get a better understanding of what drives their sentencing behaviour. More data should also be published at a local level on neighbourhood magistrates, so people know who is delivering justice on their behalf.

Magistrates should also be supplied with more data about the relative effectiveness of the probation options available in their local area.

Invest in the current asset and address shortcomings around recruitment, training and competency. ​A reform agenda should also be accompanied by steps to strengthen the

current ranks of the magistracy, with a focus on addressing the legitimate concerns around the level and quality of training, as well as how to improve recruitment, and upskill those who are selected to serve.

6. Magistrates have a role in the MoJ’s devolution agenda and instead of more centralisation, reforms should go with the grain of criminal justice devolution - starting with localising the recruitment of magistrates to PCCs. ​Finding the right mix of people to serve as magistrates is a challenge everywhere, and existing

recruitment structures are archaic and ineffective. Recruitment of magistrates should be owned locally, not nationally, but it should be opened up to closer scrutiny and be given a fresh impetus to help publicise the role and to connect the opportunity of being a JP with the pool of talent locally. Responsibility for promoting the magistracy, public education about their role, and recruitment of new applicants should be devolved to PCCs who are democratically accountable, and who have the clearest interest in ensuring that the justice system locally serves the public, reflects their priorities and meets the needs of a community. PCCs already perform this function for Independent Custody Visitors - another important voluntary position in the justice system. To aid policy-makers to monitor trends, and to ensure PCCs were recruiting a diverse range of qualified applicants, devolved powers should be accompanied by mandatory data

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collection that also requires PCC to publish more information. This should at least include data on the current make-up of the magistracy, the age, ethnicity, gender, class and their length of service.

7. Invest more in training magistrates to build competency and credibility.

Following from the example of New Zealand outlined in the earlier case study, as well as models of training in Scotland and current training practices in England and Wales, better training would involve pre-commencement components, as well as ongoing professional development. Pre-commencement training would be compulsory, exhaustive, and provided by a number of different stakeholders within the criminal justice system, but facilitated by HMCTS. A period of court observation would also be compulsory. The current model of recruitment states that aspiring magistrates in England and Wales must attend at least three court sessions before applying, but this is insufficient. To get a sense of the full gamut of challenges and cases that they may face, community magistrates should be tasked with court observation for at least three months, as in New Zealand, before they commence their role. This can be combined with compulsory in-court training delivered by legal advisers, or even District Judges, as is the case in Scotland.

8. Reinvigorate outreach, selection and training processes for all tiers of the magistracy. ​The selection of magistrates - particularly new Community Magistrates - should focus on more than just the six core competencies of the current system. The ability of candidates to communicate effectively and confidently is of particular importance. Outreach efforts should also reach beyond the traditional channels. When PCCs assume responsibility for the selection of Community Magistrates, it is critical that the system is well-publicised and - crucially - responsive. Opening and closing dates of application processes should be well-publicised, recruitment decisions should be made quickly, and feedback given to unsuccessful candidates should be timely and constructive.

Evolve towards a hybrid community justice model that is more nimble, more diverse, with a more professional magistracy. ​The commitment and personal

contribution of today’s serving magistrates should be recognised formally by the government 134

and PCCs. However it is not in the long-term interests of the justice system to run down the asset such that only the current population of JPs are retained, and allowed to leave of their own accord or age out. One unique strength of the magistracy is its ability to be representative, but without substantial numbers of new recruits, the current cohort will only become even more unrepresentative than it already is. If the Government conclude that there is no strategic ambition (or ‘business case’ need) for a larger magistracy, and if rates of retention and churn do not change, then the current population needs to be refreshed. This can be achieved in two separate but complimentary ways – first, introducing fixed tenure for all current and future magistrates; and secondly, by creating a new tier of paid part-time magistrates - Community Magistrates - inspired by the New Zealand reforms, who are recruited differently, receive more training, and eventually granted broader powers, justified by being more representative, better trained and more efficient.

9. Introduce tenure for magistrates, so that they must reapply every three years, to avoid stagnation and to create opportunities for regular recruitment of more first-time JPs. ​As numbers reduce, the only way to improve

the representativeness of the cohort is to encourage more churn, creating opportunities for sitting magistrates to leave before the age of retirement, with a standard process for re-applying to the role once a fixed term has been completed, and therefore opening up new positions to recruit applicants for the first time. There should be no limit on the time that magistrates can serve, but tenure creates a natural decision-point for currently serving JPs and could also help with retaining the more committed members who are able to sit more frequently.

10. Introduce a pilot of a new tier of paid, part-time magistrates, recruited for their abilities, diverse life experience and representativeness. ​As an evolution

of the magistracy model, rather than a radical departure from it, Community Magistrates offer many potential benefits for the wider justice system. However the right approach is to do a time-limited pilot, with clear objectives and success factors, rather than a rushed, national implementation. Greater Manchester offers fertile ground to trial a

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Community Magistrate model akin to New Zealand’s, and a pilot there should be co-designed by the Ministry of Justice and the elected Mayor, as a development of the justice devolution agenda in a new arena.

Grant the magistracy a wider role in community safety and some extended powers, combined with a new accountability agenda​. The current role of traditional JPs in the criminal justice system has retrenched too far. In order to become a fulfilling role, and to reverse the trend to curtail their authority, any comprehensive strategy should develop areas where magistrates can play an enhanced role, or even repatriate to JPs some of the powers they historically exercised.

11. Liberate community magistrates to problem-solve with greater discretion to supervise sentences, conduct progress reviews, and apply novel disposals like electronic monitoring. ​Community magistrates should be enabled to be

problem-solvers not case processors and wherever possible, free to utilise sentencing options (and technology) that can make disposals more effective and improve rehabilitation, for example, through sobriety orders using transdermal tagging and routine case review. The cohort most suited to adopt this role would be the new tier of paid community magistrates who sit frequently in the same court.

12. Reallocate the alcohol licensing function from local authorities back to magistrates. ​As alcohol continues to be a major driver of volume crime and a

significant contributing factor in street violence and domestic abuse, there is a strong case for reasserting the public safety and crime control emphasis that was diluted when the licensing function was given to local authorities. Magistrates are well placed to judge the suitability of an area for new or revised licences for on and off-trade sales of alcohol, and the likely impact on public disorder and violence. This adjudication would simply recover the role JPs traditionally exercised, and widens the appeal role they continue to play when licence-holders dispute closure orders. Cash-strapped local authorities employ licensing departments that could either service the court directly, or be

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transferred to PCC offices who would then prepare cases for a JP hearing. PCCs already administer the alcohol levy imposed by councils.

13. Permit magistrates to embed themselves in the wider criminal justice ecosystem.​ Grant permission for magistrates to meet with and visit those agencies and projects that directly relate to their own sentencing decisions so magistrates can stay abreast of local changes in provision, and the reality of custodial and community sentences in their area. Forums that involve multiple agencies agreeing approaches to crime prevention locally should be open to magistrates as observers, and individual JPs should feel licenced to engage personally with anyone working to administer justice in a community setting. Unlike judges, magistrates should not be constrained or insulated.

14. Develop a new tool to allow court users to provide anonymous feedback on magistracy performance akin to the Colorado example, as a way of developing a new agenda of judicial accountability. ​Such a scheme would allow

all court users to provide anonymous online feedback on judicial performance which is then published. This could serve as a key metric for public confidence in magistrates, buttressing their legitimacy in the process, and also offering another feedback mechanism for magistrates to improve and to demonstrate the value of their work. The MoJ should incorporate a trial of a similar accountability tool as part of the pilot of Community Magistrates and if successful, expand it to cover all sitting magistrates.

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Glossary of key terms Circuit Judge:​ A judge who sits in the Crown Court, county courts, and certain specialised divisions of the High Court of Justice, such as the technology and construction division. They sit below High Court judges but above district judges.

Community Rehabilitation Company:​ a term given to a private sector supplier of probation and rehabilitation services for offenders in England and Wales.

District Judge​: a judge authorised to hear criminal cases, youth cases and some civil proceedings in magistrates’ courts. They are employed on a full-time basis.

Either-way offence:​ an offence that could be tried in either a magistrates’ or Crown Court.

Indictable-only offence:​ a criminal offence that can be tried only on indictment (trial by jury) in the Crown Court.

Judicial Appointments Commission: ​an independent commission that selects candidates

for judicial positions in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland and Northern Ireland Judicial College:​ - The Judicial College is the organisation responsible for training judges in training judges in county, the Crown, and higher courts in England and Wales and tribunals judges in England & Wales, Scotland and Northern Ireland. This includes the training of lay magistrates and the chairmen and members of tribunals.

Judicial Conduct Investigations Office (JCIO)​ - The JCIO is an independent statutory office in England whose remit is to investigate allegations of judicial misconduct, including magistrate misconduct.

Lord Chancellor: ​a member of the cabinet, the Lord Chancellor is responsible for the smooth functioning and independence of the courts.

Magistracy:​ a collective term for magistrates.

Problem-solving justice:​ where the court seeks to go beyond processing cases and tries to solve the problems that bring people to court.

Procedural justice:​ an emphasis on the transparency and fairness of the process by which decisions are made, as opposed to an emphasis on the outcome of a decision.

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Recorder:​ the first step on the judicial ladder to appointment on the circuit bench. They may sit in both Crown and County Courts, but most start in the Crown Court.

Rehabilitation Activity Requirement (RAR):​ first introduced in 2014 under the Offender Rehabilitation Act, the RAR was intended to give providers of probation services greater flexibility to decide on the best ways to rehabilitate individuals. The court can decide to include a RAR as part of a community order or a suspended sentence.

Single Justice Procedure:​ where some minor offences that typically would be uncontested by the defendant can be decided by a single magistrate on the basis of the papers alone, without the defendant attending court.

Summary offence:​ a criminal offence that can be tried (summarily) in the magistrates’ court.

Transdermal tag:​ an electronic device that is capable of monitoring the wearer’s levels of alcohol consumption Transforming Rehabilitation:​ a series of reforms to the provision of services for offenders in the community. Major aspects of the reform programme included the splitting of community services between a single public-sector National Probation Service and a set of private-sector Commercial Rehabilitation Companies on the basis of 21 geographical areas. Mandatory and increased supervision of offenders on release from prison was also introduced.

Youth Offending Team:​ Youth offending teams work with young people that get into trouble with the law. This includes helping young people and their families in court and supervising young people serving a community sentence.

Youth Rehabilitation Order:​ this is a community sentence that can include one or more of 18 different requirements that the offender must comply with for up to three years. Some examples of the requirements that can be imposed are a curfew, supervision, unpaid work, electronic monitoring, drug treatment, mental health treatment and education requirements.

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Appendix II: Analysis of Magistrate Court sentencing data

Evaluating the performance of magistrates, individually or as a group, is not an exercise that lends itself to quantitative analysis. Despite the hurdles in forming any statistical picture of how magistrates perform in court, analysis of Ministry of Justice data relating to the lower-tier courts is possible, and it does reveal some surprising insights about Magistrate Court sentencing outcomes.

For this project, a decade of sentencing data stretching from January 2007 until December 2017, or over 13 million magistrate court cases, was analysed to see what had changed about sentencing practices in magistrates' courts. An initial examination of the offence data revealed that while there were historical trends in sentencing practice, there were also trends in who was turning up to be sentenced, both in terms of offender profile (their age and gender) as well as offence type. So to understand if there had been a change in sentencing behaviour, we had to control for these changes using a predicted rate, which made the assumption that there had been no change in sentencing behaviour. This was done using a logistic regression model, which predicted the probability of receiving a particular sentence based on various factors including age, gender, type of offence, and ethnicity.

Sentencing trends in the magistrates' court

First, our analysis demonstrated that the overall custody rate for magistrates' courts is low (especially for women), but that there has been a relatively large increase of the custody rate in magistrates' courts since 2015.

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There is also significant variance in the use of custody nationally. For example, Derbyshire magistrate courts have always been prone to above-average use of custody, and their use increases in line with the national trend. But Northumbria has never seen such a change, and Lincolnshire remains very liberal by comparison.

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When we look at trends in the use of other sentence options available to magistrates, like community orders, there is an overall national trend for their decline. The differences in custodial rates between neighbouring regions of England have significant cost consequences.

Taking the neighbouring regions of Derbyshire and Leicestershire as a point of comparison; in the third quarter of 2017, sentencing behaviour in Derbyshire magistrate courts meant that 129

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more people were given custodial sentences than the expected rate of sentencing would have predicted. In Leicestershire, there were only 11 more people receiving custodial sentences than expected. Although we do not know how much longer the 129 ‘extra’ individuals in Derbyshire served, the cost of imprisoning them over the subsequent quarter is substantial.

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The total overall resource expenditure per prisoner in England in 2017 was £35,371.174 Even if the mean custodial sentence for these Derbyshire offenders were only 3 months (6 weeks served in prison), the approximate cost of incarcerating the additional prisoners from Derbyshire over the next quarter would have been approximately £525,000, equivalent to 15 prison places annually, over and above the demand arising from the magistrates' courts in neighbouring Leicestershire.

Implications of this analysis

It is not remarkable that sentencing practice in magistrates' courts varies. However, this analysis does attempt to isolate the one driver that is often used to explain sentencing divergence; the types of cases being heard. Over a long enough period with a large enough set of data points this analysis is able to control for this to some degree. The result shows that trends vary over time, but also that similar areas do not seem to follow the same trends in all cases, suggesting sentencer behaviour is a decisive factor, not the case mix.

More detailed analysis would drill down into actual courtroom outcomes such as conviction rates or the sentences applied, analysed according to sitting benches. If such data was available, it would then be possible to evaluate and cost the sentencing behaviour of JPs versus District Judges sitting in the same court or at least the same area. As an exercise in better understanding the drivers of the prison population, the sentencing practice of magistrates is not as important as that of Crown Court judges passing longer terms for indictable offences, but it would demonstrate the variability in behaviour that more than a decade of Sentencing Guidelines has not managed to iron out. This inconsistency is not fundamentally a weakness, and it is not an argument for less discretion for sentencers, but this type of analysis does help paint a richer picture of how courts handle cases and where demand in the wider criminal justice system comes from.

​Ministry of Justice Information Release (2018), ​Costs per place and costs per prisoner by individual prison; HM Prisons and Probation Service Annual Report and Accounts 2017-2018 Management Information Addendum​, Ministry of Justice: London​.

174

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Another benefit of such an exercise would be to provide better information to local judges so that their own behaviour could be influenced by understanding how their sentencing practice varies from national, regional and local norms. Magistrates in Derbyshire do not know that they use custody significantly more than fellow JPs in Leicestershire, and it would probably be of great interest to them if they did. They might have both good cause, and no undue concern about the finding itself, but it would benefit the wider public and policy debate if such information was systematically gathered and the results made public. This data exercise is an indication of what such an initiative might reveal.

There is a common narrative that magistrates are overly punitive, or erratic in their sentencing habits, and do not use community sentences enough. However, even though JP behaviour cannot be disaggregated from that of DJs in the same court, the overall analysis reveals that it is in the Crown Court where the sharpest deviations from the expected rates of sentencing occur.

When we compare expected and actual sentence rates by offence type, we see that the proportion of offenders receiving community sentences for indictable-only crimes declines sharply, though as this change occurs there is little divergence between the actual and expected rate, meaning that this change is the result of changes in who is appearing in court, rather than sentencing behaviour.

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However, there is a persistent and erratic divergence between expected and actual rates of custodial sentencing for indictable-only offences in the same time period.

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We can also see that there have been particularly sharp increases around specific offence types, namely possession of weapons and theft, as shown in the charts below. The first chart compares the actual and expected proportion of custodial sentences for possession of an article with a blade or point in the Magistrates and Crown courts.

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This chart compares the actual and expected proportion of custodial sentences for actual bodily harm between the Magistrates and Crown Court.

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This chart compares the actual and expected proportion of custodial sentences for burglary between the Magistrates and Crown Court.

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What this analysis shows is while there have been sharp increases around specific offence types, namely possession of a bladed article and theft, the sharpest deviations from the historically expected custody rate for knife crime is not in the magistrates' courts, but in the Crown Court.

The Crown Court was actually sentencing less punitively than expected prior to 2013, but since then it has been imposing custodial sentences at a greater than expected rate. This is particularly true after 2015. This is broadly in line with when these offences started to increase according to national police recorded crime figures (after a period when they fell after 2010).

An examination of other high harm offences in the two courts in the same time period follows this general trend: a correction to the expected rate followed by an above-expected rate increase after 2015. However, the increases in custodial sentencing after 2015 in the Crown Court is less dramatic for burglary and ABH as it is for knife possession.

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Appendix II: Qualitative field research locations

1. Camberwell Magistrates’ Court 2. Bromley Magistrates’ Court 3. Westminster Magistrates’ Court 4. Highbury Magistrates’ Court 5. Hull Magistrates’ Court 6. Nottingham Magistrates’ Court 7. Carlisle Magistrates’ Court 8. Dumfries Sheriff Court and Justice of the Peace Court 9. Glasgow Sheriff Court and Justice of the Peace Court 10. Edinburgh Sheriff Court and Justice of the Peace Court 11. Laganside Courts - Belfast

Court visits entailed a combination of courtroom observation alongside Interviews with court staff, magistrates, and lawyers. Serving and retired magistrates from across the country were also interviewed. Our tentative research findings and initial policy proposals were also tested in a focus group with several currently serving magistrates from across the country.

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Appendix III: Biographies

Gregor Donaldson Gregor joined The Project for Modern Democracy in July 2017 after working for the Parole Board, in journalism in Cambodia, and for a humanitarian relief organisation in Nigeria’s Borno State. He graduated from the University of Edinburgh before undertaking graduate study in Political Thought and Intellectual History at the University of Cambridge. In 2015-2016 he was a Fox International Fellow at Yale University.

Blair Gibbs Blair is a public policy consultant who was the senior policy adviser to the Secretary of State and Lord Chancellor at the Ministry of Justice until the end of 2016 and before that served as Principal Adviser on policing to the Mayor of London (2012-15). He was an adviser to VolteFace, an independent expert adviser to the Centre for Justice Innovation and the Behavioural Insights Team and a Research Director at The Project for Modern Democracy until August 2019. He joined the No.10 Policy Unit as a Special Advisor for Justice and Home Affairs in August 2019.

The Rt Hon Nick Herbert CBE MP Nick is the Chairman of The Project for Modern Democracy and the Member of Parliament for Arundel & South Downs. He was Minister of State for Policing and Criminal Justice, working in the Home Office and the Ministry of Justice, from 2010–2012. He championed the introduction of street-level crime mapping, swifter justice, and the replacement of police authorities with elected Police and Crime Commissioners.

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