2Role of the magistracy within the criminal justice system
The modernisation of the magistrates’ courts
7.The past decade has seen increasing centralisation of the organising structure of magistrates’ courts, motivated by a desire to increase efficiency and improve consistency across the country. The administration of local courts was formerly conducted by Magistrates’ Courts Committees, largely run by magistrates themselves.12 In 2005, these committees were abolished and their responsibilities assumed by a new Executive Agency of the Ministry of Justice, HM Courts Service, which merged with the Tribunals Service in 2011 to form HM Courts and Tribunals Service (HMCTS). As we discuss below, the drive towards efficiency savings has also led to the closure of many local courthouses, with consolidation into fewer courts serving larger areas and/or specialist courts (such as for road traffic offences), together with a reduction in the number of magistrates’ benches. The Coalition Government legislated to introduce the Single Justice Procedure,13 allowing certain uncontested cases to be dealt with on the papers by a single magistrate; we consider this further below. In May 2015, the Transforming Summary Justice (TSJ) initiative14 was implemented, a cross-agency programme designed to improve the handling of cases by magistrates’ courts by reducing delays, minimising the number of hearings and making more trials effective on the day of listing. Under TSJ, anticipated guilty plea cases are listed 14 days after charge in Guilty Anticipated Plea (GAP) courts, with the aim of concluding all stages at one hearing, including sentencing. Cases where a not guilty plea is expected are listed 28 days after charge in Not Guilty Anticipated Plea (NGAP) courts, allowing time for review and preparation before the first hearing, and early contact with the defence.
8.Inefficiencies within the criminal justice system are against the interests of defendants, victims and witnesses, as well as being wasteful of public resources. The Association of Lord-Lieutenants15 gave an optimistic assessment of the benefits of recent initiatives aimed at reducing delays in summary justice, suggesting that “considerable improvement has been made with the recently introduced ‘Transforming Summary Justice’ review”.16 However, a less positive view of the current situation was put by others, including Richard Goold JP:
If you give your time to be a magistrate, you expect your time to be used doing what is expected of a magistrate, not sitting in a retiring room for four or five hours because cases are not effective. Personally, that is the most frustrating thing for me as a magistrate.17
To assist it in formulating its response to our inquiry, the Magistrates Association conducted a survey of its members, receiving around 2,000 responses; we are grateful to the Association for sharing the survey results as part of its written evidence and we refer to them throughout this report. Survey findings indicate some support for Mr Goold’s view: when asked about the most negative aspects of their work, 22% of respondents cited delays and inefficiency and 17% cited not enough sittings or cancelled sittings. Over one-third thought that they were used ‘quite inefficiently’ or ‘very inefficiently’ in their role.18
9.Other evidence raised concerns about low morale among magistrates—attributed by Dr Peter Reed JP19 and the Somerset Bench20 to team spirit being undermined when benches are enlarged after amalgamation. The Magistrates Association had encountered anecdotal evidence of low morale. While its survey of members indicated that 88% were ‘very satisfied’ or ‘quite satisfied’ with their work, a clear majority of respondents felt they were not adequately consulted about reforms to the justice system (59%), management of magistrates (66%) or management of the courts (74%).21 Jo King JP, Executive Chair of the National Bench Chairmen’s Forum, recognised that the magistracy was going through a period of great change, generating uncertainty and anxiety, but she went on to tell us: “We work very closely with our colleagues in HMCTS and through our justices’ clerks, and I think we will be resolving some of those issues fairly soon, but I certainly would not say that it is in crisis.”22
10.We received some evidence specifically identifying reduced and poor quality administrative support for magistrates’ courts as having a negative impact, both on magistrates and on the reputation of the justice system.23 Nicola Silverleaf JP thought that court staff might be struggling to implement change whilst also worrying about their own jobs, and that their poor morale could be transmitted to magistrates.24 It was also suggested to us that “top down administration” was undermining magistrates’ ability to deliver a high quality service.25 Commenting on the relationship between magistrates and the current business administration of the courts, Dr Jenifer Harding JP observed:
There is a perception that the Courts Service is less committed to magistrates. The consequence of that is that magistrates become less committed to the court.26
Dr Harding illustrated her point by explaining that there had been a merger of four courts in her area; there were perceptions that this had been done without adequate participation of local magistrates, who felt that the new system had been imposed on them.
11.We endorse the principle behind initiatives designed to streamline and modernise proceedings in the magistrates’ courts, but we believe there is a risk of undermining magistrates’ morale by imposing changes on them without consultation and by reducing administrative support to unsatisfactory levels. Although evidence does not indicate a universal problem, there is sufficient evidence of low morale within the magistracy to cause us concern. We recommend that magistrates be consulted as appropriate on any further changes to the criminal justice system on which their views are likely to assist policy development and/or which are likely to have an impact on their role—in particular changes to administrative support to the courts, whether in their own locality or more widely across the court system.
Allocation of cases to magistrates
12.The role of the magistracy is complemented by that of District Judges (sometimes referred to as DJMCs, and formerly known as stipendiary magistrates), who are salaried members of the professional judiciary. They can be allocated to any magistrates’ court in England and Wales in response to business needs and they generally sit alone without the support of a court legal adviser. As of April 2016, there were 133 District Judges appointed to sit in magistrates’ courts in England and Wales, together with 101 Deputy District Judges who sit part-time on a fee-paid basis.27
13.In 2011, the Ministry of Justice published a report of research28 comparing the strength and skills of magistrates and District Judges, based on interviews and discussion groups with members of the judiciary, court staff, and court users; observations of over 2,000 cases in 44 magistrates’ courts; and an interactive cost model which included a notional ‘volunteer cost’ reflecting the value of magistrates’ unpaid time. While magistrates were widely perceived to be better connected to their community and less ‘case hardened’, the research found that District Judges were viewed as transacting cases more quickly and considered to be more adept at case management. After controlling for key differences, the cost model showed that District Judges were typically more expensive per case than magistrates—mainly because of their salary costs. However, compared to magistrates, District Judges were notably faster in dealing with ‘either-way’ cases and were found to be less costly for these cases when either the costs of lawyers and legal aid or the ‘volunteer costs’ for magistrates were taken into account. Following publication of this research, a working group, consisting of senior members of the judiciary, the Magistrates Association, the National Bench Chairmen’s Forum and HM Courts and Tribunal Service (HMCTS), was established which agreed a protocol on judicial deployment in the magistrates’ courts in 2012.29 In summary, the protocol determines that serious cases such as those involving terrorism and extradition should always be allocated to District Judges and establishes a presumption that lengthy or complex cases should be allocated to them, as well as a share of more routine court business, including case management and pre-trial reviews. The protocol indicates that District Judges and magistrates should occasionally sit in mixed benches, with a particular view “both to improving the case management skills of magistrates and to improving the culture of collegiality”.
14.Alongside an increase in the use of out-of-court disposals such as police cautions, reduction in crime has contributed to a substantial drop in the number of cases being handled by the magistrates’ courts; the crime survey for England and Wales indicates that crime has steadily fallen since reaching a peak in 1995.30 Records for 2005 show that, in that year, nearly 1.9 million defendants were proceeded against in the magistrates’ courts31 whereas, in 2015, the magistrates’ courts had fewer than 1.6 million receipts of criminal cases.32 The evidence we received suggests that in consequence of this downward trend some magistrates may be struggling to sit often enough to maintain their competence. For example, Christine Holmes JP told us that “there is not enough work for us to maintain our competence currently”33 and the North East Bench Chairs Forum observed: “Experienced magistrates are losing confidence in their ability, in particular, to chair busy remand, NGAP and GAP courts because of lack of court sittings which they feel has reduced their competence and confidence.”34 In the minds of some magistrates who submitted evidence, this problem is linked to the use of District Judges for cases that magistrates could easily handle themselves. Vivian McCarthy JP expressed concerns that illustrated this view:
I believe a balance needs to be struck where the needs of all magistrates are met by being regularly exposed to a wide range of case-work. Too heavy a reliance on DJMCs risks reducing competences of the wider bench because all but the most straight-forward work will be dealt with by the professional bench.35
15.A minority of responses made specific complaints about work being removed from magistrates at short notice to ensure that District Judges had sittings36 or even suggested that District Judges were able to “cherry pick” the most interesting cases.37 Nicola Silverleaf JP observed that providing District Judges with enough sitting time was a “sensitive issue to benches when they don’t have enough work” but recognised that, as salaried public employees, they had to sit an appropriate number of days to remain competent.38 This point was echoed in several written submissions that we received.39
16.However, many magistrates were happy about the relationship between their bench and District Judges, which was variously described as “good”40, “excellent”41 and “very conducive to positive working”.42 Dr Simon Wolfensohn JP thought that the current distribution of work between magistrates and District Judges worked well and that the protocol on judicial deployment “appears to be adequate to regulate the balance”.43 The protocol was expressly supported by others, including David Williams JP.44 Over 60% of the respondents to the Magistrates Association’s member survey thought that the allocation of work between magistrates and District Judges was appropriate all or some of the time. 45 However, we note that over one-fifth of the survey respondents considered the allocation of work to be inappropriate either most or some of the time and, of these respondents, over 80% were concerned about factually complex cases being retained by District Judges. In its submission, the Magistrates Association argued that there was no intrinsic reason why factual complexity should require a District Judge, “whose expertise is specifically legal”.46 Other evidence that we received supported the view that magistrates would be able to deal with more challenging cases, thus providing them with a greater breadth of experience.47
17.The decision as to whether magistrates should sit in a mixed bench with a District Judge to hear a particular trial rests with the justices’ clerk. We received a number of submissions arguing that this should happen more often, including from a range of area bodies such as Bedfordshire Magistrates Association,48 Birmingham and Solihull Bench,49 Coventry and Warwickshire Magistrates Association,50 Lincolnshire County Bench51 and West Mercia Advisory Committee.52 The idea was also supported by Transform Justice53 and by some individuals, including Phil Lloyd JP,54 R W Farrington JP55 and Robert Lynch, a retired magistrate.56 In his oral evidence to us, Senior District Judge Howard Riddle, the Chief Magistrate, spoke positively about sitting with magistrates but noted that having a District Judge with two magistrates and their legal adviser was quite an expensive option. He suggested that this approach be used proportionately: “it works very well for a serious or high-profile case.”57 In response to the same question, Lord Justice Fulford, the Senior Presiding Judge, commented:
It provides not only something that is more akin to a jury for the more serious cases but a fantastic training opportunity, both for the lay magistrate and for the District Judge. To sit together and watch each other’s skills in operation is extremely useful. Without breaking the bank at Monte Carlo, we would support this happening on a more regular basis than it does at present.58
Lord Justice Fulford added that he had thought for a while that this area required the laying down of some general ground rules to give guidance to justices’ clerks.59
18.We recognise that, in practice, there are difficulties in balancing the work of magistrates with that of District Judges and that District Judges must be kept occupied because of their salaried status and the need to maintain their competence. However, it is also important to retain magistrates’ competence and to value their time as volunteers.
19.We recommend that the Ministry of Justice commission qualitative research into relations between District Judges, magistrates and justices’ clerks in a sample of Local Justice Areas, with a view to understanding the source of potential tensions and identifying good practice.
20.We note that Lord Justice Fulford is considering the possibility of additional guidance for justices’ clerks on the allocation of cases in magistrates’ courts, a development that we would welcome. We recommend that this take the form of an amended version of the protocol to support judicial deployment in the magistrates’ court. We further recommend that consideration be given to allowing magistrates to sit without legal advisers when sitting with a District Judge.
The Single Justice Procedure
21.Section 48 of the Criminal Justice and Courts Act 2015 introduced the Single Justice Procedure (SJP), by which uncontested cases involving adults charged with summary-only, non-imprisonable offences may be dealt with on the papers by a single magistrate, supported by a legal adviser, without attendance by the prosecutor or defendant.60 The procedure is used for low-level cases such as TV licence evasion, failure to register a new vehicle keeper, driving without insurance and depositing litter. Following a pilot phase, the SJP was rolled out nationally from March 2016. Its introduction was supported by the Magistrates Association61 and the National Bench Chairmen’s Forum.62 The SJP has also proved attractive to magistrates in employment or who have other daytime commitments, as the work can be undertaken outside of normal court hours.63
22. The Ministry of Justice suggested to us that the SJP:
provides an opportunity for magistrates—as a bench of three—to spend the majority of their time on more serious cases, allowing for more attention on the cases which have a direct impact upon victims and communities …64
23.While recognised as delivering efficiencies and creating more opportunities for magistrates,65 the SJP has also created some disquiet. For example, Dr Simon Wolfensohn JP argued that it “goes against very fundamental principles”66 and Christine Holmes JP told us:
I don’t like the Single Justice Procedure. It can be done in a room away from normal court processes, and I think that any form of justice needs to be open and above board. I certainly would not want to see it extended in any way, shape or form.67
Other submissions that acknowledged the benefits of the SJP expressed a degree of caution. For example, Vivian McCarthy JP expressed hope “that it does not become a rubber stamp exercise”68 and the Coventry and Warwickshire Branch of the Magistrates Association was concerned about the idea of extending use of the SJP, particularly if a single magistrate had the power to determine guilt or innocence as well as imposing sentence.69 Peter Lindley Ullathorne JP thought that any expansion of the SJP needed careful consideration, once sufficient experience had been gained and analysed.70
24.The written submission of the senior judiciary expressed confidence that the SJP process would not compromise the quality of justice, but accepted that it should be kept “under careful review.”71 In his oral evidence to us, the Senior Presiding Judge, Lord Justice Fulford, accepted the need to abide by the principle of open justice but thought that the public had “no appetite” for watching the types of case allocated to the SJP process.72 He qualified this by suggesting that the hearing of a case involving a public figure might, if necessary, be moved into open court. Lord Justice Fulford indicated his intention of issuing a protocol setting out guidance for single magistrates as to when they should sit in an office, when they should sit in open court and how they should respond to requests for information “to make sure that everything that should be in the public domain is in the public domain.”73 However, he wanted to stay his hand until he had received feedback on how the new procedure was operating in practice.74
25.We note that the Ministry of Justice is consulting on proposals designed to allow defendants charged with certain minor offences to plead guilty using an entirely automated system that would issue an online conviction and penalty.75 At first sight, this does appear to raise some issues of concern, particularly the implications of excluding judicial office holders from involvement in disposing of certain criminal cases. We have not taken evidence on this proposal and thus do not draw any conclusions in this Report, but it may be a subject to which we return in the future.
26.The principle of open justice is central to our common law tradition and also underpins Article 6 of the European Convention on Human Rights. We recognise the efficiency gains of the Single Justice Procedure, but we note concerns have been expressed about any potential extension of the procedure to additional cases. We welcome Lord Justice Fulford’s intention to issue a protocol setting out guidance for magistrates on when they should sit in open court, and recommend that these concerns be taken into account in the preparation of that protocol.
Case management
27.As we noted above, the Transforming Summary Justice (TSJ) initiative, designed to facilitate swifter summary justice with reduced delays and fewer hearings, was introduced in May 2015. TSJ relies in part on effective case management by magistrates—in particular, for first hearings of contested cases allocated to NGAP courts. A recent report by the National Audit Office found the backlog in the magistrates’ courts had fallen since mid-2015, and is now lower than in 2012; it also found that the effective trial rate had improved by 5% over the same period.76 However, there were divergent opinions as to whether magistrates had acquired the necessary skills for their critical case management role. The Black Country Branch of the Magistrates Association took a positive view:
Working alongside our professionally qualified legal adviser colleagues we have rapidly picked up the needs for greater control of ‘case management’ procedures and are no longer subjugated by lawyers, either CPS or defence solicitors, making arguments for why an adjournment should be granted. Training with senior colleagues and members of the senior judiciary (DJs) and use of typical examples in the higher courts has definitely ‘stiffened the backbone’ of the lay justices.77
28.Others were less sanguine. Peter Chapman emphasised how important it was for magistrates, especially those who chaired court proceedings, “proactively to control court business and challenge delay and non-compliance with court directions”.78 Oxfordshire Magistrates’ Bench believed that “more extensive and ongoing training” was required to help magistrates deal with more complex matters, such as case management and complicated allocation decisions.79 David Sanderson JP argued that valuable training for case management was undermined by “a reduction in key court staff and a workload that makes effective case management almost impossible”.80 According to Nicholas Moss JP, magistrates should be more self-critical about failing to anticipate factors that led to trials not going ahead, such as taking insufficient steps at the trial-fixing stage to maximize the chances of witness’ attendance.81 A suggestion put to us by the Crown Prosecution Service (CPS) was that a panel of specifically trained ‘case management’ magistrates be set up to ensure case management in NGAP courts is as robust as possible.82
29.The success of the Transforming Summary Justice programme also depends on factors falling outside the control of the magistracy. The HM Crown Prosecution Service Inspectorate (HMCPSI) report83 on the contribution by the CPS to the TSJ initiative recognised the commitment by CPS staff and their criminal justice system partners to achieving the TSJ aims but found that culture change had not yet been achieved at operational level: for example, compliance by both police and CPS with their disclosure obligations was poor and CPS lawyers were failing to engage with the defence prior to the first hearing. The additional problem of unrepresented defendants in the magistrates’ court is one that we have recently raised in a separate report.84 According to survey evidence cited in a report by Transform Justice, nearly a quarter of defendants coming before magistrates in 2014 were unrepresented.85 In his written evidence, Dr Chris Knight JP highlighted that:
what is now lacking is a more vibrant communication process between the bench and the defendant in order that the defendant is quite clear when he or she leaves the courtroom about what has happened and its implications for the future. As we see an increase in unrepresented defendants, this becomes even more significant.86
30.We asked the Senior Presiding Judge, Lord Justice Fulford, whether there were any tensions between the recognised importance of local justice and the implications of making ambitious changes to how the judiciary operates—particularly in relation to case management skills. In response, he commented that there are:
areas of case management where it is appropriate that they are at least focused in the hands of District Judges. If you have very difficult bad character applications in serious sexual offences or you have to grant special measures in very difficult circumstances, it may well be best to ensure that the person with the right qualifications is dealing with that.87
31.We agree that more challenging case management tasks may require the skills of a District Judge and should be allocated accordingly. However, recognising that the Transforming Summary Justice initiative depends in part on effective case management of every contested case, we recommend that all magistrates who sit as panel chairs should be offered training to assist them in fulfilling this role as effectively as possible.
13 Under section 48 of the Criminal Justice and Courts Act 2015
15 Lord-Lieutenants are the Sovereign’s representatives in their counties and areas. They give active support to the voluntary, community and charitable sectors and they chair the majority of the Lord Chancellor’s Advisory Committees which appoint, and oversee the conduct of, magistrates.
28 The strengths and skills of the Judiciary in the Magistrates’ Courts, Ministry of Justice Research Series 9/11, November 2011
30 Office for National Statistics, Crime in England and Wales: Year ending December 2015, April 2016
31 Ministry of Justice, Judicial and Court Statistics, 2007; Table 7.1 “Magistrates’ Courts - number of defendants proceeded against for criminal offences, by offence type, England and Wales 2002 - 2007”
32 Ministry of Justice, Criminal Court Statistics (quarterly), January to March 2016, 30 June 2016
39 Dominic Goble JP [MAG0062]; North East Bench Chairs Forum [MAG0008]; Margaret Robb JP [MAG0061]; Shropshire Bench [MAG0034]
60 The SJP will not be used if a defendant serves notice of intention to plead not guilty, or of a wish not to be tried by a single justice.
65 For example, Oxfordshire Magistrates’ Bench [MAG0052], paragraph 2; National Bench Chairmen’s Forum [MAG0063], paragraph 8
75 Transforming our justice system: summary of reforms and consultation, Ministry of Justice. Cm 9321, September 2016
83 HM Crown Prosecution Inspectorate, Transforming Summary Justice: an early perspective of the CPS contribution, February 2016
84 House of Commons Justice Committee, First Report of Session 2016 — 2017: Reduction in sentence for a guilty plea guideline, HC 168
85 Transform Justice, 2016. Justice denied? The experience of unrepresented defendants in the criminal justice system
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17 October 2016