The role of the magistracy Contents

3Recruitment and diversity

How magistrates are recruited

32.Responsibility for recruiting magistrates lies with the local Advisory Committees on Justices of the Peace, the majority of which are chaired by the Lord-Lieutenant for the area. The Advisory Committees are responsible for interviewing applicants and recommending successful candidates to the Lord Chief Justice, who delegates appointments to the Senior Presiding Judge for England and Wales.88 Anyone over the age of 18 and under 65 can apply to be a magistrate; no legal training or formal qualifications are required, although applicants must be able to demonstrate six key qualities: good character; understanding and communication; social awareness; maturity and sound temperament; sound judgement; and commitment and reliability. Each area assesses how many new magistrates it needs on an annual basis; we note that only a handful of Advisory Committees are currently seeking applications and that, in the year 2015/2016, only 668 new magistrates were recruited.89 As for judges (albeit with certain exceptions), 90 magistrates are required by law91 to retire at 70. At this age, their names are placed on the Supplemental List which allows them to continue carrying out certain minor administrative functions, but not sit in court.

Diversity and age profile of magistrates

33.The number of magistrates has fallen significantly over the past decade; the current total of 17,552 compares to around 30,000 in 2006.92 Judicial diversity statistics for 201693 show that 53% of magistrates are female and 89% are white. While the latter figure is comparable to the proportion of the overall population that is white (86%94), we note that many benches have no, or very few, Black, Asian and Minority Ethnic (BAME) magistrates. The statistics also indicate that, among serving magistrates, 86% are aged 50 and over, with only 4% under 40 and less than 1% under 30; well over half of magistrates (57%) are within ten years of the retiring age of 70. Only 4% of magistrates declared themselves to be disabled, in comparison to 16% of working age adults and 45% of adults over State Pension age.95 We further note that the Ministry of Justice statistics on disabled magistrates provide no further breakdown as to the nature of their impairment or the extent to which reasonable adjustments would help them to carry out their duties.

34.The relationship between the magistracy’s age profile and the limited number of new magistrates being recruited was highlighted by many of those who submitted evidence to us. It was pointed out that one consequence of an ageing magistracy is the urgent need for succession planning to cope with impending retirements. David Harding JP commented:

Thirty percent of the Worcestershire bench will retire over the next three years. Recruitment recently authorised for 2016 (for the first time for five years) will barely compensate for this year’s retirements.96

A similar point was made by Coventry and Warwickshire Bench, who told us that significant recruitment was now needed because of the number of magistrates reaching the age of 70 in the next few years—the so-called ‘baby boomers’.97 Malcolm Richardson JP, Chair of the Magistrates Association, observed that the fact that seven thousand magistrates were expected to retire within the next five years represented “a huge opportunity” for diverse recruitment to the bench—a goal which he was confident could be realised.98

35.We also heard that restrictions on recruitment may be linked to existing magistrates requesting a transfer into a particular area.99 Norfolk Magistrates’ Bench identified a phenomenon of magistrates moving out of cities to rural areas on retirement and then applying to transfer to the local bench: “Opportunities to actively recruit local people of diverse backgrounds and from a younger age group are therefore limited.”100 Christine Holmes JP thought that “the bench has been allowed to stagnate” and suggested that the embargo on recruitment in her area had “ignored the needs of the bench in its future development, succession planning and maintenance of competence in mentoring and appraisal”.101 In the light of perceived problems with ‘stop-start’ recruitment, an ongoing recruitment process was supported by Riley Smith,102 as well as by Richard Goold JP who argued in his written evidence:

With the age profile of magistrates weighted heavily to 50+ it is important that there is a pipeline of candidates who can fill the gaps—not just as they arise but in advance.103

36.As we note above, magistrates with experience of sitting in the adult court may undergo training for the Family Court or the Youth Court. Several submissions to our inquiry noted the shortage of magistrates qualified to sit in the Family Court.104 According to the Coventry and Warwickshire Branch of the Magistrates Association, the problem is “acute” and the position is likely to be aggravated over the next two or three years as a result of retirements.105 It was suggested by Dr Jenifer Harding JP that a possible solution to shortages of Family Court magistrates might be to raise the mandatory retirement age to 75 in some circumstances:

We cannot recruit, because we keep asking the same people, who do not want to fill in the complicated form … …. in the next two years, we are going to have lost quite a number of those people at 70. The Family Court is going to be even more hard-pressed than it is at the moment.106

A more general point was made by Peter Lindley Ullathorne JP, who suggested raising the retirement age for all magistrates, to enable them to continue making their experience available for mentoring and for more specialist work.107 Similarly, Professor James Crabbe JP proposed allowing magistrates to extend their term to the age of 75.108 In contrast, it was also suggested to us that the retirement age might be lowered to allow recruitment of younger magistrates.109

37.The need for a long term workforce plan is recognised by the Ministry of Justice, whose written evidence stated that this would “help us to retain our magisterial bench and provide a continuous injection of new talent”.110 When we asked the Minister how this plan would be produced and within what time frame, he was rather unspecific. In his assessment, the number of magistrates required in the medium to long term would depend on the court structure, but “I do not have the answer for that, because we are still in the process of making the reforms”.111

38.We note that the recent joint statement from the Lord Chancellor, Lord Chief Justice, and the Senior President of Tribunals112 announced that Local Justice Areas would be reformed to provide more flexibility in listing cases. While we have not taken evidence on this decision, at first sight it would appear to open the possibility of magistrates being deployed more flexibly across Local Justice Areas in response to business needs, reducing the need for recruitment to the magistracy to respond to the predicted workload of individual benches.

39.We recognise the valuable expertise of many older magistrates and we have particular sympathy with concerns about the shortages of magistrates qualified to sit in the Family Court. We conclude that the solution lies in workforce planning for the magistracy—including for specialist roles. We support the maintenance of a retirement age of 70 for magistrates, the same as for judges, but we consider that on application by individual magistrates it should be possible in exceptional circumstances to extend their appointments, taking into account the outcome of workforce planning. We urge the Ministry of Justice, in consultation with the senior judiciary, to undertake a workforce planning exercise for the magistracy at the earliest possible opportunity, taking into account the high proportion of serving magistrates who are expected to retire over the next five to ten years. We also recommend that recruitment be undertaken on a continuous basis, so that approved applicants are available to fill vacancies in their area, or in adjacent areas, as soon as they occur.

Attracting a wider range of applicants

40.The dearth of younger applicants to the magistracy was mentioned by many of those who gave evidence to us. This was attributed, in part, to the reluctance of employers to release their employees—a point to which we return below. It was also suggested that many younger people are not at the best stage in their lives to consider making this sort of commitment, particularly when they are trying to develop their careers.113

41.While the proportion of magistrates from a BAME background (11%) is higher than for other judicial office holders,114 we had evidence that some areas with a small BAME population had difficulty recruiting from these groups.115 Even in urban areas, we were told that BAME groups sometimes appear to be under-represented among the magistracy; Luke Rigg JP reported that, at a London-wide training event attended by 200 or 300 magistrates, he “could count the number of ethnic minorities in that room on my hand”.116 West Mercia Advisory Committee considered that more effort should be made to overcome “cultural boundaries” that inhibited those from a BAME background from applying to be magistrates, and suggested that working with places of worship might help to achieve this.117 According to Leicester Advisory Committee, the most successful way of generating interest in the magistracy was to “invite ethnic minority magistrates to talk to their own communities and encourage them to apply”.118

42.We received evidence relating to disabled magistrates, including from Disability Awareness and Advice Ltd, who thought that too little had been done to encourage disabled people to apply to be magistrates and drew particular attention to limited wheelchair access to court buildings, with wheelchair users often having to enter via a back door, “something that was recognised as inappropriate and demeaning more than 20 years ago”. The organisation argued for a disability strategy for the courts, created by disabled people themselves.119 Underlining the difficulties encountered by magistrates with mobility impairments, Margaret Robb JP told us about a wheelchair user who resigned from the magistracy after less than two years “due to the lack of facilities for his disability”.120 These views are supported by research into the magistracy and disability, incorporating survey responses from over 250 magistrates, which found that 45% of magistrates with disabilities had experienced disability discrimination.121 The Prison Reform Trust proposed that Advisory Committees adopt a version of the ‘two ticks’ scheme to encourage disabled applicants for the magistracy122 and suggested that a similar approach be adopted for other under-represented groups.123

43.While some, including Lord Justice Fulford,124 thought that the local Advisory Committees worked well and were doing all they could to secure a more diverse bench, others were less sure about this. For example, Phil Lloyd JP told us:

Recruitment procedures have not changed in years, the recruitment process takes too long, between 12 and 18 months from start to being sworn in. The Local Justice Area Advisory Committees who select and interview, in the main, are made up from white, middle class, middle aged magistrates and volunteers.125

Similar views were expressed by Nicola Silverleaf JP in her submission:

Advisory Committees tend only to recruit people similar to those already there, and are not recruiting sufficiently frequently to be good at it. Small numbers mean there is a waiting list of “traditional” applicants so very little effort needs to be made.126

44.Under Part 2 of Schedule 13 to the Crime and Courts Act 2013,127 if two candidates are of equal merit, one may be preferred over the other in order to increase diversity among that group of judicial office holders. The Judicial Appointments Commission has limited application of this provision to race and gender.128 Transform Justice drew our attention129 to the fact that the equal merit provision is not yet in place for the recruitment of magistrates—although Lord Justice Fulford told us that “very serious consideration” is now being given to implementing it for the magistracy.130 The evidence of under-representation we have noted above indicates potential benefits from introducing the equal merit provision for the protected characteristics of age—particularly for younger age groups—and for race and disability. However, the current gender balance within the magistracy does not suggest a need to introduce it for the protected characteristic of sex.

45.Several submissions criticised the length of the recruitment process.131 Luke Rigg JP—a young magistrate who had recently been appointed—told us that he had undergone a year-long application process, which was “far too long”; he thought that this could be off-putting for some people.132 In Mr Rigg’s view, the lack of diversity among both Advisory Committee members and sitting magistrates was another factor that might deter people from pursuing applications, because:

if you go to an interview and there are not any people who reflect you on the committee, it can be off-putting. You go into a courtroom to visit and observe and there aren’t any people who reflect you. It is a big problem.133

Mr Rigg also observed that, owing to a lack of advertising about what magistrates do, many people do not know what their role is, or whether it is paid or voluntary.134 This view was supported by the research findings of Professor Mike Hough and Professor Julian Roberts, who told us they had found that people are poorly informed about the magistracy and about the fact that magistrates are volunteers drawn from the community.135 With regard to recruitment, David Sanderson JP suggested that the only way of knowing that it was taking place “was by checking with the judicial administration staff or being advised by word of mouth”.136

46.The degree to which Advisory Committees engage with local communities was identified as a key factor in encouraging diverse applications. Jo King JP of the National Bench Chairmen’s Forum recognised that having a narrow pool of applicants would make it very difficult to address diversity issues. She commented:

As far as I am aware, no centralised advertising has been done for several years. Various informal methods are tried, but it is not always easy to identify the groups that might be interested or the appropriate people to speak to within those groups. A lot of work happens on a local basis, some of which is more successful… … 137

More positively, we heard of commendable efforts to attract diverse applicants made by the Staffordshire Advisory Committee, who recognised that it was inadequate to rely on a website and was:

subsequently very successful in getting a strong response by a major publicity campaign, using local newspapers and TV/Radio, and putting up notices in public places such as libraries, leisure centres, supermarkets and Parish noticeboards.138

47.A number of witnesses mentioned in positive terms the successful work of the Magistrates in the Community programme, run and funded by the Magistrates Association to increase public awareness of the role of magistrates in the criminal and civil justice system.139 For example, Sheena Jowett JP, the Deputy Chair of the Magistrates Association, gave the following example:

obviously in Wales the ability to speak Welsh is highly important. Magistrates in the Community went to a Welsh-speaking school, where they had a parents’ evening and targeted parents who could speak Welsh. Eventually, through the application process, we got two new magistrates.

48.However, there is a widespread view that the Magistrates in the Community initiative is under-resourced. Malcolm Richardson JP, Chair of the Magistrates Association, informed us that they hoped to obtain funding from grant-giving bodies to support the programme, but that prospective funders “are a lot happier to do that when they get matching funding from elsewhere”.140 We also heard from Robert Lynch, a retired magistrate, that Buckingham Magistrates Association had obtained funding from assets recovered under the Proceeds of Crime Act 2002. He wondered whether this approach could be used to support a publicity campaign “to widen the net of recruitment, from the BME community for example”.141

49.We conclude that having a large cohort of magistrates approaching the age of retirement presents a great opportunity to promote diversity among those who are recruited to replace them. We recognise the considerable efforts that have been made to encourage applications for the magistracy from a wider range of people, and we commend the imaginative approaches to improving diversity that have been drawn to our attention.

50.We recommend that the Ministry of Justice and the senior judiciary devise a strategy containing the following steps as a matter of priority to increase the diversity of applicants and recruits for the magistracy:

Encouraging employers

51.We received evidence identifying particular barriers preventing or discouraging those who are employed from becoming magistrates. Under section 50(1) of the Employment Rights Act 1996, an employer is required to allow an employee to take reasonable time off during working hours to perform his or her duties as a magistrate—although this time does not have to be paid. We heard of employed magistrates facing resistance from their employers, as well as financial disincentives. For example, the Executive Committee of the Powys and Herefordshire Branch of the Magistrates Association told us that:

employers are increasingly reluctant to support employees with time off to undertake the duties. For those employees who do manage to obtain time off the compensation may be inadequate and does not necessarily compensate the employee for any pension contributions which they would have accumulated … . this, over a number of years, this can amount to a considerable loss.142

Jo King JP suggested that small employers find it particularly difficult to release people on a regular basis, and observed that “often the employer-employee relationship, particularly given the financial situation that many businesses have found themselves in over the last five years, is quite a difficult one anyway.”143 It was also noted that some employers now expect employees to work flexibly and for longer hours.144 There was also evidence that barriers faced by employees have an impact on the age profile of the magistracy. Northern Derbyshire Magistrates’ Bench considered that the decline in the recruitment of younger magistrates was partly due to “the disinclination of businesses, especially in the public sector, to recognise the benefits of having a magistrate on their payroll.”145 The Criminal Justice Alliance considered employers to be “a fundamental barrier to a more diversified magistracy”, because “all too often they are unsupportive of staff becoming magistrates and reluctant to afford them the required time off”.146

52.We received a number of constructive suggestions as to how the problems faced by employed magistrates might be overcome. For example, Central London Bench thought it was important to “make employers more aware of what additional skills and perspective a magistrate’s experience can bring to a business,”147 a view that was shared by the Office of the Police and Crime Commissioner for Northumbria148 and by the Magistrates Association, who referred to “the huge range of transferable skills being a magistrate creates”.149 Penelope Gibbs from Transform Justice described the increasing difficulties facing magistrates in the public sector, including the NHS, in getting time off work and suggested that this could be facilitated by having “a protocol across government, with public sector employers”.150 Nicola Silverleaf JP considered that, when an employer supported service in the magistracy by its employees, this should be seen as similar to corporate social responsibility.151 The Association of Lord-Lieutenants put to us that employers might be persuaded to recognise the value of having a magistrate as a staff member “by presenting them with a brochure of the work and training of a magistrate together with a framed certificate stating that they are a supportive employer.”152 Similarly, the Criminal Justice Alliance suggested an accreditation scheme for employers. Both organisations pointed out that a similar scheme has been set up by the Government to promote service in reserve forces.153

53.When we questioned the senior judiciary about the idea of a ‘kitemark’ scheme to recognise employers’ support for the magistracy, we received an encouraging response. Lord Justice Fulford gave cautious support, although he had not seen any detailed proposals.154 Senior District Judge Riddle spoke positively:

How is it that we have not sold this concept? The skill of the magistracy, and what magistrates learn on the bench, is extraordinary. You have three people working together to ascertain facts against a legal background … . That must be a very useful skill for most employers. I do not know why it is not seen to be a great accolade for a company, a firm or an employer to have magistrates working with him or her … . There ought to be a kitemark.155

54.Some witnesses also suggested to us that financial incentives for employers should be considered, which might include tax advantages156 or National Insurance breaks.157 Somerset Bench thought that the Government “must be prepared to provide financial (and other) incentives to employers and to have a more generous policy on magistrates’ loss of earnings reimbursement.”158 A similar view was expressed by Dr Peter Reed JP.159

55.We received evidence suggesting that self-employed magistrates are finding it more difficult to claim Financial Loss Allowance (FLA)160 because of new measures designed to prevent them from sitting purely to claim the allowance,161 and that the FLA for both employed and self-employed magistrates had not been uprated since 2009. Any future increase to the FLA would have resource implications for HMCTS and hence for the Ministry of Justice. In relation to the costs of training and appraisal, the Ministry reminded us of the challenges it faces “especially in the current financial climate”.162 In these circumstances, it seems likely that the Ministry would also view the financial climate as a relevant consideration in the context of financial incentives for magistrates and their employers.

56.Several witnesses made suggestions as to how the courts might make it easier in practical terms for people in employment to sit as magistrates, including Saturday sittings and after-work sittings—options that would be more convenient for many working magistrates163—although we also received submissions suggesting that limitations on HMCTS resources might prevent courts opening for out-of-hours sittings164 and pointing out that court staff could not be required to work on Saturdays.165 We referred in paragraph 21 to evidence of the success of out-of-hours sessions for the Single Justice Procedure.

57.Rebalancing the age profile of the magistracy is unlikely to happen unless more action is taken to overcome the barriers facing employed magistrates, including by encouraging employers in all sectors to support magistrates who work for them. We recommend that the Ministry of Justice and the senior judiciary create a kitemark scheme that recognises and rewards employers who support the magistracy, thus encouraging other employers to do the same. We also recommend that the Ministry of Justice review the current Financial Loss Allowances for employed and self-employed magistrates, including consideration of whether rates might be increased in line with inflation.

58.We further recommend that the HMCTS encourage court managers, when resources permit, to consider the potential for increasing out-of-hours court sittings in order to maximise sitting opportunities for magistrates who are employed.

Fixed tenure for appointments

59.At present, individuals appointed to serve as magistrates do not have an end date to their appointment, other than the statutory retirement age of 70. Some of the evidence that we received supported magistrates being appointed on a fixed tenure. Dr Simon Wolfensohn JP argued that, particularly in certain rural areas, there was “simply not enough work to go round” and that the number of magistrates was too high and should be reduced by limiting the term of office for those who sit as ‘wingers’ or by introducing rolling sabbaticals, which would be followed by some retraining. He went on to say:

Simply stopping recruitment is unhelpful, as we would end up with an ageing bench. There is no easy answer, I am afraid, but primarily, being fairly proactive about encouraging people who are not fully engaged in what they are doing to think about whether they really want to continue doing it is perhaps the best option.166

60.A ten year tenure for magistrates was suggested by the Office of the Police and Crime Commissioner, Northumbria, which thought it might “assist to bring renewal of personnel, requiring regular waves of recruitment adapting to time and place and change.”167 Penelope Gibbs, from Transform Justice, favoured the idea of renewable fixed tenure “if we are looking at radical solutions to improve diversity”. She went to point out that, in Scotland, justices of the peace have to renew their appointment every five years and that the appointment of children’s hearings panel members is renewable every three years.168 Senior District Judge Riddle suggested a fixed term of between six and nine years for new magistrates, at the end of which—subject to appraisal—they could apply to remain in the magistracy, perhaps until retirement.169 He went on to suggest that new appointees serve as wingers, sitting less frequently and needing less training than at present; then, “later on, you would keep the best people—if I can put it as simply as that—to act as chairmen, and they could sit far more frequently.”170

61.However, the suggestion of fixed tenure was strongly contested by others. Lord Justice Fulford told us that the senior judiciary’s criminal team, presided over by the Lord Chief Justice, was “not enthusiastic about the proposal to have fixed terms”, being unpersuaded that it would bring any benefit.171 He explained the team’s view that:

it could mean that some people who would otherwise have applied while they were working might leave it until towards the end of their career before they applied for a fixed term. If anything, you would run the risk of increasing the older age range … Additionally, you run the risk of losing experienced magistrates who, in due course, may be persuaded to sit as bench chairs.172

Likewise, the Magistrates Association rejected the idea of fixed tenure for magistrates. Sheena Jowett JP, the Association’s Deputy Chair, agreed that there was a risk of people delaying applications until they were approaching retirement age and pointed out that “at 10 years, a magistrate is starting to get into the leadership roles on the bench. That could be lost if you had short tenure for magistrates.”173 This view was shared by Peter Lindley Ullathorne JP.174 Similar concerns about succession planning were expressed by Jo King JP, whose assessment of fixed tenure was that “the disadvantages would outweigh the advantages”.175

62.While we accept that certain Local Justice Areas may have too many magistrates for the amount of work available, on balance we do not think that introducing fixed tenure for the magistracy as a whole, or for ‘wingers’ alone, is a satisfactory way of addressing this problem. We accept the evidence of Lord Justice Fulford and others that fixed tenure might create a perverse incentive for people to delay applications for the magistracy until they are approaching retirement, and that experienced magistrates with the potential for taking on leadership roles might be lost from the bench prematurely. A more robust appraisal system could be effective in addressing any problems arising from magistrates who are less engaged in their role, and we consider this matter in the next chapter.

89 Source: Judicial Office

92 Judicial and Court Statistics 2006, Cm 7273, November 2007

99 Liz Harrison JP [MAG0059]

104 For example, Leicestershire Advisory Committee (MAG0051); West Mercia Advisory Committee (MAG0071)

107 MAG0016, paragraph 3(l)

109 Dawn Nichol JP [MAG0004]

110 MAG0050, paragraph 44.

113 Vivian McCarthy JP [MAG0085], Central London Bench [MAG0013]

114 For example, the Judicial diversity statistics for 2016 indicate that 5% of District Judges (Magistrates’ Courts) identify themselves as being from a Black, Asian or Minority Ethnic background.

115 North East Bench Chairs Forum [MAG0008], Somerset Bench [MAG0018]

122 Under the ‘two ticks’ scheme, Jobcentre Plus gives an endorsement to employers who have demonstrated a commitment employing disabled people.

126 MAG0067, paragraph 20

131 For example, Leicestershire Advisory Committee [MAG0051], Association of Lord-Lieutenants [MAG0046], paragraph 8

139 The Magistrates Association explains on its website: ‘Teams of magistrates are willing to attend primary, secondary, 6th form colleges, schools, community groups and employers etc to give a presentation and discuss: how magistrates are appointed; what kind of cases they deal with; how guilt or innocence is decided; how magistrates decide to sentence.’

144 Albert Pearce JP [MAG0021]

146 MAG0048, paragraph 14; see also evidence of Clive Lewisohn JP [MAG0073]

149 MAG0058, paragraph 41

156 Sue Furnival JP [MAG0039], paragraph 19

157 Nicola Silverleaf JP, Q131

160 Magistrates who suffer a loss of earnings from employment or self-employment as a result of their duties can claim a financial loss allowance, in addition to travel and subsistence.

161 Nicola Silverleaf JP [MAG0067, paragraph 23]; Sue Furnival JP [MAG0039, paragraph 20], David Harding JP [MAG0041, paragraph 11]

162 MAG0050, paragraph 42

164 Malcolm Richardson JP, Q220; Corby Magistrates Bench [MAG0012]

165 Norfolk Bench [MAG0015]

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17 October 2016