6Expanding the role of magistrates
Increasing sentencing powers
100.There are four main types of sentence available to the magistrates’ court: discharges (either conditional or absolute); financial penalties; community orders; and custodial sentences—which may take the form of a suspended sentence.266 For a single offence, magistrates can impose financial penalties up to a maximum of £5,000; for specified offences higher maximum fines may be permitted (for example, up to £50,000 for fly tipping) and there is no maximum aggregate fine for two or more offences. However, the powers of magistrates to impose custodial sentences are more limited. For a single offence, they can impose a term of imprisonment of up to six months, although a term of up to twelve months may be imposed for two or more separate offences. For either-way offences, the magistrates’ court has a general power267 to commit a case to the Crown Court for sentence after finding that it is suitable for summary trial, where the court is of the opinion that the offence (and any associated offences) is so serious that greater punishment should be inflicted than the court has power to impose. In the Youth Court, which has a different sentencing regime, magistrates are empowered to impose a custodial sentence of up to two years by way of a Detention and Training Order.
101.Section 154 of the Criminal Justice Act 2003, yet to be commenced, provided for the ordinary maximum custodial sentence that could be imposed by the magistrates’ court to be increased to 12 months for one offence (15 months for two or more offences). The increase was originally intended to accompany a new sentence called ‘custody plus’268 which has not been implemented. Successive Governments have appeared reluctant to bring section 154 into effect, and the risk of this generating different sentencing practices that put new pressures on the prison population has previously been acknowledged.269 Transform Justice told us that it had made a request under the Freedom of Information Act to the Ministry of Justice, seeking information on its modelling of the possible effect of increasing the custodial sentencing powers of magistrates, in response to which the Department stated that it held such information, but that it was exempt from disclosure.270 In her oral evidence, Penelope Gibbs from Transform Justice argued that more information was needed before implementing such a change, “otherwise, we are just swimming in a fog of ignorance in this discussion.”271 When we wrote to the then Secretary of State asking if he would share with us in confidence the results of any modelling, he responded by saying that the Ministry was assessing the possible impacts of increasing magistrates’ sentencing powers but that a model predicting the policy impact on all stakeholders across the criminal justice system was “not currently available”; however, he would “try to ensure that we share information as soon as possible if we know it is robust and reliable.”272
102.A minority of witnesses expressed doubts about the wisdom of increasing magistrates’ custodial sentencing powers. According to Richard Goold JP, this debate was a distraction at a time “when so much can and needs to be done in rebuilding a criminal justice system that doesn’t deliver in the way that it should do.”273 In relation to assault, Dr Simon Wolfensohn JP thought there was a public expectation that sentencing would be done by “a man in a wig”274 in cases involving relatively serious injuries.275 Several witnesses considered that the Sentencing Council’s recently revised guideline on the allocation of either-way cases—maintaining the presumption that cases will be tried summarily276—would help to keep more cases in the magistrates’ court in any event.277 In the analysis of Nicholas Moss JP, the risk of magistrates’ sentences being more punitive than those currently imposed by the Crown Court was “a legitimate public policy concern”, carrying a related risk of more appeals to the Crown Court against magistrates’ court decisions.278 An alternative approach to this issue was suggested by Senior District Judge Riddle: more cases could be handled by magistrates, if Parliament so desired, by giving summary status to certain either-way offences rather than increasing the sentencing powers of magistrates.279 An even more radical approach was advocated by Peter Dawson of the Prison Reform Trust (PRT)280 and by the Howard League for Penal Reform,281 who both argued that the magistracy should only be able to impose community sentences, citing evidence suggesting that custodial sentences of less than 12 months are largely ineffective.
103.However, most of the evidence that we received from magistrates supported the commencement of section 154, a move that would be seen as signalling trust in the magistracy and providing a boost to its morale.282 It was also suggested that there would be “significant savings by not utilising the more expensive Crown Court for lower level crime”283 and that commencement would “increase the efficiency of the court by improving case continuity”.284 Malcom Richardson JP and Ian Clarkson JP argued that an increase of sentencing powers to 12 months’ custody would release pressure on the Crown Court, allowing justice to be dispensed more rapidly.285 Lord Justice Fulford and Christine Holmes JP were among the witnesses who reminded us that magistrates already have sentencing powers of two years in youth cases; Mrs Holmes also pointed to the low level of Crown Court appeals against sentences as evidence that magistrates make “reasonable and sound judgments”.286
104.We returned to the topic of modelling when the Minister gave oral evidence to us. When we asked Mr Vara whether there would be comprehensive modelling of the likely impact of extending magistrates’ sentencing powers to 12 months’ custody, he merely said that no modelling had yet taken place.287 When we repeated our question, Mr Vara accepted that there might, or might not, be modelling in future following consideration of all the facts.288 We followed this up by asking him at what point he would know whether modelling would be necessary, and he responded as follows:
Again, it is difficult to give timelines. What I can say is that we would pilot different areas, and do a thorough analysis and make announcements as and when appropriate. I am sorry that I am not being precise. I hope that you will appreciate that when you have a £700 million court reform taking place and, on top of that, you are considering problem-solving courts and the issues of recruitment of magistrates, diversity and increased sentencing powers, no one issue can be looked at in an individual, solitary way, because they form part of a bigger picture.289
105.We support increasing magistrates’ sentencing powers to 12 months’ custody, by commencing section 154 of the Criminal Justice Act 2003, and we recommend that the Ministry of Justice provide a timetable for implementation. We recommend that the Sentencing Council’s new Allocation Guideline be given time to bed down and the Council be given an opportunity to review its impact on the allocation of cases to the magistrates’ courts. We further recommend that the Ministry of Justice publish any modelling of the potential impact on the prison population of extending magistrates’ sentencing powers.
Involvement of magistrates in problem-solving approaches
106.So-called ‘problem-solving’ courts provide individualised assessments of offenders, taking into account personal circumstances that may result in repeat offending and seeking to reach agreement with individuals in a non-confrontational way. Such courts rely on having a consistent relationship between the judge and the offender and often adopt a multi-disciplinary approach, bringing together several agencies at one site. In March 2016, we were able to visit the Red Hook Community Justice Centre, the first multi- jurisdictional community court in the United States. Established in 2000, the Justice Centre operates in a geographically and socially isolated neighbourhood in southwest Brooklyn. A single judge hears cases that under ordinary circumstances would go to three different courts—Civil, Family, and Criminal—and has at his disposal an array of sanctions and services, including community restitution projects and long-term treatment for drug and mental health issues. Red Hook also features an on-site clinic staffed by social service professionals and houses a range of other services including mediation, community service and a youth court where teenagers are trained to resolve actual cases involving their peers.
107.Problem-solving courts are poorly developed in England and Wales compared with many other jurisdictions. The North Liverpool Community Justice Centre, which opened in 2005, was designed to emulate the Red Hook model.290 It accommodated various criminal justice services under the same roof as the court room, with the aim of linking offenders into appropriate services. Controversially, it was closed in 2013 due to a reported falling-off of referrals and high costs. In addition, an evaluation had found no difference in re-offending rates compared to offenders sentenced in regular courts. More successfully, the Stockport Problem Solving Court was established in autumn 2010 as a joint court and probation initiative supported by the Community Safety Partnership. The court takes a preventative, partnership approach to managing offenders (and their victims), rather than focusing on crisis management, and aims to deal with multiple or complex needs: for example, homelessness, mental health, drugs and/or alcohol misuse. The court has dedicated magistrates and legal advisers, and aims to provide continuity in the bench of magistrates dealing with each case, including after a breach. The post-pilot evaluation of the court identified substantial savings made to the prison service and the health services291 and, in 2012, the model was adopted more widely within Greater Manchester.
108.Since 2005, over 100 specialist Domestic Violence Courts have been set up, in recognition of the complex psychological aspects of domestic violence and the benefits of a specialist multi-agency approach to prosecutions. The first drugs court opened in Cardiff in 2009 and, building on its success, further pilot courts were set up in Bristol, Leeds, and West London. These courts have likewise reported positive results. In June 2016, we visited the Family Drug and Alcohol Court (FDAC) in Holborn, London, a problem-solving court which provides specialist help to families whose children are put at risk by parental substance misuse. The same judge reviews cases every fortnight, supported by an independent multi-disciplinary Intervention Team. Parents are given ‘a trial for change’ that supports them to overcome their problems, at the same time as testing whether they can make the changes within a timescale compatible with the children’s needs. An independent evaluation of FDAC found that parents were overwhelmingly positive about its approach. It also found that 40% of FDAC mothers and 25% of fathers were no longer misusing substances after 12 months, compared to 25% and 5% respectively of the comparison parents, and that a higher proportion of children remained with, or were returned to, their parents at the end of proceedings.292
109.On 8 February 2016, the Prime Minister announced that the then Secretary of State for Justice and the Lord Chief Justice had set up a joint working group to examine how to deliver problem-solving courts in England and Wales. Its objectives were to achieve offender behaviour change through judicially supervised rehabilitative programmes; to encourage innovation in the use of judicial disposals and improve compliance with the court orders; and to deliver a swifter and more certain response to crime and to reduce reoffending.293 Caroline Dinenage MP (then Parliamentary Under Secretary of State at the Ministry of Justice) confirmed in response to a Written Parliamentary Question in June 2016 that the recommendations of the working group supported the case for problem solving courts.294 However, it is currently unclear to what extent, and within what time frame, the Government will be progressing the working group’s recommendations.
110.We received evidence from the Centre for Justice Innovation, a research and development charity which works to build a trusted justice system that reduces crime. The Centre’s evidence, based on its ‘Better Courts’ programme of research and practice development, maintains that the shift in court business towards more complex and high-harm crimes means that the role of the magistracy needs to change as well. It argues, first, that more proportionate use should be made of magistrates’ courts by avoiding unnecessary prosecutions in favour of community resolutions and developing the role of magistrates in scrutinising these. Second, there is potential for enhancing the role of magistrates within problem-solving courts. However, several barriers would need to be overcome for this to be achieved: magistrates would require more extensive legal powers to order and oversee post-sentence reviews; consistent sitting patterns would be needed, to ensure continuity in the relationship with individual offenders; and magistrates are likely to need additional training, similar to the training they receive to sit in the Youth Court, to develop specialisms in areas such as substance misuse or women offenders. The Centre also put to us that this expansion in the role of the magistracy could lead to an increased recruitment rate, presenting an opportunity to enhance its diversity.295
111.There was widespread support among other witnesses for increasing magistrates’ involvement in problem-solving approaches. Noting the formation of the joint working group on this issue, the Ministry of Justice told us that it saw “real potential for these “problem solving” courts to contribute to crime reduction and personal redemption”.296 The Criminal Justice Alliance also indicated strong support for problem-solving courts and magistrates’ involvement in them.297 Sheena Jowett JP considered that magistrates would be well-suited to this role:
If we were able to follow up and review our cases afterwards, it would be a very positive thing for both sides. We can engage with the defendant. We are used to engaging with people in court—we do it all the time.298
Penelope Gibbs told us that it would be a good thing if problem-solving courts allowed magistrates to specialise—for example, in Youth Court work; similarly, the Youth Justice Board recognised that problem-solving approaches might require the role of youth magistrates to be developed, with implications for their training and support.299 Professor Jane Donoghue, while accepting that a problem-solving approach was “contingent upon achieving sentencer continuity across hearings”, doubted that this would present an insurmountable problem and thought it was “certainly achievable with organisational commitment”.300 A number of individual magistrates also expressed their support for the magistracy having a greater role in problem-solving approaches.301 A more fundamental rethink was advocated by the Howard League for Penal Reform, who submitted that the role of the lower courts should be refocused towards “resolving disputes and reducing social harm” where cases involved minor breaches of the law.302
112.As noted above, the Centre for Justice Innovation raised concerns about the restrictions of the current legal framework on magistrates’ involvement in problem-solving approaches and similar concerns were raised by the Magistrates Association.303 Under section 209 of the Criminal Justice Act 2003, magistrates may impose a Drug Rehabilitation Requirement (DRR), comprising structured treatment and regular drug testing tailored to individual needs, as part of a community order (CO) or a suspended sentence order (SSO); and under section 2010 of the 2003 Act, the court may require the offender to report back at monthly intervals for the DRR to be reviewed. However, supervision powers are less extensive for other community orders. Under section 178 of the 2003 Act, the Secretary of State has the power to allow courts to review community orders—a provision first used in relation to the former North Liverpool Community Justice Centre (see paragraph 107) and subsequently extended, but only to a further twelve magistrates’ courts. In relation to the Youth Court, the Secretary of State has yet to bring into effect the power of magistrates to review youth rehabilitation orders.304
113.The evidence we have received suggests that many magistrates are eager to adopt problem-solving approaches when dealing with offenders sentenced to community penalties. We are sympathetic to this idea. Regardless of the Government’s future policy direction on dedicated problem-solving courts, we recommend that legal restrictions be lifted so that suitably trained and experienced magistrates can supervise community orders in all courts, provided that consistent sitting can be arranged.
114.We do not yet know if the Government will decide to develop a strategy for piloting problem-solving courts. If they do so, we conclude that magistrates will play a central role in ensuring the strategy is successful. In these circumstances, we recommend that magistrates be fully consulted on the approach that is taken.
Giving magistrates a broader remit
115.Magistrates are governed by the Lord Chancellor’s eligibility criteria305 that exclude them from the magistracy if they fulfil any one of a number of roles considered to be in conflict with their judicial office: for example, membership of a Community Safety Partnership, Restorative Justice Panel or Youth Offender Panel. They were not permitted to serve as members of the former Probation Trust Boards in their own area, although they could attend meetings as observers or in advisory capacity. The submission from Transform Justice argued that, compared to ten or fifteen years ago, “magistrates are very circumscribed in what they can say, who they can meet and the roles they can take up outside the court-room.” The organisation questioned whether these restrictions in fact threatened judicial independence. Penelope Gibbs expanded on this view when she gave oral evidence to us, suggesting that “the very point of having a lay magistracy is for them to be part of the community and to be able to influence … things happening in the criminal justice system and in the community.”306 She went on to say:
There are always possibilities of conflict. For instance, someone could sit in the House of Lords or in the House of Commons as a recorder, and people still would not stop them commenting on criminal justice policy … . It seems to me not to respect people’s ability to make judgments and to declare interests where necessary. It also deprives us of the experience that being in court produces.307
116.Many of those who gave evidence to us suggested that the role of the magistracy might be broadened. A common wish was for magistrates to be more consistently involved in the independent scrutiny panels for Out of Court Disposals (OOCDs), now established by most police forces to monitor the way that OOCDs are used and overseen by Police and Crime Commissioners. It has been noted elsewhere that the arrangements for these panels vary considerably between forces in terms of scope, membership and frequency of meetings308 and Dr Simon Wolfensohn argued that clear guidelines were required to ensure consistency in the panel process.309 It was also suggested that Youth Court magistrates should be allowed to serve on Youth Offender Panels,310 potentially with a scrutiny role.311 Several witnesses thought that magistrates should be permitted take on an active role within restorative justice initiatives,312 including neighbourhood justice panels—an approach piloted by the Government in 15 areas to deal with problems suitable for informal resolution, such as anti-social behaviour and neighbour disputes. Nicola Silverleaf JP favoured building more effective relationships between magistrates and their local Community Safety Partnerships313 and also thought that magistrates might have a role within Transforming Rehabilitation, by looking at whether it was working successfully in individual cases.314 Similarly, Peter Dawson expressed surprise that the magistracy now had so little influence over probation.315
117.When we put it to Lord Justice Fulford that the role of magistrates might be expanded, he reasserted the importance of independence and went on to say that magistrates
must not in any way be involved in organisations, campaigning groups or other situations where it could be seen that they were in some way being party political or were being involved in political issues in their role as magistrates.316
Lord Justice Fulford also pointed out that magistrates are permitted to participate in a wide variety of organisations, including crime prevention panels, the family mediation service, Independent Monitoring Boards, local children’s safeguarding boards and the Parole Board.317 Senior District Judge Riddle then explained that a sub-committee of the Judges Council—which included representation from the Magistrates Association—was examining “whether there is any justification for a difference between the rules for the magistracy and for the full-time professional judiciary”.318
118.Adjudications on prison discipline matters are currently conducted by District Judges. The National Bench Chairmen’s Forum suggested that magistrates’ skills made them well suited to conducting them, possibly by video link,319 a view that had support elsewhere.320 The senior judiciary stated in its written submission that it did not think there were any objections in principle to this change, although practical and costs implications should be considered.321 We explored this point further in oral evidence and Senior District Judge Riddle explained that, as prisoners are often unrepresented, hearings may be more inquisitorial; in addition, he told us that prison law is quite complicated. Another practical concern was that prison adjudication rooms would be too small to accommodate a bench of three magistrates sitting with a legal adviser.322
119.It was also put to us that magistrates should have a more extensive role within civil and tribunal jurisdictions,323 including issuing civil injunctions: the Ministry of Justice foresaw the role of the magistracy in civil injunctions developing “into a more problem-solving approach similar to that envisaged in the criminal courts.”324 An expanded role in civil injunctions was favoured by 63% of respondents in the Magistrates Association’s survey of its members.325 Sheena Jowett JP said she had “no problem whatsoever with engaging in the civil jurisdiction” but asked that magistrates be trained for this.326 The National Bench Chairmen’s Forum explained to us that magistrates’ courts already have a limited civil jurisdiction, including making anti-social order injunctions for youths, crack house closure orders, non-molestation orders and appeals from licensing bodies and local authorities. It argued that further use could be made of magistrates’ skills by extending this jurisdiction “to include less serious dispute resolution and small claims track cases, evictions and so on.”327 Jo King JP expanded on the Forum’s point in oral evidence:
I see an extension of the role being possible where those skills can be utilised—where the key requirement is for the ability to evaluate evidence and make judgments, with the support of a legally qualified legal adviser to provide us with the expertise.
120.We conclude that there are clear advantages in permitting magistrates to take on additional, non-judicial roles within the criminal justice system—both to widen their own experience and to enable them to use their skills beyond the courtroom. We welcome the decision of the Judges’ Council to establish a sub-committee to consider whether there is justification for a difference between the rules that apply to the magistracy and those that apply to the full-time judiciary.
121.We accept that there is support among some sections of the magistracy for a more extensive judicial role within civil and tribunal jurisdictions, but we consider that it would be advisable at present to focus career development and training resources on maintaining and developing magistrates’ core skills within the criminal and family courts. However, we recommend that the feasibility of suitably trained and experienced magistrates undertaking prison adjudications by video link, with the support of a legal adviser, be examined.
122.We also recommend that the role of magistrates serving on Out of Court Disposal scrutiny panels be made more consistent across the country by means of additional guidance.
266 Some driving offences are punished by licence points and/or disqualification from driving for a period of time.
267 Under Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000
268 ‘Custody plus’ was enacted by s181 Criminal Justice Act 2003 but never brought into force; designed to reduce reoffending, it would have meant every sentence of under 12 months taking effect as a short custodial period followed by supervised licence of up to 26 weeks.
269 For example, see the speech of Damian Green, former minister for policing and criminal justice, 14 August 2013
272 Letter from the Rt Hon Michael Gove MP, Secretary of State for Justice, to Bob Neill MP, 21st May 2016
275 Assault occasioning actual bodily harm (ABH) under section 47 of the Offences against the Person Act 1861 carries a maximum penalty of three years’ custody.
276 Sentencing Council, Revised definitive guideline on determining whether cases should be dealt with by a magistrates’ court or the Crown Court; March 2016 http://www.sentencingcouncil.org.uk/publications/item/allocation-guideline-revised/
277 For example, Transform Justice [MAG0070]; Vivian McCarthy JP [MAG0085]; Jacqueline Alexander JP [MAG0086]
290 Under Section 178 of the Criminal Justice Act 2003, the Secretary of State has the power allow courts to review community orders. This power was first used in relation to the former North Liverpool Community Justice Centre and was then extended to a further twelve magistrates’ courts.
292 Changing Lifestyles, Keeping Children Safe: an evaluation of the first Family Drug and Alcohol Court (FDAC) in care proceedings, May 2014. FDAC Research Team, Brunel University: Professor Judith Harwin, Dr Bachar Alrouh, Mary Ryan and Jo Tunnard http://www.nuffieldfoundation.org/evaluation-pilot-family-drug-and-alcohol-court
301 For example, Norfolk Bench [MAG0015]; Peter Lindley Ullathorne JP [MAG0016]; Dominic Goble JP [MAG0062].
304 Under Paragraph 35 of Schedule 1 of the Criminal Justice and Immigration Act 2008.
305 Ministry of Justice: guidance on eligibility; Lord Chancellor’s Directions, Appendix 2B, July 2013
312 Cleveland and County Durham and Darlington Judicial Business Group [MAG0019]; Criminal Justice Alliance [MAG 0048]; Professor Jane Donoghue [MAG0082]; Politeia [MAG0064]
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17 October 2016