The role of the magistracy Contents

Conclusions and recommendations

Role of the magistracy within the criminal justice system

1.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. (Paragraph 11)

2.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. (Paragraph 11)

3.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. (Paragraph 18)

4.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. (Paragraph 19)

5.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. (Paragraph 20)

6.We recommend that this additional guidance for justices’ clerks 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. (Paragraph 20)

7.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. (Paragraph 26)

8.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 about any potential extension of the Single Justice Procedure be taken into account in the preparation of that protocol. (Paragraph 26)

9.We agree that more challenging case management tasks may require the skills of a District Judge and should be allocated accordingly. (Paragraph 31)

10.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. (Paragraph 31)

Recruitment and diversity

11.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. (Paragraph 39)

12.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. (Paragraph 39)

13.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. (Paragraph 49)

14.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:

15.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. (Paragraph 57)

16.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. (Paragraph 57)

17.We 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. (Paragraph 58)

18.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. (Paragraph 62)

Training and appraisal

19.We received the clear impression that the landscape of magistrates’ training is a somewhat crowded one and we welcome the decision by the Ministry of Justice to consult on proposals for rationalising the rules relating to training for magistrates. (Paragraph 68)

20.In spite of assurances from the senior judiciary that the Judicial College receives adequate funding for magistrates’ training and that the goodwill of HMCTS staff can be relied on to provide support, the evidence that we received in the course of this inquiry from a range of authoritative sources suggests that this is not the case. (Paragraph 69)

21.We recommend that the Judicial College be provided with more funding to support magistrates’ training and that a more realistic view be taken of the ability of HMCTS staff, in particular legal advisers, to assist with training given the current pressures on their time. (Paragraph 69)

22.We were impressed by magistrates’ commitment to training and their willingness to give their time to doing it. However, we are concerned by evidence suggesting that training for magistrates is not always of sufficiently high quality. In addition we conclude that the range of training available is sometimes too narrow to equip magistrates for the role that they are expected to fulfil and to help them contribute to cultural change within the criminal justice system. (Paragraph 74)

23.We recommend that the Judicial College, in consultation with others, undertake a comprehensive review of magistrates’ training needs with a view to developing a training programme that supports a modern magistracy, taking proper account of the investment of time required from those who organise and deliver training. The review should also consider the particular training needs of magistrates who put themselves forward for specialist roles in the Youth and Family Courts, as bench Chairs and to sit as panel chairs. (Paragraph 74)

24.As part of the comprehensive review of magistrates’ training needs, we recommend that a balance be maintained between different ways of learning, recognising that online training, in spite of its convenience and cost-effectiveness, cannot provide the quality of engagement and interaction provided in face-to-face settings. We further recommend that a reasonable proportion of face-to-face training be offered at times that are convenient to employed magistrates and those with other weekday commitments. (Paragraph 77)

25.We conclude that the current system of appraisal for magistrates is inadequate, and we welcome the fact that this is currently under review. We are not convinced of the value of having a magistrates’ accreditation scheme, but the evidence that we received gives clear support for the introduction of formal arrangements for Continuing Professional Development. (Paragraph 83)

26.We recommend the introduction of a more robust appraisal scheme for magistrates, which can identify inadequate performance and impose remedial measures to address it, including reviewing of the future of magistrates who have become insufficiently committed to their role. The appraisal scheme should be linked to a mandatory scheme for Continuing Professional Development, developed as part of a comprehensive review of magistrates’ training. (Paragraph 83)

Magistrates’ court closures

27.We welcome the Ministry of Justice’s commitment to developing a detailed implementation plan for each proposed magistrates’ court closure, and in particular its willingness to look at alternative provision of services. (Paragraph 93)

28.In determining the location of alternative venues following closure of magistrates’ courts, we recommend that the Ministry ensure that at least 90% of magistrates’ court users can reach the nearest venue by public transport within one hour. (Paragraph 93)

29.Use of alternative venues has assumed a key role in the Ministry’s court estate strategy, so it is regrettable that inadequate forethought has been given to the security implications of holding court sessions in buildings that are not equipped with a secure dock. (Paragraph 94)

30.We recommend that the need for secure docks in alternative venues be given urgent consideration, in consultation with magistrates, District Judges and court staff, to identify low-cost practical solutions to potential security risks. (Paragraph 94)

31.We commend the Government’s commitment to strengthening and updating the digital infrastructure in the magistrates’ courts, but conclude that some of its aspirations have been undermined by the difficulties in delivery of changes on the ground. (Paragraph 98)

32.We recommend that full access to physical courts, including alternative venues, be maintained for the time being until facilities such as video links are fully operational. We also recommend that provision be made for upgrading inadequate video links and internet connections for courts with insufficient bandwidth. (Paragraph 98)

33.We recommend that, in the context of the comprehensive review of magistrates’ training that we have proposed, consideration be given to additional training needs created by increasing reliance on new technology, including particular communication skills required when dealing with defendants, victims and witnesses by video link. (Paragraph 99)

Expanding the role of magistrates

34.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. (Paragraph 105)

35.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. (Paragraph 113)

36.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. (Paragraph 113)

37.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. (Paragraph 114)

38.If the Government decides to pilot problem-solving courts, we recommend that magistrates be fully consulted on the approach that is taken. (Paragraph 114)

39.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. (Paragraph 120)

40.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. (Paragraph 121)

41.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. (Paragraph 122)

A strategy for the magistracy

42.The magistracy faces a range of unresolved issues relating to its role and its workload, together with serious problems with recruitment and training; we conclude that these now must be addressed as a matter of urgency. The wide range of recommendations that we have made indicate a need for strategic leadership. It is unfortunate that the Government’s evident goodwill towards the magistracy has not yet been translated into any meaningful strategy for supporting and developing it within a changing criminal justice system. (Paragraph 126)

43.We recommend that, as a matter of priority, the Ministry of Justice, together with the senior judiciary, consult widely on, then adopt, an over-arching strategy for the magistracy, to include workforce planning, consideration of the impact of court closures, wider promotion of the role—in particular to employers—and the shared role of the Ministry and the judiciary in ensuring the future of magistrates’ training. The strategy should also consider the potential for the role of magistrates to be expanded, in particular within any future proposals to develop problem-solving courts.
(Paragraph 127)

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17 October 2016