We find ourselves in a place where our justice system has retreated from the communities it serves, dragging the judiciary back with it.

Judicial independence and community engagement

Posted on 04 Aug in

Phil Bowen

With the threatened boycott of the Grenfell public inquiry and the smoke from the ‘enemies of the people’ charge still in the air, Transform Justice’s new set of essays on judicial independence could not be any more timely. It explores a range of questions, from the power and independence of the magistracy, the diversity of the judiciary and their role in educating and being educated by the public.

My small contribution focuses on issues which underpin the disquiet that some have felt about the appointment of retired judge to lead the Grenfell public inquiry—concerns about how the judiciary is responsive and accountable to the communities it serves. This is not an issue that will go away. In a recent speech, David Lammy MP said that the criminal justice system itself has “little sense or understanding of…how they work for the communities they are supposed to serve.”

And yet the Ministry of Justice asserts that, “Communities are at the heart of the criminal justice system and we need to make sure that national laws and national priorities can be delivered at a local level – and that national priorities are informed by, and can respond to, the needs of local communities.” This may seem out of step with many modern perceptions, but for magistrates of yesteryear this quote nonetheless offers a sentiment that would have been received with as little sense of astonishment as if you had told them that England’s middle order had collapsed before lunch. The idea that the justice system was local, that it had some responsibility to connect to its communities, was assumed.

One can be Panglossian about the ‘good old days’, when benches sentenced people to custody at wildly different rates and there was more than a touch of the quill pen and old boys network to the reality of our local justice system. And yet, at a time of court closures and of the proposed abolition of local magistrate court areas, the sentiment that our criminal justice system, and our judiciary, should connect to communities is arguably under more threat now than ever before. As one of the essays in Transform Justice’s collection makes clear, those who make up the justice system’s most visible commitment to communities, our magistrates, speak with fondness of a time when, despite all its stuffy drawbacks, they did feel they knew their patch. Now, many reflect, often with clenched fists, on the loss of a world where the magistracy and communities connected.

This loss of connection between the judiciary and its communities mirrors a wider sea change in our justice system. As I have written elsewhere, New Labour’s support for, and impact on, local and community justice was mixed. There was “a trend toward centralization… The main impact of Labour’s reforms was to significantly centralize power at the expense of local decision making.”

Arguably, this trend has merely accelerated. Austerity in public spending has reshaped many people’s access to and experience of the justice system. As the current Lord Chief Justice said in 2014, “We live in times where, so it seems now and for the foreseeable future, the State is undergoing, a period of significant retrenchment.” That ‘retrenchment’ in the justice space has been unerring, uncompromising rules of fiscal austerity close down local, ‘empty’ courtrooms, leaving ever larger numbers of our citizenry more than an hour on public transport from a local court. That same unrelenting eye of efficiency is currently turning its levelling gaze to local justice areas, toward the idea of a single bench for the whole country, and with it, perhaps, the abolition of a local magistracy.  Today we find ourselves in a place where our justice system has retreated from the communities it serves, dragging the judiciary back with it.

Nonetheless, I am hopeful. Because the same old values, shaggy with memory and heavy with tradition, keep coming back— the belief that somewhere and somehow, our justice system and our judiciary must connect with our communities. As the current Lord Chief Justice said in a speech in 2015, “The judiciary must reflect society to maintain legitimacy: The maxim, “Justice should not only be done, but must also be seen to be done”, is ordinarily taken to require transparency, impartiality, fairness and propriety. But in a broader sense, it must also encompass the principle that the public needs to have confidence in the judiciary that serves it, so as to strengthen the legitimacy of the judicial process.” If that is indeed what we want our judiciary to do, then maybe we can see the retrenchment of the state as but a passing phase and we can once again try to connect up the justice system to its communities, and the judiciary can play a role, its independence intact, in helping it do so.

So, the question becomes how. There are a number of opportunities. Perhaps the most crucial lies in a redrawing of the role and shape of our magistracy. As a recent Justice Committee report stated, “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.” That dilly dallying must end. Instead of the slow ‘strangling’ of the magistracy, as one anonymous magistrate describes it, there could be many new roles which magistrates could take up, in addition to continuing to exercise their role in courts. These roles could include developing new approaches to resolve low-level disputes through community resolutions, before cases come to court.

As Blair Gibbs, a former advisor to Lord Chancellor Gove, argues in his essay, the introduction and spreading of problem-solving courts, an innovation we at the Centre have long favoured, would go some way to help the courts “take power and authority away from administrators and return it to the judge in court.”

We also have a golden opportunity, with the adoption of new technology, to better serve communities of need, previously ill served by our courts, and not see online processes as yet a further step back. As the Lord Chief Justice has said, “the quality of justice must be enhanced by reform and not diminished. If it is diminishing, then we have gone wrong.” In moves making the judicial process a more online system, we have the opportunity to spread legal expertise and local community advice and support, and make it more accessible and more affordable than ever before.

None of this should be a challenge to judicial independence— indeed, part of the reason these new roles are especially suited to judges and magistrates is that they would demand independence from the executive agencies of the state. To be sure, it would need to under-pinned by a commitment to training and skills, and new recruitment that emphasises the lay judiciary’s role in court as a well-spring for procedural fairness. But this new role would be much more a re-assertion of the magistracy as the principle expressions of the role that an independent judiciary can play in community engagement, rather than a revolution.

By rethinking how the court connects with communities we can regrow a court system and judiciary that is connected to its communities, its independence not just intact but enhanced, its legitimacy renewed. The realities of austerity may mean that we can’t have a local court in every town and maybe not even the magistracy as we used to know it. But that should not stop us thinking about how justice connects with the lives of our citizens.