Originally published in The Times Law
The idea of ordinary members of the public deciding 95 per cent of criminal cases seems radical. Yet that is local justice, as operated by magistrates for 650 years in courts up and down England and Wales. Now, though, the system faces something of an existential crisis: numbers and the workload are in decline; courts are being closed and new young recruits are in short supply.
No surprise, then, that morale is low, as confirmed by a report last month by the Commons justice committee. It finds “sufficient evidence of low morale to cause concern” as well as “serious problems with recruitment and training” that have to be addressed as a “matter of urgency”.
In principle there is no lack of government support. The committee finds that there is “evident goodwill” towards the magistracy — but that it has not been translated into “any meaningful strategy for supporting and developing it within a changing criminal justice system”.
The MPs identify various problems: first, the age of magistrates. Only one in 25 magistrates in England and Wales is under 40 and the overwhelming majority — eight in ten — are over 50, MPs found. More than half (57 per cent) are within ten years of the retiring age of 70.
Then there is the question of numbers. The number of serving magistrates has almost halved in a decade, MPs found. The number of magistrates has fallen significantly over the past decade — the present total of 17,552 compares to about 30,000 in 2006.
Finally, there is diversity. The MPs’ report says statistics for 2016 show that 53 per cent of magistrates are female and 89 per cent are white. The latter figure is comparable to the proportion of overall population that is white, but many benches have no, or very few, black, Asian and minority ethnic magistrates — and only 4 per cent declared themselves to be disabled. MPs said that they recognise the valuable expertise of many older magistrates, but urged the Ministry of Justice to undertake a “workforce planning exercise” at the earliest opportunity. A key problem is that employers are not willing to give employees time off to serve on the bench. One answer, MPs suggest, is a kitemark scheme that recognises and rewards employers who support magistrates.
All this is set against a context of falling crime and a smaller workload; coupled with court closures. Bob Neill, MP, the Conservative chairman of the committee, said: “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. We therefore recommend that, as a matter of priority, the Ministry of Justice, together with the senior judiciary, develop an overarching strategy for the magistracy — to include workforce planning, magistrates’ training and the wider promotion of their role, especially to employers.”
The Magistrates’ Association agrees. Malcolm Richardson, its chairman, says: “It’s important that the bench reflects the community it serves as best it can, but change doesn’t happen overnight. We suggest the government supports our “magistrates in the community” initiative with funding to engage with hard-to-reach groups. Without funding we’ve spoken to a quarter of a million people; just imagine what we could do with government support.
“As the report recognises, diversity among magistrates is not just ethnic and racial, it must include all under- represented groups, such as those with disabilities and a broader age range. In relation to the latter group, that’s why we’re glad the select committee has taken on board our view that employers should be incentivised to help bring balance to the age profile.”
In the light of courts’ modernisation and the move to paperless trials, magistrates need core training, MPs say. They urge a “comprehensive reivew of magistrates’ training needs” and a continuing professional development (CPD) programme. Again, the proposals are in line with those of magistrates themselves. The additional benefit of a CPD scheme is that employers can see the value of encouraging staff to volunteer as part of the magistracy. Magistrates give more than two million hours of public service annually, dealing with roughly 95 per cent of all criminal cases; they therefore deserve the best training to match their commitment. This should include appraisals and a system of performance-review for those who need help in the role.”
Penelope Gibbs, the director of the charity Transform Justice, says: “This report shows that the needs of the magistracy have been neglected by the government and the senior judiciary. Funding for magistrates’ training has been cut, they have not been consulted on major changes, and their numbers have been cut by a third in the past eight years. They are now less diverse than they were in 1999.”
Meanwhile, magistrates also need a revamped role. One unimplemented measure sitting on the statute book would double their sentencing powers to 12 months. MPs back the change. Richardson says: “This is a vindication of our calls for magistrates to be given greater scope to do their job via 12-month sentencing jurisdiction. It represents a victory for common sense and a signal of confidence in the magistracy.
The reform would “help magistrates free up the Crown Court by delivering timely and proportionate justice for victims much more quickly at the magistrates’ court level”. And if the new lord chancellor backs the principle of problem-solving courts, as she has indicated, this could also open up a new, more active role for magistrates, MPs suggest — and they can play an “essential” part in any future strategy.
In all this, there are fears that the concept of local justice is being sidelined. Court users should be able to reach the court venue within an hour, MPs says. However, if Camberwell Green magistrates’ court is closed, does it feel local to have to travel to Croydon? Richardson says: “The sound administration of justice is entirely contingent on accessibility, so we urge the government to consider this very carefully when looking at alternatives.
“Our member survey, which fed into the report, shows magistrates are dedicated public servants but we’re acutely aware of challenges to morale . . . ensuring the magistracy is listened to on large-scale reforms is vital. We’re routinely called the ‘central pillar of the system’ by government, but we need more evidence of that.”