The Centre's Director, Phil Bowen, reflects on part one of the Independent Review of the Criminal Courts, and how we can deliver a courts system shift.
In our strategic policy paper, Systems Shift, published in June 2024, we argued that a new Government needed to reform how our criminal justice system operated, as part of a wider response to better manage likely future demand. In the past couple of months first David Gauke and now Sir Brian Leveson have delivered their reviews of sentencing and criminal courts respectively, both of which point in the direction of rebalancing the system.
It is clear from both reviews, especially Sir Brian’s that part of the solution to the demand crisis is to move way more cases out of court and resolve them through out of court resolutions. Pre-figuring Sir Brian’s review, yesterday’s Daily Telegraph emblazoned the headline “Thieves and drug dealers to avoid court.” Quite right. We know that the evidence suggests that out of court resolutions are often our best, swiftest response to the lower harm crimes— the current alternative is too often a wait for a magistrate court hearing followed by a fine that often goes unpaid. Instead, out of court resolutions, when delivered effectively, can mean a swift response from the police, referring people into the treatment they need. Forthcoming research from Transform Justice shows that very often this is exactly what victims want.
Sir Brian’s review is right, however, to recommend that the current approach to OOCRs requires a “standard approach to ensure better administration of Out of Court Resolutions.” We have worked with police forces across the country and with the National Police Chiefs Council to raise the bar on the quality of delivery of OOCRs for years and have been waiting for the Home Office and the Ministry of Justice to take the initiative and develop a national delivery framework.
Moving to courts, the centre of Sir Brian’s review, again we see in his diagnosis and his solutions much of our own work. At its heart, Sir Brian drives at shunting a range of cases that currently are sitting in expensive, over-capacity Crown Courts into the magistrates’ courts by “removing the right to elect (for jury trial) for certain low level offences. The removal should, in my view, apply to offences with a maximum sentence length of less than or equal to two years.” This is similar in effect to our proposal to reserving all cases where the offence could attract a prison sentence of between 6-24 months exclusively to district judges and keeping them within the jurisdiction of the magistrates’ court. Similarly, Sir Brian’s review also chimes with our recommendations on changing how allocation decisions are made and on appeals from magistrates’ courts.
Nonetheless, while I strongly welcome efforts to diversify the magistracy and to better equip the magistrates courts with technology, I can’t help but feel some of the more convoluted proposals, such as the creation of the Crown Court Bench Division to hear either way offences which carry a prospective sentence of three years or less, is a work around that reveals something— a lack of confidence by Government officials and maybe by the senior judiciary in the quality of justice in the magistrates’ court. As we have pointed out before, other countries’ lower courts hear cases of much higher seriousness, reserving full jury trial to much more serious cases. Sir Brian has not gone down that road and has proposed a range of more complicated procedures when, in my view, he should have cut the gordian knot with a single stroke. I don’t really believe that anyone going into a magistrates‘ court can honestly agree with Sir Brian’s (tentatively expressed) view that the low proportion of appeals from the magistrate courts may indicate “that there is considerable satisfaction from defendants and legal representatives… in the magistrates’ court.” I think the low level of appeals may actually be the result of a grimmer and more dispiriting set of facts: the lack of access to representation and the low expectations of the people who come to court.
We have long argued that we need to dramatically raise the quality of and respect for the work of the magistrates’ court and bring it into line with international best practice. Real consideration needs to be given to how these cases, often at the lower level of seriousness but dramatically important to the quality of life in our communities, are heard, presided over and resolved and not just see magistrates’ courts as the legally uninteresting first part of the court pipeline.
There are other missed opportunities here. Despite a whole section in the report on magistrate courts, little mention is made of youth courts and how to improve their operations. As recently proposed by the Domestic Abuse Commissioner, we proposed the Review recommends the roll out of the existing Specialist Domestic Abuse Courts and adapting some of them to trial international best practice from specialist sexual violence courts. He unfortunately makes no mention of this type of specialisation.
All that said, we at the Centre have always proceeded on the basis of half a loaf is better than no loaf. Sir Brian’s review has rightly recognised that the current way our courts are organized and structured is not sustainable and that invocations to magically wish away the problems of complex demand and limited resources have to be seen as noises off. What Sir Brian’s review does is start a conversation in Government, in the judiciary and in wider social and legal society about the state of justice in our courts and lays down the challenge to us all about how we deliver a courts systems shift.