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Are we about to see the end of the magistrates’ court?

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New reform plans may plunge the magistracy into an existential crisis

magistrates

The doors into the library of the Supreme Court of the United Kingdom are engraved with a facsimile of the Magna Carta, signed by King John of Runnymede in 1215. One of its two most important clauses has been picked out: “To no man shall we sell, or deny, or delay right or justice” (article 40).

However, this famous quotation from Magna Carta seems to be gradually losing its effect, given the increasingly widespread unaffordability of legal advice and representation. The effect of court closures, particularly magistrates’ courts, means an increased travel cost for court users, and the severance of magistrates’ links with their local communities.

The reasons for this are not far-fetched.

The Ministry of Justice and senior judiciary recently put forward plans for reforms, representing a profound change in how justice may be done in England and Wales in the future. The purpose of this article is to consider the effects of these reform proposals, particularly with regards to the desire to close supposedly under-used magistrate courts. This follows the argument that these proposals signal an end to the prominence of magistrate courts in England and Wales.

Magistrates’ courts date back around 650 years. Their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace. From that point, and continuing today, Justices of the Peace, now magistrates, have undertaken the majority of the judicial work carried out in England and Wales (about 95% of criminal cases are dealt with by magistrates).

The importance of magistrates, and indeed magistrates’ courts, cannot be overemphasised.

It is assumed that the diversity and humanness that magistrates bring to the court gives the public confidence in the judicial system. Lord Irvine, while he was Lord Chancellor in 1999, reiterated this point when launching the campaign for more diversity in magistracy:

Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner-ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. The magistracy should reflect the diversity of the community it serves.

Nevertheless, the magistracy has had its own share of criticism.

In a report in 2014, Transform Justice, a charity group that campaigns for a fairer justice system, found that the number of magistrates has freefalled, with a 28% decline noted since 2007. On a similar note, it was reported that magistrates are “considerably older, whiter and more middle class” than the general population and less diverse than they were in 2000; spurring up concerns that the magistracy’s constantly shrinking and facing an existential crisis.

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However, the institution is set to face its most difficult challenges to date in the near future, challenges that perhaps threaten its existence.

In a consultation paper presented to the UK parliament and released in September 2016, the Ministry of Justice and senior judges jointly made proposals for what could be tagged ‘swift and certain justice in a modern justice system’ — a principle among which is a closure of underused magistrates’ courts for a more technological and faster online justice system.

The desire to close rural courts, justified by the clichéd government argument of ‘swift justice’ and ‘cost-efficacy’, has sparked a lot of fears about the government’s commitment to access to justice, especially for the poor and vulnerable members of the society. The decision to sell buildings to fund modernisation may not be so ridiculous, but reports showing that some may have sold for as little as £1 says a lot about the effect of these reforms.

There are many who share similar resentments for these proposals, but perhaps these reforms are inevitable in a modern world. Since the spending review commitment of £700 million for court technology last year by the HM Treasury, details of what reform really means — beyond new iPads in court and a war on paper files — have been much anticipated. The reforms are expected to deliver savings of approximately £200 million a year from 2019-20 onwards.

This raises the question whether access to justice could be sacrificed under the guise of saving money. Despite campaigns launched by local court users, only five of the 91 targeted for closure — nearly a fifth of all courts and tribunals in England and Wales — were reprieved. The closures were justified on the grounds that, on average, the 86 courts closing were only used for just over a third of their available hearing time. More than 97% of citizens would still be able to reach their required court within an hour ”by car”.

Nonetheless, the grave implications of these reforms cannot be over-emphasised. As director of the Centre for Justice Innovation Phil Bowen noted, if more cases are heard online, and if more court buildings are shut, are these reforms pulling apart the case for continuing to have a lay magistracy in England and Wales?

In his words:

But there is, of course, something deeper about the connection between court closures and the future of the magistracy — it unpicks the thread that has tied magistrates to their communities for so long. It is a direct assault on perhaps the magistracy’s most cogent argument for existence: that magistrates know their patch and know what matters to their communities.

Perhaps it’s time to accept our lay magistrates have now out-lived their purpose.

Omotayo Akorede is a final year law student at Bangor University.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

39 Comments

Constructively Anonymous

That was constructive

Anonymous

The fact that their refurbishing the buildings first at tax payers expense seems very corrupt. I hope polotitions aren’t getting back handers

Robin Murray

I was with you up to your last sentence. JP’s are a vital part of our democratic society. The idea that only those on a Government pay roll should dispense local justice is an unhealthy concept. For all their flaws local justice dispensed by local JP’s is worth defending. A good well written piece.

Ciaran Goggins

What gives anyone the right to take six months out of your life? Why is there no consistency? East Anglia “soft”, south coast “hard”.

Anonymous

Can’t do the time? Don’t do the crime..

Ciaran Goggins

Four years for writing “Up the riots” on Facebook? Don’t be a total and utter (cont p.52)

Anonymous

And what about witnesses who have to travel miles through no fault of their own?

Anonymous

Colour of law, CRIMINAL gloss, law society clerk to the justices that hold the power and direct the magistrates. There is no equality in law and no man or woman has the right to force another to servitude to a rule of a society to which they do not belong. Victimless crimes are wilful, belligerent act of terrorism in order to generate funds. The system is corrupt and needs to go. Subterfuge and manufactured consent is the norm.

Trumpenkrieg

How does it even follow from a proliferation of cost cutting measures in the CJS that magistrates have had their day? Have you forgotten the unique value for money that magistrates bring to the table, namely that they render their services voluntarily?

Anonymous

This is one of, if not the, most cogent, well-written things I’ve read on this website since it’s inception.

I don’t know you (the author) from adam, but I reckon you will go far lad. Good luck

Anonymous

I mean the author of the article, not any of the comments.

BLM

“LAD”?

“LAD”?????????

As in “BOY”????!!!!!

This person is a MAN.

And you… are… a…. RACIST!!!!!!!!!!!!!

Not Amused

As a young person I used to be strongly against magistrates. I thought that judges were experts and all very clever. I think I also, wrongly, thought that they would all think like me or somehow be better than me – Hercules if you will.

Now I think I am coming to see the value of lay influence on justice – particularly at a lower, or ‘less technically complex’ level. You can believe in legal positivism until the cows come home but at the end of the day justice is a product. What the people who buy that product want is ‘common sense’. There has been much deriding of common sense in the last 4 decades (I think largely because it either can’t be, or isn’t, taught in schools) and it is seen as somehow in conflict with ‘intellectual’ thought. I disagree. My experience at the Bar has been (and continues to be) the gradual process of learning common sense by experience.

I think magistrates bring these experiences with them and are therefore extremely valuable. Since 1997 we have lived through a protracted period of politicisation of our society and what we used to call the establishment. It has become uniform in its way of thinking and blind to opposing political views (which it often openly mocks or bullies). That itself is unhelpful and I think, unhealthy in the long term. No one, and no ideology, is right all of the time.

There is a great deal of value in the diversity of thinking which magistrates can bring and I am glad they survived the vehement attacks of my younger self. They do have flaws. They are often too dependant on their clerks or on the latest ‘training’ they received. They convict far too willingly in crime. But judges too have their faults and are more susceptible to ‘group think’ or an echo chamber mentality.

Anonymous

I read somewhere that contrary to perceived wisdom studies have suggested that intelligent people are more susceptible to groupthink than their thick counterparts.

In other words, the idea that clever people are more rational is demonstrably false.

Barrister

Can you remember where you read this? Would be interesting to read the study.

Anonymous

No, afraid not, it was mentioned in an article by Toby Young (so to be taken with a pinch of salt perhaps!)

Anonymous

You are so full of shit. Your time at the bar, please. If you were a practicing barrister you wouldn’t have the time to sit and spew this garbage.

Lincoln's Out

Practising*

Anonymous

I’m at the Bar and I believe NA probs is too. Just because you are a barrister doesn’t mean you don’t ever have free time. Especially at the start.

Good comment above, NA (for once!)

SG

Hey Not Amused,

I find your views very interesting. I have been doing research on the number of people sent to prison for the community charge/council tax. I am doing a systemic challenge but I have to say, I am bit concerned that magistrates largely reflect one very small part of society, generally white retired men. I know this from experience but I have really scrutinized (unreported) decisions over the last 26 years. I have to say I am horrified by some of the decisions I have come across (if you can find it see Ilkestone Justices ex Parte Smedburg & Smedburg) . I have interviewed a lot of magistrates and I am concerned of two things, the lack of understanding of the legal powers of the bench and the lack of understanding the lawyers in the room have of the other areas of law.

I’d like to hear your views on that point.

Anonymous

I’m a magistrate and I’m a 24 year old girl also studying for the bar.

Anonymous

Why do Legal Cheek insist on specifying where people go to university? It’s like a red rag to a bull for these trolls and LC love it. Oh yes, censor the sexist comment or the comment you don’t particurlarly like because it breached your unknown comment policy, but any bullying on university name is perfectly acceptable. Bangor University I have never heard of personally but people are going to have a field day with this.

Anonymous

What is of greater concern is that the author doesn’t make an argument. They just list various facts about reform, before suggesting that this means magistrates have had their day.

Anonymous

You cannot get far away from the fact that in a parliamentary democracy based on capitalism, where the conduct of the poor and bewildered easily triggers statutory crimes, most of the clients of magistrates courts are guilty.

It is hard to fund a middle class living for those who prosecute, defend and clerk this harvest. Someone has come along and realized that the value of a Magistrates Court for property developers is likely to be considerable – Wetherspoons and Flats will be the order of the day, I expect.

It won’t be long before the civil service decide that the diesel costs and management time of the Police wagon for first hearings about an hour away can be saved by having Magistrates attend at Police Courts. A separate budget will be identified to make the extensions to Police stations, I wager, and the capitalist economy will continue with local MPs and Councillors cheering it on.

Hopefully Elvis will return and sort everything out with a song that everyone will enjoy, rich and poor alike 🙂

AB

Of course, there was a time when the Magistrates’ were invariably housed next to the police station and the police themselves prosecuted the cases!

Anonymous

Yea, in hindsight, that setup worked well. Especially for defendants from minority groups…

Said no one. Ever.

Anonymous

I hate to say it and I am sorry for doing so but this is a terrible article with no substance or critical thinking. It is just regurgitation with a massive unfounded leap that Magistrates are no more. Hopefully one day you will practice criminal law and will understand how Magistrates (albeit I am loathed to admit it) are an important component of the criminal justice system still.

Anonymous

HE SAID JUST THAT. READ THE ARTICLE FOR THE LOVE OF

Anonymous

Anyone who has had to deal with the unpredictability and occasionally lunacy of the lay bench will welcome this change.

DavidBeckham

what exactly is “swift justice”? an oxymoron.
Does it mean a deputy district judge making up her mind after a cursory glance at the paperwork?
Justice without hearing evidence? That would be swift!
Cutting cards? Drawing lots? That would be swift.

Anonymous

I’m more bothered by the greater penalties that are now available to the mags. Unlimited Level 5? Longer custodial sentences?

Soon we’ll be back to the days of puce-faced justices ordering hand lopping and the prison hulk.

A Lawyer.

I regret to say the article is very poorly written both in terms of its use of English and it’s structure. The conclusion came as a surprise as it was not supported by the discussion which preceded it.
The reality is that lay justices (who not only try 95% of crime but play a crucial role in the Family Court) contribute an immensely positive element to the justice system, both in terms of common sense and local knowledge and in terms of providing a panel of three which to some extent self regulates in a way which a single district judge cannot. The cost of replacing their function with salaried and pensioned career judges would be very great and the alternative of providing justice by administrative decision would undermine the rule of law as well as denying justice in many cases.
The removal of local courts, accessible to the poorest in society, who are frequently those most likely to use them and least likely to be able easily to travel an hour or more (or arrange child care or get time off work), is an affront to justice and yet another example of this government’s assault on access to justice.
We live in very depressing and worrying times and fairness and justice for any but the rich and powerful are being quite rapidly eroded.

Anonymous

The conclusion was was clearly an attempt at irony you complete and utter robot

Alas Alas Alas...

No experience of the Mags court, but in Scotland we have the JP court. JPs are unpaid and are not legally qualified. Having been in almost every JP court in Scotland, it seems to me that your typical JP is a white, retired, male retributionist. Get rid I say!

Crimly Fiendish

We are fortunate in England to have a criminal justice system where, in the vast majority of cases, you are tried by a group of your peers, either via the jury or unpaid volunteer citizens (JPs) who are not employees of the state.

There are Magistrates from all walks of life- dinner ladies and dustmen to local squires and retired businesspeople. It varies from place to place, true, but that’s not a reason to get rid of it.

I find that the anomaly is being tried by a weary, cynical, battle-hardened District Judge. An employee of the MoJ, beholden to targets and the latest political drive for speed and efficiency at the expense of justice, who has already read the case papers and already made up his/her mind with no recourse to a discussion of the case with anyone else.

In my decade-long experience of the Mags Court, I take the view that a bench of JPs with an impartial Legal Advisor gives a far fairer trial to all concerned.

In the USA, that famous proponent of the jury trial, most states try misdemeanours (summary only matters) by judge alone at a bench trial. The conviction rate in most states is over 90%.

Anonymous

Ok, this article (as noted above) could be better written but IMO how many of you were writing a published article during undergrad? Not many.

Perhaps instead of complaining, you could note how the author could do better. My tip: the last point made doesn’t follow at all/no explanation given and can be fixed with an additional paragraph or two.

Anonymous

Err, let’s ignore the fact that my comment wasn’t too sharply written and just focus on the point I made

A lawyer JP

This was very much an undergrad essay with a conclusion apparently thrown in as the writer had reached the required number of words. B+ perhaps. Magistrates undertake a vital role in the CJS. They undergo frequent training and competency assessments. Some are even actually legally qualified!! Yes, there have been recent challenges and not everything in the garden is rosy…far from it.

I suspect the game plan of the MoJ is indeed to see the end of the unpaid volunteers keeping the CJS going. But before anyone crows over its demise, ask yourself what would replace it.

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