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August 6, 2017

Are magistrates second class citizens in the judicial hierarchy?

Magistrates used to be almost self-governing. They controlled the budgets of their court, the employment of court staff, the recruitment of new magistrates, and the disciplining of peers. Now, they no longer have control over any of these, and are arguably less independent than the paid judiciary. Paid judges may be less inclined to break the (unwritten) rules on judicial independence, but magistrates are more constrained in what they can say and do inside and outside the courtroom – and by the disciplinary process for transgressors. (This blog is an extract from Transform Justice’s new publication, Rethinking Judicial Independence).

Discipline

Its pretty difficult to prove that magistrates are subject to stricter rules than paid judges, but anecdotal evidence suggests they are. Magistrates are subject to discipline by an extra body – the advisory committee, which paid judges are not.  And a civil servant (the justice’s clerk), is involved in each magistrate’s disciplinary process, which definitely doesn’t happen in the case of paid judges.

I can’t believe a paid judge would be formally, publicly reprimanded for being in the wrong room:

“Mr Colin Speight, a magistrate appointed to the North Northumbria Local Justice Area, was subject to a conduct investigation after he entered the magistrates assembly room at Bedlington Magistrates’
Court when he was not sitting as a magistrate. The Lord Chancellor and Mrs Justice Cheema-Grubb, on behalf of the Lord Chief Justice, considered that Mr Speight’s behaviour fell below the standards
expected of a magistrate and have issued him with formal advice.”  (JCIO investigation statement 0617)

Speaking out

Paid judges who are not in very senior positions seldom speak directly to the media. However, they use comments in court to convey messages to the wider world, notably about the constraints of sentencing. They are not forbidden from speaking directly to the media, and can refer to the principles of conduct for guidance. Magistrates frequently want to engage with the press – for instance, by contributing to a local newspaper article or writing a letter to a national newspaper. They are nearly always dissuaded from doing so, though, either by their clerk, or by a bench chair. When magistrates do interact with the press without permission, they get into big trouble.

Engagement with criminal justice agencies

Magistrates have gradually been stopped from participating in forums where local criminal justice matters are discussed. They used to be on local probation boards and sat on community safety partnerships (CSPs) but the former no longer exist, and magistrates were banned from the latter in 2012. They might wish to participate in a local criminal justice board (LCJB), but again they cannot. However, each LCJB has a circuit judge from the local area as a point of liaison. The judge is independent of the board itself but receives all of the minutes and is encouraged to attend the meetings, especially when issues relating to the judiciary arise.

Associations

Perhaps most absurdly of all, magistrates are banned from being married to particular people, while no such ban appears to apply to paid judges. A magistrate cannot be married to a bailiff, a police special constable, or a police and crime commissioner (PCC). They also cannot be independent custody visitors and may be restricted in their volunteering – if they work for the relationship support charity Relate or sit on an independent monitoring board, they may be forced to do so in a different area to their local bench area. None of these hard and fast rules apply to paid judges.

Risky business

Why do the rules, or the interpretation of the judicial conduct guide, appear to differ so much between magistrates and paid judges? One answer may be that, as the paid judiciary has gained greater management control over magistrates, they have used the judicial conduct principles as rules to police the behaviour of ‘unruly’ magistrates. While paid judges generally do not put their heads above the parapet, and culturally are unlikely to transgress the guide’s principles, magistrates have always been seen as more maverick and risky.

When the paid judiciary had no control over magistrates, they also had no responsibility for them. As they have gained responsibility and justices’ clerks have become part of the civil service, both have imposed a more risk averse culture on magistrates. This approach has contributed to low morale in the magistracy, and to a greater gulf between magistrates and the communities they serve.

For more views on whether magistrates’ independence is being quashed by paid judges see the new report on judicial independence. And if you want to contribute a guest blog, happy to host.