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July 13, 2018

Crisis what crisis? Magistrate numbers cut by half

This week I met someone in their 30s who had applied to become a magistrate. She happens to be married. In her interview, one of the panel asked her if she had discussed applying to the magistracy with her husband and what he thought about it? Sadly I’m not surprised by this outrageous line of questionning. The magistracy is ovewhelmingly old, white and middle class partly because it recruits in a old fashioned and untransparent way. New figures show 55% are over 60 and only 12% BAME.

They don’t collect figures for the class of existing magistrates or of new recruits. But experience and anecdote suggests that magistrates are as middle class as ever. And there seems scarce interest in government or the judiciary in broadening the pool – there’s no proper budget for advertising vacancies, a shrinking number of magistrates overall (numbers have nearly halved in ten years), and a perception that diversity is only a problem for the paid judiciary.

But faith in the magistracy as a worthwhile institution is ebbing away. The Secret Barrister in their best- selling book “the Law is Broken” criticises magistrates for having insufficient understanding of the law: “In what other area of public life do we allow amateurs to carry out the functions of qualified and regulated professionals?…No one sensibly suggests that we keep education cheap by using volunteer teachers”. The problem for magistrates is that their perceived lack of competence inspires distrust amongst lawyers while their lack of diversity undermines confidence in those communities most likely to be in the dock. David Lammy MP highlighted “a fundamental source of mistrust in the criminal justice system among BAME communities is the lack of diversity among those who wield power within it”.

I sat as a magistrate myseIf and am a supporter of the principle of judgment by peers.  But those peers need to be truly representative of the people if they are ever to maintain public and legal confidence. Just looking at the application form to be a magistrate would put most people off. It cannot be easily filled in online. It states that “no formal qualifications are required to become a magistrate” but then asks what educational and other significant qualifications candidates have. Candidates are also asked for three personal references and to describe what “hobbies or recreational activities” they do in their “spare time”. No wonder few people from poor communities or with few qualifications apply to be a magistrate.

The application form for the magistracy is a symbol of the current institution – under-resourced and under scrutinised, stuck in the past with no one in power seeming to care. Recommendations for reform by David Lammy and the Justice Committee were kicked into very long grass. But the government’s focus on reducing short prison sentences may prompt a light to be shone in this dark corner. Ministers are frustrated that magistrates and judges are meting out 60,000 useless short prison sentences every year. Whether they introduce legislation to ban short sentences or not, we need to create a bench that is truly representative of the people, and which has the wherewithal and training to sentence effectively.

NB This is a version of an article published for the Times the Brief