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January 14, 2017

Magistrates and district judges – two sides of the same coin?

Magistrates and district judges (DJs) occupy the same court space and do more or less the same job, presiding over the majority of criminal cases, but there have always been tensions between the two “camps”.  After these tensions erupted into the letters page of the Times a few years ago a senior judge suggested that it was unseemly for this internecine war to be played out in public.  Suppressing open debate did not however eliminate the frustrations felt by some magistrates about district judges, and these found a new outlet last year when the Justice Committee held an inquiry into the role of the magistracy. Many magistrates wrote very positively about the relationship between lay and salaried judges, but others thought there was an imbalance – that the decrease in court workload meant DJs were given preference in cases which would normally be given to magistrates. One magistrate said when there was a shortage of cases their own work would be cancelled last minute in order to be handed to DJs. Some touched on the thorny issue of whether anyone should preside over cases alone, as district judges do: “I do not believe that District Judges are appropriate – no-one else in the country has the power to be judge, jury and executioner! One person should not be permitted to carry out all of these roles.”  Magistrates in most cases sit in benches of three.

The Committee concluded on the relationship that: “We recognise that, in practice, there are difficulties in balancing the work of magistrates with that of District Judges, and that District Judges must be kept occupied because of their salaried status and the need to maintain their competence. However, it is also important to retain magistrates’ competence and to value their time as volunteers”.  The government, in response to the Justice Committee, said they would review a protocol governing the relationship. But no mention was made by either the Committee or the government of a major elephant in the room – the respective numbers of DJs and magistrates recruited.

Since 2009 the number of magistrates in England and Wales has fallen from 29,270 to 17,552 (April 2016).  I predict that this year the number will have fallen by at least another 1,500. This reduction in numbers is justified by government because court workload has fallen.  But in the same period, despite the falling workload, the number of district judges has been maintained at c 142.  This means that district judges are doing a much greater share of court work than previously.  And the government has just announced that they will be recruiting another 17 district judges.

Why is the government maintaining district judge numbers at the expense of magistrates?  It is a bit of a mystery to me. I think DJs are excellent, but they are much more expensive per case (as the MORI research report of 2011 concluded), and deputy district judges must now be more expensive still since a court judgment compelled government to grant them pensions.  I don’t think the government is prejudiced against magistrates, but they must have concluded that they want district judges to do an increasing proportion of cases in magistrates’ courts.  It would be great to understand the official rationale for this. Particularly given that the falling number of magistrates hampers efforts to diversify the magistracy.

NB Jenni Ward’s excellent new book on Transforming Summary Justice analyses the relationship between district judges and magistrates