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August 6, 2017

Rethinking judicial independence – two blog posts

Today Transform Justice is sending two blog posts, one extracted from our new publication, the other inspired by it.

Are magistrates second class citizens in the judicial hierarchy? by Penelope Gibbs 

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.

 

Between a rock and a hard place by Benjamyn Damazar

This is a guest blog from an experienced magistrate – Benjamyn Damazer – inspired by Transform Justice’s new think-piece on judicial independence.

My hypothesis is that the judiciary are – and on the same logic the magistracy is – fiercely independent and currently this has been clearly illustrated in the Grenfell Towers and Charlie Gard cases.  In both of these there is a widespread accusation that the judges (in one case brought from retirement) are out of touch with the people and the issues involved, and that this debars them from acting independently or impartially. On one reading this means they are clearly independent, as they don’t have any direct connection with the protagonists. Another reading is that they are out of touch for exactly the same reason. Yet one has only, for example, to read the judgments of Mr Justice Francis to see the focus on independence based on law, and his dismissal of the merits of a popular claim, or series of claims, on social media.  But that judgment also evidences humanity and humility, an aspect widely under-reported in the press and TV media.  I assume that Mr Justice Francis has no direct personal experience of the issues facing the Gard family, any more than most magistrates have of being victims of a serious assault, or walking the streets with a bladed article.  Our independence and training enables us all to deal with the relevant issues, considering only those aspects of any allegation supported with evidence, and measured against current law and practice.

But is the delivery of justice disadvantaged by judges like us not being part of the community and, if we are not, does that matter? Until relatively recently magistrates were respected figures in their local community and typically an active part of it.  They were known by all who lived in their parish, street or town and took a leading role in community events.  Today, my neighbours possibly don’t know who I am, let alone whether I am a magistrate, judge or local crime lord. Community involvement for most judges therefore can only be through community groups and activities. This may be a tenants’ association, the village fete committee, or the local gardening or amateur dramatic clubs.  It could be and should perhaps also be through any of the many groups concerned with justice, law and order, which range from being a volunteer special constable to chairing the local probation board, being an independent custody visitor, a member of the prison visitors group, or any other grouping.  The parish in which I live has a local crime committee. (For the avoidance of doubt, it is against crime, not trying to promote it).  Others present there will be local, interested in justice and express a range of views on multiple issues.

The law and sentencing guidelines do permit judges to consider local matters affecting a community, and the impact of certain types of crime in specific areas. For the judiciary, and magistrates in particular, to know what those issues are, relies on community involvement.  Independence does not mean isolation.

Of course there are crimes for which this doesn’t matter.  Dealing with a “no insurance, licence or MOT” case requires no local knowledge whatsoever.  Our approach is typically as independent as a robot would be.  Dealing with careless driving is often easier if the bench knows the location of the alleged incident. But local knowledge is not the same as independence. Around the world we see allegations that the tribunal is not sufficiently independent, be that in religious courts, village elders’ hearings or kangaroo courts. These examples have high community involvement, but poor independence.

Our model of independence works well. We allow magistrates to make life changing decisions to serve society.  I am sure that, overwhelmingly, magistrates are sensible enough to know what will compromise that independence and what will not.  Some will err, and the JCIO can deal with that.  For the judiciary to speak out or act on issues affecting a local community could of course compromise an individual’s independence, in which case they may have to recuse themselves from a specific type of case.  Locally we have had judges who hunt, and have therefore recused themselves from dealing with either Hunting Act cases or public order and related matters where hunt demonstrators (pro or anti) have been allegedly involved.

The current guidance is clearly unhelpful, all but ensuring that the judiciary is seen as out of touch. Whilst no judge has recently asked in open court “who are the Beatles?”, an expectation remains amongst the public that they might, and therefore justice cannot be seen to be done.  Statements on behalf of the Gard family and the Grenfell victims, indicate that this latter view is common. Suggestions that the judge “doesn’t look like us”, lead to an assertion that justice cannot be done.If it were seen that judges understood communities, perhaps this view might change.

There is a fine balance between a judge or magistrate being “one of the lads” and a more reserved figure. Being at either end of that spectrum cannot be in the best interests of impartial justice.  But being somewhere in the middle, with an understanding of the need for impartiality and independence, as well as understanding what drives communities, may be the right place.