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June 18, 2019

The magistracy is withering on the vine. Can and should it be revived?

I frequently feel like Cassandra who was cursed to utter prophecies that were true but that no one believed. In the case of digital court reform, I think some of my prophecies have been heeded but I am the Princess of Troy in relation to the magistracy.

Transform Justice published two reports in 2014 – on the lack of class, ethnic and age diversity in the magistracy and on significant gaps in their training. In 2016 I wrote a short paper on the role of the magistrate, linked to the Justice Committee’s inquiry on the same subject. Both they and we called for a strategic, root and branch review of the future of the magistracy. In 2018 the Secret Barrister published a trenchant critique of the quality of justice meted out by magistrates in their best-selling book “Stories of the Law and How It’s Broken”.

I think the Secret Barrister would like to replace all magistrates with district judges. I would not on principle, and think it would bankrupt the courts too. All criminal district judges get paid £110,000 a year in salary. Research by the Ministry of Justice showed that DJs get through cases more quickly, but that the total cost of employing them makes them more costly than magistrates, who just get an allowance.

I don’t support magistrates just because they are cheaper and because I was one (for a short time, ten years ago). I instinctively feel that lay participation in justice has the potential to increase trust in justice and that lay judges are more likely to engage with the community outside the court.

But I do agree with a lot of the Secret Barrister’s criticisms – that magistrates today are too often poorly trained and are not representative of the people. A new report from the Justice Committee supports these concerns and lambasts the government for ignoring their call in 2016 to focus policy efforts and resources on our nation’s most important volunteers.

The Justice Committee points particularly to a crisis in numbers. Having slashed magistrate numbers in half through freezing recruitment for many years, it is now clear that there are too few magistrates to fulfil court sittings. The Magistrates’ Association told the committee that magistrates had to sit in benches of two rather than three in 15% of all sittings in 2017-18, and I know that many magistrates are called on to sit at least two days every week. Justice is threatened by the shortage of magistrates – if there is a disagreement about whether someone should be remanded or convicted, there is no “casting vote”. While magistrate recruitment has been frozen, DJ recruitment has carried on – so DJ numbers have not reduced at all in the last ten years and they have ended up doing a bigger share of the work.

Diversity has suffered because the recruitment freeze meant existing magistrates just get older and there has been no money to promote the role. When the Justice Committee called on the government to take a deep strategic look at the magistracy in 2016, the MoJ said they would. But unfortunately, departmental policy budgets have been slashed and this issue has been put on the backburner. The MoJ has focused on the problem of recruiting into the senior judiciary and decided to task HMCTS and existing magistrates with thinking about a new recruitment strategy.

Unfortunately, HMCTS is not a policy organisation and is not used to conducting open policy making processes (as their stakeholder engagement for the court reform programme illustrates). There is absolutely nothing in the public domain about their work on the future of the magistracy, and no meetings have been held with civil society organisations such as Transform Justice. Current magistrates have been asked to sit on working parties and will apparently soon be submitting their ideas on recruitment for approval. It is great that magistrates have been involved in the process, but to prompt innovative thinking and avoid group think, HMCTS needs to involve outsiders. Why haven’t they got the Secret Barrister to take part in a webchat or done some research on what court users and ordinary people think of magistrates and what might attract anyone to apply for the role?

Will the magistracy get the TLC and blue skies thinking it requires? The Ministry of Justice itself needs to devote policy resource to the issue and launch an open policy making process. I was pretty despondent about the chance of this happening, but recently met the new Courts Minister Robert Buckland. The magistracy seems to be the equivalent for him of Chris Mullin’s Leylandii – a cause about which he could make an impact even as a junior Minister…though of course in today’s political chaos, he many have only a few weeks in which to do it.