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January 14, 2014

Why has the magistracy shrunk?

If the value of the magistracy is justice by the people for the people, why do we have district judges sitting in the same courts?  District Judges, or stipendiary magistrates, were introduced because  magistrates in London were found to be corrupt in 1792. District Judges were paid for their services while lay magistrates sat as volunteers.   Their numbers grew quite slowly until the turn of the century.  But since 2008, district judge numbers have increased by 4% while magistrate numbers have decreased by 20%.  A decrease in court work has always been blamed for the reduction in magistrate numbers.  And indeed numbers prosecuted have declined by 14% in four years.  But what is less clear is why magistrate numbers have gone down while district judge numbers have gone up.  Some lay magistrates believe that this is part of a deliberate policy to do away with the magistracy and replace it with paid judiciary.  Recently a magistrate taking part in Transform Justice research said “I’ve felt for a long time that there is a hidden agenda in the civil service to get rid of the lay magistracy.  We are seeing more and more district judges being appointed and taking over a lot of the work we used to do”.

The debate as to the differences between lay magistrates and district judges has been raging for at least a century.  Lay magistrates are volunteer members of the community, who sit in threes in magistrates’ courts presiding over the majority of criminal and many family cases.  They are selected for their ability to make rational, evidenced based decisions, trained in court practice and advised on the law by legal advisors.  District Judges are legally qualified.  They are paid £103,950 pa and sit on their own in magistrates’ courts doing broadly the same work as lay magistrates.  They often get allocated more complex cases and those which may last longer than a day – these are difficult to timetable with magistrates.   Most lay magistrates say there is a place for District Judges, but that there is also a danger in DJs displacing them.  Lay magistrates suggest that justice is generally better served by three people discussing matters together, than by one district judge sitting alone.   Perhaps the most contentious point of comparison is on cost.

Are district judges more expensive than magistrates?  This question has been answered twice in the last 15 years, but the results have been disputed.  A study published in 2000 on the judiciary in the magistrates’ courts found that on average lay magistrates were 12% cheaper than District Judges.  The latter got through court business quicker, but their pay, overheads, pension costs etc did not make up financially for speed.  A more recent report (2011) on the strengths and skills of the judiciary in the magistrates’ court suggested magistrates were much cheaper than district judges on pure costs grounds, but more expensive for many cases if “volunteer costs” were included – “the cost to the wider economy as a result of magistrates volunteering, and reflects the “value” of their unpaid time”.  This way of presenting costs was criticised as confusing by the Magistrates’ Association, particularly as many volunteers are retired so their time cannot be monetised.  The Ministry of Justice re-did their calculations and re-issued the report last month.  The new tables suggest that on straight costs terms District Judges are at least twice as expensive as magistrates (table 8.1).  For summary non-motoring  cases the financial cost is £18 per case for magistrates and £55 per case for District Judges. And none of the reports have factored in that District Judges are more likely to use custody than lay magistrates, and thus the ultimate cost of their work to the criminal justice system is likely to be higher still.  So the evidence seems clear that district judges are more expensive than lay magistrates.

So why, when money is so tight, has the Ministry of Justice invested in new District Judges while letting lay magistrate numbers go down?  Last year 16 new District Judges (magistrates’ courts) were appointed. The government says decisions on numbers in each area are based on “business need” but these assessments are not published.  Do ministers support the maintenance of district judge numbers at the expense of lay magistrates?  I doubt it – I’m not convinced they are aware of the trend.   But magistrates up and down the land are aware, and would like an open debate about the future of the judiciary in the magistrates’ courts.