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A magistracy in crisis?

Penelope Gibbs
19 Oct 2016

The Justice Committee does not use the word crisis in its new report on the magistracy, but they are definitely alarmed.  They say morale is low, training is under-funded and inadequate, and magistrates have not been consulted on major changes effecting them. They point out that magistrates are insufficiently diverse, and that the recruitment process is poor. Bob Neill, the Chair, says

“It is unfortunate that the Government’s evident goodwill towards the magistracy has not yet been translated into any meaningful strategy for supporting and developing it within a changing criminal justice system. This needs to be addressed as a matter of urgency”.

The report covers a lot of ground. I’ll just concentrate on a couple of issues

1) Increasing the sentencing power of magistrates, of which the Committee is in favour. I’ve written about our opposition to this before. The position is that parliament has legislated to allow for magistrates to sentence people to twelve months imprisonment, an increase on their current maximum sentence of six months for one offence. But this legislation has never been implemented, and magistrates have been lobbying for these increased powers for many years. They are confident they have the skills to deal with more serious offences and point out that the change would relieve pressure of work from the Crown Court.

Transform Justice has always been opposed to the change because there is no need for it and because there is a risk that it may increase imprisonment. Lawyers say that a jury is more likely to acquit and a Crown Court judge to give a less harsh sentence, though there is no hard evidence either way.  As the report points out, the government has given a number of different answers as to whether it has modelled the effect of increased magistrates’ sentencing powers on prison places.  If it really hasn’t, it should.  This is a major change which shouldn’t be enacted just because magistrates want it, much as I understand why they do.

2) Consultation.  I was astounded when the MA (Magistrates’ Association) said that morale (on the basis of a survey they did) was fine in the magistracy. My experience of talking to magistrates is that morale is rock bottom and many of the best ones are leaving. The report pinpoints some of the reasons why morale is low, including “top down administration…undermining magistrates’ ability to deliver a high quality service”. A clear majority of respondents to the MA survey felt they were not adequately consulted about reforms to the justice system (59%), management of magistrates (66%) or management of the courts (74%).

The most recent proposed reforms of the magistracy are a case in point – the National Bench Chairs’ Forum, which is administered by civil servants in HMCTS, is proposing that Bench Chairs should no longer be elected, nor magistrates belong to a local area. One area has abolished election without any consultation, while others are consulting using a questionnaire, which would not be allowed by any market researcher, let alone academic researcher. The questionnaire does not say how the information will be collated and used, and has leading questions like “would you be happy for magistrates to be more accountable to the senior judiciary?” There is real consultation and tick box consultation.  If the magistracy is to survive and thrive, the government and the senior judiciary need to consult not just ordinary magistrates, but lawyers, court users, potential magistrates and the general public about future of the magistracy.

Resources are tight in justice, but magistrates are a cost effective kind of judge, particularly since all part-time paid judges won the right to receive pensions etc.  It is worth government and the judiciary investing time, thinking and a bit of money to save this institution whose confidence and independence is being destroyed bit by bit.