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Does the “doctrine” of judicial independence stifle magistrates?

Penelope Gibbs
24 Feb 2016

Judicial independence is a safeguard of a fair justice system. Judges need to be independent of politicians, and of commercial interests, in order to make an “objective” decision based on the evidence presented to them. Judges’ independence is protected through training and rules. But complete judicial independence is a fiction.  Judges’ decisions are inevitably influenced by their upbringing and education, by the newspapers they read and the conversations they have with friends and other judges. Those judges who believe instinctively that naming and shaming is a deterrent, are not presented in court with evidence of this – it’s just what they think. And that belief will stem from a childhood experience, or something they have heard.  Its clearly worth trying to prevent judges’ being swayed by some outside influences.  But are the rules too strict?

Its difficult enough to create rules to safeguard the independence of paid judges. but even more so in the case of magistrates. They are supposed to be representatives of their community, not isolated individuals. Many have paid local jobs, and volunteer for local organisations. But being a magistrate is becoming less and less compatible with community involvement.  Magistrates are not allowed to speak to the media unless they get the permission of the chair of their bench or the judicial press office. They cannot take part in any research unless the Judicial Office has agreed, and there are many volunteering roles they are not allowed to do, or cannot do in their own area.

These restrictions have tightened in recent years and we have ended up with magistrates who are prevented from getting involved in their local criminal justice community, and who feel afraid to talk about their work. This is a huge contrast to the USA. There judges prize their independence. But they have no concerns about meeting practitioners to discuss individual cases, about engaging with local service providers or asking the community what crimes are really bothering them. This openness underpins the success of problem solving courts.

The restrictions placed on magistrates in the name of safeguarding independence cause harm. Magistrates have little opportunity to influence the system locally, or to talk about their work. They have even less influence on national policy. This means that most policy is done to, rather than in consultation with, ordinary magistrates.  And public ignorance about magistrates and the criminal justice system is perpetuated.

In Transform Justice’s submission to the Justice Committee inquiry into the role of the magistracy we suggest holding an open debate on the independence of the magistracy – to examine whether it has become a stranglehold, and a reason not to do things.