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Magistrates’ courts – an opaque and underexamined world

22 May 2024

Transform Justice routinely produces reports which focus on aspects of the criminal justice system which go unexamined as if their state is natural and permanent and therefore inviolable to change.

In 2023 the charity undertook its most expansive piece of work yet piloting a volunteer project recording the operation of magistrates’ courts in London over six months.  The so called “lower courts” deal with half a million defendants a year. The vast majority of criminal cases start and end there but public facing critiques of what goes on in magistrates’ courts are vanishingly rare.

The threads of the report focussing on observations of what defendants experience “The Wild West: Courtwatching in London magistrates’ courts” will come as no surprise to those who regularly attend court, either as professionals and staff under their own steam or having been deposited there often hours late in an escort van.

The volunteer observers described some decrepit, inhospitable court buildings and confusing, jargon ridden often inaudible court procedures.  The overall experience is reported as alienating,  dehumanising and positively harmful for the most vulnerable, yet conversely by and large filled with staff, judges, magistrates and lawyers trying to do their best in an imperfect system.

As an attempted corrective to the judicial system CourtWatch London differs markedly in its reformist approach from the overtly political, activist Court Watch projects in the United States. There the movement gained impetus as a result of the Black Lives Matter movement and overtly engages with abolitionist theory and practice which situates criminal justice as the driver of a system designed to oppress, control and harm the poor and racialised and other minorities.

Informed by this critique from outside of the academy and the legal professions, the common aims of the majority of US Court Watch projects are to:

  • Hold judicial actors accountable to end injustices that target racialised and other minorities
  • Shift power in the courtroom
  • Identify burdens placed on low income defendants
  • End injustice in the criminal justice system by naming the injustice that is the criminal legal system

In CourtWatch London the explicit project aims were less confrontational, more iterative and more explorative.

  • Increase community ownership and oversight of our magistrates’ courts.
  • Improve our understanding of what actually happens in court, to strengthen the case for policy and practice change for more just decision-making.
  • Find out what public observers thought of what they witnessed in magistrates’ courts.
  • Explore the potential of community courtwatching in England and Wales.

The resulting reports advocate for the potential for courtwatching to produce change by expanded civil observation.  That advocacy throws up a vital question.  If observation produces change why has the state of our prisons dramatically deteriorated and why is there the ongoing failure to police the police in custody suites despite decades of volunteer visits from citizen monitoring groups?

Despite its reformist carapace some of the reports’ key recommendations will be a conceptual challenge to a system resistant to change unless it is technocratic and managerial or imposed by funding cuts.

For example, doing away (again) with financial means testing to allow anyone charged with an imprisonable offence access to a defence lawyer funded by legal aid. Currently thousands of people in work but poorly paid are forced to represent themselves as the means test disqualifies them from free representation.

The reports also promote what most people would think should be a minimum requirement for a fair trial;  allowing an unrepresented defendant access to the evidence against them before the day of their plea hearing.  It should shock us all that this doesn’t always happen and that some judges and magistrates then routinely exert pressure on defendants to enter a plea after having had only minutes to flick through an incomplete bundle often lent to them by a time poor prosecutor.

However, probably the most challenging recommendation of all to the justice system’s sense of the natural order of things is ditching the dock to allow the defendant in the majority of cases to sit in the court space proper.  This revolutionary demand for a state of affairs common in many jurisdictions should start an overdue conversation about our fetish for making the defendant both the court spectacle and court spectator entombed in their own glass box.

The amount of traction achieved by the CourtWatch reports will be revealing.  For too long those who work in our criminal justice system have bemoaned the underfunding whilst still determinedly and delusionally hanging on to the Panglossian notion that but for resources we would have the very fairest criminal justice system in all the world.

Given that there was no shortage of volunteers to expand courtwatching here, it may be that the reports do usher in an era of everyday observation of a currently opaque and under-examined world, which may be a good in itself. But as Einstein said “It is the theory that describes what we observe.”  For the necessary tools of description, we may need to develop our own version of the critical framing stirring things up across the Atlantic.

Guest blog written by Rhona Friedman, Director of Commons Legal