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What should magistrates be allowed to say?

Penelope Gibbs
22 Feb 2019

Magistrates can be difficult to control. They are volunteers in the justice system, who have a social and work life outside the judiciary. Many are confident and independent minded, not used to being told what to say and what not to say.

So it’s not surprising that many were annoyed by a missive sent to them this week. It was about the important Justice Committee inquiry on the government’s £1.2 billion court reform programme. Anyone can submit evidence to the inquiry and it’s the first opportunity for people to give their views on the whole programme, given that there has been scant public consultation. Magistrates are technically allowed to submit evidence to any Justice Committee inquiry, but many have in the past been dissuaded.

The Leadership Magistrate (selected by the Senior Judiciary in 2018) emailed all magistrates in England and Wales to say they could submit evidence to the inquiry, but would have to email their submissions to a central email address as well: “as the Lord Chief Justice (LCJ) intends to make a submission on behalf of the whole judiciary, magistrates have been asked to provide a copy of their submission before the LCJ submits his evidence”. This is both mystifying and troubling. Evidence provided to the Justice Committee is supposed to be private, until they publish it. And those who submit evidence can ask for it to be used, but not published. Besides, why would the Lord Chief Justice need to see all the submissions from individual magistrates? The senior judiciary has already done their own consultation with judges and magistrates on court reform and knows what they think.

The email also suggests that magistrates might use “two summary briefing papers outlining the judiciary’s position, following the Joint Ways of Working (JWOW) consultation, in respect of Reform” for reference. These papers summarise the senior judiciary’s response to the judiciary’s internal consultation on digital court reform and court closures (the responses to which have never been published, even to judges themselves). But there is evidence that many magistrates’ views are very different to those of the senior judiciary.

This email smacks of those in authority trying to influence magistrates’ evidence to the Justice Committee. The judicial office told the Times that a mistake had been made in the email (see below for update). If so, I really hope that a new email will be sent out to all magistrates and judges assuring them that they can submit evidence direct to the Justice Committee and that they can say what they like, as long as they don’t mention particular cases they have been involved in.

I’m afraid this is the second recent case of over-control of the magistracy. A month ago Transform Justice designed a survey for magistrates about the quality of defence advocacy. The design was revised in the light of comments from the Magistrates’ Association, the BSB, the SRA, lawyers and academics. There were no questions in it about magistrates themselves, and the survey was anonymous. We knew we would not get official approval from the Judicial Office in time, or at all (they have never approved research conducted by non academics), so we tweeted the survey to magistrates and contacted them on linkedin. One of those contacted on linkedin got in touch with the office of the Senior Presiding Judge. I’m not sure if they were outraged or simply wanted to clarify whether they could fill the survey in. Either way, the Senior Presiding Judge then sent an email to every single magistrate saying they should not fill in the survey, and that they should think seriously about removing any reference to being a JP from their linkedin profile. Not surprisingly, no more magistrates responded to the survey, though by then we had c 60 very interesting anonymous responses.

I can completely understand why the Judicial Office might want to control research with the paid judiciary since their working hours are incredibly busy. But I can’t see why citizens who volunteer for the justice system can’t fill in surveys or do interviews for researchers in their spare time, if they want to? I understand that in answering some surveys, magistrates might possibly contravene guidelines. But if so, they could be disciplined in the normal way. The risk of any clampdown on magistrates’ speaking out, whether through surveys or otherwise, is that their testimony (including challenging views) is not heard, and their concerns may be ignored.

NB Since I published this blog the Judicial Office have been in touch in relation to the Justice Committee inquiry to correct the misunderstanding: “The senior judiciary has not sought to deter anyone from submitting evidence to the Justice Select Committee’s inquiry.  Individual magistrates are free to submit their evidence as they wish and as is their right.  There has been no request from any member of the senior judiciary that individual magistrates should send their submissions to the Judicial Office or to the Lord Chief Justice’s office.   We understand a further communication has been sent by the Magistrates’ Leadership Executive which clarifies their position.”