Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





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Thursday, 10 July 2014

DAMIEN IS AN OMEN OF THE FUTURE

I have never had much time for the National Bench Chairmen`s Forum. At the very least its title does not indicate a desexualisation of the term “chairmen”. My own bench procedures often refer to such a group as “chairtakers”. Be that as it may it seems that this organisation is very slowly taking over positions which should be firmly occupied by the Magistrates Association. The NBCF is constituted with official standing in judicial matters affecting the workings of the lower courts. The M.A. by its almost toadying attitude over the years to government of all shades is losing members and influence. Until and unless it truly represents the interests of members in all the aspects a professional union should occupy, viz the B.M.A. I can foresee its becoming an irrelevance within a decade. However returning to the NBCF it has recently produced a position paper on the government`s ridiculous proposals to limit the tenure of J.P.s to ten years; [speech by Damien Green 25/03/2014] That document with a very effective demolition of the argument is copied *below. My only comment would be that for a bench chairman to be an effective court officer many more than the minimum number of sittings is required. A half day a fortnight is just insufficient time to become and/or retain effective competence; not the absurd definition as currently is the case. Considering that probably only about a third of sittings would be in a remand, breach or sentencing court as opposed to sittings in trial courts it is all too obvious that some colleagues are failing and rely almost totally on being carried through the sitting by their colleagues and/or legal advisor. It is unfortunately readily appreciated why an increased minimum for chairmen will not be imposed.

When one is acquainted with all the proposals of the last twenty years to “redeploy” magistrates and this current "initiative" from the Policy Exchange  it truly takes the ostrich position to argue that deep in the bowels of Petty France there does not exist a dossier containing a to be dated press release explaining why the justice system must follow the European example and have professional judges presiding over magistrates` courts. By that time I will need more than my battery charger to keep me interested.

*NATIONAL BENCH CHAIRMEN’S FORUM

TENURE OF OFFICE FOR MAGISTRATES
The proposal to have a set tenure of office for Magistrates arose from the document “Future Courts - A new vision for Summary Justice”, by the Policy Exchange. In this analysis (Page 10) there is a recommendation to introduce a ten-year tenure of office for Magistrates. It suggests, “This would generate a greater turnover of Magistrates and offer more opportunity for younger Magistrates to volunteer, Magistrates would be able to reapply, but only following a thorough appraisal and updated training”.It is also stated by the Policy Exchange that following appointment, “Magistrates continue to serve until they reach 70 years of age, preventing the appointment of younger magistrates.” The Minister, Damian Green, further raised the idea of a defined tenure when he spoke at the Policy Exchange on March 25th 2014; he stated, “The introduction of a ten year tenure of office has been suggested by the Policy Exchange and others. I am attracted to this idea, because it would generate more opportunities for people to volunteer.” The purpose of a defined tenure of office is to “boost diversity” as the Minister stated, and “to free up Magistrates to use their expertise in other areas within the CJS”. Some suggestions for this redeployment have been; Neighbourhood Justice Panels and Local Criminal Justice Panels. It is assumed that any changes to the tenure of Magistrates will only apply to new appointees. There would be significant practical difficulties were it to apply to existing Magistrates, not least because complex transitional arrangements would be necessary. There may in any event be other challenges to any proposals to change the terms on which Magistrates have already been appointed. This paper is therefore written on the basis that any change will not be retrospective.
Recruitment
In response to these proposals, the question must be posed whether, and to what extent, would tenure of any length, achieve the objective of increasing the diversity of the bench? The recruitment would need to focus on selected groups, traditionally hard to reach, such as the 30 and 40 age groups and those from the BME communities. Targeting such groups as a source for new Magistrates is not new, although the proactive recruitment of former years has largely been replaced by reliance on the GOV.UK website. Proactive recruiting methods are used far less today, because the need for recruitment has reduced as workload has declined, and the number of applications that are received via the Internet in many cases exceeds the number required for a recruitment exercise. Targeted recruitment will have resource implications and, if successful, will create new issues because the need for new appointments is unlikely to increase in the short-term, whilst the number of applicants will rise. Ideally the recruitment process would be carried out in a way that enables Advisory Committees to specify that any new appointments should be in the age range and ethnicity required, although such an approach will almost certainly be rejected because it would be subject to challenge on the basis that it is discriminatory. There would therefore be a risk that the work in targeting specific groups would have only limited impact. A great deal of work has been undertaken by the JAC over many years to target recruitment to the salaried Judiciary; it would be useful to explore what lessons have been learned as a result of that. Ten years on from the first recruitment exercise based upon a ten year tenure, the Magistracy is likely to experience an annual ‘turnover’ in excess of ten per cent; almost twice as much as current turnover. Between the ages of 30 and 40, men and women are very engaged with their work, building careers and in many cases, raising a family. They are very often financially burdened and to commence a voluntary role, as demanding as that of being a Magistrate, represents a real challenge. In addition, employers do not encourage voluntary service and employees fear being disadvantaged in the promotion equation. In many cases employees are being refused time off for voluntary work, even in a Judicial role. Parents struggle with childcare responsibilities, particularly if family cannot assist. Introducing incentives for employers may help and they must also be made aware of the positive aspects when an employee becomes a Magistrate. It is often very obvious that after appointment a Magistrate becomes more confident, able to give a more balanced view and they develop skills, which can be transferred to the workplace. It may be useful to look again at the criteria for appointment to ensure that it is not weighted in favour of those who are slightly older, have more life experience and are in white-collar jobs; at present such individuals tend to score highest in the selection process. Just one example is the appointment of members of the legal profession, who often wish to volunteer for this kind of role in the community. They naturally score high at interview. One of the problems identified with the current system is that Magistrates can continue to sit to 70 years of age and this can have the effect of blocking the appointment of younger Magistrates; it would be useful to obtain some statistics on the number of new appointees who are over 55 and therefore serve for no more than 15 years. To impose a defined tenure period by itself would not be effective. Other changes would also be required. As Magistrates are redeployed to community work, they would possibly be replaced by those in the exactly the same age group and of the same ethnicity as at present. As part of community work based on what they are already doing, Magistrates are in an excellent position to speak and encourage employers to be more flexible in allowing their staff to become Magistrates. This may be a role for them in which to increase participation in the Justice System.
What period of tenure?
If defined tenure were to be introduced, it is sensible to consider what period would be preferable. The Policy Exchange suggested that the tenure of a Magistrate should be ten years. Under our current system Magistrates who have served between ten and twenty years form the pool from which people are selected to become Panel Chairmen, Deputy Chairmen and Chairmen of Benches. Likewise, there must be the correct balance of Chairmen and Wingers on a Bench, and Chairmen do not generally start chairing until their fourth or fifth year in office; this would need to change, but would mean relatively inexperienced Magistrates having to take the chair. Careful monitoring would need to be carried out to ensure that there are a sufficient number of Chairmen to run the courts. The risks of this approach must not be understated. A bench of Magistrates needs to be competently led by an experienced chairman. If inexperienced and less competent tribunals become the norm, this will have an effect on the work of the Magistrates’ courts and the reputation of the Magistracy. If the proposal were for tenure for more than 10 years, it would be important to review the average length of service across those who have retired in recent years. There is a perception that an increasing number of Magistrates serve between 15 and 20 years, and setting the tenure at 20 years may not bring any change. Currently Magistrates are able to join the Family Panel after 2 years on the Adult Bench and specialize after 5 years. They need training and experience for this role. If a defined tenure were to also apply to Family Magistrates it would remove them just when they are achieving competency in dealing with family cases, which can be very complex. The loss of a significant number of Magistrates with a Family ticket would compromise the speed at which cases could be dealt with at a time when Family work is increasing and there are set timetables for completion of cases. It follows that the recruitment of Magistrates directly to the family court, bypassing the need to sit in the criminal court, may be necessary.
Appraisal
Addressing the suggestion by the Policy Exchange of a “thorough appraisal and updated training”, it is important to recall that Magistrates already have appraisals throughout the time they are in office. To consider a thorough or robust appraisal only after ten years is far too late in the Magistrates’ tenure of office. Magistrates need robust appraisals eighteen months after appointment and then either every two or three years. This should identify those individuals who perhaps need to consider a different kind of volunteering role at an early stage. A more effective efficient Magistracy would be developed. To achieve this and improve performance, the appraisal system itself needs to be reviewed. At present, colleagues who have undergone training as appraisers currently appraise Magistrates. Some cross bench appraisals are also conducted, when an appraiser from another Bench carries out the appraisal. This was introduced to allow Magistrates to be appraised by someone who they did not know. Current experience unfortunately suggests that this has not improved the appraisal system. Some individuals have continued to sit, who are not able to execute the role to the required standard. Leaving a robust appraisal only until ten years into office is thus leaving things too late.
A renewable tenure?
A further consideration might be a renewable tenure based upon the need to retain experienced and competent Magistrates. It would be superficially attractive to employ a system whereby a Magistrate’s term of office is not renewed after 10 years on the basis of the need for ‘turnover’ and their individual competence. However, if a Magistrate were found not to be competent after tenure of office, there would need to be an appeals process in place. This would be an added burden to the Training committees and have further resource implications. It is likely that some Magistrates would wish to commence litigation if they had been deemed competent for ten years and were then removed on the basis that they were no longer competent.
Training
The statement that there should be “updated training” is difficult to comprehend. Training is ongoing from the moment a Magistrate is appointed. Only the core training, carried out before a Magistrate can commence sitting, soon after appointment, is currently compulsory. Therefore, there is very little that can be done if a Magistrate, shown to be competent at appraisal, has not attended very important on going training. Good numbers of Magistrates do attend training, but compulsory training would be an advantage and should not require significant additional resources.
Judicial Office holders
Magistrates are Judicial Office holders, part of the Judicial Family and members of the Judges’ Council. Although unpaid, it will be argued that they should not be treated differently to other members of the Judiciary. As Judicial Office holders, Magistrates are appointed with this as their key role. The defined tenure would be introduced to free up some Magistrates to carry out other tasks in the community. It cannot be presumed, however, that all those after fulfilling their judicial office as a Magistrate, would wish to do other work on a voluntary basis in the community. The two roles are very different. Would they remain as judicial office holders whilst fulfilling the community role? As a Magistrate the individual is accountable to the Lord Chief Justice under a Judicial hierarchy. This encompasses all the work they discharge whilst appointed. Some system of accountability would need to be established if Magistrates ceased to be Judicial office holders after a period of tenure, but engaged in other activity using the badge ‘former Magistrate’.
Alternatives
One alternative option to tenure might be to have a reduction of the numbers of Magistrates appointed in line with the reduction in workload. A further reduction is anticipated when legislation allows regulatory work to be carried out by one Magistrate sitting with a legal advisor. The reduction in Magistrate numbers would be managed over a period of time, until the right number was reached for the level of work. It is always an advantage to have newly appointed Magistrates. They invigorate the Bench with new ideas and enthusiasm. This too, could be managed according to any fluctuation in workload. A smaller Magistracy would be cheaper to administer and maintain. A smaller, better-trained, effective Magistracy is attractive, because it would improve public confidence, speed up the Judicial process and have little resource implications. A separately appointed group who are interested in community work associated with the CJS could carry out community work. There are already lay members of Independent Monitoring Boards, Youth Offending Teams, Victim and Witness support. They do not need to be Magistrates.

In summary therefore, there are better ways of achieving a more effective and efficient Magistracy without imposing tenure of office and they are mainly without resource implications. Defined tenure is extremely unpopular with the Magistracy and would engender a lack of commitment if individuals knew that after a few years they might be removed.

Magistrates should be treated as other Judicial Office holders. Their main role must be Judicial, but as is the case now there is scope for community engagement and work in the community by those who wish to do it.

20.6.2014.

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