JUDICIAL OBSERVATIONS

Within the legal world it is widely known that the numbers of  magistrates have fallen dramatically in the last few years.  This decline has been inevitable.  One does not have to have had the abilities of a Nostradamus or the resources of Channel 4 "Dispatches" to have predicted this radical change to the way in which this and the previous government viewed the institution.   Eight years ago there were just a little under 30,000 active J.P.s; today they number fewer than 20,000. The reasons for the decline are the reduction in cases brought to the lower courts, the closure of about a third  of court buildings and the  resulting difficulties of J.P.s travel arrangements, the deliberate employment of increasing numbers of professional District Judges(M.C.), the skewed age profile of the magistracy and to a lesser extent the resignation of magistrates owing to their opposition to the previous regime`s removal of the level legal playing field for the poorer in our society by the restrictions on legal aid and the imposition of non means tested court charges.   I cannot recollect publication of the numbers of resignations prior to the announcement earlier this week.  It seems that this is going to be a bumper year where J.P.s for whatever reasons have shown two fingers to an appointment which I`m certain they were proud and pleased to have originally accepted. Perhaps the damning verdict of the The Public Accounts Committee (PAC) earlier this week that the criminal justice system is near breaking point is connected to the disillusionment of former colleagues.  When the financial resources to a system are reduced to the bare bones  for functionality there cannot be any surprise when that system collapses under the minimum disturbance to its already failing processes. Those who have been shouting "wolf" for the last decade have been vindicated in their pessimism.  It is hard to see there is a way back for what used to be a the most highly respected justice system in the world.  We are all the poorer individually, nationally and internationally for that. 

But all is not doom and gloom for errant judicial office holders.  According to a statement from the Judicial Conduct Investigations Office (JCIO) instead of being kicked out for actions which might until now have been deemed incompatible  for a  judge or magistrate with expulsion  being the result it seems that a suspended sentence might now be considered the  appropriate sanction.  

JCIO Message:
“Following advice from the Ministry of Justice (MoJ) legal team, we are informing all parties involved with the judicial conduct process of a change in advice regarding the use of suspension as a disciplinary sanction.
The Lord Chancellor’s (LC) and Lord Chief Justice’s (LCJ) disciplinary powers are set out in Section 108 of the Constitutional Reform Act 2005.    Previously, we have operated on the basis that the LCJ can suspend a judicial office holder as a sanction, with the agreement of the LC, as an option for any action that constitutes serious misconduct, but may not warrant removal from judicial office.  This was on the basis of reading 108 5 c) of the Act as a stand alone criteria, giving the LC and LCJ the ability to suspend a judicial office holder for the purpose of maintaining confidence in the judiciary.
However, in light of advice given on an ongoing case, the MoJ legal team have looked at this provision and have raised a concern about how suspension is currently being applied as a sanction.  Their interpretation of the disciplinary powers set out in Section 108, in accordance with the parliamentary counsel’s explanatory notes, is that the suspension can only be issued in a specific set of circumstances.  They have explained that S 108 5) needs to be read as a cumulative set of circumstances and 108 5 c) cannot be relied upon separately to issue suspension as a sanction in any circumstances outside those listed in this section.  The explanatory notes for this section state:
Section 108: Disciplinary Powers

317. Section 108 will form the basis of a disciplinary system in relation to senior judicial office holders in England and Wales and the holders of offices listed in Schedule 14. In accordance with the section the Lord Chancellor may only exercise his statutory powers to remove judicial office holders in accordance with prescribed procedures (which are defined by section 122 as procedures prescribed by the Lord Chief Justice with the agreement of the Lord Chancellor in regulations made under section 115 or rules made under section 117). Following the formal disciplinary process the Lord Chief Justice may formally advise or formally warn or reprimand, a judicial office holder, but only in accordance with prescribed procedures and with the agreement of the Lord Chancellor. As provided in subsection (3) this does not affect the ability of the Lord Chief Justice to speak informally to any judge about any matter of concern, or to issue general advice or warnings to the judiciary.
318. The Lord Chief Justice may also, with the agreement of the Lord Chancellor, suspend a judicial office holder from exercising the functions of his office if the office holder is subject to criminal proceedings; is serving a sentence for a criminal offence; is subject to disciplinary proceedings following a conviction; or if, following a criminal conviction, it has been decided not to remove the judicial office holder from office, but the Lord Chief Justice and Lord Chancellor agree that a period of suspension is required in order to maintain confidence in the judiciary. Senior judges may be suspended during proceedings for an Address in Parliament to remove them from office. Office holders who are listed in Schedule 14 may be suspended during criminal or disciplinary investigations, prior to any conviction.

This advice has no impact on the process for interim suspension pending the outcome of an investigation. 
The MoJ legal will continue looking at this matter and advise us of any implications this may have in going forward.  I will be in touch as soon as we have any more advice.
End of JCIO Message

Perhaps we shall soon have appointed judicial licensing officers to oversee their clients during their period of rehabilitation.