APPEALS FROM MAGISTRATES COURTS

On Tuesday, 3 March 2026 I posted AN APPEAL FOR APPEALS.  Yesterday  Clause 7 - Appeals from magistrates’ courts was debated in House of Commons.  That debate is available here.  Part two is also available. 

FAST FIT FOR THE MAGISTRACY

My previous post last week was concerning the government press release on its proposal to appoint 6,000 new magistrates; a rate of recruitment never previously attempted.  Since then I have paused to consider this activity and its possible repercussions.  

Those who have spent more than five minutes inside a magistrates’ retiring room will recognise the familiar pattern: a problem created by years of neglect is suddenly rediscovered and the conclusion is presented as a bold new vision rather than a belated attempt to patch over the consequences of earlier decisions.  It is a target dressed up as a solution. 

The magistracy has been shrinking for years. Recruitment was paused in many areas, benches were merged and experienced colleagues quietly retired without replacement. The result is a system now scrambling to fill the very gaps it engineered. The MoJ’s sudden enthusiasm for replenishing the ranks is rather like a landlord who ignored a leaking roof for a decade and now wonders why the ceiling has collapsed. The answer, naturally, is a “major recruitment drive”.  To understand why this matters one must first appreciate what a magistrate actually is, not in the brochure sense but in the functional one.  The lay magistrate performs his/her tasks without legal qualifications, supported only by the advice of a legal adviser, the training provided under the Magistrates' National Training Initiative and whatever measure of wisdom and life experience they bring to the bench themselves.

Good judgement is rarely an accompaniment of  urgency. The question that matters is whether rushing to recruit thousands of new magistrates will reduce standards. The magistracy has been chronically under recruited for the better part of two decades. Numbers have fallen from approximately 30,000 in the early 2000s to around 14,000 today. Courts have struggled with capacity; backlogs,  already severe before the pandemic,  became catastrophic during it and the Ministry of Justice eventually conceded that something had to be done. The decision to raise the mandatory retirement age from 70 to 75 was one response. This expansion of recruitment is another. 

The uncomfortable truth is that history, structure and recent experience all suggest that the risk is not only real but familiar. One of the more persistent myths repeated in official literature is that the magistracy forms part of the “independent judiciary”. Judicial in function, yes: independent in structure: no. Since the early 2000s a series of reforms, the Auld Review, the Courts Act 2003, and the creation of HMCTS have steadily centralised control. Local Magistrates Courts Committees were abolished. Bench autonomy was curtailed. Administrative power shifted to civil servants. Listing, training, deployment and recruitment are now firmly under HMCTS management.  This matters because independence is a safeguard against political pressure. When independence is diluted pressure can seep in. And pressure is exactly what a target of 6,000 new magistrates creates. Targets have a way of distorting behaviour. When the number becomes the goal the quality becomes the casualty.

There is precedent for exactly this kind of quality dilution when volume targets dominate as those with long memories of the bench will recall. The late 2000s saw another surge prompted by falling numbers. Advisory Committees reported shortened interviews, reduced panel diversity and increased reliance on paperwork. New magistrates resigned early at higher rates, often citing inadequate preparation. The Justice Committee, never known for hyperbole, warned that recruitment pressure risked “lowering the bar”.  The 2016–2019 period brought a recruitment freeze followed by a sudden reopening. Advisory Committees were reduced in number but expected to process more candidates. Training capacity was stretched. Some new magistrates sat before completing all recommended training.  The current drive shows early signs of the same pattern.  Interview times have been reduced in some areas. More new magistrates require additional mentoring. Training capacity is stretched. Benches with three inexperienced magistrates are no longer hypothetical. None of this amounts to a crisis but it is evidence of strain and strain is where standards slip.

Court closures over the past fifteen years have dramatically reduced the number of venues available and while sitting days have been extended in some areas the simple truth is that judicial competence requires regular and meaningful sitting experience. A magistrate who sits only infrequently [minimum required is 26 half days]  is a magistrate whose skills atrophy, whose confidence is limited and whose decision making is more, not less, susceptible to the kinds of errors  eg inconsistency, over reliance on legal adviser direction, failure to probe the evidence  that undermine the quality of justice.

So will rushing to recruit 6,000 magistrates reduce standards? The honest answer is that it could and history suggests that it has before. Those who care about the lay magistracy and about the quality of justice delivered in the magistrates court, should be asking hard questions now while there is still time for the answers to shape practice. The magistracy is one of the quiet pillars of the justice system. It deserves careful stewardship, not hurried expansion. Numbers matter but standards matter more. If the MoJ wants 6,000 new magistrates it should take the time to ensure they are the right 6,000.

RE-ARRANGING DECKCHAIRS ON THE SINKING SHIP OF JUSTICE

An announcement today  that the government is intent upon the fast tracking recruitment of  6,000 new magistrates is supposed to fill observers of our justice system with joyful hearts.  If the experience of the Metropolitan Police is anything to go by this sticking plaster to cover the increasingly rapid exit of experienced magistrates just won`t stick.  With the Met a decade of pruning officer numbers has resulted in a shortage of up to 1,000 experienced detectives.  Perhaps that`s a reason for apparent inefficiencies in their successful conviction rate. 

Taking lay personnel and bringing them to a knowledge base where they can be relied upon to dispense fair justice free from bias but overladen with logic and structure is not a train today and render tomorrow process.  It is a hands on process where the experience of others is transmitted on the job.  At a time when many families are experiencing financial tightening many possible applicants will be excluded being unwilling to offer the time required.  Perhaps some of those out of work will be tempted.  That should be firmly off the table.  Anyone looking for work should not be offering 13+ days annually as a volunteer. 

Like so many systems within the control of government this is yet another attempt to re arrange the deck chairs whilst the ship is sinking. 

WILL NO JURY PUT JUSTICE IN JEOPARDY?

There`s nothing quite like human memory although the makers of AI are working hard to eliminate that impediment to their function to take over the world and for all of us surviving to live a life of leisure.  I am old enough to remember when this country held its criminal justice system in something approaching reverence. In those far off days it wasn`t unusual to find a 200 word newspaper column devoted to a story of the decades long delays many defendants in India often had to face whilst on remand in prison.  Leader columns would use such examples to extoll the efficiency of our justice system.  These stories are now as distant as the Raj. 

As of this spring there are just shy of 80,000 cases outstanding in the crown court;  more than double the pre-pandemic figure and rising. A defendant charged today with a moderately serious either way offence in many parts of the country will wait the better part of two years before a jury is empanelled always assuming that jury is not itself the subject of abolition by the time the case is called.  In the magistrates courts the open caseload stands at over 310,000. The median time from charge to a contested hearing in the lower courts is now around eleven months.  

As we know to our cost the pandemic, the government`s alibi for so many problems, was not confined to this island: it was a world wide disease causing similar problems east to west and north to south.  Across comparable common law and civilian jurisdictions, criminal courts have buckled under weight they were never designed to bear. The comparison illuminates both our particular failures and the surprising limits of the remedies being proposed. It also raises questions about our ambitions that Ministers appear singularly unwilling to address.  

In the USA state courts are under no uniform management each of the fifty states being in effect an independent legal jurisdiction.  Of the worst performers Louisiana is probably the most scandalous: defendants charged with serious offences in Orleans Parish have routinely waited three to five years for trial, conditions which would provoke a constitutional crisis in Westminster.  Proceedings in Canada, California, New York, Texas and Florida for example carry individual caseloads dwarfing anything seen in England. New York state alone has had nearly 120,000 criminal cases pending at any one time.

The response in most American states has not been to abolish jury trial but to throw money at prosecutors, appoint more judges and where possible expand diversion schemes. No American legislature has seriously proposed what David Lammy is now legislating.  

Culturally and legally the situation in Canada is interesting.  For decades Canadian defendants have had the right to elect between judge alone and jury trial across a wide range of indictable matters. This has not saved Canada from crisis. The Supreme Court of Canada's celebrated Jordan ruling of 2016 established that charges must reach trial within eighteen months in provincial court and thirty months at superior court; ceilings now routinely breached, with cases thrown out not because of innocence but simply because the Crown was too slow.  Hundreds of cases a year are stayed in Ontario and British Columbia alone on Jordan grounds. The lesson Canada offers is that offering judge alone trial as a defendant's right,  as opposed to imposing it as a state convenience,  did not solve the structural problem of too few judges, too few prosecutors and too little court time. It merely shifted the queue.

Australia's states have likewise embedded bench and single judge modes into their systems over many years and similarly have not escaped delay. New South Wales introduced legislated sentence discounts in 2018 to encourage earlier guilty pleas up to 25% for a plea at the local court level;  a sensible if somewhat transactional acknowledgement of the system's dependence on defendants' cooperation.  Victoria passed significant committal reform as recently as last December restricting full committal hearings in sexual and family violence cases so as to smooth the path to higher courts. Queensland runs magistrates courts with median disposal times of around five months for contested matters. None of these states has anything approaching England's current crown court backlog as a proportion of throughput.

New Zealand, on the other hand, has achieved the largest yearly reduction in its district court criminal backlog on record; 22% in 2025,  through aggressive rostering, case management reform and remote participation protocols.  

So much for the progress made by jurisdictions based upon the concept of the common law.  Continental legal systems operate without that heritage.  The question of jury trial simply does not arise at the lower court level. In Germany, the Amtsgericht, the rough equivalent of our magistrates court, operates as a professional bench by default. A single judge or a judge sitting with two lay assessors for more serious matters is tasked with the finding of fact and the determination of sentence.  There is no defendant election.  Most cases are completed within three to four months.  The lesson to be learnt is that the absence of jury election has not produced a tyranny  but neither was it the product of crisis legislation. It was built into the system from the beginning. One cannot simply graft the result onto a different constitutional tradition and expect the same outcome.

The backlog situation in England is, surprisingly, not the worst in Europe. The honour for that wooden spoon [gavel] must go to the inventors of the pizza and the makers of the world`s finest ice cream; Italy.  Sixty percent of enforcement files in Italian courts are older than five years; a quarter exceed a decade. Criminal trials at first instance routinely take two to three years and statutes of limitation expire mid-proceedings with depressing regularity producing what amounts to acquittal by exhaustion.  Italy's Cartabia reform of 2022 introduced binding time limits, essentially threatening extinction of charges unless proceedings concluded within set periods. The result, anti-mafia prosecutors warned, was not faster justice but abandoned justice: cases dropped not because they lacked merit but because the system lacked capacity to hear them in time.  Last month a constitutional referendum on judicial structure was rejected by Italian voters.

Spain and France sit between the extremes. Spain's Juzgados de lo Penal  bench-only courts for the bulk of criminal matters carry waits of eighteen months to two years in major cities, despite having no jury election problem.   France resolves most criminal matters at the tribunal correctionnel in eight to ten months, performs roughly at the European median, and does so without juries below the most serious felony level.  Both these nations appear to be at least coping with their backlogs without emergency legislation.  

Returning to the Courts and Tribunals Bill currently making its way through Public Bill Committee, previous posts here have discussed its nuts and bolts which I do not intend to repeat except for the intention that has caused the current furore:  the right of election for either way cases to be abolished entirely and for magistrates to decide venue, subject to expanded sentencing powers of up to eighteen or twenty-four months.  The government's Impact Assessment puts total implementation at £123 million. Judicial salary costs for the additional sitting capacity required are not separately itemised. The crown court is expected to free up approximately 27,000 additional sitting days. To deliver that capacity with existing judges redeployed rather than newly recruited sounds credible until one notices that the circuit judge bench is already sitting fewer hours per sitting day than it was in 2016, that criminal legal aid rates still deter qualified practitioners from maintaining criminal practices and that the Lord Chancellor has set the Ministry of Justice a target of recruiting thousands of new magistrates and hundreds of district judges in the next year or two. "Ambitious" is the polite word most often used about these targets by those who choose their words carefully. The reforms, the government concedes, will not yield direct budgetary savings; the freed time will be consumed by the existing backlog and rising demand, not by reducing expenditure.

A cynic might conclude that the government`s plans to reduce the baglog by limiting the current use of jury trials is a diversionary tactic from its ultimate target of taking the present system in the continental direction; a movement which would have the whole legal fraternity puce with apoplectic rage.  

The oldest maxim in the law is that justice delayed is justice denied. What the international evidence demonstrates with uncomfortable clarity is that delay is almost universally the product of the same causes: underfunded courts, too few judges, shrinking legal aid, buildings that leak and systems that predate the internet age. Not one of the jurisdictions discussed above, not Canada with its bench elections, not New Zealand with its tiered system, not Germany with its entirely professional bench, has escaped the backlog problem by restructuring modes of trial. What does or will work is increased financial input to the system and probably of more significance a management than can and is allowed to truly manage; a feature which is all too obviously lacking in so many parts of our society. 

In the end the backlog crisis presents a choice. It is possible to pursue relatively inexpensive procedural changes that offer modest gains while leaving the underlying structure largely intact. Alternatively, it is possible to undertake the more demanding task of rebuilding capacity through sustained investment. The former may be politically and financially easier but it is unlikely to resolve the problem in any fundamental sense.  A system that responds by reducing the availability of jury trial, without addressing the reasons for delay, risks compounding that difficulty. 

THE MACHINE IN THE MIDDLE CHAIR

There is a document that arrives at the bench before sentence is passed on most defendants who have pleaded guilty or been convicted in a magistrates court. It is called the pre-sentence report. For decades it was the work product of a probation officer who had interviewed the defendant, reviewed the circumstances of the offence and formed a professional view about risk, remorse and the most appropriate disposal. Its authorship was human. Its limitations were human. It could be questioned, challenged and probed. The probation officer who wrote it could be asked to clarify. That report still arrives. But the professional view it contains is now substantially shaped by something that cannot be questioned in court, cannot be cross-examined and whose inner workings are protected by commercial confidentiality. It is called the Offender Assessment System known as OASys. 

That is where we are but a little history of how we arrived here is of some interest.  OASys was developed by the Home Office through three pilot studies before being rolled out across the entire prison and probation system in England and Wales between 2001 and 2005. It did not spring from a single moment of invention. The Home Office had commissioned its first statistical predictive tool, the Offender Group Reconviction Scale (OGRS), which was deployed in 1996 across probation offices in England and Wales. This simple algorithm has since been incorporated into OASys which grew to incorporate additional machine learning algorithms. The intellectual framework behind it was the "What Works" movement in criminology; the idea that recidivism could be reduced by matching offenders to evidence based interventions in place of adopting either of the two assessment tools then in use.  This revised study of sentencing was based to some extent on pioneering innovation in Minnesota USA in 1978.  In 1984 the United States Supreme Court required all judges to use  those sentencing guidelines which had resulted.  The link between the American systems and the English sentencing guidelines is real although the influence was intellectual rather than structural.

The grading of offences, lists of aggravating and mitigating factors and sentence recommendations traceable to publications by Professor Andrew Ashworth in 1983 and 1987,  was ultimately adopted by the Sentencing Guidelines Council and then its successor the Sentencing Council established in 2010. 

By January 2025 OASys was producing more than nine thousand assessments every week. The benches of England and Wales are reading its outputs on a daily basis without, in the great majority of cases, knowing quite what they are reading.  However, the National Offender Management Service describes its risk scores as the most influential document in the sentencing, planning and management process. 

OASys combines what its designers call structured professional judgment with risk prediction algorithms. It weighs static factors such as age and criminal history alongside dynamic ones including accommodation, employment prospects, relationship stability and drug use. Each of those dynamic variables is a proxy for poverty. A defendant who rents insecurely, has no steady job and lives in a postcode where drug use is prevalent will score higher risk not because of anything intrinsic to their character but because the circumstances of their life which the law is supposed to assess as mitigation have been re-encoded as danger. The algorithm does not make moral distinctions. It processes inputs.

The bench that receives this report cannot interrogate the algorithm. The defence solicitor cannot see the weighting applied to each variable. The probation officer who compiled the report may not fully understand how the score was derived. The number arrives with institutional authority, dressed in the language of professional assessment and it influences bail decisions, sentencing outcomes, the choice of disposal and, further down the line, which prison a defendant is sent to and what rehabilitation programmes they are permitted to access. This is, to use an appropriately judicial word, consequential.

When I was sitting the pre-sentence report was a document I read critically. My colleagues and I had been trained to question it, to look for inconsistencies between the circumstances described and the recommendation made, to consider whether the probation officer had taken adequate account of the defendant's own account of themselves.  Indeed with my colleagues` assent I often spent almost as much time questioning the report`s writer as I did on the sentence pronouncement.   That critical engagement was part of the magistrate's function. It is not clear how a magistrate in 2026 is supposed to exercise the same critical engagement with a risk score generated by a system they have never been told exists, let alone been trained to evaluate although I quite understand how some magistrates with long memories might find themselves at odds with current thinking.  

The theoretical appeal of algorithmic decision-making in criminal justice is straightforward and not without merit. A machine, it could be argued, does not have bad days. It does not form unconscious impressions based on how a defendant presents. What an algorithm does inherit is the data on which it was trained.  The Lammy Review of 2017 established that at every stage of the criminal justice process in England and Wales people from black, Asian and minority ethnic backgrounds face worse outcomes than white defendants and that those disparities cannot be explained by the nature of the offences with which they are charged. When a predictive algorithm is trained on historical conviction and sentencing data it learns that pattern. It does not learn that the pattern might reflect injustice. It learns that the pattern is the baseline.

There is a wider context. The Court of Appeal's handling of the Post Office Horizon appeals, completed in 2021, established with the force of authority what common sense had always suggested: convictions cannot stand if based on unexamined software outputs.  The great majority of those prosecutions was heard in magistrates courts. The benches that convicted those defendants were not acting in bad faith. They were operating within a system that presented computer evidence as reliable, offered no mechanism for challenging it and proceeded on the institutional assumption that if a machine said it, it was probably true.  A bench can be challenged on its reasoning. A risk score cannot.

The Horizon software was not artificial intelligence in the modern sense. It was a financial management system that produced erroneous data and whose errors were systematically denied by those with an institutional interest in the system's reliability. 

But the principle is identical to the one that now applies in every courtroom where an OASys score informs a sentencing decision. If the output of a computer system is accepted without scrutiny, justice is not being done. It is being performed.  

In December 2023 the Courts and Tribunals Judiciary issued guidance to judicial office holders including magistrates on the use of artificial intelligence. The Judicial College identified preparing for innovation and change as a key objective in its activities report for 2023 to 2024. The Ministry of Justice's AI Action Plan, published in July 2025, committed to rolling out enterprise grade AI assistants to every member of Ministry of Justice staff by December of that year. Although substantial progress has been made that aspirational hope has still some way to go. However Microsoft 365 Copilot has been made available to leadership judges following a successful pilot. But to date even so called “leadership magistrates” have not been allocated Copilot licenses. Instead AI use in the magistrates’ courts is described to be at an operational/pilot level.

Whilst the above offers political sound bites [bytes?] for the MOJ  for the fourteen thousand or so lay magistrates of England and Wales there is currently no attempt to offer systematic understanding of the algorithmic tools that are already shaping the documents they read in court. There is no requirement that a pre-sentence report disclose the weighting applied by OASys to the variables it has assessed. There is no mechanism by which a defence advocate can challenge a risk score on behalf of their client.

The argument for the lay magistracy has always rested on the principle that local people, drawn from the full range of community life, bring a judgment to the lower courts that is both democratically grounded and practically wise. But that principle requires that magistrates be in full possession of all the material that bears upon the decision before them. A bench that is reading, without knowing it, the output of a commercial algorithm is not in full possession of the material. It is in possession of a summary that someone or something has already partially made up their mind about.  

It is a human not a machine which sits in the middle chair.  But that ephemeral machine has acquired a significant influence over what happens to the person who stands before it. That influence is invisible, unaccountable and, as far as the magistracy is concerned, but a phantom in time and space.  It is now apposite  for reality, transparency and confidence in humanity to once again oversee the court process.