THE AUGEAN STABLES OF JUSTICE

 

"Plus ça change, plus c'est la même chose,"

"What goes around comes around"

"Same soup, just a different ladle."

Three common adages to which, the longer one lives, the more often one can relate.  With regard to revolving doors scandals  the relationship becomes narrower.  Refine that narrow connection to those where separate legal scandals collide and we have what can be termed a confluence of scandals.  

This commentary on this site [earlier posts can be found at  https://amagistratesdiaries.blogspot.com/ ] began in 2013 and it is a post from 16th August that year which is regularly the most visited post apart from whatever happens to be the current offering and which readers might visit to appreciate the nature of this long standing complicity by HMCTS in what was, is and possibly will continue to be a carbuncle on the face of British justice. Thirteen years is quite a long time for any topic to be a reference for present day problems or questions.  That problem was a situation I encountered in my first few weeks on the bench.  Those posts within 16/08/2013 apparently have not changed the substance of this scandal; namely the rights of consumers versus the rights of utility companies to force fit pre payment energy meters.   

I, and some of my then colleagues and a sympathetic legal advisor,  did our best within the very narrow limits available to bring this injustice to higher levels with the system.  We failed except when I was active I made it known to the Deputy Justices Clerk that I would insist in processing at an "applications court" in the manner that I and my colleagues thought appropriate.   The Magistrates Association for ever loyally toadying to government was useless and disinterested.  It would appear by all accounts that since my retirement procedures that a few of my colleagues and I tried to expose and eradicate  were allowed to continue unchanged. 

It takes two (scandals) to tango ( conflu).  I objected to the second activity before it became a "procedure" and retired before that "procedure" became the norm; namely The Single Justice Procedure of which many posts have been made over the last decade.  As I understand it there is no compulsion for magistrates to sit within the SJP.  The legislation (the Criminal Justice and Courts Act 2015) simply creates the power for a single magistrate to hear cases in this way; it does not direct which magistrates must do so. In practice, SJP sittings are allocated by local bench/HMCTS scheduling and magistrates are rostered on to them much as they are rostered on to any other sitting. Whether a JP can easily decline is a matter of local practice rather than statutory right but there is no compulsion in law.  The MA has itself recommended that to sit alone on SJP cases magistrates should have passed their threshold appraisal and sat for one additional year in the adult criminal court  implying that currently there is no such formal gate and magistrates can effectively be put on SJP sittings without that experience.  Between 1 April 2019 and 30 September 2023 over 3.1 million criminal cases including applications to force fit utility meters were received into what is now termed The Single Justice Service. 

This second scandal has been deliberately engineered by HMCTS in a feeble attempt to speed up the reduction of a backlog existing before Covid but essentially magistrates courts were not in crisis before Covid: 290,000 outstanding cases. That backlog was large but stable unlike the present position. The crisis came after March 2020 when the pandemic drove outstanding cases sharply upward from that already substantial base.

Once again as with the current debate over judge only trials allied with the recent spate of perverse verdicts an astute observer must question the ultimate purpose of the SJS.  It`s  difficult to believe it`s justice driven.  With no official figures it functions within a system for magistrates who feel that once in the club they must obey the rules. 

In 2024 The Magistrates' Association carried out a snapshot survey.  The findings were striking. The MA found that many of its members were uncomfortable with the SJP process as it currently works and a significant proportion felt they did not always get as much time as they needed to properly consider each case. The MA also found that although training on the SJS was available members felt that it was largely focused on how to use the system and did not emphasise that the SJP was a judicial process in which magistrates could exercise their discretion as they do with cases heard in court. That second point is particularly telling; JPs were feeling the procedure was stripping them of the judicial identity that was central to why they volunteered in the first place. It was significant that the MA Chairman commented of the SJS that the principle was sound but the concession was plain: magistrates should not be put under any pressure "to complete a certain number of SJP cases within a certain amount of time"  ironic in the face of the evidence that that was exactly why the SJS was originally formulated. 

JPs joined the magistracy to sit in open court, weigh evidence, exercise judgment visibly and be part of a community of justice. The SJS asks them instead to work through paper files, often rapidly, in private and  crucially  without the bench colleagues they would normally deliberate with. Because magistrates sit alone on SJS work rather than as a bench of three the MA believes there is a case to extend further training to ensure that magistrates have more experience and confidence for this work and has recommended that two magistrates sit together initially so there are opportunities for observation and collaboration before undertaking the work alone. 

 A significant portion of the magistracy finds it uncomfortable, under resourced in terms of time and training and at odds with why they chose the role. "Rubber stamp" anxiety, the fear of becoming a processing function rather than a judicial one, seems to be an underlying theme of magistrates` opinions. 

And now there is public awareness of another legal failing associated with SJS.  First it was the non payers of the BBC License and now  hitting the financially disadvantaged members of our society  with debts on their gas and/or electricity meters.  

Since the beginning of this century 15 MPs have held the post of Lord Chancellor with 9 different people having held the post since 2015 alone. Is it any wonder that the so called justice system is in disarray? From complete incompetents such as Chris Grayling (September 2012 to May 2015) to incumbent David Lammy who assumed office 5 September 2025 and whose brown tongue is his helping hand, management and philosophy seem be run by the Treasury and sycophants with their eyes on higher office.



The history of legal scandals colliding in this country is quite outstanding: when one disappears below the public horizon another appears within months.


Post Office scandal + Infected blood scandal


Chris Pincher scandal + Partygate scandal


Guildford 4 and Birmingham 6 cases + West Midlands Serious Crime Squad scandal


Jimmy Savile sexual abuse scandal + Operation Midland


Hillsborough Disaster cover up + Orgreave Dispute allegations


Cash for honours scandal + MPs` expenses scandal


One of the strongest examples:
Post Office scandal colliding with wider disclosure failures in criminal justice.


Strictly by overlap in active public controversy:
Operation Midland + Rotherham child sexual exploitation scandal strongly overlapped during 2014–2016.



These are just a few but the pattern of failings is undeniable. The Augean stables of justice need a Hercules. In our current economic and foreseeable political situation the second coming is more likely.

IS REMOVAL OF JURIES COCK UP OR CONSPIRACY?

What was once considered just another of the reasons that this country could hold its head up high in combining social cohesion and centuries old tradition was people`s and parliament`s faith in the jury system; a system that has been copied wherever justice is based upon the common law.  However bigwigs such as Lord Sumption have questioned the near sacred status it enjoys. The Court of Appeal, in Webster & Ors v The King [2026] EWCA Crim 9, has reminded us that jurors have an immunity from punishment for their verdicts rather than any positive right to defy the law, a distinction which, as the Vice-President of the Criminal Division acknowledged, may be lost on some.   Is it possible or perhaps credible that  part of the political calculus behind proposals to reduce jury trials be a concern, unspoken and perhaps unacknowledged even within government, about the composition of juries in an era of demographic concentration and, in particular, about the attitudes of certain communities to Jews, to Western legal values and to the obligations of civic life? Having been a magistrate for seventeen years and reaching conclusions based on the evidence presented this post will attempt to find an answer to the preceding question. 

First some statistics published here a couple of months ago.

 Top 5 areas by number of Muslims (England & Wales) are

1. Birmingham        341,800

2.Bradford               166,800

3.Tower Hamlets    123,900

4.Manchester           122,900

5.Newham                122,100

Top 5 areas by percentage Muslim  population

1.Tower Hamlets                                    39.9%

2.Blackburn with Darwen                     35.0%

3.Newham                                                34.8%

4.Luton                                                     32.9%

5.Redbridge                                             31.3%

Nationally Muslims are about 6.5% of England and Wales so all above areas are far above average. The top 5 wards by % Muslim population exhibit even higher concentrations of Muslims.

1.Bastwell (Blackburn with Darwen)        73.5%

2.Shear Brow (Blackburn with Darwen)  70.3%

3.Whitefield (Pendle)                                   67.1%

4.Toller (Bradford)                                       64.3%

5.Small Heath (Birmingham)                     62.1%

Trials begin with the selection of a jury.  Jurors are drawn from the electoral register of the crown court catchment area. Consider the London area.  Inner London Crown Court, Woolwich, Snaresbrook and  Wood Green Courts  draw their panels from populations that have, in a generation, been transformed in ways that are demographic fact rather than editorial opinion.  As listed above London is not the only area transformed in a generation.  The Policy Exchange report of 2024, drawing on fieldwork conducted by a reputable polling organisation, found that a significant minority, around a quarter,  of British Muslims did not consider themselves bound by British law in matters where they perceived it to conflict with their religious obligations. A separate survey, conducted by the Campaign Against Antisemitism, found that Muslims in Great Britain held antisemitic attitudes at rates substantially above the national average with around forty percent agreeing with at least four of a battery of antisemitic propositions. These are not fringe findings plucked from partisan websites. They are peer-reviewed and methodologically defensible data points.

A jury of twelve is selected at random. In a catchment area where one in four or one in three residents holds the views described above the statistical probability of those views being represented on the jury panel is not negligible.  In any of the areas listed above in a trial touching however loosely on facts or allegations concerning Jews and/or Israel who is to say that a verdict would be based solely on evidence presented and not influenced by prior prejudicial opinions.  Indeed on Islamist protest activity or on any matter which might engage religious or communal solidarity, the risk of a verdict driven by something other than the evidence is real. The Webster appellants were environmental activists, predominantly white, middle-class women. What happens when the defendant is a young Muslim man charged with a knife offence and three jurors share his background and his community? What happens when a Jewish complainant gives evidence of fraud against a Muslim defendant in East London? 

One need not posit conscious bias. The Court of Appeal in Webster cited Lord Devlin's observation that the jury system is "an insurance that the criminal law will conform to the ordinary man's idea of what is fair and just." The insurance pays out only if "the ordinary man" shares certain foundational commitments about the rule of law, about equality before the courts and about the irrelevance of the complainant's faith or ethnicity to a verdict. Where those commitments are not universally shared the insurance policy begins to look rather threadbare.

Those who designed the current proposals to move either way offences into the magistrates court, to expand judge only trials in fraud cases and to revisit the thresholds for crown court election will not say this. A minister who watches perverse acquittals accumulate in certain court centres, who reads the survey data and who understands that the problem can only worsen as demographic concentration deepens, has a powerful incentive to reduce the jurisdiction of the jury without ever providing the real reason for doing so. The official justification; court backlogs, costs, efficiency,  is real enough in itself. It need not be the only reason for a policy to nonetheless serve its unsaid purpose.

However strange, unusual, unexpected or unexplained events are not necessarily the basis on which to establish a conspiracy.  These  could be  adequately explained by incompetence, fiscal pressure and institutional inertia:  features hardly unknown within British governments of recent decades.   The criminal courts backlog is, by any measure, a genuine catastrophe. The average wait from charge to crown court trial stands at over five hundred days in many jurisdictions. The remand population is swollen. Witnesses disappear, memories fade, complainants withdraw. The government's proposals to divert either way offences downward have been advanced by every administration since at least the Auld Review of 2001. They require no ulterior motive. They are the default response of Treasury dominated governments to a justice system  chronically underfunded since 2010.

Moreover, if demographic concern were genuinely driving policy, one would expect the government to be restricting jury trial in precisely those courts and for precisely those offences where the risk of communally influenced verdicts is highest. It is doing nothing of the sort. The proposals are blanket, bureaucratic and generic. They are the work of officials who think in spreadsheets rather than of politicians who think in community relations statistics.

There is also a logical objection to those who would tend to believe in conspiratorial avenues of belief. The magistracy, to which these diverted cases would flow, is itself drawn from the same communities. It too is subject to the same demographic pressures, the same communal solidarities and the same survey findings. If a religiously motivated juror troubles the government, a religiously motivated lay magistrate should trouble it equally.  The distinction between twelve random citizens and three sitting magistrates may matter considerably less than is supposed, particularly as the magistracy has been actively recruited from previously under represented communities over the past two decades.  Problem is that this government refuses to publish details of magistrates` religious affiliations if any. A Freedom of Information request on this topic was refused as per below:-

Information on the religion of those recruited to the magistracy was collected for applications to the magistracy made from January 2022, following the launch of a revised recruitment process. MoJ does hold information on the religion of magistrates who were subsequently appointed via this revised process, however this information is exempt from disclosure under section 22(1) of the FOIA, because it is intended for future publication. This is a qualified exemption which means that the decision to disclose the information is

subject to the public interest test. When assessing whether or not it was in the public interest to disclose the information, we took into account the following factors:

Public interest considerations favouring disclosure

• Disclosure would improve transparency in the operations of Government, and of the justice system in particular.

Public interest considerations favouring withholding the information

• It is in the public interest to adhere to the existing publication process for official statistics, which includes time for the data to be collated and properly verified.

• It is in the public interest to ensure that data used in the compilation of official statistics comply with the Code of Practice for Official Statistics and that resulting outputs are produced to the highest quality.

• Statistics of high quality are produced to sound methods, with all users having easy and equal access that is fair and open and are managed impartially and objectively in the public interest. Premature publication would undermine the principle of making the information available to all at the same time through the official publication process. We reached the view that, on balance, the public interest favours withholding this information under section 22 of the FOIA at this time.

The official magistrate trend data over roughly the last decade is by ethnicity, not religion. Using available statistics a plausible estimate is that Muslims likely comprise somewhere in the low single digits of the magistracy overall,  probably materially below their roughly 6.5% share of the England & Wales population.

The proposition that the removal of jury trials furthers a long term intention to curb the possible increase in perverse verdicts driven by beliefs or religious affiliations assumes a degree of strategic sophistication on the part of this government which its record does not obviously support. Governments which could identify a problem this subtle and design a structural response this elegant would not also have produced the Rwanda scheme, the Post Office Horizon legislation or the procurement disasters of recent years. Hanlon's razor* applies. What looks like cunning is usually muddle.

To the original question in my opening paragraph the honest answer is that I do not know.  The judiciary, the Bar, the Law Society and the academic commentariat have discussed proposals to restrict jury trial almost entirely in terms of efficiency, cost and delay.  The demographic transformation of English jury pools combined with survey evidence of attitudes among certain communities that are genuinely difficult to reconcile with the neutral administration of justice, represents a question that the legal establishment is as yet unwilling to ask in public.

The jury system survives because the public trusts it. That trust rests on the assumption that twelve random citizens will, broadly speaking, share certain irreducible commitments to evidence, to impartiality and to equality before the law. If that assumption is becoming less universally reliable then the debate about jury trial reform is considerably more serious  and considerably more uncomfortable  than the official conversation currently admits.  A sturdy unimpeachable justice system is an essential pillar of a society`s confidence in a  nation`s democracy.  

As Shakespeare wrote in King Henry VI, "Confidence once lost is not easily recovered."

* a philosophical rule of thumb that states: "Never attribute to malice that which is adequately explained by stupidity (or incompetence/ignorance)."

BELIEVERS ONLY

HMCTS  latest information on "turbo charged" national recruitment is available here.  Those who have confidence this programme will be totally successful without the dilution of standards possibly have confidence that the aeronautical abilities of porcines have been underrated. 

YOUTH JUSTICE OR INJUSTICE?

There are myriad aspects of society which can be used as indicative of the how or why that society is changing, developing, achieving or failing. The blunt truth exploited by those who rule over us is that anything can be proved by anyone with the tools available for the task and government exploits those tools invariably to its own advantage. The degree, depth and direction of such manipulation is dependent upon the tendency or otherwise of authoritarianism within that government. In simple terms the greater the transparency shown by a government the more likely its democratic functions are firmly entrenched and more resistant to control from above. There is little doubt that the greater the open mindedness of statistical analysis of youth criminality the greater is the likelihood of meaningful action of processes in its reduction.



The seeds of serious law breaking in adulthood have often been established within the youth justice system. England has amongst the lowest age of responsibility in Europe and where shoplifting is a concern in the high streets from Plymouth to Carlisle. The legal, social and moral path of magistrates faced with offending children is fraught with difficulties between retribution and rehabilitation. Last week at Highbury Corner magistrates court a bench led by a senior magistrate, Alexia Fetherstonhaugh, opted for the latter pathway for a teenager who pleaded guilty to a two year shoplifting spree of £116,000. A report is available here.



There is a particular brand of English self-flagellation that surfaces whenever crime statistics are published. We are, it is implied by headline writers and opposition spokesmen alike, uniquely delinquent. Our young people, we are told, are feral in ways that would dismay the good burghers of Copenhagen or Hamburg. Before those of us who have sat on the bench and seen something of what courts actually deal with are tempted to accept this grim verdict it is worth pausing to ask whether the evidence actually supports the conclusion being drawn.
The question is a specific one: are the children of England and Wales stealing more than their counterparts elsewhere in the developed world? It is, on the face of it, a simple empirical matter. In practice it is anything but, and the caveats that attend any honest answer to that question are not merely statistical pedantry. They go to the heart of how we understand and misunderstand the youth justice landscape.



To begin with The Youth Justice Board`s most recently published annual statistics, covering the year ending March 2025, record approximately 35,600 proven offences by children aged 10 to 17, a figure that has remained broadly static following two years of modest post-pandemic recovery. Theft and handling, which had fallen to as little as 7% of all proven offences in 2020/21, has crept back up to 14% of that total representing something in the region of 4,900 to 5,000 individual proven offences. That recent uptick merits attention. But it must be viewed against the longer arc: over the preceding decade youth theft in England and Wales fell by approximately 86%. That is not a rounding error; it could be classed as a structural transformation. On the other hand it could also be affected by the reluctance of victims to report criminal acts against them.



With regard to the situation in Europe the caveats begin in earnest. Anyone who tells you they can produce a clean, like for like comparison of youth theft rates across European jurisdictions is either badly informed or being less than candid. The obstacles to meaningful comparison are formidable. England and Wales as mentioned above sets the age of criminal responsibility at ten years old one of the lowest thresholds in the developed world. Germany, Italy and most of the Nordic countries do not criminalise children under fourteen. The French age of criminal responsibility sits at thirteen. When a fourteen year old shoplifts in Düsseldorf no conviction is recorded; the same act in Wolverhampton enters the statistics. The edifice of comparative data is built on foundations that are not remotely uniform.



Prosecution policies diverge further still. Whether a young person is cautioned, diverted or brought before a court; whether shoplifting below a certain value is treated as a criminal matter or a civil one; whether police recording practices emphasise detection or diversion; all of these variables contaminate the official figures before a single comparison is attempted. Researchers at the Max Planck Institute for the Study of Crime, Security and Law have been admirably direct on this point noting that official crime rates simply do not lead to valid international comparison owing to variations in crime definitions and prosecution policies. I suppose we should be grateful for that scholarly candour even if politicians and commentators rarely heed it.



The more reliable instrument and one that has gained significant traction in criminological circles, is the self-report survey. The International Self-Report Delinquency Study now in its fourth iteration and covering some forty countries asks young people directly about their own behaviour, bypassing the distorting lens of the criminal justice apparatus. These surveys suggest that England and Wales sits, broadly speaking, in the middle of the European pack. We are not Sweden. But nor are we Serbia. Self-reported rates of shoplifting and petty theft among British adolescents have historically been comparable to those in the Netherlands, Belgium and Germany when age groups are properly matched. The hand wringing headlines about uniquely degenerate English youth are not, on this evidence, well founded.



What is rather more striking and rather more important is what has been happening across the whole of Western Europe and North America simultaneously. The youth crime drop is one of the most significant and least publicly understood social phenomena of the past thirty years. From the mid 1990s onward youth offending of almost every kind declined dramatically in country after country: the United States, Sweden, Spain, Denmark, Finland, the Netherlands and yes, England and Wales. The proportional reductions were in many cases between 50% and 75%. Property crime, including theft, led that decline. The causes remain genuinely contested; declining unstructured socialisation between young people, reduced alcohol consumption, the growth of digital entertainment keeping children off the streets but the fact of the decline is not in dispute.




What is now also apparent is that the decline has, since approximately 2015 and more visibly since the pandemic, begun to level off. Self reported property crimes have been rising in at least five European countries. Shoplifting offences across England and Wales, for all age groups, have reached record levels. That the recent uptick in recorded youth theft in this jurisdiction is matched by similar trends elsewhere should at least prompt us to consider whether we are dealing with a locally generated problem or a shared European one. The evidence rather suggests the latter. The cost of living, the contraction of retail security investment during the pandemic years and the changing social routines of adolescents appear to be common drivers.



There is one structural feature of England and Wales that genuinely distinguishes us from most European comparators and it deserves more attention than it typically receives. The low age of criminal responsibility means that children who in Germany or Denmark would receive welfare or educational interventions are, in this jurisdiction, processed through the criminal justice system. A ten year old cautioned for shoplifting in Nottingham is a statistic; the same child in Nuremberg is a welfare case. This is not merely a question of nomenclature. It shapes the trajectory of a young life, the composition of our proven offence data and arguably the reoffending rates that subsequently haunt our statistics. Children with a theft index offence, we are told, reoffend at a rate of over 44%. One might enquire whether that reflects the criminogenic character of young thieves or the criminogenic character of early criminal justice contact itself. Several decades of research across European jurisdictions point rather firmly toward the latter.

Those of us who spent years on the bench know something that statistics struggle to capture: the extraordinary ordinariness of most of them. They are not a different species. They are children making poor decisions in circumstances that adults have frequently had a hand in creating eg inadequate housing, fractured families, failing schools and communities starved of youth provision. The Youth Justice Board notes that the average time from offence to completion at court now stands at 230 days, the highest ever recorded. Whatever one thinks about the merits of swift justice the idea that a fourteen year old connects a court appearance eight months after the event with the act that prompted it strains credibility.



The conclusion that honest engagement with the evidence compels is an uncomfortable one for those who prefer simple narratives. The youth of England and Wales are not uniquely delinquent. They are part of a Western pattern that rose, fell dramatically and has recently shown signs of modest reversal. The data that purport to show otherwise are built on definitional foundations too shaky to bear the weight of confident assertion. That is not a counsel of complacency. It is a demand for intellectual rigour, something which, in the discourse around youth crime, has rarely been in plentiful supply.

FACIAL RECOGNITION TECHNOLOGY OR PUBLIC ANONYMITY?

It was in Tokyo 1880 that the first conviction based on finger printing took place. In due course the technique spread and its development and implementation in the first years of the 20th century led to high profile convictions in UK in 1902. Around this time Scotland Yard had built massive data bases which revolutionised the conviction rates of police forces throughout the country.

It was 10 September 1984 at Leicester University that the world's first genetic fingerprint emerged. Since that Eureka moment DNA has revolutionised the science of criminology amongst many medical and other scientific innovations which have benefitted millions of people worldwide. However both these aids to police enforcement initially met with some scepticism as did the introduction of new techniques throughout history from the bow and arrow to the steam engine or spinning jenny.


Today it`s almost impossible for a week to go by without news of some controversy on the subject of police using facial recognition AI. As with the argument employed over a century ago enhanced crime solving is at the root of the argument for those charged with enforcing the law but finger printing was applied mainly to those whom police suspected were in some way connected to an offence however remotely or for the elimination of their involvement. Mass facial recognition can rapidly match suspects to CCTV footage, cold case evidence, or wanted databases cutting investigation times from weeks to hours. Socially, communities with high crime rates might welcome the tool but over time risk normalising pervasive surveillance as a permanent feature of public life. Proponents of facial recognition technology [FRT] argue the technology can flag known terrorists at airports, stadiums or large events before an attack occurs. FRT has been used to identify trafficking victims and missing children giving it a strong humanitarian framing. If this argument prevails it becomes politically toxic to oppose the technology outright forcing critics into a defensive posture. Socially it creates a permissive norm "if it saves children" that can be extended to far broader applications. The question is how far can or should the technology be extended.


There are classic arguments against the use or wider use of FRT. Perhaps the most persuasive is what effects does mass surveillance have on civil liberties. Even when accurate the knowledge that one's movements are tracked in public fundamentally alters behaviour. People might avoid protests, places of worship or political gatherings. Political success of this argument energises civil liberties coalitions across the left-right spectrum (libertarian conservatives and progressive liberals often unite here). Socially, if the argument fails, democracies quietly cross a threshold into infrastructures of control previously associated with authoritarian states with little prospect of reversal. Currently there is a lack of legal framework and accountability. In some jurisdictions police have deployed FRT with no specific legislation governing its use, data retention or oversight. In such a scenario the precedent is set that novel surveillance technologies can be adopted by executive agencies without democratic consent weakening legislative authority over policing.


There is the old adage; "Give the devil a finger and he will bite off your arm". In many cases the government is that devil. Technology introduced for serious crime quickly migrates to minor offences, immigration enforcement and political monitoring. The political repercussion of ignoring this argument is substantial: governments that promise limited use rarely deliver it and once infrastructure exists successive administrations inherit and expand it. Socially, this gradually redefines the relationship between citizen and state moving from presumption of innocence in public spaces to presumption of identifiability.


Studies have shown FRT systems have significantly higher error rates for darker-skinned faces and women, meaning black and minority communities face disproportionate risk of wrongful identification. If this argument gains political traction it can lead to legislative restrictions or outright bans (as occurred in several US cities).


Most FRT systems are built and maintained by private companies raising questions about who ultimately controls the data. Political success of this critique can lead to data sovereignty legislation and restrictions on private-sector involvement.


The core tension is fundamentally one of collective security -v- individual liberty; a perennial democratic dilemma. What makes FRT particularly consequential is its scalability: unlike a stop and search, it can surveil millions simultaneously, meaning the stakes of getting the policy wrong are unusually high in either direction. Facial recognition technology is being deployed on British streets by British police forces operating largely outside any statutory British framework. Parliament has not legislated; the courts have not settled the boundaries and the public has not consented. A technology capable of identifying every person in a public space demands primary legislation, not policy guidance. Government must decide: is anonymity in public a right, or merely a convenience it has the authority to withdraw? Do we want more or do we demand less?

HANDS - FREE FITTED: SO WHAT`S YOUR EXCUSE?

There is much criticism from lawyers of the attitudes of lay magistrates.  A common term of derision is [was] that they are muppets.  Another is that they are so inured to the lies of witnesses, including defendants, that they can`t tell an innocent or truthful account from a pack of lies.  But similar criticisms radiate from the bench to those in the dock. There are moments on the bench when there is a collective intake of breath owing not to outrage, nor  puzzlement but something closer to weary contempt.

There stands a defendant who is not impoverished, not confused, not a victim of circumstance.  S/he is accused of using a mobile phone whilst driving.  Facts before the court are that s/he was driving a late-model Audi or a BMW or a Mercedes or Jaguar or  almost any model bar the most basic produced in the last ten years.  It can reasonably be assumed the vehicle came  with a touchscreen infotainment system, a Bluetooth connection, Apple CarPlay and probably a built-in voice assistant capable of reading messages aloud while the driver keeps both hands on the wheel and eyes on the road.  And yet here stands that defendant  having been caught with a mobile phone pressed to an ear or balanced on a knee or clutched in one hand while the steering wheel was  attended to by the other.  

The mitigation when it comes is invariably the same: I only glanced at it for a second. One second. At 60 mph, that is approximately 88 feet covered in one second of blind travel. One second. At 30 mph in a residential street that is still 44 feet per second; enough to miss a child stepping from between parked cars.

The Home Office publishes annual roads policing data drawn from the national PentiP processing system covering 43 forces across England and Wales though with characteristic institutional inconsistency  excluding the Metropolitan Police Service which continues to operate its own parallel recording system as though the capital exists in a separate judicial universe. On those terms 36,842 fixed penalty notices were issued for the use of a handheld mobile phone while driving in 2023. This represented a 33% increase on the previous year's figure of 27,776. In 2024, enforcement rose by a further estimated 11% pushing the total to somewhere in the region of 40,900. For 2025 full-year data has not yet been published; the Home Office's roads policing statistical bulletin running to December 2024 was only released in March 2026 and covers nothing beyond that.

Set those figures alongside data obtained by freedom of information requests from individual forces and a picture begins to emerge. Greater Manchester Police issued nearly 12,000 penalties across the 2023–2025 period. The Metropolitan Police, perennially hard to pin down, appears to have issued around 7,000 across the same span; a figure that, if accurate, looks remarkably modest for a force policing one of the most congested and densely populated areas of Europe. Whether this reflects a genuine enforcement deficit or merely the MPS's customary reluctance to submit its data to national aggregation is a matter for another day.

For readers who are not involved in the justice system here are  a few facts. The penalty for being caught using a mobile whilst driving is £200 and six points. Since March 2017 there has been no facility to attend a speed awareness-style course in lieu of points, Parliament having decided, with some firmness of purpose, that the 2017 tightening of the legislation would also remove the escape hatch that had previously allowed first-time offenders to avoid endorsement. A newly qualified driver who picks up six points within two years of passing their test will have their licence revoked automatically. Even for experienced drivers a second offence within three years means twelve points and the near-certainty of a totting-up disqualification unless exceptional hardship can be demonstrated. These are not trivial consequences. They are, by the standards of summary justice, quite severe. And yet tens of thousands of drivers continue to be caught every year.

The kernel of this post is why do so many tens of thousands of drivers of vehicles equipped with manufacturer-proprietary systems that allow calls to be made, received and managed entirely through the steering wheel controls or by voice command fail to use the technology they have purchased.  The driver need not touch the phone at all. The phone can remain in a pocket, a bag or a glovebox. It need not even be visible. The technology that renders the offence entirely avoidable has been sitting in the dashboard since the car was delivered from the showroom.  This being so, one is compelled  professionally, judicially, as a matter of straightforward logic,  to ask what category of person in possession of such a vehicle finds themselves nonetheless prosecuted for using a handheld device. The taxonomy, it seems to me, offers only three possibilities.

The first is ignorance. The driver genuinely does not know that their car has Bluetooth, has never paired their phone and has never investigated what the various buttons on their steering column actually do. This is an increasingly implausible defence as the years pass and as manufacturers' interfaces become ever more intuitive as dealers routinely demonstrate the pairing process on handover and as the government's "THINK!" campaign has spent considerable public money ensuring that drivers understand the rules. But let us grant that some small minority of drivers falls into this category. They are not malicious. They are simply inattentive to the world around them in a manner that is, in itself, mildly alarming in someone who is simultaneously operating a vehicle.

The second possibility is arrogance. The driver knows the law, knows the penalty, knows that their car has Bluetooth and has simply decided that the inconvenience of using it or the mild social embarrassment of asking a caller to hold while they connect is not worth the bother. The call is important. They are an important person. Their time is valuable. The law is, in this particular respect, a nuisance designed for other people. This driver, encountered in the dock, will often display a certain incredulous quality during proceedings, a faint air of surprise that the matter has been pursued to this point, as though the entire apparatus of prosecution and penalty has misunderstood who they are dealing with.  

The third is wilful stupidity;  perhaps the most common and certainly the most resistant to deterrence. This is the driver who knows the rules in the abstract but who, in the moment, simply does not apply them. The phone rings and the impulse to look is overwhelming. The risk feels remote. Nobody ever thinks they will be the one who is caught or the one who causes a collision. Optimism bias is a powerful cognitive force and it kills people. According to the Department for Transport's reported statistics, mobile phone use contributes to a significant number of serious collisions each year although precise attribution is notoriously difficult, since the phone is rarely still in the driver's hand by the time investigators arrive.

The magistrates' courts process those cases that are contested.   The precise number who take this route and the proportion who succeed in obtaining an acquittal is not published in any disaggregated form by the Ministry of Justice. What we know is that the overall acquittal rate at magistrates' courts, across all offences, historically runs at somewhere between 16% and 17% of contested cases. A successful challenge to a mobile phone offence typically rests on disputing the officer's visual identification of the device arguing that what was seen was not a phone or that the driver was not using it in the proscribed manner. Since the 2017 amendment extended the definition of "use" considerably, such arguments have become harder to sustain, though they are still attempted.  I remember all too clearly the taxi driver stopped at traffic lights, and in sight of a police officer on his beat, who offered the excuse that he was using the phone as his GP had recommended to massage an area of his face to alleviate the symptoms of his recently acquired Bell`s Palsy.  Needless to say the bench was not impressed.  

The Single Justice Procedure, that curious and still somewhat controversial mechanism by which a single magistrate deals with summary cases "on the papers" without either party appearing in court, handles a substantial and growing proportion of motoring matters. In the first quarter of 2025 alone over 224,000 defendants were dealt with via SJP, representing 67% of all defendants at magistrates' courts. Whether the efficiency gains of this approach come at an acceptable cost in terms of procedural justice is a debate that runs through the professional literature and which this blog has addressed more than once previously. For present purposes, the relevant point is that most mobile phone FPN cases that reach the courts at all will be processed in this manner, quietly and without ceremony, resulting in a fine and endorsement appearing on a licence without the defendant ever setting foot in a courtroom.

Enforcement is rising, which is welcome. The penalty is significant, which is appropriate. The technology that removes any legitimate justification for the offence is now standard in the vast majority of vehicles on the road. The law is clear, widely publicised and robustly prosecuted.  That nearly 41,000 people were still caught in 2024 alone and that the true figure, including the Metropolitan Police's contribution and the inevitable dark figure of undetected offending, will be considerably higher,  suggests that we are not dealing with a problem of legal uncertainty or technological deprivation.  We are dealing with a problem of character and/or personality. Specifically, the character of a driver who, in a car equipped with every conceivable hands-free facility, reaches for their phone anyway.  

From a personal point of view since 1995, before the availability of Bluetooth, I have had a mobile phone. When that technology was available I had it  fitted in all my cars.  And laterally, as above, such system has been installed by virtually all car manufacturers worldwide.  Like others of my generation I was brought up in an era where rightly or wrongly the mere thought of breaking the law was enough to mitigate that possibility however remote.  Just as drink driving has, amongst a majority of drivers, become a socially contemptible offence perhaps all we can wish for is a similar reaction in society as a whole to using a mobile phone whilst driving. 

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.