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.

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. 

WHO, WHAT AND WHY IS THE MAGISTRATES LEADERSHIP EXECUTIVE?

For some time I have been gathering knowledge and information about a body that, without fanfare and indeed not a little secrecy, was created in 2018.  My first post on this topic was on 14th June of that year. Later, in October, quietly and without any public announcement a new body was inserted into the governance of the magistracy. It was called the Magistrates Leadership Executive, the MLE.    It came bearing the imprimatur of the Lord Chief Justice, the endorsement of the Senior Presiding Judge and the stated purpose of providing the magistracy with 'strategic leadership.'  The official narrative runs as follows: the old National Bench Chairmen's Forum had served its purpose; the 2016 Justice Select Committee had identified a need for more strategic leadership of the magistracy; after extensive consultation a new body was created with the support of the senior judiciary to provide just that.

Support from magistrates was less enthusiastic.  At that time the apex of their representation was the National Bench Chairmen's Forum, a body whose members were elected by their peers;  bench chairs chosen by bench chairs, accountable to those who selected them. Its abolition was preceded by a consultation. That consultation found that a majority of magistrates doubted the need for change at all and that among those prepared to accept reform a clear majority wanted any successor body to be elected rather than appointed. Both findings were registered but were set aside. Instead an appointed body was created reporting not to the magistracy but to the Senior Presiding Judge. Within a year of its creation two of its first members had resigned without explanation. 

The decision to appoint rather than elect, as it was later explained to the Justice Select Committee, was taken because an appointed body would have greater 'status' in dealings with the senior judiciary. In  simple terms the process was just another episode in the erosion of the binary concept of an independent part time lay magistracy which was also the most junior part of the judiciary. The principle underlying this arrangement is ancient and important: that justice in the lower courts should be administered by the people, through the people, with no professional stake in the outcome.  Indeed the Ministry of Justice with its recent frantic advertising for new magistrates to overcome the previous government`s recruitment  deficit consistently emphasises the continuing need for local people to administer local justice.  

The National Bench Chairmen's Forum embodied this principle in its governance. Its members were elected by the bench chairs of their regions. They were accountable to those who chose them and could be removed by them. They were, in a meaningful sense, representatives of the magistracy. The MLE is not. Its members are selected through a process that the public cannot observe by a panel whose composition is not published, appointed by the Lord Chief Justice on the advice of the Senior Presiding Judge. Their continuance in office depends on the SPJ's satisfaction. Their terms of reference can be altered or terminated by the SPJ.  

The logic offered for this arrangement was that the  'status' as above was enhanced in dealings with HMCTS  via the  judiciary and by default to government.  It might be noted in passing that an institution which can only acquire status by surrendering democratic accountability has a somewhat complicated relationship with the concept of representation. It is either a sophisticated constitutional argument or an admission that the independence of the magistracy's leadership was deliberately curtailed to make it more pliable. Readers may form their own view. Beneath all the gentlemanly toing and froing  there is under it all a political conjurer`s sleight of hand argument: it concedes, without apparently meaning to, that the MLE's authority flows downward from the judiciary, not upward from the magistracy. 

Three magistrates have held the post of National Leadership Magistrate. Jo King JP was the first, appointed July 2018. She had been the moving force behind the proposals that created the role she then took up; a sequence of events that should at minimum have prompted independent scrutiny of the appointment process and evidently did not.  Duncan Webster OBE JP succeeded her in 2019. His tenure was characterised by an accessible public presence; committee appearances, conference speeches, extensive correspondence with bench chairs  and by one episode that demands examination at greater length than it normally receives.  In January 2022 following the extension of magistrates' maximum custodial powers to twelve months significant criticism was directed at the magistracy from elements of the legal profession. Webster's response was to write to all magistrates. He had spoken, he told them, to the Lord Chief Justice. They had concluded together that it would not be 'appropriate nor dignified' for the magistracy to respond publicly. The Lord Chief Justice was, he added, confident that magistrates would exercise their powers responsibly.

Let us be precise about what happened here. The nominally unelected independent leader of the magistracy consulted the most senior professional judge in the land and then wrote to 13,000 unpaid members of the part time lay magistracy to instruct them not to speak. That instruction was issued in the name of representation. Its content was suppression.

The current National Leadership Magistrate is Alexia Fetherstonhaugh JP appointed by Lady Chief Justice Carr on the advice of Lord Justice Green with a term running to December 2026. Her deputy is Emily Aitken-Fell JP. Nine regional and specialist positions complete the current complement of twelve. Their names are now published on the judiciary website. Whether the magistrates in their regions know who they are, or what they do, is a different question.

For the record below is the current membership of the MLE (as published on the Judiciary website, 2026)

Alexia Fetherstonhaugh JP, National Leadership Magistrate

Emily Aitken-Fell JP, Deputy National Leadership Magistrate

Sara Brown JP, London Regional Leadership Magistrate

Clare Sawdon MBE DL JP, Midlands Regional Leadership Magistrate

Sharon Gould JP, North East Regional Leadership Magistrate

Kulvinder Panesar JP, North West Regional Leadership Magistrate

Jacky Froggatt JP, South East Regional Leadership Magistrate

Thura KT Win JP LLM FCMI MCIArb, South West Regional Leadership Magistrate

Lisa Gerson MBE JP, Wales Leadership Magistrate

Dippy Kharaud JP, Lead Diversity and Community Relations Magistrate

David Browne JP, National Digital Lead

Nigel Woodley JP, Deputy National Digital Lead Judiciary

The MLE's stated functions sound substantial: supporting the governance of magistrates' courts, working with HMCTS and the MOJ, providing leadership support to Presiding Judges and bench chairs, sharing guidance and best practice. In practice these functions resolve into something more modest. Regional leadership magistrates sit on Judicial Business Groups where they are one voice among professional judicial and administrative voices, advising the Presiding Judge. They communicate guidance downward to bench chairs. They relay concerns upward to the Magistrates' Liaison Group which is chaired by the Senior Presiding Judge and includes HMCTS officials. They have no budget, no disciplinary powers and no executive authority over any part of the system.

Their power is limited to three categories. First, consultation responses participating in reviews, submitting evidence and  attending hearings. Second, internal communications;  the mechanism by which the Lord Chief Justice's views reach all magistrates, as the 2022 episode above  illustrated. Third, strategic planning:  the MLE produced a Strategy for the Magistracy for the period 2019 to 2022, endorsed by the Lord Chief Justice and then decided not to make it publicly available; a detail of almost satirical aptness for a body whose defining characteristic is the management of information.  Recent developments suggest that HMCTS's programme of digital transformation is now formally within the MLE's ambit. Whether this represents a genuine voice for magistrates in the digitisation process or an additional channel through which digitisation policy is transmitted to the benches, remains to be seen.

The Magistrates' Association has  stated publicly and repeatedly that the MLE lacks legitimacy, that its members should be elected and that in its present form it is not a meaningful voice for the magistracy. The MA believes that elections, not selections, will ensure accountability.

It is unsurprising that relationships between the MLE and the Magistrates Association have not been without friction.  This blogger has not infrequently commented upon the latter organisation`s tendency to parrot government initiatives with nary a criticism and to question whether it truly represents the views of its members never mind the magistracy as a whole.  In 2025 a formal governance consultation sought views on the future structure of magistracy leadership. The MLE submitted its response included in which was a proposal to expand its own membership and to remove the MA from regional governance structures. The MA's reaction was restrained but unmistakable.  It was not unexpected therefore that the MA has opined that they risked weakening the independent voice of magistrates. They prioritised the expansion of the appointed body at the expense of the elected one.  Undoubtedly the net effect of the proposal, if implemented, would be to further concentrate the formal representation of the magistracy in a body accountable to the judiciary while reducing the influence of the body accountable to magistrates themselves. This would complete a logic that has been present in the structure since 2018 building further on increased emasculation of an independent magistracy in the decade previously. 

Last week I commented on the Courts and Tribunals Bill 2026.   This is arguably the most consequential legislation affecting the magistracy in a generation. To its credit the Magistrates Association has been engaged, articulate and specific. Its national chair has given evidence, issued public statements and pressed a clear position, broadly supportive of the direction but insistent on resources. Magistrates' courts face genuine bottlenecks; insufficient legal advisers, insufficient probation presence, insufficient courtroom capacity. The reforms will only work if those bottlenecks are addressed. This is a serious argument, made seriously, in the right forums. By contrast the MLE has not, in any traceable form, said anything about any of it.

The Senior Presiding Judge cannot comment (publicly) on legislation before Parliament. The National Leadership Magistrate reports to the Senior Presiding Judge. The NLM's ability to speak publicly on matters before Parliament is therefore constrained by the same conventions that constrain the judiciary. At precisely the moment when the magistracy most needs a leadership with a public voice;  at the moment of its greatest political significance in twenty years the body formally appointed to provide that leadership is constitutionally forbidden from providing it.  Silence has spoken. 

The MLE is best understood not as a standalone curiosity but as one episode in a longer process. Across the 21st century the independence of the magistracy has been progressively diminished. Half the country`s magistrates courts have closed. Administrative functions once managed locally by bench committees are now controlled by HMCTS. The role of the justices' clerk,  the independent legal adviser whose presence once provided a meaningful check on institutional pressure,  has been weakened by structural changes to the legal adviser function. The governance of the magistracy itself has been transferred from an elected body to an appointed one that reports to the professional judiciary. Each of these changes has been presented as modernisation.

I have no reason to believe that  individual members of the MLE are not, by all available evidence, dedicated, capable and well-intentioned. This post is not directed at them. It is directed at the structure they inhabit and the interests that structure serves. Whether or not it also serves their individual egos and ambitions is not for me to opine.  My personal involvement as a magistrate began just prior to the dying embers of the ancient regime finally being  extinguished.  Soon there will be few of my former colleagues who will have a memory of how things used to be.  The mantra of local justice for local people now has reduced substance with 300 or so active professional District Judges[MC] or Deputies employed by HMCTS. 

There are some who question the continued longevity of the institution of lay justices.  However until the day comes when this country can afford the increased costs of an estimated 700-1,000  full time salaried only judiciary for the lower [soon to be lowest?]court  i.e. District Judges,  the magistracy is likely to remain as an institution where over 90% of criminal cases are completed despite many within the legal profession hoping otherwise.  The MLE cannot protect or articulate that principle because the terms of its existence prevent it from doing so. It cannot advocate independently. It cannot speak to Parliament. It cannot challenge HMCTS publicly. It cannot even claim to speak for those it represents because those people never chose it.

Lay justice in England and Wales is not dead. It is alive in the daily work of every bench. But the governance of lay justice,  the structures that are supposed to give magistrates a voice, has been captured. The MLE is the evidence for that capture, clearly visible to anyone who cares to look.

Those who govern us are addicted to secrecy.  We read and hear about it every day. Tribunals, hospitals, charities, police, supposed independent inquiries etc etc etc.  The delegated guardians of our well being; the bodies charged with supervising the supervisors have that similar common theme.  Until that mentality of government changes the MLE will fall into line.  The question is whether anyone in a position to change it is willing to do so. The evidence so far is not encouraging.

ARE LES MISERABLES WAITING FOR US?

My post last week began with an extract from the Gettysburg Address.  To avoid repetition I repeat that opening. Constitutional experts have written millions of words on what are the prerequisites for a successful government.  These can be funneled into two requirements:  sovereignty and commanding public confidence.  The former emanates from the people and it must secure the sovereignty of the State and the integrity of the national territory.  The latter requires leadership that can command the confidence and trust of key stakeholders and the public. From them  follows a system of laws that dictates the extent of government powers and the rights of citizens providing a predictable and stable environment.

However in a democratic society these foundations cannot be  powerful enough on their own without trust in the government by those who voted them into power.  

Since 2010 the system of justice in this country has been decimated by intent and largely ignored by parliamentary oppositions and media.  The only aspect which gained attention has been the consideration for victims.  As a cynical observer I would opine that these innovations have been as much about persuading the public that government was on the side of the people.  However this government and the current holder of  the boss of this department must be neck and neck with failing Grayling  Justice Secretary September 2012 – May 2015  as the most incompetent not to be trusted Secretaries this century.  

There are arguments for restricting trials by jury but none is as obtuse as the claim that it will better the chances of victims having their day in court.  Crown courts operating today can be found here.  This site does not indicate how many courtrooms are actually closed.  Information on the backlog is available here. 

Judges have been restricted on their total number of sitting days as a direct matter of government policy.  Lammy is being shown to be as trustworthy as a £3 pound note.  When in opposition he was a strong defender of jury trials describing them as "fundamental" to the justice system and a "filter for prejudice". He specifically stated that "Criminal trials without juries are a bad idea".  Although District Judges [magistrates court] have been sole arbiters as fact finders and sentencers every decision can be appealed without undue formality that will not be the case in Crown Court where the appeal process requires expertise. Presiding magistrates surely have enough experience to sit with a judge as assessors as they do with appeals from magistrates courts. Removing all either way matters would also reduce the crown court burden.  

The Tory and coalition governments deliberately salami sliced the justice system in all aspects from police numbers to prison spaces.  They got away with this predation with the silent acquiescence of Labour Party.  Lammy being in his post is expediency over good sense, a faculty lacking in 10 Downing Street overwhelmed by political inertia as a result of Marxist wolves in Labour sheeps` clothing threatening to blow the house down [please excuse the mixed nursey tales]. 

Rachel Reeve`s proven lying on her CV gives little confidence in anything she now tells us. Rome wasn`t built in a day and its final sacking took a bit longer: the Vandals sack of Rome (455 AD) lasted for two weeks, from June 2 to June 16.  But the cracks in the imperial edifice were apparent many years earlier. We are now in that preparatory period when extremists are trying to offer to us that which democratic rule has failed.

The barricades are being assembled mentally if not yet physically as in Paris in 1848.   

I am leaving in a few days to attend a wedding in Sri Lanka.  So I  wish my reader a merry Christmas and a happy new year.

TREASURY ££ -v- PUBLIC CONFIDENCE

It was with a perhaps muted fanfare that recently the now former Lord Chancellor [the 11th since 2010] announced that there would be set up a new level of intermediate criminal court over which a District Judge[MC] would preside with two lay magistrates as wingers. After a mixed reception from the legal profession all has gone quiet on the proposal.  If, however, the concept were to materialise there are many questions arising.

Currently DJs sit alone answerable to no one excepting themselves, their conscience and the Appeal Court or  Judicial Conduct Investigations Office.  That will not change.  What will change will be training programmes for DJs.  Just as Crown Court judges have training for sitting on appeals with two magistrates as wingers to deal with fact finding and/or sentencing similar training will be necessary for DJs.  This will be conducted through the Judicial College.  Crown Court judges’ training covers criminal procedure, sentencing, appellate review and the particular role of the Crown Court when exercising appellate jurisdiction from magistrates.  It is not unlikely that DJs are likely to receive similar training for serving in any newly proposed intermediate courts alongside magistrates but with some important caveats.  The Criminal Courts Review explicitly recommended that, in the event of structural changes such as creating a unified Criminal Court joint training for District Judges and magistrates would become necessary. It suggested that the Judicial Studies Board should oversee the development of such training and involve DJs  actively in training magistrates as well.  I remember all too well that at my court we were fortunate to have two DJs who excelled at training sessions; indeed who put those who professed specialised qualifications in such tasks as rank amateurs.  Magistrates will also need refreshed training to work effectively in these new intermediate courts covering collaboration, sentencing responsibilities and procedural changes.  I would opine that experienced magistrates who undertake chairing responsivities as presiding magistrates might be dismayed if such sittings are much reduced. Perhaps there will be a two tier structure.  Currently interested parties can only speculate.  

If intermediate courts are introduced (handling either-way cases that might otherwise go to the Crown Court for jury trial) then this immediately raises the number of sitting days required from DJs and consequently additional DJs would likely need to be recruited to ensure availability and avoid bottlenecks.  There is a possibility that magistrate recruitment might be affected.  In the last two years over £1 million has been spent on such efforts. Sitting in a more “serious” jurisdiction (cases that would otherwise go to the Crown Court) may make the role more attractive to volunteers but on the other hand such cases can be more time consuming which could deter younger people sacrificing earning potential but encouraging older and/or retired JPs to offer increased sittings. 

As with selection of magistrates qualified to sit on Crown Court appeals there might develop a two tier system for the proposed new intermediate court where a higher level of experience and competence will be needed to sit as a winger: a Premier League and a Championship?  The driving forces for the proposals are the unsustainable backlog at Crown Courts and the reduced costs of summary versus jury trials.  However the increased costs of employing the additional DJs required would go some way to mitigate the hoped for savings.  

In the long run this might have the negative effect of reducing the participation of magistrates in all but the most minor offences and be a stepping stone to a completely professional judiciary. For many criminal lawyers it would be an overdue and welcome positive effect.  All this speculation might be premature. As of now there’s no sign of consultation or training course outlines specifically tailored to the proposed intermediate courts.  Considering that this nation`s justice system is now operating under its 12th boss in 25 years is it any wonder that chaos reigns?  On the 6th prime minister within that same period only adds to the disfunction of the political environment which has resulted.  

Without Justice the concept of a free democratic society is a chimera.  Even when the J factor is still alive and occasionally kicking there must be public confidence in its function.  That confidence is daily being eroded. It`s hard to see how the proposed court changes will be of value except in the balance sheet at the Treasury. 

MAGISTRATES` £££ - V - District Judges` ££££

I suppose that there are three prime functions of a modern government; protection of the realm and its citizens, the provision of a justice system and an effective  finance system including the efficient use of citizens` taxes to provide for the common good.  Of these requirements the last is usually uppermost in the minds of most people. To that end all governments manipulate what they tell us and what they try to keep from prying eyes. 

The justice system of late has had more column inches than perhaps is usual with the headlines on costs of immigration and  prisons colliding in the corridors of the Treasury.  One definite result of the government`s hoped for improved efficiency is the establishment of a new tier of court between magistrates and the crown court in which a District Judge[MC] would sit with two magistrates.  Unlike judges in crown court District Judges [MC] sit with a legal advisor as is the case when a lay bench is sitting.  I have often wondered why such additional help is needed for a legally qualified judge such help being anticipated to apply at the new court. HMCTS is unable (unwilling?)  to provide the costs of legal advisors assisting magistrates.  I wonder whether the district judges collectively have been approached as to whether they would negotiate for higher salaries  on sitting without the advisor and if any savings would result in their so doing cf the current position especially when so many lawyers would gladly have the full time judiciary sit in place of lay magistrates. 

There was a report in 2000 (Morgan & Russell) where comparison was made between costs of a DJ court and a magistrates` presided court.  References suggest £52.10 per hour for lay magistrates vs £61.90 per hour for  District Judges.   The next similar investigation was Ipsos MORI & Ministry of Justice (2011). That study explicitly compared its findings with Morgan & Russell noting differences in methods and sample size and that Morgan & Russell concentrated on fewer courts (Morgan & Russell: 3,047 cases across 10 courts; the 2011 study used 2,276 cases across 44 courts).The conclusion was “Despite the relative speed with which they handle cases the cost model showed that District Judges are typically more costly per case (where key differences are controlled for) than magistrates in terms of the magistrates’ court processing costs. This was mainly due to their salary costs.” 

Current  estimates for using lay magistrates is  (loss of earnings, training, allowances) £26.80 per hour plus an additional estimated volunteer "value" to the broader economy (proxy cost): £10 per magistrate per hour making a total of £56.80 per hour for a bench of three although that unverified figure seems rather low. For District Judges inclusive of salary, training, recruitment, equipment, overheads: £148.32 per hour which after being adjusted to reflect actual sitting days works out at £162.16 per hour.

At current modelled rates even without legal advisors District Judges would cost roughly three times more per hour than a bench of magistrates  even when accounting only for magistrates’ direct expenses let alone their “volunteer value.” So removing the legal adviser does not close the cost gap. The salaried nature and associated overheads of District Judges still make them substantially more expensive than lay magistrates although they process cases more quickly.  

Legal advisors are paid [according to seniority]  £37,683 -£50,192. Add on costs (employer NI + pension + overheads) are roughly an additional 33%.  So using a sensible base the costs to the tax payer are around £58,520 per LA per year.  The cost per LA per hour might be estimated at £53.00 making the cost per hour of a DJ court £215.00.  Over a standard 5.5-hour sitting day that’s about £290 per day extra.  The cost of the DJ + LA can be estimated at £1,183 daily and £892 sitting alone. 

Using same methods and calculations the cost of three magistrates sitting with a LA are 109.80 per hour and £603.90 per day.

Even with a legal adviser a magistrates bench is cheaper than a District Judge; roughly half the cost if you count only direct expenses and still about two thirds the cost if you include volunteer value

So it seems that the legal profession looks likely to have to tolerate lay magistrates for some considerable time because where the MOJ is concerned ££££ are more important than any other consideration. 

LAY JUSTICES: APPEALING OR APPEALED AGAINST?

I would imagine that most readers are familiar with the system of magistrates courts and have strong opinions on whether the three lay magistrates sitting in judgement provide as good a system of justice as those who preach to us from on high keep telling us. Impending procedural changes are now in sight after a gestation period of twenty years. The anomaly of defendants` right to choose jury trial in “either way” matters  is likely to be removed in what will be the most contentious of these changes to be replaced by a bench chaired by a District Judge [MC] sitting with two lay magistrates. Whether justice will be better served will be a moot point for at least a decade until there is a sufficiency of statistics for those in Petty France to produce conclusions. Until then all we have is a study of appeals on verdict and/or sentence from the lower court to the crown court. 

A Commons committee in 2021 reported magistrates have a very low appeal rate of ~0.7% with half of those appeals dismissed or abandoned.  Historically there are about 14,000 appeals per year with approximately 2,000 successful convict appeals and 3,000 sentence variations meaning a success rate of ~39% overall.  There’s no comprehensive public data directly comparing overturn rates per bench of  magistrates vs. DJ since appeals challenge the final decision not who made it.

DJs are full-time, legally trained professionals. They sit alone, move swiftly and apply the law with consistency. Their courtroom manner can vary  but few would doubt their command of legal process.  The lay magistracy brings something different: lived experience, community connection and the expected collective wisdom of three heads thinking better than one. But JPs are not lawyers. They rely on legal advisers to steer them through tricky case law and/or procedure.

It’s widely accepted if not openly said that lay benches are slightly more prone to decisions that don’t survive appeal. It’s not dramatic. It doesn’t suggest incompetence. But the variation that comes with a bench of three non-legally trained volunteers is inevitably greater than with a single judge who’s spent decades in courtrooms.

 As written above the total appeal rate from magistrates’ courts is tiny and of those only around 39% result in an overturned conviction or a sentence adjustment. That means the vast majority of decisions stand.  The question is will those figures reflecting as they seem to do a standard of justice well done and seen to be well done be repeated with more serious matters likely to be coming in front of a lay bench?   Confidence in justice depends on the public believing they’ll be treated fairly no matter who’s on the bench.  The legal profession has never been over confident in the lay magistracy.  Whether that`s a result of their pecuniary interest insofar as appearing at the crown court commands higher pay rates or that many lawyers think rightly or wrongly that their clients are more likely to be acquitted at crown court is a moot point amongst many such points when discussing our legal system. 

During my tenure there was an "appeals folder" in the retiring room where every appeal  and its conclusion was listed with the original JPs or DJ named.  During the latter half of my time on the bench that folder disappeared never to return.   As has become so very apparent in this century the more government conceals or tries to conceal controversial information the more likely there is to be a vulcanic type eruption  when more openness might have allowed interested parties to let off steam with reduced pressure.  

With so many sections of our country`s infra structure frayed at the edges the forthcoming changes in  the justice system in general and the magistrates courts in particular will come under increased scrutiny. It is to be hoped that relevant statistical information will be published so that certainty supersedes suspicion when the trend to minimise the lay magistracy`s jurisdiction to non imprisonable offences, notwithstanding the current recent increase to 12 months custody, is once again reversed as has happened in the recent past.

PERVERSE ACQUITTALS AND THE WEAPONISATION OF JURIES

 
One of the great fictions clung to by our legal establishment is the untouchable wisdom of the English jury. Twelve men and women, good and true, convened to determine guilt beyond reasonable doubt. Except of course when they don't. And occasionally, spectacularly so.

From time to time there are assault cases reported where despite video, multiple corroborating witnesses and visible injury or similar evidence, unmoved by the forensic and testimonial parade a jury has returned a majority not guilty verdict. Court reports would mention "sympathy for his circumstances"; he’d lost his job, the victim had a prior caution etc. The facts apparently irrelevant in such cases being secondary to other factors .

We’ve seen it before. Climate activists gluing themselves to roads  acquitted despite clear breaches of the law because juries “understand their cause.” For many decades there have been instances where protesters trespassing at military bases have walked free. It’s not the legality being judged but the politics and in some cases perhaps the charisma of the defendant.
 

These aren’t just quirks; they’re known quantities. Litigants in person can ask juries to ignore the law; barristers can`t. Barristers sometimes count on jury “common sense” to ignore the law when it doesn’t suit. It’s supposedly the unwritten safety valve of our system. The formal word is “jury equity”; the informal reality is selective application of justice.
 
 
To be clear, most jurors do their best. But unlike magistrates who are trained, appraised, and generally held to some level of consistency, juries operate as legal mayflies: brief,  unaccountable and gone before the consequences have landed.

Perhaps it is time we considered more transparency: not full public disclosures of deliberations; no one wants mob-judged justice but at least a recognition that jury trials are not infallible. A verdict isn't necessarily right simply because it came from twelve people in a room with a foreman and a checklist, an appeal being rejected by the Court of Appeal  and has been dismissed by the The Criminal Cases Review Commission.

 

The problem of course is that criticising juries is something of a taboo. It's a bit like that totem, OUR NHS, our national treasure. If we are to have an honest conversation about justice in 21st century Britain we must be prepared to acknowledge that not all verdicts are wise, just or even comprehensible. To pretend otherwise is to indulge in comforting fiction and fiction has never been much of a foundation for justice.
 
 

It takes a certain type of chutzpah to boast about acquittals before a trial has even begun. Yet that is precisely what a member of Palestine Action recently did remarking, "The public is on our side. Remember that being acquitted can happen and we’re seeing it happen now." One might imagine such a statement would raise eyebrows among those concerned with the rule of law. After all, if verdicts are anticipated not on the basis of evidence or law but on the perceived sympathy of a jury what does that say about the state of our justice system? The message is clear enough: The law might say one thing but juries will say another because they like us. In other words conviction or acquittal is not necessarily tethered to legal merit but to public sentiment. That’s not justice; that’s a popularity contest. The courts are not supposed to be arenas for ideology. Yet in recent years certain activist groups, Palestine Action among them, have learned that the courtroom can double as a stage. They’re not just seeking to defend their actions but to put the system on trial. And juries in their secretive deliberations sometimes oblige. Today activist groups are increasingly calculating jury psychology as part of their tactical toolkit. Legal guilt is almost secondary.

There’s a disturbing logic to this: break the law, make the right noise and rely on a jury’s reluctance to punish those who claim moral high ground. The more emotive the issue; war, climate, colonialism the better the odds. It’s not just courtroom drama; it’s calculated legal theatre. Since some suggest that being a barrister is akin to treading the boards we should not be surprised that even some members of the legal profession agree that there are colleagues who are willing participants in this charade. And the consequences are far-reaching. When certain causes are seen to receive jury indulgence public faith in even-handed justice begins to erode: one rule for activists another for everyone else. Ask the man convicted of criminal damage for scratching a neighbour’s car if he had the luxury of moral justification that the hooded trespassing paint sprayer of military jets claims.

Juries are a cornerstone of our criminal justice system. But they are not infallible nor immune to influence. When defendants begin campaigning to jurors, not before the judge, the balance has already shifted.
 

One might have hoped that those charged with criminal offences would meet their day in court with humility, not hubris. But humility is in short supply when you’ve discovered how to turn the jury system into a political loophole. Consider that open boast above from a Palestine Action member, made with the confidence of someone not fearing justice but anticipating a sympathetic audience.  Will we have to follow the Americans in extending the right to exclude would be jurors?

Translation? Break the law, wrap yourself in a fashionable cause, and let the jury do the rest. Legal guilt is negotiable when ideology is your shield.
 

This isn’t brave resistance; it’s cynical manipulation. It’s trial by politics not trial by evidence. What these defendants are really banking on is not the strength of their case but the predictable failure of jurors to apply the law when feelings get in the way. And they’re not wrong. Recent acquittals of activist vandals some caught red-handed have shown that for certain juries a cause deemed righteous excuses criminal damage. Smash up a weapons factory or spray paint government buildings and if you cry “human rights” loud enough, you might just walk free. The more performative the better. Hence the accusation at the investigative stage against police and CPS of two tier justice.

 
  
For those of us who sat for decades on the bench striving for consistency, fairness and fidelity to the law this is not just frustrating. It is corrosive. It mocks the entire foundation of the criminal justice system: that the law applies equally, regardless of politics, passions, or protest signs. Worse still, this selective indulgence sends a message to the public: some offenders are more forgivable than others not because of what they did but because of why they say they did it. That’s not rule of law; it’s rule by narrative.

 

Let’s be clear: jury trial is a cornerstone of English justice. But when it’s treated as a get-out-of-jail-free card for the ideologically aligned it risks becoming a constitutional liability. If the law bends only for those who shout the loudest we don’t have justice: we have judicial theatre with a pre-approved script.
 

Perhaps a modernised version of the system witch finders employed for centuries in determining a woman`s guilt or innocence to a charge of practising witchcraft is a sub conscious underlying feature of facts being abandoned: the woman was tied to a stool which was immersed by a wooden beam in a lake or river.  After one or several immersions if she survived she was considered guilty and punished and if she drowned her innocence had been established. 

It`s increasingly obvious that it`s only after they retire that the most senior judges voice their often critical comments on the legal system.  Of course their conversations with government whilst they are active are top secret.  I suppose that process succeeds depending on which side of the judicial fence one is standing to view it.  

And those of us who actually believe in equal justice? We're expected to sit quietly and clap from the gallery.
 

No thanks.