It is generally accepted that
magistrates` courts came into being in 1285, during the reign of Edward I, when
‘good and lawful men’ were commissioned to keep the King’s peace. The title
Justice of the Peace (J.P.) first appeared in 1361, in the reign of Edward III.
As the office was unpaid only those with independent wealth could be appointed. Until the turn of this century applicants had
to declare their political affiliation before their applications would be
considered. Prior to 2003 there was a great deal of truly local control of
individual magistrates` courts.
With major changes in society since 1997;
reduction in crime, increase in out of court disposals, mass immigration,
increases in legislation and governments` increasing desire to exercise
control, units of governance increased
in size eg many smaller London boroughs were abolished and absorbed into larger
entities with populations the size of cities such as Bristol. Courts were no exception to this big is best
philosophy. With the formation of Her
Majesty`s Courts and Tribunals Service in 2011 central government has overall
control of the whole courts` process.
The last fifteen years have seen a
gradual erosion of the powers of magistrates` benches over their members and
behind the scenes court processes. Her
Majesty`s Courts and Tribunal Service has arguably created powers for itself
not envisaged by those who set these changes in motion. Whilst the number of J.P.s has fallen by
almost a third over this period of falling numbers of cases coming to
court the same period has seen the
number of full time District Judges sitting alone rising from below 100 to 139 assisted by 154
part time Deputy District Judges. The
numbers of District Judges (and D.D.J.s)
have increased as a direct result of government policies. It is
reasonable to ask oneself why. It cannot
be purely on cost although if their having a qualified legal clerk for
assistance were abolished the cost difference would be a close run thing
allowing for J.P.s expenses. It cannot
be that increasing court time is required.
The last decade has seen the number of lay magistrates reduced from
c30,000 to c 23,000. The only logical conclusion is that by having the lower
courts under the control of salaried civil servants they become more amenable
to central control. Those more expert
than I in the manipulation of statistics have suggested that converting the
Deputies to full time D.J.s would enable a government to remove the lay Justice
of the Peace from the criminal court altogether replacing him/her with a single
arbiter of law, fact finding and sentencing
thus allowing full - on control of the total courts process by
civil servants beholden to government for their stipend. It is virtually beyond argument that this is
indeed what happened after the riots of 2011.
I personally experienced pressure from senior officials to send where
lawful a related matter at that time to
crown court as District Judges were instructed to do notwithstanding whether or
not it had passed the required seriousness test. My colleagues and I at the time declined such
pressure.
There is no doubt that in their quest to
pursue the concept of restorative justice,
the proliferation of out of court disposals, the pressure to reduce
custodial sentencing and the virtual balancing of costs between J.P.s and an
arguably more efficient and cost
effective professional judiciary there are politicians all too willing to heed
the voices of pressure groups to remove the lay magistracy from the courtrooms
of England and Wales. Recent
legislative changes, by the coalition and the current government, have seen the
resignation of perhaps thirty J.P.s........statistics are impossible to
find. Imposition of taxes unrelated to
income termed “victim surcharge” on convicted offenders in addition to costs,
fines, community requirements and custodial sentences were greeted with dismay
by most of my ex colleagues. Recently
announced additional such taxation known as the Criminal Court Charge will
almost certainly accelerate the philosophical distance between magistrates and
government leading inevitably to
more resignations especially from the most senior cohort of J.P.s.
In the light of the aforementioned
history current pressures on the magistracy are beginning to take a new form;
namely is it time for its abolition?
Whilst there are few who would raise their head above the parapet to put
their case the alleged poor quality of training received by magistrates is
being used as a convenient stick with which to beat them. The Howard League for Penal Reform and
Transform Justice are just two of the pressure groups seeking major changes to
the training programmes currently offered to J.P.s. However in any discussion on magistrates` own
opinions of their activities and
competence within the courts in which they sit there is a dearth of
knowledge. The Magistrates Association is
held in such low esteem that its efforts to canvass opinion can be virtually
discounted. For that reason I decided to
canvass opinions held by members of my former bench myself on the vexed and
troubling subject of unrepresented defendants whose presence in court has been
brought into the spotlight by the reducing availability of legal aid. For my sample I chose colleagues I knew to
be forthright and logical in their thinking and with at least five years
experience. Their number did not exceed
ten. This information gathering exercise
is not meant to be a statistical analysis of the thought processes of some
J.P.s; it is merely the gathering together and assembly of opinion during
friendly conversation with former colleagues. The following is an account of
their views.
Considering unrepresented defendants it
was apparent that care must be taken to distinguish between two very different
stages of the justice system; namely first appearances at magistrates` court and
at trial for a summary or either way offence.
There did not seem to be more such appearances at first listings than
prior to the activation of the new process of anticipated guilty or not guilty
pleas although there was some dissent amongst interviewees. Those unrepresented were generally in such a
position through lack of means, unawareness of seriousness and/or ignorance of
proceedings. Those factors were no
different now than they had always been. The turmoil over legal aid contracts
had not so far had any detrimental effect on the availability of representation
at remand courts. Defendants, it was considered, still enjoyed the benefit of
legal advice from a duty solicitor if they took advantage of that facility. However what came through loud and clear was
the awareness that defendants might feel
pressurised to plead guilty at this early stage. Most interviewees were of the opinion that before
any sitting, written information should be handed to each defendant by the
usher explaining procedures and in
particular the consequences of entering an anticipated plea whatever its
nature. One dissenter suggested that those offering an
early guilty anticipated plea could be formally processed at the police station
by video link from the court. All were concerned by the recently imposed
Courts Charge. The financial burden by
its imposition without means testing on those found guilty after trial gave
rise to a fear that additional equivocal
guilty pleas might be offered and it was incumbent upon bench chairmen to be prepared to question the
validity of any such plea where that might arise. For either way offences and defendants
eschewing legal assistance it was vital that bench chairmen be able to assist
legal advisors in ensuring understanding of the consequences of any decision. It was
agreed that for motoring offences representation was not the norm unless a
conviction meant the offender had become a totter. It was thought that some unrepresented defendants
do not realise the consequences of some motoring offences eg driving without
due care or s.172 failure to provide identification of driver. There was support for sending information of
the maximum penalty for a guilty plea or being found guilty of such offences
along with the court summons. There was
agreement that generally the quality of
CPS representation was questionable.
With many being agents with no authority to “take a view” when multiple
charges were involved outcomes could differ from defendant to defendant
apparently unfairly. It was pointed out
by a chairman that no training has been offered to bench chairmen in
preparation for a probable increase in unrepresented defendants and the
consequences for all within the system.
My interviews regarding trials of
unrepresented defendants produced broad agreement. There was an expectation of increased time
being required especially if the non representation had not been endorsed on
the preparation for trial form. There
was with only a single dissenter a belief that the bench chairman will
inevitably need to become more inquisitorial there being in those circumstances
no more a level playing field. Previous
practice has been that the bench was limited in its questioning of a witness to
“seeking clarification” of a topic previously given in evidence. It was felt now that that limitation with
litigants in person was not conducive to justice being done and being seen to
be done. The message seemed to be that
seeking the truth had to be a priority where without equality of arms there was
risk of miscarriage of justice. Most of
the interviewees told me there was not 100% confidence in legal advisors being
able to assist those defendants to a satisfactory level. A very
experienced chairman suggested that the Courts Charge could be reduced for
unrepresented defendants convicted after trial.
There were some topics where there was general agreement. Defendants should be provided with suitable
explanatory literature with the summons and upon entry to the courthouse prior
to their appearance in the courtroom.
Additional time must be allocated at trial. Benches must be on their guard against
possible miscarriages of justice and be prepared to take a more inquisitorial
attitude to witnesses than has hitherto been allowed by legal advisors whose
own performances were thought to be variable.
Indeed there was a majority view that increasing numbers of
unrepresented defendants could
fundamentally alter the centuries old tradition of “equality of arms” or the
“level playing field” so beloved by proponents of the English adversarial
tradition of justice. It therefore might
be concluded that the old approach of a bench`s questioning of a witness by
first stating, “Just to clarify a point Mr X..........” and hesitating to tread
new ground might slowly give way to the opening of a new topic. Those with that opinion felt getting at the
truth in such circumstances justified the change of approach. A minority was equally strong in its
opposition to such changes.
My personal opinion for what it`s worth
is that the provision of literature, sent
with summons and supplied at remand
courts, that explains procedures and consequences of plea and allocation is
long overdue. In the foreseeable future with
anticipated increases in litigants in person it would be criminal not to so
do. Magistrates must guard against
possible miscarriages of justice by omission and if that requires a more
inquisitorial approach so be it.
This kind of research into the workings
of magistrates` benches is long overdue. I look forward to an independent review
of what does go on in the retiring room.
