Monday, 14 January 2013

Magistrates' Courts ~ Sharing the Burden

In November 2012, a new protocol relating to division of judicial labour in the Magistrates' Courts was published.  One of the key aims of the protocol is to ensure optimal use of both Magistrates and District Judges (Magistrates' Courts).  The protocol was produced by a Working Group which included Lord Justice Gross (then Deputy Senior Presiding Judge - from 1st January 2013 he is the Senior Presiding Judge) and the Magistrates' Association.

According to the Working Group, a further purpose was said to be to eliminate or minimise friction between Magistrates and DJ(MC) so that the focus is on the administration of justice.  That such friction has existed or still exists is evidenced by this statement as well as by various posts on blogs such as The Magistrates' Blog - for example, post of 10th January 2013 Crystal Ball Time. where 'Bystander T' states - ' ... some magistrates feel uneasy with the expansion in the numbers of DJ(MC)s believing that the mini-jury of three magistrates is a more democratic route to a finding of guilt or a passing of sentence.'

The protocol is clearly not intended to be a rigid framework since it states that undue rigidity is to be avoided so that the system is adaptable to particular needs whether of locality or caseload. 

Importantly, the protocol provides greater clarity in relation to the type of work DJ(MC)s should generally (not invariably) be deployed to deal with:

i) Cases involving complex points of law and evidence.
ii) Cases involving complex procedural issues.
iii) Long cases.
iv) Interlinked cases (given the need for consistency, together with their likely complexity and novelty).
v) Cases for which armed police officers are required in court, such as high end firearms cases.
vi) A share of the more routine business of the Court, including case management and pre-trial reviews.
vii) Where appropriate, in supporting the training of Magistrates.
viii) Occasionally, in mixed benches of DJ(MC)s and Magistrates.
ix) In the short term tackling of particular local backlogs (“backlog busting”), some times in combination with Magistrates from the local or (with the SPJ’s approval) adjoining benches.

Generally, this list seems to be aimed at making sensible use of the professional skills of the DJ(MC).  Some of the terminology is not defined - (probably deliberately) - so as to preserve flexibility.  For example, what is a long case?  

Can it be truly said that every DJ(MC) has either the skills or desire to be involved in the training of Magistrates.  I would seriously doubt that though there will be some who will enjoy the task and do it extremely well.  

Another interesting issue is item viii - 'Occasionally, in mixed benches of DJ(MC)s and Magistrates.'  The protocol is silent as to when that form of court would be convened though it has been occasionally used - for example, the trial of Lord Justice Richards in 2007 and the trial of Judge Beatrice Bolton in 2010.  Greater clarity as to when this form of court might be used would be welcome.  Is it something to be reserved for certain types of defendants and, is so, why.  Do not all defendants deserve the same forms of trial?  A court along these lines, to try 'either-way' cases, was suggested by Lord Justice Auld in his Criminal Courts Review 2001

Another observation is that when well-known individuals appear before Magistrates' Courts, their cases seem to be listed before DJ(MC)s.  This is not referred to in the protocol but is, I believe, borne out by events over recent years.

Further aspects of the protocol:

The deployment of Magistrates and DJ(MC)s will be considered as one exercise, which will also reflect the wider judicial requirement in relation to family work.  Reviews will take place annually, with the relevant Presiding Judges and Delivery Directors deciding on recruitment needs.
Appointments, as at present, are a matter for the Lord Chancellor. The Chief Magistrate, the (relevant) Bench Chairmen and a representative of the Magistrates’ Association (MA) will be asked to comment on the data collated by Justices’ Clerks for the annual review.
The projected benefits of the new Protocol are:
                      it enables the appropriate balance of judiciary to be decided at a regional level to meet local demands;
                      it ensures that the views of both the Magistracy and the District Bench are ascertained, without either having a veto on any appointments; 

                      it is based on data that is already available; and, finally 

                      through the leadership of the Presiding Judges and Delivery Directors, it embodies the partnership between Her Majesty's Courts and Tribunal Service and the Judiciary.

Advisory Committees will continue to have responsibility to recruit and recommend magistrates.The number of magistrates required will be determined by the processes outlined in the new Protocol, although Advisory Committees will have the opportunity to contribute their views. 
In conclusion, the Deployment Working Group states:  “the approach we advocate has the advantage of simplicity and, hence, speed.  By looking at the judicial complement as a single whole, the Protocol should remove any proper basis for the appointment, transfer or replacement of a DJ (MC) becoming a focal point for ill-feeling.”  After all, as the Deployment Working Group is keen to make clear “the touchstone is the administration of justice and service to the public.”
Background material ~ Study published in November 2011:

In November 2011, the Ministry of Justice published - 'The strengths and skills of the judiciary in the Magistrates' Court.'   The research was conducted by Ipsos MORI.  The extent, if any, to which this informed the recent protocol is not clear since the protocol emerged from the working group and without any public consultation.  The 2011 paper was considered by Catherine Baksi in the Law Society Gazette 16th November 2011.  Baksi noted that:

Custodial sentences were more likely to be given in cases heard by a district judge than lay magistrates.  District judges gave custodial sentences in 7% of cases, while lay benches used custody in 4% of cases.

District judges were more likely to remand on conditional or unconditional bail (both 12%) than magistrates (8% and 9% respectively); while magistrates were more likely to give a financial penalty (37%) than district judges (29%).

Magistrates were also more frequent issuers of endorsements/penalty points; given by them in 9% of cases and by district judges in 6% of cases.

The researchers said these differences reflect at least in part the varying types of cases heard by magistrates and district judges. Magistrates preside over more summary motoring offences and district judges more cases involving violence against the person.

The study also found that magistrates and district judges think their jurisdiction and sentencing powers should be extended  but some Justices' Clerks questioned whether extended sentencing powers would lead to increases in the workload of magistrates’ courts and the prison population.

Very interestingly, participants were also asked about the idea of mini-panels, comprising district judges and lay magistrates, but most were against it. District judges in particular questioned the rationale, believing mini-panels would undermine their own speed and cost-effectiveness.  This makes it all the more interesting that this option is in the 2012 protocol.

The study found that magistrates were widely regarded as having a greater connection with the local community compared with district judges, and were more closely aligned with the concept of ‘fairness’.

Some associated a bench of three with a greater degree of democracy, while others felt a lay bench was more open-minded and less ‘case hardened’ or ‘fatigued’ than a district judge.

The research found that district judges handled cases more quickly than lay magistrates, due to their legal expertise and the fact that they sit alone and do not need to retire to consider a verdict or sentence.


There is little doubt that the workload of the Magistrates' Court has been reduced due to out of court disposals such as cautions, fixed penalty notices for disorder and fixed penalty notices in, for example,  motoring offences.  Initiatives such as Neighbourhood Justice Panels may serve to reduce the workload further.

The reduced workload is not without its problems.  England and Wales had a considerable number of Magistrates at one time but, with reducing workload and court mergers, recruitment of new magistrates has tended to slow down markedly.  Conversely, the numbers of DJ(MC)s has been increased.  Benches are therefore getting older and individual magistrates are receiving less exposure to court work.


  1. As ever, a remarkably lucid, even-handed and thoughtful analysis, gently posing many of the key questions outstanding, pointing out the obvious logical flaws in certain positions, and hinting at possible future developments, but never succumbing to the temptation of seeking to impose a predetermined view or set of 'answers'.

  2. As one who has had first hand experience of a mini-panel in a Magistrates' Court, I am unhappy about the selected instances in which they have been used. Although I can understand the reluctance of DJs for such tribunals, I am in favour of their general use, as used to be the case in Youth Courts.

  3. Obiter has been careful not to draw the obvious conclusion that lay magistrates are on the way out. I am a retired magistrate. When I started at a large city court it had one stipendiary; when I retired, it had five DJ(MC)s. At the same time, work has collapsed or been removed: where are the licencing justices? or those involved in betting and gaming? When I was active, legal advisors sat with DJs. Now, I understand, DJs are to sit alone (they are all qualified and experienced after all) - but that means many qualified and experienced legal advisors will be made redundant; unless they are made into DJs! Perhaps this is inevitable, most benches are not recruiting magistrates at all now, but how sad that a public service which dates back to 1361 should be allowed to wither away.

    1. I think there is reasonable suspicion that there actually is an agenda to bring the lay magistracy to an end. As yet, there is insufficient evidence to actually bring a charge!

      Licensing was transferred to local authorities and so was Betting and Gaming. A report said they should not be judicial functions. Appeals still lie to the Mags Couirt but now that the licensing committees have gone they will almost always be heard by a DJ(MC).