Wednesday, 3 February 2016

The Magistrates' Courts ~ some reflections on a snowy morning

A post on the Of Interest to Lawyers blog looks at the proposals by Lord Justice Briggs for reform of the civil courts - All change please! All change. (Those proposals are currently out for consultation until the end of February 2016 - previous post).   The learned writer's post is scathing and it includes this: "Went to a Mags Court last week - sweet Jesus - now that is a system on its absolute knees - absolute chaos all round."

It is in either the Magistrates' Courts or the County Court where the public is most likely to encounter the legal system. 
The busy but seemingly ordered (expensive) world of the higher courts continues - (Jengba had to raise £10,000 to put in an intervention in the recent Supreme Court case of Jogee).  The Supreme Court of the UK deals with its diet of fascinating legal issues of high importance and their cases always seem to run to time with all parties in attendance on the appointed day.  There is extensive documentation even if some of it might be more succinct and even if the copying process sometimes goes awry!  The Judicial Committee of the Privy Council has recently treated us to the arcane delights of the law relating to Peerages, Baronetcies and the Scots Law of mora, taciturnity and acquiescence!  Hardly matters of common discussion on the streets of Grimsby or, for that matter, Kirkcaldy!  The lowly Magistrates' Courts on the other hand deal with those everyday cases of assault, theft, careless driving and the like. These are matters of great importance to the parties and it is troubling to see a professional lawyer commenting that it is a system "on its knees."  Mr Churchill might well have written to Mr Gove saying - "Action this day!"

Since the turn of the century the Magistrates' Courts have endured massive change.  The presence of a bench of Magistrates (or a District Judge) at 10 am each morning is a constant even if little else either is or has been.  The Magistrates' Courts used to be an essentially local function with many "Petty Sessional Divisions" having their own "Commission of the Peace."  For example, the City of Manchester had its own Commission of the Peace as did the nearby City of Salford  The court was administered by a Courts Committee which was advised by the Clerk to the Justices.  This was the pattern throughout England and Wales.  Benches were mostly made up of three Magistrates (Justices of the Peace) though, occasionally, a Stipendiary Magistrate might handle longer or more legally complex cases.  "Stipes" were encountered mainly in the larger city courts.  Such was the general pattern of these beast of burden courts and the pattern seemed to have served the nation well for many decades.

As is so often the case, the politicians came along and insisted on sweeping changes.  The old court committees were consigned to history and their role taken over by Her Majesty's Court Service (later renamed HM Courts and Tribunals Service).  At a stroke, this took most of the JPs away from having direct responsibility for administering their courts.  A single Commission of the Peace for England and Wales now exists and all the former Commissions have gone.  Many Magistrate Court locations have been closed and more closures are certainly coming.  (I have commented previously about the closures - e.g.  HERE in 2010 and, for the latest cull see THIS in October 2015).  Court closures have resulted in a "local court" being far less accessible to many people who may now have to undertake lengthy journeys to attend court.  From 1st April 2016, as an example of the on-going process, Greater Manchester will become a single Local Justice Area - see the Order - by combining 8 local justice areas into one.  (The Order does a similar thing to Lancashire and West Sussex).  In Greater Manchester, 4 courts have been earmarked for closure: Bolton, Bury, Oldham and Stockport.  No doubt a similar picture applies across the country.

Along with all of this, it is said that crime has fallen.  Whether that is true or not is not a matter for analysis here and it may be that falling court workload has been very much due to not charging many offenders who are often dealt with by "out of court disposals."  This, together with court amalgamations and closures, has resulted in less recruitment of Magistrates with the result that the age profile of the Magistracy is rising.  There has also been a marked increase in the numbers of District Judges (Magistrates' Courts) and they appear to sit - normally alone - on the majority of "interesting" cases.  Admittedly some of those are longer cases (though some JPs are able to sit for multi-day cases) or they involve issues of law considered to require a judge.  For my part, I would like to see JPs sitting more often alongside the District Judges as part of court with a constitution of three hearing some of the more complex trials.  This has occasionally been done already in some courts for certain cases thought to need it.  (JPs sit in the Crown Court with a professional judge on appeals against conviction).

Now, I am not saying that all reform has been negative in its nature.  The recently introduced single justice trial process for certain minor offences is, in my view, sensible and ought to have been well received by JPs even if some members of the legal profession were opposed to it.  It mirrors to some extent the Justice of the Peace Courts in Scotland where faith has been placed in the ability of properly trained and advised "lay justices" to handle minor cases.  Having said this, there is too much on the negative side.  Delays to commencement of summary trials are still lengthy and "cracked" or "ineffective" trials commonplace - see the recent Leveson Report.  There are also many - I say too many - defendants having to defend themselves due to cuts to legal aid in the Magistrates' Courts where a means test AND an interests of justice test both apply.  Legal representation is always helpful in terms of saving time, applying correct trial procedure and rules of evidence and in keeping agitated or upset clients (and, sometimes there relatives / friends) calmer in the face of the court.  Injustice can be avoided by ensuring that everyone has his case put fairly to the bench.

I won't add to this already lengthy, slightly rambling, post any further except to observe that the writer of Of Interest to Lawyers probably made a fair point and it is one that ought to be addressed by the powers that be sooner rather than later.  Experience at the sharp end suggests that not all is as well as perhaps Ministers think.  Comments - one way or t'other - are welcome as ever!


  1. As an aside, we ('lay' justices) used to sit with District Judges in Youth Courts and both we and they benefitted hugely- they from the diversity of our experience and, yes, local knowledge, and of course we from their professional approach, legal knowledge and, generally, competence. A system abolished years ago sadly.

  2. I seem to remember that the Auld report suggested an intermediate level of courts - between magistrates and Crown Courts, consisting of two JPs sitting with a DJ(MC). They would deal with 'either way' level cases: sentencing and trials, and would also take on some more complex summsry cases. What a good idea,I wonder why it was never implemented?

    1. I believe that the Auld report was seen to contain a number of flaws. To my mind, it was the view of Auld LJ and Auld LJ alone and it was produced in a hurry. I was far from sure that Auld even wanted the task of writing a report.

      There was no appetite to create his "District Court" as another layer in the court structure. Also, many did not like the idea that when JPs sat with a judge they would not take part if any questions of law were raised. Another point was that the defendant would have had the right to be tried in the District Court by judge alone but NOT by JPs alone. I cannot say that I liked his ideas and found them to be somewhat illiberal. With the vastly reduced number of Magistrates' Courts (more cuts announced on 11th February 2016) it will inevitably make the Magistracy less attractive except perhaps to those who live somewhere near a court. Many of my friends became JP simply because it was a LOCAL service. Rather like many stood for election as Councillors or served as School Governors etc.