Sunday, 29 April 2018

Lay Magistrates at bay / The dire legal aid system

Cambridge Magistrates' Court
"Lay justice is a powerful expression of community participation in the regulation of society."

This week Criminal Law and Justice Weekly ceased publication.  For the last 182 years this "quiet" publication has recorded changes in the criminal justice arena.   It is noted for "quality" articles - e.g. Modern Slavery Act: Who bears the burden of proof? - and will be missed.

John Cooper QC commented about the closure by saying- "The final demise of CL and J is perhaps a salutary lesson for many of us. I will predict that in some years time, may be even sooner, practitioners will ask “why isn’t there a weekly publication devoted to crime and the criminal justice system?” And comparisons will be made with other legal disciplines who have their own titles. Well let me answer that question now, before you ask it...... “ you had one, and you lost it."

Interestingly, CL and J sprang from an earlier publication "Justice of the Peace." 
It is well-known that Justices of the Peace (JP or "lay" Magistrates) are members of the public appointed to dispense justice in the Magistrates' Courts of England and Wales.  When doing so, they usually sit in benches of three and are advised on points of law and procedure by a qualified legal adviser.  Lay Magistrates are in contrast to the District Judges (Magistrates' Courts) who are barristers or solicitors and who usually sit alone to deal with the business of the court.

The Magistrates' Courts offer a system of summary criminal justice and deal with well over 90% of those criminal cases which reach the courts. Summary justice is in contrast to the Crown Court system of trial on indictment - that is, before a judge and jury.

In an appropriate case, the Magistrates’ Court has power to sentence a defendant to up to 6 months imprisonment.  (Legislation to increase this to 12 months has not yet been implemented - See Justice Gap 21st September 2017 ).

Criticism of the lay magistracy appears to be on the increase.  A recently published book - "The Secret Barrister - Stories of the Law and How It's Broken" (reviewed here) -  describes the Magistrates' Courts as "The Wild West."  The author describes the Magistrates' Courts in Chapter 2 and includes comments such as: "It takes a certain type of character to volunteer to sit in judgment over one's fellow citizens as a hobby."  This is followed by a 1995 scathing - and even at the time unfair - quotation from Geoffrey Robertson QC - "Ladies and gentlemen bountiful, politically imbalanced, unrepresentative of ethnic minority groups and women, who slow down the system and cost a fortune."  Secret Barrister then notes that - "In fairness, we have seen slight improvements since 1995 ...."

Not all legal professionals are so disparaging.   An example is solicitor Robin Murray who writes on his Minted Law blog - "In defence of the lay bench."  Murray wrote - "I like Lay Benches. They represent and know my local community. I appreciate far more should be done to widen their social make up.  It is often said that magistrates are ‘middle aged, middle class and middle minded’ this stems largely from the principle that magistrates are expected to work on a part-time unpaid voluntary basis. Something more should be done in terms of expenses to ensure a more even representation of the community. (Like local councillors). Of course they are not as socially representative as a jury but they are far more so than District Judges made up from a cadre of professional lawyers."

On 26th April, a former Magistrate,  Glenna Robson wrote an article for the final edition of Criminal Law and Justice - "Time for radical reform".  The article traces some of the recent reforms to the system such as the abolition of Magistrates' Courts Committees under the Courts Act 2003 and the huge courts closure programme under both the previous Labour government, the coalition government and, since 2015, under the Conservative governments.  Robson notes the loss of courtrooms and comments - "What began as a genuine clear-out of little-used small courts has gradually become an exercise in grouping courts in one seemingly useful centre. The distances and difficulties now being encountered by both the court practitioners and their clients are causing dismay in many areas. What may appear a simple journey to the civil servants who are planning these changes turn out to be long and often expensive if undertaken by public transport and if by private car can be long and slow in country areas or slow and congested with parking problems in urban areas."  (Note: Cambridge Magistrates' Court - pictured - has been identified as a possible closure).  (Update July 2018Cambridge Magistrates' Court to remain open).

The article concludes - "This might be a good time to think about professionalising the lower courts. A core of professionals,  ...., might fit in better with the increasingly complex demands of the criminal justice process and the structures now in place It is not a happy thought, but a sensible one."

None of the books and articles referred to so far add up to a sound case for abolition of the lay magistracy.  A much deeper study and analysis would be required to properly reach such a view.  The books and articles do however indicate that not all may not be well with this important system entrusted, as it is, with the majority of criminal cases.

I am sure that this is a topic to which we will return.  Meanwhile, it is worth noting some recent and not quite so recent reports.


Justice Committee 2016 - The Role of the Magistracy

2015 - Review of Efficiency in Criminal Proceedings - Sir Brian Leveson.  This report called for a more robust application of allocation guidelines mandating that either-eway offences should be tried summarily unless it is likely that the court's sentencing powers will be insufficient.  The report also contains some discussion as to the possibility of a "Unified Criminal Court" - see para 10.4.

Government response to Sir Brian Leveson's report.

2011 IPSOS MORI Report - The strengths and skills of the judiciary in the Magistrates' Courts

2001 - Lord Justice Auld - Criminal Courts Review (2001) - Chapter 4 - Magistrates.  


Law and Lawyers - June 2011 - Explaining our law and legal system - No.5

Transform Justice 19th October 2016 - A Magistracy in Crisis


It is worth noting the Scottish position.  In Scotland, there has been a system of JPs since 1609 and a system of "Justice of the Peace Courts" has been recently set up under the Criminal Proceedings etc (Reform)(Scotland) Act 2007.   This development came about in an interesting way.  The Scottish Ministers commissioned a "Summary Justice Review" and a majority of the review team recommended abolition of the office of JP.  However, there was a "Note of Dissent" by Sheriff Brian Lockhart and Mrs Helen G Murray JP.   The Scottish Parliament was persuaded by the dissenters and not only legislated to retain "lay justice" in Scotland but also created the Justice of the Peace Courts.  The former District Courts.were abolished.  It is worth noting here that the Note of Dissent remarked (at para 7) - "Lay justice is a powerful expression of community participation in the regulation of society."

The dire legal aid system:

For now, one other point needs to be made.  The lack of legal representation in Magistrates' Courts ought to be THE major concern.  Legal aid is not available for representation unless BOTH a means test AND an interests of justice test are met.  This excludes many people from legal representation.

The Crown Court position is also problematic given that a defendant may have to make a financial contribution to pay for the defence.  This is illustrated by the story of a doctor who has to pay £94,000 to his defence costs - "A retired GP accused by a “serial fantastist” of being part of a paedophile ring was told yesterday he would not be reimbursed for £94,000 in legal costs he incurred before the case collapsed" - The Times 28th April

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