Thursday, 23 January 2014

The Magistrates' Courts

The legal system of England and Wales is quite unique with regard to the extensive lay involvement in the administration of justice in the Magistrates' Courts as well as members of the public forming juries in the Crown Court and, occasionally, in other courts such as at certain inquests.  Justices of the Peace (or Magistrates) have been a part of the legal system since at least the reign of Edward III - see Justices of the Peace Act 1361.   The term "lay justice" came into use after the Courts Act 2003 section 9   

In this Act “lay justice” means a justice of the peace who is not a District Judge (Magistrates' Courts).

The District Judge (Magistrates' Courts) is a development of the former Stipendiary Magistrate who was a legally qualified magistrate usually to be found in the larger city courts.
There were a limited number of Stipendiary Magistrates and they used to be recruited from the legal profession by the Magistrates' Court to which they became attached.  Typically, they would take some of the longer cases or cases considered to involve more complicated questions of law.  Again, this changed with the Courts Act 2003 which abolished Magistrates' Courts Committees.  It thus came about that DJ(MC)s are recruited on a national basis and their numbers have grown markedly.  As salaried members of the judiciary, their salaries are in excess of £100,000 p.a.  Lay justices perform their duties out of a wish to serve their local communities and they receive expenses which are not, in the main, over generous.  Another difference is that lay justices are normally required to sit in panels of three and they are advised on law and procedure by a legal adviser who, these days, will be a qualified solicitor or barrister.

Recent years have seen the number of Magistrates' Courts reducing under closure programmes which commenced under the last Labour government and were picked up with some enthusiasm by the Coalition government - see, for example, Plans in 2010 for closures of courts  Arguments against the closure programme had little impact on a government determined to cut the costs of administering justice - The Guardian 2nd July 2010 - and Kenneth Clarke had little sympathy with the idea of "local justice" - that is, justice administered locally by local people.  He remarked that there was no need for a court to be located no further than it was reasonable for a man to ride a horse!  Thus, as courts have closed, the administration of justice has become less local to many people.  Further court closures remain on the cards.

Workload in the courts has also been reduced.  Reasons for this include the use of out-of-court disposals for many matters which formerly had to come before the courts.  Thus, fixed penalty notices; penalty notices for disorder and cautioning by the Police have all contributed to reduction in workload.  In 2013, the Lord Chancellor (Chris Grayling) took some action in relation to the use of "simple cautions" for serious offending.  The impact of this action is unclear at the moment - Chris Grayling scraps simple cautions for serious offences

Lay Justices find themselves in a pincer movement between the court closures, reduced workload and the larger number of DJ(MC) operating in the Magistrates' Courts.  In these circumstances, there must be a serious question relating to their future.

The organisation Transform Justice has been taking a look at this question.  On 14th January they asked  Why has the Magistracy shrunk?   It is noted that "...since 2008, district judge numbers have increased by 4% while magistrate numbers have decreased by 20%.  A decrease in court work has always been blamed for the reduction in magistrate numbers.  And indeed numbers prosecuted have declined by 14% in four years.  But what is less clear is why magistrate numbers have gone down while district judge numbers have gone up."  The article concludes by saying: " ... magistrates up and down the land ... would like an open debate about the future of the judiciary in the magistrates’ courts."


Transform Justice also highlights a Diversity issue with the Magistracy - Are Magistrates facing a diversity crisis - "Magistrates are less diverse now than in 1999.  They are on average older and less representative of our ethnic minority communities."   Diversity is also an issue in the legal profession.  In 2013, the President of the Supreme Court said that more needed to be done to improve diversity but it seems inevitable that cuts to legal aid will adversely impact on this because there will be insufficient publicly funded work for the up and coming lawyer.   One certainty is that if the lay justices are replaced by DJ(MC) there will be even less diversity on the Magistrates' Court bench.


Justices of the Peace in Scotland operate under a somewhat different system which was recently reformed.


  1. There is the old adage:- if it walks like duck, quacks like a duck and looks like a duck it must be a duck. If ministerial actions since 2010 look like they consider J.P.s superfluous, if their speeches sound like they wish to place J.P.s in out of court positions and if they replace J.P.s` remand, breach and sentencing sittings with an increasing number of District Judges then they do indeed wish for summary courts to be presided over by salaried District Judges beholden to the state.

  2. As a former JP, now retired, I could write a book about the changes of the last ten years that have brought us to the present situation. As a member of a MCC I did some work on weighted caseload. The peak year for load was 2004. Since then there have been the following: abolition of MCCs, abolition of local Commissions, removal of Licensing, removal of Betting and Gaming, growth of out of court disposals, closure of court buildings, regionalisation of Advisory Committees, regionalisation of Justices Clerks, in station charging subject to CPS opinion, and last, but not least, the creation of HMCS which finds the magistracy a strange medieval anachronism which can be treated as such. Not all of these have impacted on load but many have, and all have affected morale. I am surprised that so many JPs have stuck with the system. Nevertheless, to move to a fully DJ(MC) court system would be very expensive - and would these highly paid lawyers spend day after day on traffic? It is time for a Royal Commission on the Magistracy, let decide what system we want for the 21st century.

  3. Not sure why you approved what the lawful advisor said. After all, the regular lawful administrator can't advise the magistrates to modify their choice and sit in a different way. In my LJA it is the magistrates who choose how to modify the legal courts in brief observe circumstances like this. You're right that HMCTS is muscling in on legal area but sometimes, as on this event, it is because magistrates are allowing them to.

    magistrates court