Tuesday, 18 November 2014

Reforming the role of magistrates

This morning I draw attention to an article in Modern Law Review (November 2014) - Reforming the role of Magistrates: Implications for summary justice in England and Wales

The article may be obtained (£) from the Wiley Online Library.  The Library website offers the following introductory paragraph.

"The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy."

Some of the "reforms" have included:

  • Transfer to District Judges (Magistrates' Courts) of prison adjudication cases formerly conducted by Boards of Visitors.  
  •  Abolition of Magistrates' Courts Committees and local "commissions of the peace" by the Courts Act 2003.  Administration of the Magistrates' Courts was transferred to Her Majesty's Court Service (HMCS) and that was later merged with the Tribunal Service to form Her Majesty's Courts and Tribunal Service (HMCTS).  The reduction in the number of courts has resulted in fewer Justices' Clerks.  It is the Justice Clerk who holds the important legislative independence in terms of the legal advice given to the magistrates.  Associate Clerks (or legal advisers) carry out the actual in court advise to magistrates.
  •  Transfer to Local Authorities of licensing functions relating to provision of alcohol and betting and gaming (Licensing Act 2003). 
  •  Requirements for formal authorisation of magistrates before they may sit as members of the Family Court or Youth Court (see Courts Act 2003).  
  •  A large number of local Magistrates' Court closures.  The more recent closures began under the Labour Government but accelerated under the Coalition government especially during the tenure of Kenneth Clarke as Secretary of State for Justice. 
  •  Much greater use of out of court disposals for offences - i.e. Cautions, Conditional Cautions, Fixed Penalty Notices, Penalty Notices for Disorder.  This has markedly reduced the workload of many Magistrates' Courts.
  • Recent years have seen much greater use of professionally qualified District Judges (Magistrates' Courts) - [prior to the Courts Act 2003 they were termed Stipendiary Magistrates and they existed, mainly, in the Magistrates' Courts of larger cities] - with a consequent knock-on effect on the type of work listed before Magistrates.
  • A considerable number of powers may, by legislation, be exercised by a single justice of the peace.  The Courts Act 2003 s.28 enables Rules to be made enabling such powers to be exercised, in practice, by the Justices' Clerk or legal advisers (assistant clerks).  The current rules are the Justices' Clerks Rules 2005.
There can be little doubt that the above reforms have contributed to reducing the numbers of magistrates and making the role less attractive to good candidates as an important form of public service.   After all, no good candidate would wish to give their valuable time if there was little to do when they got to court.

One suspects that, due to financial cuts, the amount of training offered to magistrates has been reduced from what it was up to around 5 years ago.  If so, that is a great pity.  Magistrates and, more particularly, those authorised to Chair a court ought to receive adequate training on matters such as new legislation etc.  Such training is best delivered by their legal advisers.

Some earlier posts touching on Justices of the Peace are Explaining our Law and Legal System - No.5 - Magistrates (20th June 2011) and Magistrates' Courts - Sharing the Burden (11th January 2013).

See also Acudemia


  1. At the start of the 21st century the structure and work of lay magistracy would have been recognisable to a JP of 100 years earlier. Commissions had been rationalised, but were still essentially local, the local authorities (through representation on MCCs) were still involved in the running of their courts, the smallest court houses had been eliminated - but justice was still within easy reach of most of the population.Now we have a centralised, demoralised, system, in which there is talk of trying to reproduce (through local justice initiatives) what has been so lightly tossed away. I was a Chairman at a time when I could see this coming, but it was a juggernaut driven mainly by Jack Straw. Now I am retired, I look at the thoughtless vandalism that will destroy a great voluntary service, and since I come from the North West, my personal vote for the most thoughtless bit of it all was the removal of the Duchy of Lancaster from any involvement with the magistracy. Had these people no sense of historical continuity?

  2. If one considers as I do that there is a long term prospectus to have professional District Judges alone to preside over magistrates` courts then all the changes and "initiatives" of the last few years can be seen for what they are.............part of a project to ensure the eventual removal of the lay magistrate from the courtroom and his/her allocation to lower level functionary adjacent to the justice system. When this becomes the subject of public debate D.J.s will have accepted the substitution of their higher paid legal advisors by lower level clerical staff thus removing the financial figures which currently favour the retention of unpaid J.P.s. The project will be presented once again as a "financial saving in these straightened circumstances" with a continuing drive to increased efficiency.

    1. Quite so - and justice will become politicised even more than it is now

  3. The introductory paragraph of the article from the Wiley Online Library is clearly depicting the whole issue of the role of the magistrates.