Thursday, 14 January 2021

(1) The blog is 11 - (2) Some reflections of a retired Justice of the Peace

Eleven years old:

Today (14 January) is the 11th anniversary of the first post on this blog. Many topics have been covered in that time and I am grateful for the support of numerous readers of the blog. 

For the future I have decided that my posts will be less frequent but please return occasionally and have a look at what I have posted. (Some of the more recent posts will be updated as necessary since they refer to on-going issues).

My post today is written by a guest - a former Justice of the Peace who gave some 20 years service to the magistracy at a busy provincial inner-city court. It is an interesting look at the period from about 1991 to 2012.

Some reflections of a retired JP

I felt a mixture

of apprehension and excitement as I travelled in 1991 to the Magistrates’ Court in the city centre. I had been appointed as a Justice of the Peace (JP) and it was “swearing in” day. To take office I had to take an oath of allegiance to “Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law” and also a Judicial Oath to “do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill will."

I was in my later 40s and was persuaded by a magistrate friend to apply. There was an interview with a panel of three. It seemed to go well enough but it was followed by silence for several months. Strange I thought but got on with my working life and eventually my appointment letter arrived.

The swearing in ceremony was a pleasant occasion with various dignitaries in attendance. Around 30 new JPs were sworn in that day. It was followed fairly soon afterwards by a training day and then my first sitting in court with an experienced Chairman and another “winger.” The three of us heard a trading standards case concerning a young man accused of dealing in “dodgy” goods – (the legal details of "dodgy" need not be set out). The bench decided that he was not guilty only to be informed by the prosecutor that, just in case we were concerned about the goods still being in circulation on the streets of the fair city, they had been confiscated by the authorities. Maybe the young man was guilty but there was some reasonable doubt and he got the benefit of it.

There were many sittings over the ensuing years and our benches of three very rarely comprised the same people. There were individuals from many walks of life and backgrounds. On any view, the bench was diverse and I think it was a reasonable representation of the various communities within our city. It is always possible to criticise appointments for lack of diversity but my bench did well overall in this area.

It was a well run court with its own Courts Committee chaired by the Bench Chairman who was elected annually by the Bench as a whole at its Annual General Meeting held in the spring. They were good occasions to attend.  There was a Clerk to the Justices dedicated to our court. He was readily available and a good source of advice.

The court had a superb on-going training programme for the JPs. Core training was held during working hours but many training sessions were held in the evenings and, on one occasion, a full Sunday event was held. Sessions covered a considerable range of interesting topics. There was an emphasis on sentencing but many sessions improved awareness of particular problems in the city and the work that was done by many good people trying to make things better for their fellow citizens.

The Criminal Justice Act 1991 had come into force and we did our best to apply fairly the “unit fines” system (later abandoned) and the “so serious” and “serious enough” criteria relating to imprisonment and community sentences. The  bench overall did well to adjust to the new sentencing regime. It was certainly not a bench that dealt harshly with offenders and some other Magistrates’ Courts were known to be generally “tougher.” This was in the days before the welcome development of the modern sentencing guidelines.

It is a concern that magistrates are often accused of sending too many people to prison. At my court, sentences of imprisonment were not used excessively and, when used, they were amply justified on the facts of the case.  Some people, including a number of lawyers, point out (correctly) that short-term imprisonment achieves little by way of rehabilitation and they wish to get rid of short-term sentences. Whilst the prison population continues to be stubbornly high (78,000 at 8 January 2021), I believe that it would be a serious mistake to remove this sanction entirely. We had cases involving defendants who repeatedly breached community sentences. There were also some offenders who, in all the circumstances, merited a custodial sentence for their latest bout of crime. Removal of imprisonment from the court would raise the question of what sanction remained for such individuals.

The facilities in the court building were also good. It was built in the early 1970s and replaced a former Magistrates’ Court (now a Crown Court venue). The JPs had a good dining room which served a reasonable lunch. There was a court library and adequate consulting rooms for lawyers to meet their clients and a good public cafeteria. All in all it was a bench that I was proud to be part of. A culture prevailed of delivering justice fairly, sensibly and, for a city court, reasonably locally..

How benches reached decisions was interesting. After the hearing in open court the bench “retired” to discuss the case and to reach a decision.  The legal adviser (then more usually referred to as “the clerk”) was informed of the decision. Whilst the clerk did not have a decision-making role they were well able to offer their advice as to the legal soundness of a proposed decision. The decision was then announced in open court. Reasons were not usually given for deciding one way or the other. The old thinking was rather on the lines of the decision may well be right but the reasons could be wrong!  This approach was to change – more about that later.

After about 7 years I became a Court Chairman. That involved additional training and six supervised sittings. It was quite a demanding programme and not everyone was successful.

There were also the various panels such as the “Youth Panel”, the “Family Panel”, the “Licensing Panel”. A few JPs were members of the Police Authority and, in those days, a small number undertook Prison Adjudication. The Family Panel members sat in the Family Proceedings Court (FPC) which, along with the Youth Court, was part of the Magistrates’ Court system. This was a particularly worthwhile jurisdiction.  The FPCs have been replaced by the new Family Court but JPs still have a role in some family cases. Licensing was transferred to local authorities, Prison adjudication is now handled by District Judges, and the former Police Authorities were replaced by Police and Crime Commissioners.

Another experience was to sit as a Justice of the Crown Court to hear appeals from the Magistrates’ Courts. The court was made up of a Judge and two JPs. Appeal against conviction took the form of a retrial of the case. To work in that way with a professional judge was to learn much and the judges I met welcomed the involvement of magistrates. Unfortunately it seemed that a particular group of JPs did rather too many such sittings!  It needed a wider range of individuals in my opinion but many (including myself) were not able to give the additional sitting time required.

The Human Rights Act 1998 came into force in October 2000 and, at the suggestion of the Lord Chancellor of the day, every JP received training on the new legislation. The Act did not make a sudden sea-change in the working of the Magistrates’ Courts and, unsurprisingly, much of the law applied in the court was already compliant with the European Convention.

Some changes did come. For instance, legal advice given to the bench had to be in open court with an opportunity for parties to comment. Another was that reasons were given for decisions.

JPs could find preparation of reasons difficult but the legal adviser was (and is) available to assist. There was no requirement for reasons to be along the lines of those one would properly expect from a professional judge but the reasons needed to include the key points in the case (e.g. the charge and the defence offered) and a clear statement in ordinary language of why the prosecution succeeded or failed. A useful proforma was produced to help with this process.

Being a large inner city court, the bench had appointed two Stipendiary Magistrates (“Stipes). They took some of the heavier cases or the legally “tricky” cases and they also dealt with certain applications e.g. pornography. I was glad to be spared the latter experience.

Things were to change (or evolve as some prefer to say). The Courts Act 2003 got rid of our old courts committee and the proud city lost its Commission of the Peace – (there is now just one such Commission for England and Wales).  With a view to raising standards, magistrates came to be appraised and they had to be duly authorised to sit as a Chairman or to sit in Youth Courts or in the Family jurisdiction. All the training and appraisal was overseen by a Bench Training and Development Committee made up of JPs elected by the bench. An Area committee oversaw training for the whole county.

The “Stipes” transformed into District Judges (Magistrates’ Courts) and more of them were appointed.  Their appointments were made by the Lord Chancellor and they were allocated to a court but could serve anywhere as required.  Frankly, some of them simply did not like “lay magistrates” as we were now sometimes referred to. “Lay” of course means “non-professional” but, sadly, many JPs felt it was an unfortunate term and some legal professionals (a minority) used it in a disparaging way.

The old system of Justices and Stipes seemed to work well since they were both part and parcel of the same bench. The new breed of District Judges did not seem to have the same relationship with the bench and some of the newer appointees undoubtedly preferred to keep their distance.

From the late 1990s changes seemed to come apace. The Auld Review reported in 2001 and suggested the creation of a new “District Court” made up of a District Judge and JPs but a defendant could opt for trial by District Judge sitting alone. This idea did not attract much support. Auld went much further but I think his report ought to stand as a cautionary tale not to commission reports from single individuals no matter how legally eminent.

Further changes came and changes were sometimes piled on top of changes.  We were told by the clerks that the High Court was tightening up on the way cases were handled. One High court case said that a trial is not a game aimed at giving a guilty defendant a “sporting chance.” Another case said that the days of technical points and ambushes were over.  These statements came across as a move to bring about a court with a greater prosecution bias with defence lawyers sometimes seen as the villains. This was not a healthy development even if it was not the actual intention.

Who could fail to remember initiatives like CJSSS (Criminal Justice: Simple, Speedy and Summary) which no less a person than Lord Justice Leveson wrote about - (see this article).

He said (I think unfairly) that he dreamed of the criminal justice system as “lean, sleek, swift and effective” (like a jaguar) but that, in reality, it was more like a “tortoise, arthritic and probably only partially sighted.” No one could doubt that there were areas where things could be improved but what of the system today? From what I hear things are often more cumbersome with proceedings taking much longer than should be the case in a summary system of justice.

Training also declined due to budget constraints brought about following the transfer of court administration from the old Court Committees to HMCTS (Her Majesty’s Courts and Tribunals Service). The reduction in training was, I believe, a mistake. For example, important criminal procedure rules were brought in but, despite requests for training, those JPs qualified to chair were placed at an immediate disadvantage by not being given instruction in the essential requirements of the rules. Maybe this has since been remedied. I certainly hope so.

Yet another matter to be regretted was the reduction in numbers of defendants eligible for legal representation under the legal aid scheme. This lengthened trials and sentencing hearings and placed the court's legal adviser in the unsatisfactory position of having to assist the unrepresented individual to present his/her case.

I have never believed that sitting as a justice should be a job for life and, approaching 20 years service, I decided to resign. I could have sat until age 70 but decided not to do so.

My final case was to decide whether to grant bail to a man who was being held on remand. The hearing was over a video link. The bench retired and decided that bail was to be refused. His record of disrespect for previous bail decisions and other court orders put the matter beyond doubt and no good reasons were put forward to persuade the bench otherwise.

My name was put on the “Supplemental List” which gives nothing more than an entitlement to use the letters JP after my name. I never do so because it could be seen in some quarters as self-important or an attempt to gain some undue influence.

Many JPs have served much longer than my 20 years. At the time of my appointment, the most senior JP had served around 40 years (appointed in 1952) and from time-to-time we met previous colleagues who had first sat in the early 1940s. They used to regale us with tales of old-style committal proceedings which were a sort of examination of (mainly) the prosecution’s evidence.  Witnesses were called and the magistrates decided whether there was a case to answer. If the bench so decided  – and they usually did – the case was off to the Assizes or, later, the Crown Court.  Today, cases triable only by the Crown Court are “sent forthwith” for trial.

My time as a magistrate was an interesting period of my life. I was proud to serve and feel that our work was worthwhile but what does the future hold? The work of magistrates could be transferred to professionals and there is perhaps a move in that direction these days. (A similar move in Scotland was rejected).  The valuable contribution of the citizen in the administration of justice ought not to be lightly dismissed.  This contribution is difficult to quantify but I believe that the partnership between legal professionals (legal advisers) and members of the public sitting as magistrates adds fairness and provides an important link between the court and the community which, ultimately, it is there to serve. The magistracy is a system which originated in the 14th century and it has adapted (or been adapted) to ever-changing circumstances. It continues to adapt and I hope that it will “do right to all manner of people” for many years to come.

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ObiterJ note - For an up-to-date view of the Magistrates' Courts see the "The Secret Magistrate" - Hawksmoor Publishing 2020.

2 comments:

  1. This blog made me your crazy follower. I am deeply impressed by your work and therefore adding you in my favorite list so that next time I could read you again. Free Guest Post for Law Firms.

    ReplyDelete
  2. Excellent blog
    Sums up 20 years in a few words

    ReplyDelete