Government proposals to modernise magistrates’ courts – such as by increasing the diversity of JPS and removing minor cases from the system – are provoking wide debate, writes Jon Robins

If the new face of the lay magistracy is reflected in the recent high-profile appointment of the youngest ever magistrate, a teenage ‘disc jockey of Asian origin’ (as one newspaper put it), then the recent White Paper, Supporting magistrates’ courts to provide justice, is further evidence of the government’s renewed enthusiasm for justices of the peace (JPs).


As well as this paper, the Lord Chancellor, Lord Falconer, recently committed £400,000 to recruiting 1,000 extra magistrates, with particular emphasis on representing our diverse society. The appointment of Anand Limbachia, actually a civil servant, at the tender age of 19, to the north Sussex bench came with the added benefit of providing a handy recruitment marketing tool.


‘It is difficult to overestimate the contribution magistrates’ courts make to their local communities,’ said Lord Falconer in the introduction to his programme. ‘They are a permanent part of our justice system,’ he asserted.


There was a time, not too long ago, when the jury system was under heavy fire and lay magistrates seemed to be caught in that attack, and were not such a ‘permanent’ proposition. However, the Lord Chancellor is now proposing a major recruitment drive, as well as allowing magistrates to use the ‘JP’ tag after their names and to drop the word ‘lay’ – presumably in an attempt to bolster self-esteem.


‘Modified rapture’ is how Cindy Barnett, a magistrate of 20 years and new chairwoman of the Magistrates Association, describes her response to the proposals. ‘Now most people should realise that we really are at the centre of the criminal justice system, and a linchpin,’ she adds.


Much of the paper concerns the recruitment and retention of magistrates. Lord Falconer aims to introduce statutory provisions, explaining that companies should allow reasonable time off for workers to sit as magistrates – similar to section 47 of the Employment Act 2002, which allows for flexible working for parents of children under six or with disabilities.


Magistrates still suffer from the old stereotype of being white, middle-class and near pensionable age. Less than one in ten comes from ethnic minority communities (currently 8.5%), and only a tiny fraction (4%) of the 28,500 magistrates in England and Wales are below the age of 40. ‘Obviously we want to attract candidates of every single type, every single age and from every background,’ says Ms Barnett. ‘The more that you target younger working magistrates, then the greater the difficulty of work pressure comes to the fore. Anything and everything that can ease that issue is good news.’


She says that it makes sense to drop the ‘lay’ tag, which could suggest amateurism, since stipendiary magistrates have become district judges. ‘It will not change people’s understanding that we aren’t lawyers,’ she says. ‘We wouldn’t want it to.’


Ms Barnett is less delighted about plans to remove more than two million minor crimes from the courts to ease the burden on the system. The government is keen to take certain low-level offences out of the magistrates’ court, such as television licences, council tax cases, and minor motoring offences. ‘More wheel-clamping will be a good idea,’ said Lord Falconer at the launch of the paper.


‘There has been frustration where there are long court sittings and we aren’t exercising a great deal, if any, judicial discretion, and it’s an issue that has come up in relation to council tax cases,’ Ms Barnett says. But she stresses that there should always be recourse to a full court hearing. ‘We aren’t keen on stripping out lots and lots of cases and, in fact, we are very “unkeen” when it is proper judicial work,’ she says.


Andrew Keogh, a partner at Manchester-based criminal defence firm Tuckers, reckons moving such minor offences out of the courts and ‘processing them in a more administrative manner’ is ‘long overdue’. In particular, road traffic cases account for a massive amount of the workload in the courts, but are largely resolved through the ‘section 12’ procedure. In other words, motorists ‘have a chance to tick a box and plead guilty by post’, he explains. ‘That work routinely occupies thousands of hours of judicial time every year, just to issue a fine,’ he says.


Robert Brown, a consultant at Corker Binning in London and immediate past president of the London Criminal Courts Solicitors Association, is uncomfortable with offences being downgraded, whether they remain criminal proceedings or become civil. ‘If you have something that leads to a criminal record, then I’m concerned about it being dealt with in a perfunctory way,’ he says. He does not object in principle to stripping away such cases, unless ‘streamlining systems means that people end up with criminal records’.


Ministers propose that defendants who fail to attend court without good reason should expect their trial, and their sentencing, to proceed in their absence. Unsurprisingly, many defence lawyers are alarmed. ‘A lot of the clients who find themselves before the court on a regular basis have all sorts of major problems that aren’t just related to their criminality – such as medical issues, drugs, drink or psychological problems,’ says Roy Morgan, chairman of the Legal Aid Practitioners Group. ‘Consequently, they lead totally dysfunctional and disorganised lives – and they don’t have diaries, secretaries, or reminders on their laptops.’


Mr Morgan says ministers should look closer to home if they want to save some money. ‘Defendants not turning up is probably far less a waste of time than magistrates hanging around waiting for prisoners to be produced,’ he says. ‘There are lots of examples of wastage in the system which create far greater inefficiency and waste far more resources.’ He argues that such inefficiencies frequently emanate from government agencies, such as the Prison Service or the Crown Prosecution Service (CPS).


By contrast, CPS lawyers back the plans for proceedings to continue in the absence of defendants. ‘How many of these cases keep getting adjourned and adjourned for ever?’ Kris Venkatasami, national convener for the prosecutors’ union First Division Association, wants to know. ‘The case is adjourned, a warrant issued, and it takes a long time for the case to be prosecuted. In the meantime, they are arrested two years later because they have committed a far more serious crime. One wonders whether, if they had been sentenced at the time, or even sentenced in their absence, the other crime would ever have been committed.’


The prosecutor is supportive of the idea of taking low-level offences out of the system. The workload is very heavy, he says. He cites a trial concerning a serious assault on one young girl by two other young girls, which was scheduled to start on 27 September, that was only heard on 15 November – a delay that he calls ‘a scandal’. He says: ‘Then you look at another courtroom, and they are dealing with licensing cases. I don’t mean to trivialise those other cases, but in the grand scheme of crime, they’re minor.’



Mr Brown takes a pragmatic line and says that people being sentenced in their absence is ‘not necessarily wrong’. He says: ‘There has to be an independent judicial system, and there has to be judicial discretion... I believe the court has to have the discretion to say, “this is a man who has been playing the system”.’


The fact that Lord Falconer is bolstering the magistracy will do little to allay the age-old concern of defence lawyers about the mixed quality of those on the benches. Mr Morgan reckons that it is ‘pot-luck’ as to whether clients come up before an excellent magistrate, or one who has ‘very blinkered views or comes from a background that doesn’t enable him to take a balanced view’. So how would he feel if one of his clients came up against a 19-year-old magistrate? ‘I have a 17-year-old son whom I think would do the job magnificently,’ he replies.


Mr Keogh adds that he is ‘fantastically comfortable’ with the idea. He says: ‘They are only going to be one voice on the bench, and I can’t see many “hoodies” applying for the job.’


Jon Robins is a freelance journalist