Political expediency and magistrates’ courts

Last month, Dominic Raab announced the government’s decision to extend magistrates courts’ custodial sentencing powers from six months to 12 months to deal with the increased backlog of Crown court cases due to the pandemic. I say ‘increased’ because there was a significant backlog well before the pandemic struck, caused by the chronic underfunding of our criminal justice system.

This particular proposal has been on the cards for years, awaiting activation since its introduction in the Criminal Justice Act 2003, and in that time no lord chancellor has yet dared to press the button. Whether this is because they have not been convinced of the prudence of doing so, or whether it has been held back to be used at a particularly urgent time, like an axe behind glass to be broken in case of emergency, I do not know. What I do know is that this government has openly stated that it intends to feed ‘red meat’ to the masses, and what makes for better red meat then harsher punishment for criminals.

Which leaves those of us who are interested in such things to ask whether this is actually a good idea, and if not, why not? To answer these questions, we need to look at the differences between the two courts.

The magistrates’ court is largely presided over by three lay magistrates who act as arbiters of both law and fact, guided by a legally trained adviser. Magistrates are recruited from all walks of life, though generally they are older, middle class, and white when compared with the people who come through the court. It is fair to say that there is an ongoing drive to make the bench more representative, but given the position is unpaid, only those who can afford to give the time will do so.

As it is, magistrates are generally intelligent, well-meaning individuals doing their best to provide the service that is being asked of them. However, they ‘do not need formal qualifications or legal training’ to be appointed to the bench, and the legal training provided is fairly minimal, adding up to ‘about 21 hours, or three and a half days’. It can be provided over a weekend. This training is repeated on an annual basis, and, of course, magistrates will learn ‘on the job’, but otherwise magistrates are asked to adjudicate 95% of criminal matters in this country without further training.

Dual role

In the Crown court, the dual role inhabited by the magistrates is split between the jury and judge. The former is a randomly selected set of individuals from the surrounding area who act as the arbiter of fact, whereas the latter acts as arbiter of the law, and is the product of an extensive career in criminal law and a rigorous selection process. There is little doubt that these judges (and in fact district judges who preside over some magistrates’ courts) are some of the most intelligent, experienced and expert legal minds around. They are at the very top of their field.

This discrepancy between the legal experience and training of those presiding over the two courts is not the only difference; there are other important distinctions. For example, jurors who take it upon themselves to undertake their own research about a case mid-trial may find themselves prosecuted. The same does not apply to magistrates, who can look up whatever they please without consequence. Jurors who mistakenly learn of a defendant’s previous convictions would inevitably face discharge; magistrates hear the bad character applications themselves and then, having read a defendant’s previous convictions, are trusted to ‘put them out of their mind’ as if such a thing is possible.

The question therefore must be: if the Crown court operates to a higher legal standard, why do we try any criminal cases at all in the magistrates’ court? There are jurisdictions where all criminal trials are tried before a jury; the US is one. The answer surely is cost, and cost alone. It is significantly more expensive to run a Crown court than it is a magistrates’ court, and for this reason we are willing to forgo some of the protections inherent in having professionally trained individuals presiding over proceedings.

The way we decide who gets which version of our criminal justice system is the seriousness of the offence, determined by the maximum sentence the defendant might receive upon conviction. There is a calculation being made, and the result is that offences attracting no more than a six-month prison sentence do not get the benefit of a Crown court trial. What this calculation belies is that the ramifications of conviction are overwhelming for many, even without the imposition of a custodial sentence. For someone of good character, a single conviction can be life-changing, resulting in the loss of existing employment and affecting future employment.

Sentencing powers

Increasing the magistrates’ court sentencing powers without increasing the training magistrates receive necessarily changes the terms of this calculation. As a society we need to ask ourselves whether we are still willing to forgo the protection of experience and expertise even when we double the potential harm inflicted by a wrongful conviction. I, of course, have my own opinion as to the answer to this question, and I would bet it is the same as most of my colleagues.

However, the real issue here in my view is that the change is being made without even the barest of discussions at government level as to its ramifications. A change of this magnitude necessitates a vigorous examination of the issues and risks involved and should not be implemented for political expediency.

One answer would be to spend more money on training magistrates. I have known many in my years before the court, and few who would find the opportunity to learn more unwelcome. Of course, this would require more money to be spent on our ailing criminal justice system, which is, unfortunately for us all, what it always comes down to.

Stuart Matthews is a partner at Reeds Solicitors, Oxford