Download Efficiency & Cost Comparison of UK District Judges & Magistrates in Criminal Justice and more Lecture notes Criminal Justice in PDF only on Docsity!
CHAPTER 4
MAGISTRATES
INTRODUCTION
1 No country in the world relies on lay magistrates as we do, sitting usually in panels of three, to administer the bulk of criminal justice. I have already mentioned that magistrates’ courts deal with 95% of all prosecuted crime. Lay magistrates – about 30,400 of them – handle 91% of that work. Our system is also unique in giving exactly the same jurisdiction to a small cadre of about 100 full-time professional judges, now called District Judges (Magistrates’ Courts), supported by about 150 part-time Deputies, sitting singly, who deal with the remaining 9%. And, unlike in other countries where both lay and professional judges exercise the same jurisdiction, magistrates and District Judges in England and Wales rarely sit together as a mixed tribunal. It is matter of chance, so far as defendants are concerned, whether a lay or a professional bench deals with them. As one academic commentator of great experience in this field has observed, this major contribution of the magistracy to the criminal justice system has until recently been largely disregarded by the Judiciary, many academics, review bodies, law-makers and others.^1
2 As I have indicated in Chapter 1, I am confident that magistrates should continue to exercise their established jurisdiction alongside District Judges. I have also given a brief description of the history and current jurisdiction of the magistracy and District Judges in Chapter 3. In this Chapter, I consider the future for their summary jurisdiction and their respective roles in the exercise of it. In doing so, I have had the advantage of submissions from many knowledgeable contributors to the Review, including the Magistrates’ Association, the Central Council of Magistrates’ Courts’ Committees, the Joint Council of Her Majesty’s Stipendiary Magistrates,^2 the Justices’ Clerks’ Society, the Association of Justices’ Chief Executives, the Association of Magisterial Officers and many individual magistrates. I have also drawn heavily on two pieces of research published during the currency of the
(^1) Dr. Penny Darbyshire, An Essay on the Importance and Neglect of the Magistracy [1997] Crim LR 627, at 634- (^2) now the National Council of Her Majesty’s District Judges (Magistrates’ Courts)
Review. The first is an article by Peter Seago, Clive Walker and David Wall, The Development of the Professional Magistracy in England and Wales , published in August 2000.^3 The second is the Report of Professor Rod Morgan and Neil Russell, The judiciary in the magistrates’ courts , published in December 2000, on their research into the balance of lay and stipendiary magistrates and on the effectiveness of their respective deployment. The latter research, which was commissioned by the Lord Chancellor’s Department and the Home Office, was undertaken during the first nine months of 2000 and of this Review. It drew on data collected nationally and locally, but concentrated on ten magistrates’ courts in London and the provinces, with and without District Judges. In addition, it sought the views of regular court users of the ten courts and also of the general public through a nationally representative sample of about 1,750 people, and took into account comparative material drawn from European jurisdictions.
3 Morgan and Russell’s main findings were that the magistracy is not wholly representative of the community, but that in most respects magistrates’ courts, whether constituted by magistrates or District Judges, work well and command general confidence. They concluded that to eliminate or greatly diminish the work of magistrates would not be widely understood or supported.
4 Their findings, in a little more detail, were as follows. District Judges, because of their legal knowledge and experience and because they sit full- time and alone, are significantly faster and otherwise more efficient than magistrates who need to confer with each other and often take the advice of their court clerk. District Judges achieve this edge in speed whilst being more interventionist than magistrates and without loss of judicial fairness, efficiency or general courtesy.^4 When indirect costs, i.e. of premises and administration etc.,^5 are taken into account, they are still moderately more expensive than magistrates.^6 When allowance is made for the savings (unestimated by Morgan and Russell) to other court users from the increased use of District Judges and for lay magistrates ‘opportunity costs’, i.e. the loss to their employers of their donated time, they would be moderately less expensive.^7 They also found evidence that District Judges are more likely to remand in custody and to sentence more heavily than their lay colleagues.
(^3) Seago, Walker and Wall, [2000] Crim. Law Review 631 (^4) See Morgan and Russell, The judiciary in the magistrates’ courts , RDS Occasional Paper No 66 (Home Office, 2000), pp ix and 34-43 which suggests that District Judges can deal with 30% more than magistrates of the latter's normal case load;. and Seago, Walker and Wall, who suggest that a District Judge can equal the work of anything between 24 and 32 magistrates in metropolitan and provincial areas respectively; [2000] Crim L R, p 638. 5 by far the biggest components in the costs of running magistrates' courts; ibid, pp xii and 97 (^6) ie costing just over £52 against magistrates' nearly £62 per appearance when indirect costs such as premises and administration staff were brought into the equation; ibid, p xi and p 89 (^7) ibid, pp 90-
the balance increased custodial costs. If there is a difference between District Judges and magistrates in this way when dealing with like cases, one or other must be getting it wrong, just as in the case of the perceived difference between sentencing in the Crown Court and in magistrates’ courts in ‘either- way’ offences. 12 Save as a cynical measure of expediency, it would be wrong to consider whether to change the present sharing of summary jurisdiction on the basis that District Judges are too hard or that magistrates are too soft in their decisions as to custody. As it happens, I believe that District Judges are more likely to follow national practice and sentencing policy guide-lines in this respect than magistrates, with their individual traditions and training, and history of disparate sentencing.
9 Second, there are other more detailed criticisms that can be made of Morgan and Russell’s analysis of potential savings on various hypotheses.^13 These include their failure: to allow, when calculating relative costs per session, for the greater complexity of cases heard by District Judges; sufficiently to recognise magistrates’ greater call than District Judges on legal support and court overheads; and to give sufficient consideration to the ’knock-on’ savings to all other criminal justice agencies resulting from the undoubted efficiency savings that would flow from an increase in the use of District Judges.
10 As to the future, the cost comparison could be significantly affected to the disadvantage of magistrates by implementation of some of the recommendations that I make below for more systematic investment in recruitment of applicants for selection, appointment, training and allowances for loss of earnings etc. And, as Morgan and Russell acknowledge,^14 much of their analysis would be irrelevant, and there would be greater scope for savings than they have identified, if the present courts structure were to be replaced by a unified court in which judges and magistrates could be deployed flexibly according to work needs in busy urban centres.
11 It is enough to note for the purpose of this Report, Morgan and Russell’s conclusion that District Judges are more efficient than magistrates, and that, assuming little change in their respective numbers and the present system of summary justice, there may not be much to choose between them as to cost.^15 As they observe, though one District Judge can handle the work presently handled by about 30 magistrates, it would need a significant increase in the use of District Judges to achieve reductions on any scale in administrative staff and courtroom costs. 16
(^12) see Chapter 5, paras 161 - 163 (^13) drawn to the Review's and their attention by Robert McFarland, a member of the Glidewell Committee (^14) The judiciary in the magistrates’ courts , p 115 (^15) ibid, pp 111- (^16) ibid, pp xii and 85-
12 Many magistrates believe that there is a national policy or ‘agenda’ gradually to enable District Judges and justices’ clerks to squeeze them out of the system. I know of no such agenda and no hint of it has appeared in the course of the Review. Nevertheless, it has been a constant theme in the many submissions that I have received from benches and individual magistrates all over the country. It has persisted despite the Lord Chancellor’s publicly expressed commitment to the principle of the lay magistracy continuing to play a significant part in our system of justice^17 and my publicly expressed interim view^18 that I was satisfied that there was a sound case for their retention. District Judges too feel uneasy about their precise role in the system of summary justice, believing, with some justification that their greater legal expertise, as well as their speed, could be put to better use than sometimes is the case. This is a long-standing concern. The Runciman Royal Commission, reporting over 10 years ago, 19 noted that stipendiary magistrates were sometimes not always given work that made the best use of their skills and qualifications, and recommended correction. Morgan and Russell neatly sum up the dilemma for policy makers on this issue in the following words: “… many lay magistrates are wary of what they see as the asset-stripping consequences of employing stipendiaries. Why, they ask, should they volunteer to give so much of their unpaid time to this public office if they are deprived of the opportunity to hear interesting cases likely to engage their intelligence? By the same token, stipendiary magistrates think it odd if their legal expertise is not exploited by allocating to them the most legally and procedurally demanding cases in which serious decisions must be made”. 20
13 As with juries, magistrates are not wholly reflective of the communities from which they are drawn, but nevertheless they have an important symbolic effect of lay participation in the system which should not be under-valued. Unlike juries, they are volunteers who bring to their work public spirited commitment and ever increasing legal and procedural knowledge and experience. Their vulnerability to case-hardening - in a way that juries are not - is off-set by a number of factors, namely: the relative infrequency of their sittings; the discipline that comes from their training; their sitting in ever changing panels; the advantage of a clerk to advise them on the law; and their obligation to explain their decisions. However, there is scope for improvement, particularly in the manner of their recruitment, so as to achieve a better reflection, nationally and locally, of the community, and in their training, so as to develop fairer, more efficient and more consistent procedures and sentencing patterns.
(^17) in a speech to the Annual Dinner of Stipendiary Magistrates on 13 th (^) April 2000 (^18) my third interim report published on the Review's web-site on 14th (^) October 2000 (^19) Report of Royal Commission on Criminal Justice , Ch 8, para 103. (^20) The judiciary in the magistrates’ courts , p 31
magistrates of great experience being lost to, or excluded for some time, from the system. However, there is now developing^23 a simple procedure of ‘active transfer’, that is, without a break in service, between commission areas. Such procedure, which preserves magistrates’ continuity of experience, is becoming the norm for those seeking transfer providing they have the support of the chairman of their transferor bench and acceptable MNTI reports, and there is a suitable 24 vacancy. Second, in the event of there being a new unified Criminal Court, although I would expect magistrates to sit mainly in their local courthouses, there is no reason why their jurisdiction should be restricted to one particular locality when they could be usefully deployed from time to time in adjoining areas, especially for longer cases and if they live in the boundary area spanning them.
17 The terms of District Judges’ appointment are that they should sit five days a week. However, there are some local variations, mainly in London, to allow for out of hours on call and emergency duties. And, as always, the unpredictability of lists or the need to give more time to preparation of cases or decisions, may mean that they do not always sit in court every day of the week. Like magistrates, they too have other commitments, including training sessions of the Judicial Studies Board, attending various meetings and assisting with the training of Deputy District Judges and magistrates. Although one or two provincial District Judges are members of MCCs, it is unusual.
18 Magistrates are required, as a minimum, to sit 26 half-days a year, but are normally expected to sit between 35 and 45 and not more than 70 a year. In addition, they are expected to undertake training for their general jurisdiction as ‘wingers’ and, in time, as chairmen and for any specialist panels, such as youth or family on which they seek to sit. They are also expected to involve themselves in different ways in the affairs of their bench and local community, by attending meetings, sitting on local committees and participating in various activities to educate the public about the work of the courts. These activities include participation in court open days, in presentations to schools and community and employer groups and in mock trial competitions. There have been some suggestions in the Review for relaxation of the Lord Chancellor’s sitting constraints, mainly to raise the maximum to beyond 70 sittings a year to allow those who can give more time to it to do so. However, I could not recommend that for two reasons: first, it would be likely to be taken up in large part by the retired or financially independent, swelling the already over-represented older and well-to-do members of the community on the magistracy. Second, to sit regularly for some two days or more a week would not be consonant with the notion of part-time lay justice and would attract perceptions of case-hardening.
(^23) in anticipation of a proposed amendment to the Lord Chancellor's Directions to take effect in the autumn of this year (^24) bearing in mind that the transferee bench should continue broadly to reflect the community it serves
Accordingly, I recommend that, whilst magistrates should continue to be appointed to one commission area, there should be a ready mechanism for enabling them, when required, to sit in adjoining areas.
FUTURE SHAPE OF SUMMARY JUSTICE
19 There are five main issues. They over-lap, one with another, and must also be considered in the context of the reforms that I recommend for the court system as a whole. They are:
- the extent of summary jurisdiction;
- the deployment of and allocation of work between District Judges and magistrates;
- the role of the justices’ clerks;
- the composition of the magistracy; and
- the training of the magistracy.
THE EXTENT OF SUMMARY JURISDICTION
20 There have been some suggestions in the Review for a general increase or decrease in summary jurisdiction, but I can discern no wide or well-based support for a change in the general limit of six month’s custody or £5,000 fine now applicable to District Judges and magistrates alike.^25 Whilst magistrates have a generally higher jurisdiction than that given to lay tribunals in other jurisdictions, they are increasingly well-trained for their task and have their legal advisers to assist them, where necessary, on points of law or procedure. A notable feature of their handling of their jurisdiction to date is the very low level of appeal from their decisions. But, as the division between summary jurisdiction and that of trial on indictment turns on the maximum severity of sentence – currently defined in terms of length of custody or amount of fine – implementation of the recommendations in the recent Sentencing Review, for combined custody and community service orders for up to 12 months^26 could require reconsideration of the dividing line.
(^25) the one seeming anomaly is the extension of their powers in the Youth Court to make detention and training orders for a maximum two years; see Powers of Criminal Courts (Sentencing) Act 2000, ss100-107 26 Making Punishments Work: Report of a Review of the Sentencing Framework for England and Wales (Home Office May 2001), p iv, para 0.11, recommendations 15-
and, the right to a ‘fair’ trial. On the other side, usually prayed in aid as favouring District Judges, are the more tangible qualities of legality, consistency, speed and other efficiency and effectiveness.
23 The debate, whatever notions or concepts are in play, largely consists of the deployment of ideologies to support unsound or out-dated comparisons and rival caricatures. The reality is that District Judges and magistrates today are closer in their social and legal culture than many give them credit for. If the reforms that I recommend in this and other chapters of the Report are implemented, the scope for this arid debate will be further reduced. Nevertheless, out of deference to the many who feel strongly about these considerations and who have made submissions to the Review, I consider each of them below.
24 I should add that, just as it is impossible for outside researchers and reviewers to evaluate the relative ‘correctness’ of juries’ verdicts and magistrates’courts’ decisions, so also is it impossible to evaluate the relative justice of the decision-making of District Judges and magistrates, for example, as to perceptions of over-ready conviction or over heavy sentencing by one or the other. Morgan and Russell disclaimed any attempt to assess the appropriateness or justice of their respective decisions or to recommend how better to balance the work of District Judges and magistrates at summary level.^28 They construed their remit as being more concerned with the mechanics of the present court process and how each form of summary tribunal performs, or is perceived to perform. As I have said, they were generally favourable to both.
Quality of hearing
25 As to court manner and general sensitivity to the parties, District Judges and magistrates both came well out of the Morgan and Russell research. There was not much to choose between them in such matters as attentiveness, clarity, courtesy and so on. But they concluded that District Judges had the edge in their control of proceedings, in moving them on and in resisting delaying adjournments, so that the more District Judges the less court appearances there were likely to be over-all. However, as I have indicated, they also found that District Judges are more likely than magistrates to refuse bail, to issue arrest warrants for failure to attend court and to impose immediate custodial sentences. 29
(^28) ibid, p 5, para 1. (^29) ibid, pp ix, x, and 48-50, paras 3.4.2 - 3.4.
People's justice and public confidence
26 One contributor to the Review^30 has drawn attention to the dichotomy in people’s attitudes towards the magistracy, according to whether they are considering the elective right to trial by jury in ‘either-way’ cases or the relative advantages of lay and professional judges in summary cases. On the former issue magistrates are often portrayed as part of the establishment, being used to deny defendants a basic human right; on the latter they are depicted as the near equivalent of a jury - the peers of people who appear before them, ordinary people with experience of the real world, bringing common sense to bear etc.
27 Some see magistrates as ‘surrogate jurors’ or as a manifestation of democracy in the administration of criminal justice. A recent example of many contributions over decades to this topic has been that developed during the course of the Review, and published in January 2001, by Professor Andrew Sanders under the auspices of the Institute for Public Policy Research.^31 He takes as his starting point the low level of public confidence in magistrates’ courts based largely on the recent British Crime Survey,^32 a MORI poll and focus groups with the public and with offenders. He then argues: that ‘participative democracy’, along with fairness and efficiency, are the principles by which the summary system should be judged; that trial by judge and jury in the Crown Court is assumed to be ‘the best’ system and one which commands more public confidence than trial by magistrates; and that, therefore, the aim should be “to make magistrates proceedings more like Crown Court trials”.^33 By that route he concludes that a District Judge sitting alone should deal with simple cases, “requiring legal rather than social skills”, and that a District Judge should sit with magistrates in all cases where social as well as legal skills are required. In practical terms he proposes that District Judges should sit on their own only when dealing with bail, remands, mode of trial determinations and pleas of guilty and that, in all other cases, they should sit with magistrates, who would need less legal expertise, training and experience and would sit less frequently than now – “more jury-like”. He suggests that the greater costs of requiring a mixed tribunal for all trial work would be off-set by the savings in District Judges dealing on their own with long remand and guilty plea lists and the removal of the need for legal advice from justices’ clerks or legal advisers.
28 Accordingly, under Professor Sanders’ proposals, District Judges, despite their legal knowledge and expertise, would when sitting alone, deal with
(^30) Robert McFarland (^31) Community Justice: Modernising The Magistracy In England and Wales , Andrew Sanders. Criminal Justice Forum, IPPR; p (^32) Home Office Research Study Attitudes to Crime and Criminal Justice: Findings from the 1998 British Crime Survey , (2000) (Joanna Mattinson and Catriona Mirrlees-Black), pp 3-8 and 47- (^33) Community Justice , pp 8 and 9
magistrates’courts, observed 37 “[i]t would be a mistake to construe lack of public knowledge with lack of opinion or public indifference” and went on to rely on the uninformed opinions they had identified as among a number of factors to be satisfied in some unspecified way. Similarly, Sanders clearly regards safeguarding and increasing of public confidence as an argument in favour of fashioning the system to meet the largely uninformed view of those whom his researchers had approached as representative of the larger public.
32 As I have said in Chapter 1, it is one thing to rely on uninformed views of the public as a guide to what may be necessary to engender public confidence, and another to rely on such views as an argument for fashioning the system to meet them. Public confidence is not an end in itself; it is or should be an outcome of a fair and efficient system. The proper approach is to make the system fair and efficient and, if public ignorance stands in the way of public confidence, take steps adequately to demonstrate to the public that it is so.
Magistrates as ‘surrogate jurors’
33 This argument implicitly includes, or is sometimes expressly coupled with, the notion that, as compared with District Judges, magistrates are less case- hardened and, therefore, approach their task with fresher or more open minds. To regard magistrates as ‘surrogate jurors’ is a tenuous comparison between trained and largely experienced lay judges sitting as judges of law and fact up to about once a week for, on average, between 10 and 20 years, and those who mostly know little or nothing of the system, and probably only serve as finders of fact for a fortnight or so once or twice in a lifetime. It is also an insecure comparison to the extent that it suggests that jury trial is the ideal model for all criminal trials whatever the level of seriousness. As to fresh and case-hardened minds, Morgan and Russell put magistrates in a continuum for case-hardening closer to professional judges than juries, noting the frequent argument used against them of higher conviction rate in magistrates’ courts than in the Crown Court.^38 Such a comparison also ignores the contribution of the respective training and courtroom experience of both District Judges and magistrates to maintaining an objective and judicial approach to their task.
‘Participative democracy’
34 As to the argument based on democracy, it is doubtful, even if benches of magistrates were representative of the community, what that quality would
(^37) The judiciary in the magistrates’ courts , p 116 (^38) ibid, p 9, para 1.4.
bring to the judicial role if not heavily overlain by the objectivity and skills that should come with courtroom training and experience. Moreover, as Morgan and Russell have observed by reference to other jurisdictions: “… there is no straightforward relationship between the degree to which democracy is embedded and lay involvement in judicial decision-making. Many longstanding democracies involve lay persons while others do not. The re- establishment of democracy in a country does not necessarily stimulate the introduction of lay involvement in judicial decision-making, sometimes the reverse occurs, depending on the cultural and political tradition”. 39 And, as they also note,^40 although the lay magistracy are a sign of the active engagement of the citizen in the administration of justice, the distinction between them and District Judges in this and other respects is, in practice, diminishing. Their social position is likely to be much the same, though, if my recommendations for securing a more widely diverse magistracy are adopted, this should change. However, both are, and will continue to be trained for and experienced in their respective roles and familiar with the extensive ‘locality’ over which they exercise the same jurisdiction.
‘Locality’ of justice
35 As I have mentioned in Chapter 1, ‘locality’ of justice is an issue for the criminal justice system as a whole. It is, however, most commonly voiced in relation to the role of magistrates. There is a widely and firmly based instinct that lay and ‘local’ justice is “a bridge between the public and the court system which might otherwise appear remote”.^41 Although magistrates must normally still live in or within 15 miles of their commission area, closures of courts in rural areas have led to some sitting well outside the area in which they live and work. They cannot know or, in any normal sense of the term, be regarded as representative of, the whole locality or community for which they administer justice. District Judges, most of whom will spend all or most of their time in their assigned area, will acquire as much or little ‘local’ knowledge as magistrates, and many will also live there as part of the broad community. And, like it or not, justice has been and is becoming less geographically localised as larger and better equipped full-time courts replace old, small, inadequate and insecure courthouses in part-time use in rural areas. With the loosening of small community ties resulting from increasing mobility and wider use of information technology, ‘locality’ of justice, like locality of shops and other community facilities now has a wider connotation.
(^39) ibid, p xii and pp 100- (^40) ibid, pp 6- (^41) Home Affairs Committee Report, Judicial Appointments (1995-96), HC 52-1, para 198 and see Seago, Walker and Wall, The Development of the Professional Magistracy in England and Wales , Crim L R [2000], pp 649-
collegiate decision being fair because of the inter-action between them and their relative lack of case-hardening. Glanville Williams was an early protagonist of collegiate decision-making both as to guilt and as to sentence because he saw it as a better protection against “the vagaries of the individual”.^44
39 There have from time to time been suggestions that professional judges should not sit on their own to determine the issue of guilt and/or that they should not sentence on their own, especially in both cases where the possible outcome for a defendant is loss of his liberty. In addition to the proposal of Professor Sanders, there have been a number of submissions in the Review to like effect, also praying in aid the Article 6 concept of a fair trial. However, I can see nothing in Article 6 or in any Strasbourg jurisprudence to suggest that trial by a professional judge sitting on his own violates it.^45 Single fact- finders and sentencers are commonplace in Convention countries^46 and in common law jurisdictions with a statutory declaration of rights containing a similar provision, and they have not been singled out for such attack.
40 Like Morgan and Russell, I would tread warily, certainly with the level of cases now dealt with by magistrates’ courts and where lay and professional judges sitting separately from each other are well established, before suggesting, on the ground of fairness or otherwise, that either should be routinely submerged in some form of hybrid court. As I have said, the overwhelming evidence in the Review is that they each do a good job in their separate ways. And neither magistrates nor District Judges would welcome such a general transformation and diminution of their respective roles at that level. It would undoubtedly make recruitment of both difficult. And relegating the role of magistrates to untrained, short-term ‘jury-like wingers’, as in the Sanders model, would have the further disadvantage of producing a tribunal two of whose members would, in the main, be unlikely to make an effective contribution to the process. Different considerations arise, however, when considering the conferment of an enhanced jurisdiction on a mixed tribunal of, say a District Judge and suitably trained magistrates, for certain types of more serious case, a matter with which I deal in Chapter 7.
(^44) The Proof of Guilt , The Hamlyn Lectures, 7 th (^) Series (Stevens, 1955) pp 233 and 273- (^45) see eg Murray v. U.K .(1996) 22.EHRR 22 (^46) eg in Holland where there are two types of ‘first instance’ courts. The ‘kantongerechten”’(magistrates’ courts) deal with less serious offences – misdemeanours or contraventions; also appeals against fines imposed by the police for traffic offences. These proceedings are dealt with by a single judge. More serious offences are dealt with by the district courts, where single judges (politierechters, who may sentence up to six months of imprisonment) and chambers of three judges sit. Economic offences are tried by single economic judges or by chambers of three economic judges. In Germany there are four types of ‘first instance’ courts. A single judge (Einzelrichter) at the District Court (Amtsgericht) has jurisdiction in the less serious criminal offences, including the majority of road traffic offences and may sentence up to two years of imprisonment
Independence
41 As to independence, where it is often suggested magistrates have the edge over District Judges, it is difficult to see why the latter, whose appointment is subject to essentially the same criteria and procedures as other professional judges, should today be regarded as likely to favour the executive at the expense of the citizen. If anything, experience over recent decades has tended to show the reverse at all judicial levels. The implementation as part of our domestic law of the European Convention of Human Rights is likely to accentuate that instinct of independence. Moreover, the scope for District Judges sitting singly to act as ‘government placemen’, favouring the executive at the expense of the citizen, is likely to be limited. Most of their time is spent, not on cases of general public interest or of sensitivity to central government, but on general lists involving, in the main, pre-trial work, sentencing and run of the mill trials. 47 Seago, Walker and Wall, commenting on their fieldwork supporting that general picture, said: “… stipendiary magistrates do not emerge as markedly specialised or compliant judicial figures who are willing to adopt whatever central government desideratum that comes their way. There is also no evidence to date, for example, in regard to sentencing, that stipendiaries have a greater deterrent impact, nor have they been more liberal when policy has so required it. So, an outside observer who believed, however fancifully, that the explicit purpose of the magistrates’ courts is ‘the maintenance and reproduction of existing forms of structural dominance’ or even of ‘conveyor belt’ justice would find little to choose between the zeal of lay or professional magistrates.” 48
Conclusion as to deployment and allocation of work
42 As I have said, the pace of increase in the number of stipendiary magistrates in proportion to that of lay magistrates has been modest. Their role, despite their recent change of title and status to District Judges, was and is to support and complement the work of magistrates where necessary. Given the current structure and jurisdiction of magistrates’ courts, I can see no justification, whether of justice or efficiency, for a move to District Judges and magistrates routinely sitting as mixed tribunals to deal with the general range or any
(^47) see eg Seago, Walker and Wall, p 637; Morgan and Russell, pp26-29; Sanders and Young, Criminal Justice 2 nd (^) Edition, 2000, pp 488- (^48) Seago, Walker and Wall, pp. 637-
it, in the speed with which they can dispose of a general list of pre-trial work and pleas of guilty.
45 At first, I baulked at the Venne Committee's use of the word ‘presumption’ in recommending that, where a stipendiary magistrate was available, he should undertake the heavier work. However, when dealing with cases involving complex points of law or evidence, it made what I consider to be a strong general case for it. It spoke of the increasing legal complexity of work in magistrates’ courts “in an evolving system of justice which will always endeavour to refine the requirements of due process”. But, importantly, it qualified its recommendation by a reminder of the value to the system of stipendiaries taking a fair share of routine work because of: their speed and its contribution to the efficient administration of justice; a need for exposing them to and giving them experience of every aspect of the work of a magistrates’ court; the salutary effect that their customary presence in court in such cases can have on those who habitually prosecute and defend in them; and so as not exclude or give magistrates the impression of excluding them from the more interesting work of the court.^52
46 I cannot improve on the approach of the Venne Committee. District Judges, while making themselves available to do the whole range of summary work, should concentrate on case allocation and management, cases of legal or factual complexity, cases of priority, such as those involving young offenders or offences of a sexual nature, and long cases that most magistrates could not undertake, at any rate under their present patterns of sitting.
47 The following conclusion of the Venne Committee as to how such a system of allocation can and does work in most places is well supported by many submissions to the Review and by my experience from visits and talking to District Judges, magistrates and justices’ clerks all over the country: “The balance to be struck is a fine one, but we are satisfied from our own visits to magistrates’ courts where Stipendiary Magistrates sit, that it can be achieved where the Stipendiary, the Justices’ Clerks and the lay justices are alive to the need to achieve such an appropriate balance of work.” 53
48 Who should allocate summary work as between magistrates and District Judges under the present court structure or the new one that I recommend in Chapter 7? Is it a ‘scheduling’ responsibility of the justices’ chief executive (court manager) or, in individual cases at any rate, a listing exercise for the chairman of the bench and the justices’ clerk? The view of the Venne
(^52) The Venne Report, para 5. (^53) The Venne Report, see p 18, para 5.
Committee, with which I agree, is that in most cases listing decisions of this sort are for the justices’ clerk, who should have regard to its general guidance. Though, as the Committee also observed, there may be some cases in which it would be appropriate for him to consult the District Judge and/or Chairman of the Bench, for example, where there are issues of legal difficulty or local sensitivity. The allocation of the heavier and more interesting work can be contentious. Justices’ clerks may find themselves in the middle of a tug of war between District Judges and magistrates, both staking their claim to it. A frequent complaint of magistrates in the Review was that they were losing, or would lose, much of this work to District Judges. I learned of instances where the local Chairman of the Bench heavily influenced what work should be given to the District Judge. Equally, there were accounts of District Judges insisting on being given work that they considered their status merited. As Morgan and Russell indicate,^54 local listing practices or policies of this sort raise questions of accountability or, in plain terms, of knowing who is in charge.
49 Under our present system, where do the Lord Chancellor's Department, the newly created Senior District Judge and the local MCC fit into all this? To whom is the justices’ clerk, and for that matter, the District Judge and chairman of the bench, responsible for such decisions? In the Crown Court, listing has always been regarded as a judicial, not an administrative, function in the sense that the judges are the ultimate arbiters of listing practices at their court and of their own lists, albeit in close consultation with administrators. In my view, whether or not the present structure of the courts changes, there is an urgent need to establish lines of accountability and ultimate responsibility for listing and its manner of exercise in summary proceedings. If District Judges and magistrates become judges of a new unified Criminal Court, it seems to me that the immediate responsibility should be with the equivalent of the present justices’ clerk after consultation with the District Judge, chairman of the bench and court manager. But, in the event of disagreement the Resident Judge should have the ultimate decision. I make a recommendation to that effect in Chapter 7.^55
I recommend that in the exercise of their summary jurisdiction:
- District Judges and magistrates should not routinely sit as mixed tribunals to deal with the general range or any particular type of case or form of proceeding, though there may be training and local ‘cultural’ advantages in their doing so from time to time
(^54) The judiciary in the magistrates’ courts , pp 27-30 and 109- (^55) para 81
