So it is that today, criminal offences are divided into three categories. The least serious ‘summary only’ offences – motoring offences, common assault, minor public disorder – can only5 be tried in the magistrates’ court. The most serious ‘indictable only’ offences – murder, rape, possessing firearms, serious violence and so forth6 – can only be tried in the Crown Court. The meaty filling of ‘triable either way’ crimes in between those two extremes – your burglaries, drug transactions, semi-serious violence and garden-variety sexual offending – can be heard either in the magistrates’ court or the Crown Court, and the first appearance is used to determine which venue is most suitable (the ‘allocation’ procedure). To do this, the magistrates look at the facts of the allegations and the relevant Sentencing Guidelines, and consider whether, if the defendant were to be convicted, the magistrates’ powers of sentence (a maximum of six months’ imprisonment for a single offence, or a maximum of twelve months’ imprisonment for two or more ‘either way’ offences) would be sufficient. If so, they will deem the case suitable for summary trial. If not, or if the case is unusually legally or factually complex, they’ll send it to the Crown Court.
The bottom line though is that, whatever view the magistrates take on venue, the defendant has the right in all ‘triable either way’ cases to elect to go before a jury in the Crown Court.
So that is the historical explanation for magistrates’ courts. The justification for their continued existence takes us back a chapter to the feting of jury trial – Magna Carta, participative democracy and all that jazz. Magistrates’ courts, it is submitted, root criminal justice in the community, satisfying our constitutional craving for judgment by our peers. The Kyles of England and Wales will be judged by unpaid locals who can empathize with their backgrounds while reflecting the diversity of modern society, in the same way that we trust that juries do. Of course, the cost of securing and accommodating twelve laypeople to decide every contested criminal allegation would be frankly astronomical. Only 1 per cent of criminal cases are resolved by jury trial,7 and the cost of that, the Ministry of Justice insists, is already too high. Accordingly, for all but the most serious offences, the magistrates’ court offers a compromise. Three volunteer JPs – an experienced ‘chair’ sitting in between two ‘wingers’ – assisted by a qualified ‘legal advisor’ to parse the relevant law, offer a scaled-down version of the judge-and-jury trial, preserving its essential democratic goodness, while diluting the formality, delay and expense of Crown Court proceedings. The law, trial procedure and rules of evidence are basically the same as in the Crown Court; the primary distinctions are the body determining guilt, the level of formality – there are no wigs, gowns or judicial robes, for example8 – and the fact that solicitors, not just barristers, have rights of audience and so handle the bulk of the courtroom advocacy. Due to the dialled-down formality and absence of a jury, magistrates’ trials are far quicker than Crown Court trials; trials last half a day in the mags, on average, compared to days, if not weeks, in the Crown. And, of course, there’s the cost: £1,150 a day to run a magistrates’ court, compared with an average £1,900 per day for a Crown Court.9
A further advantage is that magistrates are multipurpose, and as mini-judge-cum-juries are able to deal with matters of law which Crown Court juries are forbidden from touching. For instance, magistrates can run case management hearings, at which pre-trial issues – such as whether the parties are ready for trial, or defence applications for the prosecution to disclose relevant material – are thrashed out between the parties. They can determine legal applications, for example arguments over whether a piece of evidence is admissible at trial. Unlike juries, magistrates, having returned a guilty verdict, can go on to sentence the defendant. And there are scores of ancillary functions, including issuing search warrants to the police and authorizing utility companies to disconnect households defaulting on bills. Outside the adult criminal courts, magistrates can undertake special training to qualify to sit in the Youth Court, which deals with children aged between ten and seventeen, and the Family Court.
What we have, in summary, is a system designed to deliver affordable, speedy, summary justice for high-volume, less serious crime. Over the past ten years, various initiatives10 have popped up to streamline proceedings, the aim now being that all magistrates’ cases be reduced to two hearings – the first appearance and, as soon as possible thereafter, trial and/or sentence. Two hearings, boom. The best bits of the jury system, only a fraction of the cost. All topped off with an infusion of a near millennium of hardy English tradition, which in the law is nearly always A Good Thing.
That, I am afraid, is as favourable a gloss as I am able to put on magistrates’ court justice.
I did my best over the previous pages. Honestly I did. I emptied out my bag of rhetorical tricks; I gave you statistics, forced whimsy, a whistle-stop history lesson and exploited the virtues of the jury system in the hope that you might overlook how poorly the same arguments transfer to magistrates.
The truth is that the entire case in favour of magistrates’ courts, as we currently run them, is a sham. There is little sustainable rationale for their existence in principle, and no justification whatsoever for the way in which these courts operate in practice. There is no excuse for the amateur, sausage-factory paradigm of justice and ‘that’ll do’ complacency that pervades 94 per cent of criminal cases, other than that most cynical political trinity: it’s cheap, it’s the way we’ve always done it and no one who votes either knows or cares. And the more you experience magistrates’ court justice, and interrogate the base assumptions of this system, the less explicable the whole pantomime becomes.
Let’s rewind to Kyle, kicking his heels in the lobby and waiting for his brief. Kyle’s brief is Rachael, the same fearless, no-shit-taking solicitor who has represented Kyle from his early days in the Youth Court, and has watched with weary familiarity as, in spite of her best efforts, her thirteen-year-old client has carved out the same career path as his older brothers. Rachael also represented Kyle during his interview at the police station following his arrest, so is already familiar with his latest snafu, but this isn’t always the case. Sometimes defendants will be represented at the police station by the duty solicitor, but select a different firm, or the court duty solicitor, to act for them at court. Assuming they satisfy a strict means test, defendants will usually be represented before the magistrates by solicitors from legal aid firms. Meanwhile the prosecution is handled either by in-house CPS lawyers, or by external solicitors or junior barristers, like me, instructed for the day as ‘agents’.
When Rachael arrives, Kyle will confirm his instructions, admitting that he took a ride in the car knowing that it was nicked, and upon being advised on the sensible course will follow Rachael into court to enter his guilty plea.
The first thing to note is that the figures on the bench are unlikely to conform to Kyle’s, or indeed many defendants’, definition of peers or equals. The demographic of most defendants in these courts is homogeneous; society’s lost boys and girls, a sorry parade of abused children turned drug-abusing adults. Sliding on and off the bottom rung of social functioning, in and out of homelessness, joblessness and wretched worthlessness, their histories are scabbed with violence, mental ill-health and chaos, and their present lies in a parallel universe where the middle-class ambition of the Good Life is replaced with a desperate scrapping for daily survival.
As I say, those sitting in judgment will invariably not be of the same stock.
For a start, it is possible that the ‘mini-jury’ in his courtroom won’t even feature lay magistrates, but will instead comprise a single professional District Judge. DJs, as they’re known in the trade, are legally qualified full-time judges who sit alone in magistrates’ courts. Their powers and functions are largely the same as lay magistrates; they hear trials and case management hearings and pass sentence. The only formal difference is their professionalism. DJs first emerged around 1740 in the s
hape of ‘stipendiary magistrates’, salaried Justices of the Peace appointed as a response to rampant corruption among lay justices in London.11 Now there are around 130 District Judges nationwide splitting the workload with around 100 part-time ‘deputy’ DJs and 17,500 magistrates. DJs are experienced legal practitioners – usually solicitors or barristers – appointed on the recommendation of the Lord Chancellor upon demonstration of, among other qualities, their knowledge and understanding of the law. Whatever the advantages of DJs (and we’ll come to those shortly), a single legal expert appointed by the state is hardly a diverse, independent exemplar of participative democracy. If it’s a scaled-down version of the jury, it’s scaled down by 12:1. Where that 1 is a state-salaried solicitor. Given that Kyle has no say over whether his case is heard by a District Judge or by JPs, it is clear that the noble principle of lay participation is not inviolable.
But even if, as was the case on this day, Kyle found himself before a lay bench, it is obvious that magistrates too are anything but a mini-jury. Jurors are randomly selected from the electoral register, and anyone aged between eighteen and seventy-five (save for those with serious criminal convictions or severe mental illness) can be compelled to sit on a jury. Students, stay-at-home parents, police officers, judges, MPs, the employed, the self-employed, the unemployed, the retired, the obscenely wealthy, the desperately poor, big business owners, small business owners, zero-hours workers, conservatives, trade unionists, neoliberals, Marxists, the disabled, the abled and the full gamut of racial, cultural, class and religious identities are impanelled as jurors, whether they like it or not. Jurors do not self-select (and, unlike in the US, cannot be strategically chosen to suit the parties). Jurors don’t put themselves forward as Solomons walking among us. It takes a certain type of character to volunteer to sit in judgment over one’s fellow citizens as a hobby. And it so happens that, to the present day, that type of character has uniformly been white, middle aged and middle class, with a traditionally conservative leaning.
Geoffrey Robertson QC offered a withering description of magistrates in his evidence to the House of Commons Home Affairs Committee in 1995, painting them as:
Ladies and gentlemen bountiful, politically imbalanced, unrepresentative of ethnic minority groups and women, who slow down the system and cost a fortune.12
In fairness, we have seen slight improvements since 1995, a time when JPs were recruited sans interview by a tap on the shoulder from an old chum. But the unsurprising legacy of an institution which, until 1906, jealously restricted membership to the landed gentry, and until the 1990s was still dominated by freemasons,13 is that today with your average bench, you’re not entrusting your liberty to the collective wisdom of twelve everymen; the butcher, baker, candle-stick emporium televangelist etc. You’re often pitching to the admissions board of a 1980s country club.
While I have only once been treated to a demonstration of explicit magisterial racism – a white chairwoman musing, apropos of nothing, in front of me as prosecutor and her embarrassed colleagues: ‘Mohammed is now the most popular boys’ name, apparently. Isn’t that terrifying?’ – it is the subtler expressions of privilege and prejudice that pervade.
‘We understand that your upbringing was difficult,’ I’ve heard countless well-heeled chairs tell nineteen-year-old heroin addicts, graduates of the council-estate-to-care-home-to-streets pathway, moments before they’re given eight weeks because (reading rote from the mags’ pro forma sentencing remarks), ‘You must learn that shoplifting is a very serious offence and you must stop committing serious offences of shoplifting.’ More times than I can recall have I heard the same monotone chiding of homeless alcoholics who have breached a court order, usually obtained at great public expense by the local authority, banning them from begging for money. ‘Breaching a court order is a very serious offence . . .’, the chair’s finger wags at the wretch in the dock, making little effort to hide his incredulity at why this man doesn’t just stop begging, put on a decent suit and get a job.
This is not, I hasten to add, the attitude of all magistrates. A number bring to the bench invaluable, real-world experience of the underbelly of society. Community outreach workers, youth workers, social workers, teachers, medics and people who know the daily reality of the Kyles living hand-to-mouth, growing up in abject, abusive poverty and being trapped from a young age between disjointed education and peers and family members dragging them into criminal lifestyles. I’ve met these magistrates outside the courtroom, and their broad independent-mindedness and hunger for social justice represent beautifully the ideal to which the institution aspires.
But in my experience they remain a minority.
Despite a conscious push in the mid-2000s to diversify the magistracy following a series of critical reviews and reports,14 decreasing numbers of volunteers in recent years – a drop of nearly 50 per cent since 2006 – has in fact had the opposite effect. In 2016, 57 per cent of magistrates were over sixty, as opposed to 32 per cent in 1999. Anyone aged eighteen or over can apply to be a magistrate, but less than 1 per cent are under thirty. While 14.1 per cent of the population identify as Black and Minority Ethnic (BAME), the declared figure is only 10 per cent among magistrates, and some courts have no BAME representation at all. Only 4 per cent of magistrates identify as disabled, compared to 16 per cent of working age adults and 45 per cent of adults over state pension age. What official figures there are – and this will be supported qualitatively by any criminal practitioner – indicate that magistrates present as mostly middle class. And equal representation by sexuality, reports suggest, is also some way off.15
There is a longstanding, and often greater, chasm in representativeness visible in the judiciary too (although DJs are on average significantly younger than magistrates); however, judges don’t justify their existence on the basis that they are the modern-day heirs to Magna Carta, drawn from the same stock as those upon whom they sit in judgment and enriching the criminal process with the breadth of their worldliness and unerring feel for the lot of the common man. When your official raison d’être is to reflect the local community, it becomes a problem if case after case looks to the outside world like old, white, middle-class people lording it over young, working-class, BAME defendants.
And it is not merely a matter of presentation. A socially, culturally and ethnically homogeneous lay judiciary leads inevitably to a narrower and more entrenched set of beliefs and presumptions, as betrayed by questions and off-the-cuff comments that we hear from the bench.
The decisions that are handed down in magistrates’ courts too rarely deviate from the predictable. This is demonstrated most glaringly by the statistically suggested pro-prosecution attitudes on display.
Earlier, we touched upon a defendant’s right to elect jury trial in either-way offences. This decision is one of the earliest on which defence lawyers have to advise the client: do you stick in the magistrates’ court, where the maximum sentence for a single offence is six months, or twist and go to the Crown Court, where the maximum sentence will be measured in years?
Why, you might ask, would a defendant opt for the Crown Court and the risk of a much higher sentence? The answer lies in the statistics. Trials in the magistrates’ court are far more likely to result in a win for the Crown. In 2016/17, the Crown Prosecution Service prosecuted 52,140 trials in the magistrates’ court. Of these, 33,371 resulted in conviction, a conviction rate of 64 per cent. Over the same period, the CPS prosecuted 14,967 trials in the Crown Court, of which 7,806 ended in conviction. A conviction rate of 52.2 per cent. That is a disparity of nearly fourteen percentage points, or, put another way, you have a 25 per cent better chance of being acquitted in the Crown Court.16
Twenty-five per cent.
Possibly this can be explained as another vestige of history. In the sixteenth century,17 JPs, who were not yet trying criminal cases by themselves, nevertheless played a vital role in prosecutions. As there was no police force or public prosecutor, and most prosecutio
ns were brought by the complainant, magistrates were commanded to help investigate and build the prosecution case. They took depositions from prosecution witnesses (and stoutly refused to depose anyone who might assist the defence), and compelled those witnesses to attend trial. Through interrogation magistrates extracted ‘confessions’ from defendants, and then appeared at trial to give evidence for the prosecution, in the same way that a modern police officer in charge of a case gives evidence about the investigation. Don’t mistake this for a balanced inquisitorial procedure such as we see on the Continent; these partisan mags were explicitly told that they should do everything in their power to secure ‘anything material to prove the felony against [the defendant]’.18
Although by the twentieth century incremental recalibrations had tilted magistrates towards a disinterested judicial role, magistrates’ courts were until 1949 formally referred to as ‘police courts’. And that is what they were; the courts were (and many still are) physically attached to the local police station. The police guarded the doors, brought the prisoners to court, put prisoners in the dock and were the primary state prosecution agency until the Crown Prosecution Service was created in 1985.
Even now, you will still hear old-school mags occasionally slip into possessive determiners when referring to the prosecution: ‘our officer’ or ‘our prosecutor’. Indeed, as I crash into court laden with my files, before I can catch my breath the chair peers up from behind her spectacles to score a double whammy: ‘Ah finally, our prosecutor. Now, is our policeman here for the first trial?’
It’s a cliché in legal circles, but no less true for so being, that if it’s the word of a police officer against your client, it’s usually game over before you’ve begun. You’re normally facing a combination of General Melchett starting Captain Blackadder’s trial by commanding, ‘Pass me the black cap, I’ll be needing that,’ and Alan Partridge suggesting to a lawyer interviewee that ‘with the greatest respect, the police are hardly likely to arrest a man if he’s innocent, are they?’ Or, in the historic words of the magistrates themselves:
The Secret Barrister Page 6