Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales

AuthorJane C. Donoghue
DOIhttp://doi.org/10.1111/1468-2230.12097
Publication Date01 Nov 2014
Reforming the Role of Magistrates: Implications for
Summary Justice in England and Wales
Jane C. Donoghue*
The role of lay magistrates in England and Wales has been progressively undermined by
protracted processes of reform over the last two decades. Current government proposals aim to
reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities
such as oversight of out of court disposals and greater involvement with local justice initiatives.
This article argues that while these proposals embody necessary and important areas for reform,
taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they
are enacted alongside other measures which aim to reaffirm the status of lay justices, and which
seek to reverse the trend which has prioritised administrative efficiency at the expense of lay
justice. Rapidly declining magistrate numbers together with continuous (and continuing) pro-
grams of court closures are irreconcilable with the future viability of a lay magistracy.
INTRODUCTION
The English and Welsh legal system is highly distinctive in comparison with
many other jurisdictions in its use of ‘lay’ (non-professional) justices in the
magistrates’ courts.1Over the last fifteen years in particular, however, there has
been significant political and legal debate about the function and rationale of lay
participation in summary justice.2Recognition of the central role played by
*Director of the Centre for Crime, Law and Justice, Reader in Law, Law School, University of
Lancaster. Sincere thanks are due to Nicola Padfield, John Murphy, Paul Iganski and the two
anonymous reviewers for their invaluable comments on an earlier draft of this article.
1 Although there are a small number of loosely comparable examples in other countries, for example
volunteer lay judges in criminal cases are denominated in German Schoeffen. For further discussion,
see C. Thomas, ‘Judicial Appointments in Continental Europe’ in K. Malleson and C. Thomas
(eds), Judicial Appointments Commissions: The European and North American Experience and the Possible
Implications for the United Kingdom (London: Lord Chancellor’s Department, 1997); J. D. Jackson
and N. P. Kovalev, ‘Lay Adjudication and Human Rights in Europe’ (2006) Colum J Eur L 83.
In Scotland, the Criminal Proceedings, Etc. (Reform) (Scotland) Act 2007 continued the exist-
ence of lay courts by creating the new Justice of the Peace Courts, which replaced the former
District Courts, see R. M. White, ‘Lay Criminal Courts in Scotland: The Justification for, and
Origins of, the New JP Court’ (2012) Ed L R 358.
2 See for example, A. Sanders, Community justice: modernising the magistracy in England and Wales
(London: IPPR, 2001); M. Cuneen and R. Bingham (eds), Magistrates’ Courts and Public Confi-
dence: A Proposal for Fair and Effective Reform of the Magistracy (London: Liberty, 2002); R. Morgan,
‘Magistrates: The Future According to Auld’ (2002) 29 Journal of Law and Society 308; A.
Crawford, ‘Involving Lay People in Criminal Justice’ (2004) 3 Criminology and Public Policy 693;
M. Davies, ‘A new training initiative for the lay magistracy in England and Wales – a further step
towards professionalisation?’ (2005) 12 Int’l J Legal Prof 93; J. Shapland (ed), Justice, Community
and Civil Society (Devon: Willan Publishing, 2008); A. Ames, R. Szyndler, K. Burston, R. Phillips,
J. Keith, R. Gaunt, S. Davies and C. Mottman, The Strengths and Skills of the Judiciary in the
Magistrates’ Courts (London: Ipsos Mori, 2011); D. Faulkner (ed), The Magistracy at the Crossroads
(Hampshire: Waterside Press, 2012); R. Morgan, ‘The magistracy: secure epitome of the Big
Society?’ (2013) 91 Criminal Justice Matters 8.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(6) MLR 928–963
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
magistrates as a manifestation of the democratic involvement of citizens in their
local communities appears to receive continued support from government.
However, in light of the constraints associated with depleted case loads, court
closures, reduction in magistrate numbers, increasing case complexity and sub-
stantial criminal justice budget cutbacks, government ministers have stressed the
importance of reforming the role of magistrates in order to provide legitimacy for
their continued existence as a feature of the legal system in years to come.3
Government reforms aim to reorient and expand the function of lay justices and
include proposals for new magisterial responsibilities such as oversight of out of
court disposals; justices’ hearing certain types of cases individually rather than
sitting as a bench of three; the creation of specialised traffic courts; and plans for
more systematic engagement with communities through direct involvement
with local projects and initiatives such as neighbourhood justice panels.4Current
government plans for reforming the role of magistrates clearly envisage that their
revised function will enhance ‘efficiency’ in the court process and result in
considerable cost savings.5Fiscal imperatives have meant that administrative
efficiency has been a central theme of proposals for change in the criminal justice
system in recent years. The government’s 2012 White Paper Swift and Sure Justice,
placed particular emphasis upon more ‘efficient’ and ‘reliable’ delivery of crimi-
nal justice to ‘enhance public confidence’, which it intends to achieve through
practical changes to the justice system including increased use of technology,
longer court opening times, early guilty pleas, and changes to the role of
magistrates.6As the drive towards efficiency savings continues apace, reflected in
court closures and increasing centralisation, the government is placing renewed
emphasis upon the need for the magistracy to improve and to demonstrate
efficiency in the delivery of summary justice.
A national consultation on Reforming the Role of Magistrates was launched by
the Ministry of Justice in August 2013 which outlined proposals for magistrates
to become further involved in summary processes.7These proposals are impor-
tant because the volume of cases that magistrates hear has been steadily declining,
3 Ministry of Justice, Press Release – Damian Green: Reforming the Role of Magistrates (2013).
4 The terms ‘justices’ and ‘magistrates’ will be used interchangeably throughout this article.
5 Ministry of Justice, Court Reform: Delivering Better Justice (2010); Ministry of Justice, Swift and Sure
Justice: The Government’s Plans for Reform of the Criminal Justice System Cm 8388 (2012); Ministry of
Justice, Transforming the Criminal Justice System (CJS): A Strategy and Action Plan to Reform the
Criminal Justice System (2013).
6 Poor efficiency in the work of the lower criminal courts, and the implications for confidence in
summary justice, has for example been an issue highlighted in Penny Derbyshire’s comprehensive
study of the courts in England and Wales, which has reported on the ‘chaotic’ management of
cases in the lower courts as a result of understaffing and the failure to establish satisfactory IT
systems. The study also found that the severely underfunded nature of the agencies serving the
courts has resulted in poor or inadequate case preparation or presentation, delays, adjournments
and a cumulative waste of resources. The length of time that cases take to complete, particularly
the number of adjournments (coupled with different judges hearing the same case at subsequent
hearings) impacts upon satisfaction and confidence in the courts and criminal justice system more
broadly, with victims and witnesses withdrawing their commitment from prosecutions, including
their willingness to act as witnesses: P. Darbyshire, Sitting in Judgement: The Working Lives of Judges
(Oxford: Hart Publishing, 2011).
7 n 3 above.
Jane C. Donoghue
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 929(2014) 77(6) MLR 928–963
with a 14 per cent reduction in court business over the last four years.8This is
in part a consequence of the significant increase in police use of out of court
disposals. While the diversion of low-level offences from the formal court
process is useful in providing greater speed, efficiency and proportionality in
responses to low-level offending, many cautions and other summary disposals
have been used for more serious types of offences such as assault and burglary, as
well as for persistent offenders. This has undermined the role of the magistrates’
court as the court of first response, and has displaced business which ought
rightfully to be the preserve of the magistrates’ courts, to the police. There is also
ineffective scrutiny of police decision-making in relation to the use of summary
penalties and the opportunity to challenge the issuing of these disposals is heavily
circumscribed. Moreover, cautions for assault, for example, are not counted in
official crime statistics, which impacts on data on (and perceptions of) the crime
rate.
In addition, there has been a decrease of more than 20 per cent in the number
of sitting magistrates since 2011 as well as the closure of many courthouses across
the country.9This has coincided with an increase in the number of professional
District Judges, who also hear cases in the magistrates’ courts, and an expansion
in the judicial and quasi-judicial powers of legally qualified Justices’ Clerks, who
advise magistrates. Increasing professionalisation in the magistrates’ courts stands
in opposition to the central tenets of a summary justice system underpinned by
the notion of lay justice, delivered by members of the citizenry. The gover-
nment’s proposals for reform come at a time when magistrates are increasingly
concerned that their role in summary justice is fundamentally under threat.
Against the backdrop of the government’s 2013 consultation on reforming the
role of magistrates, in this article I will examine the genesis and theoretical
significance of lay participation in summary justice in England and Wales. I argue
that the laity is an intrinsically valuable institution because the role of magistrates
is an embodiment of society in the legal process which exists as a direct
democratisation of that process. Moreover, lay magistrates possess distinct tech-
nocratic advantages as well as providing an important check on professional
power. Economic considerations are also relevant and I contend that the relative
financial merits of the lay magistracy, taken together with democratic arguments,
provide the combination of elements most worthy of consideration in the
conceptual framework of the value of magistrates’ participation in summary
justice.
In the second part of the article, I examine the ways in which the delivery of
magistrates’ ‘local justice’ has progressively been undermined by protracted
processes of reform over several decades. I then analyse the impact of proposals
for reform in three domains of particular significance: out of court disposals;
neighbourhood justice panels; and sentencing jurisdiction and supervision. I
argue that these embody necessary and important areas for reform. Taken in
isolation, however, they will fail to consolidate the role of magistrates in
8 P. Gibbs, Why has the magistracy shrunk? (London: Transform Justice, 2014).
9 The number of magistrates fell by 8,000 from 2010 and there was a further reduction of almost
2,000 magistrates in 2013.
Reforming the Role of Magistrates
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
930 (2014) 77(6) MLR 928–963

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