The number of magistrates has dropped by more than a third since 2007, and magistrates are on average older than they were in 1999, and no more ethnically diverse. Swathes of work has been taken away from them including licensing and anti-social behaviour, while other work has been delegated to one magistrate sitting alone. New Labour long ago undermined magistrates’ power to administrate courts through centralising the system. Yet thousands of people still apply to become magistrates – to sit in judgement on their peers.
The question of what to do with the magistracy has been allowed to drift for years. Charlie Falconer, when Lord Chancellor, boosted numbers and made great efforts to diversify the magistracy. There were advertisements on buses, a recruitment helpline and a mentoring scheme for prospective black magistrates. All this activity came to a crashing halt in 2007. Bar a flurry of activity and talk of a green paper two years ago, there has been silence on the future of the magistracy. We have no idea whether numbers will fall further – there is no written policy. But the Justice Committee is just about to start an inquiry into the future of the magistracy (to which Transform Justice has responded) , which may force these issues into the open.
One of the most damaging effects of the drift is in the make-up of the magistracy. Huge efforts have been made to make the paid judiciary less pale and male. A law (the equal merit provision) was brought in to allow some level of discrimination in appointments – if two candidates are equally suitable, the one from an under-represented group can be selected. And there is now a statutory duty on the Lord Chancellor and the Lord Chief Justice to ‘take such steps as they consider appropriate for the purpose of encouraging judicial diversity’. But magistrates were excluded from the equal merit provision and public pronouncements on judicial diversity focus on the paid judiciary.
So now 86% of magistrates are over 50 while most offenders are young adults. Ethnic minority magistrates are under-represented and in some areas like Cleveland, Humber and Staffordshire there are no black magistrates at all. If the magistracy is to have a future (and some doubt it has) it must become more representative of the people – otherwise it becomes not judgement by peers, but judgement by one particular social group over other social groups. But how can we bring in new kinds of magistrates if work is falling and magistrates aren’t being recruited? Its a conundrum for government. The Magistrates’ Association’s solution is to give magistrates more work by giving them greater sentencing powers – to allow magistrates to sentence offenders to a year in prison for a single offence.
Should magistrates have greater powers to use imprisonment? I have no problem in theory, but in practice I’d like to know whether this will prevent people opting for a jury trial and what likely impact this change would have on imprisonment. Previous research by the Ministry of Justice (here) suggested that magistrates and district judges may be more likely to use prison than crown court judges. But I’m not sure we need to increase magistrates’ sentencing powers anyway. Even now, around a third of crown court cases could be dealt with in the magistrates’ court instead.
So what future does the magistracy have? Most politicians still believe in lay involvement in the justice system. Many practitioners do too. But the less representative magistrates become, and the more policy drifts, the more the magistracy is likely to wither on the vine. The alternative is radical reform.