Oral evidence: The role of the magistracy, HC 595
Tuesday 7 June 2016
Ordered by the House of Commons to be published on Tuesday 7 June 2016.
Written evidence from witnesses:
– Her Majesty’s Council of District Judges
Members present: Robert Neill MP (Chair); Alex Chalk MP; Alberto Costa MP; Philip Davies MP; David Hanson MP, John Howell MP; Dr Rupa Huq MP; Victoria Prentis MP; and Marie Rimmer MP.
Questions 212 -– 349
Witnesses: Malcolm Richardson JP, Chair, Magistrates Association, and Sheena Jowett JP, Deputy Chair, Magistrates Association, gave evidence.
Chair: Good morning. Let’s start the evidence session. Thank you both very much for coming again to give evidence. It is not unfamiliar to have people from the Magistrates Association here, but it is always good to see you. Can I check for the whole of this meeting whether members have any relevant interests to declare? I am a non-practising barrister. I used to appear in magistrates courts a lot, but I have not done so for some considerable time.
Victoria Prentis: So am I.
Alex Chalk: I am a practising barrister.
Alberto Costa: I am a practising Scottish and English solicitor.
Q212 Chair: Would you like to introduce yourselves? We will then move straight into the questioning.
Malcolm Richardson: Certainly, Chair. I am Malcolm Richardson. I am the national chairman of the Magistrates Association, the charity that represents that part of the judiciary which, for 1% of HMCTS’s operating budget, deals with over 90% of the criminal cases, with an appeal rate of less than 1%.
Chair: You got your point in early.
Sheena Jowett: I am Sheena Jowett. I am the deputy to the chairman of the Magistrates Association.
Q213 Chair: Thanks very much for the introductions. At the beginning of your written submission, you make reference, quite rightly, to Lord Bingham and the importance of the magistracy. From that written submission and from all the dealings that we have had with the Magistrates Association before, I am conscious that you are very committed to the principle of local justice—the fact that you are from the community and are visible within it. Do you think that has changed? Are there pressures upon that?
Malcolm Richardson: Yes.
Q214 Chair: What are those, in a nutshell?
Malcolm Richardson: It would be foolish to suggest that it has not changed. Frankly, we have to take a different view or a different definition of what we mean by local. By the time we have gone through this round of court closures, “local”, as most people would use the term, will be a fairly farcical construct. We agree with the Ministry that an hour’s travelling distance should be a measure, but really we ought to consider public transport, not just availability for those who have cars.
To come to your point, Chair, about our being the community in the justice system and the justice system in the community, that is still very important to maintain. I know that in earlier evidence sessions you touched on the fact that it is not just about the availability of physical courthouses to their users, but about including the judiciary—in our particular case, the magistracy—in that as well. We need to do whatever we can to ensure that we continue to reflect the whole of the geography that feeds into one physical centre, and not just attract those who can walk to the courthouse.
Q215 Chair: Yes: those who live nearby. We heard some evidence from other magistrates to that effect. Those of us who are involved in planning know that new planning and development has to go through what they call PTAL scoring. Perhaps we should think about the same for magistrates’ courts, where you measure that.
Malcolm Richardson: Yes. As you probably know, Sheena sits in Wales, where there are particular issues.
Q216 Chair: Yes. Do you have any particular points from your perspective, Ms Jowett?
Sheena Jowett: Very much so. My local justice area is Ceredigion and Pembrokeshire. We go from the south of Wales right the way through to mid and slightly north Wales. The two courthouses within the LJA are 72 miles apart, so the LJA goes south and north of them. Travelling for magistrates between those two courthouses, without a dual carriageway and with plenty of tractors en route, can be hugely challenging. If I am due to sit in Aberystwyth, for instance, I have to allow two hours’ travelling there. My day is taken up with four hours’ travelling, with the court sitting in between.
Q217 Chair: Sure. Is that an argument, among other things, for being a lot more flexible around the boundaries of criminal justice areas?
Sheena Jowett: Absolutely. There are nearer courthouses, but the way the LJA is structured at the moment means that that is how we have to work.
Q218 Chair: That seems to be a serious problem in rural areas.
Sheena Jowett: Yes, and not just in Wales. There are other rural areas as well; you have Cornwall, Devon and Norfolk. All of them have the same issues.
Q219 Chair: One thing that you could do would be the alternative venues idea—a civic building or something appropriate. Some people have said that there is a security issue around that. Is that manageable, from your perspective?
Sheena Jowett: I would like to think that it is manageable. The magistrates are open to discussing it with HMCTS. It is a concern that when the courts were closed there had not been a little bit of foresight about the issue of security and alternative venues. Pop-up courts were mentioned. It would have been nice to have seen a bit of insight into the situations. We are losing the total court on Ynys Môn—Anglesey. There will not be a court there.
Q220 Chair: I understand that. Can I bring in one other thought? Some of the evidence we have heard suggested that perhaps part of the solution is sitting outside normal hours. We have heard evidence from some magistrates that, for example, because of the difficulty of getting time off work, one solution—not the whole—is for magistrates who can do so to be prepared to sit outside normal hours, in much the same way as many local councillors do things outside their normal working hours. Do you think that would be attractive to a sufficient number of your members?
Malcolm Richardson: I think so. In the recent past, there have been pilots of a number of different listing arrangements outside the core hours—weekends, evenings and so on. It has never been for want of magistrates that those have not been successful. Rather, the issue has been lack of availability of the paid elements of the system.
Q221 Chair: Basically, the issue is getting the court staff to come in.
Malcolm Richardson: It is all of it—the court staff, the prison staff, the probation service, YOTs and so on. I will give a very current example. The single justice provisions are being piloted right now. At least one of the courts that is being used as a pilot is having sessions that start early in the morning. The feedback we are getting is that they are very attractive to employed magistrates or those with caring responsibilities. There are a number of dimensions that might cause that to be attractive.
Q222 Chair: That is helpful. I come on to two other topics. Ms Jowett, one point you touched on was the sense that some people felt they were not consulted about court closures and so on.
Sheena Jowett: Yes.
Q223 Chair: That became apparent from the survey that you did around levels of satisfaction and the issues. On the positive side, it struck me that—if I calculate rightly—about 88% of magistrates were either satisfied or very satisfied. That leaves a number of people who are not, and a lot of frustration around delays, wasted time and so forth. A lot of people—about 20%; a minority, but a sizeable one—feel that they are undervalued. A lot of people pretty clearly—a majority of 59% or 60%-plus—feel that they are never consulted about the management of the system.
Sheena Jowett: Magistrates should be pivotal to the system in the magistrates’ courts, rather than seen to be done to. If you engage and consult properly with magistrates, we are not averse to change, but we need to be engaged and to feel that we are engaged and valued.
Q224 Chair: Where does responsibility for that lie? Who has to change their behaviour?
Sheena Jowett: The system really has to change its behaviour. At the moment, we have huge financial constraints, but magistrates feel that their training has been diminished; we are there to do a job and we are time allocated. That is something we need to step back from a little. Our role is to provide justice to our communities, in our courtrooms. That is our prime job. That is why magistrates say, “We are doing a good job, we enjoy what we are doing and we feel satisfied,” but there are issues around that.
Q225 Chair: Do you have any thoughts on that, Mr Richardson?
Malcolm Richardson: Yes. I find it “interesting” that the only survey of magistrates’ morale has been done by us. I do not have any problem with surveying my members to find out what they think about a variety of things, and we can do it easily, but it says something about the degree to which MOJ and HMCTS see the need to engage with the generality of magistrates—they are very happy to talk to us—so that they feel engaged and involved. No one is suggesting that we go back to the days when we managed our courts in little local areas. That is a total chimera.
I come back to the morale issue. We were surprised by how positive the result was, but we need to be careful that we do not read too much into any one piece of data. There are still as many magistrates resigning before hitting the age of 70 as retire at the age of 70 each year. There will be a variety of reasons, and that has always been the case, but it has certainly been consistent over the last five years. There are things that you could interpret from that. Again, I would want to be careful about what we did with that piece of data. You need to look at the totality of it.
Q226 Chair: That is understandable. Recently some of us looked at the work of a problem-solving court. I was very impressed with it. From the point of view of the lay magistracy, do you think that your members see that as a useful way of tackling their issues? Is it practicable and possible to get the continuity of lay justices to sit in those problem-solving courts?
Sheena Jowett: It is what we do with our sentencing, as magistrates. We hear from probation about the problems and its idea of them. We try to provide a sentence that is punishment; we also need to look at rehabilitation in all our sentencing. We are aiming that at problems.
The problem for us is that that is where it stops. There is no going on from that. We do not have a lot of information about what the CRCs are doing, as far as their rehabilitation activity requirements are concerned. We do not really have enough information. If we were able to follow up and review our cases afterwards, it would be a very positive thing for both sides. We can engage with the defendant. We are used to engaging with people in court—we do it all the time. That would be a very positive step for both the defendant and the bench.
Q227 Chair: With things like family drug and alcohol courts, there is a regular review.
Sheena Jowett: Yes.
Q228 Chair: You are satisfied that it would be possible to do that on a much broader scale and that you could get magistrates to make themselves available for those fortnightly or three-weekly review listings.
Malcolm Richardson: Yes. There are already provisions, with the DRR—the drug rehabilitation requirement—that currently exist within the criminal jurisdiction, so there are models. There is power that would enable that in Acts that already exist but that have not been commenced or have been commenced only on a pilot basis and are no longer being taken forward. I come back to the fundamental point that Sheena makes. If we are doing our job as members of the judiciary and are addressing all five of the principles of sentencing, we ought to be, should be and must be engaging in problem solving in the courtroom on every occasion when we sentence.
Q229 Chair: That is very helpful. As a final thought, is there any scope in the civil jurisdiction? Is there any more that you could do there? Some people talk about antisocial behaviour injunctions and things of that kind.
Sheena Jowett: I have no problem whatsoever with engaging in the civil jurisdiction. Our role has always extended. We have been around for a long time as magistrates and we have not stayed still. Train us. That is all we ask. The Judicial College is there and has a very good record in the training of magistrates. The MA is involved with training. We would engage even more if we could.
Q230 Alberto Costa: Good morning. The purpose of my question is to explore the Magistrates Association’s views on the relationship between magistrates and district judges. You say that you recognise that district judges are better suited to legally complex cases but that some magistrates want to retain cases that are factually complex. Given that factually complex cases can take several days to complete, could allocation to magistrates lead to problems of judicial continuity?
Malcolm Richardson: I do not see any reason why it should. We can read across from the family jurisdiction, where we sit. Magistrates quite often sit on five-day final hearings, regularly sit on three-day final hearings and achieve judicial continuity through the cases that they hear. I do not believe that systemically there would be a problem in listing them for multiple-day cases. Of course, one has to be aware of the fact that magistrates need to sit with a legal adviser. Legal adviser resource is severely constrained. You cannot look at one set of resources without looking at the other, because we are like conjoined twins in that regard.
Q231 Alex Chalk: Isn’t the problem not that you cannot get three magistrates to block out five days, but that these factually complex cases have a habit of not going to plan and of overrunning? Suddenly you can find that in the middle of a witness’s evidence in chief, lo and behold, you have run to the end of your listing and need another day. Then you have the unedifying situation where all the magistrates have to get out their address books to try to find a day that they can all do so that they can come back. I know from my own experience that that can be six months hence. Isn’t that a problem that has to be considered as well?
Malcolm Richardson: Yes, it is. Far be it from me to say that a lot of those issues could be avoided if the chairman on the bench was rather stricter with the barristers and solicitors appearing before them and ensured that we stuck to the timescale that was agreed during case management. But I would not dream of making that point here.
Q232 Alex Chalk: But cases overrun; that is the point.
Malcolm Richardson: Of course they do, and of course there is that issue. It is true in both jurisdictions. I have quite a lot of experience of the family jurisdiction as well. Yes, it will happen, but should we really say that we are not going to enable the system to benefit from the availability of 18,000 magistrates because of one or two problems—I am speculating on the numbers per year—where matters will overrun?
Q233 Alex Chalk: Sure. The only point I want to make is that I know from personal experience that justice delayed is justice denied. Sometimes it can be very unsatisfactory if a witness is literally cut short, mid-examination in chief, and is waiting to be cross-examined. Of course, they cannot then speak to the police officers, if they are a witness, and if they are a defendant, they cannot speak to their solicitor, because they are mid-evidence. Finding that further date can be very difficult.
Malcolm Richardson: Yes. When the senior district judge appears, you could ask him how much difficulty he would have in suddenly finding a day in the district judge’s diary. Clearly it is an easier proposition; I would not wish to suggest anything else. To pick up your point about justice delayed, that is the heart of the reason why we are looking for extended sentencing powers, in order that we can relieve some of the pressure on the Crown system and deliver justice more rapidly.
Chair: That is understood.
Q234 Dr Huq: It falls to me to ask a couple of questions on recruitment and diversity. You have a programme, Magistrates in the Community, where you do outreach with schools and community groups. You have suggested that it could be rolled out to employers. How would that work?
Malcolm Richardson: We do a little of that now. With the Magistrates in the Community programme, we touch about 200,000 members of the public per year. It is entirely funded by us—the Magistrates Association—and uses our members as the volunteers who deliver the programme.
Q235 Dr Huq: As ambassadors.
Malcolm Richardson: There is a limit to how far we can go, and we are looking for alternative sources of funding. We believe that it could play into accessing those parts of the community that are not easily approached currently. It would be very interesting to do a survey of the 700 magistrates who have joined the magistracy in the last year, to find out how many of them already knew a magistrate before the process started. That is fine, but we need to get at others as well, so we would certainly find it very helpful if the MOJ could find a way of giving us a grant to assist us with doing some of that work, because going to employers needs a different skillset and a different set of materials, to demonstrate the benefit of having a magistrate within the ranks of their employees. There is very little that has been done around that. Within the magistracy, the number of magistrates who are in employment has dropped, not just because the magistracy has got older, for reasons that have been rehearsed before you previously, but because it is increasingly difficult for anyone to get time off, whether it is unpaid or paid. We need to be much more bullish about the skills that magistrates bring back to the workplace for the benefit of employers.
There are lots of other reasons as well. There is the whole issue of corporate responsibility. Employers are victims of crime, so there is a vested interest in ensuring that the justice system works effectively. There are a lot of messages that we could get over with all of that. It is a matter of where we focus our attention, with the limited resources we have. We are looking to get funding from grant-giving bodies, but, as many of you will know, they are a lot happier to do that when they get matching funding from elsewhere.
Q236 Dr Huq: Support from the Government would be helpful.
Malcolm Richardson: Yes, it would.
Q237 Dr Huq: What then? Would you get employers to force people to do this?
Malcolm Richardson: I certainly would not want to contemplate that now, but we could do more to encourage them: on the one hand, by demonstrating what value they get from having a magistrate in the ranks of their employees, and, separately, I know that people have talked about all sorts of stuff that would cost money, like national insurance holidays and so on for people who are volunteering. All of that would be wonderful, but we live in the real world and we do not think that we will get any of it right now.
Q238 Dr Huq: Or more flexible sitting on your side.
Malcolm Richardson: Or more flexible sitting. There is something else. As every one of you goes around your constituency and visits employers, I am sure that you see the numbers who have Investors in People awards for industry above the reception desk and awards for export. Why couldn’t we have an investors in the community one? It would cost nothing, apart from a bit of administration.
Q239 Dr Huq: It is a kitemark thing they could get.
Malcolm Richardson: Absolutely. I am not saying that it would be restricted to the magistracy; it would be for people who were doing conscious, consistent delivery of something in the community. I believe that would help.
Sheena Jowett: It is important that employers see the added value that magistrates will bring to their company. Magistrates are trained in thinking skills and being rational. There is accreditation. Look at modules. You do not need just to have face-to-face training. You can do online training and get accreditation for that. It all helps an employee’s CV going forward, and allows the employer to see what is being gained from the structured decision making that magistrates all have to show.
Q240 Dr Huq: You touched on the fact that you have an ageing bench. We have had it suggested to us that you could build in some fixed-term contracts. At the moment, people are just sitting on these things, and that is a barrier to diversity. What do you think of that idea?
Sheena Jowett: Neither I nor the Magistrates Association would like to see tenure for magistrates. At the moment, we are getting younger people applying. The application process has been opened, and more and younger people are applying. It is good to see that. What we would not want is people waiting to apply until they are coming up to the retirement age, because that would not increase diversity. You might get people saying, “I can be a magistrate for only 10 years. I will wait until I am 58 or 59 to apply. Then I can do it when I am in retirement.” We would not want to see that. You would also lose a huge skillset. At 10 years, a magistrate is starting to get into the leadership roles on the bench. That could be lost if you had short tenure for magistrates.
Chair: The figures we have seen show that about 300 new magistrates a year are being introduced.
Q241 Dr Huq: It is the most diverse bit of the judiciary, but it is still quite old.
Malcolm Richardson: Yes.
Q242 Chair: It is very little, isn’t it?
Malcolm Richardson: Yes. Chair, perhaps I could update you. There has been a significant increase in the last year. There were nearly 700 magistrates appointed in the year up to March this year, of whom 22% came from the BAME community. Over 40% of those were under the age of 50. Seven thousand magistrates hit the age of 70 within the next five years. There is a huge opportunity. From what has been achieved in the last year, there is a clear demonstration that we can shift that.
We could shift it more. There are a number of other dimensions. We have talked about employed magistrates. In doing the shift to younger employees, we need to be careful—there are some data on this as well—that we do not shift the balance more in the direction of women than men. For a very long time, there have been more women than men in the magistracy. I am sure that many of you here would say that that is an entirely laudable thing to happen, but we need to understand those dimensions. In my area—in Bristol—when they advertised for magistrates this year, they said the standard thing about particularly welcoming applications from under-represented parts of the community, including, for the first time, men. It was certainly the first time I had ever seen that.
Q243 Dr Huq: It could help to address resistance by employers if you had some kind of civic duty built in.
Malcolm Richardson: I was trying to identify pragmatic things that we could do, as opposed to paying employers to release people and all the things that, perhaps in an ideal world, we might want to explore, but that is not where we are.
Sheena Jowett: It is about targeting under-represented groups. To take an example from my personal experience, we needed Welsh-speaking magistrates, because obviously in Wales the ability to speak Welsh is highly important. Magistrates in the community went to a Welsh-speaking school, where they had a parents’ evening and targeted parents who could speak Welsh. Eventually, through the application process, we got two new magistrates. That is where Magistrates in the Community can really go to the heart of increasing diversity on the benches.
Chair: That is very helpful.
Q244 John Howell: Can I move you on to the question of training and pick up the point that you made about the level of online training that is possible? Could you explain the balance in that? How many magistrates are committed to training primarily online? If there is resistance, what is the resistance?
Sheena Jowett: All magistrates now have to be online. Our secure email is via eJudiciary. Our rota and sentencing guidelines are now there, so we all have to be online. I do not know the number of magistrates who will train online; I do not think that the Magistrates Association has the figures. What is important is that they are given the option to train online, if they wish. We need a spread of different training. You cannot really train people in teamwork online; you need a commitment to face-to-face training for that. There are online modules, through the Judicial College. The MA has cloud class now, with training that is accessible online. It is there. It has to be available.
Q245 John Howell: I am conscious of the issue. Of course, if you can increase the amount of online training, you have better use of the limited resources that are available. Is that realistic?
Malcolm Richardson: I think it is realistic. Of course, it requires investment up front to create the online training. As Sheena said, we are investing money now in creating a platform of online training that will lead to CPD within the association. Ultimately, the CPD process has to be owned by the Judicial College. It is early days to know how well that will work, but you are absolutely right: given the very small amount of money that the Judicial College is given to do the outstanding job that it does of face-to-face training, we have to make sure that that is optimally utilised.
Even when we are delivering that training, which, typically, is done face to face by local trainers, we need to continue to recognise that not everybody can do it in core Monday-to-Friday time. If we want employed magistrates and people who have caring responsibilities and come from a greater diversity of the community, there has to be training that is available at weekends and in the evenings. Of course, that means that there are costs to HMCTS in terms of opening up buildings, making legal advisers available to do the training and things of that sort. There has been a real clawing back of any preparedness to do that—understandably, because of budgets. It is a question of where you put the balance.
Q246 John Howell: You have an effective partnership with the Judicial College. Would you like to explain to the Committee where the balance of training lies between you and the Judicial College?
Malcolm Richardson: The Judicial College is responsible for doing anything that is mandatory or essential. Although it subcontracts the creation of some of that material to us and pays us to create it, which is fine, it must remain the case that the Judicial College is responsible for everything that is absolutely essential. Most magistrates are interested beyond that core and are committed to going beyond it, and that is where the association comes in—providing more of the awareness, familiarisation and in-depth information that people want and, we would say, need to know in order to do their job effectively, beyond that absolutely minimalised core.
Sheena Jowett: It comes down to the branch level at that point. Our branches throughout England and Wales frequently put on some aspect of training. It will not be the core training; it may be drink-driving awareness or drug awareness. You cannot say that that is essential for magistrates, but we see it in court every day of the week. It just reminds us of the issues we are dealing with in court. That is now dealt with more or less solely at branch level by the MA.
Q247 John Howell: You have also suggested a magistrates’ accreditation scheme. Would that really work? Would it not be just another level of expensive bureaucracy?
Malcolm Richardson: If it is, we have got it wrong.
Q248 John Howell: What added value is it going to bring?
Malcolm Richardson: Two things. First, there is the sense of personal satisfaction within the magistrate that there is some response to the investment that they have made, not only in the core essential stuff but in terms of the time that they have dedicated to the other training available, particularly online training. Secondly, which very definitely goes to the answer I gave to Dr Huq about employers, there would be the opportunity to say to an employer or a prospective employer, “This is what I’ve done. These are the skills I’ve got. This has been accredited,” against whatever criterion one chose. We think that would be worth-while. Frankly, it would also be evidence to those who suggest that we are not up to either the job that we do now or the extended job that we are proposing we ought to be empowered to do.
Sheena Jowett: It goes towards our appraisal system as well. We have to have a robust appraisal system. It has to be strengthened, without a doubt. If you are looking at continual professional development, at the moment we have one continuation training every three years, prior to appraisal. If we looked at having some sort of continual professional development over those three years, when it came to the appraisal time you could say, “I have done these online courses. That is what will make me a competent magistrate. You have witnessed me sitting in court as a magistrate, but this is the evidence I have.” We all need evidence these days.
Chair: That is very helpful.
Q249 Alex Chalk: On sentencing powers, you are keen to see the legislation that has been enacted, but not brought into force, to extend the sentences you can deal with to up to 12 months. Is that really necessary? Why do you think that it is the right thing to do?
Malcolm Richardson: When Ms Silverleaf gave evidence last time, she laid out six very cogent reasons. Let me focus on just a couple of them. First, and probably the overriding consideration, is that it is about proportionality in a system that is stretched. It is, therefore, about being able to relieve the pressure on the Crown court of work that we believe is entirely appropriate for the magistrates’ court to deal with. Twelve months is a much more logical dividing line, if you look at the sorts of offences and the sentencing guidelines.
Q250 Alex Chalk: Can I explore that with you? If you are looking at the issue of complexity, a murder is really a common assault that has gone wrong, in many cases, in terms of the issues that are at stake, such as self-defence. In fact, it is no more complex, curiously. Why do you say that 12 months is the magic number? Why not 18 months or 24 months?
Malcolm Richardson: There is a degree of pragmatism in the approach. Going to 12 months gives us a very significant cohort of cases where we could relieve the Crown court and bring them into the magistrates’ court. We have given you estimated costs. They are a couple of years out of date, but nevertheless there is a budget saving. It would release pressure on the Crown court, which is getting ever more tied up with historic sex crime and so on. That would mean that witnesses would give their evidence more rapidly, victims would get closure more rapidly and justice would be dispensed more rapidly, returning to exactly the point that you made earlier.
Q251 Alex Chalk: Earlier you made the point that we ought to be trying to achieve local justice and, therefore, looking at sitting in civic centres and that sort of thing. How can we possibly do that if in fact the cases that you are trying may well end up with someone needing to be remanded in custody? Unless you have secure courts, is that not going to be complete nonsense?
Malcolm Richardson: We have to manage it through intelligent case management. We are already in that situation, effectively. Only a couple of weeks ago, I was sitting on a Friday in my court with a very varied list and my clerk said, “By the way, we don’t have any security. There is nobody in the cells on Fridays any more, to save costs.” Given that we were reviewing breaches of suspended prison sentences, I said, “Please let me know if any of those people arrive, before we even get to dealing with and adjudicating on the case, so that we can call security, because it will take them three hours to get here. I am not going to sentence somebody to a custodial sentence and then say, ‘Would you mind sitting at the back of the court while we find somebody to come in from the security services?’” We are already managing that. Of course, it is a different order of magnitude if you are somewhere that does not even have any security. Clearly you would not list trials in those sorts of locations.
Q252 Alex Chalk: It just seems to me that there is potential for riding two horses. On the one hand you are saying, “We want to deal with more serious cases.” On the other hand, you could find yourselves without the facilities to do that. If you are to do it, you need the facilities to make it possible.
Malcolm Richardson: I recognise that the court closure programme has been predicated on a workload that, as far as I know, does not include any extension of our sentencing powers. I am sure you will know from your constituents in Cheltenham how much concern there is about the capacity of the Cheltenham courthouse to deal even with the workload that it has, given that all the other courthouses in Gloucestershire are closing. Some of it will probably be offloaded on to us, except that our court is closing in three months’ time as well.
Q253 Alex Chalk: This is my point exactly. I understand the point about sentencing, but it has to be looked at in a joined-up way, otherwise one ends up with a rather confused system.
Malcolm Richardson: You would find no one agreeing with you more that we need a joined-up approach to this. Occasionally, we believe that there is evidence of a lack of that.
Sheena Jowett: There will always be more magistrates’ courts than Crown courts. That goes without saying. If you have defendants attending at the local magistrates court—however you want to define local—you can have your witnesses attending by video link. That is a way of getting around the situation. If you have somebody in a case of ABH verging on GBH—an either-way case—that is the sort of case we would like to see retained in the magistrates courts, not only for trial but for sentencing. That is the sort of person we could sentence for up to 12 months. We may not use that power. If we have the confidence in community sentencing to keep people out of prison, we will do that. Prison is a last resort. We do not sentence to prison, if it is at all avoidable.
Q254 Alex Chalk: I know. Absolutely. You may have dealt with this question already, so perhaps you can answer it reasonably briefly. The proposal to allow all magistrates to attach a review requirement to a community order or a youth rehabilitation order is supported by most of your members, on the basis that it would increase efficiency. That is really humming the same tune as you were humming earlier. How would you say that efficiency would be improved by that review requirement?
Malcolm Richardson: We are not talking about efficiency for the individual case. We have to take a rather broad—
Q255 Alex Chalk: The efficiency of justice.
Malcolm Richardson: Sadly, this drive to economy and efficiency is about looking at how rapidly we can get a case through the system, regardless of the fact that they will be back round again all too rapidly, instead of investing at the time of case 1 so that there is not a return.
Sheena Jowett: We all want to avoid the avoidable delays, but we need to progress the unavoidable delays in the system. The reviewing of a case is essential for us, to make sure that our sentencing is correct and that we have confidence there.
Q256 Alex Chalk: Yes, and that it is achieving the rehabilitation that you would expect your sentences to achieve.
Sheena Jowett: Absolutely right.
Chair: Thank you both very much for your time and your evidence. It was very nice to see you both. We are very grateful to you.
Examination of Witnesses
Witnesses: Rt Hon. Lord Justice Fulford, Senior Presiding Judge for England and Wales, and Senior District Judge Howard Riddle, Chief Magistrate, gave evidence.
Q257 Chair: Lord Justice Fulford and Judge Riddle, welcome. We are delighted to see you both. It is very nice to see you again in front of the Committee. Before I go into the evidence, could I welcome some other people to the Committee? They are the Chief Justice and the Attorney General of the state of Lagos and the Chair and members of the Justice and Legal Affairs Committee of the Lagos state legislature. We are delighted to see you here in the United Kingdom and to acknowledge your presence.
Sir Adrian, I am conscious of the conventions that apply when we question senior members of the judiciary, who include both of you. I promise you that we will do our best not to stray into anything of that kind. We have already declared our interests. As you know, some of us have past and present connections with the legal profession.
Lord Justice Fulford: We may even have met in a robing room at some stage.
Chair: More than once, I think. That probably applies to Mr Chalk and Ms Prentis as well.
Alex Chalk: I have appeared in front of Lord Justice Fulford.
Lord Justice Fulford: I hope I was merciful.
Alex Chalk: You were very humane.
Q258 Chair: We are interested in the position that the senior judiciary have taken in relation to our inquiry into the magistracy. We are very grateful for their evidence. Judge Riddle, I know that essentially the district judges align themselves with that submission.
Judge Riddle: We do.
Q259 Chair: What I would be interested to see is this. You start with some very practical things. You recognise the value of the magistrates, as essentially successful, efficient and largely cost-efficient. Are there any tensions about the way you fit together that recognised importance of local justice with some of the practicality that we have around using the modern and ambitious changes we are making to the way in which the judiciary operates—e-justice, much greater attention to listing and, in particular, case management skills? Have we got that bit right yet?
Lord Justice Fulford: It is a good beginning to look at the recommendations made by Sir Brian Leveson in his recent report, in which he advocated—very much with the support of the senior judiciary—working towards something that looks and feels far more like a unified criminal court. Instead of having two very separate and distinct branches of the criminal judiciary, we should really work towards an atmosphere of greater collegiality, where there is much more exchange of views, exchange of information and, indeed, exchange of cases, with much more fluidity in terms of cases going up and down between the magistrates court and the Crown court. In that regard, it is really notable to look at the successes in cities such as Liverpool, where you have the Crown court and the magistrates all sitting in the same building. If you talk to the magistrates and the Crown court judges in that city, they will tell you that the advantages that they feel day by day are huge.
Case management is an area that has been developed and is developing. A lot of focus and attention has been put into it over the last few months and year or two. The judiciary overall are getting much better at it. Crown court judges are lectured on the subject and apply the principles much more regularly and assiduously than in years gone by. In the magistrates’ court, it is very much a matter of horses for courses, if I can use that expression. There are undoubtedly some areas of case management that it is entirely appropriate for lay benches to do, but there are other areas of case management where it is appropriate that they are at least focused in the hands of district judges. If you have very difficult bad character applications in serious sexual offences or you have to grant special measures in very difficult circumstances, it may well be best to ensure that the person with the right qualifications is dealing with that.
Q260 Chair: Who is best placed to ensure that?
Lord Justice Fulford: Locally. The allocation should be left where it is at the moment, with the justices’ clerk fulfilling that role. I am sure that Judge Riddle will have some additional things to say.
Judge Riddle: I agree with everything that Lord Justice Fulford said. We are facing the prospect of very significant changes in the work of the magistrates’ court, the way the magistrates’ court runs and, indeed, where we work. The unified court will be a real challenge, because things have moved on since it was first recommended by Lord Justice Auld in 2002. One of the things that has changed is that we have developed quite a sophisticated management structure in the magistrates’ courts. It involves judges and magistrates working together on the judicial business groups—the local business groups—where listing is a matter for the judiciary within those groups. If the move to a unified court involves stripping away those layers of co-operation and management, it will be a bad thing, but I am sure that will not happen. I understand concerns about that, but I am sure that it can be managed.
Q261 Chair: You raise an interesting point. Yesterday, some of us were at the family drug and alcohol court in Holborn, to look at the work that is done. Judge Riddle, I noticed that among those sitting there was your deputy chief magistrate. I normally associate her with the criminal jurisdiction, but she was sitting in the family jurisdiction there. Would you be able to achieve that if you moved to the unified court, or would that opportunity be lost? I am referring to Judge Arbuthnot. Would you lose that ability to sit in the two, or not?
Lord Justice Fulford: Not at all.
Q262 Chair: You say that lay magistrates do that anyway.
Lord Justice Fulford: You have judges in all jurisdictions sitting across jurisdictions.
Q263 Chair: It is exactly the same.
Lord Justice Fulford: It would be exactly the same. You would expect a magistrate who has competence both in crime and in family to continue doing exactly the same thing. In fact, the direction of travel is to try to encourage cross-jurisdictional sitting.
Chair: Yes, I am conscious of that.
Lord Justice Fulford: At the moment, we are looking much more, for instance, at tribunal judges undertaking at least some of the work that historically has been done by district or circuit judges.
Q264 Chair: It is perhaps part of the role of the presiding judges and the senior presiding judge to ensure that that works.
Lord Justice Fulford: Exactly. One of the joys of having control over deployment is that you can ensure that we do not miss opportunities for people with the right talents to sit in a range of different courts.
Q265 Chair: Out of interest, what sort of resource do you have to deliver that on the ground? It is a burden for you, on top of everything else that you are doing.
Lord Justice Fulford: I am sure that Parliament can give us a lot more resources. I have an office that is adequately staffed but always under pressure. I am assisted hugely by the family division liaison judges, the presiding judges and, of course, Judge Riddle and those working under him. On the whole, we are able to make very responsive allocation decisions in relation to where people sit.
Q266 Chair: That is very helpful. We will come back to all that in a moment, but I am interested in one other thing that we picked up from your written evidence: the value that you place on the single justice procedure. We had some hesitation about that from some magistrates—not all, I hasten to add. I will give you a chance to reflect on the piece of evidence that we had from some of them, who said, “We don’t like it, because we feel it’s not really open justice and we’re sitting in a room, rather than in court. As lay magistrates, in particular, we are overly reliant in those circumstances on a legal adviser.”
Lord Justice Fulford: There are a number of issues that come out of the single justice procedure. Probably the most important of those is the need for us to ensure that we abide by the principle of open justice. These are really early days in the roll-out of this new way of dealing with very low-end crime, if I can use that expression. We have to see what the tensions are and what the requirements are for access to those hearings.
It has to be said that in the old days, when three magistrates sat in court together to deal with these cases, generally speaking they were presiding over an entirely empty courtroom. Generally speaking, the public have absolutely no appetite for watching those cases. You can understand that if a famous footballer or a senior judge is prosecuted for going through a red light, there might be. We have to ensure that when there is an interest, we are able to respond to it and we are able to provide the relevant information to give a proportionate response and, if necessary, to move the hearing into open court so that the press or the public can watch.
Apart from that, all the feedback I have been getting is that a lot of magistrates are heaving a sigh of relief that they are not having to sit in a bank of three to deal with these cases. Instead, they are able to concentrate their talents on work that justifies the use of their time much more. As senior presiding judge, I have heard very few complaints about the progress of this new development so far. I think that Judge Riddle has presided over one of these courts.
Judge Riddle: I have. I sat in a single justice court at Lavender Hill, and it works. The first thing to say about it is that it does work. I do not know how others have dealt with the open justice situation, but this is how we dealt with it. We sat in a very small room, but it was a courtroom. The list was published. Had anyone wanted to come in, they could have come in. Had it been a famous footballer—I suspect that was based on a real example—we would probably have moved to a bigger court to accommodate the press and public interest in the case. That is easily done. In fact, if there is a contested hearing—by contested, I mean a defendant appearing in person and pleading not guilty—it moves into a more conventional court, if I can put it in that way. These courts were bulk-processing courts before. If anything, this feels fairer.
Q267 Chair: That is very helpful.
Lord Justice Fulford: In due course, I am sure that I will issue a protocol that sets down some guidance for single magistrates as to when they should sit in an office, when they should sit in open court and how they should respond to requests for information, to make sure that everything that should be in the public domain is in the public domain.
Q268 Chair: I suppose that will also give guidance to legal advisers on how to handle sensitive or more publicity-type issues.
Lord Justice Fulford: Exactly. I wanted to stay my hand just for a bit, to see how it worked out, before I rushed in issuing guidance. We need some feedback and some experience before we start to give general guidance as to how this should be done.
Chair: I understand.
Q269 Marie Rimmer: Good morning. In the senior judiciary’s written submission, support is given to the idea of a unified criminal court. How would you envisage magistrates fitting into a unified court? Wouldn’t they have reasonable fears of being squeezed out?
Lord Justice Fulford: Quite the contrary, in fact. We would support a wider range of work being given to the magistracy. The view of the senior judiciary is that we need to look again at cases that can appropriately be dealt with in the magistrates’ court. We think that there is a strong argument for reconsideration of the right to jury trial for some lower-end offences. We would wish to see the magistracy take on a greater burden of work, rather than going in the opposite direction. We have attempted to secure that end, in any event, by way of the allocation guideline, in which we sought to ensure that cases are not committed to the Crown court when, in truth, they should remain in the magistrates court if one looked long and hard at the circumstances of the case. I see this as a real advantage to the magistracy, rather than in any way affecting the extent of the jurisdiction in which they currently operate.
Judge Riddle: I would put it more bluntly than that. I will put it the other way round. In my view, a unified court would not be welcome without an increased jurisdiction, without involving magistrates in the management of that court, as we are involved currently in the running of the summary courts, and without a say in the allocation, as takes place—to some extent, in any event—in the family court. With those three things, it would work very well for all of us. I would add that Parliament has not reviewed the cases that can be tried in the Crown court since the 1970s. Much has changed.
Q270 Chair: This is the idea of the district division, in effect, coming back, or whatever you call it.
Judge Riddle: It does not have to be.
Q271 Chair: It could be redone without that.
Lord Justice Fulford: It could be done without that. The intermediate tier that Sir Robin Auld first suggested is simply one of the options. In any event, I think there would be strong public support for some low-level crime—I do not like the expression—that is currently dealt with in the Crown court being dealt with by the magistracy.
Q272 Marie Rimmer: Magistrates are members of their local communities. Some have told us that they feel that they are becoming isolated because of restrictions placed on their activities. Do you think that it would conflict with their judicial office if they were involved in local bodies, such as their local community safety committee?
Lord Justice Fulford: There is a very important principle we must not lose sight of, which is that magistrates are judges. They must retain their independence in reality. They must not in any way be involved in organisations, campaigning groups or other situations where it could be seen that they were in some way being party political or were being involved in political issues in their role as magistrates. At the moment, they can sit on or participate in a wide variety of different organisations, including crime prevention panels, the family mediation service, independent monitoring boards, local children’s safeguarding boards and the Parole Board—the list goes on and on. If magistrates are interested in doing things locally, a very wide range of organisations are already open to them.
Q273 Marie Rimmer: And their skills and knowledge would add to those.
Lord Justice Fulford: Exactly.
Q274 Marie Rimmer: Judge Riddle, do you agree with that?
Judge Riddle: Of course, and I would add to it. It is quite a sensitive and difficult question. We are looking at it in one of the sub-committees of the Judges Council. Your last witness, the chairman of the Magistrates Association, is a member of that committee. We are looking at whether there is any justification for a difference between the rules for the magistracy and for the full-time professional judiciary. It is subtle. I have no doubt at all that the magistrates will make their points very carefully and clearly and that it will be resolved, but it will take time. We think the committee may still be at work in a year’s time.
Lord Justice Fulford: Of course, this is subject to the Lord Chancellor’s directions. If the magistracy feel that those are too strict and that there ought to be greater flexibility or a wider range of organisations with which magistrates can properly be involved, they can of course apply to the Lord Chancellor to amend the directions in those circumstances. This is not some fixed and immutable thing. There is room for change, if change is justified.
Marie Rimmer: Thank you for that.
Lord Justice Fulford: My pleasure.
Q275 Chair: I understand. Some people might say, “Is there a comparison to be drawn with the position of, say, a recorder?”
Lord Justice Fulford: Exactly.
Chair: That is very helpful.
Q276 Alberto Costa: My question is designed to explore your respective views on the relationship between magistrates and district judges, especially with regard to the allocation of work, and to consider the selection and training of magistrates who chair panels. The senior judiciary said in its submission that there is now a harmonious working relationship between district judges and magistrates. However, we have heard that sometimes magistrates turn up at court only to lose their sittings to district judges, so that their full capacity is used. Should justices’ clerks be doing that?
Judge Riddle: Going back to the initial point that you make, the relationship between the district bench and the magistracy is harmonious. There are always exceptions, of course, but there are few of them, they are not serious and they are not irresolvable. We have very good relations at senior level between myself, the chairman of the Magistrates Association and the chairman of the National Bench Chairmen’s Forum. These matters are discussed.
On the specific point you raise, it is very frustrating if you turn up at court, perhaps having taken five days off work or having got babysitters in to look after the children, only to find that the judge’s five-day case has collapsed and you are sent home. I can understand the frustration. The problem is not with the judge, because it would have happened if a bench of three magistrates had been dealing with a five-day case that had crashed. The problem is with the listing of cases in a way that sometimes leaves the court empty for as long as five days. That is what we really have to tackle. There are ways of dealing with that. We have prepared, and presented very recently to the senior presiding judge, the results of the highly successful trial blitzes, where we operated three or four courts back to back. You could over-list in those courts, because you knew that some of the cases would go down. You did not know which cases would go down—you just knew that some of them would. When they do, work can be put into the other court and it can be filled.
To go back to your example, let us say that a judge cracks a five-day case on day one, someone pleads guilty and the Crown offers no evidence. If the judge had a choice, he might choose to go home and do some gardening. That would be a scandal, as he is paid. The justices’ clerk, whose decision it is—it is not the judge’s decision—does not really have much choice about that.
Q277 Alex Chalk: A lot of people were very encouraged by the example—you referred to a high-profile footballer we do not need to name—where the district judge sat with two lay magistrates. A lot of people see that as an extremely good tribunal. It avoids anyone’s concern about one person sitting in judgment and so on. Do you think that that is something that ought to be deployed more often? Is it the sort of thing that a flexible court might deploy in precisely the circumstances you have just referred to?
Judge Riddle: I have sat with magistrates on at least 100 occasions, so it is not new. In my case, certainly, it has been going on since the mid-1990s, and I have always welcomed and appreciated it. The question is proportionality. In more serious cases, or possibly more high-profile cases, which are perhaps a slightly different genre, it would be a very useful formula to have, certainly if the new, increased jurisdiction comes in. Again, it has to be proportionate. It is quite an expensive resource—a judge sitting with two magistrates, who at the moment would have to have a legal adviser. As you know, a judge sitting on his or her own does not have to have a legal adviser. This is quite an expensive resource, but it works very well for a serious or high-profile case. In the most recent one that I did, we were entirely harmonious.
Lord Justice Fulford: It provides not only something that is more akin to a jury for the more serious cases but a fantastic training opportunity, both for the lay magistrate and for the district judge. To sit together and watch each other’s skills in operation is extremely useful. Without breaking the bank at Monte Carlo, we would support this happening on a more regular basis than it does at present.
Q278 Alex Chalk: May I probe that a little bit? At the moment, how is the decision made as to whether a district judge should sit with two wingers? I get the impression that it is slightly on an ad hoc basis, using the discretion of the senior district judge. How does it work?
Judge Riddle: The decision is taken by the justices’ clerk in the particular area. That is not to say that I might not myself sometimes suggest that it would be better for me to sit with two magistrates, but it is his decision—in our area, it is a he.
Q279 Alex Chalk: But there are no particular guidelines yet in place. Ought there to be?
Lord Justice Fulford: Not yet. I think, and have thought for a while, that this is an area that requires some general ground rules to be laid down, so that you can identify the kinds of cases and sorts of situations where it ought to be considered, not where it necessarily has to happen, but where the justices’ clerk should think long and hard about getting in two justices.
Alex Chalk: That is very helpful.
Q280 Alberto Costa: I have one final point. The senior judiciary’s written evidence says that there are no objections in principle to the idea of magistrates, as well as district judges, doing prison adjudications. Do you have any concerns about the practical implications of giving magistrates that role?
Lord Justice Fulford: Again, I will leave the first answer to Judge Riddle, who has more experience of this than I do.
Judge Riddle: It may help if I explain what happens and what has happened. In 2002, it was decided that prison adjudications by the prison governor—adding days to a sentence—were not article 6 compliant. Within weeks, the district bench was drafted in to go into prisons to take over that role from the governor. It involves some 70 district judges acting as independent prison adjudicators, going into prisons right across England and Wales. Last year, they dealt with well over 17,000 individual cases. The case load is between 30 and 50 in most prisons, although it can be less than that. Prison law is quite complicated. In addition, because the prisoner is often, though not always, not represented, it takes on a much more inquisitorial role.
Although the district bench would not in any way be dismayed to lose the work, one would need to look carefully at whether it could be replicated. We use the prison as a court. If there were a bench of three magistrates, sitting with a legal adviser, as I believe would have to be done, it would inevitably be in a court, because the adjudication room is physically too small in all prisons, unless that were amended. You would be taking a courtroom, instead of our borrowing the facilities of Her Majesty’s prisons. The current system is very cost-effective. Very often, when the judge goes into a prison, he or she is backed up in his or her court by magistrates. There are practical considerations. I am not saying that they would sway the case in one way or the other.
Lord Justice Fulford: We are not disagreeing with it happening. We think that magistrates could do it well, but there are a lot of practical considerations that may provide real obstacles to its being done in any substantive way.
Q281 Dr Huq: I want to move on to some questions about recruitment and diversity. Your responses could be seen as a little bit complacent—borderline. You say that you recognise it as a problem but you are reassured that remedial steps are being taken to address the lack of diversity on the bench, the age profile and all those things. Can you reassure us about what those steps are? What you say contradicts what we have heard. Luke Rigg, a 22-year-old magistrate, told us that he is very rare, and he worries that the bench does not look like the public and he is an outlier. What steps are being taken?
Lord Justice Fulford: The first thing that I would say is that there is absolutely no complacency on the part of the senior judiciary in relation to this. If it comes across that way from our response, I regret it; it certainly was not meant to. We fully recognise that there is still a lot more that needs to be done in order to secure a truly diverse lay bench. In a way, it is a mirror image of the problem that we have confronted with the full-time judiciary, where huge steps have been taken—to a very large extent, successfully—to ensure that the profile of the judiciary is far more balanced.
We take some heart from the fact that last year over 20% of the 650 magistrates who were recruited came from BME backgrounds. Although that is only one figure, it is coupled with the fact that 41% of the 650 new magistrates were under the age of 40. In addition, currently more than half of the lay magistracy are women. Although historically there has been a quite obvious problem, we believe that there are good grounds for hoping that it is now being addressed in a really substantive way.
Q282 Dr Huq: What are those steps? You have said what the current statistics are, which is an improvement but, arguably, not good enough. What concrete things have been done?
Lord Justice Fulford: I will take one very practical example and then deal with the position generally. I will take them both briefly. First, as I am sure you are aware, serious consideration is being given at the moment to implementing in relation to selection to the magistracy the equal merit provision that was introduced by the Crime and Courts Act 2013.
Q283 Dr Huq: Is that a sort of blind application?
Lord Justice Fulford: It means that if you have candidates who are of equal merit, but there is a recognised shortfall in one or more areas in relation to diversity, you can take diversity into consideration when you are making the appointment. That is not in place at the moment, but very serious consideration is being given to it.
Secondly, the senior judiciary are of the view that the advisory committees are taking the appointments process very seriously indeed in this regard. They fully appreciate the need to secure a diverse bench. Obviously they are limited by those who actually apply for the role, but it is our view that, within the limitations, they are doing all they can to secure a more diverse bench.
Q284 Dr Huq: Do you have any suggestions to overcome the reluctance by employers to release people to do these duties?
Lord Justice Fulford: This is really about public education, isn’t it? It is about “getting the message out there” that the commitment is not that great. It is something like a minimum of 13 hours a year.
Judge Riddle: Thirteen days.
Lord Justice Fulford: Sorry, 13 days a year. It is not really something that the judiciary can do. It is very difficult for us to engage with employers, but we certainly recognise that somebody needs to. There should be some kind of enhanced awareness—a campaign or some other way of persuading employers that they should be more flexible in relation to releasing individuals to fulfil this extremely important task in our society.
Q285 Dr Huq: Do you agree with the Magistrates Association, which said that some Government support for this, with a sort of kitemark for the civic duty aspect of the job, might help?
Lord Justice Fulford: I have not seen detailed proposals on that. From that short description, I doubt whether we would disagree.
Chair: There could be an investors in justice kitemark.
Q286 Dr Huq: Yes, investors in the community.
Lord Justice Fulford: I would need to think it through. There should certainly be encouragement.
Q287 Dr Huq: Judge Riddle, do you concur with Lord Justice Fulford on this?
Judge Riddle: I completely agree with that. How is it that we have not sold this concept? The skill of the magistracy, and what magistrates learn on the bench, is extraordinary. You have three people working together to ascertain facts against a legal background—a rule background. That must be a very useful skill for most employers. I do not know why it is not seen to be a great accolade for a company, a firm or an employer to have magistrates working with him or her. At the moment, it is difficult—indeed, probably impossible—for a magistrate to use the letters “JP” for business reasons, but once magistrates have left the bench, it is a different question. There ought to be a kitemark. I recommended a medal at the end of it, which could be used and which companies or employers could have as a kitemark to recognise that they have these very specially trained people in their employment.
Q288 Dr Huq: Lastly, I turn to the question of fixed-term contracts for magistrates. We heard the Magistrates Association give a thumbs down to this, but in your evidence there was complete silence on it. We do not know where you stand, so can you enlighten us? It could be just wingers—that has also been put to us.
Lord Justice Fulford: If there is any tension between one part of the senior judiciary and the other on this, it is between myself and Judge Riddle on this issue. The criminal team, presided over by the Lord Chief Justice, is not enthusiastic about the proposal to have fixed terms. At the moment, we are not persuaded that it would bring any benefit. We think that there is a real risk that it will not improve the age range of those who sit as magistrates. Indeed, it could mean that some people who would otherwise have applied while they were working might leave it until towards the end of their career before they applied for a fixed term. If anything, you would run the risk of increasing the older age range.
At the moment, we have something of a problem in relation to recruitment. If you have magistrates leaving compulsorily after 10 years, you will simply exaggerate the problem of having too few magistrates who are available to sit. Additionally, you run the risk of losing experienced magistrates who, in due course, may be persuaded to sit as bench chairs. At the moment, we do not see anything wrong with the present system. We think that the argument should really be about recruitment in the first place. You must try to make sure that you get young people coming in, from a wider and more diverse range of backgrounds. I think Judge Riddle has a slightly different view.
Judge Riddle: The first point I want to make is that, although my view is different, it cannot possibly be implemented unless the magistracy agrees, and agrees wholeheartedly. I have a big battle to persuade them at this stage.
The idea may have originated from me, in a chapter that I wrote in a Magistrates Association book, “The Magistracy at the Crossroads”. It is not as I think it has been described to you. The fixed term that I had in mind was one of six, seven, eight or nine years—it does not really matter—for new magistrates. At the end of that fixed term, they could apply, if they wanted to—perhaps if they had demonstrated their skills and abilities through appraisals during the six or seven years—to remain in the magistracy, probably not for a fixed term but until they retired. The advantages of that system are as follows. We have just heard that the figures for diversity among new judges are good. There are more people from black and minority ethnic groups and more young people. At the moment, the reality is that because the magistracy is shrinking, the average age is well into the 60s. I would see it as very attractive for people to come in and sit as wingers, needing far less training than they have at the moment. That itself would be an advantage, because the training budget is stretched. Later on, you would keep the best people—if I can put it as simply as that—to act as chairmen, and they could sit far more frequently. I would see the new wingers as sitting less frequently. That would be more attractive to employers or to people who have young families. That is my argument, but I recognise that I am on the losing side of it, at least for the moment.
Lord Justice Fulford: One of the things we are worried about is the idea that any part of the magistracy should receive less training than they receive at the moment. We believe that the present training regime is adequate. It is very carefully worked out. Over a number of years, it has been demonstrated to work, but in truth it does not involve a huge number of hours of training, either at the beginning or, more particularly, as years go by. We would be concerned if people were sitting in justice on others with less training than they receive at the moment.
Q289 Chair: Lord Justice Fulford, your written submission refers to the senior judiciary’s view that the level of training and professional development is “entirely satisfactory”—I think that was the phrase.
Lord Justice Fulford: Yes.
Q290 Chair: The evidence that we have had from the Judicial College suggests that the expenditure level has fallen from £72 per sitting magistrate in 2009-10 to £30 now. I do not see how that is “entirely satisfactory”.
Lord Justice Fulford: The figures appear to indicate that training must have been cut. We do not believe that it has. Instead, far greater care has been taken in how training is delivered. Large, possibly expensive halls are no longer rented. We do it at court, in the main. We try to do it on days when magistrates are, in any event, attending to sit, so that they do not have to come for special training sessions. If you look back at the training packages that were offered in the past and are offered now, it is our view that they are effectively the same. We are doing this in a much more efficient way, but are still managing to deliver effectively the same training regime as in years gone by.
Q291 Chair: Does this now depend a lot upon good will from, for example, legal advisers and HMCTS staff? Are we pushing them a bit further? We have had some evidence suggesting that that is an issue.
Lord Justice Fulford: In all parts of the judiciary, we are highly dependent on people giving of their own time. In all areas of the delivery of justice—court staff, judges, legal advisers and justices’ clerks—people are really going the extra mile in order to make sure that we deliver a first-class service. That applies to legal advisers as well. We are eternally grateful for the fact that they provide the assistance that they do. In fact, it is a part of some or all legal advisers’ jobs to assist in training. There is other support from the Judicial College and Her Majesty’s Courts and Tribunals Service. It is not just a responsibility resting on the shoulders of legal advisers, although they have a notable responsibility; it is a responsibility that is spread.
Q292 Chair: That leads me on to another point. Is the landscape a bit crowded around training? You have the Judicial College, local area magistrates’ training committees and bench training and development committees. The legal advisers are also involved. Is there a logic to consolidating all this and making one body responsible?
Lord Justice Fulford: You will be aware that a consultation is taking place at the moment in relation to deregulation. The basic idea is to try to consolidate and trim, to avoid having overlapping committees. There is probably an argument for saying that it is an overcrowded landscape that could be rationalised.
Judge Riddle: When I started, training was very much in the hands of the local legal advisers—what they thought would interest the magistrates and so on. Last year, we developed with the Judicial College a full training for transforming summary justice. A pack was prepared and was rolled out—to use that awful expression—right across England and Wales. I was hugely impressed with the work of the legal advisers doing that. Yes, we rely on their good will, but they give it. That training was centrally devised. Essentially, the same training was delivered to all magistrates across the country. It was not formally compulsory, but magistrates were encouraged to go—and most did.
Q293 Chair: Should we be looking at some compulsory CPD, or some more rigorous and ongoing form of assessment? Is that something that needs review?
Lord Justice Fulford: Assessment takes place at the moment. The Judicial College is looking very carefully at whether there are improvements that can be made in the assessment process. It is very much the direction of travel, to use that expression again. The first steps are now being taken to have recorders assessed by the full-time judiciary. That has been very much welcomed by the recorders who have benefited from judges sitting in and watching their performance. Improvements in assessment can only be for the good.
Judge Riddle: I agree.
Chair: I will hand over to Mr Chalk, who will deal with the final topic for us.
Q294 Alex Chalk: This is sentencing—the issue of whether magistrates should have power to impose custodial sentences of up to 12 months. I think the senior judiciary tentatively approve and welcome that.
Lord Justice Fulford: We support it.
Q295 Alex Chalk: Absolutely. The obvious question is, will it lead to sentence inflation? If not, why not?
Lord Justice Fulford: I will let Judge Riddle take this first.
Judge Riddle: No. First, although I have not looked at it as carefully as I should have, I am not convinced that implementing the 2003 provision that is on the statute book is the right way round. That was a different bit of legislation, which involved increasing sentencing powers to 51 weeks for summary-only offences. I do not think that we ought to go there and I do not think we ought to increase sentences beyond the maximum at the moment. What we are talking about is more cases being dealt with in the magistrates courts, where there are either-way offences that currently have higher maximum sentences. It seems to me that quite a lot of those could be reduced to that maximum, if Parliament so wanted, without causing any great difficulties. They could become summary only.
On sentence inflation, I know that somewhere or other in the archives of the Ministry of Justice is a secret bit of research that suggests that magistrates are more punitive than the Crown court judiciary for lower-level offences. It is simply untrue. The clear and robust evidence for that comes from research undertaken by the Sentencing Advisory Panel in 2006, which took 1,500 cases of theft from shops. That is our biggest either-way offence, so some of those cases appear in the Crown court. In my view, it showed conclusively that the magistracy is not more punitive. In fact, it is the other way round.
Q296 Alex Chalk: This question is slightly off-kilter, but it is related. Do you think that we should be robust about it and say that, for your first offence of shoplifting, it should be either-way, but if it is your second allegation—of course, it is only an allegation at that stage—and is under, say, £500, it should become a summary-only offence and the magistrates courts should deal with it?
Judge Riddle: We are halfway there already, as it happens. There is now a rather complicated process in place that makes theft of a small amount from a shop summary only, but still allows the defendant to turn up, which he very often does not do, to elect a Crown court trial.
No, I do not think so. Can I take the previous Lord Chancellor’s example—he will forgive me, I hope—of the bishop who stole two doughnuts? He must have a Crown court trial, it is said, because his reputation is at stake. It is not about the value of the doughnuts; it is about the value of the bishop’s reputation. These days, the bishop’s reputation would be much more likely to be damaged if he was alleged to have racially abused a member of his congregation or if he had beaten up his wife, both of which can be tried in a magistrates’ court. We need to realign what is and what is not more serious in 2015 or 2016, compared with what was the case a while ago. Theft of a fairly small amount of money from a shop should not be tried in a Crown court by a jury. That should not happen.
Lord Justice Fulford: In terms of sentence inflation, it is worth looking at the experience of the youth court as well, which, of course, has greater sentencing powers. There is no indication that granting that additional authority led to more people being incarcerated.
Q297 Alex Chalk: Absolutely. On that point, as you are well aware, in the youth courts there is sentencing of up to 24 months. The proposal here is for sentencing of up to 12 months. Why 12 months? What is so magic about 12 months, rather than 24?
Judge Riddle: Nothing, I would have thought.
Q298 Alex Chalk: Nothing? Oh, right—here we go.
Judge Riddle: I suspect that that is a pragmatic approach.
Q299 Alex Chalk: It is nothing more than that.
Judge Riddle: Frankly, it is a matter for Parliament. I think that an increase is right. Two years has the advantage that quite a lot of offences would fall within that maximum anyway—things like affray, which, as we know, comes under section 4 or section 5 of the Public Order Act, once it gets to the Crown court. That has a three-year maximum.
Lord Justice Fulford: I could understand an argument for doing it in stages: seeing what happens with 12 months and, if that is a success, giving consideration to going further. Going straight to two years might be a little adventurous.
Alex Chalk: I agree.
Q300 Chair: On that note of concurrence, thank you very much for your time, Lord Justice Fulford and Judge Riddle. We are very grateful both for your time and for the quality and helpfulness of the evidence that you have given to us. It is much appreciated.
Lord Justice Fulford: Our pleasure. Thank you very much.
Examination of Witness
Witness: Mr Shailesh Vara MP, Parliamentary Under-Secretary of State for Courts and Legal Aid, gave evidence.
Q301 Chair: Good morning, Minister. Thank you very much for coming along to give evidence. Apologies for having kept you for a bit. If I say that we were detained by the judiciary, you won’t take it the wrong way.
Mr Vara: I won’t.
Q302 Chair: There was important evidence we wanted to get through. It is always a pleasure to see you come to give evidence to the Committee. I am grateful to you.
To cut to the chase, the Ministry made it clear in your submissions to this inquiry that you very much value the role of the magistracy. You describe it as performing a “vital role” in the criminal justice system. Do you think there is more that we can do to enhance its role? For example, can we get magistrates more involved in other things? Is there more that we can do to make sure that they feel part of the process? We have just had some evidence that suggests that their satisfaction levels are pretty high—about 88%, a survey showed. If there was an area of concern, it was the sense that things were done to them, rather than with them, and that they were not deeply involved in the process for decisions around management, where courts were allocated and so on. Given their vital nature, shouldn’t the Ministry be doing more to engage them at an early stage?
Mr Vara: First, Mr Neill, thank you for inviting me along. I congratulate you and the Committee on undertaking this very valuable work. We at the Ministry of Justice look forward to seeing the conclusions you come up with. Before I address the question that you have asked, may I take this opportunity to put on record that a huge thank you is due to all the people who work as magistrates? There are some 18,000 of them. They are volunteers, they do a terrific job and they play a very important and critical role in our judicial system.
You raise the issue that they feel that things are done to them, rather than with them. I am concerned to hear that, because we try to engage as much as possible with the judiciary at all levels, and certainly with magistrates, because there are so many magistrates’ courts around. Of course, there are a lot of changes going through at the moment. It may be that there is uncertainty as to where those changes will go. I can understand that uncertainty. For my part, I am keen to engage. I know that my officials are as well.
Q303 Chair: One area of interest where it was felt that more could be done was on the greater use of problem-solving courts. I know that the Ministry is sympathetic to that direction of travel. Do you see any difficulty from a practical point of view in making sure that lay magistrates can commit to the continuity that is necessary, as we all know, for successful problem-solving courts? What can the Ministry do to help them in that position?
Mr Vara: You will be aware that, in February this year, the Prime Minister announced that the Lord Chancellor and the Lord Chief Justice were going to set up a working group to look into the whole issue of problem-solving courts. That working group is undertaking its work at present, and the results will be announced in due course. We certainly see a role for magistrates in that area, but, as you will appreciate, I cannot make any definitive comments on that.
I emphasise that we are looking at overseas jurisdictions, particularly the United States, which the Lord Chancellor visited to look at first hand at problem-solving courts, where there is a different concept, with one individual having regular contact with the people who turn up before them in the courts. I would say just one thing. When it comes to the engagement of magistrates, given that they do their work part time, there is an issue that we need to address regarding how we can make sure that we maintain that continuity in problem-solving courts. That may be something the working group will look into.
Chair: That is understood.
Q304 Victoria Prentis: On that point, yesterday we were lucky enough to visit an excellent problem-solving court in High Holborn. We have also been to the States, but High Holborn could produce the family drug and alcohol court. The judge we met yesterday, who was very impressive, himself sits in that particular court only one day a fortnight. He sits in other courts in between. A lot of judges effectively work part time in the different courts they work in. You would not see the fact that magistrates work part time as prohibitive, would you?
Mr Vara: No, I would not see it as prohibitive. I would simply point out the fact that one of the successes of problem-solving courts is continuity—
Q305 Victoria Prentis: That is key to the message of problem-solving courts.
Mr Vara: It is key to the message that the person who is sitting on the bench is the same person the individual will see the next time and the time after that. The judge may say, “If I see you here in two weeks’ time, we have an issue.” There is no point in their saying that if, in two weeks’ time, that judge is not on the rota to be there and it is somebody else.
Q306 Victoria Prentis: But as long as we planned the system around that, magistrates could be a very valuable part of it.
Mr Vara: Absolutely. I flag an issue, but I am not saying that it is a barrier. Hopefully, there will be a way around it, so that we can involve the magistrates.
Q307 Victoria Prentis: Can we talk about transforming summary justice and what is going on at the moment? We have a CPS inspectorate report that, understandably, looked only at the very early stages, because that is where we are. It also focused slightly, and understandably, on the CPS and the police. Do you think there is any more you can do, from the Ministry, to help magistrates and courts take this forward?
Mr Vara: This is a big issue. There are a lot of stakeholders involved: magistrates, the CPS, the police, us and all the external people who work with us, such as the lawyers. We are engaging with all the people possible to make sure that this works. We want to make sure that, when there is a guilty plea, the case comes before a court and is dealt with in one sitting. Where two sittings are required, we must ensure that the preparation in the first one is thorough so that they can progress matters comprehensively in the second sitting, to make sure that that is concluded.
Q308 Victoria Prentis: Has the MOJ done its own evaluation of how things are going so far?
Mr Vara: We are looking at things on a regular basis, but I am not aware that we have done any definitive evaluation. Right now, rather than trying to evaluate, we are trying to get the system to work properly. You will appreciate that we would like to make a proper assessment when we think that we are somewhere we want to be. One issue that we have at the moment is with police files, in terms of both quality and timeliness. If we are to have sittings where we can arrive at a decision promptly and efficiently, that will not be assisted if the file is late or if it is there but is not of the right quality. At least those are issues that are being identified. We are working with the relevant people to try to rectify them, wherever things are wrong.
Q309 Victoria Prentis: To go back for a minute to problem-solving courts, I absolutely appreciate that there is a working party. What is the timeline, in your mind, for when we will see some pilots of problem-solving courts with magistrates in them?
Mr Vara: I am afraid I cannot say that. As I said, the working party is looking at other jurisdictions. It is looking at the experiences that we have had in this country in the past and that we still have. There have been some failures. The concept is certainly right, but we need to make sure that, when things have gone wrong, we can learn from them. I am afraid I cannot commit to a timescale, but I can assure the Committee that this has all the signs of being something that can help to make sure that people reoffend less, and we want to get it right and we want to do it as quickly as possible. I am minded to say that the Lord Chancellor and the Lord Chief Justice will put proper pressure, in the right areas, to make sure that we come up with the right solutions as quickly as possible.
Q310 Victoria Prentis: One thing we have noticed in our travels around problem-solving courts is that so much depends on the personality of the person sitting in the place of judge, whether that is a judge or a magistrate. Are you worried that magistrates might be spreading themselves too thinly? We are trying to produce that type of magistrate and to produce people who can deal more with civil cases. I am sure that later Mr Chalk will ask you about the type of magistrate who can deal with increased sentencing powers. Is that something that worries you, or do you think that it will all go smoothly and we will find the right people for the jobs?
Mr Vara: At present, we have some 18,000 magistrates. It is important that we recognise and utilise maximum strengths in individuals. Clearly, in some jobs—whether they be in problem-solving courts, youth courts or family courts—they will not be suited for that sort of work. We have to try to identify the qualities of each individual person and make sure that they get job satisfaction; that their strengths are utilised in the best way possible and that, at the end of the day, the justice system is as fair and efficient as we all want it to be. It is a question of identifying the right people.
Q311 Alberto Costa: Good morning, Minister. I want very briefly to turn to the relationship between magistrates and district judges. Are you happy that the right balance has been found for allocating work to magistrates and district judges, or do you think that some adjustments need to be made?
Mr Vara: It is important to recognise that both categories of people you have mentioned—district judges and magistrates—have distinctive but complementary skills. From a courts perspective, we need to make sure that the right cases are going to the right people. The district judges tend to deal with some of the more serious cases, but that is not to say that some magistrates cannot deal with serious cases as well. I do not think that there is a conflict. It is a question of making sure that the unique talents that each of those categories has are best utilised.
Q312 Victoria Prentis: I have a question about court closures, I am afraid—again. I am always asking you about court closures. This morning, we heard some very powerful evidence from Sheena Jowett, sitting behind you, who told us that, when she sits in Pembrokeshire and Ceredigion, she has to travel for up to two hours to the court in Aberystwyth. That is all very well for a magistrate, who can plan their time and, presumably, is using their own car. One thing that worries us about court closures is the amount of time that people need to spend on public transport, both witnesses and defendants—and, indeed, magistrates, in many cases. Do you look as a Department at the time travelled on public transport, or just in terms of cars?
Mr Vara: Before I address the issue of travel time, can I go back one step? It is important to recognise why we put forward the court closure programme. We have to recognise that, if we are going to be a country that has a first-class court system, the system we have at present is simply not right. That is why we are fortunate that the Treasury has agreed to a £700 million reform programme over the next few years.
We have to recognise that some of the courts were utilised for less than 50% of the time available. We have to accept that many of the courts were simply not fit for purpose. They were not compliant with equalities legislation. There were not proper facilities. When people were brought from prisons, there were not safe and proper measures whereby they could enter the courts. We had situations where victims and witnesses had the possibility of meeting, in common ground, when they were waiting to go into the courtroom.
Q313 Victoria Prentis: We still have that.
Mr Vara: We do, but I hope you will agree that it is not the situation that we want.
Q314 Victoria Prentis: They are also meeting on the bus, of course.
Mr Vara: They are. I am glad that you say that. Turning to the travel issue, what we have in mind is to make maximum use of modern technology. That means that people, particularly victims and witnesses, will not actually have to travel to courts. We want to make use of video links, for example. At present, people go to court. They have to hang around and wait in an environment that can be oppressing. In most cases, the circumstances of a court trial will certainly not be pleasant. We are trying to make sure that we use modern technology and that people can go to a nearby place—it could be a police station, the council offices or somewhere else—where they can book a particular time and give evidence by video link.
As far as travel is concerned, I very much hope that those who talk about travel also appreciate that many people who have to travel at present will not have to travel. Let me give you an example. You may be in Birmingham tomorrow, and you witness a crime. You will be a witness. When that trial comes up, you will have to take a day off work from Parliament to go to Birmingham to hang around, wait your turn, give evidence, come back, incur the cost of travel and not be able to do your work here. Instead, the system I envisage is that you would be able to go at, say, 10.30 in the morning to a local place, give evidence by video conferencing and be back at your desk at 11.30, rather than waste cost and time over the whole day.
It is important to recognise that many of the courts that have closed were not being properly utilised. Many of them had huge costs that were going to be incurred for day-to-day management. We also hope to use modern technology.
Q315 Victoria Prentis: I myself had a court closed in Bicester in my constituency, that was used 11% of the time, so I hear what you say about usage. We were happy with the way that was dealt with locally, although, of course, we were sad for the staff.
Mr Vara: Ultimately, let us remember that this is taxpayers’ money.
Victoria Prentis: Absolutely.
Mr Vara: We as parliamentarians have to turn to the electorate—the taxpayer. Can we honestly look them in the eye and say that we are going to keep open a court that has 11% utilisation?
Q316 Victoria Prentis: We did not argue that that should be the case—absolutely not.
Mr Vara: You did not.
Q317 Victoria Prentis: But when such courts are closed, particularly courts in very large rural areas, such as the one in Wales we heard about this morning, it is important to look at the reality of public transport—where the buses go. They do not always go to Oxford or to Bristol—courts that, as we have heard this morning, are very busy in themselves. We have to look at the real practicalities of people getting to court. What you say about technology is great. Is real resource being put into the system to ensure that it will work?
Mr Vara: I have two points. Going back to the courts, particularly in Wales, the travel issue is something we are mindful of. We need to think out of the box. For example, in Wales there is a community centre where people can go to give evidence by video link. The concept that you have to go to the court is no more.
In terms of resources, as I said earlier, we have permission from the Treasury, and will have funds coming to over £700 million to spend over the next few years to make sure that we have a first-rate, world-class courts and tribunals service. There will also be some £300 million spent on the common platform system. Basically, it is a digitised system that will involve the police, the Crown Prosecution Service and the courts, so that we make much less use of paper, with the delays, lost files and all that that entails.
Q318 Alex Chalk: You have talked, rightly, about victims, witnesses and all that, but this is an inquiry about the role of the magistracy. My question is, do you think that it is satisfactory for magistrates to have to drive two hours to court and two hours back, bearing in mind that these are volunteers who give of their time to serve the public?
Mr Vara: We tried, in the consultation that proposed 91 closures, to look at the travel time. For the vast majority, it was around an hour. I accept that there are some cases—you have highlighted one—where that may not be the case. I hope you will appreciate that these are difficult decisions. I would be worried if you were to say to me that that is the case with every court.
Q319 Alex Chalk: No, certainly not.
Mr Vara: There are some cases—a small number—where it is an issue. We will look at that to see how best we can resolve it. I come back to the point that there are some decisions that are difficult but necessary, if we are to look at the taxpayer and say, “We are getting maximum use of your money.”
Q320 Alex Chalk: Are you saying that it is an acceptable price to pay, even if it is in a minority of cases?
Mr Vara: I am saying that in the minority of cases we should look carefully at how we can get around it, to try to mitigate it. That is what my officials are doing.
Q321 Chair: One suggestion that we have had is that there should be greater flexibility—for example, about the boundaries of the various justice areas.
Mr Vara: Absolutely.
Q322 Chair: For example, you could go to a nearer court.
Mr Vara: That is happening at the moment. I am grateful for that comment. It is certainly the case that the rigidity of the areas in which magistrates can operate needs to be looked at. Indeed, it is being looked at, to make sure that there is more flexibility. Where there are issues and problems, we are looking at them and thinking out of the box.
Q323 Dr Huq: Hello, Minister. I appear to be the diversity expert on this Committee. For the third time, I will ask the question that I put to the Magistrates Association and the senior judiciary. The Ministry’s submission talks about the need for a long-term workforce plan for the magistracy to “provide a continuous injection of new talent”. Can you tell us a bit more about how this “MOJ’s Got Talent” plan will be produced and what timeframe we are working towards?
Mr Vara: First, let us go back to the fact that we are having huge changes in the Courts and Tribunals Service, which we all feel are necessary. Most of us accept that change is required. What that means, of course, is that we also have to consider the number of magistrates we will require in the medium to long term, depending on what the court structure will be. That needs to be looked at. I do not have the answer for that, because we are still in the process of making the reforms.
As far as diversity is concerned, you raise a very important point. It is crucial that the magistrates we have reflect the society we have and that they come from as broad and diverse a community as possible. There is much to be done, but I am pleased to say that, among all the judiciary, there is more diversity at the level of the magistrates, in terms of both minorities and women who sit on the bench. I would like to see more. I would like to see more disabled people, more minority people and more women, but I would also like to see more people from a variety of backgrounds and age groups. A lot of them tend to be over 50. Given that this is something that is done on a voluntary basis, I can understand why somebody in their 30s or 40s, who is perhaps still pursuing their career, will not have the time.
If I may move on, the other issue we need to look at is employers giving people time off. I do not know whether I am touching on a question you may want to come to later, but section 50 of the Employment Rights Act 1996 provides that employers can give permission for people to serve as magistrates. The issue, however, is that the employer can decide what is reasonable; it is for the employer to decide. I am not saying that that is abused, but I have no doubt that in some cases employers will say, “I would rather you were here than in the magistrates court. My business will suffer, so I don’t think it is reasonable.” We need to look at trying to persuade more employers. Whether it is through the compulsion of the law or whether it is more persuasive is a discussion to be had.
Q324 Dr Huq: Would there be scope for some sort of compulsion element? We talked with the other two panels about carrots and sticks. The idea came from the Magistrates Association that you could have something similar to Investors in People—investors in the community. It need not even cost anything. It would be a good thing that employers would want to get involved in, so they would release people. People getting time off to do these things seems to be a constant barrier.
Mr Vara: We need to rule nothing out and we need to look at a whole variety of options, particularly given the reform programme that is taking place. We also need to accept that many people will probably not be in a position to do as much voluntary work as they would like when they are younger, simply because they do not have the financial resources. It is a fact that older people may well have some savings by then. They may have paid off their mortgage. They may have time and they may have taken early retirement. It is the case that a lot of young people will say, “Maybe I will do that later on in life. Right now, I am going to concentrate on earning a living, raising my family and doing all of those things.” It is not a simple issue of legislation or persuasion. It is a question of looking at society as it is at the moment.
Q325 Dr Huq: What is your opinion on fixed-term contracts for magistrates, to stop people hogging it all their life? That creates a bottleneck so that younger people cannot get in.
Mr Vara: I am delighted that people in their thousands are prepared to give their time to help the judicial system. At the moment, I am certainly not going to rule out something that is a very valued sector of the community.
Q326 Dr Huq: Last week was national volunteers’ week. A group I was with in my constituency said that as retirement age gets older and older, it will stop women who would have done volunteering at the age of 60 to 65 from doing so. People are living longer. If the retirement age goes further and further into the future, that might cut off the supply of volunteers.
Mr Vara: You talk about putting in caps and limits, but let us be realistic. The number of magistrates is actually going down. The projection is that in 2022 it will be down to 12,000, from the present 18,000. Again, we need to consider a whole variety of things. There is no point in talking of limitation when the numbers are going down.
On diversity, can I point out the latest figures we have? In 2015-16, 22% of the 660 new appointees were from BAME backgrounds, compared with 10% in 2011-12. Forty-one per cent were under 40, compared with 25% in 2011-12. There is progress being made. Lifestyles are changing as well. More people are working from home and working hours to suit. We have modern technology whereby they can work around their computer, with hours to suit, so it is possible that we may get more people. The statistics that I have just mentioned are certainly better than before.
Q327 Dr Huq: It is the most diverse bit of the judiciary—
Mr Vara: It is.
Q328 Dr Huq: Maybe that is still not enough. We had a 22-year-old magistrate—a whizz kid called Luke Rigg—give evidence to us. He said that a lot of people do not know what a magistrate is, that he is a bit of an outlier and he worries that the bench is not reflective of society. Would you look at more awareness raising?
Mr Vara: First, can I congratulate Luke? I hope he will do a lot of talking to his colleagues and tell them what a fulfilling role he is doing.
Q329 Dr Huq: Do you think that there should be more advertising/awareness raising, if people do not even know what a magistrate is?
Mr Vara: Of course, we have to bear in mind the issue of the number of magistrates we need. If there is a great need, that will be matched with the need for advertising. I agree with you; a lot of people do not know what the role of the magistrate is. It is often the case that people come from a particular category of society. They will talk to their friends and say, “Do you want to come in?” If we are going to try to broaden the category of people who come in, we need to make sure that they have proper knowledge of it. Yes, I am all in favour of greater knowledge of the role of magistrates, but we need to make sure that we do not go overboard, and that we get the right numbers. The publicity must be proportionate to that. I am all in favour of getting more diversity. I am pleased that we are going in the right direction, but we can do more.
Q330 Marie Rimmer: Good morning, Minister. We have heard that Judicial College expenditure on magistrates’ training has been reduced from £72 per sitting magistrate in 2009-10 to just £30 in 2013-14; I am not sure what it is now. How can we be confident that magistrates are getting adequate training with such limited funding?
Mr Vara: It is important to note that money is not the solution to everything; it is how you use the money that matters. For example, one thing that the Judicial College is doing now that it did not do before is not using as many external locations for training purposes. If you go to a hotel, you have to pay some serious money for both the hire and the catering—teas, coffees or whatever. We need to look at how money is spent, rather than how much.
Q331 Marie Rimmer: That concurs with much of what was said earlier this morning in another answer. If a revised appraisal scheme for magistrates requires additional funding—for example, for mandatory continuing professional education—will your Department be able to provide it?
Mr Vara: You started your question by saying “if”. I am not in the business of making commitments when we do not know the answer. I am also mindful that the whole country is having to take difficult decisions in terms of austerity. Rather than simply saying, “Can we have more money?” I would first want to know what other proposals had been thought of. It is also important to remember that the training of magistrates is a matter for the judiciary. This is something that is dealt with by the Judicial College and the Lord Chief Justice, who is in charge of training. We work very closely with the judiciary, of course, but it is their remit to do that.
Q332 Marie Rimmer: Perhaps I can put it in a different way. The robustness of the appraisal scheme for magistrates has been questioned. That poses the question of whether a different, revised appraisal scheme should be brought forward. Would any required additional funding not come from the Ministry of Justice?
Mr Vara: Again, you are concentrating on funding. I am saying that we need first to ascertain whether funding is required. I want to know what else has been looked at, rather than simply saying, “Oh, let’s go and ask for some more money.” We also need to work closely with the people involved to see whether the system itself needs changing. You mention appraisals. Yes, there are appraisals in all sorts of jobs. It may be that the appraisal system needs to be looked at, and that may provide the solution, rather than simply an extra cheque.
Q333 Marie Rimmer: The answer is that you will look at revising the system, but not necessarily at providing more money to do that.
Mr Vara: With all things, we constantly need to look at whether the solution we have at present for whatever we are doing is the right one. As times change, as people change and as the issues change, we need to look to get new solutions, rather than always saying, “Let’s see if we can get a bigger cheque.”
Q334 Marie Rimmer: Are you saying that there is no more money or that, if proof comes forward, it will be considered?
Mr Vara: I will say it for the third time. The Treasury has given us £700 million to reform Her Majesty’s Courts and Tribunals Service. On top of that, we have £300 million to improve the common platform system. Collectively, that is £1 billion that we are using to make our justice system the best in the world. Clearly, we are spending a lot of time on where that money goes and how it is spent. Notwithstanding the fact that there is £1 billion, I have made it absolutely clear to my officials that we spend money when and where necessary, not just because we have a large sum of money. That money has a purpose. The purpose is to make our judicial system the best in the world.
Q335 Marie Rimmer: So a case needs to be proven.
Mr Vara: On the issue that Dr Huq raised earlier about projections, can I make it clear that the projection I gave—that there would be 12,000 magistrates by 2022—is subject to recruitment? It is not a target or an expectation. It does not account for reform: for example, if we were to increase sentencing powers or something like that. There is a whole number of caveats that I wish to add to that point.
Q336 Chair: It is not a figure the Government would desire, as I understand it.
Mr Vara: Yes, absolutely.
Q337 Chair: It demonstrates the importance of doing something and making best use.
Mr Vara: Absolutely.
Chair: As you very neatly say, one of those things relates to the powers of sentence and the amount of work that goes through the magistrates’ court, which Mr Chalk is now going to ask about.
Q338 Alex Chalk: Thank you for that introduction. You have told us that the Department is “looking afresh” at magistrates’ sentencing powers—we have spent quite a lot of this morning discussing that—and that you are taking a whole-system view of criminal justice that is informed by the Leveson review. Can you tell us what changes your Department has in mind?
Mr Vara: Right now it is all being considered.
Q339 Alex Chalk: What is being considered?
Mr Vara: The sentencing powers are being considered. There is the Leveson review, an excellent piece of work by Sir Brian Leveson, which we are looking at. A number of those issues are being implemented. There are also the problem-solving courts we referred to earlier. I cannot give you definitive answers, because right now a lot of things are being considered.
The issue of increasing sentencing for magistrates is not as straightforward as it may look at first sight. We need to make sure that we work with the judiciary. The senior judiciary have a huge say in this. That has to work.
Q340 Alex Chalk: Broadly speaking, they are quite happy about it.
Mr Vara: They are happy, but no decisions have been taken yet. You say that they are broadly happy, but we need to look at the actual mechanics. For example, if sentencing powers are increased from the existing six months to 12 months, which is provided for by law, clearly that will address one of the issues that was raised earlier, as more work will flow for magistrates. We need to make sure that there is consistency of sentencing. The sentencing carried out by magistrates and by judges has to be consistent, so we need to look at that. For example, in 2014, 40% of the cases that were sent from the magistrates court to the Crown court for sentencing, because the magistrates took the view that they did not have sufficient sentencing powers, received sentences that the magistrates could have imposed. That gives an indication that there may be a tendency to give more custodial sentences in the magistrates’ court than would otherwise be the case. We need to make sure that there is consistency, we need to work with the magistrates and we need to make sure that the judiciary are happy.
Q341 Alex Chalk: That all sounds a bit long-grassy. Can you help us with what is actually taking place to take this seriously, or are there just general discussions taking place?
Mr Vara: I am concerned that you feel this is long grass, because it is not. The fact that we want to think something through thoroughly and carefully before it is implemented is not something that should be interpreted as long grass, otherwise I would not be giving you the answers I gave. In one of my very early answers, I said that it is important to flag up the issues, but then we need to try to find a solution.
Q342 Alex Chalk: Will there be comprehensive modelling of the likely impact of extending to 12 months?
Mr Vara: We do not have the modelling at the moment.
Q343 Alex Chalk: But will there be?
Mr Vara: We do not have the modelling. We will not undertake anything unless we have done our homework properly and have spoken to all the people. The answer to your question is that, if the increase in sentences were to go through, it would have been thought through thoroughly. We would have looked at your report, for example, when it is published. We would have worked with the judiciary, with the magistrates and with the lawyers, who are also involved. We need to make sure that all the stakeholders are consulted. Then, of course, if it is felt that we have tried to deal with all the issues, a decision will have to be taken.
Q344 Alex Chalk: Clearly consultation will take place, but I am interested in whether modelling will take place. The reason why I ask is that one of the things this Committee is looking at in another context, as you will remember, is the courts charge in respect of employment tribunals and so on, where there was a question about what modelling had taken place. This is potentially a very significant change. Of course there will be consultation, but my question is, will there be modelling?
Mr Vara: I am not going to commit to modelling right now, because this is a huge undertaking. At this early stage, I am not committing as to the way forward, when I have not had consideration of all the facts before me. Clearly we will make assessments and there will be considerations. There may be modelling; there may not be modelling. We need to find out what is the best route available for this particular issue. We will do that and then proceed with it.
Alex Chalk: I am very grateful—
Mr Vara: You will appreciate that modelling is not something that happens in every instance.
Alex Chalk: Of course.
Mr Vara: It is horses for courses. We need to find out whether that is relevant.
Q345 Alex Chalk: At what point will you have done sufficient consultation to know whether it will be necessary to conduct the modelling?
Mr Vara: Again, it is difficult to give timelines. What I can say is that we would pilot different areas, and do a thorough analysis and make announcements as and when appropriate. I am sorry that I am not being precise. I hope that you will appreciate that when you have a £700 million court reform taking place and, on top of that, you are considering problem-solving courts and the issues of recruitment of magistrates, diversity and increased sentencing powers, no one issue can be looked at in an individual, solitary way, because they form part of a bigger picture. The whole picture has to be taken together before you commit to time, but there will be thorough work done, including pilots and so on.
Q346 Chair: One aspect of enhanced powers, or potentially enhanced powers, has been around for a long time—the provision under the Criminal Justice Act 2003 that would enable magistrates to sentence to a higher level, which was never implemented. We have had about 13 years to consider the potential impacts around that. The reason that was always given was that it was part of custody plus but never went forward. Of course, the Lord Chancellor, with the warm support of many of us, is now embarking on a reform not just of prison but of a broad range of those issues. Isn’t it perhaps time, at the very least to dust off the modelling to see how it works in the context of broader prison reform and alternatives to custody, which might make that enhanced power part of a reform process, not something that has the risk of driving up prison sentencing?
Mr Vara: You make a very good point. I am not sure that there is anything I can add.
Q347 Chair: The hope is that perhaps it will be flagged up with those in the Department, as I know it is in your mind, that this has been a long time. Mr Chalk’s point was about getting the modelling done now. Of course, Leveson reported in the last Parliament. Do you agree that it would be unacceptable if Leveson were not implemented, to the degree that Government decide is appropriate, well within the course of this Parliament?
Mr Vara: A number of the proposals that Leveson put forward either have been implemented or are in the process of being implemented. We still have some four years to go. I very much hope that in four years’ time we will be looking at a success story, in which a lot of the things that are being considered at present have been done and dusted, and we will be able to look back and say, “Well, we’ve done it. Let’s see if it is working.”
Q348 Chair: I have a final point. One of the things Leveson refers to chimes with a point that you made, which was about the importance of using resource, both financial and judicial, efficiently and effectively within the system. In that context, his report points out the value of moving to a unified criminal court. We have seen that work well with the unified family court. Is that an active part of the consideration we are looking at?
Mr Vara: We are certainly looking at that. I know that it is something that has been put forward by the judiciary. The magistrates are receptive to it, because they would feel more integrated in the judicial family. It is also something that would allow for better allocation of resources and proper leadership. Rather than having the separate systems of the magistrates’ court and the Crown court, we would have a unitary system that had a proper leadership structure and where everyone could work together. Most importantly, there would be proper use of individual abilities and talents, to make sure that the cases that came to the court were dealt with by the right people promptly and efficiently. Ultimately, that is what the taxpayer wants.
Q349 Chair: That sounds to me like a really favourable assessment.
Mr Vara: You will forgive me if I do not make any commitments. Let us just say that at the moment the arguments for having a unified criminal court are very favourable.
Chair: Thank you very much for coming to give evidence to us and for your time.
Mr Vara: It was my pleasure.
Chair: It is very much appreciated. We are very grateful to you. Thank you, colleagues. The evidence session is concluded.
Oral evidence: The role of the magistracy, HC 595 16