Written evidence from Transform Justice (MAG0002)

Leadership Structure

It is not clear quite why the new leadership structure for the magistracy was instituted nor whether the process truly reflects magistrates’ views. For many years there were two bodies representing magistrates’ views – the Magistrates’ Association (which represents all magistrates) and the National Bench Chairs’ Forum (NBCF), which represented Bench Chairs, who voted for some of their number to sit on the forum, each representing different regions. The secretariat for the forum was provided by HMCTS. In 2016 the idea was floated by the senior judiciary that the forum should be replaced by leadership magistrates who would not represent bench chairs and would be selected in a different way. These new leadership magistrate fitted into a new idea – that all benches should be abolished and that there should be a single magistracy. The latter idea has not yet been implemented, but the introduction of leadership magistrates has.

A consultation was held in 2017 with magistrates on their views as to whether the NBCF should be abolished and how leadership magistrates should be selected. Over half of those who responded to the survey said that wanted leadership magistrates to be elected rather than appointed and less than a fifth favoured selection. “There was a clear call for the election process to be improved” and concerns expressed that “selected leaders would have to overcome the suspicion and scepticism of bench members and would not be seen as impartial due to the manner in which they are appointed”[1]. Despite this, a decision was made (it is not clear by whom) that the new Leadership Magistrates should be selected and appointed by a panel led by the senior judiciary. Magistrates advocated for a transparent process. The details of the recruitment process, including the make-up of the selection panel itself were not however ever announced, even to magistrates.

The recruitment process was not ideal and does not appeared to have complied either with the equality act or with 2013 Crime and Courts Act. Potential candidates were invited to submit expressions of interest on the basis of a role spec. The Lord Chief Justice and the Lord Chancellor both have a statutory duty to promote the diversity of the judiciary (including the magistracy). Despite this there was no mention of diversity anywhere either in the person spec or the list of duties and responsibilities. and there was no diversity monitoring form. This is a significant oversight, given that the leadership of the magistracy (in both the MA and in the NBCF) is already much less diverse than the rank and file.

Diversity

Even the rank and file of the magistracy lacks diversity. Magistrates are on average significantly older than the population and the proportion of BAME magistrates is smaller. The gap between the population and the proportion in the magistracy is worse for some ethnic groups than others – only  0.85% of magistrates are mixed race though this group makes up 2.2% of the population and there are nearly 2% fewer Asian magistrates than there are in the population.

The Judicial Office no longer collates data on two important equality charactersitics – class and disability. It stopped publishing data on disabled status in 2018 and ceased collating data on the occupation of magistrates (a proxy for class) more than five years ago.

It is likely that the real diversity – the bench in front of which each defendants appears – may be worse than the general picture. Those who sit often tend to be older, white magistrates. Anecdotal evidence suggests that those who are presiding judges (the chair of the panel of three magistrates) are also older and less likely to be from a BAME community.

Magistrates have fallen behind tribunal panel members in ethnic diversity. The most recent figures show 17% of lay tribunal members are from ethnic communities.

Recruitment

The magistracy is facing a workforce crisis not of its own making. Their numbers have nearly halved since 2006 (when there were 28,865 magistrates) to today when there are 15,003, and there are now thousands too few magistrates to man our courts. Many, many courts are sitting with benches of two rather than three and magistrates who are able to are sitting more than one day a week and are being prevailed on to sit more up to four times a week. The numbers of magistrates to be recruited are decided by staff in HMCTS and the judicial office. They appear to have made some major miscalculations in recent years. Since 2008 many regions have been forbidden from recruiting any magistrates for anything up to three years. It is not clear quite why there has been such an underestimation of the number needed. Maybe they calculated that the single justice procedure and digital court reform would reduce the need for magistrates far more than they have.

Another factor effecting the recruitment of magistrates is the number of district judges appointed, since they fulfil the same judicial function in the same courts. At the same time that magistrate numbers have been halved, district judge (magistrates’ court) numbers have been maintained (there were 134 in 2006 and there are 140 now), so this means district judges are doing far more of the work in magistrates’ courts.

The impact of such small numbers of magistrates being recruited has been that magistrates have been getting older and it has been difficult to increase diversity in age and ethnicity.

A recent survey (http://www.transformjustice.org.uk/wp-content/uploads/2019/02/mags-survey-results-slides-oct2018.pdf) conducted with magistrates suggested that most applied as a result of knowing a friend, colleague or family member who was a magistrate. Unfortunately this method of recruitment militates against diversity.

Magistrates’ morale

There is much anecdotal evidence of low morale amongst magistrates. A survey of over 2000 magistrates suggested that although 80% have strong satisfaction with their role, 54% feel undervalued. They also also unhappy with court delays and cancellations, with lack of training in digitisation, and with lack of information about policy and legislation.

The response to the NBCF reform proposal and one of the responses from MA branches to proposals on digital court reform[2] indicate huge disquiet among magistrates as to the extent to which they are consulted on reform. “Ways of engaging with magistrates and the need to reduce the feeling that things were being “done to” magistrates was raised by a significant number of respondents with suggestions including more seminars to facilitate the discussion and progress of change, particularly given the number of changes that are taking place and the lack of training for some of those changes. The importance of listening to magistrates’ views was also raised”[3].

February 2019