Magistrate (England and Wales)

Until the passage of the Courts Act in 2003 it was necessary for magistrates to live within 15 miles of the commission area for the court in which they sat.[12] As a commission area was usually co-terminous with a county or metropolitan area, they could live a considerable distance from the court in which they sat. However, the Act introduced a single commission area for the whole of England and Wales. The country is divided into local justice areas and magistrates are expected to either live or work within reasonable travelling distance of their court.[26]

Magistrates must commit themselves to sitting for a minimum of 26 half days each year.[27] A 'half-day' sitting typically lasts from 10 am to 1 pm or from 2 pm to 5 pm, with new magistrates taking over the afternoon session. On other benches, sittings are organized with magistrates attending to sit for the whole day. Magistrates are expected to attend half an hour before sitting for preparation and a briefing about the case list from their legal adviser.[28]

Subject to the Lord Chancellor's discretion, a number of activities and occupations, including the occupations of a spouse or partner or other close relative, may give cause for concern in relation to the perceived impartiality of the bench and corresponding risk to the right to a fair trial.[29][30] For example, a candidate will not normally be eligible if:

• They are a member of the police service.[29]
• They are a member of, or have been selected (formally or informally) as a prospective candidate for election to, any parliament or assembly.[29]
• If they are an undischarged bankrupt, they will not be appointed as a magistrate because it is unlikely that they would command the confidence of the public.[29]
• When considering candidates who have been subject to any order of a court (civil or criminal), various factors, including the nature and seriousness of the offence, will be considered before an appointment is made. Magistrates deal with motoring offences, and while minor motoring offences are not usually an issue, serious motoring offences, or persistent offending, might disqualify them. If they have had their licence suspended for less than twelve months in the past five years, or for twelve months or more in the past ten years, they will generally not be recommended for appointment.[29]
• Barristers and solicitors, bookmakers, care managers, civil service and executive agency employees, civilian employees of the police, community support officers, Crown Prosecution Service employees, educational welfare officers, health authority employees, HM Forces, interpreters, licensees, local authority employees, ministers of religion, NSPCC employees, people who carry out work for, or have other connections with, the police, police officers, prison service employees, RSPCA employees, security officers, social workers, traffic wardens.[30]

Prior to 31 August 2000, district judges (magistrates' court) were known as stipendiary magistrates[31] (i.e. magistrates who received a stipend or payment). Unlike magistrates, district judges (magistrates' court) sit alone. Some district judges have been appointed from the ranks of legal advisers to the magistrates' court and will be qualified solicitors or barristers. Questions have been raised by the Magistrates' Association as to the legal safeguards of a single district judge being allowed to hear a case, decide the outcome and pass sentence without reference to another tribunal member.[32]

Originally, deputy district judges could only be drawn from barristers and solicitors of at least seven years' standing. However, in 2004, calls for increased diversity among the judiciary were recognized and the qualification period was changed[33][34] so that, as of 21 July 2008, a potential deputy district judge can satisfy the judicial-appointment eligibility condition on a five-year basis.[35] and so that other types of lawyer, such as legal executives (ILEX Fellows), would also be eligible.[36]

These committees are responsible for selecting suitable candidates for the magistracy. They comprise a maximum of twelve magistrate and non-magistrate members. The membership of local advisory committees used to be confidential but following reform in 1993 all names must be published.

Local advisory committees have regard to the composition of local benches, especially the numbers needed to process the work, and the balance of gender, ethnic status, geographical spread, occupation, age and social background.[39] Anyone who meets the basic requirements can put themselves forward as a candidate for the magistracy. In fact, many local committees advertise for candidates, mounting campaigns to attract a diverse range of people. Advertisements are placed in local papers, newspapers, magazines aimed at ethnic groups, or even on buses. In Leeds for example, committees have used the radio to invite potential candidates to attend their local magistrates' court open evening.[40]

The first stage of the selection process is the submission of a detailed application form, from which potential magistrates are first sifted to check eligibility to apply and basic suitability. Then, those who are eligible, will be invited to a first interview where selectors from the local advisory committee will seek to establish more about the candidates' personal qualities and whether or not they possess the six key qualities required. The interviewers also use the opportunity to explore the candidates' attitudes on various criminal justice issues such drink driving, juvenile crime or vandalism.[42] If successful at the first interview, the candidate will be invited to a second interview where they will discuss some practical examples of the type of cases with which magistrates deal. Typically, this will involve a discussion of at least two case studies which are typical of a magistrates' court. In both interviews the candidate will be assessed against the core competencies.[43][44] This is designed to assess and explore the potential candidates' judicial aptitude.[39][42]

Following the interview stage, the committee will submit the names of those who they assess as being suitable for appointment, to the Lord Chancellor, to fill the available vacancies. By the Constitutional Reform Act 2005, interim arrangements mean that recommendations are passed to the Lord Chief Justice for approval, before being submitted to the Lord Chancellor to make the appointment from the list on behalf of, and in the name of, The Queen.[45]

For young offenders aged between 10 and 17 years, there are special arrangements. Youth courts are set apart from the adult courts and the procedures are adapted to meet the different needs of younger persons, for example by requiring the attendance of parents and ensuring that everything is explained in appropriate language. Members of the public are generally excluded from the youth and family proceedings courts and, although the press may attend, there are restrictions on what they can report. Magistrates sitting on the youth court are members of youth panels which meet regularly for training and administrative purposes. Youth magistrates receive specialist training in the youth court, and are mentored and appraised in that role. A youth court must usually include one male and one female member.[50]

Likewise, there is also a special panel for the family proceedings court which deal with private and public family cases. These include applications for non-molestation orders, occupation orders, adoption orders, maintenance cases, and proceedings under the Children Act 1989.[51][52]

Diagram showing the place of magistrates' courts in the English legal system. The arrows represent avenues of appeal.

Magistrates also sit at the Crown Court to hear appeals against verdict and/or sentence from the magistrates' court. In these cases the magistrates form a panel with a judge.[51] A magistrate is not allowed to sit in the Crown Court on the hearing of an appeal in a matter on which he/she adjudicated in the magistrates' court. There is a right of appeal from magistrates' decisions on points of law to the Queen's Bench Divisional Court.[48]

The MNTI scheme feeds into all stages of a magistrate's training and development.

The JSB Magistrates' Committee has issued a syllabus which is delivered locally. Because of the large number of magistrates, the training is carried out in local areas, sometimes through the clerk of the court, sometimes through weekend courses organized by universities with magistrates from the region in attendance. The training is designed to develop all the knowledge and skills necessary required to become an effective and confident magistrate. It is based on a competence framework and includes:

• Reading and distance learning exercises that cover the role and responsibilities of a magistrate.
• Induction and core training before a magistrate sits in court. This will normally be for the equivalent of three days (18 hours) and may be delivered: over a long weekend; in a series of short evening sessions over several weeks; over three separate week days; or as a residential course.
• A minimum of three court observations.
• A visit to a prison establishment, a young offender institution and a probation service facility.
• Consolidation training will be received after about a year. It will normally be for the equivalent of two days (12 hours) and, like the core training, may be delivered in a variety of ways.[55]

All new magistrates are provided a personal development log and with a mentor,[56] an experienced magistrate who has been specially trained to take on the role. The mentor will advise, support, and guide the magistrates, especially during the first few months of their service as a magistrate. During their first year a new magistrate will have six formal sittings attended by their mentor, each of which is followed by an opportunity to discuss the day's business with their mentor. The magistrate will reflect on how they have applied the knowledge and skills developed during their induction and core training and, using the competence framework, will consider whether or not they have any further training and development needs.[57]

Feedback from magistrates' appraisals

The law and procedures pertaining to magistrates' courts occasionally change, therefore "update training" is provided for magistrates. When there are major changes in legislation, magistrates will be provided with written material or formal training sessions to help them to learn and apply the new law.[58] The justices' clerk and his/her legal advisers play an important part in the training of magistrates by assisting in the delivery of training and providing support in the court room.

For a magistrate who wishes to become a court chairman, or to sit in the youth court or family proceedings court, there is additional training to prepare them for the specific competences required for these roles.[59] Training courses are organised on a regional and national scale. For example, the training of youth and family panel chairman will be delivered nationally where local numbers do not justify running a course at a local venue.[60]

After a magistrate has been sitting for about a year he or she will appraised. This takes place during a normal sitting and is conducted by an appraiser who is an experienced magistrate specially trained for the role. Following the sitting, the magistrate and his or her appraiser use the competence framework for magistrates to assess the appraisee's performance and to identify if the magistrate has any outstanding training needs. All magistrates are appraised every three years in each of the judicial roles they perform.[61] If extra training is given and the magistrate cannot demonstrate that they have achieved the necessary competency level, the matter is referred to the local advisory committee, who may recommend to the Lord Chancellor that the magistrate is removed.[56]

The statutory retirement age for magistrates is 70 years.[23] When magistrates reach that age, their names are placed on the Supplemental List. Although they can no longer sit as magistrates, they are able to carry out minor administrative functions, the signing of official documents. Magistrates may of course resign their office at any time. In cases where a magistrate moves out of his or her justice area he or she will be placed on the Supplemental List until there is a vacancy in the new area.[62]

According to Section 11 of the Courts Act 2003[63] and Section 314 of The Constitutional Reform Act 2005,[64] the Lord Chancellor with the concurrence of The Lord Chief Justice has the statutory power to remove a magistrate for the following reasons:

• On a finding of incapacity or misbehaviour[65]
• On the ground of a persistent failure to meet such standards of competence as are prescribed by the Lord Chancellor or
• If the Lord Chancellor is satisfied that the magistrate is declining or neglecting to take a proper part in the exercise of his or her judicial functions.

The record for the most removals of magistrates came under the Chancellorship of Lord Irvine who dismissed fifteen magistrates in 1999.[66] The Lord Chancellor's office has been criticised in the past for the dismissal of a JP who was taking part in a CND march and a JP who engaged in transvestite behaviour.[60]

Magistrates have been perceived as middle-class, middle-aged and middle-minded and this has some foundation in fact.[71] The Judiciary in the Magistrates' Court (2000) report found that magistrates were overwhelmingly from professional and managerial backgrounds and 40 percent of them were retired from full-time employment.[71] The majority of magistrates are within the 45–65 age range and the appointment of magistrates under the age of 30 is still rare although there are a few notable exceptions. For example, in 2006 a 19-year-old law student, Lucy Tate, was appointed making her Britain's youngest magistrate.[72]

The majority (56%) of magistrates are female. This compares to 32% of professional judges. [73]

Ethnic minorities are reasonably well represented. According to The National Strategy for the Recruitment of Lay Magistrates (2003), 6 percent of magistrates are of an ethnic minority background which is close to the 7.9 percent of the population as a whole. Again this compares favourably with the professional judiciary which only has 1 percent membership from ethnic minorities.[43] This comparatively high level of ethnic minorities in the magistracy is largely a result of campaigns to attract a wider range of candidates, such as that launched by the Lord Chancellor's Department in March 1999. In announcing the campaign Lord Irvine stated:

Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner-ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. the magistracy should reflect the diversity of the community it serves.[74]

Typical recruitment campaigns have been supported by local newspapers and magazines. In efforts to target minorities adverts are placed in publications such as Caribbean Times, the Asian Times and Muslim News.[75] The Lord Chancellor also encouraged disabled people to apply and this has resulted in the appointment of a blind magistrate.[76]

The narrowness of magistrates' backgrounds has been blamed on the selection process with magistrates on the advisory committee tending to appoint people from similar backgrounds to themselves. However, this criticism has been ameliorated to some extent by the widening of advisory committee membership to include non-magistrates.[43][77]

The Auld Report (2001) commented that it was unrealistic to expect the social composition of magistrates to be close to that of the general population.[78] This was partly because many people found it difficult to obtain support from their senior managers to be released for magisterial duties, and because of other reasons relating to employment. Therefore, the bench would never be a true cross-section of society.

Government figures published in 1995 showed a Conservative Party bias among magistrates, although the significance of this finding is inconclusive.[77] A 1979 study found that there was no appreciable difference in approach between the different classes, but that Conservative magistrates tend to express a harder attitude on sentencing. However, it was not established whether this attitude was reflected in their sentencing decisions.[77] In 1997, the Labour Lord Chancellor, Lord Irvine, called for more Labour magistrates to be appointed.[79] The Labour Government later concluded that it was no longer necessary to seek a political balance on benches because people no longer voted along class lines. A 1998 White Paper stated: "Perhaps most importantly, political balance, as this consultation paper attempts to show, no longer acts as a guarantor or viable proxy for someone's position in society. Historically voting was class based, but, it is argued, this is no longer the case."[80]

In their report, Professor Rod Morgan and Neil Russell demonstrated that there was lack of public understanding about magistrates: 33% of the public thought that magistrates were legally qualified.[71] Professor Andrew Sanders (Sanders 2001) found a low level of public confidence in magistrates' courts based on a British Crime Survey, a MORI poll and focus groups with the public and with offenders. Lord Justice Auld was scathing about these aspects of the research, stating in his report that "it is one thing to rely on uninformed views of the public as a guide to what may be necessary to engender public confidence, and another to rely on such views as an argument for fashioning the system to meet them. Public confidence is not an end in itself; it is or should be an outcome of a fair and efficient system. The proper approach is to make the system fair and efficient and, if public ignorance stands in the way of public confidence, take steps adequately to demonstrate to the public that it is so."[81]

A number of initiatives have been formulated to improve community relations: "Magistrates in the Community" which deals with public relations at a local level, such as presentations to schools, colleges and community groups; the National Magistrates' Mock Trial Competition run in conjunction with the Citizenship Foundation which involves schoolchildren in mock trial competitions; the Local Crime and Community Sentence project. Court open days organised by Her Majesty's Courts and Tribunals Service are another method of engaging with the community.[82] Projects are in place to improve public confidence in the criminal justice system (CJS) as a whole. The British Crime Survey of September 2010 reported that 61 per cent of adults thought that the CJS was fair and 42 percent thought that the CJS was effective.[83]

The Auld report noted that local justice was seen as "a bridge between the public and the court system which might otherwise appear remote". However, locality could encourage inconsistencies between areas and created a risk of magistrates knowing defendants too well.[81] The argument that magistrates should have a good knowledge of their local justice area is still raised today, often as a defence to court closures.[84][85] The idea that magistrates should be "local" derives from the fact that magistrates are drawn from that area and, until the Courts Act 2003, had to live within 15 miles of their commission area. In reality, magistrates may not have a knowledge and understanding of their area, especially the poorer parts, because most of them come from professional and managerial classes and live in affluent areas. Nevertheless, it is suggested they are likely to have a greater awareness of local events, local patterns of crime and local opinions than a professional judge from another area.

In the case of Paul v DPP (1989), the court had to decide whether a kerb crawler was 'likely to cause a nuisance to other persons in the neighbourhood'. The defendant was convicted on the basis that the magistrates knew that kerb crawling was a problem in that residential area.[86] On appeal Lord Justice Woolf noted that this was a case where magistrates' local knowledge had been useful.

The use of unpaid magistrates is cost effective, in terms of cost and timeliness, saving the tax payer from the high cost of employing full-time judges. The report The Judiciary in the Magistrates' Court (2000) found that at the time the cost of using lay magistrates was £52.10 per hour compared with the cost of using a stipendiary at £61.90 an hour.[78] In 2010, offence-to-completion time for defendants whose case was committed or sent for trial at the Crown Court was an average of 187 days. The estimated average offence-to-completion time in the magistrates' courts for indictable/triable either-way offences was 109 days for the same period.[87] The cost of a trial in the magistrates' court is also much cheaper than the cost in the Crown Court both for the government and for those defendants who pay their own legal costs. However, it should remembered that the Crown Court generally deals with more complex and lengthy cases than the magistrates' court.

The issue of the legal qualifications of legal advisers has come under scrutiny in recent years.

Following reforms in 1999, all legal advisers were required to be legally qualified.[88] Any existing legal advisers under the age of 40 in 1999 were required to gain a legal qualification within 10 years. The Assistants to Justices' Clerks Regulations 2006,[89] in regulation 3, set out the qualifications for assistants to justices' clerks who could be employed as clerks in court. They provided that people who have qualified as barristers or solicitors and had passed the exams for either of those professions or had been granted an exemption were qualified to be assistants to justices' clerks which meant that they can carry out matters on behalf of the justices' clerk. The 2006 Regulations also enabled the Lord Chancellor to make temporary appointments of people to act as clerks in court where he was satisfied that they were, in the circumstances, suitable and that no other arrangement can reasonably be made.

However, the Assistants to Justices' Clerks (Amendment) Regulations 2007[90] replaced regulation 3 of the 2006 Regulations. The effect was to clarify that those: i. who were in employment as an assistant registered by the Law Society under regulation 23 of the Training Regulations 1990; ii. who held a valid training certificate granted by a magistrates' courts committee before 1 January 1999; or iii. who acted as a clerk in court before 1 January 1999 and were qualified to act as such under the justices' clerk (Qualification of Assistants) Rules 1979 (as amended) to carry out the duties of assistant clerks can act; could act as clerks in court.

These changes have brought a greater degree of professionalism to magistrates' courts, thus helping magistrates in dealing with points of law and procedure. Furthermore, the training of magistrates has become more consistent with the involvement of the Judicial Studies Board.

Comparatively few appeals are made against decisions made by the magistrates' court, and the majority are made against sentence rather than verdict. The Judicial Statistics Annual Report (2006) showed that only 12,992 appeals were made to the Crown Court from the magistrates' court. Of these only 2,020 were allowed and 3,184 resulted in a variation of sentence, out of a total of 2 million defendants dealt with in the magistrates' court.[91] There are also very few appeals allowed because an error of law was made. This is shown by the fact that only 100 appeals were allowed by way of case stated to the Queen's Bench Divisional Court, of these only 42 were allowed. In 2008, there were only 72 appeals, on a point of law, to the Queen's Bench Division, of which 30 were allowed.

The Human Rights Act 1998 imported the European Convention on Human Rights into English law. Article 6 of the convention gives an accused the right to a fair trial. Implicit in this right is the requirement that magistrates give reasons for their decisions, unlike jury verdicts in the Crown Court.[92]

One criticism of magistrates' courts is that they have high conviction rates in comparison to jury trials in the Crown Court because, it is suggested, magistrates have a bias in favour of the prosecution.[93] Unsurprisingly, in a 1982 study commissioned by the Home Office, it was found that direct evidence from prosecution witnesses whose credibility was not challenged led to a high level of convictions. Weaknesses in the prosecution case, such as unreliable witness evidence, a lack of confessions or direct evidence against the defendant led to higher likelihood of acquittal. However, in those cases where a defendant's credibility was not demonstrably undermined, there was a conviction rate of 63 percent. In the majority of these cases, there was first-hand evidence (mainly from police witnesses) of the defendant's behaviour from which criminal intent was inferred.[94]

Since the inauguration of the Crown Prosecution Service in 1986, the proportion of weaker prosecution cases has declined as a result of the CPS' review function which requires a "realistic prospect of conviction" before a prosecution can be commenced or continued.[95][96] In 2009, the conviction rate of defendants tried in magistrates' courts for all offences was 98% and in the Crown Court, 80%.[97][98]

One contributor to Lord Justice Auld's Review of the Criminal Courts of England and Wales (2001) drew attention to the "dichotomy in people's attitudes towards the magistracy, according to whether they are considering the elective right to trial by jury in 'either-way' cases or the relative advantages of lay and professional judges in summary cases. On the former issue magistrates are often portrayed as part of the establishment, being used to deny defendants a basic human right; on the latter they are depicted as the near equivalent of a jury – the peers of people who appear before them, ordinary people with experience of the real world, bringing common sense to bear etc."[78][81]

The need for magistrates to demonstrate impartiality in criminal trials was emphasised in the case of Bingham Justices ex p Jowitt (1974). A motorist was charged with exceeding the speed limit and the only evidence was contradictory, in the form of the statements of the defendant and a police officer. The defendant was found guilty and the chairman stated "My principle in such cases has always been to believe the police officer". The conviction was quashed on appeal as the magistrates clearly demonstrated bias.[99]

It has been demonstrated that magistrates in different regions have passed different sentences for what appear to be similar offences. The Government's White Paper, Justice for All set out differences found in criminal sentencing in the magistrates' court.[78][100]

• For burglary of dwellings in Teesside, 20 percent of offenders were sentenced to an immediate custodial sentence, compared with 41 percent in Birmingham; 38 percent of burglars in Cardiff Magistrates' Court received community sentences compared with 66 percent in Leicester.
• For driving while disqualified, the percentage of offenders sentenced to custody ranged from 21 percent in Neath Port Talbot (South Wales) to 77 percent in Mid North Essex.
• For receiving stolen goods, 3.5 percent of offenders sentenced in Reading Magistrates' Court received custodial sentences compared with 48 percent in Greenwich and Woolwich and 39 percent in Camberwell Green.

Statistics published in 2004 showed no improvement. For example, magistrates in Sunderland discharged 36.4 percent of all defendants in comparison to Birmingham which discharged 9.2 percent of all defendants. In Newcastle magistrates sentenced only 7.2 percent to an immediate custodial sentence whereas in Hillingdon this figure was 32 percent.[101]

The Prison Reform Trust Report on Sentencing (2009–2010) highlighted a number of issues including the following:

• Youth courts in Merthyr Tydfil issued custodial terms for just over 20 percent of all sentences over the period, the highest in England and Wales, and ten times the equivalent rate in Newcastle.
• Case hardening: It can be argued magistrates are susceptible to finding over time that circumstances are not shocking and passing sentences becomes less of a big issue so leading to a more cynical approach.[100]

However, when the statistics are put in context, they may not appear as severe as they might at first glance. Only 4 percent of offenders dealt with by magistrates receive a prison sentence. Furthermore, in an effort to bring a greater degree of consistency to sentencing, national guidelines have been issued to magistrates and updated on a regular basis. These "Sentencing Guidelines" are issued under the aegis of the Sentencing Council which aims to improve sentencing practice in the criminal courts.[102]

The lack of legal knowledge of magistrates should be offset by the fact that a legally qualified clerk is available. It is suggested that, in some courts, magistrates place too much reliance on the clerk, to the extent that a few cases have been quashed on appeal. For example, in R v Birmingham Magistrates ex parte Ahmed [1995], the defendant was accused of deception and handling. When the magistrates retired to consider their verdict, the clerk joined them. Since there was no point of law arising, this created a suspicion that he was taking part in deciding the verdict, and therefore the verdict was quashed. In the case of R v Eccles Justices, ex parte Farrelly (1992) the Queen's Bench Divisional Court quashed convictions because the clerk had apparently assisted and participated in the decision making process. In R v Sussex Justices, ex parte McCarthy (1924), a motorcyclist was involved in a road accident which resulted in his prosecution before a magistrates' court for dangerous driving. Unknown to the defendant and his solicitor, the clerk was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the magistrates, who returned to convict the defendant. On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The magistrates swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.[103]