The popular image of English justice is a stentorian judge in a wig, occasionally snapping at an equally sleepy jury. However, over 92 per cent of cases are heard in magistrates’ courts, which are mostly presided over by volunteer justices of the peace (JPs), who can imprison people for up to a year without a day of legal education. The magistrates are assisted by a clerk, who is legally educated, but make their own decisions, with little oversight. Most decisions are made by benches of three magistrates, in some matters there is also the opaque, lottery-like “single justice procedure”, where a single justice of the peace gets to commit injustice without much oversight.
The main qualification to be a magistrate is wanting it, alongside having free afternoons. The training is so minimal as to be farcical. This inevitably leads to a very narrow slice of the population, particularly economically and by age, being willing to do this. Worse yet, the fact that the positions attract only volunteers means that JPs are entirely people who want to be there. Juries, for all their faults, are conscripted off the street with no other motive. In aggregate, JPs are motivated at best by wanting to pad their CVs, or, at worst, cosplay as a judge (with real powers to imprison people). Money may sound vulgar, but it is what distinguishes the professional from the hobbyist and the absence of proper payment leaves only the hobbyists on the bench.
The desire for establishment credentials may also explain why there is a widespread belief both amongst lawyers and criminals that benches of lay magistrates are too sympathetic to the police. Hence, in “either way offences” (those that can be tried by JPs or a jury), the advice almost always given is to go for the jury. Magistrates are thus a cause of the backlog in the Crown Court (which hears jury trials) Worse yet, unlike their professional counterparts in the magistrates’ courts, JPs don’t give written reasons, making their verdicts a black box. They combine the worst parts of the jury system (opacity) with the pitfalls of bench trials (heard by an unrepresentative slice of the community).
Politicians would never suggest the magistrates’ courts be shown off as an achievement of British justice
Now, the Leveson review, trying to address the fact that Britain’s justice system has been reduced to backlogs and delays that would shame even the Italian courts, has suggested giving these literal rank amateurs more power, by forcing more cases to be heard exclusively before the magistrates’ courts (and removing the right to choose from defendants). Leaving aside the question of summary trial versus jury trial entirely, the problem remains that summary trial for “minor” offences (some of which can be actually quite serious, like sexual assault) is done by amateurs.
Summary trials are common across the world, but Britain’s peer countries work with professionals. Ontario’s lay JPs are full time paid court officials who do not sentence criminal offences. Australian magistrates, who do sentence minor criminal matters, require law degrees and practising experience. Ireland dumped lay magistrates for professional judges at independence. In the United States, the Supreme Court has ruled that lay criminal judges are constitutionally permissible only if the defendant has the option as of right for a completely new trial with a real judge on appeal. This, of course, is the opposite of the Leveson proposal to make it harder for a defendant to avoid trial by amateur.
There is a myth amongst the judiciary that “small” cases are less important, probably because judges are lawyers who know that “small” cases pay less. That is nonsense from any other view. A single minute in prison can ruin someone’s lives, let alone the 12 months these random citizens can hand out. There is no amount of deprivation of liberty that is tolerably outsourced as cost-cutting. Equally, fines and other criminal convictions can have devastating consequences, ruining careers, making international travel impossible, and haunting people long after the conviction is technically “spent”.
Meanwhile, one need only look at the bit of England that really is the envy of the world — the Commercial Court, where top professional judges hear cases worth billions. This court’s justice is sought from everywhere, and countries rush to copy it. Politicians and judges tout this fact. They would never suggest the magistrates’ courts be shown off as an achievement of British justice. Only the magistrates’ association, which has cheered the Leveson report, would make such an argument, but … they would, wouldn’t they?
The truth is that judges and politicians tend to see, except when caught speeding, these courts as beneath them. They are predominantly filled with the poor, the disadvantaged, the dregs of society. A fine of a few hundred or thousand pounds or a conviction over TV licensing or council tax nonpayment, even in very unjust circumstances, sounds like pocket change to them.
Only in Britain is freedom so little valued that a bunch of credential-seeking amateurs — and spare me the protests of the “good” magistrates — can send someone to prison for two years total. In a country obsessed with licensing, qualifications, permits, how is it that depriving liberty requires fewer qualifications than monitoring CCTV?
There ain’t no such thing as a free lunch. Justice — whose establishment is the central purpose of the state — is not to be cheaped out. Rather than send more and more people to prison on the opaque judgment of volunteers, we should actually invest in having lawyers, trials, and judges who don’t need to ask a clerk what the law is. The solution to the court backlogs is not just handing over more power to those with time off on Wednesday mornings. The answer is actually investing in a professional court system that treats every case, no matter how small, with the grave seriousness it deserves. Whatever other reforms are done, summary trials must be professionalised. Or, to put it more biblically, every court case should have the professional attention that politicians would want if it were them on trial.
