Oral evidence: The role of the magistracy, HC 595Tuesday 22 March 2016

Oral evidence, 22 March 2016.

Witnesses

Jo King, Executive Chair, National Bench Chairmen’s Forum, and Alwyn Lloyd Ellis, National Bench Chairmen’s Forum, gave evidence.

Chair

Welcome, Ms King and Mr Lloyd Ellis. Thank you very much for coming to give your evidence to us. You did not hear some of the earlier evidence. It is not like witnesses—you are allowed to sit in beforehand; it is not quite like giving evidence in court. I am conscious that, because you are judicial officeholders, there are certain questions of a political nature one should not go into and I promise you we won’t.

Jo King

Thank you.

Chair

Would you regard the magistracy as in crisis?

Jo King

No.

Victoria Prentis

Good.

Chair

It has been asserted to us that that is the case. Please tell me why you say no.

Jo King

We are obviously going through a period of great change. We have been going through change for quite some time. To say that we are in crisis implies that the magistracy is somehow falling apart, and I would say we are far from that. There is a lot of uncertainty at the moment, which of course causes anxiety. We work very closely with our colleagues in HMCTS and through our justices’ clerks, and I think we will be resolving some of those issues fairly soon, but I certainly would not say that it is in crisis.

Chair

It has also been suggested that a culture of independence has grown up in the magistracy, which is creating isolation from the community, and that you have become more akin to judges feeling that they must stand aside from all other matters. Is that something that either of you recognise?

Jo King

For magistrates, the judicial officeholder role is a difficult one. They come from their community, and they take on the role only on a very part-time basis; most magistrates sit for perhaps two days a month. Inevitably, they are heavily involved in other aspects of life, whether through working or other community involvement, or just through family and social contacts. Whereas a member of the full-time judiciary can separate their judicial officeholder role quite neatly from their private and personal life, for magistrates it is much more difficult. However, we are judicial officeholders, and it is very important that we follow the same conduct proceedings and uphold the same standards of behaviour as our salaried colleagues. We need to be independent. We are there to decide on people’s futures. They need to make sure that we have no conflicts of interest or any biases towards any particular part of the community. It can be difficult for magistrates. I would not say that we are becoming isolated. Magistrates do a lot of work in the community in many different forms, outside their courtroom duties, and they manage to balance that very well.

Marie Rimmer

In your written evidence, you commented on magistrates’ falling workload, and you made suggestions on other areas into which they could perhaps expand, including civil courts in relation to crack house closures, antisocial behaviour orders, licensing appeals or even small claims. Do you think there is a danger that that might be spreading their expertise a little thinly?

Jo King

Some of those roles were held in the past. Magistrates used to deal with licensing, and we still get involved in some stages of the appeals process. Magistrates’ key skills are their ability to evaluate the evidence placed before them and to make sound and reasoned judgments from that. We sit in a number of jurisdictions at the moment. We cover some civil work already within our jurisdiction. We cover family and youth specialisms, as well as crime. In all those circumstances, we rely on our legal advisers who provide us with legal advice. We are not legally qualified and we are not experts in that sense. I see an extension of the role being possible where those skills can be utilised—where the key requirement is for the ability to evaluate evidence and make judgments, with the support of a legally qualified legal adviser to provide us with the expertise. When we are looking at possibly expanding the role of the magistracy, it is very important that we do not take on anything that undermines that judicial officeholder status. That should not be diluted; we should not take on anything that directly conflicts with that role.

Marie Rimmer

Do you think that also applies to the adjudication of breaches of prison discipline via video link?

Jo King

At the moment, they are done by district judges. If there is no dilution or conflict for a district judge in undertaking that role, I do not see an issue for magistrates, should that be deemed appropriate.

Marie Rimmer

We have had evidence that there are sometimes tensions between magistrates and district judges, who are seen as getting the more complex and interesting cases. Do you agree with that?

Jo King

No, I do not. I think the relationship between magistrates and district judges is largely very positive at the moment. We work very well with our colleagues on the district bench. Over the last few years there has been much more joint working. We have recently had a whole series of trial blitzes, where district judges and benches of magistrates worked very closely with each other. Both reported that as being mutually beneficial. District judges are getting much more involved in the training of magistrates, which is really positive. District judges are ticketed for some areas of work, such as serious sex cases in the youth courts. Only they will hear those cases. There is also some specialist work such as extradition work, which is only handled by district judges. In terms of the more general work, there are protocols that the listing staff and our justices’ clerks follow when they are allocating work to either the district bench or the magistrates bench. That covers a number of things. There is a protocol that may determine, for example, that if something is particularly legally complex it may go before a district judge, because that will probably shorten the proceedings. It is obviously in the interests of the parties if we keep proceedings to a reasonable length. Other than that, there is an overriding principle that both magistrates and district judges need access to the full spectrum of the work, so that they can maintain their competencies. That perception may arise when people are perhaps not aware of the way work is allocated. Magistrates sometimes come in and see a very small section of the overall work, and they may have an experience that leads them to believe that, but, overall, it is not my belief that district judges are cherry-picking the more interesting work.

Marie Rimmer

What helps to maintain a constructive relationship between the two groups? Where I come from I see evidence that there are constructive relationships. In your opinion, what helps to maintain a constructive relationship?

Jo King

Communication. District judges need to be visible, and frequently they are. They come into retiring rooms to meet magistrates. They take part in joint training. They attend lots of meetings with magistrates. They sit on our judicial business groups, which oversee the business arrangements for local justice areas. They often attend magistrates meetings—spring training meetings and that type of thing. Where we have the opportunity to work alongside them, both magistrates and district judges largely take those opportunities and find them very positive. In my area, for example, we had a period when magistrates were invited to sit with a district judge when they were doing what we call NGAP courts—not guilty anticipated plea courts—so that we could learn from the district judge. Every district judge I spoke to about those courts said that they had learned something from the magistrates as well. It is just a normal process for keeping communication.

Chair

And is that your experience in particular from a Welsh dimension, Mr Lloyd Ellis?

Alwyn Lloyd Ellis

Yes, it is. We have one district judge in north Wales. He divides his time between the courthouses along the coast. We work very well with him. He is very approachable.

Chair

It was certainly my experience when I was a practitioner a long time ago. I still try to keep in touch, at any rate.

Mr Hanson

There is an ongoing court closure programme—it has been live. We are not here to discuss the political decision on the court closure programme, although you mentioned it in your submissions. There is potentially an impact on court users and on magistrates. I am interested for the Committee to get a feel of whether the court closure programme has impacted on the recruitment, retention, travelling time or stresses of magistrates in their daily work. Perhaps I can start—as a north Wales MP—with Mr Ellis, with a Welsh perspective.

Alwyn Lloyd Ellis

There are two courts in north Wales that will be closing: Dolgellau and Prestatyn. The work from Dolgellau will transfer to—sorry, there are three: there is Holyhead as well. Apologies for that. Dolgellau is 43 miles from the Caernarfon criminal justice centre, where the work will go. At the present time, the magistrate who sits in Dolgellau also sits in Caernarfon. Because of the falling workload, particularly in Dolgellau, I think they welcome the opportunity to come to Caernarfon, because they have a full day, rather than possibly trials going off in their local court. As far as Holyhead is concerned, Holyhead and Anglesey are much closer to Caernarfon but, like Dolgellau, that is subject to the alternative provisions caveat in the closure document, which is being looked at. Prestatyn going over to Llandudno could create a problem. Denbighshire is a large county, as you know. Some magistrates based in the south of the county will be closer to other benches and other courthouses, rather than the main courthouse in Llandudno. They need to consider that in terms of transferring to other benches, and perhaps an alteration in the local justice area boundaries. That is something that needs to be looked at. In doing so, we need to maintain the balance of membership of each bench. We do not want too many on certain benches where they do not get the minimum sittings, while other benches struggle and magistrates are asked to sit a great deal. There is a recruitment programme at present. Applications are being invited, and time will tell whether some withdraw their applications because of the decisions. It has been well publicised that certain courts are earmarked for closure, and we will see whether that has an effect. If people really want to become a magistrate, I am sure they will be prepared to sit at a further distance from their local court.

Mr Hanson

Again, there is the diversity issue that we talked about in the previous session. If you have more time potentially to be free to be a magistrate, the extra travelling from Llandudno to Mold—for those who do not know north Wales—is a good hour and a quarter. The loss of Prestatyn, and of Flint in my patch a couple of years back, means that there is now a massive gap in the middle. Moving away from Wales, I suppose the question is whether there is an issue anywhere else. Is it a problem, in terms of travelling, for magistrates to stay in post?

Jo King

It is undoubtedly true that, as you reduce the court estate and ask people to travel further, it will cause some magistrates some difficulty. We have 18,000-plus magistrates, who come from a very wide range of backgrounds and circumstances. It would be ridiculous for me to sit here and suggest that it is not going to affect any of them. We have had similar situations in the past. In fact, my colleagues tell me, it is not that long ago that there was a courthouse in virtually every town, and indeed in some villages. We have been contracting the estate over a considerable period of time. I already travel for nearly an hour to my local courthouse. Although I live in the south-east, I can completely understand the difficulties that are being experienced throughout the country. It is not just a matter of rural versus urban. Sometimes in major cities, although the geographic distance is quite small, because of congestion or transport links it takes time to travel. We are concerned that, as the court estate reduces, there will be an impact on magistrates and on court users. We need to look at ways, certainly for court users, to mitigate some of those effects. We have to look carefully at the recruitment of magistrates. Because of the reduction in the workload, we have not had a really active recruitment process going on. It is fair to say that we have concerns about the visibility of the magistracy, whether the general public really understand the role and whether we are attracting a broad enough pool of candidates. If you are only looking for small numbers, it is difficult to justify a really good publicity campaign. I can remember times in the past when there were adverts on the radio or on the backs of buses, which really helped us to target some of those difficult-to-reach areas and to get across the message that magistrates are people like you; I am not referring to the people in front of me here but to people in the general population.

Chair

I hope we are not too far removed from the general population—but I get your point.

Jo King

Dare I say, if I look around, that we have issues with diversity in lots of areas of public life, which we would like to address. It is not as easy a problem to solve. Otherwise, I think we might have solved it already.

Mr Hanson

You mention in your evidence the need for a wider estates strategy and the discussions around that. Before this inquiry commenced, we had some discussions and there were suggestions from other sources that we might look at going back to the localised use of non-traditional buildings in areas where there were particular challenges. From the magistrates’ point of view, is there any mileage in that at all?

Jo King

Alternative provision is very much part of the estates strategy that is in place at the moment. Alwyn has made reference to that already. It is fairly early stages. The recent closures were announced only about four weeks ago. Until they are announced, it would not be reasonable to start putting in place plans to provide alternative provision, because it would be perceived to prejudge the outcome of the consultation. In the last four weeks, a lot of work has been done to look at what sort of model might work. It is likely to be on a very local basis. For eight courts, there is alternative provision that is contingent on its being in place before the court can be closed. For some of those, it may be that the most appropriate outcome is to find an alternative venue that could be used for physical hearings. For some, it may be a matter of providing video link facilities, for example, to video link victims and witnesses to a court location elsewhere. It is very early stages, and lots of different aspects are being looked at. There are a lot of factors that need to be taken into consideration: for example, security. If you are moving a physical court hearing to something like a council chamber, you have to look at the types of cases you might list there. You will not have a secure dock facility. There is the security of the magistrates. It is not just in the most serious cases we deal with that we sometimes have problems with security; sometimes something that seems as straightforward as council tax can be very emotive. Sometimes you get people responding in ways that you do not anticipate, so we would need to look very carefully at the security of the court users. We are moving over much more to a digital system. Can that digital work environment be provided in an occasional venue; in what are sometimes called pop-up courts? All those things are factors that need to be considered. There is not an answer at the moment, but we have the undertaking that those courts will not be closed until alternative provision is in place. Local judiciary, magistrates included, are being involved in those discussions and are feeding into the proposals that are being made at the moment. I cannot tell you what the answer will be at the moment, but there is certainly a lot of work going on looking at how we can mitigate some of the effects. It does not necessarily solve the problem for magistrates if they have to move to or work in a distant location even if the victims and other people are being video-linked. For magistrates, we have to look carefully at the impact that it will have. We need to look at recruitment. We need to make sure that we are not just recruiting from the immediate vicinity of large urban courthouses, and that we are able to reflect the communities in every aspect, as far as possible. For that, we need to target and raise the profile of the magistracy much more among the general population and encourage people to apply.

Alwyn Lloyd Ellis

Unfortunately, there is not a definition of alternative local provision, which may slow up the process.

Mr Hanson

It was suggested that, now we have closed a 1,000-year-old court in Flint, we could use the 1,000-year old town hall next-door instead, which seemed to be slightly ridiculous, but there we go.

Chair

Have you spoken at all to the Local Government Association about the way rural councils, particularly rural district councils, sometimes deal with the pressures on local councillors, who may have to travel a very long distance to get to the civic centre, for example, for meetings? It is sometimes possible for them to deal with their committees by video link and other things.

Jo King

I understand there are some discussions between HMCTS and local authorities about different ways of working. From the magistracy point of view, we look to HMCTS to provide us with the facilities and support we need in order to carry out our role. We do not necessarily go beyond that in terms of going out and finding the provision ourselves. We are involved in the decision—

Chair

Perhaps you should do that a bit more.

Alwyn Lloyd Ellis

Tomorrow, in fact, I am meeting HMCTS staff. The premises on the island of Anglesey and in Dolgellau are council premises. In reality, they are the only ones that are sufficiently large.

Chair

They are the only ones that are likely to be available.

Jo King

I think we have to be careful of our role and not to—

Chair

That is what I was getting back to, with the point about you cutting yourself off needlessly from what might be the blindingly obvious to most people.

Jo King

If I were to suggest to magistrates that they went out and sourced their own courthouse, effectively—

Chair

We are not saying that; it is just talking to people.

Jo King

We do.

Chair

Some of your magistrates will also be district councillors.

Jo King

Absolutely.

Chair

They can share their experience.

Jo King

It is a matter of talking to people, sharing ideas and learning from people’s experiences. We have people who are local councillors who sit as magistrates.

Chair

You have a Magistrates Association. That can talk to the LGA, can’t it?

Jo King

Absolutely. We do that. I suppose there is a line between the talking and the coming up with the ideas and actually securing the provision, which I would like to see rest with HMCTS.

Chair

Do you have confidence in HMCTS to do that?

Jo King

I do, yes. We work very closely with them.

Dr Huq

Back to the diversity point, it seems that the workload is reducing, but you need to recruit more to get more diverse people. Where do you currently advertise? There is often this quite patronising thing whereby local authorities put job adverts in The Voice and Eastern Eye. People like me would not read them in the first place. I am just curious about whether you are getting a wide enough range of recruits.

Jo King

I do not think we are getting a wide enough range of recruits. Very little advertising is done. A lot of it relies on the gov.uk website, which is the portal that magistrates have to use to apply now. Recruitment lies with the advisory committees, and some advisory committees will be much more proactive in going out to target or talk to groups. As far as I am aware, no centralised advertising has been done for several years. Various informal methods are tried, but it is not always easy to identify the groups that might be interested or the appropriate people to speak to within those groups. A lot of work happens on a local basis, some of which is more successful. I am very keen that we try to widen it and get as broad a pool as possible. Then we can select the best candidates from that. If we have a very narrow pool, we will never be able to address the diversity issues. There is much more work that can be done. We have to accept that there are very limited resources. It is about where those resources are spent and how they are prioritised. It is not within our gift as magistrates to determine how those resources are spent on advertising. We can and do apply pressure, and we continue to make requests. The issue of recruitment is becoming more apparent as a number of factors, not just diversity but rurality versus urban and so on, become much more of an issue.

Dr Huq

Age as well as gender and ethnic—the whole lot. Disability.

Jo King

Yes. Age is a difficult one. Inevitably, we all get a year older year on year. Magistrates are appointed until they are 70. There is not a process, other than disciplinary procedures, to get rid of them, for very good reasons to do with judicial independence and so on. Where there is limited recruitment, there is going to be an increasing age profile. In terms of attracting younger magistrates, I would like to see much more being done with employers. Very few employers now give magistrates time off to attend court. We used to have quite active engagement with employers, and support from Government to reach employers. It is a great pity that, in the main, Government Departments and local authorities no longer allow magistrates paid leave to attend court. There is a lot that the Government could do in looking at that in their own Departments first, and then encouraging and supporting employers. We would undoubtedly like to attract more working-age magistrates.

Dr Huq

Would you agree with fixed-term contracts, which were floated by the last panel?

Jo King

No, I would not. That presents all sorts of difficulties within the bench. We have to look at succession planning, and we need magistrates who are willing to take on leadership roles. To have a fixed term of office would cause us enormous problems within the magistracy, and I think the disadvantages would outweigh the advantages.

Dr Huq

They said it could be renewable.

Jo King

If it is easily renewable, do we get away from the position that we are in at the moment? You need to make sure that you have people in place who see that they have a longer future and are willing to invest the additional time that bench chairmen, deputy chairmen, TDC chairmen and family panel chairmen give over and above their court responsibilities to assist with the running of the courts. If you tell them that they may be leaving 10 years after joining, you will find fewer people who are willing to undertake those roles. We will then suddenly have real issues with how we lead the magistracy.

Alwyn Lloyd Ellis

In north Wales we held two open evenings last month. They were quite well attended. Magistrates took interested applicants around the court building. They showed them the courts and the cells and answered any questions they had. That was advertised on local radio, some of it through the medium of the Welsh language. It is a problem, however, because it is difficult to advertise, and we do not have a budget to do so.

Chair

Do you have any issue with recruiting Welsh-speaking magistrates?

Alwyn Lloyd Ellis

In certain areas, such as where I am from in north-west Wales, it is not a problem, but in certain other areas the balance needs to be addressed. It is in line with the population.

Chair

Sure—I understand.

Victoria Prentis

On engagement with employers, perhaps you could tell us, Mr Lloyd Ellis, whether you did anything specifically in your open evenings to reach out to employers.

Alwyn Lloyd Ellis

The answer to that is no. Sorry to be short. It was explained to applicants who were showing an interest what was expected of them in terms of commitment. Every applicant is encouraged, before they put their application form in, to speak to their employer and see what their reaction is. Some are positive and some are not. The last thing we want is for a new magistrate to be appointed, but when they turn up they say, “I can’t sit next week because my employer won’t let me.”

Victoria Prentis

Do you have any good-news stories to share about engagement with employers?

Alwyn Lloyd Ellis

It could well be that we need to set up some sort of forum with employers—perhaps the CBI, the Federation of Small Businesses or chambers of commerce—to inform them about what the magistrate does and the benefit to their business of having a magistrate as a member of staff. It is something that needs to be looked at. Otherwise, you will have an imbalance on the bench, with many retired people and people who are self-employed. It needs to be looked at.

Victoria Prentis

Ms King, do you have any ideas about that?

Jo King

It is quite a difficult thing to do on a local level, because some small employers find it particularly difficult to release people on a regular basis. Larger employers’ decisions are made on a national or sometimes international basis. I always try to support my magistrates, and I have offered—although it has not been taken up—to speak directly with an employer if they felt it would assist. Often the employer-employee relationship, particularly given the financial situation that many businesses have found themselves in over the last five years, is quite a difficult one anyway. A lot more needs to be done centrally. On a local basis, it is very difficult. You might be able to engage with an individual employer.

Chair

It sounds as if I am repeating a record. The points you raise about the age of people, whether or not they are self-employed, and about the difficulty of getting employers to give time, are exactly the same issues that you find in local government when it comes to recruiting councillors. Interestingly, the LGA has done quite a lot. It has quite a lot of recruitment material, so I sometimes think it might be worth a bit of cross-fertilisation. You are often fishing in exactly the same pond and trying to resolve exactly the same problem. The LGA has been quite proactive about it. It might be useful.

Jo King

Indeed. We will take that back.

Chair

It is an important issue that you have rightly raised.

Richard Arkless

Training for magistrates is obviously crucial. Keeping up to date with new developments and the ability to move into more specialised roles is obviously crucial. I understand that, although at the moment it is not mandatory, there is an appraisal system. Perhaps your view may be that it is not robust enough. Could you speak about how you think the training could be delivered more effectively?

Jo King

Some training is mandatory. Initial training and training for specialisation on panels is mandatory. There is an authorisation system and process to ensure that magistrates are adequately trained before they sit in those specialisations. There is a lot of additional training, which is not mandatory and can cover a host of different aspects, including changes to legislation and sentencing guidelines and that sort of thing. The mandatory training is largely very good, I would say, and magistrates are happy with it. The non-essential training is delivered in a number of different formats, often on a local basis. There can be variations in how that is delivered and in the quality of the training. We get very good support from the Judicial College, which provides lots of the mandatory training. We provide some of the consolidation and update training, which is delivered locally. Magistrates would always welcome more training. As the NBCF, we would like to see clearer guidance on more of the training that is not currently mandatory being deemed essential, so that all magistrates are kept up to date with areas where there are very important changes to legislation and so on. There is a lot of other training that magistrates get involved in, or would like to get involved in, which might not directly impact on their courtroom role but is useful background information or contextual training. Historically, we have not been very quick to grasp new technology for training. We are just starting to do distance training—e-learning and that sort of thing. I can see that being very useful and expanding. There will always be a need for high-quality face-to-face training, particularly when we are looking at courtroom skills and managing a courtroom environment. It is difficult to see how that could be done on a distance or e-learning basis. If we had the budgets, no doubt we would have more and higher quality training.

Richard Arkless

What about the appraisal system?

Jo King

The appraisal system is currently under review. We would welcome it if that review were to happen more speedily than it seems to be happening at the moment. Magistrates are appraised every three years in each of the specialisations they sit in. They are appraised by their peers. It would be good if that were more robust and we felt more confident that we were identifying magistrates who had issues with competency that could be addressed through additional training. At the moment, the number of magistrates identified as needing some additional training is very low, and that gives us cause for concern. Statistically, it is likely that there will be more people who perhaps have not attended training, and there may be gaps in their skills. Support for magistrates through a robust appraisal system is something we very much support.

Richard Arkless

Should training remain the direct responsibility of the Judicial College?

Jo King

Yes, I think it should. The Judicial College does not just train magistrates; it trains all members of the judiciary. It has good oversight of the needs of the judiciary and an understanding of the particular requirements of judicial officeholders. It is a fairly small group of people on a fairly small budget, and there are inevitably some strains within that, but I would say that it is doing a good job.

Richard Arkless

We have touched on some court closures in north Wales, Mr Lloyd Ellis. In relation to training for magistrates in rural areas, is technology the key? Is this how we can perhaps deliver it more effectively in the future?

Alwyn Lloyd Ellis

I think that e-training would be very attractive to magistrates who struggle to get time off work. Coming to training means an extra day off in terms of their sittings. If their employer is limiting the number of days they get, that would be very attractive to them. As far as north Wales is concerned, we are pretty flexible, in that the training, if it is mandatory—as Jo said, it is very well attended—may well be at the major centres. My experience is that magistrates will turn out to those sessions, rather than turning out to annual and biannual meetings. Attendance can be pretty low at times, even though it could be considered as a training forum as well. Invariably, we try to bring some topics to the table that are of interest to them. I think e-training is the way forward. It will assist in terms of the budget and in terms of the time having to be spent by the majority of magistrates—time they do not have. I do not think it is exclusive to rural areas. They are mobile, and they will make the effort.

John Howell

I want to look at the issue of sentencing powers. I want to start by looking at it in terms of how you retain cases in the magistrates court. We went to the US recently and saw a number of problem-solving courts. I wonder how you see the magistracy dealing with that and with supervising community orders, for example.

Jo King

There are a number of questions there. Problem-solving courts are a very interesting idea. At the moment, a working group is looking at how they may be applied to the criminal jurisdiction. We already have some element of problem-solving courts in the family court with family, drug and alcohol courts. They seem to be working very well. We need to allow the working group to look at the full implications of problem-solving courts in crime. They are resource-intensive, and they rely on other stakeholders, third-party providers and so on being able to provide resources to those courts. It is certainly an interesting development and one that, if we can get the right model, we would certainly support. On retaining cases in the magistrates courts, we have recently had the changes to the allocation guidelines, which strengthen our ability to keep more serious but less complex cases within the magistrates courts—to hear the trial there and then to commit them to the Crown court for sentence if our sentencing powers are inadequate. I see that as very valuable in assisting us to relieve some of the pressure in the Crown court and make more use of the magistrates courts for cases that can be dealt with by a summary process.

Alex Chalk

As you know, six months is currently the statutory maximum that you can impose. The Criminal Justice Act 2003 said that it could be 12 months, but those provisions were never brought into force. Your position, I think, is that you are in favour of the magistrates having sentencing powers of up to 12 months. How can you be confident that it would not just lead to sentence inflation, and that community penalties would not end up as custodial penalties and short custodial sentences would not end up as longer custodial sentences?

Jo King

We have our sentencing guidelines, which we follow very carefully. When we deviate from them, we have to give reasons why. If we were able to hear more serious cases that have increased sentencing guidelines, I do not see that we would suddenly throw them out of the window and become custody happy. If you look at the youth court, for example, youth magistrates have the ability to sentence up to two years in detention. We do not see that magistrates have suddenly become committed to sending everybody into custody. In fact, for all magistrates, custody is very much a last resort. Provided that we have good, robust community orders, they will always be used in preference, where they are appropriate, to a custodial sentence.

Alex Chalk

Magistrates are well able to apply guidelines is the short answer.

Jo King

Absolutely. They are able to apply the guidelines.

Alex Chalk

I respectfully agree. Chair, I am so sorry, but I have to ask a health question in the House. May I be excused?

Chair

Of course.

Alex Chalk

Thank you very much.

Chair

We would not want to deny the Chamber.

John Howell

I was going to finish off by asking the same questions as Mr Chalk raised, as well as raising one myself, about retaining cases in the magistrates court and dealing with problem-solving courts.

Alwyn Lloyd Ellis

I have no experience whatsoever of problem-solving courts. I think that Jo has answered that point on my behalf. On retaining cases, it is beneficial to the victim that cases are retained, because it means that they get justice a lot quicker than they would if matters were sent to the Crown court. Sometimes, for defendants, there are tactics in terms of deciding to go to the Crown court, hoping that the witness will not turn up because of delays, and cases will be dropped. What can be done to retain cases in the magistrates court? That is a very difficult question to answer. My personal viewpoint is that defendants could perhaps be encouraged to do that by putting a cap on the costs they would face. The costs at the Crown court are a great deal more. If they know beforehand what they are going to have to pay by way of costs if they go to trial in the magistrates court, that may encourage them. Another idea is to have more credit for a guilty plea. They receive a third off at the moment. That is something for another day, I think. It might well open the floodgates for a guilty plea when the sentence, at the end of the day, does not really fit the means.

Jo King

Magistrates find it very frustrating when we accept jurisdiction for an either-way offence that is clearly suitable for a summary trial but the defendant elects Crown court trial. Obviously, the issue of the right to elect is not one for magistrates, but we are keen to see some offences where there is a very broad range of behaviours included within an either-way offence. For example, cultivation of drugs can range from a single cannabis plant on a windowsill through to a commercial enterprise with highly specialised equipment, abstraction of electricity and so on. We can accept jurisdiction on the single cannabis plant case, and the defendant can elect the Crown court. As Alwyn indicated, sometimes we feel that there are tactical reasons why somebody may do that. They are putting off the day when they have to face the consequences. There is a perception sometimes that the CPS may take a view that it is not in the interests of justice to pursue a Crown court trial for a very minor offence. Witnesses may not turn up. There will be inevitable delays because of the backlogs in the Crown court. That all means that the case may fall at the last hurdle. If we could remove some of the low-level offences where the sentencing is clearly within our jurisdiction and make them summary-only offences, we could increase the number of cases that magistrates courts heard and reduce the number of very minor matters going before a Crown court and a jury, with all the expense and delays that that entails, as a result of election.

Chair

Coming back to some of the broader things, we talked about the digital roll-out. I think that is important. We talked about training. Some people have suggested that there should be a system of CPD points. Do you see merit in that?

Jo King

Along with the appraisal system, we are very open-minded about that—anything that encourages magistrates to undertake training and to keep up to date. A lot of magistrates undertake extra work or extra training on their own initiative. To recognise that would be good. Certainly, I see value in a continuous professional development system being rolled out.

Chair

I get the sense that the role of the bench chair has grown over the years. You have a leadership role. You have to do more to encourage others to be a public face. You have to deal with training issues. Do you have any views about what support can or should be given to bench chairs specifically, either within their own jurisdiction area or otherwise?

Jo King

The role of the bench chairman has changed immeasurably over the last five years. Now, bench chairmen are very much key decision makers, and they are asked to be strategic thinkers. They do not just have pastoral support responsibilities for their benches, which are in many cases becoming much larger; they also have other business responsibilities outside the courtroom. The role has been overlooked slightly, and we need to recognise that some of the changes that are taking place are going to increase the burdens on bench chairmen even further. We need to look at how they are supported, and whether they need additional training over and above. We have a bench chairman’s course, but there are perhaps strong arguments that bench chairmen should be supported with additional leadership training, and the resources in the administration teams that HMCTS provides us with to get basic secretarial functions carried out. It is about valuing those individuals, who are willing to put in what can often be almost a full-time job on an unpaid basis.

Chair

Yes, that is what I was thinking.

Alwyn Lloyd Ellis

It is difficult to adopt a single model because of the size of the benches.

Chair

I understand that.

Alwyn Lloyd Ellis

In Manchester there are over 1,000; I have 45 magistrates on my bench, so Manchester’s requirements are obviously greater than mine.

Chair

They are very different, yes. I understand that. There is a final thing I am interested in. You have both been magistrates for a number of years. Was it helpful when you had members sitting on the old probation boards? Did you find that made for a better linkage between the magistracy and the broader criminal justice system? I pluck that out as an example, although it has changed now. Was there value in it?

Jo King

There is always value in liaison with external agencies and stakeholders. It can take many different forms. I am not sure that that model was any better than alternative models. At the moment, there is a feeling of disconnect between the community rehabilitation companies and magistrates. There are obviously some very good reasons for that. They are commercial companies, and we have to retreat occasionally into our independent role when we are dealing with profit-making organisations. We would not want CRCs lobbying us to promote certain sentencing options, for example.

Chair

What about things like restorative justice panels or youth referral panels?

Jo King

In terms of liaison with them?

Chair

Yes. Do you have expertise that can be brought to bear there, perhaps?

Jo King

One of my roles, as bench chairman in my area, is that I sit on scrutiny panels for the police. A lot of the out-of-court disposal work that the police are doing now is restorative justice. We see that operating with quite a lot of court diversion work. A lot of it started within the youth jurisdiction. One of the successes has been the work that youth offending services do with young people, both before they get to a situation where they are at risk of going to court and once they are in that situation. A lot of work is happening with schools in preventing and diverting people from offending behaviour before they commit serious offences. The youth offending panels work very closely with the police, and they divert people away from the court system wherever possible. That has to be applauded. It is essential to reduce the criminalisation of young people. I think that we can extend that into the adult jurisdiction. Work is being done at the lower level. Work is being done very successfully with some very serious offences post-sentence. We need to look very carefully at the use of restorative justice prior to sentencing and whether that affects the sentence that an individual receives.

Chair

Do you think that there is expertise in the magistracy that could be made more use of?

Jo King

I certainly think there is expertise within the magistracy that we could accommodate and use more in restorative justice. We need to look at the bigger picture and see how that fits in with sentencing and what we are doing with sentencing.

Chair

Indeed. On the final thing that I was going to ask about, we were recently in north America—in New York and Boston—looking at problem-solving courts. That requires a very high degree of input into the follow-up by the sentencer.

Jo King

It does.

Chair

Can you see a means whereby that could be adopted in the United Kingdom? Would there be some practical problems?

Jo King

There are some practical difficulties, particularly with continuity. It is more difficult for magistrates, because of the way they sit and their availability, to maintain continuity, although we do it within the family court, where it is needed. In the past—they are not so prevalent at the moment—we have overseen drug rehabilitation requirement orders. Often, there would be continuity on those. You would have the same panel of magistrates listed to sit on a three-monthly cycle so that you could achieve that. There are ways of doing it. It complicates how we list and rota people, but that is not insurmountable. We need to look at where the evidence lies to see whether there is value in that sentence supervision and whether the outcomes are improved. Then we can find a way to accommodate it.

Chair

That is very helpful. Thank you both very much for your time and your evidence. Oral evidence: The role of the magistracy, HC 595 21