Like many criminal barristers, I entered the profession with a fervent belief in justice and fairness. I desired and indeed was willing, to speak truth to power and to play a part in what I thought was the greatest justice system in the world—the envy of many.
Long before I had decided to attempt to get to the Bar, I recalled arguing with teachers in defence of classmates that I thought were being treated unfairly. I was perhaps not always as correct as I thought at this age, but I never imagined that decades later, I would get that same blood-boiling sensation when standing in a court of law. Full disclosure, though: I get it almost every time I go to any Magistrates Court.
My experiences are not unique. They are increasingly becoming the norm. Spend a single day in almost any Magistrates Court, and it will bring home the troubling realities of a system marred by unfairness, inefficiency, and injustice. Of course, this is a symptom of the deep and relentless cuts to what is perhaps the most demonised yet crucial of professions in the civilised world. Undeniably, this has played a part, but it has played its part across the board. The problems in the Magistrates Court cut much deeper in a way that is not entirely true of the Crown Court. The Magistrates’ Court has become a place where justice is no more than a bureaucratic box-ticking exercise in which lawyering, or any critical thought, is an inconvenience. I have witnessed defendants with mental health issues giving their plea in mitigation or bench warrants wrongly used to get people to court to impose post-acquittal restraining orders on them. I have even heard expressions like “Mr Bardill, we are hearing a lot from you about what is in the defendant’s interests and not much about the complainant…” I guess that means I am doing a good job.
In any event, this officious free-for-all places truth and fairness as a secondary priority. It is perhaps risqué to say it, but those who stand before the Benches there and helplessly watch some of the most unfair hearings and trials unfold before an empty public gallery those people know.
The Magistrates Court has been a place where all the social issues of the day converge since time immemorial. Decades after trips to the local courthouse were replaced by daytime talk shows and crime dramas, the public gallery sits empty and unwatched trials see unfair or perhaps simply outrageously petty Prosecutions carried out with impunity to a Bench that wants everything processed as fast as possible, whilst ironically failing to discharge any such task with real speed or efficiency at all. Even though the public galleries sit empty, rest assured that the Magistrates Court remains a place where, too often, the bench has little connection with regular folk and certainly no connection with the ‘down-and-outs’ hauled before them. Under the guise of civilised people meting justice to wrongdoers, it becomes an exercise in the middle class, keeping the ‘lower classes’ in order. They fail miserably to understand the relationships, social norms, behaviours or habits of classes of people who are different to them. Too many start to forget they are playing with real people’s lives.
That pervasive inequality in accessing justice only aggravates the inevitable pre-existing power imbalance. The working classes are likely to earn less and, therefore, less likely to be able to afford to pay for private representation. This means they are the hardest hit by ruthless cuts to legal aid. Shockingly, the Magistrates Association estimates that 20% – 30% of defendants appear before the court without legal representation. Indeed, of the cases serious enough to be sent to the Crown Court, approximately 7% of defendants attend their first Crown Court appearance with no representation. This inequality undermines the essence of our legal process or its principles. It leaves genuinely vulnerable individuals at the mercy of seemingly slap-dash bureaucratic processes and incompetence when the system is supposed to serve as a beacon of fairness. Watching a scaffolder try to understand how to make an argument for disclosure against a less-than-scrupulous CPS Prosecutor is not an amusing sight at all. It is a heart-breaking one. It is a sight that should never be seen in any decent country, least of all in England or Wales.
It is no secret that the spectre of bias and prejudice also looms large within the walls of the Magistrates Courts. Time and again, I have witnessed people from impossible backgrounds, often involving the most horrendous abuse or neglect and real prejudice or discrimination. I have looked into the eyes of some of society’s most downtrodden and forgotten. People in unimaginable circumstances. I categorise this uniquely British bias not as racism like many would but as pure classism. It is a harsh reality that those of lower social classes are so often facing harsher penalties than their more advantaged counterparts, often for similar offences. Nowhere are the social disparities in sentencing outcomes plainer to the naked eye than in the Magistrates Court. Indeed, I would go as far as to say the same for bail applications and restraining orders. It is yet another stain on our justice system that must be urgently addressed.
Indeed, the Magistrates Court is far from immune to miscarriages of justice. In fact, it is a hotbed for it. This often leads to avoidable appeals and JRs, further clogging an already overwhelmed Crown Court system. Many individuals face an uphill battle to overturn erroneous decisions through the already bogged-down appeals process. Lives are disrupted, families are torn apart, and futures are shattered because of flawed proceedings and sloppy or ignorantly made decisions, sometimes aligning with some unusual procedure unique to that specific court. Conclusions are reached in a rush to ‘get through the list’, and (usually Defence) Counsel is often cut off from submissions due to ‘time estimates’, with no regard for the role that the law and authorities might play in proceedings. It is ironic then, that in all of this, of the trials listed for the first quarter of 2023, the proportion that were effective was around 42%. Less than half! The chaos that all this causes in the lives of those who pass through the Magistrates’ Court doors weighs heavily on my conscience and many of my colleagues. It is a travesty of justice that demands swift and decisive action.
The time for complacency is long over. We cannot continue to pay no heed to the systemic injustices festering within the Magistrates Courts. As legal professionals and guardians of justice, it is incumbent upon us to champion reforms that uphold the principles of fairness, equality, and accountability. Whether it be expanding access to legal aid, enhancing social diversity on the bench, or strengthening oversight mechanisms, the path to robust and far-reaching Magistrates Court reform, like never seen before, will become inevitable or necessary if we are to have any justice system at all. Indeed, we have all heard the constant calls for more funding. That still very much stands, of course. However, I am talking of real, meaty reform.
The conviction rate at the time of writing this in the Crown Court is 77.9%. This is in a court where a qualified judge makes decisions on law, and ordinary members of society make decisions on fact. It’s the fairest system mankind has devised, yet in a time when judges are seen calling for judge-only trials, it appears to be wholly underappreciated even by those in it. Indeed, when we cross to the Magistrates Court, the conviction rate rises to 83.6%. Any Criminal practitioner can tell you the types of appeals they have found themselves clogging up the Crown Court with, which could have easily been avoided had the proper law been applied in the first instance. The Magistrates Courts are unfortunately utterly unfit for purpose in the modern age. Some might call the ideas I float “radical”; others might say that ‘radical’ is precisely what is needed.
MINI JURIES
It is my view that all of the issues outlined and discussed above, which comprise the indictment of injustice against the Magistrates Court in its current form, can be summarised in one fundamental flaw: the voluntary nature of the Magistrates.
Some people give up their free time to volunteer at a hospice, while others might prefer to lend a hand cleaning up their local community or assisting the elderly. However, those who volunteer to become Magistrates are often a whole different kettle of fish. They, unfortunately, all too often bring with them an agenda or what can only be described as ‘professional’ or ‘political baggage’. That is not to say this is true of all Magistrates, or even most of them, but it is true of enough of them…
By their nature, positions on the bench are only open to those who are informed about them, which tend to be those who come from backgrounds with some connection, civic involvement or a certain level of education. Similarly, the positions can often only be occupied by those wealthy enough to take time out of work, such as businessmen or retirees. The consequence is that whilst we act like the system creates a ‘people’s court’ where builders and teachers are on the bench, in reality, we hand immense power to the Hyacinth Buckets of our world. How long should we, those charged with the defence of freedoms and liberties, continue to pretend this is not the case?
However, there is a straightforward way to combat this by replacing the voluntary aspect of Magistrates with a mandatory one. A type of ‘mini jury’ system where Benches are chosen in the same way that juries are and sit for a week hearing cases. Furthermore, it follows naturally that if Magistrates are replaced with ‘mini juries’, then that Bench would be far better placed to make findings of fact than the present Magistrates.
JUDGES OF THE LAW & MINI RECORDERS
Much in the same way that the mini jury mentioned above would be the tribunal of fact, this would then place District Judges and Deputy District Judges as tribunals of law. They would make decisions on law and give the Bench directions. Indeed, why not open up the opportunity for professional development and experience to junior Barristers of 5 years call by allowing them to sit as ‘Magistrates Court Recorders’? After all, are they any less qualified than the Magistrates Court Legal Advisors who currently advise the Benches, too often incorrectly? I would suggest not.
IF A TREE FALLS IN THE WOODS…
In addition to reforming how Magistrates are selected and appointed and revamping the respective roles of the Bench and District Judges/Magistrates Recorders accordingly, there is one other important aspect of the Criminal Justice System which I would argue is a necessary ingredient for a trial to be truly fair—the public. There is a reason why public galleries exist, and this is because we believe in the principles of ‘open justice’. As the old question goes, if a tree falls in the woods, and nobody is around to hear it, does it make a sound? I’ll let you think about that one.
From my conversations with members of the public, both at court and more broadly, it is clear to me that many people do not even know that there is such a thing as open justice. They are unaware that they have the right to observe proceedings, and of course, it follows that they are unappreciative of why that is so important. It is no secret among my peers that not every judge or tribunal is good. Not all of them are motivated by altruism, and believe it or not some are not particularly clever either. This is as true at the Bar and the Bench as it is anywhere else in life. Indeed, it is one of the few representative things about it! Nevertheless, I strongly contend that a brimming public gallery would temper the emboldened bad behaviour we often see from the Bench.
Education and information are essential. It continues to baffle me that schools teach children about all manner of things from sex through to algebra, and yet don’t make any real attempt to teach children about directly applicable and universally important things such as constitutional law, their rights and responsibilities, PACE and the jury system. Indeed, something as simple as a TV advertising campaign inviting people to go to Court would go a long way to informing the public.
It is common knowledge that we are always more interested or involved in things we understand, and I am convinced that the public’s lack of knowledge and understanding is at the core of the empty seats in the public gallery and the increasing numbers of young people who fall foul of the police from a simple interaction. The Police are trained; why aren’t the public trained, too? Perhaps if we did teach this as part of the curriculum, we would see a public that is far more engaged, interested, and empowered to hold the criminal justice system accountable and play a part in it. Perhaps that is why it isn’t done. Equipping the people to understand what is going on might bring the public back into the galleries, and then you might just bring a little bit of justice back, too!
LESS OFFENCES?
Of course, all of this takes funding. Still, when one considers that it should, in theory, result in fairer outcomes, fewer appeals and fewer miscarriages of justice, I would bet my bottom dollar that if it did not cost less over the longer term, it would nonetheless bring better value for money. Indeed, colleagues have argued that the cost or effort involved in this would not be worth it for minor offences like those in the Magistrates Court. However, if a crime is not serious enough to be tried in a fair hearing by a jury of one’s peers, is it really serious enough to be considered a crime at all? That debate is for another day!
BACK TO BASICS – RECLAIMING VALUES
Reflecting on my journey as a barrister, I am reminded of the ideals that initially drew me to the legal profession: justice, fairness, and the protection of rights. Years later, though, as I walk the corridors of the factories where justice is supposed to be made, I must look very hard to find any. It is time to reclaim these ideals and breathe new life into our justice system. If I were accused of a crime in England and Wales today, I would not feel confident that I would receive a fair trial.
Financial change is one thing, but we need a far-reaching attitudinal change. By advocating for proper reform beyond mere funding, we can forge a path towards a modern Magistrates Court that proudly embodies the principles that once underpinned it and should be sacrosanct—a court that delivers true justice for all.
Dominic Bardill, Barrister, Great James Street Chambers
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