Our criminal justice system needs major surgery, not a band aid

The backlog of cases in our criminal courts has been a problem long before the pandemic began to take effect in our country two years ago. The pandemic has made it much worse: letting down victims, witnesses, those accused of crimes who go on to be acquitted, sometimes after a long time remanded in custody, as well as those who work in the criminal justice system.

Last month the government launched initiatives to deal with the current backlog of cases, including a £1 million campaign to recruit 4,000 new magistrates, covering all jurisdictions in England and Wales. This is being touted as the ‘biggest recruitment effort in the 650-year history of the magistracy’.

At present all criminal cases in England and Wales start in the magistrates' court and, in fact, over 90% are completed there. The more serious matters, like rape and murder, are then transferred to the Crown court.

The magistrates' court is a vital community-based establishment, with the aim to contribute to the process, or deliver, local justice at a local level.

The government announcement initially was met with optimism by criminal solicitors like me. We all want those sitting as judges in our courts to be representative of the community. We also want those who work in the police, probation, and prison service to also be representative and reflective of the community they serve. It is indeed vital when dealing with justice, particularly where the consequences are so serious - like a citizen’s liberty being deprived - that the decision makers and workers are able to view victims and defendants with a level of empathy - the ability to ‘walk in the shoes of…’ - this also engenders greater public confidence.

There has been a move in recent years to move away from seeing criminal justice as a ‘system’ based establishment, to understanding that a ‘service’ is being provided to the community, within all the separate bodies that make up the criminal justice service. A reflective magistracy is essential for this.

The government’s aim is to ‘attract’ candidates, in the words of the Ministry of Justice, from 'teachers to bricklayers, to stay-at-home mums, and any individuals who can display reason and sound judgement'. In short, people from different walks of life, backgrounds and younger people. This should make magistrates more diverse and representative. This should be cause for celebration.

In the magistrates' court, the bench (judges) is made up of either lay magistrates, who are unqualified and unpaid, or district judges, who are qualified and paid. The lay bench is made up of two or three magistrates, with equal status, although one sitting as chair. The court is assisted by a legal advisor. 

The latest stats for ONS taken from Sept 2020 on judicial diversity of magistrates found that, as of 1 April 2020, 56% of magistrates in England and Wales were female and only 13% were from Black, Asian and Minority Ethnic (BAME) background. 49% were over 60 and just over 1% were under the age of 30. This is a big source of concern.

One of the main reasons for the lack of diversity in relation to background, race and age is that the position of lay magistrates is unpaid, and this reduces the category of candidate that has the luxury or privilege to afford to give up their time in order to take up these positions. This is a similar problem as with other unpaid positions in the community, whether on a hospital board or as a college or school governor.

Post-pandemic and with the cost-of-living crisis causing real financial hardship to families, it will be even more difficult to recruit within this category. Even with a new diversity recruitment drive it is unclear how less well-off BAME people and those in low paid work or those self-employed will volunteer to be an unpaid magistrate. There is a danger that the new recruits will be more of the same - middle class or retired, older, white people, entrenching the inequality and lack of representation.

There is an urgent need for investment across the criminal justice system. As a criminal defence solicitor for over 20 years, I have seen the impact of sustained cuts leading to the decline of what was once the envy of the world. The continuous, relentless cutbacks to legal aid have led not only to a mass exodus from the profession of experienced criminal lawyers but also a shortage of new recruits. The regular news of criminal firms closing or criminal solicitors not being able to afford to offer their services for various offences or types of cases due to the work involved and rates of payments is the new and very depressing reality.

Both Crown and magistrates' courts are under-resourced, over-stretched and struggling against a back-log that continues to grow.

The government’s other big initiatives include plans to increase the sentencing power of the magistrates' court from six months to 12 months’ imprisonment. It is unclear how this fits within the big picture or addresses the huge backlog.

The government claims that the increased sentencing powers of magistrates will take some pressure off the Crown court, where a case is sent if the magistrate feels that their limit of a six-month custodial sentence is not enough to deal adequately with a case before them. In other words, magistrates' courts will take some of the load from Crown courts.

This is a measure that has been argued about throughout my legal career. It has been proposed before and then rejected. There are strong arguments against the imposition of short-term custodial sentences, when balanced on the implications that follow, i.e. loss of liberty for an offence minor enough for a magistrates' court to deal with. Short custodial sentences often lead to people becoming caught in the revolving doors of the prison system, to job loss, family breakdown and homelessness. Release and then reoffending. Back to prison and more of the same.

The purpose of a magistrates' court and lay magistrates overall is to administer justice at a local community level, with members of the community who have an understanding of those that appear before them to preside over their cases and impose community level penalties where possible. In the long term, this contributes to the community and/or allows rehabilitation of the offender. These sentences are far more effective and cheaper than longer prison sentences.

Some who work in the criminal justice service believe that the diversity recruitment drive in the magistrates' court is to counter the increase in sentencing power of magistrates - to balance each other out. Most of us believe that these two initiatives are just more knee-jerk, low-cost solutions to a much bigger problem within the criminal justice system: a band aid when what’s needed is major surgery and investment.

Saadiya Ahmad is director of the University of East London’s Legal Advice Centre, senior lecturer in law and senior solicitor at Dexter Henry Solicitors