I
have never had much time for the National Bench Chairmen`s Forum. At
the very least its title does not indicate a desexualisation of the
term “chairmen”. My own bench procedures often refer to such a
group as “chairtakers”. Be that as it may it seems that this
organisation is very slowly taking over positions which should be
firmly occupied by the Magistrates Association. The NBCF is
constituted with official standing in judicial matters affecting the
workings of the lower courts. The M.A. by its almost toadying
attitude over the years to government of all shades is losing members
and influence. Until and unless it truly represents the interests of
members in all the aspects a professional union should occupy, viz
the B.M.A. I can foresee its becoming an irrelevance within a
decade. However returning to the NBCF it has recently produced a
position paper on the government`s ridiculous proposals to limit the
tenure of J.P.s to ten years; [speech by Damien Green 25/03/2014]
That document with a very effective demolition of the argument is
copied *below. My only comment would be that for a bench chairman to
be an effective court officer many more than the minimum number of
sittings is required. A half day a fortnight is just insufficient
time to become and/or retain effective competence; not the absurd
definition as currently is the case. Considering that probably only
about a third of sittings would be in a remand, breach or sentencing
court as opposed to sittings in trial courts it is all too obvious
that some colleagues are failing and rely almost totally on being
carried through the sitting by their colleagues and/or legal advisor. It is
unfortunately readily appreciated why an increased minimum for
chairmen will not be imposed.
When
one is acquainted with all the proposals of the last twenty years to
“redeploy” magistrates and this current "initiative" from the Policy Exchange it truly takes the ostrich position to
argue that deep in the bowels of Petty France there does not exist a
dossier containing a to be dated press release explaining why the
justice system must follow the European example and have professional
judges presiding over magistrates` courts. By that time I will need
more than my battery charger to keep me interested.
*NATIONAL
BENCH CHAIRMEN’S FORUM
TENURE
OF OFFICE FOR MAGISTRATES
The
proposal to have a set tenure of office for Magistrates arose from
the document “Future Courts - A new vision for Summary Justice”,
by the Policy Exchange. In this analysis (Page 10) there is a
recommendation to introduce a ten-year tenure of office for
Magistrates. It
suggests, “This would generate a greater turnover of
Magistrates and offer more opportunity for younger Magistrates
to volunteer, Magistrates would be able to reapply, but only
following a thorough appraisal and updated training”.It is also
stated by the Policy Exchange that following appointment,
“Magistrates continue to serve until they reach 70 years of age,
preventing the appointment of younger magistrates.” The Minister,
Damian Green, further raised the idea of a defined tenure
when he spoke at the Policy Exchange on March 25th 2014;
he stated, “The introduction of a ten year tenure of office has
been suggested by the Policy Exchange and others. I am attracted to
this idea, because it would generate more opportunities for people to
volunteer.” The purpose of a defined tenure of office is
to “boost diversity” as the Minister stated, and “to
free up Magistrates to use their expertise in other areas
within the CJS”. Some suggestions for this redeployment have
been; Neighbourhood Justice Panels and Local Criminal Justice Panels.
It is assumed that any changes to the tenure of Magistrates will only
apply to new appointees. There would be significant
practical difficulties were it to apply to existing Magistrates, not
least because complex transitional arrangements would be necessary.
There may in any event be other challenges to any proposals to change
the terms on which Magistrates have already been appointed. This
paper is therefore written on the basis that any change will not be
retrospective.
Recruitment
In
response to these proposals, the question must be posed whether, and
to what extent, would tenure of any length, achieve the objective of
increasing the diversity of the bench? The recruitment would need to
focus on selected groups, traditionally hard to reach, such as the 30
and 40 age groups and those from the BME communities. Targeting such
groups as a source for new Magistrates is not new, although the
proactive recruitment of former years has largely been replaced
by reliance on the GOV.UK website. Proactive recruiting methods
are used far less today, because the need for recruitment has reduced
as workload has declined, and the number of applications that are
received via the Internet in many cases exceeds the number required
for a recruitment exercise. Targeted recruitment will have
resource implications and, if successful, will create new
issues because the need for new appointments is unlikely to
increase in the short-term, whilst the number of applicants will
rise. Ideally the recruitment process would be carried out in a way
that enables Advisory Committees to specify that any
new appointments should be in the age range and ethnicity required,
although such an approach will almost certainly be rejected
because it would be subject to challenge on the basis that it
is discriminatory. There would therefore be a risk that the work in
targeting specific groups would have only limited impact. A great
deal of work has been undertaken by the JAC over many years
to target recruitment to the salaried Judiciary; it would be
useful to explore what lessons have been learned as a result of that.
Ten years on from the first recruitment exercise based upon
a ten year tenure, the Magistracy is likely to experience
an annual ‘turnover’ in excess of ten per cent; almost twice as
much as current turnover. Between the ages of 30 and 40, men and
women are very engaged with their work, building careers and in many
cases, raising a family. They are very often financially burdened and
to commence a voluntary role, as demanding as that of being a
Magistrate, represents a real challenge. In addition,
employers do not encourage voluntary service and employees fear
being disadvantaged in the promotion equation. In many cases
employees are being refused time off for voluntary work, even in a
Judicial role. Parents struggle with childcare responsibilities,
particularly if family cannot assist. Introducing incentives for
employers may help and they must also be made aware of the
positive aspects when an employee becomes a Magistrate. It
is often very obvious that after appointment a Magistrate becomes
more confident, able to give a more balanced view and they
develop skills, which can be transferred to the workplace. It
may be useful to look again at the criteria for appointment to ensure
that it is not weighted in favour of those who are slightly older,
have more life experience and are in white-collar jobs; at present
such individuals tend to score highest in the selection
process. Just one example is the appointment of members of
the legal profession, who often wish to volunteer for this kind of
role in the community. They naturally score high at interview. One
of the problems identified with the current system is that
Magistrates can continue to sit to 70 years of age and this can have
the effect of blocking the appointment of younger Magistrates; it
would be useful to obtain some statistics on the number of new
appointees who are over 55 and therefore serve for no more than 15
years. To impose a defined tenure period by itself would not be
effective. Other changes would also be required. As Magistrates are
redeployed to community work, they would possibly be replaced by
those in the exactly the same age group and of the same ethnicity as
at present. As part of community work based on what they are already
doing, Magistrates are in an excellent position to speak and
encourage employers to be more flexible in allowing their staff to
become Magistrates. This may be a role for them in which to increase
participation in the Justice System.
What
period of tenure?
If
defined tenure were to be introduced, it is sensible to consider what
period would be preferable. The Policy Exchange suggested that the
tenure of a Magistrate should be ten years. Under our
current system Magistrates who have served between ten and twenty
years form the pool from which people are selected to become Panel
Chairmen, Deputy Chairmen and Chairmen of Benches. Likewise,
there must be the correct balance of Chairmen and Wingers on a
Bench, and Chairmen do not generally start chairing until their
fourth or fifth year in office; this would need to change, but would
mean relatively inexperienced Magistrates having to take the chair.
Careful monitoring would need to be carried out to ensure that there
are a sufficient number of Chairmen to run the courts. The risks of
this approach must not be understated. A bench of Magistrates needs
to be competently led by an experienced chairman. If
inexperienced and less competent tribunals become the norm, this will
have an effect on the work of the Magistrates’ courts and the
reputation of the Magistracy. If the proposal were for tenure for
more than 10 years, it would be important to review the average
length of service across those who have retired in recent
years. There is a perception that an increasing number of
Magistrates serve between 15 and 20 years, and setting the tenure at
20 years may not bring any change. Currently Magistrates are able to
join the Family Panel after 2 years on the Adult Bench and specialize
after 5 years. They need training and experience for this
role. If a defined tenure were to also apply to Family Magistrates
it would remove them just when they are achieving competency in
dealing with family cases, which can be very complex. The loss of a
significant number of Magistrates with a Family ticket would
compromise the speed at which cases could be dealt with at a time
when Family work is increasing and there are set timetables for
completion of cases. It follows that the recruitment of Magistrates
directly to the family court, bypassing the need to sit in the criminal
court, may be necessary.
Appraisal
Addressing
the suggestion by the Policy Exchange of a “thorough
appraisal and updated training”, it is important to recall that
Magistrates already have appraisals throughout the time they are in
office. To consider a thorough or robust appraisal only after
ten years is far too late in the Magistrates’ tenure of
office. Magistrates need robust appraisals eighteen months after
appointment and then either every two or three years. This
should identify those individuals who perhaps need to consider a
different kind of volunteering role at an early stage. A more
effective efficient Magistracy would be developed. To achieve this
and improve performance, the appraisal system itself needs to
be reviewed. At present, colleagues who have undergone
training as appraisers currently appraise Magistrates. Some
cross bench appraisals
are also conducted, when an appraiser from another Bench
carries out the appraisal. This was introduced to allow
Magistrates to be appraised by someone who they did not
know. Current experience unfortunately suggests that this has not
improved the appraisal system. Some individuals have continued to
sit, who are not able to execute the role to the required standard.
Leaving a robust appraisal only until ten years into office is thus
leaving things too late.
A
renewable tenure?
A
further consideration might be a renewable tenure based upon
the need to retain experienced and competent Magistrates. It
would be superficially attractive to employ a system whereby a
Magistrate’s term of office is not renewed after 10 years on the
basis of the need for ‘turnover’ and their individual competence.
However, if a Magistrate were found not to be competent after tenure
of office, there would need to be an appeals process in place.
This would be an added burden to the Training committees and
have further resource implications. It is likely that some
Magistrates would wish to commence litigation if they had been
deemed competent for ten years and were then removed on the basis
that they were no longer competent.
Training
The
statement that there should be “updated training” is difficult to
comprehend. Training is ongoing from the moment a Magistrate is
appointed. Only the core training, carried out before a Magistrate
can commence sitting, soon after appointment, is currently
compulsory. Therefore, there is very little that can be done
if a Magistrate, shown to be competent at appraisal, has
not attended very important on going training. Good numbers of
Magistrates do attend training, but compulsory training would
be an advantage and should not require significant additional
resources.
Judicial
Office holders
Magistrates
are Judicial Office holders, part of the Judicial Family
and members of the Judges’ Council. Although unpaid, it will be
argued that they should not be treated differently to other members
of the Judiciary. As Judicial Office holders, Magistrates are
appointed with this as their key role. The defined tenure would be
introduced to free up some Magistrates to carry out other
tasks in the community. It cannot be presumed, however, that
all those after fulfilling their judicial office as a Magistrate,
would wish to do other work on a voluntary
basis in the community. The two roles are very different. Would they
remain as judicial office holders whilst fulfilling the community
role? As a Magistrate the individual is
accountable to the Lord Chief Justice under a Judicial
hierarchy. This encompasses all the work they discharge whilst
appointed. Some system of accountability would need to be established
if Magistrates ceased to be Judicial office holders after a period of
tenure, but engaged in other activity using the badge ‘former
Magistrate’.
Alternatives
One
alternative option to tenure might be to have a reduction of the
numbers of Magistrates appointed in line with the reduction in
workload. A further reduction is anticipated when legislation allows
regulatory work to be carried out by one Magistrate sitting with a
legal advisor. The reduction in Magistrate numbers would be managed
over a period of time, until the right number was reached for the
level of work. It is always an advantage to have newly appointed
Magistrates. They invigorate the Bench with new ideas and enthusiasm.
This too, could be managed according to any fluctuation in workload.
A smaller Magistracy would be cheaper to administer and
maintain. A smaller, better-trained, effective Magistracy is
attractive, because it would improve public confidence, speed up the
Judicial process and have little
resource implications. A separately appointed group who are
interested in community work associated with the CJS could carry out
community work. There are already lay members of Independent
Monitoring Boards, Youth Offending Teams, Victim and Witness support.
They do not need to be
Magistrates.
In
summary therefore, there are better ways of achieving a
more effective and efficient Magistracy without imposing tenure
of office and they are mainly without resource implications. Defined
tenure is extremely unpopular with the Magistracy and would engender
a lack of commitment if individuals knew that after a few years they
might be removed.
Magistrates
should be treated as other Judicial Office holders. Their main role
must be Judicial, but as is the case now there is scope for community
engagement and work in the community by those who wish to do it.
20.6.2014.
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