14 The Magistracy - a Professional Court?

OF ALL THE criminal trials that take place in the magistrates’ courts of England and Wales (which constitute 95 per cent of all trials in the criminal courts), less than 10 per cent are tried by individual district judges (formerly, stipendiary magis­trates), of whom, in 2010, there were 143 lawyers sitting full-time and 151 lawyers sitting part-time.

Although not disqualified from appointment to the lay bench of the magistracy, lawyers are an uncommon sight among those sitting in judgment. Even those lawyers engaged in legal practice (includ­ing conceivably a Queen’s Counsel, no less) may exceptionally be appointed; the only restriction is that they cannot appear as counsel in the courts where they might be asked to sit. That such a legally qualified magistrate might find himself or herself exceptionally adjudicating on a case conducted by a fellow practitioner could be avoided by instant disqualification from sitting. The odd occasion in which a legal practitioner would be one of three magistrates seems rarely to have aroused public (let alone specialist) interest; a suggestion for emulation on a regular basis has gone unheard, even unnoticed beyond the instant case.

I make these prefatory remarks as an introduction to a personal experience. From 1966 until 1981 I was that rara avis - a practising member of the English Bar, called by the Middle Temple in 1952, becoming a Queen’s Counsel in 1970 practising largely in the field of public law, at a time when the concept of judicial review of min­isterial decisions was developing as a major feature of litigation. But I anticipate my magisterial experience by describing the route to magisterial status. The description reveals the nature of the legal profession at that time and its resistance to change, either in the form of a unified system for solicitors and barristers or for a lessen­ing of the marked difference in the attitudes of the legally qualified and those not versed in the ways of those fortunately imbued with the notion of the superior status of all English common lawyers.

When I began my career at the Bar, unlike my contemporaries in practice, I acquired no experience, let alone any expertise in the practice of the criminal law. I saw nothing of the daily fare of a mag­istrates’ court, although I had an academic interest in the criminal process as it functioned forensically and in its investigatory pow­ers. Thus, extramurally and extracurricularly, I had some preten­sions towards the study of criminology, and more particularly the penal system. (In the 1950s, until the abolition in 1965 of the death penalty for murder, I was actively engaged in the campaign for its abolition. Homicide has remained a perennial interest.) It was as a part-time academic - I began teaching criminology to social science students in the Department of Social Administration at Bedford College, University of London - that I touched base with members of the Magistrates’ Association. Kindly, I was invited to give talks to groups of magistrates up and down the country on topics that encompassed the field of crime and justice (including the punish­ment of offenders). I was quickly made aware of the fact that while I might possess some legal acumen, of a distinctly academic variety, I was hopelessly out of touch with the pressing problems of a mag­istracy that was involved daily in delivering justice as it was expe­rienced in the courtroom.

There was another aspect to my desire to rectify my lopsided view of the criminal process as it unfolded in the magistrates’ (and other) courts. The ambition among practitioners was generally to round off a career at the Bar (either criminal or civil) by becoming a judge, if not on the top rung of the judicial ladder, at least in what were, until 1971, the Assize Courts (now Crown Courts) or, more relevant to my career, in the civil courts, where judging, not by way of trial by judge and jury, was the process of finding the facts and applying the law. Yet the avenue of advancement into the judiciary provided, at that time at least, little experience of being a decision­maker. On the magisterial bench, the magistrate is the decision­maker of the factual matrix as well as conducting the process of determining guilt and punishment. Even today, the lawyer aspiring to a judgeship will, almost invariably, have spent time acting as a part-time assistant recorder or recorder. As such he will not be a decision-maker, but generally summing up the evidence to an expectant jury.

I had the good fortune and privilege to become acquainted with Gerald Gardiner, an outstanding lawyer who in 1964 became Lord Chancellor in the Labour Administration of Harold Wilson. I asked him if he would be prepared to appoint me to the London magis­tracy. He applauded my wish to broaden my experience of the crim­inal law in action. I was duly appointed in 1966 and even allowed to dispense with the requirement to undergo initial training. If that was a proper concession to a practising lawyer like me, I now regret it. It is as necessary for the untutored to undergo initial training, whencesoever he came in public or private life.

My first experience was sitting - at least in the early days - as a book-end of Greenwich and Woolwich Magistrates’ Courts. I cannot vouch for any objections my legally unqualified colleagues had to my presence. If they thought that the qualified lawyer was an unwel­come injection into a system designed to reflect a popular outlook on criminal justice, they were kind enough not to express any degree of animosity. The process of deliberation in the justices’ retiring room was usually uneventful, although I suspect strongly that my unorthodox views on penal affairs did not always accord with those of other magistrates. But my recollection is that only rarely did we impose immediate terms of custody for convicted offenders, so that I was never troubled, and did not cause trouble. But I was conscious then (as I will explain later) of the relationship between the magis­trates and the justices’ clerks who served ostensibly as the court’s legal advisers and judicial amanuenses. That experience was to await my translation in 1969 to the City of London Magistrates’ Court, sitting primarily in the Mansion House (the only building that combined an official residence for the Mayor, a courtroom, and prison cells in the basement). The change under the Justice of the Peace Act 1969 was truly innovative. Until then, for centuries, the elected aldermen of the City of London had administered the crimi­nal jurisdiction of the city. The change was the formation of a bench of 72 justices, of whom 24 were the extant aldermen (no women at that time!). The arrangement of the municipally elected and the lay Justices of the Peace worked well enough. It seemed then, and appears now, to arouse little public concern, apart from the odd high-profile case.

It was not too long before I became, by virtue of seniority, the pre­siding magistrate for the day’s working list. It was a peculiar feature of the City of London Magistrates’ Court that by the manner of its composition, and the range of judicial fare, it provided an unusu­ally high degree of professionalism in the performance of judicial duties in cases that reflected the criminality of a sparse residential population and a large daily peripatetic workforce.

The case was intrinsically unique. Under the Exchange Control Act 1947 (later repealed) there was an odd provision, that with the consent of the prosecutor and the accused, a magistrates’ court could try an offence under the Act summarily. The monetary pen­alty on conviction could be up to five times the amount of money involved in the commission of the statutory offence. The case involved two stockbrokers who had engaged in a practice known in financial circles as a ‘revolving-fund fraud’. The practice was to send monies whizzing around the world’s financial markets, pick­ing up in the process the dollar premium on the monies. The prac­tice was criminal.

We sat for 30 working days; the case was expertly conducted by Treasury counsel, who regularly appeared at the Central Criminal Court at Old Bailey, and leading counsel for the two accused. At the end of the hearings, we reserved our judgment, later delivering a 45-page reasoned finding in support of a guilty verdict. We consid­ered imprisonment unnecessary and fined the two offenders half a million pounds. We were told subsequently that, if the case had gone to the Old Bailey before a jury, it would have lasted anything up to six months. This instance of a mixed tribunal was cited approvingly by the Roskill Committee in 1984 on Serious Fraud Trials as an example of why the Committee’s recommendation for a professional tribunal in serious fraud cases should be adopted. After the election in 1997 the Labour Government tried legislatively to substitute a mixed tribunal for trial by jury in serious fraud cas­es.¹ The provision in the Criminal Justice Act 2003 could be imple­mented only on positive motion of Parliament. It failed. The rest is history; the silence betokens an unwavering popular devotion to the system of trial by judge and jury.

I must apologise for the one example I have given for pointing in the direction of a revamped magistracy of forging the link of the professional lawyer (the district judge) and the lay magistrate (the Justice of the Peace). The late Barbara Wootton, whose outstanding biography A Critical Woman^{[166] [167] appeared in 2011, once proclaimed that for any generalisation you need at least two examples. To avoid dilation on the topic of mixed tribunals, I record that I actually sat on a second ‘revolving-fund fraud’ trial on the City of London Bench, and other multitudinous cases during my 12 years as a mag­istrate. I can say that I found the presence of two non-legally quali­fied magistrates almost invariably helpful, even on occasion a hearty corrective to my seemingly excessively liberal attitudes to criminal justice.}

The one postscript for the magisterial experience I have described fortifies my plea for some development towards a mixed tribunal. At the end of the 30-day hearing I indicated to our justices’ clerk (a man of huge experience and skill in managing a magistracy contain­ing one or two mavericks and eccentrics) that we would be deliver­ing a reasoned judgment, at which he metaphorically threw up his hands in horror, attesting a warning that that would be a recipe for disaster, because the accused (if guilty) would appeal to the Central Criminal Court (strictly, a rehearing before a circuit judge and two magistrates from the London magistracy), to which I politely pointed out that if we were wrong in our reasoned judgment, we jolly well ought to be appealed. In fact there was no appeal; the two stockbrokers were later struck off the list at the Stock Exchange.

The reaction of the justices’ clerk was typical of the view at the time, that magistrates should decide cases and not open their mouths, just like the mother whale advising her young that it is only when you begin to spout, that you get harpooned. The day of the unarticulated verdict of a magistrates’ court has long since passed, although I expect that ‘ticking of boxes’ does not suffice to meet the need for giving reasons. It may just be possible to advance reform of the mixed criminal tribunal as an alternative to trial by jury. We should recall that Sir Robin Auld in his Review of the Criminal Courts in 2001 recommended that defendants should be allowed to waive jury trial if they so wished. The alternative form of criminal justice could become that alternative.

On 17 October 2012 Professor Rod Morgan delivered an impres­sive, but depressing, vision of the future for the lay magistracy in the Jane Blom-Cooper Lecture at Middle Temple.^[168] His address included an allusion to the future of a mixed tribunal.