There is delightful unconscious irony in the choice of a gavel hammer as an emblematic illustration for Policy Exchange’s recent intervention: “Future Courts: A New Vision for Summary Justice”. If the authors had even the slightest experience of everyday work in our courts, they would have known that gavels are never used by judges or magistrates in this country (in contrast to America, where gavel-wielding judges are frequently depicted in movies and on TV). Gavels in the UK are the exclusive preserve of auctioneers selling off property. Nevertheless, the Minister for Police and Criminal Justice, Damian Green, has discerned “a number of interesting ideas” in the report. No doubt he was considering the exciting new opportunities for auctioneers to get their hands on large parts of the criminal courts estate: opportunities which will be discussed eagerly at the forthcoming Policy Exchange seminar on “Privatising Justice: Myths, Threats, Opportunities” with the Justice Minister Chris Grayling on 11 March.
Irony aside, the Policy Exchange Report makes depressing reading. It points out that thecourt system has been singled out for particularly savage cuts in the current round of austerity and is required to deliver a 38% saving between 2012 and 2016 (p.5). It notes the “slow decline of the magistracy” associated with a reduction not only in its workload but also in recruitment, which has “fallen off a cliff in recent years, down from around 2,400 in 2006/7 to fewer than 500 in 2011/12”. This has led, unsurprisingly, to a sense of “disempowerment and demoralisation” within the magistracy (pp.19-20). We should not be too despondent, however. Much of the explanation for the underuse of Magistrates’ Courts and the reduction in criminal business can be attributed to the fall in recorded crime over the recent period (p.16).
Based on this analysis, and with almost no research other than some unspecified conversations with “magistrates, judges, court workers and organisations”, Policy Exchange have revived some long-discredited ideas, spiced them with contemporary talk of “neighbourhood justice, innovation and “new ecosystems” (p.11) and breathed them seductively into the receptive ears of the Justice Ministers. Amongst these ideas is a proposal that the Victorian “Police Court” could be brought back from its decent interment, in order to dispose rapidly of cautions, diversion and guilty pleas inside police stations and community centres. Other courts could be reorganised around “justice hubs” which will incorporate newly-built or converted facilities, housing civil and criminal courts, with co-location of criminal justice agencies. Magistrates could dispense justice in unused shops, leisure centres and office space – with mobile courts that change their location over time (pp.7-8).
At the heart of the Policy Exchange proposals is the idea that justice must be faster, closer to the community and, above all, more structured around solving problems and changing behaviour (p.7). The whole culture of the magistracy should be transformed through the recruitment of 10,000 younger magistrates with different working patterns, including “a small number of reformed offenders and addicts” all of whom would be provided with specialist training and opportunities for the exchange of problem-solving techniques (p.9). All this sounds reassuringly positive and progressive, aimed at snatching community benefit from the ghastly jaws of austerity and decline.
Unfortunately, the Policy Exchange document hides a great deal more behind its breathless rhetoric. The whole basis for these reform proposals (described as “background”) is budgetary. There is no acknowledgement that our magistrates’ courts have a central role as arbiters between the police and the citizen, nor that their judicial independence would be fatally compromised, both in appearance and in fact, by their location in police stations. Judicial independence, according to the authors, is overrated, merely negative and may not in any event apply to magistrates. According to them “it is questionable whether it should have the same strict meaning for lay magistrates, who might sit for two days a month at the most, as it does for full-time judges” (p.9). Given that the magistracy disposes of 97% of criminal cases in England and Wales, this is an extraordinary proposition which strikes at the heart of the due process protections within any rational system of law. The authors would do well to consider the appalling travesties of justice which take place daily in states which share their disdain for the principle of judicial independence. They might, for example, ask the demonstrators in Ukraine whether they agree that judicial independence is merely a “negative” and dispensable attribute and not, as John Kerry has pointed out, a precious and non-negotiable demand.
Policy Exchange’s proposal for “linking the Transforming Rehabilitation agenda to court reform” is another well-trodden road to disaster, which recalls the early twentieth century enthusiasm for therapeutic courts; an essential part of the “Social Defence” movement. Similar innovations and a similar contempt for “process-focused and mechanistic” justice (p.7) led quickly to the wholesale abandonment of process protections throughout continental Europe and the co-option of the courts by totalitarianism. These are no idle fears but the potentially catastrophic outcomes of policy creation which is ill-informed, speculative and ideologically-driven. Embedded in these recommendations is a brazen call for the marketization of justice and the creation of a culture of payment by results. The authors maintain that “a successful strategy for fostering court innovation can be delivered – one based on new financial incentives which will allow new resources to be brought to bear”. How do they imagine that this should be accomplished? The answer is that “the Ministry of Justice should quickly devise simple metrics that would allow for the comparison of the reoffending rates of particular courts” (p.51). Whilst there is no direct assertion that courts, magistrates and judges should be paid by results in the manner which is currently being proposed for the Probation Service, the implication is clear to see. What the authors of this Report envisage is a system of courts stripped of independence, cleansed of “mechanistic” due process protections which might stand in the way of their rehabilitative and “problem-solving” mission and driven by market priorities. It is a vision which all of us who value the great principles of fair and equal adversarial justice which were first developed in this country, need to resist emphatically and a timely reminder that we should never take their continued existence for granted.
Richard Vogler is Professor of Comparative Criminal Law and Criminal Justice at the University of Sussex