So often a seemingly benign legislative adjustment promising a virtuous union of cost-saving and efficiency, turns out to be a Trojan Horse. Clauses 26-30 of the Criminal Justice and Courts Bill, setting out the proposed single justice procedures for uncontested, low level, “regulatory” offences such as non-imprisonable motoring, TV licence or fare evasion prosecutions, is one such example. Under these proposals, an estimated 750,000 such cases will no longer be heard before a bench of magistrates sitting in open court but by a single magistrate in private. The justification for this transfer of almost half the business of the summary courts, is primarily financial. A government “impact assessment” published on 5th February 2014 foresees a “net present value” of the reforms of between £34.8m and £64.1m at today’s prices, over a ten year period from 2013/14. In order to achieve such savings, the existing procedure in open court (dismissed by the bill’s supporters as a “rigmarole … reading out the facts to an empty courtroom”) would be routinely waived by defendants unless they specifically requested otherwise. The proposal’s “factsheet” maintains that an open hearing is “disproportionate, expensive and wasteful when compared with the seriousness of the offence” (paragraph 1) and the Justice Minister, Chris Grayling, has promised that the new procedure will be “smoother”.
As a matter of principle, we should always be wary of “smooth” and “streamlined” justice. It is not the function of procedure to smooth out the irregularities of real life and such a policy has always been the default position of oppressive justice. The proposed clauses offend against the principles of both open justice, memorably apostrophised by Lord Chief Justice Hewart in R v Sussex Justices, Ex parte McCarthy as the rule that justice should undoubtedly and manifestly “be seen to be done” and the principle of collegiality. Curiously, Chris Grayling has announced that “we cannot allow the new process to take place behind closed doors … we cannot have secret judgements” but this seems to be exactly what is envisaged, with the Magistrates’ Association enthusiastically offering “an office in the court building, a retiring room or a regular courtroom which is simply closed to the public”. All that the bill’s sponsors are prepared to concede in return are non-statutory assurances that a list of cases will be posted and that “as part of a wider transparency agenda, the Government is considering further ways of making the court processes and outcomes more transparent to the public” (para 11 & 12). Such casual dismissals of the principle of open justice are utterly unacceptable. As is the proposal that a single lay justice, with no discussion, no opportunity to consider sentencing precedent or contrary views, should wield such secret, absolute power. How will we ever know if decisions have been reached on the basis of all the appropriate evidence or acceptable grounds? Appeals against such sentences may well consume all the costs savings referred to above. Regulatory offences may seem trivial to the Justice Minister but to the vulnerable poor or those with language or communication difficulties, stripped of legal advice by recent reforms, the outcome can be devastating. Open, fair and considered justice is never dispensable.
Richard Vogler is Professor of Comparative Criminal Law and Criminal Justice at the University of Sussex