It’s not just about juries: The Courts and Tribunals Bill will institutionalise injustice in the Magistrates Courts

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The Second Reading debate on the Courts and Tribunals Bill is taking place tomorrow. The Government hopes for a speedy passage of this legislation through Parliament, perhaps even before the May elections according to some Labour MPs. That seems a fairly improbable outcome given that it contains some of the most far reaching changes in the justice system for a generation, and is likely to be strongly opposed in both Houses of Parliament. If it is not passed by the end of the current session of Parliament, likely to be in late May, there is a procedure for “carrying over” the Bill into the next Parliamentary session. Given the Prime Minister’s somewhat uncertain future, and the Bill’s unpopularity, it is by no means inevitable that that would happen.

The central and most contentious provision in the Bill is to abolish trial by jury for all but some of the most serious offences. The objections to this appalling proposal have been well-articulated by others, including the Labour MP Karl Turner, and here by The Secret Barrister.

But it also contains other less publicised changes to criminal procedure, all of which are designed to ensure that more people are convicted more quickly and that having been convicted they have less chance to appeal. The Courts Minister Sarah Sackman describes this as improving justice for “victims.”

Her implication is that defendants can never themselves be victims, and that their rights can thus be sacrificed if this achieves more convictions.

Central to the changes will be handing Magistrates far greater powers, including the possibility of passing sentences of up to 2 years imprisonment. The current maximum is 6 months imprisonment for a single summary offence (although for either way offences, or some multiple offences it can be up to 12 months). The result will be more trials for more serious offences in the Magistrates Courts. Given the existing backlog of cases in the Magistrates Courts this will inevitably increase delay in those courts.

Next, the right of defendants to elect trial in the Crown Court for “either way” offences” (which can be heard in either the Magistrates of the Crown Court) is to be removed. At present a defendant facing such a charge can elect to be tried in the Crown Court. Usually this is because defendants (correctly) assume that trial by judge and jury is fairer than trial by Magistrates.

The somewhat patronising “we know best” justification for the removal of yet another fundamental right is given in the “Factsheet” accompanying the Bill:

“Removing a defendant’s right to elect will bring the courts more into line with other public services – where it is the experts, in this case the courts, who do that triage, as opposed to the defendant.”

Ugh. The “public services” to which the so-called factsheet refers are not identified; the word “triage” suggests the NHS. The parallel is false: unless unconscious or insane a patient in the NHS has many choices not available to a defendant, including declining medical treatment altogether, or having nothing to do with a doctor or hospital that he does not trust. And it is utter humbug to describe “the courts” in this context as “experts” when the defining feature of Magistrates is that they are not experts but ordinary members of the public.

What sort of justice will there be for those denied a choice of venue for their trial? Bluntly, almost anyone who has the slightest experience of Magistrates and Crown Courts will say that justice in the Magistrates Courts is likely – not certain because there are of course many excellent Magistrates and District Judges – but overall it is likely to be inferior to that in the Crown Court. There are numerous reasons for this: less experienced judges, and often no judge at all just a harassed court clerk advising a bench of magistrates; less experienced advocates; limited, and often no availability of legal aid and as a result many unrepresented defendants. There are duty solicitors who do their valiant best, but they have neither the time nor the resources to do more than advise defendants on their first appearance at Court. And there are problems with prosecutors too, who are often young and inexperienced and even if they are not are always working under extraordinary pressure.

As a young and inexperienced barrister I was sometimes instructed to prosecute the “list” in a Magistrates Court. It was a daunting and sometimes overwhelming experience to have to prosecute, in the morning 10 or 20 guilty pleas, bail applications, sentences or adjournments, with much of that time more or less lost in a fog of obscure traffic regulations; then over “lunch” prepare to prosecute a couple of trials, not knowing which one would ultimately go ahead in the afternoon. Under such pressure mistakes are inevitable and in a busy Magistrates Court rarely spotted. And the pressure on prosecutors and defence solicitors is far greater today.

Procedural rules are different in the Magistrates Courts. For example, if there is a dispute about the admissibility of evidence, which happens often, in the Crown Court admissibility is determined by the judge; and if the evidence is ruled inadmissible the jury never gets to hear it. The judge might rule, for example, that the prejudicial effect of the disputed evidence outweighs its probative value. In the Magistrates Court the bench rules on disputes of law of this sort, so if the evidence is determined to be inadmissible they have heard it anyway. No doubt most magistrates do their best to put the it out of their minds when reaching their verdicts, but it is obviously fairer if the fact finder is not exposed to potentially prejudicial and inadmissible evidence.

Compounding these problems the Magistrates Court is not a “court of record”. Unlike in the higher courts, proceedings are not recorded. Any mistakes are thus likely to be undetectable after the event. Magistrates do nowadays give reasons for their decisions, but these are usually fairly short and sketchy, and there is no authoritative record of the trial. For these reasons it has long been the rule that anyone convicted in the Magistrates Court does not need to demonstrate any particular error in the Magistrates Court; they have a right of appeal against conviction (or sentence) to the Crown Court where the whole case will be heard again, not in front of a jury, but by a Crown Court judge sitting with two magistrates.  As recently as last year the Law Commission provisionally recommended that this right should be retained. 

Only a tiny proportion of defendants convicted by magistrates actually exercise that right, but of those that do around 40% are successful. According to a Parliamentary answer in October 2023 the total number of appeals from the Magistrates to the Crown Court in the financial years between 2018 – 2023 averaged just 6,320, of which around typically around half were appeals against sentence only. Magistrates Courts deal with well over 1,000,000 cases every year. Appeals are the exception, not the rule.

The Courts and Tribunals Bill will abolish the right of appeal from the Magistrates Court. Instead the proposal is that anyone wishing to appeal against either conviction or sentence will have to apply in writing for permission to appeal from a Crown Court judge. Prospective applicants would need to show that they had “arguable” grounds of appeal, presumably in most cases those grounds would have to be that the magistrates had got the law wrong. That mirrors the position for those wishing to appeal from the Crown Court to the Court of Appeal. Difficult though appealing from the Crown Court is, these proposals would make appealing from the Magistrates far more difficult, and for the many defendants – nearly half of the total – who are not legally represented appealing against conviction, in particular, would become practically impossible.

And even with representation, how will an aggrieved defendant manage to appeal without a transcript? Every appeal from the Crown Court to the Court of Appeal is accompanied by a transcript, not necessarily of the whole trial, but at least of the judge’s summing up, legal directions and of the relevant judicial decisions. In the absence of fresh evidence appeals are hardly ever allowed except on the basis of an argument that the judge misapplied or misunderstood the law. Transcripts are essential. How, for example, can you show that the trial judge’s ruling on the admission of a disputed confession was flawed without being able to read both the trial judge’s ruling on the issue, and the evidence that led to the ruling? Yet the Government has not suggested that proceedings in the Magistrates Courts should be recorded, so there will be no transcripts. Curtailing the ability to appeal in this way looks like a cynical sacrifice of justice in pursuit of a chimera of efficiency.

And to be quite clear, although the Government may suggest that the restrictions on the right to appeal from the Magistrates were recommended by Sir Brian Leveson in his Review of the Criminal Courts, this is a half-truth. He explicitly did not envisage the requirement for leave to appeal to be introduced without:

“… the introduction of a secure recording software system that can capture the whole duration of the proceedings from start to finish …. This recommendation would be a key foundation to support my amendments to the appeals process.”

Needless to say, the Government has made no such proposals to put such a key foundation in place. On the contrary it is proposing to force ever more defendants into a system of institutionalised injustice. Its Potemkin appeal process may just about satisfy the European Court of Human Rights – although that is far from certain – but it will be of no practical value to the vast majority of wrongly convicted litigants.