Reclaiming Summary Justice

Speech to the National Council of the Magistrates’ Association

Thank you very much for giving me the opportunity to talk to you today.

The magistracy serves as a vital link connecting the criminal justice system to local communities.  We should be proud of this institution which sees lay representatives of the community sitting in judgement on their peers.  It has been a feature of our system for centuries.  The Justices of the Peace Act 1361 set out that JPs should have the "Power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take, and chastise them according their Trespass or Offence; and to cause them to be imprisoned and duly punished according to the Law and Customs of the Realm, and according to that which to them shall seem best to do by their Discretions and good Advisement".

This is what the current Lord Chief Justice describes as the "proposition that decent members of the community, not themselves lawyers, should administer justice".

I am concerned, however, that developments in policy and practice in recent years have challenged this proposition.  ‘Summary justice' was the misnomer given to the previous government's programme of administrative justice which saw an unprecedented growth in out-of-court disposals, exacerbated by the pursuit of targets.  I know many of you will share my unease about the way out-of-court disposals have been used.

We have also recently embarked on a programme of necessary court closures.  And I understand the concerns many of you will have about these changes.  The closure of courts has been difficult, and it will not be reversed.  But I think all of this requires us to take a step back and ask some fundamental questions about our system of summary justice.  Today, I want to explain why I believe there is now a real opportunity to re-energise our entire system of summary justice, reverse the proliferation of administrative disposals over the last few years, and, in doing so, to rethink the role of the magistrate.  And I hope very much that you, the magistracy, will engage with this thinking.

I will set out some of the things we are doing to improve the delivery of criminal justice.  I will cover some immediate steps we are taking and look at some options we are considering to reconnect the system to communities.  And I will finish by asking some questions of you, about the role of the magistracy and the changes we might make to ensure that magistrates remain central to our system of summary justice.

II. Sure Justice

I have already touched on out-of-court disposals.  Absolute numbers have been falling fast since the target on offences brought to justice was scrapped.  But there is evidence to show that they are still being used inappropriately in some cases.

The Lord Chief Justice, too, has expressed his unease at the number of cases of criminal behaviour which are not brought before a court when perhaps they should be.

A report by HMIC found the use of out-of-court disposals to be confused, inconsistent and invisible to the public. The report highlighted one case where a 22-year-old woman had been issued with a reprimand for shoplifting in 2004, a final warning for shoplifting in 2005, a caution for assault on police in February 2008, a caution for shoplifting in August 2008, a PND for shoplifting in August 2008, and a third caution in October 2008 for criminal damage. Clearly a prolific offender, she had never been before a court.

Our own figures show that 4.5% of adults issued with a caution in the year ending June 2011 had previously received 15 or more cautions.

Let us be clear: out-of-court disposals are not an acceptable way of dealing with persistent offenders.  Such misuse risks undermining public confidence in our entire system of justice.  And it gives rise to serious questions about the effectiveness of low-level sanctions.  We must take action to tackle the inappropriate use of such sanctions and restore public confidence.

When used properly, out-of-court disposals can be a very important tool, providing quick and effective resolution to a crime for the victim which a court case might not.  But the current system can be confusing - for the practitioner as well as the public.  To ensure a more coherent approach to the use of out-of-court disposals we will introduce a simplified, national framework which will provide clarity on their use and streamline processes as far as possible.

We need to be clear what questions a police officer should consider when deciding whether to deal with a disposal informally or whether to proceed to charge. This means considering the seriousness of the matter in question, the harm done to victim and community, and the risk of future harm. It is essential that public confidence in these disposals is secured by ensuring that they are only used in appropriate circumstances.

We need justice to be more sure - an effective system which prevents both the escalation from nuisance to criminality and a too often inevitable escalation in the system from minor penalties to custody because of a cycle of reoffending.

To tackle this we need to intervene earlier - changing the behaviour of problem youngsters before they go off the rails.  I do not underestimate the scale of the challenge.  It will require wide-ranging reforms - reforms to education, welfare and family policy, tying in with cross-government work on troubled families.

But in addition to early intervention we also need to look at the effectiveness of the criminal justice system when offending first occurs.  Dealing effectively with nuisance behaviour before it becomes criminal, and with low-level criminality before it becomes repeat offending or more serious.

However, I want to challenge the idea of ‘diverting' people from the criminal justice system.  Of course we want to divert people away from crime.  But when offending has happened, it is the responsibility of the system to deal with it.  Sure justice means making offenders aware that their actions have real consequences.

Neighbourhood Justice

Changing out-of-court disposals is not enough.  We need a radical re-think about how to deliver an effective system of summary justice -

-       that will involve magistrates, not exclude them;

-       that will localise justice, not make it more distant;

-       that will allow professional discretion; but

-       that will guarantee proper safeguards;

-       that will be non-bureaucratic; and

-       that will ensure that, right from the beginning, interventions are rigorous, effective and act to deter future offending.

Our system of summary justice must command public confidence.  But, more than this, the system should be capable of harnessing public involvement.

To achieve this I propose a new approach to dealing with anti-social behaviour and low-level crime - Neighbourhood Justice.  This is not about introducing a ‘third tier' of justice - though arguably such a tier already exists in the form of out-of-court disposals.  I have noted the concerns of the senior judicary and magistrates about a separate third tier.  Rather, Neighbourhood Justice is about reconnecting policing and the summary justice system to local communities.

At present Neighbourhood Justice has two key features:

First, it is about giving local police officers greater discretion to resolve issues affecting communities quickly.  The target culture of recent years resulted in a generation of police officers who are unused to exercising discretion.  Policing has too often become an exercise in box-ticking; in chasing targets rather than solving problems.  We want to restore common sense to policing, empowering police officers on the ground to deal quickly and effectively with offending through formal and informal out-of-court sanctions.  But this must be within a framework of far greater transparency and accountability, and it links to our agenda to promote professionalism in policing and reduce bureaucracy.

I have met police officers who have been engaged with this new approach.  More than 18,000 officers are now trained in restorative justice techniques.  What struck me was how motivating and empowering they found it.  Instead of processing criminals they were dealing with and preventing crime.  They were using their judgement and common sense.  I believe the public would recognise and value this style of policing.  When an officer gets a young troublemaker to repair a broken fence in the view of the community, and apologise to the owner, justice is done, not denied.

The second element of Neighbourhood Justice is the use of Neighbourhood Justice Panels to bring justice closer to communities.  Applying principles of restorative justice, Panels bring offenders face to face with their victims to agree what action should be taken to deal with anti-social behaviour and low-level crime.  Representatives of the local community facilitate, ensuring all have a voice in deciding the appropriate course of action.  A referral to a Panel has to be agreed by both victim and offender.

The Coalition Agreement included a commitment to test Neighbourhood Justice Panels, and we are now working with local areas around the country to take this forward.  In response to an exercise we ran in the summer, around thirty local areas have expressed an interest in setting up Panels.  In most cases there is evidence of considerable cross-agency interest in establishing them.  We hope to see new Panels up and running early next year.

We aim to set out a high-level framework within which local areas can develop Panels in ways that meet local needs.  We want to avoid being prescriptive.  It is important that we give communities the space to devise and test innovative solutions, rather than impose desk designs from the centre.

I want to stress that these Panels are in no way a soft option.  On the contrary, their focus on requiring the offender to make visible reparation to the community can only strengthen public confidence in the system.  Community sanctions will often be far more meaningful and challenging to the offender than a standard out-of-court disposal.  I went to see an existing panel in action in Sheffield yesterday - I was impressed, but it reinforced my view  that Neighbourhood Justice must not just be about reparation and apology; there must be a punitive element.  This is essential if the public interest is to be satisfied.

It will be important to ensure that communities are able to hold agencies to account.  I want to see far greater accountability throughout the system, with some form of oversight mechanism for out-of-court disposals in particular.  I will return to this issue later in my address.

III. Swift Justice

Justice must be sure if it is to command public confidence.  But it is equally important for justice to be swift.  The response to the riots over the summer showed us what the criminal justice system is capable of, with some cases resolved in a matter of hours and many within days of arrest.  And yet in the normal course of events the average time between an offence being committed and disposal of a case in a magistrates' court is 140 days.

Delays occur in a system that is set up for trials when the majority of cases end with a guilty plea.  A long, drawn-out process, with cases being passed back and forth between agencies, is neither effective nor proportionate.

There are various things we can do to make the entire system quicker and more efficient.

We can make better use of technology.  We are requiring the entire criminal justice system to make substantial progress on going digital by April next year.  We are extending the use of virtual courts, allowing defendants to appear in court from police or prison cells by video link.  And we are now promoting the use of live links to enable police officers to give evidence from police stations rather than having to hang around courts.  The early results from trials are encouraging, showing significant savings in police time.  I visited Kent Police two weeks ago to see the system in action, and the technology and potential use is impressive.

We can make the system more flexible.  We are already looking at the possibility of more flexible court sittings - a suggestion of the Magistrates' Association.  And again, we need to think about applying the lessons learnt from the response to the riots, where straightforward cases were identified and prepared more quickly.  We want to look at whether such a system of triage could be used routinely to fast-track cases.

Abolishing committals

We can also remove superfluous procedural requirements, making court processes as efficient as possible.  I can today announce that, in a significant step towards cutting out unnecessary court hearings, we will be abolishing committal proceedings for offences triable either way.  The phasing out of committals from April of next year will facilitate efforts to encourage defendants who intend to plead guilty to do so sooner.  It is in the interests of victims and witnesses, and of the criminal justice system generally.  And it signals this Government's determination to deliver reform.

IV. Transparency

Underpinning these reforms must be a move towards greater transparency and accountability.  Criminal justice is still viewed as remote by the public.  Public participation in policing is low, and in justice even lower.  Opening up the justice system is vital.  But it is not just about making information available.  In essence the transparency agenda is about returning power to communities, not just to hold the system to account, but also to become involved.  And with that involvement and return of power will come responsibility.

We have already released an unprecedented amount of information.  In January of this year we released street-level crime data on - and the site has had over 430 million hits - that's over 40 million visits - to date.  We have also published statistics on reoffending and sentencing outcomes.  In May of next year we will be releasing still more information on which will allow people to see not just the crimes that happened in their area but also police action and court outcomes.

This is not the limit of the transparency agenda: it is just the beginning. Public confidence relies on justice being seen to be done, and visible justice is one of our system's longest-standing principles.

V. The role of magistrates

It is impossible to rethink our approach to summary justice without also reflecting on the future of the magistracy itself.  What changes do we need to make to ensure that magistrates continue to play a pivotal role?

We do not want magistrates to be taken away from communities and for the role of magistrates to be undervalued.  We have, I believe, a really important opportunity here.  We ought to look again, positively, at how we could make this happen.

As I have said, we want to ensure that the out-of-court arena is far more transparent and accountable than is currently the case.  I believe that the magistracy has a vital role to play here.  I want to see, as has already happened in some police-force areas, magistrates given a supervisory role in overseeing how out-of-court sanctions are applied locally.  Your Association's policy committee has suggested that one way of doing this is the creation of multi-agency bodies, which would include magistrates, at police-force level to set the policy for the use of out-of-court disposals in the area, with a second tier of scrutiny at BCU level to monitor compliance with this policy.  I am very keen to think about how we put this into practice.  I would welcome your views today.

Elected Police and Crime Commissioners will also have an important role in holding the police to account, and they are bound to take a view about the use of out-of-court disposals.  The police must be operationally independent and the magistracy must be entirely independent.  So we need to think carefully about their respective roles.  But in any case, the public will have a greater voice and we can build a system which commands greater confidence.

I also think magistrates are ideally placed to sit on Neighbourhood Justice Panels.  As magistrates you have a unique insight into the criminal justice system and, on the Bench, often see the consequences of community problems that have been allowed to escalate.  I see no reason why magistrates could not be involved in Panels, provided you are not exercising a judicial function and there is proper guidance on how to deal with cases on the Bench which you may already have seen in a Panel.  Involving the magistracy will help us to ensure that the system of Neighbourhood Justice is connected to, not separate from, the delivery of summary justice.

But beyond these two areas, I want us to think more radically about what else magistrates could do outside the formal court, setting to help us achieve the swift and sure justice we seek.  I have mentioned one suggestion, informed by our experience of the riots, that magistrates could provide a triage function as soon as cases are charged.  But more than this, is there any reason why that magistrate, exercising a triage function and not necessarily sitting in a court, could not immediately sentence in certain non-contested cases?  This could be simple, swift and need not involve expensive lawyers.

Of course we must do nothing to undermine the integrity of our justice system.  When proposing any changes to the function of magistrates we must always keep the principles of judicial independence and the proper adminstration of justice in mind.  And we will work closely with you and the senior judiciary on the detail of any proposals.  We are not proposing an alternative to the formal criminal justice system, but a carefully guarded return of power and responsibility to communities to resolve less serious crimes quickly and rigorously.

VI. Conclusion

I am concerned that policy development over recent years has appeared to devalue or marginalise the role of magistrates.  That is what I seek to reverse.  I believe we should engage magistrates and harness your potential, returning you to a pivotal role in your communities. 

This should not be mistaken for an invitation to reverse court closures or return to old ways of doing business.  The numbers do not stack up to allow that.  What I am asking is that we look again at the system as a whole, not just buildings.  The economic situation and the falling caseload in magistrates' courts should be a spur to new thinking and innovation, not an unrealistic call for more spending on the existing system.  And we should keep the public interest, which includes the interests of victims, to the fore.

So this is an invitation to join me in thinking positively and progressively about the shape of summary justice tomorrow.  I want you to know - because I appreciate that it may not have seemed so - that the Government places enormous value on the magistracy.  Your institution is the epitome of the Big Society in action, well before the term was coined.  Our whole agenda is about localism, empowerment and responsibility - traits at the heart of the magistracy.  You give your time for the community in a way which is important and too often unrecognised and undervalued.  I agree with the late Lord Bingham's description of the lay magistracy as a "democratic jewel beyond price".  I want to reclaim summary justice for the community, with magistrates at the centre.  And I hope you will help me in this task.

Nick Herbert