14 November 2009
Birmingham Town Hall
Jack Straw has given a speech at the Magistrates' Association AGM on out of court disposals, court workloads, enforcing fines, and court closures.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:
Good afternoon.
It is a pleasure to be here, not least to speak in this beautifully restored Hall. History echoes around the room; it is where Elgar’s Dream of Gerontius and Mendelssohn’s Elijah were first performed. It is where Charles Dickens read from his books; and where practically every politician of note has spoken.
Let me begin by thanking all of you here (and the 29,000 magistrates you represent) for all the commitment, hard work and skill with which you fulfil your duties as voluntary and unpaid members of our judiciary.
You hear around 19 out of every 20 criminal cases. For many people before the courts you are the face of justice, hearing cases on which the safety and cohesion of our communities depend; serious anti-social behaviour, youth justice, the protection of children and family disputes.
You have contributed much to improve the justice system in recent years. Together we have worked to transform its culture to that of a service rather than an impersonal system; focusing its attention squarely upon the victims of crime; finding new ways of delivering justice swiftly and effectively.
Your role is now better known and understood through your engagement with initiatives like ‘You be the Judge’ and the Magistrates in the Community project. You have helped link up the different parts of the criminal justice system, especially through closer working with Youth Offending Teams and greater involvement in Partnerships and Communities Together (PACT).
I am grateful for the enthusiasm you have shown for the pilots on drug and mental health courts, using the authority of the court and its ability to bring together the different agencies to find better ways of tackling criminal behaviour and reducing reoffending.
At present you are preparing for the new Youth Rehabilitation Order [which comes into effect on 30 November] and will be key to its success; combining options which punish young people, but help them recognise the consequences of their actions and turn them away from a life of crime. The orders will allow you to sentence from a menu of options, which include unpaid work, tagging and curfew with support to tackle mental health, drug and alcohol problems.
I am pleased to be able to express my gratitude in person again today.
I am happy briefly to respond to reports about the number of legal advisers in magistrates’ courts. It is true that Her Majesty’s Courts Service has been looking at projected workload and numbers of staff. But no decisions have been made. HMCS will review staffing levels in the magistrates’ courts in consultation with unions to make sure we have the right number of people with the right skills for the courts’ workload. The history of the courts means it is likely there will be unexplained variations, which we will have to address. But we will make sure the resources are in place to support the court room.
In preparing for this conference I arranged to see a group of senior magistrates in Blackburn to discuss their concerns. I want to deal with some of the issues they raised, which I think are representative of wider concerns in your organisation. I am sure you will remind me of others when I take questions.
I want therefore to look at the role of out of court disposals; the workload in the magistrates’ courts and the Crown Court; the importance I attach to better enforcement of fines; and court closures.
Out of court disposals
First, out of court disposals.
As context, it is worth noting that the number of people actually being convicted at court has gone up by 10% since 1997, notwithstanding the fact that crime has fallen by a third and continues to fall. This does not suggest that we have sought to circumvent proper judicial process, nor have we. Nor has the development of out of court disposals been anything to do with the prison population.
Out of court disposals have been an accepted fact of life for as long as the courts and policing system have existed. Used properly, they are an effective, proportionate tool for tackling low level criminal behaviour. The difference is that today they are formal, visible and data on them are collected. In the past there were hundreds and hundreds of such disposals dealt with by the police only by informal, repeat cautions; no more than a firm word, and with no record of action taken. It was important to fill that gap, which is why I introduced Penalty Notices for Disorder in the 2001 Criminal Justice and Police Act.
I am however also clear that out of court disposals cannot and should not be an alternative to prosecution in court where that is the right way to proceed. PNDs, in particular, were designed to tackle low level disorder (hence the name). In two respects their use has been extended beyond this, to shop theft and possession of cannabis. But guidance to the police has been significantly tightened. PNDs should only be used to dispose of first offences for shoplifting of less than £100 and criminal damage, and as part of the scale of punishments for possession of cannabis. I have recently issued an instruction that the PND scheme will not be extended in any way for the foreseeable future.
I have also listened carefully to your concerns about the application of other out of court disposals – and I want to know whether they are being used inappropriately. The guidance on simple cautions [paragraph 3, Home Office Circular 16/2008] is very clear: ‘A simple caution should be used for low level offending. Only in exceptional circumstances should it be used to deal with more serious offences’. But the use of these disposals varies significantly between different police forces. I was also shocked to read of examples of serious offending, including serious violence and rape, being dealt with out of court. This is improper.
Alan Johnson and I have listened to the representations we received, not least from magistrates. That is why we announced earlier this week an urgent review of the use of out of court disposals, to be led by the Office of Criminal Justice Reform, and to involve the Inspectorates of Constabulary and the Crown Prosecution Service. A Bench Chair will be invited to participate in this review.
I have met no one who suggests that there should never in any circumstances be out of court disposals. I know of no jurisdiction in the world which is that mechanical. Policing in our system involves placing a high level of individual discretion and judgement in the hands of police officers on the street. The review will take account of this reality, and look at both the appropriateness in principle of the specific disposals available and, crucially, at how they are operated in practice – how these disposals are used by police forces across the country, and the compliance of the police and the Crown Prosecution Service with existing legislation and guidance.
Court workloads
Let me turn now to concerns about workload. Numbers of cases in the magistrates’ courts have fallen. The last published data showed that 900,000 defendants were proceeded against in the first half of 2009 – 9% fewer than in the first half of 2008. But, at the same time, the Crown Court’s workload has risen by almost the same proportion, though obviously by smaller numbers. In the first half of 2009, the number of cases sent or committed for Crown Court trial increased by 8%, compared to the first half of 2008, to 46,900.
What accounts for this?
The picture is complicated.
We have had real success in tackling the most serious crimes, leading to a greater number of criminal trials coming before the Crown Court and taking off the streets some of the most prolific criminals. This has delivered results. Crime is down by over a third since 1997. Violent crime has fallen by over 40% [according to the British Crime Survey]. And 70% more serious and violent offenders are being locked up and for longer.
Additional time and space have been created by the success of Criminal Justice: Simple, Speedy, Summary (CJSSS), speeding up the progress of cases from charge to disposal by 20% and drastically reducing the need for adjournments. In part your lighter workload stems from better, more efficient and effective court processes.
Even apart from the benefits of CJSSS, defendants know that magistrates dispatch cases far more quickly than the Crown Court. And some business, such as hearing licensing applications at first instance, is no longer dealt with by magistrates.
The current reduced workload in the magistrates’ courts might also be down to differences in means tests for legal aid. Legal aid is means tested in the magistrates’ courts, but will not be means tested in the Crown Court until the New Year. It will be interesting to see what difference it makes.
But there is a further issue I want to ask you to consider.
As I have explained, the number of cases going to the Crown Court has increased. But we also know that magistrates are declining jurisdiction to hear trials in more either way cases than three or four years ago; Crown Prosecution Service figures indicate around 6,000 a year. In 2007 around 59,000 defendants were sentenced in either way cases in the Crown Court, of which 20,000 could, on the face of it, have been dealt with by magistrates. I have heard that magistrates are bound to take the upper end of the prosecution’s view of where a case might be heard as a result of the defendant’s election.
But let me give you an example. The Sentencing Advisory Panel has found that in 2006 found that 80% of fines for theft offences in the Crown Court were for less than £200 and 59% of these were for less than £50. Some of those cases may have merited the attention of a Crown Court judge because of prevalence or reputation. But at the same time, the levels of fines suggest that some could have been dealt with just as effectively as magistrates.
This is, of course, a matter of judicial discretion. You will want to take into account a whole range of factors in determining where a case will be best heard. But I think it is, at the very least, worth asking yourselves the question: are the matters at issue so serious that a Crown Court trial is necessary? Or would it be better – for victim, witness, defendant and public confidence – to dispose of the case more quickly in the magistrates’ court? If you find your powers to sentence a defendant are not sufficient, you are able to refer a case to the Crown Court for sentencing.
I believe there is a strong case for magistrates being more confident in retaining jurisdiction. Just as you have grasped the nettle of court efficiencies under CJSSS, I now want to encourage you to use the full extent of your powers in either way cases, where appropriate, rather than referring them to the Crown Court.
Fine enforcement
This brings me to my next point – the role of magistrates in enforcing fines. It is self-evident that unpaid fines are not good for the justice system, either for the law-abiding majority, who do not see justice done, or for offenders, who think they can get away with their offences.
There have been considerable improvements, but we have a long way to go. I recognise that the quality of the data has made it difficult to get an accurate picture of what has been going on. We are working with all prosecutors and the courts to improve its quality. In particular, we plan to separate fines’ income from a court sentence and from PNDs. We are not going to get the rate of collection of PND penalties up if we do not even know what proportion has been collected.
But many magistrates I talk to accept – or even volunteer – that courts are still not being rigorous enough in enforcing fines. I know that effort has gone into improving this. The Courts Service is taking action and we are working closely with areas furthest from the national target. I have discussed this with the Senior Presiding Judge, who will be writing to the judiciary to underline their responsibilities. But I also want to ask for your support.
In particular, we need to improve the rate of early payment and compliance for the cases disposed of with a fine. The guidelines are clear that fines should be paid on the day on which they are imposed or shortly thereafter. If defendants are at the court full or part payment should be made on the day; in Surrey and Sussex the bench demands payment forthwith from all sentenced in person and the court takes receipt of 50% there and then. But my own discussions with magistrates suggest that this is not the case in many courts at present. We need to be more aggressive about this, to maintain confidence in the justice system and because, if a fine is not paid on the day of sentencing, costs are incurred in seeking payment. The longer a fine goes unpaid, the greater the risk of default. And we are left with the bureaucratic absurdity of the cost of collecting a fine being higher than the fine itself.
The courts estate
Finally, I want to talk about the courts estate. I am acutely conscious of my own responsibility for making sure I use public funds as efficiently as I can, especially at a time when departments’ budgets are being squeezed.
Let me explain the issue. The Ministry of Justice owns the largest estate of anyone across government (in terms of building numbers), which we inherited piecemeal from our predecessor departments. As a matter of course we should only own and use what we need. But the pressures upon the public purse make this a compelling priority.
The courts estate is no different. I am well aware that I said last year that I had no plans to close courts. That was correct at the time. But the environment has changed considerably since then.
Until 2005 local committees ran the magistrates’ courts. Many closed a large number of courts – and the rate has slowed down. Between 1979 and 1997 an estimated 171 magistrates courts were closed: from 1997, the figure has been 125. Moreover, courts were closed in a piecemeal way, meaning we have inherited an estate determined by historical accident and not by any wider strategy to meet needs effectively and efficiently.
So we need to think carefully about whether the estate allows us to provide the service we want. As things stand, it does not. I want to see proper facilities for victims, witnesses and disabled users. That compels me to look even harder for better value for money and to remove duplication and inefficiency and locate courts in the longer term where they need to be rather than where they have always been.
Some of these proposals are built on the recommendations of the Local Justice Issues Group, which recognised that it is not sensible to sit at a number of the locations on which we are consulting. Some relate to courts which have not had a single case listed for years and where it is not sensible to upgrade buildings when equivalent services can be provided at nearby courts.
This is the context for our current consultation on closing 21 underused and inadequate courts and our discussion document on magistrates’ courts in London.
Many of you will run your own businesses. You would not countenance paying for buildings which drain your resources but add little value to your work.
I too must make choices about how best to use limited resources. They are not mine, but the taxpayers’, the public’s. I would be foolish in the extreme to pay to mothball outmoded buildings which will not be used again.
This is a matter of common sense. Budget pressures are painful. But they give us the chance to focus on what we really need to do and how we want to do it. We have a real opportunity here to change our estate and the services we provide for the better. So I look forward to hearing your views on how we can do so.
Conclusion
In conclusion, I want to reiterate my thanks and gratitude to you. You are the backbone of the justice system and the public face of the courts. You have shown your willingness to embrace change and have seen the benefits this has brought. I am glad to have had this opportunity to explain our thinking on some of these issues and to encourage you to use the full extent of your powers.
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