Read Emily Duggan and weep that these courts were also to hear most of the cases that now went before juries, but with no automatic right of appeal to the Crown Court, a right that the Magistrates’ Association had submitted to the Law Commission should be retained:
It was early afternoon at Medway magistrates’ court last Wednesday when it became clear that many of the people in police custody overnight would not be making it into the dock.
“I’m afraid it’s absolute chaos today,” District Judge Stephen Leake told the lawyers gathered in court one, some of whom were still uncertain where their clients were being held.
A shortage of court cells for the 39 people held by police overnight in north Kent meant many of the cases on the morning list had still not made it in. Others were redirected with no notice or produced on video link from cells beneath other courts miles away.
Proposals drastically reduce jury trials by David Lammy, the justice secretary, would pile thousands more cases on to the magistrates’ courts in England and Wales to reduce the pressure on the crown courts, where more serious cases are heard. Those working in them say it is unclear how these courts will be able to take on more work.
Magistrates will be given the power to pass sentences of up to 18 months — and possibly even two years — so they can take on more serious cases from crown courts. Judges sitting alone in crown court would also replace juries in cases with sentences of up to three years.
The backlog of cases waiting to be heard in crown courts is set to reach 80,000 and trials are being listed as late as 2030.
But the well-documented inefficiencies in the crown courts are just as evident in magistrates’ courts, which have their own record backlog of 361,000 after almost two decades of budget cuts and the pandemic.
Between 2010 and 2019 more than half of all magistrates’ court buildings in England and Wales were sold off to fund digital reforms: 164 closed their doors. In Kent this included Dover, Tunbridge Wells, Dartford and Sittingbourne, which is now a Wetherspoons pub called The Golden Hope.
Hope was in short supply in Medway’s cramped advocates’ room. Sara Haroon, a barrister, said: “I went to Sevenoaks court this morning expecting my client to be produced, only to be told he was being taken to Maidstone magistrates’ court cells and beamed here for the hearing.”
Later that day, when the client appeared on video link accused of aggravated burglary, the whole courtroom had to be emptied when he asked to speak to his lawyer. Being in a cell half an hour away meant swift, whispered questions were not an option.
Those not remanded in prison for their first hearings had other practical problems. The door to the dock where they needed to stand was supposed to be unlocked remotely from a button on the clerk’s desk, but mostly refused to budge. “Just listen for the click” she kept repeating to nervous defendants. Eventually, she gave up and ran over with a key.
Under-investment in the building was apparent elsewhere, from the graffiti-covered lavatories to the long-closed canteen.
At 3pm, a junior barrister who had travelled from the opposite end of London to represent two men charged overnight with serious drug offences still had no idea whether his cases, listed for 10am, were going to be heard.
Judge Leake told him: “I don’t even know that the two you’re down to do are here or at the police station or if we’re doing them or not.”
By the time it became certain the defendants were being held in police custody for another night it was the end of the working day. It meant the barrister had spent £30 on travel for a day’s work and would not be paid for attending court because no hearing took place.
One of the fastest ways to clear the backlog would be for fewer cases to come to court. Police use of out-of-court resolutions, such as cautions, penalty notices and community resolutions, has decreased by 35 per cent over the past ten years, according to Sir Brian Leveson, who is conducting a review of the criminal courts. He has suggested these be considered in all appropriate cases, including those already in the system.
Anne-Marie Bodle had waited all day to plead guilty to being drunk and disorderly in a public place after getting in an argument, shouting in the street and smashing some bottles in September.
It was a first offence and the judge was baffled as to why it was taking up court time. Leake said: “It’s not entirely clear why someone who’s never been in trouble at the age of 48 couldn’t have been dealt with by way of a caution.”
There are also concerns about the fairness of plans to take more serious cases away from juries and put them into the hands of magistrates and district judges. Lawyers and researchers — including Lammy himself in his 2017 review of race in the justice system — say case-hardened magistrates or judges take a different view to a jury of peers looking at facts afresh.
Adekunle Salami was convicted last year at Medway magistrates’ court for failure to provide a specimen of breath. The 48-year-old security guard’s conviction was due to be reconsidered at an appeal at Maidstone magistrates’ court last Wednesday morning.
Salami was in a minor accident in Gillingham, Kent, on a summer’s evening in June 2022 and asked by police to blow into a breathalyser. He suffers from asthma exacerbated by hepatitis, and hay fever was making his chest tighter. Every time he blew, it was not enough to get a reading on police machines.
He said: “I really wanted to provide a specimen … I offered the officer a blood sample and he said, ‘I don’t have time for that’.” Instead, he was charged with failure to provide a sample of breath.
Two years later, Salami was found guilty in a brief trial at Medway magistrates’ court. He provided medical evidence of his health conditions but the magistrates said they would not consider it because it was served late.
It is well established that those whose lung capacity is affected by asthma and other respiratory conditions are unable to blow hard enough for breath machines. But, as the magistrates are likely to have known, minor asthma is also used as an excuse for not blowing hard enough by those stopped when intoxicated.
An automatic right of appeal has been seen as a protective factor, acknowledging three volunteers are not equivalent to a judge and jury. But in addition to pushing more serious cases to magistrates, the government is planning to remove this right. The system will replicate the crown court, where appeals are granted only on points of law.
Penelope Gibbs, director of the Transform Justice charity, said: “Too often rough justice is meted out in the magistrates’ court due to defendants who appear without a lawyer and don’t understand the process, defence lawyers who have insufficient time to prepare and inappropriate sentences meted out. As it is, very few appeal against their sentence or conviction since they don’t know how.
“If the government makes defendants make a legal argument as to why they should appeal, the number of appeals will dwindle further. Miscarriages of justice from the magistrates’ court will seldom be overturned.”
Although Salami’s case carried only a 40-month driving disqualification and would not be considered by a crown court, his barrister, Rob Bullock, suggested it was indicative of the difference in the quality of justice offered by magistrates. “The evidence that we submitted, albeit late, wasn’t taken into consideration. If it happened in the crown court they would’ve given an adjournment.”
He was so incensed he prepared the appeal pro bono. But by 11am on Wednesday it became clear it would not be happening. Despite the prosecution being notified of the date in August, the police officer who had taken the breath test was only told a week before the case, already had annual leave booked, and did not turn up.
A Yoruba interpreter was requested in August but none had been booked. The problem is not an isolated one. Last year, it stopped more than 700 magistrate trials, up 46 per cent in five years.
With two important absences the case had to be adjourned. The next hearing in March — almost four years after the incident — will only be administrative to ensure that everyone can be present at a future appeal date.
For Salami, who has two children and a wife to support, the delay was catastrophic.
Walking out of court with tears streaming down his cheeks, he said he had already spent £8,000 to be represented at various hearings. “Christmas is coming and we can’t enjoy it because of all I’ve paid. I don’t want to wait another year.
“I pursued this case because I was not under the influence of alcohol,” he said. “It’s very unfair … I feel there’s another way.”
An expert witness who was acting pro bono, and had travelled from his Northumberland home the day before the hearing because a video link was not agreed, was also unimpressed. Kevin Corbett, a clinical researcher, said: “I drove through 90mph storms yesterday. Why couldn’t a live link be made when it was requested by the solicitor months ago? We live in the 21st century but the reality is it’s archaic.”
The Crown Prosecution Service said: “We acknowledge there was an administrative error that meant the police officer was not properly informed of when he was needed in court, which contributed to the judge’s decision to adjourn Mr Salami’s appeal. We recognise delays can have significant impacts on victims, witnesses and defendants and are determined to ensure cases get through the courts as swiftly and efficiently as possible.”
Another problem Lammy identified in his review was that juries acted as “a filter for prejudice”. Harpal Virdee, a Kent solicitor, said the pool of magistrates was limited as volunteering during the working day was not possible for most people. “Magistrates are volunteering to give up days of their life and they can afford to do that. That’s not the average person,” he said.
Last year fewer than 5,000 magistrates’ appeals were heard, out of a caseload of more than 1.4 million. Of these, half were appealing against the verdict and the remainder the sentence. The rate of success is suggestive of poor decision-making. More than 40 per cent of appeals against verdict are successful and 47 per cent of appeals against sentence are successful.
The Ministry of Justice said: “The Magistrates’ Association has backed our reforms, recognising that they are essential to delivering faster justice for victims. Since the Lammy review eight years ago, we’ve made significant strides in improving diversity, and our nationwide recruitment drive ensures magistrates truly reflect the communities they serve.
“These bold changes — alongside record sitting days and over £450 million invested annually in our courts estate — will reduce delays and put victims at the heart of the justice system.”