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Smarter Justice, Safer Communities: Summary Justice Reform - Next Steps

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SMARTER JUSTICE, SAFER COMMUNITIES
SUMMARY JUSTICE REFORM - NEXT STEPS >>>

CHAPTER ONE
>>> INVESTING IN COMMUNITY INVOLVEMENT - THE FUTURE FOR LAY JUSTICE

1. KEY ISSUES - WHAT NEEDS TO BE ADDRESSED IN ORDER TO IMPROVE THE DELIVERY OF SUMMARY JUSTICE?

1.1 Our vision for the summary justice system is one which makes it clear that delivering justice is a partnership between professionals and communities. This is evident every day in our courts; without lay witnesses willing to take time and trouble to attend, many cases could not be brought to justice. We have already done a good deal to improve the support we offer to witnesses, recognising their importance. We now need to broaden that principle of partnership.

1.2 To improve summary justice we need the right system and framework. Much of this paper deals with getting the structures right, and that is important. But we also need to address the issue of who is best placed to deliver justice at each level of the system.

The views of the McInnes Committee

1.3 The remit of the McInnes Committee - which built on an earlier projected review of the district court - focused heavily on structural issues. The Committee was invited to review:

'...the provision of summary justice in Scotland, including the structures and procedures of the sheriff courts and district courts, as they related to summary business, and the inter-relationship between them ...'

1.4 The Committee therefore addressed the issue of whether all summary cases should be heard by professionally qualified judges, or whether summary cases should continue to be heard, as at present, by a mix of sheriffs, stipendiary magistrates and lay justices.

1.5 The report recommended that we should move to a wholly professionally qualified judiciary. It took this view on the basis that many of the most minor cases currently heard in summary courts could be handled outside of the courts. This meant that lay justices would only have a role if their jurisdiction was increased, and the majority of Committee members did not support such an increase.

1.6 The report therefore suggested replacing lay justices with a new type of professional judge, called a summary sheriff, in order to deal with summary business.

1.7 Two members of the McInnes Committee disagreed with the recommendations relating to lay justices and summary sheriffs, and published a note of dissent. This argued for the retention of lay justices, backed up by improved recruitment and training of justices.

1.8 The key issue to be addressed is, therefore, the question of whether lay people should continue to have a formal role as judges in the adult criminal justice system.

What we have heard

1.9 Our consultation paper asked respondents for their views on the McInnes report's proposals for lay involvement in the summary justice system.

1.10 In total, two-hundred-and-nineteen respondents commented on this issue. Of these, more than 90% disagreed with the recommendation to abolish the role of lay justices, and agreed instead with the note of dissent. Even discounting the one-hundred-and-twenty-nine responses which came from lay justices or lay justice groups - all but two of which supported the note of dissent - a clear majority of respondents still opposed the McInnes report's proposals for lay involvement in the summary system.

1.11 A common statement in the consultation responses was that the McInnes report did not provide enough evidence that the current system was not working, or that its proposed alternative would be significantly better, to justify the major change that was being recommended.

1.12 Many respondents believed that lay justices were a good example of community involvement in the justice system, and that the results of the public opinion polls cited in the McInnes report demonstrated that lay justices and the district courts retained the faith of the wider public.

1.13 A significant number of respondents also agreed with the view expressed in the note of dissent that the solution to any difficulties in the consistency or quality of lay justice was improved training and recruitment, rather than abolition. For example, the District Courts Association said that it would support changes to the selection process for lay justices which required all justices to be appointed following public advertisement and competitive interview against a nationally agreed set of criteria.

1.14 Those in favour of the abolition of lay justice - who included the Law Society of Scotland and the Association of Chief Police Officers in Scotland (ACPOS) - founded on the greater efficiency and effectiveness which combining court unification with professional judges would deliver.

1.15 In the public opinion research carried out in 2004 we explored the level of broader interest in formal community engagement in the justice system. One of the options offered was that of acting as a judge in court cases involving minor offences. Around 50% of those questioned initially thought that this role should be available to those who had been selected and trained. Interestingly, awareness that this role was already available appeared low.

1.16 In more detailed focus group discussions concerns were expressed about the amount of training which would be required and the time commitment involved. Fear of identification and retribution was also a factor, and only a quarter of survey respondents indicated that they would be interested in this role personally, although interest was highest among young people aged 25-34 (36%).

What we will do

1.17 We have considered the consultation responses on this issue very carefully. It is clear that there is a considerable weight of opinion which feels that the case for abolition of lay justice has not been made, values the contribution lay justices make to the Scottish criminal justice system, and feels that the way forward is to invest in the lay judiciary rather than abolishing it.

1.18 We are also conscious of similar support for continued lay involvement expressed through Phase 1 of the Children's Hearings consultation. And the Criminal Justice Plan, which we published last December, highlighted the importance of a system which is in touch with the needs and views of local communities and local people. We need to find ways of broadening that public engagement so that all sectors of the law abiding population feel that the justice system is 'on their side'.

1.19 Lay justices are a powerful expression of the partnership we seek between professionals and communities. An important element of our community engagement strategy is therefore to retain that role, to broaden access to it, and to invest in its delivery.

1.20 We have concluded that:

  • there continues to be a place for lay justices in Scotland;
  • while there may be scope to develop further roles for lay justices, we see a continuing role for them in dealing with trial business; and
  • there is a need to invest in the recruitment, training and appraisal of lay justices, and to review the way in which they are appointed, to enable them to meet the challenges set out in the Criminal Justice Plan.

1.21 In terms of publicising the opportunity to become a lay justice, it is clear from the public opinion work we have conducted that much needs to be done to raise awareness of the role of lay justices, and to underline that this is an opportunity which is open to many and does not involve becoming a professional or a full-time commitment. This will be a priority for us as we work with stakeholders to develop new proposals for recruitment.

1.22 We also thought carefully about the role of lay justices. While we support and will take forward the substance of the McInnes Committee's recommendations on alternatives to prosecution, we also see the need for caution in terms of reducing the capacity of the court system to handle cases. The modelling we have carried out suggests that the scope for taking cases out of court may be more limited than the Committee considered, and public opinion research indicates clearly that while the public is supportive of alternatives which give a 'second chance', they also see a need for persistent adult offenders to be dealt with in the court system. And there is little point in seeking to streamline the process of getting to court and to rationalise case handling if there is not sufficient court and judicial capacity to deal with cases once they are ready to be heard.

1.23 We therefore see a continuing role for lay justices in dealing with trial business.

1.24 And we are committed to invest in recruitment, training and appraisal. It is important to stress that the decision to retain lay justice is not simply a vote for 'business as usual'. To realise our vision in the Criminal Justice Plan we need skilled, proactive judges at every level. Support for lay justice was not unqualified, and even its strongest supporters recognised that the procedures for recruitment and training needed a major overhaul. We also feel it important to introduce a system of appraisal.

1.25 In essence, we seek a new 'contract' with lay justices. We will invest additional resources in the recruitment, training and appraisal of lay justices. In return, we expect all sitting lay justices to fulfil their responsibility to meet the sitting needs of their area, and to undergo training and appraisal to improve their effectiveness.

1.26 We do not intend to change the jurisdiction of lay justices now, though we intend to take flexible powers in legislation which would enable us to increase it in future. Any increase in lay justices' jurisdiction would allow them to hear some cases which are currently heard in the sheriff summary courts. As our policy in areas like sentence management develops, we will in parallel consider the scope to give new roles to lay justices in its delivery. But our short-term focus is to put in place a more effective system to support lay justices to deliver their current role to a consistently high standard.

1.27 The subsequent sections of this chapter therefore set out our current thinking about the recruitment, appointment, training and appraisal of lay justices. We are aware that these recommendations will need to be developed in partnership with many groups and individuals - especially those who are crucial to making the summary justice system work. Over the next few months we will be working very closely with key stakeholders to take our proposals forward.

Recruitment of lay justices

1.28 At present, each local authority area has a Justice of the Peace Advisory Committee (JPAC), chaired by the Lord Lieutenant, whose main task is to select and put forward to Ministers candidates for appointment as lay justices. The Committees are non-statutory, but guidance has been produced in order to make the process of appointing JPAC members compliant with the code of practice on public appointments.

1.29 At present, different JPACs use different methods in order to recruit lay justices. Several JPACs use very open recruitment processes and advertise JP vacancies to the public. Other areas rely primarily upon nominations from JPAC members.

1.30 We believe that lay justice vacancies in all parts of the country should in future be externally advertised. This meets a fundamental principle - that anybody who is interested in becoming a lay justice, and has the skills to do so, should get a fair chance to become one.

1.31 We hope that this will further broaden the range of people who become lay justices. At present, 36% of sitting lay justices are female, and approximately one third live in neighbourhoods which are in the 50% least affluent areas in Scotland. We do not have reliable figures for the proportion of sitting justices from ethnic minorities. Open recruitment procedures, by ensuring that everyone has a fair chance to become a JP, may succeed in further broadening the composition of the bench.

1.32 Of course the overarching principle that must govern the appointment of lay justices is that the best candidates for the post are appointed. Open and fair recruitment processes should also help to achieve this aim.

1.33 There are some common elements which distinguish the most transparent and rigorous selection processes currently used to appoint lay justices. These include:

  • public advertisement;
  • provision of detailed information to potential applicants, so that they know what being a lay justice entails; and
  • a formal interview process conducted according to set criteria.

1.34 We believe that these should, in future, be minimum requirements for recruiting lay justices. We will work with stakeholders over the coming months to develop them into a package which commands general acceptance.

1.35 We also need to revisit the process by which candidates for appointment as lay justices are submitted to Ministers. At present there is a JPAC for each district court area. In some large rural areas, notably Highland, there are also sub-committees which help the JPAC to select lay justices in their local area.

1.36 The current district court areas will no longer be the basis of management of court business once the system has been unified. This raises the question of whether JPACs should be maintained in their current form. It might make sense to reform the system of JPACs to take account of the new arrangements for running summary courts.

1.37 We propose that the sheriff principal in each sheriffdom would chair an advisory committee, which would also comprise some current lay justices and other members of the community.

1.38 The advisory committee would be able to nominate local sub-committees if it felt that these were necessary, but the advisory committee alone would be able to make nominations. There should be scope to build in detailed local knowledge, whether through those sub-committees or by inviting the local authorities within the sheriffdom to nominate representatives to the main committee.

1.39 While Scottish Ministers would continue to appoint JPs in the name of the Queen, we will discuss further with the Chair and members of the Judicial Appointments Board the scope for that Board to ratify advisory committee nominations before they are considered by Ministers. Local advisory committees might be formally constituted as sub-groups of the Board. This system would have the advantage of bringing the appointment of lay justices within the oversight of the Judicial Appointments Board, in common with other members of the Scottish judiciary.

1.40 Changes to the arrangements for JPACs would be phased to take place at the same time as court unification. In some parts of the country, therefore, advisory committees chaired by Lords Lieutenant will continue to serve district court areas for another four or five years.

Appointment of lay justices - fixed-term appointments

1.41 At present, once lay justices have been appointed they remain as full justices until they reach the age of 70. We believe that there is a strong case for adopting an approach similar to that which is in place for part-time sheriffs.

1.42 In future, lay justices should be appointed for a fixed term of five years. At the end of each five-year term, they should be eligible for reappointment until they reach the age of 70. This allows capable and experienced lay justices to carry on sitting until they are 70, but also provides an obvious and appropriate 'break point' every five years for any lay justices who are no longer able or willing to devote time to sitting on the bench. As is currently the case with part-time sheriffs, there should be a presumption that lay justices will be reappointed, unless one of a certain number of conditions applies. These would include a recommendation by the sheriff principal that the justice is not reappointed and, possibly, failing to sit for a minimum number of days during the previous five years.

1.43 On that last point, while we recognise the difficulty of setting a minimum number of days to apply across Scotland (because of differing demands in urban and rural areas) we are attracted to the idea that the principle of sitting regularly and of meeting the bench requirements should be set out formally. We will discuss this point further with stakeholders.

1.44 We propose to take power in the legislation to change the basis on which lay justices are appointed, from a date or dates to be fixed. From that date sitting justices who wished to remain on the bench would be reappointed for an initial five-year term.

Should we update the title 'Lay justice' to 'Community justice'?

1.45 We have considered whether we should change the title of our lay justices to reflect our desire to highlight their role as representatives of the community at the heart of the justice system. The current title, though historic, is perhaps not always as well understood as it might be, and may act as a barrier to recruitment from the full spectrum of society.

1.46 We would therefore welcome views on the merit of a new title for lay justices. One possibility would be the title 'community justice', reflecting the fact that lay justices embody the partnership between communities and the justice system which we seek. We would also welcome alternative suggestions. If change is supported, it might simply be implemented at the point of transition to the new appointments.

1.47 We will also consider giving different titles to sitting lay justices, who can hear trials, and signing lay justices, who cannot. At present, both are called justices of the peace, despite the fact that the role of a signing justice is much more limited.

Appointment of lay justices - commission areas

1.48 When the court system is unified, we will need to make legislative provision for commission areas for lay justices. We believe that in future, the commission areas for lay justices should be sheriffdoms, rather than local authority areas. This is in keeping with the administration of a unified court system. In addition, appointing justices to sheriffdoms will provide for some additional flexibility, when required, in the range of different courts at which each justice can sit. In practice, however, most lay justices will sit in courts within their local area.

Training

1.49 Steps have been taken in recent years, led by the District Courts Association, to improve the quality and consistency of lay justices' training by publishing materials which allow competence-based training to be undertaken.

1.50 Several consultation respondents said that there is a need to build on this work in order to improve training further. We agree with these respondents, and we therefore intend to invest in order to ensure that lay justices in all parts of the country are provided with a consistent and high standard of training. All lay justices in future will be trained and appraised according to nationally agreed competencies. We believe that all lay justices should complete introductory training before sitting on the bench.

1.51 The exact structure by which training will be delivered needs to be the subject of discussion with stakeholders. The new training structure needs to have agreement from those who must deliver the training, and credibility among those who must receive it.

1.52 One model would be to organise training for lay justices along similar lines to the training currently provided for children's panel members. This involves full time trainers who are based at four universities, and who provide intensive training for new recruits, as well as some refresher training for existing panel members. This model would of course be dependent on universities in different parts of the country being able to provide courses. We will also discuss with the Judicial Studies Board the scope for it to provide some training support, perhaps by the provision of training materials.

1.53 Whatever option is chosen for the delivery of training, it will require central organisation - possibly within the Executive - to commission and manage the national training programme.

1.54 We will work up proposals on training in partnership with stakeholders, and will also take into account the current and possible future roles of Justices' Committees.

Appraisal

1.55 We believe that investment in training and recruitment needs to be backed by a system for appraising lay justices.

1.56 In England, appraisal has been in place since 1998. Magistrates undertake a threshold appraisal between one year and eighteen months after being appointed and then undergo appraisals every three years after that. They also undertake threshold appraisals when taking on a different judicial role (e.g. on becoming a court chairman or sitting in a specialist jurisdiction).

1.57 The Judicial Studies Board in England has developed a competence framework for magistrates against which the appraisals take place. Appraisals are undertaken by other magistrates who have received special training. The main purpose of the appraisal scheme is to identify training and learning needs. If a magistrate does not demonstrate competence training needs are identified and training will be arranged. If the magistrate persistently fails to demonstrate competence following training and further appraisals s/he can be referred to the Lord Chancellor's Advisory Committee with a view to being removed from the magistracy.

1.58 We intend to introduce a similar system for lay justices in Scotland, although one which acknowledges the differences between the role of lay justices in the two countries (such as the fact that three person panels which are the norm in England are much less common in Scotland).

1.59 This new appraisal system would include the key elements of a threshold appraisal followed by further appraisals at regular intervals. Appraisals should identify development needs and, where appropriate, recommend further training. If a justice's performance continues to be unsatisfactory, the appraisal system should provide a way of addressing this.

1.60 We will develop detailed proposals on the appraisal system with stakeholders, taking into account the role of the justices committee.

Signing justices

1.61 We have also considered the future of signing justices. In practical terms signing justices fulfil a useful role. A wide range of documents prescribed in legislation require formal counter - signature by one of a limited number of specified individuals, and frequently the JP is the one who is most readily accessible and also the only one who is free.

1.62 We therefore intend to keep the role of the signing justice. At present local authorities may nominate up to one quarter of their serving councillors as signing justices. We see no reason in principle why they should not be entitled to nominate a larger proportion of councillors, provided that all nominees meet the normal criteria for being a justice of the peace (such as not having certain criminal convictions). We would welcome views as to whether greater flexibility in this area would be useful.

Timing of changes

1.63 It will make sense for many of these changes to take legislative effect in conjunction with the timetable for court unification. For example, the change of commission areas from district court areas to sheriffdoms, and the changes to JPACs, will be implemented in different parts of the country at different times, as each sheriffdom moves to a unified courts system.

1.64 Other elements of our plans do not need to wait for court unification to be completed, however. In particular, open advertising for JP vacancies, and competence-based training, should be implemented in all parts of the country as soon as is practical.

Lay Justice - Conclusions

  • We will retain lay justices to undertake court business with their current powers.
  • In future, sitting lay justices will be appointed for fixed terms of five years, which can be renewed until they reach the age of 70. As is the case with part time sheriffs, there will be a presumption that lay justices will be reappointed unless one of a certain number of circumstances applies. These circumstances will include a recommendation from the local sheriff principal that the justice is not reappointed, and may also include failing to sit for a minimum number of days during the previous five-year period.
  • We would welcome views as to whether lay justices who sit on the bench should be given a more modern title than 'justice of the peace' and whether a clearer distinction should be drawn in the public mind between sitting and signing justices.
  • We will improve and develop lay justice by investing in recruitment, training and appraisal.
  • Lay justices will be recruited by a rigorous and transparent process including public advertisement, the provision of full information for applicants, and a formal interview.
  • The current Justice of the Peace Advisory Committees (JPACs - organised by local authority area) will be replaced with a new JPAC for each sheriffdom, to be chaired by a sheriff principal and including representatives from active lay justices and the wider community; these new JPACs might be formally constituted as a sub group of the Judicial Appointments Board.
  • Training will be overhauled so that it is better and more consistent - and will be managed on a national basis.
  • Justices should be appraised regularly, according to transparent criteria, so that training and development needs can be identified and addressed.
  • We intend to retain signing justices, who carry out more limited duties than full justices. We would welcome views as to whether it would be useful for local authorities to be able to nominate a higher proportion of their councillors than the current maximum of one quarter as signing justices.

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Page updated: Thursday, March 24, 2005