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