Magistrates’ power to impose sentences of up to one year has been reversed after less than 12 months (‘Magistrates “incredibly disappointed” as sentencing powers scaled back’, Guardian, 10 March 2023). There was a certain level of schadenfreude in the legal profession; the plans had long been criticised by virtually all defence practitioners and their respective bodies. I stand by that criticism. The Criminal Bar Association had said that it would increase the number of short sentences and put pressure on prison places. This proved to be well founded.

However, the level of glee some have shown about the reversal has led me to think more fundamentally about the state of the criminal courts. The accepted wisdom was that magistrates have insufficient expertise to deal with a defendant who could get a prison sentence of up to 12 months. However, even with a six-month limit, the vast majority of cases are dealt with in the lower courts.

The aforementioned criticism seems to carry the implication that justice is ill served in the magistrates’ court. If that is the case, then surely we need to be looking at the underlying issues rather than where the arbitrary line should be drawn at which a case is sentenced in the Crown Court? After all, the vast majority of cases take place, and stay, in the magistrates’ court (Court statistics for England and Wales, House of Commons Library Research Briefing No CBP 8372, 31 January 2023, page 8). Moving away from sentencing to trials, it is striking that, in 2021, 93,322 trials took place in the magistrates’ court while 21,905 took place in the Crown Court.

Let me be absolutely clear: jury trials remain the fairest way to deal with defendants. The basic principle that guilt or innocence is determined by one’s peers remains the gold standard, and we should guard that right zealously. However, keeping that legacy does not mean that we should be disdainful of what happens in the magistrates’ court, which is how some of the commentary on the change and reversal came across.

There are, of course, problems in the lower courts. The pressure of time and volume of defendants means that, on occasion, there is not proper consideration being given to cases. Often, though, that comes from a target culture imposed by the Ministry of Justice (MoJ) with woefully inadequate funding to be able to cope. The term ‘summary justice’ should mean both words play their parts; however, ‘summary’, which signifies a level of speed and efficiency, seems to be the primary focus of the MoJ, with ‘justice’ too often forgotten.

Despite the circumstances that they are dealt, there are many district judges who do show fairness, are willing to listen to arguments and weigh up matters carefully. For example, in the case of Ziegler, where the offence of obstruction of the highway made it all the way to the Supreme Court (Director of Public Prosecutions v Ziegler and others [2021] UKSC 23), District Judge Hamilton’s reasoning and factual finding were scrutinised in detail. The Supreme Court agreed that the judge had dealt with the matter properly, and there are many examples in the lower courts where legal arguments are now being properly considered.

I do, though, have some concern about lay magistrates. While the tradition and the principle of the connection to the local community are to be applauded, the quality of justice is much patchier. (I may be slightly jaded by a recent case where the lay magistrates tried to impose a sentence for an offence for which they had acquitted.) The lay magistracy appears to remain overwhelmingly white, middle class and middle-aged, with little or no connection to the people we represent in its courts. Perhaps, just perhaps, its time has run its course.

Whatever the faults of the magistrates’ court system are, though (and they remain, even with my comments above), my main point is that you simply cannot look after the minority of cases that take place in the Crown Court and wash your hands of the vast majority of them that take place in the magistrates’ court. It is not enough simply to draw the line and hope that jurisdiction or sentencing power are not increased (although I share those hopes). We have to go further and make sure justice is being served in the magistrates’ court to begin with.