Cindy Barnett

What cases most often come up before you?

The vast majority are criminal cases. Aside from family cases, the magistrates' civil jurisdiction covers very few areas, such as betting and gaming offences. For criminal cases the range is very wide and, even though our jurisdiction is often described as covering matters that are 'less serious', in practice, many are in fact 'serious', including offences involving violence, fraud and, in the youth courts, where magistrates can impose detention and training orders of up to two years, robbery.

Does the greater prominence of community sentencing reflect a change in magistrates' sentencing trends?

Reform and rehabilitation, plus reparation, are two of the stated purposes of sentencing, alongside punishment, reduction in crime and protection of the public. If a crime is so serious that prison is inevitable, we would impose custody; punishment and protection of the public are likely factors. Rehabilitation is not a reason to send anyone to prison; if that is the purpose of sentencing, a community penalty is a better fit. Non-custodial sentences are the most common. For indictable offences, community sentences account for 29 per cent of the total, fines 30 per cent, and custodial only 16 per cent. For all offences, custody accounts for 4 per cent (although these are the figures for 2004, the overall trends for 2005 show no substantial difference).

Has the rise in anti-social behaviour orders (ASBOs) affected the number of cases coming to magistrates?

This depends very much on the local circumstances; it varies from area to area. ASBOs are civil orders imposed by magistrates, but if they are breached, it is a criminal offence. Magistrates still see only a small number of ASBOs compared, for instance, with car crime. There is an argument to encourage greater intervention before an ASBO is applied for in court.

How do you see court-based and non-court-based fines operating together?

The issue of disposal outside court is tricky. The key distinction is between pre-court disposal and court-based penalties. Fixed penalties can be imposed pre-court for certain straightforward offences, including dropping litter, speeding, and dog fouling, but also more serious ones such as stealing from a shop or criminal damage. The difficulty is in where to draw the line between a low-threat offence where there is no need to go to court, and a serious one. Take theft, which is an either-way offence: there is a big difference between a child taking a sweet and a gang stealing whole racks of clothes from a shop. Both are 'theft', but using the name of the offence is not a valid measure of grading its seriousness.

Fixed penalties seem to have the favour of the public...

Public perception of more serious offences is very different. There have been occasions where cautions were given for threats to kill or sexual offences, but this doesn't resonate well with the public. If these cases come to court, there is judicial discretion as to how to deal with it. If a case involves violence, it means there is a victim, and the courts are the right place to assess the seriousness and the appropriate sentence. But cases are brought at the discretion of the police and prosecution. There is a lot of work going on with discussions between the police, the Crown Prosecution Service (CPS) and the judiciary as to where the line should be drawn, and people generally must also be confident about this. But we are worried about the wrong sort of incentive for people who are offered a fixed penalty. This does not mean an admission of guilt, and many people don't want to come to court.

Have you seen a rise in the number of offenders coming to court following the increase in the number of types of offences?

Not really '“ partly because there has been a rise in fixed penalties. In some areas, there has even been a marked drop of 30 per cent or more, covering offences like criminal damage, shoplifting and others such as throwing fireworks. There are problems over identifying repeat offenders. A fixed penalty will only come to court if the individual fails to pay the fine, so we are dealing with fine enforcement, not the original offence. Some of these fixed penalties are for recordable offences, and some aren't. There are also gaps in the system in which they are recorded: you should not have repeated fixed penalties, but the system doesn't always record this, so the police may not be aware of the fact when deciding whether to offer a pre-court fixed penalty or to take the case to court.

The vast majority are criminal cases. Aside from family cases, the magistrates' jurisdiction covers very few areas, such as betting and gaming offences. For criminal cases, the range is very wide, and even though our jurisdiction is technically limited to "non-serious" offences, in practice many are in fact "serious", including offences involving violence, fraud, youth crime, robbery '“ for which magistrates now have greater powers (imposing sentences of up to two years and detaining orders).

Does the greater prominence of community sentencing reflect a change in magistrates sentencing trends?

Rehabilitation and community penalties are two of the sentencing principles we follow, alongside custodial sentences. They are not alternatives to prison sentences. If someone ought to be given a rehabilitation sentence, it would not be right to send him to prison instead. Non-custodial sentences are the most common, with community sentences accounting for 29 per cent of the total, fines 30 per cent, and custodial only 16 per cent (although these are the figures for 2004, the overall trends for 2005 show no substantial difference).

Has the rise in anti-social behaviour orders (ASBOs) affected the amount of cases coming to magistrates?

This depends very much on the local circumstances; it varies from area to area. ASBOs are imposed by the High Court and would only come to magistrates if they have been breached, as a criminal offence. Magistrates still see much fewer of those than, say, car crime. There is an argument to encourage greater intervention before the case goes to court, particularly if the breach of the order is minor, such as being stopped in an area covered by the Order, but if the breach is serious, or repeated, then bringing the case to court may be the most appropriate option.

How do you see court-based and non-court-based fines operating together in the context of crime reduction policies?

The issue of disposal before trial is tricky. The key distinction is between pre-court and court-based penalties. There are six types of penalties which may be imposed pre-court, including dropping litter, speeding, and dog fouling, but also more serious ones such as stealing from a shop floor or disorder. The difficulty is in where to draw the line between a low-threat offence where there is no need to go to court, and a serious one. Take theft, which is an either-way offence: there is a big difference between a child taking a sweet and a gang stealing whole racks of clothes from a shop. Both are 'theft', but using the name of the offence is not a valid measure of grading the seriousness of the offence.

Fixed penalties seem to have the favour of the public...

Public perception may be very different from the realities of the administration of justice. There have been occasions where cautions were given for threats to kill or sexual offences but this doesn't resonate well with the public. If these cases come to court, then there is judicial discretion as to how to deal with it. If a case involves violence, it means there is a victim, and the courts are possibly best placed to assess the seriousness and the appropriate sentence. But cases are brought at the discretion of the police. There is a general understanding between the police, the Crown Prosecution Service (CPS) and the judiciary as to where the line should be drawn but more discussions should be had to update this understanding, including if necessary representatives of the public. But there must remain an incentive for people who don't want to come to court '“ and who arguably do not need to come to court - to take a fixed penalty instead without having to plead guilty.

Have you seen a rise in the number of offenders coming to court following the increase in the number of types of offences?

Not really - partly because there has been a rise in fixed penalties. In some areas, there has even been a marked drop of 30 per cent or more, such as minor offences like throwing fireworks. It doesn't mean that there aren't any problems. A fixed penalty will only come to court if the individual fails to pay the fine. Some of these fixed penalties are recordable, and some aren't, so there could be numerous penalties that go unacknowledged. There are also gaps in the system in which they are recorded: you can't have repeated fixed penalties, but the system doesn't record it when someone has, so the police may not be aware of the fact when deciding whether to offer a pre-court fixed penalty or to take the case to court.

The Lord Chancellor, Lord Falconer, pledged more support for magistrates, and you wrote to him last month about your fears about lack of funding. Has there been any response?

The Department of Constitutional Affairs run a Best Value Programme in 2005 asking us to send in ideas, and lots of strands have come out of it. A new streamlining process is being piloted in selected areas. Greater emphasis is placed on preparation by the police, the prosecution and magistrates working together ahead of court appearance to ascertain the plea and make all the necessary directions instead of holding separate time-consuming hearings.

It has also boosted morale, which was very low in some quarters, and the idea that magistrates are the backbone of community justice. We now have an active information programme, occasionally involving the Probation Board Association, where we go out to places such as schools, further education events, Rotary clubs and the like, and explain to people what we do and what community sentencing is all about. We received a response to our letter on 1 February highlighting the risks posed to the administration of justice by the lack of funding. It is an issue which we must discuss internally first.

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