Tuesday, January 06, 2015

No Praise For Appraisal

The Law Gazette carries this piece about the quality of magistrates' training.

It's a complex subject, because furnished as we are with  a qualified barrister or solicitor as legal adviser, we only need to know the basic principles of law and procedure. Appraisals take place every three years (my next one is in February) and are carried out by an approved fellow magistrate. Unfortunately, the legal adviser was removed from the process some years ago, to save money.

Appraisals must be frank and honest, not always an easy task when the subject is someone you have known for a decade.

As for routine training, it has withered over the years, and only a token amount takes place, usually on new appointees and new chairmen. There ought to be more, and the appraisals should be tougher, but it's the money, you see,


  1. An interesting enough article and much there that I'd agree with.

    Also very interesting is the comments posted by readers who I presume are lawyers. There are 5 comments posted and they are all contemptuous of magistrates. Of course 5 negative opinions can hardly be said to be the representative view of the profession, and some of the criticism seems to be based on the fact the fact that the bench had the temerity to disagree with their particular argument.

    I fear that there are many lawyers who would share the dismissive and ill-considered views expressed and of course there is no mention of what alternative they would like to see (other than one comment that cases should be heard by a judge and jury). Just as well we have unlimited resources then, isn't it?

    How fortunate we are that there are no incompetent, egotistic or rude lawyers.

    1. I though the comments - all based on historic perceptions and memories - were particularly embarrassing for the Law Gazette, who one might have expected to have a more discriminating readership.

      They bore no resemblance to any Court I know.

  2. Let's face it the whole system is going down the pan. There is chronic understaffing whilst the law gets ever more complicated. The CPS can't run a bus never mind most trials. Trying to get a decision out of anyone these days is alomost impossible.

    I have a feeling that the whole court system is in line for a massive shake up, never mind who wins the next election and I cannot see anymore resource being made available for magistrates.

    Therefore, alas it is turning into a thankless task rather than an satisfying experience.

    1. If the CPS can't run a trial, why are there so many convictions?

      Ironic in the context of the comment above bemoaning 'dismissive and ill-considered views' towards justices.

      No one in the system is perfect, and we should all look to our own performance in these straitened times.

      Basso SLX

  3. Having worked in the real world for many years, and seen proper appraisals, my view of ours as magistrates is that they are very poor, but possibly slightly better than nothing. I have been asked a number of times to be an appraiser but will not do so under the present system.

    I sit in court more often than many and have as high a regard for some colleagues as I have a poor regard for others but I would not be allowed to air those views whilst doing an appraisal as it must be done only on what is seen on the day, but an appraisee can have a great day, or a bad day.

    Taking one or two points in the piece referred to:-

    “The research, based on interviews with magistrates, lawyers and court staff, as well as a survey of 47 sitting magistrates, found a difference of opinion on the strengths of the magistracy.” 47, out of 20,000 plus!!!!!!

    “Magistrates themselves suggest that they were broadly happy with the training they receive, though some would like more. But practitioners, experts and lawyers were critical of magistrates’ lack of skills and knowledge.” Given that we are never actually tested how can these ‘experts’ and lawyers, many of whom themselves are pretty useless, be so sure there is a lack of skills and understanding?

    “The report said the magistracy today is less representative of the population in terms of age and ethnicity than it was 25 years ago.” That may be so, but nobody can reasonably blame the magistracy for this.

    “The amount of free training offered has also reduced, with those magistrates who do go to conferences or seminars rarely reimbursed for their fees or expenses.” I have never had any such requested expenses, refused.

    “Magistrates should visit lawyers in the community and prisons and should be jointly trained more with district judges.” As far as I know prison visits are still compulsory for new magistrates. Meetings between magistrates and lawyers sound potentially dodgy to me. We need to be completely independent, and how would we avoid the useless lawyers? I agree with joint training with DJ’s. Their powers and ours are the same so why not train together?

  4. Sadly the views expressed in the Gazette is typical of many of my fellow lawyers who still think that female JPs wear hats and gloves!! You would be amazed at how many don't even know that qualified lawyers can apply to be JPs.

    Having said that, I sit on the local Advisory Committee and have interviewed many lawyers who frankly are rubbish. It is always easy to criticise from a position of ignorance and lawyers are particularly good at that! Yes of course there are some poor JPs and yes of course the training and appraisal system has suffered under recent cuts, but at least we get appraised which is more than can be said for the DJ's for whom appraisal is I understand somewhat voluntary and some of whom also leave much to be desired.

    1. Thank you for your contribution which, since you're both a lawyer and a JP, is of particular value. We all know poor magistrates but we all know very good ones too. The breed of JP that was alluded to in the Law Gazette comments are disappearing. They are being replaced by far more switched on individuals although of course recruiting is but a fraction of what it used to be.

      I remain convinced that there is something deep in the psyche of many lawyers that resents the involvement of the laity in their professional world.

  5. What makes a successful appraisals system?

    When thinking how to conduct an effective appraisal, keep in mind the following:

    Ensure all stakeholders in the employment of JPs are fully committed to the whole idea of appraisals.
    Monitor the scheme effectively.
    Provide training to those carrying out appraisals to ensure that they are fair.
    Keep the whole process straightforward.
    Consult with all stakeholders prior to the introduction of the appraisal system.

    Conducting the appraisal

    The golden rules for the conduct of the actual appraisal should be:

    Everything should be shown and shared (negative and positive).
    The final report should be finalised in conjunction with the appraisee and he/she should sign off on it.
    The person being appraised should make a large contribution, and therefore buy into, the appraisal.
    To ensure the whole process does not stagnate over time, there should also be a regular confidential survey to find out what people actually think of the current process, as it exists.

  6. The lawyers, in the guise of the GMC, are certainly pervading and enforcing appraisal in the medical profession. But as I understand it, JPs get no feedback or outcomes from their decisions. Appraising someone for their decision making on a particular day, while failing to measure the success or failure of those decisions, is a bit like scoring artistic style in launching a shot put without bothering to measure how far it goes.

    1. The decisions made are the decisions of the bench and not a single magistrate.

      An individual magistrate is appraised on their contribution to the decision making process, their understanding, communication and a number of other criteria, These things are assessed on the day through observation.

      I would suggest that it is impossible to measure the success or failure of a decision in a majority of matters. What criteria would you set? What aspects of an outcome would you regard as a success or failure? How do you prove a negative - someone doesn't re-offend for 12 months so is that as a result of decisions made by the bench or some other factor(s)?

      There is no doubt that the current system could be improved, for example I would like to see the re-introduction of a legal adviser in the process. To my mind being signed-off by an LA (as well as another magistrate) would engender a greater sense of professionalism.

    2. If it is impossible to assess whether a decision results in success, failure, or (I suppose) something in between, then why bother making a decision at all ? Might as well just let the cops and the CPS dish out maximum punishments to all, unfettered by pesky, time-consuming trials, mitigation, probation service reports, and guidelines. The good side of that would be hat the Daily Mail would love it.

  7. This may not be what you mean Tony but of course the main 'feedback' that JPs can receive is when or if their decisions are appealed to the Crown Court!!

    Now I don't have the exact stats to hand but if I recall some little while ago, an analysis was conducted of the success or otherwise of appeals and it was interesting to note that far more DJ (Mags Ct) decisions were overturned at the Crown Court than those of 'lay' benches, and in any event, the numbers of appeals were tiny in comparison to the numbers of cases going through the Mags Court each day. So, we must be doing something right eh? :-)

    1. Even that wouldn't prove much as the way material is presented on appeal may be different from that at trial or mitigation.

    2. Or the defendants had no reason to appeal JPs' decisions because they got off extremely lightly?

    3. That's true although there is a mechanism for the Crown to, in effect, appeal decisions which they think are inappropriate or unlawful. It isn't used often though as it can be quite onerous.

      The range of sentencing for magistrates is pretty limited really so it's unlikely that a bench would impose an outrageously lenient sentence. Disproportionately severe sentence are dealt with by way of appeal.

      Where magistrates deviate from the guidelines for an offence, they are required to give reasons. I'd be surprised if that happened often. Who would be in a position to decide whether a sentence was too lenient other than the prosecution?

      What would constitute an unduly lenient sentence in your view?

    4. "Even that wouldn't prove much as the way material is presented on appeal may be different from that at trial or mitigation."

      Yes it might but I sit quite often on appeals and am all too frequently as appalled by the lamentable presentation by both defence and prosecution as I am at what I see in my own court. I was there recently and whilst chatting to the judge I was bemoaning the lack of papers, despite the electronic system, the lack of disclosure often more than once despite our court directions and his reply was "What makes you think it's any better here?"

    5. I agree. Overall I'd say the process in crown court, from an appeals perspective is slower and less well-managed than in magistrates court. Barristers have seldom impressed and I haven't seen any who were better advocates than the better solicitors in magistrates court. In fact, in most of the appeals I have heard the advocates have been very poorly prepared indeed.

      I have seen some spectacularly good case management from circuit judges but it is the exception and I have had far more of my time wasted at the crown court than in magistrates court.

  8. My last two appraisals have been cross-bench i.e. conducted by complete strangers from a different bench entirely. In addition, many (it should be most or all) sittings involve the Bench and legal advisor reviewing how the sitting went and considering any lessons or areas to improve.

    There will always be room for improvement with any process but at least the appraisal system exists. I have yet to have an appraisal or give one where I did not learn something from the experience. Removing the Legal Advisor from this process was a very retrograde move.

    I used to carry out appraisals however it became a something of a burden and I seemed to spend half my sittings appraising magistrates, which was not why I joined the bench. Like everything else these days concerned with the magistracy it is yet another thankless task carried out by members of the community for the benefit of the community on a voluntary basis.

    The decision as to whether a magistrate needs retraining or not is made by the Bench Training and Development Committee, not the appraiser so if magistrates are being permitted to continue when not competent, the buck stops there in my opinion. They are of course reliant on the report from the appraisal process. I can’t think of a better way to do this work.

    Voluntary does not mean unprofessional as far as I can see. Most magistrates take their work very seriously. Although a few lawyers may bitch about their experiences in court - which they are perfectly welcome to raise with the Bench Chairman (as opposed to the Court Chairman) - many of them ought to shine that light on their own performance in court: there are many very good advocates in magistrates courts, but there are a number of rude, arrogant, ill-prepared, lazy and ineffective lawyers too - and they are paid to do it. It’s very easy to take a pop at magistrates without examining one’s own performance isn't it?

    As mentioned, District Judges are not subject to appraisal or feedback unless they ask for it - so how do they develop or do they simply arrive in perfect form ab ovo?

    In addition, magistrates are not consulted in the appraisal of Legal Advisors - not to ask the primary stakeholder for input into this process doesn't seem right to me.

    I know for a fact that a number of magistrates on my bench have been subject to retraining or have been removed from chairmanship as a result of the appraisal process so it definitely does have an effect. On the other hand, I have seen very few magistrates in recent years who required more than constructive advice.

  9. I'm not sure it is correct to say that all legal advisers are qualified solicitors or barristers. I was chatting to one legal advisor recently who told me she had completed the academic stage of training and been Called to the Bar but had never taken pupillage and thus was unable to practise law as either a solicitor or barrister!

    Additionally, although many are qualified most that I have met have little or no experience in conducting a criminal case themselves and their interpretations of the law can be interesting at best, e.g. I had one legal adviser tell her bench that special reasons could never prevent somebody being banned from driving. Another recently advised his bench on the law - I pointed out he was completely wrong and provided cases to back me up. He then felt it appropriate to provide the bench with an on the spot interpretation of one of the cases I had mentioned despite his never having read it (or heard of it until 5 seconds earlier).

  10. I know that the former City of Manchester Magistrates' Court operated an appraisal system which involved a Magistrate appraiser and the legal adviser. This helped to get the law right in any discussion after the appraisal session. The system at Manchester appeared to be well accepted within that bench. However, it was not adopted across Greater Manchester as a whole.

    I think that appraisal ought to concentrate on "approved chairmen" and not "wingers." For obvious reasons, it is there that any weaknesses are more apparent.

    As for "Legal Advisers" (or Associate Clerks), .... well, that's another story !!

  11. Domestic Violence training is urgently needed. We have Youth benches - and in some courts we have DV Court, led up by a DJ.

    Some mags are better than others than recognising the psychology of violence against women - and there is a hope of some justice.

    I've seen magistrates interrupt a distressed complainant just as she is getting to precisely what happend - to tell the prosecutor, "in case management, chief was for 15 minutes, we are approaching that now" - yet no similar warning for Defence who spent 30 telling the court what a bad mother and emotional wreck the complainant is.

    As a general rule, a woman will not be believed over a professional male.

    As a general rule, women will not be believed over a man with good character.

    As a general rule, magistrates will indulge long "defences" of "she's crazy", "she's a drunk", she's a hopeless mother" - without focusing in on what happened at this moment on this occasion.

    Magistrates will also find "reasonable" doubt in the most specious of defences. She has multiple injuries. Not guilty. "Accident".

    She was slammed up against a wall. Not Guilty. "He was 'guiding' her away.

    But when a female is accused of DV against a male? "We simply cannot accept you were acting in self-defence. You could have received those injuries earlier in the evening".

    Are there magistrates who see this and they are out-voted - or does nobody see a problem?

    1. this is not my experience. the dv training that I received last year was very good, and I can say that in my lja, I have never sat on a dv case where the bench was very alive to the issue and that includes case management, listing, order of trials on the day, etc. whilst I'm sure there are areas for improvement, I think this is an area that has drastically improved over the last five years.

  12. This doesn't sound like any DV court I have ever seen or sat in. I have sat in quite a few. One must be careful not to extrapolate one's own experiences.


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