I’ve just read Sarah Sachs-Eldridge’s excellent review of Helena Kennedy’s book, Eve Was Shamed (Socialism Today No.231, September 2019).
It begins with the denial of justice for women who experience violence. Then it considers the jail sentencing of women: “The most common offence by women is shop-lifting… 84% of inmates are there for non-violent offences. There has been a big increase in the jailing of women for non-payment of the TV licence. In 2015, 76% of women in jail had sentences of less than a year”.
My understanding of the above means that most women are receiving custodial sentences in magistrates’ courts. However, there is no mention of magistrates in Sarah’s review. This may reflect an omission by the author. Whilst I agree that magistrates are not fundamentally different from judges, most are not members of the legal profession, and the ‘walks of life’ they are drawn from include the labour movement. If my memory can be relied upon I believe Bill Morris, the former TGWU general secretary, for example, was a magistrate.
I would like to suggest a short, follow-up article providing a Marxist analysis of the magistrates’ system, in particular its treatment of women.
Sarah Sachs-Eldridge responds:
John’s letter raises an interesting issue. Eve Was Shamed by Helena Kennedy does mention magistrates’ courts – but only in passing. Kennedy reports on the brutal treatment of women by magistrates, with a poor mother being imprisoned for shoplifting, and the jailings that were carried out under the SUS laws. She writes that they are not representative of the populations they serve in terms of racial background.
Kennedy also gives a glimpse of how magistrates’ courts have the potential to become a site of class struggle, like all areas of society. Greenham Common protesters gained confidence to defend themselves through taking their cases collectively in magistrates’ courts in the early 1980s – but that quickly changed so only one or two were charged at a time and the balance of forces was shifted away from the women.
Magistrates in England and Wales are unique in the world – they are the only lay judges with the power to sentence people to prison. But are they unique in the justice system? Can magistrates’ courts, through the absence of trained judges and legal professionals on the bench, escape the prejudice within the other parts of the justice system? Can they play a role separate to the ultimate role of the state as maintaining the ruling capitalist class in power? No.
Magistrates’ courts have been a victim of the Tories’ austerity cuts. In 2010, there were just over 16,000 magistrates in the roughly 330 magistrates’ courts throughout England and Wales. By January 2019, only 162 magistrates’ courts had survived austerity. Like legal aid cuts and court charges, their closure reduces the accessibility by working-class people to the chance to defend themselves, while making the justice system more capable of profit-making by privatisers with growing prison populations.
Socialists oppose these cuts and privatisation, the job cuts that have gone with them, and the sell-offs of public property that has ensued. But in and of themselves magistrates’ courts are not a road to justice for working-class people. As Nikolai Bukharin and Evgenii Preobrazhensky wrote in The ABC of Communism, a popular exposition of the programme of the Bolshevik party: “Whatever the composition of the court, its decisions are restricted in accordance with the volumes of statutes in which are incorporated all the privileges of capital and all the lack of privileges of the toiling masses”.
Today, a majority of magistrates are women and women have been allowed to serve for 100 years. But local news reports reveal no different treatment of women in magistrates’ courts to that which Kennedy exposes in the rest of the justice system. The Northern Echo of 30 September reported on a 29 year-old woman from Darlington who was “sent to prison for 18 weeks after stealing meat produce to the value of £41 from Aldi”. The cases of poor women imprisoned for non-payment of council tax take place in magistrates’ courts, as did the jailing of poll tax non-payers. The presence of women and workers on the bench does not prevent this. There are also no juries in magistrates’ courts. Rape cases are not heard in magistrates’ courts.
The powers of magistrates have changed over the years since their origin in 1195, when Richard I commissioned knights to preserve the peace. The 1361 Justices of the Peace Act gave magistrates the “power to restrain Offenders, Rioters, and other Barrators, and to pursue, arrest, take and chastise them according to their Trespass or Offence”. Their powers included hanging, whipping and transportation in the 1600s and allocation of aid to paupers in the 18th century.
Today, magistrates are still volunteers. The origin of their voluntary basis is related to most magistrates or justices of the peace being rich landowners who were able to use the position to defend their personal interests as well as their class’s position in society.
Magistrates are not required to have any formal legal qualifications but this does not make them free of the ideas dominant within class society and expressed through the privileged elite who people the upper echelons of the rest of the justice system. Magistrates undertake a training programme and are advised by qualified clerks. These volunteer judges are expected to attend at least 26 half-day sittings in court each year, and their employers are required to give them time off to do this.
They may be working class or even trade unionists but the law they are pledged to uphold is part of the state structure which exists to maintain the status quo and, ultimately, to defend the rights of the capitalist class. The law under which they act is not different to the law in the other courts. What’s more, they are not elected, accountable or subject to recall by the communities they work within. This is not a people’s court but a court where the people act ultimately at the behest of the ruling class to maintain the existing capitalist order.
The state, within which the justice system is a key institution, arises out of the struggle between the classes – with a numerically tiny exploiting capitalist class and the exploited working class who are the majority. The courts, including magistrates, are presented as institutions to moderate society’s behaviour but, in the final analysis, are an apparatus for preserving the privileges of the ruling class and keeping the exploited class in exploitation. That’s why Friedrich Engels referred to ‘institutions of coercion’.
In the 18 months to 30 September 1991, over eight million people in England and Wales were summonsed to court, and 195,845 had turned up to tell the magistrates why they could not and would not pay the poll tax, taking up 23,558 hours of court time. Committal warrants for prison were issued for 2,815 of those people. During the mass anti-poll tax movement, which ultimately removed Thatcher from power and defeated the tax, the magistrates’ courts were used by the capitalist class to carry out its attack on the working class, through intimidating people into paying and jailing non-payers. But the movement, within which the Socialist Party played a leading role, also found a way to shift the balance of power through organising to block the courts and frustrate the process of jailing non-payers. This was one of the tactics that contributed to the movement winning – but mass working-class organisation was its foundation.
Magistrates are no democratic chip in the capitalist class’s state through which the working class can sneak in justice. Only a decisive change in society can allow the democratisation of the state machine to be carried through with the establishment of a new state in the hands of the working class.