Meet the Book Author: Access to Justice in Magistrates’ Courts: A Study of Defendant Marginalisation

Dr Lucy Welsh, University of Sussex

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Dr Lucy Welsh, whose new book, Access to Justice in Magistrates’ Courts: A Study of Defendant Marginalisation was published in January 2022 with Bloomsbury Publishing.

What is the book about? 

My work focuses on the day-to-day operation of criminal justice. I am especially interested in how people are facilitated or hindered when accessing justice, and how the legal profession works. I am keen to understand how experiences of the justice system might be improved.

The book is about how justice is performed in English and Welsh magistrates’. It considers how funding cuts, demands to process cases with ever greater speed, and the working culture of magistrates’ courts  might undermine the ability for defendants to participate in the justice system. If people are unable to meaningfully participate in the way justice is administered, they may feel that the criminal process system does not operate fairly. 

Why did I write it? 

Magistrates’ courts process the vast majority of all criminal cases in England and Wales to conclusion, yet how they administer justice is under-researched in comparison to Crown court proceedings, where the most serious of cases are decided. 

I spent several years practising mainly publicly funded criminal defence and prison law as a solicitor. During that time, I had experienced changes to the way the criminal process functions which appeared to be diminishing the quality of magistrates’ justice. My key motivation for conducting the work was to examine ways in which the justice system might be falling and suggest changes that might lead to improvement.

When I began the project that led to this book, I planned to focus on how legal aid cuts had affected magistrates’ courts. I began the work around the same time that the Ministry of Justice launched its Transforming Legal Aid consultation, which proposed drastic changes to public funding schemes for indigent suspects/defendants. Although many of the consultation’s most deleterious proposals were ultimately scrapped, anyone with an interest in criminal (and civil) justice will be aware of the seriously negative effects of legal aid cuts in recent years.

I set out to examine how funding issues, demands for efficiency, and working culture intersected and potentially affected the defendant’s experience of proceedings, especially considering that the defendant is often one of the more vulnerable participants in the criminal process. It felt important to draw out these intersections in order to highlight particular ways in which the ability of defendants to participate might be undermined. I believe that a more accessible justice system (for all participants) will hold greater legitimacy. 

What was my research strategy?

In order to achieve depth of understanding, I knew I needed to conduct a case study focused on one geographical area. This would allow me to gain a holistic understanding about what was happening in that particular location. I was also conscious that I needed – as far as possible – to detach from and reflect on my own experiences of magistrates’ court justice by observing a broader range of cases from a different vantage point than my previous experience allowed. I watched how justice was being administered in 183 cases in one local justice area which then served five magistrates’ courts. During my courtroom observations, I saw how little engagement was directed explicitly towards the person at risk of being punished. 

The observations were followed up with 19 interviews; 12 with defence lawyers and seven with Crown prosecutors. During the interviews, lawyers discussed their concerns not just about funding but also about how court processes were becoming standardised. They were aware that these processes had negative impacts on defendants, and were concerned that many defendants failed to understand the process to which they were subjected. Lawyers described feeling conflicted between the courts’ demands to act efficiently and between the needs of their clients, for whom speedy case progression might (further) undermine their ability to participate in the process. 

Sadly, I wasn’t able to interview defendants about their experiences. While there were good reasons for this, now that we have some information about the ways in which defendants seem likely to experience justice in magistrates’ courts, it would be good to develop our understanding further by putting my findings to defendants themselves. 

I hope, though, that the book conveys something of the ways in which defendants are marginalized from meaningful participation in magistrates’ court justice. In raising awareness of these issues, I aim to bring defendant experience to sharper focus and encourage the courts (and those who work with them) to engage more directly with defendants. I hope that more meaningful participation in the justice system might be encouraged, thereby improving access to justice and perceptions of legitimacy about magistrates’ courts justice.