My previous post set up the Magistrates’ Court system, now I want to go a little bit deeper and talk about why the MCV matters so much to Victoria and why we should work towards improving the experience of all its users.
A Brief History of the Magistrates’ Court
Magistrates’ courts in Australia have experienced substantial change, particularly in recent history. In colonial Australia, magistrates were wealthy men without formal qualifications who acted in an honorary capacity, primarily to oversee convict labour. The first paid magistrates were appointed from 1832, these select men were higher ranking police officers and therefore were more closely associated with the police force rather than as independent court officers. Until the 70s, magistrates were appointed under public service legislation and were subject to the terms, conditions, and rules of discipline as all public servants. Appointment to the magistracy usually resulted from internal promotion after service as a clerk of court; magistrate appointment rarely resulted from external appointment.
Victoria was quite late to separate the magistracy from the public service in 1984, however tensions had already surfaced with the arrangement from as early as the 1950s. Magistrates were growing uncomfortable from hearing matters where one or more parties in dispute were employed by the same government department that employed the magistrate leading to issues of a perception of bias. These concerns sparked two major changes in the magistracy, the requirement of formal legal qualifications and a separation from the public service.
The Professionalisation of the Magistracy
The separation from the public service and the requirement of formal legal qualifications has led to a professionalisation of the magistracy. All appointments to the magistracy are not only expected to have formal legal practice qualifications but also legal practical experience and participate in regular professional development through the Judicial College of Victoria. The variety and seriousness of the cases heard before magistrates has also increased. Magistrates are sharing more and more functions and characteristics with judges in higher courts.
Unlike judges in the higher courts magistrates deal with a high volume of cases. Some 90% of all civil and criminal cases are initiated in the Magistrates Court. Magistrates usually sit alone without juries all over Victoria hearing cases where the majority of those appearing before them are unrepresented and are more likely to be experiencing social, personal or economic disadvantage, mental illness and substance abuse and addiction. Therefore the skills and qualities of a magistrate need to reflect the workload presented by the cases before them.
The National Survey of Australian Magistrates asked magistrates to identity the qualities and skills required to be an effective magistrate. It is not surprising that given their diverse caseloads magistrates draw on a large number of skills and abilities to execute their roles, this was reflected in the qualities magistrates’ reported as being necessary for the execution of their roles; which sometimes differed from skills and qualities that are generally identified as necessary for merit in judicial appointment.
All magistrates report that sound legal knowledge, impartiality, high ethical standards, a strong sense of fairness and qualities of integrity and character are important for the execution of their role. The statements of legal professional organisations are likely to emphasise these skills as the most desirable skills required for judicial office. Magistrates surveyed strongly emphasised interpersonal skills and communication skills specially courtesy and being a good listener as the first attribute required for the role of magistrate. This emphasis by magistrates on interpersonal and communication skills over specific legal attributes as the primary desirable attribute for the magistracy may reflect the distinctive features of a magistrates’ everyday work: long lists, a high number of unrepresented litigants, litigants from disadvantaged backgrounds and the significant time pressures one or all of a combination of these factors impose on magistrates.
Magistrates’ Court Workload
If Victorians are required to go to court, there is a ninety percent chance that they would attend the Magistrates’ Court of Victoria, earning the Court the nickname of the People’s Court. In the financial year 2010/2011 there were 166,791 criminal cases initiated in the court and 177,819 cases finalised, 88.8% of which were finalised within six months. There were 2,953 committal proceedings finalised and 4,193 cases finalised ex parte. During the same period 2,511 appeals were lodged against conviction or sentence. In the same year there were 59,202 civil complaints issued or filed and 40,696 claims finalised, 79.2% of defended claims were finalised within six months. There were also 34,133 default orders made during the 2010/11 year and 7,663 defence notices filed.
By comparison, in the County Court of Victoria 5,775 civil cases were finalised in the 2010/2011 year and 5,342 criminal cases finalised in the same period. In 2010/2011 the Supreme Court of Victoria commenced 173 criminal trials and 6,789 civil division commencements. The comparison above is only to show the volume of cases handled by the lower court compared to the higher courts, not the level of complexity of cases, the ability of judicial officers or importance of any specific court.
Magistrates as Influencers of the User Experience in the Court
While no conclusive data exists to illustrate the user experience of Victorian Magistrates’ Court Users, it would appear that most magistrates are aware of their role in providing a good user experience of the courts and do try to ensure this is the case. Research conducted at a number of magistrates’ courts as part of the National Court Observation Study found that some judicial officers were moving away from traditional adversarial modes of judging to more therapeutic practices and in so doing increasing the likelihood of generating a positive impact from the criminal justice process on those before the court, or at least reducing the harm created by the legal process
The National Court Observation Study indicates that even though magistrates act in a high pressured judicial environment they still can find time and space for behaviour that engages those before them by adopting behaviours such as looking at and speaking directly to defendants and maintaining a level of courtesy with prosecutors. These demeanours magistrates display reflect important features of procedural fairness which contribute to the acceptance of the authority of the judicial officers and create faith in a system that is perceived to be worthy of being obeyed.
There is no requirement that magistrates adopt behaviours such as looking at defendants and speaking directly to them or for courtesy. Ensuring user satisfaction and engagement should not be the sole work of magistrates alone. Magistrates, particularly those sitting in criminal divisions must deal with matters very quickly to get through their list. The National Court Observation Study reported that the time taken for a single matter to be dealt with in a criminal list ranged from 15 seconds or less (5 per cent of the matters observed as part of the study), to 15 minutes or less for 95 per cent of matters; half of all matters were completed in only 2 minutes and 20 seconds, the average time per matter was 4 minutes and 13 seconds.
Magistrates are above all judicial officers. Their main duty is to the court and through it the proper administration of justice. Magistrates’ should not also be burdened with the heavy role of being ‘customer service’ managers. Magistrates’ see people in dispute either with each other or with the legal system, it is inevitable that one or more parties will not have a positive experience merely for the fact that they have not achieved the outcome they might have been hoping for. However, magistrates’ should be aware that within their confined and limited role they can find space for practices that can foster a more positive experience for court users and are able to develop a more humane court process. Humane processes centred around positive user experiences with the justice system have been shown to be good policy by reducing recidivism rates, increasing engagement with the legal system, and acting as a therapeutic intervention in the lives of users.
The Magistrates’ Court is called the People’s Court with good reason. It handles the bulk of all cases in the Victorian system, if a Victorian is to appear at court for whatever reason there is roughly a 90% chance that they will appear at the Magistrates’ Court. The court system as a whole is regarded by most Australians to be crucial to the proper functioning of society. It is for this very reason that the court should ensure that its users, both professional court users such as lawyers and paralegals but most importantly non professional court users such as accused persons, plaintiffs, defendants, witnesses, support persons and the public have the best possible experience of the justice system. It stands to reason that not all court users will achieve their desired outcome with their court visit, however this is different to ensuring that there is a satisfaction with the system illustrated by the Scottish, Italian and Federal Magistrates’ Court experiences which successfully assessed users satisfaction with court facilities, information available to them about proceedings, opening times, efficiency and expediency instead of measuring their satisfaction with their legal outcomes.
The Magistrates’ Court is already stretched by ever increasing workloads and increasing complexity of the cases before it, to ask it to launch into a concerted user satisfaction review may appear to some to be a frivolous exercise. Some may argue that courts are there to serve the Victorian community by dispensing justice and should not be in the business of conducting customer satisfaction surveys. To an extent there is truth in that statement, courts should resist at all costs the ‘corporatisation‘ of public institutions. The Magistrates’ Court of Victoria plays such a crucial role in the administration of justice in Victoria that it can not and should not be run using measures best suited to the management of a private financial enterprise. However, studying the user satisfaction of court users will enable the Magistrates’ Court to identify areas where it could improve its service delivery and in so doing be able to better dispense justice by instilling a faith in the process in court users.
Magistrates’ are aware of their role in providing a positive experience, particularly those sitting in criminal trials through the adoption of a positive demeanour and behaviours such as making eye contact with defendants and talking to them directly. Mack and Roach Anleu argue that these less adversarial behaviours generate a positive impact from the criminal justice process or at the very least reduce any harm created by it, the very essence of effective therapeutic justice.
Therapeutic justice innovations have been shown to have great successes particularly in the specialist divisions of the Magistrates’ Court. A positive user experience of the court system creates an impression in court users that the system is worthy of being obeyed, which is highly desirable at least in the criminal justice system.
Before the Magistrates’ Court of Victoria can move towards a system that works towards providing a positive experience for its users it needs to have mechanisms in place that will l set a benchmark of current user satisfaction levels so as to be able to improve from there. Any user satisfaction mechanism employed by the court would need to have broad support from the top levels of management to ensure its success; not only would such a mechanism inform the court of current user experience with a view to improving it but serve the Victorian community by providing a responsive and engaged People’s Court.
Public Attitudes to the Courts
Judicial officers, through the court system, play a crucial role in the proper functioning of our society. The court system is responsible for the administration of justice and the enforcement of legal rights and obligations. One of the most recent Australian Surveys of Social Attitudes (AuSSA) found that Australians (Victorians accounting for 1,000 respondents of the survey) place a high value on the importance of the court system generally but did not have high levels of confidence in the criminal courts.
Previous surveys have found that public confidence in the court and legal system generally has not been high; the results are further complicated by the fact that very few Australians reported having had any first hand experience of the court system. Two-thirds (67%) of the respondents to the survey reported that they had not been present at a court proceeding in any of the courts in the hierarchy in any capacity in the ten years prior to the survey. This included being a party to a court proceeding either as litigant, witness, accused or a supporter of any of the above; it also included observers in public galleries, legal professionals and court staff. It should be note that the AuSSA did not seek to solicit a thorough indication of attitudes towards the court and justice system alone and the findings from the AuSSA should not be relied upon as a definitive and final statement on social attitudes to the legal system. Research that asks several kind of questions and relies on different methods than the AuSSA suggests that public attitudes are more varied that can be inferred by the AuSSA. Nonetheless, the AuSSA’s general findings are used for this paper as a general indication of public attitudes.
Given that there is such a lack of direct experience with the court system it could be assumed that the views of the public regarding the courts and the justice system are likely to be based on news reporting, entertainment programs or even the experiences of others such as family, friends and acquaintances. Research has shown that in newspaper headlines and media reporting “judges are portrayed within the media as the ‘other’- out of touch with the community- and as a consequence, that the justice system is in need of review.”
It’s not all dire, at a general and abstract level Australians seem to value highly the work of the courts and magistrates and judges; nearly all AuSSA 2007 respondents agreed that the work of magistrates and judges is important to the community. This was consistent with all respondents across age, education, social class and political affiliation. This illustrates that the general public acknowledge the important contribution of the judicial system to the democratic polity. Research shows that magistrates and judges also agree that their value to society is a very important factor in their initial decision to become a magistrate or judge, and most are indeed satisfied with the importance to society of their work in the courts. Since experience with the courts is very limited among the public there is a lack of direct knowledge about the court system of which the Magistrates’ court plays an absolutely vital role as they handle most of the case load. This limited experience leads to the public becoming aware of the court and justice system through secondary sources and the media which may contribute to the low levels of confidence in these systems. This is problematic because the public (as well as the judiciary) regard the work of the courts as crucial for the proper functioning of society.
The Court User Experience in the Magistrates’ Court of Victoria- General Division
As seen above there is a low level of direct engagement by the public with the court system as a whole, not just the magistrates’ court. Given this there is a lack of data regarding the experience of those appearing before the courts, particularly the Victorian Magistrates’ Court. We know very little about the user experience of the Magistrates’ Court. Limited data is available on community attitudes towards sentencing and the judicial officers responsible. For the 1996 review of the Sentencing Act 1991 (Vic) the Victorian Community Council Against Violence submitted a report showing community knowledge of sentencing, perceptions of the purpose of sentencing and perception of the adequacy of sentencing. Some data exists on the experience of users of the Family Court of Australia and the Federal Magistrates’ Court of Australia. None of this data, even when combined can be extrapolated to inform with any great certainty how users of the Magistrates’ Court of Victoria may rate their experience with it.
All the courts in the Victorian hierarchy have adopted the International Framework for Court Excellence by the International Consortium for Court Excellence. The framework establishes seven areas of court excellence which subscribers commit to improving, one of which is user satisfaction with the court system. The Victorian Magistrates’ Court adopted the framework in 2009 integrated it into the court’s policy and operational mechanisms. However to date the court has only used the framework purely for self assessment purposes; in 2010, 50 magistrates and senior court administration staff completed the self assessment procedures for each of the seven areas for court excellence. The exercise involved a self assessment of the current practices against criteria set out for each of the seven areas. The self assessment exercise is the crucial first component of implementing the international framework, however the framework does not mandate that follow-up assessments be undertaken. The results for the initial assessment by Victorian magistrates as part of the framework’s implementation has not been publicly released; even if it had the assessment only considers the user satisfaction of the Magistrates’ Court from the perspective of its judicial officers and not the users themselves. The limited user experience and satisfaction data that exists from the Magistrates’ Court of Victoria is mainly from the evaluations of the experience of those involved with the specialist courts within the system such as the Koori Court, the Neighbourhood Justice Centre and the Drug Court.
There have been various legislative instruments that have amended the Magistrates’ Court Act 1989 (Vic) to incorporate specialist jurisdictions into the Magistrates’ Court system. The specialist courts aim to improve outcomes for those who appear before them and for the community at large by trying to address the pre-existing issues that may have led that person to appearing before the court in the first place.
We’ve tried measuring the user satisfaction of some of our courts in Australia, and while the VMC has adopted the International Framework for Court Excellence, not a whole lot has happened. Here’s what’s happened at the federal level:
The Court User Experience at the Federal Level
The Family Court and the Federal Magistrates Court have also adopted the International Framework for Court Excellence. The court developed a user satisfaction survey to understand the needs and perceptions of court users to provide a robust measurement of users’ perceptions of their court experience.
The survey captured data from 1322 court users using both qualitative and quantitative information gathering methods. Nearly half of the interviewees were applicants and respondents, a quarter were lawyers. The survey found that overall respondents were complimentary about their court experience; 86% of interviewees expressed satisfaction with their court visit. Those who were unfamiliar with the courts and their procedures were more likely to be dissatisfied with their experience, lawyers had the highest satisfaction rates recorded (95%), this was followed by applicants (85%) and respondents (70%). Interestingly parties to divorce proceedings were more likely to report a higher satisfaction level (92%), matters that were less predictable had relatively lower satisfaction rates (84%).
The survey identified areas of improvement for the Federal Family Court and Federal Magistrates Court, these included: clarifying court forms to make them easier to understand, improving expediency and punctuality in matters, improving clarity as to court proceedings and better management of expectations of what will happen next in the matter.
Both the Federal Magistrates Court and the Victorian Magistrates’ Court have adopted the International Framework for Court Excellence, however only the Federal Magistrates’ Court has began implementing the user satisfaction component of the framework through user satisfaction surveys and has subsequently identified areas of improvement for those court users whose experience has not been optimal, particularly for those who do not visit courts regularly.
User experience data exists for the specialist courts of the Magistrates’ Court system, however data captured from those surveys has generally measured different criteria than the survey conducted by the Federal Magistrates Court locally or the Scottish or Italian courts internationally. While asking court users satisfaction with the cleanliness of court facilities, or the catering available within court buildings might seem banal, all of these seemingly small details do make a difference on a person’s general satisfaction with the court system and in turn the whole justice system.
It is crucial that every person that uses the courts, particularly the Victorian Magistrates’ Court which handles the bulk of all cases in Victoria has a good experience with the system. While some might say that it shouldn’t matter if accused persons or defendants have a good experience in court, it should be remembered that they are not the only users of the court system. Regardless, data from the evaluations of the NJC, the Koori Court and the Drug Court show that a positive experience with the courts, particularly the criminal division can be transformative for that individual.
In ensuring our Magistrates’ Court is responsive to the needs of its users can we look at international examples to guide what we do here? I never thought you would ask!
While the Victorian Magistrates’ Court has taken initial steps in implementing the International Framework for Court Excellence which include provisions for measuring and improving the user satisfaction of the court, it still lags behind other jurisdictions.
The European Commission for the Efficiency of Justice (CEPEJ- Commission Européene Pour L’efficaté de la Justice) is tasked with the improvement of efficiency and the functioning of justice in the European member states and works towards the development and implementation of the instruments adopted by the Council of Europe to improve efficiency. CEPEJ has released a handbook for conducting satisfaction surveys aimed at the court users of EU member states. Satisfaction surveys are seen as a key element of European policies aimed at introducing a culture of quality to the court system and approaching a concept of justice that is more focused on the users of the courts than on the internal performance of the judicial system.
There are two European member states that have undertaken user satisfaction surveys in equivalent jurisdictions to the Magistrates’ Court of Victoria. The Scottish Court Service Customer Satisfaction Survey 2006 and the Enquiry into the Customer Satisfaction Survey in Turin Courts, the latter undertaken using the CEPEJ framework.
The Scottish Court Service (SCS) surveyed all its courts within the Scottish Court Service including the Sheriff Courts which are equivalent in jurisdiction to the Magistrates’ Court of Victoria. The survey included members of the legal profession, accused persons, litigants, victims, supporters, witnesses and the public. The survey attempted to carry out interviews to collect data at all Scottish Court Service courts for at least one sitting day. The respondents were asked on their use of the SCS website, their familiarity with attending the court, their accessibility around the court building, satisfaction with court staff, information provided by court staff, waiting times, previous contact with the court, satisfaction with catering facilities, satisfaction with other court facilities, service development and demographic data about the respondent. The SCS survey revealed generally high levels of satisfaction with most aspects of the Service’s delivery.
The Turin First Instance Court (Tribunale di Torino) carried out a user satisfaction survey in accordance with the CEPEJ initiative of improving quality in the court system. A decision was taken to survey the users of the First Instance Court’s civil and penal sectors without taking into account the prosecution offices, the juvenile courts, justices of the peace and courts of other cities located within the Turin district. Unlike the Scottish survey, the Italian survey did not involve professional court users such as lawyers, trainee lawyers, clerks or employees of the justice system. The First Instance Court is equivalent in jurisdiction to the Magistrates’ Court of Victoria.
The Italian survey investigated visitation rates of the court, general impressions of services provided by Turin judicial officers, the premises and working hours of the courts, staff helpfulness, clarity of information provided by court staff and court expediency. The survey found that high satisfaction existed with staff and judicial competence and politeness, access to information, trust in the judiciary, ease of access and cleanliness. There was low satisfaction in expediency of cases, costs and punctuality of hearings.
While the overseas experience can inform the local experience, particularly with the guidelines developed by CEPEJ for the survey of user satisfaction within the court system; the overseas results can not be extrapolated to inform the local experience. Overseas jurisdictions show that user satisfaction surveys can and do provide important information about the experience of court users. Particularly information that while not strictly related to the administration of justice, such as satisfaction with the cleanliness of courts and catering facilities, do combine to inform the general public’s attitude to the justice system as a whole; which would be crucial particularly when the public’s attitude to the system is so low.
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