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Lord Bingham, former Lord Chief Justice |
The lay magistracy is “…a democratic jewel beyond
price”.
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Representing society |
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JPs are not socially representative |
The Auld Report
observes that there is no realistic expectation that the social
composition of JPs could be close to that of the general population.
Partly because the problems are very intractable (e.g. many people have
work commitments which preclude their becoming JPs).
More fundamentally not everyone possesses the personal attributes needed
to make a good JP. Consequently, the JPs will never be a mirror image of
the whole society.
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Local knowledge |
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Some JPs have no knowledge of some areas
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It is widely expected that lay justices have
a good knowledge of their Local Justice Area, simply because they
are drawn from that area, and until recently they had to live within 15
miles of their court.
The reality is that many lay justices do not have a knowledge and
understanding of poorer areas and of working class males who make up most
criminal defendants.
So, are lay justices in reality "part of the establishment, being used to
deny defendants a basic human right?" (Auld 2001) |
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Report of Professor Rod
Morgan and Neil
Russell, "The judiciary in the
magistrates’ courts", December 2000 |
The Auld Report
points out that the general public seem rather hazy about lay justices and
Morgan & Russell also comment on this. According to Morgan,
33% of the public think that lay justices are legally qualified. |
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Democratic |
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Symbolic |
As with juries, magistrates are not wholly reflective of the communities
from which they are drawn, but nevertheless they have an important
symbolic effect of lay participation in the system which should not be
under-valued.
A different view would be to consider that
Magistrates' Courts are still "Police Courts" but under a new name, where
police evidence is favoured and lay participation is mere tokenism by the
establishment. |
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People's justice and public confidence
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Depending on whether a defendant is to be tried by magistrates or by a
judge-and-jury will often colour the view held about magistrates.
On the one hand magistrates are often portrayed as part of the
establishment, there to deny defendants a basic human right.
On the other hand they are depicted as the near equivalent of a jury - the
surrogate jury - the peers of people who appear before them, ordinary
people with experience of the real world, bringing common sense to bear
etc.
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Citizens involved in the justice system
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The involvement of Lay persons in the justice system is found in many
democracies but by no means all.
The lay magistracy is a sign of the active engagement of the citizen in
the administration of justice.
The social position of magistrates is often similar. |
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Magistrates as "surrogate jurors" |
Some see magistrates as "surrogate jurors" or as a manifestation of
democracy in the administration of criminal justice.
Professor Andrew Sanders (Sanders 2001) found a low level of public
confidence in magistrates’ courts based largely on a
British Crime Survey,
a MORI poll and focus groups with the public and with offenders.
Trial by judge-and-jury in the Crown Court is assumed to be "the best"
system and one which commands more public confidence than trial by
magistrates; and that, therefore, the aim should be “to make magistrates
proceedings more like Crown Court trials”.
On this basis District Judges would deal with minor matters and lay
justices sitting together would be more jury-like and hear more complex
cases.
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"The Great and the Good"
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Magistrates tend to be drawn from a network and overlapping memberships of
local bodies, with the result that there is an undue draw towards the
local "great and good" - local councillors, members of health authorities
and school governing bodies and the like.
There is an active policy now to change this.
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Balanced gender |
49% of magistrates are women (Home Office
2003
figures) whereas judges average about 10%.
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Cost |
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Volunteers |
Unlike juries, they are "volunteers" who bring to their work public
spirited commitment and ever increasing legal and procedural knowledge and
experience.
Like juries they are not paid, but can claim loss of earnings on days they
sit.
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£550 v £2,600
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Proceedings in Magistrates' Courts are
vastly cheaper than in the Crown Court.
Recent Home Office statistics calculate the costs of dealing
with a guilty plea in magistrates’ courts was £550 whereas in the Crown
Court £2,600.
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Suitable work for District judges or lay magistrates
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The Runciman Royal Commission, reporting over 10 years ago, noted
that District Judges (then stipendiary magistrates) were not always given
work that made the best use of their skills and qualifications, and
recommended correction.
Morgan and Russell neatly sum up
the dilemma for policy makers on this issue:
“… many lay magistrates are wary of what
they see as the asset-stripping consequences of employing stipendiaries.
Why, they ask, should they volunteer to give so much of their unpaid
time to this public office if they are deprived of the opportunity to
hear interesting cases likely to engage their intelligence?
"By the same token, stipendiary
magistrates think it odd if their legal expertise is not exploited by
allocating to them the most legally and procedurally demanding cases in
which serious decisions must be made”.
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Low cost of advertising |
It is interesting to note the modest level of national resources devoted
to encouraging members of the public to serve in this vital area when
compared with, for example, attracting them to serve in the Territorial
Army - £35,000 as against £4.7 million. (Auld
Review) |
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Variations in sentencing |
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Case hardening
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Case hardening is the description given to the effect of magistrates
trying cases and not being shocked or surprised and developing a narrow
and cynical perspective.
Their vulnerability to case-hardening - in a way that juries are not - is
off-set by a number of factors, namely:
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the relative infrequency of their
sittings;
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the discipline that comes from their
training;
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their sitting in ever changing panels;
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the advantage of a clerk to advise them on
the law; and
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their obligation to explain their
decisions.
However, there is scope for improvement, particularly in the manner of
their recruitment, so as to achieve a better reflection, nationally and
locally, of the community, and in their training, so as to develop fairer,
more efficient and more consistent procedures and sentencing patterns. |
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Public perception is ill-informed, yet
relied upon by researchers
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Morgan and Russell found that court practitioners had more
confidence in District Judges than in lay magistrates.
Whilst court practitioners preferred District Judges the same survey found
that lay magistrates were thought to reflect the community better and were
more likely to sympathise with defendants’ circumstances.
Morgan and Russell were baffled by the seeming conflicts in some
expressions of "public opinion".
The Sanders MORI poll and focus group research, like that of
Morgan and Russell, revealed a similar picture of public ignorance of
the system:
“The public know little about how the magistracy works.
"One third of IPPR’s MORI poll did not know that the majority of
magistrates are lay people.
"They also hugely underestimated the proportion of cases heard in the
lower courts. The role of the Magistracy is not visible to the public”.
Despite this dismal picture researchers rely significantly on public
confidence as a factor, or at least something on which a value judgment
may be made, as to one or other aspect of the system.
Thus, Morgan and Russell, after identifying the level of public
ignorance about magistrates’ courts went on to rely on the uninformed
opinions they had identified as among a number of factors to be satisfied
in some unspecified way.
Similarly, Sanders clearly regards safeguarding and increasing of
public confidence as an argument in favour of fashioning the system to
meet the largely uninformed view of those whom his researchers had
approached as representative of the larger public.
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Variations in sentencing
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Despite Magistrates’ Court Sentencing
Guidelines which identify each offence and the appropriate sentence,
(example here) sentences vary wildly.
The Post Code Lottery
Sentencing variation; in Cardiff 38% of those convicted of house burglary
receive community sentences.
In Leicester, the figure is 66%.
On Teesside, 20% of those convicted of house burglary are sentenced to
immediate custody, while in Birmingham the corresponding figure us 41%.
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Appeals against sentence or conviction |
The number of appeals to the Crown Court in 2004 was less than 1% of the
number tried (12578 of over 2million cases, Home Office
statistics),
of those between 18 and 24% were successful appeals. |
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Other |
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Speed of hearing |
Getting to trial in a magistrates' court is quicker than waiting for trial
in the Crown Court.
Also, the environment is less intimidating than a Crown Court, and the
proceedings are generally easier to understand.
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Reasons given |
The Human Rights Act 1998 requires magistrates to give reasons for
their decisions, this is not the case with jury decisions.
The magistrates have a legal advisor (the clerk) who can guide them, if
required.
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Prosecution appeal |
Following acquittal by magistrates, the prosecution has several routes of
appeal (Judicial Review, Case Stated etc) that are not available from
acquittal by a jury. If the appeal is successful, the defendant will be
convicted and sentenced.
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Self-employed and workers
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Major employers tend to support the magistracy, but would-be magistrates
find problems with line managers.
The financial loss allowance can only be claimed in limited circumstances
and can be a deterrent to self-employed people adding to the imbalance in
the make-up of the magistracy.
It is precisely those who work in more junior positions, or who are
self-employed, whom it is important to attract to the lay bench in greater
numbers.
The problem of long trials is a problem for
certain groups of magistrates who cannot commit for days or weeks at a
time. |
