Although JPs are legally unqualified, they are required to attend training sessions totalling about three days before sitting for the first time, and annual refresher courses thereafter. These courses cover basic law and procedure, the rules of evidence and the principles of sentencing: in court, advice on matters of law is provided by the Justices' Clerk but the ultimate decision rests with the magistrates themselves. Magistrates who sit in the Youth Court or the Family Proceedings Court are given extra training specific to those duties.
Magistrates' duties
An individual magistrate can issue a search warrant or a warrant for the arrest of a suspected offender, but in reality this is not a particularly important part of the job. Magistrates perform most of their duties sitting in the magistrates' court in benches of between two and seven - three is the usual number. The magistrates' court is primarily a criminal court, though magistrates also sit in the Family Proceedings Court and have some civil and administrative functions too.
After a suspected offender has been arrested and charged, he may be released on bail by the police, but it is otherwise the magistrates' duty to decide whether he should be bailed or remanded in custody pending trial. Statistics for 1997 show that 71 per cent of all offenders were dealt with on their first appearance, 25 per cent were remanded on bail and 4 per cent were remanded in custody. (For indictable and either-way offences, the figures were 36%, 53% and 11% respectively.)
However, there is some evidence that magistrates are inconsistent in their judicial behaviour as between one bench and another. Studies in 1987 showed that persons charged with an indictable offence had a 31% chance of being remanded in custody in Bournemouth, compared with just 7% in Weymouth a little further along the coast; for Southampton and Portsmouth, maritime cities similar to each other, the corresponding figures were 18% and 7%. Lambeth magistrates topped the league with 70% remands in custody and only 30% of Crown Court defendants released on bail.
Magistrates are responsible for trying all summary offences and a high proportion of either-way offences: this includes virtually all motoring cases and over 90% of "really criminal" cases, totalling more than two million cases a year. In a summary trial the magistrates are the sole judges of fact and law (though they may seek the Clerk's advice on matters of law), and must determine an appropriate sentence in the event of a conviction. Some 9 per cent of offenders convicted by magistrates are discharged, 75 per cent are fined, 10 per cent are given a community sentence and 4 per cent are imprisoned. A typical lay magistrate is involved in passing a custodial sentence only three or four times a year.
The fact that magistrates have no legal qualifications is not generally a problem, because over 90% of defendants plead guilty (including 50% of those charged with either-way offences) and most of the contested trials turn on issues of fact (i.e. conflicting evidence) rather than law. There can even be advantages in using lay magistrates, in that they can make use of their local knowledge in a way that a professional judge unfamiliar with the locality cannot.
In respect of sentencing, however, there is again some variation between benches, and the chance of a defendant's being given a custodial sentence for an either-way offence varies by a factor of more than ten. At one end, according to figures quoted by Jack Straw in November 1996, is Staffordshire Moorlands magistrates' court, where one in six either-way defendants end up with a prison sentence; at the other is Maidenhead, where the chance is just one in sixty-six. For Crown Courts, on the other hand, the difference in the proportion of custodial sentences between the strictest court and the most lenient was a factor of only two (67 per cent in Hereford as against 38 per cent in Woolwich).
Even within Avon there are variations: 11% of those convicted of common assault in Bath and Wansdyke in 1997 were given a custodial sentence, while Northavon magistrates imprisoned only 6%, Bristol magistrates 5%, and the Woodspring bench just 2½%. But for domestic burglary the order was reversed: Bath magistrates imprisoned just 14% of those convicted, compared with 15% in Northavon, 25% in Bristol and 26% in Woodspring. The numbers involved in each case were small, however, and different circumstances may explain the discrepancies.
Where a defendant is charged with an offence triable only on indictment, or elects jury trial for an either-way offence, the magistrates are still responsible for the committal hearing. Even if the defendant is content to be tried summarily, the magistrates may still commit him for trial for an either-way offence if they believe the case raises difficult questions of law or that the appropriate sentence (if the defendant is convicted) will be more than they have the power to impose. However, they may at this stage decide that there is insufficient evidence to justify a committal, and discharge the defendant immediately.
For example, of 529 defendants charged with murder in 1997, 506 were committed for trial and 15 were discharged; the Crown discontinued the prosecution in the remaining cases. Some 26 000 people were charged with domestic burglary: 11 500 were committed to the Crown Court for trial, 900 were discharged, 7500 were tried by the magistrates (and 7200 of them convicted), and 6000 prosecutions were discontinued or charges withdrawn.
Magistrates courts also deal with civil actions for the non-payment of council tax and certain other taxes and utility bills, and sit as "youth courts" to deal with young people accused of crime and as "family proceedings courts" to deal with a wide range of domestic issues including maintenance orders, residence orders, contact orders, care and supervision orders, and emergency protection measures. They also have an administrative function, sitting in "brewster sessions" to grant licences for the sale of alcohol in their area and certain other types of licence.
Individual magistrates sit in the Crown Court with a Circuit Judge or Recorder to hear appeals from other magistrates' courts; although they are expected to accept the judge's rulings on matters of law, they have equal voting rights and two magistrates can outvote the judge on the verdict and/or the sentence.
Independence and immunity
Magistrates are expected to act fairly and impartially, and the general rules applicable to professional judges apply to lay magistrates too. They must listen to the evidence (and give the appearance of listening), and must not show bias towards either side.
Magistrates (and their clerks) have immunity from suit under s.51 of the Justices of the Peace Act 1997 in respect of any official act or omission within their jurisdiction, and s.52 grants similar immunity even for acts outside their jurisdiction unless it is shown they acted in bad faith. Under ss.28A and 51(1) of the Supreme Court Act 1981, however, costs may be awarded against magistrates in certain circumstances.
JURIES
The jury has been a feature of English criminal trials for hundreds of years, though originally it was a group of local men who knew the facts of the case and could give a verdict based on their own knowledge. Nowadays it consist of twelve independent people with no previous knowledge of the case or the parties, deciding on the basis of evidence presented in court.
Juries are sometimes used in civil courts in cases of defamation, fraud or malicious prosecution, or when the civil action is based on a disputed allegation of criminal conduct. In such cases, the jury determines the facts (i.e. whether or not the defendant is liable) and also decides the amount of damages to be awarded.
Juries also sit in the Coroner's Court in some cases to determine the cause of a person's death, but this is not a matter of any great importance to A Level students. The jury's most important role is to try criminal cases on indictment in the Crown Court, where they are the sole judges of fact but play no part in sentencing in the event of a conviction.
Jury selection
A Crown Court jury consists of twelve persons chosen at random from the electoral register; they must therefore be British, Irish, Commonwealth or European citizens entitled to vote. Anyone aged between 18 and 70 can be called - the property qualification was abolished in 1972, and most of the other disqualifications and exemptions were removed by the Criminal Justice Act 2003. Selection (using random numbers and a national computer database) is done from a single centre, but individual jurors are asked to serve at a court near their home.
Anyone who is mentally disordered, or any person with recent or serious convictions, is disqualified from jury service. The latter covers anyone ever sentenced to five years' imprisonment or more, anyone completing a shorter prison term within the last ten years, or anyone completing a community sentence within the last five years. A person is also disqualified if he is currently on bail, and he is disqualified from sitting in a particular case if he has any connection with the victim, the defendant or any of the witnesses, or if there is good reason to think that he would be unable to try the case fairly.
There were formerly various classes of people (e.g. judges, lawyers, police officers and ministers of religion) regarded as ineligible for jury service, and others (such as doctors, MPs and members of the armed forces) excused as of right, but these exceptions were removed by the Criminal Justice Act 2003. The Central Summoning Bureau (or the trial judge) will normally defer jury service to a more convenient time if there are serious personal reasons such as ill health, examinations, or specific domestic or business problems, but complete excusal is now granted only in exceptional cases.
Disability (other than mental disability) is not a reason for disqualification or automatic excusal, but the Juries Act 1974 (as amended in 1994) gives the judge power to excuse or discharge a juror whose disability will make it impossible for him properly to discharge his duties, or one whose command of English is not sufficient to allow him to follow the proceedings.
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Jury service is a civic duty: a person called for jury service must attend if physically able to do so or face the possibility of punishment for contempt of court. Because of the random selection process, some people are never called for jury service at all, while others may be called several times: the average is about one jury summons per three people over their joint lifetime. Jurors are normally called for a fortnight, but since the average length of a contested case in the Crown Court is 7 hours, they are likely to hear several cases during their service and spend a lot of time in between just sitting around. They are not paid for their service, but are reimbursed for lost earnings (up to about £50 per day) and out-of-pocket expenses.
The jury is supposed to be representative of society as a whole, and generally succeeds. Lord Devlin said in 1956 that juries are predominantly male, middle-aged, middle-minded and middle-class, but this was in the days when only householders were eligible to serve. In Birmingham in 1975-76, a study by Baldwin and McConville found 16% of jurors coming from social classes I/II, 59% from class III, and 25% from classes IV/V, as compared with 14%, 51% and 35% for the local population as a whole. 27% were under 30 and 32% over 50 (as against 29% and 31% for the population). In 1990, fifteen years later, non-white jurors were about 5% of the total, compared with 6% of the eligible population. The slight discrepancies can be explained in various ways, and give no real cause for alarm.
However, an individual jury may be very far from random, and neither the judge nor the defendant has any power to rectify this. The laws of statistics ensure that one jury in every four thousand consists entirely of men and another entirely of women: given that there are about five thousand trials a year for rape and other sexual offences, the implications are clear. Similarly, all-white juries are not uncommon even in areas with a substantial minority ethnic population, and a black defendant might understandably feel (particularly if the case has a racial element) that he will not get justice from such a jury.
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The Royal Commission recommended that where compelling reasons can be advanced for such a course, it should be possible for either the prosecution or the defence to apply to the judge before the trial for the selection of a jury containing up to three people from ethnic minority communities, with one or more of these coming from the same ethnic minority as the defendant or the victim, and that the judge should be able to make an order to this effect. This recommendation (which was effectively endorsed by the Auld report in 2001) has yet to be implemented.
When a jury has been empanelled, but before the jurors are sworn, the defendant has a right to object to any one or more jurors if he can show good cause (for example, that the juror knows him personally), but the former right of "peremptory challenge" was abolished in 1988. Challenge for cause is very limited, because (unlike in the USA) no questioning of jurors to establish a cause is normally allowed, and only the most obvious bias is likely to be detected. There is no doubt that the peremptory challenge was sometimes abused, and that jurors were occasionally challenged because it was thought they would not be sufficiently biased in the defendant's favour, though there is no statistical evidence that the use of the challenge had any significant effect on the likelihood of a conviction!
The prosecutor too may challenge for cause, and may also ask a juror to "stand by for the Crown" (to serve only if no other juror is available), but this power is very rarely exercised except in cases affecting State security The prior "vetting" of juries is limited by guidelines issued by the Attorney-General: the prosecution may check with the Criminal Records Office that none of the prospective jurors is actually disqualified from sitting, but only in "sensitive" cases can they probe further. In practice only about 1 per cent of jurors are challenged for cause by either side.
Role of the jury
The jury's role, once it has been selected and sworn, is to act as judge of fact. Sometimes there is a direct conflict of evidence - P claims that D struck him and D denies it - and the jury must then use their experience of human nature in deciding which to believe. In other cases there are more complex issues of intention, or "honest belief", or reasonableness to be resolved, and here the jury's task is a more difficult one: nevertheless, it is one that depends on experience of life rather than on any specialised legal knowledge, and so it is perhaps appropriate that it should be left to them.
The jury's verdict, whether guilty or not guilty (and no other verdict is possible except where the law allows a finding of guilty of a lesser offence), should normally be unanimous. After a minimum of two hours' discussion, however, the judge may agree to accept a verdict on which at least ten of the twelve jurors are agreed (or at least nine if two of the original twelve have been discharged because of illness or some other cause). This provision was introduced to counter the threat of "nobbling", and although it is arguable that if two jurors favour acquittal then the prosecution have hardly proved their case "beyond reasonable doubt", some 20 per cent of convictions after trial nowadays arise from majority verdicts.
If the evidence is legally insufficient the judge may direct the jury to return a verdict of "not guilty", and in exceptional circumstances he may direct a verdict of "guilty", but as a general rule the verdict is a matter for the jury alone and the judge cannot refuse to accept it even if it seems perverse.
, to appreciate that once a person is put in charge of the jury, he can only come out of their charge by a verdict one way or the other.
Assessment
Judicial confidence in the accuracy of jury verdicts is very high: Lord Salmon estimated in 1974 that no more than about two per cent of those brought to trial are wrongly acquitted by the jury, and Lord Elwyn-Jones LC said he could remember only one case in which he had doubts about a jury conviction. The Irish bombing cases may have been wrongful convictions, but the error arose from perjured or mistaken evidence rather than from the jury system.
Research by Baldwin & McConville in 1979 paints a more disturbing picture: they suggest that about 5 per cent of jury convictions in Birmingham were "doubtful", and even though there must always be some risk of convicting the innocent, this figure seems unacceptably high. Appeals against conviction solely on the facts are very rarely successful. A higher proportion of jury acquittals were questionable - about one-third, they felt, may have been due largely to factors such as sympathy for the defendant or a general mistrust of police evidence - but it is fundamental to the criminal process that the defendant should be given the benefit of any "reasonable doubt"there may be.
Any evaluation of the usefulness of the jury is made more difficult by the fact that there is no reliable data on which to base an opinion. Section 8(1) of the Contempt of Court Act 1981 makes it an offence for anyone (juror or not) to disclose details of what was said in the jury room, or for anyone other than a juror to try to obtain such details. This makes properly conducted research into the jury impossible: what we know is based on single anecdotal cases, on raw statistical data, on the opinions of other participants in the trial, and/or on observation of "shadow" juries set up by researchers or television companies.
In 2003 a juror revealed to counsel his concern at the way in which a verdict had been reached. The juror was given a suspended sentence of imprisonment for contempt of court, but the issue has been taken on appeal to the House of Lords, who will decide some time early in 2004 whether there are any circumstances under which a juror can properly reveal the details of the jury's deliberations.
The statistics are very unhelpful. The fact that juries acquit in about 45 per cent of contested cases, as compared with 30 per cent in cases tried by magistrates, can be explained in many different ways. It may be (as is often claimed) that juries are gullible and too eager to acquit, or that case-hardened magistrates are too ready to convict. On the other hand, it may be that defendants who know they are guilty prefer to be tried by magistrates who will probably pass a lighter sentence, while those who are innocent are determined to take their case to the highest court open to them.
The continued existence of the jury is intended to reinforce the principle that no man is to be fined or imprisoned merely by the will of the state, but only by the judgement of his equals. It is thus part of a bargain, as E P Thompson writes, between the law and the people: the jury attends in judgement not only upon the accused but also upon the justice and humanity of the law. Lord Devlin described the jury in 1956 as "lamp that shows that freedom lives", and suggested that no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. Two years later Lord Birkett said the jury introduces into the law an element of community sentiment and fairness: a jury can do justice where a judge ... has to follow the law.
Writing in the Law Quarterly Review in 1991, Lord Devlin gave other examples of perverse verdicts by juries exercising their consciences. Some are old and well-known: in the days when theft of goods worth five shillings was a hanging offence, a jury found a pickpocket guilty of stealing a gold sovereign, value 4s 11d. Juries were notoriously reluctant to convict of bigamy where this was obviously a poor person's substitute for a rich person's divorce, and were more likely to decide (on no evidence) that the deserting spouse had in fact died. Similarly, where a young man was charged with unlawful sex with a girl under 16, the girl having obviously consented (or even played the leading role), juries eagerly accepted his "reasonable belief" that she was over that age even though his reasons might have been extremely flimsy.
In their book Jury Trials (1979), Baldwin and McConville set out plainly the logical argument against the jury as it is currently constituted. Twelve individuals, they write, often with no prior contact with the courts, are chosen at random to listen to evidence (sometimes of a highly technical nature) and to decide upon matters affecting the reputation and liberty of those charged with criminal offences. They are given no training for this task, they deliberate in secret, they return a verdict without giving reasons, and they are responsible to their own conscience but to no one else. After the trial they melt away into the community from which they are drawn.
The jury is not required to give reasons for its decisions, and (although this can never be checked) there are strong suspicions that some decisions are based on wholly irrelevant factors such as the personality of one of the barristers, a prejudice in favour of (or against) the police, or perhaps something even more extraordinary.
Jurors are not subject to any kind of intelligence test, and may be unable to cope with difficult medical, financial or technical evidence. Complex fraud trials have given rise to particular concern, because most ordinary jurors do not have the training or expertise for the detailed study of pages of accounts, and the Criminal Justice Act 2003 makes provision for judge-only trials in some such cases. It is worth noting, however, that even under the former arrangements the Serious Fraud Office (in spite of some high-profile failures such as the Maxwell trial) secured convictions against 65 per cent of those it prosecuted and at least one conviction in over 80 per cent of cases.
Whether jury service is an efficient use of professional people's time is open to question, and there is no doubt that jury trial is both time-consuming and expensive when compared with trial by magistrates or by a judge alone. However, research by the New Zealand Law Commission (published in 2001) "showed no evidence that the jury is not impartial and democratic, [but] highlighted the care and commitment that jurors bring to their task, the crucial aspect of community and civic participation, and the educative function of jury service." It dismissed the argument that juries cannot understand expert evidence: even where there is difficult scientific or financial evidence to consider, the better answer is usually to explain it more clearly and carefully rather than to remove the jury. Only a very small proportion of trials, suggests the report, are too long and perhaps too complex for a jury.
TRIBUNALS
Most tribunals include two lay people sitting with a legally qualified chairman. The lay members are commonly appointed by the responsible Minister on the basis of recommendations made by interested bodies (e.g. trade unions and employers' associations in the case of Employment Tribunals), and usually have background knowledge or experience of the relevant area of life.
Dugdale v Kraft Foods [1977] 1 All ER 454, EAT
Female checkers at DD's factory did similar work to male checkers, but were forbidden by statute to work at night or on Sundays, and were paid a lower hourly rate. Several female checkers brought an "equal pay" claim, but the Industrial Tribunal found their work was not comparable and dismissed their claim. Allowing PP's appeal and remitting the case for further consideration, Phillips J said members of industrial tribunals appointed because of their special knowledge and experience are entitled to use that knowledge and experience to fill gaps in the evidence about matters obvious to them. But where evidence is given which is contrary to their knowledge and experience, they ought not to prefer their own knowledge and experience without giving the witnesses an opportunity to deal with it.
Tribunals make their decisions by majority vote (though most decisions in fact are unanimous), and the lay members have equal voting rights with the chairman. Since most cases turn on matters of fact (or questions of reasonableness) rather than law, this does not present any major problems.
CORONERS
A coroner is appointed by the local authority to be responsible for a particular district; the appointment may be full-time or part-time according to the volume of work expected in the area, and the coroner is paid a salary accordingly. The main qualification for appointment is five years' experience either as a lawyer with a general right of audience or as a registered medical practitioner (a doctor); some coroners are therefore lawyers while others are lay people in the legal sense.
The coroner's duties include determining the causes of unexpected or suspicious deaths (including homicides, suicides and accidents of various kinds) and the ownership of treasure trove. The coroner normally sits alone, but may sit with a jury of between seven and eleven lay people in difficult cases, and must have a jury when investigating deaths in custody or in industrial accidents.
ARBITRATORS
An arbitrator is effectively a private judge, appointed jointly by two parties to settle a dispute between them. There are a small number of full-time arbitrators who make their living from the fees paid to them by the parties, but anyone can be an arbitrator, paid or unpaid, if the parties so decide. An arbitrator normally sits alone, making his decision on the basis of the evidence presented and his own knowledge of the area.
COURTS-MARTIAL
An Army, Navy or Air Force court-martial consists of three or more serving officers appointed by a fairly senior "convening officer", and exists to try both criminal offences and offences against service discipline. It has jurisdiction over all service personnel (and over their families living with them outside the United Kingdom), though servicemen charged with serious criminal offences are normally committed for trial at the Crown Court.
The members of the court-martial (by majority vote) determine the defendant's guilt or innocence; the judge-advocate (a qualified lawyer) ensures that proper procedures are followed and gives the board members directions as to the relevant law, but takes no part in their decision. In the event of a conviction, the judge-advocate joins the board members and has an equal vote in determining the sentence to be imposed.
There have been a number of successful challenges to the court-martial system in the European Court of Human Rights. The main ground of complaint is that the board members are militarily subordinate to the convening officer by whom they are appointed and so cannot be regarded as a truly independent tribunal, particularly when the same convening officer is responsible (through other subordinates) for drawing up the charges and for confirming any sentence imposed.
ASSESSORS
Under s.70 of the Supreme Court Act 1981, and s.63 of the County Courts Act 1984, the judge in any civil proceedings may appoint expert "assessors". The assessors are usually lay people with particular technical expertise, and their role is to help the judge evaluate the evidence. Section 67 of the Race Relations Act 1976 actually requires the judge to appoint assessors with race relations experience in all County Court proceedings under the Act, unless the parties agree this is unnecessary.
Assessors - usually two of them - are independent of the parties and are expected to act impartially. They give advice to the judge, but it is the judge alone who makes the final decision. He normally follows the assessors' advice on technical matters, particularly if the assessors are in agreement with each other, and is expected to give reasons in his judgement if he rejects that advice.