Lay involvement intends to provide a quality of justice that reaches ‘right’ decisions that are just and fair taking into account the evidence, the individual circumstances and the wider democratic picture, reaching beyond technical guilt in the eyes of the law. As Davies et al. (2005, p. 270) argue, local lay people can apply a common sense approach through their everyday life experience outside the confines of the justice system. If the process was left solely to the professional judiciary they may tend to concentrate on making ‘correct’ decisions from a singularly legal perspective. However, Seago (2000, p. 650) argues that non-local professionals may provide a more consistent quality standard in their decision making nationwide, thus improving overall public confidence in the system.
Equally, Nuffer (2007) cites Anderson and Nolan’s argument that the professional judiciary’s decision making is adversely affected through their “narrower life experiences” and because they “are disconnected from popular society” (p. 9) when compared to lay people, a perception reflected in public opinion polls. However, Davies et al. (2005, p. 238) argue that lay participation can be equally unrepresentative of society, with unpaid part-time lay magistrates perceived as being dominated by middle class professional groups, although this lack of diversity is being tackled in the latest recruitment strategy.
Savage (2007, p. 20) argues that the seasoned professional judiciary may become case hardened through everyday involvement in the system, less inclined to accept certain types of evidence or a suspect’s story. However, Darbyshire (2002, p. 291) argues that professionals’ training enables them to effectively challenge evidence regardless of its source, suggesting they are un-swayed by irrelevancies or attempts to influence their decision making.
Whilst the volunteer nature of lay magistrates would suggest they cost less to the taxpayer, there is also the question of efficiency. Darbyshire (2002, p. 291) points to research showing that a paid full time district judge can deal with 30 per cent more appearances than an unpaid part time lay magistrate. However, attempts to connect this efficiency to reduced costs can be problematic and dependent on what is taken into account in any calculation (Morgan & Russell, 2000, para 8.6). Furthermore, Auld (2001, para 12) stated that there is no indication of any desire by the government to remove the lay magistracy from its major role in our system of justice.
In reality, Rogers (2006) argues that the majority of the public who attend magistrates court are probably unaware that lay magistrates are volunteers, as for all intense purposes they appear to simply be unpaid professionals rather than concerned citizens playing a direct democratic role in our criminal justice system. Furthermore, following public research on magistrates, Sanders (cited in Darbyshire, 2002, p. 291-292) concluded that panel decision making was preferable to sole decision making, which may suggest mixed lay and professional panels may be the most helpful way forward in the magistrates’ court.
As Doran (2002, p. 380) argues, the jury represents the embodiment of participatory democracy. However, its random selection does not in itself ensure a cross section of a diverse society. Additionally, critics have also suggested that jurors can be naïve, irrational, prejudiced and too willing to accept prosecution evidence. Furthermore, Davies et al. (2005, p. 270-271) argue that jurors may struggle to understand serious and complex issues or be vulnerable to intimidation. This was recognized in the Criminal Justice Act 2003 which enabled the provision of judge only trials for certain cases in these categories. The danger of such criticisms is that juries may have become the scapegoat for miscarriages of justice and marginalized in the system as a result.
Furthermore, a jury’s reasoning cannot be investigated or revealed, enforced by the Contempt of Court Act 1981, nor be used as a grounds for appeal. As Davies et al. (2005, p. 269) argue, this particularly contrasts with Article 6 of the Human Rights Act 1998 in relation to a fair trial that prescribes transparent and reasoned decisions. After all, the jury’s decision may be for reasons beyond the simple strength of the evidence. We simply do not know.
In the adversarial system of England and Wales, the prosecution and defence show evidence for the first time at the trial and present their case before impartial decision makers, mostly lay people. The system relies on an assumption of innocence and a high burden of proof where the prosecution can only show a defendant’s guilt by obtaining “sufficient evidence to show beyond reasonable doubt that the person accused of the crime did it” (Davies et al., 2005, p. 13). As the professional judge not only rules on legal and admissibility of evidence matters but also sums up before the jury retires to reach a verdict (Pakes, 2004, p. 102), he can wield considerable influence on the outcome. However, Nuffer (2007, p. 7) states that as juries adjudicate privately this ensures that their decisions remain independent.
Lay people are the key decision-makers in this system. They may also use this power to counter-balance the opinions of a professional judge and produce so-called ‘equity’ verdicts, helping to safeguard against unjust laws or punishment. In the Belgrano case in 1986, where the judge advised the jury that Clive Ponting had no ‘public interest’ defence to charges brought against him under the Official Secrets Act 1911 for leaking ministerial documents, they famously acquitted him regardless (Davies et al., 2005, p. 270).
As Pakes (2007, p. 37) argues, the adversarial system’s trial represents nothing more than a ‘game’ between the two legal teams who use the drama of the courtroom to their advantage. Furthermore, giving evidence in this environment can be stressful, with recent reforms recognising this for vulnerable and intimidated witnesses (Home Office, 1999, p. 1).
Such concerns challenge whether the adversarial system and its associated lay involvement is a suitable way to deliver fair and just decisions. For example, as Davies et al. (2005) argue, the high standard of proof “protects the innocent against wrongful conviction but also protects the guilty where the evidence is not available or exists but is not admissible” (p. 13).
However, the intention of this ‘game’ is to obtain a yes or no answer on whether there is guilt beyond reasonable doubt with the possibility, however rarely taken up, of a trial in front of lay decision makers on this basis. As Davies et al. (2005, p. 14) argue, this ensures the standard of evidence obtained is admissible, credible and reliable which includes testing it fully in front of lay and professional decision makers, however traumatic the environment may be for those involved. This ensures the democratic rights of the defendant are treated with equal importance in the process and helps to construct a framework that protects itself as best as it can against miscarriages of justice.
When miscarriages do occur in jury cases, debate on alternatives is encouraged. The concept of trial by judge alone finds favour in the inquisitorial system, where lay involvement is more limited. The key differences begin with the pre-trial process, where all evidence from the heavily regulated investigation is documented in a case file. This is assessed by the judge, attempting to establish the truth as the basis for his verdict during a trial where there may be an absence of or minimal form of jury (Pakes, 2004, p. 74). The suggestion is that this process may help to produce a fast, efficient and quality form of justice that is less prone to error. However, as Pakes (2004, p. 80) argues, the limited lay involvement also means the state plays a more prominent role.
Adversarial and inquisitorial justice can be seen in many forms in western societies, with varying degrees of lay, professional and state involvement. For example, Pakes (2004, p. 77-78) argues that the United States applies even stronger adversarial principles than our own, with lawyer examinations particularly rigorous and less judge involvement. Furthermore, Pakes (2004, p. 109-110) demonstrates that some countries who have used juries in the past are gradually returning to them, while others are quite satisfied with a juryless system. Equally, Jackson (2005, p. 763-764) argues that European nations are gradually moving away from the traditional adversarial or inquisitorial models, instead simply concentrating on achieving standards of fairness within their criminal justice systems.
In conclusion, trial by and sentencing by ones peers forms an important historic and symbolic response to law breaking and provides an example of direct democracy in action. But the adversarial system’s fundamental dependence on lay over professional justice is by no means the only democratic, just and fair response. No system can be perfect, be it adversarial, inquisitorial or some convergent form. An overriding system change would doubtless be strongly resisted, but criticisms that arise must be addressed.
Firstly, lack of diversity will always be a complicated matter because it is difficult to truly represent all shades of society. However, attempts can be made through a responsible selection process that accounts for the professional and personal profiles of lay participants. Secondly, an inefficient system is hard to defend, therefore lay magistrates should seek to create a business-like streamlined process that still ensures the quality of justice provided. Finally, the European Convention on Human Rights represents the ideal opportunity to improve the transparency and accountability of lay decision making to demonstrate just and fair reasoning. This could controversially include opening the door to the jury’s deliberation room.
A democratic criminal justice system should accommodate society’s needs, whilst progressing empathetically and in line with the international community. England and Wales proudly boasts continuing lay involvement in an increasingly professional world, but must demonstrate through innovation and reform that this remains an effective approach.
References
Auld, Lord Justice (2001). Review into the Workings of the Criminal Courts in England and Wales – Chapter 4: Magistrates. Retrieved May 6, 2008, from the Criminal Courts Review website:
Darbyshire, P. (2002) ‘Magistrates’ in McConville, M., & Wilson, G. (Eds.). (2002). The Handbook of the Criminal Justice Process. Oxford: Oxford University Press.
Davies, M. Croall, H., & Tyrer, J. (2005). Criminal Justice: An Introduction to the Criminal Justice System in England and Wales (3rd ed.). Harlow, Essex: Pearson Education.
Doran, S. (2002) ‘Trial by Jury’ in McConville, M., & Wilson, G. (Eds.). (2002). The Handbook of the Criminal Justice Process. Oxford: Oxford University Press.
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Jackson, J. (2005). The effect of human rights on criminal evidentiary processes: towards convergence, divergence or realignment? [Electronic version]. Modern Law Review, 68(5), 737–764.
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Pakes, F. (2004). Comparative Criminal Justice. Cullompton, Devon: Willan.
Pakes, F. (2007) ‘What is wrong with adversarial justice?’ in Ellis, T. (2007). Issues in Criminal Justice Level 2 (4th ed., version 2). Portsmouth: University of Portsmouth.
Rogers, B. (2006). Public engagement in criminal justice. Retrieved May 2, 2008, from Institute for Public Policy Research website:
Savage, S. (2007) ‘The case for lay justice’ in Ellis, T. (2007). Issues in Criminal Justice Level 2 (4th ed., version 2). Portsmouth: University of Portsmouth.
Seago, P. J. (2000). The development of the professional magistracy in England and Wales [Electronic version]. Criminal Law Review, August, 631–51.
