Comment Critically On the Use of Lay People As Decision Makers In the English Legal System.

COMMENT CRITICALLY ON THE USE OF LAY PEOPLE AS DECISION MAKERS IN THE ENGLISH LEGAL SYSTEM

A lay person is the term used to describe someone who has no formal legal qualifications. One use of lay lay people in deciding cases is Magistrates who deal with criminal cases in the Magistrate’s court. This is the criminal court, which deals with relatively minor offences (summary). In this court Magistrates perform the functions of both judge and jury. Juries are not used here. Therefore Magistrates decide on guilt and on the appropriate sentence. The use of lay people in the legal system is not confined to Magistrates. Juries and usually the members of tribunal panels are lay persons.

Magistrates are appointed by the Lord Chancellor after they are recommended by other Magistrates. Therefore we can distinguish a clear tendency to appoint the same type of people as themselves. Since Magistrates are not paid many of them are either retired or wealthy. Nearly all of them are professional people (retired teachers or business men and women). Taking a closer and objective look we can see that most Magistrates are either middle-aged or retired. Therefore it cannot be expected of retired people to cope with the same load of work as younger people. In this way they become more expensive to the state since more time and subsequently money is needed to deal with a smaller amount of cases. Furthermore the use of a clerk in the court room is also time consuming and expensive, but it is essential since lay Magistrates may come across (and they offend do) with a legal point or procedural matters they need advice with. The justifications used for using lay people in the Magistrate’s court are really not so essential. The most commonly used excuse is that ordinary people are best able to judge and sentence minor crimes. Another excuse given is that lay Magistrates are cheap. But this is controversial since clerks need to be paid and Magistrates get expenses and trials delay because the clerk needs to explain something to the judge. A lot of criticism has been directed towards lay Magistrates over the last few years. First of all Magistrates are not legally qualified. Therefore they make mistakes especially about the law. Moreover they tend to believe the police and the prosecution. They see hundreds of the same cases and hear the same excuses over and over again. They also know the local crime families since they live within a 15 mile radius from the court and they tend to make judgements based more on their personal knowledge rather than the facts. The excuse used that ‘the ordinary people decide’ is also controversial. Magistrates are not ordinary people. Nearly all of them are former professionals and therefore wealthy. Recent research has also shown that the middle classes are disproportionately represented. It has been argued that if all magistrates were paid legal professionals then England would have the same system as most countries. The problem is that there wouldn’t be enough magistrates to sit in court, or enough funds to pay them. It has also been suggested for 2 lay magistrates to sit with a district judge. The problem is that the magistrates would probably follow the district judge’s decisions. Another solution is for them to be better trained so that they can make fewer mistakes and rely less on the clerk thus saving time and money.

Despite all the above the Auld report concluded that Magistrates Courts do not require any major change and that the public has confidence in them. However attempts are made to improve the cross section of society and more applicants from different backgrounds should be encouraged. Payment of expenses will be improved and the hours reduced.

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Juries are also lay people who are found in the Crown Court. They are concerned with deciding the guilt of the defendant and they are involved in cases where the accused is pleading ‘not guilty’. They have to be satisfied that the defendant is guilty ‘beyond all reasonable doubt’ before they convict. Juries are used primarily in criminal cases and civil law when it comes to defamation, fraud, wrongful imprisonment, and malicious prosecution.

Juries are not legally trained and do not know how to decide the amount of money to be given to the claimant (Elton John V Mirror Group Newspapers and Grobbelaar V News Group Newspapers and Another). Moreover juries don’t give reasons for their decisions like judges thus making an appeal on grounds of the decision very hard. They also find complex cases difficult to comprehend, they are slow and expensive and they are unpredictable. They might make a wrong decision often based on humanitarian or sentimental reasons, even if the facts are against. Furthermore the way that juries are elected is not the most proper one. The electoral role is not an accurate reflection of the people that live in the particular area. Young people are likely to move around and not update the electoral information, and ethnic minorities and people who are trying to avoid paying local taxes are often not registered. We can see that there is not adequate representation of all groups in a body of 12.

There are many arguments in favour of the jury system. First of all they are considered to be the ‘Guardian of Civil Liberties’ in a democratic state. This is the traditional view that 12 people are more likely to produce a fair decision rather than one. It is also democratic for their to be trial by the man in the street. A jury takes away the possibility of bias or prejudice. It is fair for someone to be judged by his peers. Furthermore the jury reflect the view of society. Judges can be very out of touch with society since they tend to live in their little private world. A judge will always apply the law, regardless if society considers it to be unfair. The jury on the other hand may be influenced by their own sense of what is right or wrong, and when they feel the law is wrong they reflect that in their verdict. The verdict may be wrong in law but it cannot be questioned. (Auld report – take away the right to make a decision against the evidence – acquittal. - if implemented it may take away one of the greater advantages of trial by jury).

There are also many arguments against the jury. Juries are used only in a small minority of cases. Only 1% of the whole will be eventually tried by jury. The jury may often be not a cross section of society. We have seen that many people are not on the electoral role, and of those selected 38% will make excuses. (Auld report recommended – only automatic excuse is mental illness, use of telephone directories, representation of ethnic minorities when the D’s race is an important issue). Moreover juries are unreliable that’s why they were declined in civil cases, but the same applies in criminal cases. They are slow and therefore expensive. Jury trial costs £8000 day per trial. Trial in the Magistrates court costs only £2000 per day. In the Crown Court trial also lasts longer because of the jury. Also the factual situation that juries often are called to understand may be to complex for them to do so. They may never really understand it. (Auld report recommend – juries not used in complex and fraud cases).

Another critical issue is that juries may acquit for fear threat or bribery.

(Auld recommended – someone should be able to choose).