COMPAREand EVALUATE the role of lay justices in Scotland, England and one other foreign jurisdiction, such as ONE State in USA or ONEState in Australia such as New South Wales, in the summary criminal justice system.

00024015 Comparative Justice

DEGREE OF B.A. LEGAL STUDIES 3

Comparative Justice

Coursework 1

COMPARE and EVALUATE the role of lay justices in Scotland, England and one other foreign jurisdiction, such as ONE State in USA or ONE State in Australia such as New South Wales, in the summary criminal justice system.

As the question above clearly states the piece of writing will be comparing and evaluating the role that lay justices actually play in Scotland and England and in this particular situation Queensland (Australia) in with the criminal justice system. In the evaluation of the three criminal justice systems looked at will be things like the strengths and the weaknesses, whether or not they are effective and fair, how much it actually costs, the workload and qualifications that are involved in it, things like public opinion and the appeals procedure will also be looked at. In looking at the three in their different contexts various comparisons will arise from the evaluation of key issues before developing a reasoned conclusion that will sum up all of the information that has been gathered and is relevant to the issue at hand. As well as looking at the court system legislation and case laws will also be assessed in the evaluation of the lay justices and their roles in the various criminal justice systems.

Taking firstly the Scottish system which is the newest as it is very much based on many elements of the English system but while getting more and more into its own as time progresses. An example of this is the continuing development of the Scottish courts which continues to be a stable link in the system as it has been for a long time. As with all three systems the history is an important area to look at as it provides a backing. In the twelth century travelling judges called justiciars that dispensed justice in both criminal and civil matters. The system eventually went on to be disgarded due to disuse. The high court of justiciary was then founded in 1672 and as like it is now was staffed by court of session judges. The district courts in Scotland are staffed by lay justices of the peace. The justices of the peace are appointed by the secretary of state for Scotland on the recommendation of a local advisory committee. There is a requirement that they should be a resident of the area or live within fifteen miles of the commission area. The committee is responsible for selecting candidates for the position. People are generally accepted on the principle basis that they are honest and the level of public service they have undertaken or are involved with at the time. There is however no requirements relating to age, gender, background or race although like many positions committees are aware of the need for ethnic minorities and females to be represented at the very least equally. Political balance may be taken into account by the committee but isn’t a set down requirement.

The training that the justices go through is however a requirement and also they are required to keep their training regime up to date, it is that essential a requirement that if a justice of the peace fails to attend training for a period of more than six months then they may be removed of their duties and placed on a supplemental list. Justices can also be removed due to mental illness reasons and when they reach the age of seventy they no longer sit on the bench but they are still available for signing duties as well as being placed on the supplemental list.

When sitting in court justices of the peace are assisted by a clerk or a legal assessor who will be legally qualified. They are there to advise in the management and administration of the courts, giving advice on matters of law and law related issues. The clerk however has no participation in any decision making processes, i.e. sentencing or finding guilty etc. There are sheriff courts in all the districts that under the six sheriffdoms that are in Scotland. In addition to full time sheriffs there are floating sheriffs who are there to fill in when the sheriff isn’t available ...

This is a preview of the whole essay

Looking at the English justice system it is important to look at the background as a starting point as it can be traced as far back as 1195 when Richard the first actually commissioned certain knights to ensure law and order, these knights later became known as knights of the peace later becoming known as justice of the peace. Until the reorganisation of local government fixing wages, controlling roads and bridges and administering laws were duties all carried out by justices of the peace. Moving on towards now it is essential to realise how important the magistrates court in England is. Magistrates courts deal with a high percentage of criminal cases, the average cost of a trial in the magistrates court is around fifteen hundred pounds as opposed to the huge amount of around thirteen and a half thousand pounds that a trial in the crown court costs. The magistrates court is mainly concerned with criminal cases but does involve itself in other areas as well as supplying justices for the youth court that deals solely with young offenders. Magistrates are lay people of whom the Lord chancellor appoints from the local community by the recommendation of committees They then sit on a bench of three and thus make there collective decisions on matters that arise for them to deal with. Lay magistrates are assisted and advised on matters of law by a clerk which is a qualified lawyer who’s functions are set out in the Justices of the Peace Act 1997 section 45 (4), they have to go through a training regime that gets updated several times throughout there appointment. Responsible for this training is magistrates commission committee who provide the training under the supervision of the judicial studies board. They are not expected to be experts on the law, thus meaning the point of the training is to at least familiarize them with court procedure, the techniques of chairing, and the theory of practising and sentencing. There are around thirty thousand lay magistrates. It is an obvious argument to say that lay magistrates are not qualified enough to hear criminal cases. An argument against this would be to say that the involvement of community members is effective in ensuring that people are judged by their peers and not by people who are deemed as professionals in the field whose lives and situations are invariably different. The use of lay magistrates is also substantially cheaper.

There are really only two criminal courts in England the magistrates court and the crown court, as previously stated the magistrates curt deals with most criminal cases and in nearly all criminal cases the magistrates court summarily has some involvement in at least the early stages of these cases. Magistrates are entitled to and have the power to try summary cases, which are tried without the need for a jury, they may also deal with some cases which are tried before a jury in the crown court. The maximum prison sentence that they can impose is six months set out under the Magistrates Courts Act 1980. The maximum fine under the Criminal Justice Act 1991 in relation to summary offences is one thousand pounds. Also within their remit they can impose a community service order or a probation orders as an alternative as well as the power to absolutely or conditionally discharge offenders. The organisation of the magistrates courts was reformed by the Police and Magistrates Courts Act 1994 which amended the Justices of the peace Act 1979, coincidentally the two acts have consequently been consolidated into the justices of the peace Act 1997. The country is divided geographically into one hundred and five commissions which are then sub divided into what are known as petty sessional areas or benches of which there are around six hundred, though they vary considerably in size. Each petty sessional area has its own counthouse and justices clerk. A centralised magistrates court agency is responsible for running the magistrates courts service and is directly answerable to the relevant minister. Another main function is that they hear various applications pertaining to bail. They also exercise an element of control over the investigation of crime since they deal with these applications for bail as well as requests by the police for search warrants and arrest warrants.

The system costs around two hundred million to a year to run but it brings in around two hundred and seventy million from fines, fees and fixed penalties. Paying professional judges rather than justices of the peace to deal with such a vast amount of cases would undoubtly be far more expensive, as the estimated salaries alone would be at least one hundred million not counting the cost of training. As well as this it would take a very long time to actually obtain the required number of suitable candidates. Crown court trials would also be more expensive as the estimated cost of a contested trial would cost around thirteen and a half thousand with guilty pleas at a high two thousand and a half pounds in reflection to lay magistrates where it would be one thousand and a half and five hundred respectively.

Another advantage is the balance factor of having magistrates sit in groups of three which in turn makes a balanced view more likely. Magistrates usually also live within a close proximity of the court in which they are involved with, looking at this it can be presumed that they have a more detailed picture of local life whereas professional judges most likely will not. There is however a disadvantage in that there is an element of inconsistency of different benches. Most notable are cases that involve legal aid and various types of sentencing, an element of fairness should b carried out as in the crown courts where there are professional judges whose conduct is closely scrutinized by the court of appeal. Professional judges could perhaps sit with lay magistrates but due to the expenses involved it may never come to more than a thought.

Before going on to talk about the comparisons between Scotland, England and Queensland (Australia) the last system has to be talked about. As Australia had became an English colony the use of justices of the peace had been established. Throughout the nineteenth century the role developed and although it was people who had large landholdings were still the main candidates for appointments as justices of the peace.

The office of the justice of the peace has its origins in England in the fourteenth century. Over time, there have been many changes in the nature of the role undertaken by justices of the peace.

Now, Australian justices of the peace have very little in common with their English and Scottish counterparts as they will never have the occasion to constitute a magistrates court. The justice of the peace must consider that they may adequately punish the defendant by imposing a penalty that is not more than 100 penalty units or six months imprisonment.

Today justices of the peace have a well defined role in society and come from a broad cross section of our multicultural society. They are no longer exclusively male landowners but rather they are both men and women who want to serve their communities and fellow citizens in a way that carries on the best traditions of the legal heritage.

In Australia there are now four categories of justice of the peace rather than the traditional justices of the peace. There are those who are qualified and have passed an exam on the administration of the law and their roles in it. There are also justice of the peace who are employed in the magistrates court who are appointed to act as justices because of the job they do. These justices of the peace are also appointed in remote areas of Queensland where the magistrates either visit very rarely or not at all. In these areas justices of the court are to preside over a magistrates court. There are commissioners for declarations (justices of the peace) who were justices before November 1991 and have not done an exam to become qualified due to the fact that prior to 1991 there wasn’t a pre requisite that this had to be done.. These commissioners for declarations are people who have a main function that encompasses the witnessing of signatures on legal documents etc. Anyone can become a qualified justice of the peace presuming they can pass the examination to a satisfactory level and they are on the Queensland electoral role and are of good character, but to become a commissioner for declarations no examination has to be sat. They have the power to issue warrants and summonses. In Australia the system incorporates legislative, executive and judicial as arms of the government. The high court is the final court of appeal in respect of all matters. With regards to going back to the justices, originally they were appointed for life but the over seventy rule is applied now. Justices of the peace have the power to take affidavits and statutory declaration and witness the execution of various should be exercised.

After looking at Scotland, England and Queensland Australia the first very clear indication is that the base of the powers of the lay magistrates, justices of the peace can be rooted back to the English model. Throughout the writings on the three some differences and similarities are obvious. In Australia’s case at one point was almost identical to that of England’s but throughout time t has moved on to establish its own persona. It entails one where the justices of the peace have less power than in England and Scotland respectively, as well as needing to be more qualified thus meaning that they do not have as much assistance of that of the other countries. Scotland is more like in England mainly due to the fact that they are the same island and the laws relate to north and south of the border with respect to both the systems, it is this overlapping which causes more similarities and a higher emphasis on justices. Due to the volume of information that is accessible in the English situation and to a lesser degree Scotland and Australia it is evident that there is not as many comparisons as there could be as not everything is easily accessible, but there are comparisons which can be drawn from all of the sections on the three justices. Such as the English courts unlike the Scottish district court must be heard by a minimum of two justices and a maximum of three who then decide whether the trial should be summary. The clerks are a main similarity between Scotland and England and where in Australia until the reform on qualifications as introduced. The over seventy rule is another comparison between the three but it is obvious the main comparisons are the roots that Scotland and Australia share with England.

From building up a picture of the Scottish system along with the English System and the system employed by Queensland in Australia as stated in the writing it is very evident of the roots of the English system in the Scottish system and the Australian system. There is more information given with regard to England not because of any underlying fact but because of the roots that are implored throughout the areas in Scotland and Queensland, not to sound to repetitive in the nature of this writing and lack of coherent information in the research that was done with regards to the question set out is also a reason. The role that the lay justices in all three concerned areas is a very important one in each case. As stated in the writing the financial benefits are a major build up point along with the fairness that can come along hand in hand with common people sitting in court. Along with benefits there are also doubts and concerns which are raised and the most common ones encountered in the research were the unqualified nature of the lay justices and the incoherence and lack of consistency were also a worry. As with all things in the world there are benefits and advantages and the benefits outweigh the disadvantages due to the financial relief and the fact that ordinary people can have an impact. Although the bad points cannot just be dismissed they can be worked on and in many cases are being worked on. Things such as professional people aiding justices of the peace an fully qualified magistrates who could be used along with lay magistrates is just one obviously good idea that can be taken from the current situations. Although not easy reforms of the systems cab be achieved and can make things better for the long term future mainly in regards to consistency and professionalism.

BIBLIOGRAPHY

Sapsford, S (1996), Researching crime & criminal justice, The Open University
Holborn, C (1996), Butterworths Legal research guide,London Butterworth
Slapper, G & Kelly, D (2001) 5TH edition, The English legal system, Cavendish publishing
Williams, K (2000) 4TH edition, textbook on criminology, Blackstone press Ltd
Findlay, J (2000), All manner of people (the history of the justices of the peace in Scotland), The Saltire society
White, R & Willock, I (1999), The Scottish legal system 2nd edition, Butterworths
Duff, P & Hutton, N (1999), Criminal justice in Scotland, Ashgate publishing
www.scotland.gov.uk/cru