It could be argued, though, that even a qualified Judge, schooled in Law and the Rule of Law, would still take into consideration the rights of those put before his Court even when starved of resources. Since finance is a variable issue; i.e. we can hypothetically change it at any time, we should look at other comparisons between lay and non lay personnel. Lay Magistrates are supposed to be independent and aware; and they have advisors to assist. “All Magistrates courts are advised by a team of legal advisers (court clerks) who, since 1 January 1999, must be professionally legally qualified as a barrister or solicitor.” (p. 272, Davies et al, 2010) Their role is not in making decisions but strictly; “to provide independent advice to the Magistrates.” (Ibid.) And in selection, Magistrates are supposed to be just and fair people who come from the community to serve it. Some of the six traits they are supposed to possess are; “Good character and personal integrity” “Sound judgment: using objectivity” “Social awareness and an understanding of the rule of law”(p. 273, Ibid.) If Magistrates are not treating their cases seriously, to the extent that it would warrant their removal and replacement with a fully qualified alternative, we might ask whether those who choose Magistrates are doing their job properly.
So far, the appearance of a concerted effort to excuse Magistrates might have been made. Yet the problems with Magistrates that have so far been identified are ones that seem to be solvable by altering factors external to the Magistracy itself; funding, and selection. Indeed it might be suggested that the path of the qualified Judge was followed, the situation would become even worse. Magistrates have become experts at hearing cases quickly; the addition of Juries would make them last even longer and possibly clog up the system, as well as vastly increasing cost.
There is another factor to take into account; the English Judiciary has often been accused of being elitist. It is made primarily up primarily of men who come from elite educational institutions, but the Magistracy is actually much wider, and this is directly due to it's lay nature. The Magistracy is very almost fifty percent women (Ibid), but in other areas of the Judiciary, the percentage is much less. At its worst, there are no women in the Heads of Division and only 13.76% female Judges in the High Court, as of 2009. Furthermore, the white population of the United Kingdom is presently 92.1%; whereas the Lay Magistracy is 92.95% White (p. 275, Ibid.), which is a remarkably representational percentage for the Judiciary. In addition, Magistrates are drawn from the local community, (p. 272, Ibid). It could be said that a Magistrate from a Local Community is much more representative and in touch than a Judge who studied Law at a University and has practiced at the Bar. The public believe so, too; a survey showed that 63% of people thought that “Lay Magistrates represented the views of the community better than Stipendaries (63% compared to 9%.)”(p. 58, Morgan et al, 2000). It is true that those who are legally qualified must have a greater command and understanding of the Law; but simultaneously, they may not be able to identify factors in a case that a local Magistrate, given the proper facilities, could. That is to say that the concept of the Lay Magistrate is not flawed, but in fact has tangible benefits that legal professionals do not; it is the practical issues which restrain the Magistracy from fully providing justice.
There is another element. Whatever is discussed about the Judiciary, there are certain political elements that should be addressed. Although criticisms of Juries, the main group of other lay people who work in the Judiciary endure, little can be said against the semblance of democratic legitimacy that they add to a trial. Juries have thrown out cases that were almost clearly against the law based on their moral judgments; one instance was the “Ploughshare Four” that put out of service British aerospace jets about to be sent to Indonesia. While Magistrates do not have the wide purview that Juries have to throw out particularly offensive convictions, what they do provide is a symbol of justice that comes from the people. Whatever can be said of their practical efficiency, they do add a certain element of democratic value to the Judiciary.
The argument that if professionals were to replace Lay Magistrates, a greater degree of seriousness about procedural fairness would be brought into trials of summary offences is possibly quite flawed. According to Belloni et al, “a number of lawyers have a negative or at least equivocal attitude towards their role as a defender of the accused... they becoming increasingly inclined to assume the guilt of those charged,” (p. 150, 2000) and “do get case hardened... so the fact that defence lawyers can jump to that sort of conclusion is hardly surprising.” (p. 151, Ibid) so it is clear that not even professionals that work in the Magistrates Courts take a serious attitude to their work that we must assume would be carried over with a hypothetical professionalisation of the Magistrates.
What could be done is to train Magistrates alternatively or else better; at present, “Such training... is organised by either the Courts or the prosecution [who] are predominantly telling them about how to convict... they aren't telling them about the importance of seeing that the accused are protected.” (p. 148, Ibid.) It does not seem infeasible that rather than filling the Lay Magistracy with the ranks of professionals, a concerted attempt might be made to alter the opinions of those already within the Magistracy so that they take those under accusation more seriously. For instance, regular court users who were surveyed about their confidence in lay magistrates gave interesting opinions. “About one third of regular court users have a lot or a great deal of confidence in the work of lay magistrates.” (p. 58, Morgan et al, 2000). Over a half surveyed said there was a “great deal” or “a lot” of variation between different Lay Magistrates, (Ibid.) Some groups were more critical than others of the Lay Magistracy; 49% of Probation Officers cited “Inconsistency or variation in decision making” as a primary reason of discontent, and 37% of Court Legal Advisors claimed that Lay Magistrates “[Did] not know what they were doing or did not understand procedures,” (p. 59, Ibid.) Interestingly, overall, only 9% claimed that “they were biased” was their main reason for discontent with the Magistracy, which suggests that training in the skill of being a Magistrate can solve many of the existing problems. Professionals on the whole were more trustworthy; 86% of those surveyed have confidence in stipendiary magistrates as opposed to only 30% with lay magistrates (Ibid.) This suggests, purely hypothetically, that if Magistrates can be trained to the level of professionals, much of the problems with the Magistracy could be removed.
On balance, it appears that problems with the Lay Magistrates seem to come from technical issues of competency and funding structures; not actually flaws in the use of unqualified people. In fact, the use of unqualified persons in the legal system does present some theoretical benefits. Communities feel they are better represented by those that come from them. That lay people occupy the positions of basic, summary justice is the sign of a healthy democracy; the accused is being weighed against the moral standing and opinion of the community which they have harmed. Lay Magistrates do have their flaws; often, they are too much in favour of the prosecution, and generally like to keep their cases short, not giving sufficient time for a proper defence. Their concerns are seen to be more with the police and the authorities than the accused, and their competency and consistency comes into contention. Yet these issues can be worked on and made less pronounced with time and effort. Those who would replace the lay judiciary with professional, stipendiary magistrates as a short-term fix for alleged incompetency in the Lay Magistracy would do well to remember the traditions of a free judiciary that are enjoyed so greatly in England.
BIBLIOGRAPHY
Words: 1926
Books:
Belloni, F and Hodgson, J, (2000) 'Criminal Injustice, an Evaluation of the Criminal Justice Process in Britain', Macmillan Press
Davies, M, Croall H and Tyrer, (2010) Criminal Justice, 4th Edition, Pearson Education
McKittrick, N and Callow, P, (2000), Blackstone's Handbook for Magistrates, Blackstone Press Limited.
Research Papers:
Morgan, R and Russel, N (2000)'The Judiciary in the Magistrates' Courts', Home Office RDS Occasional Paper No. 66, Home Office: London
Websites:
- The Central Intelligence Agency Factbook
- The Guardian
- H. M. Government
- The Independent
- Judiciary of England and Wales
– Research, Development & Statistics, Home Office
- U. K. Public Spending