‘The lay magistrates should deal with issues of fact only; the District Judge should have no role in fact-determining, and should consider issues of law and sentencing only. This should increase the consistency of sentencing (by professional District Judges), improve the quality of legal advice to the bench, while making the approach to fact-finding (in tandem with the changes outlined below) more comparable with that of a jury, more representative of the views of society and less subject to the risks of a ‘case-hardened’ approach to the evidence.’[12]
However, astute criticism of this method have suggested that such a result would amount to unjust decision making rather than one of a majority or a unanimous verdict between the three judges. Darbyshire argues that this in effect would consequently lead to District Judges playing the significant role as the decision-maker, whilst Lay Magistrates are puppets in process of this.[13] Therefore, for those on committal, this method would ensure an impractical, unjust procedure to reach a decision.
Moreso, at present there appears an over-reliance on the Justices’ Clerk, whom plays an administrative provision of advice, during proceedings involving lay magistrates. This too has been called for reform during recent years, where suggestions of appointing them to the bench to rule the points of law, whilst the Justices consider the facts; or providing them with authority to deal with pre-trial matters. This is essentially to reduce time delays, since currently one professional judge can handle case workloads of up to 30 lay Justices, given their lack of knowledge and legal understanding.[14] Though Darbyshire opposes this proposal and stresses the rationale of judicial activity and administrative function.[15]
‘…Justices’ Clerks are essentially legal advisers, hired and fired (by the Court Service). They are not judges. They are meant to serve judges. Justices and District judges are the judges’[16]
This would ascertain a function which would undermine the lay magistracy; if reforms are to be considered then ultimately the government should aim to focus centrally on the level of professionalism within the magistracy, rather than demoting their judicial control. Theoretically, the advice of the clerk is a requirement for the Magistracy panel, in order to make a judgement on a criminal case. Where lay Justices have failed to do this, they will be held liable for costs of the stated case, should there an appeal against their decision.[17]
Although no legal qualification is a requirement, lay magistrates do obtain training prior to the judicial task. This enables them to possess a basic understanding of the English Legal System, and allows them to familiarise themselves with the procedure. The issue of variation within training schemes has been highlighted across England and Wales. They have appeared variable in quality and the inadequate levels of workload have been assumed to result in variation within the sentencing processes.[18]
Evidently, this participation is also extremely cheap, in contrast to the employment of full time District Judges. It appears that a Justice’s expenses on average per year tend to be approximately £495, whereas a District judge’s can sum up to £90000 annually.[19]
Furthermore, it can also be drawn that Lay Justices also bear a local knowledge. According to Harry Mawdsley (the chairman of the Magistrates association):
‘Lay Magistrates provide community justice; they are ordinary people who live and work in the local community and who have an intimate knowledge of that community’[20]
Professional judges tend to hear cases from various regional areas in both England and Wales, whereas lay Magistrates are required to live within a certain mile radios to the local Magistrates’ Court. This clearly echoes the idea that lay Justices carry a heightened awareness of the local area, in contrast to that of a District judge.
Despite this though, many have raised the debate regarding the judicial system to lack representation of class diversity. The Report of the Royal Commission on the Justices of the Peace in 1948 depicted that more than three-quarters of Magistrates held professional or middle class occupations.[21] Frankly, within the contemporary lay magistracy, the socio-economic has proved to remain an issue. This may be exemplified throughout Morgan and Russell findings: where in a metropolitan deprived region- 79% of the lay magistracy were of managerial, professional occupations. However, this socio-economic population within the region was only 20%.[22] This may be on the grounds of employment- where some employers are willing to provide time-off work for employees to serve on the bench. In addition to this, the fact that the role requires an ability to understand and communicate, identify the relevance within the nature of facts and follow up evidence/arguments ultimately characterises an “old boy network” selection process; and working class members of society subsequently do not relate to such a role. Others factors may be simply due to the idea that the Lay Magistracy is solely voluntary and unpaid.
This substantiates the long standing criticism that the Magistracy consists of “middle class, middle minded, middle aged” members of society and are prosecution biased or readily accept the word of the police.[23] The fundamental factor to draw upon here is whether such socio-backgrounds affect the inconsistencies in sentence disposals.
For many years, the government had also adopted a policy to inquire on an applicant’s political affiliation, to assure social and political balance within the lay magistracy. It was highlighted that followers of the Conservative party outweighed those voting for Labour, in light of the characteristics of the Magistracy; at which stage working class had on the majority voted for Labour, whilst the middle/upper middle class were Conservative voters.[24] However, in light of the consultation paper issues in 1998[25], this method was scrapped during the latter of 2003, and replaced with the question of employment instead, in the attempt of achieving a balance according to the society of the contemporary day.[26]
In respect to the lack of representation, the government has issued a white paper[27], proposing the recruitment of younger magistrates, since currently only 4% of magistrates are under 40 years of age.[28] Darbyshire also found that the Magistracy consisted within an age bracket nearing the retirement age.[29]
‘…it is important that bench has balance of sexes, professions and political allegiances…’[30]
In 2005, the judicial statistics proved evidently that there appeared a balance on the issue of gender: 14519 were men and 14346 were women.[31] This clarifies a general figure calculating the gender balance within England and Wales. However, the fact is on a panel three lay Magistrates, the ratio may appear 2:1 (female to male, vice versa, or a dominant gender group sitting as a panel). This may result in a partial bias during the decision making process, where the dominant gender may be more inclined to dispose sentences, provided the nature of the case.
Furthermore then, the question whether the magistracy is one that is representativeness of the ethnic minority has been raised. Lay participation is essentially a method which allows the ordinary member of society to partake within the English Legal System, to provide those accused of crime with a just, fair and impartial decision. Besides this, it is crucial that the legal system sheds a societal spectrum; hence a cross section of society must be represented.
Morgan and Russell stated that:
‘…the composition of the lay Magistracy is now approaching ethnic representativeness, that is 2% black, 2% of Indian sub-continent or Asian origin and 1% other – as against 94 white, 2% black, 3% Indian sub-continent or Asian origin and 1% other’[32]
Although statistical figures indicate a fair representation of the ethnic groups, with the magistracy accounting for 6% and society- 7.9%[33], the majority of defendants still believe that the magistracy is yet predominantly ‘white, male bastion’. Defendants of ethnic minorities have stressed that they would like to see more Magistrates partaking within the criminal proceedings.[34]
To conclude then, the lay magistracy does prove to play a significant part of the English legal system, given the fact that the bulk of criminal cases are dealt before them. The focal agenda in which the government should aim to achieve is a magistracy which reflects society, on the balances of socio-economic background, sex, ethnicity and so fourth. The core value such a participation serves is not only to alleviate extortionate costs, but also to reach just decisions, in finalising a trial. With a system which indicates a high level of inconsistencies in sentence disposals, such an issue may be a factor consequent to the high numbers in middle class magistracy. Offenders within deprived regions are bound to be of a working class or underclass social background- this clearly indicates the level of inadequacy and social imbalance between an offender and a magistrate.
Despite professional judges possessing legal knowledge, magistrates in general acquire similar characteristics. However, two heads are better than one, therefore the basic idea of three magistrates sitting as a panel is bound to create a balanced view or decision likely to result. Reforms should be considered to the extent that ethnic minority members are representatives on each bench[35], rather than unifying the magistracy as one professed full time role.
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[1] Kelly, D & Slapper, G (2009), The English Legal System (10th Edition). Oxon: Routledge-Cavendish. p.237
[2] Zander, M (2009), Cases and Materials on the English Legal System (10th Edition). Cambridge: Cambridge University Press. p.20
[3] (Updated 1st April 2010) accessed 25th April 2010.
[4] Kelly, D & Slapper, G. op. cit. p.237
[5] Access to Justice Act 1999, (c.2, s.78)
accessed 25th April 2010.
[6] Zander, M. op. cit. p.20
[7] Darbyshire, P, ‘An Essay on the Importance and Neglect of the Magistracy’, Criminal Law Review, (1997), pp. 627-43 at 645
[8] Ibid, p. 627 at 645
[9] Padfield, N (2003) Texts and Materials on the Criminal Justice Process (3rd Edition). London: LexisNexis. pp 277
[10] Morgan, R & Russell, N. op. cit. pp. 50-52
[11] The Royal Commission on Criminal Justice, Hansard, HC Deb, vol 227, cols 433-4, (24 June 1993)
[12] Response to the Auld Review of the Criminal Courts (January 2002), Liberty, pp 8-9
[13] Darbyshire, P (2002) ‘Magistrates’ in McConville, M & Wilson, (eds.) The Handbook of the Criminal Justice Process. Oxford: Oxford University Press. pp.292-293
[14] Morgan, R & Russell, N. op. cit. pp. 50-52
[15] Darbyshire, P, ‘A Comment on the Powers of Magistrates’ Clerks’, Criminal Law Review, (May 1999). p 37
[16] Darbyshire, P (2000) ‘Raising Concerns about the Magistrates’ Clerks’ in Doran, S & Jackson, J (eds.) The Judicial Role in Criminal Proceedings. Oxford: Hart Publishing: p. 186
[17] Jones v Nicks [1977] RTR 72
[18] Elliot, C & Quinn, F (2007) The English Legal System (8th Edition). Essex: Pearson Education Limited. pp. 244-245
[19] Ibid, p. 249
[20] ‘Do Justice to the Bench’ (2001), ‘The Guardian’, (updated 21st January 2001), accessed 27th April 2010
[21] Royal Commission on Justices of the Peace (1948). London: HMSO (1946-48) (Cmd 7463)
[22] Morgan, R & Russell, N. op. cit. p. 16
[23] Zander, M. op. cit. p.22
[24] Royal Commission on Justices of the Peace (1948). (1946-48) (Cmd 7463)
[25] Lord Chancellor’s Department (1998) ‘Political Balance in the Lay Magistracy’. London: Stationary Office
[26] Zander, M. op.cit. p.26
[27] Department for Constitutional Affairs (2005) ‘Supporting Magistrates’ Courts to Provide Justice’. Cm.6681. London: Stationary Office
[28] Elliot, C & Quinn, F. op. cit. p. 243
[29] Darbyshire, P, ‘For the new Lord Chancellor – some causes for concern about Magistrates’ Criminal Law Review’, (1997). p.863 in Doran, S & Jackson, J (eds.) The Judicial Role in Criminal Proceedings. Oxford: Hart Publishing: p. 186
[30] Kelly, D & Slapper, G. op.cit. p.240
[31] Department of Constitutional Affairs (2005) Judicial Statistics Annual Report. Cm.6799. London: Stationary Office. p.138
[32] Morgan, R & Russell, N. op. cit. p.14
[33] Elliot, C & Quinn, F. op. cit. p. 243
[34] Shute, S., Hood, R.G, Seemungal, F (2005) A Fair Hearing?: Ethnic Minorities in the Criminal Courts. Devon: Willan Publishing. pp118-119
[35] Ibid, p.120