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.
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