Lay magistrates deal with the vast majority of criminal cases in the English legal system. All criminal cases start in the Magistrates' Court and around one million cases a year are heard by Magistrates. They uphold the important principle in our legal system of trial by one's peers. Lay magistrates are appointed by the Secretary of State for Constitutional Affairs and the Lord Chancellor on the advice of the Local Advisory Committees. They do not, strictly speaking, hold a judicial office.
However it must be noted that a district judge, who may at times preside at a magistrate's court, is a judicial officer and is appointed in the same way as an inferior judge. Although lay magistrates do not need to have any formal legal qualifications there are some requirements which were set out by the Lord Chancellor in 1998. These are known as the six key qualities and are as follows; good character, understanding and communication, social awareness and maturity, sound temperament and judgement, commitment and reliability.
Appointment is by way of a two-stage interview process. The first interview is used to find out more about the candidate's personal attributes, the panel are particularly interested in the six key qualities mentioned above. The candidate will also be questioned to find out their attitudes on various criminal justice issues such as drink driving and young offenders. The second interview is aimed at testing the candidate's judicial aptitude; this is achieved by a discussion of at least two case studies which are typical of those normally heard in the Magistrates' Court.
Once the interviews are completed the advisory committee will submit the names of the suitable candidates to the Lord Chancellor who will then appoint new lay magistrates from this list. Lay involvement in judicial decision-making is intended to ensure that the courts are aware of community concerns. However, given the restricted social background of magistrates, and their alleged bias towards the police, the true value of this may be doubtful.
Magistrates do not have the option, as juries do, of delivering a verdict according to their conscience. It is also a weight of numbers and the simple fact that magistrates must usually sit in threes may make a balanced view more likely. Local knowledge is seen as essential as magistrates must live within a reasonable distance of the court in which they sit, and therefore, being picked from their local constituency, many have a more informed picture of local life and the problems facing the public within it than professional judges.
It has traditionally been assumed that because lay magistrates are unpaid volunteers and are relatively low cost, they are understandably cheaper than their professional colleagues as the majority of magistrates deal with an enormous amount of summary offences which would be seen to be a waste of a qualified judge's time. However, when considering the disadvantages certain questions must be raised as to whether or not they are trained adequately considering someone's livelihood is at stake. Is cheap justice good justice? And do they fully understand the law?
Indeed magistrates do have a legally qualified clerk present in court to assist them on points of law if necessary, who must also in turn be paid, but this does not necessarily mean they will fully understand it. In addition to this; the time spent considering such advice makes them significantly slower than professional judges (one judge handles as much work as 30 magistrates). Ultimately, despite being 'true representatives of the people'6, this does not necessarily mean they are proficiently capable of handling out justice.
The Home Office noted in the Managing Criminal Justice Report 2005 that, though benches tried to ensure their own decisions were consistent, they did not strive to achieve consistency with other benches. To achieve the fundamental goal of a fair trial; 'similar crime committed in similar circumstances by offenders with similar backgrounds should receive a similar punishment. '7 This report was initiated as a result of numerous complaints that magistrates were biased towards the police.
There is a suspicion that magistrates tend to favour the police in particular resulting in a distinct level of prosecution bias leading to conviction rates in the magistrates' court being much higher than the Crown Court. Police officers are frequent witnesses and become well known to members of the bench and it is alleged that this results in an almost automatic tendency to believe police evidence. This view gained greater credibility when one magistrate was reckless enough to admit it in R v Bingham JJ ex parte Jowitt (1974): a speeding case where the only evidence was that of the motorist and a police constable.
The chairman of the bench said: "Quite the most unpleasant cases that we have to decide are those where the evidence is a direct conflict between a police officer and a member of the public. My principle in such cases has always been to believe the evidence of the police officer, and therefore we find the case proved". 8 The conviction was quashed on appeal because of this remark. The stereotypical view of the background of lay magistrates also serves as a significant disadvantage as they should be seen to have come from varied social backgrounds.
However the facts are that they remain to be predominantly white, middle class and middle-aged, with a strong Conservative Bias. The selection process has been blamed for the general narrowness of magistrates' backgrounds: Elizabeth Burney's 19799 study into selection methods concluded that the process was almost entirely dominated by existing magistrates who over and over again simply appointed people with similar backgrounds to their own. Magistrates from a narrow social and ethnic background do indeed make the bench unrepresentative of the general public thus weakening confidence further in it's decisions as a part of society in general.
Furthermore; for them to be seen as unrepresentative of the community as a whole is unequivocally damning to the justice system. Downs' argument that those 'set in authority over us always tend to be middle to upper class'10 is not a good enough reason in itself for not trying to change things. Furthermore, while men and women are represented almost equally in the magistracy, the number of ethnic minority magistrates gives some cause for concern. Despite this reflecting the general percentage of minority communities in the population, this still means that 'white' benches administer justice in areas where communities are much more diverse.
Points to consider when countering such criticism against lay magistrates are that although they do tend to be middle-class and only represent a narrow strand of society, magistrates are probably nearer in social context to defendants than judges and ultimately they can be chosen only from those who come forward. Middle-aged and middle-class people are more likely to have sympathetic employers who will not make it difficult for their employees to become magistrates. Moreover, since they lay magistrate is paid expenses only; many people cannot afford to take on such a commitment.
One of the benefits of having lay magistrates is that justice is given a local flavour and magistrates can decide to take a stronger line with particular offences in their area. Also, it would be impossible, given the number of cases arising on a daily basis, to report and digest all cases immediately, which is what would be needed to ensure complete consistency. This prevents the administration of justice falling totally into the hands of lawyers, and so preserves lay representation and public confidence in the system.
Magistrates get through cases quickly and the decisions tend to be accepted, with relatively few appeals as a result. One reason for this is that the majority of cases dealt by magistrates include some of the more routine, less serious (summary) offences, such as those relating to road traffic. Elaborate defences are therefore rare when compared with cases in the Crown Court where the outcomes are much more serious and the trial process takes longer given that a person's liberty is at stake.
Like juries, lay magistrates have played a significant role in history, and from the 14th century to the 19th century the role of magistrates as 'justices of the peace' provided an important link between the Crown and the local people in the maintenance of the area, the collection of taxes and ultimately, the justice. Although their role is now more limited, the historical thread remains; lay magistrates are local people, often well known in their community who are responsible for administering justice in the local criminal courts.
They do also have an advantage over juries in that they do receive some training (jurors are, by contrast, are limited to brief instructions). Improved training programmes operated by the Magistrates' Committee of the Judicial Studies Board are compulsory for all lay magistrates. This means that although they do not have extensive legal knowledge, magistrates are trained in the areas of law which commonly arise before them. This is supervised by the Judicial Studies Board which decides the key areas which Magistrates need training on.
The training itself is carried out locally, often by the clerk of the court. One of the great strengths of the English legal system is the participation of ordinary people in the administration of justice. Another area where this is seen in the criminal justice system is in the higher courts where juries are used. When it comes to the position of magistrates and juries as a form of unqualified judges, it seems as though the use of magistrates for ninety-five per-cent of criminal cases has decreased the role of the jury in the justice system.
It has even been suggested that 'there is no need at all for the jury in the justice system'11 as they try such a menial amount of criminal cases (indictable offenses) and some civil cases, such as defamation. It has often been argued that it is an ineffective method of promoting justice as some of the cases (such as fraud) are too difficult for such "ordinary" members of the community to understand (although section 44 of the Criminal Justice Act 2003 says that the prosecution may, in very serious cases apply for trial by judge alone).
It may be a problem for the court in that they cannot question the decisions of juries (Section 8 of the Contempt of Courts Act 1981) and that juries do not need to give reasons for their decisions. It has also been suggested that lay people such as juries are given too much power. The Auld Report 2001 suggested that juries will often acquit defendants on the basis of conscience, or because they feel that the sentence is too harsh.
This links in with the concept of the 'dishonest juror', and suggests that juries will often favour the defendant if the offense involves matters that they do not consider to be wrong. Such opinionated decision-making will undoubtedly lead to unjust decisions. For example, in the case of R v Young (1995)12 the jury claimed to have been contacted by the deceased victim in an 'ouija board'. Needless to say it was necessary for a re-trial to be conducted.