Lay Magistrates occupy a particularly controversial position in the English Judiciary. They are usually unqualified in the law, being lay people and the Courts they rule over, the Magistrates Courts, do not have Juries; that is, whether a defendant did in fact commit a crime is determined by the Magistrate and not by a panel of the accused's peers1. Juries are often seen as a strong defence of individual liberty and trials without them are derided by elements of the press as being dangerous precedents2. The Magistrates Court, then, is a Court where the decisions of fact are essentially made by a "professional juror.
" Nonetheless, this still follows the principle of participative democracy, which has a rich history in English Common Law; that ordinary citizens should be involved in the decision making process of law. Magistrates themselves date back to the 14th Century, (p. 1, McKittrick, 2000. ) It could be said that there is no need for a Jury if the Magistrate is fair. Yet there is evidence to show that Magistrates are not fair, a direct results of their capacity as lay people; in fact, in regards to individual liberties,"[Magistrates] are less schooled in due process rights than judges." (p. 148 ,Belloni et al, 2000).
In addition they are "likely to be less attentive to procedural safeguards aimed at protecting accused persons" and "seen as pro police and prosecution-oriented. " (Ibid. ) Summary offences are still serious nonetheless; they can include the deprivation of the liberty of the accused, and as such, it appears to be non-controversial to suggest that they be taken seriously indeed: but the evidence put before us seems to show that Magistrates are not serious about those who appear before them.
It might have something to do with money; of particular importance, "the Lord Chancellor introduced fixed fees for contested trials. In the past you were paid by the hour, but now there are fixed fees for a trial… no one wants proper preparation. " (p. 150, Ibid. ) Fixed fees per trial give an incentive for Magistrates to see as many trials as possible; pay by the hour is not an incentive for any particular kind of action, but to pay Magistrates, Justices of the Peace, in a manner that might persuade them to treat trials less seriously probably has had unintended consequences; or not.
An incredibly high "98. 2% conviction rate" lends good credibility to Police forces who have political targets to meet. It could be possible that the unqualified character of Magistrates has lent itself to political manipulation. Yet for the amount of summary offences, 1,569,279 including motoring offences3, the Government spent 6. 4 billion on all UK Courts, less than 1% of the totality of public spending at this time. 4 So it could be said that some of the issues in the Magistrate Courts that concern the amount of interest Magistrates take in cases might be solved by financial assistance.
If it is the issue of funding, there is nothing intrinsic about Magistrates that makes them less able than qualified personnel. The restrictions previously described upon the ability of Magistrates seem to look towards finance as a primary issue. 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. 5 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%6; 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.