As the question above clearly states the piece of writing will be comparing and evaluating the role that lay justices actually play in Scotland and England and in this particular situation Queensland (Australia) in with the criminal justice system. In the evaluation of the three criminal justice systems looked at will be things like the strengths and the weaknesses, whether or not they are effective and fair, how much it actually costs, the workload and qualifications that are involved in it, things like public opinion and the appeals procedure will also be looked at.
In looking at the three in their different contexts various comparisons will arise from the evaluation of key issues before developing a reasoned conclusion that will sum up all of the information that has been gathered and is relevant to the issue at hand. As well as looking at the court system legislation and case laws will also be assessed in the evaluation of the lay justices and their roles in the various criminal justice systems.
Taking firstly the Scottish system which is the newest as it is very much based on many elements of the English system but while getting more and more into its own as time progresses. An example of this is the continuing development of the Scottish courts which continues to be a stable link in the system as it has been for a long time. As with all three systems the history is an important area to look at as it provides a backing. In the twelth century travelling judges called justiciars that dispensed justice in both criminal and civil matters.
The system eventually went on to be disgarded due to disuse. The high court of justiciary was then founded in 1672 and as like it is now was staffed by court of session judges. The district courts in Scotland are staffed by lay justices of the peace. The justices of the peace are appointed by the secretary of state for Scotland on the recommendation of a local advisory committee. There is a requirement that they should be a resident of the area or live within fifteen miles of the commission area.
The committee is responsible for selecting candidates for the position. People are generally accepted on the principle basis that they are honest and the level of public service they have undertaken or are involved with at the time. There is however no requirements relating to age, gender, background or race although like many positions committees are aware of the need for ethnic minorities and females to be represented at the very least equally. Political balance may be taken into account by the committee but isn't a set down requirement.
The training that the justices go through is however a requirement and also they are required to keep their training regime up to date, it is that essential a requirement that if a justice of the peace fails to attend training for a period of more than six months then they may be removed of their duties and placed on a supplemental list. Justices can also be removed due to mental illness reasons and when they reach the age of seventy they no longer sit on the bench but they are still available for signing duties as well as being placed on the supplemental list.
When sitting in court justices of the peace are assisted by a clerk or a legal assessor who will be legally qualified. They are there to advise in the management and administration of the courts, giving advice on matters of law and law related issues. The clerk however has no participation in any decision making processes, i. e. sentencing or finding guilty etc.
There are sheriff courts in all the districts that under the six sheriffdoms that are in Scotland. In addition to full time sheriffs there are floating sheriffs who are there to fill in when the sheriff isn't available for any reason, i. e. sick, on holiday etc. There are also honorary sheriffs who are normally retired solicitors or experienced justices of the peace. Looking at the English justice system it is important to look at the background as a starting point as it can be traced as far back as 1195 when Richard the first actually commissioned certain knights to ensure law and order, these knights later became known as knights of the peace later becoming known as justice of the peace. Until the reorganisation of local government fixing wages, controlling roads and bridges and administering laws were duties all carried out by justices of the peace.
Moving on towards now it is essential to realise how important the magistrates court in England is. Magistrates courts deal with a high percentage of criminal cases, the average cost of a trial in the magistrates court is around fifteen hundred pounds as opposed to the huge amount of around thirteen and a half thousand pounds that a trial in the crown court costs. The magistrates court is mainly concerned with criminal cases but does involve itself in other areas as well as supplying justices for the youth court that deals solely with young offenders.
Magistrates are lay people of whom the Lord chancellor appoints from the local community by the recommendation of committees They then sit on a bench of three and thus make there collective decisions on matters that arise for them to deal with. Lay magistrates are assisted and advised on matters of law by a clerk which is a qualified lawyer who's functions are set out in the Justices of the Peace Act 1997 section 45 (4), they have to go through a training regime that gets updated several times throughout there appointment.
Responsible for this training is magistrates commission committee who provide the training under the supervision of the judicial studies board. They are not expected to be experts on the law, thus meaning the point of the training is to at least familiarize them with court procedure, the techniques of chairing, and the theory of practising and sentencing. There are around thirty thousand lay magistrates. It is an obvious argument to say that lay magistrates are not qualified enough to hear criminal cases.
An argument against this would be to say that the involvement of community members is effective in ensuring that people are judged by their peers and not by people who are deemed as professionals in the field whose lives and situations are invariably different. The use of lay magistrates is also substantially cheaper. There are really only two criminal courts in England the magistrates court and the crown court, as previously stated the magistrates curt deals with most criminal cases and in nearly all criminal cases the magistrates court summarily has some involvement in at least the early stages of these cases.
Magistrates are entitled to and have the power to try summary cases, which are tried without the need for a jury, they may also deal with some cases which are tried before a jury in the crown court. The maximum prison sentence that they can impose is six months set out under the Magistrates Courts Act 1980. The maximum fine under the Criminal Justice Act 1991 in relation to summary offences is one thousand pounds. Also within their remit they can impose a community service order or a probation orders as an alternative as well as the power to absolutely or conditionally discharge offenders.
The organisation of the magistrates courts was reformed by the Police and Magistrates Courts Act 1994 which amended the Justices of the peace Act 1979, coincidentally the two acts have consequently been consolidated into the justices of the peace Act 1997. The country is divided geographically into one hundred and five commissions which are then sub divided into what are known as petty sessional areas or benches of which there are around six hundred, though they vary considerably in size.
Each petty sessional area has its own counthouse and justices clerk. A centralised magistrates court agency is responsible for running the magistrates courts service and is directly answerable to the relevant minister. Another main function is that they hear various applications pertaining to bail. They also exercise an element of control over the investigation of crime since they deal with these applications for bail as well as requests by the police for search warrants and arrest warrants.