Jaycee How Sook Wei

July ’18 G18 Lay Magistrates

11/11/2018
Describe the appointment and role of lay magistrates.
Discuss the problems which might arrive from the use of lay personnel in such an
important role.

Historically, the main role of lay magistrates was dealing with criminals,
but they also exercised certain administrative functions. The history of lay
magistrates dated back to the Justices of the Peace Act 1361. Over 19,000
magistrates hear more than 97% all criminal cases and is thus often described as
the backbone of the English criminal justice system.

Lay magistrates do not receive a salary, but instead they receive

allowances for travel, subsistence and financial loss. In the magistrates’ court,
there are 138 professional judges also known as district judges, following a
reform by the Access to Justice Act 1999. Magistrates are appointed by the Lord
Chief Justice on the advice of local Advisory Committees. The qualification for
appointment includes: being under 65, if the court is within 15 miles of their
working area, and if they are able to devote at least half a day in a week to the
task. They do not need to have legal knowledge or academic qualification.

In 1998, the Lord Chancellor set out six qualities required of lay
magistrates which are: reliable and shows commitment, maturity and sound
temperament, understanding and communication, sound judgement, good
character and social awareness. They cannot be appointed if they are members
of the armed forces, police officers, traffic wardens, undischarged bankrupts,
carries criminal convictions, disabled and cannot carry out a magistrates’ task,
has a close relative who is already on the same bench and whose work is
incompatible with a magistrates’ task. Under the Courts Act 2003, magistrates
are appointed nationally rather than locally.

Magistrates usually have to retire at 70. The Courts Act 2003 &
Constitutionals Reform Act provides that the Lord Chancellor can remove any
lay magistrate from the office on grounds of misbehaviour and incapacity,
declining or neglecting his part as a magistrate and persistent failure to meet
standards or competence by given directions.

Approximately three quarters of all magistrates come from professional

or middle-class occupations. This is because magistrates are required to be
given time off work. However, not all employers are able or willing to pay
wages during their absence, which leads to a loss of allowance earnings. Also,
taking up the role of a magistrate against their employers’ wishes may
jeopardize their promotion. Therefore, only those who are self-employed or
sufficiently stable in their career can serve as a magistrate without risking their
career. This causes an underrepresentation of those outside the professional and
managerial classes. There were only 2% of black magistrates in 1987, but just
over 9% come from ethnic minority communities in 2003. However, the
genders are relatively balanced among lay magistrates with 47% men and 53%
women There are 57% men and 43% women holding the positions of district
judges.

The Magistrates’ Commission Committee provide training under the

supervision of Judicial College. The aim of the training is to familiarize them
with court procedures, the techniques of chairing, and to undergo 12 hours of
basic continuous training every 3 years. Magistrates sitting in youth courts or
domestic court panels receive additional training.

Magistrates hear 98% of all criminal cases, though these are minor
offences which are tried summarily. In summary trials, lay magistrates decide
questions of fact and determine whether a defendant is guilty or not. Lay
magistrates may hear cases for offences tried either way if they accept
jurisdiction and the defendant elects to have it tried in the magistrates’ court.
Their other functions include issuing warrants for arrest and search, granting
application for bail or remand defendants in custody, passing sentence on a
defendant who has been found guilty and sitting in the youth court for criminal
trials of young offenders.

Under civil jurisdiction, a magistrates’ role includes granting licences to

casinos and hear appeals from local authority, like pub and restaurant licences.
The Magistrates’ Court used to deal with domestic matters, including adoption,
but in 2014 this was changed, and all domestic matters now commence in a
specialised Family Court.

The advantage of lay magistrates is that they provide local justice as they
may have local knowledge of the area in which they sit. Next, a balanced view
is more likely since lay magistrates sit in groups of 3. In addition, lay
magistrates reflect citizen’s participation in the legal system. It gives lay people
some insight into the workings of the law and ensures that the courts are aware
of community concerns. Futhermore, lay magistrates are cheap as they are
unpaid volunteers. The direct and indirect average costs for a lay magistrate per
annum is as low as £495 as compared to a district judge which is £90,000.

However, problems occur with the use of lay magistrates. Firstly, the
verdicts are inconsistent. There are major differences in conviction rates
amongst magistrates as reported in the Liberty study 1990, and sentencing
practices, as reported in the Home Office Study in 1995.
 Secondly, the Ipsos MORI research (2011) found that professional judges
were both speedier and perceived to be speedier in handling cases. Professional
judges were also considered as being better at case management.

Next, there is a bias towards the police. Since police officers are frequent
witnesses, they are well known to magistrates. So, magistrates have a tendency
to believe police evidence. In R v Bingham Justices, ex parte Jowitt (1974), the
only evidence was that of the motorist and a police constable. The chairman of
the bench said that in a case of direct conflict between the police and a member
of the public, he would believe the police more. As a result, the conviction was
quashed on an appeal because of his remark.

Next, lay magistrates cannot be considered representative of the society.

63% of them are of professional or managerial background, as reported in The
Judiciary in Magistrates’ Court, 2000. They are mostly white, middle aged and
middle class men. Thus, they are unlikely to have actual knowledge of the
problem affecting the defendants who are from poorer backgrounds and areas.
The practical reason for this is the nature of employment which prevent many
from being magistrates.

In conclusion, it is clear that the government chooses to appoint lay

magistrates for a financial advantage, but the problems caused by them greatly
outweighs the benefits to gain.