(a) Describe the selection and training of lay magistrates.

(10)
(b) Assess the extent to which it is appropriate to allow a layperson to act as
judge in the Magistrates’ Court. (15)

Ans (a)

Eligibility and quali cations for becoming a magistrate

(You will mention this brie y before going onto the selection and training)
- Lay magistrates do not need to have any legal quali cations.
- There are, however, some requirements as to their character, in that they must be
suitable in character, integrity and understanding for the work they have to perform
- In 1998, the Lord Chancellor set out six key qualities (judicial qualities) that candidates
should have:
» good character
» understanding and communication
» social awareness
» maturity and sound temperament
» sound judgement
» commitment and reliability.
- Other eligibility criteria are that they must be aged between 18 and 65 on
appointment and have to retire at 70.
- Lay magistrates are expected to live or work within or near to the local justice area to
which they are allocated.
- Lay magistrates must be prepared to commit themselves to sitting at least 26 half-days
each year. This is quite an onerous commitment and does prevent some people from
applying to be a magistrate.
- Some people are not eligible to be appointed:
» people with serious criminal convictions, although a conviction for a minor motoring
offence will not automatically disqualify a candidate
» undischarged bankrupts,
» members of the forces,
» those whose work is incompatible with sitting as a magistrate, such as police of cers
and traf c wardens,
» relatives of those working in the local criminal justice system are not likely to be
appointed, as it would not appear ‘just’ if, for example, the wife of a local police of cer
were to sit to decide cases,
» people whose hearing is impaired or who by reason of in rmity cannot carry out all
the duties of a magistrate cannot be appointed,
» close relatives will not be appointed to the same bench

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 Appointment and selection of magistrates

- The main body which appoints magistrates are the Local Advisory Committees (LAC).
These committees are made up of 12 members who are a mix of magistrates and non-
magistrates (majority of the members are current and former magistrates)
- Vacancies are advertised via advertisements (newspapers, social media, media,
billboards, buses, radio adverts, community noticeboards, etc)
- Advertisements attract potential applicants and candidates are required to ll
application forms and give two references.
- Short-listed candidates are called in for a rst interview and the panel assesses whether
they have the six judicial qualities and they are also questioned on their views on
various criminal justice issues (young offending, drunk driving, sentencing, etc)
- A second interview is held with further short-listed candidates (from the rst-interview),
where the aim is to test the candidates’ potential judicial aptitude. This is done through
two case studies that are based on scenarios typically heard in the Magistrates’ Courts.
- Candidates who pass both interviews are then short-listed by the LAC and
recommended to a Senior Presiding Judge, who then of cially appoints them.

Training of magistrates
• Theory of training - the syllabus is set by the Judicial Studies Board/Judicial College,
which the magistrates should cover in their training.
Since 1998, their training has begun monitored more closely. The critique before this was
that the number of hours of training are insuf cient (there were trainings only, with no
assessments on how much they have understood).
In 1998, the Magistrates New Training Initiative (MNTI-1) was introduced, and in 2004,
this was re ned through the MNTI-2.
In theory the training is divided into four competency areas:
1. Managing yourself - this focuses on the basic aspects of self-management in relation
to preparation for court, conduct in court and ongoing learning.
2. Working as a member of a team - this focuses on how new magistrates are taught to
work with other magistrates on the bench while they hear cases as well as working
with Circuit Judges and Recorders in the Crown Courts to hear criminal appeals.
3. Making judicial decisions - this focuses on impartial and structured decision-making.
4. Managing judicial decisions - this focuses on working with the Law Clerk, managing
the court and ensuring effective and impartial decision-making.

The training syllabus is divided into three parts:

1. Initial Introductory training - this covers matters such as understanding the
organisation of the court and the bench and the administration and the roles and
responsibilities of court personnel.
2. Core training - This provides magistrates with a chance to acquire and develop the
key skills mentioned above, their knowledge and their understanding (the four
competency areas).
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 3. Activities - these involve observation of court sittings and visits to establishments such
as prisons or probation of ces.

• Practical training - since the number of magistrates courts is high (320), the
practical training is carried out in local areas through the clerk of the court (around 42
local areas).
For delivering these trainings, there are Bench Training and Developmental Committees
(BTDC). S 19(3) of the Courts Act, 2003, sets out a statutory obligation on the Lord
Chancellor to provide trainings and materials.
In the local areas, much of the training is carried out by the Law Clerk. The JSB/JC
intends for these trainings to be carried out regionally or nationally where appropriate. In
particular, the training of Youth and Family panels are delivered nationally for areas
which do not have people to run an effective training course.

MENTORS - each new magistrate has a mentor (an experienced magistrate) to assist
them. New magistrates are also required to keep a Personal Development Log of their
progress.
The initial introductory training is carried out before the new magistrates start sitting in
courts. The new scheme involves practical training ‘on the job’. It answers the criticisms
of the old system where there was no check made on whether the magistrate had actually
bene ted from the training session they attended. Those magistrates who chair the Bench
are also appraised for this role, so that the quality of the chairing in court is improving. As
mentioned above, their on-the-job training consists of observing court proceedings of
cases on atleast three different occasions (these observations are arranged in a way that
the new magistrates can see different aspects of the work - including observations of pre-
trial processes (EAH and pre-trial for triable-either-way offences), bail hearings, summary
trial hearings, sentencing, appeals).

APPRAISALS - during the rst two years of a new magistrate, between 8 to 11 sessions
are monitored/mentored. In the same period, the new magistrates are required to attend
7 training sessions.
After two years, whenever it is felt that the magistrates are ready, there will be an appraisal
to check if they have acquired the competencies.
Any magistrate who cannot show that they have achieved the competencies will be given
extra training. If they still cannot demonstrate and achieve the competencies, then the
matter is referred to the LAC who may recommend to the Lord Chancellor that the
magistrate be removed.

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 Ans (b)
Go thematically in your evaluation:
1. Background - diversity in terms of race, gender, age, social class, educational/
professional background
2. Locality (local knowledge)
3. Cost
4. Training and inconsistencies in sentencing
5. Reliance on the legal adviser (the Magistrates’ Clerk)
6. Appeals

1. Background
Advantages:
• Cross-section of local people appointed; more representative than professional judges -
although the proportion of women has increased slightly over recent years, they remain
under-represented in the court judiciary, particularly in senior roles, as compared to
magistrates
• Good gender balance nationally
• Reasonable percentage from BAME groups nationally
(You can look up recent stats and numbers to add evidence to your answers)

Disadvantages:
• Lay magistrates are often perceived as being middle-aged and middle class (as per the
report: ‘The Judiciary in the Magistrates’ Courts (2000)’ which found that 40% of lay
magistrates were retired and also that they were overwhelmingly from a professional or
managerial background.
• The statistics show that between 1 April 2019 and 31 March 2020, 1,440 people left the
magistracy and there were 1,011 new appointments. Of the new appointments, 6% were
under the age of 30 and a further 12.5% were aged 30-39. 58% were female. Ethnicity
data is only available for 76% of new appointments. For those who have an ethnicity
recorded, 12% were BAME.
• As at 1 April 2022, 57% of sitting magistrates were women, 14% were from an ethnic
minority background and 79% were aged 50 and above and majority are from
professional or managerial backgrounds. Not a true cross-section of the population.

2. Local knowledge
Advantages:
• Lay magistrates used to have to live within 15 miles of the area covered by the
commission, in order that they would have local knowledge of particular problems in the
area. Under the Courts Act 2003 there is no longer a formal requirement that they should
live in or near the area in which they sit as a magistrate, although it is intended that
normally magistrates will continue to sit in the local justice area in which they reside.
However, if there is a good reason to do otherwise, for example, where it is easier for the
magistrate to sit in the area where he or she works, then this is allowed.
• Their main value is that they will have more awareness of local events, local patterns of
crime and local opinions than a professional judge from another area.
Disadvantages

 • Even though lay magistrates live or work in the relevant justice area, it is sometimes
argued that they do not have any real knowledge of the problems in the poorer areas. This
is because most magistrates come from the professional and managerial classes and will
live in the better areas.
• Another problem is that during the last ten years, some 150 Magistrates’ Courts have been
closed. This causes problems of access and attendance as in some areas people have long
journeys to their ‘local’ court. It also means that the advantage of lay magistrates having
local knowledge is being lost.

3. Cost
Advantages:
• The use of unpaid lay magistrates is cheap since they only receive expenses. The report
‘The Judiciary in the Magistrates’ Courts (2000)’ found that at that time the cost of using
lay magistrates was £52.10 per hour. As against this the cost of using District Judges in the
Magistrates’ Courts was £61.78 an hour. When this is multiplied by the number of hours’
work carried out by lay magistrates in the course of the year, it is obvious that the cost of
replacing them with professional judges would be several millions of pounds. In addition,
there would also be the problem of recruiting suf cient quali ed lawyers.
• The cost of a trial in the Magistrates’ Court is also much cheaper than a trial in the
Crown Court. This is partly because cases in the Crown Court are more complex and
therefore likely to take longer, but even so it is clear that the cost both to the government
and to defendants who pay for their own lawyer is much higher.

Disadvantages:
• More District Judges having to be appointed, as fewer lay magistrates are volunteering

4. Training and inconsistencies in sentencing

Advantages:
• Discuss how the training for magistrates is detailed and after the introduction of the
MNTI-1 and 2, its become even more thorough: national training tailored for lay
magistrates. Local training for speci c issues. Mentor scheme provides support for newly
quali ed magistrates. Annual appraisals identify possible issues in service.

Disadvantages:
• Despite the training scheme for lay magistrates, gures for 2010 still show wide-ranging
discrepancies in sentencing. Bristol magistrates imposed custodial sentences on 11.1% of
defendants whilst Dinefwr magistrates imposed a custodial sentence on only 0.1% of
defendants. Bristol also imposed the highest percentage of community sentences at 32.2%,
whilst in Dinefwr it was 6.6%. These gures do not take into account what types of
offences were involved, but the gures for Bristol seem to be excessively high. This is so
even when compared to other city areas with a similar number of offenders, such as
Coventry where 6.8% of offenders were given a custodial sentence and 14.4% a
community sentence.
• Magistrates in different areas often pass very different sentences for what appear to be
similar offences. The government’s White Paper, Justice for All, set out differences found in
the Criminal Statistics for 2001 when it gave the following examples:

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 - For burglary of dwellings, 20% of offenders in Teesside are sentenced to immediate

custody, compared with 41% of offenders in Birmingham; 38% of burglars at Cardiff
Magistrates’ Court receive community sentences, compared with 66 % in Leicester.
- For driving while disquali ed, the percentage of offenders sentenced to custody ranged
from 21% in Neath Port Talbot (South Wales) to 77% in Mid North Essex.
- For receiving stolen goods, 3.5% of offenders sentenced at Reading Magistrates’ Court
received custodial sentences compared with 48 % in Greenwich and Woolwich (south
London) and 39% at Camberwell Green (south London).

5. Law and reliance on the legal adviser (the Magistrates’ Clerk)

Advantages:
• Use of legal adviser makes decisions legally based - every Bench of magistrates is assisted
by a clerk. These are now also referred to as legal advisers. The senior clerk in each court
has to be quali ed as a barrister or solicitor for at least ve years. The clerk’s duty is to
guide the magistrates on questions of law, practice and procedure as per S28(3) of the
Justices of the Peace Act, 1979.
• The clerk is not meant to assist in the decision-making and should not normally retire with
the magistrates when they go to make their decision. In R v Eccles Justices, ex parte
Farrelly (1992) the Queen’s Bench Divisional Court quashed convictions because the clerk
had apparently participated in the decision-making process.
• Clerks deal with routine administrative matters and in May 1993 were given increased
powers so that they can now issue warrants for arrest, extend police bail, and adjourn
criminal proceedings. The Crime and Disorder Act 1998 also gives clerks the powers to
deal with Early Administrative Hearings.

Disadvantages:
• The lack of legal knowledge of the lay magistrates should be offset by the fact that a
legally quali ed clerk is available to give advice. However, this will not prevent
inconsistencies in sentencing since the clerk is not allowed to help the magistrates decide
on a sentence. In some courts it is felt that the magistrates rely too heavily on their clerks.

6. Appeals
Advantages:
• Comparatively few defendants appeal against the magistrates’ decisions, and many of the
appeals that are made are against sentence, not against the nding of guilt (against
conviction). In most years there are between 5,000 and 6,000 appeals against conviction.
Fewer than half of these appeals are successful. There are also about 6,000 appeals each
year against the sentence imposed by the magistrates. Again, fewer than half of these are
successful. This is from a total workload of about two million defendants dealt with in the
Magistrates’ Courts. There are also very few instances where an error of law is made. In
2011 there were only 79 appeals by way of case stated to the Queen’s Bench Divisional
Court. Fewer than half of these appeals were allowed. From this it can be argued that
despite the amateur status of lay magistrates they do a remarkably good job.

Disadvantages:
• It is often said that lay magistrates tend to be prosecution biased, believing the police too
readily. One fact supporting this theory is that there is a lower acquittal rate in
Magistrates’ Courts than in the Crown Court. There is also the fact that they will see the
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 same Crown Prosecution Service (CPS) prosecutor or designated case worker frequently
and this could affect their judgement. However, part of their training is aimed at
eliminating this type of bias.

________________________________________________________________________________

(a) Explain both the civil and criminal role of the magistrate in the English
legal system. (10)
(b) Assess how far it is true to say that they are representative of society. (15) -
for the answer please see the (b) answer for the question above.

Ans (a)
The role, work, job or function of lay magistrates (examiner may change the words around
and use these interchangeably)

Lay (or legally unquali ed) magistrates usually sit as a bench of three. They have a wide
workload that is mainly connected to criminal cases, although they also deal with some civil
matters.

Role in civil cases

In civil matters, magistrates mostly deal with family cases in a Family Proceedings Court,
which is not open to the public. They also hear cases in open court about non-payment of
council tax or television licences.

The Family Proceedings Court

There is a special panel for a Family Court to hear family cases, including orders for
protection against violence, af liation cases, adoption orders and proceedings under the
Children Act 1989.
Magistrates undergo extensive training before they sit in the Family Proceedings Court,
where procedures are very different from in the criminal courts. The court setting is private,
informal and ideally takes place with parties seated around a large table. Cases can be
emotional and upsetting for both parties, and usually the lay magistrates appointed to this
court are very experienced. There is usually a fair amount of reading involved, as both
parties will le statements and reports before a hearing.
Magistrates always provide written reasons for their decision and can be assisted with extra
information provided by a children’s guardian, usually a specialised social worker.

Role in criminal cases

Criminal pre-trial and trial hearings
Lay magistrates will normally sit as a panel of three, but a District Judge (in the Magistrates’
Court) will sit alone. Magistrates try 97% of all criminal cases. These will all be summary
offences and triable-either-way offences where the defendant opts for trial in the lower court.
Where the defendant pleads guilty, magistrates will decide on a sentence after hearing
representations from the prosecution and the defence. Where the defendant pleads not
guilty, they will hear evidence and decide guilt or innocence. If the defendant is found guilty,
they will again decide on a sentence.

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Their sentencing powers are limited to a maximum of six months’ imprisonment for one
offence and a ne of £5000. If they consider the defendant merits a higher sentence, they
can refer the case to the Crown Court for sentencing.
For indictable offences and in triable-either-way offences where the defendant opts for a
Crown Court trial, they deal with preliminary hearings which can involve Early
Administrative Hearings, remand hearings, bail applications and committal proceedings
before the case is transferred to a Crown Court.
Magistrates may also grant arrest warrants to the police (S1 of the Magistrates’ Courts Act,
1980) and search warrants (S8 of PACE, 1984).

Youth Court
Specially nominated and trained magistrates form a Youth Court panel to hear criminal
charges against young offenders aged between 10 and 17. These panels must usually include
at least one man and one woman. Again, hearings are informal and private.

Criminal Appeals
Lay magistrates can also sit in a Crown Court to hear appeals from a Magistrates’ Court
against conviction and/or sentence (trial de novo). In these cases, two lay magistrates form a
panel with a quali ed judge (Circuit Judges).

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