Mr. Andrew M Drozdowski Thanet College Broadstairs Kent

15th October 2002

Tako
Galgoen
Veenandaal
Nederland
BD 1048

Tako

I enjoyed our chat at the recent function and am aware that our discussion was so brief that we were unable to exchange our views properly. If its not too much bother, I would like you to evaluate a few comments that I have. As I can recall, you were commenting on lay participation within our Criminal Justice System and from what I remember you were quite appalled at the extent to which this principle is applied in Britain.

My overall view of lay participation within our judicial process is that providing the participants are not completely without sense then their primary value is in their moral contribution to the system and of course their understanding of local matters. I do not, by this comment suggest for one minute that there is no moral understanding or recognition of regional variations in crime. What I mean to stress is that the judiciary and qualified personnel within the criminal process are often well paid and well educated people. They may find it more difficult to relate to why, and under what circumstances situations arise that lead to crime.

It might seem that what I am suggesting is that defendants/criminals should be dealt with leniently. This I am not attempting to support. It must be said that an understanding of local matters and dealings will contribute to an overall fairer dispensation of justice, which I am sure, Tako, you are concerned with too.

Another benefit within the British system, that I can see, is that Magistrates made up of lay persons and Jurors too are generally seen by the public to represent the input into the criminal justice system in Britain of the ordinary individual. This is not always seen as the case by the Magistrates arrangement due to their general makeup, but there is an ongoing process to make them more representative of society within the UK. With the jury system, a large proportion of our public sees that twelve persons randomly selected from society mete out justice in a better way.

There are, of course, certain matters within the jury system, in the UK, that impede upon a lawful result in a trial. From what we talked about I am sure this may be repugnant to you as an academic. This though supports my view more so, in that those from a qualified background may well be repulsed by a system that finds 'not guilty' an individual who as quite clearly broken the law.

I feel this is a sticking point with you, based on your strong assertions and fear that you will not reply to this communication. I will say that it is only with the interchange of views that we can progress within the judicial process and I would truly appreciate your opinion on matters that I have promoted.

Please do not think I would at all hope that the lay persons should take over the whole administration of justice within Britain. I do sympathise with those who, through their qualifications see the need for a more methodical approach towards trial procedure and the consideration of legal matters. These affect the lives of defendants and victims who are not always as clearly defined as you may wish.

We, in Britain, are presently considering concerns such as yours, but from a different outlook than many democratic nations. We have a strictly adversarial approach, which places the burden of bringing a case upon the representatives of the state on one hand and the defendant on the other. So when matters are considered within the UK it is not the judiciary who investigate the matters and come to a conclusion but the parties involved and their legal team. Therefore, critisisms from within our nation come from this viewpoint and not an inquisitorial one. This again might displease you, but we have previously considered changing to an inquisitorial approach. This was seen to be too demanding, too slow and not beneficial so any change was dismissed.

With the above in mind, and not trying to indicate that our system is above any other, it must be said that it is our situation that you felt the need to make strong assertions on. If I had done the same about the Dutch system then you may have been disgusted with what I had to say from my approach which is based on our system and not yours.

In the meantime, I will say that I have benefited from your comments on our lay participation. I have, as result, made a more careful consideration of the system here and have noted a few changes that may be made to it.

There is a report called the Auld Report (by Sir Robin Auld) that suggests less of an opt-out for the more qualified, as jurors, along with more accountability of jurors. They would, for instance, have to answer questions posed by a particular case. In addition, the right to acquit contrary to evidence and law would be curtailed, no doubt to your pleasure.

Regarding magistrates, cases put before them of a more serious nature would have the benefit of a District Judge sitting with two lay magistrates. This would no doubt reduce the effect of lay participation, again to your pleasure.

There will be aspects of our system that constantly require adjustment for which there will be certain bodies set up such as a Criminal Justice Board and a Criminal Justice Council. These would be more unified than the present and the Lord Chief Justice or senior Lord Justice of Appeal would give input into these matters, persons who I am sure you would view as more qualified in these matters. This input would again ensure that the evolution of our system takes full note of public opinion on matters and any quirky developments that arise in different matters.

I am still of the opinion (and no doubt, you can correct me on this) that although there is some merit, in your contra-lay view regarding our system, it is presently the right one for us. We hold true to the view that we must be judged amongst our peers. The jury system allows for this and lay participation amongst magistrates also does to some degree. Defendants can come before right-minded juries and a panel of magistrates and receive a verdict based on consciences. The technical references to the law may not always accommodate for this. The type of situation that comes immediately to mind is where someone commits a technical crime, in law, but for what a jury sees as perfectly sensible reasons, acquits based on their conscience. Is there anything really wrong with this? It would not work the other way, in my opinion, in that individuals who keep to the law, and this is not proven otherwise, would not be found guilty on a matter of "conscience". This is not the way our system leans.

To avoid repeating myself or having to give a full run-down of our system I can only summarise my present view, as above, which is just a sample, lay persons view eagerly awaiting your response.

Best Regards Andy