Andrew Drozdowski AS Law Thanet College Broadstairs Kent 1 October 2002

Magistrates (Selection; Representativeness; Duties; Advantages and Disadvantages)

The Magistrates Court is dependent on Local Advisory Committees for the selection of suitable candidates to serve as Justices of the Peace (JPs). These committees have the role of recommending suitable individuals for selection by The Lord Chancellor as JPs. As their role is so instrumental in the process that formulates the basis for the Magistrates Court, we might ask, “Who make up the Local Advisory Committees?”

These committees are made up of those who are presently JPs or who are ex-JPs and it is frequently the Lord Lieutenant of the county who chairs the committee. A fluid nature exists in that around half of the committee have to retire every three years on a rotational basis. The names of the Local Advisory Committee is made public compared to before 1993 when membership was secret. The number on a committee is a maximum of 12 and a variety of magistrates and those who are not currently serving as such.

Those groups, local political chambers of commerce or trade unions that put names forward for selection effect the nature of those who make up the locally selected JPs. Individuals can put themselves forward also. Committees, in an effort to widen the scope of individuals selected, have advertised locally for persons to come forward as potential JPs.

The aim of Local Advisory Committees is to make up a panel of Magistrates who are as representative as possible of the local community for a balanced administration of justice. Although this is the case, some feel that Magistrates are middle class, ‘middle aged and middle minded’. It is true that most magistrates are between 45 and 65 and rarely under 40. A larger proportion are supporters of the Conservative party even where a larger proportion of the community are Labour supporters and only 3 percent come from the ethnic minority groups. Based on the composition of Magistrates, it could be leveled that they are older and less in touch with younger offenders and minorities. It could also be said, quite reasonably, that there is a lack of application on the part of younger members of the community and from those of the minority groups. As it is the standard that there are three JPs on a bench then it is clearly not the view of one JP that determines the outcome, but the collective opinion of a few who decide the fate of defendants. Therefore, where their “middle nature” might be a concern, it, at the same time evades the extreme nature that might otherwise be the case.

A lack of young JPs may be put down to a lack of formal application on the part of the younger generation and/or a lack of maturity or experience on their part. Lack of awareness may also play a part. Work commitments also do not tend towards younger ones taking the time off that is required.

It is suggested that, as many offenders are of the younger community, then younger magistrates might add to an overall view of the Justice System having the appearance of being fairer. Also that the training involved might make for a more worthwhile individual in the corporate workplace.

A further suggestion is made that any ethic minority contribution to the lay Justices arrangement would offer the community a more visible appearance of balance from the point of view of race especially to those who are offenders.

It appears quite clear from the present situation that exists that JPs should be made up of a wide cross-section of the community. This could only add to the appearance of the Magistrates as being more representative of society at large. If, the situation reflected a truer snapshot of society then fewer critisisms of the system could be levelled at the system that makes up the magistracy as we see it today. The concept that panels might be seen as narrow minded would be dispelled and the decision could more frequently reflect the reasonableness of the given situation. With a wider cross-section decisions could, in my opinion, be based on a more compassionate and yet still firm view of crime in the community.

List of Possible duties of Magistrates

1 Magistrates try 97 percent of all criminal case

2 They deal with preliminary hearings in all criminal matters

3 This includes administrative, remand, bail and transfer for trial

4 They deal with Civil matters including debts to the TV licensing authority, utility companies and Local Authorities

5 They share in the granting of licenses to run gambling establishments, and the sale of alcohol

6 Specially nominated and trained JPs hear youth cases

7 Also specially trained JPs deal with family protection orders, affiliation orders, adoption and proceedings concerning The Children Act 1989

8 Magistrates also sit on a panel with a qualified Judge to hear appeals from the Magistrates Court

For magistrates to fulfill their responsibilities as listed above, they require and do undergo training. But it may well be asked what basic competencies are achieved by the training, which is provided by the Magistrates Commission Committees under the supervision of the Judicial Studies Board. In fact there are four that are covered by the training given and they are 1.) An applied understanding of the framework within which magistrates operate 2.) An ability to follow basic law and procedure 3.) An ability to think and act judicially and 4.) An ability to work as an effective member of a team.

To achieve a steady progress towards the above each new magistrate keeps a Personal Development Log of their progress and is assigned a mentor to help them. The first competence mentioned above is usually covered by observing court and training sessions before actually sitting as a magistrate.

New magistrates are mentored for between eight and eleven sessions of their first two years whilst, during the same period, they attend around seven training sessions. When the magistrate is ready (after about two years), an appraisal takes place to see if they have acquired the four basic competencies. The point of the appraisal method is to ensure that these competencies are achieved and to see what extra training is required or, if necessary whether removal should be considered. Appraisal also takes place for those with chairing roles on the bench. A chair course was made necessary from 1996 with a syllabus provided by the Judicial Studies Board.

After all the above is considered it must be asked whether the advantages of the Magistrates Court arrangement outweigh any disadvantages when compared to professional and qualified District Judges or Recorders sitting instead.

As an indication that the principal of lay magistrates is here to stay, the Report of Sir Robin Auld supported their continued use in Magistrates Courts. This would be with assistance from a District judge in matters that require sentencing up to two years imprisonment.

Advantages compared to disadvantages of the present magistrates’ arrangement are as follows:

The magistrates system as seen at present is considered to be a cheaper setup than having each lay magistrate replaced by a district judge. Although their lack of pace in dealing with matters before them has to be considered along with expenses incurred due to this. For instance, one professional judge handles as much as 30 lay magistrates. Lay magistrates incur so more uses of the buildings. Costs are also incurred in advice given during this extended period by legally qualified clerks. Lay magistrates also incur training costs when compared to a qualified judge.

Other factors that involve costs include the fact that lay magistrates are less inclined to send someone to prison, which is more expensive than the alternative sentences imposed by lay magistrates. Qualified judges are also more likely to refuse bail and are more likely to sentence offenders to immediate custody. This takes into consideration that professional judges often hear more serious cases than lay magistrates do.

If the alternative were simply Crown Court instead of Magistrates Court for the hearing of matters then the costs really would escalate. Crown Court cases are around nine times dearer for contested matters and five times more for guilty pleas than the magistrates’ arrangement. Therefore, with the Crown Court alternative costs really do escalate.

A major advantage of the lay involvement is that these individuals reach their decisions as a group and not as a single judge might and they are chosen from among society which has little qualification in law. Verdicts are seen as coming from society rather than the judicial system. This lay involvement forces the courts to be aware of community concerns. Verdicts are based on their consciences rather than any strict rule of law.

Their close proximity to the community gives them a better local knowledge when compared to a professional judge.

A disadvantage of the lay magistracy is that their decisions are not consistent from one bench to another. This can become manifest when two similar cases come before different benches dealing with similar offenders and the bail decisions might vary greatly. In 1985, Hampshire granted bail in 89 percent of applications and yet Dorset allowed only 63 percent. This variation might also be seen with sentencing and legal aid awards. The consistency of such matters within the Crown courts is kept in check to a large degree by the appeal procedure.

The charge of inefficiency is also made against the lay setup. Professional court users have greater confidence in the district judges compared to lay magistrates. The consider the professional judges as more consistent, quicker and better at controlling unruly defendants and better at questioning CPS and defense layers appropriately.

Local Police become well aquainted with members of the Bench and it is claimed that lay magistrates automatically believe Police evidence. In fact, in R v Bingham JJ, ex parte Jowitt (1974) where the chairman of the bench actually said, he “always believes the evidence of the Police officers2 when it conflicts with that of a member of the public. The conviction was quashed due to this comment.

The 1984 minors strike particularly led to criticism that magistrates imposed wide bail restrictions in what appeared to be ‘conveyor-belt justice’.

The present background of magistrates is also a disadvantage to the current make-up of their local communities when compared. This is because there appears a preponderancy towards white, middle aged and conservative magistrates, which badly compares to their respective communities. This causes a lack of representation of ethnic minorities.

After considering the above it can be said that when compared to the alternative situation of having qualified professional judges instead of the lay magistrates then the lack of representation would be massively greater than the present situation. In addition, the appearance of the judicial system would be altered detrimentally. Whereas alterations to the present situation based on the report of Sir Robin Auld could ease the disparity in many of the areas that require change.

The overall situation, although being imperfect, would not, in my opinion be bettered in all the respects by a change towards the use of professional judges instead of the lay Magistrates. In addition, even if the disadvantages may on an initial overview, outweigh the advantages, this would not be remedied simply by employing qualified judges.

Andrew Drozdowski AS Law Thanet College Broadstairs Kent 1 October 2002