UK Law Articles
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The Times
August 15 2000
Replacing lay magistrates with stipes would be wrong but perhaps they could work together, says Andrew Sanders
Don't let the lawmen banish our laymen
Earlier this year the Government established an inquiry into the criminal courts under Lord Justice Auld. It is due to report near the end of the year. Part of Auld's remit is to consider the work of the magistrates' courts and of lay and stipendiary magistrates.
The Criminal Justice (Mode of Trial) Bill will, if enacted, remove from many defendants the right to choose jury trial. Cases that would have gone to Crown Court will be dealt with in magistrates' courts. To most people this creates the image of being tried not by 12 of one's peers but by three lay persons advised by a legally qualified clerk.
Until recently, this impression would have been correct. Apart from Inner London, where for many years most cases have been dealt with by full-time stipendiary (paid), legally qualified magistrates, lay magistrates have dealt with 95 per cent of lower-court cases. Now this is less the case. Most large cities have stipendiary magistrates (about to be retitled district judges); there are now about 100 in England and Wales. By contrast there are 30,000 lay magistrates.
It is largely held that stipes are quicker and more efficient than lay justices. So, even though lay justices are unpaid volunteers, it may be cheaper to use stipes (less infrastructural support, less delay, the need for fewer courtrooms, lower knock-on costs for other criminal justice agencies, etc). The Government may be tempted to continue replacing lay justices with stipes - although it has confidence in the magistrates' courts, it may, despite all the rhetoric about "volunteering", have less confidence in lay justices.
Would it matter if stipes took on more work - or if lay magistrates were replaced by them? I think it would, especially if many defendants lose their right to jury trial. Trial by judge and jury is by no means perfect but it is probably the best system for most criminal cases.
Juries decide the facts and apply the law to those facts to reach verdicts. Judges explain the law to juries and decide whether contested evidence should be heard by the jury.
Jury trial commands respect because, first, people trained in legal matters - judges - rule on legal matters, while people who are good commonsense judges of character and day-to-day circumstances - juries - rule on factual matters.
Secondly, jurors are not case- hardened and cynical. Nor are they legal officials. Unlike judges, they have no stake in the system and its defence but only in reaching honest verdicts.
Thirdly, jurors form a cross-section of society, unlike well-paid professional judges. Fourthly, jury decision-making is group decision-making and, generally, decisions made in groups are more reliable than those made alone.
Finally, jurors are outsiders. Legal jargon has to be kept to a minimum so that court proceedings are made accessible and comprehensible for jurors and thus for everyone else.
But we don't have juries in magistrates' courts. The 95 per cent of cases that are dealt with there are deemed too minor to warrant the cost of jury trial.
Instead, lay justices have been considered to combine the qualities of judge and jury. Like juries, they bring to matters of fact their varied experience of life; as amateurs they are said not to be case-hardened and have to be talked to in easily understood language; they represent different sections of the community and they sit (mostly) in panels of three. Their legal deficit is compensated for by a legally qualified clerk as adviser. If lay justices are to be largely or wholly replaced by stipes, magistrates' court trials would lose many of these desirable qualities. Cases would be tried and sentenced by a professional judge acting alone.
It is true that lay justices are relatively poor juror-surrogates. They are disproportionately white, middle-aged, middle-class, professional and Conservative. Moreover, whereas the Crown Court judge can keep disputed evidence from the jury, when magistrates rule evidence inadmissible, they have to continue with the trial, pretending they never heard the evidence. What we need, if a large number of serious contested cases are to be transferred to the magistrates' courts, is a system that better combines the judge and jury elements. This might be done by using stipes and justices as follows.
We could specify that any medium-serious contested case - for example, one liable to lead to a custodial sentence or other significant interference with the defendant's liberty - should be heard by a panel of a stipendiary chairman sitting with two or more lay justices. Where the admissibility of evidence is in dispute, the stipendiary could hear and decide such issues in the absence of his or her lay colleagues. Moreover, were stipendiaries increasingly to deal alone with the majority of straightforward guilty pleas, lay justices could sit much less frequently than is now the case.
This might make it easier to attract a wider range of candidates and better preserve justices' amateurism. If the Government succeeds in restricting jury trial, it will be vital for Auld to mitigate its adverse effects. This can be done by integrating the best elements of jury trial, thus revitalising the idea of trial by one's peers and promoting "active citizenship".
This article summarises a draft paper commissioned and funded by Institute for Public Policy Research, which will be published in the autumn.
- The author is Professor of Criminal Law and Criminology, University of Manchester.
