UK Law Articles
These articles are reproduced from old newspapers. Whether you are looking for old articles about the Lord Chancellor's Department, or trying to find stories on solicitors, judges or courts, the law teacher article database is here to help you. You will find these articles useful for writing your law essays, law dissertations and law coursework.
The Times
November 9 1999
Robert McFarland believes that we need a more democratic, representative, cheaper and effective magistracy
Time to lay off lay magistrates?
Lord Irvine of Lairg has a reputation for confronting head-on the sacred cows of the legal system. But his approach to reforming the magistracy is having to be more Machiavellian. The Lord Chancellor's Department may pay the piper, but it does not call the tune. There is no concept of a nationally accountable service, with the result that nearly 100 separate magistrates' courts committees have been able to protect their independent status. It is time the party stopped.
The origin of Justices of the Peace goes back to the end of the 12th century, but the role of law enforcement on behalf of the monarch has been turned into that of a defence against the unbridled authority of the State. Because the accused is being judged by local lay citizenry, there is an idea that this helps to ensure both a fair judgment and one that takes local factors into account. All this is contrasted favourably with a fully coded legal system enforced from the centre through a hierarchy of bureaucratically run courts.
As it is, all but about 10 per cent of cases are fully completed in the magistrates' courts, without headlines and fuss. The criminal justice process is in its essence overwhelmingly local; the police investigation, the courts and the prison where sentences are served are local to where the offence is committed.
The question is how far would these strengths of the present system be affected by a basic reform of the magistracy? The reality is that the magistracy is undemocratic and unrepresentative, and causes serious inefficiencies in the system.
There are more than 30,000 JPs. Unlike the United States, our commitment to local democracy does not extend to calling for democratic accountability from those who administer and enforce the law. Indeed, we have a tradition that expects from law enforcers and the judiciary professionalism, impartiality and independence, uncompromised by the temptations of political gain. The theory is that magistrates should reflect the age, ethnic, religious or educational background of the local adult population in such a way as to justify the claim that those charged with an offence are being judged by their peers.
In fact magistrates are overwhelmingly middle-class, white and not working, even if not actually retired. In many innercity areas, most them do not even live locally to the court in which they serve.
Magistrates are often able, for the most part conscientious, usually well-meaning and give generously of their time for no material reward. But they are also an unaccountable elite, enjoying lifestyles that inevitably leave them out of touch with those they are dealing with. More important, as part-time amateurs, with little legal training, they are ill-equipped to deal with the problems of an increasingly complex and multi-ethnic society.
The Lord Chancellor should take powers to replace lay magistrates by stipendiaries, at least in the metropolitan areas and the larger cities. In the process, he should set up an independent national service akin to the Crown Court Service, to set standards, train and professionalise this aspect of the legal system, as well as organising it into the same 42 geographical regions as the police and the CPS.
Two arguments are deployed against any suggestion to replace the lay magistracy. The first is the concern that cases would be disposed of not by the exercise of the innate common sense of the ordinary citizen, but by a creature of the State, someone who was, at best, a professional, diligent lawyer, but at worst might be a cynical, time-serving bureaucrat.
This is a substantial objection because it raises issues about how the lay involvement in the law is bound up with fundamental concepts of individual rights and responsibilities. However, once it is accepted that magistrates are neither representative nor effectively accountable, then other things follow.
There is indeed a need for the institutions responsible for operating the criminal justice system to be held more accountable to the communities they serve. There are also issues surrounding the effective involvement of the community in the enforcement of the law, whether through Neighbourhood Watch schemes, the treatment of witnesses and victims, or simply better communication between the law enforcement agencies and the community. But in all this the existing magistracy has become part of "them" not "us", and the false prospectus it peddles is in the way of important reforms.
The real benefit of reform is that the wider employment of stipendiaries would lead to an increase in the efficiency and improvement in the timeliness of the criminal justice process.
A stipendiary is able to manage a case in a way not open to the lay magistrate. He is less likely to be pressured into adjourning a case, but when he does it will be for a reason and to a time, when he will be there to take the case forward. In contrast a lay bench may adjourn a case but can rarely do so to a time when that same bench will be sitting, so that the same case next comes before a different bench - different people, different outcomes, more delay.
The cost of delay ricochets through the system: the CPS, the police, court administration, the Probation Service and witnesses. In 1996 only 19 per cent of indictable offences at magistrates' courts were completed at first listing and the average number of adjournments per case was as high as 2.6. Any reduction in this figure, together with a general speeding up of the process, would result in significant cost-savings.
Just as important is that over time a good stipendiary establishes an effective professional working relationship with the prosecuting and defence solicitors as well as with the police and probationary services.
Somewhat surprisingly even a direct cost comparison is likely to come out in favour of the stipendiaries. The employment costs of a stipendiary are greater than the direct cost of a lay magistrate who receives no salary and only basic expenses. But a one-to-one comparison is misleading, as a stipendiary will do the equivalent work of between ten and 15 lay magistrates.
A lay magistrate will not normally sit for more than one or two full days a week, and any one court will normally have three lay magistrates, together with a salaried justices' clerk to advise them, whereas a stipendiary will sit alone. There is then the administrative effort required to ensure that the requisite number and quality of lay magistrates are in place for the day's hearings, not to mention the heavy costs of training this small judicial army.
More effective justice, more timely justice, less costly justice; it should be an irresistible cherry for a Lord Chancellor.
- The author, a former chief executive at BOC Gases, was a member of the Glidewell inquiry into the CPS which reported in June last year.
