UK Law Articles
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The Times
November 23 1999
Two magistrates and a potential JP reply to charges that the present magistracy system should be scrapped
We will fight you on the benches
We need a more democratic, representative, cheaper and effective magistracy, wrote Robert McFarland, (Law Nov 9) on the ground that it was full of white, middle-class people who seldom lived locally to their courts.
Even when I joined the magistracy more than 20 years ago, this was not true. I have had working-class and black colleagues, not to mention Asian and even the now unmentionable upper class, who were probably better than anyone. And, admittedly, it was Inner London, but we all lived close to our courts. To suggest that the whole system should be turned over to stipendiaries who are not only usually white, middle-aged and middle class, but also predominantly male begs the entire question. A far more important criticism is the fact that stipendiary magistrates sit as judges of both fact and law, a privilege enjoyed by no one else in the criminal justice system. Not even the Lord Chief Justice has the same unfettered power of being alone responsible for both verdict and sentence. This is surely not right, particularly where the young are concerned. Stipes are supposed to be cheaper and are also recognised as useful where there is a backlog of cases or particularly complicated ones, but they are hardly the ideal people to sit in lone judgment. It is true that they tend to work faster than lay justices, but whether swifter justice is better justice is arguable.
The crowning irony of the present "push" to suggest getting rid of lay justice is that it was all proposed in a royal commission more than 50 years ago. The proposal was thrown out and the majority report wanted to eliminate the "single adjudicator" system of the stipes because the members regarded it as "unsound". Instead, they wanted a mixed bench that combined the expertise of the professional with the public appeal of lay justice. The members proposed that joint sittings should be extended but these were never taken up in a meaningful way. And despite efforts by the Law Society in the 1960s to promote such a joint system, it has never really got off the ground.
The main exception could be in Inner London, where the number of stipendiaries has more than doubled over the past 20 years. Here there is a greater use of them sitting with lay justices in the family and youth courts. Many of them, however, continue to sit alone, particularly in the youth court.
A joint system seems to make the greatest sense in order to speed up justice, but still give people a sense of being judged by other human beings rather than just lawyers.
Yet many lay magistrates feel that the current publicity recommending stipendiaries is all something of a plot. Many have told me that it is part of a scheme to relegate justices to the proposed youth panels which, like the Scottish children's hearing system, will deal only with guilty pleas. Others feel that they may be sidelined by not being allowed to sit on supposedly difficult cases.
Are they being paranoid? I doubt it. We should follow what was suggested by the royal commission in 1948. After all, you don't have to be chairman of a bench in order to influence the decision-making. Three people, including one of the opposite sex, are more likely to make reasonable as well as just decisions than one lawyer sitting on his/her own.
PAULA DAVIES
- The author is a magistrate in Inner London.
"TIME to lay off lay magistrates?" could mean that magistrates should be put out to grass but another, perhaps colloquial, meaning would be to stop badgering them. Robert McFarland uses prejudice instead of fact to argue for the demise of the JP.
He states "that there is no concept of a nationally accountable service" because the magistracy is administered locally. Through a series of supervisory bodies every magistrate is accountable to the Lord Chancellor's Department.
That the magistracy is "undemocratic and unrepresentative and causes serious inefficiencies in the system" is the core of his diatribe. In the ethnically mixed area of London where I sit, my entry year group comprised one male Jew over 50 years of age, one male Muslim under 35, a West Indian male over 40, a Hindu male under 35, a female Roman Catholic under 40 and a similarly aged white female Presbyterian. Two of that number were born and educated in Scotland and three were born outside the UK. Their occupations were one housewife, two business consultants, one accountant, one professor of mathematics and one optometrist, and all resided within seven miles of the courtroom . . . closer than Tony and Cherie Blair to the Oratory School.
We are accused of "enjoying lifestyles . . . out of touch with those they are dealing with". It is highly unlikely that the Lord Chancellor's Department would approve the appointment of a magistrate whose lifestyle leads him/her to appear as a defendant before a magistrates' court. He argues that with little legal training we are "ill-equipped to deal with the problems . . . of a multi-ethnic society". Our purpose is to dispense justice in a multi-ethnic society. Our learned clerks provide the legal advice.
His argument that the employment of stipendiaries would enable more efficient management of a case is untenable. Cases are adjourned mainly in order that a defendant (often unrepresented) can properly put his case or after conviction seek the most suitable sentence by having full social reports placed before the bench of lay magistrates or stipendiary by a probation officer. Most thinking observers would be wary of McFarland's assertion that "a good stipendiary establishes an effective working relationship . . . with the police". The observation is mistaken and one to question if it were accurate.
As is the case with arguments based on prejudice instead of facts, his logic is quite refutable.
MARVYN SLATER
Reading Robert McFarland's argument one is struck by the revelation that it is little more than a series of statements with little rationale or explanation.
Take his first criticism, that the magistracy is undemocratic. In what way? After all, anyone may apply to become a JP. If the first consideration is the administration of justice - an idea to which McFarland makes no reference - then why should background be of importance? It would be of interest to know how many persons from poor and disadvantaged backgrounds become lawyers, barristers or judges and compare this figure with the number from those same backgrounds who become lay magistrates.
If, as McFarland states, that the magistracy "has become part of 'them' not 'us' " and it is wished to change this perception, then how would the use of a stipendiary achieve this? McFarland again gives no indication. I would argue that the magistracy will always be seen as part of "them" and no amount of tampering will change this if we wish to retain a system of justice.
McFarland displays prejudices of his own when he contends that the lay magistracy is "ill-equipped to deal with the problems of an increasingly complex and multi-ethnic society". Apart from the gratuitous insults in these words, and the contentiousness therein, let us assume for a moment that it is true. How would a stipendiary magistracy (defined here as paid versus unpaid) be better equipped to deal with this society? If it is implied that it would devolve from better training, then surely all that would be required would be to give that training - it has nothing to do with the lay/stipendiary debate.
McFarland goes on to "argue" his case from a cost and efficiency perspective. It is here that one suspects the true rationale behind what he has written. Again, he is gratuitously insulting when he claims that "the stipendiary magistrate is less likely to be pressured into adjourning a case, but when he does it will be for a reason and to a time". Why is a stipendiary less likely to be pressured? Again no evidence is given. Does a lay magistrate adjourn a case for no reason? Of course not - he is required by law to give the reason, and it had better be a valid one, one that must always be in the furtherance of justice, a concept that has no mention in McFarland's article.
I would agree that if a lay magistrate does adjourn a case, then it is likely that the same bench will not be available on the date of the next hearing. This does incur costs. If anything can be done to obviate such adjournments and costs, then let us welcome it. The removal of the lay magistracy, replacing it with a stipendiary magistracy, would not on the evidence achieve this.
The Lord Chancellor's initiative, proposed two years ago,with regard to the proposed re-organisation of the magistracy is to be welcomed. It is to be hoped that he will not be swayed by such empty arguments as McFarland's. Rather, he should repeat his own words: "We have no plans for a replacement of the lay magistracy with stipendiary magistrates. My aim is to deploy the resources of the lay and the stipendiary magistracy to best effect."
JOHN PETTIT
- The author wants to be a JP.
