UK Law Articles
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The Times
March 29 2000
JPs could play second fiddle to a bench lawyer
BY FRANCES GIBB, LEGAL EDITOR
MAGISTRATES' courts are facing reforms that could see professional lawyers effectively take control of benches in England and Wales.
The changes would end the present constitution of the lay justice system, which handles 99 per cent of criminal cases.
Ideas now being examined could see a lawyer, probably the justices' clerk, having a more powerful role - akin to a judge who advises a jury on the law.
Instead of being the final arbiters on matters of law, the magistrates may act like "mini-juries", guided by the clerk, whose advice could be binding.
Also, for the first time the clerk could accompany the magistrates into the retiring room where they arrive at their verdict.
The changes are being considered as part of the inquiry into criminal justice set up under Lord Justice Auld, a Court of Appeal judge, and by the Lord Chancellor. Other options include an increase in the number of stipendiary (full-time professional) magistrates and a cut in the number of JPs, whose numbers now total 30,000.
The reforms are being proposed partly in response to the Human Rights Act, which comes into effect in October.
This will force JPs into the front line, making them obliged for the first time to give reasons for their decisions. The legal advice given by the justices' clerk will also be open to scrutiny.
The Justices' Clerks' Society, which represents the legal advisers to magistrates, and the National Association of Probation Officers (Napo), are supporting the new role for the clerk.
Andrew Mimmack, a spokesman for the society, said: "We are still finalising our proposals to the Auld inquiry but we would like to see our role in criminal courts similar to the one we have in family courts."
Napo has also told the Auld inquiry that the clerk "may well have to be a full member of the bench or have a role in determining questions of law".
Harry Fletcher, assistant general secretary of Napo, said that it was important to make magistrates' courts more efficient.
"But speed should not be pursued at the expense of justice and the local element of magistrates' courts." A professional chairman for the bench might be the way forward, he added.
Harry Mawdsley, chairman of the Magistrates' Association, said that he did not believe that the role of lay magistrates would be diminished.
"We believe Lord Justice Auld's approach is going to be a very positive one and will enhance the role of JPs. I am confident there will still be a major role to play for the lay magistracy."
The proposed changes came as the Lord Chancellor yesterday called on magistrates to use their full powers to punish wrongdoers as he backed new guidelines linking fines closely with offenders' means.
Lord Irvine of Lairg told magistrates in London that the guidelines would help to stamp out inconsistencies between courts.
There was evidence, he said, that the sentence for a particular offence can vary "dramatically" from court to court.
The percentage of offenders who were jailed for theft varied from 1 per cent to 47 per cent, he said, although most courts fell within a band of between 5 per cent and 20 per cent. The discretion, he added, in which magistrates have to take into account the particular circumstances of a case, should not be curbed.
However, the new sentencing guidelines, while not a tariff to be religiously followed, would provide a "more detailed basis for calculating the appropriate level of fine".
