The system involves members
of the community and provides a wider cross-section of society than
For example, 47% of
magistrates are women compared against 5% of professional judges. Even though there is a shortage of ethnic minority
magistrates, there is more involvement than in the main judiciary.
Lay magistrates tend to be
'middle-class, middle-aged and middle-minded' they are not a true
cross-section of the local community, and will have little in common with
the young working-class defendants who make up the majority of defendants.
2. Local knowledge
Since magistrates have to
live within 15 miles of the area, it is intended that they should have
local knowledge of particular problems in the area.
As most magistrates come
from the professional and managerial classes, it is unlikely that they
live in, or have any real knowledge of, the problems in the poorer areas.
The use of unpaid lay
magistrates is cheap. The
cost of replacing them with paid stipendiary magistrates has been
estimated at £100 million a year. The
cost of a trial in the magistrates' court is also much cheaper than in
the Crown Court.
Improved training means that
lay magistrates are not complete 'amateurs'.
There are criticisms that
the training is variable in quality and inadequate for the workload. This poor training may be the cause of marked variations in
sentencing and granting of bail between different benches.
5. Inconsistency in sentencing
A study by Professor Diamond
in 1991 found that lay magistrates were more lenient in the sentences they
passed than stipendiary magistrates.
Several studies in recent
years have revealed worrying differences in the number of defendants sent
A study of sentencing by
Liberty showed that in 1990 twice as many defendants were sent to prison
by magistrates in Greater Manchester compared to Merseyside.
1995 Home Office figures
revealed that there were major differences in sentencing practice for the
same type of offence, eg, of those convicted of common assault, London
magistrates sent about one out of every three offenders to prison, while
in Northampton no offenders were jailed.
6. Advice of the clerk
The lack of legal knowledge
of lay magistrates should be offset by the fact that a legally qualified
clerk is available to give advice.
This will not prevent
inconsistencies in sentencing since the clerk is not allowed to help the
magistrates decide on a sentence.
In some courts it is felt
that the magistrates rely too heavily on their clerk.
7. Prosecution bias
Comparatively few defendants
appeal against the magistrates' decision, and many of the appeals are
against sentence and not against findings of guilt.
In 1995 there were almost
25,500 appeals out of 1.5 million criminal cases. Rather less than half of the appeals were completely successful.
It is often said that lay
magistrates tend to be prosecution-biased, believing the police too
There is a low acquittal
rate in magistrates' courts; for instance the CPS report 1994/5 showed
that of 93,000 defendants who pleaded not guilty, only 22% were acquitted.
from J. Martin, The English Legal System.
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