The term lay people
The term ‘lay people' is used to describe the use of ordinary, non-qualified people in the legal system. It is believed that by using ordinary people in courts it makes the system fairer and avoids people criticising the court for making decisions behind closed doors.
Lay people are mainly used in magistrates' courts and crown courts but in the past were used in the high court to deal with civil cases. Juries can still occasionally be used in civil cases.
Lay people can refer to lay magistrates and juries. Over 95% of criminal cases are dealt with by magistrates. Magistrates are unqualified and not paid. They normally sit as a bench of 2 or 3 magistrates to hear a case. They must have certain qualities in order to become a magistrate, these are:
- Sound judgement
- Commitment and reliability
- Understanding and communication
Other qualifications needed to become a magistrate are:
- Must be aged 18-65
Must not have a criminal record
Must be able to sit in court for 26 half days a year
Using ordinary people as magistrates has many advantages:
- A wider range of people deal with cases, this would not be possible if magistrates had to be qualified.
- There are very few appeals about decisions made by magistrates
Cases are dealt with quickly
Magistrates often have local knowledge of the area they are working in
It saves money
Juries are used when a defendant pleads not guilty in a criminal court. Juries have been used for over 100 years. A jury is made up for 12 ordinary people who are selected at random from the electoral register.
In order to qualify for jury service a person must be:
- Aged 18 to 70
A resident of the United Kingdom for at least 5 years since their 13th birthday
Registered on the electoral register
When chosen to be in a jury the person is legally required to do so unless they are disqualified. People may be disqualified if:
- They are on bail
Had a community order
Have been in prison
The role of the jury is to come to a majority decision about whether the defendant is guilty or not guilty based on evidence presented to them. The judge decides points of law and the jury decides the facts. They must try to come to a unanimous verdict however a majority vote will be allowed if this is not possible. The reasons for the verdict are discussed in private and cannot be discussed with anyone else.
Juries may be used in civil cases in the high court for cases of fraud, defamation, false imprisonment and malicious prosecution. In cases like this they decide who wins and case and the damages that will be awarded.
Using a jury in cases brings certain advantages:
- There is a random selection of the public
Gives the public more confidence
Law is more open and understandable as the whole process is public
In both the criminal cases faced by Jayne and Jim they will encounter lay magistrates and possibly juries. The main role of the magistrate is to decide whether the defendant is guilty or not guilty. As they are not legally qualified they can ask advice from legally qualified professionals who sit in court with them. It is likely that Jayne and Jim's cases will be resolved in the magistrates' court. If they were to plead not guilty the may also encounter a jury in their cases.
During their criminal and civil cases Jayne and Jim will encounter solicitors, barristers and judges.
In England and Wales there are more than 80,000 solicitors. Around 80% of them work for private solicitor firms and the other 20% may work for local authorities or the crown prosecution service.
Solicitors usually have first contact with clients. The main role of a solicitor is to solve problems for clients, this means they carry out work in a wide range of areas including:
- Advocacy in lower courts
- Undertaking routine paperwork e.g. wills
Providing general advice
Advocacy in higher courts with an extra qualification
A solicitor is likely to be the first person Jayne and Jim had contact with about their court cases. The solicitor will represent them in court both in the criminal and civil cases.
“In 2008 there were 12,136 self-employed barristers in the UK with 7681 working in London” (OCR law GCSE)
Barristers are often self-employed; they are specialist advocates and usually only work in a small number of areas including:
- Managing cases
Drafting legal documents
Barristers advise on legal issues passed through solicitors, they very rarely have contact with the public. They perform 2 main roles: they give advice and opinions on complex matters of law and they represent clients in court. Barristers may represent clients in any courts, even higher courts.
Jayne and Jim may not need a barrister in their cases and it will be easier for them to allow a solicitor to represent them in court.
Judges are arranged into a hierarchy as the courts are. Different judges will work in different courts. The roles of judges may vary depending on which court they work in. They work of judges will also vary depending on whether is it a criminal or civil case. In criminal cases the judges' role is:
- To control pre trial matters
- Manage the trial
To handle bail applications
Give advice to jury
In civil cases their role is:
- To allocate cases to appropriate track
- Enforce schedules
- Give legal direction on evidence
Hear pre trial matters
Hear the case, weigh up the evidence and make a decision
Judges may supervise a trial in some cases
Lay magistrates carry out a wide range of work, a high percentage of the time the work is connected to criminal cases however they do deal with some civil matters for example non payment of bills to companies like gas, water and electricity. Magistrates try 97% of criminal cases.
Jayne and Jims criminal cases will be dealt with by lay magistrates. The role of the magistrates will be to determine from the evidence given whether they are guilty or not guilty, and if the defendant is found guilty the magistrate will pass a sentence on them.
A solicitor or barrister will be able to act as an advocate on behalf of Jayne and Jim in their court cases. Solicitors can only act as an advocate in a magistrate court whereas a barrister has access to all the courts. The solicitor or barristers' job will be to plead the innocence of their client in court in order to persuade the magistrate the defendant is not guilty.
A solicitor can deal with other matters e.g. writing letters for clients and other paperwork.
The function of the lay people who will be involved in the criminal cases is to look at the evidence provided and decide on a verdict. The function of the lawyers is to work with the client before and during the court case in attempt to achieve the best possible result for their client.
Jayne and Jim may also encounter a jury in their criminal cases if they pled not guilty and went onto a higher court.
In Jayne's civil case lay magistrate will not be used to decide the verdict, instead it is likely to be either a district judge or a circuit judge. The judge will decide on the penalty given to the defendant if the evidence is substantial and the damages that Jayne will receive.
A solicitor or barrister could work on Jayne's behalf in order to try and persuade the judge that the defendant is guilty in attempt to raise the punishment they will receive. Jayne's lawyer in the civil case is likely to be working against the lawyer of the company providing the faulty tanning product. There will not be any lay people involved with the civil case at this stage.
The concept of lay magistrates dates back to the 12th century. Today there are around 29,000 lay magistrates sitting part time in courts. Magistrates sit on a bench or 2 or 3 to hear cases. The number was limited to 3 in 1996, before then there could be up to 7 magistrates hearing one case. If a single magistrate hears a case they have very restricted powers.
Roughly 1500 new lay magistrates are appointed per year. There is a 2 stage interview process conducted by local advisory committees. In the first stage the interviewing panel tried to find out more about the person, in attempt to find out if they have the six key qualities required to be a magistrate:
- Sound judgement
- Commitment and reliability
- Understanding and communication
They will also try to find out information on the candidates' views on particular criminal issues. The second interview faced by the candidate is about their potential judging ability. This is done by discussing two or more case examples
The Lord Chancellor decides on who to appoint as magistrates. He uses recommendations made by local advisory committees; they will provide the Lord Chancellor with a list of names they believe are suitable for the role and he will pick from this list.
All new magistrates must undergo training before they can sit in court. During their first 2 years they will have regular appraisals to monitor their progress; they will also have a mentor. Magistrates may continue to work until they are 70, when a magistrate reaches 70 they may no longer sit on a bench in court to hear cases but instead they may continue working carrying out some administrative work.
Magistrates can be removed at any time by the Lord Chancellor for the following reasons:
- Incapacity or misbehaviour
If they are failing to take proper part in their duties
Persistent failure to meet standards
There are certain advantages and disadvantages to using lay magistrates.
- Cost - Magistrates are unpaid, so this reduces cost to both government and the public. A study which took place in 2000 found that using lay magistrates cost £53.10 per hour, whereas using a district judge would cost £61.78 an hour. The difference may seem small in that context however when it is multiplied by the number of magistrates and the hours of work they do there is a saving of millions.
- Local knowledge - Lay magistrates must live within a reasonable distance of the court they will sit in. This means they will have more of knowledge of the local area than would be possible using a professional judge.
Numbers - due to the fact magistrates sit in 2s or 3s it is more likely that the sentence will be fairer because of the balanced views.
Wide range of people - Using magistrates ensures a wider selection of people from different backgrounds are used, this would not be possible using professional judges. A example highlighting this fact is that 49% of lay magistrates are women, but only 10% of professional judges are women.
Very few appeals - In 2006 only 12,992 appeals were made against magistrates decisions out of nearly 2 million.
- Middle aged, middle class - the perception of magistrates is often that they are middle aged and middle class. A study showed that over 40% were retired and from a professional or managerial background. Although this can be seen as a problem magistrates still consist of a wider range of people than professional judges.
- Inconsistent - There are magistrates up and down the country, different magistrates in different areas pass extremely different sentences for crimes which seem to be similar, an example of this is; for driving when disqualified the percentage of offenders sentenced to custody ranged from 21% to 77%.
Bias towards the police - The police are often frequent witnesses to crimes which are heard in the magistrates court, a problem has arisen where magistrates tend to believe the police almost automatically without considering other options
Dependence on the legal advisor - As magistrates have no legal training in some cases they are relying too heavily on the legal advisor. The legal advisor is not allowed to help the magistrate come to a decision about the sentence so this can also produce inconsistency in the result.
“A major criticism is that most magistrates are Conservatives, even in areas where there is a labour vote” (revision express law)
Juries have been used for over 1000 years. Their original purpose was to provide information and local knowledge, at this time their duties were more those of witnesses. By the middle of the 15th century the jury had taken on the role they play today.
Only a small percentage of the cases entering the courts are tried by juries. Juries may be used in the following courts:
- Crown court
- County court
The crown court is where juries are used the most and considered the most important, they give the verdict whether the defendant is guilty or not guilty. Jury trials account for less than 1% of criminal trials mainly down to the fact 97% are tried in the magistrates' court.
Juries are used in civil cases very rarely. Their role here is to decide whether the claimant had proved the case or not, then if it is decided the claimant has won the case the jury determines the amount of damages received.
People selected for jury service are chosen at random by a computer from the electoral register
In order to qualify to be able to sit on a jury a person must be:
- Aged 18 to 70
A resident of the United Kingdom for at least 5 years since their 13th birthday
Registered on the electoral register
There are exceptions even if a person meets these rules. If they are mentally disabled or disqualified they will not be allowed to be part of the jury.
A judge may also dismiss a person from jury service if they are unable to cope with the trial, this could be for a variety of reasons, e.g. unable to understand English correctly.
When selected to be on a jury the person must do so. Previous to 2004 any doctor or medical professional had the right to be excused from jury service however this has now changed and they must take part. Members of the forces will be excused from jury service. Legal professionals such as judges, lawyers and police may also be chosen for jury service. This causes issues as people believe the rest of the jury may be influenced.
Juries are used in roughly 20,000 cases a year. During a trial the judge presents the points of law and the jury decides the facts. The jury leave the court room and enter a private room where they must try to come to a unanimous decision about the case. The judge must accept this verdict even if he disagrees with it. The discussion which took place in the jury room must stay secret and it is an offence to discuss it with anyone.
As with lay magistrates there are advantages and disadvantages to using juries.
- Public confidence - The use of a jury is considered one of the basics of a democratic society. Using a jury ensures that decisions on law are not only made by legal professionals but the public have some influence over it too. People tend to prefer a trial being decided by a jury rather than a single judge.
- The law seems more open an honest as points have to be explained
The jury are impartial
The random selection of people should cancel out any bias opinions
- The jury may not understand the legal issues involved in the case
- The jury do not have to give reasons for their decision, there is no way to tell if they understood the case.
Jurors could possibly be bias against the court system or the defendant; media coverage may also interfere with the jury's decision.
Jurors may be against the face that they have no option but to take part in jury service, and may rush to a verdict so they can leave as quickly as possible.
As the statistics show, lay magistrates solve a great number of cases with a very small appeal percentage. This indicates that the lay magistrate system is working well. Cases are being tried and resolved quickly and in the cheapest way possible by ordinary members of the public. This makes the system fairer as if judges saw every case they may be bias due to their similar background and experience.
The only downside is the inconsistency of sentences for the same or similar crimes; however this could easily be rectified if some kind of guidelines were given to magistrates from the government or other legal professionals.
Juries are obviously a very effective way of deciding on a case as they have been used for so long. If they were found to be ineffective, this method of trial would not still be active. As the people that are chosen to be on a jury are picked at random it gives the defendant a fair chance and the correct outcome is more likely to be chosen between a group of individuals than just one judge. The problem with juries is that the jury may not fully understand the case; despite this the jury should still be able to understand the basic facts on the case and make an informed decision.
To conclude the use of lay people in the law system is very effective. It saves time and money and also helps the general public to feel involved in the decision making process regarding law. As well as this it brings different age groups, different ethnic minorities and people from different backgrounds together to make a group decision, so instead of having just one view from a judge you get several different views from different people who all thinking differently and have their own opinions on matters.
This creates a fairer system and is beneficial to society as a whole.
At the higher end of the court hierarchy a judge will show his reasoning for coming to a decision about a particular case. If this is a case which has no previous precedent the decision will then state the law and it will become an original precedent which will bind lower courts into making the same decision in future cases if the facts are similar. This is referred to as judicial precedent
Precedent refers to the way judges make laws for other judges to follow. It may be used in cases similar to one another in order to decide the verdict. There are several types of precedent. A binding precedent must be followed even if the judges disagree with it. A persuasive precedent is a decision which has been made previously but it does not have to be followed for a variety of reasons. An original precedent involves a case where no previous precedent for judges to use and therefore a new one is created.
Precedent makes cases fairer and provides a degree of certainty in law. Precedents are used in courts to ensure cases where the same or similar crime has been committed. It ensures an even punishment for the same crimes throughout the country.
There are a few ways judges can avoid precedent; overruling and distinguishing.
Overruling means that the previous decision made is now wrong
Distinguishing means the precedent will not be applied as the facts in the cases are significantly different.
In Jayne's case a precedent could be used from a case in the past which had involved businesses selling food and having poor levels of hygiene or vermin present. As in this case the mouse was found in the actual food a new precedent may be formed regarding that.
A case which could be used due to similar circumstances is a case in which the fast food restaurant KFC was fined £24,000. Environmental health found a number of problems with 1 KFC restaurant in Wales on many occasions. There were dirty floors and equipment, no hot water, staff wearing dirty clothes and not washing hands after handling raw chicken.
It is likely that the restaurant Jayne had food from would receive a large fine or even be closed down and Jayne would receive compensation from them.
An act of parliament is a law which must be followed; it is passed by parliament and also given royal assent by the monarch.
A proposed piece of legislation is referred to as a bill. There are several types of bill:
- A public bill
Private members bill
The government are not the only people allowed to introduce a bill. Any MP can introduce a bill into parliament. Although any MP is able to introduce a bill the chances of that bill becoming an act of parliament is small. A government bill has more chance of becoming an act as there may be more people supporting it than the private members bill.
Most bills are introduced by the government. Once an act is drafted it becomes a bill and has to go through stages in order to become an act of parliament.
There is a lengthy process before a bill becomes an act of parliament. The following graph shows the different stages a bill will go through:
Bill is drafted
House of Lords
First reading: The name and purpose of the bill is read out to the House of Commons, a vote then takes place as to whether the bill should pass onto the next stage. If enough MP's vote ‘yes' the bill will progress onto the next stage.
Second reading: This stage holds the main debate for the bill; the debate will usually focus on the main points of the bill rather than specific details. Another vote takes place after the debate and if the majority of MP's are in favour the bill will move onto the next stage.
Committee Stage: In this stage the bill is looked at in close detail by between 16 and 50 MP's who are able to suggest any amendments they would like to make to the bill.
Report stage: The committee from the previous stage reports back to the House of Commons. Amendments suggested by the committee will be debated and voted on and any new amendments can be suggested at this stage. If there were no amendments suggested during the committee stage the bill will pass straight onto the next stage; third reading.
Third Reading: The third reading is the final vote on the bill before it is sent to the House of Lords.
House of Lords: The bill will then go through the same 5 stages as it did in the House of Commons. The House of Lords are able to amend the bill, if amendments were made the bill will be returned to the House of Commons to vote on the changes.
Royal assent: The monarch approves the bill and it becomes an act of parliament.
A high number of new laws are passed each year, many of these may need interpreting due to use of complicated or vague language and terms which could mean several different things.
Although parliament makes new laws it is the job of the courts to use and apply these laws in the correct way.
Statutory interpretation refers to the process of interpreting and applying legislation.
Cases often come before courts as there is uncertainty about a word or phrase used in an act. There are several reasons why meanings can be unclear:
- A broad term - Some words can cover many different possibilities
- Drafting error - An error may have been made while the bill was being drafted and gone unnoticed
Changes in language - The way language and words are used can change over time making older acts confusing.
Ambiguity - Some words can have more than 1 meaning
New developments - Developments may cause older acts not to cover current situations
The three rules of statutory interpretation are:
- The literal rule
The mischief rule
The golden rule
The literal rule:
This rule means the courts will give words their plain, ordinary and literal meaning. However doing this can mean the result is not sensible.
An example of the literal rule is Whitely v Chapell. The defendant was charged under an act which made it an offense to ‘impersonate any person entitled to vote'. The defendant had voted using the name of a dead person. The court used the literal approach and therefore found that a dead person was not entitled to vote so the defendant was not guilty.
The golden rule:
This rule is a modification of the literal rule. The golden rule is only used if the literal rule was used first and led to an unreasonable result. The golden rule can be used in 2 ways:
The narrow approach - used when words have more than 1 meaning, the most sensible meaning is chosen and used. The wider approach - when words have 1 meaning but the judges have reasons for not applying it.
An example of the golden rule (wider approach) is R v Sigsworth. In this case a son had murdered his mother; if the literal rule had been used he would have inherited her estate. However the court used the golden rule to ensure the son didn't benefit from the crime he had committed.
The mischief rule:
The previous rules looked at what parliament said, this rule looks at what they meant. The courts should consider these factors:
- What was the law before the making of the act
- What remedy was parliament trying to provide
What mischief was missing from previous law
The true reason of the remedy
An example of the mischief rule is Smith v Hughes. The street offender's act 1958 made it an offence for prostitutes to loiter or solicit in the street or public place. In one case a prostitute was not be on the street, but on a balcony, she argued that she was not in the street or in a public place. Despite this she was found guilty using the mischief rule.
- There is some degree of certainty and predictability in the law
- There is consistency and precision in law, without precedent people in different parts of the country could get different sentences for the same crimes.
- Mistakes are avoided
It saves time and therefore money
It ensures impartiality
It is based on previous court experience
- Decision about creating precedent made by limited number of people
- There can be too many precedents
It is slow to change outdated laws
It can become thoughtless and mechanical
Can be too confusing
- Law made and amended by a number of people before it is passed
Can be changed if required
Long process where the law is checked
- Takes longer
Can be rushed due to a reaction to recent events
Advantages of delegated legislation:
- It saves parliaments time
- People can have knowledge and expertise in certain areas
Can be changed more quickly than acts of parliament
Can respond quickly to new developments
Disadvantages of delegated legislation:
- There is a lack of publicity
- It is undemocratic
There is a large volume
Judicial precedent is one of the oldest forms of law making. There are believed to be over 400,000 reported cases of precedents.
Precedents are created in court by Judges. They are usually created in higher courts by senior judges; the president must then be followed by all courts lower in the hierarchy. However sometimes a decision made by a lower court will be agreed with and followed by a court higher than it, this can be seen in the case R v R 1991 where the House of Lords agreed with the decision and reasoning of the court of appeal. County courts and magistrates courts are unable to create precedent and must follow the decision of higher courts.
The doctrine of judicial precedent is concerned with the importance of case law in our system. It is really the lawyer's term for legal experience. We all tend to repeat things we have done before: law is essentially no different. If one case has decided a point of law then it is logical that that solution will be looked at in the future. (http://www.oup.com/uk/orc/bin/9780199282500/hollandwebb_chap05.pdf)
An original precedent is formed when the law in a case has not previously been decided on; the decision of the judge then forms a precedent. When deciding on such cases the judge may chose to look at cases which are somewhat similar and may use similar rules. This method of coming to a judgement is known as ‘reasoning by analogy'. When giving a decision about a case the judge must set out his reasons for coming to the decision. This is known as the ‘ratio decidendi' meaning the reason for the decision It is this specific part of the judgement which creates the precedent. Any other parts of the judgement are known as ‘obiter dicta' which means other things said. The decision as to whether the president will be binding or persuasive comes down to the level of the court which is making the decision.
New precedents are being made all the time to keep up with rapid new developments in the world. Here are some relatively recent cases in which an original precedent has been formed:
Gillick v W. Norfolk Area Health Authority 
In this case the House of Lords had to come to a decision regarding minors and contraception. They had to decide if girls under 16 should be allowed to be given contraceptive services from a doctor without parental consent. One side argued that there would be an increase in teenage pregnancy if parental consent was necessary and the other side argued that judges could be perceived to be encouraging under age sex if they ruled that parental consent was not necessary.
Airedale NHS Trust v Bland 
In 1989 Tony Bland was injured at a football game, he suffered severe brain damage and was left in a coma. He was being kept alive by machinery, drugs and artificial feeding and it was down to the courts to decide if it was lawful to stop doing this. The court eventually came to the decision that it would be in the patients best interest to discontinue the treatment he was being given. Tony Bland became the first person in England to be allowed to die through the switching off of life extending treatment. During this case the House of Lords made it clear that they thought such an important issue should be dealt with by parliament.
There are many reasons why acts of parliament may need interpreting. The rules of interpretation help judges to do this. It is down to the individual judge which rule they use, so the result of a case could turn out very different depending on the judge and the chosen rule.
The literal rule was the main rule used during the first half of the 20th century and is normally the first rule judges look at today. It gives words their plain and ordinary meaning even though this may produce a ridiculous result.
London and North Eastern Railway Company v Berriman (1946)
This case is an example of where the judge chose to use the literal rule. A railway worker was killed whist carrying out routine maintenance work on the track. There was a law in place saying that compensation was payable on the death of those ‘relaying or repairing' the track. As the worker was neither repairing nor relaying the track; under the literal rule it meant no compensation was received.
The golden rule goes along the same lines as the literal rule but the court is allowed to avoid interpreting an act so it would lead to an absurd result.
R v Allen (1872)
The Offences Against the Person Act 1861 stated that 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of bigamy', it was realised that it would not be possible for someone already married to marry someone else, it would be possible to have a marriage ceremony, but not to actually marry. This would make the law useless so the court decided that marry should mean to go through a marriage ceremony.
Using the mischief rule the judge should look at what the law was previous to the newer law and what problem it was trying to solve, the law should then be interpreted so that the gap the previous law couldn't solve is covered.
Elliott v Grey (1960)
Under the road traffic act it is an offense for an uninsured car to be used on the road. The car in question here wasn't being ‘used' on the road, but jacked up with its battery removed. The court decided that the car was still a hazard that the law was trying to prevent.
Overall judges play a major role in the formulation and interpretation of legal rules. Judges create precedents which are a vital part of the legal process. Parliament does not have time to address every law which needs to be made due to the lengthy process and the amount of laws which are necessary. Previously it has been argued that it is wrong for judges to be making laws as technically their job is to interpret and apply laws which have been made by parliament. Parliament is elected to create laws meaning that having judges creating laws can be seen as undemocratic. When a legal case is being dealt with in court if there are no previous laws on the subject or the area the case is in the judge doesn't really have any option but to create a new law. This is not the only way judges are able to create laws; they may also overrule previous laws. If the law they are working with was created 100 years ago it is likely to be out of date. It is the job of parliament to update laws but they are often slow to do so.
After laws are created by parliament it is the job of judges to interpret and apply these laws so they are able to use them in court. They must look at laws and chose the correct method of interpretation to use based on the case they are dealing with and the outcome each rule would produce. It is very important that laws are interpreted correctly and in the way the government intended.
Without judges performing these roles is it likely that many laws would be out of date as parliament do not have the time to update them and fewer laws would exist meaning people would get away with things which should be against the law. Laws could also be interpreted in the wrong way
The role of the judge in the legal system is very important and they play a major part in forming and interpreting laws.
Catherine Elliott & Frances Quinn - AS Law Third edition 2006
Revision Express - Law AS & A2
Chris Turner - OCR Law for GCSE - 2009
Jacqueline Martin - OCR Law for AS - 2008
http://sixthformlaw.info/02_cases/mod2/cases_precedent_hol.htm#R v R (rape - marital exemption)  HL