LAW 01: Law Making and the Legal System

The Criminal Courts and Lay People

Lay Magistrates

• Deal with approximately 98% of all criminal cases

• Known as Justices of the Peace • 1195 - preserved the ‘King’s Peace’ and were

known as ‘Keepers of the Peace’ • Approx 29,000 lay magistrates • Sit as a panel of 2/3 • Unpaid, except for expenses

Rough composition of the bench

• The bench is supposed to reflect society as a whole

• Roughly equal numbers of men and women

• Ethnic minorities are reasonably well represented

How often do they work?

• They are all part-time • Commit to be able to sit for

at least 26 half-days a year • There are approximately 1

million cases heard in the Magistrates’ Court each year

The Role of Lay Magistrates• Deal with approx 98% of all criminal cases • Early administrative hearings • Try all summary offences such as common assault • Try most TEW offences such as s. 47 ABH • Conduct sending for trial proceedings for indictable offences such

as murder • Act as judge & jury (decide guilt or innocence and sentence) • Sentencing powers: 6 months imprisonment or 12 months for

consecutive sentences and fines up to £5,000 • Try most offences committed by young offenders (10-17) in the

Youth Court • Bail applications (Under Bail Act 1974) • Applications for legal aid • Issue search and arrest warrants • Deal with some civil matters eg. Non-payment of council tax and

TV licences • Sit with a circuit judge in appeals to the CC.

Qualifications

• Lay magistrates DO NOT have Any qualifications in law. Who Can be a magistrate? Formal requirements: • Must be aged between 18 and 65 on

appointment. (However, it is rare for a person under 27 to be considered as it is felt they will not have enough experience.)

• Must commit themselves to sitting at least 26 half days each year.

Who Can’t be a Magistrate? Restrictions on Appointment

• People with serious criminal convictions • Undischarged bankrupts • Members of the armed forces • Those whose work is incompatible with the work of a

magistrate, such as police officers & traffic wardens. • Relatives of those working in the local criminal justice

system are unlikely to be appointed. • People whose hearing is impaired, or who by reason

of infirmity cannot carry out all the duties of a justice of the peace cannot be appointed.

• Close relatives will not be appointed to the same bench.

Character requirements: • In 1998, the Lord Chancellor set out 6 key qualities which candidates should have:

1. Good character 2. Understanding & communication 3. Social awareness 4. Maturity & sound temperament 5. Sound judgment 6. Commitment & reliability

• They must have certain ‘judicial’ qualities – it is particularly important that they are able to assimilate factual information & make a reasoned decision upon it.

• Must also be able to take account of the reasoning of others & work as a team.

Other important qualities:

Recap

1. List 3 jobs that magistrates do. 2. How much do magistrates get paid? 3. List 2 key qualities that magistrates should have,

according to the Lord Chancellor. 4. List 3 people who cannot be a magistrate. 5. What age can you be to become a magistrate? 6. How many days do you have to commit to? 7. What is another name for magistrates? 8. How many magistrates sit together? 9. Who advises magistrates on points of law? 10. What percentage of magistrates are women?

Selection of Lay Magistrates

Application or nomination by local political parties or voluntary bodies.

• Advertisement • Check that they meet formal requirements; 6

key qualities; not disqualified • Complete application form • Local Advisory Committee will assess

applications • Interviews • Local Advisory Committee sends

recommendations to Lord Chancellor

1. advertisement

• When new magistrates are needed, there is usually an advertisement placed in the area where the need has arisen.

2. Check eligibility to apply

A person can apply to be a magistrate in either their home or work locality.

•The person applying to be a lay magistrate must make sure that: •they meet the formal requirements for being a lay magistrate (age and Oath); •they have the 6 key qualities required; •and they have not been disqualified from being a magistrate.

3. Application form

• Once checked eligibility, complete application form.

• Standard application form available from the Ministry of Justice, which can be completed online or by post.

• The appointment process can take between 6-12 months once an application form has been completed.

4. References

• The local Advisory Committee will assess applications and contact the applicant’s references

5. Interviews• Local Advisory Committee invites

eligible candidates to 2 interviews • Interview 1 = assesses the

candidate’s general character against 6 key qualities required

• Interview 2 = assesses judicial qualities. Practical examples of the types of cases are discussed.

• At this stage, background checks are made for conflicts of interest.

6. Recommendations

• In making their recommendations, the Local Advisory Committees consider the suitability of candidates and the number of vacancies.

• The view of the Committee is then sent to the Lord Chancellor

Appointment

• About 1,500 new lay magistrates are appointed each year

• Appointments are made by the Secretary of State and the Lord Chancellor on behalf of, and in the name of the Queen.

Removal of magistrates

• Magistrates must retire at the age of 70.

• Complaints about the conduct of magistrates are dealt with by the Judicial Discipline (Prescribed Procedures) Regulations 2006.

• Complaints are investigated by Advisory Committees and staff in the Office for Judicial Complaints.

Recap Questions1. What are the 2 appeals from the MC? 2. When can the prosecution appeal from CC to COA? 3. How many days to lay magistrates have to commit to? 4. List three jobs that lay magistrates do. 5. What civil work do magistrates do? 6. List 3 people who cannot be a lay magistrate. 7. Give 2 of the 6 key qualities which lay magistrates

should have (according to the Lord Chancellor). 8. What happens in the two interviews that lay magistrates

have? 9. Who recommends lay magistrates to the Lord

Chancellor? 10. Who appoints lay magistrates?

Training Lay Magistrates

Please see the Magistrates Association website for further information on training

Training

Supervised by the Magistrates Association and the JSB

• Initial training - role; court observation; visits

• Mentoring – 6 sessions in first 12-18 months

• Core training - core workbook • Consolidation training – law and

procedure and skills development • First Appraisal • Continuation training – specialisation • Threshold training – accompanies

development in a magistrates’ role

Initial Training

• a basic introduction to the role and responsibilities of a magistrate;

• a preliminary reading and three days of training;

• at least three court observations; • a visit to prison; • a visit to a young offenders institution and

a probation service facility.

Mentoring

• There are 6 formal mentored sittings in the first 12-18 months.

• used to discuss the day’s events in court with the mentor

• and to reflect on how knowledge and skills have been applied during the day.

• identify further training and development needs.

Core Training

• Over this first year, further training, visits to penal institutions and/or observations take place to equip magistrates with the key knowledge they need.

• Every magistrate is given a core workbook for further optional self study.

Consolidation Training

• After about a year, a new magistrate will receive consolidation training. This will normally be for the equivalent of two days, and includes training on law and procedure as well as skills development.

First Appraisal

• After the first year, the new magistrate will have the first appraisal. Another specially trained magistrate appraiser will sit as part of the bench, observing whether the new magistrate is demonstrating he/she is competent in the role, against the competences. When successful, the magistrate is deemed fully competent.

Continuation Training

• After at least two years - opportunities to do specialised training:

to sit in either the Youth Court or; the Family proceedings court or to; train to become chairman of the bench. • Training is also undertaken to cover things

such as new legislation or sentencing policy as well as refresher training.

Threshold Training

• Accompanies each development in a magistrates' role, there is a matching training process.

• magistrates may go through comprehensive training to become a chairman or presiding justice.

• Training in the specialist skills needed for family or youth courts.

Test Yourself Questions on Magistrates’ Training

1. Who has overall responsibility for the training of magistrates?

2. What does a Justices’ Clerk do? 3. How many court observations do

magistrates take part in during their initial training?

4. What visits do magistrates take part in during their initial training?

5. How many mentor sessions take place during the first 12-18 months on the job?

6. What happens during the first appraisal? 7. What is continuation training? 8. What is threshold training?

Recap Test

1. List 3 jobs that magistrates do. 2. Who appoints magistrates? 3. Give 2 key qualities that magistrates should have. 4. Who cannot be a magistrate? 5. What are the formal requirements for being a magistrate? 6. Who do you apply to, to become a magistrate? 7. Which body is responsible for training magistrates? 8. What happens during initial training? 9. At what age do magistrates retire? 10. Who provides the training to the magistrates?

The composition of the bench

“Each bench should broadly reflect the community it serves in terms of gender,

ethnic origin, geographical spread, occupation and political affiliation.”

Why do you think that it is important that magistrates reflect the community in which they serve?

Composition of the Bench Today• Traditional image: ‘middle-class,

middle-aged and middle-minded.’ • Most are aged 45-65. • Majority are supporters of the

Conservative Party; even in areas where there is a high Labour vote.

• Report: ‘The Judiciary in the magistrates’ Courts’ (2002) found that magistrates were drawn overwhelmingly from professional & managerial ranks; & 40% were retired from full time employment.

Age of Lay Magistrates

Under 40 years 3.8%40-49 years 14%50-59 years 29.9%60-69 years 52.4%

• However, in other respects the bench is well balanced:

• 49% of magistrates are women as against 10% of professional judges.

• Ethnic minority are reasonably well represented in the magistracy.

• In 1998 the first blind lay magistrates were appointed.

Advantages Disadvantages

• Enable active citizenship (ordinary people involved in Justice system). •Public confidence in the open system of justice •Most representative type of judges – 49% of mags are women, compared to only 10% of professional judges. Ethnic minorities are also reasonably represented. •They provide local justice & know about crime in the area. •They are unpaid, so the cost saved is a major advantage •Fewer appeals made against mags decisions – cost effective and capable

• Inconsistency between sentencing and bail refusal rates. Some benches are 10 times more likely to impose custodial sentences than neighbouring benches. •Unrepresentative of society – disproportionately old, white, middle class, professional and wealthy. Only 3.8% under 40 years old. •Case-hardened and biased • because they are not legally qualified it is said that this is ‘amateur justice’. •Rely heavily on a legal advisor for help during the case.

Recap test: Criminal Courts and Magistrates1. What are the 2 appeal routes from the MC? 2. What is a case stated appeal? 3. When can the prosecution appeal from CC to COA? 4. What does the local advisory committee do? 5. Give 2 advantages of magistrates. 6. Give 2 disadvantages of magistrates. 7. What percentage of magistrates are under 40 years old? 8. What are the formal requirements for being a magistrate? 9. Who appoints magistrates? 10. List 3 things that magistrates do.

Jurors

“Juries are the lamp that shows that freedom lives.”

Lord Devlin

What do you think Devlin means by this? Do you agree?

The Juror’s role in Criminal Cases

• One of the most important civic duties. • Expected to perform this duty unpaid (apart from expenses) when called upon to

do so. • Function of the jury is to sit as a bench of 12 and decide the issue of guilt or

innocence of the D. • Jury acts as ‘master of the facts’, whereas the judge is ‘master of the law.’ • Jury hears evidence ; will take notes; and asks questions through the judge. • The judge will sum up the evidence and will direct the jury. • Jury will consider its verdict in private. • A foreman will lead discussions. • 12 jurors should come to a unanimous decision on guilt or innocence (can be

reduced to a majority verdict of 11:1 or 10:2 in some situations) • They decide, based on the evidence presented, whether a defendant is guilty or

not guilty of the crime. • Foreman will deliver verdict to judge.

Independence of the Jury

Bushell’s Case (1670) • Several jurors refused to convict Quaker

activists, so the trial judge fined them & committed them to prison.

• On appeal, the Court of Common Pleas ordered the release of the jurors, holding that jurors could not be punished for their verdict.

• This case established that the jury were the sole arbiters of fact & the judge could not challenge their decision.

R v McKenna (1960)

The judge at the trial threatened the jury that if they did not return a verdict within another 10 minutes they would be locked up all night.

The jury then returned a verdict of guilty, but the defendant’s conviction was quashed on appeal because of the judge’s interference.

• Main legislation is the Juries Act 1974

• Nearly 500,000 people are summoned each year for a period of 2 weeks

• If a person fails to attend without good reason, they may be imprisoned or fined.

• If a case has a high media profile there is a danger that this might influence the verdict

• In such cases, the jury stays together until it has reached its verdict. If overnight – jury are accommodated in a hotel and kept away from media reports.

•

Qualifications of Jurors

Eligibility The present qualifications are set out in the Juries Act

1974 (as amended) so that to qualify for jury service a person must be:

• Aged 18 - 70 • Registered to vote • Resident in UK for 5 years since the age of 13 Must not be: • A mentally disordered person, or • Disqualified from jury service.

Disqualification

• Are on bail; • Has a mental disorder; • Has a physical disability (such as deafness) which a

judge considers would not allow him to perform his duties properly;

• Have a conviction of life imprisonment; • Have a conviction of imprisonment for public protection; • Have served 5+ years imprisonment or youth custody; • Has in the past 10 years: - served any time in prison; - Has had a suspended sentence; - Has had a community order imposed.

Deferrals (service put back to a later date)

• If the application is successful - jury service is carried out later within the following 12 months.

• The application for deferral needs to be a good reason, such as: examinations; an operation booked; a holiday that has already been booked.

• Research shows ¾ of deferrals are due to work commitments or holidays

Excusals (excused from service until randomly selected again)An excusal effectively takes a person off the list for jury service for 12

months and therefore requires a further random selection before the person is summoned again. It is only available in exceptional circumstances.

Those who have a right to be excused or who can apply for a discretionary excusal are:

• Been a juror in the previous 2 years; • Full-time members of the armed forces where absence would

prejudice efficiency of service; • Those who are 65+ • Those whose religious beliefs are incompatible with jury service • Certain members of the medical profession • Euro MPs • Members of Parliament

Selection of a Jury

• CC official summonses jurors • Names selected at random from the

electoral registers for that area. • Those summonsed must notify the court

of any reason (s) why they should not or cannot attend.

• All others are expected to attend for at least 2 weeks jury service.

Vetting

• Once the list of potential jurors is known, both the prosecution and defence have the right to see that list. In some cases it may be decided that the jurors should be vetted (checked for suitability).

2 types of vetting: 1. Routine police checks 2. Background checks

Selection at Court

• Court clerk selects 12 out of 15 potential jurors at random

• Before 12 jurors are sworn in, both the prosecution & defence have certain rights to challenge one or more of the jurors:

• To the array • For cause • Prosecution right to stand by jurors

Prosecution right to stand by jurors

• Only the prosecution • Juror is put at the end of the list and not

used unless there are not enough other jurors.

• Should be used sparingly.

For Cause

• This involves challenging the right of an individual juror to sit on the jury. (E.g. disqualified; knows or is related to a witness or the D.)

• R v Wilson and R v Sprason (1995) The wife of a prison officer was summonsed for jury

service. She asked to be excused on that ground but this was refused.

The Ds had been on remand in the prison where here husband worked. COA quashed their convictions because justice must be seen to be done and the presence of Mrs Roberts on the jury prevented that.

To the array

• Juries Act 1974 s. 5 • A challenge to the whole jury on the basis

that it has been chosen in an unrepresentative or biased way.

• Romford jury in 1993 – 9 came from Romford with 2 of them living within 20 doors of each other in the same street.

• Multi-racial juries: cf. R v Fraser (1987) and R v Ford (1989)

Are Juries Representative?Use of electoral register • Not always representative of population • Excludes homeless • Young & ethnic minorities do not always register

to vote. Multi-racial juries • Research by Baldwin & McConville (1979) found

that ethnic minorities were severely under-represented on juries.

• No power for the judge to empanel a multi-racial jury (R v Ford (1989)).

Disqualified jurors • Many disqualified people sit on juries. • One survey of Inner London estimated that 1/24

jurors was disqualified. • In one instance in Snaresbrook Crown Court a

man with 15 previous convictions sat as a juror in 3 cases & was the jury foreman in 2 of them.

Excusals • If there are too many discretionary excusals it

may lead to an unrepresentative jury.

Advantages of jury trials

• Active citizenship Juries allow the ordinary citizen to play a role in administering justice. • Jury equity Verdicts can be viewed as those of society rather than those of

professional lawyers and judges. • Being tried by your peers is a fundamental right Protects from abuses by the state. ‘Juries are the lamp that shows that

freedom lives.’ • Public confidence – controversy when Govt tries to limit jury trials. • Impartiality and fairness Juries are free from pressure in making their decision (secrecy of jury

room); are not personally involved; and are not case hardened. • Open system of justice The law has to be kept clear enough for juries to understand. • Layman’s equity – can find D not guilty, when legally he is. • Evidence that they do not discriminate

Disadvantages of jury trials• High acquittal rates – compared to MC • Makes trials slow and expensive Trials at crown court cost more than 3 times as much as in lower courts. • Compulsory nature of jury service – jurors agreeing just so they can

go home • Secrecy of the jury room – we don’t know their reasons • Lack of understanding MOD report says 2/3 of juror’s do not understand the judge’s legal

directions • Racial bias The jurors may have prejudices which can affect the verdict. In

particular, there is concern that some jurors are racially prejudiced. • Media influence - Do high profile cases get a fair trial? • Jury nobbling – jurors might be intimidated or bribed. • Use of the internet - Eg. Facebook case • Insufficient competence to deal with complicated cases – fraud.

Advantages Disadvantages

Both magistrates and jurors

• Both encourage active citizenship

• Both have public confidence

• Both provide local justice

• Both have no legal knowledge – amateur justice

Magistrates • Cheaper than professional judges

• More representative than professional judges

• Inconsistency in bail & sentencing rates

• ‘middle-ages; middle-class; middle-minded.’

Jurors • Tried by peers is a fundamental right.

• Jury equity

• Make trials slow & expensive

• Lack of understanding in complex cases

• Media influence.

Lay people generally… + both encourage active citizenship. + both have public confidence in the open system of justice. + both provide local justice. -Both have no legal knowledge, so amateur justice. Mags reliant on legal adviser, juries reliant on judge’s directions. Magistrates… + cheaper than professional judges + More representative than professional judges (49% women compared to 10% judges) -Inconsistency in bail and sentencing rates -Unrepresentative of society (Middle aged, middle class. only 3.8% under 40.) Juries…. + being tried by peers is a fundamental right that protects from abuses by the state. + Jury equity – making their decisions based on fairness because they are impartial -Make trials slow and expensive (3x £ as MC trials) -Lack of understanding and influenced by the media.

Advantages and Disadvantages of Lay People