What part is played by juries and lay magistrates in the resolution of civil and criminal cases?  Examine critically the arguments for and against the use of either juries or lay magistrates in the English legal system. 

Written by Vicky Burgess

Since the thirteenth century, as stated in the Magna Carta (1215), people have had a right to trial by ìthe lawful judgement of their peersî.  In the English legal system the involvement of lay persons i.e. those without formal legal qualifications in the administration of justice is extensive.  This is to ensure that the values and common sense of ordinary people have a role to play, particularly by using magistrates and juries. 

There are over 30,000 lay magistrates sitting as part-time judges in the magistrateís Courts.  Lay magistrates do not have any legal qualifications.  All that is required is that they must be of suitable character, have judicial qualities, be aged 21 to 65 and live in the local area of the court.   

The work of a magistrate is mainly connected to criminal cases.  They try 97% of all criminal cases and deal with preliminary hearings in the remaining 3%, such as remand hearings, bail applications and committal proceedings, they also sit with a judge in some ordinary appeals form the magistratesí court to the Crown Court.  Magistrates may also be involved in the investigation of crime since they deal with requests made by police for arrest and search warrants. 

In civil law magistrates deal with the enforcing of debts owed to utilities, non-payment of council tax and television licenses, and applications for alcohol or betting licenses.  Specially trained magistrates form the Youth Court panel to hear criminal charges against 10-17 year olds.  There is also a special panel for the Family Court to hear cases involving protection orders, affiliation cases, adoption orders and proceedings under the Childrenís Act 1989. Every bench of lay magistrates is assisted by a magistrates clerk, whose duty it is to guide the magistrates on questions of law, practice and proceedings.  The clerk must not assist the magistrates in making their decision (R v Eccles Justices, ex parte Farrelly 1992). 

Lay magistrates generally sit in groups of three and hear all summary only case, deciding the facts, the law and the sentence.  Section 49 of the Crime and Disorder Act 1998 allows a single magistrate to exercise certain pre-judicial powers such as conditions of bail, timetable of proceedings and manner in which evidence is to be presented.  The number of serious offences which have become summary only has greatly increased in the last decade (Criminal Justice and Public Order Act 1994), increasing both the number and seriousness of crimes tried by magistrates.  Magistrates also try triable either way offences if the defence does not choose to go to the Crown Court for a trial by jury. 

The jury is considered to be one of the fundamentals of a just democratic society.  Lord Devlin said that juries are ìthe lamp that shows that freedom livesî.  The tradition of trial by jury is very old and people seem to have confidence in the impartiality and fairness of a jury trial.  The most common use of juries now is in the Crown Court where they decide whether defendants are guilty or not guilty.  The use of juries in civil cases is rare and confined to actions for false imprisonment, fraud and defamation.  A jury may also hear cases in the Coronerís Court enquiring into deaths in prison or police custody and deaths caused by an industrial accident or concerning issues of public health and safety. 

95% of criminal cases are heard at the magistrates courts, and of the remaining 5% that are heard at the Crown Court only about 1% (after forced acquittals and pleas of not guilty) are decided upon by a jury ñ although 1% is still more than 30,000 cases a year.  The role of the jury is to decide issues of fact and the judge decides and directs on issues of law.  The jury will hear the case, listen to the judgeís summing up and then retire to the jury room to make the decision on the guilt or innocence of the accused.

The juryís discussion takes place in secret and there can be no enquiry into how the jury reached its verdict (Contempt of Court Act 1981).  Initially the jury must try to come to a unanimous verdict.  If after at least two hours the jury have not reached a verdict, the judge will call them back into the courtroom and direct them to reach a majority verdict, i.e. 10-2 or 11-1 or for either guilty or not guilty.  If the jury has fallen below 12 for any reason during the trial then only one person can disagree with the verdict.  The judge must accept the verdict even if he doesnít agree with it.  The jury does not have to give any reason for their decision.  Following the announcement of the juryís verdict, the judge either discharges the defendant or passes sentence. 

When a jury is used in civil cases they not only decide who wins, they also decide on the amount of settlement to be awarded.  The Supreme Court Act 1981 gives right to trial by jury in civil action cases of libel and slander, malicious prosecution, false imprisonment and fraud.  A jury trial can be denied if the court believes that the trial may require prolonged and/or specialist examination of documents, accounts, or any scientific or other investigations, that may not be conveniently and easily made to a jury, who may not have the necessary knowledge to understand the facts.  When a jury awards damages, the Courts and Legal Services Act 1990 gives power to the Court of Appeal to order a re-trial and/or reaward damages if they are considered to be excessive or inadequate (Rantzen v Mirror Group Newspapers 1993). 

The move in recent years to class more crimes as summary only offences has greatly increased the workload on magistrates courts, whilst decreasing the number of cases tried by a jury in the Crown Court.  Recent attempts to further limit access to trial by jury have so far been blocked by the House of Lords, but it would appear to be part of a larger Government political agenda to change the structure of the entire English legal system, from the position of Lord Chancellor right down to court clerks.

In the current system, magistrates are appointed by the Lord Chancellor, on behalf of the Queen, on recommendations made to him by Local Advisory Committees.  Names of potential magistrates are often put forward by groups such as trade unions, but it is now also common to see vacancies being advertised in local papers.  The caricature image of a magistrate is a white, middle-class, time-rich, red-faced, hypocritical town worthy, dishing out prison terms left right and centre.  Of course the reality is that the maximum sentence a magistrate can impose is 6 months and the highest fine £5,000, but magistrates do still appear to be predominantly white, middle-class and middle-aged with a strong conservative bias.  The question is, does this narrow background effect the quality and fairness of lay magistrates decisions? 

Research by Bond and Lemon (1979) found that there was no statistically significant relationship between the social class of a magistrate and his approach to the case, but political affiliation was found to be a significant factor in sentencing, with Conservatives tending to give harsher sentences.  In 1999 Lord Irvine suggested that political balance amongst magistrates was the most practicable method of ensuring that they were representative of the general public as a whole, although it has since been suggested that because people no longer vote along class lines (if they vote at all) this is not so.

A national scheme, Magistrates in the Community (2001) was designed not to just recruit more magistrates, but also ensure that they come from a broader range of social backgrounds.  The composition of the bench today shows a fairly even balance between the sexes (51% men, 49% women), but it does not accurately reflect the general populationís proportion of ethnic minorities with less than 3% of the bench coming from the non-white population.  Most magistrates are aged between 45 and 65, with only 4% being under the age of 40.  Although it is clear that a degree of maturity is a necessary quality for a magistrate to possess, it is doubtful that group so dominated by the middle-aged can hold an understanding of the lifestyles of younger generations.  Most defendants in the magistratesí court are under 40, and this disparity may generate a feeling of being judged by their elders rather than by their peers, although the same argument could be put forward regarding qualified judges who are rarely under 50.

The fact that magistrates usually sit in threes does mean that extremist views are likely to be balanced by others, and an openly prejudiced magistrate may be asked to resign.

The cost of appearing before lay magistrates is generally assumed to be cheaper than appearing before their professional colleagues.  The Home Office Research and Planning Unit has estimated that the average cost of a contested trial in the magistrates court is £1,500, compared to £13,500 in the Crown Court.  Even when taking into consideration the fact that cases in the Crown Court are usually more complicated and therefore longer, it is clear that a difference of £12,000 is very significant.  However, research by Morgan and Russell (2000) found that, when both direct and indirect costs were taken into account, the cost per appearance for lay magistrates and professional magistrates was less than £10 apart.  It would appear that differences in cost might be unrelated to the make up of the Bench.

Cheaper trials are likely to appeal to all parties involved, including the Government, and the consideration of costs must surely be a large influence on the present Governmentís attempts to restrict the right to trial by jury.  Cost should not play a part in the set up of Englandís administration of justice, but if justice can be done and be seen to be done by lay magistrates, for a lot less money than the cost of the same justice occurring in the Crown Court, then it should be utilised as much as possible ñ but never to the detriment of a defendant getting a fair trial.

Magistrates do not have the same option as juries of delivering a verdict guided by their conscience rather than by the strict letter of the law.  But despite this there are still marked inconsistencies in the decision making of different benches.  A fair legal system would punish similar crimes committed by similar offenders with similar backgrounds in similar circumstances in the same way.  This is promoted in the Crown Court by the use of professional judges controlled by the Court of Appeal, but in the magistrates there is less guidance and training on consistent sentencing.  Magistrates in urban areas have been found to impose lighter sentences than in rural areas, and there have also been marked locational differences in the granting of bail applications and the awarding of legal aid.

Magistrates have regular contact with the local police regarding applications for bail and also seeing them frequently in the court as witnesses; they also have repeated contact with the same CPS prosecutors.  It has been suggested that this familiarity may lead to magistrates being biased towards believing the police evidence and being bias towards prosecution.  In R v Bingham JJ, ex parte Jowitt (1974) a magistrate went so far as to state in court that his principle was always ìto believe the evidence of the police officerî ñ the conviction was quashed on appeal because of this remark.

The fact that relatively few defendantsí appeal against magistrateís decisions indicates that justice is seen to be done in the majority of cases.  Most appeals tend to be against sentence not conviction and less than half of the appeals to the Crown Court are successful.

Improved training means that magistrates are no longer complete amateurs, although there are sill criticisms about the variations in quality and quantity of training.  Inconsistencies in sentencing and prosecution-bias may be addressed by further standardisation of training for lay magistrates.  The relatively small number of successful appeals against magistrateís decisions, the advantages in cost, and also the visibility of the cross-section of local persons being involved in the legal system, are all points in favour of having a system of lay magistrates.  Research by Morgan and Russell (2000) concluded that at no stage during the study was it suggested ìthat magistrates do not work well or fail to command general confidenceî, indicating that lay magistrates are, and are seen to be, good administrators of justice and should have a continued role in the English legal system.

Vicky Burgess.

                                                                                                        October 2003.