(a) What part is played by juries and lay magistrates in the resolution of civil and criminal cases?
Written by Emily Bidwell (October 2005)
I am going to answer each part in turn, I shall write more about part (b) because of the higher mark allocation. Once I have covered all the points stated in my plan I will move to part (b). I will pick once a clear conclusion of the first question is completed as I will pick either juries or lay magistrates depending on my further understanding.
(a) Our courts are made up by lay magistrates and juries, when it comes to sentencing and decision making.
Juries
Juries are just normal people selected from the electoral register. They have no legal knowledge or training in law. People who have been in prison, served a community sentence or had an extended sentence will now qualify as a juror, there are some exceptions where a time limit may be imposed on when then can be involved. Juries sit in the crown court for criminal trials, county court for more serious cases and similar ones to the Queens bench, discussed further on; and the coroner’s court; but only in some cases, where they are used to inquire in to deaths that have occurred in prison, police custody, and industrial accident and sometimes in health and safety issues. Juries are also used as part of the Queen’s Bench of the high court for tort cases of defamation, false imprisonment and malicious prosecution.
Lay Magistrates
Magistrates are used in the county court and magistrate’s court. Magistrates will also sit in the Crown Court to hear appeals from the magistrates court; at such time the lay magistrates will form a panel with a judge. Magistrates are appointed by the Lord Chancellor, who normally is given their information after they have attended their interview where the local advisory committee interviews them on 6 key characteristics. They include; Good character; understanding and communication; social awareness, where they have a good understanding of their local community; Maturity and sound judgement, you wouldn’t want someone who has just turned 18 and thinks that yeah they done a bad thing lets give them 6 months and really have no idea what they are doing; and lastly commitment and reliability, the courts will not want someone who is never on time, or never can finish something. This type of information would be taken from references from employers. The lay magistrates will hear 97% of criminal cases, essentially they hear 100% of cases, but only 3% move to the crown court for conviction. Once lay magistrates are appointed they do receive training which evolves them sitting in on cases and deciding a verdict out of court which actually does not affect the case at all.
Juries and the civil system
Juries are used in criminal cases, and are used for a minority of civil cases; averaging about 40 per year. There are currently limits on when and what circumstances a jury can be used these are outlined in section 69 of the supreme court act 1981 for high court cases; and in section 66 of the county courts act 1984 for the county court. The juries will decide the liability of the parties and the amount of compensation. Juries are used less and less and rights to them are been disqualified. There are some cases where they can be used. The cases they can be used in are defamation, false imprisonment, slander, malicious prosecution and fraud. You can apply for a jury in the Queen’s Bench Division of the High court, for personal injury claims; but mostly they are not used. This is because it’s better done by a judge to keep consistency throughout cases. A case that represents this Ward v James where the complete court of appeal established that it wasn’t the absolute discretion of the court, it was said that it had to be decided judicially. In this case the claimant was claiming compensation after a road traffic accident. During this case, the court of appeal laid down a procedure for personal injury cases;
'Personal injury cases should normally be tried by a judge sitting alone, because such cases involve assessing compensatory damages which have to have regard to the conventional scale of damages
There have to be exceptional circumstances before the court will allow a jury to be used in such a case'
The choice of a jury should depend on the expected length and the seriousness of the case. Juries can only sit for a short amount of time, so cases need to be kept to a minimum time length to ensure a fair trial.. The option of a jury is slightly over whelming as it more likely going to be easier to convince people with no legal knowledge that your not guilty than to convince a judge.
Juries and the Criminal System
Juries will sit in the crown court when deciding a verdict in criminal cases. In these cases the judge will rule on law, and the juries will reach a verdict and decide the sentence. In many cases where the defendant pleads guilty there will be no need for a jury trial, and the case will be judged by a judge. The judge has the power to direct the jury to acquit the defendant at the end of the case, if he feels that in law, the prosecutions evidence can not make a clear case against the defendant. This is called directed acquittal but only occurs in about 10% of all cases. There are 12 jurors in criminal cases’ and if they don’t reach a verdict there will be a majority verdict of 11-1, or 10-2. This only occurs when the case has lasted over 2 hours and the jury are undecided. These were introduced to the legal system to stop the jury from ‘nobbling’ which means to have the jurors intimidated by the defendant’s lawyer. When jurors make the decision they leave the court room, and go to a secret room. The secrecy allows no room for nobbing, media influence or for anyone to know the reasons for their verdict. In criminal cases there are to offences to be dealt with which are summary offences and tribal either way. Juries can be refused when scientific or accounting material is presented as evidence. This is because the documents can be complicated and the jury will not understand them as they have no legal training. A case which represents this is the case of Mc Donald’s Corporation v Helen Steel and David Morris; formally known as the McLibel Trial. Defamation case started on the 28th June 1994, the judgment was made on 19th June 1997; therefore being the longest trial in history. The case came about because the 2 defendants published a fact sheet called; ‘what’s wrong with McDonalds? Everything they don’t want you to know’ The information accused Mc Donald’s of serving unhealthy food that posed the threat of cancer and been responsible for third world starvation, cruelty to animals and exploiting children through advertising. Ms Steel and Mr Morris defended themselves and cross examined all witnesses that the claimant put before them. The trial lasted 314 days in total and the out come was that Mc Donald’s Corporation was awarded £40,000 after the defendants appealed for lowering damages. The case took a lot of time because of the number of witnesses and evidence that both parties brought forward.
Lay Magistrates in civil cases
In civil cases magistrates will look at the non- payment of council tax or TV licences;
They also deal with bail applications, committal proceedings, appeals for local grants for alcohol of gambling and debts owed to utilities and warrant issuing. They also look at family cases which can include divorce, child protection, and custody of children. The non-payment of a TV licence can set you back to around £5000. A case scenario on the magistrate’s association website discusses how an officer will be sent to a u registered house hold, where he happens to see a TV, and a satellite dish outside. He knocks on the door and the person refuses to co-operate. He goes back another time allowing the person to co-operate but they don’t so he gets a search warrant issued, where the officer applied to the magistrates for summoning for the person where he was fined for £5000. So from this we can see how the lay magistrates exercise their power.
Domestic cases normally require extra training as some cases can be quite horrific and may need extra understanding. During these cases there must be a positive mix of males and females to keep a fair trial. Most domestic cases are tried in the magistrates and county courts because they lie within a financial reward region.
Lay magistrates in criminal cases
Lay magistrates deal with 97% of all criminal cases, but as said before effectively they look at 100% with 3% been taken to the high courts. Magistrates will control hearings, bail applications, committal proceedings, young offenders, issue search and arrest warrants, sentencing and of course criminal cases. Bail applications are issued when a person has been arrested without warrant and the police have not allowed bail. The accused will go before the magistrates. Minor offences will be granted with little question but others may take a couple of hearings to be certified. Committal proceedings incorporate a preliminary hearing where the magistrates decide whether there is a case to be heard and whether sustainable evidence is present. From this information they can decide whether to commit the accused for a trial. Warrants are issued on the stance of evidence. If no evidence can be brought forward the suspected offender can be summoned to the courts. Most warrants are issued to search premises. The 1884 Act allows magistrates to issue these warrants on the account of serious arrestable offences.
Many of the criminal offences will be summary offences. Summary offences include criminal damages and assault cases. Triable either way includes GBH, ABH, and theft. Triable either way basically means the defendant can choose which court he or she is tried in, either magistrates or crown court. From the above we can see that the magistrates have a majority of functions therefore considering there function as importance. In some cases people will be without legal aid, and without it they are at a disadvantage when pleading not guilty. The defendant will have little or no understanding of what is happening or how things may occur.
Restrictions
Lay Magistrates have a lot more restrictions than juries. This is likely because of the offences which they sentence are different and occur in different courts. A magistrate can only giver 6 months maximum for each crime committed, communal punishment can also be added on to the 6 months sentence in prison. There are fixed minimum sentences for some offences set out in each court. The most common sentence will be a fine, which has maximums and minimums for different types of offences.
Conclusion
From my research I can see that lay magistrates and juries are part of a strong judicial legal system which helps determine a fair trial among claimants, prosecutors and defendants. Lay magistrates take the majority of cases as they are quick to conclude and contain little evidence to be examined. Magistrates deal with the majority of criminal cases, and the number of civil cases is only small anyway; in comparison with the number of criminal cases. Juries have a lot of things to take in and organise to produce a verdict to appropriately suit the defamation. The use of the secret room offers a great service, because no one can bribe the jury or provide an influence in the decision of the jury.
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From part (a) I can conclude that I will critically examine the arguments for and against Lay magistrates. While looking over the information for each choice I can see that it would be easier for me to right about jurors even though they are least commonly used. I feel that I have more to conclude about if I examine the use of lay magistrates.
Overview of Lay Magistrates
As discussed at the beginning lay magistrates are most commonly used in the county court and magistrate’s court. We know that they are chosen from 6 key characteristics. In criminal cases magistrates will control hearings, bail applications, committal proceedings, young offenders, issue search and arrest warrants, sentencing and of course criminal case. People wishing to serve as a lay magistrate must live within 15 miles of their court so that their social awareness is effective. In civil cases magistrates will look at the non- payment of council tax or TV licences; They also discuss arrangements for bail applications, committal proceedings, appeals for local grants for alcohol of gambling and debts owed to utilities and warrant issuing. They also look at family cases which can include divorce, child protection, and custody of children. They have limited powers in sentencing because they only support minor offences. Lay magistrates are not legally qualified but are given training unlike juries who receive a thirty minute video.
The selection of Lay Magistrates
Magistrates are not pulled from the electoral register. Anyone can apply to their local court to become a magistrate. You can apply to be a magistrate between the age of 18 and 65. There is a large minority of under 27’s that become lay magistrates; there could be several reasons which include to immature, lack of knowledge or the idea of being a lay magistrate is unknown to the under 27 public. I believe that the ultimate reason is because that people are starting out in their careers and can’t, in reality, afford to miss the amount of time needed from their first career or proper job. The local advisory committees who advise the Lord Chancellor and his local advisory committees, look at applications from people in all walks of life who have the qualities and the time to serve as magistrates. Individuals may put themselves forward or someone else may put them forward. People from ethnic backgrounds may also be appointed as a lay magistrate. The magistrates association express the need to go and visit your local court and watch in on cases before applying. Once someone has applied they will be called for an interview they must have the six key characteristics previously mentioned which included god character, understanding and communication; social awareness, maturity and sound temperament; sound judgement and commitment and reliability. These are said to be judicial qualities. People who have committed serious offences will be disqualified from appointment of a lay magistrate. A minor motor offence would not disqualify someone from the opportunity. The serious offences would include undischarged bankrupts. People who have hearing impairments or sight problems are also likely to be an unsuitable candidate as they will not be able to hear or see evidence or important facts.
Lay magistrates Training
Lay magistrates are given training which takes four years. This may seem a bit much when you’re not getting paid! But anyway there are 7 stages. The first is just initial core training, this will engage them in looking at is expected in a case, and will involve looking at sentences and legislation which may effect cases. They will learn about the administration of work and the roles and responsibilities of those sitting in court. They will acquire the skills needed to be a competent magistrate. They will then have their first sitting which involves sitting in on a case and making your own judgement outside of the court. Then they have a mentored sitting which log how they are doing and what they have learnt. The consolidation and appraisal stage take 6 months each. The training involves looking at judicial studies where the local justice’s clerk will cover each aspect. Some areas which do not comprise of the appropriate people for training of youth and family matters for example may have to go regional or national for the training. The appraisal looks at whether the magistrate has acquired the necessary skills and can use them appropriately. The last 2 parts of training include sitting as a magistrate properly and then the constant need for training and appraisal as laws change. This cycle lasts for 3 years, after this the review system would occur less frequently.
Pros
Looking at the above information we can see that magistrates receive a great deal of education; they also receive extra training when dealing with family cases, as these are likely to be sensitive. From the information above we can see that magistrates are reviewed which is obviously a good thing as this allows room for consistency; and also can alert others if they feel that the magistrate is loosing touch with their knowledge. Magistrates currently sentence 97% of all criminal cases, which means that there is a great need for them, as these cases need to be dealt with sooner rather than later. Because there is only a panel of 3 this allows room for little discussion and the more time you sit with similar people the more likely you are to understand their judgement and come to a reasonable decision sooner. Within the selection process we can see that they choose a wide range of ethnic backgrounds and have both women and men present on the bench. Looking at statistics it is proven that there is a wider cross section within magistrates than there is in any other part of the English legal system. The consistency in each region is also apparent because each magistrate will have local knowledge and therefore be able to create a sentence similar for each similar case; but still inconsistent sentencing remains an issue as there are many magistrates, that sit for long periods of time.
The cost of magistrates is very cheap because only travel expenses are paid so equally it is a volunteering job which is mainly taken on by retired people. By using magistrates for the majority of cases means it works out cheaper using them than sending cases to the higher courts. In magistrates cases legal advisors are used to provide points of law, which means that they will be able to have points of law explained to them, and will understand them more because they have had some training. The use of legal clerks is said to bring more legal knowledge to the court and allow for a stronger sentence to be given by the magistrates. There is also a low percentage of appeals against the magistrates court which means that the defence is normally happy with the out come and can see that is fair. Out of 1.9 million criminal cases there was said to be around 11,858 appeals were made and only 2,811 were allowed. This shows the firmness of each magistrate.
For many positives, negatives can be made so the next paragraph looks at the cons of the use of magistrates in the English Legal system.
Cons
Looking at the list of pros and cons I can see that there are a few less cons than pros, which proves that the uses of lay magistrates are obviously good. Anyway looking at the cons list I can see that there are some criticisms of the advantages which really contradict each other, but I will allow my personal feelings between these show the true representation of these particular points.
The first is contradicting where it says that there is not a true cross section, but an advantage is discussed as that there is a cross section. Now personally I believe that there is a true cross section of back grounds but not particularly ages. So this point is true as well as the advantage. But it is clear that a lot of magistrates are retired and statistics show that this is about 40% of magistrates. This adds evidence to my previous point. Many of the participants will come from a professional job where they have had a lot of training and have been quite high up within a company which doesn’t give a fair representation of people from the lower qualified jobs. The ages of the majority of magistrates exceeds the average age of a district judge. Magistrates are perceived as a majority of middle aged, middle classed, I think that is on the change though. With this stereotype comes the criticism of magistrates unlikely to live in the poorer areas of their local community. This criticism means that there are unlikely to have a true understanding of local problems. Magistrates can be prosecution biased, where by they may believe the police to quickly without thinking about the case. In each court magistrates are likely to see the same people from the crown prosecution service many time which could said to be conflict of interest. Many of the judicial staff will probably socialise together which would cause some conflict of interest. Another criticism is that there is an inconsistency in sentencing and decisions of bail. These normally occur because of the different principles of each magistrate in different courts, and different areas. An example would be that; someone committed theft in Teesside, 20% was sentenced to immediate custody but in Birmingham only 38% of people received immediate custody. So this shows the inconsistency between regencies. Many people believe because magistrates are not legally qualified this could cause a problem, although they do have a legally qualified clerk. I believe that they may rely to heavily on the clerk and not make a clear decision which is their own.
Conclusion
I have critically looked at the point which affects the cases which magistrates serve. I have explained each one. From the pros and cons I can conclude that the use of lay magistrates in the English legal system is necessary. This point could be supported by the advantages and disadvantages of jurors but the question does not ask me to use this information. There are more points for the use of magistrates in the legal system which I think is good because many of the disadvantages are minor besides a few which do make a difference. I believe that the most important points are that there is no local knowledge of poorer areas, as I believe that the majority of cases will be against the poorer people of society. But then it can be said that I am stereotyping and that in fact this may not be true, but I will still stand by this statement. Critically I can see that the use of magistrates is well used as they provide a clear answer to each case, and don’t have to spend so much time debating with other colleagues. Their training also gives them a good range of knowledge and practice makes perfect.