A) What part is played by the juries and lay
magistrates in the resolution of civil and criminal cases?
B) Examine critically the arguments
for and against the uses of either juries or lay magistrates in the English
legal system.
A) What part is played by the juries and lay magistrates in the
resolution of civil and criminal cases?
History of the jury
The
jury has been used in the legal system for over one thousand years. There is evidence
that shows that the jury system was being used before the Norman Conquest. In
1215 trial by ordeal was condemned by the church, in the same year the Magna
Carta also included the right of a person to have the right to stand trial by
the lawful judgment of his peersı. Further to this juries became the usual
method of trying criminal cases.
Originally
juries were used for proving information and local knowledge; they acted more
as witnesses than decision makers. However by the fifteenth century juries
became more independent assessors and proclaimed their modern roles as deciders
of fact. Independence of the jury came following Bushellıs case in 1670.
What
are the uses of the jury?
Only a
very small percentage of cases are tried by the jury today. Juries are used in
the following courts: the crown court, for criminal cases on indictment, types
of case include serious criminal cases, for example murder. The crown court
consists of twelve jury members. The high courts, Queenıs Bench division,
certain cases, types of cases include defamation, false imprisonment, malicious
prosecution, and case alleging fraud. The high court also consists of twelve
jury members. The county court, for similar cases to the Queenıs Bench
division, cases include that of the cases heard in the high court, consisting
of only eight jury members. The coronersı court, cases include deaths which are
either in prison, in policy custody, death through an industrial accident, and
places where health and safety of public is involved. The jury in this court
consists of seven to eleven members.
Juries
are used in both criminal and civil cases. The use of a jury is to obtain a
verdict of a case, to find out whether a defendant is guilty or not guilty.
Juries
in civil cases
Juries
are used very rarely in civil cases; they are only used under limited
circumstances, where they have a dual role. The jury has to decide whether the
claimant has proved their case or if they have not, after this the jury have to
decide whether the claimant has won the case, the jury will then go on to
decide the number of damages that the defendant would have to pay the claimant.
Up to
the year of 1854 all common law actions were tried by the jury, however from
1854, the parties could agree to not use a jury, progressively the use of the
jury became declined. Further to this in 1933 the administration of justice act
limited the right to use a jury. This was due to the fact that this way juries
could not be used in disputes over breach of contract.
The
rules at present which state how juries can be used in civil cases are stated
in section 69 of the Supreme Court Act 1981, for high court cases and section
66 of the county courts act 1984.These Acts state that parties have the to have
a trial with a jury in the following cases: defamation, in cases liable of
slander, false imprisonment, malicious prosecution and fraud. All of the cases
stated involve cases which involve character and reputation, and this is the
reason why a jury has been retained. However a jury can be refused from these
cases if the judge refuses the case to contain complicated evidence and
documents which would be unsuitable for the jury.
Other
civil cases in the Queenıs Bench division of the high court can apply to have a
trial by jury, but it is very rare for a request to be granted. This mainly
includes personal injury cases. Following this the case of Ward v James 1996,
includes the plaintiff claiming for injuries caused in a road accident. In this
the court appealed laid down the guidelines for personal injury cases, these
include:
That
personal injury cases should normally be tried by a judge sitting alone, this
is due to the fact that such cases involve assessing compensatory damages,
which have to have the regard to the convectional scales of damages.
There
also has to be exceptional circumstances before the court, which will therefore
allow for a jury to be used.
The
decision made in the case of Ward v James then concluded that juries were to be
stopped being used for personal injury cases.
In
coronersı courts the jury is to be used for these four types of cases, that
involves a death, either in a prison, an industrial accident, circumstances
where the health and safety of the
public is involved, and police custody or resulting from an injury caused by a
police officer in the execution of their duty.
Juries
in criminal cases
The
most important jury used today is the jury that sits in the crown court.This is
where they decide whether a defendant is guilty or not guilty. Jury trials
account for less than one percent of all criminal cases. This is due to the
fact that ninety seven percent or cases are dealt with in the magistratesı
court. Of the cases that go to the crown court from the magistratesı court,
about two out of every three defendants plead guilty. However those defendants
that enter the not guilty plea will not be tried in front of a jury as the case
will be discharged by the judge without any trial. This arises when the crown
prosecution service with draw charges, this is possibly due to a witness
refusing to give evidence. In the crown court there are twelve jury members.
Majority
Verdicts
Majority
verdicts have been allowed since 1967.This is were a full jury of 12 the
verdict can be 10-2 or 11-1 guilty or for not guilty, if the jury has fallen under 12 for any reason then
only one can disagree with the verdict. This is if there are 11 jurors, the verdict
can be 10-1, if there are 10 jurors then it can be 9-1. If there are only nine
jurors the verdict must be unanimous, a jury cannot go below nine. Majority
verdicts were introduced because of the fear of jury 'nobblingı. This is when
jurors are being bribed or intimidated by associates of the defendant into
voting guilty of not guilty. When a juryıs verdict was unanimous, it only took
one member of the jury to be bribed, to be unable to reach a decision.
Jury
selection
The
jury is randomly selected by computer. To qualify for jury service a person has
be aged between 18 and 70 years of age, they must be registered as a
parliamentary or local government elector , they also have to ordinarily be a
resident in the United Kingdom, the Channel Islands or the Isle of Man, for at
least five years since their thirteenth birthday. However some people are not
permitted to sit on a jury, these people include, those suffering from a mental
disorder, the judiciary, those in religious vocation, those who are convicted,
and this varies depending on sentences and convictions.
There
are people who can also be excused from jury service, these include, anyone who
is over the age of 65 and under 70, anyone who has served on a jury in the last
two years, members of parliament, those in armed forces, people in essential
professions, for example doctors, nurses, dentists and chemists, practicing
members of a religious group whose beliefs are not compatible with jury
service. There are also discretionary excusals, this is the court has the right
at their discretion to excuse a person from jury service, for example a mother
with a small baby.
Role
of the jury in criminal cases
The
jury is only used at the crown court if the defendant pleads not guilty. This
in effect therefore means that the jury is used in about twenty thousand cases
a year.
Functions
of a trial president are split between the judge and the jury. The judge
decides the points of law and the jury decides the facts. The role of the jury
is that of which they are finders of fact.
At the
end of a prosecution cases, the judge has the power to direct the jury to
acquit the defendant in question and further to this the jury will retire to
make a decision on the verdict. Sentencing is the preserve of the judge.
Lay magistrates
There
are about 29,000 lay magistrates sitting as part –time judges, in the
magistratesı courts. Another name for lay magistrates is justices of the peace.
The lay magistrates sit and hear cases as bench of a maximum of three. Before
in 1996 there could be up to seven magistrates sitting on the bench together.
A
single lay magistrate has very limited powers. However they can issue search
warrants and warrants for arrest.
Within
the lay magistrates there are also district judges. These are not lay people,
but are qualified lawyers who can sit in their own to hear any of the cases
that come before the court. District judges have the same powers as a bench of
lay magistrates, under section 16(3) of the Justices of Peace Act 1979. The
duties of district judges are also the same as lay magistrates.
District
judges must have a seven year general qualification to be able to have the
right of audience as an advocate. They will be generally chosen by barristers
and solicitors, or from those with the relevant experience.
History
of the Magistracy
The
justice of peace office is very old; it dates back to the twelfth century.
By the
mid- thirteenth century the judicial side of the justices of peace position had
been developed and was being used by 1361. Their duties consisted of mainly
administrative duties, these included being in charge of poor law, highways and
bridges and weights and measures.
In the
nineteenth century it was elected that local authorities should take over these
duties, though some do still remain in the licensing powers of the Magistratesı
courts.
There was a poor quality in the local
justices of peace in London, and the absence of an adequate police force became
a matter of huge concern towards the end of the eighteenth century. This in
effect led to seven public offices being formed, which consisted of magistrates
that were paid. This was set up in 1792, and also enabled the magistrates to be
in control of the police until1839, as well as hearing cases in court.
Outside
of London the first paid magistrate was appointed in Manchester in 1813.
In 1835
the Municipal corporations Act, gave general power for boroughs to request the
appointment of paid magistrates. Being a paid magistrate did not mean that you
had to have any particular qualifications, but from 1839, meant that paid
magistrates could only be appointed by barristers. Solicitors did not become
eligible until1949.
Qualifications
to become a magistrate
Lay
magistrates do not have to have any qualifications in law. However there are
some requirements which lay magistrates have to require. These requirements
relate to their character. In this they must be suitable in their character,
integrity and understanding, for the work that they have to perform.
In
1998, the Lord Chancellor set out six key qualities which candidates must have.
These are: Good character,
Understanding and communication,
Social awareness,
Maturity and sound temperament,
Sound judgment,
Commitment and reliability,
They
must also have certain judicial qualities. It is particularly important that
they are able to assimilate factual information, and make reasonable decisions
upon it. They must also be able to work as a team.
Apart
from this, there are also some formal requirements. These formal requirements
consist of age and residence. Lay magistrates have to be between the age of
twenty one and sixty five on appointment. It is not considered that a person of
the age of twenty seven would be considered to sit in the bench as they are
regarded as not having enough experience.
Before
1906 there was a property qualification to be able to become a lay magistrate.
This meant that magistrates had to be home owners or tenants of a property
above a certain value. Before 1919 the bench was also an all male affair, with
women only becoming eligible to sit on appointment in that year.
Lay
magistrates must live within the commission area of the court or within fifteen
miles of the boundary of that area. However since the commission area is likely
to cover a whole country, it is preferred if magistrates live or work in the
area covered by the actual court they sit in.
Lay
magistrates have to sit in court a minimum of twenty six times a year and will
have to undergo the specific training necessary. Training includes the
supervision by the magistratesı committee, of the judicial studies board. The
committee draws up a range of syllabus topics which the lay magistrates should
cover during the course of their training. The training is carried out locally
and sometimes through the clerk of the court. Training includes a scheme were
newly appointed magistrate has to achieve four basic competencies. These
consist of: An applied understanding or the framework within which magistrates
operate; an ability to follow basic law and procedure; an ability to think and
act judicially; an ability to work as an effective member of a team.
However
some people are not eligible to sit as a magistrate and become appointed. These
people include people with criminal convictions, though a minor offence does
not automatically disqualify a candidate. It also includes those who have
undischarged bankrupts, members of the forces, and these whose work is not
compatible with sitting as magistrate, such as police officers, and traffic
wardens.
Relatives
of those working for the criminal justice system are not likely to be
appointed, as it would not appear just. In addition to these people, those
people whose hearing is impaired, or those ho by reason of infirmity cannot
carry out the duties of the justices of peace, cannot be appointed. Close
relatives will also not be appointed to the same bench.
Appointment
of Lay Magistrates
There are
about one thousand five hundred, new lay magistrates appointed each year, to
one commission area alone. The appointments are made by the Lord Chancellor. In
order to decide who to appoint, the Lord Chancellor relies on recommendations
which are made to him by the local advisory committee. His method of selection
and appointment is much criticized
The local advisory committees consist of
members that are current or ex – justices of the peace. The members
should have about twelve members each, and should include a mixture of
magistrates and non- magistrates.
The committeeıs intentions are to create a panel that represents all aspects of society.
Magistratesı Duties
The
magistrates have a number of duties in the civil courts. These are mainly in family
cases. Other civil matters which the lay magistrates deal with are, debts in
utilities, non-payment of council tax, and non- payment of television licenses.
In addition they have the power to grant licenses for alcohol gaming and
betting establishments.
The
duties which magistrates have to deal with in criminal cases consist of
administrative hearings, remand hearings, bail applications, and committal
proceedings. They also include legal aid, warrants for arrest and search
warrants.
Lay magistrates may also sit at the crown court to hear appeals which have come from the magistratesı court. In criminal cases magistrates have to decide either a sentencing of a punishment for a defendants case, if however the panel of magistrates cannot come to a decision, for example if the case is too complicated, or if the magistrates believe that it should be tried in front of judge and jury. They will dismiss the case to another hearing or to the crown court.
AS 2 Essay Nisha
Pankhania
B)
Examine critically the arguments for and against the uses of either juries or
lay magistrates in the English legal system.
Arguments for and against the uses of JURIES in the English
legal system.
There are many advantages and disadvantages of the use of a jury.
Juries have been used for over a thousand years, and during this time the system of the jury has been improved and modified, however there are still many drawbacks in the system. However the system has been used for a number of years and is seen as the one of the fundamentals of the democratic society.
Advantages for the use of a jury
There are many advantages of the use of a jury in the English legal system. Firstly the public or the defendants have the right to be tried in front of their peers, this is a bastion of liberty against the state, and has been supported by eminent judges. The tradition of the jury is very old and people generally seem to have great confidence in the system, and in the impartiality and fairness of the jury trial.
The impartiality of a jury means that any of the jury members should not be connected to anyone in the case. The process of selection is random and is done by a computer, from the electoral register, this should therefore result in a cross-section of the society, and should therefore in effect lead to an impartial jury, as the jury members should have different prejudices, which would cancel out each othersı biases. There is also an advantage, which is that no one individual person is responsible for the decision. The decision is made between all twelve of the jury members. However, if a joint decision cannot be made then a majority cases is put forward. This means that the majority of the jury wins the verdict, whether it is, guilty or not guilty. This system works like this, for example if there is a jury of twelve members the verdict can be 10-2 of 11-1. However if the jury has fallen below the number of twelve for any reason the verdict can only have one person disagreeing with it. This is if there are eleven jurors, the verdict can be 10-1 and if there is ten jurors then the verdict 9-1, however if there are only nine jurors then the verdict must be unanimous. This is due to the fact that a jury cannot fall below nine.
Jury equity means that the jury members are not legal experts; this is an advantage as it means that the jury members are not bound to follow the precedent of past cases or even acts of parliament. The jury members also do not have to give a reason for their verdict, this is so the jury can decide cases on the idea of fairness, which is sometimes referred to as jury equity. Another advantage of jury equity is that the jury does not feel pressured in their decision, as they are protected from outside influence. This is also one of the reasons why people sit on a jury. It is less likely for a person to sit on a jury, if they knew that their reasons for a verdict were going to be publicly published. This links to the fact of jury secrecy and secrecy in the jury room. The juryıs decision takes place in secret and there can be no inquiry into how the jury reached a verdict. This is due to the Contempt of Court Act 1981, which states that the disclosure of anything that took place in the jury room a contempt of court, which is a criminal offence.
Another advantage of using jury trial is that, the use of the jury is seen or viewed to be seen as to be making the legal system more open, and that members of the public are seen as a key role in the system. The whole process is also public and justice is seen to be done. The jury trial system therefore promotes a public interest, and promotes public involvement in the legal system, which is seen as a huge advantage in society today. Making the process public also helps to keep the law clearer. This is because points have to be explained to the jury, this also enables the defendant to be able to understand the case more easily.
However they may be many advantages to the use of juries in the English legal system there are also a number of disadvantages as well.
Disadvantages of the use of a jury
There are a number of disadvantages in the use of a jury. Firstly the use of the electoral register is greatly criticized, as it does not always give a representative sample of the population. It also excludes some groups, such as the homless, who cannot register to vote, it also does not take into account that not everyone who is eligible to register, actually registers. This is aimed at young people and the ethnic minorities.
Another disadvantage is whether it is desirable for the jury to be racially mixed. This can cause problems as the victims and the defendants may feel that they have been given a fair trial because of their race. The judge has no power over electing in a multi -ethnic jury. This is a huge disadvantage as those being tried may feel that they are not being tried in front of their peers. This also relates to the fact that the jury is often critized for being racially bias. Despite there being twelve jurors there may still have prejudices amongst them, which can affect the verdict. Some jurors may be biased against the police, and this is one of the reasons why, those with criminal convictions are disqualified from sitting on a jury. Racial prejudice is also a worry; because of the fact that selection process can produce a jury made up of entirely white people is viewed as a suspicion. In Sander v United Kingdom (2000) the European court of Human Rights ruled that there had been a breach of the right to a fair trial, under Article 6 if the European Convention of Human Rights. The risk of racial prejudice is due to the reason that the Runiman Commission recommended that up to three jurors should be from ethnic minorities cases in suitable cases.
Further to this there are many other important facts, which are also seen as disadvantages to the usage of a jury.
The secrecy of the jury room is seen as a disadvantage as well as an advantage. The disadvantage to the secrecy of the jury room means that we have no idea as to whether the jury actually understood the facts of the case, and whether the decision that they came to right and fair to the circumstances of the case. It is also a disadvantage, as we do not know the reasons that the jury came to, which enabled them to reach the verdict. We are also unable to know the reasons for the verdict, as this would be in contempt of court.
Another disadvantage is that the jury members are not legally qualified, so therefore they may not even understand what the cases is about and ant the technical facts and terms. They also do not have any legal training or knowledge, yet they get they have the responsibility of giving a verdict that could possibly change someoneıs life forever. When many jurors were asked if they had understood the evidence that had been given in cases, over half (56%) said no or had questioned themselves as to what the evidence was actually about. Just fewer than 10% admitted that they had difficulty in understanding the evidence at all. Therefore the use of the jury here is a great disadvantage.
Further to this jury equity can also be seen as a perverse decision, and one which is not justified. Juries have refused o convict in clear-cut cases, such as that in R v Randle and Pottle (1991). This also relates to the number of high acquittal rates. Juries are often criticized, on the grounds that they acquit too many defendants. The figures state that up to 60 per cent of those who plead not guilty at the crown court are acquitted.
Cost is seen as a big draw back and disadvantage. The use of a jury is expensive. Civil cases are expensive and the use of the jury adds to this, as well as this the case has to last longer. At the end of the case the losing party will have to pay the charges, which may amount to hundreds of thousands of pounds. This could be off putting to those people who want a fair trial in front of their peers.
Another disadvantage of using a jury is that they can be influenced in a number of ways, whether it is within the jury by fellow members of the jury, or whether it is by the media. The media can hugely influence the decision of a jury or jury members, when reaching a verdict. The media coverage can be a big influence, especially in high – profile cases, where there has been a lot of publicity about the case, and about police investigations linked with the case. This occurred in the case of R v West (1996). Rosemary West who was committed of murdering ten girls, appealed against her charge as she claimed that the media coverage had influenced her case to the extent that it made it impossible for her to receive a fair trial.
Other disadvantages include, that the compulsory nature f the jury service is very unpopular; some jurors are totally against the system, while others may rush their verdict in order to leave quickly. Jury service can also be a strain on many people, this is due to many reasons, and the main one being that some jurors may have to listen to horrific evidence, leaving them emotionally scared. Many jurors are offered counseling after such horrific cases, such as the Rosemary West case.
Jury nobblingı is also a drawback and does occur. In some cases jurors have to be provided with police protection, in order to try and combat the problem.
The uses of juries also make case trials slow and very expensive. This is due to the fact that each point has to be explained carefully to the jury so that they understand the full facts of the case. This procedure therefore takes a long time.
There are also problems of using the juries in civil cases. Juries in civil cases decide both the liability of the parties in the case, and also the amount of damages that will be awarded. The awards greatly, this is due to the fact that the jury has its own ideas and does not follow past cases. The amount is therefore, totally unpredictable which therefore makes it difficult for lawyers to advise on settlements.
Jury vetting is also seen as a disadvantage as checking the backgrounds of jury members to check whether they are racist or not, could lead to only selecting jury members to the satisfaction of the case, and court standards. Which therefore in effect mean that the jury had been specially selected to suit a particular way, which could in effect sway the result of the verdict. Jury vetting is seen as wrong as it means that there is not a cross- section of society being randomly chosen.
The fact that the jury also lacks skills and experience could also affect the size of role that the judge has in criminal cases. This could however be seen as an advantage.
The fact that discretionary excusals are allowed, could lead to many people not attending jury service for no reason, or someone trying to avoid completing jury service altogether.
Conclusion
In doing this essay I have come to the conclusion that there are many advantages of the use of a jury, and there are many disadvantages. However I believe that having a jury is a good thing. This is because I believe that jury has been a part of the legal system for a long time. It is also recognised by the public, who also have a large amount of confidence in the jury system. The jury is also considered one of the fundamentals of the democratic society, which enables defendants to be tried in front of their peers in a fair trial. The fact that the jury does not have any legal knowledge or understanding is an advantage as they have a clearer non- biased view towards a defendant and a case. Other reasons why I believe having a jury is a good thing are that the jury is randomly selected, which therefore makes them a cross-section of the society, who have different views as individuals.
The fact that what the jury says and does within the court is kept a secret is also a plus point, as it therefore means that there is no pressure on the jury members to make any forced or influenced decisions, and in relation to this, the vote is a majority vote and therefore everyone can have their own say.
Even though costs of jury cases are important, I think that it might be worth paying more for a system that promotes public involvement.
However I do believe that there are many areas in which the jury system can be greatly improved. I believe, that no one should be excused or ineligible. I also think that juries should therefore in affect be more represented. I would also like to see provisions to be made to those cases where ethnic minorities would be an issue.
Verdicts should also have a better summing up, which is more structured.
I also think that there are good alternatives to jury trials, if jury trials are not what a defendant wants. They could for example, sit in front of a single judge, which would have a more predictable outcome, and does not take as long.
All in all. in conclusion I believe that juries are a good thing, and
that they are a respected part of the English legal system.
Information
used to complete this essay was taken from 'The English Legal Syste'ı By
Jacqueline Martin Published by Hodder and Stoughton, and 'A-Level LAW' by
A M Dougdale, M P Furmston, S Jones, C Sherin and K M Stanton, Published by Butterworths