Discuss the disadvantages of using lay magistrates to deal with criminal cases.

Are magistrates, sometimes described as ''middle aged, middle class and middle minded' or paid judges from 'an even narrower background' the best people to deal with criminal cases?

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The importance of the work of magistrates is often acknowledged and it is still the case that a very high proportion of criminal cases are dealt with before a Magistrates' Court. Over 95 per cent of all criminal cases are dealt with in the magistrates’ court. They represent an important opportunity for non legal personnel to participate in the criminal justice system. So what are the disadvantages of using lay magistrates?


It is generally acknowledged that there is a much higher conviction rate in the Magistrates' Court than in the Crown Court. There are feelings that magistrates are biased towards the police and towards the prosecution. The obvious problem might be that magistrates are too ready to accept the assertions and evidence of the prosecution and police. At one time, prior to the setting up of an independent prosecution service (Crown Prosecution Service), the Magistrates' Courts were sometimes referred to as 'police courts'. This was possibly as a result of the close working relationships which may have built up and regular appearances by senior police officers to prosecute their cases.


In reality the difference in conviction rates may be more to do with other factors such as the complexities of trials taking place in the Crown Court. For example murder, manslaughter, rape, serious assaults and offences against property including robbery and fraud. Crown Court trials involve a jury whose job it is is to follow the evidence and decide whether the defendant is guilty or not. The complexity and length of modern trials, which invariably involve forensic evidence including DNA evidence, may well be a factor. There are regular debates about the future of jury trials and whether juries can cope with the level of information presented to them over long periods.


It is often said that magistrates are 'middle aged, middle class and middle minded' and therefore not truly representative of society as a whole. This stems largely from the principle that magistrates are expected to work on a part-time voluntary basis as a way of making a difference and a contribution to the area in question. Magistrates are members of the public and represent our peers in the trial process. Magistrates do, without doubt, provide a valuable service but the fact that they are unpaid means that such work is unlikely to attract young working candidates. Most young working people will have financial commitments which would make it unrealistic to give up their time to become a magistrate. This may account for the fact that magistrates are older and probably have sufficient financial independence as to enable them to put themselves forward. With this in mind the make up and selection of the panel of three magistrates, known as the bench, raises concerns regarding their suitability to hear criminal cases.


However, it should be borne in mind, that judges are statistically shown to come from an even more narrow social background. The disadvantages of using lay magistrates needs to be kept in perspective and the alternative of using paid judges needs to be considered carefully.


Much is said and written about the trouble young people get themselves into and the causes of street and knife crime. Other social issues involving alcohol and substance abuse are also subject to debate and discussion. The common question is whether lay magistrates are sufficiently in touch with youth culture. Are they able to deal with some of the cases which come before them due to the fact that there are insufficient numbers of young magistrates.


There are concerns regarding inconsistencies and even perverse sentencing. The Criminal Justice Act 2003 has provided greater choice and flexibility when it comes to trying match up what the offender has done to what might be best in terms of punishment. Having seen such advances, sentencing by lay magistrates continues to raise questions. These questions remain despite training, about inconsistencies in sentencing. Various studies have been carried out over the years and these show that there is evidence to suggest that the sentence you may receive could vary according to your post code. In other words, there are variations from one area to another, and at times this may undermine the work of the magistrates. Similarly, this sort of evidence has a knock on effect on public confidence in the criminal justice system.


A Post-code Lottery? Benches have curbed their use of immediate custodial sentences in Bedfordshire, Dorset, Durham, and Kent whereas magistrates’ courts in areas such as Derbyshire, Gwent and Northamptonshire imposed immediate prison terms more frequently in 2011 than they did in 2001. The area which imposed the highest rate of imprisonment in 2011 was Northamptonshire: 6.5 per cent whilst the lowest rate of imprisonment was Warwickshire: 1.5 per cent.


The issue of bail continues to be a problem raising concerns about consistency in the granting of bail by lay magistrates and this may be a fear to members of the public. Such inconsistencies also make it difficult for legal professionals to predict the likely outcome of bail applications to the court.


As already outlined lay magistrates are not appointed for their legal knowledge or qualification, but for their personal qualities such as social awareness and understanding, sound judgement and their communication skills. They do, however, undergo a substantial amount of training supervised by the Judicial Studies Board.


Lay Magistrates are not entirely left to their own devices and they do have a legally qualified clerk or adviser to help them with the law and procedures. A disadvantage of using lay magistrates is that they are said to rely too heavily upon the adviser. A survey by the CPS shows that the legal adviser has to intervene to give legal advice or is asked for legal advice more frequently by magistrates than by the District Judge. The adviser has also had to either remind magistrates of something or correct them after an announcement on more occasions than they have had to do so for the District Judge.


There are concerns that magistrates can be influenced by the adviser or from within the panel which consists of one magistrate who is approved to sit as the chairman and two magistrates who are known as “wingers”. They all have an equal say in the decision making but it is the chairman who will speak in open court. The decision to convict or to acquit is a matter for the magistrates alone and any influence by the adviser is fraught with danger over bias etc. As a matter of good practice the adviser takes care to remain in open court when speaking to or advising the magistrates. This overcomes any concerns about propriety and will explain themselves and their actions. In addition, an advisor would not, as a matter of good practice, normally retire with magistrates as part of their deliberations. This acts as a safeguard against allegations of participation in the verdict or the decision about sentencing.


There is a feeling that Magistrates and District Judges should receive different types of cases, according to their respective skills and abilities. The feeling is that District Judges are better suited to cases involving complex legal arguments, longer cases such as multi-day trials and high-profile or sensitive cases which may require careful handling. On the other hand the shorter, and more straightforward cases such as summary motoring offences or TV licence evasion cases can be viewed as less appropriate for District Judges and more suitable for magistrates to deal with. “I think if you’re dealing with a case that’s got complicated evidence then you’re probably better off with a District Judge.” (CPS prosecutor, North East).


(Word count 1265)

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As always the links provided will enable you to do further research and enhance your understanding of the criminal courts and lay people.

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Magistrates going soft on sentencing





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