Topic / Page
Magistrates (P2) / 2
Juries (P2) / 18
Lawyers (P2 & P3) / 38
Judges (P2 & P3) / 57
Comparison Tables (M1) / 78
Evaluation of Lay People (D1) / 81


Lay People: Magistrates (P2)

What do you need to know?

  • Qualifications: Who can be a magistrate?
  • Selection and Appointment of magistrates
  • Training
  • Role/duties/powers
  • Advantages and disadvantages of using magistrates within the legal system.

Resources and wider reading:

  • News paper articles on magistrates
  • The Magistrates Association Website:
  • St Brendan’s law pages – lay people
  • Law textbooks in the library

Introduction to lay people in the legal system

Lay people are those without legal qualifications or training. We consider the ways in which they are involved not just as witnesses or defendants but as administrators of justice. Lay people are involved in several ways, but mainly as magistrates, as jurors, as members of specialised tribunals, as coroners, as arbitrators, and as members of courts-martial. The first two are the most important for AS and A Level purposes. We will look at Juries later in the handout.

MAGISTRATES

Justices of the Peace were first appointed in 1361, with wide administrative responsibilities (before local authorities existed) as well as judicial powers. There are now about 30,000 lay magistrates, about half each men and women. These 30,000 Justices of the Peace sit in a thousand or so Magistrates' Courts all over the country, and more than 350 in Merseyside alone. They ususally sit in panels of 3 to hear a variety of cases - most of which are criminal. Magistrates are unpaid but are able to claim expenses.

Eligibility: Who qualifies to be a magistrate?

In the space below explain in your own words who might qualify to be a magistrate ….

Selection and Appointment

About 1500 new magistrates are appointed each year. As stated previously, appointments are made by the Lord Chancellor. In order to decide who to appoint the Lord Chancellor relies on recommendations made to him by local advisory committees (LACs). This method of appointment is much criticised.

LAC’s are made up of current or ex Magistrates in the main, and often the Lord Lieutenant of the country is the chairman of the committee. About half the members have to retire in rotation every 3 years. The committees should have a maximum of 12 members and these should include a mixture of magistrates and non magistrates.

Names of potential magistrates can be put forward to the LAC by anyone, even the candidate themselves. The usual process however is that local political parties, trade unions and chambers of commerce nominate individuals.

The interview process: The LAC will arrange interviews for candidates who have been short listed after references have been checked. This is usually a two stage process.

  • The first stage of the interview will determine whether or not the candidate possesses the key characteristics sought by the Lord Chancellor. The interview will also explore the candidate’s attitudes on various issues like youth crime and/or DUI.
  • The second stage of the interview focuses upon assessing the candidate’s aptitude for judicial decision making, perhaps by asking them to consider 2 case studies and recommend a sentence. This activity is designed to replicate the type of work conducted in the Magistrates Court.

Following the interview the LAC’s will forward a list of recommended candidates to the Lord Chancellors Office who will then select candidates for appointment taking into account local needs, and the need for “balance on the bench”.

TASK: Using the information above on selection and appointment fill in the six main stages on the diagram below.

Balance of the bench

When considering the selection and appointment of a potential magistrate, the Local Advisory Committee, and the Lord Chancellor’s Dept will consider the “balance of the bench”. The Lord Chancellor seeks to ensure that each bench "broadly reflects the community which it serves" insofar as this is possible. There are several reasons for trying to ensure that the bench includes a wide representation of different groups: certainly the appearance of fairness is important, and it is understandable that many young working-class black men feel they will not get justice from a middle-aged middle-class white bench. But because magistrates are unpaid part-timers, appointment is necessarily limited to those whose other commitments allow them to give up at least one working day a month to perform their judicial duties, and the bench can never be truly typical. According to The Judiciary in the Magistrates’ Courts (2002), magistrates are overwhelmingly from the professional and managerial backgrounds, and nearly half are retired, this leads to the magistracy being referred to as “Middle aged, middle class and middle minded”.

Task: Research and answer the questions below

Q. Are men and women equally represented on the bench?

Q. How well are ethnic minorities represented on the bench?

Q. How well are younger people represented on the bench?

Training

The training of lay magistrates is supervised by the Judicial Studies Board but because of the large amount of magistrates throughout the country training is carried out in local areas.

Before 1998 training of magistrates was heavily criticised because, despite magistrates being required to attend training sessions there was no assessment of how much they understood. Therefore in 1998 the Magistrates New Training Initiative (MNTI) was introduced. In 2004 this was further refined with MNTI 2.

First Year Training / Ongoing Training

The new framework has highlighted four areas of competence. These are:

1.

2.

3.

4.

These four areas of competence will be addressed throughout a magistrates training.

Roles/Duties/Powers

Magistrates have a very wide role and a significant workload which is mainly connected to criminal cases. They try .... of criminal cases and deal with the preliminary issues in the remaining 3%. However, they also deal with some civil matters especially family cases.

When hearing a criminal trial for a summary offence the magistrates have to decide both …………………………………………………………..

Because magistrates are not legally qualified they might need advice on matters of the law so in all trials there will be a legal advisor available to assist the magistrates.

Legal advisors

Lay Magistrates, when carrying out their duties will be advised on matters of law by their legally qualified justices clerk. The clerk must not retire with the magistrates and must not participate in the decision making – only matter of law. If the clerk becomes too involved in the proceedings the integrity of the decision can be called into question, as indeed can the independence of the magistrates.

Magistrates perform most of their duties sitting in the magistrates' court in benches – usually of …….. The bench will consist of a ………………………...... and two “…………………..” In addition to their role sitting as part of a bench Magistrates also perform limited functions as individuals.

Independence of Magistrates

Magistrates are expected to act fairly and impartially, and the general rules applicable to professional judges apply to lay magistrates too. They must listen to the evidence (and give the appearance of listening), and must not show bias towards either side. As the saying goes “Justice must not only be done, but must be manifestly and absurdly be seen to be done.”

Retirement and Removal

Retirement is normally at age 70 but when magistrates reach this age they do not officially retire they are placed on a supplemental list. This means that they no longer sit in the Magistrates Court but they can continue to discharge administrative functions (ie signing documents.) If a Magistrate moves from their local justice area they can no longer continue serving within that area. They must be added to the supplemental list in the new area if they wish to continue serving.

Of course, lay magistrates can resign from service at any time even before they reach 70.

Removal – s 11 Courts Act 2003 gives the Lord Chancellor the power to remove a Magistrate for:

  • incapacity or misbehaviour
  • persistent failure to meet the standards of competence
  • failure to take a proper part in the exercise of his functions as a justice of the peace

Lay People: Juries (P2)

This topic covers:

  • Independence of the Jury and Use of Juries
  • Jury Qualification and Selection (before Court and at Court), disqualification and eligibility
  • The Role of the Jury
  • Advantages and Disadvantages of the Jury

Introduction

Juries have been used in the English Legal System for over 1000 years although their role has changed significantly over that time.

Juries are used most commonly in the Crown Court to hear the small number of criminal cases not dealt with by the Magistrates Court. However, they can be used in other courts in limited circumstances eg. juries have a very limited civil role. For examination purposes we focus mainly on the role of a jury in criminal cases although you must be aware of their other functions.

The principle underpinning the system remains constant and is guaranteed by the Magna Carta i.e. a persons right to trial “by lawful judgement of his peers”. This is the most important feature of trial by juries, and has earned the system much praise eg “the lamp that shows that freedom lives”. (Lord Devlin)

What do juries decide in criminal cases?

Use of Juries in Criminal Cases

Juries are used for criminal cases in the Crown Court. These cases are indictable cases (ie. the most serious type of cases) and make up approximately 3% of the cases that magistrates do not deal with. A jury in the Crown Court has 12 members.

We will return to investigate the role of juries at a later stage

Jury Qualifications

The current qualifications for jury service are set out in the …………………………Act 1974.

What are these basic qualifications?

All those people who meet the qualifications above are randomly selected from the ELECTORAL REGISTER electronically. This means that all those meeting the three main qualifications above have an equal chance of being selected. This is done by the Central Summoning Bureau at Blackfriars Centre in London. They are picked from the electoral register for the jurisdictional area of the court. Eg.jurors for Liverpool Crown Court will be selected from the Merseyside electoral register.

The qualifications for jury service were revised in 1972 following the Morris Committee Report.

Q. Before this date there was a property qualification, what was it?

Q. What did this restriction mean?

Consequently the Criminal Justice Act 1972 removed this restriction and widened the pool of potential jurors.

Disqualification

A person is not qualified for jury service whilst on bail, or following certain criminal convictions, or if suffering from mental disorder or other mental health problem.

  • Under the Criminal Justice Act 2003 those who have been sentenced to the following are permanently disqualified from jury service:

1.

2.

3.

4.

5.

  • Under the Criminal Justice Act a person will be disqualified from jury service for 10 years if they have:

1.

2.

3.

  • Mentally disordered persons are also not permitted to serve as a juror. What is the problem with the definition of the term mentally disordered person as defined under the CJA 2003?
  • Anyone who is currently on bail in criminal proceedings is also disqualified from sitting as a juror. If a person fails to disclose the fact that they are on bail and turns up for jury service they may be fined up to £5,000.

Lack of Capacity to Serve Upon a Jury

A judge may discharge a juror from duty for lack of capacity to cope with the trial in accordance with the powers under s9b(2) of the Juries Act 1974 which was added by s.41 of the Criminal Justice and Public Order Act. This could be because the person did not understand the English Language fully or because of some disability which prevents them discharging their duty fully.

Excusals

Before 2004 people in certain professions were excused as of right from jury service if they did not want to do it. These included:

This meant that members of the jury were often not reflective of all aspects of society as people in vital professions were underrepresented. In response to much criticism of the excusal system the Auld Review of the Criminal Justice System recommended that almost all excusals as of right should be removed.

Therefore the …………………………………………………………………… Act 2003 removed these excusals. Now the only people who are excused from jury service are: ……………

…………………………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………………………

As a consequence of these changes, controversially, judges and members of the legal profession may serve on a jury!

However, discretionary excusals still apply. The court has a discretion to grant an excusal but will only do so if there are sufficiently good reasons such as:

Despite having discretionary excusals available judges are often reluctant to use them and are more likely to merely postpone the date for jury service rather than give a complete excusal.

As a result of the 2003 Act judges, lawyers and police officers are now eligible to serve on juries. It is arguable that this could lead to bias or a legally qualified juror influencing the rest of the jury.

Selection of a Jury

Selection before court

Jurors are selected electronically and at random from the electoral register (which relates to the area that the court is located in). However, the actual random selection is conducted centrally at Black friars Centre in London, this is known as the Central Summoning Bureau.

At each crown court there is an official who is responsible for ensuring the smooth running of the summonsing, in particular making sure there are enough jurors to service the need of that court for a minimum of a two week period. The official works in conjunction with the Central Summoning Bureau. In Liverpool Crown Court, in excess 200 jurors per week are required to be selected in this manner.

Those citizens who are summonsed for the “finest lesson in citizenship” (jury service!) must advise the court immediately if there is any reason they are unable to serve i.e. disqualification or inability to attend. If they fail to notify the court of any reason they may be unable to serve eg disqualification they are liable to be fined up to £5000. All those who fail to do this are expected to attend Court for a minimum of a two week period, or for the duration of the trial if it is longer.

Selection at court

Once at court the jurors are divided into groups of 15 and allocated to a specific courtroom. At the start of the trial the court clerk will select 12 out of those 15 at random. If there are not enough jurors to hear all the cases scheduled for that day at the court, there is a special power to select anyone who is passing by known as “praying a talesman”. This was last used in 1992 at Middlesex Crown Court when over half the jury members failed to turn up to court following the new years holiday.

Challenging

Once the jury is selected, but before they have been empanelled both the prosecution and the defence teams have the chance to challenge the jury and its members in certain circumstances. Nb challenges must occur before the jury are sworn in!

Types of challenges:

1.

2.

3.

1. Challenge to Array: is a challenge to the whole jury on the basis that it is biased or has been chosen in an unrepresentative way. This happens very rarely.

2. Challenge for cause: involves challenging the right of an individual juror to sit on the jury. This must be for a valid reason eg disqualification. Challenge for cause is very limited, because (unlike in the USA) no questioning of jurors to establish a cause is normally allowed, and only the most obvious bias is likely to be detected. In practice only about 1 per cent of jurors are challenged for cause by either side.

3. Prosecution right to stand a juror by: this applies only to the prosecution and allows them to put a potential juror to the end of the list asking them to “stand by for the Crown” Guidelines say that this power should be used sparingly and it is very rarely exercised except in cases affecting state security.

After challenges (if indeed any occur), the jury will be empanelled, that is each individual juror will be sworn in.

Now it is time to check your understanding…. In the space below, explain the key features of selecting a jury.

The Function of the Jury in Criminal Cases

The jury is used in the Crown Court for cases where D has pleaded not guilty. The use of juries represents “trial by ones peers” and is the cornerstone of the ELS and “the jewel in the Crown of the Criminal Justice System.”

The jury’s function is to weigh the evidence and decide what the true facts of the case are. The judge directs as to what the relevant law is, the jury must then apply that law and reach a verdict. If they reach a guilty verdict the judge will then decide a sentence. A jury will often be referred to, as “masters of the facts” while a judge will be a “master of law.”