Provides a Cross-Section of Society
The system involves members of the community and provides a wider cross-section of society than would be possible with the use of professional judges. This is particularly true of women, with 49% of magistrates being women against 16% of professional judges. Also, even though there is a shortage of ethnic minority magistrates, there is still considerably more involvement of ethnic minorities than in the main judiciary.
Magistrates no longer have to live within 15 miles of the area covered by the commission, but they tend to live nearby. They should therefore have local knowledge of the particular problems in the area. However, as most magistrates come from the professional and managerial classes, it is unlikely that they live in, or have any real knowledge of, the problems in poorer areas. Their main value is that they will have more awareness of local events, local patterns of crime and local opinions than a professional judge from another area. Lord Irvine said that magistrates' roles is 'not just to decide cases but to represent to the offender the views of the community against which he has offended'.
The use of unpaid lay magistrates is cheap. District Judges earn over £90,000 each so it would be obscenely expensive to replace every panel of magistrates with a judge. The cost of a trial at the Magistrates' Court is also much cheaper than a Crown Court trial. It has been estimated that the average cost of a contested trial in the Magistrates' Court is around £1,500 and a Guilty Plea costs around £500. The comparative figures for the Crown Court are £13,500 and £2,500. Part of this difference is due to the fact that cases in the Crown Court are more complex and therefore likely to take longer, but even so, it is clear that the cost both to the Government and to defendants who pay for their own laywer is much higher.
The training of magistrates has improved much in recent years. This means that lay magistrates are not complete 'amateurs'. However, there are criticisms that the training is variable in quality and inadequate for the the workload.
Advice of the Clerk
Although lay magistrates will lack legal knowledge, they will all have access to the advice of the clerk of the court. This is a fully qualified lawyer who sits in front of the magistrate's bench. The clerk is there to advise on technical rules and guidelines, including those concerning committal proceedings, remand and sentencing. Public confidence in magistrates is relatively high and they inevitably become more experienced in their roles over time, making them comfortable with making decisions themselves.
Inconsistency in Sentencing
There is considerable inconsistency in the decision-making of different benches, particularly in awarding legal aid and sentences. Research has confirmed that some magistrates are 10 times more likely to impose a custodial (prison) sentence than other magistrates for similar offences. In the White Paper, Justice for All, analysis on the 2001 criminal statistics show that for 'driving while disqualified', 21% of offenders in Neath were given a custodial sentence, compared to 77% in mid-north Essex. For 'receiving stolen goods', 3.5% of offenders in Reading were given a custodial sentence, compared to 48% in Greenwich.
It is often said that lay magistrates tend to be prosectution biased, believing the police too readily. Many magistrates will see the same prosecutors regularly, and this could affect their judgement. There is a low acquittal rate in Magistrates' Courts, with only 20% of defendants being acquitted. By comparison, 60% of defendants pleading Not Guilty at the Crown Court were acquitted. In R. v. Bingham Justices, ex parte Jowitt, a speeding case where the only evidence was that of the motorist and the policeman, the chair of the bench said that where there was direct conflict between the defendant and the police 'my principle in such cases has always been to believe the evidence of the police officer'. This remark was heavily criticised and the conviction was later quashed.
Not Truly Representative of Society
Despite the argument that lay magistrates provide a cross-section of society, a comparison with juries will illustrate that this is not the case. Magistrates tend to be 'middle-class, middle-aged and middle-minded'. Many jurors are young, because selection is based on electoral registration and jurors often have no choice but to serve if chosen. However, magistrates are volunteers: the people who do it are able to spare the time because they are often retired or wealthy. Ethnic minorities are also underrepresented. Two-fifths of magistrates are retired, whereas the vast majority of defendants are under 25 years-old.
Amateur Justice/ Reliance on Clerks
The chances of acquittal are substantially higher in the Crown Court than in the Magistrates' Court, which creates the suspicion that magistrates are unfair. Some claim that magistrates rely too much on their clerks and make few decisions themselves. This was illustrated in R. v. Eccles, ex parte Farrelly, where the QBD quashed convictions because the legal advisor had apparently participated in the decison-making process.
Complexity of the Law
The law has become increasingly complex in recent years. More crimes are being downgraded to summary offences, cannabis has been re-classificied, several new offences have been created and sentencing rules have become very complicated, for example, with the introduction of Curfew Orders and ASBOs. Community Orders can include a wide variety of options, such as curfews, tags, unpaid work and restrictions on where the offender can go. The rules on remand and committal proceedings are also very technical.
- Provides a Cross-Section of Society
- Local Knowledge
- Advice of the Clerk
- Inconsistency in Sentencing
- Prosecution/Police Bias
- Not Truly Representative of Society
- Amateur Justice/ Reliance on Clerks
- Complexity of the Law