Selection and Appointment of Magistrates.
- A person may apply directly for the position of Lay Magistrate or apply following advertisements in the press for the position. (They have tried to increase diversity by placing advertisements in newspapers aimed at minority groups e.g. Asian Times and put adverts on local radio etc)
- The application is made to the Local Advisory Committee which is made up of existing magistrates and local people. (The LC has set out 11 broad categories of occupations, the LAC should not be made up of more than 15% of each category so that it is made representative)
- Interview 1 - The LAC will check the candidate has the minimim eligability requirements and looks to see if they have the 6 key qualities. There wil also be general questions to asses the candidate's attitude to various criminal justice issues such as drink driving/youth crime.
- Interview 2 - The interview is practically based and involves testinbg the candidates potential judical aptitude. The candidate will be given scenarios as asked to rank them in order of severity and will be given a more in-depth case study based on sentencing practice.
- If candidate is suitable, the LAC submit names to Lord Chief Justice before being submitted to LC to make the appointment. The magistrates are sworn at an official ceremony, giving an oath of allegiance to the queen.
Training of magistrates?
The training of new magistrates is supervised by the Judicial College (formerly Judicial Studies Board). The Court Act 2003 places a statutory obligation on the LC to provide training and training materials.
The magistrates new training Initiative (MNTI 2) provides a competance framework which is divided into 4 areas of competancy as follows:
- managing yourself (focuses on some basic aspects of self-managementr in relation to preparing for court, conduct in court and ongoing learning)
- Working as a team member (focuses on team aspect of decision making in court.)
- Making judicial decisions (focuses on impartial and structured decision making)
- managing judicial decisions. (chairman only - focuses on working with legal advisor, managing the court and ensuring effective, impartial decision-making)
First year Training?
1. Initial training - before sitting in court, the new magistrate is given introductary training on the basics of the role. They can then sit in court with experienced magistrates.
2. Mentouring - six formal mentored sittings within the first 12 months.
3. Core training - where the new magistrate must visit penal institutions and/or undertake court observations.
4. Consolidation training - this is at the end of the first year to build on the learning and to prepare them for their first appraisal.
5. First appraisal - this takes place about 12-18 months after appointment and the mentor and magistrate agree that he/she is ready and successfully deemed competant.
Extra training will be provided for those unable to demonstrate they have achieved the competencies. If they continue not to achieve these competencies then the LAC can reccomend to the LC that the magistrate is removed from sitting.
Criminal jurisdiction of Magistrates?
- Magistrates courts try 97% of criminal cases from start to finish.
- They deal with the other 3% of criminal cases at least at a preliminary level with an early administrative hearing (remand hearings, bail applications and committal proceedings).
- They deal with all summary matters - finding defendents not guilty or guilty and sentencing.
- In terms of TEW matters, the lay magistrates will first undertake the 'plea before venue' procedure. If the D pleads guilty then the lay magistrates will go ahead and sentence the D or pass the matter to the Crown Court for sentencing. If D pleads not guilty then the magistrates undertake a 'mode of trial' hearing and they decide whether they have sufficient jurisdiction to deal with the matter.
- Deal with arrest and search warrants and extensions to detention time.
- Sit with judge in crown court to hear appeals from the magistrates court.
- Specially trained panels of magistrates deal with young offenders aged 10-17. (the panel must be under 65 years old and have at least one male and one female)
Civil Jurisdiction of Magistrates?
- Specially trained panels of magistrates sit in the Family Court to hear cases including orders for protection against violence, affiliation cases, adoption orders and proceedings under the Childrens Act 1989.
- Enforce debts owed by utilities (e.g. gas, electricity, water)
- Deal with non-payment of Council Tax and TV Licences.
- Hears appeals against the refusal of the Local Authority to grant a licence for the sale of alcohol and licences for betting and gaming establishments.
Composition of magistrates bench?
Traditional image of 'Middle class, middle-aged, middle-minded'
- Half of all magistrates are between 60 and 70. Only 4% under 40.
- majority are Conservative supporters even in labour safe seats.
- Drawn from professional and managerial positions.
- Only 40% retired from full time employment.
- 51.3% women, which is more than district judges.
- 8% from ethnic minorities compared to 4% of professional judges.
- Put adverts in carribean Times, Asian Times & Muslim News to encourage ethnic minorities.
- LC encourages those with disabilities to apply. In 2012 5% of lay magistrates had a disability.
- Must be competent though (e.g. hearing impairment is a restriction)
Advantages/Disadvantages of Lay Magistrates.
- Cost - cheaper than District judges as they are unpaid, and only get expenses paid for. There would have to be 1000 extra district judges to replace magistrates which would be very costly. Trials are also cheaper as the cases are not as complex so costs are lower for D and government in magistrates.
- Provide a larger cross section of society - means that local justice is dispensed by local, representative people (e.g 51% women, 5% ethnic minority, and older compared to district judges who have 25% women, 4% ethnic minorities however tend to be younger.)
- Local knowledge - seen as an advantage as they will know the local area and crime 'hot spots', however Courts Act 2003 made it no longer a requirement to live in area you sit as a magistrate, so knowledge may be lost. Also lots of courts closed meaning the magistrates may have a longer commute.
- Few appeals - Few D's appeal against magistrates decision, in 2011 judicial statistics reported that only 13,000 appeals were made out of the 1.5 million cases heard. Also few occasions where an error of law is made (79 in 2011 and not all were allowed appeals)
Advantages/Disadvantages of Lay Magistrates.
- Prosecution bias - lay magistrates have a tendency to side with the police and prosecution and as a result the aquittal rates are lower (16% compared to 60% in crown court)
- Reliance on the clerk - Lack of legal knowledge should be offset by the fact that a legally qualified clerk is availiable for advice. However this may lead to sentencing inconsistencies as clerk is not allowed to help, so it is sometimes felt that magistrates rely too heavily on the clerk.
- Inconsistency in sentencing - Magistrates in different areas pass very different sentences for similar offences, despite training. E.g. in Newcastle 7.2% of D's were sent for immediate custodial sentence, whereas in London 32% sent for immediate custodial sentence. In Bristol they have the highest number of cimmunity sentences (32.2%) and in Dinefwr only 6.7%.
- Middle aged, middle class - a high percentage of lay magistrates are over 40 and come from managerial backgrounds, so as a resuly the bench does not represent a cross-section of society. However from a wider background than professional judges.
Comparing District Judges and Lay Magistrates
- Qualifications - lay magistrates are not legally qualified, district judges must be legally qualified (solicitor, barrister, or for a deputy judge they can be a fellow of CILEX)
- Work - lay magsitrates sit part time, DJ's full time.
- Pay - magistrate only expenses, DJ's have full salary.
- Age - only 4% of magistrated under 40, DJ majority are 35-55.
- Speed of hearing cases - slower in magistrates, more cases heard by district judges as they are quicker.
- Complexity of cases - magistrates rely on legal advisor and deal with less complex cases, whereas DJ's are able to deal with more complex cases.
- User confidence - magistrates have less public confidence as they are not legally qualified.
- Consistency in procedure - magistrates still have inconsistencies in sentencing despite their training, whereas DJ's are more consistent and use correct procedures.
- Locality - magistrates are usually from local area, but do not HAVE to be. DJ's are not local.
- Diversity - magistrates are more diverse (51% women, 8% ethnic minority) than DJ's (25% women, 4% ethnic minority.)
- Manners and sympathy - Magistrates are more sympathetic as they are from the local area, whereas DJ's are not as good at representing the views of the community.
- Bail - Mag more likely to believe police/prosecution than DJ's less bias due to experience.
Disqualifications of juries?
A person will be disqualified from serving on a jury for life if they have recieved the following sentences:
- imprisonment or detention for life
- detention during Her Majesty's Pleasure
- a term of imprisonment or detention for 5 years or more.
A person will be disqualified from a jury for ten years if they have recieved one of the following sentences:
- A custodial sentence of less than 5 years.
- A suspended sentence
- Had a community order or other community sentence passed on them.
Ineligability of jurors?
- A person suffering from a 'mental disorder', as defined by the Criminal Justice Act 2003 cannot sit, however it does not distinguish between those recieving treatment for mild depression from a GP and those sectioned under the Mental Health Act 1983.
- Lacking capacity, e.g. cannot speak english or suffering from a disability which reults in the juror not being able to act effectively as a juror (blind/deaf so cannot see evidence produced or hear the judges summing up.)
Excusals from the jury?
A person selected for jury service may ask to be excused. The following people may be excused:
- Full time Armed Forces personnel if their commanding officer certifies that they are required for duty.
- A person with 'good reason' can be excused or have their service deferred. This is down to the discretion of the courts and reasons for this may be illness, business committments, disability or examinations/holidays pre-booked.
Ignoring the summons and not attending court will result in a fine up to £1,000.
Criminal Justice Act 2003 changed who was eligable for jury service. The Act abolished the rule that people involved in the administration of justice were ineligable to serve on a jury (this included lawyers, police officers and judges)
Selection of juries?
- Crown court will, at randon from the electoral registers, summons enough jurors to try cases every fortnight. In the larger courts up to 150 summons are sent out at one time.
- Summons' are sent out electronically using a computer at central office, notifying a person of when and where they are to attend.
- At court in the first instance, 15 potential jurors are chosen at random from the jury pool to go into the court room.
- 12 are then chosen at random to go into the court by the clerk.
Jurors are shown a short film when they arrive in court which explains to them the procedure in court and how to behave, including not dicussing the case with any other person.
Both the prosecution and the defence have the right to see the list of potential jurors and may decide that the pool needs to be vetted. There are 2 types of vetting:
- Routine Police checks to eliminate those disqualified as approved in R v Mason (the COA approved vetting. It was held that the police were only doing their duty of preventing crime by checking the jurors had no criminal convictions. However the Brownlow case 1980 stated that the process of vetting was unconstitutional and interfered with HR article 8.
- Jurors Background - a wider check is made on a juror's background and political affliations. However this is only carried out in exceptional circumstances involving national security (terrorism) and with the express permission of the Attorney-General.
Challenging a jury?
Once the 12 jurors have been slected, but before they are sworn in the prosecution and defence have to right to challenge one or more of the jury, There are 3 types of challenges, the first 2 are available to both P & D, whereas the 3rd is only availiable to P.
1. Challenge to the 'array' on way jury was selected, for example chosen in an unrepresentative, bias way. In the case of Romford 1993, the challenge to array was used successfully as both jurors lived on the same street. However the challenge is not allowed simply because the jury is not multi-racial (R v Fraser - D was of an ethnic minority but all jurors were white, however COA ruled that there is no requirement of a jury being ethnically mixed)
2. Challenge for cause - challenging a person's right to be on the jury because of a connection with a case e.g. [R v Wilson] where the wife of a prison officer was on the jury which convicted 2 D's who had been on remand in her husbands prison. COA quashed convictions. Or incapacity.
3. Right of stand-by jurors - allows a member of the jury to be put to the back of the list so that they will not be used unles there is not enough jurors, however this should be used sparingly as stated in Attorney-General's guidelines. PROSECUTION ONLY.
Evaluation of selecting juries?
- Electoral register register does not include all of society as it excludes homeless people and also people who have not registered to vote, so many jurors may be politically involved/ bias. 8% population arent registered, mostly those between 18-24 and those of ethnic minorites.
- No power to ensure juries are multi-racial as seen in the case of [R v Fraser].
- Excusals are more difficult to get which may lead to resentment. In the case of [Abdroikof] 2007 the HOL ruled that 1 member of the jury being a police officer did not make trial unfair. What used to be excusal is now allowed.
- Disabilities are not accounted for in the jury as seen in the case of McWhinney where a deaf juror unsucessfully appealed against his discharge. 3,000 people discharged per year and 1/3 were deaf. However in New Zealand they have deaf jurors so this suggests that they are capable, especially as many are very good at lip reading.
Role of juries in criminal trials?
The role in criminal matters is split between the judge and the jury. The judge presides over the case and decides on points of law. The jury's role is to decide the facts. If a judge decides that the prosecution has not made out a case against the D, the judge will advise jury to aquit D. Judge will pass sentence at end of case.
- Only used in 1% of criminal cases.
- Sit in crown court and decide whether D is guilty/not guilty in serious cases.
- Listen to evidence from both the prosecution and defence and listen to summing up by judge at end of trial.
- Decide questions of fact, judge decides on questions of law.
- Retire to jury room at end of case to discuss the case and come to a unanimous decision, or if directed by judge a majority decision of at least 10-2.
- Dont have to give reasons
- judge must accept jurys verdict -[Bushall's case].
Role of Juries in Civil Cases?
Juries are rarely used in civil cases but can be used in both the County Court and High Court They are mainly used in defamation cases. High Court has 12 jurors, County Court has 8. In civil cases they decide on verdict and assess damages.
- Jury trial is only available in four types of case in High Court or County Court:
- False imprisonment,
- Malicious prosecution,
- Only retained for these cases because they deal with character or reputation.
- A judge can refuse to allow a jury in these cases if they think the evidence is too complicated.
- In exceptional circumstances, a personal injury case in the High Court can use a jury. But since the case of [James v Ward] 1966 no personal injury case has been deemed exceptional.
Juries in Civil Courts Evaluation.
- Civil juries decide both the verdict and amount of damages. In terms of damages, juries do not follow precedents and therefore it is hard to predict the amount of damages which is difficult for lawyers to advise and may be unfair for the claimant. However Courts and Legal Services Act 1990 allow the COA to order a re-trial or substitute the damages awarded.
- May still be biased which may affect verdict, e,g. in case of [Sander] 2000, a juror was known to be making racial remarks and the ECHR stated that the judge should have discharged the jury.
- Unreasoned decisions - since the total ban on knowing what happens inside a jury room, it is difficult to know whether the jury fully understood the evidence, especially in complex cases of fraud. If they didnt understand it is unfair and inconsistent.
Coroners Court - Juries can also be used in coroners court to enquire into suspisious deaths, for example when death occurred while in custody or the cause of death is unknown. There will be between 7 and 11 jurors.
Arguments for and against secrecy of jury room.
- Jury members free from pressure during their discussions so they may bring unpopular views forward that they may not publically.
- Protected from outside pressures. People may be less willing to serve if their decisions were public due to the possible consequences or unwanted press attention.
- Juries can ignore the strict letter of the law and take a more personal approach.
- Injquiries can be made into the conduct of the jury outside the jury room, e.g. in the case of [Karakaya] 2005 a juror researched on the internet, but the conviction was quashed because of the outside information the jury had access to in their deliberations.
- Jury do not have to give reasons for their decisions so their is no way to know if jury made decision for right reasons. In the case of [Young] 1995, the jury used a ouija board so COA quashed conviction and ordered retrial.
- Contempt of Court Act 1981 means that it is an offence to obtain, solicit or disclose information about what happened in the jury room even when decision was made on shaky grounds. E.g. in [Mirza] case an interpretter helped a Pakistany man but one juror had a theory that he was a 'ploy'.
Advantages of Trial by Jury?
- Public Confidence - the right to be 'tried by peers' is one of the fundamentals of a democratic society. For example Lord Devlin said that juries are the 'lamp that shows freedom lives'. The tradition is very old and people seem to have confidence in the impartiality and fairness of it.
- Jury Equity - the jury decide on the fairness, not just the law as in the case of [Ponting] 1985 where the jury found D not guilty due to jury equity by coming to a legally perverse yet moral decision.
- Open system of justice - justice seems to be done by members of the public so by public being involved it makes it seem more transparent. Also summing up helps D to understand case more easily. However secrecy of jury room conflicts open justice system.
- Secrecy of jury room - free from pressure during discussions so free from outside influences when deciding the verdict which lets juries bring in potentially unpopular verdicts. Can ignore law.
- Impartiality - should be impartial as they are not connected to anyone on the case. Also random cross-section of society should cancel out eachothers prejudices as no single person is responsible for decision. Not case hardened to more sympathetic with D,
Disadvantage of Trial by Jury?
Perverse decisions - can be a protest against the law. In the case of [Kronlid] 1996 they admitted to being guilty, yet pleaded not guilty, however the jury still aquitted them, so they can ignore clear-cit decisions and refuse to convict the guilty.
Secrecy - secrecy of the jury room is a problem as it may conflict article 6. [Young] 1995 case when ouija board was used.
Racial bias as there is no right to multi-racial jury - despite being 12 jurors, there may still be bias, as was apparent in the case of [Sander] 2000 where a juror made many racial remarks.
Media influence - May influence jurors especially in high profile cases. In [West] case 1996 the case got intense media coverage as she killed 10 young girls and women including her own daughter, COA rejected her appeal and said that as 'if allogations are so horrendous to shock the nation, the accused could not be tried'. Would be wrong.
Lack of understanding - There are worries that jurors do not fully understand the case in which they are hearing. Cheryl Thomas' research in 'Are Juries Fair' report showed that only 31% of jurors understood the case fully.
Jury tampering - in [Twomey] 3 previous trials collapsed due to jury tampering (trial by judge was better option.
Alternatives to Jury Trial Advantages/Disadvantage
- Advantages - Brought in to stop jury tampering as seen in case of [Twomey]
- Disadvantage - Weaker in terms of public confidence, Judges become case-hardened and prosecution minded, and the elite group of judges would have less understanding of background of D.
Panel of judges
- Advantage - Allows for balance of views instead of a single person's verdict.
- Disadvantage - Judges are still case-hardened, it is expensive and there are not enough judges for this so the system would have to a radical overhall to implement this.
Judge Plus Lay Assessors
- Advantage - provides legal expertise along with ordinary members of public, could be used for more fraud cases
- Disadvantage - More expensive and judge may lead lay people to a decision.
Mini Jury (Gives people a chance to be 'trailled by peers' & cheaper but can still be bias/secretive.