The Criminal Courts and
Lay People
Advantages and Disadvantages
Of Using Lay People
Lesson Objectives
• I will be able to state the advantages and
disadvantages of the use of magistrates
• I will be able to give relevant examples of
these advantages and disadvantages
• I will be able to state the advantages and
disadvantages of the jury
• I will be able to give relevant examples of
these advantages and disadvantages
Advantages of the use
of magistrates
Cost
• Magistrates are unpaid apart from
expenses
• This means large majority of criminal
cases are tried without the need for a
Judge, Recorder or District Judge – salary
would be over £90,000
• Annual saving is in the region of £100m –
takes into account the cost of the legal
adviser in the court which would not be
necessary for a full time salaried judge
Local Knowledge
• M’s local knowledge is invaluable when it comes
to understanding where an offence took place
• In the Crown Court much time can be taken
explaining the location of a crime – and where a
witness was standing
• Sentencing can take into account local problems
that can be helped by sensitive sentencing –
Drugs Act 2005 – pilot scheme looking for
‘trigger’ offences
• Paul v DPP (1989) – was kerb-crawling likely to
be a nuisance to the neighbourhood – M knew
that it had become a problem
Availability of judges
• If all M’s were replaced by judges, approx
1,000 judges would have to be appointed
• Would require a new approach to
appointment of judges as the pool of
candidates at present would be nowhere
near big enough
Can deal with the issues that arise
• Over 90% of defendants plead guilty and most
trials deal with issues of conflicting evidence
rather than questions of law
• M’s are perfectly able to decide who is telling the
truth and can decide what behaviour is
reasonable in the circumstances – e.g. when
self-defence is pleaded
• In many ways they are better able to do this as
they represent a cross-section of society than
the judiciary – seen by comparing the respective
statistics on race and gender
Public confidence
• Public have great confidence in the M’s
system, even though there is perhaps less
confidence in M’s than in the judiciary
• Studies in 2000 and 2001 suggest that the
public would neither understand nor
support any moves to lessen the role of
M’s, who are seen as an example of active
citizenship within the criminal justice
system
Disadvantages of the use
of magistrates
Unrepresentative of society
• Surveys reveal that the magistracy fundamentally remains
socially unrepresentative, as it is disproportionally white,
middle class, professional and wealthy
• Situation varies from town to town, and in general the local
magistracy reflects at least to some extent the local racial
mix
• Magistracy remains disproportionally middle-aged in
comparison to the population despite the reduction in the
minimum age for a M, only about 5% are under 40 years old
• Approx 2/3 have managerial or professional backgrounds,
compared to 1/3 of the population
• 2/5 of M’s are retired and the vast majority of defendants in
the M’s Courts are under 25
• There are an increasing number of younger M’s, but some
people take the view that they lack experience
Inconsistent
• 2 of the major criticisms of M’s have been inconsistency
between neighbouring benches in the sentences they
impose and bail refusal rates – pointed out by research
in the 80s and 90s
• Since then there have been increased efforts to be more
consistent without losing the ability to vary sentences to
suit the needs of the individual offender and crime
• The sentencing guidelines and revised principles on bail
are major reasons for improvement
• However, inconstancies still remain between sentencing
in neighbouring benches
• Justice should be consistent across the country and not
vary according to views of local magistrates
Case-hardened and biased
• M’s often hear very similar cases, with similar evidence
and with the same witnesses
• Can lead to a suspicion that evidence is not really
considered and that convictions are rubber stamped –
particularly if the defendant is not present
• It is inevitable that the same police officer witnesses will
appear to give evidence given the local nature of the
courts – M’s could be suspected of knowing and always
believing the police witness – particularly where the
defendant is not properly represented – an example of
this was Bingham Justices ex p Jowitt (1974) –
Chairman of the M’s said “My principle in such cases has
always been to believe the evidence of the police officer’.
• Fewer than 1 in 100 M Court cases is appealed
unsuccessfully on any ground whatsoever
• This figure should be seen in the context of a
very low acquittal rate – resulting from the CPS
not bringing cases to court that are unlikely to
secure a conviction
• Motoring CR of 90.2%
• Burglary CR of 85.7%
• Drugs offences CR of 93.6%
• With such statistics, it is not surprising that there
is a cynical and unfounded view of bias
Reliance on legal adviser
• There is a suggestion the M’s rely to
heavily on their legal adviser
• Whilst the adviser is not allowed to help in
deciding the sentence, a defendant who
sees the adviser constantly conferring with
the M and going in and out of the retiring
room may form the view that the M is not
making the decisions
Advantages of the use
of the jury
A balance against State
interference in criminal trials
• Lord Devlin stated that juries provide a balance against
the power of Government
• A jury can find defendants not guilty even if they are
obviously guilty and the judge tells them to convict the
defendant – seen in 1670 when the Quakers Penn and
Meade were charged with riot – jury refused to convict
and were sent to prisons. Their trial established the
independence of a jury to return a true verdict without
fear of the consequences
• A modern example is in the trial of Clive Ponting – this
lead to a perverse verdict (a verdict that could not be
reasonably expected based on the evidence given) –
can also be a disadvantage of juries
Can give a perverse verdict
• This is a view of public opinion and the
justice of bringing a prosecution – an
example is the case of Kronlid
Racially balanced
• Research published in 2007 by the MoJ shows
that there are no differences between white,
black and minority ethnic people in responding
positively to being summoned for jury service,
and that black and minority ethnic groups are
not significantly under-represented among those
summoned for jury service or among those
serving as jurors
• The research also found that racially mixed
juries’ verdicts do not discriminate against
defendants based on their ethnicity
Public participation in criminal
justice system
• The fact that juries are drawn from the general
public reinforces the view that the criminal
justice system serves society as a whole and is
not totally removed from society as a
Government agency might be
• Home Office report in 2004 found that over 50%
of those who received a jury summons claimed
to be enthusiastic
• Just under 1/3 claimed to be reluctant – more to
do with the inconvenience, not the principle
• Many jurors found the experience reinforced
their confidence in the criminal justice system
Disadvantages of the use
of the jury
Do not have to give reasoned
verdicts
• Speeds up the process but means individual
jurors can give their verdict on a whim – could
mean ‘going with the flow’ to finish the trial and
go home, or to produce a genuinely perverse
result
• Juries deliberate in private and no one can
inquire into what happened in the jury room
• The only time the public finds out what happens
is when a juror complains and this leads to a
retrial – Stephen Young in 1994 – granted a
retrial after in emerged the jury had consulted an
Ouija board!
Not truly representative of the
public
• The jury represents the public, but many are
excluded as being disqualified or ineligible
• Once those excused have been added in, it is
likely that the jury will have a higher proportion
of older people (most people with relevant
criminal convictions are under 25, mothers of
young children are often excused) and fewer
people who are reluctant jurors as they will try
harder to be excused or have their service
deferred
• Jury vetting may also affect the representative
make-up of the jury
Lack of ability to do the job
• Often suggested that jurors do not really understand the
nature of the proceedings in a criminal court
• Lawyers make a point of ensuring the evidence is given in
such a way that all jurors will understand the case being
made – some jurors see this as them trying too hard and
become suspicious they are not being told the truth
• The real problem is claimed to be in long and complex fraud
trials where there is now provision for a judge to sit without a
jury, in order to avoid any problems of juror ability
• All these arguments are based on conjecture, as the actual
workings of real jurors cannot be studied because of jury
secrecy – 1986 Report of the Fraud Trials Committee, which
stated that the Committee was disadvantaged in determining
whether or not jurors could understand the technical
evidence and complex issues in fraud trials because they
were prohibited from discussing the issue with jurors in such
trials
Effect of jury service on jurors
• Most jurors find the experience interesting, but for some it
can be distressing – particularly where the case has
similarities to a personal experience
• There is some follow-up counselling, but only in 2007 has a
system been set up
• Members of Crown Court juries struggling to cope with
horrific cases are now being out in direct touch with the
Samaritans through court staff – contact numbers and
leaflets are now available in jury rooms after the launch of
the partnership between the Samaritans and the Courts
Service
• Feelings of distress may not surface until some time after
the trial
• Although Samaritan volunteers are not allowed to talk to
jurors about their deliberations, they can discuss their
feelings and emotions without disclosing jury room secrets