The Criminal Courts and Lay People

The Criminal Courts andLay 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

The Criminal Courts and Lay People