Role of Magistrates free essay sample

This essay will discuss the role of the magistrate and jury in the English and Welsh legal decision-making process. It will assess both the advantages and disadvantages of both mechanisms and give an opinion on the contribution they make in the process. The role of a lay magistrate is one that is at the core of the legal system in England amp; Wales. They help maintain the foundation of the criminal justice system and deal with approximately 98% of all criminal matters. The sheer volume of cases that they deal with has helped earned them the title of the workhorses of the criminal justice system. A magistrate forms part of the judiciary however they are unique in the sense that they do not get paid. Even though magistrates do not get paid it is crucial that they are of good standing in the community to ensure an element of respect and a comprehension of what is right and wrong. We will write a custom essay sample on Role of Magistrates or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The Lord Chancellor is tasked with the role of appointing magistrates on the advice of a local advisory committee. These committees are made up of existing magistrates and people in the prospective magistrates’ local area. It is seen as important to draw magistrates from local areas to be representative of the local community. Once appointed they are expected to sit for a minimum of 26 half days per year but it is frowned upon to do any more than 1 sitting per week for fear of ‘case hardening’. To start with all magistrates sit in the adult court but after gaining experience they may choose to apply to sit in the youth court or family proceedings court, and if successful undertake specialised training. Magistrates’ courts consist of a ‘bench’ of three magistrates with one who has been trained to take the chair. They are provided with training but it is not necessary to have any legal qualifications before becoming appointed as a magistrate. Due to the lack of legal expertise the bench benefits from the use of a court clerk who is required to have legal qualifications before taking the post. The clerk’s role is strictly advisory and they are not permitted to give their opinion toward guilt or innocence of the defendant. If someone is charged with a crime they will first go to a magistrates’ court. The magistrate must determine whether the offence is indictable, summary or triable either way. The category of offence brings with it different levels of punishment. A magistrate has limited sentencing power and can only impose fines of up to ? ,000 for private individuals or ? 20,000 if a business is involved, community service and prison sentences of up to 6months if for one offence, extended to 12months if for more than one offence. The sentencing power of the magistrate means that they have the authority to deal with only summary offences and triable either way offences. Indictable offences are offences which are more serious in nature such as rape and murder and therefore require harsher sentencing. These cases would be sent to the Crown Court. Magistrates mainly deal with summary offences of which there are hundreds. If an offence is deemed to be triable either way the defendant is given the choice as to whether they want to be tried by the magistrates or at crown court which utilises a jury to decide upon guilt or innocence. As with any system the magistrate comes with its advantages and disadvantages. To assess its advantages, disadvantages can be equally juxtaposed alongside it. One major advantage of the magistrate, particularly in today’s current economic climate, is that the position is voluntary and therefore unpaid. The saving would equate to millions of pounds to the economy every year. The downfall to this may be that a magistrate may also have to maintain another career alongside in order to make a living. A criticism of this could mean that a magistrate is not entirely dedicated to the calling. The voluntary aspect of the position may also account for the reasoning as to why legal qualifications are not a necessity. Even though they magistracy do benefit from basic training they do not have a legal expertise as such, however a court clerk who does hold legal qualifications can be used to counteract this criticism. The aforementioned lack of legal expertise was felt and cased in ‘The Magistrates Tale’ where T, Grove recounts from personal experience that even after 80 sittings he still felt like a novice. T Grove is an ardent cheerleader for the use of magistrates and his passages reflect that as a magistrate is drawn from the local community there is a sense that people are being judged by their peers. John Humphreys shares this opinion and has been cited as stating that ‘if the people sitting up the on the bench are people like us†¦.. hen we may be more likely to feel that we have been fairly judged’. Not all aspects of society share this opinion; anecdotal evidence shows that defendants show mistrust in the magistracy as when faced with the option to be tried by the magistrate or a jury a favour is shown toward the jury. This mistrust can be based on the impression of the magistrate by the common man. Even though it is desired that the magistrate represent a cr oss section of society the majority of magistrates are middle aged, middle class, white men. The mistrust however could also be down to a misplaced view that magistrates begin to become sceptical of lines of defence, that they start to recognises defendants traits and in turn show bias to similar defendants, they become ‘case hardened’. However this can be counteracted with the fact that a magistrate is limited to the amount of sittings they have per week which has been created in part to prevent such case hardening and biases are restricted due to the utilisation of a bench of 3 magistrates. The legal decision making system of England amp; Wales also utilises a jury. A jury is used when a case it out of the magistrates jurisdiction. Juries are an integral part of the legal system, a mechanism that is envied around the world to cite just one opinion, that of Dr Burkhard Schafer, professor at the University of Edinburgh. The modern jury’s role is to make decision of guilt or innocence of a defendant in court (or liability of a defendant in civil matters). A jury consists of 12 members of the public, chosen at random from the areas surrounding the court. They are expected be impartial and make decisions based on evidence brought before them, although on rare occasions the jury has gone against evidence and made a decision based on what they thought was morally right, as cased in the acquittal of Clive Ponting in 1985. In the past they have been seen to be treated unfairly as shown in Bushell’s Case (1670) Vaugh 135: Freem KB1 however as society has developed more importance has been placed on the allowance of fair and lengthy deliberation as cased in R v McKenna [1960] 1 QB 411 ‘a jury shall deliberate in complete freedom’. The judge gives the direction to the jury on the relevant law, which the jury has to apply to the facts of the case in order to reach a verdict. If it is a criminal case and the jury has given a verdict of guilty, then the judge will decide on appropriate sentence. In civil cases, juries function is to decide on how much money should be awarded in damages. The utilisation of a jury has been borne out of the democratic nature of English and Welsh society and epitomises the right for a fair trial by one’s peers. The Bill of Rights 1689 states that it is an ancient liberty to have a jury and the mechanism dates as far back as the Magna Carta. The jury has been interpreted as also having a political role as they stand in the face of oppressive rule. In a sense it plays a vital role in ensuring that the criminal justice system works for the benefit of the public rather than for the benefit of unjust leaders. Their role is important in the legal system as the ethos of justice in the country is to be tried by one’s peers. As established by Lord Hewart CJ in R V Sussex ex p McCarthy [1924] 1 KB 256, It is deemed important that ‘justice should not only be done but†¦. seen to be done’. The system must be opaque to ordinary members of society and allow the public to have a voice in the workings of the law. Even though the system is cherished and importance has been placed on the protection of there has been continued pressure for the need for jury reform. This has proven to be a difficult task to accomplish because of the ideals at the heart of the British justice system. The envied system of lay justice is precious and any suggestions for reform may be seen to endanger its workings. As with the magistracy there are both advantages and disadvantages that come with the utilisation of a jury. One advantage that lies at the heart of its use is that it is participatory lay justice. Both the public and executive alike want to maintain the open system of justice and allow the ordinary man to be involved. This goes a long way in trying to maintain public confidence in a system where otherwise they would have no voice. The unfortunate downside of choosing members of the public is that they may have limited legal understanding and often find it hard to under complex information. The lack of understanding, particularly in complex fraud trials has led to calls for reform by bodies such as the Roskill Commission in 1986 which called for the abolition of the jury in such cases. Another advantage lies in the secrecy of the jury room. Jurors are protected from outside pressure and are not permitted to discuss the case with anyone outside of the jury room. These rules have been set out in both the Contempt of Court Act 1981 and Juries Act 1971. A jury simply decides on a guilty or innocent verdict and their reasoning for the decision is never disclosed. Even though the system is designed to be opaque a criticism of the jury’s non-disclosure of reasoning may counteract the need for transparency in the system. It also goes against the philosophy of the Human Rights Act 1998 as the defendant may not understand why he has been found guilty. This is another area of the jury where reform has been called for from bodies such as the Runciman Commission where its report recommended research into the decisions of the jury. In summary this essay has reflected the importance of lay justice in the English amp; Welsh legal system, a system that is envied throughout the world. Both the magistrate and juror facilitate this lay justice perfectly. The contribution both parties make could be considered to be the most important decision of the entire legal decision-making process. It is important as the liberty and freedom of a defendant depends on the conclusion that lay people make. As stated 98% of criminal matters are decided upon by lay magistrates and those decisions that are out of their remit are decided upon by the jury. Although there will inevitably be opposition to the utilisation of these systems the Government takes an active role in ensuring that measures in places to try and reform the structures into modern and effective mechanisms. The progress may be slow but as it is a cherished system the need for protection is strong.