Lay Justice and the Magisterial Court System
Frankie Hornby
The Magistrates’ Courts of England and Wales have been around in some shape or form for centuries and are arguably the closest any modern society has got to pure local justice. The Magisterial Court System of England and Wales has been praised as, ‘a democratic jewel beyond price’ 1 by former Chief Justice, Lord Bingham, while Lord Hailsham stated that ‘There is, I verily believe, no people’ s court on either side of the iron curtain or anywhere in the world which is as representative of the responsible elements of society as the lay bench of England andWales. ’ 2 But why do we seem to love the magistracy so much? A pillar of democracy is some form of local justice. This is when citizens are judged by their peers (as opposed to a King or a Lord) in order to achieve just solutions to disputes. This most obviously takes place when decisions are made by a jury of twelve randomly selected citizens who have the charge(s) explained to them by barristers who then argue for the defence or prosecution in turn to inform the jury and persuade them of their cause. However, this only takes place in the Crown Courts and 97% of all cases in England and Wales are tried in Magistrates’ Courts. Magistrates’ Courts provide a scaled-down form of peer judgement justice for less serious cases, by employing a lay magistrate with no legal qualifications or practice to rule on their fellow citizens. In this essay I aim to briefly explain the history, functions and powers of magistrates, evaluate the shortcomings of that Magistrates ’ Court system and demonstrate how the present operation of the Magistrates’ Court is so poor as to bring into doubt the authority and perceived fairness of the legal system in the UK. In order to comprehend the value of the Magistrates’ Court system one needs to appreciate the history of lay justice in the UK. Although the signing of the Magna Carta in 1215 is broadly accepted as the moment that the rule of law was first introduced, rulings of law were being enacted as early as 1195 when Richard I commissioned the duty of custodes paces , peace keepers, who were ‘good and lawful’ 3 gentry men tasked with handling small disagreements among the King’s subjects . This duty was subsequently formalized in the Statute of Westminster 1361, which officially recognized keepers of the peace as a formal position and changed the role to ‘Justices of the Peace’ (commonly referred to as JPs). Then in the 14 th century the quarter sessions were started. These sat outside the King’s Court four times a year to rule on low-level misdemeanours throughout the realm in order to lower the pressure on professional judges who were sitting in the city assizes. These sessions were attempted replicas of assize proceedings except the judge was replaced with a JP. In the 1730s the petty sessions commenced with magistrates ruling to deal with debtors and those withholding payment of fines and from the 1820s magistrates were given more jurisdiction as larceny became triable in the petty sessions along with a host of other minor violent crimes. However, with the Courts Act of 1971 the quarter sessions were abolished and replaced by the assizes with the permanent Crown Court assuming control of major crimes. Perhaps themost important moment in the history of local justice came in the 19 th century with the introduction of ‘triable either way offences’. This new category of offences allowed the accused to select whether they wished to have their trial in a Crown Court (with a jury) or a Magistrates ’ Court
1 A Light on the Lay Magistracy by T. Grove (2002) Criminal Justice Matters. 2 Lord Hairsham in the 1984 AGM of the Magistrates Association. 3 The Secret Barrister Anonymous (2018).
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