British Judiciary and Lay Magistrates Notes

The British Judiciary

Learning Objectives

• Understand the role of the Judiciary in the United Kingdom.
• Identify the courts in which the inferior and senior judiciary sit.
• Analyze the composition of the Judiciary.
• Understand the effects of the Constitutional Reform Act 2005.

Lecture Outline

• The court structure in the UK – recap.
• The types of Judges -Inferior and Superior Judges.
• The role of the Judiciary – in criminal and civil cases.
• The selection procedure of Judges.
• The Constitutional Reform Act 2005.

The British Judiciary

• Judges as a group are referred to as the Judiciary.

The Judiciary: Role

• Their role is to make decisions in a fair, unbiased way, applying the law and the legal rules of England and Wales.

The hierarchy of courts

• Supreme Court (House of Lords)
• Court of Appeal
  • Criminal Division
  • Civil Division
• High Court
  • Divisional Court of the Queen's Bench Division
  • Queen's Bench Division
  • Chancery Division
  • Family Division
• Crown Court
• Magistrates Court
• County Court
• Court of Justice of the European Union (Article 234 EC)

Judges and their courts

Two Types of Judges

• Inferior Judges
  • All Judges below those that serve in the High Court
• Superior Judges
  • All judges who serve in the High Court and above

District Judges

• Vast majority are solicitors – with at least five years' experience.
• Sit in the County Court, dealing with civil cases.

Assistant Recorders and Recorders

• Part-time judges who sit in the Crown Court for 20 days in the year.
• Must have been qualified as a barrister or solicitor for at least seven years.
• Appointment is for five years.

Circuit Judges

• Sit in County Courts or Crown Court
• 2 different routes to qualify:
  • Either at least 7 years rights of audience experience or
  • have been a Recorder

High Court Judges

• To qualify:
  • advocates of at least 7 years' experience within the High Court or
  • been a Circuit Judge for at least 2 years.
• Knighted on appointment
• Note that solicitors and academic lawyers can be appointed.
• One of the first academic lawyers was Brenda Hale who is now the first woman judge in the Supreme Court.

Lord Justices of Appeal

• Sit in the Court of Appeal and Divisional Court
• Usually appointed from among High Court Judges, but can be appointed from among practitioners with seven years High Court experience
• In 2007, the first solicitor Lord Justice of Appeal was appointed.

Supreme Court Justices

• Usually appointed from among Lords Justices of Appeal but can qualify either as practitioners with fifteen years' experience or having held high judicial office for 2 years.
• All judgments by the Supreme Court are put on the website: www.supremecourt.gov.uk
• Sit in the Supreme Court and Judicial Committee of the Privy Council.
• The Supreme Court replaced the House of Lords in October 2009.

Removal from Office

• All Judges now retire at 75
• District Judges, recorders, and circuit judges can be dismissed by the Lord Chancellor for incapacity or misbehavior (as per the Constitutional Reform Act 2005)
• High Court Judges, Lord Justices of Appeal, and Supreme Court Justices can only be removed from office at the request of both Houses of Parliament (only happened once)

Role of the Judge in a Criminal Trial

• Primary duty - To ensure a fair trial
• This is done by following the rules of evidence and procedure - which ensure that each party has its case heard and is not allowed to act unfairly
• In criminal trials – cases are adversarial with proof beyond reasonable doubt
• Must ensure that any jury understands the evidence.
• Judge only deals with points of law and will determine any sentence if D is found guilty.

Role of the Judge in a Civil Case

• Less adversarial since the Woolf Reforms
• Judges now have to be active in managing cases – agree timetable etc
• Judges must encourage alternative dispute resolution
• Judge hears the case and decides whose evidence is most compelling applying the law to the facts

Role of the Judge in any Appeal Case

• In Appeal Cases, Judges do not usually have to concern themselves with issues of fact.
• They interpret the law and decide whether the trial judge got the law right and applied it correctly to the facts.
• They may also have to decide if the sentence or award was appropriate.

Training and quality control

• Training of judges is carried out by the Judicial Studies Board set up in 1979
  • Most of the training is aimed at Recorders – one week course.
  • Now given to newly appointed HC Judges
  • 1993- Racial awareness course (what is discriminatory or offensive); Human awareness training: gender awareness courses, disability issues

How are Judicial appointments made in the UK?

• Before 1994 all judicial appointments were made secretly by the Lord Chancellor (who is a Cabinet Minister appointed by the Prime Minister)
• The process was opened up in 1994 with vacancies for judges being advertised and interview panels being established involving a senior judge as well as non-lawyers.
• The 2005 Constitutional Reform Act introduced new selection procedures.
• A new 15-member Judicial Appointments Commission
  • (5 judges, 5 lawyers, and 5 people not connected to the legal profession) will make all future recommendations for judicial appointments.

The new selection procedures

• Step 1: vacancies are advertised, and applications accepted.
• Step 2: interview and short-listing of candidates.
• Step 3: Selection and recommendations to the Lord Chancellor for final approval.
• He can still reject those recommendations but must provide reasons for doing so. It is expected that he will approve the recommended candidates.

The Constitutional Reform Act (2005)

• In 2003 the Blair government announced plans to reform the highest court of appeal in the UK (known as the Law Lords)
• The aim was to separate the Law Lords from the House of Lords and create a UK Supreme Court separate from the legislature.
• The ancient position of Lord Chancellor was due to be scrapped. A new Judicial Appointments Commission was to take over his role of appointing judges. The position of Lord Chancellor was retained but with most of its powers removed.

Before the Constitutional Reform Act 2005

• The House of Lords
  • the second chamber of the legislature
  • the highest court of appeal in the UK (Judicial Committee)
• Lord Chancellor (appointed by the Sovereign on the advice of the Prime Minister)
  • Minister of Justice (member of the Government) – appoints new judges
  • A senior judge and Head of Judiciary
  • presides over the Judicial Committee of the House of Lords
  • a member of the Parliament – Speaker of the House of Lords contrary to the principle of judicial independence and the separation of powers
• Law Lords (Lords of Appeal in Ordinary)
  • members of the House of Lords;
  • judges of the Appellate Committee as the highest court in England and Wales
  • the final arbiters of judicial disputes in the UK

Separation of Powers

• The Judiciary (Head of Judiciary)
• The Executive (Member of the cabinet)
• The Legislature (Lord of the House of Lord)

Towards greater separation – the Constitutional Reform Act 2005

• a set of reforms aimed at increasing the transparency of the system and clarifying the relationship between the three arms of the state
• came into force on 3 April 2006
  • A) Reforming the role of Lord Chancellor
  • B) A new Supreme Court
  • C) Reform of the system for judicial appointments
• judges – now truly independent
  • judicial independence is now officially enshrined in law
• changed dramatically the Lord Chancellor’s role
  • removed the judicial functions from the office of the Lord Chancellor
• the real differences
  • the way judges are appointed and the way complaints are dealt with

After the Constitutional Reform Act 2005

• A) The Lord Chancellor
  • Minister of Justice (member of the Cabinet)
  • Member of the Parliament
  • no longer the Speaker of the House of Lords
  • no longer appoints judges
  • judicial functions transferred to the President of the Courts of England and Wales (the Lord Chief Justice of England and Wales)
• B) The Lord Chief Justice of England and Wales
  • head of the judiciary of England and Wales
  • responsible for the training, guidance, and deployment of judges and represents the views of the judiciary of England and Wales to Parliament and ministers

After the Constitutional Reform Act 2005

• C) Supreme Court of the United Kingdom
  • established in October 2009
  • replaced the Appellate Committee of the House of Lords
  • independent, separate from the House of Lords and with its own independent appointments system, staff, budget and its own building
  • Law Lords in office became Justices of the Supreme Court and lost their right to speak and vote in the House of Lords until their retirement as Justices of the new court
• D) Judicial Appointments Commission (JAC)
  • responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice (MERIT remains the sole criterion for appointment)

The Judiciary – Types of judges

• I Superior judges
  • Justices of the Supreme Court – sit in the Supreme Court
  • Lords Justices of Appeal – sit in the Court of Appeal
  • High Court judges – sit in the three divisions of the High Court
  • Puisne judges – sit in the High Court
• II Inferior judges
  • Circuit judges – sit in both the Crown Court and the County Court (barristers of at least ten years’ standing)
  • Recorders – part-time judges sitting usually in the Crown Court (barristers of at least ten years’ standing)
  • District judges – legally trained and paid judges of the Magistrates’ Courts (previously known as stipendiary magistrates; barristers of at least 7-years’ standing)
  • Justices of the Peace JPs – lay magistrates of the Magistrates’ Courts (without legal training and unpaid)

Judicial appointments after CRA 2005

• Judicial Appointments Commission
  • appointments are made solely on merit
  • the Commission is entirely responsible for assessing the merit
  • no candidate can be appointed unless recommended by the Commission
  • the Commission must consult with the Lord Chief Justice and another judge of equivalent experience before recommending a candidate for appointment
  • The Lord Chancellor can
    • a) confirm a candidate, b) reject once or c) ask the Commission to reconsider; has limited powers in relation to recommendation for appointment
  • The Lord Chancellor approves the final selection and then the candidate is formally appointed by
    • a) the Lord Chancellor; b) the Queen (appoints the more senior judges)
  • Supreme Court Judges – selected by the Supreme Court selection commission; selection reported to the Lord Chancellor (he can reject or ask the commission to reconsider – if the person is not the best candidate on merit)

Growing politicization of UK courts

• Recent trends have seen UK courts become increasingly politicized.
• Government decisions have been reviewed by the courts in matters ranging from asylum applications, detention of terrorist suspects, immigration law and equal opportunities issues.
• UK judges are increasingly involved in the arena of political decision-making.

Lay Magistrates

Objectives

• Explain who are the magistrates
• Explain the requirements of a magistrate
• Describe the duties and responsibilities of magistrates
• Evaluate the contribution of the magistrates to the justice system.

Who are Lay People?

• Why do lay people have such an important role in the English Legal System?

Lay People

• …are people who are not legally qualified
• …and include jurors, lay magistrates and people who sit as part of a panel at tribunals
• …have been involved in the English Legal System (ELS) for hundreds of years
  • Their earliest use dates back to 1195 when Richard I appointed knights as 'Keepers of the Peace' in unruly areas
• …but why???

Reasons of having lay people in the legal system

• The integration of lay people into the English legal system has been very successful and some of these reasons include that:
  • It involves people with local knowledge.
  • come from a wide range of careers not just a legal background.
  • The cost of engaging lay people is less expensive.

Lay Magistrates

• There are around 30,000 lay magistrates or Justices of the Peace
• They are dealt with under the Justices of the Peace Act 1997 and Courts Act 2003
• they sit in 2's or 3's as part-time judges in the Magistrates' Court
• Sitting alone, District Judges also hear cases in the Magistrates' Court

Selection

• The Courts Act 2003 states applicants…
  • Must be over 18
  • Although retirement is at 70, anyone over 65 is unlikely to be appointed
  • Live within the area of the court (bench) for which they are to act
  • Must be able to sit at least twenty six 1/2 day sessions per year for which they are paid expenses

Lay Magistrates

• All magistrates sit in adult criminal courts as panels of three, mixed in gender, age and ethnicity whenever possible to bring a broad experience of life to the bench.
• All three members of the panel have equal decision-making powers but only one member, the chairman, speaks in court and presides over proceedings. A qualified legal advisor is available to the panel at all times.
• Magistrates do not require legal training.
• However, all magistrates must undertake a compulsory program of practical training which prepares them to sit in court.

WHAT KIND OF CASES DO MAGISTRATES DEAL WITH?

• Magistrates deal with 3 kinds of cases:
  • Summary offences - are minor crimes e.g. motoring offences, minor assaults etc.
  • Either-way offences - are offences dealt with either the magistrates court or before a judge and jury at the crown court, e.g. theft; if petty theft has been committed the magistrates court will deal with it, if the theft is serious then it will be dealt with in the crown court in front of a judge and jury.
  • Indictable offences- are crimes such as murder, rape, manslaughter, robbery etc. Magistrates do not have a major influence in indictable offences, and these serious crimes must be dealt with in a crown court. If indictable offences are dealt with by magistrates in the magistrates court they have to decide whether to grant bail. Other legal issues such as reporting restrictions will also be considered, and then the case will be passed to the crown court.

THEIR SENTENCING POWERS

• When sentencing lay magistrates will take the following factors into account:

  • The facts of the offence which have been given in court
  • The offenders circumstances
  • The defendants explanation of the offence and any other information in the defendants favour.

• When someone has pleaded or been found guilty the magistrates will proceed to sentencing, where they have to follow a structured decision-making process and sentencing guidelines which informs them of the expected penalty for typical offences. They will also have to take note of case law and any other practice decisions from the higher courts.

• If they think the case is too serious for a magistrates' court then they can refer the case to a higher court, but the sentencing will be a lot more serious.

• Sentencing is different in youth courts, because the magistrates will meet the needs of the young offender.

• Also when magistrates are in a youth court, they will directly speak to the youth offender and decide on what is best for them instead of listening to a legal advisor.

• Magistrates also work in family courts where they will have to make a decision about a child's future. They will be advised by social workers so that they can make a decision that will benefit the child.

• They also work in youth courts, where they deal directly with the youth offender. They do this so that they can meet with the offenders needs and do what is best for them instead of listening to their legal advisor. E.g. if a young person is in court for assaulting someone and the magistrates find out that they have anger issues because of a lot problems at home. Then they will advise the young person to take anger management sessions and maybe speak to counselor about their home issues, and they may also get social services involved depending on what has gone on in the youth offenders life.

WHAT KIND OF SENTENCES CAN MAGISTRATES GIVE?

• A magistrates sentencing powers include:
  • Giving fines of up to £5000 for each offence
  • Community payback orders
  • Probation orders
  • A custodial sentence of 6 months or less (a total of 12 months for multiple offences)

Key Qualities

• Good character
• Understanding and communication
• Social awareness
• Maturity and sound temperament
• Sound judgement
• Commitment and reliability

Magistrates must possess 6 key qualities:

Selection

• Candidates must be 18-70, be able to commit to 26½ days per year and live within the area of their bench
• Police officers, members of the armed forces, bankrupts, those with criminal convictions and MPs are among those who are excluded

APPOINTMENT

• Appointments are made by the Lord Chancellor on the advice of Local Advisory Committees (lay people + magistrates)
• Candidates must possess the 6 key qualities: 'Good character', 'Understanding & Communication', 'Social awareness', 'Maturity & Sound Temperament', 'Sound Judgement' and 'Commitment & Reliability'

TRAINING

• The 'MNTI' is organised by the Judicial Studies Board and delivered locally by Legal Advisers
• It includes training on the roles and responsibilities of the court staff, court procedure, sentencing, social awareness, prison visits, court observations
• New magistrates sit as 'wingers' and may go on to be the 'chairperson' or work in the family or youth courts with further experience & training.

Role and powers…

• Criminal role
  • All criminal cases start in the Magistrates' Court. In such cases magistrates:
    • set the timetable for the case
    • decide bail
    • hear the evidence
    • retire to decide whether the accused is guilty or innocent and, if guilty, decide the most appropriate sentence
    • hear appeals in the crown court with a judge
    • deal with requests for warrants from the police.
  • For the most serious cases e.g. murder & rape, magistrates send these cases to the Crown Court and decide whether bail is granted and if so, on what conditions.
  • Sentences can include conditional & absolute discharges, community sentences, fines to a maximum of £5000 and up to 12 months imprisonment.

Role and powers (cont'd)

• Civil role
  • Hear appeals against a Local Authority decision refusing or granting alcohol licences
  • Magistrates also form Betting and Gaming Committees, which have the power to give licenses to run betting shops
  • Magistrates' courts deal with people who fail to pay fines and other financial penalties
  • Magistrates' courts deal with unpaid Council Tax.
• Families and young people
  • Some magistrates are specially trained to deal with family cases. These cases may involve a young person who is at risk of serious harm, or, a family dispute concerning the breakdown of marriage and the care of children.

Justices' clerks [Legal Advisors]

• Because lay magistrates are not legally qualified, they are assisted in court by a Justices' clerk now referred to as 'Legal Advisors'
• They must have been either a solicitor or barrister who has served as an assistant to a justices' clerk for 5+ years
• Their function is to give advice on the law, procedure and sentencing as stated in s.28(4) Courts Act 2003
• They must never assist in the decision making of the case - Rv Eccles Justices

District Judges of the Magistrates' Court

• Apart from lay magistrates, there are about 130 District Judges (Magistrates' Courts) who are paid full-time professional judges earning c.£103,000 p.a.
• They must have been a solicitor or barrister for at least 7 years so often hear the more complex cases
• District Judges have the same powers as a bench of 2-3 magistrates i.e. he or she may sit alone, except in the Family Court
• Most sit in London and larger cities and are appointed by the Lord Chancellor
• Until 2000 they were known as 'Stipendiary Magistrates'.

Composition of Magistrates

• “Middle-class, middle-aged and middle-minded.” – middle classes are over-represented
• Women are well represented (1/2 of lay magistrates)
• Ethnic minorities are still slightly under-represented

Training

• Newly appointed magistrates have to achieve 3 basic competencies:
  • Managing yourself – focusing on some of the basic aspects of self-management in relation to preparing for court, conduct in court and ongoing learning
  • Working as a member of a team – focusing on the team aspect of decision-making in the Magistrates’ Court
  • Making judicial decisions – focusing on impartial and structured decision-making decision-making

Retirement & removal

• Lay magistrates cannot hear cases after the age of 75
• Lord Chancellor can remove a lay justice:
  • a) Incapacity or misbehavior
  • b) A persistent failure to meet such standards of competence as are prescribed by a direction given by the Lord Chancellor or
  • c) Where the LC is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions

Role

• 2 or 3 lay magistrates sit together to form a Bench. They have wide powers over criminal cases. They have jurisdiction to:
  • a) Try all summary offences
  • b) Deal with the first hearing of all indictable offences and then transfer cases to Crown Ct
  • c) Hear applications for bail
  • d) Issue arrest and search warrants

Role

• Specially trained lay magistrates also sit in the Youth Court
• Lay magistrates also have jurisdiction to deal with the following civil matters – licensing appeals, enforcing demands for council tax, family cases
• Each Bench is assisted by a Magistrates’ Clerk who guides the magistrates on questions of law, practice of law, practice, and procedure.

Advantages

• There is involvement of lay people with local knowledge
• Having 3 magistrates on a panel is likely to give a balanced view
• Magistrates come from a greater cross-section of society than professional judge
• As they are only paid expenses, the system is cheaper than using professional judges
• Improved training and appraisal should improve the quality of the Bench

Disadvantages

• There is much higher conviction rate in the Magistrates’ Court than in the Crown Court. This leads to allegations of bias in favour of the police and prosecution.
• There is not a balanced cross-section of society as the middle classes are over-represented on the Bench.
• There is inconsistency in sentencing and granting of bail
• Lay magistrates lack legal knowledge and may rely too heavily on the clerk.

Questions

1. Who are lay persons under the ELS?
2. What types of cases does a lay magistrate handle?
3. Name 3 advantages and disadvantages of lay magistrates.