DEFENSE OF THE ENGLISH LAY MAGISTRACY

• NCJ Number: 54835
• Journal: Judicature Volume: 59 Issue: 3 Dated: (OCTOBER 1975) Pages: 140-144
• Author(s): A R RICKARD
• Date Published: 1975
• Length: 5 pages
• Corporate Author: American Judicature Soc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

ADVANTAGES OF USING LAY PERSONS AS JUDGES IN ENGLISH COURTS ARE DISCUSSED.

Abstract

THERE ARE FOUR TYPES OF TRIBUNALS IN ENGLAND--THE LAWYER COURT, THE JUDGE AND JURY COURT, THE LAY TRIBUNAL, AND THE MIXED TRIBUNAL. IN THE LAWYER COURT, A LAWYER JUDGE ALONE DEALS WITH ALL QUESTIONS OF LAW, FACTS, AND FINAL ORDER. IN THE JUDGE-JURY COURT, THE LAWYER JUDGE RULES ON LAW AND SENTENCE, AND THE JURY MAKES DECISIONS OF FACT. IN THE LAY MAGISTRATE COURTS, WHICH HEAR THE VAST MAJORITY OF CRIMINAL CASES IN ENGLAND AND WHICH ALSO HAVE CONSIDERABLE CIVIL JURISDICTION, AT LEAST TWO AND NOT MORE THAN SEVEN LAY JUSTICES DECIDE ISSUES OF FACT, LAW, AND SENTENCE. THESE LAY JUSTICES RECEIVE SOME BASIC TRAINING, AND MANY OF THEM CONTINUE TO STUDY ON A VOLUNTARY BASIS. BUT THE OBJECT OF THEIR TRAINING IS NOT TO TURN THEM INTO LAWYERS. THE LEGAL ELEMENT IN THE MAGISTRATE COURT IS SUPPLIED BY THE JUSTICES' CLERK, USUALLY A BARRISTER OR SOLICITOR, AND ALWAYS EXPERIENCED IN MAGISTRATE COURT LAW AND PRACTICE. THE CLERK ADVISES THE JUSTICES ON RULES OF LAW AND PRACTICE. THE MIXED TRIBUNAL, A COURT COMPOSED OF LAY PERSONS AND LAWYERS ACTING TOGETHER AS JUDGES, IS RARE IN ENGLAND, ALTHOUGH THERE ARE DOMESTIC AND JUVENILE COURTS SO COMPOSED IN LONDON. IN CONSIDERINNG THE APPROPRIATE ROLES OF THE LAWYER AND LAY PERSON IN THE JUDICIAL PROCESS, THE THREE FUNCTIONS OF ANY CIVIL OR CRIMINAL PROCEEDING FINDINGS OF FACT, RULINGS ON LAW, AND IMPOSITION OF ORDER OR SENTENCE SHOULD BE CONSIDERED. THE ONLY STAGE AT WHICH IT IS ABSOLUTELY NECESSARY TO INVOLVE A LAWYER IS THAT OF RULINGS ON LAW. IT IS SUGGESTED THAT THERE ARE AT LEAST TWO ADVANTAGES IN USING LAY JUDGES: (1) LAY JUSTICES ARE LESS EXPENSIVE; AND (2) MORE IMPORTANTLY, LAY PERSONS BRING A BREADTH AND HUMANITY TO THE ADMINISTRATION OF LAW THAT IS OTHERWISE DIFFICULT TO ATTAIN. AN IMPORTANT FACTOR IN USING LAY JUSTICES EFFECTIVELY IS THE RELATIONSHIP BETWEEN THE JUSTICE AND THE CLERK. CAREFUL ATTENTION MUST BE GIVEN TO THE RECRUITMENT, TRAINING, AND REMUNERATION OF COURT CLERKS. ENGLAND'S PROCESS FOR SELECTING LAY MAGISTRATES IS A SECRET ONE, AND PROBABLY WOULD NOT BE ACCEPTABLE IN THE UNITED STATES. THE SELECTION SYSTEM, THOUGH OPEN TO ABUSE, IS HONESTLY ADMINISTERED, PRIMARILY DUE TO THE ESPIRIT DE CORPS THAT PERMEATES ALL LEVELS OF THE ENGLISH JUDICIAL SYSTEM. (LKM)