Criminal Courts and Lay People - Revision

Past Exam Questions• Knowledge and Understanding:

• Outline both of the following – the trial and appeal courts that can hear adult criminal cases and the types of cases dealt with by these courts

• Discuss the process of qualification, selection and appointment of lay magistrates• Discuss the qualifications for appointment as a lay magistrate and briefly explain the training undertaken by a

lay magistrate after appointment• Explain the work of lay magistrates in criminal cases• Describe the role of lay magistrates when dealing with an either-way offence• Describe how jurors qualify and are selected for jury service• Explain the role of jurors in a Crown Court trial

• Evaluation:• Discuss advantages of using lay persons (juries and lay magistrates) in criminal courts• Discuss disadvantages of using lay persons (juries and lay magistrates) in criminal courts• Discuss the disadvantages of either jurors or lay magistrates• Discuss the advantages of either lay magistrates or jurors

Outline both of the following – the trial and appeal courts that can hear adult criminal cases and the types of cases dealt with by these courts• All of the following:• Outline of trial and appeal courts:

• Magistrates Courts and Crown Courts as trial courts• Crown Court, Court of Appeal (Criminal Division) and Supreme Court as appeal courts

• Outline of types of cases dealt with:• Summary offences• Either way offences• Indictable only offences

Trial Courts for Adult Criminal Cases• Magistrates’ Court• Case heard by:

• District Judge; or • 3 Magistrates assisted by a legal advisor

• Crown Court• Case hear by:

• Jury of 12 lay people who decide on facts and verdict of guilty/not guilty• Judge who directs jury on issues of law and carries out sentencing

Appeals for cases from the Magistrates’ Court

Court for Initial Trial – Magistrates’ Court

*Crown Court (against conviction or sentence)

Court of Appeal (Criminal Division)

Supreme Court

Appeals for cases from the Crown Court

Court for Initial Trial – Crown Court

Court of Appeal (Criminal Division)

Supreme Court

Three different classes of Criminal Offence:• Summary offences – minor offences – can only be tried in

Magistrates’ Court – e.g. assault• Either way offences – may be tried in either Magistrates’ Court or

Crown Court – e.g. theft• Indictable offences – serious offences that can only be tried in a

Crown Court – e.g. murder

Discuss the process of qualification, selection and appointment of lay magistrates• Need all 3 of the following:• Qualification • Selection• Appointment

Qualifications • No special qualifications • Aged between 18 and 65 (have to retire at 70 and expected to serve at least 5 years)• Courts Act 2003 – expected to live or work within or near the local justice area to

which they are allocated• Must be willing to take Oath of Allegiance • Must be able to sit for at least 26 half days a year• Candidates make formal application either in response to an advert or by making an

enquiry through the Government website• In recent years, a number of younger magistrates have been appointed including a

21 year old DJ in Horsham and a 19 year old law student in Pontefract, though majority are much older.• Disqualified groups: police officers, traffic wardens, probation officers, and members

of their immediate families; members of armed forces, people with certain criminal convictions, and undischarged bankrupts

Qualifications – Key personal Qualities1. Good character – personal integrity, keeping confidences, respect and trust of others2. Understanding and communication –understand documents, identify facts, follow

evidence, concentrate for long periods3. Social awareness – appreciation and acceptance of the rule of law, respect for people

from different ethnic, cultural or social backgrounds, understanding of local community4. Maturity and sound temperament –awareness and understanding of people, sense of

fairness, humanity, courteousness 5. Sound judgement - think logically, weigh arguments, come to sound decisions, open

mind, objective, recognising and controlling prejudices6. Commitment and reliability – committed to serving the community, making time

commitments, willing to undergo training, in sufficiently good health, have support of family and employer

Selection• Need to show the key personal qualities in application and interview• Applicants complete a standard application form • Local Advisory Committee arranges interviews for shortlisted

candidates after references have been checked. There are 2 interviews:• 1st – examines candidate’s character• 2nd – comprises sentencing and trial exercises – assesses candidate’s

judgement

Appointment• Justices and Peace Act 1997, as amended by Courts Act 2003 – Lay

Magistrates are appointed by the Lord Chancellor on the advice of county local advisory committees• After interviews – potential appointees reviewed by the local advisory

committee to ensure that a balanced bench can be achieved (age, gender, ethnic background, occupation)• Background checks are carried out• Committee submits recommendations to Lord Chancellor who usually

accepts them and makes the appointment• Final stage – “swearing in” of new magistrates by a senior circuit judge• On appointment, all magistrates receive initial training before sitting in

court and ongoing training for the first 18 months

Discuss the qualifications for appointment as a lay magistrate and briefly explain the training undertaken by a lay magistrate after appointment• Qualifications:• Age• Key personal qualities• Disqualified/ineligible groups

• Training:• Judicial Studies Board and Court Clerk• Initial Compulsory Training• Initial Mentoring• On-going training and appraisal

Qualifications • No special qualifications • Aged between 18 and 65 (have to retire at 70 and expected to serve at least 5 years)• Courts Act 2003 – expected to live or work within or near the local justice area to

which they are allocated• Must be willing to take Oath of Allegiance • Must be able to sit for at least 26 half days a year• Candidates make formal application either in response to an advert or by making an

enquiry through the Government website• In recent years, a number of younger magistrates have been appointed including a

21 year old DJ in Horsham and a 19 year old law student in Pontefract, though majority are much older.• Disqualified groups: police officers, traffic wardens, probation officers, and members

of their immediate families; members of armed forces, people with certain criminal convictions, and undischarged bankrupts

Qualifications – Key personal Qualities1. Good character – personal integrity, keeping confidences, respect and trust of others2. Understanding and communication –understand documents, identify facts, follow

evidence, concentrate for long periods3. Social awareness – appreciation and acceptance of the rule of law, respect for people

from different ethnic, cultural or social backgrounds, understanding of local community4. Maturity and sound temperament –awareness and understanding of people, sense of

fairness, humanity, courteousness 5. Sound judgement - think logically, weigh arguments, come to sound decisions, open

mind, objective, recognising and controlling prejudices6. Commitment and reliability – committed to serving the community, making time

commitments, willing to undergo training, in sufficiently good health, have support of family and employer

Initial Training• Organised by Judicial Studies Board• Carried out locally often by Court Clerk• On appointment, all magistrates receive initial compulsory

training before sitting in court – intensive induction course to familiarise them with court procedures and theory and practice of sentencing• Training is based on competencies – skills magistrates need to

develop:• Managing yourself – preparing for court, conduct in court, ongoing

learning• Working as a member of a team – team aspect of decision making in MC• Making judicial decisions – impartial and structured decision-making

Ongoing Training1. Initial Training – as per previous slide. Before sitting in court. Then new magistrate sits

with 2 experienced magistrates2. Mentoring – specially trained experienced magistrates act as mentors and support the core

training magistrates receive in their first year3. Core Training – further training during the first year4. Consolidation Training – at end of first year – builds on learning from court sittings and core

training5. First Appraisal – 12-18 months after appointment – if successful magistrate is deemed to

be fully competent • Magistrates in Youth Court or Family Court receive additional training • Chairperson – training in managing judicial decision-making –focuses on working

with the clerk, managing the court and ensuring effective, impartial decision-making

Other Combinations • Could also be any combinations of:• Qualification• Selection• Appointment• Training

Explain the work of lay magistrates in criminal cases• At least 3 of:• Initial matters - bail and custody, granting/extending Legal Representation

orders• Trial of summary/either way offences – hear evidence, decide

guilt/innocence, decide sentence. Taking advice of legal advisor• Sending serious cases (indictable or either way offences) to Crown Court for

trial or sentence (either way offences)• Other Functions - Sit on appeals in Crown Court, issue search or arrest

warrants, Youth Court

Initial Matters• Hear applications for bail under Bail Act 1976• Have the power to grant or extend Legal Representation Orders

Trial of Summary and Either Way Offences• Try 97% of all criminal cases• Sit as a bench of 3 Magistrates• Hear evidence from defence and prosecution• Decide guilt or innocence – decide the facts and interpret the law• Either a unanimous or majority decision• Decide on the sentence• Maximum term of imprisonment – 6 months for a single offence, 12 months for

multiple offences• Maximum fine - £5000• Advised on points of law and their sentencing powers by legally qualified legal advisors

Sending Serious Cases to Crown Court• Deal with preliminary matters for Indictable offences and Either Way

Offences which are to be sent to the Crown Court• Commit all indictable cases and many either way cases for trial in CC• Can send Either Way Offences to Crown Court for sentence if they feel

sentencing powers are inadequate

Other Functions• Issue search and arrest warrants• Authorise extension of custody to a maximum of 96 hours• Sit on appeals in the Crown Court with a Circuit Judge• Youth Court – staffed by magistrates – must receive additional

specialist training

Describe the role of lay magistrates when dealing with an either-way offence

• All 3 of:• Pre-trial• Trial as summary offence • Post-trial – deciding sentence with reference to maximum sentencing powers,

committing case to Crown Court for sentence if their powers are insufficient

Pre-Trial• All either-way cases start in the Magistrates’ Court• Defendant (D) gives an indication of how he will plea – called a plea before venue• If D pleads guilty:

• Sentenced at the Magistrates’ Court; or• Magistrates send case to the Crown Court for sentencing if they feel their sentencing powers are insufficient

• If D pleads not-guilty, decision made about whether the case is heard in the MC or CC.• Magistrates decide if they have jurisdiction (whether it is the type of case it would be appropriate for them to try) • D chooses which court they want to be tried in

• If Magistrates decide they don’t have jurisdiction, case is sent to CC for trial• If D chooses CC, case is sent to CC for trial• If both Magistrates and D choose to have case heard in Magistrate’s court, it is heard like a summary offence• Either a trial date will be fixed there and then, or else the case will be adjourned for a period of weeks for a

pre-trial review• Pre-trial review (if there is one) – magistrates fix a date for the trial taking into account the availability of the

witnesses and likely length of the trial• If case is adjourned for any reason, magistrates make a decision on bail or custody• Magistrates make a decision on funding for D

Trial as a Summary Offence• Sit as a bench of 3 Magistrates• Hear evidence from defence and prosecution• Decide guilt or innocence – decide the facts and interpret the law• Either a unanimous or majority decision• Advised on points of law and their sentencing powers by legally

qualified legal advisors

Post Trial • Decide on the sentence• Maximum term of imprisonment – 6 months for a single offence, 12

months for multiple offences• Maximum fine - £5000• Can commit to Crown Court for sentence if they feel their sentencing

powers are insufficient

Describe how jurors qualify and are selected for jury service• Need all 3 of the following parts:• Qualification• Reasons for not qualifying• Selection (include briefly challenging and vetting)

Qualifications • Juries Act 1974, as amended by Criminal Justice Act 1988• Between 18 and 70• On the electoral register• Resident in the UK, Channel Islands or Isle of Man for at least 5 years since

the age of 13

Reasons for Not Qualifying• Exclusions

• Disqualification – Criminal Justice Act 2003:• Custodial or community sentence within the last 10 years• Imprisonment for 5/more years – life-time disqualification• On bail

• Ineligibility • Criminal Justice Act 2003 – those suffering from a mental illness who are resident in hospital or have regular

treatments by medical practitioner

• Excusals as of right• 65-70. • Clergymen, lawyers, police officers, judges can all be jurors

• Excusals at the court’s discretion• Limited understanding of English, students doing public examinations, parents with childcare

commitments or problems, people with prior commitments e.g. booked holidays – may be excused• Likely to be deferred rather than cancelled• Full-time members of armed forces may be excused if commanding officer certifies that their

absence from duty would be prejudicial to efficiency of service• Those who have served in the last 2 years• MPs

Selection• Jury Summoning Officer arranges for potential jurors’ names to be

picked at random from the electoral register by the Jury Central Summoning Bureau • At court, 20 are chosen randomly by the Jury Usher for a particular trial

– they are the “jury in waiting”• In court - they are told the name of D and asked if they know him/her –

if they do they leave the courtroom and return to the jury pool to be used for another trial• Final random selection process takes place and 12 jurors selected for a

jury and sworn in

Challenging and Vetting• Challenging

1. “Stand by for the Crown” – only used to remove a “manifestly unsuitable” juror

2. “For Cause” – when a juror is personally known by D. 3. “Challenge to the array” –challenge the whole jury panel – on the grounds

that the Summoning Officer is biased or has acted improperly.

• Vetting• Conducted by Prosecution with the written permission of the Attorney

General• Check list of potential jurors to see if anyone appears “unsuitable”• Exceptional circumstances e.g. cases involving terrorism, the Official Secrets

Acts and “professional” criminals

Explain the role of jurors in a Crown Court trial

• Need all 4 of:• General role• During the hearing • Judge’s summing up • Deliberation

General Role• Used in all Crown Court cases where D pleads not guilty• Weigh up the evidence and decide what the true facts of the case are• Judge directs them as to what the relevant law is and they must apply

that law to the facts that they have found and reach a verdict• Partnership – Judge acts as “master of the law” and jury acts as

“master of the facts”.• Jury has sole responsibility for determining guilt

During the Hearing• Listen to evidence of prosecution and defence• Listen to cross examination of witnesses• Listen to summing up of prosecution and defence at the end of the

evidence• May take notes. • Have the opportunity to question witnesses through the judge

Judge’s Summing Up• At the end of the case judge summarises the evidence and directs the

jury on relevant legal issues.• In complicated cases, judge also provides a structured set of

questions to assist the jury in its deliberations

Deliberation• After the hearing, jury go to a private room• No access to mobile phones/computers• They choose a foreperson amongst them to lead the discussion and present the verdict• They try to reach a unanimous verdict• If they jury does not return with a unanimous verdict after a minimum period of 2 hours

and 10 minutes, judge may recall it and advise that a majority verdict may be made• Criminal Justice Act 1967 – majority verdicts of at least 10 out of 12 agreeing are allowed• Discussions in jury room are secret – no one but the 12 members of the jury are present • Contempt of Court Act 1981 – jury members who reveal information about what went on

in jury room risk imprisonmentforeperson announces verdict in public• Jury returns to courtroom and• Jury has no role in sentencing – that is the job of the judge

Discuss advantages of using lay persons (juries and lay magistrates) in criminal courts

• At least 3 points• Do not refer to lay people generally – each advantage should be

specifically about either juries or lay magistrates• At least one advantage must be about juries and one about

magistrates

Discuss disadvantages of using lay persons (juries and lay magistrates) in criminal courts

• At least 3 points• Do not refer to lay people generally – each disadvantage should be

specifically about either juries or lay magistrates• At least one disadvantage must be about juries and one about

magistrates

Discuss the disadvantages of either jurors or lay magistrates

• Stick to either jurors or magistrates

Discuss the advantages of either lay magistrates or jurors

• Stick to either jurors or magistrates

Advantages of Magistrates• Cost – magistrates are volunteers so a generally cost-effective system. In 2003-

2004, magistrates’ expenses = £15 million. To pay professional judges to deal with all criminal cases would cost at least £100 million each year, and switching to CC trials (judge and jury) would be even more expensive• Local Knowledge – usually live within a reasonable distance to court, may provide a

better-informed picture of local life than judges. E.g. in Paul v DPP, case involving “kerb-crawling”, Appeal Court said that the local knowledge of magistrates made it appropriate for them to hear the case• Representative in terms of gender and ethnicity – almost half magistrates are

female and 8.5% from ethnic minorities – roughly reflects the general population. But they are not representative in terms of age or class• Speed in bringing cases to court – most Ds appear before Magistrates within 24

hours of arrest for preliminary hearing. Those summoned to court tried within a few months. CC trials often start a year after D arrested and charged. E.g. 2011 riots – Magistrates’ Courts stayed open overnight and on weekends to provide “instant justice” which would not have been possible in CC

Disadvantages of Magistrates• Inconsistency – inconsistency in decision making of different benches. Research confirmed

that some benches are more likely to impose a custodial sentence then neighbouring benches for similar offences. E.g. 2008 Lincolnshire – 4% of Ds sentenced to immediate custody compared to 14% in Humberside. In 2001 – 21% of those convicted of driving whilst disqualified in Neath, South Wales sent to prison, compared to 77% in mid-north Essex

• Biased towards police – police officers are frequent witnesses in MC cases and become well known to magistrates. Argued that this results in an almost automatic tendency to believe their evidence. E.g. – Bingham Justices ex p Jowitt – speeding case, only evidence that of motorist and police officer, the chairman of the bench said where there was a direct conflict between D and the police, his principle was to always believe the police

• Case-hardened – magistrates hear far more cases than jurors – might become case-hardened and cynical about any defences put forward. Conviction rates in MC higher than CC, but should be noted there are few successful appeals from decisions of Magistrates – less than 1%

• Unrepresentative – disproportionately white, middle class, professional and wealthy - approx. 2/3 have professional or managerial backgrounds, only 4% under 40, over 50% are over 60. Majority of Ds are young from lower socio-economic backgrounds – so trial by Magistrates not trial by “peers”

Advantages of Juries• Layman’s equity – jury acts as a check on the power of Government and

protects against unjust or oppressive prosecution by reflecting a community’s sense of justice – e.g. cases dealing with political and moral controversy. Jury has the power to acquit even if D is clearly guilty:• Ponting – a civil servant believed the Government were deliberately misleading

the Commons and the public about the sinking of an Argentinian warship, sent documents to an MP who he knew would be shocked. Ponting was prosecuted under the Official Secrets Act 1911 but was acquitted by the jury – not because he wasn’t guilty but because the jury refused to convict him. • Kronlid – protesters caused £2m of criminal damage and made no attempt to

escape or hide the damage. Their defence was that they were acting as a last resort – jury acquitted them even though the evidence was clear that they were guilty. • Owen – jury showed sympathy by acquitting a father who injured his son’s killer

despite the strength of evidence

Advantages of Juries• Public Participation – allows the ordinary citizen to take part in the

administration of justice – verdicts seen as those of society rather than the judicial system – satisfies the constitutional tradition of judgement by one’s peers. Lord Denning described jury service as giving “ordinary folk their finest lesson in citizenship”• Better decision making – most cases come down to points of identification and

witness credibility. More likely to be decided correctly as a result of discussion between 12 unbiased and legally unqualified people than by a single judge. Also, because most jurors only sit once in criminal trials, they are not “case-hardened” and take responsibility seriously• Independence – decisions have to be made without outside influence. Bushell’s

Case (1670) ensured that a judge can’t interfere with a jury’s decision making.

Disadvantages of Juries• Lack of competence – particular concern raised about the average jury’s

understanding of complex fraud cases. Roskill Committee 1986 concluded that trial by random jury was not a satisfactory way of achieving justice in such cases since many were “out of their depth”. Because of inexperience or ignorance jurors may rely too heavily on what they are told by lawyers at the expense of the real issues. Evidence from New Zealand 1999 suggested jurors had serious problems understanding key legal terms like “Intention” and “beyond reasonable doubt”• Jury Nobbling – an attempt made by means of threats or bribery to persuade

a juror to return a not-guilty verdict. In 1982 several Old Bailey trials had to be stopped because of attempted nobbling. Criminal Procedure and Investigation Act 1996 introduced new offence of intimidating or threating to harm jurors. Criminal Justice Act 2003 allows a judge to hear a case without a jury if there have been problems with previous nobbling – happened in Twomey

Disadvantages of Juries Cont. • Cost and efficiency – jury trials in CC more expensive than trials in MC. Cost of

lawyers, judges and other court personnel is higher and case will last longer because of need to sum up evidence for jury• May decide unfairly – jurors do not have to give reasoned verdicts and jury

deliberations are secret – can lead to suspicion that some jurors may not decide on the evidence on the case alone. Only find out what happens in the jury room if one juror complains which leads to a retrial. Cases where there is a great deal of media publicity – can be argued juries are more likely to be “swayed” than judges:• West – D, convicted for the murders of ten young girls and women, as well as her own

daughter. Media coverage was extreme. Although understandable the media would have considerably influenced the jurors trying the case who gave a verdict of Guilty.

• Young – jury consulted a Ouija board. • In 2011 one juror, Theodora Dallas, researched the internet to discover the past criminal

record of the D

• Perverse Verdicts – see the advantage of Layman’s equity and cases like Ponting, Owen and Kronlid – juries had the power to acquit these Ds even though they probably thought they were guilty