Justice?

When I say magistrates, I mean lay magistrates, those people who sit on a bench in a magistrates court. There are other people who have the title of magistrate but they fulfil a very obscure legal role so well leave them aside. Two notes: The term justice just means lay magistrate. Occasionally you may notice certain quotes which are followed by letters and numbers in parentheses, this is a reference system used in legal circles. It would take a long time to explain how it works but it means that if you understand it, you can check my facts.

The use of a randomly selected jury of twelve good men and true (any women who feel offended by the fact that it says men, remember that this thing was drawn up in 1689) has long been a part of the English legal system. On paper, its a good system. It allows that the case must be proved such that a substantial majority (at least ten out of twelve) of reasonable (if you believe people are reasonable) people would believe the accused to be guilty. The problems start the second you get past that. Juries are notorious for being swayed by emotional argument, such as Loretta Bobbit claiming that she had to castrate her husband because he treated her badly (Personal interjection: Any women reading this, if your husband or boyfriend or indeed girlfriend is treating you badly, you leave, you do not cut their tonker or any other part of them off). A jury may see having a lousy day as mitigating circumstances. Unlike the USA, a person in this country may be called for jury service once in their life, if at all. Therefore, they do not have the legendary dispassionate disposition to judge a case. An example, a man discovers that his twelve year old daughter has been raped. He procures a gun from somewhere and shoots the alleged rapist and is subsequently brought to trial. Emotionally, most of us would consider that the rapist got exactly what was coming to him. Judged completely cold-bloodedly however, the father is guilty of murder, plain and simple. He may (and any halfway decent lawyer would) make a plea of mitigating circumstances, diminished responsibility or temporary insanity but the fact remains that he went out and shot a man he had procured a gun for the express purpose of shooting. Thats attempted murder. If the suspect dies, that is murder. Regardless of our personal feelings, if we wish to avoid lynch mob rule (which we havent but thats another essay) then we must uphold the law as it stands. If we dont agree with the law, there are accepted channels to change it (such as jury equity, Ill come back to that because its a doozy). Juries are very prone to being dominated by one or two strong minded individuals, ever notice that the people with the strongest views are usually the most unreasonable ones? The greatest flaw with juries is their total unfamiliarity with the law. As expert witnesses become more common, a courtroom will often find itself awash with legalistic or technical terms far removed from day-to-day life, the jury speaks for many of us when they say huh? Many a guilty man has and will walk free because the jury didnt understand the evidence. For example, the difference between murder and accidental homicide are the Latin terms actus reus (guilty act) and mens rea (guilty mind). Proving actus reus means proving that you committed the act, mens rea means proving that you intended to commit the act or acted in such a way that the actual outcome could have been foreseen. Now try explaining to a jury the very formal and legalistic ways that mens rea must be proved beyond all reasonable doubt. That phrase is important because it is the necessary part of convicting anybody, that you must have no doubt that the accused is guilty beyond the possibility of something so unlikely as to be virtually impossible.

Many would argue that the juries real value is symbolic. That justice must be seen to be done and juries provide an impartial view of events. This can be seen as an elaborate fiction i.e. a pretty lie. Most members of a jury will have reached a view on the outcome of the case long before the last witness is called. Only the most kindly observer could conclude that the jury system is not in need of a total overhaul, if not abandonment. I am not such an observer. However, one note in the favour of juries. Jury equity. A very bright man called Samuel Johnson once said in conversation if the law supposes that, the law is an ass. Well, jury equity is your way of telling the powers that be that the law is an ass. Once all evidence has been brought, the judge will usually direct the jury on their options (a moment open to abuse). If the jury feels that the only option available is a guilty verdict but that the law that verdict is based on is absurd, it can exercise its right to jury equity. Jury equity means that the jury considers the law in this case to be so absurd that it simply refuses to bring a verdict. Judges hate this. Should the jury do this, the accused walks free and the trial officially never happened. I like this system.

On the subject of lay magistrates, it is difficult to find defenders once one gets outside the legal profession and police service. The police forces support for the magistrates court is for one very obvious reason. Magistrates courts are often seen as police courts, with some justification as up until relatively recently, they were. The problem of magistrates courts is such that it is a widely held view in the legal profession that the burden of proof is reversed in a magistrates court i.e. that you are guilty until proven innocent, rather than it being the duty of the prosecutor to prove your guilt. The best (worst) example of this occurred in the words of one bench chairman (magistrate of some standing) when he said Quite the most unpleasant cases that we have to decide are those where the evidence is a direct conflict between a police officer and a member of the public. My principle in such cases has always been to believe the evidence of the police officer and therefore we find the case proved [R. v. Bingham Justices, The Times, July 3, 1974. ALL E.R 2 1974]. What that justice has just said is that no matter how ridiculous the evidence of the officer, we will take his word over yours. The view has only got worse in the intervening twenty-six years. In fact, its been made worse by the magistrates ability to invite certain like-minded individuals to put their name forward for selection (selection being voted in by current magistrates). Occasionally a worthy organisation will put forward a candidate or someone will answer an advertisement, but the selection process means that if your views dont mesh with theirs, god (or your chosen deity) help you. The Home Affairs Committees investigation of freemasonry in the police and judiciary found that of 96 Portsmouth justices who were male, over a third (35 to be exact) were freemasons. That statistic has remained pretty constant due to the fact that masons will resign shortly before their candidacy and sign up again immediately thereafter.

Horrifying as that is, its not the big problem with justices. One of the big problems is that they are too white, Christian, middle-class and old to be judging an offender who (statistically) is usually young (average age of first offence: 17 for males, 15 for females), working-class and black. Racially, less than two percent of justices are non-white. In terms of class, the results were even more depressing. The 1993 Magistrates Yearbook listed seven magistrates living on a street of 43 houses. In the same volume, less than one percent of magistrates lived on housing estates. The reasons offered for this generally amount to not enough people applying (Ill be back to this one too). More honestly, from one magistrate: Well, if a persons still on the shop floor when theyre of age to be appointed then they probably havent got what it takes to be a magistrate. Another oft-heard remark was that the candidate was not of the right calibre (i.e. the right class). This shows why the magistracy is predominantly middle-class and becoming more so. Conservative politics also dominate. Of new appointees in 1994/95, forty-one percent voted Conservative as opposed to twenty-seven percent who voted Labour, the remainder were either abstainers or undecided. No recent statistics are available but in light of the fact that in 1994/95 in Wales (historically a Labour stronghold), Conservatives dominated all but one county, I doubt its changed.

Magistrates tend to be mature, even elderly (which may account for the political bias). A relatively recent survey by the Lord Chancellors department gathered the ages of 875 new magistrates. 78 percent of them were over forty. Around a third were in their sixties. Lord MacKay accepted appointments of magistrates who were over seventy and several who were over eighty. Practicality has a large say in this. Justices are traditionally unpaid (although they can claim expenses) and therefore the majority are retired and have more time to sit in session (a session is one day sitting on the bench, around six hours). The minimum number of sessions a magistrate must sit on each year is 26, that amounts to two or three days a month. Lord MacKay recommended a maximum of 80 sessions a year. That has been largely ignored. Lord Kingsdown, Lord-Lieutenant of Kent expressed the opinion that people expect maturity on the benchso I would not work very hard to get people under forty. The situation gets worse when one realises that eighty percent of advisory committees (the ones responsible for appointing new magistrates) are themselves magistrates. The concept that wisdom comes with age is common but has little truth to it and certainly none in law. Juries are drawn from all age groups and their diversity is seen as their greatest strength so why must magistrates be over forty?

The reason why there are not enough people applying for magistrates jobs is primarily because it is still the commonly held view that justices are legally qualified people. The suggestion that they are not is usually met with incredulous laughter from the layman followed by an outright refusal to accept that this is the case. A legal textbook will tell you that there is always one legally qualified person in court (the justices clerk). Wrong! In the mid eighties all courts in an area were amalgamated under one justices clerk. The upshot of this is that a clerk is usually responsible for several benches, often sitting on the same day. This means that the advice given to court clerks to halt trials to seek advice from the justices clerk is usually impossible. The fact that almost no-body has legal counsel in magistrates courts means that very often there in no legally qualified person in court. The situation is worst in Kent which has fourteen benches sitting in a week and one justices clerk. Records of that clerks record of mental illness are not available but I suspect are quite high.

Given that all criminal cases start in magistrates courts and most (around eighty percent) end there, these facts are scary enough. It gets worse. The county courts (the next court up the ladder) has a conviction rate of around sixty percent, fair enough. The magistrates court has a conviction rate of (from memory) around ninety-six percent (around sixteen percent of whom appeal). Put simply, if you are charged with anything in a magistrates court, the arresting officer could be utterly deaf and blind and in his nineties with a long history of being a pathological liar and mentally unstable but you will (the word is an absolute) be convicted. Get your appeal ready in advance of your trial in a magistrates court because youll need it.

A small ray of hope: The restrictions on who can serve as a magistrate are fairly small. If you are over twenty-one, without criminal convictions and a British citizen, you can apply to serve as a magistrate. Sounds stupid but its true. However, you have little chance of being selected under the current system where eighty percent of people selecting future magistrates are themselves magistrates and looking for people like them. The old adage Justice must be seen to be done cannot be true in Britain until the magistrates bench is just as diverse as the society it represents. In short and finally, on most offences, you have the right to appeal, use it.