Lay Magistrates in the Criminal Justice System: Representing Communities and Diversity Perspectives

1. Use of lay magistrates in criminal justice system

There is a significant number of lay magistrates officiating in magistrates’ courts. Their involvement in the justice system is voluntary and is based on the local knowledge that the bring to the cases. This essay argues that the use of lay magistrates is important to ensure trial by one’s peers, provided that the lay magistrates represent the communities they serve. Evidence from research indicates that although there is some improvement in diversity of the magistracy, there is still underrepresentation of some groups related to race, gender and age.

2. Views related to involvement of lay magistrates

The use of lay magistrates is unique to England and Wales and there are not many comparable jurisdictions that also have such systems. There is now considerable research on the role of lay magistrates. Some of this research concerns the effect of modernization on reduction of lay magistrates’ role; for instance, Crawford writes that involvement of lay magistrates goes is the centre of the participatory democracy in criminal justice system. He argues that the system is central to the English justice system. Davies also argues that magistrates contribute significantly to the judicial system as they take on work almost equivalent to salaried judges in sentencing role.

The concept of lay magistracy is supported on the premise that it is related to the notion of participatory democracy and ‘judgement by one’s peers’ as an inclusive form of justice. The idea is that when the lay magistrates represent the community, the notion of participatory democracy is also applied to the judicial system. However, in order to be a good example of participatory democracy it is also required that the magistracy represents the society and community; therefore, there is now some disquiet on the issue of whether magistracy is truly representative of the community or not. Indeed, this issue of diversity is not just an issue for lay magistrates but the judicial system in general, with there being arguments made for increase in diversity.

3. Importance of community representation and the need for diversity

There is a growing demand for magistracy to be socially representative; developments in the magistracy does show that it is now more representative than before. Magistracy is needed to be more representative of gender and race diversity in the England in order to truly represent the communities that they serve. Recent research shows that 8 per cent of magistrates are drawn from the minority ethnic communities. Similar observations were made in an earlier research which indicated that there is growing diversity in the magistracy.

However, there are also concerns that this is not enough diversity in the magistracy. Calls for more diversity have been made in a report to the Lord Chancellor’s Department (LCD) in 2000 as a response to

response to the Stephen Lawrence inquiry. Lord Justice Auld too spoke about the need to make the magistracy more representative, arguing that the ‘the magistracy is not a true reflection of the population nationally or of communities locally’, and ‘urgent steps must be taken to remove its largely unrepresentative nature’. Further, in 2003, the National Strategy for the Recruitment of Lay Magistrates published by LCD emphasised on the need to recruit magistrates from a diverse spectrum of the population; improve appointment process; and raise the profile of the magistracy. However, Donoghue notes that the discovery and recruitment of range of candidates for appointment is an obstacle in enhancing diversity in the magistracy.

Books

Cuneen M and Bingham R (eds), Magistrates’ Courts and Public Confidence: A Proposal for Fair and Effective Reform of the Magistracy (London: Liberty 2002).

Faulkner D (ed), The Magistracy at the Crossroads (Hampshire: Waterside Press 2012).

Gee G and Rackley E (eds.), Debating judicial appointments in an age of diversity (Routledge 2017).

Sanders A, Community justice: modernising the magistracy in England and Wales (London: IPPR 2001)

Crawford A, ‘Involving Lay People in Criminal Justice’ (2004) 3 Criminology and Public Policy 693.

Davies M, ‘A new training initiative for the lay magistracy in England and Wales – a further step towards professionalisation?’ (2005) 12 Int’l J Legal Prof 93.

Donoghue JC, ‘Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales’ (2014) 77 (6) The Modern Law Review 928.

Morgan R, ‘The magistracy: secure epitome of the Big Society?’ (2013) 91 Criminal Justice Matters 8.

Reports

Auld LJ, A Review of the Criminal Courts of England and Wales (London: Lord Chancellor’s Department 2001).

Courts and Tribunals Judiciary, ‘Serving Magistrates Statistics 2013–2014’ (2014) accessed: http://www.judiciary.gov.uk/publications/judicial-diversity-statistics-2014/

Gibbs P and Kirby A, ‘Judged by peers? The diversity of lay magistrates in England and Wales’ Howard League Working Paper 6/2014, 2014

Websites

Cf. National Strategy for the Recruitment of Lay Magistrates 2003, accessed http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/magist/recruit/natstrat_magrecruit_full. pdf

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