The deciders

The UK’s magistrate system is unique and has lasted for so long because, quite simply, it works. Jennifer Farrar reports on the legal institution run by non-lawyers

Visitors to this country are often floored by the fact that 96 per cent of all criminal cases are decided by a panel of three ordinary people who are not qualified lawyers or judges. As potty as it sounds, though, the system of using magistrates as a first port of call dates back hundreds of years and is regarded as a jewel in the crown of the UK’s legal system.

According to the history books, the position of Keeper of the Peace was created in 1195 by Richard I, who asked some of his knights to make sure that his laws were being upheld in areas ravaged by civil wars and unrest. As a king’s territory expanded, the number of itinerant judges required to police the king’s law and maintain local justice also increased.

A few hundred years later, Edward III coined the phrase ‘Justice of the Peace’ (JP) when he asked bands of “good and lawful men” in every county to guard the peace, and the term has stuck ever since. King Edward also gave his peacekeepers official powers to “bind over unruly persons to be of good behaviour”, a power that magistrates can also call upon today. Binding someone over was not meant to be a punishment, but was, and still is, used today as a way of preventing someone who is likely to cause an offence from doing so.

So why have we always relied on a group of normal people to pass sentence on their peers?

According to the Magistrates’ Association (MA), one of the advantages of the system is the value of a group decision.

The official blurb of the MA reads: “Anybody, however qualified, who acts as a judge sitting on his own, will carefully guard against his own prejudices. But we all have other prejudices we do not recognise. [These] unrecognised prejudices will tend to even themselves out, and people of equal status on the [magistrates’] bench will, if need be, challenge each other’s assumptions. The group judgment represents one of the greatest common measures of agreement and will avoid individual quirks.”

It is not as if members of the public are let loose on the judicial system, however. JPs have always been guided on legal matters by court clerks, who are experts in the law and who are responsible for advising the bench on current law as well as undertaking the courthouse administration.

Until local government came into being in the 19th century, JPs played a hugely important role throughout history. In addition to their judicial role, they were also responsible for fixing wages, building and controlling road and bridge building, as well as providing basic welfare services to local residents.

Towards the end of the 16th century, JPs were also required to oversee the building of ‘houses of correction’ for the safe detention of rogues, vagabonds and varmints. Their powers reached a sort of peak in 1653, when an Act of Parliament gave JPs the exclusive right to perform marriages – a move that rendered all other forms of the ceremony illegal at a stroke. Great confusion reigned a few years later when the act was repealed, leaving all those who had been married by JPs wondering whether or not their nuptials were still legitimate under the new law of the land. As a result, King Charles II had to pass another act stating that marriages made by JPs were still valid, but JPs have not been responsible for marriage since.

With the advent of the Industrial Revolution and the growth of manufacturing towns, JPs were faced with a slew of new issues raised by trade and labour legal matters. Due to the level of specialist knowledge required, JPs in this field were required to be trained lawyers and became known as stipendiary magistrates, who can sit alone.

The first JPs tended to be appointed because of the clout they had locally rather than being in possession of any natural legal skills. Still, as a book of guidance for JPs went through more than 50 editions by 1600, it seems that 17th century JPs could access training materials if they wanted to.

Today’s magistrates are a far cry from the well-to-do landowners and local dignitaries who used to dominate the bench. Modern guidelines dictate that the bench must represent the local community it serves in terms of gender, ethnicity and politics; they also stipulate that members should be drawn from all walks of life. Although no formal qualifications are required, magistrates need to be in possession

of common sense, intelligence and integrity and have the ability to act fairly; they must also be resident in the local area so that they have an understanding of community issues.

While most of the administrative roles have now disappeared from a JP’s job description, a few – such as the ability to license premises to serve alcohol – still exist today.

Magistrates also have the power to dole out a maximum of a six-month prison sentence and can impose community penalties, fines and compensatory payments.

The criminal cases they deal with fall into two categories: serious and less serious. The serious cases are known as ‘either-way’ offences, such as theft or fraud, which can either be dealt with by the magistrates or be referred directly to the Crown Court. The less serious cases, such as summary offences and driving matters, are dealt with by magistrates only. On certain occasions, magistrates can sit in the Crown Court with a judge and specially trained family panels can also decide issues related to family work. In fact, all magistrates have had to attend compulsory training sessions since 1966 to ensure that they are up to their ever-expanding task.

The former Lord Chancellor Lord Hailsham once described magistrates as being like a “citizens’ army”, and JPs are also referred to as the ‘great unpaid’. One of the most astonishing facts about magistrates is that their decisions are rarely appealed against, and if you add to that the fact that their services come free and are trusted, it is easy to see why the system has been around for more than 800 years.