Wednesday, February 24, 2010

A lay bench or a DJ?

The Bystander blog, written by an anonymous magistrate, has a readership to envy. However, the comments section will quite often degenerate into serious discussion and legal analysis, neither of which have any place on the Internet. On a recent post, an apparent colleague held forth thusly:

"...Most prosecutors breathe a huge sigh when a bench wanders into court. Id rather a DJ any day. At least the work gets done quickly and by applying it to the sentencing guidelines instead of a bunch of middle class volunteers trying to square a round hole into their concept of justice...."

So, do prosecutors prefer a lay bench or a DJ? Well, in a typically lawyer-like fashion, the answer is, "it depends".


Timing

If I haven't had time to read the files (perish the thought), then a lay bench known for a fondness of tea and biscuits is a blessing. I have time to read, and they may occasionally have to retire to consider a decision when a DJ wouldn't have to do so.

External events can also have a motivating effect. An extremely popular London and Western Circuit DJ has, for example, been known to speed proceedings along to such an extent that the afternoon session of the final day of the fifth test was enjoyed in full. By those of us who have time for such fripperies, and didn't have to scurry back to the office, that is.

As HMCS continues its drive for efficiency, or "churning", as I rather disparagingly call it, such matters will continue to be important, and speed will continue to be the "benchmark". But what about the quality of justice?


Quality of justice

That is such an ephemeral notion that regrettably, a little discussion is unavoidable. Acquitting the guilty and condemning the innocent, the Lord detests them both (Pr XVII.XV). That is the nub of the problem. Short of the very highest court, before which, we are told, we each make but one appearance, the best we can do is to examine the evidence with rigour and a scrupulous lack of bias.

I have been reading Souvenirs from the Crown Court, a book by Andre Gide about his jury duty. The jurors at the turn of the last century were regularly voting to convict people they felt were guilty of something, if not this particular crime. Such practices, I hope, are rare today.

I have, thus far, been extremely lucky in my career, and have rarely encountered a bench which has given me cause to stop the drinks trolley on the train home. Occasionally decisions don't go your way, and you're convinced they're wrong, but that's the point -- it's their decision that counts. I will add that it's basically a waste of type stereotyping a lay bench; the diversity is astonishing. I have appeared before a Harvey St consultant, a director, and an unemployed single mother, all on the same bench.

Slightly more often, however, I have had reason to believe that one or both of the wingers are, let's say, a little sharper than the chair. Experience has taught me that it's not sensible to say "Look, just ask your wingers, Sir, they've got it already, and I'm about to miss the fast train back to town."

That said, the quality of decisions is very high. I rarely encounter decisions that I think are wrong, and I rarely encounter wild departures from the sentencing guidelines -- DJs are more prone to that, if anything.


Summary

I relish a good legal argument with an interventionist DJ who clearly thinks I'm wrong. I love winning such arguments even more, even if that seldom happens. Such pace and to-and-fro legal debate is rare (but not unheard of) with a lay bench. For a long list or a juicy trial, you can't beat a good lay bench. They are well-trained, sensible, unvaryingly polite, usually quite jovial, and I have almost always enjoyed appearing before lay benches. They have a healthy dose of cynicism where required (namely, when the prosecutor is making legal submissions), and usually grasp the human aspect of the case very quickly.

So, in summary, it depends.

The future?
I find it quite sad that the government seems so intent upon eradicating lay benches entirely. For me, a sensible way forward would be to extend their sentencing powers to two years, keep more work out of the Crown Court, which is by far the more expensive way of doing things, and have more lay benches doing trials.

34 comments:

  1. Thanks for your balanced analysis - and vote of confidence in magistrates' decision-making.

    Readers should remember that magistrates are volunteers and it is not our day job. We also sit in threes so we have to discuss a decision amongst ourselves, which a single DJ doesn't of course. So we will take a bit longer, but do bring a wider range of background and experience to the decision.

    In my experience, every magistrate has an overwhelming commitment to being fair to both offender and victim if there is one.

    Your comments about chairs and wingers: to the observer the chair may seem more important but all three have exactly the same voice in any decision.

    Having non-legally trained justices for minor offences is a quirk of our justice system and not many other countries have it, but it would be a shame if it was lost.

    I think most jp's would be content to deal with more serious matters - certainly up to a maximum of twelve month's custody.

    ReplyDelete
  2. Now that I finished chortling over your magnificently deadpan first sentences ...

    The commenter appears to miss the point of the courts. They are not there for the convenience of prosecutors, and if he has a problem with the conceptions of justice of these 'middle-class volunteers' he would do well to remember that it is their concept of justice that is the one that counts - not the prosecutor's. They are the ones who have sworn to do justice according to the law, or whatever the wording is these days - and if that honourable oath is at odds with the sentencing guidelines, guess what is supposed to win? Justice and the law, that's what.

    I am not at all in favour of the increasing professionalisation of society, from politicians to the judiciary, to charity fundraisers and so on. I do occassionally meet people on trains who say that everythig should be run by professional administrators - I can think of few worse fates for the country than for it to be run entirely by people who think that more administration is a good thing.

    It seems to me that, in the main, justice is being done in our Magistrates courts - lets have more of it.

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  3. I think this is a very fair summing-up, but I amy be biased!

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  4. A good item. In Scotland there has been a recent re-affirmation of the value of "lay" justice:

    http://www.scotcourts.gov.uk/district/index.asp

    The Scottish Parliament accepted the MINORITY view of the McInnes Committee and therefore retained JPs.

    Both DJs and Lay benches have their pros and cons. There is little doubt that, generally, a DJ will progress case management decisions more quickly and will be more suited to cases where legal argument is to arise. For trials (which ultimately turn on fact-finding) lay benches are a very good form of trial and are very fair.

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  5. The McInnes Report (Note of Dissent) stated:

    "Lay justice is a powerful expression of community participation in the regulation of society. It seems inconsistent to retain it in the most serious cases - in which completely untrained juries make key decisions on the evidence - but to remove it in the context of summary justice.

    Reflecting the views of Lord Justice Auld on English and Welsh magistrates, Scottish justices "have an important symbolic effect of lay participation in the criminal justice system which should not be undervalued". The existence of citizens across the country, with a practical understanding of what the law is and how it works, is of great importance in a democracy.

    That lay justice is not found in other parts of the world, apart from England and Wales, ignores the fact that lay involvement depends on the cultural and political tradition of a country. The role of Scottish justices of the peace has evolved over a period of 400 years and is capable of further evolution."

    That was the view which prevailed in Scotland and the idea of creating "Summary Sheriffs" was not adopted. Of course, JPs in England/Wales have a much longer history than their Scottish counterpart - almost 650 years. Lay benches are now more "diverse" and far better trained than at any time in their history.

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  6. Truthfully, I think as long as lay benches get £11 per day meal allowance and a DJ costs £140k, cheapness will rule the day.

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  7. There is a lot of misconceptions concerning JPs even in the MOJ. These days we rarely leave the bench except for lunch and make our decisions in court. The delays we experience are mainly due to defence solicitors wanting time with their clients (usually because one or other is late). Or that the CPS has not prepared for the case in question. Although I will add that many Associates are very good.

    The problem with some DJ's ( and I have sat in court studying them) is they like an audience and play to the court. They are not Rumpole of the Bailey and if that's what they like then go and be a barrister in the Crown Court. I see many non sentencing guidelines decisions made, they refuse to fill out required forms in court for the probation, which we wouldn't get away with.

    But my main concern is them doing trials. How can one person justly sit deciding another's guilt or innocence? Crown Court have juries, appeal courts have more than one judge and Magistrates have three. I am surprised no one has challenged this in the HRA. No the answer is not speedy justice but JUSTICE.

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  8. Recently during a "multi hander" with each defendant separately represented by counsel and applications coming thick and fast for various reasons, as chairman I was asked by one of the aforementioned, "Sir, is your decision based on the effect of your decision on court statistics?. The question was replied to in no uncertain measure my point now being would such a remark have been directed to a DJ? During the same trial an application was made by another barrister to adjourn to a future date as part heard. I announced that the matter would be adjourned until the next day to which he replied, "Did you hear my application sir, it was to a future date part heard." I answered, "yes". Would these comments, and there were many many more similarly directed at the bench and the legal adviser, have been made to a DJ?

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  9. @The Justice of the Peace: Sounds to me like a case for swift application of the Contempt of Court Act - and cue the grovelling apologies and them not doing it again. Ever.

    I guess they wouldn't do it to a DJ since they know he is more likely to use these powers.

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  10. It's always healthy to get a view from the other side of the bench, and very gratifying to see your comments on the quality of decisions from the lay bench, and your closing paragraph.

    There's no doubt that DJs can work faster than the lay bench. But a good lay bench doesn't hang around, and the extra minutes they take over decisions is negligible in comparison with the weeks of delay arising from other parts of the system.

    The lay bench does have plenty to learn about case management, though. I think that's changing; the JPs now being approved to chair the courts have gone through MNTI and CJSSS training and have a much greater awareness than the 'old school' of the need to make progress. I suspect that those who wish to do away with the lay bench - more in the MoJ than in Parliament, I suspect - won't be swayed by that, as a different agenda is at work.

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  11. I'm glad I don't go there any more - to Magistrates' Courts that is... The most dispiriting places on the planet.

    I do remember defending in Magistrates Courts and regularly having a sense that justice was not been domne by lay benches - a view reinforced when they would hear the proscutor and then proceed as if acting on orders without inviting the benefit of my opinion. I used to rise wearily on principle even if I had notheing really to add - just to make the point. 'HELLO! I'M HERE...'

    Yuck.

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  12. Ed (not Bystander)March 6, 2010 at 11:19 AM

    And did they always convict?

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  13. The law has moved a very long way in recent years- too complicated,too expensive and too slow.
    How lay magistrates can be expected to keep up with things ,even with the sterling help of a good legal adviser is very hard these days and by default to do so the amount of training and expense has grown expedentionally. That together with loss of earning allowances there really is not that much in the cost of a bench and a DJ.

    Yes, DJ's may be quicker,a bit more on the ball with the law and therefore can get on with things and harder to hood-wink, but that's not it all. In my view there is definetly a need for both Mags and DJ's and in the current climate its about time someone bit the bullet and increased the jurisdiction in the Mags to 2 years. This would allow more work to be dealt with at a more sensible level and save everyone a huge amount of time and money, which has got to be a good thing in the current climate.

    It seems frankly bizarre that a youth can get effectively a 2 year custodial sentence, has NO right to trial by jury, is arguably much more vunerable than an older person and the affects of a conviction can ruin a life not yet begun. However, once 18 in a magistrates court the maximum sentence drops to 6mth and ( for one offence) and right of election for a trial that rarely is comes into play is just wasteful,wasteful,wasteful.
    A great majority of that work currently done in the crown court could come back to the Mags and done far,far more cheaply without any detrimental effect!

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  14. I'm sorry but my experience of Magistrates is that they are not from a diverse background, I've never met a Binman, or very many manual workers sitting as magistrates and there is a clear bias to middle class do-gooders who know little or nothing about the type of person who comes before them- usually the poor, disadvantaged of society who in the main just can't cope with life ,rather than being intrinsically bad

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  15. Good point- Anonymous 8th March
    Given the MoJ is almost insolvent it seems the right time to re-jig the jurisdiction of our criminal courts. It seems ludicrous to keep spending huge amounts of money on all these cases going to the crown court, to be dealt with not much more above the current sentencing limits. Therefore, a modest increase in jurisdiction say to 2 years and a collaborative arrangement made between DJ's and Magistrates could produce a much more efficent court process. If anyone is wondering about fairnes Magistrates could concentrate on trials and DJ's slogging through the volumne business and dealing with the top end sentencing exercises.
    Something has to be donebefore the whole system implodes

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  16. Another prosecutorMarch 27, 2010 at 8:04 PM

    I must be one of those prosecutors who breathe a huge sigh when a bench wanders into court. Their inefficiency in a busy London court makes it very painful to do a remand court with them.

    It is not fun at all when they need to retire and use 10 minutes to understand what 'pleading to the second limb of the bail act' means when I still have more than 30 cases on my bench.

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  17. I don`t know if "another prosecutor" is trying to provoke but if I were to make remarks re the inefficiency and incompetence of so many prosecutors especially when cross examining witnesses I`d be here all day. I can assure him that some of us have a mental capacity that informs us that when CPS have too much to do and can`t do it properly the fault lies with others. If you can take criticism read my posts of March 16, 17, 18 and 30 before you allow your typing finger to express some more such thoughts.

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  18. Another prosecutorApril 23, 2010 at 5:10 PM

    'JP': I absolutely agree with you that there are problems with the CPS - as pointed out by the recent HMCPSI report. Indeed, every part of the CJS has efficiency problem. And, if I am allowed to express my personal political opinion here (and not trying to 'provoke' as you claimed), I'd say, on the court's part, lay magistrates are creating inefficiencies in the system.

    This inefficiency is most obvious when one is in a remand court. Sometimes it is due to the quality of individual JPs (and I do NOT retract my previous comment), but most of the time the delay is due to the simple fact that, when you have 3 people making the decision, there is a need to discuss. Further, as JJs are not legally qualified, legal advisers have to be consulted on the law - which further prolongs the time of case handling. A DJ, meanwhile, can handle about 50% more cases in a remand session than a bench of lay magistrates. This is shown by the fact that a DJ remand court will ALWAYS offer help to a JJs remand court but not vice versa.

    The English legal system treats 1 DJ = 3 JJs. If they are supposed to be equally capable of making the right decision, then, from an efficiency point of view, I don't see any justification for JJs to continue to sit in remand courts when DJs can do much more in quantity with the same quality.

    Admittedly, this problem is less serious in trial courts. And I must say - I enjoy doing trials in front of a lay bench.

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  19. quoted above
    The English legal system treats 1 DJ = 3 JJs. If they are supposed to be equally capable of making the right decision, then, from an efficiency point of view, I don't see any justification for JJs to continue to sit in remand courts when DJs can do much more in quantity with the same quality.


    I presume JJ is a typo for JP! Your arithmetic of 1 = 3 is cynically arrogant. Three ensures a mini jury of peers as is well appreciated both within and without the legal profession. Many decisions in remand courts are made by magistrates without retiring. Much of the activity in such courts is without difficult legal problems and is simply procedural requiring no additional time. Two final points; the "lay" magistrate has been around a lot longer than the DJ or his predecessor and JPs take no pay...no kudos for that but an indication of how seriously we take the job. We can resign, and some do, on principle. The DJ won`t. S/he as a professional will apply whatever law the state promulgates. S/he needs bread to live [unless there is a return to private legal practice].

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  20. Another ProsecutorMay 19, 2010 at 5:29 AM

    'JP'

    JJs is not a typo. This is how lawyers (clerks, CPS, counsel, solicitors) refer to you and your colleagues - as in Justices.

    I am at loss as to why you think my arithmetic is wrong. You go into court 1 - 1 DJ sits on the bench; you go into court 2 - 3 JJs sit on the bench. They are doing the same job, running the same type of court. How can that be 'cynically arrogant'? That is a legal fact which you seem to have difficulty in accepting.

    I have no intention to doubt the dedication of JJs. But, from what you said above, it seems that you are doubting the dedication and professionalism of DJs. Are you suggesting that all DJs are there simply for financial gains? And your statement of 'S/he as a professional will apply whatever law the state promulgates' is extremely alarming. Last time I checked, applying the law is the basic job description for a magistrate. I sincerely hope that JJs out there are not doing what they please without applying the law set down by Parliament.

    Taking no pay does not mean JJs are saving money. The huge costs in, for example, getting JJs legally trained, getting JJs rota organised and expenses paid, and, most importantly, the continuing costs in having a legally qualified clerk to sit with you, plus the inefficiency as I mentioned earlier, all add up the bill.

    Now that the new govt has come in, I can see further cuts in HMCS. Some courts have already introduced 'Court Assistants' to sit with DJs to further lower the costs of running the court service.

    So, if we talk legal fact - yes 1 DJ = 3 JJs. If we talk money and efficiency - yes, having more DJs to replace JJs in the running of summary justice is definitely the way to go.

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