An essay on the importance and neglect of the magistracy

Criminal Law Review

Volumn 1997, Issue 9, 1997, Pages 627-643

  Darbyshire, Penny ^a  

^a Kingston Law School ^*

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EID: 3042861417     PISSN: 0011135X     EISSN: None     Source Type: Journal    
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References (100)

1. "The Lamp That Shows That Freedom Lives - Is it Worth the Candle?" [1991] Crim.L.R. 740. The present essay is followed by a companion, "For the New Lord Chancellor - Some Causes for Concern About Magistrates" [1997] Crim.L.R. forthcoming.
2. "The Lamp That Shows That Freedom Lives - Is it Worth the Candle?" [1991] Crim.L.R. 740. The present essay is followed by a companion, "For the New Lord Chancellor - Some Causes for Concern About Magistrates" [1997] Crim.L.R. forthcoming.
3. For unwittingly provoking this essay, I thank Paul Roberts. For reading an earlier draft of it and its companion essay and for their lengthy and painstaking comments, I thank Paul Roberts, Nicky Padfield, Professors Mike McConville, Andrew Ashworth, Martin Wasik, Roger Leng, John Jackson and Andrew Sanders. Thanks also to Judge Nicholas Philpot, magistrates Rosemary Thomson and Alec Samuels and clerks Malcolm Marsh and David Bathurst and all the other magistrates and clerks who have commented. Thanks for the help on specific sections of Margaret Ayres, on criminal statistics, of Caroline Ball and Kevin McCormac and of Professors Gwynn Davis and John Spencer.
4. The American experience demonstrates the results of this, taken to extremes. As the rules of evidence and procedural protection have been heaped upon jury trial, in the name of due process, the average Californian jury trial now lasts about six days, with one day, on average, for jury selection. Similarly, while the 1996 Chicago guidelines say jury selection should not exceed two hours, all three jury selections I watched in Chicago in June 1997 took the whole day. Thus, while Americans trumpet their televised trials as demonstrating the fairest legal system in the world, prosecutors avoid jury trial by systematic plea bargaining or reducing the charges (see below). Similarly, jury trial died out in Germany and elsewhere in Europe because of its expense. Note that where jury trial is being reintroduced, in, for instance, Russia and Spain, it is only on a very limited basis (S. Thaman, "The Jury Returns to Continental Europe", St Louis University, paper delivered at the Law and Society conference, St Louis, Missouri, on May 31, 1997).
5. The original "dark figure" was a term used to denote unreported or unrecorded crime.
6. Para. 6.2 warns of the shortfalls in data and states that, while estimates can be made of the shortfall, it is not possible to include the missing figures in most tables on court procedure produced by the Research and Statistics Directorate of the Home Office. One of the statisticians expressed the wish, in rather exasperated tones, that readers would pay attention to their explanations in the appendices of Criminal Statistics. The shortfalls and reasons for them are explained in some depth in Appendix 2. These proceedings cannot be written off as trivia. TV licence defaulters may be imprisoned for non-payment of fines: see C. Walker and D. Wall, "Imprisoning the Poor: Television Licence Evaders and the Criminal Justice System" [1997] Crim.L.R. 173.
7. Cm. 2263, at p.2.
8. Cm. 3421 (1996), especially Chapters 6 and 7 and Cm. 3290 (1996), Chapter 6.
9. Baldwin and McConville drew attention to this in Courts, Prosecution and Conviction (1981), Chapter 3. These acquittals were examined again for the Royal Commission on Criminal Justice by M. Zander and P. Henderson, Crown Court Study, Research Study 19 and by B. Block, C. Corbett and J. Peay, Ordered and Directed Acquittals in the Crown Court, Research Study 15 and see the article by Baldwin at [1997] Crim.L.R. 536. Since 1981 the percentage of such acquittals has risen from just over 40 per cent. John Jackson sets this in the context of his argument that English judges take a far from umpireal role in criminal trials in "Judicial Responsibility in Criminal Proceedings" (1996) 49 C.L.P. 59.
10. Baldwin and McConville drew attention to this in Courts, Prosecution and Conviction (1981), Chapter 3. These acquittals were examined again for the Royal Commission on Criminal Justice by M. Zander and P. Henderson, Crown Court Study, Research Study 19 and by B. Block, C. Corbett and J. Peay, Ordered and Directed Acquittals in the Crown Court, Research Study 15 and see the article by Baldwin at [1997] Crim.L.R. 536. Since 1981 the percentage of such acquittals has risen from just over 40 per cent. John Jackson sets this in the context of his argument that English judges take a far from umpireal role in criminal trials in "Judicial Responsibility in Criminal Proceedings" (1996) 49 C.L.P. 59.
11. Baldwin and McConville drew attention to this in Courts, Prosecution and Conviction (1981), Chapter 3. These acquittals were examined again for the Royal Commission on Criminal Justice by M. Zander and P. Henderson, Crown Court Study, Research Study 19 and by B. Block, C. Corbett and J. Peay, Ordered and Directed Acquittals in the Crown Court, Research Study 15 and see the article by Baldwin at [1997] Crim.L.R. 536. Since 1981 the percentage of such acquittals has risen from just over 40 per cent. John Jackson sets this in the context of his argument that English judges take a far from umpireal role in criminal trials in "Judicial Responsibility in Criminal Proceedings" (1996) 49 C.L.P. 59.
12. Baldwin and McConville drew attention to this in Courts, Prosecution and Conviction (1981), Chapter 3. These acquittals were examined again for the Royal Commission on Criminal Justice by M. Zander and P. Henderson, Crown Court Study, Research Study 19 and by B. Block, C. Corbett and J. Peay, Ordered and Directed Acquittals in the Crown Court, Research Study 15 and see the article by Baldwin at [1997] Crim.L.R. 536. Since 1981 the percentage of such acquittals has risen from just over 40 per cent. John Jackson sets this in the context of his argument that English judges take a far from umpireal role in criminal trials in "Judicial Responsibility in Criminal Proceedings" (1996) 49 C.L.P. 59.
13. P. Seago, C. Walker and D. Wall, The Role and Appointment of Stipendiary Magistrates (1995).
14. Estimate based on a 1995 Justices' Clerks' Society survey.
15. Sir William Blackstone, Commentaries on the Laws of England (13th edn., 1800), Book III, pp.378-9.
16. Explained by T. Skyrme, The Changing Image of the Magistracy (1979), p.5.
17. Criminal Statistics 1995, Cm. 3421 (November 1996).
18. In 1995, which, incidentally, is the same percentage as indictable offences tried by magistrates in the 1950s, cited by Williams in 1955.
19. (1955). (3rd ed., 1963), p.300 and see Garland at (1996) 36 B.J. Crim. 445 at 456 on "defining deviance down".
20. R. Munday, "Jury trial, continental style" (1993) 13 L.S. 204. Munday applies the word to both statutory downgrading and undercharging.
21. Reported in The Independent, October 10, 1995, p.2 . The 1973 magistrates' hearing is reported in The Citizen, January 14, 1973. On the same day, the magistrates fined another defendant £10 for stealing a book.
22. Reported in The Independent, October 10, 1995, p.2 . The 1973 magistrates' hearing is reported in The Citizen, January 14, 1973. On the same day, the magistrates fined another defendant £10 for stealing a book.
23. [1996] 2 Cr.App.R. 374.
24. I thank Withiel Cole, Senior Crown Prosecutor responsible for the West trial for this information.
25. One recent example is Gregory and Lees, "Attrition in Rape and Sexual Assault Cases" (1996) 36 B.J. Crim. 1 and see references therein to earlier studies, which this one confirms.
26. Radio 4's Today programme, June 13, 1997 and see her book Carnal Knowledge: Rape on Trial, April 1997.
27. Clarkson, Cretney, Davis and Shepherd, at [1994] Crim.L.R. 4.
28. November 20, 1996.
29. In conversation with me, December 1996. Williams had pointed out long ago in The Proof of Guilt (op. cit.) that the cheapness of summary trial and the higher chance of conviction offered an advantage to the prosecution and Ashworth examined allegations of undercharging and relevant case law in 1984 (The English Criminal Process: A Review of Empirical Research, p.38).
30. In conversation with me, December 1996. Williams had pointed out long ago in The Proof of Guilt (op. cit.) that the cheapness of summary trial and the higher chance of conviction offered an advantage to the prosecution and Ashworth examined allegations of undercharging and relevant case law in 1984 (The English Criminal Process: A Review of Empirical Research, p.38).
31. A. Cretney and G. Davies, Punishing Violence (1995), at pp.141-42 and McConville, Sanders and Leng in The Case for the Prosecution (1991), p.118, describe how prosecutors manipulate the presentation of "the facts" to suit the charge (usually chosen by a relatively junior officer).
32. A. Cretney and G. Davies, Punishing Violence (1995), at pp.141-42 and McConville, Sanders and Leng in The Case for the Prosecution (1991), p.118, describe how prosecutors manipulate the presentation of "the facts" to suit the charge (usually chosen by a relatively junior officer).
33. See also J. R. Spencer, at [1985] Crim.L.R. 29. Cases like this make it all the more alarming that groups of road traffic offences are among the missing criminal statistics: Criminal Statistics, op. cit., Appendix 2, paras 18 and 22.
34. See Garland, op. cit.
35. (1924) 157 Law Times 308, cited by Williams in The Proof of Guilt (1955), p.286, n.14.
36. (1924) 157 Law Times 308, cited by Williams in The Proof of Guilt (1955), p.286, n.14.
37. Labour Party Manifesto, New Labour because Britain deserves better (1997), p.23 and Jack Straw's speeches in May 1997.
38. See Maher in McConville and Bridges, Criminal Justices in Crisis (1994).
39. Children and Young Persons Act 1933, s.53.
40. R. v. Inner London Crown Court, ex parte DPP, The Times, April 4, 1996. The decision has been criticised and it and subsequent case law have currently rendered the mode of trial decision problematic: see editorial comment at (1996) 160 J.P. 261 and F. G. Davies, "The Jurisdiction of a Summary Court to Try Children and Young Offenders - an Update" (1996) 160 J.P. 1123.
41. R. v. Inner London Crown Court, ex parte DPP, The Times, April 4, 1996. The decision has been criticised and it and subsequent case law have currently rendered the mode of trial decision problematic: see editorial comment at (1996) 160 J.P. 261 and F. G. Davies, "The Jurisdiction of a Summary Court to Try Children and Young Offenders - an Update" (1996) 160 J.P. 1123.
42. For a much fuller explanation and comment see C. Ball, K. McCormac and N. Stone, Young Offenders (1995), Chapter 5 para. 5-021. Such anomalies are created by the Criminal Justice Acts 1991 and 1993 and case law. Clerks commenting on this paper have said they would view this as a homicide offence but McCormac still feels he is correct. To me, the clerks' uncertainty just illustrates the confusion and mess created by case law and statute, described in this book and elsewhere.
43. Although this will change if Jack Straw's policy (announced on May 23, 1997) to stop multiple cautions is effected. He should note that the same policy, embodied by Michael Howard in the 1994 Home Office Circular, has been widely ignored by the police.
44. This is another example of a serious offence, trivialised with a derisory fine, which seemed to go unnoticed later with disastrous consequences. In 1972, Saint was fined £15 for indecently assaulting a young boy. On May 23, 1997, he was imprisoned for 6.5 years for "persistent and determined" (per Laws J.) sexual abuse of young boys. I suggest information on Saint's first conviction was not relayed to the appropriate authorities because it may have been deemed trivial, as it was dealt with in a magistrates' court.
45. At p.287.
46. For example, the entire discussion of the item on Radio 4's Today programme, on February 24, 1997 and "Juries to see videos of police questioning", The Times, February 25, 1997.
47. [1995] 2 All E.R. 878f.
48. This leaves those of us who wish to research the Divisional Court's interpretation on a point arising out of summary trial dependent on truncated reports in journals or trawling through Lexis.
49. 160 J.P. 262.
50. Described in Young Offenders, op. cit., and see F.G. Davies (1996) 160 J.P. 1123 and C. Ball (1994) 50 The Magistrate 49 and E. Franey (1996) 159 J.P. 21.
51. Described in Young Offenders, op. cit., and see F.G. Davies (1996) 160 J.P. 1123 and C. Ball (1994) 50 The Magistrate 49 and E. Franey (1996) 159 J.P. 21.
52. M. Wasik, "Magistrates: Knowledge of Previous Convictions" [1996] Crim.L.R. 851.
53. 74 Cr.App.R. 302.
54. Ward [1993] 2 All E.R. 577.
55. [1995] 4 All E.R. 146.
56. [1995] 4 All E.R. 186.
57. Touched on at (1995) 159 J.P. 363 and 515 and discussed in great depth by Wasik, op. cit. and by me at [1997] Crim.L.R. 105. See also, (1995) 159 J.P. 277, where the editor comments that it is unsatisfactory to develop different sets of disclosure rules for the two different courts.
58. Cited in Vel v. Chief Constable of North Wales, Lexis and (1987) 151 J.P. 510.
59. [1995] Crim.L.R. 409.
60. (1995) 159 J.P. 465.
61. Discussed at 159 J.P. 529 and the pilot scheme, set up in conjunction with the Home Office is described by C. Pilmore-Bedford and B. Oliver in The Magistrate, 1995, p.167 and discussed in depth by the Narey report, cited below, which suggests putting them on a firm legislative footing.
62. See letter by A. Evans in The Magistrate, December 1995 and reply, J. Friel in The Magistrate, February 1996, p.16.
63. See letter by A. Evans in The Magistrate, December 1995 and reply, J. Friel in The Magistrate, February 1996, p.16.
64. Review of Delay in the Criminal Justice System, Home Office, still under consideration.
65. [1997] Crim.L.R. 105.
66. [1973] Q.B. 530.
67. [1982] Q.B. 1053.
68. 3rd ed., 1994, pp.737-742.
69. 8th ed., 1996, pp.549-552.
70. 7th ed., 1993, pp.60-66.
71. 7th ed, 1995, pp.69-80.
72. "The Test for Dishonesty" [1995] Crim.L.R. 283.
73. 7th ed, 1996. Commendably, the outstanding textbook in E.L.S., Bailey and Gunn's Smith & Bailey on the Modern English Legal System (3rd ed., 1996) devotes a whole, accurate chapter to magistrates.
74. In, for instance, M. McConville, J. Hodgson, L. Bridges and A. Pavlovic, Standing Accused (1994). Concern at the constant focus on the Crown Court is expressed at p.211: "This skewed perception by the public is, in fact, mirrored in the lack of attention given to lower courts by researchers".
75. Lord Chancellor's Department Research Conference, 1995.
76. Chapter 1, para. 8.
77. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
78. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
79. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
80. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
81. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
82. Bridges and McConville, "Keeping Faith with their own Convictions: The Royal Commission on Criminal Justice" in M. McConville and L. Bridges, Criminal Justice in Crisis (1994); McConville, "An Error of Judgment", in the same book; J. Jackson, "Trial By Jury and Alternative Modes of Trial", same book; L. Bridges "Normalizing Injustice" in Justice and Efficiency? The Royal Commission on Criminal Justice, Journal of Law and Society (1994); A. Sanders and R. Young, Criminal Justice (1994), p.303; M. McConville, J. Hodgson, L. Bridges and A. Pavlovic in Standing Accused, op. cit., p.9.
83. Home Office, Disclosure: a Consultation Document, 1995 and Improving the Effectiveness of Pre-trial Hearings in the Crown Court, 1995.
84. S. Silber, "The Law Commission, Conspiracy to Defraud and the Dishonesty Project" [1995] Crim.L.R. 461.
85. e.g. Consultation Paper 141, discussed at [1997] Crim.L.R. 105.
86. Ed. D. Bean, p.90, at p.91.
87. P. Davies, The Times, May 6, 1997.
88. S. Diamond, "Revising Images of Public Punitiveness: Sentencing by Lay and Professional English Magistrates" (1990) Law and Social Inquiry 191.
89. In their 1996 "Road to the Manifesto" paper Tackling Youth Crime: Reforming Youth Justice and in Jack Straw's speeches in May/June 1997.
90. The Proof of Guilt (1955), Chapter 11.
91. S. Machura, "Lay Judges at German Mixed Tribunals," Ruhr-Universität Bochum, paper delivered at the Law and Society Conference, St Louis, Missouri, on May 31.
92. S. Kutnjak Ivkovic, "Lawyers on Lay Participatíon: A Case of Croatian Mixed Tribunals," Harvard, paper delivered at the Law and Society Conference, 1997 (as above) and see her Ph. D. thesis, "Professional and Lay Judges in Mixed Tribunals", University of Delaware, 1995. She has reviewed a wide range of research throughout Europe, including that on tribunals in the U.K.
93. S. Kutnjak Ivkovic, "Lawyers on Lay Participatíon: A Case of Croatian Mixed Tribunals," Harvard, paper delivered at the Law and Society Conference, 1997 (as above) and see her Ph. D. thesis, "Professional and Lay Judges in Mixed Tribunals", University of Delaware, 1995. She has reviewed a wide range of research throughout Europe, including that on tribunals in the U.K.
94. "The Jury's Going Out", The Guardian, February 18, 1997.
95. [1997] Crim.L.R. 155.
96. "Judge and Jury: Towards a New Division of Labour in Criminal Trials" forthcoming in the M.L.R.
97. "Is Plea Bargaining Inevitable?" (1984) 97 Harv.L.R. 1037. I spent time observing the common pleas courts in Philadelphia, exactly 10 years after Schulhofer had described them in this article. They were still exactly as he had described them but it is known that they are specially selected and closely monitored for the fair-minded way in which they conduct hearings.
98. There is almost too much legal comment and empirical socio-legal research on plea bargaining and sentencing discounts in the American literature for one human to read. That a Royal Commission chaired by a sociologist managed to ignore it all, plus all of the British research, is beyond me but it speaks volumes for the influence of the say-so of the Bar and judiciary over the Royal Commission.
99. [1997] Crim.L.R. 536.
100. op. cit. and "Judicial Responsibility in Criminal Proceedings" (1996) 49 C.L.P. 59.