Lay Magistrates Rule in 97% of English, Welsh Criminal Cases

They have no background in law, yet they sit as judges in 97% of all criminal cases in England and Wales.

They are businessmen, bus drivers, miners and electricians. They are for the most part selected secretly by committees that are themselves secret, and they receive no pay for their judicial work.

They are the 26,000 local magistrates who preside over lower courts in England and Wales. They are the Western world’s largest and oldest lay judiciary.

Nearly 800 years after their earliest predecessors were named by King Richard I to preserve the peace in an unruly countryside, magistrates still form the backbone of the English judiciary.

‘Society’s Cement’

“They are the cement that holds society together,” according to Lord Hailsham, who, as lord chancellor, is the country’s top judicial officer.

Magistrates usually sit in twos or threes, dealing summarily with traffic offenses and other petty crimes, though occasionally with more serious crimes. They also preside over hearings to determine whether major criminal cases should be submitted for jury trial.

English magistrates have the power to send offenders to prison for up to six months, and they frequently do so. This has given them a reputation for toughness, and criminal suspects often choose to be tried by a jury even though a jury has the power to set a longer sentence.

The first magistrates were knights called Keepers of the Peace, who maintained public order in distant parts of the realm where authority was thinly stretched.

In 1361, Edward III gave them judicial powers and renamed them justices of the peace. Ever since, they have presided over most of the criminal cases in England and Wales in the name of the sovereign.

(Most U.S. states continue to use lay judges, or justices of the peace, though they usually are restricted to dealing with relatively minor legal matters. California in 1974 enacted a law requiring that all judges be attorneys; according to a 1979 study, it was one of only six states to have done so.)

Licensed Premises

Until the late 19th Century, the magistrates virtually ran England at the local level. They wielded undisputed power, fixing wages, building and controlling roads and bridges, supervising local services. But, by 1888, they had lost nearly all of their administrative powers except the issuing of liquor licenses. They are still responsible for this.

Historically, magistrates were chosen from the power elite. A study of the people chosen over the centuries provides a rich social history. The noblemen and rich landowners of the early years gave way to the merchants, industrialists and professionals of more recent times.

Today one of the biggest single problems facing the institution of the magistracy is how better to reflect the egalitarian nature of a more democratic, socially diverse Britain. Traditionally, magistrates have come from the political right, but in recent years there has been an effort to create a political balance.

Geoffrey Norman, general secretary of the Magistrates Assn., said recently that it has been difficult to recruit workers and ethnic minorities as magistrates. Workers find that taking time off to fulfill their duties as magistrates can mean forgoing promotion and stirring jealousy among colleagues.

Minorities Shun Task

Even in cities with high concentrations of blacks and Asians, there is a reluctance among minority people to serve as a magistrate.

“They simply don’t see themselves performing this kind of duty,” Norman said.

People of little means are put off by the fact that magistrates, having come traditionally from the upper classes, are not paid.

Since 1911, magistrates have been chosen by secret, local-level committees assembled in the lord chancellor’s name, with the committees usually being selected by sitting magistrates in the area. The secrecy is intended mainly to protect committee members from pressure by local citizens seeking appointment. But committee membership in two areas, one of them London, is now public knowledge, and there is pressure for others to follow.

In recent years there have been suggestions that the entire system of lay judges is no longer relevant in a highly developed 20th-Century society. Some critics argue that trained lawyers or a tribunal headed by a legally qualified chairman should do the work. But few expect the lay magistrate to disappear soon.

“The system is cheap, efficient and enjoys public confidence,” Valerie Cooney of the English Law Society said. “I’d be very reluctant to see such a system disappear.