The Role and Powers of Lay Magistrates in Criminal Cases
1a) Describe the role and powers of lay magistrates in criminal cases.
b) Consider whether lay magistrates are adequately trained for their
1a) Describe the role and powers of lay magistrates in criminal cases.
For centuries the criminal justice system has allowed lay people;
people who are not legally qualified to administer justice to the
civilian population. Lay magistrates are otherwise known as Justices
of the Peace. Lay magistrates work is mainly connected to criminal
cases although they also deal with some civil matters, especially
family cases. Firstly, it is to be noted that lay magistrates only
perform their duties about once a fortnight. Despite being lay members
within the law, they try 97% of all criminal cases and deal with
preliminary hearings in the remaining 3% of criminal cases, these
involve Early Administrative Hearings, remand hearings, bail
applications, sentencing and transfer proceedings.
Lay magistrates also deal with commitals, magistrates can commit a
defendant charged with a triable either way offence for the sentence
to the Crown Court at the end of the case having heard the defendants
past record, they feel that their powers of punishment are
Lay magistrates have a fairly wide discretion as to the sentence they
select in each case although they are subject to certain restrictions.
Magistrates can only impose a maximum sentence of six months
imprisonment for one offence, the Criminal Justice Act 2003 allows
this to be increased to twelve months, and a maximum fine of £5000.
In theory lay magistrates are volunte.
. middle of paper.
In view of the above I would say that Lay magistrates are adequately
trained for their work. Firstly they are not just people with no
common sense, they have to have a certain standard of good education.
They are given hands on training in understanding and orgainsation
they are allowed to develop new skills, they are trained how to do
observations of court sittings and they have visits to prisons and
probation offices where they can gain first hand experience. The
system does not jus allow them to practice without first going though
a probationary period. They are also mentioned thoughout this period
so if a person did not make the grade they would be disqualified
before training was completed. So referring back to the question
above, I think yes lay magistrates are adequately trained for their
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Describe the role and appointment of Lay Magistrates. Discuss the use of ordinary members of the public within the Magistrates Courts.
Lay magistrates otherwise known as lay justices or Justices of the Peace (JP's) are ordinary, non-legally qualified people who volunteer to sit and hear cases in the Magistrates Courts. These are local courts that have a geographical limit on their jurisdiction. Lay magistrates are not paid for carrying out their duties, but may claim allowances for travelling, subsistence and financial loss. Each magistrate, whilst only working part-time, is expected to undertake a fair share of the work of the Bench and is required to sit for at least 26 half days each year. They should try to be available to sit for up to 35 half days and up to a whole day if necessary.
Lay magistrates usually exercise their duties as a panel of at least 2 magistrates up to a maximum of 7 and more normally a panel of three. Collectively they are known as "the Bench" and are addressed as "Your Worships". A single lay magistrate has very limited powers but is expected to deal with requests for warrants for arrest and search for example. Lay magistrates at all times have available to them the advice of a professionally qualified court clerk to guide them on questions of law, practice and procedure. Lay magistrates have wide powers over criminal cases (over 95% of all criminal cases are dealt with by magistrates either in the Adult Court or Youth Court). Their duties are as follows:
a. They have jurisdiction to try all summary only offences (i.e. least serious crimes such as nearly all driving offences, taking a vehicle without consent and being found drunk in a public place) and sentence those who are guilty: the maximum sentence is 6 months'.
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First, we should consider how the Magistrates words and actions work in the following context, as described by Ray B. Browne in Objects of Special Devotion: Fetishes and Fetishism in Popular Culture:
A Fetish is an item possessing some sacred, magical __ usually dark__ power. It is like an icon but different. [Like an icon ] a fetish is also an object, person, concept, theory or philosophy believed to possess extraordinary magical or supernatural power. But they are different. Fetishes are misshapen, bastard icons. To a degree beyond the icon, the fetish carries the taint of the off-color, an abnormal attachment, a 'closet' devotion, something that the person attached to the fetish should be unusually sensitive to or ashamed of. (Browne 1)
Right from the beginning, there is a conflation of body and violence, which has complicated the relationships between the Magistrate, Colonel Joll, and the barbarian girl. The mirror-like analogy between Colonel Joll and the girl is drawn as early as the first page of the novel. Coetzee opens the first scene with the image of Joll's dark glasses, which foreshadows the barbarian girl's blinding at his hands. The Magistrate asks: "Is he blind? I could understand it if he wanted to hide blind eyes. But he is not blind" (WB 1). As well, he points to the corners of his eyes to show the lack of marks (wrinkles in this case); the girl, on the other hand, has a "greyish puckering as though a caterpillar lay there with its head under her eyelid, grazing" (33). Interestingly, when we receive a description of the girl's blind eyes, she is portrayed as "white" while Joll is portrayed as "dark": "I wave a hand in front of her eyes. She blinks. I bring my face closer and stare into her eyes [â€¦] The black irises are set off by milky whites as clear as a child's" (emphasis added, 28). This is a subtle reversal of colonial stereotypes, which Coetzee undertakes along the narrative, culminating in the Magistrate's realization that the notion of barbarian is flexible and can stand in for the actions of members of Empire as well. Therefore, as early as the first page of the novel, the reader is intrigued into a process of fetishism. The first conversation between the Magistrate and Colonel Joll is charged with corporal violence, as the emphasis on the body is readily apparent. A few lines after starting the conversation, the conversation itself turns to violence: "He tells me about the last great drive he rode in, when thousands of deer, pigs, bears were slain, so many that a mountain of carcasses had to be left to rot" (1). This correlation between violence, which will turn to torture, and the bodily presence of the Other is the lens through which we should explore the fetishistic ambivalence of the Self.
The first signs of fetishism are apparent very early in the narrative as the Magistrate's fascination with Colonel Joll starts to unfold, especially, when Joll begins to initiate the Magistrate into the rituals of torture, albeit as an outside observer, but one who is nonetheless complicit by this act. The Magistrate has, after all, offered to "help with the language" (3). It is the rituals of the torture that firmly establish the idea of a torture fetish for Joll and a growing dark fascination for the Magistrate. The Magistrate's question: "You would prefer me not to be there [inside the interrogation room]?" is quite ambiguous, especially when we see Joll's reply: "You would find it tedious" (4). It is not obvious whether it is an implied request to attend the interrogation, or it is just a sort of protocol or "set procedures" (4). A further conflation develops; the Magistrate is fascinated with Joll and is, therefore, fascinated with torture. It is at this point that the Magistrate's obsessions begin to develop. He says he is "aware of what might be happening, and [his] ear is even tuned to the pitch of human pain" (5), but it is ambiguous whether or not he is truly disgusted. The ambiguity continues and the growth of a dark obsession is realized when the Magistrate contradicts himself a short time later, saying of the same event, "I did not ride away: for a while I stopped my ears to the noises coming from the hut by the granary where the tools are kept, then in the night I took a lantern and went to see for myself" (9-10). The relationship between the Magistrate and Joll at this stage suggests a pattern of relationship between a tutor and an apprentice. The climax of this complicity takes place at the scene where the Magistrate sees the reflection of Joll in the eyes of the barbarian girl: "the image of a face masked by two glassy insect eyes from which there comes no reciprocal gaze but only my doubled image cast back at me" (47).
The obsession with the effects of torture on the body begins to take shape when the Magistrate concludes that: "Pain is truth; all else is subject to doubt" (5). Still imbued with fascination with Joll's body, when he quickly follows that statement with descriptions of Joll's "tapering fingernails," "mauve handkerchiefs," and, most importantly, "his slender feet" (5). This is a foreshadowing of a possible foot fetish concerning the girl's deformed foot. The Magistrate continues to be fascinated with Joll and his role as a torturer. Of this he tells us,
Looking at him I wonder how he felt the very first time: did he, invited as an apprentice to twist the pincers or turn the screw or whatever it is they do, shudder even a little to know that at that instant he was trespassing into the forbidden? I find myself wondering too whether he has a private ritual of purification, carried out behind closed doors, to enable him to return and break bread with other men. Does he wash his hands very carefully, perhaps, or change all his clothes; or has the Bureau created new men who can pass without disquiet between the unclean and the clean? (WB 13)
This passage suggests that Joll's "first time" __"turning the screw," so to speak __was like a first sexual experience and it is no wonder that the Magistrate should use such words to describe it. The ritual of cleansing that the Magistrate focuses on here is closely connected to the Magistrate's own erotic washing and massaging rituals with the girl. Is he, as so many critics have argued, attempting to read her by placing his hands on the marks left by Joll's rituals of torture? [2 ] On the other hand, is he enacting a ritual of cleansing in an attempt to be like Joll? Finally, what is the fantasy behind the ritual, the reason for the conflation of violence and bodily fascinations?
The conflation of body and violence becomes obvious when the Magistrate goes to see the young girl at the inn, later identified as "the Star." When the girl asks him of the dreams he was having during the night. He does not say anything to her, but the reader is privileged to know what he thinks: "The jackal rips out the hare's bowels, but the world rolls on" (24). The Magistrate seems to be fascinated with violence insofar as he regards it as a natural thing. Later on, the narrative moves into the introduction of the barbarian girl, and the fetish truly begins to take shape. At the first encounter, he tells the girl "[t]his is not what you think it is" (29) __ upon a first reading, it is not what the reader expects either. However, he "prowl[s] around her" and admits that "the distance between [himself] and her torturers [â€¦] is negligible" (29). Finally, he says: "Show me your feet" (29). A physical manifestation of his growing fetish is realized. What follows is a sensual, erotic description of his washing and massaging ritual, starting with her feet and moving upward to the rest of her body. He says, "I lose myself in the rhythm of what I am doing. I lose awareness of the girl herself." Ultimately, the ritual ends in "blissful giddiness" (30). The repetition of acts of sleeping, drowsiness, dizziness and oblivion that follows the rituals of massaging indicates the inability of the Magistrate to penetrate the object of fetishism. His fascination is limited to surface of the fetish, which is reflected in the mechanical acts of washing and massaging. At this stage, the first part of the body fetish is realized. However, it is not long before this stage seems not enough. His fascination begins to move outward, from the foot, to disfigurement, to cleansing, to the act of torture itself: "It has been growing more and more clear to me that until the marks on this girl's body are deciphered and understood I cannot let go of her" (33).
The fetishism at this stage is has developed into the Magistrate's obsession with torture, Joll, and the body. Before that, we have to notice that the Magistrate's fascination with the barbarian girl is not simply erotic; rather, the marks of torture on her body are at the centre of his interest. Unlike the girl at the inn, he calls the "Star" with whom he has an irregular sexual relationship, the Magistrate feels no "desire to enter" the barbarian girl (32). In fact, the barbarian girl forces a separation of sex and the growing body fetish. She says, "You should not go hunting if you do not enjoy it" (44), referring literally to his attempts to tell a story about hunting. He dismisses her statement, as proof that she does not understand but her following actions do not necessarily support that fact, as his obsession with her tortured body takes the form of hunting for truth. Immediately following her statement, she gives him a full account of the acts of torture she has undergone as an answer to a question about what happened he has asked at their first encounter. More importantly, the girl seems to be the one who propels the object of the fetish from her body to the act of torture itself, giving him details that he has not yet been able to possess through either his conversations with Joll or his explorations of her body. It is after this exchange that the Magistrate throws himself back into a more traditional sexual relationship. He revisits the inn girl, as an act of defiance against his "bondage to the ritual of the oiling and rubbing, the drowsiness, the slump into oblivion" (44-45). He acknowledges the failure of his present obsession:
All this erotic behavior of mine is indirect: I prowl about her, touching her face, caressing her body, without entering her or finding the urge to do so. Is this how her torturers felt hunting their secret, whatever they thought it was? For the first time I feel a dry pity for them: how natural a mistake to believe that you can burn or tear or hack your way into the secret body of the other! (WB 46)
The Magistrate is clearly confused at this point. When he asks her "What do I have to do to move you?" (47) he sees his answer plainly when he sees the reflection of Joll instead of in the girl's eyes [3 ]. He resists what has become clear to him: a torturer, saying: "How can I believe that a bed is anything but a bed, a woman's body anything but a site of joy? I must assert my distance from Colonel Joll! I will not suffer for his crimes!" (48). But that is not what he truly wants. The Magistrate's attempt to compensate for these conflicting feelings by visiting his mistress more regularly fails as he suffers from bouts of impotence: "there were unsettling occasions when in the middle of the sexual act I felt myself losing my way like a storyteller losing the thread of his story" (48). This is a complicated metaphor that can be read many ways, but here, it is an important hint that the narrator's obsessions may be reaching a closure. The girl has played out her role in the body fetish and is no longer physically necessary. The Magistrate says, "While I have not ceased to see her as a body maimed, scarred, harmed, she has perhaps by now grown into and become that new deficient body" (61). What follows is the Magistrate's fateful decision to return the girl to her people.
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I’m very pleased to be here at the first of a series of events with magistrates across the country. When we began to think about the role of magistrates, as part of our wider reforms of the criminal justice system, I was adamant that we should involve magistrates themselves as early as possible in shaping our reforms. I want their thoughts and ideas to be at the heart of our policy.
I think that the speed with which the places on these events were booked up is testament to the appetite to engage with the change going on in the Criminal Justice System, and to inform how we go about it.
This government has already made big changes to Criminal Justice:
However we still have much more to do to make sure the system continues to serve the public as well as it should. And the Strategy and Action Plan, which we launched in June, announces wide ranging changes to streamline and digitise the way we work, as well as to make the system more accountable, and more transparent, to victims and to the public.
At this time of significant change in the CJS, this is the right time for everyone to contribute to a debate on how to ensure magistrates remain central to our criminal justice system. We have an opportunity here to both strengthen and widen the role of the magistracy as part of our reforms, and also to use the expertise and unique position of magistrates to help us make the criminal justice system better.
Magistrates in England and Wales play a vital role in our judiciary. In 2011, magistrates’ courts dealt with around 19 out of every 20 defendants in criminal cases. Only 6% of defendants had a trial in the crown court.
In addition, magistrates use civil jurisdiction to help the police and local authorities combat anti-social behaviour and gang-violence; and to protect thousands of children from abuse each year.
Magistrates with their legal advisers and district judges share a breadth and volume of work which is not matched by any other judicial office-holder in England and Wales. They are volunteers, are truly the cornerstone of our justice system. Not only that, they are a model of what a good citizen should be. The 23,500 magistrates are the best of our country. They want to give their skills, expertise and time for the good of others, for nothing. We are lucky to have them, and we should be proud of them.
Our summary justice system was founded with the magistracy at the centre. Magistrates have dispensed justice in their local communities for more than 650 years, since Justices of the Peace Act introduced the novel proposition that decent members of the community, not themselves lawyers, should be vested with the power to administer justice.
That’s not to say that the magistracy hasn’t changed since then. Thankfully, it has. They are a vibrant and diverse group, which much more closely represents the communities they serve. I am particularly impressed by the improvements which have made terms of gender and ethnicity. There is still though more to do to ensure that the magistracy is truly representative of the country.
The role has also changed over time, and will continue to do so, as communities change. But the qualities of today’s magistracy – fairness, good character, understanding of people and the application of sound judgement – have been constant for decades.
Magistrates are impressive people. They perform a vital role, bringing the valuable experience and common sense of ordinary people to the justice system, and devoting large amounts of your valuable time to serving your communities. Volunteering to be a magistrate is a prime example of the kind of commitment from people to improve their own communities that this Government has sought to promote.
But we could be doing much more to make better use of this knowledge and expertise. That is why I want to ensure that we equip the magistracy with what they need to enable them to continue to make a real difference in an ever changing landscape, and ensure that they are used where they can provide maximum benefit.
In my relatively short time as Minister for Policing and Criminal Justice I have seen the considerable problems in the criminal justice system – too many delays, and too much waste. And I am sure that all magistrates must have witnessed this time and time again as they have sat in court over the years.
There would be outrage if fewer than half of hospital operations went ahead on time, or if children turning up at school found that their lessons only went ahead less than half of the time. I can only imagine how frustrated magistrates’ must feel when after volunteering their valuable time, they find that only 44% of trials proceed as planned – not even half of them.
The reforms that we’re making in the Strategy and Action Plan aim to cut out much of the waste, and reduce the delays. I hope that this will mean a more fulfilling experience for magistrates on the Bench, and this also provides an opportunity to make better use of their skills and expertise.
That is why today I am launching a piece of work that will involve them directly in developing a new statement of the role of the magistrate.
Of course a magistrates core role is, and will remain as judicial office-holders, dispensing justice for the benefit of the communities they serve. That won’t change. However, I am keen that we should maximise the value which they bring to those communities, and to emphasise the value that the Government places on their services and skills.
In order to make sure that we maximise the value of magistrates and get their role in a twenty-first century justice system right, I want to ask them three questions:How do we ensure that Magistrates are dealing with the right cases in court?
The time magistrates spend in court should be focussed on those cases where they make a real difference to their communities. Their core skills of deciding on bail, fact-finding and sentencing should be put to best effect.
For example, three magistrates needn’t spend time rubber-stamping foregone conclusions in simple road traffic cases where the defendant doesn’t contest the matter, and doesn’t even turn up. One magistrate could deal with this much more efficiently in an office.
That’s why we announced that we will be legislating to remove those cases from traditional courtrooms, so that magistrates can focus their time in court on the more serious and contested cases which best use their skills.
For some the obvious way to keep more cases in magistrates’ courts will be to increase their custodial sentencing powers, and there is an attractive logic to this. However, there is also a risk that this could cause additional pressure on the prison population, because sentencing practices could change.
We have done some work analysing the potential impact of increased powers – as have the Magistrates Association – and we agree on the numbers involved. We perhaps disagree on how easy it could be to realise any savings and on the costs of additional prison places. So we will keep the case for increasing magistrates’ custodial sentencing powers under review and in the meantime we will retain on the statute book the provisions that enable the increased powers.
Our priority at the moment though is to tackle the unacceptably high reoffending rates – especially reoffending by those serving custodial sentences of less than 12 months. We have already announced our intention, in the Offender Rehabilitation Bill, which is currently before Parliament, to ensure all adult offenders are supervised for at least 12 months on release from prison. This means introducing new licence and supervision measures for offenders serving short custodial sentences.
These proposals also include a new role and powers for magistrates to deal with offenders who breach the conditions of their supervision. That means courts will have powers to deal with those who fail to comply with their supervision conditions, including being able to commit an offender to custody for up to 14 days.
We want to work with magistrates to deliver these new provisions, to get right the training and support they need to deal with these offenders and to involve them in how we rehabilitate offenders.
Around 40% of defendants that are convicted in magistrates’ courts and then committed to the crown court for custodial sentences receive no more than six months imprisonment. These are cases which magistrates could have sentenced; no, these are cases which magistrates should have sentenced; they already have the skills, capability and powers to do so. This is why I want to work with magistrates to find out why these cases are being escalated, and address that. This is particularly important for young people, where the Youth Court is set up specifically to deal with children involved in criminal proceedings, whether as witnesses, defendants or both.
We also need to get the balance right at the lower end of the spectrum as well. There is definitely a place for out-of-court disposals in ensuring justice is brought in cases which may otherwise not have come to court and as a proportionate response to some low-level offending. But we need to make sure that it is only these cases which are getting out-of-court disposals, and that all cases which should properly be brought before a court are brought to court.
There is a role for magistrates in scrutinising the police’s use of out-of-court disposals, and I am pleased that the Senior Presiding Judge supports this, and has recently issued guidance, encouraging magistrates to get involved.
These are some examples of where we can bring more of the right cases in front of magistrates, but there is more that we could do and I want to hear Magistrates suggestions and views.
This brings me onto my next question, which is:What other ways are there for Magistrates skills and experience to be used for the benefit of their communities?
In the Offender Rehabilitation Bill we are giving magistrates more powers to help reduce reoffending. I am also very pleased to hear Magistrates are getting involved in their communities’ Neighbourhood Justice Panels, and in scrutinising out-of-court disposals; taking their valuable experience from courtrooms and using them in new and different settings.
I want to explore whether there are other appropriate roles, compatible with Magistrates core role as judicial office-holders, which would benefit from their knowledge and experience, and help to reduce crime and reoffending, and make communities safer.
Another area where Magistrates have become much more involved in recent years is in community engagement. Activities like the Magistrates in the Community initiative, the Local Crime: Community Sentence project, and the National Mock Trial Competition which John Fassenfelt of the Magistrates’ Association recently informed me about, help to strengthen the links between courts, communities and the wider justice system. They build public confidence in sentencing, and teach young people about the law and the way that the justice system in England and Wales operates.
These are great examples of the sort of local justice that we need to move towards - visible and continuous engagement with communities, working with local criminal justice agencies to understand the issues that affect those communities, and what can be done to resolve them. I want to make sure that we are doing everything we can in this area, and that we are taking every opportunity we have to raise public understanding of summary justice. I’d like to hear Magistrates views on what more we could be doing help the magistracy forge closer links with their communities.
And my last question is:How can we ensure that Magistrates are in the driving seat of improving performance of the justice system in their communities?
I’d like to hear views on how we could harness Magistrates experience to help us improve the performance of the CJS.
The CJS needs to work in partnership to improve performance and provide a better service for victims. Not through top-down targets and measures but through a common understanding that a well performing criminal justice system is good for victims, is good for communities, and is good for the rehabilitation of offenders.
Back in February, I launched a set of seven shared outcomes for the CJS. We developed them with practitioners across the system and this has enabled us, for the first time, to state clearly a common view of what we are all working towards:
I would like to have a discussion about what magistrates role is locally in making these outcomes happen, for the benefit of the system, and for the benefit of their communities.
There has been some great work so far; stop delaying justice is a sentiment we can all support. Delay is bad for the victim, bad for the accused and bad for justice itself. Magistrates are central to the success of our justice system and initiatives designed to improve the way cases are managed should have the training and support of JPs at the heart of them. This I believe is true of the Stop Delaying Justice programme which began last year and enters its second phase this summer, and is why I am really impressed with the way in which the magistracy and wider judiciary have taken the initiative with this work.
I know that the magistracy is already working locally to change listing patterns to enable the police to present a greater range of cases in court, releasing the CPS to concentrate on the more serious and complex cases. This is another great example of where I can see Magistrates working effectively with the wider CJS to improve the way that the justice system works in all our areas.
Those are the three questions that I would like to put to magistrates today.
This work is the start of a new way of working with the magistracy in matters which affect summary justice. That is why we are holding these events now, at the beginning of the policy process, to ensure that it is their thoughts and ideas which form the heart of our policy building a world-class justice system.
Today we are also launching – for the first time – an online tool that will allow magistrates to put forward ideas on how they can become more involved in their communities to make them safer. Crucially the tool will allow magistrates to collaborate and develop these ideas so we can come up with a shared solution.
This is an exciting time of change for criminal justice. And I want to involve as many magistrates as I can in helping us to shape their role in the 21st Century. I know that in 650 years the role of the magistracy in England and Wales has changed as much as society has, but magistrates are still as important and highly valued as ever. Magistrates have been an essential part of the backbone of a successful society for centuries, and the changes I want to bring about will strengthen that vital role.
I would now like to show you a short film that demonstrates the wealth of experience in the judiciary and will hopefully inspire you to play a part in shaping the future role of the magistrate.