Trial by one's peers?

Lay magistrates are on the decline and there are fears that they are being edged out by their full time, professional colleagues, according to a report in The Times last week. This is lamented, that the ancient right of trial by one’s peers is being eroded, and that it is all generally a bad thing from the perspective of the 23,000 odd lay justices.

Trial by one’s peers? That may have been true if you were, well, a peer, and had fellow Lords deciding your fate, as was amusingly portrayed in fiction by Dorothy L Sayers in Clouds of Witness, when the then Duke of Denver is tried for murder before the House of Lords. But really, these days, trial by one’s peers? Of the many – and I have seen a lot – of magistrates’ courts that I have visited, and make-up of the bench (figuratively and literally) compared to the hapless chap or chapess in the dock, they could not be further apart. If we really had trial by one’s peers then for many a drug addict, dangerous driver, dodgy dog owner, prolific shop-lifter or all time spectacular public nuisance, we would have to have the trial in a bus shelter or down the rehab clinic with the inmates presiding. Middle class, and by contrast affluent members of the bench, whatever sex, creed or ethnicity, are very unlikely for the most part to have come from the same backgrounds as the people that they sit in judgment over. They are also, sadly in my experience, going to be inherently reluctant to find that the nice young sergeant who they see regularly giving evidence from the witness box may not be wholly telling the truth about what happened inside the police car on the way back to the station.

So for me, I am not too bothered if the lay magistracy becomes secondary to the professional. I am not saying that that means defendants and defence lawyers will get an easy ride – certainly not. Any busy central London magistrates’ court with an old style ‘stipe’ presiding could be a terrifying Dickensian experience. The gaolers would wheel in the defendants with the speed of dispatching parachute instructors, and you would stand up amid the throng of defence advocates and do your best to get bail in the face of the sort of barrage that preceded the Battle of the Somme.

What I don’t know is whether the report, when costing out that a district judge (DJ) is more expensive than a lay bench, is the cost of appeals. Quite a lot can go wrong “down the Mags”, and an appeal to the Crown Court is one of right, with costs consequences to the public purse. Nor do I know if it is correct that DJs use custody more than lay benches. But what is absolutely true is that a DJ is much, much quicker. And I have never equated greater time spent with greater success for the defendant – sometimes it seemed to me that what was really going on was a big wrestling match with the collective conscience before finding someone guilty but passing a lesser sentence to make up for it.

Anyway, I know that there are very good lay justices and that much good work is done, but given the complexities of the criminal law these days and the pressure on time and money, I can see that it might be thought that the balance needs to change. Damian Green, reports The Times, has reassured lay justices that he wants to give them a strengthened role – so there you are, nobody is rising permanently for some time
to come. SJ

Felix is the pen name of a barrister practising in London