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Following from this, a brief insight into
the origins of the magistrate court will be given, as it is important to
understand the origins of any system as this will inform the reader of
the initiative behind the original concept. After discussing the origins
of the system, the procedure of appointment will then be discussed. This
process will then be examined when the analysis is focused upon the
procedures contained within the Magistrate court for assessing the guilt
of a defendant. As a defendant will be denied a trail by jury, the
system in place for the appointment of these magistrates is of paramount
importance, as all individuals must be judged by their peers. If, after
considering the evidence, the current system is deemed to be defective,
then possible solutions will be considered to improve the present
situation. The article will conclude that although the current system is
far from perfect, it serves as a significant filter for more serious
crimes which are tried in the Crown Court by a jury.
What is a Magistrate?
In the courts of England and Wales, it
is the function of a magistrate to hear prosecutions for summary
offences. They have the power to make orders in regard to and placing
additional requirements on offenders. Magistrates' sentencing powers are
limited compared to that of the Crown Court (See Criminal Law: A
Critical Analysis of the Crown Court), extending to shorter periods of
custody, fines, probation and community service orders, and a miscellany
of other options. Magistrates hear committal proceedings for indictable
offences, and establish whether sufficient evidence exists to pass the
case to a higher court for trial and sentencing. Magistrates have power
to pass summary offenders to higher courts for sentencing when, in the
opinion of the magistrate, a penalty greater than can be given in
magistrates court is warranted. The function of a magistrate is of great
importance, but where did they originally come from?
Origins of the Magistrate Court
The origins of the magistrate system
can be seen to have been initiated in the 12th century. Richard I
(Richard the Lion heart) commissioned certain knights in England to keep
the Kings peace in unruly areas. By the 14th century, a new phrase had
been coined to describe individuals who had accepted the responsibility
of keeping the peace. The title Justices of the Peace was initiated
during the reign of Edward III and referred to 'good and lawful' men to
be appointed in every county to 'guard the peace’. The magistrate system
has evolved since its early inception and now deals with over 95% of all
prosecuted crime and is responsible for handing out over £336m in
financial penalties per year. (Source: Department for Constitutional
Affairs [DCA]) If a magistrate is responsible for presiding over certain
criminal cases, then there must be a proficient system in place to
appoint these individuals.
The Appointment Process of
Magistrates
The Municipal Corporations Act 1835
provided for Justices of the Peace to be nominated by the Lord
Chancellor for the boroughs, in consultation with local advisers. The
county benches, however, continued to be confirmed by the Lord
Chancellor by way of the nomination of the Lord Lieutenants, who had
their own methods for finding suitable candidates. The system was
inadequate and was challenged by the Liberal Government in 1906 as there
were too many conservatives sitting on the benches. Lord Loreburn, as
Liberal Lord Chancellor, nominated 7,000 magistrates of whom 3,197 were
Liberals. The Royal Commission on the Appointment of Justice of the
Peace in 1910 recommended the institution of an Advisory committee
system. A year later Advisory Committees on which Liberals and
Conservatives were equally represented had been set up in most counties
to advise Lord Lieutenants on nominations. A few years later the
boroughs had also formed advisory committees. Originally, appointment to
these committees was for life, however, in 1925, Lord Cave introduced
appointment for 6 years and ordered half the committees to retire by
rotation every three years. A magistrate can, however, still remove a
person’s liberty for criminal offences. If we are all to be judged by
our peers, then a magistrate should be just that. The problem is,
however, that the appointment process is engineered towards professional
people who share very little with the people that they judge.
Assessing Guilt in a Magistrate
Court
As stated above, magistrates will
decide on the guilt of a defendant. There will be no trial by jury,
therefore, it is essential that the people who sit in judgment are the
defendant’s peers. If one looks at the application process as provided
on the department for constitutional affairs, the qualities needed are
good character, ability for understanding and communication, social
awareness, maturity and a sound temperament, sound judgment and a
commitment to the job. These are all admiral qualities, yet these are
not imposed upon any jury that sits in judgment of more serious cases.
Why is this so? There are numerous possible explanations for this
polarized approach, and often depends upon a person’s particular
ideological persuasion. Nevertheless, the statistics speak for
themselves. Most magistrates are white, middle class males. If one
considers that defendants should be judged by their peers, it would be
interesting to see how white, middle class males go out stealing cars,
or indeed committing other petty criminal offences. What are the
possible solutions for this problem?
A Call for a More Diverse
Magistrate Pool
Magistrates work on a voluntary basis
and need time off work to honor their commitments. There have been
Proposals to make it easier for magistrates who are in employment to
take time off from work to sit in court (Monday 7 November 2005 10:37
Department for Constitutional Affairs). This, for me, does not solve the
problem of having a primarily middle classed system acting as judge,
jury and executioner. What is needed is a more diverse magistrate pool.
This will provide for a more understanding magistrate. If one has lived
in a cozy, secure, insulated world, how are you going to have any
affinity with an individual who has had a disrupted childhood? The
answer is that you are not. The arguments in favour regarding a more
diverse pool of magistrates is deafening, however, it remains to be seen
as to whether they will be heard.
Conclusion
This article has assessed the role of a
magistrate within the judicial process by tracing the origins of the
magistrate and looking at the way in which a magistrate is appointed.
The role of the magistrate is one that should never be undervalued. They
give up their time on a voluntary basis and provide a vital service in
filtering the more serious crimes to be tried in front of a jury. There
exists a fundamental problem, however, in that a magistrate often shares
no life experiences with the people that they sit in judgment over. The
sociological implications for a system, such as the one in place cannot
be underestimated. The time has now come for a more diverse magistrate
pool that draws from all members of society, regardless of their
previous background.
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