The English Magistracy

 

By FRANK MILTON, Chief Metropolitan Stipendiary Magistrate, London.

 

 

The English judicial system is unique in many respects. The thing which foreigners find particularly surprising is the part which laymen play in its administration. The "Magistrates' Courts", in which over 97 % of criminal cases are decided, are manned by some 16,000 "Magistrates". Of these only 48 are salaried, full-time, professional lawyers ("Stipendiary Magistrates"), of whom 36 sit in London, while the rest are thinly spread among the big provincial centres of population. The rest of the 16,000 are "Justices of the Peace" or "Lay Magistrates". Only a few of these have professional qualifications. They work on a part-time basis — on an average perhaps each sits in court on twenty or thirty days a year. For centuries they have been affectionately known as the "great unpaid", though arrangements are now being made to enable them (when the country's economic position permits) to be compensated for loss of earnings. They have occasionally been described (with less affection) as the"great unlearned", but this too is becoming out-of-date, as the Lord Chancellor, who is the nearest English equivalent to the continental Ministers of Justice, now insists that all "J. Ps" (as the Justices of the Peace are invariably called) should undergo a prescribed course of training before they embark upon their judicial duties.
    Like many other English institutions, the magistracy has its roots far back in the country's history. It can be traced with precision for more than six centuries, and with reasonable certainty for nearly two more. During this long period the institution has undergone many vicissitudes: the status, prestige, power, and function of the magistrates have varied greatly from time to time. They have had their ups and downs. At the height of their power, which lasted through most of the sixteenth, seventeenth, and eighteenth centuries, they were the most influential class of men in England. After 1800 great areas of authority were removed into other hands. Later still the pendulum started swinging back towards them, a movement which may still be going on.

    The present post-war crime wave is placing a severe strain upon the English judicial system. It was an earlier war and post-warcrime wave which was responsible for the magistracy coming into

 

36—693005. Svensk Juristtidning 1969

 

existence. During the fourteenth century there were two factors which especially threatened the tranquillity of the country. One was the long drawn-out fighting in France; soldiers who had acquired a taste for plunder in the king's wars abroad found it difficult to adapt themselves to keeping the king's peace at home. The other was the devastating plague known as the Black Death. With a mortality rate of between a third and a half of the population, the surviving agricultural labourers were in a strong bargaining position. The authorities did not believe in allowing the law of supply and demand to have free play, and attempted to impose a massive wage-freeze. Labourers were forbidden to demand the increase in pay which their scarcity value could have obtained; they were also forbidden to leave their homes, which meant that, when they did, the quiet of other remote rustic communities was likely to be threatened. It is against this background that the establishment of the Justices must be viewed. The time came when the government decided that the appointment, by the Crown, of local gentry independent of the great lords in their various localities, was the best way of dealing with the urgent problem of internal security.
    English institutions grow slowly, and the first J. Ps did not springfully-grown from the brain of King Edward III, like Pallas Athene from the head of Zeus. After various tentative experiments, an Act of 1327 assigned, in every county, "good men and lawful a la gardea la pees." In 1361 the appointments were put on a more regular basis:—"In every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy in the county . . . and they shall have power to restrain the offenders . . . and to pursue, arrest, take and chastise them according to their offence . . . and also to hear and determine at the king's suit all manner of felonies done in the same county, according to the laws and customs."
This old Statute remains surprisingly alive. Justices are still appointed "in every county of England." Although it is no longer obligatory for one of them to be a Lord, few counties are unlucky enough to have no Peers among their J. Ps. Numbers have changed: the three or four in each county has grown to an average of three or four hundred, but the intention is still that they should be chosen from "the most worthy in the county"; and their main task remains "the keeping of the peace".
    It has been claimed by the historians that England's early attainment of English national unity and internal administrative uniformity owed much to the institution of the J. Ps; they were chosen from the strongest and most stable elements of the gentry scattered

 

throughout the country, who possessed intimate knowledge of the people and conditions in their localities. They grew steadily in authority and esteem, and at the end of the sixteenth century the celebrated lawyer Sir Edward Coke was able to say that they provided "such a form of subordinate government for the security and quiet of the realm as no part of the Christian world hath the like".
    For about three hundred years the J. Ps remained upon a high plateau of power. They combined the roles of Policemen, Judges, Civil Servants and Local Government authorities. Their decline in authority and esteem began during the eighteenth century; no single cause can be assigned for this decadence, but the appointment of unworthy men, as a reward for their fidelity, or servility, to the Governments of the day, was perhaps the most important factor. The result was that, when the great reforms of the nineteenth century were under way, it looked as if the Justices were going to be reformed out of existence. Between 1829 and 1888 they lost, by successive stages, nearly all their administrative (as opposed to judicial) power, and the great constitutional historian Maitland intoned an eloquentfuneral oration over what he believed to be their grave:—"The J. P. is cheap, he is pure, he is capable but he is doomed; he is to be sacrified to a theory, on the altar of the spirit of the age."
    In fact Maitland's lamentations proved to be decidedly premature. During the eighty years which have elapsed since he wrote this passage, the lay magistracy has regained much in public favour, and has acquired an ever-widening sphere of activity in the administration of the criminal law. The fears that the J. Ps would be supplanted by a nation-wide professional body have proved unfounded. "Stipendiaries" were first appointed early in the nineteenth century, in selected localities (notably London) because of the corruption, incompetence, or paucity of numbers of the J. Ps at that time and in those places; there are today just about as many stipendiaries as there were a century ago. The Justices have grown in popularity (or declined in unpopularity, for no judicial body can ever be very popular); perhaps the main reason for this has been the much improved methods of selection. Whereas they used to be mainly drawn fromone class (the gentry), one party (Conservative), one religion (Anglican), and one sex (male), modern Lord Chancellors, irrespective of their own political affinities, make it their business to cast their net as wide as possible — and today a squire may well find that his neighbour on the Bench is the wife of a farmworker. Other measures have been taken to weed-out the old and the unfit. It used to be no novelty to see, officiating as a magistrate, a nonagenarian who was equally in-

 

firm in body and in mind; now all J. Ps have to retire at seventyfive, and this limit is shortly going to be reduced to seventy. But perhaps the greatest and most beneficial change has been the arrangements which now exist (as has been mentioned above) to ensure that the "great unpaid" are no longer the "great unlearned".
    The J. Ps perform most of their duties in "Magistrates' Courts". To constitute such a court there must be at least two of them (in contrast to a stipendiary, who normally sits alone); the usual numberis three, though it is sometimes more. They are assisted by the clerk of the court, who should possess legal qualifications. There are only two methods by which criminal cases can be tried— either by the magistrates themselves ("summary trial") or by a Judge and Jury ("trial on indictment"). The general rule is that trivial offences, such as keeping a dog without a licence, are always tried summarily; that the gravest cases, such as murder, are always tried on indictment; and that the great mass of cases between these two extremes, such as stealing, can be tried either way, according to the choice of one, or the other, or both of the parties; sometimes the preference of the court itself may be the decisive factor.
    It has been said above that over 97 % of criminal cases are disposed of before the magistrates. But perhaps this remarkable figure is not very meaningful, as it includes hundreds of thousands of trivial motoring offences and minor breaches of the peace. A Judge and Jury may take fifty days to try an involved case of fraud, while in the magistrates' court next door a hundred cases, of incorrect parking or of exceeding the speed limit, may be disposed of every day— on paper, but only on paper, showing a "productivity ratio" of fivethousand to one!
    These routine and petty matters are dealt with speedily and informally —usually on a consideration of the documents, and without any parties or witnesses appearing. But the work of the magistracy is by no means confined to such boring and trumpery proceedings. The magistrates' courts also play an important part in the sphere of "real"—as opposed to technical—crime. For instance, well over 90 % of charges of stealing and similar offences of dishonesty (all of which can be punished with imprisonment) are in fact tried by the magistrates. In these cases the Crown and the prisoner may or may not be represented by a lawyer; both branches of the legal profession ("Barristers and Solicitors") have the right of audience in the magistrates' courts, and, as a result of recent legislation, ever-increasing numbers of accused persons are granted "free legal aid", and are thus represented without any cost to themselves.

 

    Criminal cases begin with the choice (where there is one) being made as to whether the case is going to be tried by a Judge and Juryor by the magistrates themselves. If the former procedure has to be, or is chosen to be, followed, the magistrates have certain duties of investigation to perform — which are often (as a result of recent and beneficent legislation) purely formal, but which can occasionally be lengthy and controversial — in one complex matter, proceeding while this is being written, the preliminary enquiry before a stipendiary magistrate has so far lasted a hundred days! If the case is going to betried "summarily", the accused person is asked whether he pleads "Guilty" or "Not Guilty". If there is a plea of "Guilty", which happens in perhaps three-quarters of the cases, the sole (and very important) duty of the court is the determination of the proper sentence. In the remaining cases the question of guilt or innocence has to be investigated. The procedure in a contested case in a magistrates'court can be explained quite shortly. An opening statement, telling the court what the case is about, can be made by or on behalf of the prosecutor. Such a statement is often dispensed with (nearly always when the prosecution is not legally represented); it is sometimes very short, and occasionally much too long. Then the witnesses for the prosecution give evidence, examined by the advocate if there is one, and by a police officer or the clerk if there is not. If the prosecution fails to establish a case which requires an answer, the charge should be dismissed at once; if the only witness against A, charged with snatching the old lady's bag, says 'I felt sure he was the man, but looking at him now, I'm not too certain,' that should be the end of the matter. If there is a case to be answered, the defendant can give evidence on oath, on which he can be cross-examined, or make an unsworn statement, on which he cannot. Witnesses for the defence follow. Finally, the defence advocate makes a speech setting out thereasons why his client should be acquitted.
    At the end of all this, the magistrates consult together (they can consult their clerk if any question of law is involved), reach a conclusion, and announce it in open court. A stipendiary magistrate has no one to consult, and must make up his own mind unaided.
    Where an accused pleads "Guilty" or is found "Guilty", the court then has to decide what should be done with him. Questions involving sentence are sometimes as important, and often at least as difficult, as those involving guilt and innocence. They also have tobe answered far more frequently. While it has been estimated that there are probably more than 250,000 cases a year in which the decision "Guilty" or "Not Guilty" has to be taken, it is certain (for we

 

are here back on hard statistical ground), that over 1,250,000 sentences have to be passed, following pleas or findings of guilt. It would be foolish to claim that everyone of this vast number of cases required, or obtained, prolonged and anxious consideration; even the most conscientious Bench is not likely to spend much time in making up its mind in a simple uncontested case of motor-car obstruction. But there are many occasions when the whole future life of a man or woman (perhaps still more of a boy or girl) may depend on the court's deciding on the right sentence or order. Hurry or casualness in such a situation would be inexcusable.
    In England a very wide discretion in the matter of sentencing has always been left to the judiciary, though recent Acts of Parliamenthave tended to restrict it in certain directions. There are virtually nominimum penalties, and the courts have the right to exercise almost unlimited leniency; at the other end of the scale there are maximum penalties for all offences triable in magistrates' courts, which must in no circumstances be exceeded.
    Of the two main kinds of sentence which exist today, fines have been imposed, for many different offences, from the earliest times; imprisonment, on the other hand, in this country and in its presentform, is a comparatively modern conception. People were originally sent to prison, not as a punishment, but as a means of keeping them in safe custody until they were tried and, if guilty, executed ormutilated in some disagreeable way, or banished. The idea of imprisonment for the purpose of punishment was first put into effect, on a very limited scale, in the sixteenth century, as part of the official policy for dealing with the growing problem of vagrancy. 'Bridewells' or 'Houses of Correction' were built for the reception, punishment,and reform of the various classes of vagabonds and beggars whose activities, or lack of them, were such a trial to the government of the day. A new form of sentence — transportation — came into existence after the acquisition of the American colonies, and later of Australia; it is one which looms large in the records of criminal trials from the time of the first Stuart kings until well into the nineteenth century. Fines and imprisonment still play an important part in sentencing policy, in magistrates' courts as in others. But there is a great numerical contrast between these two types of punishment. 90 % of sentences imposed by magistrates take the form of fines; less than 2 % of offenders are sent to prison. The remaining 8 % are mainly made up of people being discharged, either with or without conditions, or being put on probation.
    The maximum penalty naturally varies with the gravity of the of-

 

fence. An attempt has been made recently to revise the scale of fines to take account of the catastrophic fall in the value of money which the country has endured, especially over the last thirty years. At the beginning of 1968 the maximum fine for most of the serious crimes triable in magistrates' courts was increased from £100 to £400. Corresponding increases were made lower down the scale, though a few uncommon offences seem to have been forgotten during this reforming process, and there is at least one "crime" which still carries a maximum fine of five shillings. While inflation has so effectively debased the currency, it has, of course, had no effect on prison; one month's imprisonment is as long now (though certainly not as disagreeable) as it was a century ago. Therefore there has, sensibly enough, been no great change in the length of custodial sentences which magistrates can impose. The serious offences mostly carry a maximum of six months imprisonment (in addition, or as an alternative, to the £400 fine). When dealing with two offences of this kind, consecutive terms of six months can be ordered. There are only a few cases in which a magistrates' court can impose a longer sentence than twelve months. The Statute which increased the powers of the magistrates in financial matters has reduced their discretion so far as custodial sentences are concerned. England has borrowed the idea of the "suspended sentence" from the continent. This in itself representsan enlargement of choice, and is a reform which has been widely welcomed. The reduction of discretion is found in the provision which makes it mandatory for many prison sentences passed in magistrates' courts to be suspended (for periods between one and three years) except in certain well-defined circumstances, of which the fact that the offender has previously been sent to prison is the most important.
    The trial of criminal cases constitutes, numerically at least, the most important aspect of the work of the magistrates' courts. The preliminary inquiry into cases which are going to be tried by a Judge and Jury is of diminishing significance. But the magistrates also possess a jurisdiction in non-criminal matters which, although little publicised, has an immense impact on the people with whom they deal. This concerns the problems which arise when a marriage has broken down, and when the welfare and maintenance of children, whether or not there has been a marriage, is in issue. One part of this authority has a long and varied history: Justices have been able to make certain orders in respect of illegitimate children since the days of Elizabeth I. A Statute of 1576 gave the Justices power to punish the mother and reputed father of a bastard child ('stripped

 

naked from the middle upwards and soundly whipped through the town') while both parents could be made responsible for the infant's keep, with imprisonment in default of payment. The first and ferocious part of the enactment seems to show Parliament using the criminal law for the purpose of suppressing immorality, but the main aim of the legislation was to reduce the number of paupers 'left to be kept at the charges of the Parish where they be born, to the great burden of the said Parish'. It was not until 1844 that the mother of an illegitimate child was herself able to get an order for maintenance against the father. Although the whipping provision was abolished long ago, implications of the Elizabethan Statute remain. While most affiliation cases today are brought by the mothers, if the child is in the care of a Local Authority the Council can obtain an order against the father, showing that one of the objects of the legislation still is to prevent the infant becoming a charge on public funds.
    The rest of the work in relation to children and families has devolved upon the magistrates much more recently. Some of it is handled by the Juvenile Courts: here applications for the adoption of children are heard, and also cases concerning boys and girls who, while they are not accused of committing any criminal offence, have been brought before the court because they are thought to be in need of care, protection, or control. In such cases the court has the choice of a number of remedial measures, including the power to make a Fit person order and an Approved School order, forms of treatment which are also used in the case of delinquent children. But cases in which husbands or wives ask for separation, maintenance, or the custody of the children of the family, and those in which young people ask for permission to marry when this has been refused by their parents, come before the ordinary magistrates' courts.

 

The above represents a very brief and inadequate attempt to explain how the magistrates' courts came into existence, and the nature of their work today. Perhaps to the foreign student of these matters the more interesting question is this: does this large-scale involvement of laymen in the administration of justice work well? is Coke's dictum ("a form of subordinate government for the tranquillity and quiet of the realm as no part of the Christian world hath the like") still justified, if indeed it ever was? and is there any serious likelihood of the system being changed? The first thing that must be said is that it is almost impossible to defend the existing arrangements in terms of logic or theory. It does not make much sense that laymen should dealwith immensely important issues in the spheres of criminal and

 

matrimonial law, while the most trivial claim in contract or in tort has to be determined by a fully-trained, fully-paid, (and, incidentally, fully robed) professional Judge. Nor is it very easy to appreciate the wisdom of a plan under which most of the criminal cases in Inner London are dealt with by stipendiaries, while such professional magistrates do not exist in identical urban areas just outside the old metropolitan boundaries.
    Although we are all living in a period of rapid change, the English are much attached to tradition, perhaps especially where the law is concerned. A theatrical Lord Chancellor in a popular comic operasings:—

"The Law is the true embodiment

Of everything that's excellent.

It has no sort nor kind of flaw,

And I, my Lords, embody the Law."

This, of course, is an exaggeration, but the fact that the lay magistracy has existed for more than six hundred years is held to be a powerful reason why it should continue to exist. There are other reasons. The most important of these is that it really works reasonably well, and should work still better in the future as the new procedures concerning selection and training of J. Ps are fully implemented. A study of appeals to the High Court certainly shows that the Justices sometimes come to very foolish conclusions, but thenit is not unknown for professional Judges and magistrates also to do very silly things. It has been argued that an incompetent stipendiary is a worse tribunal than an incompetent Bench of Justices, as thereis comparative safety in numbers. To replace the lay magistracy would require the creation of some hundreds of new stipendiaries or junior judges, and in practical and political terms such a suggestion would be quite unrealistic. England has a far smaller proportion of professional Judges of all kinds in relation to its population than any other civilized country (less than 300 for nearly 50,000,000 people). Quite apart from the financial aspect of the question (and that is immensely important), the legal system is not geared to the massproduction of judicial officers. There is no "Judges' profession"; no young man embarks upon his legal career by training to be a Judge; nearly all Judges, at all levels, are drawn from the ranks of the practising barristers and solicitors, and, as things are at present, it is hard enough to find suitable candidates to fill the existing posts. There used to belively controversy on the issue of "Amateurs versus Professionals". More than once, through the centuries, the Governments of the day threatened J. Ps that, if they did not improve their performance,

 

they were in danger of being abolished. Under Elizabeth I, when they were thought to be inattentive to their duties, the clearest hint was given of what might have to happen. If the J. Ps did not mend their ways, the Lord Keeper threatened, 'Her Majesty may be driven, clean contrary to her most Gracious Nature and Inclination, to appoint and assign private men, for profit and gain sake, to see herpenal laws to be executed'. On the other hand, the arrival of the first stipendiaries met with a great deal of opposition; there were complaints against the growth of government patronage and the increase in government expenditure. But these controversies are more or less obsolete. In spite of the lack of logic in the present system, there is a surprisingly wide area of agreement in favour of leaving fairly well alone, and against substantially altering the existing situation. A study of the debates in both Houses of Parliament, when the matter was discussed recently, is revealing. There was plenty of criticism of the working of the courts and the conduct of magistrates on points of detail, but there was almost universal approval for the maintenance of the dual system. No one proposed to abolish the stipendiaries; only one peer came out whole-heartedly against the J. Ps, declaring that they were 'as anachronistic as oil-lamps andside-whiskers'. So there appears to be no likelihood, in the near future at any rate, of amateur magistrates being replaced, as a whole, by professionals, or the other way round.
    But it does not follow that things will always remain exactly asthey are today. Several changes are being actively canvassed. One concerns the peculiar position of the legally-qualified clerk, when sitting with a Bench of lay magistrates. Whereas Justices are entrusted with the duty of deciding cases involving points of law, all the technical knowledge is possessed by their servant, on whose advice they must therefore rely. If legal argument takes place in court, the argument is addressed to the Justices, who may hardly follow a word of it; inreality, therefore, it is intended for the ears of the clerk who, in a word, has power without acknowledged authority or responsibility. One solution suggested for this formidable difficulty, is that the Clerks should themselves become magistrates, so that they could fully, and without subterfuge, participate in all the activities of the Court.
    Another proposed avenue of approach concerns the setting-up of mixed courts—presided over by a stipendiary, who would have the assistance of two J. Ps. To a limited extent this has happened already. The Juvenile Courts provide an example of this. When they were etablished in 1908 the stipendiary magistrates in London ran them alone; in 1933 they were required to sit (if at all) with lay

 

Justices, and by 1945 the stipendiaries had given up this work. After the Second World War some of them returned to preside in the Juvenile Courts. Their lay colleagues expected the worst, but sometimes had to admit that their learned chairman was not quite as awful asthey had feared. On the other hand, matrimonial cases had always been within the exclusive jurisdiction of the stipendiaries. An Act of 1935 made it possible for the Justices to take part in this important work; the metropolitan magistrates increasingly presided over these courts, assisted by two J. Ps, whom they often found surprisingly helpful.
    There is no reason why this form of partnership should not be extended. There are many cases, involving difficult questions of law, construction, or evidence, in which J. Ps would get immense help from having a professional chairman presiding over their deliberations. Equally, it could only be an advantage to a stipendiary, where human problems arise (such as sentencing in criminal cases, or the custody of children in matrimonial proceedings), for him to have the assistance of two intelligent and sympathetic laymen.
    Whether the Justices will ever play a bigger part than they do incriminal proceedings depends very largely on the future of the jurysystem. Until a few years ago the jury was almost universally regarded as a sort of judicial ark of the covenant; to suggest that it should be abolished, or to impugn the wisdom of its often mysterious workings, was near to sacrilege. 'Trial by Jury ever has been, and I trust ever will be, looked upon as the glory of English law,' wrote the great Blackstone, who has himself been looked upon as one of the glories of English law. This unquestioning adulation has rather suddenly come to an end. The theoretical basis of the system has been challenged by distinguished academic lawyers, and its practical efficacy doubted by eminent judges. Their criticisms have been reinforced by a number of puzzling verdicts and disagreements; recent, and unofficial, breaches of the veil of secrecy, in which proceedings in the jury room are normally shrouded, have sometimes been disturbing rather than reassuring. The institution is now attacked on many grounds. It is said that the main need for it — as a check on Judges who were anxious to placate their royal masters by their conduct in Court — has disappeared. It is pointed out that the jury has already declined greatly from its former importance, and that no one is anythe worse for it. Finally, it is urged that a jury, by reason of its composition and the circumstances in which it sits, is by definition unlikely to be the best tribunal to find the right answer to the questions it is asked. There is no other comparable activity in life in which

 

experience is not regarded as an asset, no other social institution with such haphazard and fleeting membership.
    If the jury system disappears (as it has done in many foreign countries) there will be a need to find a 'competent receiver'. Few people would welcome an increase in the power exercised by a judge or magistrate sitting alone. Even the best of individuals may have off-days when he falls below his normal standards of fair and balanced judgment, and there is no certainty that every individual concerned will be among the best. The Justices might turn out to be the competent receivers, who could fill the vacant seats. The change in the composition of the magistracy during this century makes such a proposition more acceptable than it would have been earlier. A great advantage claimed for trial by jury was that it enabled a manto be tried by his peers or equals, and prevented him from being judged by people with a very different background from his own. Fifty years ago a young farm-labourer, accused of a serious crime, might have felt, and with reason, that he would not get a fair hearing, especially if his alleged offence contained some element of poaching or trespassing, if he appeared before a Bench of elderly squires, and he would have preferred, in the picturesque old phrase,'to put himself upon his country'. Since then the gap between such a young man and an average Bench has narrowed more than has the gap between him and an average jury. With the widening ofthe field of selection from which Justices are drawn, the prisoner might find on the Bench someone nearer to being his peer, in terms of age and class, than anyone in the jury-box.
    The advantages of such a change in the system might be considerable. For the trial of a complex charge of fraud, for instance, two magistrates with financial and commercial experience could give invaluable assistance to a presiding Judge or stipendiary, and the three of them together might constitute a more effective tribunal than one consisting of a lawyer, who had only a nodding acquaintance with balance sheets, and twelve jurors who had never seen such things in their lives.
    But the innate conservatism of the English, in the context of the legal system, will probably ensure that the institution of the Jury (which is even older than that of the Justices) will survive for sometime yet, and the main rôle of the magistrates will continue, for the foreseeable future, to be the trial of criminal and matrimonial proceedings in their own courts.