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For the New Lord Chancellor - By Kingston Law School This article critically examines rhetoric about magistrates. It highlights
concerns for the new Lord Chancellor (see note 1). Blackstone, for whom the jury was the most admirably constituted fact-finding body "in the world" (see note 4), lists the "mischiefs" that have resulted from removing offences from jury trial and demoting them to trial before justices (see note 5). He is not as contemptuous as that modern rhetorician, Michael Mansfield, however. He dismisses all magistrates, in Presumed Guilty (1993), with but a page of discussion. He would abolish them and make jury trial compulsory for all defendants contesting their guilt (see note 6). Gifford, in Where's the Justice?, sees lay justices as "white, middle class, middle-aged people sitting in judgment over young, working class and often black defendants" (see note 7). Their fellow Q.C, Geoffrey Robertson, condemns them as "ladies and gentlemen bountiful", politically imbalanced, unrepresentative of ethnic minority groups and women, who: "slow down the system and cost a fortune. We should have either juries, or sensible stipendiary magistrates to get through the work of the minor courts. (see note 8)" Gifford and Manfield dwell on the behaviour of magistrates during the 1984 miners' strike. In this and their treatment of poll tax defaulters, magistrates are portrayed as living up to a long history of enforcing laws and policies of a Tory ruling elite (see note9). According to Bar lore, the burden of proof in magistrates' courts is reversed (see note 10), so readily do magistrates believe police witnesses. Of course magistrates cannot be expected to join in this part of the rhetoric but, astonishingly, they have adopted Burney's epithet "self-perpetuating oligarchies" as a worthy description of the advisory committees who recruit and select them (see note 11). Lawyers' rhetoric is reflected in surveys of public and/or defendants' opinions of the magistrates' court, such as those cited in the 1975 James Report (see note 12): "The belief that (jury trial) a superior mode of trial is widespread
and seems to be based on two main grounds. The first is that the traditional
jury, selected virtually at random, brings a more impartial mind to
bear on the issues than magistrates, who inevitably become `case-hardened'
and may be too ready to accept the prosecution case." The importance of the magistracy Given the shift of criminal business from the jury to magistrates over the centuries since Blackstone warned against it (see note 18), I contend that it is as irresponsible as it is fatuous to suggest, as Mansfield does, that the right to jury trial be restored for all but the most trivial of offences. It is not going to happen. It is high time we bore our responsibility as commentators to deal with what we have got. If we have concerns about magistrates, we had better deal with them. Causes for concern Concerns exposed in the rhetoric and public opinion above seem to be the method of selection of the magistracy, their composition, high conviction rate, association with the police and willingness to believe police evidence. John Jackson castigated the 1991-1993 Royal Commission on Criminal Justice for failing to investigate the causes of "the deep unpopularity of magistrates' courts" (see note 19). Additionally, my particular concern is the lack of a requirement that clerks advising lay justices be professionally qualified and specially trained. I shall examine these concerns in turn, with the aim of exploring whether the rhetoric has any basis in fact. Composition Lord Chancellors have made extravagant claims of the representatives of lay justices. Lord Hailsham, for instance, said: "There is, I verily believe, no people's court on either side of the Iron Curtain or anywhere in the world which is as representative of the responsible elements of society as the lay bench of England and Wales. (see note 20)" Lord Mackay expressed similar sentiments in 1995 (see note 21) and successive Lord Chancellors have instructed their advisory committees that it is their "duty ... to find suitable candidates from all sections of the community" (see note 22). A glance at any Bench (see note 23) of magistrates and a closer examination of statistics shows us that committees are not fulfilling the Lord Chancellor's desire. The clichéd complaint is manifest: lay magistrates are too white, middle class, Conservative and, I would add, old. I urge Lord Irvine to read the House of Commons Home Affairs Committee Third Report for 1995-1996, Judicial Appointments Procedures (1996), preferably the minutes of evidence in Volume II. Ethnic origin: white No statistics are available. Non-whites are estimated to be 2 per cent (see note 24). In the 1990s, 4.4 to 5.5 per cent of annual appointees were ethnic minorities (see note 25). This is inadequate. To counter the imbalance identified by King and May (see note 26), and recognised by Lord Mackay, the Lord Chancellor should be appointing a greater percentage of non-whites, especially since they are over represented among both victims (see note 27) and defendants. The contrast between white magistrates and their non-white clientele is most stark in areas where minorities are concentrated, such as London, where non-whites form 20 per cent of the population (see note 28). Social class: middle The Department presented no statistics. Research results are depressing. We have the middle classes judging over the rabble, as in Blackstone's day. Like all previous studies, Henham, in 1990, found a "predominantly middle class bias in the social composition of the magistracy" (see note 29), illustrated by the 1995 evidence of the Sunderland Bench by Joe Hall (see note 30) and Chris Mullin M.P (see note 31). The 1993 Magistrates' Yearbook showed seven magistrates lived in one street of only 43 houses, while virtually no magistrates were drawn from some of the vast post-war estates, housing 150,000. Fifteen magistrates lived up to 40 miles outside Sunderland. This is not peculiar. The area of greatest weakness was identified by Rosemary Thomson, speaking for the Magistrates' Association, as inner London, where magistrates sitting in Brixton may be drawn from Hampstead. Magistrates' middle class world view dictates the standards they apply in judgment. Brown, in 1991, found their yardstick of the stable family to be "deeply gender and class biased" (see note 32). The Committee heard of increasing difficulties in recruiting the employed and unemployed (see note 33). The excuses repeatedly offered are that not enough people apply, fearing loss of opportunities at work and pressure from employers, but a more revealing explanation was apparent in a senior magistrate's response to this essay: "Well, if a person's still on the shop floor when they're of an age to be appointed then they probably haven't got what it takes to be a magistrate". Another explanation was that such a person "would not be of the right calibre". These attitudes betray a recruitment process, operated by such magistrates, which has worsened the domination of the Bench by the middle classes. Politics: Conservative Lord Irvine should be alarmed that only 27 per cent of appointees in 1994-1995 were Labour voters. Forty-one per cent voted Conservative. The political profile of magistrates within the Lord Chancellor's purview in 1995 showed 11,789 claimed to be Conservative, at their time of appointment and 5,786 Labour (see note 34). In all but one county in non-Tory Wales, Tories are the biggest group. Labour Sunderland is represented by magistrates drawn predominantly from three or four Conservative wards in a city of 24 wards (see note 35). Earlier this century, Labour campaigned to stop this over representation of Conservatives but appear not to be unconcerned. Indeed, Labour seems not to have any policies on magistrates (see note 36). Age: grey power I invite any reader to walk into any lay magistrates' courtroom. They are virtually certain to find that the oldest group are on the bench, possibly a generation older than their court clerk and those appearing before them. Given that the peak age of known offenders is 18 for males and 15 for females (see note 37), the age gap here is the widest and is acute in the youth court, with a double generation difference between bench and defendant. This has worsened since youth court justices' age limit was raised from 65 to 70. "In theory, you can become a magistrate at 21. In practice nobody is ever appointed before 27. (see note 38)" A "recent survey" by the Lord Chancellor's Department of 875 new magistrates showed that only 22 per cent were under 40 (see note 39). Lord Mackay accepted appointments of those over 60. Ample evidence was presented that people under 30 are difficult to recruit and advisory committees are resorting to the retired. Benches where the average age is over 55 are not uncommon (see note 40). Furthermore, from my observation, those who sit in court are further skewed towards the retired. They have time to sit far more often than the required 26-day minimum. Clerks call on them to replace a sick justice or a late cancellation. Despite Lord Mackay's recommended maximum of 80 sessions per year, I know of justices who have sat over 100 times per year, whose clerks jokingly liken them to stipendiaries. A justices' clerk commenting on this essay told me of one member of his city Bench who had sat for over 250 sessions (a practice which the clerk stopped). Imbalance in age is exacerbated by a reluctance to recruit a Bench representative of the community. Lord Kingsdown, Lord Lieutenant of Kent and chair of its advisory committee explained: "Lord-Lieutenants have expressed the view that people expect maturity on the bench ... , so I would not work very hard to get people under 40. (see note 41)" This assumes we wish local justice to be dispensed by the elders of the community. I do not. I know of no research which equates age with wisdom in the context of law-finding, judging character, understanding pre-sentence reports and sentencing. Judging from those in Government until recently, older people hardly hold the moral high ground of honesty and integrity. In Scotland, the age profile of Scottish children's panels is massively younger than English and Welsh youth court panels (see note 42). We trust jurors of all ages as fact finders and glorify juries for the legitimacy their diversity confers on the verdict. I suggest we study recruitment in Scotland. We could also limit tenure on the Bench to 10 or 15 years so more of the community would participate and those appointed in retirement would not be added to elderly Benches. Selection process - "a self-perpetuating oligarchy" Even the Magistrates' Association are, by now, so embarrassed by this that they complain: "The present method of recruitment is shrouded in mystery but, as far as we can see from the outside, the system is a self-perpetuating oligarchy. (see note 43)" The advisory committees Nothing much has changed since Burney wrote. Since 1992, Lord Mackay required committees to publish their names but, according to Joe Hall, this was confined to the Magistrates' Yearbook, in Sunderland. The Lord Chancellor instructs that the majority of members should be justices, with 15-20 per cent outsiders (see note 44). In the shire counties, committees are chaired by the Lord Lieutenants ("reasonable and distinguished people" (see note 45)) and elsewhere, the outgoing chairman normally selects his replacement. How the rest of them are selected is a mystery to the Magistrates' Association, which "strongly asserts that members should neither be elected by benches nor mysteriously invited to join the Advisory Committee". This state of affairs is obnoxious to those of us who aspire to live in a democracy. Suggestions for restructuring the committees were made by the Magistrates' Association and by Joe Hall. Both would open up the recruitment process but Hall would exclude magistrates from membership. His proposal, I suggest, attends to the need for constitutional checks and balances. I urge Lord Irvine to decide that the time has come to distinguish between local control, which is desirable, and control by local magistrates, which is not (see note 46). Magistrates have no more business than circuit judges to be appointing and selecting their colleagues. Method of selection Serving magistrates have been recruited in one of three ways: invited to put their names forward, nominated by local organisations or responded to advertisements. Burney, researching in the 1970s, found that "personal recommendation from committee members still form [sic] a very important source of recruitment" (see note 47). Many magistrates were recruited by their friends, without an interview, including Rosemary Thomson (see note 48). Some committees are at pains to attract outsiders but Chris Mullin concludes that "in certain areas benches do not make the efforts to appoint magistrates beyond the circle of their friends" (see note 49). The Lord Chancellor now instructs that all candidates are to be interviewed but leaves the method of recruitment to the committees. Circulating local "organisations" has long been a major source of recruitment. Burney found most magistrates were members of community organisations. Twenty years ago it was generally necessary for a stranger to the Bench to demonstrate such service. The LCD denies this is still a requirement but it remains the case that many magistrates are councillors and many have multiple membership of other local organisations such as health authorities or trusts or school governing bodies. The select committee noted a reduction in applications from outsiders (see note 50). As for advertising, some committees are much more imaginative and energetic than others (some will leaflet all households). Committees are given no independent budget and they have no means of exchanging ideas on best practice, nor are they bound by the Lord Chancellor's directions, so it is unsurprising that the Magistrates' Association complains there is "considerable variety" between them (see note 51). The Lord Chancellor should also note that the closed and self-perpetuating nature of recruitment to the Bench has allowed certain committees the freedom to pack the Bench with like-minded people or groups, most disturbingly freemasons. For instance, evidence from Kerry Barker, sometime secretary to the Portsmouth advisory committee, to the Home Affairs Committee's investigation of freemasonry in the judiciary and the police disclosed that in 1979, of 96 male Portsmouth justices, 35 were freemasons. Despite a moratorium on appointing more masons, the proportion did not immediately decline, in the 1980s, as new justices joined lodges after appointment (see note 52). The scandal of the best kept secret in the English legal system is that anyone can apply to be a magistrate, yet hardly any member of the public knows this. I have asked thousands of them. Over the last 20 years, I have asked lecture groups of up to 250, students, people at the pub, people at my kitchen table. On the day of writing this section, I asked my hairdresser: "How do you think you get to be a magistrate?" "What are magistrates?" (I explained). "I don't know. Go to university? Get a law degree? ... Be a policeman?" The hairdresser is not alone. When I say to lecture groups "Do you realise, any one of you could apply to be a magistrate or nominate anyone else?" they always burst out laughing, incredulous. This level of ignorance reflects that of the British public about all their institutions but is inexcusable. The public has a moral right to know. Without knowing, they cannot apply and are disenfranchised from their civic right to be considered for the magistracy. It can hardly be a surprise that people do not take up an opportunity of which they are unaware. The Magistrates' Association presses for advertising to make up for advisory committees who do not bother. In Project 95, they participated in 100 court open days, took stands at county shows and tried to attract media attention. It is a dereliction of Departmental responsibility for this to be left to the Association. There can be no excuse for not advertising to the public, nationwide. Adults realise that any of them may be called for jury service because a tick column appears on the electoral registration slip. Why not add another, inviting people to tick if they want to learn more about being a magistrate? Posters should face every post office queue and tube passenger. If we are serious about constructing a balanced Bench, we must advertise in The Mirror and The Sun and on television (see note 53). Lord Irvine might also consider: outlawing discrimination against magistrates in employment, hardly an onerous burden when justices total only 30,000; updating loss of earnings allowances and paying them direct to the employer; repealing the loophole in the Employment Protection Act 1996, s.50, which allows employers to avoid releasing employees for magisterial service; advertising in job centres. If lay justices gain their legitimacy from being "from the community ... local people delivering local justice in our local area (see note 54)" which appears to coincide with Jack Straw's plans to deliver localised justice, then New Labour must endeavour to see that justices represent the entirety of the communities they serve. If they continue to over represent white middle-class, middle-aged to elderly Conservatives, then we may as well replace them with Geoffrey Robertson's "sensible stipes" (see note 55). Magistrates are too closely associated with the police/too readily believe police evidence/have too high a conviction rate, relative to the Crown Court/the burden of proof in magistrates' courts is reversed These complaints are interlinked. Association with the police This is a relic of history. Keepers of the peace were forerunners of both police and modern justices. Magistrates' courts were called police courts until 1949. The visible dominance of the police has gone, replaced by Crown prosecutors and private security guards. The police no longer collect fines and do the listing, as they did in central London. The historic link survives, however, in statutory police accountability and is physically manifest in buildings. Magistrates retained their membership of police authorities in the unfortunately entitled Police and Magistrates' Courts Act 1994. The Magistrates' Association consented to this despite the fact that the majority of correspondents to The Magistrate (see note 56) saw it, and even the Bill's title, as inimical to their public image of judicial independence. Similarly, we might question the propriety of magistrates' membership of Police Community Liaison Committees and Crime Prevention Panels. Old magistrates' courts were often next to or in the same building as the police station, but there can be no reason for building newer ones slap next to the police station. There is no departmental policy on siting new courts. Lord Irvine could give the simple instruction that they are not to be constructed within sight of or in the same architectural style as the police station - never mind civic landholding or police convenience. Magistrates believe the police/place the burden of proof on the defence The attitude of too many justices is epitomised in the words of the bench chairman in R. v. Bingham Justices, ex p. Jowitt: "Quite the most unpleasant cases that we have to decide are those where the evidence is a direct conflict between a police officer and a member of the public. My principle in such cases has always been to believe the evidence of the police officer, and therefore we find the case proved. (see note 57)" Magistrates astonished me by supporting this statement, in recent conversations. This point is explored further below. Difference in acquittal rates In 1993-1995, Court Service Statistics show a 62 per cent acquittal rate for contested cases in the Crown Court but that includes those discharged by the judge. In jury trials, the rate is around 40 per cent. In magistrates' trials it appears to be around 22-24 per cent but the comparison is unreliable since counting methods differ and statistics are incomplete, as explained in Neglect (see note 58). The Royal Commission had a duty to question the desirability of the difference but did not bother. If we analysed the structural differences in the two types of trial and the decision making of the several types of decision-maker (judge and jury, stipendiary and justices and lay justices and clerk) we might conclude that there are too many acquittals in the Crown Court and an over-readiness to convict in the lower court or that there are acceptable reasons for the difference. There are no researched comparisons. Below, I endeavour to highlight some differences: Summary business includes many strict liability offences. The opportunity to contest guilt is radically reduced. This explains the much higher guilty plea rate and may partly explain the higher conviction rate following trial. This results from the structure of our criminal offences. It is no reflection on the fact finders or trial at either court. As for triable either way cases where the defendant is offered the option, we seem to be asking "do you want to be tried here, or in the Crown Court, where your chances of acquittal are higher?" This surely cannot be acceptable, in a rational legal system, unless we are content that the difference is a product of jury equity and we are happy with that concept (which I am not, in either respect (see note 59)) or that somehow, the more equivocal cases find their way to the Crown Court, thus explaining the higher acquittal rate. There is some evidence that the equivocality of either-way cases is a factor in the defendant's election. Some plead not guilty in the magistrates' court, not convinced of their innocence but to have the evidence fully exposed. They are safe in the knowledge that their plea will not be punished with a greater sentence, as it might be in the Crown Court. The tactic may, indeed, reduce the sentence (see note 60). In the United States, these cases are known as "slow pleas". With serious middle band offences, sent to the Crown Court by magistrates or indictable only offences, we can only justify the higher acquittal rate if, again, we are happy with jury equity and/or satisfied that there are differences in the nature of serious offences which make them more difficult to prove, or justifiable differences in the degree of protection we offer the defendant, for fear of wrongly condemning a citizen for a grave crime. Ashworth made the point that "the presumption of innocence may be thought to suggest that, when the consequences of conviction would be most serious for the defendant, the fairer (or at least the fuller) form of trial should be used" (see note 61), but that rationale cannot be extended to justify a higher acquittal rate as a result of the fuller form of trial because the corollary must be that, following the shorter summary trial, which the majority of defendants are consigned to or opt for, there is a much greater chance of wrongful conviction. There are, of course, practical reasons why it is more difficult to prove a grave crime because the fact finders have to be convinced of a higher degree of mens rea. As Cross and Tapper put it: "Allowance must be made for the fact that some occurrences are antecedently more probable than others, and the consequences of some decisions are more serious than others. People are less likely to commit murder than to drive recklessly ... it is more serious to be imprisoned for life for murder than to be conditionally discharged by a magistrate for assault." This does not mean that there is a stricter standard of proof than "beyond reasonable doubt" in serious criminal cases (see note 62). We are then left to explore other reasons for the difference in acquittal rates. We must compare magistrates' low acquittal rate with both jury acquittals and acquittals directed by the judge, following a plea of "no case to answer". In view of the complete failure of the Royal Commission to address this question and in the absence of much research, my points should be treated as hypotheses for research and/or discussion: Unlike magistrates, most English jurors are unfamiliar with the courtroom and may be distracted by their surroundings and extraneous matters such as play-acting. Instead of the burden of persuading 10 strangers, the prosecutor before magistrates has the easier task of persuading one stipendiary or two of three justices, all familiar with the act of convicting. English and Welsh jurors' relative naivety makes them easier targets for persuasive advocacy of defence counsel. Counsel would express this as the magistrates being more case-hardened. American juries have much higher conviction rates (80 per cent throughout the 1980s and consistently higher than Reaganite judges' conviction rates (see note 63)) and I suggest this may be because they are generally more experienced. Jurors are conscripts; magistrates are not. Conscripts may acquit to escape incarceration in the jury room (see note 64). Magistrates, unlike jurors, are in control of proceedings. They readily interrupt trials to clear up confusion or summon the clerk into their deliberations. Jurors seldom interrupt and cannot call in the judge. Sending a note out bears no comparison. Confusion causes doubt, of which the jury gives the defendant the benefit. Magistrates too readily believe police witnesses (see note 65). Research and commentaries on the point all substantiate this defence lawyers' claim. Because of their different social composition, I would expect jurors and magistrates to apply different standards, such as where assault or dishonesty are alleged. English jurors can legitimately be encouraged by the defendant to flout the law to apply their own "equity" or "nullify the law", as Americans call it. Justices and stipes are, in practice, free to nullify. (I see no logic in celebrating the jury's freedom to do something for which we would castigate justices and stipes. This just exacerbates the division between the two tiers of justice.) The quantum of proof is sometimes set far too high in jury trials. Defence counsel too often, in my observation, get away with describing quantum in terms bordering on absolute proof, uncorrected by the judge. Judges exhort jurors to convict only if they are "sure" of guilt, which, were I a juror, I would interpret as a much higher degree of proof than "beyond reasonable doubt". Some judges append an explanation using the phrase "beyond reasonable doubt" but many do not. I have a hunch that jurors fix a very high standard. As one juror in a recent multi-handed drugs trial said, "all my fellow jurymen and jury women took this to mean that if any of the defendants could offer any explanation - however ludicrous - we should accept it" (see note 66). I suggest some magistrates fix the standard far too low, bordering on probability. Clerks and legally qualified justices commenting on this paper have confirmed my suspicion. We need research into how real jurors and magistrates interpret the standard and we should reconsider how to describe the standard to jurors and justices. Unlike jurors, magistrates are in control of sentencing so will not acquit because they are worried about what may happen to the defendant or his family. While ordered and directed judicial acquittals in the Crown Court are so frequent they out number jury acquittals (see note 67), from my observation of magistrates' courts, the frequent submissions of "no case to answer" very rarely succeed in the equivalent of directed acquittal. There is no research on this and no statistics (see note 68). We need to know why judges and recorders effectively acquit much more readily than magistrates. It could be because clerks and solicitors are much less adept at spotting evidentiary defects and/or because magistrates are less likely to accept arguments of evidentiary defects than judges and recorders and/or because submissions such as "no case" are much more weakly argued in magistrates' courts. There are structural weaknesses in both the legal and practical rights of the defence in summary trials, compared with trial on indictment and in the way defence cases are prepared and presented. These have nothing to do with the fact finders. An example is obligatory prosecution disclosure, available in the Crown Court and put on a statutory basis by the Criminal Procedure and Investigations Act 1996, which remains patchy in summary trials. As for the preparation and presentation of cases, glaring inadequacies are exposed by Vennard and in Standing Accused, such as solicitors not bothering to interview the defendant until just before appearance and leaving it to the defendant to organise witnesses. Some of these points need researching. Knowing more about reasons for the difference in acquittal rates will surely help us decide whether we want to keep our two tiers of justice and what it is we want from jurors and magistrates and how they can best perform their functions. Magistrates' clerks The other great secret of the magistracy is that lay benches are frequently dependent on court clerks who are not lawyers. The Lord Chancellor has no statistics but a 1995 Justices' Clerks' Society survey of 80 per cent of Benches showed that approximately 55 per cent of regular court takers are barristers or solicitors. These include many of the 200 justices' clerks, plus their deputies, plus about 1,535 court clerks. All justices' clerks and most deputies are barristers or solicitors but most court clerks are not. They may be law graduates or holders of the diploma in magisterial law, or unqualified people who served as clerks for five years up to 1980 and were certified as competent by their magistrates' courts committee. The youngest if these are now in their early forties. Diploma students and part-time distance learners may be authorised to clerk on completion of just one year of the course. Those who have taught on the course speak sceptically of the competence of clerks who have struggled to achieve the 40 per cent pass mark (see note 69). The public might consider it self-evident that lay people taking legal decisions should have a lawyer's advice. Indeed, most lawyers assume this to be so, since textbooks (see note 70) and other authorities make this mistake. Alarmingly, the Home Affairs Committee thinks "(magistrates) are advised on legal points by a professionally qualified Justices' Clerk (see note 71)" and Mansfield assures us "There is always one professional lawyer in court to advise the bench and that is the Justice's [sic] Clerk. (see note 72)" In The Magistrates' Clerk (1984), I concluded from my research that qualified clerks had a more acute awareness of the legal limits of their role and the proper role of other professionals appearing before them. I readily concede that clerks are better versed in magisterial law than those appearing before them but clerks should be at least as qualified because they need to assert authority over them. Given the justices' dependency on clerks and the enormous jurisdiction of magistrates, clerks should be quality lawyers, with specialist training in magisterial law, who are subject to continuing education (see note 73). The need is greater now. There are half the 400 justices' clerks there were then. They are spread thinly, usually responsible for more than one Bench, most with several benches sitting. It is unrealistic to retort that a court clerk can adjourn a case to seek his superior's advice. She is more than likely clerking a bench elsewhere in the county, or in a training session. In 1997, the Kent magistrates' courts' committee amalgamated the whole county under one clerkship. That clerk will serve 14 benches. She cannot conceivably keep in touch with 800 justices, let alone supervise her unqualified or inexperienced court clerks. It can be no coincidence that all the court clerks who read this article called me with their own horror stories of being stuck in court on a point of law with no accessible help. If the Narey recommendations are implemented, creating statutory early administrative hearings and encouraging pre-trial reviews, both will be conducted by clerks. The need for professionally qualified clerks becomes urgent. Narey also recommended, and the Government has accepted, that non-lawyers should prosecute some uncontested cases. Where the clerk is a diploma holder or law graduate and the defendant unrepresented before lay justices, there will be no lawyer in court. The Justices' Clerks' Society has promoted this since the 1970s. Lord Mackay refused to professionalise the service because of cost. Lord Irvine immediately raised the question of cost when I discussed the point with him in 1997. The answer, my Lord, is this: even if a statutory instrument were passed now requiring that all newly appointed court clerks be professionally qualified, it would take 40 years to professionalise the service. About 800-900 extra lawyers would be recruited, each costing GBP4,000-5,000 per year more than their unqualified counterparts, but money would be saved by dispensing with magistrates in EAHs. Consistent over-production of barristers and solicitors ensures that qualified clerks will be easily recruited. There is a pressing need for a new practice direction on the role of the clerk and for all clerks to be trained in what it requires. Court clerks' practices are, in my observation, just as varied and sometimes perverse as they were in the 1970s. Some are unaware of the requirements of the 1981 direction or the implications of case law. Within the last two years, I have watched everything from clerks who sit apart from the magistrates in court, calling their advice across the courtroom, to clerks who automatically join magistrates in the retiring room, without being asked and with no explanation to those in court. The direction should spell out how issues such as disclosure, public interest immunity and admissibility are to be handled. Conclusion In the first of this pair of essays, my aim was to draw attention to the importance of the magistracy in the criminal justice system and to show how the development of the law and legal education has been warped by an unjustified over-concentration on jury trial. Here, I endeavour to place magistrates on the new Government's agenda and to provoke discussion on some causes of concern. If some of these problems are not met by a Labour Government bent on constitutional and legal reform, then I despair that they will ever be faced. Note 1 Note 2 Note 3 Note 4 Note 5
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