There is disquiet in the legal fraternity, to say the least, over the proposals to allow some previous either way offences to be tried by a bench of lay magistrates in addition to the continual alternative of a single district judge [MC]. There has been an underlying antipathy between the professional lawyers and the "amateurs" for generations. Perhaps that is due to the appointment of Justices of the Peace having been based on local power plays and political leverage. Despite lawyers and their organisations lobbying for fewer lay magistrates and more district judges The Justice of the Peace Act 1949 reaffirmed the role of lay magistrates.
The current concern is that lay magistrates are just not capable, in the eyes of lawyers, of being able to interpret complex statutes and can be biased against working class defendants although that latter criticism has been reduced by the efforts of the Ministry of Justice to follow rules on Diversity Equity and Inclusion on selections. The possibility of rogue sentencing by lay magistrates has been all but eliminated by the setting up of Sentencing Guidelines in 2010. Perhaps the fact that the costs of magistrates expenses are less than the costs of paying a sufficient number of district judges is a deciding factor for a government having pawned so much of the family silver. However it has been mooted that if district judges sat without a legal advisor, a requirement for a lay bench, the balance of cost might be tipped the other way. There is of course another reason why criminal lawyers are frothing at the mouth and that is because legal aid fees, frugal as they are, are less for appearing at the lower court than for an equivalent case at the crown court.
Magistrates' Court:
Preparation: £52.15 per hour.
Advocacy: £65.42 per hour.
Attendance with Counsel: £35.68 per hour.
Travel and Waiting: £27.60 per hour (only for undesignated areas).
Crown Court:
Representation: £60-£70 per hour, according to Legal Action Group.
Fees can vary significantly based on case complexity and the work required .
Fixed fees may apply for certain types of cases or hearings . For example, a one-day summary trial in the Magistrates' Court might be around £1200-£5000 plus VAT.
Generally speaking the mooted court changes will reduce lawyers` incomes and as with most professionals such change will be a driving force to other considerations.
When it comes to the first level civil courts single district judges[CC] have long held sway without complaint from the legal professions. Their argument or non argument stems from the fact that the standard of proof required in the criminal court is beyond reasonable doubt but in the civil court the balance of probabilities is the requirement. The civil court offers financial not custodial penalties and the disputes are private and rarely of public interest.
I suppose the argument put forward by lawyers against an increasing use of lay magistrates is their lack of legal training but that surely is the essence of their existence: they are appointed as communal representatives (although that could be questioned) and supposedly are vetted as to their ability to follow sometimes complex legal argument assisted by the legal advisor. And that is where I must offer my opinion that from my experience not all magistrates have that ability. The selection process is far too orientated to D, E, I, as noted previously, to the exclusion of perhaps perspicacious and analytical qualities.
The position is that lawyers support jury trials in criminal cases but accept judge only civil trials insofar as in the former a person`s liberty can be at stake but a financial penalty in the latter. Criminal law involves the power of the state and serious consequences whilst jury trial is seen as a constitutional safeguard against abuse or bias. However this current constitutional bulwark is under stress re the action and reaction to the proscription of Palestine Action and perverse verdicts. [this blog July 1st 2025] A further argument to support an apparent contradiction in attitudes towards single judge trials is that civil cases often involve technical or commercial complexity to which judges bring consistency, speed and legal accuracy whilst jury trials involve rights and liberty.
There is no doubt that although there are millions of words commenting on the whys and the wherefores of trial by jury sooner or later this government or the next must produce research on the whole process; eg magistrates courts decisions must be explained in public whatever the outcome. Is it not now the time for a jury, perhaps with legal assistance, to explain its conclusions? Is a 12 person jury with the occasional 10-2 majority the most suitable number of jurors? Why not 7 jurors? Should a legal advisor be available to a jury? Should non UK citizens be excluded from juries? Should mandatory English language proficiency be introduced? Should defendants be assured that jurors uphold English law as opposed to any religious affiliations which might be contradictory? Could AI give reliable or more reliable verdicts that could be a basis for jury discussion? Those and other questions must surely be centre stage in the light of a society undergoing fundamental changes as is British society.
