WHY DOES ENGLAND STAND ALONE?

Perhaps the outcome of what was the British Empire`s greatest gift to the world is that around 2 billion people speak English as a first or second language, i.e. 20%-25% of the world`s population.  Arguably the next most significant offering to authoritarian ruled societies was the foundation of a legal system where all the populus was treated equally before the law. At its lowest level this was incarnated in the system of magistrates courts where non lawyers were entrusted with the jurisdiction over the lowest levels of alleged criminal defendants.  It is therefore surprising that this English system  was not absorbed by the former colonies and dominions in anything like its current form.  Indeed New Zealand is the only country where the English court user would perhaps recognise its Antipodean counterpart of two community magistrates or Judicial Justices of the Peace.  Even in Scotland, the only other country where lay justices preside in any number, the system is not comparable to that south of the border e.g. single justices preside.  There are some few Australian and American states where lay justices preside. The question is why the English system has not been absorbed to the same extent as the English language in the old empire. 

Some historical aspects of the system might help to explain how we now are where we are. Government and judicial lackeys are forever extolling the virtues of "local" justice.  Until 1948 "local" meant magistrates approved by local dignitaries.  From that era until 2005 Local Advisory Committees recommended candidates to the Lord Chancellor using structured selection criteria. The current situation is that the Local Advisory Committees assess applicants; the Lady Chief Justice selects candidates and the Lord Chancellor makes the formal appointment on behalf of the Crown.

There has long been an undercurrent of disdain by criminal lawyers in their dealings with the lay magistracy in private if not in public.  While they value the principle of community justice and the fact that magistrates sit in diverse panels of three, lawyers frequently express frustration over the lay bench's lack of formal legal training.  Research indicates that some practitioners view magistrates as overly deferential to the police and the Crown Prosecution Service.   

Polling by The Queen Mary University Study (2024) indicated that lawyers overwhelmingly reported that lay magistrates are poorly trained and lack a sufficient understanding of basic law and procedural rules. Lawyers heavily favoured professional district judges, rating them as much faster, more efficient and capable of understanding complex legal arguments. They noted that lay decisions are significantly more inconsistent and prone to being unjust.  Considering the very low number of successful appeals to the crown court this opinion lacks credibility. The vast majority of polled lawyers demanded substantial, immediate reform regarding magistrates' training and communication styles. A segment of the respondents felt that reform would not be enough and openly advocated for the lay magistracy to be scrapped. 

The Law Society is always wary on its comments concerning the lay magistracy but there is an underlying theme that it opposes increasing its powers whilst the Magistrates Association, a government lap dog, strives for exactly the opposite policy and only rarely acts as an independent voice for magistrates despite its protestations to the contrary. 

I began this post with a question;Why the English system has not been absorbed to the same extent as the English language in the old empire.  Perhaps that opening should have been why England continues to rely upon lay justice but why almost everyone else decided not to.

As mentioned above only Scotland and New Zealand have retained a lower courts structure derived from the post war English form. That was a system of patronage reflecting the social structure of its time.  Advisory Committees were established to recruit candidates on merit rather than social standing with the aim of creating benches more representative of their communities. The principle of lay justice survived but the method of appointment became more transparent.

After WW2 most countries concluded that criminal courts should be presided over by legally qualified judges. England retained its lay magistrates but surrounded them with legal advisers, structured training, detailed sentencing guidelines and extensive procedural rules.  Supporters  argue that lay magistrates bring independence and community experience to the courtroom but, the detractors argue, at the cost of a lack of consistency in sentencing and decision-making which is easier to achieve when judges hear criminal cases every day rather than  26 half days annually even with the attendance of a legal advisor. 

Things are different in continental Europe.  Career judges, selected after legal education and specialist judicial training, are the norm. Where lay participation exists it is usually alongside professional judges rather than instead of them.

At a time when legislation is pending with government seeking to expand magistrates' sentencing powers, transfer increasingly serious cases into magistrates courts or curtail traditional rights of appeal they are placing greater reliance on a judicial model that few comparable jurisdictions have retained.

So asking why does England stand alone with regard to my original question and its alternative there appears to be no conclusive answer other than the observation that the employment of exclusively district judges to magistrates courts would be an additional cost which all governments to date have decided is not worth paying.  So much for the motto, local justice for local people: district judges are appointed on their merit not their neighbourhood.