Letter: Judge and jury
Tuesday 25 May 1999
Sir: Commentators on the Home Secretary's proposals to restrict jury trial have quite rightly pointed out the grave dangers inherent in the erosion of the fundamental right for a citizen to be tried by his peers.
As a specialist criminal law practitioner, I would like to point out another aspect of the situation. A large proportion of cases in the magistrates' courts are dealt with not by lay magistrates, of whom there must by law be at least two, and preferably three, sitting on the bench, but by one single stipendiary magistrate.
They have greater powers than even any judge in our criminal justice system, in that they sit as judge and jury, on their own, hear the evidence and decide guilt or innocence and then go on to impose custodial sentences of up to twelve months. There is a fundamental irrationality here in that appeals from a conviction are heard in the Crown Court before a judge who cannot sit alone but has to be accompanied by lay magistrates, who play an equal role in deciding both guilt or innocence and sentence.
Most of the stipendiary magistrates now sitting come from bureaucratic backgrounds, having been justices' clerks, unlike judges, who at least will have practised at the Bar and therefore had some contact with citizens who find themselves defendants in criminal proceedings.
Stipendiary magistrates frequently see themselves as part of the prosecution process, issue guidance to prosecuting authorities as to how better to conduct their cases, and often refuse bail to defendants even where prosecuting authorities do not object to bail.
It is ludicrous and intolerable for anyone to pretend that a trial in front of a stipendiary magistrate can be remotely as fair as one before a judge and jury.
ROBERT M BROUDIE
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