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This paper presents the findings of an investigation into the social and political composition of a Bench of magistrates in the north midlands of England. These are related to various models of lay justice that are described in the literature, and conclusions are drawn about the extent to which the ideals professed by supporters of the present system of lay justice are achieved in reality. The policy implications arising from the study are considered, and suggestions are made for refocusing and hopefully reinvigorating the term of the ongoing debate regarding the composition and functions of the lay magistracy.
Given their extensive judicial powers and the other important community functions that they discharge, both the composition of the lay magistracy and the way they are selected are matters of legitimate public interest. Yet until recently remarkably little was known about who the magistrates are, or the basis on which they are appointed. Even though the selection process is now becoming more open, following the decision in 1992 to disclose the membership of local Advisory Committees that are responsible for recommending new appointments, there is still little public debate over the criteria they employ or the wider social objectives to which they should aspire. In this article we set out a number of rival models that are to be found in various recent accounts of the composition of the magistracy and use these as a yardstick against which to measure the actual composition of a petty sessional division in the north midlands of England. The policy implications arising from our findings are discussed, and suggestions are made for refocusing and hopefully reinvigorating the terms of the debate.
Which Model of Lay Justice?
In the recent literature on lay magistrates it is possible to discern a number of competing models of lay justice, each of which is associated with a rather different set of principles on which the practice of selecting and recruiting magistrates could be said to be based, either now or in the past.
Lay magistrates as a `Social elite'
Historically magistrates were recruited almost exclusively from the ranks of the landed gentry (Skyrme 1983), but even today one of the most enduring images of the lay magistracy is of a social elite that is still predominantly recruited from a very narrow and privileged segment of the community (Burney 1979; Raine 1989). While apologists for the system are at pains to emphasize how far things have changed in recent years (Skyrme 1983: 8), its critics draw attention to the hitherto arcane and highly personalized selection procedure which, because it is dominated by existing magistrates, is credited with the maintenance of `self-perpetuating oligarchies' (Burney 1979: 73 ff.). Much of the research that has been conducted in recent years confirms the accuracy of this assessment by drawing attention to the narrow social composition both of the Bench as a whole (Hood 1972; Baldwin 1976), and also in respect of individual Benches (Burney 1979; King and May 1985; Raine 1989). Even more remarkable was the extraordinarily exclusive social circle to which many members of one local Bench belonged, which was featured in another widely reported study (Bartlett and Walker 1973, 1975).
Lay magistrates as a `meritocracy'
There are no formal qualifications for serving as a magistrate beyond a residential requirement prescribing that a person must either reside in, or within 15 miles of the boundary of the commission (Bench) to which he or she is appointed. Nevertheless at an informal level the over-riding consideration in selecting and appointing new magistrates is said to be their `personal suitability' for the appointment. This exceedingly vacuous principle was only slightly amplified by an instruction issued by the Lord Chancellor in 1948, which referred to a candidate's `character, integrity and understanding' (Lord Chancellor's Department 1948). A more recent instruction(1) issued by the same source also speaks of the need for integrity, good character and repute, though it goes on to catalogue other qualities, including the ability to command the confidence of both public and colleagues, the capacity or potential to act judicially, and thereby make proper decisions, the ability to recognize and set aside personal prejudices, to understand what facts and arguments are relevant and to think clearly and logically. Reference is also made to the need for humanity, sensitivity and a capacity for working with colleagues and contributing to effective discussion by expressing views clearly and concisely. Other requirements are said to include an appreciation of the need for the rule of law, and both the time and commitment needed in order to discharge the responsibilities of a magistrate. Finally, some experience, understanding or knowledge of life outside the immediate circle of family and work is also said to be desirable.
However, in spite of the prominence that is given to such personal qualities in the instructions for Advisory Committees that are responsible for recommending appointments, very little attempt is made publicly to defend the existing system of selection and appointment on the basis of personal merit. Instead, official accounts of the magistracy are much more likely to portray lay magistrates either as representatives of the local community or even as being representative of the local community, at least in terms of its social composition.
Lay magistrates as a `microcosm of the local community'
In his semi-official account of the lay magistracy, Skyrme states (1983: 67) that `[t]he declared policy of each Lord Chancellor since 1945 has been to make sure that each Bench is a microcosm of the local community in which it operates'. Earlier (1983: …