HAMLYN - College of Social Sciences and International Studies ...

Criminal Justice
social class composition of the bench, whatever it may do for the
reputation of the system, will not iron out such disparities.
The Lord Chancellor has recently caused upset in some
quarters with the announcement that there is to be a research
project to examine whether the current balance between the use
of the 30,000 lay magistrates and the 100 or so full-time
professional stipendiary magistrates is "correct", whether each
is deployed in the most effective way and the weight of the
argument for and against each. Some fear that this could be a
signal that the lay magistracy is about to be consigned to the
dust-heap. I regard that as most unlikely. The terms of reference
for the inquiry specifically state, "The Government is committed
to the principle of the lay magistracy continuing to play a
significant part in our system of justice. Also the Government's
overriding concern is to have in place a system of criminal
justice in which the public have confidence." Even if it turns out
that stipendiaries are actually cheaper than lay magistrates
because of their much greater through-put of cases, I hope that
this categorical statement of Government policy stands. The lay
magistracy has its faults, but I would prefer most summary
cases to be decided by three lay persons than by one professional,
if only because three heads are better than one. In that
context it is relevant that research in London by Professor Shari
Diamond suggests that lay magistrates are slightly more lenient
in sentencing than their professional colleagues. 19 Professor
Diamond concluded that the difference was not the result of
naivete on the part of the lay magistrates:
"a primary source of the lay magistrate's greater leniency appears to
be the voluntary part-time role the magistrates play in the London
courts. For the professional magistrate who sees general crime
control as a major responsibility, the offender is only one element in
the sentencing decision. In contrast, the lay magistrate is less concerned
with the general sentencing policy of the court and focuses
more on the individual offender than on the community at large."
in the main prevail" (pp. 13, 119). In a study of motoring cases Professor
Roger Hood found that disparities in sentencing were not explicable simply in
terms of differences in the personal backgrounds of justices. Rather he
suggested that the best explanation was the philosophy of the particular bench
to which they belonged. See R. Hood, Sentencing the Motoring Offender
(Heinemann, 1972), p. 140.
" Shari S. Diamond, "Revising Images of Public Punitiveness: Sentencing by Lay
and Professional English Magistrates", Law and Social Inquiry (1990, Vol. 15),
pp. 191-221.
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