THE PROBLEM OF LAY J.Ps.
By SIR HENRY SLESSER
THE report of the Conservative sub-committee on legal reform, advising, among other matters, the appointment of a "legally qualified and paid chairman" to preside over Petty Sessional Courts, raises questions which deserve serious .consideration by the legis- lature. Not many years have passed since the departure was made from the age-long tradition of lay chairmen at quarter sessions. It is now suggested that an analogous reform has become necessary in Courts of Summary Jurisdiction.
It is these courts (and not the more august Quarter Sessions) which discharge most of the local judicial duties now cast, with ever in- creasing insistence, on what are admittedly legally-untrained tribunals. In all (excluding the jurisdiction exercised under the juvenile and domestic procedure, licensing, adoption and many other statutory provisions), over 800,000 cases .come annually before the Petty Sessional Courts. Even in the Many cases where an alternative trial is offered before them or before a jury, eight times as many indictable cases are tried summarily as go to the Assizes or Quarter Sessions ; in the case of juveniles nearly all such indictable cases are summarily tried. Yet in the whole of England, with the exception of some, but by no means all, large towns, the whole work is dis- charged by a fluctuating lay body, often ignorant of the laws of evidence and lacking the capacity to construe Acts of Parliament or the many regulations made under statute.
It follows, in practice, that such courts, overburdened with difficult problems, come to be more and more dependent upon the advice of their clerk. This practice the Departmental Committee which recently examined the position of justices' clerks does not propose to disturb. To quote their report: "The clerk should advise the justices on' law, decisions of law and fact remaining the responsibility of the justices." Nevertheless, the Committee is not satisfied with the present position, as appears from its recommendation that every Bench "should have a chairman, designated as such, who should be a magistrate of experience and familiar with the current practice and methods of the Bench." They point out that as long ago as 1924 the Home Secretary circularised the justices to this effect- thouglt, to common knowledge, often without any effect. They go on to urge that the clerk should. in future 'be a qualified lawyer, em- ployed full time, and that petty sessional districts should be grouped where necessary, so as to give him sufficient work.
So stands the matter ; the status of the clerk is to be raised ; the justices, apart from a permanent chairman, to remain constituted as they have been since the passing of the first Summary Jurisdiction Acts nearly a century ago. In the case of towns the Departmental Report dislikes the automatic assumption of the chair by the mayor, and suggests here also an experienced chairman not liable to be changed annually. It is my opinion, which apparently I share with the Conservative Conufnittee, that the reforms suggested are inadequate to meet the case. In the old days, when justices as a whole were concerned only with petty crimes, and for the most part engaged only in committals to higher courts for trial, the system of dependence upon their clerk for all matters which would not otherwise fall within the competence of a jury was deemed by many unobjectionable, though the criticisms of the methods of the justices from the days of Dickens to those of Labouchere in Truth (in articles headed "The Great Unpaid ") show that even then there was much dissatisfaction. Today, when so much legal interpretation, and such difficult questions of procedure, arise in cases apparently' simple, an uncritical reliance on the clerk, who admittedly has no responsibility—a fact which in practice is so often evident—is most
unsatisfactory and even dangerous. •
An increase in the capacity of the clerk may still further increase the power which he will almost certainly possess by reason of his superior knowledge to direct, in effect, the legal determinations of the justices, leaving to them the function (peculiarly considered that of a jury). of:finding facts under skilled advice from. a legal expert. If the bench are called upon to state a case for the opinion of the High Court, it will generally fall to the clerk, who has advised them, to draw it up. It will in reality be his decision which will be reviewed rather than that of his nominal superiors the justices. Indeed, the position of the clerk is invidious, for, having advised, he may see his Bench reject his opinion and misinterpret the law, leaving him without even the remedy of protest. Too often he will be held responsible for mistakes which, in the last resort, he was powerless to control "The clerk advises the Bench on matters of law, including the admissibility of evidence. This is admittedly his function and duty," comments the Roche Report. It continues: "There are cases where law and facts are so mixed -that commonsense may be a more valuable guide than legal' advice." Nevertheless, Lord Roche and his colleagues do not recommend an alteration of the law in this respect. It is on this that the Con- servative Committee differs from them, and if the writer May say so, he agrees with the Conservatives in thinking insistence on higher qualifications in the clerk to be no final remedy.
How then should the matter be approached? First, it is suggested, by abolishing the present actual division of function between clerk and Bench The adviser of the Bench on law and the reception of evidence should be a member of it—in fact the chairman ; that is to say, the. chairman should himself have that knowledge of law which is now required of the clerk. He should continue to sit with other mag;strates, who would, of course, in matters of fact be able to Outvote him, and there should be reserved their right to differ from him in law—though from the nature of the case, if he were a person not merely qualified but actually selected for his work, that would not often happen. In any event, the responsibility of the Bench would be in fact, what now it is in name, direct and inescapable. The fact that the chairman was a qtralified and selected person would give him that status which the pubhc willingly concede to a stipendiary magistrate, and the whole dignity of the Bench (so impartant an element in the administration of criminal justice) would be enhanced. His colleagues, if he were tactful, should learn their work from their association with a man admittedly skilled in his office ; in other words, the chairman of every Bench snould be not only "experienced," as the Roche Committee recom- mend, but directly chosen for his knowledge, and, ai-he would be adequately paid, able to devote his whole time to his magisterial duties.
It may be objected that. in rural areas there would not be sufficient work to employ a stipendiary chairman fully.-. This difficulty could readily be overcome, as indeed the Roche Committee suggest in the case of a full-time clerk, by grouping sessional districts so that the stipendiary chairman could so allocate his circuit as to be one day with one Petty Sessions and the next with an adjoining one. In most country districts the Sessions meet not more than once a fortnight, often only once a month, and in most counties one, or t.t most two, stipendiary chairmen could arrange to be present at any court where there was work to be done which involved any difficult question calling for legal knowledge which the lay J.P. naturally does not possess.
Dr. C. K: Allen-has- expressed the opinion that to recommend stipendiary chairmen for local Benches is once more to substitute paid officials for voluntary work. This may, as a rule, be objection- able, but the case of the judicial function is peculiar. -The clerk under the Roche Report would be -a paid official, no longer allowed to engage in private practice. If experienced and qualified men could be found in every area there might be no need for payment, but surely this is not likely to be the case. Indeed, the very geographical nature of the personnel of the Bench, depending on where com- petent people happen to live, is a further argument in favouf of a chairman whose presence would depend on his capacity and not on the place of his residence. The ultitnate choice is, in practice. between qualified tnena 'paid, and the retention of our present haphazard approach to the problem, which is proving so unsatis- factory and inadequate that eveo a Conservative Committee—not, it would be thought, prepossessed in favour of needless disturbance of old traditions—has declared itself convinced of the -need for -this particular legal reform.
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