Who Decides Most Criminal Cases? Volunteers With No Legal Training

These are volunteers drawn from the general public who sit in court, usually in threes, deciding whether a charge is proved and what the sentence should be. They are not lawyers, receive no salary and commit to a minimum number of sittings each year, typically around thirteen days. A legally qualified clerk advises them on law and procedure and does not participate in the decision. They handle the less serious criminal cases from start to finish, decide whether more serious cases should go to a higher court, and deal with a wide range of applications including warrants, licensing and enforcement. Some sit in youth or family proceedings after additional training.

The caseload is larger and broader than most people assume:

• •Around ninety per cent of criminal cases begin and end in these courts
• •Motoring offences, theft, criminal damage, assault and public order matters
• •Sentencing powers limited to fines, community orders and short custody
• •Whether a defendant is granted bail before trial
• •Applications for search warrants and for various orders
• •Committing serious cases upwards to be tried by judge and jury

Defenders of the arrangement make several points that deserve weight. Lay participation keeps the administration of justice connected to ordinary life and ordinary judgement rather than confining it to a professional class, which is the same argument made for juries. It is enormously cheaper than employing professional judges for the same volume, and the entire system could not afford to replace them. Sitting in threes means a decision is never one person's, and the mix of backgrounds is intended to counteract individual bias. The role has existed since the fourteenth century, which gives it deep institutional roots. And the volunteers themselves are substantially more diverse in occupation than the professional judiciary.

Lay involvement in deciding cases takes strikingly different forms and the comparison clarifies what the English arrangement is. Germany and several continental systems use mixed panels, seating lay members alongside a professional judge who decides questions of law and deliberates with them on the facts, which supplies legal expertise inside the decision rather than beside it. France uses professional judges for most criminal matters and a mixed panel for the most serious. The United States uses elected or appointed judges at every level, many of whom are lawyers, with lay involvement confined to juries. Japan introduced mixed panels in 2009 after decades without lay participation. What the English system is unusual in is the sheer proportion of cases decided by lay people alone.

The objections are equally substantial and recur in every review. The bench is unrepresentative in age and background, skewing heavily towards older and more comfortably situated people, since sitting thirteen days a year unpaid is not possible for many workers. Conviction rates are higher than in jury trials for comparable charges, which critics attribute to a working relationship with the police and prosecution built up over many sittings. Consistency in sentencing between benches has been shown to vary considerably for similar offences. Reasons for decisions are given briefly or not at all. Recruitment has struggled, with numbers falling by around half over two decades before recent campaigns, and court closures have made attendance harder.

Unpaid volunteers sitting in threes decide around ninety per cent of criminal cases in England and Wales, advised on law by a qualified clerk who does not vote. The arrangement keeps justice connected to ordinary judgement and is far cheaper than professional judges at that volume. Critics point to a bench skewed towards older and comfortable people, higher conviction rates than jury trials, and inconsistent sentencing.