Wednesday 11 September 2013
Magistrates and Juries
Professional judges are part of "government". They are employed by the State and exercise "judicial power", one of the three functions of government. Lord Atkin criticised, in the famous case of Liversidge v Anderson (a case worth reading - it can be accessed here) judges who "show themselves more executive minded than the executive." They are lawyers by training - and can be very 'legalistic' - applying the law laid down in statute or case law - irrespective of whether the law in question is a "bad" law.
These are some of the reasons that lay participation in courts has been highly prized in the English Legal System. The Americans so valued the independence of juries that the right to jury trial is entrenched in their Constitution. The Sixth Amendment begins - "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed"
Law exams often invite candidates to discuss the merits of magistrates; juries, or both in the legal system. Such questions require the candidate to both describe and evaluate the claims for and against such involvement. So if you are facing an exam after a course in "English Legal System" or the Open University's W200 "Understanding Law" course - what can you do to prepare?
First of all review your notes; old essays; textbooks; journal articles for the arguments on both sides. Consider the strengths and weaknesses of any claims made. Weigh up the advantages and disadvantages. Your job is not to advocate one view or other but to logical consider the arguments and come to a reasoned conclusion. There is no 'right' or 'wrong' answer - the examiner will be looking for your knowledge and understanding of the advantages and disadvantages; for evidence of further reading and reflection; critical evaluation of the arguments; a well argued discussion and a conclusion which is based on that evaluation and argument.
It's worth writing a short briefing note for yourself - setting out the key points. If you have the opportunity to talk to fellow students have a discussion - or why not argue one side whilst your colleague argues the other. Then reverse it - you argue for the other side and so on.