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REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT

CHAPTER FOUR JUDGES IN THE SUMMARY COURT

INTRODUCTION

4.1 A large majority of the Committee recommended that Scotland move to a system that employs only professionally qualified judges - as opposed to the current mixture of professional judges and lay Justices of the Peace.

4.2 A minority of the Committee took a different view and submitted a separate Note of Dissent to that effect. The main Report further recommended that there should be a new class of professional judge called "summary sheriff" who would not necessarily be limited to a particular local jurisdiction.

4.3 The consultation response form said:

"We would welcome your views on the report's proposals for lay involvement in the summary justice system."

4.4 This chapter details responses relating to the views submitted.

THE RESPONSES RECEIVED

4.5 Of the 219 respondents (91.7% of total responses) who commented upon the role of judges in the summary court; 200 responses (90.9% of those commenting of this recommendation) supported the Note of Dissent. The most noticeable support for the Note of Dissent amongst respondent groups was from JP Committees (where all responses from this respondent group gave support to the Note of Dissent) and individual responses from Justices of the Peace themselves (where 98% of responses from this respondent group gave support to the Note of Dissent).

4.6 Twenty respondents (just over 9% of those who commented on this recommendation) were in favour of abolition of lay justice including 2 Justices of the Peace; 1 Sheriff; Justice for Victims; Clackmannanshire Council; Glasgow Bar Association; the Law Society of Scotland; Orkney Islands Council; the Society of Local Authority Chief Executives (SOLACE); the Scottish Law Agents' Society and the Association of Chief Police Officers in Scotland (ACPOS).

4.7 A further twenty respondents (just over 8% of total responses), including British Transport Police, the Ministry of Defence Police, the Scottish Legal Aid Board and the Association of Scottish Police Superintendents, did not comment on this area.

4.8 The table below details how each grouping commented upon this area.

Table 4.1: Abolition of the Role of JP - Numerical Responses

ARGUMENTS IN FAVOUR OF RETAINING LAY JUSTICE

4.9 As mentioned previously and illustrated in Table 4.1, most submissions supported the conclusions of the dissenting members of the Committee and favoured retaining the system of lay justice in Scotland. Many arguments were put forward for this and many responses (specifically JPs and JP Committees) had extremely similar points of view. Indeed many respondents - too many to mention here - were persuaded wholeheartedly by the Note of Dissent, agreed with its authors' arguments and welcomed their proposals for the structure of Summary Justice contained in paragraphs 47-68 of the Note of Dissent.

4.10 This next section details additional - or more detailed - reasons put forward by respondents as justification for supporting the Note of Dissent.

The Historic Argument

4.11 Most arguments made here related to the contribution lay justice has made to the Scottish justice system for nearly 400 years, and respondents' lack of understanding as to why the Report proposed to abandon this element without, in the respondents' view, sufficient and reliable evidence that the present system was not working.

4.12 Many (including the majority of JPs, the Skye and Lochalsh, Western Isles and West Dunbartonshire Justices' Committees and the District Courts Association) believed that it was important to be sure that, if lay justice were to be abolished, it would be replaced by a system that would patently be an improvement. But many could find no such evidence in the Report. These respondents argued that lay justice had served the public well and without difficulty for many years and was known, trusted and respected by the general public (victims and accused alike).

4.13 Lockhart's Solicitors and Estate Agents was one of many respondents who made the point that the general public would be likely to be confused by two types of professional sheriffs, that is "sheriff" and "summary sheriff". There were concerns that the public may not be able to distinguish between the two types, and that the role of "sheriff" could be demeaned as a consequence. This, it was argued, would reduce the position's credibility, which has been built up over a number of years.

4.14 There were also several responses that raised fears regarding the closure of courts in rural areas. For those working within the judicial system in those areas - where the system was perceived to have closer links to communities than is possible in large urban districts - there were deep concerns that these proposals would undermine the confidence of the public that had been built up over many years.

4.15 A number of local authority submissions cited the historic commitment to local democracy embodied in the office of Justice of the Peace and considered that offenders' being dealt with locally by their fellow citizens was an integral part of the justice process. East Lothian Council, for example, stated that the system of lay justice was tried and tested, with a long history, and there was no real evidence within the Report that the current system no longer worked.

4.16 Aberdeenshire Council also put forward the argument that this historic "layered" criminal court system formed a useful hierarchy that had worked well for a number of years. East Lothian Council added that there seemed little point in having separate layers within the justice system if the layers themselves were not noticeably different.

Excessive Bureaucracy, Delays and Low Cost Efficiency

4.17 Many responses from JPs and JP Committees argued against the Report's comments regarding excessive bureaucracy and delays. A number of respondents indicated that this was not the fault of the JPs, who were also frustrated with such delays, and suggested that a large number of cases currently dealt with in the sheriff court could easily come before the district court.

4.18 North Lanarkshire Justices of the Peace Committee stated that at the lower end of the summary justice system, they found that depute procurators fiscal were inexperienced and regularly ill-prepared for court sittings, which also caused delays.

4.19 In addition, some JPs stated, there was a great deal of frustration with defence agents who cited their requirement to attend business in the superior courts as the reason for being late or failing to attend district court sittings. This again added to court delays, through no fault of the bench.

4.20 Concerns were raised by many JPs that delays caused by the failure of the police to serve warrants, and problems in the Fiscal Service, had not been adequately addressed by the Committee in its Report. These problems, it was stated, had led to an increasing amount of cases being treated as 'not called' without explanation. Therefore, the respondents argued, proposing a greater workload for the Fiscal Service when many were not up-to-date with their current duties was totally at odds with the present reality.

4.21 Other respondents (the Sheriffs' Association amongst them) blamed the slow process of summary justice on "the increasing network of new provisions and administrative arrangements which are having the effect of rendering the whole system cumbersome and slow".

4.22 But many respondents from all sides of the debate acknowledged that the present system could be improved and the lack of rigour in proceedings of the district court had been a source of dissatisfaction to JPs themselves. However, it was argued that such delays would be present irrespective of what type of judge presided.

4.23 Many JPs and JP Committees were also concerned about the Report's comments regarding the decline of cases being dealt with in the district court, and equating this to low cost efficiency. It was emphasised, by a large number of responses from this grouping, that the decline in district court workload was a direct result of the introduction of other alternatives to prosecution - rather than being the fault of JPs.

4.24 Several other responses further argued this point. Many JPs and JP Committees felt that the reason for low cost efficiency was that procurators fiscal have, for some time now, tended to send a higher proportion of summary cases to the sheriff court, thus effectively starving the district courts of work which, respondents believed, they were perfectly capable of doing. In their view this explained why the statistical table in the Report showed a marked decrease in the number of persons proceeded against in the district courts since 1992. There were now suitable resources and the willingness for many sheriff court cases to be dealt with in the district court by increasing the powers available to JPs.

Commitment of Justices of the Peace

4.25 Many JPs, Justice of the Peace Committees and local authorities raised concerns about points made within the Report questioning the commitment of Justices of the Peace. A typical comment by one JP on this issue was as follows:

"Most JPs are mature, public spirited people who are prepared to submit to extensive training to acquire and maintain the requisite judicial skills. To summarily dismiss 700 unpaid volunteers, who are blameless in the troubles afflicting the existing system is - in my view - foolhardy, insulting and undemocratic."

4.26 Several respondents from the lay justice arena strongly emphasised that the additional time requirements which would be necessary if changes in the Report came into force were not a problem for them as they were happy and even enthusiastic about taking on more serious, complex and/or lengthy cases, and any other changes deemed necessary, as long as the lay justice system remained in place. However Clackmannanshire Council disagreed and stated that it was not satisfied that lay justices would be prepared to make the major time commitment that would be necessary, due to its own experiences in this area.

Criticism of Public Opinion Survey

4.27 One criticism of the Report that was mentioned frequently by those opposed to the abolition of lay justice concerned the fact that recommendations made in the Report contradicted the findings of a previous public opinion survey conducted by independent researchers on behalf of the Committee in January 2003. Many respondents (of all types and including many JPs, JP Committees and local authorities) felt that some statistics were being overlooked and that the feelings of the general public on the abolition of lay justice were clear - 60% were in favour of the continuation of lay justice with 24% preferring a wholly professional summary system. In addition, the views of stakeholders were also perceived to be clear - 62% were in favour of retaining lay justice. On the basis of these statistics, respondents argued that the Committee's recommendation to abolish lay justice had been made in spite of the fact that it was clear that the move had only minority public support. These respondents questioned why the recommendations were not substantiated by statistical evidence from the previous public opinion survey, which appeared to them to be insufficient to make the case for abolition.

4.28 There were also concerns raised regarding the Committee's dismissal of the public's perception of the overall performance of the summary courts. The research suggested that, of those who commented, most thought favourably of the summary court's performance and - more importantly - indicated no significant difference between the performance of the sheriff court and the district court. Again, respondents opposed to abolition were confused by the Committee's recommendations in the light of these findings.

4.29 A number of JPs felt that the wording of some of the questions in the public opinion survey had been misleading and may have influenced responses: i.e.

"In the District Courts, decisions about guilt and sentences are made by an unpaid Lay Magistrate, assisted with legal advice from the Clerk of Court. Lay Magistrates are not legally trained. In Sheriff Courts, a legally qualified, professional Sheriff with at least 10 years prior legal experience makes those decisions…. We'd now like your opinions on using lay, unpaid people to make decisions as opposed to the professional paid judiciary like Sheriffs".

(Research Questionnaire, Review of Summary Justice, George St Research, March 2003)

4.30 Moray Council and West Lothian Justices' Committee, amongst others, felt that responses given to this question would have been heavily influenced by personal experience, and that the descriptions given for lay magistrates and sheriffs were heavily slanted in favour of a professional judiciary, thereby making it difficult for interviewees to give an objective, unbiased view.

Magistrates' Powers in England, Wales and Northern Ireland

4.31 A relatively small number of respondents indicated that the Committee's recommendations with regard to lay justice ran counter to what had been happening recently in England, Wales and Northern Ireland.

4.32 The District Courts Association criticised references in the Report to the 'Auld Report', which considered the criminal courts in England and Wales. The Association felt that this Report was quoted selectively, as the Auld Report had warmly supported the continuation of lay justice in England, and recommended that magistrates' sentencing powers be increased.

4.33 The response from Glasgow District Court Legal Assessors observed that comparisons with England appeared to have been used by the Committee in a "partisan" fashion. Other responses commented that, while the Report rejected the "English experience" at Paragraph 7.36, the Committee went on to rely on English statistics at paragraphs 7.53 and 7.54.

4.34 Glasgow District Court Legal Assessors also observed that the Report told only part of the story in Northern Ireland as justification for its recommendations:

"Committee members visited Northern Ireland and observed that, with the exception of the juvenile court… it operated wholly with professional judges." (Paragraph 7.30)

4.35 However, it was noted by respondents that the Justice (Northern Ireland) Act 2002 provided for the creation of lay magistrates - a new office - to undertake a number of judicial functions. 300 lay magistrates are being recruited and should take up post in April 2005. Therefore the Report's interpretation of the Northern Ireland experience was perceived to be both out-of-date and potentially misleading.

Professional or Lay Judiciary

4.36 Many responses from JPs and Justice of the Peace Committees stressed how insulted they felt at the suggestion that it takes a professional (or legal) mind to establish whether a complaint is proved. North Lanarkshire Justices of the Peace Committee was typical of many responses on this issue when it stated:

"a number of Justices feel that such remarks on the part of the Review Committee are indicative of a pre-disposition in the minds of at least some of the Committee members, and does not reflect well on the independence of the review as a whole".

4.37 The District Courts Association agreed wholeheartedly with the Note of Dissent and believed there was a clear distinction between sitting in judgement and having knowledge of the law:

"It is simply not correct to say that only lawyers, by virtue of their legal training, are fit to fill this role. Little in legal training is directed at acquiring the qualities of a judge. It is also worth noting that juries, with no prior training or knowledge of the law, are expected to grasp and decide the facts in complex solemn cases".

4.38 There was also an argument against professional summary sheriffs put by some JPs, that the professional judiciary could be seen as "case-hardened", which would reduce their effectiveness in many district court cases. This, they argued, is where part-time lay judges have the advantage, as they maintain an interest both because of a strong sense of duty to the community they serve, and because their work is a part-time adjunct to everyday life.

4.39 The Report's argument that "there is a lack of confidence in the district court by procurators fiscal resulting in many relatively minor cases being prosecuted in the sheriff court" (Para 7.19) was challenged by Glasgow District Court Legal Assessors who stated that:

"…this is certainly not the case at Glasgow District Court where JPs handle numerous serious matters including inter alia: police assault; no insurance; and Civic Government (Scotland) Act 1982, Section 57 cases" [being found in premises with intention to commit theft].

4.40 North Ayrshire Council, West Lothian Council and some JPs made the point that, although they recognised there were different levels of ability, experience, training and support for JPs across Scotland and that this leads to inconsistency of service, they believed there was nothing within the Report to justify why the Committee thought that appointing a 'professional' judge would result in a more consistent service. These respondents believed that without a Code on Sentencing no two professional judges would be guaranteed to dispense the same penalty.

4.41 This whole issue of consistency was commented upon by COSLA, who also felt there was no evidence produced within the Report to suggest that lay justices are any less consistent in their sentencing or decision-making than professional judges. Indeed, it was felt that a lay element could help avoid a regimented approach to justice.

4.42 Other respondents, however, believed that there existed a wide disparity in the standard of lay justice across the country, but thought that this could be put down to JPs in urban areas sitting more regularly and consequently having more opportunity to improve their skills. Urban JPs were also more likely to have full time, more experienced clerks. Respondents felt that these factors created a disparity in standards and a lack of consistency. However they felt that these issues could be easily resolved with more training.

4.43 West Lothian Council also made the point that, although the Report states that the average justice sits only seven times a year, in West Lothian District Court the justices sat far more regularly, and would be able to sit even more frequently if there was more business directed to the court. Glasgow District Court Legal Assessors stated that Glasgow justices do not sit 'infrequently' but rather sit between 20-30 times a year.

4.44 Responses also suggested that there was a lack of clear evidence within the Report that lay justices were any less robust in relation to case management than sheriffs. Any perceived problems, they stated, could be resolved through improved training.

4.45 The Edinburgh Bar Association made clear that they considered lay justice to fulfil a useful function and that the presence of a legal assessor provided appropriate safeguards.

4.46 In addition, many JPs made the point that very few successful appeals arise from the district court, thereby illustrating that it enjoys the support and confidence of the Scottish public.

Selection, Training & Development

4.47 Many respondents, including the majority of JPs, JP Committees and around half of local authority submissions were concerned that, if lay justice were abolished, a considerable pool of trained resources would be lost. There was a consensus amongst JPs and Justice of the Peace groups that, given proper encouragement and training, lay justice would be more than capable of meeting professional standards of commitment and delivery. COSLA made the point that training and investment could address any shortcomings in the present system and that these shortcomings did not in themselves justify abolition. COSLA also mentioned the competence-based programme of training established by the District Courts Association as being a good starting point to building consistency.

4.48 The District Courts Association made it clear in its response that it would support changes to the selection process for JPs that would require all justices to be appointed following public advertisement and competitive interview against a nationally agreed set of criteria.

4.49 West Lothian JP Advisory Committee (JPAC) detailed in its response that it had successfully adopted a public recruitment process, first introduced in 2000, that provided all members of the community with an opportunity to apply to become a Justice of the Peace. Advertisements for justices were placed in local press and council publications. Short listed applicants were invited to attend a preliminary assessment by senior Human Resources officers, followed by a session of the District Court to provide them with an insight into its operation, and finally an interview in their own homes by two members of the JPAC. A report on the suitability of each applicant was then submitted to the JPAC for final consideration prior to any recommendation being made to the First Minister. West Lothian JPAC believes that this process is extremely successful in identifying quality candidates who are representative of their community, thus ensuring community involvement in the criminal justice system.

4.50 Many JPs were concerned by the point made in paragraph 7.72(iii) of the Report that there are problems in getting people to apply to become justices. This was not borne out by the experience of some areas. The District Courts Association stated that where advertising for new justices has been undertaken there were always plenty of applicants and, in addition, most court clerks received a steady stream of requests from individuals who wished to become justices.

4.51 A JP with over 30 years experience suggested that in order to get over the criticism regarding inconsistent training and the age of sitting JPs, an initial recruitment of JPs in their mid-fifties should be conducted and successful candidates given accelerated training. This, the JP argued, would allow them to preside over a new form of lower court, with increased powers, although there would still be a legal assessor present. It was suggested that these JPs should sit mainly in the busier urban courts and could absorb some work from the existing sheriff court (in view of the planned increase in sheriff court work passed down from the High Court). When the first 'batch' of 'senior' JPs were due to retire at the age of 65 or 70, it would therefore be relatively easy to invite applications from a fresh batch of early retirees who could be vetted in exactly the same way as the current applicants for the JP system.

4.52 Some respondents, including the JP Advisory Committee for West Lothian, felt that the Report failed to acknowledge competence-based, modular and local training currently undertaken regularly by JPs. Many felt that training could be improved by means of a national mandatory competence-based training programme. Indeed a competence-based programme of training already operates in some areas, and it was believed that such training provided knowledge of the legal framework and an awareness of legal and court procedures, developed an ability to think and act judicially, and encouraged good communication skills.

4.53 Many responses from the lay judiciary indicated that training had become more rigorous lately, and significant steps had been taken by the District Courts Association to make it more consistent - through self-funded national training events for both justices and their legal advisers to ensure a uniformity of competence in decision-making. South Lanarkshire Justices' Committee felt that its local training programme, devised in cooperation with the Clerks of Court, reflected the rigorous approach that may be required in the future.

4.54 Dundee City Council and others, however, made the point that observations relating to training for lay justice had been made without consideration of the position of sheriffs who preside over cases of a summary nature. Despite the proliferation of legislation and case law in recent years sheriffs do not receive compulsory training to develop their skills on the bench. These respondents therefore questioned why this had become such an issue for lay justice.

4.55 There was a great deal of support for further development of the "infant" appraisal system already put in place by the District Courts Association. This, it was believed, could also include the introduction of a national system of inspection both of Justices' Committees, and of the work of bench serving justices, as already happens in England and Wales (in relation to Magistrates Committees and lay magistrates). It was felt that this would guarantee a continuing high level of judicial performance from bench-serving justices.

4.56 Many JPs also called upon the Committee to review the great deal of structured training already undertaken prior to a JP's first appearance on the bench, and to remember that JPs gave freely of their own time for training.

4.57 However, many agreed that the selection process could be improved, and further training opportunities could be consolidated by undertaking national steps to improve the whole process and provide consistency.

4.58 It was commented by a minority of Justice Committees, including South Lanarkshire JPs, that a more transparent system of selection should be introduced, with carefully defined and agreed criteria for the appointment of lay justices and regular appraisal of their performance. It was felt that this would go a long way towards reducing weaknesses in the system detailed in the Report.

4.59 Some respondents, including North Lanarkshire Council Justices of the Peace Committee, noted that a significant proportion of current training of JPs, both nationally and locally, took the form of sentencing case studies and court scenarios. They believed that there was no reason why this substantial base of knowledge and experience could not be built upon through a national training programme, and also by ensuring that the deliberations of the Sentencing Commission are properly communicated.

4.60 Glasgow Justices' Committee stated that, rather than complete abolition, there should be a formal enquiry by central government into the state of local justices' training in every commission area at least once a year. It acknowledged that information is provided about local training by Clerks of Court in the annual statistics, but it was concerned that there was rarely any follow-up enquiry, particularly regarding areas where no training activity had been reported.

Local Community Argument

4.61 The majority of responses to the Committee's Report from JPs, JP Committees and local authorities highlighted the importance of the courts maintaining a relationship with the communities which they serve, and of the public being able to recognise that district courts are a place where lay people can play an important part. The Children's Panel system was mentioned by many respondents as a good example of lay people playing an effective part in the delivery of justice. Others (including the Scottish Forum for Community Justice and the Association of Lord Lieutenants) commented that the link between the communities that district courts serve and justice was an important one - and was even more important if the use of community sanctions and non-custodial orders is to increase under the new proposals.

4.62 One local authority prefaced its argument with a quote:

" We need to engage ordinary people in our communities in the delivery of local justice"

Cathy Jamieson MSP, Minister for Justice, Summary Justice Debate - Scottish Parliament, 25 ^th March 2004

It was felt by a number of respondents that this goal would not be achieved by the abolition of JPs.

4.63 Several respondents (West Lothian Council, COSLA, various JPs, the District Courts Association, and Western Isles Justices' Committee) raised concerns that the Report failed to explore many of the obvious benefits of community participation. They argued that lay justices' awareness of local issues, community make-up and demographics permitted them to make decisions not only on the basis of legal training, but also with knowledge of the views of the community offended against.

4.64 It was observed that the complex decision-making process involved in determining sentence is frequently made after the sentencer has examined reports that assist the judge's understanding of the context of the offence and the circumstances of the offender. The local lay judge, therefore, enjoys the advantage of local knowledge to gauge the success or otherwise of suggested case disposals coupled with specific information provided on the offender in question. This approach, many stated, is in line with the Scottish Executive's current policies on social inclusion.

4.65 COSLA indicated that the recruitment of new "summary sheriffs" would not necessarily be limited to a particular jurisdiction and this would inevitably lead to a reduction or even absence of local knowledge in the administration of justice within an area. The resultant loss of awareness of local circumstances and local values could lead to the causes and effects of crimes being overlooked, and to inappropriate punishments being administered for crimes.

4.66 A minority of local authorities and COSLA also commented upon the number of local informal networks that existed between the relevant agencies which would become less effective if local elements of the administration of justice were lost.

4.67 COSLA made the following point regarding the community argument:

"Lay justice is a powerful expression of community participation in the regulation of society and we believe that local JPs, supported by Councils, are likely to enjoy the confidence of the community which they serve. We do not believe this level of confidence would be retained under a different regime, and we cannot see how an appropriate level of community participation would continue within a different summary justice system should lay justice be abolished".

4.68 One of the most contentious areas of the Report was the statement that JPs were not representative of their community. For example, The District Courts Association and many Justices' Committees criticised the reference that 38.6% of all JPs were aged 70 and over. They argued that, as such JPs would be on the supplemental list, they could not undertake court duties and their inclusion in the argument was therefore irrelevant. In addition many found it curious that the Report should imply criticism of the social status and ethnic origin of justices when the same criticism could be levelled even more acutely at the professional judiciary, both current and proposed.

4.69 A number of local authorities and Justices' Committees (e.g. Stirling Council, Dundee City Council, JP Advisory Committee for West Lothian, Falkirk Justices' Committee, Inverclyde Council) emphasised in their responses that one of the principles of lay justice is that JPs are part of the local community, and consequently know the issues of local concern. With increasing moves towards alternatives to custody involving local initiatives, it appeared inconsistent to remove the community link from the execution of justice.

4.70 In addition, JPs commented that the proposals would mean that, in some cases, the first court appearance for offenders would be in the sheriff court, which could well have an unduly damaging effect on some minor offenders. As with the operation of the Scottish Children's Hearing System, many felt that there should be an effort made to retain individuals in the lowest tier of the judicial system and keep the majority of those appearing for minor offences away from the "higher" courts. Indeed, many JPs pointed out that it is well known that labelling can have adverse effects on self-esteem, motivation, employment prospects, family relationships and the reaction of the local community.

4.71 A similar argument was put forward by one Justices' Committee which made the point that the district court - as presently constituted - is essentially a community-based court, where offenders who disrupt the lives of the local community are judged and sentenced by their peers. This Committee believed that since areas differ in the range, type and circumstances of local offending, the importance of involving community members with local awareness in the delivery of justice should not be underestimated. Contrary to what was said in the Report (Para 11.6), Justices believed that an appearance before the district court could be a salutary experience, particularly for young offenders, and is sometimes sufficient to stop further offending.

4.72 East Lothian Council agreed and made the following declaration:

"Justice being imposed by one's peers, as opposed to a remote figure with potentially no connection at all to the area over which he or she has jurisdiction is one of the key advantages of the current system and one which should not be cast aside without some serious thought".

4.73 In addition, many felt the Report failed to acknowledge that justices are only appointed by Ministers on the recommendations of the Secretary of Commissions. In recommending such appointments, the Secretary must have regard to the demographics of the commission area in which that appointee is to preside, in order to ensure that the bench reflects the ethnicity and gender balance of the community it serves.

4.74 A number of JPs argued to what extent the profile of the Scottish population can be fully mirrored when JPs can only be appointed if they have sufficient competence to make judgements and are considered to be willing and able to acquire the appropriate knowledge and competences necessary for court work. In addition it was felt that the new "summary sheriffs" would in no way mirror the profile of the Scottish population. Some felt that this new post would actually narrow the range of people that sat on the bench.

4.75 Submissions from the majority of JPs also argued against the Report's contention that there are more appropriate ways to encourage lay involvement in the system, with some stating that maintaining the system of lay justice as it stands and implementing other appropriate forms of lay involvement would do more to recognise the important principle of community involvement in the criminal justice system than abolition would do.

4.76 North Ayrshire Council made the point that, as a local authority, it also represents the local community, and that it should therefore support the retention of the lay justice system. The Council put forward a suggestion echoed by other local authorities, JPs and Justices of the Peace Committees:

"if there was a commitment from the Executive to provide proper resources including training of JPs to a national standard, and a willingness of the Crown Office and Procurator Fiscal Service to allocate more criminal business to the District Court - a view held by Lord Bonomy in his separate review of the Higher Criminal Court - this would ensure a more effective arrangement for Summary Justice".

Staffing Implications

4.77 The majority of local authorities had concerns regarding the staffing implications of the abolition of lay justice. Stirling Council commented that summary sheriffs would not need legally qualified clerks and if such people could not be reallocated then there may well be redundancies.

Reticence in Utilising Sentencing Powers

4.78 Falkirk Justices' Committee acknowledged that at present most lay justices do not use the full extent of their sentencing powers and agreed that this is reflected in the sentences imposed in many district courts. However, many JPs stated that it would not be appropriate for lay justices to be provided with substantially greater powers to impose custodial sentences unless there was substantial investment in their recruitment, training and development, which could be addressed by a national training programme.

4.79 A large number of JPs disagreed with the statement that they would not use increased sentencing powers and some argued that sheriffs are also reticent to use their full sentencing powers. In addition many JPs stated that another reason they did not use the full extent of their sentencing powers was because much of the business in the district court had been increasingly trivial in recent years, thereby reducing the need to use their full sentencing powers.

Cost Comparisons

4.80 The majority of JPs and JP Committees felt the arguments used regarding the current and future running costs of the district courts were seriously flawed. Although respondents were encouraged to note that the original costing exercise conducted on behalf of the Committee was not going to be relied upon in relation to comparative running costs of the sheriff and district court, many felt that this research had guided the report's authors to some of their recommendations. Consequently many, such as Aberdeenshire Council, felt the value of the whole exercise should be questioned.

Role of New 'Summary' Sheriff

4.81 A minority of responses indicated that even if the Report's recommendations for summary sheriffs were accepted, it did not necessarily follow that these new, paid judges needed to be recruited from the legal profession. Suitable candidates from non-legal backgrounds could be selected. They could receive a daily allowance which might be seen as a move towards combining the rigours of professional engagement with the tradition of lay justice, in the sense of having a judge unqualified in law but rooted in the community and capable of commanding respect from those appearing before him or her. A professional lay judge would still require the assistance of a legally-qualified clerk of court but the resource implications would compare not unfavourably with those required for a legally-qualified summary sheriff assisted by a Clerk of Court. The capabilities of a 'professional' lay judge would compare well with other options. The selection pool would be wide and deep (particularly if the appointment was on a part-time basis). A commitment to regular sitting would be secured and a fixed term appointment of a number of years could be considered.

4.82 The District Courts Association commented on the Committee's proposal that Summary Sheriffs should be paid £80,000 per year. The Association felt that it was bizarre to pay for what lay justices currently undertook for no recompense.

ARGUMENTS IN FAVOUR OF ABOLISHING LAY JUSTICE

4.83 A minority of responses, as detailed in table 4.1 above, were persuaded by the majority view in Committee's Report and below we detail their reasons for agreement.

4.84 SOLACE felt that lay justices were an "anachronism in this day and age", especially considering that most jurisdictions in the Commonwealth, North America and Europe do not have lay justices. Even in England and Wales, SOLACE stated, district judges are increasingly being used to handle complex cases in the Magistrates Courts.

4.85 The Glasgow Bar Association was also in favour of abolition, believing that Stipendiary Magistrates delivered a more efficient and effective service. However it expressed concern at the suggestion that local consultation arrangements should be put in place in an effort to involve local people in the criminal justice system. There was a fear that such local committees would lead to the suggestion that magistrates may be open to influence (by these local committees) as they reach decisions in the courts. The Association felt that there would be a risk that "single issue politics" could have an effect on the local courts, with lay members of a consultation committee attempting to advance their own individual concerns rather than the broader concerns of the community as a whole. This, it was thought, would almost inevitably lead to inconsistency of sentencing across the country, as different groups would focus on different issues. Therefore the Glasgow Bar Association could not recommend local consultation arrangements as a step forward.

4.86 The Scottish Law Agents' Society believed that if Scotland was moving to a unified summary court system, then the case for moving at the same time to professional judges throughout the system was unquestionable. The Society felt there was little justification for retaining a system in which summary courts are presently run by two entirely different types of body (namely a national agency in the case of the sheriff courts and local authorities in the case of the district court).

4.87 Amongst the minority of respondents who agreed with the abolition of lay justices there was a belief that, with the unification of the courts, there would be a reduction in the number of cases coming to court so there would be no place left for what was seen by some as an inconsistent, inefficient and confusing system of lay justice.

4.88 The overall view of SOLACE and a minority of respondents was that change was badly needed, that the inefficiencies and inconsistencies of the current structure were bringing the justice system into disrepute and that radical measures were needed to improve the judicial system. The Society did, however, strongly support the principle of lay involvement in the justice system, but felt this could be provided through juries and the new Criminal Justice Boards.

Summary Sheriffs

4.89 The Scottish Law Agents' Society and The Law Society of Scotland were not convinced that a two tier system of professional summary judges was the way forward, believing that it would lead to quality issues - with less well-qualified people being appointed as summary sheriffs. Neither organisation favoured the creation of a distinct role of "summary sheriff". They suggested that, rather than having two types of sheriff, the issue would be best addressed by developing strategies regarding the allocation of work. As existing sheriffs already deal with a wide variety of work, some of which could be said to involve relatively minor criminal cases, the Society felt that more recently appointed sheriffs could take on more of the less onerous work, with the more experienced sheriffs dealing with more serious summary business and jury trials. Recently appointed sheriffs would gradually advance to dealing with more difficult cases.

4.90 Others felt that the Report's recommendations on alternatives to prosecution would result in less serious cases being removed from the court system. Consequently, if lay justices were to remain it had to be on the basis that their workload would be greater in volume, seriousness and complexity. This they stated, would require three things:

• The recruitment of justices who would give a greater commitment in time and training and - if employed - have cooperative employers;
• The establishment of an extensive training programme for justices; and
• The recruitment of legal assessors who would also require a training programme.

4.91 It was felt, however, that it would not be possible to provide a meaningful career structure for legal assessors and that, once they were fully trained, retaining their services may prove difficult. All of this would require considerable time to implement, and would delay effective improvement in the summary courts. In contrast, one individual did feel that a professional bench could be recruited and fully operational in a matter of months, which would allow the Report's other recommendations to take effect.

4.92 Finally, ACPOS and Justice for Victims also felt that the arguments supporting the ending of lay involvement in the summary justice system outweighed those promoting retention. They believed that lay involvement was not representative in terms of gender, age or ethnicity and felt that greater professionalism and consistency would be provided by professional judges.

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