The Position of the Lay Magistrate within the English Judicial Process: Is it
possible to replace the Lay Magistracy with District Judges?
The Magistrates Court has been defined in the Magistrates Courts Act 1980 in
s148 as “any justice or justices of the peace acting under any enactment or by virtue
of his or their commission or under common law.” The position of the magistrate has
existed in one form or another since the year 1195 1. Under the reign of Richard I,
Knights of the Realm were commissioned as Keepers of the Peace in order to preserve
the King’s Peace. Lay Magistrates were not to be known as “Justices of the Peace”
(JP) until the year 1361, which developed from an Act in 1327 which referred to
“good and lawful” men to be appointed to “guard the peace” 2. The Municipal
Corporations Act 1835 changed the nomination procedure so that all magistrates were
appointed by the Lord Chancellor. The abolition of the property qualification in 1906
and the passing of the Sex Disqualification (Removal) Act 1919 opened up the
magistracy to (potentially) everyone over the age of 18, with some exceptions. The
first female magistrate, appointed on the 31st December 1919, was Mrs. Ada Summers
of Stalybridge who was closely followed by 6 others from across the country in 19203.
The duties of the Magistrates, like the appointment system, have changed
throughout the history of the post. Before 1888, magistrates had many administrative
duties, such as fixing wages, ordering the building and control of roads and bridges
and “undertook to provide and supervise locally those services thought by the
Monarch and by Parliament to be necessary for the welfare of the country.” 4 After
1888 however, many of these powers were removed, with the exception of the power
to grant liquor licenses.
The role of the modern day magistrate is very much different from their 12 th
century counter-parts. While magistrates have always sat on the bench for trials, they
now hear around 95% of all cases falling within criminal law jurisdiction 5. Their role
is to determine the guilt or innocence of a defendant, deciding upon requests for
1
The Magistrates Association; last updated 09/06/06; available from http://www.magistrates-
association.org.uk/ ; Accessed on 03/12/08
2
ibid
3
ibid
4
Her Majesty’s Court Service; last updated 18/6/07; available from http://www.hmcourts-
service.gov.uk/aboutus/history/magistrates.htm ; Accessed on 05/12/08
1
, remand (keeping the defendant in custody), overseeing and deciding on bail
applications. Magistrates also send cases to the Crown Court, for instance if they are
indictable only offences or if the defendant is being tried for an “either way” offence
and wishes to be tried there.
In a Magistrates Court, it is possible that a defendant will not be tried by
magistrates, but by a District Judge instead; previously known as a stipendiary
magistrate6. They were renamed by the Access to Justice Act 1999 in order to more
strongly identify them with the judiciary instead of the magistracy. Their roles are
basically the same as the lay magistrates, with the exceptions that they sit alone on the
bench instead of in a group of 3 and have a much wider jurisdiction in the types of
cases that they hear, such as cases arising from the Extradition Act 2003 and the
Fugitive Offenders Act 18817. Another difference between lay magistrates and district
judges is the appointment process. To become appointed as a lay magistrate, no legal
qualification is needed. In fact, there are almost no quantitative qualifications in
becoming a magistrate as most of the requirements are more personality based and
therefore cannot truly be measured in the same way that, for example, A Levels and
University Degrees can. In order to be appointed, an applicant must request and fill
out an application form. Until recently, the appointment of magistrates was handled
by the Home Office but is now handled by the Lord Chancellors Department.
In contrast, the appointment procedure for district judges is rather different.
The fact that this is a judicial post means that, aside from being paid for it, an
applicant must have had a right of audience in the Magistrates, County or Supreme
Courts for at least seven years (s71 (3) (c) Courts and Legal services Act 1990) 8. It is,
however, highly unlikely that any solicitor or barrister with only seven years of legal
experience will be appointed to the bench. It is also expected of any would-be
applicant that they have served as a Deputy District Judge. The position of the District
Judge, as mentioned above, is not a voluntary position. Whereas Lay Magistrates can
5
Directgov; (n.d); available from
http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Becomingamagistrate/DG_071384 ; accessed
on 7/12/08
6
Gillespie, The English Legal System (Oxford: Oxford University Press, 2007) 1st ed. Pg 324
7
Her Majesty’s Court Service; last updated 26/05/06; available from http://www.hmcourts-
service.gov.uk/infoabout/magistrates/index.htm ; accessed on 07/12/08
8
Gillespie, The English Legal System (Oxford: Oxford University Press, 2007) 1st ed. Pg 324
2
possible to replace the Lay Magistracy with District Judges?
The Magistrates Court has been defined in the Magistrates Courts Act 1980 in
s148 as “any justice or justices of the peace acting under any enactment or by virtue
of his or their commission or under common law.” The position of the magistrate has
existed in one form or another since the year 1195 1. Under the reign of Richard I,
Knights of the Realm were commissioned as Keepers of the Peace in order to preserve
the King’s Peace. Lay Magistrates were not to be known as “Justices of the Peace”
(JP) until the year 1361, which developed from an Act in 1327 which referred to
“good and lawful” men to be appointed to “guard the peace” 2. The Municipal
Corporations Act 1835 changed the nomination procedure so that all magistrates were
appointed by the Lord Chancellor. The abolition of the property qualification in 1906
and the passing of the Sex Disqualification (Removal) Act 1919 opened up the
magistracy to (potentially) everyone over the age of 18, with some exceptions. The
first female magistrate, appointed on the 31st December 1919, was Mrs. Ada Summers
of Stalybridge who was closely followed by 6 others from across the country in 19203.
The duties of the Magistrates, like the appointment system, have changed
throughout the history of the post. Before 1888, magistrates had many administrative
duties, such as fixing wages, ordering the building and control of roads and bridges
and “undertook to provide and supervise locally those services thought by the
Monarch and by Parliament to be necessary for the welfare of the country.” 4 After
1888 however, many of these powers were removed, with the exception of the power
to grant liquor licenses.
The role of the modern day magistrate is very much different from their 12 th
century counter-parts. While magistrates have always sat on the bench for trials, they
now hear around 95% of all cases falling within criminal law jurisdiction 5. Their role
is to determine the guilt or innocence of a defendant, deciding upon requests for
1
The Magistrates Association; last updated 09/06/06; available from http://www.magistrates-
association.org.uk/ ; Accessed on 03/12/08
2
ibid
3
ibid
4
Her Majesty’s Court Service; last updated 18/6/07; available from http://www.hmcourts-
service.gov.uk/aboutus/history/magistrates.htm ; Accessed on 05/12/08
1
, remand (keeping the defendant in custody), overseeing and deciding on bail
applications. Magistrates also send cases to the Crown Court, for instance if they are
indictable only offences or if the defendant is being tried for an “either way” offence
and wishes to be tried there.
In a Magistrates Court, it is possible that a defendant will not be tried by
magistrates, but by a District Judge instead; previously known as a stipendiary
magistrate6. They were renamed by the Access to Justice Act 1999 in order to more
strongly identify them with the judiciary instead of the magistracy. Their roles are
basically the same as the lay magistrates, with the exceptions that they sit alone on the
bench instead of in a group of 3 and have a much wider jurisdiction in the types of
cases that they hear, such as cases arising from the Extradition Act 2003 and the
Fugitive Offenders Act 18817. Another difference between lay magistrates and district
judges is the appointment process. To become appointed as a lay magistrate, no legal
qualification is needed. In fact, there are almost no quantitative qualifications in
becoming a magistrate as most of the requirements are more personality based and
therefore cannot truly be measured in the same way that, for example, A Levels and
University Degrees can. In order to be appointed, an applicant must request and fill
out an application form. Until recently, the appointment of magistrates was handled
by the Home Office but is now handled by the Lord Chancellors Department.
In contrast, the appointment procedure for district judges is rather different.
The fact that this is a judicial post means that, aside from being paid for it, an
applicant must have had a right of audience in the Magistrates, County or Supreme
Courts for at least seven years (s71 (3) (c) Courts and Legal services Act 1990) 8. It is,
however, highly unlikely that any solicitor or barrister with only seven years of legal
experience will be appointed to the bench. It is also expected of any would-be
applicant that they have served as a Deputy District Judge. The position of the District
Judge, as mentioned above, is not a voluntary position. Whereas Lay Magistrates can
5
Directgov; (n.d); available from
http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Becomingamagistrate/DG_071384 ; accessed
on 7/12/08
6
Gillespie, The English Legal System (Oxford: Oxford University Press, 2007) 1st ed. Pg 324
7
Her Majesty’s Court Service; last updated 26/05/06; available from http://www.hmcourts-
service.gov.uk/infoabout/magistrates/index.htm ; accessed on 07/12/08
8
Gillespie, The English Legal System (Oxford: Oxford University Press, 2007) 1st ed. Pg 324
2
