‘Take it from Me…’—The Roles of the Judge and Lay Assessors in Deciding Questions of Law in Appeals to the Crown Court
| Author | Michael Bohlander |
| DOI | 10.1350/jcla.2005.69.5.442 |
| Published date | 01 October 2005 |
| Date | 01 October 2005 |
| Subject Matter | Article |
‘Take it from me. . .’—The Roles
of the Judge and Lay Assessors
in Deciding Questions of Law in
Appeals to the Crown Court
Michael Bohlander*
Abstract According to traditional jurisprudence, lay assessors sitting with
professional judges at the Crown Court, whether at trial or appeal level,
have to take the law from the judge as the legal professional. The same is
not true when the same lay magistrates sit at the magistrates’ court either
with a clerk or a professional district judge. This article questions the
traditional arguments for this discrepancy and argues that if lay assessors
at the Crown Court have the status of full judges, they should also have
the power to decide questions of law.
Section 48 of the Supreme Courts Act 1981 provides for two to four lay
assessors to sit with a judge of the Crown Court in appeals against
decisions of the magistrates’ court. They are then not an ‘ersatz’ jury, but
judges of the Crown Court, too. Their participation at Crown Court level
is a remnant of their earlier role at the abolished quarter sessions, where,
apart from hearing summary trials, in all but the most serious indictable
cases, benches of two to nine magistrates presided over trials by jury, the
most serious cases, however, being reserved for the court of assizes.1
The question arises, what is their present relationship to the pro-
fessional judge who presides over the case? More specifically, are there
any distinctions with regard to their respective powers as to who decides
questions of fact and/or law? The general view appears to be that on
questions of fact the judge and the assessors are of the same rank and the
lay justices can in theory outvote him or her on the facts; but as far as
questions of law are concerned, the assessors must take the law from the
judge and cannot vote against the judge’s views.2This view is based
mainly on two cases from 1974 and 2000, which allegedly state this
principle.3This article will set out the development of the rule and
question whether it is well founded.
* Professor of Law, University of Durham; e-mail michael.bohlander@durham.ac.uk. I
would like to thank Judge Howard Morrison QC for his comments as well as
directing me to some of the sources, and to Professor G. R. Sullivan, Durham, for
his comments on an earlier draft of this article. All remaining mistakes are entirely
my own.
1 J. Sprack, A Practical Approach to Criminal Procedure, 10th edn (Oxford University
Press: Oxford, 2004) 5.02.
2 See e.g. R. Pattenden, ‘Criminal Appeals’, in M. McConville and G. Wilson (Eds),
The Handbook of the Criminal Justice Process (Oxford University Press: Oxford, 2002)
489; P. Morrish and I. McLane, Crown Court Index 2005 (Sweet & Maxwell: London,
2005) 51; Sprack, above n. 1 at 13.18.
3R vOrpin (1974) 59 Cr App R 231; Cook vDPP [2001] Crim LR 321.
442
To continue reading
Request your trial