The Place of Lay Participation in Decision-making
Barbara Reid and Ian Gillan
In this chapter we examine the role of lay people in judicial decision-making about children and young people. Our focus in the first section is on the justification of lay decision-making in general and the forms it takes. In the second section we consider the example of lay participation in the Scottish Children’s Hearings System, outlining its functions, characteristics and rationale. We evaluate how well the Scottish system meets the requirements of legitimacy established in the first part of the chapter.
Lay participation and decision-making
Making decisions on behalf of the state in relation to children involves the exercise of authority, which needs to be justified in any account of community justice. The forms of authority contained within a judicial system must be held and exercised legitimately. By this, we mean that the legal and quasi-legal mechanisms within a justice system must reflect the moral principles appropriate to such a sphere.
It may be observed in general terms that all justice and welfare systems must give due consideration to the interests of legitimate parties. There is, however, room for diverse views as to who actually are legitimate parties. Whether, for instance, private victims of public offences are parties with an interest in the dispositions (retributive or restorative) is currently subject to review in different jurisdictions. Parents or guardians are a class of authorised actors when they have a legally recognised interest in proceedings. Whether parents and other family members are parties when their children offend is also subject to variation between jurisdictions.
What is clear is that when there has been a breach of public law, the public (or community) must be represented as a party with a legitimate interest in the response to it. Since youth offending and care and protection decision-making must both operate in ways acceptable to the community, to incorporate a lay element into their procedures is one means of achieving this. Detailed analysis of different models of decision-making will enable us to discern in what spheres it is deemed appropriate to include the lay element.
Commonly the state is represented in judicial proceedings through appointed personnel, usually legally trained (e.g. judges, prosecutors, attorneys), sometimes having particular knowledge of children, sometimes not. However, the public interest might equally be represented by members of the general public themselves, or by elected officials or lay appointees. Thus public or community involvement in decisions may be based on the appointment of professionals with appropriate expertise, or on the ‘qualification’ of representing fellow citizens, whether through democratic election or simply as a result of being an ordinary, ‘typical’ person. The mode of selection varies and has included elite networking, political appointment and administrative recruitment. In the UK, Justices of the Peace were traditionally appointed on the basis of their social status; while in Scandinavia the inclusion of local politicians has been long established in relation to children (Abraham 1993, p.112).
Lay people, however chosen, can legitimately participate in judicial decision-making, but this may occur at various stages in the process. It is helpful to distinguish roles related to youth offending and care and protection by means of the following fourfold classification.
First, there is a gatekeeper who decides which cases enter the system and which are diverted or not pursued. This role may, for example, be carried out by a public prosecutor (USA), the police, Juvenile Liaison Officers (as in Ireland) or by the Children’s Reporter (Scotland) (Bala et al. 2002). Second, decisions about the facts of a case, and hence guilt or innocence, are often made by a judge, but in some circumstances a lay jury may decide this, albeit with guidance on the law. Third, dispositional or sentencing decisions are usually made by a judge, either by application of formulaic mandatory sentences or through the exercise of discretion within certain parameters. Such a role is carried out by the German Juvenile Court where a professional judge sits with two lay magistrates (confusingly known as ‘jurors’) (Cavadino 1996, p.127). In Scotland, Children’s Hearings make disposal decisions after a judge (sheriff) decides on the facts if they are disputed. Finally, it is usual to have individuals who advise and assist the court or tribunal, possibly also recording and administering cases. Clerks fulfil such a role in England, as do Children’s Reporters in Scotland.
We may ask why judges, juries or panels are authorised to decide at certain stages of the decision-making process as opposed to other possible decision-makers. Indeed, we may further enquire why one ‘type’ of person does not then decide at all stages of the process. The justification for granting authority to a decision-maker will differ between ‘types’. Magistrates, judges and sheriffs are qualified to judge law (and more contentiously to judge the facts) by virtue of their legal expertise. Professional expertise in the law and/or in societal needs may justify empowering Reporters, police officers or prosecutors to refer children into the System. As for lay decision-makers, their authority is justified by virtue of being in one way or another ‘representative’ of the community. Therefore, lay representatives will be legitimate participants in those aspects of the decision-making process in which we would wish to see the moral priorities of the community reflected. As we will argue, this generates a strong measure of legitimacy for lay decision-making in the disposal of cases.
Drawing on the above observations the next section provides a more detailed analysis of two of the most significant lay decision-makers for our purpose, namely jury members and lay magistrates. This review is guided by three conceptual issues. First, how is the decision-maker selected or ‘generated’? The main options are (i) random selection, (ii) popular election, and (iii) political appointment. A further option (iv) is to mix the above – the Scottish Hearings System, for instance, combines open application with executive selection. Second, from what moral perspective is the decision being made? Finally, what is the nature of the judgment required? By scrutinising the different responses to these three questions by particular types of decision-maker we may construct a picture of the decisional model most suitable to judgments concerning offending and care and protection disposals on behalf of children and young people.
The jury constitutes a common example of members of the public representing the community in a legal context. The concept of the jury is a complex and multifaceted one, however. The understanding of the jury that prevails in one jurisdiction is not necessarily the same as that to which other jurisdictions hold. In addition to their great symbolic significance, different forms of juries have roles founded on a variety of justificatory principles.
The types of judgment made by a jury vary. A distinction is often drawn between the finding of fact by the jury and the finding of law by the judge, but this may be blurred in certain circumstances. It has been suggested that since the eighteenth century enclosures juries have been required to disentangle legal guilt from motive (Cairns and McLeod 2002, p.103). In terms of a strict finding of fact juries would be required to judge that a crime was ‘done’ or ‘not done’, rather than find the accused ‘guilty’ or ‘not guilty’ (or the case ‘not proven’ in Scottish law).
In practice, juries have often been required to decide between murder and manslaughter charges, a blurring of the fact/law distinction. Law enters into the equation with the assessment of mens rea or ‘guilty mind’. This represents the principle whereby people may be found guilty only if it can be demonstrated that they performed an illegal act, which they know or could have known to be wrong. Both technical guilt – you did it – and moral guilt – you knew it was wrong – must be satisfied for the accused to be legally guilty (except in cases of ‘strict liability’). This is not a technical judgment but rather a moral and non-expert judgment made within a cultural context or lifeworld. Children below the age of criminal responsibility are assumed to lack the moral capacity to be guilty of crime. Also, juries in England and Wales may be required to assess the level of damages appropriate in libel cases. This is a matter of civil rather than criminal wrong, but does represent another example of a jury being required to exercise discretion in relation to the seriousness of a harmful act. This may bear comparison to role of Scottish panel members making disposals (see below).
With regard to decision-maker selection, random selection is the generative procedure most commonly identified with the citizen jury. In the USA, federal grand and petit juries are selected by lot from a list of registered voters or even the actual voters in the relevant political district (Abraham 1993, p.111); in England and Wales, the juries are initially cited from a list of householders supplied by the Local Authority, and appointed to the case by legal officers (Abraham 1993, p.112). There are often additional qualifications that jurors must fulfil, which vary between jurisdictions. The lists exclude certain people (e.g. non-householders) resulting in an element of unrepresentativeness. Further exclusions result from entry criteria (adults only), category exemptions (prisoners, British peers) and individual exemptions (by application in the UK and legal scrutiny in the USA – the ‘struck’ jury). We may therefore class this process as quasi-random selection, subject to exemption criteria. It could be argued that this is legitimate since what is left is the ethical community whose moral sense we wish to be reflected in the procedures and outcomes of our judicial system. One may, of course, reasonably disagree with the grounds upon which exclusion from juries is justified.
In some other jurisdictions juries are not selected from citizen lists, but are generated through various forms of election or appointment. In Switzerland, juries sitting with the Criminal Chamber of the Federal Tribunal are elected by popular vote for six-year terms, on the basis of one juror per 3000 of the population (Abraham 1993, p.112). By contrast, Swedish juries are appointed for four-year periods by county councils (Abraham 1993, p.112). The justificatory basis for an elected or appointed juror as long-term decision-maker is different compared with a lay juror selected at random to make decisions for a temporary period. The moral perspective is not the same either.
The decisions reached by randomly selected juries cannot easily be viewed as making technical or professional judgments; rather they constitute non-expert judgments, arguably reflecting the moral standpoint of the community from which the jurors are chosen. Decisions thus viewed should be based on reasonableness and reflect common-sense community values. Thus the decision is socially embedded. The deliberation required of such juries also lends the decision a dialogical character.
It may be argued that the juror selected at random represents the value-community by being an instance of that community. By definition you can never predict the make-up of a jury chosen by lot. Nevertheless, one may be of the view that 12 (or however many) jurors chosen ‘off the street’ will more often than not comprise a satisfactory microcosm of the ethical community whose values we wish to see projected in jury decisions. Of course, the jurors may not reason from their own moral perspectives in the collegiate jury context anyway, instead choosing to adopt the moral outlook of the community at large.
Elected jurors, by contrast, have the advantage of an extended period in post during which they become more familiar with the processes involved and more confident in their decision-making. The predisposition to make politically popular judgments, reflecting the priorities of the majority or plurality of a community, may or may not be considered a legitimate aspect of this mode of selection. Juries subject to influences beyond the proceedings, once they are in train, are usually regarded as acting contrary to natural justice.
A similar issue of political partisanship arises for politically appointed jurors. This type is perhaps more problematic from the point of view of community values informing the jury decisions. One may, for example, question the independence of such a jury from the policy objectives of the government that appointed them. A similar concern arises from the political appointment of high or supreme court judges; the antidote to executive interference in judicial decisions is seen to lie in security of tenure. Who does the selection and appointment, and what is the tenure of appointments, are equally issues of importance for the independence of lay decision-makers. Voluntary appointments (in the sense of non-payment for service) may be regarded as a bulwark against untoward influence.
An element of meritocracy is present in appointment systems. This has great significance in terms of the nature of the decision-maker’s judgment. The appointing body may wish to populate its juries with individuals notable for some measure of academic ability or knowledge of the judicial process, or who possess a relevant specialism such as training in social work, psychology or criminology, for example. It may be argued that decisions about disposals in care and offending cases cannot reliably be made without some background in the relevant professions such as those suggested above. To make such an assessment it will be helpful to examine one important aspect of the justification of the jury, which is the question of competence.
Historically, juries were not so randomly chosen are they are in the UK and USA today. Some measure of meritocracy was built into the system at various times. In response to concerns that many jurors lacked the mental capacity for carrying out such a responsible role, one-quarter of US states have, at one time or another, used ‘blue-ribbon’ juries. These required prospective jurors to pass a test to demonstrate their capacity to understand legal concepts and terminology with which they would find themselves presented in the course of a case. Such juries still have not been formally abolished in the United States. The British equivalent, ‘struck juries’, were abolished in 1971, having been introduced at the King’s Bench in 1730 for ‘trials of great consequence’ (Abraham 1993, p.119). An echo of this is found in present-day debates about abandoning trial by jury for serious fraud trials and other cases involving complicated financial malpractice.1 It is argued that the average juror would lack the wherewithal to come to an informed judgment, and would merely find him or herself at the mercy of bamboozling advocates.
Following this logic it may be concluded that the very delicate and complicated judgments required in care and protection or even certain offence cases are too difficult to be left to lay volunteers (see Chapter 6). In their place we should install professionals with appropriate training, technical expertise and experience to make authoritative and reliable decisions about the care and treatment of children and young people. This is a critique that must be addressed in order to justify the extensive lay involvement in the Scottish Children’s Hearings System. Before explaining how this objection may be met we turn to the other significant example of lay judicial decisionmaking: the lay magistracy.
In the British context, criteria for selecting lay magistrates originally took the form of a fusion of presumptions regarding class and, by extension, competence. The tradition of lay magistrates in England and Wales, and Justices of the Peace in Scotland, descended from the practice of appointing members of the gentry to judicial and quasi-judicial roles on the basis of their hierarchical social privilege and thus their better education. It has been persuasively argued (Jones and Adler 1990, pp.41–52) that the elite social backgrounds from which Scottish Justices of the Peace continue to emerge (essentially thought to be the ‘old boys’ network’), as well as their extensive legal training and contact with the judiciary, cumulatively serve to render them ‘lay’ magistrates in name alone.
In the German Juvenile Court, as we have already noted, a professional judge sits with two lay magistrates (or ‘jurors’). The role of these lay magistrates is controversial, however, with many German analysts arguing that the decisions of the Juvenile Court should be a matter for professionals alone (Cavadino 1996, p.127).
So what is the justification for the endurance of the lay magistrate’s role? We shall scrutinise the concept of the lay magistrate in the light of our three-fold analytical model. In England and Wales, to give one example of the means of selection undergone by lay magistrates, they are ‘are appointed by the Secretary of State for Constitutional Affairs and Lord Chancellor on behalf and in the name of the Sovereign’2 following a written application. Furthermore:
newly appointed magistrates are required to undergo a programme of training, prescribed by the Lord Chancellor, to help them to understand their duties, to obtain a sufficient knowledge of law and procedure, to acquire a working knowledge of the rules of evidence and to appreciate the nature and purpose of sentencing.
Scottish Justices of the Peace and German lay magistrates undergo very similar processes of selection and training.
The moral perspective and form of decision-making required of lay magistrates in England and Wales are largely indistinguishable from those of ‘normal’ professional judges and magistrates. The criteria called for by the Department for Constitutional Affairs include the ‘ability to think logically, weigh arguments and reach a balanced decision’, ‘objectivity’ and ‘the recognition and setting aside of prejudices’. Essentially the lay magistrate is required to mirror the analytic, objective and rational form of decision-making adopted by professional judges. This appears to differ significantly from the communally reasonable form of decision made by a children’s panel member in Scotland, for example.
It may be argued, following from these observations, that a lay magistrate’s role in any child offending and/or care and protection system must be limited to those areas suited to a professional (or legally trained amateur) adopting a rational impartial perspective applying a universal legal norm. This fits with a conception of the lay element augmenting the professional without embodying a distinctively different perspective. It appears that the lay magistrate may be viewed as someone with a sufficient grounding in the law to judge both questions of fact and disposition in cases of lesser seriousness than those falling to professional judges. At most the lay magistrate might embody an enhanced element of objective disinterestedness, arising from the fact of their giving unpaid public service.
When we consider the nature of care and protection or young offender cases, we might think that satisfactory decisions must pay some regard to popular morality and communal understandings upon issues such as: the extent of culpability associated with age and maturity; the degree of parental responsibility for children’s conduct; and what might be deemed an acceptable standard of care, or tolerable household environment. These are judgments with an irreducibly moral element that must be made within the horizon of the value community. Therefore the moral perspective they demand is not simply that of judicial rationality but instead must reflect the common-sense standard of popular reasonableness that lay people bring.
Having delineated the various justifications for lay participation in legal decision-making we will now look in closer detail at the operation of the Scottish Children’s Hearings System, representing as it does a decision-making process founded heavily on lay involvement.
Lay decision-making in the Scottish Children’s Hearings System
This brief analysis of the Scottish Children’s Hearings System will examine how the characteristics of panel member participation within it fits with our general observations about the legitimate role of lay decision-makers. In order to adjudge the appropriateness of the ‘division of labour’ within the Scottish system we must first describe briefly the roles played by different the decision-makers.
Separation of function
The decision process for a child in need of compulsory supervision begins with referral to the Children’s Reporter, who has the ‘gatekeeper’ function. She or he is a professional with legal training and often a background in other children’s services, who judges, first, whether there is prima facie evidence to substantiate one of the legal grounds for referral and, second, whether there is need for compulsory intervention. When the Children’s Reporter refers to a Children’s Hearing, the case proceeds if the child and parent accept the grounds for referral. However, if the grounds are denied the case is either referred to the sheriff (a Scottish ‘judge’) for ‘proof’, or discharged. The proceeding before the sheriff considers only the facts as to whether the grounds are established. If they are, the case is returned to a Children’s Hearing for disposal. The sheriff also has a role in considering appeals against Hearings decisions and granting initial warrants to investigate.
When grounds are either accepted or proved, the child and parents are required to participate in a Children’s Hearing. The Hearing consists of child, parents (or person in parenting role), three panel members and such others as are deemed ‘necessary to the disposal of the case’ (this includes a Children’s Reporter, who clerks the hearing – normally a social worker – and, less often, family representatives and other relevant parties).
As Lord Hope famously argued ‘the genius of the (system) which has earned it so much praise’3 resides in the separation of the adjudication of facts from the determination of disposition, the former being the proper provenance of a sheriff in the setting of a court and the latter being a matter to be decided at a Children’s Hearing by lay people. The original justification of this fundamental separation of function is found in the Kilbrandon Committee Report, which provided the ‘philosophy’ of the system. It argued that while the formal adversarial process of a court was necessary for the finding of fact, or what it called ‘the adjudication of the allegation’ (Kilbrandon 1964, para. 52), it was an unnecessary and inappropriate procedure by which ‘to consider the measures to be applied’. The latter essentially involved a judgement of what ‘measures of education and training were most appropriate to the child’s needs’, which could best be decided outside ‘the rigid framework’ of a court, with the participation of parents and children, in ‘an atmosphere of full, free and unhurried discussion’ (Kilbrandon 1964, paras 73, 109).
The chief virtue of separating proof from disposal is that the latter decision process can be conducted in a relatively informal setting, which facilitates an open discussion between family members, panel members and professionals about what measures are needed. At best the decision will be consensual; at worst, differences will at least have been aired and the views of children and parents listened to.
We should notice in passing that the much vaunted separation is now less clear-cut than Kilbrandon envisaged, as a result of the changes made in the 1995 Children Scotland Act (Section 51), which allow sheriffs on appeal to alter Hearings’ disposals. It is widely agreed that this is an unprincipled departure from a proper separation of functions, and that sheriffs should make scant use of this power (Lockyer and Stone 1998).
Selection and representativeness
The Kilbrandon Committee itself did not spell out the case for lay people having the decisive voice in disposal decisions, though it made clear that welfare judgments were not essentially matters of legal expertise. Persons appointed to panels should be those ‘with knowledge or experience to consider children’s problems’ (Kilbrandon 1964, para. 92(a)). However, the White Paper Social Work and the Community (HMSO 1966) added to this by viewing panel members as ‘representatives of the community’. These slightly different specifications were combined and amplified in the Scottish Office Guidance (Social Work Service Group 1969), which proposed those appointed should ‘have knowledge and experience in dealing with children and families and be drawn from a wide range of neighbourhoods, age groups and income groups’. The document also made it clear that the success of the system depended upon finding ‘suitable members of the community willing and able to serve on panels in adequate numbers’ (para. 76) and this would require reaching people ‘who might not have previously thought of themselves as candidates for public service’ (Appendix A, para. 1).
Early fears about the lack of possible volunteers proved to be unfounded even though there was an initial underestimate of the numbers required (Cowperthwaite 1988). Recruitment is by open application, which has always produced a surfeit of volunteers, so the composition of authority panels is largely a result of selection carried out by the Children’s Panel Advisory Committees (CPACs) or their subcommittees. Each committee sets the criteria needed to meet the needs of its particular panel, but a nationally consistent approach to recruitment and selection is in train. The issue of representation, and how this is to be balanced against the attributes and skills of individuals remains salient both for CPACs and for the Scottish Executive (Scottish Executive 2004).
The composition of panels was linked from the start with the capacity of members to empathise and communicate with families. There was a view, justified or not, that the quality of ‘engagement’ at Hearings might be impeded if there was too much social distance between panel members and families (Mapstone 1973; May and Smith 1971). Although it was never suggested that the relevant ‘community’ should be the section of Scottish society from which the preponderance of referrals came, CPACs did accept that the credibility of the System depended upon panels being broadly representative of the communities they served. CPACs have generally followed the policy of appointing the best applicants, while targeting recruitment campaigns on under-represented groups. The concept of panels being ‘representative’ and panel members expressing the voice of ‘the community’ on Hearings, remains very much part of government thinking.
The social composition of panels, and the age and gender distribution of panel members, have each been subject to scrutiny and are now, together with other characteristics, nationally recorded. Each has been subject to some significant change. Assessing changes in social composition comparisons is difficult for a number of reasons. The definitions and methods of recording social class have changed, which makes direct comparison of current with previous figures difficult. Changes will also reflect different patterns of employment and income in Scottish society and economy as a whole. Another factor is the increasing number of panel members not in full-time paid employment. Latest figures, which use the National Statistics Socio-Economic Classification (NS-NSEC), indicate that in 2004 almost 11 per cent of panel members defined themselves as being in the professional/ managerial category, with 25 per cent in intermediate occupations, and those in skilled and semi-skilled work comprising 37 per cent of current membership. Those who define themselves as carer/at home/spouse, and those who are retired, amount to 17 per cent. This represents a shift away from early evidence of panels being dominated nationally by the professional/managerial class (Lockyer 1992; Reid 1998).
It was a feature of the system in the early 1970s that the age range of panel members was wider than that of judicial bodies in other systems. Panel membership included a class of ‘new volunteers’, which augmented the older age range of those who typically engaged in traditional volunteering (Gerard 1983; Lockyer 1992, Chapter 5). Those under 30 made up 11 per cent of members in 1971, 6 per cent in 1992, and up again to 8 per cent in 2004. The evidence is that despite lowering the minimum age to 18 and CPACs being willing to appoint young people, few of this age group regard panel membership as an appropriate form of voluntary service.
The upper age limit, originally 60, was increased to 65, but CPACs have been reluctant to appoint members over 60 (Lockyer 1992). Their numbers increased from 2 per cent in 1996 to 8 per cent in 2004. The 2004 national recruitment campaign removed the age barrier; it remains to be seen how this will affect recruitment. The greater availability for service of retired people may well make them especially welcome.
The predominant age group of panel members continues to be in the 40 to 59 age range – 58 per cent in 1971, 60 per cent in 1996 and remaining at that figure in May 2004. While the age distribution of panels cannot be expected to correspond to the population at large, CPACs have had an implicit policy to include members at different life-stages, some at least being in the same age range as the parents who come to the Hearings.
In the early years of the system there was little evidence of a difference in the proportion of men and women serving on panels. However, today there is a widening gap between the number of serving panel members, male and female, which reflects a greater difference in the proportions of each applying. During the 2003 recruitment campaign the number of applications from men accounted for only 30 per cent (National Representatives Group 2004). There is some concern that able women applicants are being turned away in favour of men in order to meet the legal requirement of mixed-gender hearings.
This invites reconsideration of the mixed-gender requirement. That said, at a time when there is a very strong case being made by ‘Fathers for Justice’ – particularly in relation to contact and care issues – keeping the gender mix on Hearings gives a strong message to all that child care is a matter for both sexes.
One of the continual concerns of CPACs has been the collective lack of experience among panel members due to a high resignation rate in the early years of service. Over recent years the numbers recruited have increased and most panels have a high percentage of inexperienced members (i.e. with fewer than two years’ service). Panel service includes a substantial commitment to pre-service and in-service training, which for the individual is a significant burden (though an acknowledged personal benefit in terms of acquisition of transferable skills). From a budgetary point of view early resignations may be viewed as a waste of investment, as well as a loss of acquired knowledge and experience. Both the issue of retention and the concern to maintain broad community representation has led to payment for panel service being placed on the agenda for review. This, of course, has implications for ‘layness’.
Panel member training
The Consumer Council research that compared children’s panel membership with other voluntary tribunals found that appointments to panels were more ‘open and representative’ than those to other tribunals, but concluded that they might be able to secure an even wider cross-section of the community if CPACs did not ‘look for the right people’ but were ‘prepared to train from scratch’ anyone ‘genuinely interested in children’ (Jones and Adler 1990, p.114). The authors of the report were aware that there might be a conflict between the ideas of layness and of being thoroughly trained for the job, though they made no attempt to reconcile the conflict.
The statutory duty to train panel members lies with individual Local Authorities but the Scottish Ministers exercise their discretionary powers in supporting the training of panel members through four Children’s Hearings Training Units located in four Scottish universities. Panel members are recruited subject to satisfactory completion of training, which in effect means that all new recruits undertake an Induction Training Course (minimum 40 hours) following a nationally agreed standard framework (Children’s Panel Training 1999) and only after satisfactory completion are permitted to sit on Hearings. There are further stages of mandatory training for new members and those coming up for reappointment, in addition to training arranged at area level.
The standard training given to panel members is nationally consistent in terms of outcomes, content, amount of training offered, and in the forms of assessment and evaluation employed. These developments have also contributed to a more structured process at reappointment, where CPACs monitor performance, provide feedback to panel members and invite them to identify areas of weakness and training needs. The quality of the training now provided by training officers has been highly applauded by the Scottish Council of Tribunals (SCOTCOT 2001, 2002). It was suggested that it might provide a model for other national tribunals to follow.
However, the importance attached to training and monitoring raises the question as to whether lay members (presently unpaid) are in fact expected to perform as professionals, whose decisions are informed by an acquired expertise rather than reflecting their identity with the community at large. Some explanation is needed.
As we have noted, the Kilbrandon Committee saw the virtue of the lay tribunal to consist in its relative informality and discursive character. But the decisions of Hearings have statutory force and the framework of the procedure at Hearings is specified in law to ensure that the rights of children and families are observed. Both anecdotal evidence and research findings in the first decade indicated that informality led to procedural laxity (akin to the Gault experience in the US; see Chapter 12), as well as wide variations in practice between hearings (Martin, Fox and Murray 1981).
There was also a disposition for the Hearing chairs to be too dependent upon the advice of the Reporter in procedural matters. This risked at the very least a perception that the officer bringing the case exerted a strong influence on its disposals. The solution to these deficiencies was seen to lie in ensuring that lay members were thoroughly versed in the due process of Hearings, with an emphasis on providing training for members with some experience in chairmanship skills. As the system has developed there has been increasing attention to formal rights, and there have been changes in the law relating to Hearings that have required additional training. Lay members are therefore increasingly trained to a national standard of competence in the powers and procedures pertaining to Hearings (Competence Framework 2003).
Another aspect of training has focused on developing skills to communicate with families, while at the same time making best use of professionals and having knowledge of available resources. Panel members are not trained to be experts in child development, child psychiatry or juvenile delinquency, but their training seeks to engender a capacity to critically examine reports and care plans presented to them, and to know when to seek further professional or community involvement. What training does not attempt to do is teach lay members what to decide. This it could not do in principle.
Lay people have contributed to quasi-judicial decision-making with respect to children for centuries, notably through their roles as magistrates or jurors. Sometimes their involvement has been on the basis of elite membership, but more commonly they have been chosen on the basis of representing the whole local community, whether through election, qualified random selection or open application. This chapter has argued that in relation to both criminal behaviour by young people and concerns about parenting and care, the appointment of lay decision-makers is legitimised by the fact that decisions have a moral component, though not a moralistic one, and lay people reflect the range of moral opinion in the community. In particular the determination of a sentence or disposal is not reducible to any body of technical knowledge or professional expertise, but also requires ethical judgement. Decisions weighing a loss of liberty against the needs of the offender/victim and the community as a whole are arguably ‘lay’ assessments made within any given cultural context by people who inhabit that same moral space.
Different contexts and roles have different criteria and means of preparation. For instance in the Anglo-American jury system the purpose is to decide on facts, not the outcome. Hence the juror is expected to be impartial. Preparation is minimal and jury members hear only what is presented in court without bringing extraneous sources of knowledge or specialist insight with them.
By contrast, in the Scottish Children’s Hearings System, three lay panel members make the disposal in nearly all cases, whether referred on the basis of an offence or on care and protection grounds. Panel members are recruited by open application with the aim of achieving a broad cross-section of the local community. Panel members bring their own value judgements to Hearings but these are affected by their training and by their experience of the Hearing process, including engagement with families and professionals. Much of what is misleadingly called ‘training’ is the discursive reflection on cases that takes place among the members of area panels themselves. It is in this context of shared experience that all the panel members serving an area provide a community of discourse that influences the moral perspective adopted in Hearings. In this way, it may be said that the training does not undermine ‘layness’ as it is not equivalent in scale or coverage to professional training. Instead it enhances the lay perspective for making complex judgements.
3.In a much quoted legal judgment of 1991, found for example on the Scottish Executive’s website, at www.scotland.gov.uk/library5/education/krcy-02.asp.
Abraham, H.J. (1993) The Judicial Process (6th edn) Oxford: Oxford University Press.
Bala, N., Hornick, J.P., Snyder, H.N. and Paetsch, J.J. (2002) Juvenile Justice Systems. Toronto: Thompson Education Publishing.
Cairns, J.W. and McLeod, G. (eds) (2002) The Dearest Birthright of the People of England: The Jury in the History of the Common Law. Oxford: Oxford University Press.
Cavadino, P. (ed) (1996) Children Who Kill. Winchester: Waterside, in association with the British Juvenile and Family Courts Society.
Children’s Panel Training (1999) Design, Content and Evaluation. Edinburgh: Scottish Executive.
Competence Framework (2003) For Chairmen and Members of Children’s Hearings. Edinburgh: Scottish Executive.
Cowperthwaite, D.J. (1988) The Emergence of the Scottish Children’s Hearings System. Southampton: Institute of Criminal Justice, University of Southampton.
Gerard, D. (1983) Charities in Britain: Conservatism or Change? London: Bedford Square Press.
HMSO (1966) Social Work and the Community. Cmnd 3065. Edinburgh: HMSO.
Jones, C. and Adler, M. (1990) Can Anyone Get On These? Edinburgh: Scottish Consumer Council Report, March.
Kilbrandon, Lord (1964) Report of the Committee on Children and Young Persons Scotland, Cmnd 2306. Edinburgh: HMSO.
Lockyer, A. (1992) Citizen’s Service and Children’s Panel Members. Edinburgh: Scottish Office SWSG.
Lockyer, A. and Stone, F.H. (eds) (1998) Juvenile Justice in Scotland: Twenty-five Years of the Welfare Approach. Edinburgh: T&T Clark.
Mapstone, E. (1973) ‘The Selection of Children’s Panel Members for the County of Fife.’ British Journal of Social Work 3, 4, 445–469.
Martin, F., Fox, S. and Murray, K. (1981) Children out of Court. Edinburgh: Scottish Academic Press.
May, D. and Smith, G. (1971) ‘The Appointment of Aberdeen Children’s City Panel.’ British Journal of Social Work 1, 1, 5–27.
National Representatives Group (2004) Recruitment Report. Edinburgh: Scottish Executive.
Reid, B. (1998) ‘Panels and Hearings.’ In A. Lockyer and F. Stone (eds) Juvenile Justice in Scotland: Twenty-five Years of the Welfare Approach. Edinburgh: T&T Clark.
SCOTCOT (2001) Special Report into the Children’s Hearings. Edinburgh: Scottish Committee of the Council on Tribunals.
SCOTCOT (2002) Annual Report. Edinburgh: Scottish Committee of the Council on Tribunals.
Scottish Executive (2004) ‘Getting it Right for Every Child.’ Online at www.scotland.gov.uk/Publications/2005/06/20135608/56098
Social Work Service Group (1969) Guidance to Children’s Panel Advisory Groups SW7/69.
‘Getting it Right for Every Child’ (2004) at: www.scotland.gov.uk/Publications/2005/06/20135608/56098