Advocate urges review of Lieutenant Bailiff's role

Friday 24 August 2018

Should a non-legally trained person be allowed to sit in court and decide matters of law?

That’s a question being raised by a local lawyer on the role of the Lieutenant Bailiff, a non-legally qualified person appointed by the Bailiff, who can sometimes find themselves presiding over the Royal Court.

Advocate Timothy Hanson is arguing that their role should be reviewed, as their continued existence could be a risk to holding a fair hearing.

While it's rare to find the Lieutenant Bailiff 'in charge', they can be put in charge of big decisions. 

In an open letter shared with Express, Advocate Hanson quotes a 2005 case in which a Lieutenant Bailiff (who was not a qualified lawyer) removed a mother and baby at birth, "only to have another court decide this was wrong and too draconian." While the result might have been the same even if another person had presided over the case, "even the query arising is uncomfortable," he said.

Pictured: In 2005, a baby was removed from a mother following a decision by a non-legally trained Lieutenant Bailiff.

Advocate Hanson explained that his calls for review were inspired by a recent Youth Court of Appeal decision.

When the Youth Court meets to hear cases there’s a legally trained Magistrate and at least one or two other panel members - one of whom must be a woman. These others members – of which there are currently 12 – are members of the community who’ve put their names forward and been appointed by the Bailiff. Most panel members aren’t legally trained, but have been chosen to bring their experience, wisdom and knowledge to hearings.

In the appeal hearing, the question was raised whether panel members could decide on both matters of fact – in other words, whether the evidence they’ve heard is true – and law. The judgement came to the conclusion that the Magistrate was the sole arbiter on points of law.

Advocate Timothy Hanson says that’s hardly surprising, and seems logical, since the Magistrate is usually the only person on the panel with legal training. But, he takes the argument one step further. If, he asks, non-legally trained panel members can’t decide on points of law, what does this mean for Lieutenant Bailiff's?

Pictured: Advocate Timothy Hanson believes the anomalous role of the Lieutenant Bailiff should be reviewed.

Lieutenant Bailiff is another appointment made by the Bailiff. They are usually the most senior Jurats. Jurats, like Youth Court panel members, are usually laypeople who’ve put their names forward and been elected to perform a number of court related tasks, amongst them in effect acting as ‘jurors’ deciding on matters of fact in some court cases. On most occasions they sit with a very senior judge - often the Bailiff, Deputy-Bailiff, or a UK appointment

But Lieutenant Bailiffs can sometimes find themselves in charge of the Royal Court. Unless they are a retired advocate or solicitor - like the Youth Court panel members, most have had no legal training – they find themselves in a position of having to decide both fact and law.

So, Advocate Hanson concludes, if Youth Court Panel members can't decide on matters of law, why should Lieutenant Bailiffs be allowed to?

The anomaly of the Lieutenant Bailiff’s position it seems can be traced back to 1948. This is when the Jurats had their power to determine fact and law removed. But the law change still gave the Bailiff the power to appoint Lieutenant Bailiffs.

Advocate Hanson argues that now is an apt time to review this set-up and the consequences that follow.