The National Court Observation Study investigated aspects of judicial work that magistrates themselves identified as important, as well as issues which the researchers identified as significant.
Based on consultations, preliminary observations, the survey results, and literature review, the general criminal list was identified as the most appropriate aspect of magistrates’ everyday work to study in detail. It includes pre-trial decisions such as bail, non-trial processes such as guilty pleas as well as sentencing. It is a central feature of the work in first-instance courts throughout the common law world, and is part of the work of nearly all lower court judicial officers at some point in their careers.
Focusing on magistrates conducting the general criminal list entailed consideration of the nature and number of decisions a magistrate must make, the time available to decide, the sources of information used and the interaction with other participants.
The demands of the criminal list, as detailed in this research, exemplify many of the features which characterise lower court processes, such as the large number of cases and associated time pressures.
This research also enabled investigation of the interactive aspects of judicial work in court. A courtroom is a social situation as well as a legal setting, and a workplace, with face-to-face interaction. This is especially important in relation to the increased emphasis on judicial interaction, whether with unrepresented litigants, or in relation to newer approaches to judging such as therapeutic jurisprudence.
For more detail on the research strategy and data collection process, see below.
Publications relating to this phase of the Project include:
Roach Anleu, Sharyn and Kathy Mack, Judging and Emotion (2021) Routledge.
Roach Anleu, Sharyn and Kathy Mack (2019) ‘Communicating Justice: Alternative Judicial Approaches’ in Pat Carlen and Leandro Ayres Franca (eds) Justice Alternatives, Routledge.
Roach Anleu, Sharyn and Kathy Mack (2019) ‘Law and Sociology’ in Naomi Creutzfeldt, Marc Mason and Kirsten McConnachie (eds) Routledge Handbook on Socio-Legal Theory and Method, Abingdon and New York: Routledge.
Roach Anleu, Sharyn and Kathy Mack (2018) ‘Judicial Humour and Inter-Professional Relations in the Courtroom’ in Sharyn Roach Anleu and Jessica Milner (eds) Judges, Judging and Humour, Cham: Palgrave Macmillan.
Roach Anleu, Sharyn and Kathy Mack (2017) Performing Judicial Authority in the Lower Courts, London: Palgrave.
Roach Anleu, Sharyn, Stina Bergman Blix, Kathy Mack and Åsa Wettergren (2016) ‘Observing Judicial Work and Emotions: Using Two Researchers’, Qualitative Research 16(4): 375-391.
Roach Anleu, Sharyn, Stina Bergman Blix and Kathy Mack (2015) ‘Researching emotion in courts and the judiciary: A tale of two projects’ 7(2) Emotion Review 145-150.
Roach Anleu, Sharyn, Kathy Mack and Jordan Tutton (2014) ‘Judicial humour in the Australian courtroom’ 38(2) Melbourne University Law Review 621-665. Available from: http://www.law.unimelb.edu.au/5D8DB6B0-BB25-11E4-AD480050568D27D4.
Roach Anleu, Sharyn and Kathy Mack (2013) ‘Performing Authority: Communicating Judicial Decisions in Lower Criminal Courts’, Journal of Sociology 1-18.
Mack, Kathy and Sharyn Roach Anleu (2011) ‘Opportunities for New Approaches to Judging in a Conventional Context: Attitudes, Skills and Practices’ 37 (1) Monash University Law Review 187-215. Available from: http://www.austlii.edu.au/au/journals/MonashULawRw/2011/11.html.
Mack, Kathy and Sharyn Roach Anleu (2010) ‘Performing Impartiality’: Judicial Demeanour and Legitimacy ‘ 35(1) Law & Social Inquiry 137-173.
Mack, Kathy and Sharyn Roach Anleu (2007) ‘”Getting through the list”: Judgecraft and legitimacy in the lower courts’ 16 Social and Legal Studies 341-61.
The study involved observing 27 different magistrates conducting a general criminal list in 30 different court sessions in 20 different locations, including all capital cities, five suburban and four regional locations between August 2004 and July 2005. This represents more than six percent of all Australian magistrates. The magistrates observed include men and women magistrates covering a range of ages and experience as magistrates. As a group the magistrates observed closely match the gender, age, and years as a magistrate of the magistracy as a whole, though they are not a randomly selected representative sample of the whole population of Australian magistrates.
Most observations covered an entire day, observing one magistrate in one court from beginning to end. On some occasions one or more magistrates or courts might be observed in the course of a day. The total number of matters observed across all sessions was 1,287. A ‘matter’, for our purposes, was when each defendant’s case was called, whether the defendant actually appeared or not.
Two researchers conducted the actual observations. With few exceptions, these were Kathy Mack and Sharyn Roach Anleu together; one was always an observer. In a busy criminal court where many discrete events occur simultaneously, it is impossible for a single person to observe and record everything. As observation is a very personal function, having at least two observers enhances objectivity and consistency of perception and recording.
To facilitate note taking, we developed two standardised forms:
- The session code sheet — to record information about the context of magistrates’ work, including the physical layout and organisation of the courthouse and the courtroom and recurring practices and participants.
- The matter code sheet — to record observations about each matter on the list including details of each defendant, his/her offences, legal representation, aspects of the magistrates’ interaction with various participants, the information for decisions and the outcome.
It was simply not possible to hear or identify everything that has gone on in court just from observation, and some kinds of information, such as the defendant’s demographic data, is only available from court records. In order to get a more detailed and accurate picture of the criminal list, we arranged for a third researcher to access the court’s records to review the files for the matters we observed.
The use of the standardised recording sheet, the detailed instructions, the opportunity to cross check some of the data with the court files and having two researchers observe the same events and discuss their observations immediately following the day in court all increase the reliability and validity of the research strategy and confidence that the events observed have been accurately captured. In addition, in all but one jurisdiction (where proceedings are not recorded) audio tapes, electronic audio files or transcripts of the court proceedings observed have been supplied.
This phase of the research was also supported by ARC Linkage Project Grant (LP0210306) with the Association of Australian Magistrates and all Chief Magistrates.