BACKGROUND

Organisation and Management of the Magistrates' Courts Service

Altering territorial units

186. The new powers to change organisational units reflect the Government's intention to develop a more coherent geographical structure for the criminal justice system as a whole. Common boundaries should enable the various criminal justice agencies to co-operate more effectively.

187. The administration of the magistrates courts service is based on three organisational units - the magistrates' courts committee (MCC) area, the commission area and the petty sessions area.

188. The MCC area is the unit on which the administration and organisation of the courts is based. MCCs are the bodies responsible for the administration of the magistrates' courts service. There are currently 96 MCCs in England and Wales. Each MCC appoints a justices' chief executive to manage the courts in its area.

189. The Justices of the Peace Act 1997 already provides power to change the boundaries of MCC areas. The Government believes that a structure with fewer and larger areas would be more efficient and effective. The number of MCCs has been reduced in recent years by a series of amalgamations; this trend is likely to continue in future, as part of the policy of a greater alignment of boundaries between criminal justice agencies.

190. The commission area is the unit on which the appointment of magistrates and the jurisdiction of the magistrates' courts to hear summary cases is based. Magistrates are appointed to a particular commission area, on the basis of where they reside; and most summary offences must be tried in the commission area where the alleged offence took place.

191. Historically, MCC and commission areas have aligned with one another and with county and metropolitan county borders. However, most commission areas are defined in primary legislation, and can be changed by secondary legislation only to reflect changes in local government boundaries. Increasingly there are MCCs which cover two or more commission areas. These MCCs cannot transfer magistrates or cases between areas. The ability to change commission area boundaries is intended to enable MCCs to allocate cases, and deploy magistrates, between the courts in their MCC area more effectively and efficiently.

192. Most MCC areas are broken down into smaller areas, called petty sessions areas. These are the benches, the basic unit of local court organisation. Petty sessions areas are defined in terms of local authority boundaries. This can limit an MCC's ability to organise its structure effectively, particularly where amalgamation has occurred. As a result, the full benefits of amalgamation may not be realised.

193. The Bill redefines the basis of these units, to allow MCCs to decide the most appropriate and efficient structure for their area. The Bill also removes the artificial distinction between a petty sessions area and a 'petty sessional division' - a distinction which currently exists solely for the purposes of geographical identification.

Constitution of MCCs

194. Each MCC comprises up to 12 members and is composed primarily of lay magistrates, appointed by their peers, who undertake the task in addition to their magisterial duties. Individuals are appointed to the MCC on the basis of their skills and experience. Where an MCC believes that additional skills are required which cannot be found amongst the applicants for membership of the MCC, they may co-opt individuals, who need not be magistrates. Currently the number of co-options is limited to two. These may be in addition to the maximum membership of twelve. In addition, the Lord Chancellor may appoint up to two individuals to an MCC. Neither lay magistrates nor co-opted and appointed non-magistrates receive remuneration for their committee work. The Bill removes the limit on the number of co-opted and appointed members, and provides power for MCCs to remunerate those members.

195. MCCs are the bodies responsible for the administration of the magistrates' courts service. Local authorities are responsible for providing the accommodation needed by an MCC and for paying the expenses it incurs. Local authorities recoup 80% of the net cost from the Lord Chancellor's Department in the form of specific grant. In cases where an MCC area encompasses two or more authorities, the costs and accommodation are divided equitably between the authorities, but a "lead" authority is appointed to receive the grant and pay the expenses.

A single authority for London

196. The Greater London area comprises a significantly larger number of MCCs (22) and local authorities (33) than any other area. The consequences of this, for issues such as funding and accommodation, are such that amalgamation under the provisions of the Justices of the Peace 1997 is not practical. The Bill provides for the establishment of a Greater London Magistrates' Courts Authority, with special provision for its funding, accommodation, constitution and other necessary powers to enable the existing MCCs to be amalgamated effectively

Justices' Clerks and Justices' Chief Executives

197. Most cases in magistrates' courts are heard by magistrates who are not qualified lawyers. They rely heavily on the legal advice of justices' clerks and their deputies, acting as court clerks. All justices' clerks are legally qualified and may have certain powers of a single magistrate delegated to them.

198. The post of justices' chief executive (JCE) was introduced in 1994, and every MCC has appointed a JCE. The JCE supports the MCC in planning and managing the efficient and effective administration of the courts within the area of the MCC. At present, however, justices' clerks continue to be responsible in statute for many administrative matters. In practice many of these tasks are delegated to administrators. The Government recently published a Consultation Paper which considered the functions of justices' clerks (The Future Role of Justices' Clerks, Lord Chancellor's Department, September 1998).

199. The provisions in the Bill relating to the qualifications and functions of justices' chief executives are intended to clarify the role of the JCE and the lines of responsibility and accountability between the JCE, the MCC and the other staff of the MCC; and to achieve a clearer distinction between the roles of JCEs and justices' clerks. The primary function of justices' clerks will continue to be the giving of legal advice to lay magistrates. Under the new management structure, JCE will be able to delegate any administrative function to any staff, including the justices' clerks, depending on local needs.

Unification of the stipendiary bench

200. Stipendiary magistrates are qualified lawyers who are appointed to sit as full-time professional judges in magistrates' courts. They support and complement the work of the lay magistracy, in that they help to maintain consistency with respect to sentencing. Stipendiary magistrates usually sit alone, whereas lay magistrates sit in benches of at least two. There are currently 92 stipendiary magistrates in England and Wales, and some 30,000 lay magistrates.

201. Metropolitan stipendiary magistrates can sit in the London commission areas and the counties of Essex, Hertfordshire, Kent and Surrey. Provincial stipendiary magistrates are appointed to a particular commission area in the rest of England and Wales.

202. In April 1998, the Government published a Consultation Paper about creating a unified stipendiary bench with national jurisdiction (Unification of the Stipendiary Bench: Consultation Paper, Lord Chancellor's Department, April 1998), with the intention of increasing the efficiency of the administration of justice at summary level.

Committals for sentence

203. Currently, cases committed to the Crown Court for sentence must be heard in the Crown Court by a bench composed of a High Court Judge, Circuit Judge or Recorder sitting with between two and four justices of the peace. In October 1997, a new procedure was implemented by which defendants are required to indicate whether they intend to plead guilty or not guilty, before the decision is made about whether the case should be heard in the magistrates' court or the Crown Court (section 17A of the Magistrates' Courts Act 1980, as amended by section 49 of the Criminal Procedure and Investigations Act 1996). This has led to a significant increase in the number of cases committed to the Crown Court solely for sentence, and an increase in the seriousness of the cases being committed for sentence. (Previously, all more serious cases were committed for trial, although many defendants subsequently pleaded guilty).

204. The change in procedure has meant that magistrates are dealing in the Crown Court with cases which are outside their normal range of experience. The Government recently issued a consultation paper (Magistrates sitting as judges in the Crown Court, Lord Chancellor's Department, August 1998) which examined the role of magistrates in the Crown Court. The majority of responses agreed that the requirement for magistrates to sit on committals for sentence should be removed.

Warrant execution

205. Until now, the police have been primarily responsible for arresting fine defaulters and those in breach of community sentences. Increasingly, however, some police forces have given this work a low priority. The Government therefore intends to transfer responsibility for the execution of warrants from the police to the magistrates' courts. The intention is to ensure that fines and community sentences are seen as credible and effective punishments, by ensuring that they can be effectively enforced.

206. A number of MCCs already employ civilian enforcement officers (CEOs), who work with the police under local arrangements. However, under current legislation, the powers of CEOs are unclear in a number of respects. In order to enable the courts to take on this new function effectively, the Bill contains provisions to clarify and extend the powers of appropriate civilians to execute certain kinds of warrant issued by a magistrates' court.

COMMENTARY

Territorial organisation

207. Clause 55: Commission areas. This clause enables the boundaries of all commission areas to be changed by secondary legislation. It empowers the Lord Chancellor of his own volition, or following a proposal from relevant magistrates' courts committees, to combine commission areas or parts of commission areas, or otherwise to adjust commission area boundaries, after consulting the parties concerned. It also establishes the procedural framework for changing commission areas by secondary legislation. The new power replaces Her Majesty's power under section 2(3) of the Justices of the Peace Act 1997 (JPA 1997) to alter, by an Order in Council, the boundaries of commission areas in Greater London (apart from the City of London).

208. This clause is concerned exclusively with changes to commission areas instigated for magistrates' courts purposes, not as a consequence of local government re-organisation. Changes to commission areas occasioned by local government boundary changes will continue to be made under sections 55 and 63 of the Local Government (Wales) Act 1994 and sections 19 and 26 of the Local Government Act 1992 as appropriate.

209. Clause 56: Petty sessions areas. This clause redefines petty sessions areas in terms of commission areas, and removes the distinction between petty sessions areas and petty sessional divisions. It also makes consequential amendments to the procedural framework for changing petty sessions areas by secondary legislation and incorporates a power to amend the names of petty sessions areas within the general order-making power, but does not change the way in which those procedures operate.

210. The primary purpose of this clause is to provide MCCs with greater flexibility to change their petty sessions areas. This flexibility is currently restricted by the use of local government areas as the basis for defining petty sessions areas.

211. Part V of Schedule 11 contains transitional provisions governing the making of the first order specifying commission areas and petty sessions areas in England and Wales.

212. Clause 57 & Schedule 7 make further changes consequential on the changes relating to commission areas and petty sessions areas.

213. Clause 57(1) removes the automatic right of the Lord Mayor and the aldermen of the City of London to be magistrates by virtue of their office. The Lord Mayor and the aldermen currently have special rights carried forward from a charter granted to them in 1741 by King George II. They are the only body of persons in the country who have the right to be magistrates through election as aldermen.

214. In future, the Lord Mayor and the aldermen will only become justices of the peace after passing through the same selection procedure as applies to all other magistrates throughout England and Wales. The amendment also means that they can, if they so wish and are suitably qualified, apply to become stipendiary or acting stipendiary magistrates.

215. Part V of Schedule 11 allows the current Lord Mayor and aldermen to remain justices as if they had been appointed under the existing arrangements.

Justices

216. Clause 58: Unification and renaming of stipendiary bench. This clause establishes a unified bench of professional judges to sit in magistrates' courts. It also creates a new judicial title for stipendiary magistrates, who will in future be called District Judge (Magistrates' Courts). Schedule 8 makes consequential changes to other Acts.

217. The effect of this provision is to create a unified national bench, headed by a single judge, which can be deployed anywhere in the country to deal with fluctuations in workload as and when they occur, or with particularly complex cases that arise. The new District Judges (Magistrates' Courts) will be able to exercise jurisdiction in every commission area of England and Wales. The new title is intended to recognise more fully the status of stipendiaries as members of the professional judiciary.

218. The clause replaces sections 11-20 of the JPA 1997, which contain separate provisions for metropolitan and provincial stipendiary magistrates. The new sections provide for the single bench with a new title. The main differences from the existing provisions are as follows.

• Appointments are to be made without reference to any specific Commission area within England and Wales. A District Judge (Magistrates Courts) has jurisdiction for every commission area (new section 10C(1)).

• A Senior District Judge (Chief Magistrate) will be appointed as a national head of all District Judges (Magistrates Courts) (section 10A(2)). Previously, there was a Chief Metropolitan Stipendiary Magistrate, but no equivalent head of the provincial stipendiary bench.

• The Lord Chancellor will be able to remove one of these judges from office on the grounds of "incapacity or misbehaviour" (section 10A(3)). Previously, the Lord Chancellor could remove a metropolitan stipendiary from office on the grounds of "inability or misbehaviour". Provincial stipendiaries could only be removed from office on the Lord Chancellor's recommendation, but no criteria were specified in statute (section 11(3)(b) of the JPA 1997). The test and procedure for removal have been unified to remove the inconsistency. "Incapacity" has replaced "inability" to reflect a similar change relating to Circuit Judges under the Courts Act 1971. The change of language brings these judicial posts into line.

• The Lord Chancellor may appoint Deputy District Judges (Magistrates' Courts) (new section 10B(1)). Unlike the appointment of acting stipendiary magistrates under the previous provisions, these appointments are not limited to 3 months duration, or solely permitted for the purpose of avoiding delays in the administration of justice.
  • Section 10A (1): the '7 year general qualification' is defined in the Courts and Legal Services Act 1990 as "a right of audience in any class of proceedings in the county courts or magistrates' courts".

  • Section 10D (2): This provision maintains specific exclusions of the rule codified under the Stipendiary Magistrates Act 1858, which allowed a single stipendiary to exercise the jurisdiction of two lay justices. Any express provision to the contrary made after that Act came into force survives by virtue of this section.

  • Section 10D (6): section 65 of the Magistrates' Courts Act 1980 defines family proceedings. A stipendiary magistrate may hear these cases, subject to any rules and statutes specific to family proceedings (eg. the Children Act 1989).

220. Clause 59: Justices not to sit on committals for sentence. This clause enables a case committed to the Crown Court for sentence to be heard by a High Court Judge, Circuit Judge or Recorder sitting alone.

221. Clause 60 & Schedule 9 - Enforcement of community orders made by Crown Court. This clause and schedule change the way in which breaches of Crown Court community sentences are dealt with. Where the sentencing judge has so directed, the breach will return directly to the Crown Court, rather than going first to a magistrates' court as now. The schedule also provides that all applications to revoke a Crown Court community sentence will be made to the Crown Court and not to a magistrates' court.

* A community sentence is a sentence which consists of, or includes one or more community orders. The community orders relevant to this amendment are the first four listed in the second part of Annex B to these Notes.

222. Clause 61: Jurisdiction over offences outside area. This clause enables either the prosecution or the defence to apply to have a summary case transferred to a magistrates' court in another commission area. It gives the Lord Chancellor powers to make regulations setting out the criteria which should be considered by a court in determining an application and to make regulations to determine circumstances in which a court must grant or refuse an application.

* A summary case is one that can only be heard in a magistrates' court.

223. At present, apart from a few exceptions (eg. where several defendants are to be tried together), all summary offences must be tried by a magistrates' court in the commission area where the offence was committed. This clause allows for a case to be transferred to a more convenient or appropriate magistrates' court which is outside the commission area. Reasons for applications to transfer a case might be because of the security or convenience of witnesses, the circumstances of the defendant or the facilities of the court-house.

Magistrates' courts committees

224. Clause 62: Areas outside Greater London. This clause removes the definition of MCCs in terms of local government areas (and moves the procedural framework for changing MCC areas to a different section (27A) of the JPA 1997). MCCs are currently based on local government areas, except where there have been changes in the interests of efficient administration under section 32 of the JPA 1997, in which case they are based on the area defined in the amalgamation order. In future the areas shall be as specified by the Lord Chancellor by order. Greater London is largely excluded from the operation of this clause as a consequence of the establishment (under clause 64) of a separate authority for London.

225. The primary purpose of this clause is to ensure the easy identification of MCCs in England and Wales. It does not amend the procedure for amalgamating MCCs other than as a consequence of changes elsewhere in the Bill.

226. Part V of Schedule 11 provides transitional provisions governing the making of the first order specifying magistrates' courts committee areas in England and Wales.

227. Clause 63: Constitution of committees outside Greater London. This clause replaces the existing provisions about the constitution of MCCs. The new provisions exclude the current limit on the number of additional members who may be co-opted by an MCC or appointed by the Lord Chancellor, and provide power to remunerate co-opted or appointed members. They allow regulations to make different provisions for MCCs in any part of the country. They do not re-enact the automatic right to reserved seats on the Inner London MCC for the Chief Stipendiary Magistrate and two other stipendiary magistrates.

228. The intention is to increase the ability of MCCs to determine their own most appropriate structure and to assist in attracting and retaining co-opted or appointed members.

229. Clause 64: Greater London Magistrates' Courts Authority. This clause creates a single new body to administer all the Greater London magistrates' courts, to replace the existing 22 magistrates' courts committees. This new body will be known as the Greater London Magistrates' Courts Authority (GLMCA).

230. Subsection (1) inserts two new sections after section 30 of the JPA 1997.

• New section 30A will establish the GLMCA as the "MCC" for Greater London. The GLMCA would be a body corporate, as are all the other MCCs throughout England and Wales.

• New section 30B will enable the Lord Chancellor to make provision, by regulations, about:

• the membership of the GLMCA (including provision as to who is to chair it and about the payment of remuneration to its members);

• the procedures of the GLMCA (including quorum and meetings); the committees of the GLMCA (including their membership and procedures); and

• the discharge of the GLMCA's functions by others.

232. Subsection (2) allows the Lord Chancellor to make regulations (under section 40(8) of the JPA 1997) about the appointment of justices' chief executives for the GLMCA, different from those which apply to other MCCs. This is to allow for the differences in the size and functions of the GLMCA, as compared to a traditional MCC, when appointing a JCE.

233. Part V of Schedule 11 provides the transitional arrangements governing the constitution and status of the MCCs in Greater London in the period prior to the establishment of a single authority for London. It also gives the Lord Chancellor power, by order, to implement the transitional arrangements needed to establish the GLMCA in a coherent manner by:

• providing for the transfer of property, rights and liabilities to the GLMCA.

• enabling the GLMCA to incur liabilities prior to the date on which it is formally established. (This power enables the shadow GLMCA to incur expenditure, if necessary, in preparation for taking on its full role).

• abolishing the MCCs in Greater London immediately before the date of establishing the GLMCA.

234. Currently, three seats on the Inner London MCC are reserved for the Chief Metropolitan Stipendiary Magistrate and two stipendiary magistrates. This will no longer be appropriate following the unification of the stipendiary bench and the formation of a single authority for London. These reserved places will therefore be removed when the GLMCA is established. Schedule 11 provides for the interim period. Following unification of the stipendiary bench, places will be reserved for the Senior District Judge (Chief Magistrate) and two District Judges (Magistrates' Courts) designated by him (or, if he decides not to be a member, three designated DJMCs).

235. Section 38 of the JPA 1997 provides the Lord Chancellor with the power, by order, to remove and/or replace an MCC, or members of an MCC, where the Lord Chancellor is of the opinion that there has been a failure to properly discharge their duties. The Chief Metropolitan Stipendiary Magistrate is currently exempt from the operation of the Lord Chancellor's default power as a corollary of his automatic right to membership of the Inner London MCC. With the removal of that automatic right, this exemption will no longer be necessary. However, in the interim before the establishment of the GLMCA the application of the Lord Chancellor's default power would not be appropriate. Schedule 11 therefore provides that the Lord Chancellor's default power shall not apply to the Senior District Judge (Chief Magistrate) in the period prior to the establishment of the GLMCA.

236. Clause 65: Standard goods and services. This clause allows the Lord Chancellor, if he considers that it would be in the interests of the efficiency and effectiveness of the magistrates' courts generally, to make regulations to require all MCCs, or specified MCCs, to obtain specified goods or services, or goods or services of a specified description at or by a specified time. It is not intended to use this provision in relation to petty sessions court-houses and other accommodation, as these are considered to be matters of a local nature.

237. The intention is to underpin the national framework (see paragraph 185 above) which requires magistrates' courts to seek to achieve national standards, and co-operate with other criminal justice agencies to common objectives. This may be promoted by ensuring that MCCs adopt the same systems and services to common national standards with less local variation. Similarly, better value for money may be achieved by procuring services from the same source. Local management will retain the responsibility for the deployment of the goods and services to best effect, and for the management of the providers of such goods and services.

238. Subsections (3) and (4) make consequential amendments. Subsection (3) makes clear that regulations under the new power may override the obligation of the paying authority (usually the local authority) to provide such goods and services as are required by the MCC. Subsection (4) makes clear that such regulations may supersede the power of the MCC to determine what goods and services the paying authority should provide.

Justices' chief executives

239. Clause 66: Qualification for appointment. This clause, by repealing section 40(5) of the JPA 1997, removes the requirement for a justices' chief executive (JCE) to be a qualified barrister or solicitor. The intention is to enable MCCs to attract the best possible applicants, including specialists in various fields of management and administration. The provision does not compel magistrates' courts committees to appoint a person who is not a qualified lawyer.

240. Clause 67: Role. This clause clarifies the role and responsibilities of JCEs in ensuring the effective and efficient administration of the magistrates' courts within the area of their MCC.

241. In future, the JCE, as head of the administration, will be responsible for the effective and efficient administration of the magistrates' courts in the area. He or she will be able to allocate responsibilities and determine procedures. This has previously been the duty of the MCC, described in section 31(2) of the JPA 1997 (omitted by clause 67(2)). The JCE will be responsible for ensuring that any function imposed by statute is effectively carried out. The JCE is required to carry out his or her functions in accordance with any directions given by the MCC. Clause 67 is intended to clarify the lines of accountability between the MCC, JCE and other employees of the MCC.

242. Clause 67 amends two other sections of the JPA 1997:

• section 48(1), which provides that justices' clerks are independent of any person or body when exercising their legal functions; and

• section 61, making the JCE another officer in respect of whose default the Lord Chancellor may make payments. The amended section enables the Lord Chancellor to make payments in cases where money due to a person has not been paid because of the default of a justices' clerk, a justices' chief executive or another member of staff of the MCC.

243. Clause 68: Independence of clerks and staff exercising legal functions. This clause provides confirmation of the independence of justices' clerks in the exercise of their legal and judicial functions. It substitutes a new section 48 of the Justices of Peace Act 1997 to extend and clarify the range of functions in respect of which the justices' clerks should be independent of direction. The new section 48(1) provides that independence from direction is no longer limited to functions in relation to individual cases. In new section 48(2)(a), judicial functions are defined more widely than now to encompass any function which is exercisable by one or more justices of the peace. New section 48(2)(b) describes the giving of legal advice by reference to section 45(4) and (5). The definitions in section 45(4) and (5) are amended to make it clear that the functions and powers referred to concern advice on matters of law, which includes matters of legal procedure and practice.

244. Clause 69: Transfer of clerks' functions to chief executives. This clause facilitates the separation of responsibilities in respect of legal and administrative functions in magistrates' courts. The purpose of this clause is to enable justices' clerks to concentrate on their legal and judicial functions. It gives effect to Schedule 10 which transfers various functions from justices' clerks to justices' chief executives. The Schedule lists provisions relating to the responsibility for administrative functions, including collecting and accounting for monies in magistrates' courts. Clause 69 also enables the Lord Chancellor to transfer by order any other administrative functions of justices' clerks to justices' chief executives.

245. Clause 70: Accounting etc. functions of chief executives. The clause deals with the collection and payment of, accounting for and banking of monies received by a justices' chief executive.

246. The clause introduces a new section 41A to the JPA 1997, so as to transfer the functions of justices' clerks as "collecting officers" to justices' chief executives. In future, justices' chief executives will be accountable for the collection of fines and fees.

247. In order to raise the standards of accounting practice and financial management in magistrates' courts, clause 70 introduces new accounting requirements in respect of all monies passing through magistrates' courts, irrespective of to whom they are payable. It adds a new section (60A) to the JPA 1997, giving the Lord Chancellor power to make regulations in respect of three key areas. The first relates to the times and manner in which JCEs must pay monies, due to the Lord Chancellor or anyone else. The second relates to the keeping, production, inspection and audit of the accounts of JCEs in respect of any money they receive (apart from their salaries and expenses). The third relates to the banking arrangements which may be used by JCEs.