House of Commons - Explanatory Note
Courts Bill [HL] - continued          House of Commons

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Lay Justices

Clause 9: Meaning of "lay justice"

44.     The purpose of this clause is to clarify, throughout the Bill, the difference between references to justices of the peace and lay justices.

45.     The title of justice of the peace still applies to lay justices; but technically it may refer equally to a lay justice and to a District Judge (Magistrates' Courts). For clarity throughout this Bill the term "lay justice" has been used in those clauses where a District Judge (Magistrates' Courts) would not be included in the provision.

Clause 10: Appointment of lay justices etc

46.     This clause makes similar provision as section 5(1) of the JPA 1997. However, it lays a new duty on the Lord Chancellor to assign every magistrate to a local justice area (which, it is envisaged, will include purposes relating to local organisation, training, selection for specialist work, pastoral care and discipline). There is no equivalent to this new power of assignment. The existence of the bench is implicit in current statute in the provisions governing elections for bench chairmen and deputy chairmen. Justices could be assigned to more than one area if appropriate, and the Lord Chancellor would be able to transfer justices to other areas.

47.     This clause clarifies that assignment to a local justice area is not to limit jurisdiction to that area. However, the clause also provides that if a justice is to act outside his normal place of sitting he is to do so in accordance with arrangements. It is envisaged that these would be informal in nature. In practice it would be unrealistic that a justice would sit in an unaccustomed area save by prior arrangement between courts and with his agreement.

48.     As magistrates will no longer have a jurisdiction limited to a commission area, there will no longer be the statutory residence qualifications for assignment (section 6 of the JPA 1997). It is envisaged, however, that Advisory Committees (who advise the Lord Chancellor on appointments of magistrates) will continue, under guidance from the Lord Chancellor, to recommend that magistrates be assigned to the local justice area in which they reside unless there is good reason to do otherwise (for example, should an applicant find it easier to sit where he or she works rather than where he or she lives).

49.     A further effect of the repeal of the JPA 1997, and the provision of this clause, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of the appointment of magistrates within the Duchy, to the Lord Chancellor.

50.     The clause also provides that the Lord Chancellor may make rules prescribing training courses that justices would complete before exercising such jurisdictions as may be specified. This provision is designed to clarify the Lord Chancellor's power to prescribe training - this is felt to be advisable in the future context that MCCs will no longer have responsibility for training magistrates. It also brings the other jurisdictions of a magistrate into line with the family and youth jurisdictions, where there is an existing power for the Lord Chancellor to set out requirements for those jurisdictions in rules.

     51.     Subsection (5) sets out that a lay justice is only able to carry out his duties as a lay justice subject to the provisions set out in section 12 (supplemental list).

Clause 11: Resignation and removal of lay justices

Clause 12: The supplemental list

Clause 13: Entry of names in the supplemental list

Clause 14: Removal of names from the supplemental list

52.     These clauses replace sections 7 to 9, and 26, of the JPA 1997, together with that provision in section 5 relating to the removal of justices from office. They provide that a lay justice may resign, set out the grounds on which justices may be removed from office, and re-enact (with some changes) the provision that justices shall be entered onto a Supplemental List on reaching the age of 70, and thereafter cease to exercise office as justices.

53.     Clause 11 provides for the removal of justices from office specifying that they may be removed on the grounds of misbehaviour, incapacity, neglect of duty and persistent failure to meet prescribed competences. (There are currently competences laid down for magistrates, against which they are appraised, and it is envisaged that these competences will be formalised by direction.) At present there is no statutory restriction on the grounds on which they may be removed.

54.     The revised Supplemental List differs slightly from the current position: it has lost its disciplinary function, and is now intended to be simply a recognition of the service given by magistrates. For that reason it is no longer specified that the Lord Chancellor may place justices on the List on the ground of neglect of duty - this is now a ground for removal under Clause 11. The ability, however, for justices to be entered onto the List after long service, even if they have not reached the age of 70, has been retained under clause 13(4).

55.     Additionally, these clauses no longer provide statutory authority for Supplemental List justices to perform certain acts (such as the signing of passport photographs), as the majority of the acts specified no longer require statutory authority to carry out. The clauses also remove the provision that a retired magistrate may still act as a judge in the Crown Court (if authorised) until the age of 72.

56.     Where a justice is sitting on a part-heard case, or still serving as bench chair, on reaching 70, his name need not go on the list until the end of the case or of his term as chair.

57.     A further effect of the repeal of the JPA 1997, and the provision of this clause, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of the retirement and removal of magistrates within the Duchy, to the Lord Chancellor.

Clause 15: Lay Justices' Allowances

58.     This clause makes similar provision as Section 10 of the JPA 1997, which allows the Lord Chancellor to determine and to pay allowances for magistrates, and to make regulations in respect of the administration of this clause.

Clause 16: Records of lay justices

59.     This clause makes similar provision as section 25 of the JPA 1997, that the Lord Chancellor appoint a keeper of the rolls to keep records of local magistrates. The statute has been modified, however, to accord with the changes to geographical administrative boundaries brought about by this Bill.

60.     As this Bill abolishes commission areas, a keeper of the rolls must be appointed for each local justice area rather than each commission area. The Lord Chancellor may (and it is envisaged that he will) appoint the same person to be keeper of the rolls for more than one local justice area.

61.     The requirement that the appointee be a justice has been removed, as there are no longer any offices whose holders are ex-officio justices (traditionally appointees to these posts would have been ex-officio justices by virtue of holding high office).

62.     A further effect of the repeal of the JPA 1997, and the provision of this clause, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of keepers of the rolls within the Duchy, to the Lord Chancellor.

Chairman and deputy chairmen and the bench

Clause 17: Chairman and deputy chairmen: selection

Clause 18: Rights to preside and size of bench

63.     These two clauses make similar provision as contained in Sections 22 and 24 of the JPA 1997.

64.     Clause 17 provides for the magistrates of a local justice area to elect from their number a Chairman and one or more Deputy Chairmen, and confers a rule-making power as to how this will operate.

65.     Clause 18 sets out the circumstances in which a Chairman or Deputy Chairman may have a right to preside in court, or to chair a meeting of justices, and when he may not.

Supplementary provisions about the bench

Clause 19: Training, development and appraisal of lay justices

     66.     The purpose of this clause is to give statutory backing to the role of Bench Training and Development Committees (BTDCs) in the training, appraisal and development of magistrates. The provision has been drafted to potentially address other needs in this area that may arise: it provides that rules made by the Lord Chancellor may make provision about the training, development and appraisal of lay justices, and related matters. However, the main use which is currently envisaged of this rule-making power is to formalise the position of BTDCs.

     67.     Under Clause 20, the Magistrates' Courts Rule Committee, Family Procedure Rule Committee, and Criminal Procedure Rule Committee must be consulted on rules made under this power.

68.     Subsection (3) sets out a new statutory obligation on the Lord Chancellor to provide training and training materials for magistrates, where he requires them to undergo training; magistrates will have a new statutory assurance in this regard.

Clause 20: Rules

69.     Clause 20 provides that the Lord Chancellor must consult with the appropriate rule committees before making the rules relating to magistrates contained in Part 2 (i.e. pursuant to the powers under clauses 10, 17, 18 and 19).

Clause 21: Duty to consult lay justices on matters affecting them etc.

70. This clause requires the Lord Chancellor to take all reasonable and practicable steps to ensure that lay justices are kept informed on matters that affect them in the performance of their duties in a local justice area, and that their views will be taken on such matters.

District Judges (Magistrates' Courts)

Clause 22: Appointment etc.

71.     This clause makes similar provision as sections 10A(1), (3) and (4) of the JPA 1997 (as amended by the AJA 1999). These provide for the appointment by the Lord Chancellor of District Judges (Magistrates' Courts), qualification requirements, payment of allowances, and removal from office. This clause also replaces provisions in section 69 of the JPA 1997, which provides for the swearing-in of District Judges (Magistrates' Courts) - consequential amendments will require them to be sworn in by a Circuit Judge or High Court Judge.

Clause 23: Senior District Judge (Chief Magistrate)

72.     This clause replaces section 10A(2) of the JPA 1997 (as amended by the AJA 1999) which deals with the appointment of a Senior District Judge and a Deputy Senior District Judge.

73.     The clause allows the Lord Chancellor to appoint one of the District Judges (Magistrates' Courts) to be the Senior District Judge, and if the Lord Chancellor decides to do this, he may appoint another District Judge (Magistrates' Courts) to be his or her deputy. The main function of the Senior District Judge is judicial administration.

74.     This clause differs from the current legislation in that the Lord Chancellor will have a discretion, rather than a duty, to appoint a Senior District Judge (Chief Magistrate) and Deputy. This is because the Government has accepted Sir Robin Auld's proposition that, after a unified administration and criminal court have been achieved, the role of the Senior District Judge should be reviewed, both as to its functions and its necessity. However, it is envisaged that in the short term at least the Senior District Judge will continue to play an important role in the management of the District Judges (Magistrates Courts).

Clause 24: Deputy District Judges (Magistrates Courts)

75.     Sub-sections (1), (3), (4), (5) makes similar provision as section 10B of the JPA 1997 (as amended by the AJA 1999). This section provides for the appointment by the Lord Chancellor of Deputy District Judges (Magistrates' Courts), their qualification requirements, payment of allowances, removal from office, and their treatment as though full-time District Judges (Magistrates' Courts). Sub-section (2) replaces provision in Section 69 of the JPA 1997, which provides for the swearing-in of a Deputy District Judge (Magistrates' Courts) - consequential amendments will require them to be sworn in by a Circuit Judge or High Court Judge.

Clause 25: District Judges (Magistrates' Courts) as justices of the peace

76.     This clause makes similar provision as sections 10C(1) and (2) of the JPA 1997. Its purpose is to provide that the jurisdiction of a District Judge (Magistrates' Courts) includes the jurisdiction of a lay magistrate.

Clause 26: District Judges (Magistrates' Courts) able to act alone

77.     This clause makes similar provision as section 10E of the JPA 1997, and makes clear that certain restrictions in the MCA 1980 do not apply to a District Judge (Magistrates' Courts) sitting alone.

Justices' clerks and assistant clerks

Clause 27: Justices' clerks and assistant clerks

78.     Clause 27 provides for the Lord Chancellor to appoint and designate staff of the new courts agency to be justices' clerks and assistants to justices' clerks. A person cannot be designated as a justices' clerk unless he or she meets the requirements of this clause, which replicates section 43 of the JPA 1997. Clause 27 empowers the Lord Chancellor to make regulations setting out the requirements that a person must fulfil if he or she is to be designated as an assistant to a justices' clerk. Clause 27 also allows the Lord Chancellor to enter into contracts for the provision of assistant clerks. The work of assistant clerks provided under such contracts would be limited to advising lay justices and would not extend to exercising the powers of a single justice, for which the assistant would require the specific authority of a justices' clerk. This reflects current practice in the magistrates' courts.

79.     Clause 27 places a duty on the Lord Chancellor to assign justices' clerks to one or more local justice areas. It also empowers the Lord Chancellor to change a clerk's assignment and move him or her to another area. However, before changing a clerk's assignment, the Lord Chancellor must first consult the lay magistrates, via their bench chairman, assigned to the same local justice area as the clerk.

Clause 28: Functions

80.     Clause 28 re-models section 45 of the JPA 1997 on the functions and powers of justices' clerks and assistant clerks. Currently section 144 of the MCA 1980 allows the Lord Chancellor to make rules which, among other things, regulate and prescribe the procedure and practice to be followed by justices' clerks. The Lord Chancellor currently makes rules on the advice of, or after consultation with the Magistrates' Courts Rules Committee, but he will also now consult the Criminal Procedure Rule Committee and the Family Procedure Rule Committee as well before making rules about justices' clerks under this clause.

Clause 29: Independence

81.     Clause 29 makes the same provision as section 48 of the JPA, which provides for the independence of justices' clerks when giving legal advice or performing the functions of a single justice. It provides that when exercising such functions, justices' clerks shall not be subject to the direction of the Lord Chancellor, (rather than JCEs, as under the JPA) or any other person or body, to reflect the fact that justices' clerks will be staff of the new agency. The clause gives the same guarantee of independence to assistant clerks.

Places, dates and times of sittings

Clause 30: Places, dates and times of sittings

82.     Clause 30 empowers the Lord Chancellor to direct where and when magistrates' courts are to sit. This would allow magistrates' courts' business to be conducted at any place in England and Wales. In making such directions he will be under a duty to have regard to the need to make court-houses accessible by persons resident in each local justice area. The places at which magistrates' courts sit and the days and times at which they sit would be determined in accordance with directions made by the Lord Chancellor. This would bring magistrates' courts into line with the Crown Court, High Court, Court of Appeal and county courts. The power to determine when magistrates' courts sit is likely to be used as an emergency measure only.

83.     There is no longer to be a distinction between petty-sessional courthouses (section 150(1) MCA 1980), occasional courthouses (section 147 MCA 1980) and any other courthouses or places, which may be appointed as petty-sessional courthouses. Magistrates are to have full jurisdiction wherever they sit. The restriction on magistrates' courts and licensing justices sitting on licensed premises is to be removed by the Licensing Bill.

84.     This clause also allows the Lord Chancellor, with the concurrence of the Lord Chief Justice, to give directions as to the distribution and transfer of magistrates' courts business, excluding family proceedings. Such directions are necessary in light of the changes to the jurisdiction of lay justices and magistrates' courts and the provision allowing for the transfer of cases between magistrates' courts. Where a person is charged with an offence, the prosecuting authority will decide which court that person should appear before, in line with these directions. The directions may in particular say that the defendant should be taken to a court in a local justice area: where the offence is alleged to have been committed; where the person charged with the offence resides; where any witnesses reside; or where similar cases are dealt with.

Protection and indemnification of justices and justices' clerks

Clause 31: Immunity for acts within jurisdiction

Clause 32: Immunity for certain acts beyond jurisdiction

Clause 33:Striking out proceedings where action prohibited

85.     These clauses make similar provision as sections 51, 52 and 53 of the JPA 1997. Clause 31 provides immunity against action brought against justices of the peace in proceedings arising from the execution of their duty. It also gives immunity to justices' clerks and those appointed to assist a justices' clerk in proceedings which arise from their exercise, in accordance with rules made under clause 28, of a function which could be exercised by a single justice of the peace. Clause 32 excludes proceedings in which bad faith is proved and makes clear that the immunity does not apply where the justice, clerk or assistant himself is the subject of criminal proceedings. Clause 33 provides that proceedings brought in circumstances where a justice or justices' clerk has immunity may be struck out.

Clause 34: Costs in legal proceedings

86.     Clause 34 makes similar provision as section 53A of the JPA 1997, with minor amendments. This clause gives justices of the peace and their clerks statutory immunity against being ordered to pay the costs of legal actions arising out of the conduct of their judicial functions, unless it is proved that they acted in bad faith. The clause empowers the court to order the Lord Chancellor to pay any costs that, but for the provision of the clause, it would have ordered against the justice or clerk. The clause also provides for the Lord Chancellor to make regulations covering how the court is to exercise the power to award costs and how those costs are to be determined.

Clause 35: Indemnity

87.     Clause 35 makes similar provision as section 54 of the JPA 1997 with some amendments. This clause reflects that in future the Lord Chancellor, rather than a magistrates' courts committee, may indemnify justices of the peace, justices' clerks and their assistants against costs orders in any proceedings, not only proceedings taken against them. The clause also removes the right of appeal to a person appointed by the Lord Chancellor against a decision by a MCC to refuse to indemnify a person under this section. This is because in future the Lord Chancellor will decide whether a person should be indemnified. A person unhappy with a decision by the Lord Chancellor to refuse to indemnify them would, however, have recourse to judicial review proceedings.

Fines officers and designated officers

Clause 36: Fines Officers

88.     This clause provides for the Lord Chancellor to designate fines officers, whose role will be to manage the collection and enforcement of fines. It gives effect to Schedule 3, which specifies the new powers available to the court and to fines officers to enforce payment of fines. Clause 36 also provides the Lord Chancellor with powers to introduce the arrangements for the fine collection scheme set out in Schedule 3 as pilot schemes in specified local justice areas. It enables him to introduce a permanent scheme after completion of the pilots. The permanent scheme could be either one of the pilot schemes or a version that has been modified in light of operational experience.

Schedule 3: Collection of fines by fines officers

89.     Schedule 3 makes provision for payment and enforcement of fines, costs and compensation imposed after criminal proceedings. It provides new powers for fines officers to enable enforcement actions to be taken swiftly and without the need for a court hearing, in many instances. It also provides additional powers of enforcement to the court.

Part 1 - Introduction

     90.     Paragraphs 1, 2 and 3 define the types of financial penalties to which the provisions apply, set out the powers of the court to make a collection order and identify who may deal with the order. A collection order may only be made if the sum P is liable to pay consists of or includes a fine, and "fine" does not include pecuniary penalties or compensation (paragraph 1(1)(a)(i) and (3)). If P is not liable to pay a fine, no collection order may be made. But if he is liable to pay a fine, other sums he is liable to pay, such as compensation, may also be collected through the scheme.

Part 2 - The Fines Collection Scheme: Main Components

91.     Paragraph 4 provides a definition for the purpose of schedule 3.

92.     Paragraph 5 sets out the powers of the fines officer to vary payment terms which have been set by a magistrates' court. Providing the fines officer with the power to vary payment terms will free up court time from administrative decisions.

93.     Paragraph 6 provides for a discount on a fine if the fine is paid within the terms specified in the collection order and there has been no default. It provides power for the Lord Chancellor to make regulations setting out the amount of the discount, this is so the percentage can be changed without requiring further primary legislation. The maximum discount allowed is 50%. The purpose of a discount is to provide an incentive for offenders to pay their fines promptly.

94.     Paragraph 7 enables an offender to apply to a fines officer for a variation in payment terms before default. This provides offenders with an opportunity to have their payment terms revised, thus retaining the chance of a discount on their fine. Allowing only the initial terms of the order to be changed limits fines officers to making a single variation of payment terms. Requests for subsequent variations must be determined by the court, to enable those without the means to pay to be filtered out of the system and to prevent offenders from making repeated applications unnecessarily.

95.     Paragraph 8 provides the right of appeal to a magistrates' court against the decision of the fines officer and set out the powers of the court to confirm or vary the order. The right of appeal is for the person if he feels that the fines officers' decision is unfair and he can have that decision reviewed by an independent tribunal. The reason why there is a right of appeal is because the fines officer is a civil servant taking what could be construed as judicial decisions and there should be an appeal to an independent tribunal where the person thinks that decision has been made unfairly against him.

96.     Paragraph 9 provides that a fine will be increased on the first occasion when an offender defaults on a payment. The purpose of an increase is to provide a disincentive for offenders to fail to pay their fines promptly and to encourage them to keep in contact with the fines officer, and to penalise those trying to avoid payment. It provides power, in conjunction with that in paragraph 2(5)(b), for the Lord Chancellor to make regulations setting out the amount of the increase, this enables the increase to be altered when necessary without primary legislation. The maximum increase allowed is 50%.

97.     Paragraph 10 requires a fines officer to notify the offender of the increase and requires the person to contact the fines officer. The purpose of notifying the offender is to inform him of the increase and to encourage him to re-establish contact with the fines officer which may, as long as payments are re-started, lead to the increase being disapplied.

98.     Paragraph 11 sets out the powers available to the fines officer when an offender has defaulted on payment, the fine has been increased and the offender has contacted the fines officer. It enables the fines officer to set more lenient payment terms and provides a right of appeal to the court against the decision of the fines officer. If the offender contacts the fines officer, agrees and adheres to new payment terms and pays the fine in full without any further default, he is not then required to pay the increase. The flexibility to disapply the increase provides an incentive for the offender to pay the fine, even if they have encountered some difficulties in making payment at the outset.

99.     Paragraph 12 sets out the powers available to the fines officer when an offender has defaulted on payment and the fine has been increased but the offender has not contacted the fines officer within the specified period. The same powers apply if contact has been made and the payment terms varied, and there is no outstanding appeal but there is a subsequent default. It provides that the fines officer can refer the case to the magistrates court or notify the offender that they would apply a range of further sanctions, with the intention of eliciting payment. This paragraph also sets out the manner in which the offender must be notified of any decision of a fines officer and the offender's right of appeal. The intention of issuing a notice to an offender would be to inform him of which measure is about to be applied against him. It gives him a chance to pay up to avoid the measure being applied or to appeal the fairness of the imposition of that particular measure.

100.     Paragraph 13 sets out the sanctions that could be applied under paragraph 12.

101.     Paragraph 14 sets out the powers of a magistrates' court after a fine has been increased following default. This provides the court with powers equivalent to, or greater than the fines officer. It enables the court to disapply the increase if it considers there were exceptional circumstances (e.g. hospitalisation) which led to the default and there is no further default. The additional sanctions available to the magistrates should act as an incentive for payment of the fine.

102.     Paragraph 15 provides that if the offender has not exercised his right of appeal, the further sanctions set out in the notification letter under paragraph 13 may be applied. The intention is that application of the sanctions would prompt the offender to pay the fine.

103.     Paragraph 16 provides the power to the court to order a vehicle that has been clamped and held in accordance with a clamping order to be sold. This gives the court the power to decide whether the sale of the car is proportionate, to the amount of the fine outstanding, taking into consideration the history of the case.

104.     Paragraph 17 provides that a fines officer may refer a case to the magistrates' court at any time before the fine is paid in full. It enables the court to deal with cases where there may be exceptional or mitigating circumstances which the fines officer does not have powers to deal with appropriately. For example, where an offender has no means with which to pay the fine, or where an offender is not co-operating with the fines officer. The fines officer may also issue a summons requiring the offender to attend court.

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Prepared: 21 May 2003