|Courts Bill [HL] - continued||House of Commons|
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Part 3 - Supplementary provisions
105. Paragraph 18 provides that regulations will set out the operational procedures and safeguards applicable to a clamping order being imposed. A clamping order will provide opportunities to pay the fine before the vehicle is sold.
106. Paragraph 19 establishes an offence, punishable by a fine, for removal of, or an attempt to remove an immobilisation notice or immobilisation device, that has been fitted to a vehicle as a further sanction against the non-payment of fines. This is to discourage the obstruction of enforcement sanctions.
107. Paragraph 20 permits a fines officer to request information about an offender's means at any time. This will enable him to make a decision on the approach to take in enforcing the fine. It establishes an offence, punishable by a fine, for giving false information to a fines officer or for failing to disclose relevant information, similar to an existing offence for providing false information to a court. It specifies the time period within which such proceedings may be taken.
108. Paragraphs 21, 22 and 23 provide definitions for the purpose of Schedule 3.
109. Paragraph 24 enables regulations to make provision for cases which are transferred from one area to another where the offender moves to a different address. This will detail a procedure for the information contained on a defaulter to be passed to another fines officer in a different area.
110. Paragraph 25 enables regulations to modify any statute for the purpose of giving effect to Schedule 3 and Clause 36. The collection scheme is to be piloted and therefore enactments for the implementation of the scheme cannot be permanently modified until the completion of the pilots. The provision of these regulations is required so the court and the fines officer are given the powers to enable the scheme to be tested fully. For example, the Attachment of Earnings Act 1971 will need to be modified so that attachment of earnings orders may be made by fines officers. Once the pilots are finished all amendments to primary legislation in theses regulations will be laid before parliament in accordance with clause 36.
Clause 37: Designated officers and magistrates' courts
111. Clause 37 allows the Lord Chancellor to designate members of staff of the courts agency in order to perform certain statutory functions in relation to the business of the magistrates' courts. Many of these functions are currently assigned to JCEs and are administrative in nature. Schedule 7 makes appropriate consequential amendments to other Acts of Parliament.
Application of receipts of magistrates' courts etc.
Clause 38: Application of receipts of designated officers
Clause 39: Limits to requirements about application of receipts
Clause40: Regulations about payments, accounting and banking by designated officers
112. Clauses 38 and 39 make similar provision as section 60 of the JPA 1997, amended to reflect that the post of JCE will cease to exist. The clauses instead make reference to sums received by a designated officer. Clause 40 contains provisions similar to section 60A of the JPA and will allow the Lord Chancellor, with the concurrence of the Treasury, to make regulations about the payment, accounting for and banking of money paid to designated officers in the magistrates' courts.
Clause 41: Disqualification of justices who are members of local authorities
113. This clause makes similar provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority.
Clause 42: Effect of Act of Settlement on existing justices of the peace
114. This clause retrospectively validates the appointments of a number of foreign magistrates appointed before 31 January 2002 in unwitting breach of the nationality requirements of the Act of Settlement 1700, and allows them to resume their role as magistrates.
115. The Act of Settlement 1700 imposed restrictions as to who may be employed in the service of the Crown. Section 3 of this Act applies to magistrates, meaning that any non-UK, Eire or Commonwealth nationals sitting as magistrates were doing so in violation of this Act. This provision does not apply for subsequent appointments or future ones. Their actions as magistrates prior to this legislation are not invalidated.
PART 3: MAGISTRATES' COURTS
116. This Part makes a number of changes to the jurisdiction and procedures of magistrates' courts, designed to increase flexibility and efficiency in the disposal of the business of the courts.
Criminal jurisdiction and procedure
117. Sections 1 and 2 of the MCA 1980 are the basic jurisdictional provisions for criminal cases. The two essential points are that justices have jurisdiction to issue summonses and warrants in respect of offences committed in their commission area and offences committed by people who live in their commission area (section 1), and that they have jurisdiction to try offences committed in their commission area (section 2). These provisions are altered to reflect the fact that under the Bill lay magistrates will have national jurisdiction. The result of this will be that any justice will have jurisdiction to issue a summons or warrant, and any magistrates' court will have jurisdiction to try offences, regardless of where the offence was committed.
Transfer of criminal proceedings
118. Section 3B of the MCA 1980 (inserted by the AJA 1999) enables either the prosecution or the defence to apply to have a summary case transferred to a magistrates' court in another commission area (although this has not yet been brought into operation). This Bill goes further and allows the court, either on the application of one of the parties or at its own volition, to transfer a criminal case at any stage in the proceedings.
Civil jurisdiction and procedure
119. Section 52 of the MCA 1980 limits the jurisdiction of justices to deal with civil complaints to anything done (or neglected to be done) within the commission area for which the justice acts. This Bill amends this provision to reflect lay magistrates being given a national jurisdiction.
Transfer of civil proceedings (other than family proceedings)
120. There are presently no provisions that allow the transfer of civil proceedings from one magistrates' court to another. This Bill introduces such provisions to match the new arrangements for criminal cases. There are already detailed provisions allowing the transfer of family proceedings between magistrates' courts and also to the county courts and the High Court. This Bill makes no changes to these provisions.
Rulings at pre-trial hearings
121. These provisions allow for binding rulings at to be made at pre-trial hearings in criminal cases that are to be heard in the magistrates' courts. The power will be available following a not guilty plea up to the commencement of the trial and extends to issues of law and admissibility of evidence.
122. Currently, a number of different pre-trial hearings may take place in the Crown Court and magistrates' courts. In the Crown Court the Criminal Procedure and Investigations Act 1996 (CPIA 1996), ss.39-43, provide for binding rulings on matters of law and admissibility of evidence.
123. The magistrates' courts have a number of their own pre-trial hearings under the current "Narey" arrangements. Where a guilty plea is anticipated, an 'Early First Hearing' (EFH) is scheduled. 'Early Administrative Hearings' (EAH) handle non-guilty pleas. In cases where the defendant is charged with an offence triable either way, magistrates hearing the case under 'initial procedure' will take a plea before determining venue. Following a not-guilty indication, magistrates may then determine mode of trial (s.17A MCA 1980). Where a case is to be tried summarily, a date for a pre-trial review is set, wherever it is deemed necessary. Pre-trial reviews are intended to assist the court in assessing the parties' readiness for trial. However, practices do differ across the country. Magistrates sitting at pre-trial hearings may make directions or recommendations as to appropriate preparation or conduct of the case. Such a direction may be noted on the court log, but would not bind any future magistrates hearing the case, although the next bench might take the direction into account in making any decision.
124. The proposed power is intended to assist in ensuring more efficient preparation of cases for trial in the magistrates' courts, as highlighted and discussed in the Auld Review. It will bring the powers of magistrates and judges in pre-trial hearings heard in the magistrates' courts into line with those of the Crown Court. This is desirable given the move towards integration of the criminal courts.
Family proceedings courts and youth courts
125. Family proceedings and criminal cases with youth defendants are specialist jurisdictions, for which a magistrate must have a particular authorisation. The current authorisation system depends on local "panels", membership of which is based on commission areas, and which are elected in most areas of the country. The Bill provides for a personal authorisation system to replace panel membership, and a rule-making power allowing the Lord Chancellor to propose consistent national rules as to how authorisation will work. This is consistent with the abolition of commission areas, and the extension of a national jurisdiction to magistrates.
COMMENTARY ON CLAUSES: PART 3
Criminal jurisdiction and procedure
Clause 43: Summons or warrant for suspected offender
Clause 44: Trial of summary offences
126. Clauses 43 and 44 change the basic jurisdictional provisions on issuing process and dealing with charges, set out in sections 1 and 2 of the MCA 1980. Clause 43 will allow any justice to issue a summons requiring a person to appear before a magistrates' court or a warrant to arrest a person and bring him before a magistrates' court. In the case of a summons, the summons will state which "court" the person is to appear before. The prosecutor will decide the court in accordance with the directions given by the Lord Chancellor with the concurrence of the Lord Chief Justice, issued under clause 30. In the case of a warrant, the person may be brought to whichever court the person arresting the accused considers convenient. Under clause 44 a magistrates' court will have jurisdiction to try any summary offence.
127. In addition to giving lay magistrates national jurisdiction in respect of the great majority of criminal cases, the policy of flexibility in the deployment of magistrates is to be implemented by removing many of the statutory provisions limiting their jurisdiction to the particular petty sessions area with which the case has a connection. Nevertheless, the Lord Chancellor's directions will frequently retain the possibility of that local link. There will also be situations, notably in cases which have already begun, in which the local link will continue to be a requirement.
Clause 45: Power to make rulings at pre-trial hearings
Schedule 4: Pre-trial hearings in magistrates' courts
128. This clause provides the power for judges and magistrates to make binding rulings and directions at pre-trial hearings in criminal cases that are to be tried in the magistrates' courts, where it is in the interests of justice to do so. It will only be possible to make binding rulings in the magistrates' courts, once a not-guilty plea has been entered. This means that the primary disclosure provisions set out in Part I of the Criminal Procedure and Investigations Act 1996 will apply.
129. Schedule 4 inserts a new section 8A, "Power to make rulings at pre-trial hearing" and section 8B, "Effect of rulings at pre-trial hearing" into the Magistrates' Courts Act 1980. The new sections largely follow sections 40 and 41 of Part IV of the Criminal Procedure and Investigations Act 1996, which sets out the Crown Court's power to make binding rulings in pre-trial hearings.
130. Before making a binding ruling, a magistrates' court must give the parties an opportunity to be heard and, when the accused is unrepresented but wishes to be represented, must consider whether to grant legal representation at public expense. A pre-trial ruling made by a magistrates' court will remain binding until the case is disposed of or is sent to the Crown Court.
131. There is no specific right of appeal against a pre-trial ruling. An accused may appeal to the Crown Court against a ruling (if convicted) once the case is concluded, in the normal manner. The magistrates' court may also discharge or vary a pre-trial ruling on application by a party to the case (where there has been a material change of circumstances) or, where it is in the interests of justice, of its own motion.
132. Provision is made for restrictions on reporting of pre-trial hearings in order to avoid prejudicing the right of the accused to a fair trial, should the case (or linked proceedings) ultimately be tried in the Crown Court. The publishing of anything other than basic factual matters is prohibited in England and Wales, unless the court orders that reporting restrictions should not apply, until such time as the case against the accused(s) is disposed of. The definition of publication includes electronic methods of communication and, where an offence is committed by a body corporate, liability to prosecution for contravention of reporting restrictions may also extend to the company's officers.
Clause 46: Power to transfer criminal cases
133. Clause 46 gives magistrates' courts the power to transfer criminal cases to other magistrates' courts at any stage in the proceedings, whether on the application of a party or of their own motion. The parties would have a right to be heard in the latter case. There is to be no appeal from a decision on transfer. In deciding whether to transfer a case, the court or justices' clerk will be required to take account of the directions made by the Lord Chancellor under clause 30.
Civil jurisdiction and procedure
Clause 47: Jurisdiction to issue summons and deal with complaints
134. Clause 47 amends sections 51 and 52 of the MCA 1980. This changes the criminal jurisdiction of magistrates' courts so that a complaint can be made to any justice of the peace. As with criminal proceedings, the justice may issue a summons directed to the person named therein to appear before a magistrates' court named in the summons.
Clause 48: Power to transfer civil proceedings (other than family proceedings)
135. Clause 48 inserts new section 57A into the MCA 1980. This will give magistrates' courts the power to transfer civil cases to other magistrates' courts at any stage of proceedings. This mirrors the power in clause 46 for criminal cases. A similar provision is not considered necessary for family proceedings as the power to transfer such cases already exists, for example under the Children (Allocation of Proceedings) Order 1991 and the Family Proceedings Courts (Children Act 1989) Rules 1991.
Family proceedings courts and youth courts
Clause 49: Family proceedings courts
136. This clause sets out the framework whereby lay magistrates and District Judges (Magistrates' Courts) are to be authorised to hear family proceedings. Clause 66 also gives the higher judiciary the ability to exercise the justices' jurisdiction, although there is no current expectation that there will be widespread use of these powers in family proceedings.
137. Currently, in areas apart from Greater London, lay magistrates are voted on to a specialist "panel" by other members of the bench.
138. Under this clause, the "panel" system would be abolished. The Lord Chancellor will have to authorise a justice of the peace before he or she can sit as a member of a family proceedings court. These personal authorisations will be valid throughout England and Wales. The Lord Chancellor will have power to make rules regarding (a) the allocation and removal of authorisations for justices to sit as members of family proceedings courts (b) the appointment of chairmen of family proceedings court and (c) the composition of such family proceedings courts.
139. It is envisaged that new rules, which provide for a more transparent selection procedure, will be published for comment. Because of the sensitive nature of family cases, and the specific knowledge and understanding that is required, these rules would help to ensure that only trained and suitable magistrates sit in family proceedings.
Clause 50: Youth courts
140. This clause sets out the framework whereby lay magistrates and District Judges (Magistrates' Court) are to be authorised to hear youth cases. The Bill also enables the higher judiciary to hear these cases, without particular authorisation, in consequence of the extension of their jurisdiction to include that of a District Judge (Magistrates' Courts) by clause 66. It also makes provision for circuit judges and recorders to hear these cases without particular authorisation, in consequence of the proposed extension of their jurisdiction to include that of a District Judge (Magistrates' Courts).
141. Currently, in areas other than Greater London, lay magistrates are voted on to a specialist "panel" by other members of the bench.
142. Under this clause, the "panel" system would be abolished. The Lord Chancellor will have to authorise a lay justice or District Judge (Magistrates' Courts) before he or she can sit as a member of a youth court. These personal authorisations will be valid throughout England and Wales. The Lord Chancellor will have power to make rules regarding (a) the allocation and removal of authorisations for justices and District Judges (Magistrates' Courts) to sit as members of youth courts (b) the appointment of chairmen of youth courts and (c) the composition of such youth courts.
143. It is envisaged that new rules, which provide for a more transparent selection procedure, will be published for comment. Because of the often sensitive nature of youth cases, and the specific knowledge and understanding that is required, these rules would help to ensure that only trained and suitable magistrates (or District Judges (Magistrates' Courts)) sit on youth courts.
144. District Judges (Magistrates' Courts) are in practice required to be "ticketed" for this work; that requirement is being made explicit in statute to reflect the increasing acceptance that the youth court is a specialist jurisdiction
PART 4: COURT SECURITY
145. Part 4 of the Bill contains the legislative proposals deemed necessary to improve the provision of security in court buildings. It contains provisions to ensure that designated "court security officers" will have the same powers in all courts. It specifies certain powers of search, exclusion, removal and restraint that security personnel will be able to exercise in the execution of their duty. These powers are to be exercised subject to the limitations prescribed in Part 4. Court security officers will also have a power to temporarily retain articles they reasonably believe ought to be surrendered because possession of the article may jeopardise the maintenance of order in the court building, or risk the safety of a person in that building or because the article may be evidence of or in relation to an offence. This power is underscored by a power to seize an article where a person refuses the officer's request for surrender of the article. This is based upon, but goes slightly further than, the current powers of court security officers in the magistrates' courts who may only request the surrender of an article in limited circumstances and cannot seize articles. To minimise the interference with a persons' property there are limits on how long an article may be retained and there will be provision to ensure that a person from whom an article is taken is adequately informed, in particular, that if the article is to be treated as unclaimed then it will be disposed of.
146. The Bill proposes a new court security regime for any place where court business may be conducted by the Supreme Court, county courts and magistrates' courts and to which the public have access. The impetus for this part of the Bill arises primarily from the Auld Review, which noted the gradual withdrawal of a police presence in the courts and the disparity of security provision and security powers between the magistrates' courts and the Crown Court. Against the backdrop of intimidation of witnesses and violence or threat of violence against the judiciary and court staff, the Review found that "the overall picture is disturbing".
147. Currently court security is provided in the magistrates' courts, the Crown Court, and some county courts, the High Court, Court of Appeal and amongst some tribunals, although the administration of court security is regulated differently..
148. Only in the magistrates' courts is there statutory provision for court security where there is a mix of in house officers employed by the MCCs, and contract officers who are procured through service contracts with private agencies. The Criminal Justice Act 1991, Part IV (CJA 1991) sets out the statutory provision dealing with court security in the magistrates' courts in relation to the provision of these officers, their functions and powers (sections 76 - 78).
149. There are currently no legislative provisions for security in the remaining courts. One of the key policy intentions behind the legislation is to ensure that guards employed in all courts enjoy the same powers and responsibilities.
150. In developing the proposals into the clauses contained in Part 4, the Department has noted the various debates in Parliament on the Police Reform Act 2002. Particular comments and concerns were raised about empowering civilian forces with 'police' powers of fine and detention and the provisions of existing legislation and common law (particularly regarding the power of arrest). The final proposals are designed to provide clear, additional powers to combat the level of disorder faced in court buildings, and thereby help increase public safety while on court premises and public confidence in the justice system. No new or statutory powers of arrest are conferred on court security officers.
151. Court security officers will, like all citizens, have power to make an arrest under section 24 of the Police and Criminal Evidence Act 1984 and the common law. Section 24 provides that "any person" may arrest without a warrant anyone who is committing or who he has reasonable grounds to suspect is committing an arrestable offence. Criminal Law Act 1967, section 3 confers a power on a person to use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders.
COMMENTARY ON CLAUSES: PART 4
Clause 51: Court security officers
152. This clause establishes that every court security officer must be so designated by the Lord Chancellor. It is envisaged that there will be a period of training. Subsection (2) enables the Lord Chancellor to make provision for training by regulations and to specify the conditions which must be met before a person can be designated as a court security officer by him. It makes it clear that court security officers must be identifiable as such.
Clause 52: Powers of search
153. This clause gives a court security officer power to search a person on entry into, or who is already in a court building and also any article in such a person's possession. This power is similar to the existing powers enjoyed by court security officers in the magistrates' courts under section 77 of the CJA 1991 and court security officers under section 80(1)(c) of the Justice (Northern Ireland) Act 2002 (J (NI) A 2002), although the power goes further (see para 152)
154. Court security officers may require only removal of a coat, jacket, headgear, gloves or footwear. This is slightly wider than the articles that can be requested to be removed under section 77(2) of the CJA 1991 or section 80(2) of the J(NI) A 2002 which authorise removal of coat, jacket, gloves or hat and has been so worded to take account of comments made during debate in the House of Lords. A search may only take place in a "court building". This will include places such as Probate sub registries and offices where members of the public are interviewed in connection with probate matters.
Clause 53: Powers to exclude, remove or restrain persons
155. This clause gives court security officers powers to restrain persons or exclude, or remove them from a court building. Officers may exclude or remove where a person has refused to submit to a search, or has refused the officer's request for surrender of an article where the officer reasonably believes that the article ought to be surrendered on the grounds that it may jeopardise the maintenance of order in the court building, may risk the safety of a person in that building, or because the article may be evidence of or in relation to an offence. They also have the power to restrain, exclude or remove a person if it is reasonably necessary to do so to maintain order, secure persons' safety in the court building and to enable court business to be conducted without disruption. Subsection (4) provides that a court security officer may also remove any person from a courtroom at the request of a judge or a justice of the peace.
156. Subsection (5) provides that the powers to exclude, remove and restrain persons include the power to use reasonable force.
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