Clause 54: Surrender and seizure of articles

157.     This clause requires a court security officer to request the surrender of any article that the officer reasonably believes ought to be surrendered. Specific grounds for surrender and seizure are laid out in subsection (3)(a-c); because possession of the article may jeopardise the maintenance of order in the court building, or may risk the safety of a person in that building or because the article may be evidence of or in relation to an offence. This extends the current powers of court security officers in the magistrates' courts, who may only request the surrender of any article which the officer reasonably believes may jeopardise the maintenance of order in the court house under CJA 1991, section 77(1)(b). A further extension is the power for a court security officer to seize an article where the officer has requested its surrender but the request has been refused.

55: Powers to retain articles surrendered or seized

158.     This clause introduces another new statutory power for court security officers, namely to retain an article surrendered or seized until the person from whom it was taken is leaving the court building. However, where the officer reasonably believes that the article may be evidence or in relation to an offence, he may retain it until the person from whom it was taken is leaving the court building, or, for a limited period of up to 24 hours from the time the article was surrendered or seized, to enable the officer to draw it to the attention of a police constable (subsection (2)(b)).

Clause 56: Regulations about retention of articles

159.     In conjunction with court security officers' powers to retain an article surrendered or seized under clause 55 it is important that any items so retained are suitably recorded and the person from whom the article is taken is provided with adequate information about the terms of retention and notice that when an article becomes unclaimed that it will be disposed of. This clause provides the Lord Chancellor with a power to make regulations which include provision of written information about the powers of retention; the keeping of records; the period of retention; and the disposal of articles after this period. This clause defines an unclaimed article as one that has been retained and which a person is entitled to have returned to him but which he has not requested and which has not been returned.

Clause 57: Assaulting and obstructing court security officers

160.     This clause provides that assaulting a court security officer in the execution of his duty is an offence punishable on summary conviction with a fine not exceeding level 5 on the standard scale or imprisonment for up to six months. It also provides that resisting or wilfully obstructing a court security officer in the execution of his duty is an offence punishable on summary conviction with a fine not exceeding level 3 on the standard scale.

PART 5: INSPECTORS OF COURT ADMINISTRATION

Summary

161.     This part contains provisions for the establishment of a new inspectorate to be known as Her Majesty's Inspectorate of Courts Administration. It will replace and build upon the work of Her Majesty's Magistrates' Courts Service Inspectorate. The new inspectorate will have the power to inspect the system that supports the carrying on of the business of all magistrates' courts, county courts and the Crown Court. The same inspectorate will continue to report on the performance by the Children and Family Court Advisory and Support Service (CAFCASS) and its officers of their functions.

Background

162.     The Auld Review said that HM Magistrates' Courts Service Inspectorate had done much to improve the performance of MCCs in the administration and management of magistrates' courts, but noted that there was, however, no such equivalent body for the Court Service. The Review recommended that "if a unified Criminal Court and single supporting administration were to be established, then an independent Inspectorate should be set up to inspect the new unified organisation. This new Inspectorate should also report to the Lord Chancellor".

COMMENTARY ON CLAUSES: PART 5

Clause 58: Inspectors of court administration etc

163.     This clause establishes a new independent inspectorate for court administration that will collectively be known as Her Majesty's Inspectorate of Court Administration. Inspectors will be appointed by the Lord Chancellor and one of these will be appointed by the Lord Chancellor as Her Majesty's Chief Inspector of Court Administration. The Lord Chancellor will meet the costs, including payments in respect of remuneration and allowances of the Inspectorate. Currently, there are inspection arrangements for the administration of magistrates' courts and CAFCASS, but not in relation to any other courts (JPA 1997, sections 62-63)

Clause 59: Functions of inspectors

164.     This clause defines the functions of the inspectors. Inspectors will have the duty to inspect and report on the system and services which support the Crown Court, county courts and magistrates' courts. They will continue to report on the performance of the Children and Family Court Advisory and Support Service (CAFCASS) functions. Inspectors will also be required to discharge such other functions in connection with those courts and the functions of CAFCASS as may be specified by the Lord Chancellor after consultation with the Chief Inspector. The Lord Chancellor will be able to amend, by order, the list of courts listed in this clause.

Clause 60:Functions of Chief Inspector

165.     This clause defines the functions of the Chief Inspector.

166.     The Chief Inspector will be required to submit an annual report to the Lord Chancellor on the work of the Inspectorate for that year, which must be laid before Parliament. The Lord Chancellor will have the power to give directions as to the information to be given in the report, the form in which it is to be given and the time by which the report is to be made. The Chief Inspector must also report to the Lord Chancellor on any matter in connection with the courts mentioned at clause 59 and the functions of CAFCASS. The Chief Inspector will have discretion to designate an inspector to undertake his duties during any period when he is absent or unable to act.

Clause 61: Rights of entry and inspection

167.     Clause 61 provides that the Inspectors will have a right of entry to any workplace premises occupied by those providing support systems or services to the relevant courts or CAFCASS. They will have the power to inspect and take copies of any relevant records, and access to any relevant computer held records. Inspectors will not however have access to hearings held in private or to private deliberations, and must exercise their rights to enter premises and to inspect and have access to records at reasonable times only.

PART 6: JUDGES

SUMMARY

168.     Part 6 makes provisions about certain judicial titles and includes measures to provide greater flexibility in the deployment of judicial resources.

BACKGROUND

Head and deputy head of civil justice,

169.     The Bill establishes the positions of Head and Deputy Head of Civil Justice as statutory titles.

170.     The creation of the post of Head of Civil Justice was recommended in Lord Woolf's report on 'Access to Justice' (1996). The post of Deputy Head of Civil Justice was created for the holder, Lord Justice May, in recognition of the work he has undertaken, in addition to his judicial duties, in assisting the Master of the Rolls with his additional duties as Head of Civil Justice. The above posts are created in the Bill on the basis that the Lord Chancellor must appoint a Head of Civil Justice, but that the power to appoint a Deputy Head is a permissive one.

Judicial titles

171.     These clauses deal with the modernisation of judicial titles in order to change a presumption of male gender for Court of Appeal judges and also allow for future changes by order of the Lord Chancellor after consultation, for example, to change other presumptions of male gender or to aid court users' understanding of the functions carried out by the post holders.

Judicial deployment

172.     As part of the policy of greater flexibility in judicial deployment, it is proposed that High Court judges (and deputies), Circuit judges (and deputies) and Recorders should have the same powers as magistrates in criminal and family cases. It is not expected that extensive use would be made of the provision, but it would make it possible, for example, for a Circuit judge in the Crown Court to deal with a summary offence without the case having to go back to a magistrates' court. At present, certain summary offences can be included in an indictment concerned with a more serious charge. If the person is convicted on the indictment, the Crown Court may sentence him if he pleads guilty to the summary offence, but if he pleads not guilty the powers of the Crown Court cease. It is intended in such cases that the judge of the Crown Court should be able to deal with the summary offences then and there as a magistrate, following magistrates' courts' procedure.

173.     District Judges (Magistrates' Courts) are to be capable of exercising some powers of a Crown Court judge. Schedule 5 sets out a number of interlocutory proceedings and rulings that it is intend could be performed by District Judges before a case is ready to go before a Crown Court judge.

COMMENTARY ON CLAUSES: PART 6

Offices, titles, styles etc.

Clause 62: Head and Deputy Head of Civil Justice

174.     This clause requires the Lord Chancellor to appoint a Head of Civil Justice, and gives power to appoint a deputy. It has been recognised that there is an ongoing need for a Head of Civil Justice to provide consistency and an overview. Although, it is accepted that the level of work may decrease as the Woolf reforms (the reforms to the civil justice system that from the Access to Justice Report produced by Lord Justice Woolf in 1996) continue to settle down. Therefore, the need for support from a deputy may decline.

175.     It is intended that the Lord Chancellor should have the widest possible choice when appointing the Head of Civil Justice and for that reason those eligible for appointment should be the Master of the Rolls, the Vice-Chancellor and any ordinary judge of the Court of Appeal.

176.     The Head of Civil Justice and the Deputy Head of Civil Justice, where there is one, will be ex officio members of the Civil Procedure Rule Committee (Civil PRC) as provided for in clause 83. No other specific functions, duties or powers to be attached to these posts are to be provided in statute.

177.     If the Master of the Rolls was neither the Head or Deputy Head of Civil Justice, he would still be an ex officio member of the Rule Committee.

Clause 63: Ordinary judges of the Court of Appeal

178.     This clause deals with a specific problem: section 2(3) of the SCA 1981 currently requires an ordinary judge of the Court of Appeal to be styled a "Lord" Justice of Appeal whatever his or her gender. This clause removes this anomaly.

Clause 64: Power to alter judicial titles

179.     Although clause 63 amends one title, Lord Justice of Appeal, clause 64 provides the Lord Chancellor with a power to amend the other titles listed (which encompasses all of the judicial titles in the Supreme Court and county courts) in the future to avoid similar problems arising. Some titles may need modernisation, to make them more easily understandable to court users. The acceptance commanded by titles containing a presumption of male gender might also change. Such orders may only be made after consultation with the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor.

Flexibility in deployment of judicial resources

Clause 65: District Judges (Magistrates' Courts) as Crown Court judges etc.

180.     Unification of the administration of the criminal courts should provide scope for rationalising the work of the magistrates' and Crown Courts, enabling both to do some of the work currently reserved to each. For example, District Judges could deal with and make orders in relation both to allocation and to other interlocutory issues in cases reserved to the Crown Court. This will be further eased by the revised allocation of cases being provided by this sessions' Criminal Justice Bill. Revised allocation of cases ensures that cases are dealt with by the court at the appropriate level with regard to the complexity, value and proportionality of the case.

Schedule 5: Further functions conferred on District Judges (Magistrates' Courts)

181.     Clause 65 has the effect of making District Judges (Magistrates' Courts) judges of the Crown Court. Schedule 5 contains amendments of Acts to confer specific functions on District Judges (Magistrates' Courts).

Clause 66: Judges having powers of District Judges (Magistrates' Courts)

182.     As with clause 65 it will be desirable that a Crown Court judge be able to make orders and to sentence in relation to cases normally reserved to magistrates' courts when disposing of related cases in the Crown Court.

183.     As part of the policy of greater flexibility in judicial deployment, this clause provides that High Court judges, Circuit judges and Recorders should be able to sit as magistrates when exercising their criminal and family jurisdiction. The same is to apply to deputy High Court judges and deputy Circuit judges. It is not expected that extensive use would be made of the provision, but it would be possible for a Circuit judge in the Crown Court to deal with a summary offence without the case having to go back to a magistrates' court. At present, certain summary offences can be included in an indictment. If the person is convicted on the indictment, the Crown Court may sentence him if he pleads guilty to the summary offence, but if he pleads not guilty the powers of the Crown Court cease. It is intended in such cases that the judge of the Crown Court should be able to deal with the summary offences then and there as a magistrate. He would follow magistrates' courts' procedure.

Clause 67: Removal of restriction on Circuit judges sitting on certain appeals

184.     This clause provides for the repeal of section 56A of the SCA 1981 (as inserted by section 52(8) of the Criminal Justice and Public Order Act 1994). Repeal will enable the selected Circuit judges who sit in the Criminal Division of the Court of Appeal to hear or determine any appeal against either a conviction before a judge of the High Court or a sentence passed by a judge of the High Court.

PART 7: PROCEDURE RULES AND PRACTICE DIRECTIONS

SUMMARY

185.     Part 7 of the Bill contains provisions to bring about closer integration between the magistrates' courts, the Crown Court and the Court of Appeal, Criminal Division, each of which is described as a "criminal court" when exercising its criminal jurisdiction. These clauses provide for the establishment of a Criminal Procedure Rule Committee (CrimPRC) and enable the Lord Chief Justice, with the concurrence of the Lord Chancellor, to make directions governing the practice of the criminal courts. Provisions in this section also create the Family Procedure Rule Committee (FPRC), and allow the President of the Family Division to issue practice directions in her own name, with the concurrence of the Lord Chancellor, which are binding on the magistrates' courts and county courts when exercising their family jurisdiction.

BACKGROUND

The criminal courts

186.     The Government recognised in the White Paper, Justice for All, that the benefits Sir Robin Auld identified from a fully unified criminal court could be realised through closer alignment of the criminal courts. This could be achieved without a complete re-ordering of the courts system or the introduction of an "intermediate tier".

187.     The White Paper announced that the Government would legislate to bring the magistrates' courts and the Crown Court closer together and that these courts, when exercising their criminal jurisdiction, would be known as "the criminal courts". This part of the Bill addresses this change.

Practice directions

188.     The Heads of Division (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor) have power under the High Court's inherent jurisdiction to make directions as to practice and procedure. Section 74A of the County Courts Act (CCA 1984) gives the Lord Chancellor overall control over practice directions to be followed in county courts. He, and any person authorised by him, may make directions as to the practice and procedure of county courts. But there is no statutory provision on practice directions for magistrates' courts. This Bill will allow the Lord Chief Justice, with the concurrence of the Lord Chancellor, to make directions as to the practice and procedure of the criminal courts. It will also provide statutory authority for the President of the Family Division, with the concurrence of the Lord Chancellor, to be able to issue practice directions in her own name which are binding on the magistrates' courts and county courts when hearing family proceedings.

Criminal Procedure Rule Committee

189.     The creation of the Criminal Procedure Rule Committee (CrimPRC) will establish one forum for the development of rules, to determine the practices and procedures to be used in all criminal courts in England and Wales. The Committee will be responsible for introducing consistency in procedures. Having consulted beforehand, the Committee will meet to discuss proposals and consider drafted rules.

190.     There are currently two Committees with different purposes and differing powers - the Magistrates' Courts' Rule Committee (under s144 of the MCA 1980) and the Crown Court Rule Committee (under ss84 and 86 of the SCA 1981). They each deal with rules concerning criminal and civil business. Neither Committee has over-arching responsibility for ensuring consistency across the courts. They rarely meet, usually working via correspondence.

191.     The CrimPRC will take on responsibilities currently exercised by the Magistrates' Courts' Rule Committee and the Crown Court Rule Committee, insofar as they relate to rules of criminal practice and procedure.

Family Procedure Rules and Directions

192.     The Auld Review did not address directly the potential implications for the family jurisdiction of any reorganisation of the criminal courts. However, it is inevitable that any alterations to the criminal jurisdiction will impact on the family jurisdiction as the administration, judiciary, court staff and estate are closely inter-related. Relevant proposals were included in the White Paper

193.     These clauses closely mirror the changes that are being proposed in relation to both criminal and civil rules of court. The aim of the clauses is to ensure that there is clarity and consistency of approach, and common standards, across the whole of the family jurisdiction.

Civil Procedure Rule Committee

194.     The Bill will provide for changes to be made to the composition of the Civil Procedure Rule Committee (Civil PRC); and for the Lord Chancellor to alter the rules made by the Committee.

195.     The changes to the composition of the Civil PRC are to reflect the new statutory basis for the posts of Head and Deputy Head of Civil Justice. This will allow greater flexibility in the senior judicial membership of the Committee, and to ensure that the Committee has members with experience of the trial process at each level of the civil justice system.

196.     The Lord Chancellor is to have the power to alter the rules made by the Committee after consultation with the Committee. The power to alter rules is not a new power, but is a power that is being restored. Prior to the creation of the Civil PRC the Supreme Court Rule Committee made rules for the Supreme Court and these required the agreement of the Lord Chancellor. The Lord Chancellor had the power to allow, disallow or alter rules made by the County Courts Rule Committee. This power dates back to at least section 164 of the County Courts Act 1888. Altered rules will be subject to the affirmative resolution procedure in Parliament.

COMMENTARY ON CLAUSES: PART 7

Criminal Procedure Rules and practice directions

Clause 68: Meaning of "criminal court"

197.     This clause gives the collective title of "criminal court" to the criminal division of the Court of Appeal and, when dealing with any criminal cause or matter, the Crown Court and magistrates' courts. The term is used in this part when referring to the new power to make practice directions (clause 69) and to the new Criminal Procedure Rule Committee (Crim PRC) (clause 64).

Clause 69: Criminal Procedure Rules

198.     This clause provides for rules of court to be made by the Crim PRC, to determine the practice and procedure to be followed in all criminal courts in England and Wales. Once established, this Crim PRC will deal with the criminal business matters now dealt with by the Magistrates and Crown Court Rule Committees, but will be able to exercise an over-arching, watching brief to ensure consistency in procedures across the criminal courts and for ensuring that rules are made consistently

199.     The clause confirms that Criminal Procedure Rules may be made for different cases or different areas. This distinction is intended to enable the Crim PRC to make rules in support of new initiatives - that is, to enable "pilot" schemes to be established. Rules may also be made for specified courts or proceedings, for example, Youth Courts. Subsection (4) sets out guiding principles that the Crim PRC must follow when making rules, consistent with those that the FPRC and the Civil PRC must follow.

Clause 70:Criminal Procedure Rule Committee

200.     This clause sets out the proposed membership of the new Crim PRC. The membership includes representatives of all the key groups in the criminal justice system and enables representatives from voluntary groups to be included. Therefore those with a direct interest will be able to participate in the rule-making process.

201.     The Lord Chief Justice will chair the Crim PRC. The Lord Chancellor will have the power to reimburse the travelling expenses of members of the Crim PRC and any person (for example, an expert in a particular field) invited to assist the Crim PRC in its programme of work.

Clause 71: Power to change certain requirements relating to Committee

202.     This clause makes provision for the Lord Chancellor to revise the membership and other arrangements set out in clause 70. The Lord Chancellor must consult with the Lord Chief Justice before making an order to bring about any change. This is intended to give flexibility to adjust the membership.

Clause 72: Process for making Criminal Procedure Rules

203.     This clause sets out the arrangements for the making of the criminal procedure rules. It confirms that the Crim PRC should consult as appropriate and, unless it is inexpedient, meet, before it makes the rules. This is intended to encourage the full discussion of the difficulties with existing procedures and of the potential improvements.

204.     The clause also describes the power for the Lord Chancellor, with the agreement of the Secretary of State, to allow, alter or disallow any rules made by the Crim PRC and sets out the Parliamentary process for the rules. The agreement of the Secretary of State is desirable as he bears responsibility for criminal policy, while the Lord Chancellor is responsible for the administration of the courts.

205.     The clause provides for the Lord Chancellor to consult the Crim PRC, before he alters any rules made by them. This is necessary in order to ensure that there is clear understanding of the reasons for any alteration. Where rules are altered, they will follow the affirmative resolution procedure in Parliament.

Clause 73: Power to amend legislation in connection with the rules

206.     This clause sets out the powers of the Lord Chancellor to make changes to legislation where, as a result of the work of the Crim PRC, anomalies are discovered. It describes the requirement for the Lord Chancellor to act, with the concurrence of the Secretary of State, when making such changes. The agreement of the Secretary of State is desirable for the reasons set out above in the notes on clause 72.

Clause 74: Practice directions as to practice and procedure of the criminal courts

207.     This clause provides that the Lord Chief Justice, with the concurrence of the Lord Chancellor, can issue directions as to the practice and procedure of the criminal courts. This does not prevent the Lord Chief Justice from giving guidance to the criminal courts on law or making judicial decisions without the concurrence of the Lord Chancellor.

Family Procedure Rules and Directions

Clause 75: Family Procedure Rules

208.     This clause establishes the Family Procedure Rule Committee (FPRC). The FPRC will be the sole body with the authority to make rules regulating the practice and procedure for family proceedings in the High Court, county courts and magistrates' courts and it replaces the existing rule making arrangements.

209.     Currently, rules of court for family proceedings in the magistrates' courts are made by the Lord Chancellor after consultation with the Magistrates' Courts Rule Committee under section 144 of the MCA 1980. In relation to family proceedings in the High Court and county courts, rules are presently made by the Lord Chancellor and specified persons, under section 40(1) of the Matrimonial and Family Proceedings Act 1984.

210.     Subsection (3) defines family proceedings for which the FPRC can make rules. The FPRC can make different rules for a specific court or description of courts or for specific types of proceedings or jurisdiction. For example, rules can prescribe certain practices to be followed in the Principal Registry of the Family Division or in all county courts. Likewise, rules can prescribe the practice to be followed in all ancillary relief proceedings or how courts should exercise their Children Act 1989 jurisdiction.

211.     Subsection (5) sets out guiding principles that the FPRC must follow when making rules, consistent with those that the Criminal Procedure Rule Committee and the Civil Procedure Rule Committee must follow.