|Access to Justice Bill [H.L.] - continued||House of Lords|
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Jurisdiction of single judge of High Court168. Clause 44-46: Criminal causes and matters; contempt of court; habeas corpus. These clauses would allow certain applications to be routinely heard by a single judge of the High Court. They do this by removing an obstacle that exists in the current legislation by which the route of appeal for these cases is to the House of Lords, but the Administration of Justice Act 1960 provides that the House of Lords will only hear appeals in these matters from a Divisional Court of the High Court. The clauses amend the 1960 Act, so that the House of Lords can hear appeals from a single High Court judge. It will then be possible to make rules of court to provide for these cases to be heard by a single judge, while enabling the judge to refer particularly complex cases to a Divisional Court.
169. The cases in question are:
Cases stated170. Clause 47: Cases stated in Crown Court for opinion of High Court. The Supreme Court Act 1981 gives the High Court specific powers of disposal over appeals by way of case stated coming from a magistrates' court. However it does not do the same for cases coming from the Crown Court. This clause provides a statutory footing for the powers of the High Court to deal with appeals by way of case stated coming from the Crown Court.
Reporting of proceedings about children
171. Clause 48: Reporting of proceedings about children. This clause prohibits the publication of information identifying a child who is (or has been) the subject of court proceedings under or related to the Children Act 1989, in the High Court or a county court. This will unify the law on reporting of Children Act proceedings at all levels of court, by extending the existing prohibition which applies only to magistrates' courts.
D. MAGISTRATES (Part V - clauses 49-67)
SUMMARY172. This part contains provisions to reform the organisation and management of the magistrates' court service; to unify the stipendiary bench; and to extend and clarify the powers of civilians to execute warrants.
173. The Government's objective is to develop a magistrates' court service which is effectively and efficiently managed, at a local level by local people, within a consistent national framework. The Government announced its plans for developing this new framework in statements to both Houses of Parliament on 29 October 1997 (Hansard: House of Lords col. 1057 - 1067; House of Commons col. 901 - 914). As part of this programme of reform, the Bill includes provisions to:
Organisation and Management of the Magistrates' Courts Service
Altering territorial units
174. 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.
175. 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.
176. 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.
177. 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.
178. 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.
179. 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.
180. 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.
181. 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
182. 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.
183. 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.
184. The Greater London area comprises a significantly greater 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
185. 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.
186. 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).
187. 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
188. 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.
189. 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.
190. 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
191. 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).
192. 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.
193. 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.
194. 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.
195. Clause 49: 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).
196. 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.
197. Clause 50: 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.
198. 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.
199. Part V of Schedule 10 contains transitional provisions governing the making of the first order specifying commission areas and petty sessions areas in England and Wales.
200. Clause 51 & Schedule 7 make consequential amendments relating to commission and petty session areas.
201. Clause 52: 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).
202. 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.
203. 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:
205. Clause 53: 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.
206. Clause 54: 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.
Magistrates' courts committees
208. Clause 55: 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 57) of a separate authority for London.
209. 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.
210. Part V of Schedule 10 provides transitional provisions governing the making of the first order specifying magistrates' courts committee areas in England and Wales.
211. Clause 56: 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.
212. 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.
213. Clause 57: 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).
214. Subsection (1) inserts two new sections after section 30 of the JPA 1997.
216. Part V of Schedule 10 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:
218. 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 10 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.
219. Clause 58: 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. 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.
220. The intention is to underpin the national framework (see paragraph 173) 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.
221. 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
222. Clause 59: 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.
223. Clause 60: 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.
224. 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 60(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 60 is intended to clarify the lines of accountability between the MCC, JCE and other employees of the MCC.
225. Clause 60 amends two other sections of the JPA 1997:
227. Clause 62: Collection, payment, accounting and banking. The clause deals with the collection and payment of, accounting for and banking of monies received by a justices' chief executive.
228. The clause introduces a new section 41A to the JPA, 1997 in order 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.
229. In order to raise the standards of accounting practice and financial management in magistrates' courts, this clause introduces new accounting requirements in respect of all monies passing through magistrates' courts, irrespective of to whom they are payable. Clause 62 therefore 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.
Execution of warrants
230. Clause 63: Civilian enforcement officers. This clause extends and clarifies the range of warrants issued by a magistrates' court which may be executed by civilian enforcement officers (CEOs), employed by MCCs, local authorities or police authorities.
231. The warrants in question will be listed in an order made jointly by the Lord Chancellor and the Home Secretary. It is intended that the list should include warrants of distress, commitment, arrest or detention in connection with the payment of any sum, and also warrants of arrest issued in connection with breaches of a range of non-financial penalties. A list of the warrants that the Government intends CEOs to be able to execute is at Annex B to these Notes.
232. The clause also removes the present restrictions by which CEOs may only execute warrants relating to the enforcement of "any sum adjudged to be paid", and only when acting within their own MCC area.
233. Clause 64: Approved enforcement agencies. This clause allows MCCs to approve and appoint private enforcement agencies to execute certain kinds of warrant (to be defined by order made under clause 63).
234. Some MCCs already use private enforcement agencies or bailiffs to execute distress warrants. However, there is presently some uncertainty about whether a warrant can be 'directed' to such a person within the meaning of section 125(2) of the Magistrates' Courts Act 1980 unless it refers to him by name. Clause 64 is designed to clarify the law, so that warrants can be addressed to approved agencies for the area concerned, rather than just to an individual, named, bailiff. In future, the authorised employees of approved enforcement agencies will be able to execute the same range of warrants as CEOs anywhere in England and Wales.
235. Clause 64 also provides for the Lord Chancellor to make regulations governing the conditions which must be satisfied by a person if he is to qualify as an approved enforcement agency, and the procedure by which a MCC may grant approval. The intention is that each MCC will be required to keep a register of all the enforcement agencies it authorises, and make this available for public inspection at every magistrates' court within the MCC's area. An enforcement agency listed in an MCC's register will be able to issue its employees with written authority to execute warrants issued by any magistrates' court in the area for which the authorising MCC is responsible. If necessary, the MCC will be able to remove an enforcement agency from the register without giving reasons for the decision.
236. Clauses 63 and 64 require a CEO or authorised employee seeking to execute a warrant to have with them, and show on demand, a written statement saying (in essence) who they are and by whom they are authorised.
237. Clause 66: Execution by person not in possession of warrant. This clause will empower civilian enforcement officers (CEOs) and the authorised employees of approved enforcement agencies to execute the full range of warrants to be defined by order under clause 63, without necessarily having to have them in their possession at the time. The clause also clarifies and extends the powers of the police to execute warrants in this way.
238. Under section 125(3) & (4) of the Magistrates' Courts Act 1980, a police constable may execute certain types of warrants, including:
240. Clauses 65 and 67: Warrants of detention; cessation of warrants. These clauses will enable changes to be made to the Magistrates' Courts Rules 1981 to clarify the circumstances in which a warrant for the enforcement of a sum adjudged to be paid shall cease to have effect. The intention is to ensure that a warrant issued for the purpose of levying a sum adjudged to be paid will cease to have effect:
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