Select Committee on Constitution Third Report

Panel action after a Complaints Investigation Hearing

19.28 The facts not in dispute should be identified.

19.29 The disputed facts should be isolated and the evidence in support of and against them should be carefully weighed. The panel should decide, if possible, which version of the disputed facts they feel is best supported, noting the reasons. The panel should give reasons for its recommendations, but recommendations should not be supported by any fact or supposition which has not been put to the magistrate.

19.30 A copy of the relevant section of the transcript or note of the hearing should be sent to the magistrate inviting any comments and corrections within a specified time. Any others invited to meet the panel should similarly receive copies of the relevant sections of the transcript or note.

19.31 The chairman of the panel should, as soon as possible, provide the Advisory Committee with a copy of the transcript or note of interview, the report of the hearing, which will include the panel's recommendation, and copies of any other relevant documents. A copy of any comments received from the magistrate, together with any other comments on the accuracy of the transcript or note, should be sent to the Advisory Committee as soon as they become available.

19.32 It is important, in formulating recommendations, to be aware that the Lord Chancellor must have full regard to the independence of the judiciary and will in particular not remove a magistrate unless he considers there is no acceptable alternative. In making their recommendation, Advisory Committees should therefore have regard to all of the Lord Chancellor's powers as set out in paragraph 19.5.

Advisory Committee action and reporting to the Lord Chancellor's Department

19.33 Unless there is a meeting of the full Advisory Committee within two or three weeks of a recommendation being made by a complaints investigation panel, the matter should not be allowed to await the next routine meeting and a special meeting of the Advisory Committee may have to be called.

19.34 Where, following a full discussion, the Advisory Committees resolves to recommend to the Lord Chancellor that he should exercise any of his powers described in paragraph 19.5 that recommendation, and the reasons for it, should be recorded in a document which would then be forwarded as soon as practicable to the magistrate concerned. He or she should then be given 14 days (or such longer period as the Chairman of the Committee may determine) to make any representations to the Lord Chancellor. The recommendation, reasons and the magistrate's representations should then be forwarded by the Secretary of the Advisory Committee to the Secretary of Commissions Office.

19.35 The Secretary of the Advisory Committee should notify the magistrate, the Chairman of the Bench concerned and his or her Clerk that the Advisory Committee's recommendation has been forwarded to the office of the Secretary of Commissions.

19.36 In circumstances where it is decided that no action is required above the local level, it is for the Chairman of the Advisory Committee to determine the best course of action. This might be to request the magistrate to refrain from sitting for a period of time, a request for a written undertaking that the conduct under consideration would not be repeated or a meeting with the Chairman of the Advisory Committee or of the Bench, as appropriate, at which it would be made clear to the magistrate the degree of seriousness attached to the conduct and the likely outcome were it to be repeated. Where a complaint about conduct has been raised by the Secretary of Commissions Office, the recommendation for action to be taken locally should be referred to that office for consideration.

Action by the Lord Chancellor's Department

19.37 On receipt of the Advisory Committee's report and recommendation and any representations made by the magistrate, the Secretary of Commissions Office will write to the magistrate with an invitation to make such further representations or observations as he or she wishes. In rare instances the Advisory Committee may be asked for clarification on a contentious issue.

19.38 On receipt of any representations from the magistrate involved, or if it is clear that the magistrate does not wish to make any, the case will be examined by the Deputy Secretary of Commissions to ensure that all the information necessary to make a decision has been obtained.

19.39 A decision will then be made by the Lord Chancellor or on his behalf which will be conveyed, as soon as possible, to the magistrate and to the Secretary of the Advisory Committee.

19.40 The Lord Chancellor attaches considerable weight to the views of his Advisory Committees. He is particularly appreciative of the care, attention and sensitivity which Committees display in the handling of conduct matters and he considers it essential that Committees should, without inhibition, continue to recommend what they consider to be appropriate. There will be occasions, however, when he may not agree with the recommendation because, for example, he may consider that a different course of action is appropriate in the overall interests of the magistracy.

Advisory Committee action after receiving the Lord Chancellor's decision

19.41 The Secretary must inform the Bench Chairman and the Clerk to the Justices of the Lord Chancellor's decision.

Criminal, civil and other proceedings

a) Criminal Convictions

19.42 The Lord Chancellor is concerned about the conviction or formal cautioning of a magistrate for any offence, however minor. He must consider whether it may indicate a disregard for the law, and in general, whether some form of disciplinary action to safeguard the good standing of the magistracy is required. Whilst one minor offence may attract no more than a cautionary letter, repetition may give rise to more serious sanctions, for example, where a magistrate is convicted on more than one occasion for offences for which he is liable as an employer.

b) Serious criminal offences

19.43 The Secretary of Commissions office must be informed immediately a magistrate is charged with a serious offence such as murder, manslaughter, rape or other sexual offence, conspiracy, wounding, fraud or theft, or a road traffic offence involving mandatory disqualification. The magistrate must not sit or perform any magisterial duty from the issue of summons or other initiating procedures until the case has finally been disposed of, including any appeal proceedings. If the magistrate is convicted and has not resigned before the conclusion of the proceedings, including any appeal, the Deputy Secretary of Commissions will write to the magistrate concerned and will then advise the Lord Chancellor to remove the magistrate. The magistrate and the Advisory Committee will be informed of the decision. There may be exceptional cases in which it will be appropriate for a magistrate to be asked whether he or she wishes to put forward any reason why they should not be removed from office.

c) Motoring offence: mandatory disqualification

19.44 A magistrate charged with an offence involving mandatory disqualification must not sit pending the hearing of the case. If convicted and disqualified, he or she is automatically required not to sit until the Lord Chancellor has reached a decision on the case.

19.45 In relation to drink/driving convictions the general policy of the Lord Chancellor is that he will remove from office any magistrate who is convicted of such an offence and who is disqualified from holding or obtaining a licence for twelve months or more, unless the magistrate tenders his or her resignation. In circumstances where a magistrate is not disqualified or is disqualified for less than twelve months, the Advisory Committee should consider the matter and make a recommendation to the Lord Chancellor for his decision.

19.46 On other cases involving mandatory disqualification, there is again the presumption the magistrate will be removed from office if he or she does not resign.

d) Other motoring offences

19.47 Convictions or formal cautions for all motoring offences including those carrying endorsements, such as careless driving and exceeding the speed limit, and including endorsable offences dealt with by fixed penalty, must be reported to the Secretary of Commissions Office. In assessing the seriousness of motoring offences regard should be had, in particular, to the Lord Chancellor's policies on appointment, set out at paragraph 7.42 et seq. They are normally dealt with by letter reminding the magistrate of the need to observe the law at all times. Magistrates who plead not guilty to a motoring offence must not adjudicate pending the outcome of the case. Where there have been previous convictions, including fixed penalty offences carrying endorsement, or a particular offence has serious overtones, the Advisory Committee should consider whether the Lord Chancellor should be invited to take disciplinary action , such as suspension from sitting for a period or removal from office. In such circumstances, the normal enquiry into conduct procedure should be followed.

e) Other minor criminal offences

19.48 Where a magistrate is convicted or cautioned for a minor criminal offence, the Advisory Committee should consider the case on its merits, including any publicity it may have received, and make its recommendations to the Lord Chancellor. It should be noted that a magistrate who is bound over may not adjudicate during the period of the bind over.

f) Civil proceedings

19.49 A magistrate involved in civil proceedings who is alleged to have acted fraudulently, deceitfully or maliciously, will normally be expected not to adjudicate pending the final disposal of the proceedings, including any appeal. The Secretary of Commissions Office must be consulted at the earliest opportunity. If the allegation is established the Advisory Committee should consider it and furnish its recommendations to the Lord Chancellor in accordance with the procedures for general matters of conduct. Where a magistrate is involved in any other civil proceedings the case should be considered on its merit.

g) Disciplinary proceedings

19.50 A magistrate involved in proceedings before a professional disciplinary tribunal or other similar body must not adjudicate pending the final disposal of the proceedings, including any appeal. The Secretary of Commissions Office must be consulted at the earliest opportunity. Again, if the allegation is established, the Advisory Committee should consider it and furnish their recommendations to the Lord Chancellor in accordance with the procedures for general matters of conduct.

h) Financial difficulties

19.51 A magistrate who becomes bankrupt will be removed from office, unless he or she resigns. Where a company of which a magistrate is a director goes into liquidation, the case must be referred to the Secretary of Commissions Office, who will seek more information on the matter from the Insolvency Service. Where a magistrate is otherwise involved in financial difficulties, such as non-payment of debts, which bring into question his or her suitability to sit in judgment on others, the Advisory Committee should follow the procedures for conduct matters and make a recommendation to the Lord Chancellor.

i) Conduct of close relatives of magistrates

19.52 There may be occasions when a magistrate is put in a particularly difficult situation if a member of his or her family becomes involved in court proceedings or unacceptable behaviour of some kind. In such circumstances the magistrate should first seek the advice of the clerk and the bench chairman. Normally it will be agreed that, in the interests of the magistrate and the standing of the bench, the magistrate should not sit from arrest to trial and shortly thereafter. It might also be prudent for the magistrate not to adjudicate on cases involving similar allegations to those brought against the relative.

Such situations need to be handled with both sympathy and understanding. There will, regrettably, be rare occasions where the conduct of a relative may call into question the impartiality of a magistrate and as a consequence it may be necessary to suggest that the magistrate refrains from sitting for a longer period of time, or in extreme cases, that resignation or removal requires to be considered. In such cases the Secretary of Commissions Office should be consulted at the earliest opportunity.

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