Monday 20 June 2011

Explaining our Law and Legal System ... No.5 ... Magistrates

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries

The background:  In the region of 30,000 people hold the office of "Justice of the Peace" (JP) and deliver summary justice in the Magistrates' Courts of England and Wales.   In this task they are advised on the law and procedure by legally-qualified "legal advisers."  JPs, along with jurors, exemplify the extensive involvement of "non-lawyers" (or "lay" persons) in our legal system - (perhaps a long-established example of the "Big Society").  Their work is done voluntarily, for no reward and with little recognition.  The Magistrates Association supports and represents them though membership of the association is voluntary.

The origins of the office of JP extend back to medieval times when the Monarch had need of trusty people capable of dealing with offenders.  At that time, such persons were naturally those with wealth (i.e. usually large landowners) and local power.  It is the  Justices of the Peace Act 1361 from which the present day powers of the JP can be traced.  Over the centuries, the JP has been a very useful resource when Parliament has required some task or other to be performed.   For instance, the administration of the licensing laws was a major function of the justices for centuries until the Licensing Act 2003 transferred it to local authorities though a right of appeal to the Magistrates' Court remains.  The magistracy has proved to be extremely adaptable and the composition of a modern bench is a far cry from what it was even some 30-40 years ago.  Today it will be made up of people from many backgrounds, walks of life and income levels.

In the late 1940s a Royal Commission on Justices of the Peace - (under the Chairmanship of Lord Du Parcq) - sat and recommended the continuation of the system of lay justices.  A minority of Commission members - (notably Lord Merthyr) - dissented and considered that there should be a gradual replacement of lay justices by "stipendiary magistrates" who were legally-qualified (i.e. at the time barristers or solicitors of at least 7 years standing).  The report of the Royal Commission was considered in a Modern Law Review article by James Whiteside and it makes interesting reading.   The Lord Chancellor of the time - (Lord Jowitt of Stevenage) - stated that he would need 500 Stipendiary Magistrates if the JPs were to be replaced and he would be unable to find them.  In any event, he was of the view that it was "an excellent thing that justice should be administered by the ordinary lay people ..."   James Whiteside wrote:

" In a masterpiece of concise statement the Report commends the present system ‘because, like that of trial by jury, it gives the citizen a part to play in the administration of the law. It emphasises the fact that the principles of the common law, and even the language of statutes, ought to be (as in the case of the common law at least, they certainly are) comprehensible by any intelligent person without specialised training. Its continuance prevents the growth of a suspicion in the ordinary man’s mind that the law is a mystery which must be left to a professional caste and has little in common with justice as the layman understands it."

The long and interesting history of the Magistracy was masterfully recorded by Sir Thomas Skyrme in his three volume "History of the Justices of the Peace" (1990).

See also Law and Lawyers - "A Jewel Beyond Price ... the Magistracy of England and Wales" (December 2010) and also March 2011.

Other parts of the United Kingdom:   The system of "Lay Magistrates" in Northern Ireland is described by the Law Centre (Northern Ireland) in "An overview of the Lay Magistracy in Northern Ireland."  The Justice (Northern Ireland) Act 2002 made significant changes and introduced, from 1st April 2005, the new office of "Lay Magistrate."   Some of the background to this is considered in "The history of lay involvement in the administration of justice in Northern Ireland" and the article refers to the immense courage shown by JPs in recent years and to the murder in 1977 of Mr Robert Mitchell JP.

In Scotland, there has been a system of JPs since 1609 and a system of "Justice of the Peace Courts" has been recently set up under the Criminal Proceedings etc (Reform)(Scotland) Act 2007.   This development came about in an interesting way.  The Scottish Ministers commissioned a "Summary Justice Review" and a majority of the review team recommended abolition of the office of JP.  However, there was a "Note of Dissent" by Sheriff Brian Lockhart and Mrs Helen G Murray JP.   The Scottish Parliament was persuaded by the dissenters and not only legislated to retain "lay justice" in Scotland but also created the Justice of the Peace Courts.  The former District Courts.were abolished.  It is worth noting here that the Note of Dissent remarked (at para 7) - "Lay justice is a powerful expression of community participation in the regulation of society."

Salford Magistrates Court - closes end of 2011
The modern magistracy of England and Wales:

Appointments:  JPs are appointed by the Lord Chancellor "on behalf of and in the name of Her Majesty" (Courts Act 2003 s10).  The Lord Chancellor is "advised" in this matter by "Advisory Committees" which are responsible for recruitment and selection.  In 2010, the Ministry of Justice issued a consultation relating to these committees.  The government's response (August 2010) has been published.  The committees seek people who have "six key qualities":  Good character, Understanding and Communication, Social Awareness, Maturity and Sound Temperament, Sound judgment, Commitment and Reliability.

Commission of the Peace and Local Justice:  Once recruited, the new justice is appointed by the Lord Chancellor to the "Commission of the Peace for England and Wales."  (Since the Courts Act 2003 s.7, there is just this single commission as opposed to the earlier arrangement of separate commissions held by Counties).   The justice is then allocated to a "Local Justice Area"(LJA) which will, typically, have a single Magistrates' Court building though arrangements vary from place-to-place.  The present government has a policy to reduce the number of Local Justice Areas and this is combined with a court closure programme aimed at saving money.  In some instances, existing court accommodation is considered by the government to be unsuitable and the costs too high to put this right.  However, it is commonly felt that this policy is leading to the demise of "local justice" - that is, justice administered geographically close to where the events arose and also delivered by local justices.  This has, hitherto, been generally considered to be desirable so that justice is administered by those with some awareness of local conditions.  The present government's policy has everything to do with financial savings and little to do with the effective administration of justice at locations convenient to the public.  A small number of legal challenges - ("judicial reviews") - to the government's policy have been heard by the High Court.  However, such reviews are concerned with the legality of the government's policy as opposed to its merits.  See, for example, R (Robin Murray and Co) v Lord Chancellor [2011] EWHC 1528 (Admin).  See also Solicitor's Journal 17th June 2011 - "Court Closure Judicial Reviews fail."

Naturally enough, the government defends the policy.  In a speech on 30th June 2010, Mr Clarke said - "The court estate has developed piecemeal over many decades and in some cases still reflects how far it was reasonable for a man to ride a horse."  (Speech to the Centre for Crime and Justice Studies - covered by the excellent Jack of Kent blog on 1st July 2010).

The actual court premises are managed by Her Majesty's Courts and Tribunal Service (HMCTS) - an agency of the Ministry of Justice - which has taken over this role from the previous Magistrates' Courts Committees.  Those committees were swept into history by the Courts Act 2003 s.6. and this considerably reduced the control which the magistrates had over the individual courts.

Swearing in and training:  The new "Justice of the Peace" will be sworn in and takes the same judicial oath as the judges:

"I, _____, do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of __________, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will."    [Alternative oaths exist for other religions or the person may affirm].

The justice is referred to in the Courts Act 2003 as a "lay justice" (Courts Act 2003 s.9) and is required to undertake a minimum number of sittings each year.  Whilst serving, justices are paid allowances for travel and, sometimes, subsistence. Justices may resign at any time and may, in certain circumstances, be removed from office.  Many retired justices have their name added to the Supplemental List which is a recognition of their service.

Justices are required to undertake training for their role - Courts Act 2003 s.19. though the full detail of the training requirements is set out in Statutory Rules.  Training must be completed before a justice may sit in the adult court or in a family proceedings or youth court.  Further training is required before a justice may be approved to preside in a court (i.e. Chairmanship).   Justices must be appraised once in every 3 years in each of the courts (i.e. adult, family, youth) in which they are qualified to sit.  A "bench training committee" is responsible management and oversight of the training and appraisal schemes.  The actual training is usually delivered by the Justices' Clerk or members of the team of legal advisers and the training content follows the requirements of the Judicial College which develops training materials.  Regrettably, for financial reasons, the amount of training offered to JPs has been reduced in recent years and is now often little more than the minimum needed (i.e. "required training").  This can have the effect of reducing the knowledge base of JPs and especially of chairmen making them less effective in their role.

The Magistrates' Court make up:  Cases in the Magistrates' Court are heard either by a bench of three JPs (who are advised by a legal adviser) or by a District Judge (Magistrates' Courts) - and, sometimes, they also have a legal adviser.  In general, both forms of court have the same legal powers.

The law relating to District Judges (Magistrates' Courts) is in the Courts Act 2003 ss. 22 to 26.  Originally these appointees were known as Stipendiary Magistrates.   A DJ(MC) is a justice of the peace (Courts Act 2003 s25) and may usually sit alone (s26).  (Note: In Family Proceedings the Magistrates Courts Act 1980 s.66 applies).  In historical terms, the Stipendiary Magistrate is a recent development having come about first in London in the late 18th and early 19th centuries.

The work of the Magistrates Courts:  Cases in Magistrates' Courts generally fall to be heard either in the adult court (defendants aged 18 and over) or youth court (ages 10 to under 18) or in the family proceedings court (FPC).

In the adult court, magistrates try the less serious criminal cases.  In fact, over 90% of all criminal cases which are taken to court are dealt with by magistrates.  There are certain cases (e.g. murder) which can only be tried in the Crown Court.  There are also offences (e.g. common assault) which may only tried by magistrates.  However, most offences are said to be "either-way" offences so that, depending on seriousness, the case may be tried either by the magistrates or by the Crown Court.  In "either-way" cases the defendant usually has a right to "elect" for trial in the Crown Court.

In adult criminal cases the Magistrates' Court currently has a maximum power of 6 months imprisonment and/or a fine of up to £5000.  (A limited range of offences might carry larger fines - e.g. environmental pollution offences).  The Criminal Justice Act 2003 s.154 made provision to increase the maximum power of the Magistrates' Court to 12 months imprisonment but this has not, as yet, been implemented.

Another form of proceedings in the adult magistrates' court is committal.  Historically, serious cases were committed for trial by Magistrates and it was possible to have the evidence against the accused presented to magistrates who decided whether there was a "case to answer."  The importance of this function - referred to sometimes as "examining justices" - has been whittled away.  Today, the defendant on a serious charge which is triable only in the Crown Court will usually have just one appearance before magistrates who are commanded by the Crime and Disorder Act 1998 s.51 to "send him forthwith" to the Crown Court for trial.  Where the case is "either-way" and it has been decided that the case will be tried in the Crown Court then there is a "committal" process though it is usually a committal based on the case papers but it is possible for a defendant to argue in the Magistrates' Court that there is no case to answer.  Again, this is considered on the papers and the defence argument is often on some point of law.  Commonly, such committal hearings are now being listed before District Judges (Magistrates' Courts).  See Ministry of Justice - Committal Proceedings.

The Youth Court - (until the Criminal Justice Act 1991 known as "juvenile courts") - is the venue of trial for the vast majority of cases against children and young persons.  Again, the youth court is either a District Judge (Magistrates' Courts) or a bench of three JPs.  (For certain "sexual offences" it is possible for the trial to be conducted in the Youth Court by am approved ("ticketed") Circuit or even High Court Judge). Youth Court proceedings are held in private.  The court has an extensive range of "disposals" available for dealing with cases.  Welfare considerations play a large part in deciding what is to happen to offenders and there is a recently introduced "scaled approach" to sentencing aimed at reducing the likelihood of re-offending and risk of serious harm.  A general oversight of youth justice has been entrusted to a Youth Justice Board but this body might be abolished by the present government - (see Law and Lawyers 5th November 2010 "A breathtaking Bill of which even Henry VIII would have been proud" and see "Youth Without Justice" blog 29th March 2011).

The Family Proceedings Court (FPC) is an important aspect of family justice.  The court will comprise either a bench of three magistrates or a District Judge (Magistrates' Courts).  In the FPC, the latter are supposed to sit with one or two magistrates - (see Magistrates' Court Act 1980 s.66) - but a judge may sit alone where it is not practicable for the court to be so composed.  In practice, the spirit of the law is more honoured in the breach.  Family proceedings may, very basically, be heard in the High Court, the County Court or the Family Proceedings Courts.   There are rules relating to how cases are allocated so that they are heard at a court most suited to the difficulty of the case.  Cases are regarded as either "private law" or "public law."  Private law are those cases, concerning children, brought usually by parents.  For example, where parents are separated and one parent is seeking contact with the children.  Public law cases are those in which a local authority has initiated "care proceedings" under the Children Act 1989.  Often these cases involved difficult factual issues (e.g. has one parent injured a child) and the law has become complex.  For this reason, most care cases are heard in the County Court though the more straightforward cases will be decided in the FPC.

The Justices' Clerk and legal advisers:  The principal legal adviser to a bench of magistrates is their Justices' Clerk. There is a Justices' Clerks Society.   The Justices Clerk is responsible for the legal advice given to magistrates.  This responsibility is discharged by the employment of legal advisers ("assistant clerks")  qualified to sit with magistrates and advise them on law and procedure.  The Justices' Clerk and "assistant clerks" have an important statutory protection in terms of the advice given: see Courts Act 2003 s.29

Since 1970, a considerable number of functions - usually of a procedural nature - are exercisable by legal advisers alone. The objective of this is primarily to improve the efficiency of the system by permitting routine matters to be decided without the need for a bench.  Over the years, these powers have been extended.  see Justices' Clerks Society - "The role of the Justices' Clerk and the legal adviser" - December 2008.

In recent years there has been a considerable reduction in the number of Justices' Clerks and it is now common for one to be appointed for a very large area - e.g. Greater Manchester has one who has responsibility for legal advice to, at the time of writing, 10 benches.

Appeals from Magistrates' Courts:  These take one of two forms.  The more usual is an appeal to the Crown Court.  This may be against either conviction or against sentence or both.  The hearing of an appeal against conviction is a retrial of the case and is heard by a Judge sitting with magistrates.  The other form of appeal is known as "Appeal by way of case stated" and is to the High Court on points of law.  See Your Rights for a fuller explanation.

Challenges to the Magistracy:  It is possible to detect a number of challenges or tensions
  • Over the years, the magistrates have lost a number of important areas of work including prison adjudications and licensing of alcohol
  • from time-to-time, reports recommend the transfer of other functions away from magistrates to specialist tribunals - see, for example, the Macrory Review of Regulatory Penalties
  • Magistrates are represented on Police Authorities but these bodies are set to be abolished under the government's Police Reform and Social Responsibility Bill
  • the workload of magistrates' courts has been reduced because of increased use of out-of-court methods of dealing with offenders: cautioning, conditional cautioning, penalty notices for disorder, fixed penalty notices - it seems unlikely that this trend will be abated.
  • the enhanced role of legal advisers by giving them more delegated powers; case management responsibilities and, in family proceedings, a role in mediation
  • training available to magistrates has been slimmed down to basic levels - for financial reasons
  • the greater number of District Judge (Magistrates' Courts) appointments - appear to be seen by government as faster and generally more efficient
  • court closures and merger of local justice areas
  • difficulties in some areas of recruitment of suitable persons to be magistrates - particularly applies to certain urban areas. 
(Note: 22nd June - the 4th of these bullet points is confirmed by the Legal Aid, Sentencing and Punishment of Offenders Bill introduced into Parliament on 21st June).
    The future?  - The Magistracy has served well for 650 years but will this amazingly adaptable body survive?  Will the minority view of the 1948 Royal Commission come about with the replacement of magistrates by District Judges?  Can the professional and lay continue to operate side-by-side?  These, and many other questions, will need to be answered.

    As things stand, this important function is being discharged by a dedicated but increasingly frustrated body of people.  It is a body of people with a remarkable degree of diversity.  (The Advisory Committees have worked hard to recruit a more diverse bench and it is vastly more diverse than would be the alternative of a fully professional judiciary).  The current tensions, which this post has attempted to highlight, are not good for the administration of justice.  The undoubted benefits of lay involvement in the administration of justice have been recently reaffirmed, albeit in different ways, in Scotland and Northern Ireland.  It is to be hoped that they will be also reaffirmed for the peoples of England and Wales.

    Further reading:  Lord Justice Auld - Criminal Courts Review (2001) - Chapter 4 - Magistrates.   Some of Auld's proposals are interesting even if they have not, as yet, been implemented.  One suggestion was for a type of court in which two JPs would sit with a judge (as Chairman).   Interestingly, such a court was convened for the trial, in 2007, of Lord Justice Richards on charges of indecent exposure.  He was acquitted.

    Addendum 24th August 2011:   The extensive disorder of early August saw many cases being processed through the Magistrates' Courts.  It was particular noticeable that District Judges (Magistrates' Courts) sat to deal with the majority of those cases. 

    Also see - "The future of the Magistracy" - Criminal Law and Justice Weekly - 18th September 2010


    1. A very good article; clear and informative. Magistrates are indeed "a long-established example of the Big Society", recently so kindly invented by the Prime Minister.

      One of the most concerning challenges to the magistracy is the increasing power and control exercised over it by HMCTS, in contravention of the fundamental and necessary separation of the judiciary from the executive. Their agenda is the gradual erosion of magistrates' authority and the future does look bleak.

      District Judges are not the answer; one person acting as judge and jury is a seriously weak part of the criminal justice system and absurdly expensive. More jurisdiction and sentencing powers should be given to magistrates, not less.

      The use of the word 'lay' is unfortunate as it severely underplays their legal knowledge, skills, judgement and commitment.

    2. Concise yet comprehensive post; a difficult combination well accomplished.

    3. @Callitjustice - thank you for the comment. I am pleased that you amplified on the role of HMCTS. I considered doing this but, in the interests of not making the post excessively long, did not do so. HMCTS is basically responsible for the administration and the Justices' Clerk (and associate clerks) for the law. However, administration can impact on what it is actually possible for the justices to achieve. As just one example, the removal of a "cash office" at a Magistrates courts will impact on the payment of fines which are, strictly speaking, due as soon as imposed. Regrettably, the actual magistrates are being ignored in all of this by administrators.

      Personally, I agree re District Judges - they are absurdly expensive for this level of justice. To a point, one can see the need for a small cadre of professional judges who could move from court to court as needed for particularly lengthy or tricky vases. Such cases do arise in the Magistrates' Courts but are usually in the more unusual areas of law such as environmental offences. Such a cadre ought to be very small - perhaps no more than 20 nationally. As things stand, there are some Magistrates' Courts now with up to 6 DJs attached and they have always to be found work to do in court to justify their fees. This is sidelining the justices.

      Many JPs consider that the term "lay" is somewhat insulting. Personally, I do think that it somehow emphasizes the difference between them and a DJ(MC) and encourages the view that the latter are definitely superior. I recall a colleague once writing to someone about a request for a report which a bench had made. Instead of saying that "X Magistrates' Court" had requested it, he said that it was "requested by a lay bench." This came across as implying that the request was not as valued as it would have been from a judge. Very poor professional practice in my view.

      Thanks again for your excellent observations.

    4. @ Justice of the Peace - Thank you.

    5. A helpful and concise summary.

      Although there was no mention that Magistrates don't really make the decisions.
      Legal Advisors Do.

      At least that's my experience.

    6. Legal Advisers certainly should not be making the decisions and it is written in their practice directions that they must not play any part in the finding of fact.
      If they are making decisions that should be made by the bench then it is the court chairman who is at fault.

    7. great post guys.. i love to visit your blog!

    8. The role of the justices' clerk (or legal adviser) is to advise the magistrates on law, practice and procedure. These areas often overlap so advice is required on issues of mixed fact and law.

      The Consolidated Criminal Practice Direction (Part V) gives detailed explanation of the role of the legal adviser including the method in which advice should be tendered.

      The Practice Direction is thought to have addressed the impact of the Human Rights Act 1998 on communications between magistrates and advisers. (Pre HRA 1998 case law needs to be read cautiously).

      The rule now is that the adviser must explain in open court any advice given so that parties have the opportunity to comment on it.

      See Archbold - Magistrates' Courts Criminal Practice.

    9. Legal advisors are there to advise on law, practice and procedure but also (since HRA) on reasons. I am a chairman of many years experience, I have found that advisors know the competence and knowledge levels of the chairmen they sit with (some new chairmen just need a bit of time to get confident - some old chairmen are just not very good, they are gradually being weeded out). The legal advisor will vary the amount, detail, and forcefulness of their advice to the competence of the chairman. But I have never found, or heard of, a case where an advisor has overstepped the mark.

    10. Excellent posting Obiter very succinct and informative. In regard to Anonymous posting I don't know where he gets that idea! Indeed I once told an LA to leave the retiral room because they came into early and didn't seem to want to leave. I find that HMCTS have very little respect for Magistrates on the whole, they don't understand us and can't boss us around like DJs.

    11. @mcmrjp - Anonymous has now sent another comment which perhaps amplifies on his earlier one.

      I'm not so sure they boss the DJs around? The staff seem to run around the DJs to some tune.

      LAs are entitled to come to the retiring room to, for example, assist with the law and, as Anonymous has pointed out, reasons. In the "good old days" (?) there was an adage that the decision might be right but the reasons wrong! Since the HRA 1998 there has been more emphasis on reasons but they do not have to be more than a statement of the key reasons why the bench has reached a decision. Quite short and to the point. There is no question that magistrates should even attempt to emulate the judges (High Court and upwards).

    12. my (probably less than) two pennorth:

      the 'reasons' i have from the mags are depressingly formulaic.
      i prefer to be in front of a dj because they are usually quicker!
      i had a LA overstep the mark the other day (imho at any rate) - she made what i considered a judgment of fact. i was quite short with her. don't know if it helped. however when they do this i think it essential that other parts of the machinery tell them, so the mags are left in no doubt (assuming that they were!). i think one of the great dangers to the system is when LAs get too close to prosecutors with whom they are in court very frequently.

      overall i find the mags a huge frustration - all takes too long and with far too many unnecessary hearings, lack of consistency (city of westminster is unlike any other mags i have appeared in) and ineffective trials. a system at breaking point and none of it the fault of those who sit without reward to try and 'do their bit', some of whom are seriously skilled and possessed of excellent judgment.

    13. Excellent piece on the role of magistrates. I also agree with
      Call it Justice's comment that the executive in the shape of HMCTS is an over-powerful bureaucracy. Its function should be to facilitate the administration of local (as opposed to the current mantra of 'accessible') justice and not behave like a property company. My court was shut last month to save money. No money will be saved, however, as the plan is to sell it and use the proceeds to build five additional courtrooms in another courthouse in another borough in our new, exceedingly large LJA. Asset stripping one borough, in effect, for the benefit of another.

      It was a bad day for local justice when HMCS was created to take over our courthouses. Before then, they were maintained by local councils and managed economically by the unpaid Magistrates' Courts Committees. Many court houses exemplify through their architecture the dignity of the law and civic pride, as your picture of Salford MC demonstrates. HMCS has never been able to maintain them as the cost of its own bureaucracy comes first and it has subcontracted many of its responsibilities to outside organisations such as SERCO, MITIE and EC Harris.

      Another bad day for justice was when all our legal advisers and court staff become civil servants - employees of HMCTS. How good is that for an independent judiciary? How can they challenge, for instance, the stupidity of Activity Based Costing currently being applied to the jobs of all court staff? Why has HMCS allowed £1.5 billion of unpaid fines to accumulate since it took over fine collection?

      And finally, yes DJs are wasted on the daily routine work of mags courts. Their salaries and pensions alone make their employment in this sphere a waste of public money and does not make adequate use of their training and experience. Whilst some mags do claim loss of earnings, many mags make no claims at all.

    14. @ Portia - thank you for the comments.

      I agree with your view of HMCTS. Most of the managers (with some exceptions) which I have met are utterly charmless bureaucrats and most of them have appeared since the Courts Act 2003 got rid of the old Magistrates' Courts Committees.

      The Salford Magistrates' Court situation is interesting in that the old Greater Manchester Magistrates' Courts Committee came up with a plan to close it and also to close the court at Bolton. A new court building at Eccles was proposed. This plan was knocked back when the many Labour MPs in the area tackled the Labour government about it. After that came HMCTS and little was spent trying to make the Salford facilities better. Thus, it became a prime candidate for Kenneth Clarke's axe. What will happen to the old building? Nobody knows. I suspect that it will be closed, allowed to deteriorate and become another eyesore in an area already noted for extensive dereliction. The new Manchester and Salford LJA will have all of its work concentrated into the single court in the Manchester City centre. That building was constructed under PFI and is already inadequate for purpose.

      Unpaid fines - according to the Law Society Gazette - some £600m is owed. This failure to get in the money is very much down to HMCTS who, under "collection orders" have powers to act. Anger over £600m in unpaid fines.