Wednesday 29 December 2010

A Jewel Beyond Price ... the Magistracy of England and Wales

Kidderminster Magistrates Court
2011 marks the 650th Anniversary of the Justices of the Peace Act 1361.   The Office of Justice of the Peace may have originated earlier than 1361 since, as early as 1195, a proclamation was made requiring the appointment of "knights" to keep the peace.  By a statute of 1327, provision was made for the appointment of "good and lawful men" to keep the peace in each County.  These men were known as "conservators of the peace" but, from 1361, as Justices of the Peace.  Since 1361 they have had a long and interesting history having been handed all manner of tasks to perform including many tasks which proved to be unpopular such as adminstering the "poor law."  One distingished legal writer referred to them as "judicial beasts of burden."

In modern times, they perform most of their duties within the Magistrates' Courts and the modern "bench" is made up of people from all walks of life who give of their time freely and are paid relatively minimal expenses (e.g. cost of travel to and from court).  They receive training for their work but are advised in court on the relevant law and procedure by legal advisers who, nowadays, are usually barristers or solicitors.  Since the Courts Act 2003, there is a single Commission of the Peace for England and Wales and Magistrates' Courts serve "Local Justice Areas" but the number of such areas is being reduced considerably by the government's cull of court buildings - a cull which started under the previous government.

Here is "The Big Society" in positive action.  The late Senior Law Lord and former Lord Chief Justice - Lord Bingham of Cornhill - described the magistracy as a jewel beyond price and it gives
members of local communities a key role in the administration of justice.  They deal - competently - with around 95% of those criminal cases which are brought to court.  They man the Youth Courts and Family Proceedings Courts.  Yet, on the eve of their 650th year, many of the justices are concerned at matters such as the loss of local courts; the greater use of out-of-court methods of dealing with offenders (sometimes quite serious offenders) and the increasing numbers of District Judges (Magistrates' Courts) sitting in the Magistrates' Court.  The latter are professionally qualified, command a salary in the region of £100,000 p.a., usually sit alone and have the full powers of the Magistrates' Court.  There is a feeling that the work of the Justices of the Peace - (or "lay justices" as they are now sometimes called) - is no longer valued or appreciated and that they are being "sidelined" into very routine and undemanding work.

An article in The Telegraph 29th December argues that Justice will not be served by downgrading Justices of the Peace.  The author - Mr Trevor Grove J.P. wrote:-

"Next year's anniversary is an opportunity for the country to celebrate one of the fairest and most democratic forms of summary justice on the planet. But it is also a chance to consider the damage that planned reforms might inflict upon a concept of local justice that is unmatched anywhere in the world."

Trevor Grove JP is the author of "The Magistrates' Tale: A Frontline Report from a new JP"


  1. An interesting area of divergence within the legal systems of the United Kingdom, this. With the obsessive comparative law emphasis on juries vs. inquisitorial benches, the quantitative division of labour in Common Law jurisdictions often gets overlooked. While, as you rightly emphasise, England and Wales sees 90-odd % of criminal actions disposed of my lay adjudicators - in Scotland matters are quite different.

    While we have our own justices of the peace with jurisdiction over relatively minor matters, the vast majority of criminal cases are dealt with by sheriffs sitting alone (or "summarily". Sheriffs are all professional lawyers, whether solicitors or advocates, of long experience). They act as the proverbial judge, jury and executioner. Off the top of my head, in addition, around 450 cases a year are head in the Sheriff Court "on indictment", namely a sheriff sitting with a jury.

    One feature of all of this is that there are no "either way" offences in Scotland where the accused can select their preferred forum. Certain crimes must be indicted before a jury in the High Court of Justiciary, and some statutory crimes are only triable on summary complaint. Everything else finds its forum according to the Crown Office and procurator-fiscal's prosecutorial discretion.

    A rather different barrel of herring, but interesting divergences for all that.

  2. Many thanks for the comparison with Scotland which, of course, has a very different legal history. I note that, in 2004, the McInnes Committee recommended that Scotland move to a wholly professional judiciary in the courts.

    Mc Innes Report

    but a note of dissent by Sheriff Lockhart and Mrs Helen Murray JP wished to retain lay justice.

    It is interesting that the Scottish Executive consulted about this and accepted the view of the majority of responses that lay justice should be retained albeit with a different structure and a new recruitment and training process.

    I see that Scotland has since "rolled out" Justice of the Peace Courts:

    Justice of the Peace Courts

    Thanks again and long may your Cogitations from a Cranachan Cairn continue.

  3. Originally, the knights who were the 'keepers of the peace' (after 1361 'justices of the peace'), were given individual commissions by the sovereign. These commissions stated duties, granted authority, and provided powers for the knight to keep the peace. Over time, individual commissions became cumbersome and repetitive and they evolved into general commissions to which names could be added as required. Because of different conditions in different parts of the Kingdom, the powers granted by commission varied. Thus the Commission of the Peace grew into a geographically specific document, usually for counties, or legal subdivisions of the larger shires, each commission issued under the great seal of state. By historical chance, the Chancellor of the Duchy of Lancaster retained an historic right to place names before the sovereign for appointment to the Commission for the Duchy. Elsewhere, this duty was performed by the Lord Chancellor. With the creation of chartered boroughs in the 19th Century, commissions were issued to them also. In 1974, with the changes in local government, commissions were rationalised, and justices en masse were transferred to new commissions - though few realised it. The Courts Act 2003, created one Commission for England and Wales (and abolished the historic rights of the Duchy of Lancaster as well!). Over the years, commissions stated the duties and authority of the justices, but the powers to enforce those duties came to be in statute rather than in the commission itself. So now we come to the present. Until 2003, there actually existed commissions with the great seal attached. Has anyone seen the 2003 commission with the great seal attached? I only ask because, without such a physical document properly sealed, where do justices get their authority to act?

  4. Many thanks Anonymous for the additional history of Commissions of the Peace. I know that many of the boroughs and county boroughs which came into being during and after the Industrial Revolution (e.g. Manchester City) were immensely proud of their "Commission of the Peace." Here was a clear manifestation of responsibility for "local justice."

    The Courts Act 2003 s.7 states that there shall be a commission of the peace for England and Wales (a) issued under the Great Seal, and (b) addressed generally, and not by name, to all such persons as may from time to time hold office as justices of the peace for England and Wales.

    s.8 of the Act set up "Local Justice Areas" - (replacing "Petty Sessional Divisions").

    s.9 is responsible for bringing in the term "lay justice" which, I believe, has not been liked by many of the J.P.s. In fact, I believe that Lord Falconer LC asked that the term NOT be used but refused to have the legislation amended. Rightly or wrongly, it has now stuck.

    Sections 49 and 50 have been interesting in that specific authorisations are now required by "lay justices" before they may sit in family proceedings courts and youth courts.

    Your final point is also a very interesting one. Clearly, the 2003 Act would have to be complied with.

    The "Lord Chancellor" ( who is also nowadays Secretary of State for Justice) also has the role of Keeper of the Great Seal. Seals are affixed to various documents and various colours are used depending on the purpose. For some documents a red seal suffices. One would need to ask the Ministry of Justice (Permanent Secretary) whether there is a single Commission of the Peace with a "great seal" on it. As I understand it, the Permament Secretary also has the position of "Clerk of the Crown in Chancery." The present post-holder is Sir Suma Chakrabarti.

  5. An interesting report prepared for what was then the Lord Chancellor's Department is:

    The Judiciary in the Magistrates' Courts

    Then LCD became the Department for Constitutional Affairs and then the Ministry of Justice.

  6. Sections 49 and 50 throw an interesting light on the overall authority provided to justices by the commission. Until 2003, the authority to act in youth and family proceedings courts arose solely from the commission. In order to exercise that authority (which each justice had) justices had to be appointed to a panel: the Youth Panel or the Family Panel. The appointment was done by the local bench. However, there was no question that such justices would require additional authority over and above the commission. Since 2003 there has been a fundamental and unnoticed change. S49 and 50 specify explicitly that justices do not have authority in the youth or family proceedings jurisdictions unless specifically authorised by the Lord Chancellor. Can one envisage a future in which the commission provides no authority to act even in adult matters? Such a document would then become no more than a letter of appointment to an office.

  7. The Justices of the Peace (Training and development Committee) Rules 2007

    The 2007 Rules - Rule 31 - prevent a justice even doing adult court until completion of an approved training course but no specific authorisation is required since the whole system is based on the premise that all newly appointed JPs will sit in the adult magistrates' court.

    The legislation puts Training and Development Committees very much at the focal point of a Magistrates' Court and it is they who now manage recruitment to panels, authorisations, chairmanship and appraisal.

    The Courts Act 2003 was a radical alteration of how Magistrates' Courts operate but it came into force practically unnoticed and, to be frank, it took a considerable time before even professionals working in the magistrates' courts realised the full implications.

    The whole thing was, to my mind, about centralisation of power and control into the hands of the Minister for Justice. Since this is not a political blog, I will not take this line of thought further.

  8. A newly appointed justice is not allowed to sit until he/she has completed a course of training. However, whether one has taken the training, or not, does not invalidate the authority granted in the commission. In fact, in extremis, a justice could lawfully sit without completing the training. Actions taken by that justice would still be valid. What S49 and 50 do is invalidate that authority until the LC grants a new authority to act in Youth and Family courts.

  9. Anonymous - thanks. We are getting into some of the finer detail here. As I read it, Rule 31 prevents a justice sitting as an adult winger until completion of the required training. I know of no exceptions to that Rule which, as I see it, has replaced anything which may have existed previously.

    The problem with Rule 31 arises in relation to who may preside. On its own, Rule 31 seems to prevent a justice presiding unless he or she has completed the required chairmanship training. However, there are also the Justices of the Peace (Size and Chairmanship of Bench) Rules 2005. Rule 4 of those permits a justice to preside "under supervision." Rule 15 deals with the situation where a justice entitled to preside is absent - the "so called" emergency.

    I would not perhaps worry too much about all of this nowadays since benches are getting larger and the "emergency" exception ought to be very rare. Of course, I may be wrong about that but hope that I am not.

    Justices of the Peace (Size and Chairmanship of Bench) Rules 2005

    Interesting as all this is, the real purpose of my post was to highlight the 650th Anniversary and to seek to show how various changes are actually leading to loss of morale within benches with the likelihood that many excellent justices will be inclined to call it a day. I sincerely believe - as does Mr Grove - that we have a fine system of summary justice. It is independent, fair and permits people of good character to participate in the administration of justice for their community. I do not see the system as perfect and a system of purely professional judges would not be perfect either. However, I think that most of the problems (e.g. delays getting cases on trial etc) are not the fault of "lay" justices but are the fault of the professionals within the various criminal justice agencies. Magistrates see inefficiency every day they attend their courts but, regrettably, things do not seem to improve despite numerous initiatives - e.g. CJSSS, "Community Justice" etc. Sadly, the lay justices seem to be the fall guys for these professional failings.

    In the New Year I hope to do some further posts on the Magistrates' Courts.