Magistrates of England and Wales
Encyclopedia
In the legal system of England and Wales, there is a history of involving lay people, namely people from the local community who hold no legal qualifications, in the judicial decision-making process of the courts. They are called justices of the peace or magistrates.
These magistrates were termed "lay magistrates" to distinguish them from professional magistrates known as stipendiary magistrates (now district judges). District judges sit alone to hear cases and are permanently employed by the Ministry of Justice (until May 2007, the Department for Constitutional Affairs
). Magistrates are not paid, apart from an allowance for loss of earnings, mileage and subsistence (which are at a standardised rate agreed by the Ministry of Justice). A practising solicitor
or barrister
may sit part-time as a district judge. Retired district judges may occasionally sit as deputies. District judges are formally addressed in court as "sir" or "madam". In law reports, they are referred to as "DDJ Smith".
Magistrates generally sit in threes in order to give judgement on a variety of cases in magistrates' court
s, youth court
s and family proceedings court
s. The lead magistrate, known as the chairman, is formally addressed in court as "sir" or "madam" or "your worship", and the magistrates collectively as 'your worships'. In law reports, they are referred to as "John Smith JP" (for justice of the peace
).
Magistrates deal with less serious criminal cases, such as minor theft, criminal damage, assaults, public disorder and motoring offences. All magistrates sit in adult criminal courts as "benches" of three (occasionally two), mixed in gender, age and ethnicity whenever possible to bring a broad experience of life to the bench. All three members of the bench have equal decision-making powers but only the chairman speaks in court and presides over proceedings. A qualified legal adviser, also known as the court clerk, sits with the bench in the court room and is available to them at all times during the court sitting.
The term "bench" is also used collectively to describe a group of magistrates assigned to a particular local justice area.
Magistrate derives from the Middle English
word magistrat, denoting a "civil officer in charge of administrating laws" (c.1374); from the Old French
magistrat; from the Latin magistratus, which derives from magister (master), from the root of magnus (great). Today, in England and Wales, the word is used to describe a justice of the peace.
The office of justice of the peace has its origins in the 12th century when Richard I appointed 'keepers of the peace' in 1195. The title justice of the peace derives from 1361, in the reign of Edward III. An Act of 1327 had referred to "good and lawful men" to be appointed in every county in the land to "guard the Peace". Justices of the peace still retain (and occasionally use) the power confirmed to them by the Justices of the Peace Act 1361 to bind over unruly persons "to be of good behaviour". The bind over is not a punishment, but a preventive measure, intended to ensure that a people guilty of a minor disturbance does not re-offend. The Act provided, among other things, “That in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy of the county, with some learned in the law, and they shall have the power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take and chastise them according to their Trespass or Offense".
Over the following centuries, justices acquired many administrative duties, such as the administration of the Poor Laws, highways and bridges, and weights and measures. For example, before 1714, magistrates could be approached at any time and in any place by people legally recognised as paupers, appealing to them for aid if parish authorities had refused to provide any. It was relatively common for these magistrates to write out, on the spot, an Order requiring aid to be granted. The 19th century saw elected local authorities taking over many of these duties. There is one remnant of these duties, the appellate jurisdiction over the licensing of pubs and clubs.
Towards the end of the 18th century, the absence of an adequate police force and the quality of local justices became matters of concern. Justices received no salary from the government, although they could charge fees for their services. They were appointed from prominent citizens of property, but a shortage of landed gentlemen willing to act in London led to problems. In Middlesex, for example, the commission was increasingly dominated by merchants, tradesmen and a small number of corrupt magistrates, known as "Trading Justices" because they exploited their office for financial purposes. A Police Bill in 1785 failed to bring adequate supervision of justices. However, the Middlesex Justices Act of 1792 set up seven public offices, in addition to Bow Street, London, with three justices in each, with salaries of £400 a year. The power to take fees was removed from all justices in the city. Six constables were appointed to each office, with powers of arrest. This was the origin of the modern stipendiary magistrate (district judge).
One famous magistrate was Sir John Fielding
(known as the "Blind Beak of Bow Street"), who succeeded his half-brother as magistrate in Bow Street Magistrates' Court in 1754 and refined his small band of officers (formerly known as the Bow Street Runners
) into an effective police force for the capital. Stipendiaries remained in charge of the police until 1839.
The first paid magistrate outside London was appointed in 1813 in Manchester. The 1835 Municipal Corporations Act gave boroughs the ability to request the appointment of a stipendiary magistrate in their locality. Originally stipendiaries were not required to have any qualifications, however they could only be appointed from the ranks of barristers (from 1839) and solicitors (from 1849).
Women in England and Wales were not allowed to become justices until 1919, the first woman being Ada Summers, the Mayor of Stalybridge
, who was a JP by virtue of her office. Today, the number of male and female magistrates is approximately equal.
Magistrates sit in tribunals or "benches" composed of no more than three members. Although three is the usual number, a bench is properly constituted with two members. However, if they sit as two on a trial and disagree about the verdict, a retrial will be necessary (see Bagg v Colquhoun (1904) 1KB 554). Magistrates deal with around 97 per cent of criminal cases in England and Wales. A single magistrate sitting on his or her own has very limited power. They can however, deal with remand applications, issue search warrants and warrants for arrest as well as conducting Early Administrative Hearings.
The term "bench" is also used collectively to describe a group of magistrates assigned to a particular local justice area, for example "The Midshire Bench".
The presiding magistrate is known as the chairman. When sitting three magistrates on the bench, the chairman will sit in the middle. The magistrates sitting on either side of the chairman are known as "wingers". The chairman of the bench is formally addressed in the court room as "sir", "madam" or "your worship" and collectively the magistrates are addressed as "your worships". In law reports, they are referred to as "John Smith JP" (for justice of the peace). Magistrates deal with less serious criminal cases, such as common assault
, minor theft, criminal damage, public disorder and motoring offences. They also send serious cases such as rape and murder to the Crown Court for trial, determine applications for bail, enforce the payment of fines, and grant search warrant and right of entry applications to utility companies (e.g. gas, electricity). Magistrates' powers are limited to imposing 6 months' imprisonment (or 12 months aggregate sentences for triable either-way offences), or fines exceeding £5,000 per offence. They also have a civil jurisdiction, in relation to family work, and the enforcement of child support and council tax payments. To complement magistrates, there are a small number of district judges who are either barristers or solicitors. Under s 16(3) of the Justices of the Peace Act 1979 they have the same powers as magistrates but sit alone. Unlike judges in many of the higher courts, magistrates and district judges do not wear robes or wigs in the court room.
Lord Bingham, former Lord Chief Justice, observed that the lay magistracy was “…a democratic jewel beyond price”.
in 1998. These are;
Magistrates must be aged between 18 and 65 upon appointment, with a the statutory retirement age set at 70. The minimum age of appointment was reduced from 27 to 18 in 2004. However, appointments under the age of 30 are a rarity. In 2010 out of 30,000 magistrates in Wales and England only 145 were under the age of 30.
it was necessary for magistrates to live within 15 miles of the commission area for the court in which they sat. As a commission area was usually co-terminous with a county or metropolitan area, they could live a considerable distance from the court in which they sat. However, the Act introduced a single commission area for the whole of England and Wales. The country is divided into local justice areas and magistrates are expected to either live or work within reasonable travelling distance of their court.
Magistrates must commit themselves to sitting for a minimum of 26 half days each year. A ‘half-day’ sitting typically lasts from 10am to 1pm or 2pm to 5pm, with new magistrates taking over the afternoon session. On other benches, sittings are organized with magistrates attending to sit for the whole day. Magistrates are expected to attend half an hour before sitting for preparation and a briefing about the case list from their legal adviser.
Originally, deputy district judges could only be drawn from barristers and solicitors of at least 7 years' standing. However, in 2004, calls for increased diversity among the judiciary were recognized and the qualification period was changed so that, as of 21 July 2008, a potential deputy district judge can satisfy the judicial-appointment eligibility condition on a 5-year basis. and so that other types of lawyer, such as Legal Executives (ILEX Fellows
), would also be eligible.
who relies upon recommendations made to the Lord Chancellor's Office by local advisory committees.
Local advisory committees have regard to the composition of local benches, especially the numbers needed to process the work, and the balance of gender, ethnic status, geographical spread, occupation, age and social background. Anyone who meets the basic requirements can put themselves forward as a candidate for the magistracy. In fact, many local committees advertise for candidates, mounting campaigns to attract a diverse range of people. Advertisements are placed in local papers, newspapers or magazines aimed at ethnic groups, or even buses. In Leeds for example, committees have used the radio to invite potential candidates to attend their local magistrates' court open evening.
Following the interview stage, the committee will submit the names of those who they assess as being suitable for appointment, to the Lord Chancellor
, to fill the available vacancies. By the Constitutional Reform Act 2005
, interim arrangements mean that recommendations are passed to the Lord Chief Justice for approval, before being submitted to the Lord Chancellor to make the appointment from the list on behalf of, and in the name of, The Queen.
There are three types of criminal offence:
Single magistrates do not normally hear cases on their own, although they do have a limited jurisdiction. They usually sit as one of a bench of three magistrates, together with a qualified legal adviser who can advise them on matters of law and procedure.
Likewise, there is also a special panel for the family proceedings court which deal with private and public family cases. These include applications for non molestation orders, occupation orders, adoption orders, maintenance cases, and proceedings under the Children Act 1989
.
Magistrates also sit at the Crown Court
to hear appeals against verdict and/or sentence from the magistrates' court. In these cases the magistrates form a panel with a judge. A magistrate is not allowed to sit in the Crown Court
on the hearing of an appeal in a matter on which he/she adjudicated in the magistrates' court. There is a right of appeal from magistrates' decisions on points of law to the Queen's Bench Divisional Court.
places a statutory obligation on the Lord Chancellor
to provide training and training materials to magistrates.
The Magistrates' Committee of the Judicial Studies Board
(JSB) supervises and governs the training of magistrates. In 1998 the Magistrates New Training Initiative was introduced (MNTI1) following criticisms that magistrates were required to attend a certain number of hours training without the effectiveness of the training being evaluated, and that there was no assessment of their competency. MNTI1 was subsequently refined in 2004 by the Magistrates National Training Initiative (MNTI2).
The framework of training is divided into four areas of competence. The first three competences are relevant to all magistrates, and the fourth is only applicable to chairmen, or chairtakers as they are also known. The four areas of competence are:
Bench Training and Development Committees (BTDCs) comprise magistrates elected by their bench colleagues to oversee the mentoring and appraisal of magistrates and to monitor their training. The committee maintains a list of appraisers and mentors and requests additional training if a training need is disclosed during the appraisal/mentoring process. The Magistrates Area Training Committee (MATC) comprises chairmen of BTDC's across a number of benches, together with a justices' clerk, and aims to co-ordinate training and devise policies in accordance with guidance issued by the Judicial Studies Board.
universities with magistrates from the region in attendance. The training is designed to develop all the knowledge and skills necessary required to become an effective and confident magistrate. It is based on a competence framework and includes:
For a magistrate who wishes to become a court chairman, or to sit in the youth court or family proceedings court, there is additional training to prepare them for the specific competences required for these roles. Training courses are organised on a regional and national scale. For example, the training of youth and family panel chairman will be delivered nationally where local numbers do not justify running a course at a local venue.
that the magistrate is removed.
and Section 314 of The Constitutional Reform Act 2005
, the Lord Chancellor
with the concurrence of The Lord Chief Justice has the statutory power to remove a magistrate for the following reasons:
The record for the most removals of magistrates came under the Chancellorship of Lord Irvine who dismissed 15 magistrates in 1999. The Lord Chancellor's office has been criticised in the past for the dismissal of a JP who was taking part in a CND march and a JP who engaged in transvestite behaviour.
Although the clerk can assist the magistrates in their decision-making (e.g. advising on the sentencing guidelines of higher courts, or on the admissibility of evidence), he/she should not participate in the factual decision-making process. Neither should he/she automatically accompany the magistrates when they retire to make their decisions, although they can be invited to join them. This principle has been upheld in case law, such as the case of R v Eccles Justices, ex parte Farrelly (1992) in which the Queen's Bench Divisional Court
quashed convictions because a court clerk had apparently participated in the decision making process.
A justices’ clerk has the powers of a single magistrate, for example to issue a summons, adjourn proceedings, extend bail, issue a warrant for failing to surrender to bail where there is no objection on behalf of the accused, dismiss an information where no evidence is offered, request a pre-sentence report, commit a defendant for trial without consideration of the evidence and make directions in criminal and family proceedings. The justices’ clerk may delegate these functions to a legal adviser (referred to as “assistant justices’ clerk” in the relevant legislation). The Crime and Disorder Act 1998 also gives clerks the powers to deal with early administrative hearings.
In respect of other criteria, the magistrates' court is reasonably balanced. 49 percent of magistrates are women, in comparison to the 10 percent of professional judges. Ethnic minorities are reasonably well represented. According to The National Strategy for the Recruitment of Lay Magistrates (2003), 6 percent of magistrates are of an ethnic minority background which is close to the 7.9 percent of the population as a whole. Again this compares favourably with the professional judiciary which only has 1 percent membership from ethnic minorities. This comparatively high level of ethnic minorities in the magistracy is largely a result of campaigns to attract a wider range of candidates, such as that launched by the Lord Chancellor's Department
in March 1999. In announcing the campaign Lord Irvine stated:
Typical recruitment campaigns have been supported by local newspapers and magazines. In efforts to target minorities adverts are placed in publications such as Caribbean Times, the Asian Times and Muslim News. The Lord Chancellor also encouraged disabled people to apply and this has resulted in the appointment of a blind magistrate.
The narrowness of magistrates' backgrounds has been blamed on the selection process with magistrates on the advisory committee tending to appoint people from similar backgrounds to themselves. However, this criticism has been ameliorated to some extent by the widening of advisory committee membership to include non-magistrates.
The Auld Report (2001) commented that it was unrealistic to expect the social composition of magistrates to be close to that of the general population. This was partly because many people found it difficult to obtain support from their senior managers to be released for magisterial duties, and because of other reasons relating to employment. Therefore, the bench would never be a true cross-section of society.
Government figures published in 1995 showed a Conservative Party
bias among magistrates, although the significance of this finding is inconclusive. A 1979 study found that there was no appreciable difference in approach between the different classes, but that Conservative magistrates tend express a harder attitude on sentencing. However, it was not established whether this attitude was reflected in their sentencing decisions. In 1997, the Labour
Lord Chancellor, Lord Irvine, called for more Labour magistrates to be appointed. The Labour Government later concluded that it was no longer necessary to seek a political balance on benches because people no longer voted along class lines. A 1998 White Paper stated: "Perhaps most importantly, political balance, as this consultation paper attempts to show, no longer acts as a guarantor or viable proxy for someone’s position in society. Historically voting was class based, but, it is argued, this is no longer the case."
A number of initiatives have been formulated to improve community relations: "Magistrates in the Community" which deals with public relations at a local level, such as presentations to schools, colleges and community groups; the National Magistrates' Mock Trial Competition run in conjunction with the Citizenship Foundation
which involves schoolchildren in mock trial competitions; the Local Crime and Community Sentence project. Court open days organised by Her Majesty's Courts and Tribunals Service
are another method of engaging with the community. Projects are in place to improve public confidence in the criminal justice system (CJS) as a whole. The British Crime Survey of September 2010 reported that 61 per cent of adults thought that the CJS was fair and 42 percent thought that the CJS was effective.
is still raised today, often as a defence to court closures. The idea that magistrates should be "local" derives from the fact that magistrates are drawn from that area and, until the Courts Act 2003
, had to live within 15 miles of their commission area. In reality, magistrates may not have a knowledge and understanding of their area, especially the poorer parts, because most of them come from professional and managerial classes and live in affluent areas. Nevertheless, it is suggested they are likely to have a greater awareness of local events, local patterns of crime and local opinions than a professional judge from another area.
In the case of Paul v DPP (1989) The court had to decide whether a kerb crawler was ‘likely to cause a nuisance to other persons in the neighbourhood’. The defendant was convicted on the basis that the magistrates knew that kerb crawling was an issue in that residential area. On appeal Lord Justice Woolf
noted that this was a case where magistrate’s local knowledge had been useful.
both for the government and for those defendants who pay their own legal costs. However, it should remembered that the Crown Court generally deals with more complex and lengthy cases than the magistrates' court.
Following reforms in 1999, all legal advisers were required to be legally qualified. Any existing legal advisers under the age of 40 in 1999 were required to gain a legal qualification within 10 years. The Assistants to Justices’ Clerks Regulations 2006, in regulation 3, set out the qualifications for assistants to justices’ clerks who could be employed as clerks in court. They provided that people who have qualified as barristers or solicitors and had passed the exams for either of those professions or had been granted an exemption were qualified to be assistants to justices’ clerks which meant that they can carry out matters on behalf of the justices’ clerk. The 2006 Regulations also enabled the Lord Chancellor to make temporary appointments of people to act as clerks in court where he was satisfied that they were, in the circumstances, suitable and that no other arrangement can reasonably be made.
However, the Assistants to Justices' Clerks (Amendment) Regulations 2007 replaced regulation 3 of the 2006 Regulations. The effect was to clarify that those:
i. who were in employment as an assistant registered by the Law Society under regulation 23 of the Training Regulations 1990;
ii. who held a valid training certificate granted by a magistrates’ courts committee before 1 January 1999; or
iii. who acted as a clerk in court before 1 January 1999 and were qualified to act as such under the justices’ clerk (Qualification of Assistants) Rules 1979 (as amended) to carry out the duties of assistant clerks can act;
could act as clerks in court.
These changes have brought a greater degree of professionalism to magistrates' courts, thus helping magistrates in dealing with points of law and procedure. Furthermore, the training of magistrates has become more consistent with the involvement of the Judicial Studies Board
.
From the Magistrates' Court. Of these only 2,020 were allowed and 3,184 resulted in a variation of sentence, out of a total of 2 million defendants dealt with in the magistrates' court. There are also very few appeals allowed because an error of law was made . This is shown by the fact that only 100 appeals were allowed by way of case stated to the Queen's Bench Divisional Court, of these only 42 were allowed. In 2008, there were only 72 appeals, on a point of law, to the Queen’s Bench Division, of which 30 were allowed.
requires magistrates to give reasons for their decisions, unlike jury verdicts in the Crown Court.
, it was found that direct evidence from prosecution witnesses whose credibility was not challenged led to a high level of convictions. Weaknesses in the prosecution case, such as unreliable witness evidence, a lack of confessions or direct evidence against the defendant led to higher likelihood of acquittal. However, in those cases where a defendant's credibility was not demonstrably undermined, there was a conviction rate of 63 percent. In the majority of these cases, there was first-hand evidence (mainly from police witnesses) of the defendant's behaviour from which criminal intent was inferred.
Since the inauguration of the Crown Prosecution Service in 1986, the proportion of weaker prosecution cases has declined as a result of the CPS' review function which requires a "realistic prospect of conviction" before a prosecution can be commenced or continued. In 2009, the conviction rate of defendants tried in magistrates’ courts for all offences was 98% and in the Crown Court, 80%.
One contributor to Lord Justice Auld's Review of the Criminal Courts of England and Wales (2001) drew attention to the "dichotomy in people's attitudes towards the magistracy, according to whether they are considering the elective right to trial by jury in 'either-way' cases or the relative advantages of lay and professional judges in summary cases. On the former issue magistrates are often portrayed as part of the establishment, being used to deny defendants a basic human right; on the latter they are depicted as the near equivalent of a jury - the peers of people who appear before them, ordinary people with experience of the real world, bringing common sense to bear etc."
The need for magistrates to demonstrate impartiality in criminal trials was emphasised in the case of Bingham Justices ex p Jowitt (1974). A motorist was charged with exceeding the speed limit and the only evidence was contradictory, in the form of the statements of the defendant and a police officer. The defendant was found guilty and the chairman stated “My principle in such cases has always been to believe the police officer”. The conviction was quashed on appeal as the magistrates clearly demonstrated bias.
Statistics published in 2004 showed no improvement. For example, magistrates in Sunderland discharged 36.4 percent of all defendants in comparison to Birmingham which discharged 9.2 percent of all defendants. In Newcastle magistrates sentenced only 7.2 percent to an immediate custodial sentence whereas in Hillingdon this figure was 32 percent.
The Prison Reform Trust Report on Sentencing (2009–2010) highlighted a number of issues including the following:
However, when the statistics are put in context, they may not appear as severe as they might at first glance. Only 4 percent of offenders dealt with by magistrates receive a prison sentence. Furthermore, in an effort to bring a greater degree of consistency to sentencing, national guidelines have been issued to magistrates and updated on a regular basis. These "Sentencing Guidelines" are issued under the aegis of the Sentencing Council which aims to improve sentencing practice in the criminal courts.
quashed convictions because the clerk had apparently assisted and participated in the decision making process. In R v Sussex Justices, ex parte McCarthy (1924), a motorcyclist was involved in a road accident which resulted in his prosecution before a magistrates' court for dangerous driving
. Unknown to the defendant and his solicitor, the clerk was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the magistrates, who returned to convict the defendant. On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The magistrates swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.
These magistrates were termed "lay magistrates" to distinguish them from professional magistrates known as stipendiary magistrates (now district judges). District judges sit alone to hear cases and are permanently employed by the Ministry of Justice (until May 2007, the Department for Constitutional Affairs
Department for Constitutional Affairs
The Department for Constitutional Affairs was a United Kingdom government department. Its creation was announced on 12 June 2003 with the intention of replacing the Lord Chancellor's Department...
). Magistrates are not paid, apart from an allowance for loss of earnings, mileage and subsistence (which are at a standardised rate agreed by the Ministry of Justice). A practising solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
or barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
may sit part-time as a district judge. Retired district judges may occasionally sit as deputies. District judges are formally addressed in court as "sir" or "madam". In law reports, they are referred to as "DDJ Smith".
Magistrates generally sit in threes in order to give judgement on a variety of cases in magistrates' court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
s, youth court
Youth justice in England and Wales
Youth justice system in England and Wales comprises the organs and processes that are used to prosecute, convict and punish persons under 18 years of age who commit criminal offences...
s and family proceedings court
Family Proceedings Court
In England and Wales, the Family Proceedings Court is the name given to the Magistrates' Court when members of the family panel sit to hear a family case. It is a court of first instance in England and Wales that deals with family matters...
s. The lead magistrate, known as the chairman, is formally addressed in court as "sir" or "madam" or "your worship", and the magistrates collectively as 'your worships'. In law reports, they are referred to as "John Smith JP" (for justice of the peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
).
Magistrates deal with less serious criminal cases, such as minor theft, criminal damage, assaults, public disorder and motoring offences. All magistrates sit in adult criminal courts as "benches" of three (occasionally two), mixed in gender, age and ethnicity whenever possible to bring a broad experience of life to the bench. All three members of the bench have equal decision-making powers but only the chairman speaks in court and presides over proceedings. A qualified legal adviser, also known as the court clerk, sits with the bench in the court room and is available to them at all times during the court sitting.
The term "bench" is also used collectively to describe a group of magistrates assigned to a particular local justice area.
History of the magistracy
Middle English
Middle English is the stage in the history of the English language during the High and Late Middle Ages, or roughly during the four centuries between the late 11th and the late 15th century....
word magistrat, denoting a "civil officer in charge of administrating laws" (c.1374); from the Old French
Old French
Old French was the Romance dialect continuum spoken in territories that span roughly the northern half of modern France and parts of modern Belgium and Switzerland from the 9th century to the 14th century...
magistrat; from the Latin magistratus, which derives from magister (master), from the root of magnus (great). Today, in England and Wales, the word is used to describe a justice of the peace.
The office of justice of the peace has its origins in the 12th century when Richard I appointed 'keepers of the peace' in 1195. The title justice of the peace derives from 1361, in the reign of Edward III. An Act of 1327 had referred to "good and lawful men" to be appointed in every county in the land to "guard the Peace". Justices of the peace still retain (and occasionally use) the power confirmed to them by the Justices of the Peace Act 1361 to bind over unruly persons "to be of good behaviour". The bind over is not a punishment, but a preventive measure, intended to ensure that a people guilty of a minor disturbance does not re-offend. The Act provided, among other things, “That in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy of the county, with some learned in the law, and they shall have the power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take and chastise them according to their Trespass or Offense".
Over the following centuries, justices acquired many administrative duties, such as the administration of the Poor Laws, highways and bridges, and weights and measures. For example, before 1714, magistrates could be approached at any time and in any place by people legally recognised as paupers, appealing to them for aid if parish authorities had refused to provide any. It was relatively common for these magistrates to write out, on the spot, an Order requiring aid to be granted. The 19th century saw elected local authorities taking over many of these duties. There is one remnant of these duties, the appellate jurisdiction over the licensing of pubs and clubs.
Towards the end of the 18th century, the absence of an adequate police force and the quality of local justices became matters of concern. Justices received no salary from the government, although they could charge fees for their services. They were appointed from prominent citizens of property, but a shortage of landed gentlemen willing to act in London led to problems. In Middlesex, for example, the commission was increasingly dominated by merchants, tradesmen and a small number of corrupt magistrates, known as "Trading Justices" because they exploited their office for financial purposes. A Police Bill in 1785 failed to bring adequate supervision of justices. However, the Middlesex Justices Act of 1792 set up seven public offices, in addition to Bow Street, London, with three justices in each, with salaries of £400 a year. The power to take fees was removed from all justices in the city. Six constables were appointed to each office, with powers of arrest. This was the origin of the modern stipendiary magistrate (district judge).
One famous magistrate was Sir John Fielding
John Fielding
This article is about the London magistrate. For the soldier, see John Williams .Sir John Fielding was a notable English magistrate and social reformer of the 18th century. He was also the younger half-brother of novelist, playwright and chief magistrate Henry Fielding...
(known as the "Blind Beak of Bow Street"), who succeeded his half-brother as magistrate in Bow Street Magistrates' Court in 1754 and refined his small band of officers (formerly known as the Bow Street Runners
Bow Street Runners
The Bow Street Runners have been called London's first professional police force. The force was founded in 1749 by the author Henry Fielding and originally numbered just six. Bow Street runners was the public's nickname for these officers, "although the officers never referred to themselves as...
) into an effective police force for the capital. Stipendiaries remained in charge of the police until 1839.
The first paid magistrate outside London was appointed in 1813 in Manchester. The 1835 Municipal Corporations Act gave boroughs the ability to request the appointment of a stipendiary magistrate in their locality. Originally stipendiaries were not required to have any qualifications, however they could only be appointed from the ranks of barristers (from 1839) and solicitors (from 1849).
Women in England and Wales were not allowed to become justices until 1919, the first woman being Ada Summers, the Mayor of Stalybridge
Stalybridge
Stalybridge is a town in the Metropolitan Borough of Tameside in Greater Manchester, England, with a population of 22,568. Historically a part of Cheshire, it is east of Manchester city centre and northwest of Glossop. With the construction of a cotton mill in 1776, Stalybridge became one of...
, who was a JP by virtue of her office. Today, the number of male and female magistrates is approximately equal.
Magistrates
The titles "magistrate" and "justice of the peace" mean the same, although today the former is commonly used in the popular media, and the latter in more formal contexts. The term "lay" referred to the voluntary, unsalaried nature of the appointment and was used to distinguish them from professional magistrates, known as stipendiaries. However, since stipendiaries became district judges, the term has fallen into disuse. There are approximately 30,000 magistrates in England And Wales.Magistrates sit in tribunals or "benches" composed of no more than three members. Although three is the usual number, a bench is properly constituted with two members. However, if they sit as two on a trial and disagree about the verdict, a retrial will be necessary (see Bagg v Colquhoun (1904) 1KB 554). Magistrates deal with around 97 per cent of criminal cases in England and Wales. A single magistrate sitting on his or her own has very limited power. They can however, deal with remand applications, issue search warrants and warrants for arrest as well as conducting Early Administrative Hearings.
The term "bench" is also used collectively to describe a group of magistrates assigned to a particular local justice area, for example "The Midshire Bench".
The presiding magistrate is known as the chairman. When sitting three magistrates on the bench, the chairman will sit in the middle. The magistrates sitting on either side of the chairman are known as "wingers". The chairman of the bench is formally addressed in the court room as "sir", "madam" or "your worship" and collectively the magistrates are addressed as "your worships". In law reports, they are referred to as "John Smith JP" (for justice of the peace). Magistrates deal with less serious criminal cases, such as common assault
Common assault
Common assault was an offence under the common law of England, and has been held now to be a statutory offence in England and Wales. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery...
, minor theft, criminal damage, public disorder and motoring offences. They also send serious cases such as rape and murder to the Crown Court for trial, determine applications for bail, enforce the payment of fines, and grant search warrant and right of entry applications to utility companies (e.g. gas, electricity). Magistrates' powers are limited to imposing 6 months' imprisonment (or 12 months aggregate sentences for triable either-way offences), or fines exceeding £5,000 per offence. They also have a civil jurisdiction, in relation to family work, and the enforcement of child support and council tax payments. To complement magistrates, there are a small number of district judges who are either barristers or solicitors. Under s 16(3) of the Justices of the Peace Act 1979 they have the same powers as magistrates but sit alone. Unlike judges in many of the higher courts, magistrates and district judges do not wear robes or wigs in the court room.
Lord Bingham, former Lord Chief Justice, observed that the lay magistracy was “…a democratic jewel beyond price”.
Qualifications
There are no statutory requirements as to the qualifications of a magistrate. There are, however, six core requirements as to the character of candidates for the magistracy, as laid down by the by the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
in 1998. These are;
- Good character: Magistrates are expected to have personal integrity, enjoy the respect and trust of others, and be able to maintain confidences.
- Understanding and communication:Magistrates must be able to understand documents, identify and comprehend relevant facts reasonably quickly and follow evidence and arguments.
- Social awareness: Magistrates must have an appreciation of, and accept the need for, the rule of law in society. Magistrates should also display an understanding of their local communities, society in general, and have an understanding of the causes and effects of crime.
- Maturity and sound temperament:Magistrates must have the ability to relate to and work with others. They must have regard for the views of others and a willingness to consider advice.
- Sound judgement: Magistrates must have the ability to think logically, weigh arguments and reach a balanced decision. They must be objective and have the ability to recognize and set aside their prejudices.
- Commitment and reliability.: Magistrates must be committed to serving the community and be reliable.
Magistrates must be aged between 18 and 65 upon appointment, with a the statutory retirement age set at 70. The minimum age of appointment was reduced from 27 to 18 in 2004. However, appointments under the age of 30 are a rarity. In 2010 out of 30,000 magistrates in Wales and England only 145 were under the age of 30.
Locality and commitment
Until the passage of the Courts Act in 2003Courts Act 2003
The Courts Act 2003 is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's in England and Wales...
it was necessary for magistrates to live within 15 miles of the commission area for the court in which they sat. As a commission area was usually co-terminous with a county or metropolitan area, they could live a considerable distance from the court in which they sat. However, the Act introduced a single commission area for the whole of England and Wales. The country is divided into local justice areas and magistrates are expected to either live or work within reasonable travelling distance of their court.
Magistrates must commit themselves to sitting for a minimum of 26 half days each year. A ‘half-day’ sitting typically lasts from 10am to 1pm or 2pm to 5pm, with new magistrates taking over the afternoon session. On other benches, sittings are organized with magistrates attending to sit for the whole day. Magistrates are expected to attend half an hour before sitting for preparation and a briefing about the case list from their legal adviser.
Restrictions on appointment
Subject to the Lord Chancellor’s discretion, a number of activities and occupations, including the occupations of a spouse or partner or other close relative, may give cause for concern in relation to the perceived impartiality of the bench and corresponding risk to the right to a fair trial. For example, a candidate will not normally be eligible if:- They are a member of the police service.
- They are a member of, or have been selected (formally or informally) as a prospective candidate for election to, any Parliament or Assembly
- If they are an undischarged bankrupt, they will not be appointed as a magistrate because it is unlikely that they would command the confidence of the public.
- When considering candidates who have been subject to any order of a court (civil or criminal), various factors, including the nature and seriousness of the offence, will be considered before an appointment is made. Magistrates deal with motoring offences, and while minor motoring offences are not usually an issue, serious motoring offences, or persistent offending, might disqualify them. If they have had their license suspended for less than 12 months in the past five years, or for 12 months or more in the past 10 years, they will generally not be recommended for appointment.
- Barristers and solicitors, bookmakers, care managers, civil service and executive agency employees, civilian employees of the police, community support officers, Crown Prosecution ServiceCrown Prosecution ServiceThe Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
employees, educational welfare officers, health authority employees, HM Forces, interpreters, licensees, local authority employees, ministers of religion, NSPCCNSPCCThe National Society for the Prevention of Cruelty to Children is a United Kingdom charity campaigning and working in child protection.-History:...
employees, people who carry out work for, or have other connections with, the police, police officers, prison service employees, RSPCA employees, security officers, social Workers, Special Constables, Traffic Wardens.
District Judges (Magistrates' Court)
Prior to 31 August 2000, district judges (magistrates' court) were known as stipendiary magistrates (i.e. magistrates who received a stipend or payment). Unlike magistrates, district judges (magistrates' court) sit alone. Some district judges have been appointed from the ranks of legal advisers to the magistrates' court and will be qualified solicitors or barristers. Questions have been raised by the Magistrates' Association as to the legal safeguards of a single district judge being allowed to hear a case, decide the outcome and pass sentence without reference to another tribunal member.Originally, deputy district judges could only be drawn from barristers and solicitors of at least 7 years' standing. However, in 2004, calls for increased diversity among the judiciary were recognized and the qualification period was changed so that, as of 21 July 2008, a potential deputy district judge can satisfy the judicial-appointment eligibility condition on a 5-year basis. and so that other types of lawyer, such as Legal Executives (ILEX Fellows
Institute of Legal Executives
The Institute of Legal Executives is the professional body for legal executives in England and Wales and an examination board providing qualifications for legal executives, paralegals and legal secretaries.-History:...
), would also be eligible.
Appointment
Approximately 1,500 magistrates are appointed each year. The appointments are made by The Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
who relies upon recommendations made to the Lord Chancellor's Office by local advisory committees.
Local advisory committees
These committees are responsible for selecting suitable candidates for the magistracy. They comprise a maximum of 12 magistrate and non-magistrate members. The membership of local advisory committees used to be confidential but following reform in 1993 all names must be published.Local advisory committees have regard to the composition of local benches, especially the numbers needed to process the work, and the balance of gender, ethnic status, geographical spread, occupation, age and social background. Anyone who meets the basic requirements can put themselves forward as a candidate for the magistracy. In fact, many local committees advertise for candidates, mounting campaigns to attract a diverse range of people. Advertisements are placed in local papers, newspapers or magazines aimed at ethnic groups, or even buses. In Leeds for example, committees have used the radio to invite potential candidates to attend their local magistrates' court open evening.
Interview panels
The first stage of the selection process is the submission of a detailed application form, from which potential magistrates are first sifted to check eligibility to apply and basic suitability. Then, those who are eligible, will be invited to a first interview where selectors from the local advisory committee will seek to establish more about the candidates' personal qualities and whether or not they possess the six key qualities required. The interviewers also use the opportunity to explore the candidates' attitudes on various criminal justice issues such drink driving, juvenile crime or vandalism. If successful at the first interview, the candidate will be invited to a second interview where they will discuss some practical examples of the type of cases with which magistrates deal. Typically, this will involve a discussion of at least two case studies which are typical of a Magistrates' Court. In both interviews the candidate will be assessed against the core competencies. This is designed to assess and explore the potential candidates' judicial aptitude.Following the interview stage, the committee will submit the names of those who they assess as being suitable for appointment, to the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, to fill the available vacancies. By the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
, interim arrangements mean that recommendations are passed to the Lord Chief Justice for approval, before being submitted to the Lord Chancellor to make the appointment from the list on behalf of, and in the name of, The Queen.
Magistrates' duties
A magistrate primarily deals with criminal cases, although they have a civil jurisdiction and can also choose to specialise in the family proceedings court. The civil cases they deal with include issuing warrants of entry to the utility companies (gas, water and electricity), enforcing payment of council tax and television licence fees, as well as appeals from local authority licensing decisions regarding pubs and clubs. All criminal cases start in the magistrates’ courts, and 97 percent are concluded there.There are three types of criminal offence:
- summary offences – such as most motoring offences, less serious assaults and many public order offences, which can only be dealt with in the magistrates’ courts. For these offences, magistrates will decide bail (in the more serious cases), taking a plea - guilty or not guilty - deciding verdict and passing sentence.
- triable either-way offences - such as theft, fraud, criminal damage (value of damage over £5,000), assault occasioning actual bodily harm, some less serious sexual offences, dangerous driving. In these cases, magistrates decide venue (magistrates' court or Crown Court) after hearing representations from the prosecution and defence. If they decide on trial in the magistrates' court, the defendant can still elect trial at the Crown Court. Otherwise, magistrates will have the same powers as summary offences - dealing with bail, passing sentence, etc.
- indictable-only offences - these are the most serious cases such as murder, rape and robbery, which can only be dealt with by trial on indictment at the Crown Court. Nevertheless, the first hearing of such cases is in the magistrates' court where the bench considers bail and then sends the case to the Crown Court.
Single magistrates do not normally hear cases on their own, although they do have a limited jurisdiction. They usually sit as one of a bench of three magistrates, together with a qualified legal adviser who can advise them on matters of law and procedure.
Youth & Family Proceedings Courts
For young offenders aged between 10 to 17 years, there are special arrangements. Youth courts are set apart from the adult courts and the procedures are adapted to meet the different needs of younger persons, for example by requiring the attendance of parents and ensuring that everything is explained in appropriate language. Members of the public are generally excluded from the youth and family proceedings courts and, although the press may attend, there are restrictions on what they can report. Magistrates sitting on the youth court are members of youth panels which meet regularly for training and administrative purposes. Youth magistrates receive specialist training in the youth court, and are mentored and appraised in that role. A youth court must usually include one male and one female member.Likewise, there is also a special panel for the family proceedings court which deal with private and public family cases. These include applications for non molestation orders, occupation orders, adoption orders, maintenance cases, and proceedings under the Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
.
Appeals
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
to hear appeals against verdict and/or sentence from the magistrates' court. In these cases the magistrates form a panel with a judge. A magistrate is not allowed to sit in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
on the hearing of an appeal in a matter on which he/she adjudicated in the magistrates' court. There is a right of appeal from magistrates' decisions on points of law to the Queen's Bench Divisional Court.
Training of magistrates
s 19 (3) of the Courts Act 2003Courts Act 2003
The Courts Act 2003 is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's in England and Wales...
places a statutory obligation on the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to provide training and training materials to magistrates.
The Magistrates' Committee of the Judicial Studies Board
Judicial Studies Board
The Judicial College, formerly the Judicial Studies Board , established in 1979, is the organisation responsible for training judges in Crown, County and higher courts in England and Wales and tribunals judges in England & Wales, Scotland and Northern Ireland. This includes the training of lay...
(JSB) supervises and governs the training of magistrates. In 1998 the Magistrates New Training Initiative was introduced (MNTI1) following criticisms that magistrates were required to attend a certain number of hours training without the effectiveness of the training being evaluated, and that there was no assessment of their competency. MNTI1 was subsequently refined in 2004 by the Magistrates National Training Initiative (MNTI2).
The framework of training is divided into four areas of competence. The first three competences are relevant to all magistrates, and the fourth is only applicable to chairmen, or chairtakers as they are also known. The four areas of competence are:
- Managing yourself - which focuses on the basic aspects of self-management in respect to preparing for court, conduct in court and ongoing learning.
- Working as a member of a team - which focuses on the team aspect of the decision making process in the Magistrates' Court.
- Making judicial decisions - which focuses on the impartial and structured nature of the judicial decision-making process.
- Managing judicial decisions - which focuses on the chairman's role and working with the legal adviser, managing the court and ensuring effective impartial decision making.
Bench Training and Development Committees (BTDCs) comprise magistrates elected by their bench colleagues to oversee the mentoring and appraisal of magistrates and to monitor their training. The committee maintains a list of appraisers and mentors and requests additional training if a training need is disclosed during the appraisal/mentoring process. The Magistrates Area Training Committee (MATC) comprises chairmen of BTDC's across a number of benches, together with a justices' clerk, and aims to co-ordinate training and devise policies in accordance with guidance issued by the Judicial Studies Board.
Training of new magistrates
The JSB Magistrates' Committee has issued a syllabus which is delivered locally. Because of the large number of magistrates, the training is carried out in local areas, sometimes through the clerk of the court, sometimes through weekend courses organized byuniversities with magistrates from the region in attendance. The training is designed to develop all the knowledge and skills necessary required to become an effective and confident magistrate. It is based on a competence framework and includes:
- Reading and distance learning exercises that cover the role and responsibilities of a magistrate.
- Induction and core training before a magistrate sits in court. This will normally be for the equivalent of three days (18 hours) and may be delivered: over a long weekend; in a series of short evening sessions over several weeks; over three separate week days; or as a residential course.
- A minimum of three court observations.
- A visit to a prison establishment, a young offender institution and a probation service facility.
- Consolidation training. This will received this after about a year. It will normally be for the equivalent of two days (12 hours) and, like the core training, may be delivered in a variety of ways.
Mentors
All new magistrates are provided and Personal Development Log and with a mentor – an experienced magistrate who has been specially trained to take on the role. The mentor will advise, support, and guide the magistrates, especially during the first few months of their service as a magistrate. During their first year a new magistrate will have six formal sittings attended by their mentor, each of which is followed by an opportunity to discuss the day’s business with their mentor. The magistrate will reflect on how they have applied the knowledge and skills developed during their induction and core training and, using the competence framework, will consider whether or not they have any further training and development needs.Training sessions
The law and procedures pertaining to magistrates’ courts occasionally change, therefore "update training" is provided for magistrates. When there are major changes in legislation, magistrates will be provided with written material or formal training sessions to help them to learn and apply the new law. The justices' clerk and his/her legal advisers play an important part in the training of magistrates by assisting in the delivery of training and providing support in the court room.For a magistrate who wishes to become a court chairman, or to sit in the youth court or family proceedings court, there is additional training to prepare them for the specific competences required for these roles. Training courses are organised on a regional and national scale. For example, the training of youth and family panel chairman will be delivered nationally where local numbers do not justify running a course at a local venue.
Appraisal
After a magistrate has been sitting for about a year he or she will appraised. This takes place during a normal sitting and is conducted by an appraiser who is an experienced magistrate specially trained for the role. Following the sitting, the magistrate and his or her appraiser use the competence framework for magistrates to assess the appraisee's performance and to identify if the magistrate has any outstanding training needs. All magistrates are appraised every three years in each of the judicial roles they perform. If extra training is given and the magistrate cannot demonstrate that they have achieved the necessary competency level, the matter is referred to the local advisory committee, who may recommend to the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
that the magistrate is removed.
Retirement
The is statutory retirement age for magistrates is 70 years. When magistrates reach that age, their names are placed on the Supplemental List. Although they can no longer sit as magistrates, they are able to carry out minor administrative functions, the signing of official documents. Magistrates may of course resign their office at any time. In cases were a magistrate moves out of his or hers justice area he or she will be place on the Supplemental List until there is a vacancy in the new area.Removal
According to Section 11 of the Courts Act 2003Courts Act 2003
The Courts Act 2003 is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's in England and Wales...
and Section 314 of The Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
, the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
with the concurrence of The Lord Chief Justice has the statutory power to remove a magistrate for the following reasons:
- On a finding of incapacity or misbehaviour
- On the ground of a persistent failure to meet such standards of competence as are prescribed by the Lord ChancellorLord ChancellorThe Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
or - If the Lord ChancellorLord ChancellorThe Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
is satisfied that the magistrate is declining or neglecting to take a proper part in the exercise of his or her judicial functions.
The record for the most removals of magistrates came under the Chancellorship of Lord Irvine who dismissed 15 magistrates in 1999. The Lord Chancellor's office has been criticised in the past for the dismissal of a JP who was taking part in a CND march and a JP who engaged in transvestite behaviour.
The justices' clerk
The principal adviser to a bench or benches of magistrates is the justices' clerk, appointed under the Courts Act 2003 by the Lord Chancellor. The justices' clerk will be a qualified solicitor or barrister of ar least five years' standing. The vast majority of magistrates' courts are taken by the justices' clerk's assistants who are known as magistrates' clerks, court clerks or legal advisers. Their primary role is to provide legal advice to magistrates in the court room and in their retiring room, as well as assisting in the administration of the court business. The clerks duty is guide magistrates on questions of law, practice and procedure. This is set out in the Justices of the Peace Act (1979) s 28(3) which provides:Although the clerk can assist the magistrates in their decision-making (e.g. advising on the sentencing guidelines of higher courts, or on the admissibility of evidence), he/she should not participate in the factual decision-making process. Neither should he/she automatically accompany the magistrates when they retire to make their decisions, although they can be invited to join them. This principle has been upheld in case law, such as the case of R v Eccles Justices, ex parte Farrelly (1992) in which the Queen's Bench Divisional Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
quashed convictions because a court clerk had apparently participated in the decision making process.
A justices’ clerk has the powers of a single magistrate, for example to issue a summons, adjourn proceedings, extend bail, issue a warrant for failing to surrender to bail where there is no objection on behalf of the accused, dismiss an information where no evidence is offered, request a pre-sentence report, commit a defendant for trial without consideration of the evidence and make directions in criminal and family proceedings. The justices’ clerk may delegate these functions to a legal adviser (referred to as “assistant justices’ clerk” in the relevant legislation). The Crime and Disorder Act 1998 also gives clerks the powers to deal with early administrative hearings.
Evaluations of magistrates
Over the last 15 years, there have been a number of research papers and reviews of the role of magistrates, with many observations being made:Composition of the bench
Magistrates have been perceived as middle-class, middle-aged and middle-minded and this has some foundation in fact. The Judiciary in the Magistrates' Court (2000) report found that magistrates were overwhelmingly from professional and managerial backgrounds and 40 percent of them were retired from full-time employment. The majority of magistrates are within the 45-65 age range and the appointment of magistrates under the age of 30 is still rare although there are a few notable exceptions. For example, in 2006 a 19 year old law student, Lucy Tate, was appointed making her Britain's youngest magistrate.In respect of other criteria, the magistrates' court is reasonably balanced. 49 percent of magistrates are women, in comparison to the 10 percent of professional judges. Ethnic minorities are reasonably well represented. According to The National Strategy for the Recruitment of Lay Magistrates (2003), 6 percent of magistrates are of an ethnic minority background which is close to the 7.9 percent of the population as a whole. Again this compares favourably with the professional judiciary which only has 1 percent membership from ethnic minorities. This comparatively high level of ethnic minorities in the magistracy is largely a result of campaigns to attract a wider range of candidates, such as that launched by the Lord Chancellor's Department
Lord Chancellor's Department
The Lord Chancellor's Department was a United Kingdom government department answerable to the Lord Chancellor with jurisdiction over England and Wales....
in March 1999. In announcing the campaign Lord Irvine stated:
Typical recruitment campaigns have been supported by local newspapers and magazines. In efforts to target minorities adverts are placed in publications such as Caribbean Times, the Asian Times and Muslim News. The Lord Chancellor also encouraged disabled people to apply and this has resulted in the appointment of a blind magistrate.
The narrowness of magistrates' backgrounds has been blamed on the selection process with magistrates on the advisory committee tending to appoint people from similar backgrounds to themselves. However, this criticism has been ameliorated to some extent by the widening of advisory committee membership to include non-magistrates.
The Auld Report (2001) commented that it was unrealistic to expect the social composition of magistrates to be close to that of the general population. This was partly because many people found it difficult to obtain support from their senior managers to be released for magisterial duties, and because of other reasons relating to employment. Therefore, the bench would never be a true cross-section of society.
Government figures published in 1995 showed a Conservative Party
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
bias among magistrates, although the significance of this finding is inconclusive. A 1979 study found that there was no appreciable difference in approach between the different classes, but that Conservative magistrates tend express a harder attitude on sentencing. However, it was not established whether this attitude was reflected in their sentencing decisions. In 1997, the Labour
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
Lord Chancellor, Lord Irvine, called for more Labour magistrates to be appointed. The Labour Government later concluded that it was no longer necessary to seek a political balance on benches because people no longer voted along class lines. A 1998 White Paper stated: "Perhaps most importantly, political balance, as this consultation paper attempts to show, no longer acts as a guarantor or viable proxy for someone’s position in society. Historically voting was class based, but, it is argued, this is no longer the case."
Public confidence
In their report, Professor Rod Morgan and Neil Russell demonstrated that there was lack of public understanding about magistrates: 33% of the public thought that magistrates were legally qualified. Professor Andrew Sanders (Sanders 2001) found a low level of public confidence in magistrates’ courts based on a British Crime Survey, a MORI poll and focus groups with the public and with offenders. Lord Justice Auld was scathing about these aspects of the research, stating in his report that "it is one thing to rely on uninformed views of the public as a guide to what may be necessary to engender public confidence, and another to rely on such views as an argument for fashioning the system to meet them. Public confidence is not an end in itself; it is or should be an outcome of a fair and efficient system. The proper approach is to make the system fair and efficient and, if public ignorance stands in the way of public confidence, take steps adequately to demonstrate to the public that it is so."A number of initiatives have been formulated to improve community relations: "Magistrates in the Community" which deals with public relations at a local level, such as presentations to schools, colleges and community groups; the National Magistrates' Mock Trial Competition run in conjunction with the Citizenship Foundation
Citizenship Foundation
The Citizenship Foundation is an independent UK charity which aims to empower individuals to engage in the wider community through education about the law, democracy and society...
which involves schoolchildren in mock trial competitions; the Local Crime and Community Sentence project. Court open days organised by Her Majesty's Courts and Tribunals Service
Her Majesty's Courts and Tribunals Service
Her Majesty's Courts and Tribunals Service is an agency of the Ministry of Justice. It was created on 1 April 2011 by the merger of Her Majesty's Courts Service and the Tribunals Service....
are another method of engaging with the community. Projects are in place to improve public confidence in the criminal justice system (CJS) as a whole. The British Crime Survey of September 2010 reported that 61 per cent of adults thought that the CJS was fair and 42 percent thought that the CJS was effective.
The importance of local knowledge
The Auld report noted that local justice was seen as “a bridge between the public and the court system which might otherwise appear remote”. However, locality could encourage inconsistencies between areas and created a risk of magistrates knowing defendants too well. The argument that magistrates should have a good knowledge of their Local Justice AreaLocal justice areas
Local justice areas are units in England and Wales established by the Courts Act 2003, replacing and directly based on the previous petty sessions areas. They have been in existence since 2005....
is still raised today, often as a defence to court closures. The idea that magistrates should be "local" derives from the fact that magistrates are drawn from that area and, until the Courts Act 2003
Courts Act 2003
The Courts Act 2003 is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's in England and Wales...
, had to live within 15 miles of their commission area. In reality, magistrates may not have a knowledge and understanding of their area, especially the poorer parts, because most of them come from professional and managerial classes and live in affluent areas. Nevertheless, it is suggested they are likely to have a greater awareness of local events, local patterns of crime and local opinions than a professional judge from another area.
In the case of Paul v DPP (1989) The court had to decide whether a kerb crawler was ‘likely to cause a nuisance to other persons in the neighbourhood’. The defendant was convicted on the basis that the magistrates knew that kerb crawling was an issue in that residential area. On appeal Lord Justice Woolf
Harry Woolf, Baron Woolf
Harry Kenneth Woolf, Baron Woolf, PC, FBA, , born 2 May 1933, was Master of the Rolls from 1996 until 2000 and Lord Chief Justice of England and Wales from 2000 until 2005. The Constitutional Reform Act 2005 made him the first Lord Chief Justice to be President of the Courts of England and Wales...
noted that this was a case where magistrate’s local knowledge had been useful.
Cost and timeliness
The use of unpaid magistrates is cost effective, in terms of cost and timeliness, saving the tax payer from the high cost of employing full time judges. The report The Judiciary in the Magistrates' Court (2000) found that at the time the cost of using lay magistrates was £52.10 per hour compared with the cost of using a stipendiary at £61.78 an hour. In 2010, offence-to-completion time for defendants whose case was committed or sent for trial at the Crown Court was an average of 187 days. The estimated average offence-to-completion time in the magistrates’ courts for indictable/triable either-way offences was 109 days for the same period. The cost of a trial in the Magistrates' court is also much cheaper than the cost in the Crown CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
both for the government and for those defendants who pay their own legal costs. However, it should remembered that the Crown Court generally deals with more complex and lengthy cases than the magistrates' court.
Legal adviser
The issue of the legal qualifications of legal advisers has come under scrutiny in recent years.Following reforms in 1999, all legal advisers were required to be legally qualified. Any existing legal advisers under the age of 40 in 1999 were required to gain a legal qualification within 10 years. The Assistants to Justices’ Clerks Regulations 2006, in regulation 3, set out the qualifications for assistants to justices’ clerks who could be employed as clerks in court. They provided that people who have qualified as barristers or solicitors and had passed the exams for either of those professions or had been granted an exemption were qualified to be assistants to justices’ clerks which meant that they can carry out matters on behalf of the justices’ clerk. The 2006 Regulations also enabled the Lord Chancellor to make temporary appointments of people to act as clerks in court where he was satisfied that they were, in the circumstances, suitable and that no other arrangement can reasonably be made.
However, the Assistants to Justices' Clerks (Amendment) Regulations 2007 replaced regulation 3 of the 2006 Regulations. The effect was to clarify that those:
i. who were in employment as an assistant registered by the Law Society under regulation 23 of the Training Regulations 1990;
ii. who held a valid training certificate granted by a magistrates’ courts committee before 1 January 1999; or
iii. who acted as a clerk in court before 1 January 1999 and were qualified to act as such under the justices’ clerk (Qualification of Assistants) Rules 1979 (as amended) to carry out the duties of assistant clerks can act;
could act as clerks in court.
These changes have brought a greater degree of professionalism to magistrates' courts, thus helping magistrates in dealing with points of law and procedure. Furthermore, the training of magistrates has become more consistent with the involvement of the Judicial Studies Board
Judicial Studies Board
The Judicial College, formerly the Judicial Studies Board , established in 1979, is the organisation responsible for training judges in Crown, County and higher courts in England and Wales and tribunals judges in England & Wales, Scotland and Northern Ireland. This includes the training of lay...
.
Few appeals
Comparatively few appeals are made against decisions made by the Magistrates' Court, and the majority are made against sentence rather than verdict. The Judicial Statistics Annual Report (2006) showed that only 12,992 appeals were made to the Crown CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
From the Magistrates' Court. Of these only 2,020 were allowed and 3,184 resulted in a variation of sentence, out of a total of 2 million defendants dealt with in the magistrates' court. There are also very few appeals allowed because an error of law was made . This is shown by the fact that only 100 appeals were allowed by way of case stated to the Queen's Bench Divisional Court, of these only 42 were allowed. In 2008, there were only 72 appeals, on a point of law, to the Queen’s Bench Division, of which 30 were allowed.
Obliged to give reasons
The Human Rights Act 1998Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
requires magistrates to give reasons for their decisions, unlike jury verdicts in the Crown Court.
Prosecution bias
One criticism of magistrates' courts is that they have high conviction rates in comparison to jury trials in Crown Courts because, it is suggested, magistrates have a bias in favour of the prosecution. Unsurprisingly, in a 1982 study commissioned by the Home OfficeHome Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
, it was found that direct evidence from prosecution witnesses whose credibility was not challenged led to a high level of convictions. Weaknesses in the prosecution case, such as unreliable witness evidence, a lack of confessions or direct evidence against the defendant led to higher likelihood of acquittal. However, in those cases where a defendant's credibility was not demonstrably undermined, there was a conviction rate of 63 percent. In the majority of these cases, there was first-hand evidence (mainly from police witnesses) of the defendant's behaviour from which criminal intent was inferred.
Since the inauguration of the Crown Prosecution Service in 1986, the proportion of weaker prosecution cases has declined as a result of the CPS' review function which requires a "realistic prospect of conviction" before a prosecution can be commenced or continued. In 2009, the conviction rate of defendants tried in magistrates’ courts for all offences was 98% and in the Crown Court, 80%.
One contributor to Lord Justice Auld's Review of the Criminal Courts of England and Wales (2001) drew attention to the "dichotomy in people's attitudes towards the magistracy, according to whether they are considering the elective right to trial by jury in 'either-way' cases or the relative advantages of lay and professional judges in summary cases. On the former issue magistrates are often portrayed as part of the establishment, being used to deny defendants a basic human right; on the latter they are depicted as the near equivalent of a jury - the peers of people who appear before them, ordinary people with experience of the real world, bringing common sense to bear etc."
The need for magistrates to demonstrate impartiality in criminal trials was emphasised in the case of Bingham Justices ex p Jowitt (1974). A motorist was charged with exceeding the speed limit and the only evidence was contradictory, in the form of the statements of the defendant and a police officer. The defendant was found guilty and the chairman stated “My principle in such cases has always been to believe the police officer”. The conviction was quashed on appeal as the magistrates clearly demonstrated bias.
Inconsistency in sentencing
It has been demonstrated that magistrates in different regions have passed different sentences for what appear to be similar offences. The Government's White Paper, Justice for All set out differences found in criminal sentencing in the magistrates' court.- For burglary of dwellings in TeessideTeessideTeesside is the name given to the conurbation in the north east of England made up of the towns of Middlesbrough, Stockton-on-Tees, Redcar, Billingham and surrounding settlements near the River Tees. It was also the name of a local government district between 1968 and 1974—the County Borough of...
, 20 percent of offenders were sentenced to an immediate custodial sentence, compared with 41 one percent in BirminghamBirminghamBirmingham is a city and metropolitan borough in the West Midlands of England. It is the most populous British city outside the capital London, with a population of 1,036,900 , and lies at the heart of the West Midlands conurbation, the second most populous urban area in the United Kingdom with a...
; 38 percent of burglars in CardiffCardiffCardiff is the capital, largest city and most populous county of Wales and the 10th largest city in the United Kingdom. The city is Wales' chief commercial centre, the base for most national cultural and sporting institutions, the Welsh national media, and the seat of the National Assembly for...
Magistrates' Court received community sentences compared with 66 percent in LeicesterLeicesterLeicester is a city and unitary authority in the East Midlands of England, and the county town of Leicestershire. The city lies on the River Soar and at the edge of the National Forest...
. - For driving while disqualified, the percentage of offenders sentenced to custody ranged from 21 percent in Neath Port Talbot (South Wales) to 77 percent in Mid North Essex.
- For receiving stolen goods, 3.5 percent of offenders sentenced in ReadingReading, BerkshireReading is a large town and unitary authority area in England. It is located in the Thames Valley at the confluence of the River Thames and River Kennet, and on both the Great Western Main Line railway and the M4 motorway, some west of London....
Magistrates' Court received custodial sentences compared with 48 percent in GreenwichGreenwichGreenwich is a district of south London, England, located in the London Borough of Greenwich.Greenwich is best known for its maritime history and for giving its name to the Greenwich Meridian and Greenwich Mean Time...
and WoolwichWoolwichWoolwich is a district in south London, England, located in the London Borough of Greenwich. The area is identified in the London Plan as one of 35 major centres in Greater London.Woolwich formed part of Kent until 1889 when the County of London was created...
and 39 percent in Camberwell GreenCamberwell GreenCamberwell Green is a small area of common land in Camberwell, South London. It lies at the intersection of Camberwell Road and Camberwell New Road/Camberwell Church Street. At the North-East of the green is Camberwell Magistrate's Court, and at the North West is a home for the elderly...
.
Statistics published in 2004 showed no improvement. For example, magistrates in Sunderland discharged 36.4 percent of all defendants in comparison to Birmingham which discharged 9.2 percent of all defendants. In Newcastle magistrates sentenced only 7.2 percent to an immediate custodial sentence whereas in Hillingdon this figure was 32 percent.
The Prison Reform Trust Report on Sentencing (2009–2010) highlighted a number of issues including the following:
- Youth courts in Merthyr Tydfil issued custodial terms for just over 20 percent of all sentences over the period, the highest in England and Wales, and 10 times the equivalent rate in Newcastle.
- Case hardening: It can be argued Magistrates are susceptible to finding over time that circumstances are not shocking and passing sentences becomes less of a big issue so leading to a more cynical approach.
However, when the statistics are put in context, they may not appear as severe as they might at first glance. Only 4 percent of offenders dealt with by magistrates receive a prison sentence. Furthermore, in an effort to bring a greater degree of consistency to sentencing, national guidelines have been issued to magistrates and updated on a regular basis. These "Sentencing Guidelines" are issued under the aegis of the Sentencing Council which aims to improve sentencing practice in the criminal courts.
Reliance on the legal adviser
The lack of legal knowledge of magistrates should be offset by the fact that a legally qualified clerk is available. It is suggested that, in some courts, magistrates place too much reliance on the clerk, to the extent that a few cases have been quashed on appeal. For example, in R v Birmingham Magistrates ex parte Ahmed [1995], the defendant was accused of deception and handling. When the magistrates retired to consider their verdict, the clerk joined them. Since there was no point of law arising, this created a suspicion that he was taking part in deciding the verdict, and therefore the verdict was quashed. In the case of R v Eccles Justices, ex parte Farrelly (1992) the Queen's Bench Divisional CourtHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
quashed convictions because the clerk had apparently assisted and participated in the decision making process. In R v Sussex Justices, ex parte McCarthy (1924), a motorcyclist was involved in a road accident which resulted in his prosecution before a magistrates' court for dangerous driving
Dangerous driving
Dangerous driving is a statutory offence in England and Wales and Scotland and Northern Ireland. It is also a term of art used in the definition of the offence of causing death by dangerous driving...
. Unknown to the defendant and his solicitor, the clerk was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the magistrates, who returned to convict the defendant. On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The magistrates swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.
See also
- Lay judgeLay judgeA lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009....
- Magistrates' Courts Act 1980Magistrates' Courts Act 1980The Magistrates' Courts Act 1980 is an Act of the Parliament of the United Kingdom. It codifies the procedures applicable in magistrates' courts in the United Kingdom and largely replaces the Magistrates' Courts Act 1952...
- Courts of England and WalesCourts of England and WalesHer Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
- Judicial titles in England and WalesJudicial titles in England and Wales-Lords of Appeal in Ordinary:-Heads of Division and Court of Appeal:-Lords Justices of Appeal:-High Court judges:-High Court masters and registrars:-Other judges:-Historic judicial titles:-References:* * * , Newcastle Law School...
- Judiciary of the United KingdomJudiciary of the United KingdomThe Judiciary of the United Kingdom is not a single body. Each of the separate legal systems in England and Wales, Northern Ireland and Scotland have their own judiciary....