House of Lords - Explanatory Note
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Clause 32: Designated officers and magistrates' courts

107.     Clause 32 allows the Lord Chancellor to designate members of staff of the courts agency in order to perform certain statutory functions in relation to the business of the magistrates' courts. These functions are currently assigned to justices' chief executives and are administrative in nature. Schedule 6 makes appropriate consequential amendments to other Acts of Parliament.

Application of receipts of magistrates' courts etc.

Clause 33: Application of receipts of designated officers

Clause 34: Limits to requirements about application of receipts

Clause 35: Regulations about payments, accounting and banking by designated officers

108.     Clauses 33 and 34 make the same provision as section 60 of the JPA 1997, amended to reflect that the post of Justices' Chief Executive (JCE) will cease to exist. The clauses instead make reference to sums received by a designated officer. Clause 35 contains provisions similar to section 60A of the JPA and will allow the Lord Chancellor, with the concurrence of the Treasury, to make regulations about the payment, accounting for and banking of money paid to designated officers in the magistrates' courts.

Miscellaneous

Clause 36: Disqualification of justices who are members of local authorities

109.     This clause makes the same provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority.

Clause 37: Effect of Act of Settlement on existing justices of the peace

110.     CLAUSE 36 ALLOWS THOSE JUSTICES OF THE PEACE WHO WERE APPOINTED BEFORE 31ST JANUARY 2002 BUT WHOSE POSITION WAS RENDERED INVALID FOR HAVING CONTRAVENED THE ACT OF SETTLEMENT 1700, TO RESUME THEIR ROLE AS MAGISTRATES. THIS PROVISION DOES NOT APPLY FOR SUBSEQUENT APPOINTMENTS OR FUTURE ONES. THEIR ACTIONS AS MAGISTRATES PRIOR TO THIS LEGISLATION ARE NOT INVALIDATED.PART 3: MAGISTRATES' COURTS

SUMMARY

111.     This Part makes a number of changes to the jurisdiction and procedures of magistrates' courts, designed to increase flexibility and efficiency in the disposal of the business of the courts.

BACKGROUND

Criminal jurisdiction and procedure

112.     Sections 1 and 2 of the MCA 1980 are the basic jurisdictional provisions for criminal cases. The two essential propositions are that justices have jurisdiction to issue summonses and warrants in respect of offences committed in their commission area and offences committed by people who live in their commission area (section 1), and that they have jurisdiction to try offences committed in their commission area (section 2). These provisions are altered to reflect the fact that under the Bill lay magistrates will have national jurisdiction. The result of this will be that any justice will have jurisdiction to issue a summons or warrant, and any magistrates' court will have jurisdiction to try offences, regardless of where the offence was committed.

Transfer of criminal proceedings

113.     Section 3B of the MCA 1980 (as amended by the AJA 1999) enables either the prosecution or the defence to apply to have a summary case transferred to a magistrates' court in another commission area (although this has not yet been brought into operation). This Bill goes further and allows the court, either at the motion of one of the parties or at its own volition, to transfer a criminal case at any stage in the proceedings.

Civil jurisdiction and procedure

114.     Section 52 of the Magistrates' Courts Act 1980 limits the jurisdiction of justices to deal with civil complaints to anything done (or neglected to be done) within the commission area for which the justice acts. This Bill amends this provision to reflect lay magistrates being given a national jurisdiction.

Transfer of civil proceedings (other than family proceedings)

115.     There are presently no provisions that allow the transfer of civil proceedings from one magistrates' court to another. This Bill introduces such provisions to match the provisions for criminal cases. There are already detailed provisions allowing the transfer of family proceedings between magistrates' courts and also to the county courts and the High Court. This Bill makes no changes to these provisions.

Rulings at pre-trial hearings

116.     These provisions allow for binding rulings at to be made at pre-trial hearings in criminal cases that are to be heard in the magistrates' courts. The power will be available following a not guilty plea up to the commencement of the trial and extends to issues of law and admissibility of evidence.

117.     Currently, a number of different pre-trial hearings may take place in the Crown Court and magistrates' courts. In the Crown Court the Criminal Procedure and Investigations Act 1996 (CPIA 1996), ss.39-43, provide for binding rulings on matters of law and admissibility of evidence.

118.     The magistrates' courts have a number of their own pre-trial hearings under the current "Narey" arrangements. Where a guilty plea is anticipated, an 'Early First Hearing' (EFH) is scheduled. 'Early Administrative Hearings' (EAH) handle non-guilty pleas. In cases where the defendant is charged with an offence triable either way, magistrates hearing the case under 'initial procedure' will take a plea before determining venue. Following a not-guilty indication, magistrates may then determine mode of trial (s.17A MCA 1980). Where a case is to be tried summarily, a date for a pre-trial review is set, wherever it is deemed necessary. Pre-trial reviews are intended to assist the court in assessing the parties' readiness for trial. However, practices do differ across the country. Magistrates sitting at pre-trial hearings may make directions or recommendations as to appropriate preparation or conduct of the case. Such a direction may be noted on the court log, but would not bind any future magistrates hearing the case, although the next bench might take the direction in to account in making any decision.

119.     The proposed power is, intended to assist in ensuring more efficient preparation of cases for trial in the magistrates' courts, as highlighted and discussed in the Auld Review. It will bring the powers of magistrates and judges in pre-trial hearings heard in the magistrates' courts into line with those of the Crown Court. This is desirable given the move towards integration of the criminal courts.

Family proceedings courts and youth courts

120.     Family proceedings and criminal cases with youth defendants are specialist jurisdictions, for which a magistrate must have a particular authorisation. The current authorisation system depends on local "panels", membership of which is based on Commission Areas, and which are elected in most areas of the country. The Bill provides for a personal authorisation system to replace panel membership, and a rule-making power allowing the Lord Chancellor to propose consistent national rules as to how authorisation will work. This is consistent with the abolition of Commission Areas, and the extension of a national jurisdiction to magistrates.

COMMENTARY ON CLAUSES: PART 3

Criminal jurisdiction and procedure

Clause 38: Summons or warrant for suspected offender

Clause 39: Trial of summary offences

121.     Clauses 38 and 39 change the basic jurisdictional provisions on issuing process and dealing with charges, set out in sections 1 and 2 of the MCA 1980. Clause 38 will allow any justice to issue a summons requiring a person to appear before a magistrates' court or a warrant to arrest a person and bring him before a magistrates' court. In the case of a summons, the summons will state which "court" the person is to appear before. The prosecutor will decide the court in accordance with the directions given by the Lord Chancellor with the concurrence of the Lord Chief Justice, issued under clause 25. In the case of a warrant, the person may be brought to whichever court the person arresting the accused considers convenient

122.     In addition to giving lay magistrates national jurisdiction in respect of the great majority of criminal cases, the policy of flexibility in the deployment of magistrates is to be implemented by removing many of the statutory provisions limiting their jurisdiction to the particular petty sessions area with which the case has a connection. Nevertheless, the Lord Chancellor's directions will frequently retain the possibility of that local link. There will also be situations, notably in cases which have already begun, in which the local link will continue to be a requirement.

Clause 40: Power to make rulings at pre-trial hearings

Schedule 3:Pre-trial hearings in magistrates' courts

123.     This clause provides the power for judges and magistrates to make binding rulings and directions at pre-trial hearings in criminal cases that are to be tried summarily in the magistrates' courts, where it is in the interests of justice to do so. It will only be possible to make binding rulings in the magistrates' courts when considering either way cases, once a decision has been made to try them summarily.

124.     Schedule 3 inserts a new s.8A, "Power to make rulings at pre-trial hearing" and s.8B, "Effect of rulings at pre-trial hearing" in to the MCA 1980. The new sections largely follow ss.40 and 41 of the CPIA 1996, which make provision relating to the power to make binding rulings in pre-trial hearings in the Crown Court.

125.     s.8A(3) makes clear that the power to make a pre-trial ruling is available in all magistrates' court so youth courts, therefore, are included. The effect of this subsection is that justices of the peace and District Judges (Magistrates' Courts) will be able to make binding rulings, but so too will other judges enabled to sit in the magistrates' courts including High Court Judges, Circuit Judges and Recorders, together with their deputies. However, s.8A (9)(b) specifically excludes justices' clerks and their assistants.

126.     s.8A (5) provides guidance regarding what the court must do if the accused is unrepresented when a magistrates' court is considering making a binding ruling. The subsection ensures that before it can make a binding ruling the defendant has the proper opportunity to be legally represented at public expense if they so wish and that they are fully aware of the charge.

127.     s.8B (1) outlines the effect of binding rulings at pre-trial hearings. A ruling made under s.8a is binding from the moment it is made until the case against each defendant(s) is disposed of by way of acquittal, conviction or by the prosecutor.

128.     There is no provision for a right of appeal against a ruling. s.8B (3) however, refers to the power of the magistrates' court to discharge or vary a binding ruling if there has been a material change of circumstances since the ruling was made or if a previous application has been made, since the last application.

129.     s.8B (6) confirms a binding ruling made in the magistrates' court is discharged where an offence triable either way is initially intended to be tried summarily but is subsequently sent to the Crown Court for trial (e.g. in situations covered by s.25 (2) and (6) MCA 1980), the magistrates' court when sitting as examining justices is not bound by the previous ruling.

130.     In the same way as in the Crown Court, provision is made for restrictions on reporting and the related offences (s.8C and s.8D).

Clause 41: Power to transfer criminal cases

131.     Clause 41 gives magistrates' courts the power to transfer criminal cases to other magistrates' courts at any stage in the proceedings, whether on the application of a party or of their own motion. The parties would have a right to be heard in the latter case. There is to be no appeal from a decision on transfer. In deciding whether to transfer a case, the court or justices' clerk will take account of the directions made by the Lord Chancellor under clause 25.

Civil jurisdiction and procedure

Clause 42: Jurisdiction to issue summons and deal with complaints

132.     Clause 42 amends sections 51 and 52 of the MCA 1980. This makes a similar change to the criminal jurisdiction of magistrates' courts so that a complaint can be made to any justice of the peace. As with criminal proceedings, the justice may issue a summons directed to the person named therein to appear before a magistrates' court named in the summons.

Clause 43: Power to transfer civil proceedings (other than family proceedings)

133.     Clause 43 inserts new section 57A into the MCA 1980. This will give magistrates' courts the power to transfer civil cases to other magistrates' courts at any stage of proceedings. This mirrors the power in clause 40 for criminal cases. A similar provision is not considered necessary for family proceedings as the power to transfer such cases already exists.

     Family proceedings courts and youth courts

Clause 44: Family proceedings courts

134.     This clause sets out the framework whereby lay magistrates and District Judges (Magistrates' Courts) are to be authorised to hear family proceedings. It also makes such provision for higher judiciary, as under this Bill they will have the ability to exercise the justices' jurisdiction, although there is no current expectation that there will be widespread use of these powers in family proceedings.

135.     Currently, in areas apart from Greater London, lay magistrates are voted on to a specialist "panel" by other members of the Bench.

136.     Under this clause, the "panel" system would be abolished. The Lord Chancellor will have to authorise a justice of the peace before he or she can sit as a member of a family proceedings court. These personal authorisations will be valid throughout England and Wales. The Lord Chancellor will have power to make rules regarding (a) the allocation and removal of authorisations for justices to sit as members of family proceedings courts (b) the appointment of chairmen of family proceedings court and (c) the composition of such family proceedings courts.

137.     It is envisaged that new rules, which provide for a more transparent selection procedure, will be published for comment. Because of the sensitive nature of family cases, and the specific knowledge and understanding that is required, these rules would help to ensure that only trained and suitable magistrates sit in family proceedings.

Clause 45: Youth courts

138.     This clause sets out the framework whereby lay magistrates and District Judges (Magistrates' Court) are to be authorised to hear youth cases. It also makes provision for circuit judges and recorders to hear these cases without particular authorisation, in consequence of the proposed extension of their jurisdiction to include that of a District Judge (Magistrates' Courts).

139.     Currently, in areas other than Greater London, lay magistrates are voted on to a specialist "panel" by other members of the Bench.

140.     Under this clause, the "panel" system would be abolished. The Lord Chancellor will have to authorise a justice of the peace or District Judge (Magistrates' Courts) before he or she can sit as a member of a youth court. These personal authorisations will be valid throughout England and Wales. The Lord Chancellor will have power to make rules regarding (a) the allocation and removal of authorisations for justices and District Judges (Magistrates' Courts) to sit as members of youth courts (b) the appointment of chairmen of youth courts and (c) the composition of such youth courts.

141.     It is envisaged that new rules, which provide for a more transparent selection procedure, will be published for comment. Because of the often sensitive nature of youth cases, and the specific knowledge and understanding that is required, these rules would help to ensure that only trained and suitable magistrates (or District Judges (Magistrates' Courts)) sit on youth courts.

142.     District Judges (Magistrates' Courts) are in practice required to be "ticketed" for this work; that requirement is being made explicit in statute to reflect the increasing acceptance that the youth court is a specialist jurisdiction

PART 4: COURT SECURITY

Summary

143.     Part 4 of the Bill contains the legislative proposals deemed necessary to improve the provision of security in court buildings. It contains provisions to ensure that designated "court security officers" will have the same powers in all courts. It specifies certain powers of search, exclusion, removal and restraint that security personnel will be able to exercise in the execution of their duty. These powers are to be exercised subject to the limitations prescribed in Part 4. Court security officers will also have a power to temporarily retain articles they reasonably believe ought to be surrendered because possession of the article may jeopardise the maintenance of order in the court building, or risk the safety of a person in that building or because the article may be evidence of or in relation to an offence. This power is underscored by a power to seize an article where a person refuses the officer's request for surrender of the article. This extends the current powers of court security officers in the magistrates' courts who may only request the surrender of an article in limited circumstances and cannot seize articles. To minimise the interference with a persons property there are limits on how long an article may be retained and there will be provision to ensure that a person from whom an article is taken is adequately informed, in particular, that if the article is to be treated as unclaimed then it will be disposed of.

     Background

144.     The Bill proposes a new court security regime for any place where court business may be conducted by the Supreme Court, county courts and magistrates' courts and to which the public have access. The impetus for this part of the Bill arises primarily from the Auld Review, which noted the gradual withdrawal of a police presence in the courts and the disparity of security provision and security powers between the magistrates' courts and the Crown Court. Against the backdrop of intimidation of witnesses and violence or threat of violence against the judiciary and court staff, the Review found that "the overall picture is disturbing".

145.     Currently court security is provided in the magistrates' courts, the Crown Court, and some county courts, the High Court, Court of Appeal and amongst some tribunals. However the administration of court security is regulated differently between these courts.

146.     Only in the magistrates' courts is there statutory provision for court security where there is a mix of in house officers employed by the Magistrates' Courts Committees, and contract officers who are procured through service contracts with private agencies. The Criminal Justice Act 1991, Part IV (CJA 1991) sets out the statutory provision dealing with court security in the magistrates' courts in relation to the provision of these officers, their functions and powers (sections 76 - 78).

147.     There are currently no legislative provisions for security in the remaining courts. One of the key policy intentions behind the legislation is to ensure that guards employed in all courts enjoy the same powers and responsibilities.

148.     In developing the proposals into the clauses contained in Part 4, the Department has noted the various debates in Parliament on the Police Reform Act 2002 (PRA 2002). Particular comments and concerns were raised about empowering civilian forces with 'police' powers of fine and detention and the provisions of existing legislation and common law (particularly regarding the power of arrest). The final proposals are designed to provide clear, additional powers to combat low level disorder in court buildings, and thereby help increase public safety while on court premises and public confidence in the justice system. No new or statutory powers of arrest are conferred on court security officers.

149.     Court security officers will, like all citizens, have power to make an arrest under section 24 of the Police and Criminal Evidence Act 1984 and the common law. Section 24 provides that "any person" may arrest without a warrant anyone who is committing or who he has reasonable grounds to suspect is committing an arrestable offence. Criminal Law Act 1967, section 3 confers a power on a person to use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders.

COMMENTARY ON CLAUSES: PART 4

Clause 46: Court security officers

150.     This clause establishes that every court security officer must be so designated by the Lord Chancellor. It is envisaged that there will be a period of training. Subsection (2) enables the Lord Chancellor to make provision for training by regulations and to specify the conditions which must be met before a person can be designated as a court security officer by him. It makes it clear that court security officers must be identifiable as such.

Clause 47: Powers of search

151.     This clause gives a court security officer power to search a person on entry into, or who is already in a court building and also any article in such a person's possession. This power is in line with the existing powers enjoyed by court security officers in the magistrates' courts under section 77 of the CJA 1991 and court security officers under section 80(1)(c) of the Justice (Northern Ireland) Act 2002.

152.     Court security officers may require only removal of a coat, jacket, gloves or hat. A search may only take place in a "court building". This will include places such as Probate sub registries and offices where members of the public are interviewed in connection with probate matters.

Clause 48: Powers to exclude, remove or restrain persons

153.     This clause gives court security officers powers to exclude, remove or restrain persons from a court building. These powers are limited to where a person has refused to submit to a search, or has refused the officer's request for surrender of an article where the officer reasonably believes that the article ought to be surrendered on the grounds that it may jeopardise the maintenance of order in the court building, may risk the safety of a person in that building, or because the article may be evidence of or in relation to an offence. The power to restrain a person is limited to certain purposes, that is to maintain order, secure persons' safety in the court building and to enable court business to be conducted without disruption. Subsection (4) provides that a court security officer may also remove any person from a courtroom at the request of a judge or a justice of the peace.

154.     Subsection (5) provides that the powers to exclude, remove and restrain persons include the power to use reasonable force.

Clause 49: Surrender and seizure of articles

155.     This clause requires a court security officer to request the surrender of any article that the officer reasonably believes ought to be surrendered. Specific grounds for surrender ad seizure are laid out in subsection (3)(a-c); because possession of the article may jeopardise the maintenance of order in the court building, or risk may the safety of a person in that building or because the article may be evidence of or in relation to an offence. This extends the current powers of court security officers in the magistrates' courts, who may only request the surrender of any article which the officer reasonably believes may jeopardise the maintenance of order in the court house under CJA 1991, section 77(1)(b). A further extension is the power for a court security officer to seize an article where the officer has requested its surrender but the request has been refused.

Clause50: Powers to retain articles surrendered or seized

156.     This clause introduces another new statutory power for court security officers, namely to retain an article surrendered or seized until the person from whom it was taken is leaving the court building. However, where the officer reasonably believes that the article may be evidence or in relation to an offence, he may retain it until the person from whom it was taken is leaving the court building, or, for a limited period of up to 24 hours from the time the article was surrendered or seized, to enable the officer to draw it to the attention of a police constable (subsection (2)(b)).

Clause 51: Regulations about retention of articles

157.     In conjunction with court security officers' powers to retain an article surrendered or seized under clause 50 it is important that any items so retained are suitably recorded and the person from whom the article is taken is provided with adequate information about the terms of retention and notice that when an article becomes unclaimed that it will be disposed of. This clause provides the Lord Chancellor with a power to make regulations which include provision of written information about the powers of retention; the keeping of records; the period of retention; and the disposal of articles after this period. This clause defines an unclaimed article as one that has been retained and which a person is entitled to have returned to him but which he has not requested and which has not been returned.

 
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Prepared: 29 November 2002