House of Lords - Explanatory Note
Courts Bill [HL] - continued          House of Lords

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Clause 55: Assaulting and obstructing court security officers

158.     This clause provides that assaulting a court security officer in the execution of his duty is an offence is an offence punishable on summary conviction with a fine not exceeding level 5 on the standard scale or imprisonment for up to six months. It also provides that resisting or wilfully obstructing a court security officer in the execution of his duty is an offence punishable on summary conviction with a fine not exceeding level 3 on the standard scale.

PART 5: INSPECTORS OF COURT ADMINISTRATION

Summary

159.     This part contains provisions for the establishment of a new inspectorate to be known as Her Majesty's Inspectorate of Courts Administration. It will replace and build upon the work of Her Majesty's Magistrates' Courts Service Inspectorate. The new inspectorate will have the power to inspect the system that supports the carrying on of the business of all magistrates' courts, county courts and the Crown Court. The same inspectorate will continue to report on the performance by the Children and Family Court Advisory and Support Service (CAFCASS) and its officers of their functions.

Background

160.     THE AULD REVIEW SAID THAT HM MAGISTRATES' COURTS SERVICE INSPECTORATE HAD DONE MUCH TO IMPROVE THE PERFORMANCE OF MCCS IN THE ADMINISTRATION AND MANAGEMENT OF MAGISTRATES' COURTS, BUT NOTED THAT THERE WAS, HOWEVER, NO SUCH EQUIVALENT BODY FOR THE COURT SERVICE. THE REVIEW RECOMMENDED THAT "IF A UNIFIED CRIMINAL COURT AND SINGLE SUPPORTING ADMINISTRATION WERE TO BE ESTABLISHED, THEN AN INDEPENDENT INSPECTORATE SHOULD BE SET UP TO INSPECT THE NEW UNIFIED ORGANISATION. THIS NEW INSPECTORATE SHOULD ALSO REPORT TO THE LORD CHANCELLOR".COMMENTARY ON CLAUSES: PART 5

Clause 53: Inspectors of courts administration etc

161.     This clause establishes a new independent inspectorate for court administration that will collectively be known as Her Majesty's Inspectorate of Courts Administration. Inspectors will be appointed by the Lord Chancellor and one of these will be appointed by the Lord Chancellor as Her Majesty's Chief Inspector of Court Administration. The Lord Chancellor will meet the costs, including payments in respect of remuneration and allowances of the Inspectorate. Currently, there are inspection arrangements for the administration of magistrates' courts and CAFCASS, but not in relation to any other courts (JPA 1997, sections 62-63)

Clause 54: Functions of inspectors

162.     This clause defines the functions of the inspectors. Inspectors will have the duty to inspect and report on the system and services which support the Crown Court, county courts and magistrates' courts. They will continue to report on the performance of the Children and Family Court Advisory and Support Service (CAFCASS) functions. Inspectors will also be required to discharge such other functions in connection with those courts and the functions of CAFCASS as may be specified by the Lord Chancellor after consultation with the Chief Inspector. The Lord Chancellor will be able to amend, by order, the list of courts listed in this clause.

Clause 55: Functions of Chief Inspector

163.     This clause defines the functions of the Chief Inspector.

164.     The Chief Inspector will be required to submit an annual report to the Lord Chancellor on the work of the Inspectorate for that year, which must be laid before Parliament. The Lord Chancellor will have the power to give directions as to the information to be given in the report, the form in which it is to be given and the time by which the report is to be made. The Chief Inspector must also report to the Lord Chancellor on any matter in connection with the courts mentioned at clause 54 and the functions of CAFCASS. The Chief Inspector will have discretion to designate an inspector to undertake his duties during any period when he is absent or unable to act.

Clause 56: Rights of entry and inspection

165.     Clause 56 provides that the Inspectors will have a right of entry to any workplace premises occupied by those providing support systems or services to the relevant courts or CAFCASS. They will have the power to inspect and take copies of any relevant records, and access to any relevant computer held records. Inspectors will not however have access to hearings held in private or to private deliberations, and must exercise their rights to enter premises and to inspect and have access to records at reasonable times only.

PART 6: JUDGES

SUMMARY

166.     Part 6 makes provisions about certain judicial titles and includes measures to provide greater flexibility in the deployment of judicial resources.

BACKGROUND

Head and deputy head of civil justice,

167.     The Bill establishes the positions of Head and Deputy Head of Civil Justice as statutory titles.

168.     The creation of the post of Head of Civil Justice was recommended in Lord Woolf's report on 'Access to Justice' (1996). The post of Deputy Head of Civil Justice was created for the holder, Lord Justice May, in recognition of the work he has undertaken, in addition to his judicial duties, in assisting the Master of the Rolls with his additional duties as Head of Civil Justice. The above posts are created in the Bill on the basis that the Lord Chancellor must appoint a Head of Civil Justice, but that the power to appoint a Deputy Head is a permissive one.

Judicial titles

169.     These clauses deal with the modernisation of judicial titles in order to change a presumption of male gender for Court of Appeal judges and also allow for future changes by order of the Lord Chancellor after consultation, for example, to change other presumptions of male gender or to aid court users' understanding of the functions carried out by the post holders.

Judicial deployment

170.     As part of the policy of greater flexibility in judicial deployment, it is proposed that High Court judges (and deputies), Circuit judges (and deputies) and Recorders should have the same powers as magistrates in criminal and family cases. It is not expected that extensive use would be made of the provision, but it would make it possible, for example, for a Circuit judge in the Crown Court to deal with a summary offence without the case having to go back to a magistrates' court. At present, certain summary offences can be included in an indictment concerned with a more serious charge. If the person is convicted on the indictment, the Crown Court may sentence him if he pleads guilty to the summary offence, but if he pleads not guilty the powers of the Crown Court cease. It is intended in such cases that the judge of the Crown Court should be able to deal with the summary offences then and there as a magistrate, following magistrates' courts' procedure.

171.     District Judges (Magistrates' Courts) are to be capable of exercising some powers of a Crown Court judge. Schedule 4 sets out a number of interlocutory proceedings and rulings that it is intend could be performed by District Judges before a case is ready to go before a Crown Court judge.

COMMENTARY ON CLAUSES: PART 6

Offices, titles, styles etc.

Clause 57: Head and Deputy Head of Civil Justice

172.     This clause requires the Lord Chancellor to appoint a Head of Civil Justice, and give power to appoint a deputy. It has been recognised that there is an ongoing need for a Head of Civil Justice to provide consistency and an overview. Although, it is accepted that the level of work may decrease as the Woolf reforms continue to settle down and, therefore, the need for support from a deputy may decline.

173.     It is intended that the Lord Chancellor should have the widest possible choice when appointing the Head of Civil Justice and for that reason those eligible for appointment should be the Master of the Rolls, the Vice-Chancellor and any ordinary judge of the Court of Appeal.

174.     The Head of Civil Justice and the Deputy Head of Civil Justice, where there is one, will be ex officio members of the Civil Procedure Rule Committee, but no other specific functions, duties or powers to be attached to these posts are to be provided in statute.

175.     If the Master of the Rolls was neither the Head or Deputy Head of Civil Justice, he would still be an ex officio member of the Rule Committee. This clause will also assist with recruitment of relevant people for the committee.

Clause 58: Ordinary judges of the Court of Appeal

176.     This clause deals with a specific problem: section 2(3) of the SCA 1981 currently requires an ordinary judge of the Court of Appeal to be styled a "Lord" Justice of Appeal whatever his or her gender. This clause removes this anomaly.

Clause 59: Power to alter judicial titles

177.     Although clause 58 amends one title, Lord Justice of Appeal, clause 59 provides the Lord Chancellor with a power to amend the other titles listed (which encompasses all of the judicial titles in the Supreme Court and county courts) in the future to avoid similar problems arising. Some titles may need modernisation, to make them more easily understandable to court users. The acceptance commanded by titles containing a presumption of male gender might also change. Such orders may only be made after consultation with the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor.

     Flexibility in deployment of judicial resources

Clause 60: District Judges (Magistrates' Courts) as Crown Court judges etc.

178.     Unification of the administration of the criminal courts should provide scope for rationalising the work of the magistrates' and Crown Courts, enabling both to do some of the work currently reserved to each. This will be further eased by the revised allocation of cases being provided by this sessions Criminal Justice Bill. For example, District Judges could deal with and make orders in relation both to allocation and to other interlocutory issues in cases reserved to the Crown Court.

Clause 61: Judges having powers of District Judges (Magistrates' Courts)

179.     As with clause 60 it will be desirable that a Crown Court judge be able to make orders and to sentence in relation to cases normally reserved to magistrates' courts when disposing of related cases in the Crown Court.

180.     As part of the policy of greater flexibility in judicial deployment, it is proposed that High Court judges, Circuit judges and Recorders should be able to sit as magistrates when exercising their criminal and family jurisdiction. The same is to apply to deputy High Court judges and deputy Circuit judges. It is not expected that extensive use would be made of the provision, but it would be possible for a Circuit judge in the Crown Court to deal with a summary offence without the case having to go back to a magistrates' court. At present, certain summary offences can be included in an indictment. If the person is convicted on the indictment, the Crown Court may sentence him if he pleads guilty to the summary offence, but if he pleads not guilty the powers of the Crown Court cease. It is intended in such cases that the judge of the Crown Court should be able to deal with the summary offences then and there as a magistrate. He would follow magistrates' courts' procedure.

Clause 62: Removal of restriction on Circuit judges sitting on certain appeals

182.     This clause provides for the repeal of section 56A of the SCA 1981 (as inserted by section 52(8) of the Criminal Justice and Public Order Act 1994). Repeal will enable the selected Circuit judges who sit in the Criminal Division of the Court of Appeal to hear or determine any appeal against either a conviction before a Judge of the High Court or a sentence passed by a Judge of the High Court.

PART 7: PROCEDURE RULES AND PRACTICE DIRECTIONS

SUMMARY

183.     Part 7 of the Bill contains provisions to bring about closer integration between the magistrates' courts, the Crown Court and the Court of Appeal, Criminal Division, each of which is described as a "criminal court" when exercising its criminal jurisdiction. These clauses provide for the establishment of a Criminal Procedure Rule Committee (CrimPRC) and enables the Lord Chief Justice, with the concurrence of the Lord Chancellor, to make directions governing the practice of the criminal courts. Provisions in this section also create the Family Procedure Rule Committee (FPRC), and allow the President of the Family Division to issue practice directions in her own name, with the concurrence of the Lord Chancellor, which are binding on the magistrates' courts and county courts when exercising their family jurisdiction.

BACKGROUND

The criminal courts

184.     The Government recognised in the White Paper, Justice for All, that the benefits Sir Robin Auld identified from a fully unified criminal court could be realised through closer alignment of the criminal courts. This could be achieved without a complete re-ordering of the courts system or the introduction of an "intermediate tier".

185.     The White Paper announced that the Government would legislate to bring the magistrates' courts and the Crown Court closer together and that these courts, when exercising their criminal jurisdiction, would be known as "the criminal courts". This part of the Bill addresses this change.

     Practice directions

186.     The Heads of Division (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor) have power under the High Court's inherent jurisdiction to make directions as to practice and procedure. Section 74A of the County Courts Act (CCA 1984) gives the Lord Chancellor overall control over practice directions to be followed in county courts. He, and any person authorised by him, may make directions as to the practice and procedure of county courts. But there is no statutory provision on practice directions for magistrates' courts. This Bill will allow the Lord Chief Justice, with the concurrence of the Lord Chancellor, to make directions as to the practice and procedure of the criminal courts. It will also provide statutory authority for the President of the Family Division, with the concurrence of the Lord Chancellor, to be able to issue practice directions in her own name which are binding on the magistrates' courts and county courts when hearing family proceedings.

Criminal Procedure Rule Committee

187.     The creation of the Criminal Procedure Rule Committee (CrimPRC) will establish one forum for the development of rules to determine the practices and procedures to be used in all criminal courts in England and Wales.

188.     There are currently two Committees with different purposes and differing powers - the Magistrates' Courts' Rule Committee (under s144 of the MCA 1980) and the Crown Court Rule Committee (under ss84 and 86 of the SCA 1981). They each deal with rules concerning criminal and civil business. Neither Committee has over-arching responsibility for ensuring consistency across the courts. They rarely meet, usually working via correspondence.

189.     The CrimPRC will take on responsibilities currently exercised by the Magistrates' Courts Rule Committee and the Crown Court Rule Committee, insofar as they relate to rules of criminal practice and procedure.

Family Procedure Rules and Directions

190.     The Auld Review did not address directly the potential implications for the family jurisdiction of any reorganisation of the criminal courts. However, it is inevitable that any alterations to the criminal jurisdiction will impact on the family jurisdiction as the administration, judiciary, court staff and estate are closely inter-related. Relevant proposals were included in the White Paper.

191.     These clauses closely mirror the changes that are being proposed in relation to both criminal and civil rules of court. The aim of the clauses is to ensure that there is clarity and consistency of approach, and common standards, across the whole of the family jurisdiction.

Civil Procedure Rule Committee

192.     The Bill will provide for changes to be made to the composition of the Civil Procedure Rule Committee (Civil PRC); and for the Lord Chancellor to alter the rules made by the Committee.

193.     The changes to the composition of the Civil PRC are to reflect the new statutory basis for the posts of Head and Deputy Head of Civil Justice. This will allow greater flexibility in the senior judicial membership of the Committee, and to ensure that the Committee has members with experience of the trial process at each level of the civil justice system.

194.     There are to be changes to the lay membership of the committee to allow for two members with experience in and knowledge of consumer affairs, or the lay advice sector, or both, rather than the current requirement of one from each. This reflects the fact that experience has shown difficulty in finding suitable members to meet the requirements. The Lord Chancellor is also to have the power to amend the composition of the Committee after consultation with the Master of the Rolls, Head of Civil Justice and the Deputy Head of Civil Justice (when appointed).

195.     The Lord Chancellor is to have the power to alter the rules made by the Committee after consultation with the Committee. The power to alter rules is not a new power, but is a power that is being restored. Prior to the creation of the Civil PRC the Supreme Court Rule Committee made rules for the Supreme Court and these required the agreement of the Lord Chancellor. The Lord Chancellor had the power to allow, disallow or alter rules made by the County Courts Rule Committee. This power dates back to at least section 164 of the County Courts Act 1888.

     COMMENTARY ON CLAUSES: PART 7

Criminal Procedure Rules and practice directions

Clause 63: Meaning of "criminal court"

196.     This clause gives the collective title of "the criminal court" to the criminal division of the Court of Appeal and, when dealing with any criminal cause or matter, the Crown Court and magistrates' courts. The term is used in this part when referring to the new power to make practice directions (clause 69) and to the new Criminal Procedure Rule Committee (clause 64).

Clause 64: Criminal Procedure Rules

197.     This clause provides for rules of court to be made by the Criminal Procedure Rule Committee, to determine the practice and procedure to be followed in all criminal courts in England and Wales. Once established, this Committee will deal with the criminal business matters now dealt with by the Magistrates and Crown Court Rule Committees, but will be able to exercise an over-arching, watching brief to ensure consistency in procedures across the criminal courts and for ensuring that rules are made consistently

198.     The clause confirms that Criminal Procedure Rules may be made for different cases or different areas. This distinction is intended to enable the Committee to make rules in support of new initiatives - that is, to enable "pilot" schemes to be established. Rules may also be made for specified courts or proceedings, for example, Youth Courts.

Clause 65:Criminal Procedure Rule Committee

199.     This clause sets out the proposed membership of the new Committee. The membership includes representatives of all the key groups in the criminal justice system and enables representatives from voluntary groups to be included. Therefore those with a direct interest will be able to participate in the rule-making process.

200.     The Lord Chief Justice will chair the Committee. The Lord Chancellor will have the power to reimburse the travelling expenses of members of the Committee and any person (for example, an expert in a particular field) invited to assist the Committee in its programme of work.

Clause 66: Power to change certain requirements relating to Committee

201.     This clause makes provision for the Lord Chancellor to revise the membership and other arrangements set out in clause 65. The Lord Chancellor must consult with the Lord Chief Justice before making an order to bring about any change. This is intended to give flexibility to adjust the membership.

Clause 67: Process for making Criminal Procedure Rules

202.     This clause sets out the arrangements for the making of the criminal procedure rules. It confirms that the Committee should consult as appropriate and meet before it makes the rules. This is intended to encourage the full discussion of the difficulties with existing procedures and of the potential improvements.

203.     The clause also describes the power for the Lord Chancellor, with the agreement of the Home Secretary, to allow, alter or disallow any rules made by the Committee and sets out the Parliamentary process for the rules. The agreement of the Home Secretary is desirable as he bears responsibility for criminal policy, while the Lord Chancellor is responsible for the administration of the courts. The clause provides for the Lord Chancellor to consult the Committee, before he alters any rules made by them. This is necessary in order to ensure that there is clear understanding of the reasons for any alteration.

Clause 68: Power to amend legislation in connection with the rules

204.     This clause sets out the powers of the Lord Chancellor to make changes to legislation where, as a result of the work of the Committee, anomalies are discovered. It describes the requirement for the Lord Chancellor to act, with the concurrence of the Home Secretary, when making such changes. The agreement of the Home Secretary is desirable for the reasons set out above in the notes on clause 67.

     Clause 69: Practice directions as to practice and procedure of the criminal courts

205.     This clause provides that the Lord Chief Justice, with the concurrence of the Lord Chancellor, can issue directions as to the practice and procedure of the criminal courts. This does not prevent the Lord Chief Justice from giving guidance to the criminal courts on law or making judicial discretions without the concurrence of the Lord Chancellor.

Family Procedure Rules and Directions

Clause 70: Family Procedure Rules

206.     This clause establishes the Family Procedure Rule Committee (FPRC). The FPRC will be the sole body with the authority to make rules regulating the practice and procedure for family proceedings in the High Court, county courts and magistrates' courts and it replaces the existing rule making arrangements.

207.     Currently, rules of court for family proceedings in the magistrates' courts are made by the Lord Chancellor after consultation with the Magistrates' Courts Rule Committee under s144 of the MCA 1980. In relation to family proceedings in the High Court and county courts, rules are presently made by the Lord Chancellor and specified persons, under s40(1) of the Matrimonial and Family Proceedings Act 1984.

208.     Subsection (3) defines family proceedings for which the FPRC can make rules. The FPRC can make different rules for a specific court or description of courts or for specific types of proceedings or jurisdiction. For example, rules can prescribe certain practices to be followed in the Principal Registry of the Family Division or in all county courts. Likewise, rules can prescribe the practice to be followed in all ancillary relief proceedings or how courts should exercise their Children Act 1989 jurisdiction.

209.     Subsection (5) sets out guiding principles that the FPRC must follow when making rules, consistent with those that the Criminal Procedure Rule Committee and the Civil Procedure Rule Committee must follow.

     Clause 71: Further provision about scope of Family Procedure Rules

210.     Probate rules will continue to be made by the President of the Family Division with the concurrence of the Lord Chancellor under section 127 of the SCA 1981. Family Procedure Rules may modify the rules of evidence and rules of evidence that apply to proceedings in a court within the scope of Family Procedure Rules. Family Procedure Rules may also apply any rules of court which relate to courts outside the scope of these rules; that is courts other than the High Court, county courts and magistrates' courts (so for instance rules made for the Crown Court or civil division of the Court of Appeal could be applied. Subsection (4)(b) provides that Family Procedure Rules may apply any rules of court which relate to proceedings other than family proceedings, so for instance criminal or civil proceedings in the magistrates' courts. Conversely, Family Procedure Rules may adopt rules made by another authority that apply to proceedings other than family proceedings in a court within the scope of Family Procedure Rules. So for instance, the Civil Procedure Rules made by the Civil Procedure Rule Committee may be applied by Family Procedure Rules to family proceedings.

Clause 72: Family Procedure Rule Committee

211.     This clause sets out the membership of the FPRC and deals with the process of appointing members and the consultation requirements. The Lord Chancellor is authorised to remunerate the committee members for travel expenses and out of pocket expenses incurred whilst on committee business.

 
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Prepared: 29 November 2002