Select Committee on Constitution Third Report

Annex to the reply from the Lord Chancellor

Extract from the Lord Chancellor's Directions for Advisory Committees on Justices of the Peace


Confidence of the Community

19.1 The Lord Chancellor has a firm expectation that all magistrates will conduct themselves in such a way as to command the confidence of the community which they serve with regard to their ability to discharge their judicial duties. On appointment, all magistrates sign the Declaration and Undertaking Form (Appendix 19A)which sets out the Lord Chancellor's expectations as to the conduct of magistrates.

19.2 The six key qualities sought in those applying to become magistrates are, good character, understanding and communication, social awareness, maturity and sound temperament, sound judgment and commitment and reliability (see section 6). The Lord Chancellor is confident that all magistrates will recognise the need to continue to display these qualities whilst they remain Justices of the Peace.

19.3 The application form now completed by candidates contains the following question 'Is there anything in your private or working life, or in your past, or to your knowledge in that of your family or close friends, which, if it became generally known, might bring you or the Magistracy into disrepute, or call into question your integrity, authority or standing as a magistrate?'. The Lord Chancellor requires that if the answer to this question should change following appointment, the magistrate will inform his or her Chairman and Clerk, in accordance with the declaration he or she gave on appointment.

19.4 The directions which follow prescribe the manner in which the Lord Chancellor requires allegations of misconduct or lack of competence to be dealt with. The definition of conduct in this context is conduct which, in the eyes of the community as a whole, reasonably calls into question a person's suitability to sit as a magistrate. Lack of competence connotes a serious and demonstrable diminution in a magistrate of any of the six key qualities. It also applies to those who have failed to achieve the standard required of magistrates in relation to the training programmes which may, from time to time, be approved or prescribed by the Lord Chancellor.

The Powers of the Lord Chancellor

19.5 Section 5 of the Justices of the Peace Act 1997 provides that "... Justices of the Peace for any commission area shall be appointed by the Lord Chancellor by instrument on behalf and in the name of Her Majesty and a justice so appointed may be removed from office in like manner." As a corollary to this power the Lord Chancellor may take a lesser step. In summary his powers may be described as follows. He may:

  a) counsel, caution or admonish a magistrate,

  b) suspend a magistrate from sitting,

  c) place a magistrate on the supplemental list,

  d) remove a magistrate from office.

He may also direct that a magistrate shall not sit, or discharge any other magisterial duty, pending enquiry. In exercising his disciplinary powers the Lord Chancellor will only act for good cause, will always observe the rules of natural justice, and requires that those acting on his behalf shall do likewise. Any actions taken in this regard must be such as to withstand the test of judicial scrutiny.

19.6 Criticism of, or concern about, a magistrate's conduct, whether in or out of court, may come from a variety of sources including fellow magistrates, a participant in court proceedings, a member of the public or the press. Complaints may be received by a bench chairman, a clerk to the justices, an Advisory Committee or Sub-Committee, the Secretary of Commissions Office or by the Lord Chancellor himself. Complaints or criticisms may relate to a magistrate's attitude or approach to a matter in open court or in a retiring room, views expressed in or out of court or some relevant matter in their private, working or public lives. Some conduct issues, for example a conviction or a formal caution, may come from official sources such as the police or the Crown Prosecution Service. The following paragraphs set out the action to be taken depending on the level at which the complaint is received. In all cases it is essential that a careful record be kept both of the complaint itself and of all actions subsequently taken.

Complaints Received at Bench Level

19.7 Where a complaint about the conduct of a magistrate is received at bench level the first matter to be considered is whether it should be dealt with initially at that level or should be referred directly to the Advisory Committee. In considering that question, regard should be had to the following matters:

a) does the complaint bring into immediate question the possible exercise of the Lord Chancellor's powers set out in paragraph 19.5? If so, it must be referred to the Advisory Committee without delay. Examples include:-

  pending criminal proceedings including driving offences involving obligatory disqualification but excluding minor motoring offences,

  bankruptcy proceedings,

  association with those of known bad character,

  allegations of misconduct on the bench which bring into question the suitability of the magistrate to sit in judgment on others,

  refusal to sit on certain kinds of case or with certain other magistrates,

  expressions of opinion which call into question the magistrate's willingness to administer justice according to law,

  a complaint of racist, sexist or other injudicious remarks, whether on or off the bench,

  offensive conduct towards another magistrate, a member of the court's staff, an advocate or a person appearing before the court.

b) Is the complaint of a relatively minor nature? If so it may be dealt with at bench level. In such circumstances it will be appropriate for the chairman, in consultation with the clerk, to take action (subject to (e) below). Examples include:

  minor inattention in court,

  an unwise remark on or off the bench,

  unacceptable but not offensive conduct towards another magistrate, a member of the court's staff, an advocate or a person appearing before the court,

  late arrival for sittings or a failure to attend without notifying the clerk and providing an adequate explanation.

c) Does the complaint raise questions of a medical nature which may affect a magistrate's continuance on the bench? The usual process will be for the chairman and clerk to consider the best course of action but, where it is considered that there might be difficulties in concluding the matter, it will be prudent to seek the advice of the Advisory Committee at an early stage. Examples include:


  inability to concentrate,

  behaviour which appears to affect judgment or calls into question the ability to make judgments.

d) Has there been a conviction for a minor motoring offence such as careless driving or exceeding the speed limit? This must be reported to the Secretary of Commissions Office by the Secretary to the Advisory Committee. Such convictions may result in a magistrate being cautioned or admonished by the Lord Chancellor.

e) Are minor misdemeanours frequent? This may require either a different approach to that set out in (b) above or a reference to the Advisory Committee. Where the Advisory Committee becomes involved it may require the Chairman of the Bench and the clerk to take the initial steps.


19.8 When an investigation is conducted at bench level the Lord Chancellor requires the following essential steps to be taken.

a) The complainant's agreement should be sought to the complaint being made known to its subject. The facts, including past behaviour, must be ascertained. Unsupported allegations are not sufficient. Facts will include a record of a conviction or of a police caution.

b) The magistrate must be informed, in writing, of the matters of concern or of the allegations which have been made and given a fair opportunity to make representations on the case, by a set time.

c) A full note must be kept of any meeting with the magistrate and a copy of that note made available to the magistrate who must then be allowed to make comments, which must also be recorded, on the accuracy and substance of the note.

d) The note, with the comments of the magistrate concerned, must then be forwarded to the Advisory Committee if the Lord Chancellor's powers may subsequently be invoked. However, even if the matter is ultimately considered to be relatively trivial, and in consequence no further action is proposed, a proper record must be maintained for the benefit of subsequent chairmen, against the possibility that another similar difficulty may arise in the future.

19.9 Since the power to take disciplinary action against a magistrate is ultimately vested in the Lord Chancellor alone, particular care must be taken by all parties involved not to intimidate a magistrate or to appear to usurp the discretion which is vested in the Lord Chancellor. Thus, for example, a bench chairman may advise a magistrate that he or she should refrain from sitting, pending the conclusion of an enquiry, but the power to direct that a magistrate shall not sit, or discharge any other magisterial duty pending enquiry, may be exercised only by the Lord Chancellor on application to the Secretary of Commissions Office.

19.10 In any case of doubt advice should always be sought from the Deputy or Assistant Secretaries of Commissions (telephone numbers 0171 210 8986 or 210 8989).

Complaints received at Advisory Committee level

19.11 This section does not cover circumstances in which a magistrate has appeared or is to appear before a court, professional disciplinary tribunal or other similar body - as to which please see section 19.50.

19.12 On receipt of a complaint or expression of concern, either directly from a complainant or from the Secretary of Commissions Office or a bench chairman, the Secretary of the Advisory Committee should:

  a) report the matter immediately to the Chairman of the Advisory Committee,

b) seek the agreement of the complainant to the complaint being made known to its subject, save where the complaint has been relayed by the Secretary of Commissions Office,

c) write to the subject of the complaint ("the magistrate") as soon as possible setting out the particulars of the complaint and requesting comments or an explanation in writing within a specified time. A specific request for further time should be considered sympathetically.

19.13 In any case where the magistrate has not voluntarily abstained from sitting and discharging any other magisterial duty, the Chairman of the Advisory Committee, with the advice of the Secretary, should determine whether to recommend to the Lord Chancellor that the magistrate should be directed not to sit or discharge any other magisterial duty pending the conclusion of an enquiry and the Lord Chancellor's ultimate decision. In particular, if no explanation is received from the magistrate within a reasonable time of the request being made, and the Chairman of the Advisory Committee does not consider that further time should be granted, a request may be made to the Secretary of Commissions Office that the Lord Chancellor direct that the magistrate should not sit or discharge any other magisterial duty pending the outcome of the consideration of the complaint. In any event the magistrate should be invited to attend an interview on a date within one month from the date of the request for comments or an explanation in writing.

19.14 If the magistrate fails to attend a complaints investigation hearing without good reason the Chairman should prepare a report on the matter as soon as possible which should be forwarded to the Secretary of Commissions Office.

Preparing for Complaints Investigation Hearings

19.15 Those taking part in complaints investigation hearings must always have in mind that they involve members of the judiciary. Moreover whilst they are not in themselves trials or tribunal hearings, every care must be taken to ensure that the principles of natural justice are observed and that the proceedings are seen by the magistrate, or others attending the hearing, as fair and such as to withstand the test of any subsequent judicial scrutiny. A record of the proceedings must always be kept.

19.16 The hearings should generally take the form of an enquiry by three or four persons drawn either from the Advisory Committee or its sub-committees and should normally consist of:

  a chairman who may be the Chairman of the Advisory Committee or his or her nominee,

  two or three members who, as far as practicable, are not members of the same bench as the magistrate being seen and in any event at least one of whom must be from a different bench,

  wherever possible, a non-magistrate member,

  the Secretary of the Advisory Committee or his or her representative,

  in some cases it may be appropriate for the panel to be chaired by a Circuit Judge. Advice in this regard may be obtained from the Deputy Secretary of Commissions,

  it will sometimes be necessary, in the interests of justice, to hear from others who may be able to provide evidence in relation to the allegations. Such persons may, if they wish, be accompanied but unless there are wholly exceptional circumstances they should be expected to speak for themselves.

19.17 At the hearing the magistrate may be accompanied, for example, by a legal adviser, but must be informed that the person accompanying them should not generally take an active part in the interview and that their role will be to observe and to advise the magistrate if necessary. Any such person must be asked to respect the confidentiality of the proceedings.

19.18 The Chairman should introduce himself or herself and the other panel members by name, indicating whether they are magistrates or not.

19.19 The Chairman should inform the magistrate why he or she has been asked to attend and that the panel will be considering only the matters about which the magistrate has been informed. The magistrate should be told that during the hearing he or she will be given every opportunity to comment and to put his or her point of view. The confidentiality of the proceedings should be stressed.

19.20 It should be made clear that only the Lord Chancellor can discipline or remove a magistrate, although the Advisory Committee may make recommendations. The view of the panel as expressed to the full Advisory Committee and the views expressed in that Committee will itself be confidential. The magistrate or others involved will be sent a contemporaneous record of the interview.

19.21 The Chairman should check that the magistrate is in possession of all the papers that the panel has by identifying each. The substantive part of the hearing should begin by the magistrate being asked whether he agrees wholly or in part with the facts as set out in the papers.

19.22 It is essential that members of the panel should not form any view of the facts in dispute before the hearing, and should not do or say anything which would give the impression that they have, in fact, already formed a view.

19.23 The facts should be checked chronologically if possible, separating those which are agreed from those which are disputed and following up the latter with appropriate questions. If others are to be seen the same consideration as outlined above will also apply.

19.24 The magistrate should then be invited to answer as he or she thinks fit. Members of the panel should not interrupt unless statements made are ambiguous. Questions on the magistrate's statement should be noted and questions asked only when he or she has finished. If the magistrate appears to be repeating himself or herself, it will of course be appropriate for the Chairman to indicate that the point has already been understood, inviting him or her to move on. It is, however, essential that the magistrate should feel that a full opportunity has been afforded to present his or her views.

19.25 In relation to agreed facts only, it is appropriate to ask whether he or she thinks there is any reflection on their suitability to continue as a magistrate. It is also appropriate to ascertain whether or not, in light of the evidence available, the magistrate wishes to volunteer his or her resignation. It is, however, essential that no pressure should be put on the magistrate to resign and it must be made clear that neither the panel nor the Advisory Committee has the power to require a magistrate to resign.

19.26 When this process has finished, the magistrate should be asked if there is anything in conclusion which he or she wishes to say to the panel.

19.27 The magistrate and any others involved should be thanked for attending, told that they will be notified by the Secretary to the Advisory Committee in due course of the conclusion reached by the Committee, and invited to leave.

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