PART V - MAGISTRATES|
86. The administration of the magistrates courts
is based on three organisational units: commission areas (the
basis for jurisdiction and the appointment of magistrates); petty
sessions areas (the benches - the basic level of local court organisation);
and magistrates' courts committee (MCC) areas (the unit of organisation
for management and administration).
87. All three are defined in primary legislation
in terms of local authority boundaries. There is power to change
commission areas by secondary legislation to reflect changes in
local authority boundaries; and a separate power under the Justices
of the Peace Act 1997 ("the JPA 1997") to change the
commission areas in Greater London only (other than the City)
by Order in Council. There is also power under the JPA 1997 to
change petty session areas by secondary legislation within the
constraints of local authority boundaries. And there is power
under section 32 of the same Act to change MCC areas, where this
will increase overall administrative efficiency.
88. It is the Government's policy to achieve
a greater alignment of the boundaries of the various criminal
justice agencies. It is also the Government's view that the magistrates'
courts service would generally be administered more efficiently
by fewer and larger units. In recent years, a number of MCCs have
been amalgamated by orders under section 32 of the JPA 1997, and
there will be more amalgamations in future, with the result that:
- the primary legislation definition of MCCs in
terms of local authorities is becoming increasingly removed from
the reality; it is also harder to identify what the area boundaries
- some MCC areas are no longer aligned with commission
areas, which cannot generally be changed. This restricts the MCC's
ability to deploy its magistrates and cases effectively, since
jurisdiction is limited to the commission area.
- an MCC which includes more than one defined local
authority area cannot redraw its petty session areas so that they
cross those local authority boundaries. This restricts the MCC's
ability to determine its optimum internal structure.
89. Clauses 49, 50 and 55 redefine the three
types of organisational unit without reference to local authority
areas, and provide a consistent set of powers to change their
boundaries by order. The department believes it is no longer appropriate
for magistrates' courts service boundaries to be defined in primary
legislation. It may be necessary to change the boundaries from
time to time to align with future changes to the boundaries of
other criminal justice agencies.
CLAUSE 49 - COMMISSION AREAS
90. Clause 49 empowers the Lord Chancellor
to alter commission areas, of his own volition or following a
proposal from relevant magistrates' courts committees. Commission
areas in England and Wales will be specified by order made by
the Lord Chancellor under the new section 1(2) of the JPA
1997, which is inserted by clause 49(1). An initial consolidating
order will identify all commission areas in existence at that
time (paragraph 18 of Schedule 10 to the Bill). Orders under subsection
1(2) which alter a commission will follow the negative resolution
procedure (by virtue of new section 32A(6)).
91. Clause 49(2) inserts a new section 32A in
the JPA 1997. This establishes the procedural framework for changing
commission area boundaries. The procedure provides for all magistrates
and MCCs affected by a proposed change to be consulted. Section
32A(5) provides than an order under section 1(2) may contain such
consequential and transitional provisions as appear necessary
or expedient to the Lord Chancellor.
CLAUSE 50 - PETTY SESSIONS AREAS
92. Clause 50 redefines petty session
areas, and makes consequential amendments to the existing procedure
for changing them. Clause 50(1) amends section 4 of the JPA 1997
so as to define petty sessions areas in terms of commission areas.
Petty sessions areas in England and Wales will be specified by
order made by the Lord Chancellor under the amended section
4(2). An initial consolidating order will identify all petty
sessions areas in existence at the time at which the order is
made (paragraph 19 of Schedule 10).
93. Clause 50(2) amends section 33 of JPA 1997.
This section provides the procedural framework for changing petty
sessions areas, which remains essentially the same as now, except
that the procedure for changing the names of petty sessions areas
(currently in sections 35 and 36 of the JPA 1997) is incorporated.
94. The Lord Chancellor may not initiate a change,
but he may direct an MCC to consider whether change is needed.
He may only make an order under section 4(2) following a recommendation
by an MCC; where an MCC has failed to comply with a direction
to consider change; or in consequence of changes to commission
area or MCC boundaries. An order may contain such consequential
and transitional provisions as appear to him necessary or expedient
(new section 33(4). As is the case in existing legislation, an
order under section 4(2) is not subject to any Parliamentary procedure.
95. Clause 51 contains no delegated powers.
96. Clauses 52 and 53 contain no delegated
powers to make secondary legislation. Clause 52 (unification and
renaming of stipendiary bench) effectively re-enacts (in new section
10C(3) of the JPA 1997) the Lord Chancellor's existing power to
make directions about the deployment of stipendiary magistrates.
CLAUSE 54 - JURISDICTION OVER OFFENCES OUTSIDE AREA
97. Clause 54 provides a new flexibility
for summary cases to be heard in a magistrates' court outside
the commission area in which the alleged offence took place. Clause
54(1) inserts section 3B in the Magistrates' Courts Act 1980.
The new section 3B(3) gives the Lord Chancellor power to
make regulations specifying the criteria which a court should
take into consideration when determining an application to transfer
a case to another commission area, and circumstances in which
a court must grant or refuse an application. Examples of possible
criteria are the security or convenience of witnesses, the circumstances
of the defendant, and the facilities of the court-house. These
criteria represent guidance to courts when determining applications.
They will contain detail which would not be appropriate for the
face of the Bill. It may also be necessary to amend them in the
light of some experience of the new procedure. Regulations under
section 3B(3) will follow the negative resolution procedure.
98. Clause 54(2) amends section 145 of
the Magistrates' Courts Act 1980, to confirm that the Lord
Chancellor's power to make rules of court extend to rules setting
out the procedure for the making and determination of applications
for transfer. (Section 144 of the 1980 Act allows the Lord Chancellor,
having consulted the Magistrates' Courts Rules Committee, to make
rules of court. These are subject to the negative resolution procedure.)
Magistrates' courts committees
CLAUSE 55 - AREAS OUTSIDE GREATER LONDON
99. Clause 55 redefines MCC areas, and
makes consequential changes to the procedure for changing areas
outside Greater London. The clause inserts new sections 27A &
B in the JPA 1997. Section 27A(2) enables the Lord Chancellor
to specify MCC areas outside Greater London by order, each area
to consist of one or more entire petty sessions areas. An initial
consolidating order will identify all MCC areas in existence at
the time at which the order is made (paragraph 25 of Schedule
10 to the Bill).
100. Section 27B provides the procedure for changing
MCC areas. It replicates the existing procedure under section
32 of the JPA 1997, which is repealed by Schedule 11 to the Bill,
subject to consequential textual amendments which do not alter
the procedure. Changes can be made by the Lord Chancellor of his
own volition, or on the recommendation of an MCC. All affected
magistrates, MCCs and local authorities must be consulted about
a proposal before any order is made (section 27B(2) & (4)).
The Lord Chancellor may only make an order under section 27A(2)
where he considers it likely to lead to an overall increase in
efficiency (section 27B(3)). An order under section 27A(2) may
contain such transitional or consequential amendments as the Lord
Chancellor considers necessary or expedient (section 27B(6)).
The Lord Chancellor may issue directions about the first meeting
of a new MCC (section 27B(7)). As now, orders under section 27A(2)
will follow the negative resolution procedure. These provisions
do not apply to Greater London, which will be subject to the separate
new provisions introduced by clause 57.
CLAUSE 56 - CONSTITUTION OF COMMITTEES OUTSIDE GREATER
101. Clause 56 makes consequential amendments
to sections 28 to 30 of the JPA 1997 which govern the constitution
of MCCs. It excludes Greater London from the operation of the
provisions, as it will be subject to separate provisions. The
amended section 29(1) re-enacts the Lord Chancellor's existing
powers to make regulations, subject to the negative approval procedure,
about the constitution, quorum and procedure of MCCs. Section
29(5), which allows regulations to make different provisions
for different areas, is novel. This power will allow the Lord
Chancellor to fashion alternative regulations for an MCC or MCCs
whose circumstances are such that the general regulations are
CLAUSE 57 - GREATER LONDON MAGISTRATES' COURTS AUTHORITY
102. Clause 57 creates the Greater London
Magistrates' Courts Authority (GLMCA) to manage the magistrates'
courts in Greater London. The clause inserts new sections 30A
& B in the JPA 1997. New section 30B(1) empowers the
Lord Chancellor to make regulations about the GLMCA, including
provision for its membership (including who shall chair it); its
procedures (including quorum and meetings); and its committees
and subcommittees. These regulations will follow the negative
103. Similar matters to those for traditional
MCCs are currently dealt with under delegated legislation (eg.
The Magistrates' Courts' Committees (Constitution) Regulations,
1994 under section 29 of the JPA 1997), because they relate to
administrative details which may need to change from time to time.
104. The GLMCA will have a number of different
functions to those of a traditional MCC (eg. the power to own
property, and to pay for its own goods and services); and it will
have a significantly larger case-load (with a consequently larger
work-force and budget) and cover more local authorities. The membership
of the GLMCA will need a different mix of skills, experience and
representation to that of a traditional MCC. As a newly established
body with some new functions, there is a particular need to retain
flexibility to make changes in the light of some experience.
CLAUSE 58 - STANDARD GOODS AND SERVICES
105. Clause 58 gives the Lord Chancellor
a new power to make regulations requiring all MCCs, or specified
MCCs, to obtain specified goods or services, or goods or services
of a specified description, where he considers that this would
be in the interests of the efficiency and effectiveness of the
magistrates' courts generally. These regulations, under a new
section 56A of the JPA 1997, will follow the negative resolution
106. Magistrates' courts are managed locally
within a national framework, which requires them to achieve national
standards and work with other criminal justice agencies towards
common objectives. The regulations will enable the Lord Chancellor
to ensure that MCCs adopt common systems and services, where greater
consistency would contribute to the achievement of standards and
objectives, or where joint procurement would lead to better value
for money. (The Home Secretary has similar powers in relation
to the police under section 57 of the Police Act 1996).
107. These powers are likely to be most useful
in relation to information technology, but they could also be
used in respect of other items, such as court forms. The Lord
Chancellor might require MCCs to purchase items from a particular
supplier, with whom the department has negotiated a national contract
on beneficial terms. Or he might require MCCs to purchase items
of a specified description which is compatible with those used
by other MCCs or criminal justice agencies, but leave it up to
each MCC to which supplier to use. The matter is left to delegated
legislation to allow specific requirements to be imposed from
time to time, reflecting, for example, developments in IT, the
negotiation of national contracts etc.
Justices' chief executives
108. Clauses 59 and 60 contain no delegated
CLAUSE 61 - TRANSFER OF ADMINISTRATIVE FUNCTIONS
OF JUSTICES' CLERKS
109. Clause 61 and Schedule 9 transfer
various statutory responsibilities from justices' clerks to justices'
chief executives. This reflects the Government's policy of establishing
a clearer distinction between the legal and judicial functions
of justices' clerks, and the administrative and managerial functions
of justices' chief executives. A consultation exercise about the
future role of justices' clerks has recently been completed.
110. Clause 61(2) empowers the Lord Chancellor,
by order subject to the negative resolution procedure, to transfer
further administrative functions from justices' clerks to justices'
chief executives. This allows for the transfer of other functions
not specified in Schedule 9. Schedule 9 identifies more than seventy
separate provisions in legislation, dating back as far as 1920.
CLAUSE 62 - COLLECTION, PAYMENT, ACCOUNTING AND BANKING
111. Clause 62 deals with the transfer
from justices' clerks to justices' chief executives of functions
relating to the fines, fees and other monies ordered to be paid
to magistrates' courts. Clause 62(3) inserts a new section
60A to the JPA 1997, which empowers the Lord Chancellor, with
the concurrence of Treasury, to make regulations about:
- the times at which, and the manner in which,
justices' chief executives shall remit sums they have collected
to the Lord Chancellor or any other person to whom they are due
(eg. the beneficiary of a maintenance or compensation order).
- the keeping and production of accounts by JCEs
in respect of all monies received by them (apart from their salaries
and expenses), and the inspection and audit of those accounts.
- the use of specified banking arrangements or
112. The new section replaces and extends the
existing power to make regulations under section 60(4) of the
JPA 1997. As now, no provision is made for any Parliamentary procedure.
The new power extends to all monies payable to a magistrates'
court, not just those (principally fines and court fees) due to
the Lord Chancellor. The power to make regulations about banking
arrangements is novel.
113. These matters have been left to delegated
legislation to avoid including excessive detail which would obscure
the main principles of the Bill, and to enable adjustments to
be made, for example to reflect changes in accounting practice
or to ensure that MCCs benefit from new banking services that
Execution of warrants
CLAUSE 63 - CIVILIAN ENFORCEMENT OFFICERS
114. Clause 63 extends and clarifies the
range of warrants issued by a magistrates' court which may be
executed by civilian enforcement officers employed by MCCs, local
authorities or police authorities. The clause inserts a new section
125A in the Magistrates' Court Act 1980. The new section 125A
empowers the Lord Chancellor and the Home Secretary, acting jointly,
to make an order listing the warrants that civilians may execute.
Annex B of the Explanatory Notes to this Bill lists the warrants
that it is intended such an order might cover. Orders under new
section 125A will follow the negative resolution procedure.
115. By virtue of clause 64 of the Bill, approved
enforcement agencies and their employees will also be able to
execute the warrants listed in the order. By virtue of clause
66, police constables, civilian enforcement officers, approved
enforcement agencies and their employees will all be able (subject
to safeguards) to execute such warrants without necessarily having
them in their possession at the time.
116. This matter is left to delegated legislation
because it is not considered appropriate to include such a detailed
list on the face of the statute; and because it will be necessary
to update the list from time to time to reflect changes to the
criminal law which introduce new orders or abolish existing ones.
CLAUSE 64 - APPROVED ENFORCEMENT AGENCIES
117. Clause 64 enables MCCs to authorise
private companies or firms to execute warrants on its behalf.
Clause 64(1) inserts a new section 31A in the JPA 1997. The new
section 31A(2) empowers the Lord Chancellor to make regulations,
subject to the negative resolution procedure, governing the conditions
which must be satisfied by a person if he is to qualify as an
approved enforcement agency, and the procedure by which a person
may be so approved. Examples of matters that might be covered
include that the applicant (and any of his employees engaged in
the enforcement of warrants):
- should be a fit and proper person and possess
a sufficient knowledge of the law governing warrant enforcement;
- must not carry on, or be employed in, any business
which involves buying debts;
- must provide satisfactory references;
- must provide a certified copy of the results
of a search of the Register of County Court Judgements;
- must supply photographs to accompany the application;
- may be required to swear an oath that the statements
in their application are correct;
- must publish notice of the application in 3 separate
editions of the local and national newspapers;
- must lodge a bank bond or deposit or provide
other guarantees to protect the MCC from financial loss.
118. This matter has been left to delegated legislation
to leave flexibility to make changes in the light of experience
and to respond to the development of new working practices in
the private enforcement sector.
119. Clauses 65-67 contain no delegated powers.
As explained in paragraph 240 of the Explanatory Notes, clauses
65 & 67 are intended to facilitate changes to the Magistrates'
Courts Rules 1981, made under existing powers.