Family proceedings courts and youth courts

103.     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 Act 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 SECTIONS: PART 3

Criminal jurisdiction and procedure

Section 43: Summons or warrant for suspected offender

Section 44: Trial of summary offences

104.     Sections 43 and 44 change the basic jurisdictional provisions on issuing process and dealing with charges, set out in sections 1 and 2 of the MCA 1980. Section 43 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 section 30. In the case of a warrant, the person may be brought to whichever court the person arresting the accused considers convenient. Under section 44 a magistrates' court will have jurisdiction to try any summary offence.

105.     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, it is expected that the Lord Chancellor's directions will frequently retain the local link in practice. There will also be situations, notably in cases which have already begun, in which the local link will continue to be a requirement.

Section 45: Power to make rulings at pre-trial hearings

Schedule 3: Pre-trial hearings in magistrates' courts

106.     This section provides the power for judges and lay magistrates to make binding rulings and directions at pre-trial hearings in criminal cases that are to be tried 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, once a not-guilty plea has been entered. This means that the primary disclosure provisions set out in Part 1 of the CPIA 1996 will apply.

107.     Schedule 3 inserts a new section 8A, "Power to make rulings at pre-trial hearing" and section 8B, "Effect of rulings at pre-trial hearing" into the MCA 1980. The new sections largely follow sections 40 and 41 of Part 4 of the CPIA 1996, which sets out the Crown Court's power to make binding rulings in pre-trial hearings.

108.     Before making a binding ruling, a magistrates' court must give the parties an opportunity to be heard and, when the accused is unrepresented but wishes to be represented, must consider whether to grant legal representation at public expense. A pre-trial ruling made by a magistrates' court will remain binding until the case is disposed of or is sent to the Crown Court.

109.     There is no specific right of appeal against a pre-trial ruling. An accused may appeal to the Crown Court against a ruling (if convicted) once the case is concluded, in the normal manner. The magistrates' court may also discharge or vary a pre-trial ruling on application by a party to the case (where there has been a material change of circumstances) or, where it is in the interests of justice, of its own motion.

110.     Provision is made for restrictions on reporting of pre-trial hearings in order to avoid prejudicing the right to a fair trial, should the case (or linked proceedings) ultimately be tried in the Crown Court. The publishing of anything other than basic factual matters is prohibited in England and Wales, unless the court orders that reporting restrictions should not apply, until such time as the case against the accused is disposed of. The definition includes electronic methods of communication and, where an offence is committed by a body corporate, liability to prosecution for contravention of reporting restrictions may also extend to the company's officers.

Section 46: Power to transfer criminal cases

111.     Section 46 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 be required to take account of the directions made by the Lord Chancellor under section 30.

Civil jurisdiction and procedure

Section 47: Jurisdiction to issue summons and deal with complaints

112.     Section 47 amends sections 51 and 52 of the MCA 1980. This changes the civil 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 in it to appear before a magistrates' court named in the summons.

Section 48: Power to transfer civil proceedings (other than family proceedings)

113.     Section 48 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 section 46 for criminal cases. A similar provision is not considered necessary for family proceedings as the power to transfer such cases already exists, for example under the Children (Allocation of Proceedings) Order 1991 and the Family Proceedings Courts (Children Act 1989) Rules 1991.

Family proceedings courts and youth courts

Section 49: Family proceedings courts

114.     This section sets out the framework whereby lay magistrates and District Judges (Magistrates' Courts) are to be authorised to hear family proceedings. Section 66 also gives the higher judiciary 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.

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

116.     Under this section, 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.

117.     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. District Judges (Magistrates' Courts) are in practice required to be "ticketed" for this work.

Section 50: Youth courts

118.     This section sets out the framework whereby lay magistrates and District Judges (Magistrates' Court) are to be authorised to hear youth cases. The Act also enables the higher judiciary including circuit judges and recorders to hear these cases, without particular authorisation, in consequence of the extension of their jurisdiction to include that of a District Judge (Magistrates' Courts) by section 66.

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

120.     Under this section, the "panel" system would be abolished. The Lord Chancellor will have to authorise a lay justice 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.

121.     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.

122.     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

123.     Part 4 of the Act contains the legislative proposals regarded as 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 supplemented by a power to seize an article where a person refuses the officer's request for surrender of the article. These powers are based upon, but go slightly further than, the current powers of court security officers in the magistrates' courts: currently officers may only request the surrender of an article in limited circumstances and cannot seize articles. To minimise the interference with a person's 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

124.     The Act introduces 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 Act 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".

125.     Currently court security is provided in the magistrates' courts, the Crown Court, some county courts, the High Court, the Court of Appeal and some tribunals, although the administration of court security is regulated differently.

126.     Only in the magistrates' courts is there statutory provision for court security where there is a mix of in-house officers employed by the MCCs, and contract officers who are procured through service contracts with private agencies. The Criminal Justice Act 1991, Part 4 (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).

127.     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.

128.     In developing the proposals to which the sections now contained in Part 4 give effect the Department took into account the various debates in Parliament on the Police Reform Act 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). Part 4 is designed to provide clear, additional powers to combat the level of disorder faced in court buildings, and thereby help increase public safety while on court premises and public confidence in the justice system. But no new or statutory powers of arrest are conferred on court security officers.

129.     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. Section 3 of the Criminal Law Act 1967 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 SECTIONS: PART 4

Section 51: Court security officers

130.     This section 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. Subsection (3) makes it clear that court security officers must be identifiable as such.

Section 52: Powers of search

131.     This section gives a court security officer power to search a person who is entering, or who is already in, a court building and also any article in such a person's possession. This power is similar to 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 (J (NI) A 2002), although the power goes slightly further (see para 132)

132.     Court security officers may require only removal of a coat, jacket, headgear, gloves or footwear. This is slightly wider than the articles that can be requested to be removed under section 77(2) of the CJA 1991 or section 80(2) of the J(NI)A 2002 which authorise removal of coat, jacket, gloves or hat and enables proportionate searching to take place which does not fall foul of human rights legislation. 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.

Section 53: Powers to exclude, remove or restrain persons

133.     This section gives court security officers powers to restrain persons or exclude, or remove them from a court building. Officers may exclude or remove 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. They also have the power to restrain, exclude or remove a person if it is reasonably necessary to do so to maintain order, secure the safety of people 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.

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

Section 54: Surrender and seizure of articles

135.     This section 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 and seizure are laid out in subsection (3)(a) to (c); because possession of the article may jeopardise the maintenance of order in the court building, or may risk 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 conferred on a court security officer to seize an article where the officer has requested its surrender but the request has been refused.

Section 55: Powers to retain articles surrendered or seized

136.     This section 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 of 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)).

Section 56: Regulations about retention of articles

137.     In conjunction with court security officers' powers to retain an article surrendered or seized under section 55 it is important that any items so retained are suitably recorded. The person from whom the article is taken must also be provided with adequate information about the terms of retention and given notice that when an article becomes unclaimed it will be disposed of. This section 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 section 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.

Section 57: Assaulting and obstructing court security officers

138.     This section provides that assaulting a court security officer in the execution of his duty 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

139.     This Part contains provisions for the establishment of a new inspectorate to be known as Her Majesty's Inspectorate of Court 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

140.     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 SECTIONS: PART 5

Section 58: Inspectors of court administration etc

141.     This section establishes a new independent inspectorate for court administration that will collectively be known as Her Majesty's Inspectorate of Court 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. Until the passing of this Act there were inspection arrangements for the administration of magistrates' courts and CAFCASS, but not in relation to any other courts (JPA 1997, sections 62-63).

Section 59: Functions of inspectors

142.     This section 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 section.

Section 60: Functions of Chief Inspector

143.     This section defines the functions of the Chief Inspector.

144.     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 section 59 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.

Section 61: Rights of entry and inspection

145.     Section 61 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

146.     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,

147.     The Act establishes the positions of Head and Deputy Head of Civil Justice as statutory titles.

148.     The creation of the post of Head of Civil Justice was recommended in Lord Woolf's report on 'Access to Justice' (1996). The above posts are created in the Act 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

149.     These sections 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

150.     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.

151.     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 intended could be performed by District Judges before a case is ready to go before a Crown Court judge.

COMMENTARY ON SECTIONS: PART 6

Offices, titles, styles etc.

Section 62: Head and Deputy Head of Civil Justice

152.     This section requires the Lord Chancellor to appoint a Head of Civil Justice, and gives 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 (the reforms to the civil justice system contained in the Access to Justice Report) continue to settle down. Therefore, the need for support from a deputy may decline.

153.     It is intended that the Lord Chancellor should have a 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.

154.     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 (Civil PRC) as provided for in section 83. No other specific functions, duties or powers to be attached to these posts are to be provided in statute.

155.     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.