Section 63: Ordinary judges of the Court of Appeal

156.     This section 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 section removes this anomaly.

Section 64: Power to alter judicial titles

157.     Although section 63 amends one title, Lord Justice of Appeal, section 64 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

Section 65: District Judges (Magistrates' Courts) as Crown Court judges etc.

158.     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. 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. This will be further eased by the revised allocation of cases provided by the Criminal Justice Act 2003. Revised allocation of cases ensures that cases are dealt with by the court at the appropriate level with regard to the complexity, value and proportionality of the case.

Schedule 4: Further functions conferred on District Judges (Magistrates' Courts)

159.     Section 65 has the effect of making District Judges (Magistrates' Courts) judges of the Crown Court. Schedule 4 contains amendments of Acts to confer specific functions on District Judges (Magistrates' Courts).

Section 66: Judges having powers of District Judges (Magistrates' Courts)

160.     Under this section a Crown Court judge will 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.

161.     As part of implementing the policy of greater flexibility in judicial deployment, this section provides 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.

Section 67: Removal of restriction on Circuit judges sitting on certain appeals

162.     This section 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

163.     Part 7 of the Act contains provisions about rules, Rules Committees and Practice Directions.

BACKGROUND

The criminal courts

164.     The Government recognised in the White Paper, Justice for All, that the benefits the Auld Review 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".

165.     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 Act addresses this change.

Practice directions

166.     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 about practice directions for magistrates' courts. This Act 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

167.     The creation of the Criminal Procedure Rule Committee (Crim PRC) 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. The Committee will be responsible for introducing consistency in procedures. Having consulted beforehand, the Committee will meet to discuss proposals and consider drafted rules.

168.     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.

169.     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

170.     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.

171.     These sections closely mirror the changes that are being proposed in relation to both criminal and civil rules of court. The aim of the sections 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

172.     The Act will provide for changes to be made to the composition of the Civil PRC; and for the Lord Chancellor to alter the rules made by the Committee.

173.     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.

174.     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. Altered rules will be subject to the affirmative resolution procedure in Parliament.

COMMENTARY ON SECTIONS: PART 7

Criminal Procedure Rules and practice directions

Section 68: Meaning of "criminal court"

175.     This section gives the collective title of "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 Criminal Procedure Rule Committee (Crim PRC) (section 70) and the new power to make practice directions (section 74).

Section 69: Criminal Procedure Rules

176.     This section provides for rules of court to be made by the Crim PRC, to determine the practice and procedure to be followed in all criminal courts in England and Wales. Once established, this Crim PRC 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.

177.     The section confirms that Criminal Procedure Rules may be made for different cases or different areas. This distinction is intended to enable the Crim PRC 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. Subsection (4) sets out guiding principles that the Crim PRC must follow when making rules, consistent with those that the Family Procedure Rule Committee (FPRC) and the Civil PRC must follow.

Section 70: Criminal Procedure Rule Committee

178.     This section sets out the proposed membership of the new Crim PRC. 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.

179.     The Lord Chief Justice will chair the Crim PRC and will have a deputy who is a High Court or Court of Appeal judge. The Lord Chancellor will have the power to reimburse the travelling expenses of members of the Crim PRC and any person (for example, an expert in a particular field) invited to assist the Crim PRC in its programme of work.

Section 71: Power to change certain requirements relating to Committee

180.     This section makes provision for the Lord Chancellor to revise the membership and other arrangements set out in section 70. The Lord Chancellor must consult with the Lord Chief Justice before making an order to bring about any change. These provisions are intended to give flexibility to adjust the membership and other arrangements.

Section 72: Process for making Criminal Procedure Rules

181.     This section sets out the arrangements for the making of the criminal procedure rules. It confirms that the Crim PRC should consult as appropriate and, unless it is inexpedient, 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.

182.     The section also describes the power for the Lord Chancellor, with the agreement of the Secretary of State, to allow, alter or disallow any rules made by the Crim PRC and sets out the Parliamentary process for the rules. The agreement of the Secretary of State is necessary as he bears responsibility for criminal policy, while the Lord Chancellor is responsible for the administration of the courts.

183.     The section provides for the Lord Chancellor to consult the Crim PRC, 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. In addition where rules are altered, they would follow the affirmative resolution procedure in Parliament, enabling alterations to be debated.

Section 73: Power to amend legislation in connection with the rules

184.     This section sets out the powers of the Lord Chancellor to make changes to legislation where, as a result of the work of the Crim PRC, anomalies are discovered. It describes the requirement for the Lord Chancellor to act, with the concurrence of the Secretary of State, when making such changes. The agreement of the Secretary of State is necessary for the reasons set out above in the notes on section 72.

Section 74: Practice directions as to practice and procedure of the criminal courts

185.     This section 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 decisions without the concurrence of the Lord Chancellor.

Family Procedure Rules and Directions

Section 75: Family Procedure Rules

186.     This section establishes the Family Procedure Rule Committee. 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.

187.     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 section 144 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 section 40(1) of the Matrimonial and Family Proceedings Act 1984.

188.     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.

189.     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.

Section 76: Further provision about scope of Family Procedure Rules

190.     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 that apply to proceedings in a court within the scope of Family Procedure Rules. 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. 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. Family Procedure Rules may also delegate matters which could be dealt with by rules of court to the President of the Family Division to deal with by Practice Direction under section 81.

Section 77: Family Procedure Rule Committee

191.     This section 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.

Section 78: Power to change certain requirements relating to Committee:

192.     This section enables the Lord Chancellor to alter the composition of the FPRC by order after consultation with the President of the Family Division. For example, if it were necessary to add a second Circuit Judge to the FPRC or if it became unnecessary to have two Supreme Court Judges as members of the committee, the Lord Chancellor could do so by amending this section thereby reformulating the composition of the committee.

Section 79: Process for making Family Procedure Rules

193.     This section describes the process for making Family Procedure Rules. Before making rules the FPRC must meet (unless they are unable to) and consult the appropriate persons. This allows the FPRC to call on the expertise of practitioners, judges, academics or any other experts who are not part of the committee to inform discussion about any proposed rule changes. Any rules drafted by the FPRC must be signed by the majority of the committee before being submitted to the Lord Chancellor who may allow, disallow or alter the rules put to him by the FPRC. Where the Lord Chancellor is to alter rules he must consult with the FPRC before doing so. Rules allowed by the Lord Chancellor are to come into force on such a date as he decides and are to be contained in a statutory instrument. This statutory instrument is to be subject to the negative resolution procedure in Parliament. A statutory instrument containing rules altered by the Lord Chancellor will be subject to the affirmative resolution procedure.

Section 80: Power to amend legislation in connection with the rules

194.     This section makes the same provisions as section 4 of the Civil Procedure Act 1997. It provides the Lord Chancellor with an order making power to modify primary legislation and secondary legislation in anticipation of Family Procedure Rules, or as a consequence of these rules or the provisions in sections 75, 76, or 79. It is anticipated that this will be used to make minor revisions to legislation in order, for example, to regularise and modernise terminology to match that in new rules

Section 81: Practice directions relating to family proceedings

195.     This section allows the President of the Family Division with the concurrence of the Lord Chancellor to issue practice directions which are binding on the county courts and magistrates' courts in relation to family proceedings. The President of the Family Division and the Lord Chancellor may also approve another person making practice directions for family proceedings in the county courts and magistrates' courts. In the county courts family jurisdiction, the President currently issues Practice Directions with the concurrence of the Lord Chancellor by virtue of s74A(2) of the CCA 1984. No statutory provision deals with the applicability of such directions to magistrates' courts. The President has an inherent jurisdiction to make practice directions for High Court family proceedings, so section 81 does not mention the High Court.

196.     Subsection (3) clarifies the scope of the power. For example, a practice direction could specify what practice and procedure should be followed in a certain care centre (specific court), how care proceedings should be handled in all courts (specific proceedings), or how all magistrates' courts should handle a particular type of case (specific jurisdiction).

Civil Procedure Rules

Section 82: Civil Procedure Rules

197.     This section amends the Civil Procedure Act 1997 (CPA 1997) to ensure that if the Lord Chancellor alters draft Civil Procedure Rules he observes the general objectives of fairness and simplicity.

Section 83: Civil Procedure Rule Committee

198.     This section reflects the fact that statutory backing has been given to the posts of Head and Deputy Head of Civil Justice under section 62. The two holders of the posts will be ex officio members of the Civil PRC and the post of Vice-Chancellor is to be removed as an ex officio member of the Committee.

199.     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).

Section 84: Power to change certain requirements relating to Committee

200.     This section allows the Lord Chancellor to amend the composition of the Committee after consultation with the Head and Deputy Head of Civil Justice and the Master of the Rolls. This power to amend the composition of the Committee is to extend only to the class of appointed members. The Committee retains its existing power to co-opt those with specialist expertise in the formulation of particular rules. Such co-optees are not members of the Committee.

Section 85: Process for making Civil Procedure Rules

201.     The Civil Procedure Rules, created under the CPA 1997, govern the practice and procedure of the civil division of the Court of Appeal, the High Court and the county courts.

202.     This section makes minor amendments to the CPA 1997 by providing for the Lord Chancellor to allow, disallow or alter rules made by the Committee. Before altering rules the Lord Chancellor must consult the committee. Altered rules will be subject to the affirmative resolution procedure in Parliament to allow democratic scrutiny of the exercise of this power by the Lord Chancellor. Those rules which are allowed by the Lord Chancellor without alteration will continue to follow the negative resolution procedure.

PART 8: MISCELLANEOUS

SUMMARY

203.     This part contains provisions relating to criminal and civil procedure, appeals, court fees, periodical payment for personal injury and minor amendments to judicial posts in England, Wales and Northern Ireland.

BACKGROUND

Provisions relating to criminal procedure and appeals

Appeals to Court of Appeal: procedural directions

204.     This section inserts new sections into the Criminal Appeal Act 1968 (CAA 1968) to extend the powers of (a) a single judge in the Court of Appeal Criminal Division and (b) the Registrar of the Court of Appeal Criminal Division prior to determination by the full court of an appeal or application for leave to appeal. New section 31B will enable either a single judge or the Registrar to give procedural directions that need not trouble the full court, thus reducing delay. Section 31C provides, in the case of a decision of a single judge, for the appellant, or under specified circumstances, the prosecution, to apply to the full court to review such a direction. Section 31C also provides for the decision by the Registrar to be reviewed by a single judge in the first instance, or if the defence or prosecution so wish, further reviewed by the full court.

205.     In the Court of Appeal Criminal Division, single judges consider applications for leave to appeal and act as a 'filter' by carrying out certain specified functions of the full Court of Appeal. Section 31 of the CAA 1968 lists the powers of the Court of Appeal which may be exercised by a single judge. However, the inability of the single judge to make a broader range of procedural directions for the conduct and progress of an appeal can lead to delay and unnecessary complication.

206.     The Auld Review recommended that a judge of the Court of Appeal should be empowered, when considering applications for leave to appeal, to give procedural directions for the hearing of the application or of the appeal that need not trouble the full court, subject to a right on the part of the applicant or the prosecution, as the case may be, to renew the application to the full court.

207.     The role of the Registrar of Criminal Appeals, who is also the Registrar of the Courts-Martial Appeal Court, currently combines both judicial and administrative functions. The Registrar has ultimate responsibility for the management and running of the Criminal Appeal Office, which has a staff of 150. The Registrar also provides a key reference point for the judiciary in the criminal justice system. He undertakes the judicial responsibilities listed in section 31A of the Criminal Appeal Act 1968. In the future, the judicial and administrative functions of the posts of Registrar of Criminal Appeals and Registrar of the Courts-Martial Appeal Court will be separated so that they become more clearly judicial offices. The Registrar's administrative duties will fall to appropriate Court Service staff. These changes will come into effect upon the appointment of the next office holder.

208.     The aim is to enable the Registrar to give procedural directions for the preparation or hearing of the application or of the appeal, subject to a right on the part of the applicant or the prosecution, as the case may be, to submit the matter to a single judge for review. However, the intention is also to enable the Lord Chief Justice to further define by practice direction the use and operation of the Registrar's power to make procedural directions. This would allow maximum flexibility in responding to the changing needs of the Court of Appeal Criminal Division.