2003 Chapter 39

© Crown Copyright 2003

Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Courts Act 2003, ISBN 010 563 903 6. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

THESE NOTES REFER TO THE COURTS ACT 2003 (C.39) WHICH RECEIVED ROYAL ASSENT ON 20 NOVEMBER 2003

COURTS ACT 2003

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Courts Act 2003 which received Royal Assent on 20 November 2003. They have been prepared by the Department for Constitutional Affairs in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

OVERVIEW

3.     The Courts Act 2003 primarily implements those of the key courts-related recommendations contained in Sir Robin Auld's Review of the Criminal Courts in England and Wales (October 2001, hereafter "the Auld Review") which the Government accepted, in the White Paper "Justice for All" published on 17th July 2002. It also makes provision for a number of other changes relating to judicial matters and to civil and family court procedure.

4.     The explanatory notes are divided into parts reflecting the structure of the Act. In relation to each Part, there is a "Summary". In relation to each group of sections, there is a "Background" section. Commentary on particular sections is then set out in number order, with the commentary on the various Schedules included with the section to which they relate.

5.     The Act is divided into 9 Parts:

Part 1: Maintaining the court system

• Part 1: This places the Lord Chancellor under the general duty of maintaining an efficient and effective court system and gives him power to make appropriate arrangements for staff and accommodation. This Part also abolishes Magistrates' Courts Committees (MCCs), and establishes courts boards.

Part 2: Justices of the Peace

• Part 2: This makes provision for justices of the peace and other matters relating to magistrates' courts. It replaces commission areas and petty session areas with local justice areas and provides for fines officers (who will exercise new functions under Schedules 5 and 6 in connection with fine enforcement). This Part also makes provision about the effect of the Act of Settlement 1700 on the appointment of lay magistrates.

Part 3: Magistrates' Courts

• Part 3: This deals with jurisdiction and procedure in criminal, civil and family proceedings in magistrates' courts.

Part 4: Court Security

• Part 4: This contains provisions to ensure that court security personnel have the same powers in all courts and details the powers of court security officers and the circumstances in which they may exercise them lawfully.

Part 5: Inspectors of court administration

• Part 5: This establishes a new HM Inspectorate of Court Administration and provides for the functions and rights of entry and inspection of the Chief Inspector and inspectors.

Part 6: Judges

• Part 6: This allows for alterations to the names of judicial titles and offices. This Part also allows District Judges (Magistrates' Courts) to sit as Crown Court judges and gives judges of the higher courts all the powers of justices of the peace, to give increased flexibility in judicial deployment.

Part 7: Procedure rules and practice directions

• Part 7: This provides for a Criminal Procedure Rule Committee and details its membership requirements, the rule-making process and its powers, provides for a Family Procedure Rule Committee and details its requirements, process and powers, and amends existing legislation relating to the Civil Procedure Rule Committee.

Part 8: Miscellaneous

• Part 8: This allows for costs awards against third parties in criminal cases and amends the procedures for appeals to the House of Lords and the Court of Appeal. This Part also confers new powers in connection with fine enforcement and revises the law on damages to allow the court to order periodical payments in personal injury cases, makes other minor changes in relation to court procedures, enforcement processes and office-holders and makes provision in relation to Northern Ireland.

Part 9: Final Provisions

• Part 9: This contains final technical provisions including provisions about implementation.

PART 1: MAINTAINING THE COURT SYSTEM

SUMMARY

6.     Part 1 of the Act places a duty on the Lord Chancellor to provide an efficient and effective system to support the carrying on of the business of all the main courts in England and Wales, namely the Court of Appeal, the High Court, the Crown Court, the county courts and the magistrates' courts. This responsibility will be discharged, in practice, by a new executive agency, as part of the Department for Constitutional Affairs, replacing the Court Service and the 42 MCCs. This agency will have local community links through courts boards, established under this Part.

BACKGROUND

7.     At present there are separate arrangements for the management of the courts in England and Wales. The Court Service is responsible for the operation of the Supreme Court (comprising the Court of Appeal, the High Court of Justice - including the Probate Service - and the Crown Court), county courts and a number of tribunals. It is an executive agency (Next Steps Agency) of the Department for Constitutional Affairs and has no autonomous legal existence. Its responsibilities and powers are defined solely by internal documents (most importantly its framework document). A Chief Executive, who is accountable to the Lord Chancellor and through him to Parliament, heads the Court Service. The Permanent Secretary of the Department for Constitutional Affairs remains the Principal Accounting Officer.

8.     The Crown Court and county courts are organised for administrative purposes into 6 circuits and 18 groups. A Circuit Administrator heads each circuit. Below circuit level, Group Managers are responsible for the Crown Court centres and county courts within their areas. Group boundaries are aligned to the 42 criminal justice system (CJS) areas. Court Service employees are civil servants. MCCs (established under Part 3 of the Justices of the Peace Act 1997 (JPA 1997)) are responsible for the efficient and effective administration of the magistrates' courts within their areas. They are bodies corporate whose members consist primarily of local lay magistrates and persons co-opted by the committee or appointed by the Lord Chancellor. The body responsible for the magistrates' courts in the greater London area is known as the Greater London Magistrates' Courts Authority (GLMCA). The 42 MCC areas are aligned with the CJS areas, as are the areas covered by other criminal justice agencies.

9.     MCCs receive 80% of their funding directly from the Department for Constitutional Affairs; the remaining 20% comes from local authorities. Local authorities are required to provide accommodation, goods, services, salaries and other expenses necessary for the proper functioning of magistrates' courts and MCCs. The GLMCA owns its own estate and is its own paying authority i.e. it is not funded through local authorities. MCCs employ staff on such terms as they think fit.

10.     The Auld Review recommended that a single centrally funded agency, as part of the Lord Chancellor's Department (now the Department for Constitutional Affairs), should replace the Court Service and the MCCs. In the White Paper Justice for All the Government accepted the recommendation for a single courts organisation and stated that an agency would have a strong local dimension and would "deliver decentralised management and local accountability within a national framework of standards and strategy direction".

11.     The Act does not set out a blueprint for the new agency, which will be designed in line with the Principles of Public Service Reform (published in 'Principles into Practice' by the Prime Minister's Office of Public Services Reform, March 2002). Although a centrally funded organisation directly accountable to the Lord Chancellor, the new agency will have a strong local dimension. The Act provides for the establishment of courts boards, composed of people who understand the administration of the courts and others who can represent local interests in the area for which the board is responsible. They will include at least two lay magistrates and one judge.

12.     The purpose of the boards is to ensure that the administration of the courts is focussed on the needs of court users and the local community more generally.

COMMENTARY ON SECTIONS: PART 1

The general duty

Section 1: The general duty

13.     This section places the Lord Chancellor under a statutory duty to secure an efficient and effective administrative system, and other services (such as security or enforcement services), to support Supreme Court, county court and magistrates' court business, referred to in the Act as the general duty. The Supreme Court is defined in the Supreme Court Act 1981 (SCA 1981), section 1(1), as the Court of Appeal, the High Court of Justice and the Crown Court. The day to day responsibility for the administration of the courts will be delegated to a new executive agency of the Department for Constitutional Affairs, headed by a Chief Executive.

14.     Section 1 also provides that within 18 months of this section coming into force, and annually thereafter, the Lord Chancellor must prepare and lay before both Houses of Parliament a report on the way he has discharged his general duty in relation to the courts, staff and accommodation. This will include information on the operations of the Agency itself.

Court staff and accommodation

Section 2: Court officers, staff and services

15.     Section 2 re-models section 27 of the Courts Act 1971 (CA 1971), but covers staff for magistrates' courts as well as the Supreme Court and the county courts. It allows the Lord Chancellor to employ civil servants as court staff, so that he can discharge his duty of administering the courts and providing support services. Persons appointed under this section would be eligible to join the principal civil service pension scheme and would be eligible for other superannuation benefits in the same way as other civil servants

16.     This section also allows the Lord Chancellor to enter into contracts with self-employed people or independent contractors, as appropriate, for the purpose of discharging his general duty in relation to the courts. However, under section 2 (6), contracting out in respect of officers and staff carrying out administrative work will only take place after the making of an enabling order (that is, a statutory instrument), and subject to prior consultation with the Heads of Division (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor). While this section does not permit the provision of persons to make judicial decisions or exercise a judicial discretion, it does extend to those assisting such persons. Taken together with section 27, this will allow the Lord Chancellor to enter into arrangements for the provision of assistants to justices' clerks.

Section 3: Provision of accommodation

17.     Section 3 re-models section 28 of the CA 1971 and reflects the Lord Chancellor's additional responsibility for magistrates' courts. Subsection (1) gives the Lord Chancellor power to provide, equip, maintain and manage court accommodation. Subsection (2) allows the Lord Chancellor to enter into arrangements with others. Court land will, in practice, be held by the First Secretary of State (Deputy Prime Minister) (who already holds court land, other than for magistrates' courts), with whom the Lord Chancellor will enter into appropriate arrangements. The Lord Chancellor's powers will be exercised on his behalf by the new executive agency. Subsection (4) defines the term "court-house".

Courts boards

Section 4: Establishment of courts boards

18.     Section 4 requires the Lord Chancellor to set up courts boards (the functions of which are set out in section 5). The section obliges the Lord Chancellor to define the geographical area for which they are responsible by order. It obliges him, in defining the areas, to have regard to the desirability of ensuring coterminosity with CJS areas, which are based on areas defined in the Police Act 1996. It provides that the names of each courts board area will be specified in the order. It allows the Lord Chancellor to make orders altering the areas, but it requires that the Lord Chancellor consult an affected courts board before an amending order is made. It provides for a Schedule that sets out the constitution and procedure of courts boards, including the categories of membership of the courts boards.

Schedule1: Constitution and Procedure of courts boards

19.     This Schedule provides for the constitution and procedure of courts boards. Members are to be appointed by the Lord Chancellor. Minimum membership will consist of at least one judge; at least two lay magistrates; at least two other members who appear to have knowledge or experience of the work of the courts in the area; and at least two members who appear to be representative of local people in the area. It provides for regulations to be made by the Lord Chancellor in relation to the appointment of members, in particular the appointments procedure; the selection of a chairman from among the board members; the term of office of board members and their resignation, suspension or removal; the procedure of boards, including quorum; and the validation of proceedings in the event of removal, a vacancy or defect in appointment.

20.     This Schedule also enables the Lord Chancellor to make payments in respect of expenses and remuneration.

Section 5: Functions of Courts Boards

21.     Section 5 requires each courts board to scrutinise, review and make recommendations about how the Lord Chancellor is fulfilling his general duty. It specifies that courts boards will, in particular, consider draft and final business plans for their area. It requires the Lord Chancellor to issue the courts boards with guidance about how they should carry out their functions, including the procedures to be followed in considering draft and final business plans. This guidance must be laid before both Houses of Parliament. The Lord Chancellor must give due consideration to their recommendations. If the Lord Chancellor rejects a courts board's recommendations on its final business plan he must give to them his reasons for doing so in writing. Subsection (4) makes clear that courts boards are not concerned with the Court of Appeal or High Court.

Abolition of magistrates' courts committees

Section 6: Abolition of magistrates' courts committees etc.

22.     Since the Lord Chancellor will take over responsibility for the magistrates' courts, there will no longer be a need for the MCCs, which perform this function at the moment. Section 6 provides for their abolition. It also abolishes the Greater London Magistrates' Courts Authority, which is the MCC for Greater London. Section 6 also gives effect to Schedule 2, which provides for the transfer of MCC staff and property.

Schedule 2: Abolition of magistrates' courts committees: transfers

23.     Schedule 2 sets out the arrangements for the transfer of staff from MCCs and local authorities to the employment of the Lord Chancellor. It also enables the Lord Chancellor to make schemes transferring property, rights or liabilities from MCCs, local authorities and others to him or another Minister of the Crown.

24.     Paragraph 11 applies the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794) (TUPE) without restriction to MCCs and will effect the transfer of MCC employees into the employment of the Lord Chancellor. Paragraph 12 applies to local authority staff. Under paragraph 12(2)(b) local authority staff who spend "a substantial part" of their time on MCC duties during the course of a year, can be transferred to the Lord Chancellor's employment; however, the ultimate decision as to whether to transfer such an employee is for the Lord Chancellor. It is intended that in practice any transfer would be subject to consultation with the individuals affected. Paragraph 14 provides that any MCC or local authority staff who are regarded as 'aliens' will still be eligible to transfer into the employment of the Lord Chancellor. An 'alien' in this context can be defined as a person who is precluded from employment in the civil service by existing legislation i.e. nationals of non-EC or non-EFTA states.

PART 2: JUSTICES OF THE PEACE

SUMMARY

25.     Part 2 of the Act contains a range of provisions relating to lay justices, District Judges (Magistrates' Courts), justices' clerks and administrative staff working in the magistrates' courts. The most significant change is to give lay magistrates a national jurisdiction. In order to achieve the main changes, this Part rewrites existing provisions in the JPA 1997 with various adjustments.

BACKGROUND

The commission of the peace and local justice areas

26.     England and Wales are currently divided into commission areas and petty sessions areas (under sections 1-5 of JPA 1997). The commission area is the unit on which the appointment of lay magistrates and the jurisdiction of the magistrates' courts to hear summary cases is based. Lay magistrates are appointed to a particular commission area, on the basis of the place where they reside; and most summary offences must be tried in the commission area where the alleged offence took place. Commission areas are divided into one or more petty sessions areas. Petty sessions areas are the areas to which lay magistrates are assigned by the Lord Chancellor (although this currently happens outside the statute). These are the "benches", the basic unit of local magistrates' court organisation.

27.     This Act abolishes commission areas and petty sessions areas and replaces them with local justice areas. Lay magistrates will be appointed for England and Wales. This, coupled with changes in Part 3 of the Act, will have the effect of giving lay magistrates a national jurisdiction. The Lord Chancellor will, however, be placed under a statutory duty to assign lay magistrates to a local justice area. This will preserve the bench system in statute. By virtue of paragraph 3 of Schedule 9, when the Act comes into effect, the local justice areas will be the same as petty sessions areas were immediately previously. Subsequently, the pattern of areas may be varied by order, following suitable consultation.

Places, dates and times of sittings

28.      Section 153 of the Magistrates' Courts Act 1980 (MCA 1980) declares that a magistrates' court may sit on any day of the year, including a Sunday, Good Friday and Christmas Day.

29.     It is for the magistrates' court to decide when it shall sit, although in practice, magistrates' courts do not normally sit on Sundays. There are restrictions on where magistrates' courts can sit and the powers of magistrates can vary depending on whether they are sitting in a petty sessional courthouse (section 150(1) MCA 1980) or an occasional courthouse (section 147 MCA 1980). This Act permits the Lord Chancellor to determine when and where magistrates' courts are to sit. This will introduce greater flexibility than the current arrangements and give magistrates full powers wherever they sit.

Justices' clerks

30.     Most cases in magistrates' courts are heard by lay magistrates who are not qualified lawyers. They rely on the legal advice of justices' clerks and their assistants, often known as "legal advisers". Justices' clerks and their assistants can also exercise the powers of a single justice of the peace in certain circumstances. Justices' clerks are vital to the administration of justice in magistrates' courts.

31.     At present, under section 42 of the JPA 1997, justices' clerks are appointed by an MCC to a particular petty sessions area, following the approval of the Lord Chancellor. MCCs are required by section 42(6) to consult local lay magistrates on the appointment or removal of justices' clerks in certain circumstances. MCCs also have the power to designate assistants to justices' clerks under section 44(3) of the JPA 1997.

32.     When exercising any legal function, justices' clerks are not subject to the directions of a justices' chief executive (JCE) or any other person or body, by virtue of section 48 of the JPA 1997. Assistant clerks may only be subject to the directions of justices' clerks.

33.     This Act provides that in future the Lord Chancellor will have the power to employ appropriate court staff, including justices' clerks and their assistants who must be specifically designated as such. The Act retains the statutory qualifications for justices' clerks and assistants and confirms their independence when exercising any legal function. It also places a duty on the Lord Chancellor to assign justices' clerks to one or more local justice areas.

Fines Officers

34.     The Act includes provisions to create the role of fines officer who may be appointed or provided under contract by the Lord Chancellor.

35.     The Act creates the role of "a fines officer" to take enforcement action in certain circumstances, thus removing the need for all enforcement decisions to be taken by a court. A fines collection system (Schedule 5) has been set up which introduces financial incentives to offenders to pay their fines, as well as providing a range of new disincentives for fine default, including wider powers to make attachments of earnings orders (AOE) and deductions from benefits (DFB). The system is designed to encourage payment but will include new penalties for those who have the means and will not pay. The Act also introduces new sanctions for failing to provide information necessary to make AOE orders and DFB applications. For those who are unable to pay a fine, the Act introduces (in Schedule 6) a system for discharging fines by unpaid work.

36.     The Act provides for the new system to be piloted and, if necessary, modified before a permanent scheme is introduced. The intention is to ensure that fines are seen as credible and effective punishments.

Designated officers and magistrates' courts

37.     Currently each MCC must appoint a JCE with the approval of the Lord Chancellor, to manage the magistrates' courts in its area. The primary function of JCEs is to make arrangements for the efficient and effective administration of the magistrates' courts. JCEs must perform all of their statutory duties in accordance with directions given by the relevant MCC.

38.     JCEs are responsible for a wide range of administrative matters. Section 90 of the Access to Justice Act 1999 (AJA 1999) amended a large number of earlier Acts so as to transfer to JCEs administrative functions previously assigned to justices' clerks. As there will be no equivalent statutory post to the JCE in the new courts agency, this Act provides for former JCE functions to be carried out by an officer designated by the Lord Chancellor.

Application of receipts of magistrates' courts etc.

39.     Magistrates' courts are responsible for collecting fines, fees and other financial orders on behalf of central Government and compensation orders on behalf of victims of crime. Section 60 of the JPA 1997 makes provision for the application of receipts by JCEs. This Act reproduces section 60 with changes to reflect the fact that the designated officer, rather than the JCE, will be responsible for collecting such sums.

COMMENTARY ON SECTIONS: PART 2

The commission of the peace and local justice areas

Section 7: The commission of the peace for England and Wales

40.     This section replaces the provision contained in sections 1 and 3 of the JPA 1997, for the issue of commissions of the peace to each commission area, but with changes to reflect the fact that commission areas are abolished by this Act,. The section refers to a single commission of the peace, which will cover England and Wales, in place of the current 42 separate commissions.

41.     The section restates the provision that the commission is to be issued under the Great Seal, and that it shall be addressed generally rather than to individual justices.

Section 8: Local justice areas

42.     Section 8 places a duty on the Lord Chancellor to divide England and Wales into areas to be known as local justice areas and gives him the power to make orders altering such areas. Before making such an order the Lord Chancellor must consult magistrates assigned to an area affected by the changes, and any local councils and courts boards similarly affected. This section, in effect, makes the same provision as parts of sections 4, 33 and 34 of the JPA 1997 (which is repealed by section 6(4)), but changes the name 'petty sessions areas' to local justice areas. The name 'local justice area' is considered to be a more modern and more appropriate title for these areas. An initial order setting up local justice areas will simply be laid in Parliament and will not be subject to the negative resolution procedure, on the basis that by virtue of Schedule 9, it will simply be renaming petty sessions areas as local justice areas and will not change any boundaries. Subsequent orders altering areas will be subject to negative resolution.

43.     Schedule 8 contains a number of consequential amendments. References to petty sessions and commission areas in existing legislation can have the effect of geographically linking particular cases to the area specified. Where possible this link is to be removed and instead where cases will be heard will be determined in accordance with directions issued by the Lord Chancellor, subject to the concurrence of the Lord Chief Justice. The directions, given under powers contained in section 30, are likely to reflect the policy that whilst in general cases will be heard in the local justice area in which the offence was committed, or where the defendant lives, other factors will also be liable to be taken into account. These considerations will include the availability of court resources and the whereabouts of victims or other interested parties, including defendants and witnesses.