Essential Magistrates' Courts Law

Riddle, Howard, Zara, Robert

• Publisher: Waterside Press
• Year: 2019
• ISBN:
  9781910979815
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In this concise book the authors distil their vast knowledge and experience of magistrates' courts for the benefit all those needing a speedy and targeted point of reference on key aspects of the relevant law, whether as newcomers, legal advisers, justices of the peace or criminal practitioners. Hugely informed and presented in an accessible format, it contains invaluable information and explanations of the central laws, procedures and practices of these courts. The legal framework of summary justice has changed comprehensively in the past ten to 15 years including in terms of evidence, procedure, guidelines, sentencing, judicial training and the fair but efficient expedition of cases. The book is designed to complement these developments as well as modern-day aspects of case management.

Introduction

There has been a revolution in summary justice. It has been quiet, unsung, and unobserved by many. The changes have required all those who appear in magistrates’ courts, including magistrates and legal professionals, to change their approach.

When we started as defence advocates in legal aid practices, the law was rarely mentioned in a magistrates’ court. There were no abuse of process arguments, no disclosure, and no case management. The prosecution evidence was rarely provided before the day of trial. We never disclosed our defence until the last moment. Cases destined for the Crown Court remained before the magistrates for weeks or months before committal or discharge. Those in custody often applied for bail every week. There were no duty solicitors and no Crown prosecutors to help the court. When we attended police stations for our clients we were as often as not refused access (and in any event this work was not covered by legal aid).

On the rare occasions when a legal point was raised, the court clerk (now the legal adviser¹) would refer to a comparatively slim volume and all present would gratefully accept the advice given. The magistrates had very wide discretion, and different practices arose in different courts across the country.

Gradually, this all changed. More and more criminal law was enacted by Parliament, through the Bail Act 1976, the Police and Criminal Evidence Act 1984, the Criminal Procedure and Investigation Act 1996 and indeed many other statutes. At the same time, case law proliferated. The new statutes needed to be interpreted by the higher courts, and even old practices came under increasing scrutiny. This was all to the good. It increased fairness and improved the quality of justice.

However, the justice system became far more complicated. The reference books each expanded from a few hundred pages to several thousand. For adjournments alone there were dozens of cases that in theory at least needed to be considered. This was difficult enough for us when we became stipendiary magistrates (later district judges (magistrates’ courts). It was probably worse for defence and prosecution advocates and advisers. It must have been even tougher for lay magistrates. It is perhaps no surprise that cases were more often adjourned than concluded.

All this has changed. The procedure in a magistrates’ court has been simplified and set out clearly in the Criminal Procedure Rules and in Practice Directions. These rules are law and should make it vanishingly rare for courts to need to consider pre-existing case law. They provide a comparatively short code which can be learned and implemented by all those who appear in magistrates’ courts. Similarly, practitioners and magistrates need to understand the essential principles of sentencing, but now have comprehensive guidelines to assist in reaching a lawful and appropriate sentence. Case management, once disparaged, is today an essential function for all at the first hearing, unless a plea of guilty is entered.

This book aims to provide the essential law that all magistrates and legal practitioners need to know and apply on points that arise in court almost every day. Magistrates’ courts are busy and fast moving. There may be thirty or more cases listed in a morning. Such time as there is to stop and check the law needs to be reserved for unusual points. Know the basic law or risk a serious mistake.

The recent changes mean that for the first time it is possible to cover the essential law in a comparatively slim, and we hope readable, volume. Unusual points not covered by this book will arise regularly. For these, a good legal adviser and the excellent reference books remain indispensable.

We are unashamed apologists for the quality of summary justice. Simple, speedy justice, following the new rules and modern-day practices, is quality justice.

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1. See Criminal Justice Terms and Abbreviations at the end of the book for a explanation of this term.

Chapter One

History of Justices of the Peace in England and Wales

Those who sit in a magistrates’ court, lay justices and professional district judges (magistrates’ courts), are all justices of the peace for England and Wales.¹ The Statute of Westminster 1361 seems to be the first time the term “justice of the peace” (JP) appears in statute. The statute states that:

“in every Shire of England shall be assigned for the keeping of the peace one Lord, and with him three or four of the most worthy in the Shire, with some learned in the law; and they shall have power to restrain the offenders, rioters, and all other barrators, and to pursue, take, and chastise them according to their trespass or offence; and to cause them to be imprisoned and duly punished according to the laws and customs of the realm, and according to what shall seem best to them to do by their discretions and good deliberation …”

In 1388 the number of JPs assigned to each county was increased from four to six, and the sheriff was empowered to pay four shillings a day to each of them for a maximum of 12 days a year. (This was about 16 times greater than the labourer’s daily wage.) For most of their history, justices of the peace have been entitled to be paid. However, while prices rose steadily, wages remained the same, and four shillings per day came to represent a much more modest figure. The practice of paying the justices gradually fell into disuse and was formally abolished in 1854.²

By the 18th century corruption had become scandalous. Excesses in London led to the replacement of the justices in the metropolis for most purposes by a body of professional magistrates. For almost 200 years summary justice in metropolitan London was presided over exclusively by paid stipendiary magistrates, recruited from the bar. The first female stipendiaries, and the first solicitor stipendiaries, were appointed after the second world war. In the rest of the country, including the City of London, summary justice was presided over almost exclusively by lay magistrates, unpaid, and including many distinguished people, with some “learned in the law”. The first female lay magistrates were appointed shortly after the first world war.

The tenure of an early chief magistrate, John Fielding (the “blind beak”), coincided with a particularly virulent crime wave. He set up and expanded the organization which was later to become famous as the Bow Street Runners. This rudimentary police force scored conspicuous victories in the battles against the gangs and street robbers that had become commonplace in the town.

By the time Sir John died in 1780 the court had become much more like a modern court, with regular sittings. Magistrates were in attendance daily, one until nine o’clock at night. In 1792 reformers succeeded in passing a law by which 24 magistrates were to be paid £400 a year each, sitting at the seven new police offices (which later became police courts).

In 1829 Sir Robert Peel formed his new police force. The Metropolitan Police Courts Act of 1839 transformed the police offices into police courts, a title they retained until the 1940s.

From 1760 onwards, the Industrial Revolution resulted in a huge influx of people into the new manufacturing areas. As a result, a small number of stipendiary magistrates were appointed in a piecemeal way across the country, particularly in industrialised areas. Outside metropolitan London summary justice remained firmly in the hands of the lay magistracy. Both lay magistrates and professional magistrates (now known as district judges (magistrates’ courts)) have their champions. However, the overwhelming view is that the system needs both. As far back as 1949, when the Justice of the Peace Bill was passing through Parliament, no-one proposed to abolish the stipendiaries and only one peer came out wholeheartedly against lay magistrates.

In recent years the number of professional judges in what was metropolitan London has fallen, while significant numbers of unpaid justices of the peace have been appointed. Outside London the reverse process has taken place. In England and Wales in 2019, there were about 140 full-time district judges (and a similar number of part-time deputy district judges) and about 15,000 lay magistrates.

The legal system of England and Wales is unique in these islands, and indeed in the larger criminal jurisdictions of the world, in the central position held by the lay magistracy. We would say that this has almost constitutional significance. It means that nobody in our jurisdiction can be convicted of, and remain convicted of, a criminal offence unless lay people (juries or lay magistrates) agree. For example, if a district judge (magistrates’ courts) sitting alone convicts a defendant, there is an automatic right of appeal to the Crown Court. On appeal the circuit judge could agree with the district judge, but if the two lay magistrates who also sit on the appeal disagree, then the appeal is successful, and the defendant is acquitted.

Magistrates bring the community into the court and can be seen as ambassadors for the law in the community.

Today, the jurisdiction of justices of the peace is far greater than that covered by this book. JPs (lay and/or professional) now sit in the unified family court, the youth court and on appeal to the Crown Court. Some also sit as tribunal members, independent prison adjudicators, recorders (part-time Crown Court judges), deputy coroners, as members of courts martial and judges in the sovereign base in Cyprus, for example. JPs also sit on the Criminal Procedure Rules Committee, the Sentencing Council (both described later in this book), the Judges’ Council and other committees and working groups in the criminal and family justice systems.

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1. Sections 9 and 25 Courts Act 2003.

2. A full and scholarly History of the Justices of the Peace by Sir Thomas Skryme was published by Barry Rose in 1991 and is hard to improve upon. An earlier and perhaps more readable book, The English Magistracy, by Frank Milton, was published by Oxford University Press in 1967.

Chapter two

A Brief Overview

All criminal prosecutions have a first hearing in a magistrates’ court. Most cases remain in a magistrates’ court until either acquittal or conviction and sentence. The more serious cases are sent to the Crown Court for trial by jury or to be sentenced by a Crown Court judge.

Proceedings are initiated in a number of ways: charge at a police station; charge and requisition by post or personal service; or summons by post or personal service. Most prosecutions are brought on behalf of the Crown by the police and/or the Crown Prosecution Service. However, some are initiated by local authorities. A smaller number are prosecuted by interested groups such as the RSPCA. Yet others are brought by private individuals.

Many cases, usually the less serious ones, can be heard without the defendant being required to attend court. In most motoring cases, for example, the defendant is requisitioned and can plead guilty by post or (increasingly) online and be sentenced in absence. Such cases can often be proved (or dismissed) in the absence of the defendant, who nevertheless always has the opportunity to attend and defend the case with or without a lawyer.

Cases are adjudicated by magistrates or by a district judge. There is no jury. Magistrates are carefully selected and trained members of the public. They are rarely lawyers. They are unpaid. District judges are also carefully selected by the independent Judicial Appointments Commission. District judges (magistrates’ courts) (DJ(MC)s) are qualified lawyers and are paid according to a judicial pay scale. Some magistrates and some district judges wear a gown, but many do ...

Table of contents

• Copyright and publication details
• About the authors
• Acknowledgements
• Preface
• Introduction
• Criminal Justice Terms and Abbreviations
• A typical domestic violence case
• Adjournments: The Lord Chief Justice’s Practice Direction, April 2019
• Index