» Investigating breaches of the Code
» Model 1
» Model 2
» Model 3
New section 39B(3) of the JPA 1997 provides the Lord Chancellor with the power to make regulations for establishing whether persons have failed to observe the code. It is not proposed to make regulations, at this stage, about these monitoring arrangements. Responsibility for examining the day to day operation of the Code will form part of the JCE's duties.
Section 39B of the JPA 1997 also empowers the Lord Chancellor to suspend or dismiss members of committees or panels who fail to comply with the code, and to provide that a dismissed person may not be re-appointed for a specified period or ever. Should a breach of the code be alleged or identified, an investigation of the facts will be called for.
Three possible models of investigative panels have been identified as viable options. Whichever model is finally settled upon, responsibility will fall to the JCE to convene the investigative panel. Whilst specialist assistance may be called upon, e.g. the Internal Assurance Division of the Lord Chancellor's Department in the case of fraud, the JCE will need to undertake a preliminary investigation before any further action should be taken. Responsibility will fall to the JCE to consider whether to refer any beach to an investigative panel. The JCE should inform Magistrates' Courts Division (MCD) of the Lord Chancellor's Department immediately of any breach, alleged or otherwise and, after undertaking his preliminary investigation, inform MCD as to his proposed course of action.
Model 1. Each MCC to constitute a panel annually composed of 3 MCC/ Selection Panel members [or 3 members nominated by the MCC/ Selection Panel members] to be employed by neighbouring MCCs, as applicable.
Model 2. Each MCC to constitute an internal panel annually composed of: an MCC member; a Selection Panel member; and an independent HM MCSI member i.e. not the local liaison inspector.
Model 3. A national/local panel of 4 members. This panel would be annually composed of 3 members: an independent HM MCSI member i.e. not the local liaison inspector; a Central Council nominee; and an AJCE nominee. When called upon, one final member drawn from the local MCC would join the national element of the panel.
These models were settled after a number of discussions, both internal and with stakeholders e.g. Central Council of Magistrates' Courts Committees; Association of Justices' Chief Executives; Justices' Clerks Society; Magistrates' Association; and HM MCSI.
Some of the advantages and disadvantages to each model are rehearsed below. The list is by no means exhaustive.
A local panel of 3 local members
Each MCC to constitute a panel annually, composed of:
3 MCC/Selection Panel members [or 3 members nominated by the MCC/Selection Panel members]
to be employed by neighbouring MCCs, as applicable.
• Advantages
Person being the subject of the alleged breach is judged by peers; independence ensured as panel not from the same MCC.
Would afford local members the opportunity to extend their skills base by seeing a different side to their corporate responsibilities.
• Disadvantages
Resource intensive, locally and nationally. Every MCC would be obliged to review/appoint/confirm a panel each year.
Whilst members may be re-appointed, these panels may rarely, if ever, be used
Possibility of wasted training costs.
A local panel of 3 members
Each MCC to constitute an internal panel annually, composed of:
an MCC member;
a Selection Panel member; and
an independent HM MCSI member i.e. not the local liaison inspector.
• Advantages
Very much a local panel where the person being the subject of the alleged breach is judged by peers.
Would afford local members the opportunity to extend their skills base by seeing a different side to their corporate responsibilities.
• Disadvantages
Resource intensive, locally and nationally. Every MCC would be obliged to review/appoint/confirm a panel each year.
Whilst members may be re-appointed, these panels may rarely, if ever, be used
Possibility of wasted training costs.
MCC/selection panel members may feel awkward about being asked to judge a colleague they have selected/working with.
Investigation may be subject to allegations of lack of independence.
A national/local panel of 4 members.
This panel would be annually composed of 3 members:
an independent HM MCSI member i.e. not the local liaison inspector;
a Central Council nominee; and
an AJCE nominee.
When called upon, one final member drawn from the local MCC would join the national element of the panel.
• Advantages
Cheaper, more efficient option as there is only one set of start up costs.
Whilst there is still a need to review the panel members annually, they may be re-appointed.
National members may already be familiar with formal investigative personnel e.g. Internal Assurance Division of LCD.
Local members need only be approached/appointed if problems arise - rarely, we hope.
Balance of members ensures both independent investigation and local input.
• Disadvantages
In the highly unlikely event that there is more than one alleged breach, the panel may experience conflicting priorities, in responding to requests to investigate.