remove the existing requirement for justices of the peace to sit as judges in the Crown Court on committals for sentence from the magistrates' courts; and
remove the existing requirement for lay justices to sit as judges in the Crown Court on appeals against conviction or sentence by the magistrates' courts.
This paper has been prepared on the basis of the law of England and Wales. There are no similar provisions in Scotland or Northern Ireland.
The courts have for many years wrestled with the problem of delay. Delay is inimical to justice. It is costly in both financial and emotional terms to all the parties involved. It may reduce the efficacy of the sentence of the court because that event is so far removed from the time of the wrongdoing. It may increase the time that the accused spends in custody awaiting sentence or determination of his appeal. It may thus undermine public confidence in the criminal justice system.
The time now dedicated to appeals and committals for sentence takes judges away from dealing with committals for trial - the central work of the Crown Court. It also takes justices away from their work in the magistrates' courts. In both courts judicial time is limited and the question to be resolved is how to achieve the right balance between the benefit derived from the current procedure and the negative effect of the limitations it imposes on the amount of time available for the other work of the courts.
The Government has decided, for this reason and others, that the time has come to re- consider the role of justices in the Crown Court.
The composition of the bench in the Crown Court largely replicated the arrangements existing before the Courts Act 1971. Before 1971 justices of the peace sat in Quarter Sessions on appeals from Petty Sessions. As now, these took the form of a re-trial without a jury. In the counties appeals were heard by the Appeal Committee of Quarter Sessions. In boroughs the Recorder heard appeals alone, except when they were appeals from juvenile courts. He then sat with two justices who were members of the juvenile panel. The justices also sat on committals for sentence and trials.
The Royal Commission on Assizes and Quarter Sessions 1966-69 recommended that justices continue to be associated with the work of the new Crown Court, as assessors for useful training. The Magistrates' Association opposed this proposal and wished to retain full membership of the Crown Court bench. The then Lord Chancellor (and his successor) agreed to continue their full membership, subject to the Association satisfying him that the justices could give sufficient time to the work of the new court.
The rapid expansion of the work of the Crown Court and the inexorable increase in hearing times for cases has limited the involvement of the lay justices. The composition of the bench is now governed by the Supreme Court Act 1981 and the Crown Court Rules 1982.
Committals for sentence. Sections 37 and 38 of the Magistrates Courts Act 1980 provides that the court may, where the accused has pleaded guilty or been found guilty, commit him to the Crown Court for sentence if it is of the opinion that the offence or the combination of offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose ( endnote 1. ) ; or in the case of a violent or sexual offence, that a custodial sentence for a term longer than the court has power to impose is necessary to protect the public from serious harm from him.
Appeals. Section 108 of the Magistrates' Courts Act provides
that (1) A person convicted by a magistrates' court may appeal to the
Crown Court -
if he pleaded guilty, against his sentence;
if he did not, against the conviction or sentence
Constitution of the court. Section 74 (1) of the Supreme Court Act 1981 provides that on any hearing by the Crown Court of any appeal or of proceedings on committal to the Crown Court for sentence, the Crown Court shall consist of a judge of the High Court or a Circuit Judge or a Recorder who, subject to the following provisions of this section, shall sit with not less than two nor more than four justices of the peace.
Crown Court Rules may authorise or require a judge of the High Court, Circuit judge or Recorder, in such circumstances as are specified by the rules, at any stage to continue in the proceedings with a court from which any one or more of the justices initially constituting the court has withdrawn, or is absent for any reason.
The Crown Court Rules 1982 (as amended) also make provision as to the disqualification of justices as follows-
A justice of the peace shall not sit in the Crown Court on the hearing of an appeal in a matter on which he adjudicated or of proceedings on committal of a person to the court for sentence under sections 37 or 38 of the Magistrates' Courts Act 1980 by a court of which he was a member.
Committals for sentence. Since 1997 there has been a considerable increase in the number of cases which the magistrates have committed to the Crown Court for sentence in accordance with sections 37 and 38 Magistrates Courts Act 1980.
Fig 1Committals for sentence - Crown Court net receipts - England and Wales
Source: Court Service |
Appeals against conviction and sentence. The volume of appeals to the Crown Court under section 108 Magistrates' Courts Act 1980 is reasonably static - at around 2500 a year. In recent years the ambit of the Crown Courts appellate jurisdiction has increased, and the provisions of the Crime and Disorder Act ( endnote 2. ) , will add to that workload. The appeal is by way of re-hearing ( endnote 3. ) and is therefore necessarily time-consuming both for the courts and for the members of the public, the police and others who must appear as witnesses.
Very little recent data is available on the mix of cases in the magistrates' courts. However, the increase in committals for sentence does not appear to arise from a general increase in the seriousness of offences coming before the magistrates' courts, but from the implementation with effect from 1 October 1997 of section 17A Magistrates' Courts Act 1980, pursuant to section 49 Criminal Procedure and Investigations Act 1996. That section made significant changes to the procedure which had to be adopted in magistrates' courts when dealing with offences triable either way ( endnote 4. ).
Section 17A provides that before deciding on mode of trial ( endnote 5. ) , the court shall explain to the accused in ordinary language that he may indicate whether (if the offences were to proceed to trial) he would plead guilty or not guilty. And that if he indicates he would plead guilty the court must proceed as in the sub-section (6) procedure below. He may then be committed for sentence to the Crown Court if the court thinks that appropriate.
The sub-section (6) procedure is that, if the accused indicates that he would plead guilty, the court shall proceed as if the proceedings were the beginning of the summary trial and the accused had pleaded guilty.
The purpose of these changes to the procedure (now commonly called 'plea before venue') was to ensure that -
an accused was given an opportunity to enter a plea of guilty as soon as possible, (and thus be in a position to claim additional credit ( endnote 6. )as compared with any plea of guilty entered in the Crown Court); and
that cases which could properly be dealt with in the magistrates' court remained there, and to that end to ensure that the magistrates' court was fully informed before deciding whether or not to commit for sentence.
The court may not retain jurisdiction (and sentence), but must commit the accused for sentence in the Crown Court where:
after discount any offence ought to attract a sentence in excess
of six months; where there is more than one offence, the total sentence
would be in excess of twelve months; it is appropriate to make an order
under section 53(3) Children and
Young Persons Act 1933 ( endnote 7. )
Where the court retains jurisdiction (and sentences) because it has made allowance for the plea of guilty (early plea discount), and for any other relevant mitigating factors it should so indicate. ( endnote 8. )
The effect of the new procedure is that the accused's indication of plea is now heard before any decision is made on where he should be tried. Whereas previously the emphasis was on whether the case should be heard in the magistrates court or the Crown Court, it is now on whether the accused wishes to plead guilty or not. So whereas previously an accused might have been committed to the Crown Court for trial and then pleaded guilty there, now he is pleading guilty in the magistrates' court and being committed for sentence in the Crown Court. Hence the increase in the number of committals for sentence, though that increase is not precisely matched by the decrease in committals for trial.
The new procedure also focuses the mind of the defendant who is inclined to procrastinate (and would previously have elected trial in the Crown Court).
The increase in the number of the cases to be heard by the Crown Court thus dictates an increase in the number of justices sitting in that court. That problem would be mitigated by asking the same number of justices to sit and increasing the amount of time they spent in the Crown Court. That is not however a realistic prospect given the part- time nature of their role. Rule 5 (disqualification) adds to the problem since the increase in the number of committals will produce a corresponding number of disqualifications. This is making it more difficult to secure the attendance of sufficient justices in some parts of the country.
The plea before venue provision has also resulted in an increase in the seriousness of the cases being committed for sentence. This poses a rather different problem. The Rules state that:
Where a judge of the High Court, Circuit judge or Recorder sits
with justices of the peace he shall preside, and -
the decision of the court may be a majority decision; and
if the members of the court are equally divided, the judge of the High
Court, Circuit judge or Recorder shall have a second or casting vote.
Thus where the Court is constituted in accordance with section 74(1) Supreme Court Act 1981 the judge of the High Court, Circuit Judge or Recorder may, notwithstanding his position as presiding judge, be outvoted by the lay justices. Undoubtedly Parliament, in framing the terms of the Act, acknowledged the possibility of that situation arising. That was, however, prior to the implementation of the 'plea before venue' provisions. Some of the cases now being committed for sentence following a plea of guilty in the magistrates' courts are of a much more serious nature than those lay justices are accustomed to hearing. Since the 'plea before venue' procedure applies to all either way offences, it is impossible to distinguish such cases. It is difficult to sustain a procedure which allows for the lay justices to outvote the presiding judge on cases which are quite outside the normal ambit of their work.
Parliament has provided for the practical difficulties associated with the requirements for the composition of the bench:
Rule (4) (1) - The Crown Court may enter on any appeal or any proceedings
on committal to the Court for sentence notwithstanding that the Court
is not constituted as required by section 74(1) Supreme Court Act 1981
or Rule 3 if it appears to the judge that the court could not be so
constituted without unreasonable delay and the Court includes -
[licensing appeals;
[betting, gaming, lotteries appeals];
[appeal or committal of juvenile] one justice who is a member of the
juvenile court panel; [Affiliation appeal];
in any other case, one justice...............
Paragraph 3 of that rule allows the court to continue with any proceedings
with a Court from which any one or more of the justices has withdrawn,
or is absent for any reason and section 74 (6) Supreme Court Act 1981
provides that:
No decision of the Crown Court shall be questioned on the ground that
the court was not constituted as required by or under sub-sections (1)
or (2) unless objection was taken by or on behalf of a party to the
proceedings not later than the time when the proceedings were entered
on, or when the alleged irregularity began.
In practice this means that on those occasions when the Crown Court finds it impossible to secure the attendance of justices, cases are not listed without first securing the consent of the parties. But this is clearly only meant for circumstances in which the case would have to be otherwise adjourned and not as a standard procedure.
Removing the requirement for lay justices to sit on cases committed to the Crown Court for sentence would require an amendment to section 74(1) of the Supreme Court Act 1981. The argument for amendment is strongest in cases which are committed following a guilty plea under the new "plea before venue" procedure and which are of such seriousness that, had the plea indication been 'not guilty', the magistrates would not have contemplated trying the case, but would have committed it for trial. It might be argued that cases of this sort should be distinguished from those which magistrates would previously have committed for sentence following summary trial. But, since all cases are committed for sentence under the same statutory provisions, and are subject to the "plea before venue" procedure, it is not possible to make such a distinction.
The procedural requirements for appeals mirror those for committals for sentence. The justices are themselves judges of the Crown Court when it exercises its appellate role, and must take a full part in all decisions. However, in matters of law, they must take a ruling from the presiding judge in the same way as a jury. The judge will retire with the lay justices, and they will reach a decision on the facts within the framework of the law as explained by the judge. That situation is analogous to that existing in the magistrates' courts, where the justices' clerk advises the lay justices on the law. In practice this is a unique arrangement in the Crown Court. All other contested proceedings are heard and disposed of before a single judge of that court sitting with a jury.
Appeals against conviction are a re-hearing of the case. Appeals against sentence relate only to the sentence passed by the lower court. If justices were no longer to sit in these cases the judge would adjudicate alone on these matters. By their very nature these are cases which have been thought suitable to be heard in the magistrates' courts and on which the role of the justices could be considered stronger than for committals for sentence.
In 1997/8 the cost of justices allowances when sitting on committals for sentence and appeals was £305,000.
One argument put forward for the continued involvement of magistrates in the Crown Court is the benefit to be derived from observing court handling and sentencing skills. Against this has to be considered whether this is the most effective and cost efficient form of training considering the needs of the criminal justice system as a whole; and whether such training could not continue to be provided without the need for justices to form part of the bench.
Should section 74 of the Supreme Court Act 1981 be amended to remove the requirement for lay justices to sit on all criminal cases in the Crown Court?
Should the amendment apply only to committals for sentence?
Should the amendment apply to adult and youth defendants?
Should the lay justices continue to sit but as assessors only, with no vote?
Are there other means of meeting the training needs of the lay justices?
If you would like to comment on the proposals in this paper, please would you send your responses by 21 October 1998 to the following address:
Miriam Hepburn
Lord Chancellor's Department
Selborne House
Victoria Street
London SW1E 6QW
Tel: 0171-210 1394
Fax: 0171-210 8725
Further copies of the paper can be obtained from this address.
When responding it would be helpful if you would explain who you are and, where relevant, who you represent.
Please ensure that you mark your response clearly if you wish the Government to keep your name or the contents of your response confidential. Otherwise your name and the general contents of your response may be made public in response to questions under the Open Government Initiative.
The Lord Chief Justice
The Master of the Rolls
The President of the Family Division
The Vice Chancellor
The Senior Presiding Judge
Presiding Judges
Resident Judges
Bench Chairmen
Joint Council of HM Stipendiary Magistrates
Council of Her Majesty's Circuit Judges
Criminal Justice Consultative Committee
Magistrates Courts Consultative Committee
The Law Commission
Judicial Studies Board
Advisory Committee on Legal Education and Conduct
HM Magistrates' Court Service Inspectorate
Central Probation Council
Audit Commission
Legal Aid Board
HM Chief Inspector of Probation
Association of Chief Police Officers
Local Government Association
The Bar Council
The Law Society
Criminal Bar Association
Solicitors Association of Higher Court Advocates
Legal Aid Practitioners Group
Magistrates' Association
Association of Justices Chief Executives
Justices' Clerks' Society
Editor, Justice of the Peace magazine
Association of Chief Officers of Probation
National Association of Probation Officers
Justice
Liberty - National Council for Civil Liberties
Legal Protection Group
Legal Action Group
Law Centres Federation
Advice Services Alliance
Consumers Association
National Consumer Council
Federation of Independent Advice Centres
Equal Opportunities Commission
Commission for Racial Equality
British Legal Association
National Association of Citizens' Advice Bureaux
| 1. | In considering the seriousness of any offence for this purpose, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences. If such an offence was committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating feature. |
| 2. | s 4 Sex Offenders Orders, Anti-social Behaviour Orders and s 10 Parenting |
| 3. | s 79(3) Supreme Court Act 1981 |
| 4. | s 64 Criminal Law Act 1977 - an offence which, if committed by an adult, is triable either on indictment or summarily. |
| 5. | s 19 Magistrates' Courts Act 1980. The court shall consider whether, having regard to representations by the prosecutor or the accused, the offence appears more suitable for summary trial or trial on indictment. The court shall have regard to the nature of the case, the circumstances of the offence, whether the magistrates' courts powers of punishment are adequate and any other circumstances which appear to the court to make it more suitable to be tried one way than the other. |
| 6. | s 48 Criminal Justice and Public Order Act
1994. In determining what sentence to pass on an offender who has pleaded
guilty.....a court shall take into account
|
| 7. | Where a young offender is convicted on indictment of certain grave crimes he may be sentenced to long term detention. This sentence may be passed only on indictment and may not be passed by a youth court. A youth court which has before it an offence within this category must consider whether its own powers are adequate or whether it would be proper for the Crown Court to exercise its powers under s53 and sentence the youth to a period exceeding two years. |
| 8. | R-v- Warley, Lowestof and Staines Justices ex parte the Director of Public Prosecutions. If having made an appropriate discount a magistrates' court concludes that an appropriate sentence can be imposed if it uses its sentencing powers to the full it should adopt that course, but it would be helpful if in such a case the court were to indicate that it has only been able to retain jurisdiction because it has in fact made an allowance for the plea of guilty, and any other relevant mitigating factors. |