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» Stipendiary Magistrates sitting with lay justices
This consultation paper, issued by the Lord Chancellor, Lord Irvine of Lairg, seeks comments on the proposal that the Stipendiary Bench should be unified to form a single judicial corps with national jurisdiction, headed by a senior judicial figure. The Lord Chancellor also seeks views on the proposal that the judicial title of Stipendiary Magistrates should be changed.
Comments are sought on the following questions:Should the Metropolitan and Provincial Stipendiaries be amalgamated to create a single judicial corps?
Should Stipendiary Magistrates be given national jurisdiction?
Should there be statutory provision for a judicial head of the Stipendiary Bench?
Should there be statutory provision for one or more deputies to the Chief Magistrate? Should there be a provision for a London and provincial deputy?
If the Chief Magistrate is appointed from outside London, how should the functions of the Chief Metropolitan Stipendiary Magistrate that relate specifically to London be discharged?
Is there any continued justification for separate statutory appointment/removal provisions for Metropolitan and Provincial Stipendiary Magistrates?
Should the appointment of Stipendiary Magistrates be brought into line with the arrangements that exist for the Circuit and District Benches?
Should legislation provide for particular types of case that should be dealt with by a mixed bench or a Stipendiary Magistrate sitting alone?
Should such sittings be subject to directions made by the Lord Chancellor with the concurrence of the Chief Stipendiary Magistrate?
Should the title of Stipendiary Magistrates be changed to District Judge (Magistrates' Courts)?
Comments on any or all of these proposals should be made in writing by 13 May 1998 and addressed to:
Your comments, clearly marked for the attention of Mr R McGowan, may also be e- mailed to: enquiries.lcdhq@gtnet.gov.uk
Paper copies of the consultation paper may also be obtained from Mr McGowan.This paper can be downloaded in both Word 7 and text formats.
In a Statement in both Houses of Parliament on 29 October 1997, the Government announced proposals for the future structure of the Magistrates Courts Service as part of its policy to improve the speed and efficiency of the criminal justice system.
The Magistrates' Courts deal with over 97% of criminal cases prosecuted in England and Wales. The overwhelming majority of cases (including those in the Youth Court and Family Proceedings Court) are heard by lay justices, of which there are over 30,000. A total of 90 Stipendiary Magistrates sit in Magistrates' Courts in London and a number of provincial centres. The holders of these judicial offices therefore have a key role in the success of the strategy for reducing delay. The Government values the contribution made by those individuals who give their own time, without payment, to the lay magistracy and wishes to consider how the particular expertise of Stipendiary Magistrates might best be organised and deployed.
Stipendiary Magistrates have played an important role in the administration of criminal justice for over 200 years. Initially they were appointed only in London, but appointments have, over the years, been made also in towns and cities elsewhere in England and Wales and in the last decade in particular their numbers have grown quite rapidly in response to local demand. Increasingly, Stipendiary Magistrates have become an integral part of the dispensation of summary justice throughout the jurisdiction and it has been suggested (endnote 1) that their contribution could be more effectively and efficiently harnessed if the two branches of the Stipendiary Bench were to form a single judicial cadre whose members enjoyed national, rather than local jurisdiction.
The report on the Review of Delay in the Criminal Justice System (the Narey Report) was published in February 1997. While rejecting the wholesale replacement of lay magistrates with Stipendiaries, the report recommended, among other proposals for reducing delay, that Stipendiary Magistrates should be able to sit alone in the Youth Court and should specialise in the management of particularly complex cases.
This paper seeks views on the proposal that the Stipendiary Magistracy should be established as a single cadre of judicial officers enjoying national jurisdiction - achieved by a single statutory appointment regime for Stipendiary Magistrates. Views are also sought on the future role of the Chief Metropolitan Magistrate, including whether the functions of this office should be subsumed into the office of a national, judicial president. The purpose of this consultation paper is to draw together the above proposals and recommendations and seeks views on the following issues:-
Whether the Metropolitan and Provincial Stipendiary Benches should be amalgamated to create a single judicial Bench with jurisdiction throughout England and Wales;
Whether the statutory appointment provisions should be amended to permit appointment to the national office of Stipendiary Magistrate, together with a power to assign office-holders to sit anywhere in England and Wales;
Whether the Stipendiary Bench should be headed by a national judicial President and what the role and functions of such an office should be;
What should be the future role of the Chief Metropolitan Magistrate; and
What should be the arrangements for Stipendiary Magistrates sitting with lay justices.
Whether the judicial title of Stipendiary Magistrate should be changed.
The changes outlined in the following paragraphs are proposed on the understanding that the terms and conditions of service of those Stipendiary Magistrates currently in office will not be changed to enforce the compulsory move of the office-holder to another location, save in the overriding requirements of the interests of the administration of justice and in consultation with the national judicial President.
The Stipendiary Magistracy of the present day traces its origins to the first half of the eighteenth century. In London, a series of scandals involving individual lay justices and the lack of an effective cadre of law enforcement officers led first to the appointment of 'reliable' magistrates from the ranks of the Middlesex Justices and later, following the Gordon Riots in 1780 of "Police Magistrates" attached to seven new police "Offices". Throughout the nineteenth century, until the present day, Stipendiary Magistrates have predominated in London, although from the 1920s onwards lay justices have increasingly been reintroduced into the summary justice system, returning to full status in 1964.
The title of 'Metropolitan Stipendiary Magistrate' was created by the Justices of the Peace Act 1949.
Outside London, Stipendiary Magistrates were appointed to supplement the lay benches during the Industrial Revolution when expanding urban areas were faced with a shortage of lay magistrates. Nevertheless, the tradition of 'local' justice has prevailed away from the capital and lay benches have continued to predominate even in the larger metropolitan centres.
The title 'Provincial Stipendiary Magistrate' is used to denote those full-time, salaried office-holders who sit in magistrates' courts outside London, but has no statutory basis.
On 1 January 1998 there were 30,361 lay Justices in England and Wales, compared with 49 Metropolitan and 42 Provincial Stipendiaries. The numbers of Stipendiary Magistrates are limited by statute: the Justices of the Peace Act 1997, at sections 16 and 11 respectively, sets maxima of 60 in London and 50 elsewhere, though these may be altered by Order in Council.
Metropolitan Stipendiary Magistrates are appointed to exercise their jurisdiction in each of the London Commission areas and as Justices of the Peace for the 'retained' Counties of Essex, Hertfordshire, Kent and Surrey. The Lord Chancellor may assign Metropolitan Stipendiaries to petty sessional divisions of the Inner London area, but such assignment does not preclude a Stipendiary from exercising jurisdiction for any other division. Sittings outside the metropolitan area are, however, subject to specific authorisation by the Lord Chancellor. Similarly, Provincial Stipendiaries are appointed to a Commission area or areas and may only sit outside those areas with special authority.
Apart from special jurisdiction under the Extradition and Mutual Assistance Acts, the exercise of powers concerning defendants and witnesses before the International War Crimes Tribunal (currently in relation to cases arising from Bosnia and Rwanda), and the licensing of minors to perform for profit abroad - which are exclusively the domain of Metropolitan Stipendiaries - the judicial duties of Stipendiary Magistrates are the same throughout the country, covering the same range of business falling to be dealt with by the lay magistracy, including family work, except for limited involvement in gaming, betting and licensing matters.
Unlike other groups of judicial office-holders, Stipendiary Magistrates do not constitute a single judicial corps for historical reasons that are underpinned by statute. As a result, the Stipendiary bench lacks a 'corporate' national identity. Metropolitan and Provincial Stipendiaries have separate representative associations which meet for the purpose of discussing questions relating to the role and function of their office and making representations to Government departments and other agencies in respect of legislative changes affecting the criminal justice system and other related issues. In 1995 six representatives from each of the metropolitan and provincial benches met with a view to furthering closer liaison between the two and a Joint Council of Stipendiary Magistrates has now been formed. Nevertheless, it is possible that less weight may in the past have been given to the views of Stipendiary Magistrates across the country as a whole than they deserved simply because of the fragmented nature of the Stipendiary Bench and the absence of a judicial President who could speak authoritatively on its behalf.
Though Stipendiary Magistrates conduct the vast majority of their sittings in the commission area in which they are appointed, increasing demands have been made upon their services in areas in which there is either no Stipendiary, or the Stipendiary is absent through illness. In 1995, for example, the Chief Metropolitan Magistrate was assigned to hear the committal for trial of Rosemary West. In addition, Stipendiaries have often been assigned to assist local Magistrates' Courts Committees with the handling of groups of similar cases in which difficult points of law may be raised, for example where there is mass trespass preceding a new road or airport development, or other areas of localised civil disturbance.
It is both administratively inefficient and illogical for Stipendiaries in such situations to be required to be given specific jurisdiction in order to meet with such requests. Fluctuating workloads - both in London and elsewhere - mean that levels of sittings by lay justices may be more easily sustained at a stable level if there exists greater flexibility for Stipendiaries to be redeployed across commission areas. The current arrangements also act as a barrier to Stipendiary Magistrates wishing to transfer permanently from one area to another. If Stipendiary Magistrates were instead, like Circuit or District Judges, given a national jurisdiction, this would (with local agreement) enhance the efficiency and flexibility with which the Stipendiary Magistracy could be deployed to respond to changes in national workload patterns.
Should the Metropolitan and Provincial Stipendiaries be amalgamated to create a single judicial corps?
Should Stipendiary Magistrates be given national jurisdiction?
The Chief Metropolitan Stipendiary Magistrate is a statutory office (section 16 of the Justices of the Peace Act 1997) although its role and responsibilities have evolved over 250 years. The Act provides that "The Lord Chancellor shall designate one of the metropolitan stipendiary magistrates to be the chief metropolitan stipendiary magistrate".
Apart from his judicial duties, which include, in practice, hearing many of the more sensitive, long and complex cases that are dealt with by Stipendiary Magistrates, the Chief Metropolitan Magistrate is also responsible for arranging the assignment and deployment of Metropolitan Magistrates. He is required to cause meetings of all the Metropolitan Stipendiaries (and, if present, to preside over them) every three months. He is chairman of the Division of Work Committee (endnote 2). In addition to these tasks he is consulted by the Lord Chancellor's Department, the Home Office and other prominent constituents of the criminal justice system on matters related to the magistracy and other matters of general concern.
The Chief Metropolitan Magistrate is a nationally known figure, and as such is called upon to undertake numerous other 'representative' functions such as addressing groups of justices throughout England and Wales on matters of concern and interest, particularly in areas where the appointment of a Stipendiary Magistrate is being considered. He is a member of the Lord Chancellor's advisory Committee for Inner London, a member of the Magistrates' Courts Rules Committee and, ex officio, a member of the Magistrates' Courts Consultative Council. A special function of the office is membership of the Board of Green Cloth, an ancient judicial institution of the Royal Household - concerned with the licensing jurisdiction of the Sovereign in the area in the immediate proximity of Buckingham Palace.
Another important function of the office is its role in promoting co-operation between the Metropolitan and Provincial Stipendiary Benches. The Chief Metropolitan Magistrate is currently the Chairman of the Joint Council. However, the two benches continue to retain their individual identities and there remains a separate, non-statutory office of Chairman of the Provincial Stipendiary Magistrates.
The proposals for fusion contained in section B above include the suggestion that a unified Stipendiary Bench would benefit from a senior judicial figure at its head who would have a 'presidential' role, similar in some respects to that currently performed by the Chief Metropolitan Stipendiary Magistrate but changed and enlarged to have nation-wide authority. The office-holder would, while remaining a 'working' magistrate, also act as a judicial administrator - for example giving directions as to the composition of Youth and Adult courts as set out in paragraph 36 below, deploying judicial resources in accordance with court business needs - and would also have a 'pastoral' role in relation to Stipendiary Magistrates.
There is, in theory, no reason why a future Chief Stipendiary Magistrate should not be appointed from anywhere in England and Wales. There is a presumption in favour of the office-holder being based in London because of the responsibility for hearing eg. Extradition cases and the need for the chairman of the Inner London Magistrates' Courts Committee to have a full and detailed knowledge of the Inner London Service. It is a fact that there are more Stipendiary Magistrates in London than in the whole of the rest of the country. However, there is a risk that a London-based Chief Magistrate could be perceived as being responsive only to the needs of the capital unless he or she spent a considerable amount of time in other areas. This might, however, be to the detriment of the overall effectiveness of the office- holder.
Alternatively, the designation of one or more Stipendiaries, perhaps one in London and one elsewhere, to act as deputies to the Chief Stipendiary Magistrate, might enable him or her to delegate certain functions. If one Deputy were appointed to London and one to the rest of the country, this might go a considerable way towards preserving the best features of the current Bench while at the same time reaping the benefit of fusion. In particular, the London Deputy might be designated to fulfil at least some of the Chief Metropolitan Magistrate's current functions in relation to the Inner London Magistrates' Courts Service, thus enabling the Chief Magistrate more time for his role as judicial leader of the cadre of Stipendiaries and for sitting on the heaviest cases which arose nationally.
Should there be statutory provision for a judicial head of the Stipendiary Bench?
Should there be statutory provision for one or more deputies to the Chief Magistrate? Should there be a provision for a London and provincial deputy?
If the Chief Magistrate is appointed from outside London, how should the functions of the Chief Metropolitan Stipendiary Magistrate that relate specifically to London be discharged?
Stipendiary Magistrates are appointed by Her Majesty on the advice of the Lord Chancellor under Sections 11 and 16 of the Justices of the Peace Act 1997,. In London. the Lord Chancellor consults the Chief Metropolitan Magistrate over the necessary number of Metropolitan Stipendiaries, and, when a recruitment need arises, invites applications from Acting Metropolitan Magistrates who are then considered on the basis of the confidential comments he has received from the judiciary and professional community and their performance before an interview panel.
The criteria for appointing a Provincial Stipendiary to a commission area where none has previously been appointed were first published in 1988. The Venne working party (see footnote to para 3 above) broadly endorsed the existing criteria (which focus on the ability of the lay bench, in terms of its size, availability and deployment, to deal expeditiously with the anticipated volume of work) but recommended closer liaison between the Judicial Appointments Group of the Lord Chancellor's Department and the local bench before such appointments were made.
Once the case for appointing a Stipendiary has been established, the 'vacancy' is then advertised among the ranks of serving and acting Stipendiaries. The statutory appointment and selection criteria are common to both Metropolitan and Provincial offices, but the 'job description' may be supplemented by additional specifications to reflect local needs. Final selection is by way of confidential reports on 'experimental' sittings undertaken by shortlisted candidates in the court(s) where the vacancy exists and competitive interview before a panel that makes its recommendations to the Lord Chancellor (who will again also take into account confidential comments from the professional community which are collected on all candidates for judicial office).
The statutory provisions set out above, which reflect the historical differences in the development of the offices of Stipendiary Magistrate in and outside London, give rise to a further anomaly. The power of appointment is, on the face of the statute, mandatory in London but discretionary elsewhere. Outside London, successive Lord Chancellors have rarely forced the appointment of a Stipendiary Magistrate on an unwilling bench either in terms of creating a post for a Stipendiary where none has previously existed or of filling a 'vacancy' caused by a death or retirement where the bench has indicated that an appointment is not required. Similarly in London, Lord Chancellors have not automatically made the appointments which would have been necessary to achieve the statutory ceiling for Metropolitan Stipendiary Magistrates, but have instead been guided by the Chief Metropolitan Stipendiary Magistrate on the number necessary to achieve the appropriate balance with the lay Bench in the light of anticipated workload.
It is arguable, given of the role and functions of the Stipendiary bench and the endorsement by the Venne working party of the 'provincial model' for making appointments, that the power of appointment should also be discretionary in London.
Linked to the issue of appointment to the office of Stipendiary Magistrate is the question of assignment. Unlike Circuit Judges and (since January 1995) District Judges, Stipendiary Magistrates are not appointed at large but limited in their jurisdiction to the commission areas to which they are appointed. At present, when a Stipendiary Magistrate moves from one commission area to another, or from the metropolitan bench to a provincial commission area, the Queen is required to sign a new instrument of appointment. This has become more common as Commission areas which do not have a Stipendiary have found an increasing need to draw upon one in order to assist with the disposal of a particular key heavy case or a recurrent but temporary run of cases whose subject matter is unusual.
There is a need to ensure that larger courts with permanent Stipendiaries can rely on the services of those Stipendiaries while at the same time allowing sufficient flexibility to enable the permanent Stipendiaries to visit other areas as required. A more rational disposition would be for the Warrant of appointment of a Stipendiary Magistrate to confer jurisdiction throughout England and Wales, but for the Stipendiary then to be assigned administratively by the Lord Chancellor to a particular Commission area thus bringing the Stipendiary Magistracy into line with the Circuit and District benches. This would allow Stipendiaries to exercise jurisdiction in any Magistrates' Court for a temporary period, but would also provide the necessary protection against compulsory transfer to another area at the behest of the LCD, since the first appointment by the Lord Chancellor would become a term of the original appointment.
There are other anomalies, such as the lack of an express provision for the Lord Chancellor to recommend to the Queen the appointment of Metropolitan Stipendiaries, and a difference in the tenure of office. Metropolitan Stipendiaries may be removed from office by the Lord Chancellor 'for inability or misbehaviour' while Provincial Stipendiaries 'shall not be removed from office except on the Lord Chancellor's recommendation'. Successive Lord Chancellors have interpreted these provisions to mean the same thing in practice (although neither has ever, in fact, been exercised). In comparison with other judicial offices for which the Lord Chancellor has the power either of appointment or removal, there appears to be no justification for such differences and it is suggested that the more explicit formulation in Section 16 is to be preferred, which corresponds to the form which applies to other judicial offices.
Is there any continued justification for separate statutory appointment/removal provisions for Metropolitan and Provincial Stipendiary Magistrates?
Should the appointment of Stipendiary Magistrates be brought into line with the arrangements that exist for the Circuit and District benches?
Stipendiary Magistrates generally sit alone, but may sit with a lay bench where law or practice require it. This is the case in the Family Proceedings Court, where Stipendiaries have to be nominated by the Lord Chancellor, and in the Youth Court (where Metropolitan - but not Provincial - Stipendiaries have again to be nominated by the Lord Chancellor). Recently, the Narey report (see para 4 above) recommended that Stipendiary Magistrates be given the jurisdiction to sit alone in the Youth Court, and should specialise in the management of particularly complex cases (but see para 34 below).
Research commissioned by the Venne working party from the University of Leeds showed variations in the time spent by Stipendiaries on certain functions of the office in London and elsewhere. Provincial Stipendiaries sit more often with lay justices for training purposes, whereas Metropolitan Stipendiaries tend to spend a higher proportion of their time on administrative/committee work associated with the running of their court. Nevertheless, the primary function of a Stipendiary Magistrate, wherever based, is judicial decision-making sitting alone.
While it is often said that Stipendiaries are quicker and more efficient than the lay bench, (the Leeds research suggested that Stipendiaries execute the same work as about 30 justices in the provinces and 23 in London), and while it is true that a Stipendiary sitting alone will, by definition, spend fewer man/hours deliberating any given case than a bench of three, this is not the sole consideration. The working party recommended particular categories of work, in addition to the special extradition jurisdiction exercised in London, that should normally be undertaken by Stipendiaries sitting alone. These are: long cases or those involving complex points of law, evidence or procedural issues; some mode of trial decisions; interlinked cases and public interest immunity applications.
The working party commented "we have... been struck by the number of situations reported to us where benefit is seen to be derived from a Stipendiary sitting with lay justices. It is a practice which, in appropriate circumstances, and as an aid to the development of chairmanship skills, we wish to commend, and to invite others to consider more readily." In particular, the use of mixed benches in the Youth Court has proved its worth in cases in which serious criminal offences are involved.
The historical development of the stipendiary bench means that Provincial Stipendiaries have closer working relations in the execution of judicial duties (especially in the youth courts) than their Metropolitan colleagues, and are also more involved in contacts through training. In fact, outside the youth and family proceedings courts, lay justices do not sit with Metropolitan Stipendiaries in Inner London.
The Government considers that the power for Stipendiary Magistrates to sit alone or with lay justices in any jurisdiction should in any event be stated in legislation. The Crime and Disorder Bill currently before Parliament creates a power for Stipendiary Magistrates to sit alone in the Youth Court, as recommended in the Narey report, while preserving the use of mixed benches. As the Venne Report recognised, considerable benefits may be derived from such sittings, particularly in offering training to Bench Chairmen so that a constructive approach can be adopted across all benches in a Commission area. Guidance and criteria for joint or individual sittings would evolve over time, but operationally the Government proposes that any such arrangements should be in accordance with directions made by the Lord Chancellor with the concurrence of the Chief Stipendiary Magistrate.
Should legislation provide for particular types of case that should be dealt with by a mixed bench or a Stipendiary Magistrate sitting alone?
Should such sittings be subject to directions made by the Lord Chancellor with the concurrence of the Chief Stipendiary Magistrate?
The office of Stipendiary Magistrate is over two hundred years old. The title may owe something to the circumstances in London that led to its creation (see paragraph 6 above), and in particular the need to differentiate the professional from the lay justices. The passage of time has, however, rendered this titular distinction unnecessary and it is anachronistic to define a modern judicial office in terms of salary rather than function.
With a very few exceptions, Stipendiary Magistrates have the same powers and jurisdiction as lay magistrates. Nevertheless, as professional lawyers enjoying security of tenure and full independence, they are clearly and demonstrably also members of the full- time judiciary.
In the exercise of the great majority of their judicial functions they sit alone (see paragraph 31 above). In this respect the office is more akin to those others of first instance that enjoy the title of 'judge'.
The title of County Court and District Registrar was changed to District Judge in 1991 in recognition of the wholly judicial function of an office that had originally been largely administrative. In the wake of this change, there was consultation in 1992 on the most appropriate judicial title for Stipendiary Magistrates, although the exercise was inconclusive.
The proposals for unifying the Stipendiary Bench, given statutory force, will abolish the title of Metropolitan Stipendiary Magistrate. New appointees will, like Circuit and District Judges, be appointed to a national office and assigned administatively to a commission area or areas. In terms of salary, Stipendiary Magistrates are on a par with District Judges and many judicial tribunal offices. There are strong arguments in favour of a title that recognises the place of the Stipendiary Bench in the appropriate tier of the judicial hierarchy.
The title of District Judge is, at present, identified with the civil jurisdiction. However, just as Stipendiary Magistrates exercise similar powers to District Judges in respect of family proceedings, so District Judges also have powers to commit people to prison. District Judges of the Family Division deal exclusively with family cases and sit only in London, but exercise the same powers in respect of proceedings involving children as Circuit Judges sitting outside London. The title of District Judge is not, therefore, an exclusive descriptor of jurisdiction or geography. The title 'District Judge (Magistrates Courts)' or 'District Judge of the Magistrates Courts' might logically replace Stipendiary Magistrate as a title that confers proper recognition of the judicial functions of the office and identifies its status and position among the professional judiciary.
Should the title of Stipendiary Magistrate be changed to District Judge (Magistrates' Courts)?