Magistrates' court (England and Wales)
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In England and Wales, a magistrates' court is a lower court which holds trials for summary offences and preliminary hearings for more serious ones. Some civil matters are also decided here, notably family proceedings. In 2015, there were roughly 330 magistrates' courts in England and Wales, though the government was considering closing up to 57 of these. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.
Almost all criminal proceedings start at a magistrates' court. Summary offences are smaller crimes (such as public order offences or most driving matters) that can be punished under the magistrates' courts limited sentencing powers – community sentences, fines, short custodial sentences. Indictable offences, on the other hand, are serious crimes (e.g. rape, murder); if it is found at the initial hearing of the magistrates' court that there is a case to answer, they are committed to the Crown Court, which has a much wider range of sentencing power. Either-way offences (such as theft) will ultimately fall into one of the previous categories depending on how serious the particular crime in question is (a minor theft will be dealt with in a magistrates' court; a serious theft will be dealt with in a Crown Court), although a defendant also has the right in such cases to elect for trial by jury in the Crown Court.
Cases are heard by a bench of three (or occasionally two) lay judges, or by a paid district judge; there is no jury at a magistrates' court.
Criminal cases are usually, although not exclusively, investigated by the police and then prosecuted at the court by the Crown Prosecution Service.
There are magistrates' courts in other common-law jurisdictions.
- 1 History
- 2 Jurisdiction and sentencing powers
- 3 Judges and other roles
- 4 Proceedings
- 5 Challenges to decisions of magistrates' courts
- 6 See also
- 7 References
- 8 External links
The current magistrates' courts are a continuation of the system of courts of petty session. Magistrates also previously presided in quarter sessions, but the abolition of these in 1972 removed the need for the distinction.
In London the Middlesex Justices Act 1792 created a separate system of courts presided over by magistrates, staffed with constables – based on the Bow Street Runners. These became known as police courts.
Jurisdiction and sentencing powersEdit
In criminal matters, magistrates’ courts (formerly known as a police courts in London, and petty sessions elsewhere) in England and Wales have been organised to deal with minor offences in a speedy manner. All criminal cases start in the magistrates' court and over 95 per cent of them will end there – only the most serious offences go to Crown Court.
Summary offences are the least serious criminal offences. They include driving offences, vandalism, criminal damage of low value, low-level violent offences and being drunk and disorderly. This kind of 'lesser' criminality will be dealt with in summary proceedings at a magistrates' court, where the defendant has no right to a jury trial and no formal indictment is necessary. Both verdict and sentence are solely in the hands of district judges or magistrates.
The sentencing powers of magistrates' courts are therefore limited, usually to a maximum of six months' imprisonment. When dealing with two or more separate either-way offences, the maximum total custodial sentence is 12 months. However, should there be more than one summary only offence, the court's powers are limited to a maximum sentence of six months imprisonment, the nominal maximum sentencing powers of the magistrates' court. The maximum fine available used to be £5,000. However, this was raised by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to allow unlimited fines from March 2015 for specified offences. There is no maximum aggregate fine (in the case of two or more offences). Some driving offences are punished by endorsement (licence points) and/or disqualification from driving for a period of time.
There are four types of sentence available to the magistrates - a discharge (either conditional or absolute); a financial penalty; a community order, which must include at least one of twelve possible conditions (such as supervision, unpaid work, curfew, treatment programmes for issues such as domestic violence or sexual offending, drug and alcohol rehabilitation, etc.); or custody (either immediately or as a suspended sentence). The majority of sentences are non-custodial. For either-way offences, if the magistrates feel that their powers of sentencing are insufficient, they can send the case up to a judge at the Crown Court, who can impose more severe sentences.
Often the point is to achieve restorative justice (compensation of victims of crime) and reformation of the offenders. These alternative punishments are called community sentences. A community sentence would usually consist of community payback, a duty to work between 40 and 300 hours unpaid in the community. This is often complemented by some kind of programme or treatment, offering a helping hand to offenders, and engaging them at the same time – ending a drug habit, coping with a mental illness, skills and qualifications for work, and more. Also, the judge (or magistrate) may issue orders with rules such as curfew, restraining orders (cannot go near their victim, for example) and many others. During serving of community sentences, similarly to suspended sentence, offenders usually will be supervised by a probation officer.
Either way offences can be dealt with either by the magistrates' court or in the Crown Court. There will be a hearing to decide on venue, hearing an outline of the case from both prosecution and defence. The guideline is whether, taking the prosecution case at its most serious, the court believes that a magistrates' court has sufficient powers of sentence. If so, the case will be accepted, and a date will be held for a subsequent hearing in a magistrates' court – otherwise the case will be sent to the Crown Court, as with Indictable offences below. The maximum custodial sentence the magistrates can impose for an either-way offence is six months. However, if the offender is guilty of two or more either-way offences, the maximum aggregate sentence is twelve months. The maximum fine for an either-way offence is £5,000, and there is no maximum aggregate.
Indictable offences, very serious crimes, will be sent to the Crown Court. Before August 2013, this was a two part process of committal and then sending.
For all cases, including indictable ones, the magistrates will have to decide, however, if the defendant is to be released on bail or remanded into custody. In law in England and Wales, bail is automatically granted unless the court believes there is a chance the defendant will either abscond, reoffend during the bail period, or interfere with witnesses or the case in general.
Juvenile justice deals with criminal offences by young people, who have reached the age of criminal liability (ten years old), but are not yet adults (have not reached 18). These cases are heard by specially trained magistrates sitting in a youth court. They have the power to impose a sentence of youth detention known as a detention and training order (DTO) for a period of up to two years.
Some civil matters, including non-payment of council tax, are heard by magistrates. Family proceedings may be held before specially trained magistrates in family proceedings courts within magistrates' courts.
Judges and other rolesEdit
Modern magistrates’ courts are based on a centuries-old office of magistrate, or Justice of the Peace, named so for their responsibility for guarding the sovereign's peace.
Today, terminological distinction is made between magistrates, who handle most cases and magistrates' courts’ district judges (professional lawyers).
In magistrates' courts (including youth courts and family proceedings courts), less complex cases are judged by magistrates or lay judges. (Previously the term "lay magistrates" has been used to distinguish them from professional magistrates, now district judges.) They are chosen from local citizens of good character (not previously convicted), mature personality and sound judgement. It is not their job, they are not paid, only have expenses reimbursed. Magistrates sit in adult criminal courts as "benches" of three (occasionally two), ideally of mixed gender, age and ethnicity.
The lead magistrate, known as the chairman, should be addressed in court as "sir" or "madam" or "your worship", and the magistrates collectively as 'your worships'. In writing, they are referred to as "John Smith Esq. JP" (for justice of the peace). The other magistrates are known as wingers. All decision making is made equally - the chairman does not carry any extra weight; they simply serve as the mouthpiece of the collective bench.
Lay magistracy is an ancient institution, dating in England from at least 1327, when an Act of Parliament provided that "good and lawful men" be appointed in every county in the land to guard the peace.
District judges (magistrates' courts), formerly known as a stipendiary magistrates, are professional lawyers permanently employed by the Ministry of Justice. They sit alone to preside over proceedings in more serious cases, usually involving remand, and in committal hearings. To qualify for the position, a law degree and 5 years of experience are necessary.
District judges (MC) are referred to as District Judge or DJ , in court addressed customarily Sir or Madam and addressed in correspondence with, for example, District Judge (Magistrates' Courts) Tuff.
Magistrates and district judges are assisted in court by the justices' clerk and their assistants, also known as legal advisers or court clerks, whose role is to ensure that procedures are adhered to and that the bench is properly directed as to the law and its powers, as well as seeing that the court's business is dealt with efficiently. The clerk's role is far more significant where lay magistrates are presiding because they are not legally trained and so require more advice on legal matters than a district judge. The clerk ought not to exert any influence upon the bench – to which the advice they provide must be neutral – but nevertheless the advice of the clerk carries considerable weight. To this end, the Practice Direction 2000 attempts to resolve issues concerning the influence of clerks over magistrates. It states that clerks should only advise on points of law and all advice should be given in open court in front of all present.
The Crown Prosecution Service (CPS) is an authority responsible for prosecuting cases (traditionally, in the name of the Queen or the King), once the police have completed their investigation. A relative novelty in English criminal proceedings, the CPS was established by the Prosecution of Offences Act 1985. Since its creation in 1986, it is the principal, though not the only, body that can bring a case to a criminal court in England and Wales.
A minority of cases are prosecuted by other law enforcement agencies, such as English local authorities, Welsh local authorities, the Department for Work and Pensions or the Health and Safety Executive, or private prosecutors such as the RSPCA or the BBC in its capacity as the TV licensing authority. Private individuals are also entitled to bring a private prosecution, this happens most commonly where an individual is an alleged victim of common assault and the authorities have declined to prosecute. Private prosecutors can either represent themselves, or they may instruct a solicitor or barrister to represent them.
The CPS retains a power to take over a private prosecution, under section 6(2) of the Prosecution of Offences Act 1985, either to continue or discontinue it. It is, however, CPS policy to exercise this power only if the prosecution should be stopped because it does not meet the requirements of the Code for Crown Prosecutors, or there are important reasons why the prosecution should be pursued by the CPS.
Defendants are entitled to represent themselves, and usually do so in minor cases such as road traffic offences, when they may not even have to attend. However, defendants may be represented by a solicitor or, less commonly, a barrister. In most magistrates' courts there will be a duty solicitor available to advise and possibly to represent any defendant who does not have his/her own solicitor.
Proceedings in magistrates' courts are oral and open for public – exceptions exist for the protection of victims (e.g. rape cases) and in youth courts.
Bail, remand, summonsEdit
When a defendant first appears before a magistrates' court, they will do so in one of three circumstances. They will either appear on bail having been charged with an offence and compelled to attend court under penalty; in response to a summons, which requires attendance but does not, in the first instance, carry any penalty for non-attendance; or in custody, having been refused bail by the police. If the defendant is on bail, s/he must first surrender to the custody of the court.
Whichever the circumstance, the first requirement is to identify him/herself to the Court. Once the Court is satisfied as to the identity of the defendant, it must consider the charges.
If the charge(s) is a summary offence, the court will generally expect a plea to be taken. If the plea is one of "not guilty", the Court will fix a date for trial, taking into account the number and availability of the witnesses.
In the event of a plea of guilty, the court will hear the facts of the case from the prosecution, and mitigation from the defence then consider sentence. For the most minor offences where the appropriate sentence is a fine or discharge, this will usually follow immediately after a plea of guilty. However, where the offence is more serious and may justify a community-based penalty or imprisonment, the case will usually be adjourned for the probation service to interview the defendant and prepare a pre-sentence report in which a recommendation as to the most appropriate sentence will be made. When the defendant returns to court for sentence, the Bench will consider the report along with any mitigation put forward by the defendant before passing sentence.
On each occasion that a defendant appears before the court, the issue of bail must be addressed. Defendants may be released on bail, which is an order of the court compelling a defendant's future attendance, which may have conditions attached to it where such conditions are considered necessary either to ensure the defendant's future attendance, prevent the commission of further offences, or prevent the obstruction of justice. If the Court decides that no conditions exist which could achieve these objectives, the court may remand the defendant in custody until the next hearing.
Either way offencesEdit
When an either way offence is to be tried at the Crown Court, magistrates are responsible for committal to the Crown Court (a task in former times dealt with by a grand jury), which requires the court to consider whether there is a case to answer based upon statements and exhibits submitted to the court.
If the charge is an either way offence, the "allocation" procedure is carried out. In this procedure, the defendant must indicate what his/her plea to the charge would be. If the defendant indicates a plea of "not guilty", or declines to indicate a plea, the court hears an outline of the facts from the prosecution and representations from the defendant or his representative, and then determines whether the case is suitable for summary trial or not. The court will decline jurisdiction to try the case if it decides that the sentencing powers of the magistrates' court are inadequate to deal with the case.
Committal and indictmentEdit
The grand jury system, which still exists in the United States, has been abolished in England and Wales. Instead magistrates now perform the grand jury's functions of indicting those accused of offences which need to be tried by a jury and sending them to the Crown Court for trial.
In the case of offences which are indictable only, no plea is taken and the case is sent forthwith to the Crown Court.
When dealing with either way offences, and after the defendant has indicated a plea, it is the role of the bench to decide whether the case is suitable for summary trial or whether to decline jurisdiction and send the case to the Crown Court - what is called the allocation decision. The court must have regard to both its sentencing powers and also any legal, procedural and factual complexity which may make the case unsuitable for summary trial. If the court finds the case suitable for summary trial then the defendant is asked whether he consents to trial or whether he will elect for trial in the Crown Court. If the court decides the case is not suitable for summary trial then it will send the case forthwith to the Crown Court.
Challenges to decisions of magistrates' courtsEdit
There are four mechanisms under which a decision of a magistrates' court may be challenged:
- Magistrates' Court at judiciary.gov.uk
- "Ninety one 'surplus' courts face closure", BBC News, 16 July 2015
- UK. Judicial Office. "Magistrates' Court". judiciary.gov.uk. Retrieved 19 January 2013.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012
- UK. Sentencing Council for England and Wales. "Types of sentence". sentencingcouncil.judiciary.gov.uk. Retrieved 19 January 2013.
- UK. Cabinet Office. Government Digital Service. "Community sentences". gov.uk. Retrieved 19 January 2013.
- "There is a statutory presumption that a person aged under 18 will be dealt with summarily, usually in a youth court; in such circumstances, the maximum custodial sentence will be a detention and training order of no more than 24 months. Such an order may be made only for the periods prescribed – 4, 6, 8, 10, 12, 18 or 24 months." Sentencing Council: Overarching Principles – Sentencing Youths Archived 14 May 2013 at the Wayback Machine, para 11.1, November 2009
- UK. Judicial Office. "Magistrates". judiciary.gov.uk. Retrieved 19 January 2013.
- UK. Judicial Office. "What do I call a judge?". judiciary.gov.uk. Retrieved 19 January 2013.
- 1 Edw. 3 Stat. 2 c. 16
- "The history of the Crown Prosecution Service". judiciary.gov.uk. Crown Prosecution Service. Retrieved 21 January 2013.
- "R (on the application of Gujra) v Crown Prosecution Service" (PDF). The Supreme Court of the United Kingdom. Retrieved 27 December 2016.
- "Private Prosecutions". cps.gov.uk. Crown Prosecution Service. Retrieved 27 December 2016.
- Magistrates' Courts Act 1980, s. 142.
- Magistrates' Courts Act 1980, s. 108.