Section 9: Meaning of “lay justice”
44.The purpose of this section is to clarify, throughout the Act, the difference between references to justices of the peace and lay justices.
45.The title of justice of the peace still applies to lay justices; but technically it may refer equally to a lay justice and to a District Judge (Magistrates’ Courts). For clarity throughout this Act the term “lay justice” has been used in those sections where a District Judge (Magistrates’ Courts) is not meant to be included in the provision. Although existing legislation, and the Act, refers to lay justices, they are also popularly known as “lay magistrates”, the expression used in these notes.
Section 10: Appointment of lay justices etc
46.This section makes similar provision to section 5(1) of the JPA 1997. However, it lays a new duty on the Lord Chancellor to assign every lay justice to a local justice area (for purposes which, it is envisaged, will include local organisation, training, selection for specialist work, pastoral care and discipline). There is no equivalent to this new power of assignment. The existence of the bench is implicit in current statute in the provisions governing elections for bench chairmen and deputy chairmen. Justices could be assigned to more than one area if appropriate, and the Lord Chancellor would be able to transfer justices to other areas.
47.This section clarifies that assignment to a local justice area is not to limit jurisdiction to that area. However, the section also provides that if a justice is to act outside his normal place of sitting he is to do so in accordance with arrangements. It is envisaged that these would be informal in nature. In practice it would be unrealistic that a justice would sit in an unaccustomed area save by prior arrangement between courts and with his agreement.
48.As lay magistrates will no longer have a jurisdiction limited to a commission area, there will no longer be the statutory residence qualifications for assignment (section 6 of the JPA 1997). It is envisaged, however, that Advisory Committees (who advise the Lord Chancellor on appointments of lay magistrates) will continue, under guidance from the Lord Chancellor, to recommend that lay magistrates be assigned to the local justice area in which they reside unless there is good reason to do otherwise (for example, should an applicant find it easier to sit where he or she works rather than where he or she lives).
49.A further effect of the repeal of the JPA 1997, and the provision made by this section, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of the appointment of lay magistrates within the Duchy, to the Lord Chancellor.
50.The section also provides that the Lord Chancellor may make rules prescribing training courses that justices would complete before exercising such jurisdictions as may be specified. This provision is designed to clarify the Lord Chancellor’s power to prescribe training – this is felt to be advisable in the future context that MCCs will no longer have responsibility for training lay magistrates.
51.The section also brings the other jurisdictions of a lay magistrate into line with the family and youth jurisdictions, where there is an existing power for the Lord Chancellor to set out requirements for those jurisdictions in rules.
Section 11: Resignation and removal of lay justicesSection 12: The supplemental listSection 13: Entry of names in the supplemental listSection 14: Removal of names from the supplemental list
52.These sections replace sections 7 to 9, of the JPA 1997, together with the provision in section 5 relating to the removal of lay justices from office. They provide that a lay justice may resign, set out the grounds on which justices may be removed from office, and re-enact (with some changes) the provision that lay justices shall be entered onto a supplemental list on reaching the age of 70, and thereafter cease to exercise office as justices.
53.Section 11 provides for the removal of justices from office specifying that they may be removed on the grounds of misbehaviour, incapacity, neglect of duty and persistent failure to meet prescribed competences. (There are currently competences laid down for lay magistrates, against which they are appraised, and it is envisaged that these competences will be formalised by direction.) At present there is no statutory restriction on the grounds on which they may be removed.
54.The function of the supplemental list under these sections is different from its functions under the JPA 1997: it has lost its disciplinary function, and is now intended to be simply a recognition of the service given by lay magistrates. For that reason it is no longer specified that the Lord Chancellor may place justices on the List on the ground of neglect of duty – this is now a ground for removal under section 11. The ability, however, for justices to be entered in the list after long service, even if they have not reached the age of 70, has been retained under section 13(4).
55.Additionally, these sections no longer provide statutory authority for supplemental list justices to perform certain acts (such as the signing of passport photographs), as the majority of the acts specified no longer require statutory authority. The sections also remove the provision that a retired lay magistrate may still act as a judge in the Crown Court (if authorised) until the age of 72.
56.Where a justice is in the middle of hearing a case, or still serving as bench chair, on reaching 70, his name need not go on the list until the end of the case or of his term as chair.
57.A further effect of the repeal of the JPA 1997, and the provision of this section, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of the supplemental list within the Duchy, to the Lord Chancellor.
Section 15: Lay Justices’ Allowances
58.This section makes similar provision to section 10 of the JPA 1997, which allows the Lord Chancellor to determine and to pay allowances for lay magistrates, and to make regulations in respect of the administration of this section.
Section 16: Records of lay justices
59.This section makes similar provision to section 25 of the JPA 1997, that the Lord Chancellor appoint keepers of the rolls to keep records of local lay magistrates. The statute has been modified, however, to accord with the changes to geographical administrative boundaries brought about by this Act.
60.As this Act abolishes commission areas, a keeper of the rolls must be appointed for each local justice area rather than each commission area. The Lord Chancellor may (and it is envisaged that he will) appoint the same person to be keeper of the rolls for more than one local justice area.
61.The requirement that the appointee be a justice has been removed, as there are no longer any offices whose holders are ex-officio justices (traditionally appointees to these posts would have been ex-officio justices by virtue of holding high office).
62.A further effect of the repeal of the JPA 1997, and the provision of this section, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of keepers of the rolls within the Duchy, to the Lord Chancellor.